Unassociated Document


    BERLINER
      COMMUNICATIONS, INC.

     

    


     

    OMNIBUS
      SECURITIES PLAN

     

    


     

    ADOPTED
      EFFECTIVE SEPTEMBER 22, 1999

     

    Last
      Updated: July 24, 2007

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    


    

      
        	
                TABLE
                  OF CONTENTS

              
	 	 
	
                ARTICLE
                  1. PURPOSE OF PLAN

              	
                1

              
	 	 
	
                ARTICLE
                  2. EFFECTIVE DATE AND TERM OF PLAN

              	
                1

              
	
                 2.1

              	
                TERM
                  OF PLAN

              	
                1

              
	
                 2.2

              	
                EFFECT
                  ON AWARDS

              	
                1

              
	
                 2.3

              	
                STOCKHOLDER
                  APPROVAL

              	
                1

              
	 	 
	
                ARTICLE
                  3. SHARES SUBJECT TO PLAN

              	
                1

              
	
                 3.1

              	
                RESERVED
                  NUMBER OF SHARES

              	
                1

              
	
                 3.2

              	
                SOURCE
                  OF SHARES

              	
                1

              
	
                 3.3

              	
                AVAILABILITY
                  OF UNUSED SHARES

              	
                2

              
	
                 3.4

              	
                ADJUSTMENT
                  PROVISIONS

              	
                2

              
	
                 3.5

              	
                SUBSTITUTE
                  AWARDS

              	
                3

              
	 	 
	
                ARTICLE
                  4. ADMINISTRATION OF PLAN

              	
                3

              
	
                 4.1

              	
                ADMINISTERING
                  BODY

              	
                3

              
	
                 4.2

              	
                AUTHORITY
                  OF ADMINISTERING BODY

              	
                4

              
	
                 4.3

              	
                ELIGIBILITY

              	
                5

              
	
                 4.4

              	
                NO
                  LIABILITY

              	
                5

              
	
                 4.5

              	
                AMENDMENTS

              	
                5

              
	
                 4.6

              	
                OTHER
                  COMPENSATION PLANS

              	
                6

              
	
                 4.7

              	
                PLAN
                  BINDING ON SUCCESSORS

              	
                6

              
	
                 4.8

              	
                REFERENCES
                  TO SUCCESSOR STATUTES, REGULATIONS

              	 
	
                 

              	
                AND
                  RULES

              	
                6

              
	
                 4.9

              	
                ISSUANCES
                  FOR COMPENSATION PURPOSES ONLY

              	
                6

              
	
                 4.10

              	
                INVALID
                  PROVISIONS

              	
                6

              
	
                 4.11

              	
                GOVERNING
                  LAW

              	
                6

              
	 	 
	
                ARTICLE
                  5. GENERAL AWARD PROVISIONS

              	
                7

              
	
                 5.1

              	
                PARTICIPATION
                  IN THIS PLAN

              	
                7

              
	
                 5.2

              	
                AWARD
                  AGREEMENTS

              	
                7

              
	
                 5.3

              	
                EXERCISE
                  OF AWARDS

              	
                8

              
	
                 5.4

              	
                PAYMENT
                  FOR AWARDS

              	
                8

              
	
                 5.5

              	
                NO
                  EMPLOYMENT OR OTHER CONTINUING RIGHTS

              	
                9

              
	
                 5.6

              	
                RESTRICTIONS
                  UNDER APPLICABLE LAWS AND REGULATIONS

              	
                9

              
	
                 5.7

              	
                ADDITIONAL
                  CONDITIONS

              	
                10

              
	
                 5.8

              	
                NO
                  PRIVILEGES OF STOCK OWNERSHIP

              	
                10

              
	
                 5.9

              	
                TRANSFERABILITY
                  OF AWARDS

              	
                11

              
	
                 5.10

              	
                INFORMATION
                  TO RECIPIENTS

              	
                12

              
	
                 5.11

              	
                WITHHOLDING
                  TAXES

              	
                12

              
	
                 5.12

              	
                LEGENDS
                  ON COMMON STOCK CERTIFICATES

              	
                13

              
	
                 5.13

              	
                EFFECT
                  OF TERMINATION OF EMPLOYMENT ON AWARDS -

              	 
	
                 

              	
                EMPLOYEES
                  ONLY

              	
                13

              
	
                 5.14

              	
                EFFECT
                  OF TERMINATION OF ENGAGEMENT ON AWARDS -

              	 
	
                 

              	
                NON-EMPLOYEES
                  ONLY

              	
                14

              


      

      


      


      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

      


      
        	
                 5.15

              	
                 TRANSFER;
                  LEAVE OF ABSENCE

              	
                15

              
	
                 5.16

              	
                 LIMITS
                  ON AWARDS TO CERTAIN ELIGIBLE PERSONS

              	
                15

              
	
                 5.17

              	
                 PERFORMANCE-BASED
                  COMPENSATION

              	
                16

              
	 	 
	
                ARTICLE
                  6. STOCK OPTIONS

              	
                16

              
	
                 6.1

              	
                 NATURE
                  OF STOCK OPTIONS

              	
                16

              
	
                 6.2

              	
                 OPTION
                  EXERCISE PRICE

              	
                16

              
	
                 6.3

              	
                 OPTION
                  PERIOD AND VESTING

              	
                17

              
	
                 6.4

              	
                 SPECIAL
                  PROVISIONS REGARDING INCENTIVE STOCK OPTIONS

              	
                17

              
	
                 6.5

              	
                 RELOAD
                  OPTIONS

              	
                17

              
	
                 6.6

              	
                 RESTRICTIONS

              	
                18

              
	 	 
	
                ARTICLE
                  7. RESTRICTED STOCK AWARDS

              	
                18

              
	
                 7.1

              	
                 NATURE
                  OF RESTRICTED STOCK AWARDS

              	
                18

              
	
                 7.2

              	
                 RIGHTS
                  AS STOCKHOLDERS

              	
                18

              
	
                 7.3

              	
                 RESTRICTION

              	
                18

              
	
                 7.4

              	
                 FORFEITURE
                  OR REPURCHASE OF RESTRICTED STOCK

              	
                19

              
	
                 7.5

              	
                 CERTIFICATES,
                  ESCROWS

              	
                19

              
	
                 7.6

              	
                 VESTING
                  OF RESTRICTED STOCK

              	
                19

              
	
                 7.7

              	
                 WAIVER,
                  DEFERRAL AND REINVESTMENT OF DIVIDENDS

              	
                20

              
	
                 7.8

              	
                 SECTION
                  83(b) ELECTION

              	
                20

              
	 	 
	
                ARTICLE
                  8. UNRESTRICTED STOCK AWARDS

              	
                20

              
	
                 8.1

              	
                 GRANT
                  OR SALE OF UNRESTRICTED STOCK

              	
                20

              
	 	 
	
                ARTICLE
                  9. PERFORMANCE STOCK AWARDS

              	
                21

              
	
                 9.1

              	
                 NATURE
                  OF PERFORMANCE STOCK AWARDS

              	
                21

              
	
                 9.2

              	
                 RIGHTS
                  AS A STOCKHOLDER

              	
                21

              
	 	 
	
                ARTICLE
                  10. DIVIDEND EQUIVALENT RIGHTS; INTEREST EQUIVALENTS

              	
                21

              
	
                 10.1

              	
                 DIVIDEND
                  EQUIVALENT RIGHTS

              	
                21

              
	
                 10.2

              	
                 INTEREST
                  EQUIVALENTS

              	
                22

              
	 	 
	
                ARTICLE
                  11. STOCK APPRECIATION RIGHTS

              	
                22

              
	
                 11.1

              	
                 GRANT
                  OF STOCK APPRECIATION RIGHTS

              	
                22

              
	
                 11.2

              	
                 COUPLED
                  STOCK APPRECIATION RIGHTS

              	
                22

              
	
                 11.3

              	
                 INDEPENDENT
                  STOCK APPRECIATION RIGHTS

              	
                23

              
	
                 11.4

              	
                 PAYMENT
                  AND LIMITATIONS ON EXERCISE

              	
                23

              
	 	 
	
                ARTICLE
                  12. REORGANIZATIONS

              	
                23

              
	
                 12.1

              	
                 CORPORATE
                  TRANSACTIONS NOT INVOLVING

              	 
	
                 

              	
                 A
                  CHANGE IN CONTROL

              	
                23

              
	
                 12.2

              	
                 CORPORATE
                  TRANSACTIONS INVOLVING

              	 
	 	
                 A
                  CHANGE IN CONTROL

              	
                23

              
	 	 
	
                ARTICLE
                  13. DEFINITIONS

              	
                24

              


      

      
        
           

        

        
           

          
            

          

        

        
           

        

      

    

    
      


      BERLINER
        COMMUNICATIONS, INC.

      OMNIBUS
        SECURITIES PLAN 

       

      ARTICLE
        1. 

      PURPOSE
        OF PLAN

       

      The
        Company adopted this Plan to promote the interests of the Company, its
        Affiliated Entities and their respective stockholders by using investment
        interests in the Company to attract, retain and motivate management and other
        persons, including officers, directors, employees and certain consultants
        of the
        Company and the Affiliated Entities to encourage and reward such persons’
contributions to the performance of the Company and to align their interests
        with the interests of the Company’s stockholders. Capitalized terms not
        otherwise defined herein shall have the meanings ascribed to them in Article
        13.


      


      ARTICLE
        2. 

      EFFECTIVE
        DATE AND TERM OF PLAN

       

      2.1 TERM
        OF
        PLAN. This Plan became effective as of the Effective Date and shall continue
        in
        effect until the Expiration Date, at which time this Plan shall automatically
        terminate.

       

      


      2.2 EFFECT
        ON
        AWARDS. Awards may be granted during the Plan Term, but no Awards may be
        granted
        after the Plan Term. Notwithstanding the foregoing, each Award properly granted
        under this Plan during the Plan Term shall remain in effect after termination
        of
        this Plan until such Award has been exercised, terminated or expired, as
        applicable, in accordance with its terms and the terms of this Plan.


       

      


      2.3 STOCKHOLDER
        APPROVAL. This Plan shall be approved by the Company’s stockholders within
        twelve (12) months after the Effective Date. The effectiveness of any Awards
        granted prior to such stockholder approval shall be specifically subject
        to, and
        conditioned upon, such stockholder approval. 

      


      ARTICLE
        3. 

      SHARES
        SUBJECT TO PLAN

       

      3.1 RESERVED
        NUMBER OF SHARES. The maximum number of shares of Common Stock that may be
        delivered pursuant to Options or other Awards granted under this Plan as
        of or
        prior to any date during the term of this Plan shall be equal to fifteen
        percent
        (15%) of the issued and outstanding shares of Common Stock as that number
        is
        determined by the Company to calculate fully diluted earnings per share for
        the
        Company’s fiscal year immediately preceding such date; provided, however, that
        for the purposes of determining the number of issued and outstanding shares
        of
        Common Stock as of the date of this Plan, 45,207,673 shares of Common Stock
        shall be deemed to have been issued and outstanding; and provided, further,
        that
        the maximum number of shares of Common Stock that may be delivered pursuant
        to
        Incentive Stock Options granted under this Plan shall be four million
        (4,000,000), subject in any case to adjustment as set forth in Section 3.4.
        

       

      3.2 SOURCE
        OF
        SHARES. The Common Stock to be issued under this Plan will be made available,
        at
        the discretion of the Board, either from authorized but unissued shares of
        Common Stock or from previously issued shares of Common Stock reacquired
        by the
        Company, including without limitation, shares purchased on the open market.
        

       

      
        
           

        

        
          1

          
            

          

        

        
           

        

      

       

      3.3 AVAILABILITY
        OF UNUSED SHARES. Shares of Common Stock subject to and/or underlying any
        unexercised, unearned or yet-to-be acquired portions of any Award granted
        under
        this Plan that expire, terminate or are canceled, and shares of Common Stock
        issued pursuant to Awards under this Plan that are reacquired by the Company
        pursuant to the terms under which such shares were issued, will again become
        available for the grant of further Awards under this Plan. Notwithstanding
        the
        provisions of this Section 3.3, no shares of Common Stock may again be optioned,
        granted or awarded if such action would cause an Incentive Stock Option to
        fail
        to qualify as an incentive stock option under Section 422 of the IRC.


      


      3.4  ADJUSTMENT
        PROVISIONS.

       

       
(a)
        If
        (i) the outstanding shares of Common Stock are increased, decreased or
exchanged
        for a different number or kind of shares or other securities, or if additional
        shares or new or different shares or other securities are distributed in
        respect
        of such shares of Common Stock (or any stock or securities received with
        respect
        to such Common Stock), through merger, consolidation, sale or exchange of
        all or
        substantially all of the assets of the Company, reorganization,
        recapitalization, reclassification, stock dividend, stock split, reverse
        stock
        split, spin-off or other distribution with respect to such shares of Common
        Stock (or any stock or securities received with respect to such Common Stock),
        or (ii) the value of the outstanding shares of Common Stock is reduced by
        reason
        of an extraordinary dividend payable in cash or property, an appropriate
        and
        proportionate adjustment may be made in (1) the maximum number and kind of
        shares or securities available for issuance under this Plan, (2) the number
        and
        kind of shares or other securities that can be granted to any one individual
        Recipient under his or her Awards, (3) the number and kind of shares or other
        securities subject to then outstanding Awards under this Plan, and/or (4)
        the
        price for each share or other unit of any other securities subject to then
        outstanding Awards under this Plan. 

       

      (b) No
        fractional interests will be issued under this Plan resulting from any
        adjustments, but the Administering Body, in its sole discretion, may make
        a cash
        payment in lieu of any fractional shares of Common Stock issuable as a result
        of
        such adjustments. 

      


      (c) Any
        adjustments pursuant to this Section 3.4 shall be made by the Administering
        Body, in its discretion, to preserve the benefits or potential benefits intended
        to be made available under this Plan or with respect to any outstanding Awards
        or otherwise necessary to reflect any capital change or other event described
        in
        Section 3.4(a), whose determination in that respect shall be final, binding
        and
        conclusive. 

       

      (d) The
        grant
        of Awards pursuant to this Plan shall not affect in any way the right or
        power
        of the Company to make adjustments, reclassifications, reorganizations or
        changes of its capital or business structure or to merge or to consolidate
        or to
        dissolve, liquidate or sell, or transfer all or any part of its business
        or
        assets. 

      


      
        
           

        

        
          2

          
            

          

        

        
           

        

      

       

       

      (e) No
        adjustment to the terms of an Incentive Stock Option shall be made unless
        such
        adjustment would not cause such Incentive Stock Option to lose its status as an
        incentive stock option under the provisions of the IRC, unless the Administering
        Body determines otherwise. 

       

      


      3.5 SUBSTITUTE
        AWARDS. The Administering Body may grant Awards under this Plan in substitution
        for stock and stock based awards held by employees of another corporation
        who
        become employees of the Company or an Affiliated Entity as a result of a
        merger
        or consolidation of the employing corporation with the Company or an Affiliated
        Entity or the acquisition by the Company or an Affiliated Entity of property
        or
        stock of the employing corporation. The Administering Body may direct that
        the
        substitute Awards be granted on such terms and conditions as the Administering
        Body considers appropriate in the circumstances. Any shares of Common Stock
        delivered under any such substitute Awards shall not reduce the maximum number
        of shares of Common Stock available for issuance under this Plan. 

      


      ARTICLE
        4. 

      ADMINISTRATION
        OF PLAN

       

      4.1  ADMINISTERING
        BODY.

       

      
        (a)
          This
          Plan shall be administered by the Board; provided, however, that if the
          Board
          appoints a Stock Plan Committee pursuant to Section 4.1(b), this Plan shall
          be
          administered by the Stock Plan Committee, subject to the right of the Board
          to
          exercise, at any time and from time to time, any and all of the duties
          and
          responsibilities of the Stock Plan Committee as the Administering Body,
          including, but not limited to, establishing procedures to be followed by
          the
          Stock Plan Committee; provided further, however, that the Board shall not
          exercise any authority regarding matters which under applicable law, rule
          or
          regulation, including, without limitation, any exemptive rule under Section
          16
          of the Exchange Act (including Rule 16b-3) or IRC Section 162(m), are required
          to be determined in the sole discretion of the Stock Plan Committee. The
          Stock
          Plan Committee may be (but is not required to be), in the discretion of
          the
          Board, the same as the compensation committee of the Board, if such committee
          has been appointed.

      

       

      (b) (i)
        The
        Board in its sole discretion may from time to time appoint a Stock Plan
        Committee of not less than two (2) Board members to administer this Plan.
        The
        Board may from time to time increase or decrease (but not below two (2))
        the
        number of members of the Stock Plan Committee, remove from membership on
        the
        Stock Plan Committee all or any portion of its members, and/or appoint such
        person or persons as it desires to fill any vacancy existing on the Stock
        Plan
        Committee, whether caused by removal, resignation or otherwise. The Board
        may
        disband the Stock Plan Committee at any time and thereby revest in the Board
        the
        administration of this Plan. 

       

      


      (ii) The
        Stock
        Plan Committee shall report to the Board the names of Eligible Persons granted
        Awards, the precise type of Award granted, the number of shares of Common
        Stock
        issuable pursuant to such Award, if any, and the terms and conditions of
        each
        such Award. 

      


      
        
           

        

        
          3

          
            

          

        

        
           

        

      

      


      4.2  AUTHORITY
        OF ADMINISTERING BODY.

       

      (a)
        Subject to the express provisions of this Plan, the Administering Body
shall
        have the power to interpret and construe this Plan and any agreements or
        other
        documents defining the rights and obligations of the Company or any Affiliated
        Entity and such Eligible Persons who have been granted Awards hereunder and
        thereunder, to determine all questions arising hereunder and thereunder,
        to
        adopt and amend such rules and regulations for the administration hereof
        and
        thereof as it may deem desirable, to correct any errors, supply any omissions
        and reconcile any inconsistencies in this Plan and/or any Award Agreement
        or any
        other instrument relating to any Award, and to otherwise carry out the terms
        of
        this Plan and such agreements and other documents. Such interpretations and
        constructions by the Administering Body of any provisions of this Plan or
        of any
        Award, as well as any other decisions, actions or inactions of the Administering
        Body relating to this Plan or any Award or Award Agreement, shall be within
        the
        absolute discretion of the Administering Body (subject only to the express
        terms
        of this Plan and the Award Agreement and all applicable laws, regulations
        and
        rules) and shall be final, conclusive and binding upon all persons.


       

      (b) Subject
        to the express provisions of this Plan, the Administering Body may from time
        to
        time, in its discretion, select the Eligible Persons to whom, and the time
        or
        times at which, Awards may be granted; the nature of each Award; the number
        of
        shares of Common Stock that comprise or underlie each Award; the period for
        the
        purchase or exercise of each Award, as applicable and such other terms and
        conditions applicable to each individual Award as the Administering Body
        shall
        determine. Subject to Section 5.16(a), the Administering Body may grant,
        at any
        time, new Awards to an Eligible Person who has previously received Awards
        whether such prior Awards are still outstanding, have previously been canceled,
        disposed of or exercised as a whole or in part, as applicable, or are canceled
        in connection with the issuance of new Awards. The Administering Body may
        grant
        Awards singly, in combination or in tandem with other Awards, as it determines
        in its discretion. Subject to Section 5.16(a), any and all terms and conditions
        of the Awards, including, without limitation, the purchase or exercise price,
        may be established by the Administering Body without regard to existing Awards.
        

       

      (c) Any
        action of the Administering Body with respect to the administration of this
        Plan
        shall be taken pursuant to a majority vote of the authorized number of members
        of the Administering Body or by the unanimous written consent of its members;
        provided, however, that (i) if the Administering Body is the Stock Plan
        Committee and consists of two (2) members, then actions of the Administering
        Body must be unanimous and (ii) if the Administering Body is the Board, actions
        taken at a meeting of the Board shall be valid if approved by directors
        constituting a majority of the required quorum for such meeting. 

       

      (d) Except
        to
        the extent prohibited by applicable law, including, without limitation, the
        requirements applicable under IRC Section 162(m) to any Award intended to
        be
“qualified performance-based compensation,” or the requirements for any Award
        granted to an officer of the Company or a Director to be covered by any
        exemptive rule under Section 16 of the Exchange Act (including Rule 16b-3),
        or
        the rules of a stock

      


      
        
           

        

        
          4

          
            

          

        

        
           

        

      

       

      exchange
        or automated quotation system then listing shares of Common Stock, the
        Administering Body may, in its discretion, allocate all or any portion of
        its
        responsibilities and powers under this Plan to any one or more of its members
        and/or delegate all or any part of its responsibilities and powers under
        this
        Plan to any person or persons selected by it; provided, however, that the
        Administering Body may not delegate its authority to correct errors, omissions
        or inconsistencies in this Plan. Any such authority delegated or allocated
        by
        the Administering Body under this paragraph (d) of Section 4.2 shall be
        exercised in accordance with the terms and conditions of this Plan and any
        rules, regulations or administrative guidelines that may from time to time
        be
        established by the Administering Body, and any such allocation or delegation
        may
        be revoked by the Administering Body at any time. 

       

      4.3 ELIGIBILITY.
        Only Eligible Persons shall be eligible to receive Awards under this Plan.
        

       

      4.4 NO
        LIABILITY. No member of the Board or the Stock Plan Committee or any designee
        thereof will be liable for any action or inaction with respect to this Plan
        or
        any Award or any transaction arising under this Plan or any Award, except
        in
        circumstances constituting bad faith of such member. 

      


      4.5  AMENDMENTS.

       

      (a)
        The
        Administering Body may, insofar as permitted by applicable law, rule
or
        regulation, from time to time suspend or discontinue this Plan or revise
        or
        amend it in any respect whatsoever, and this Plan as so revised or amended
        will
        govern all Awards hereunder, including those granted before such revision
        or
        amendment; provided, however, that, except as otherwise provided by this
        Plan,
        no such revision or amendment shall materially impair or diminish any rights
        or
        obligations under any Award previously granted under this Plan, without the
        written consent of the Recipient. Without limiting the generality of the
        foregoing, the Administering Body is authorized to amend this Plan to comply
        with or take advantage of amendments to applicable laws, rules or regulations,
        including amendments to the Securities Act, Exchange Act or the IRC or any
        rules
        or regulations promulgated thereunder. No such revision or amendment of this
        Plan shall be made without first obtaining approval of the stockholders of
        the
        Company to the extent such approval is required by applicable law, rule or
        regulation, including, without limitation, the requirements of any stock
        exchange or automated quotation system then listing the shares of Common
        Stock
        or any applicable requirements relating to Incentive Stock Options or for
        exemption from IRC Section 162(m) or the then-applicable requirements of
        Rule
        16b-3. 

       

      (b) The
        Administering Body may amend the terms and conditions of an Award previously
        granted under this Plan, including any Award Agreement, retroactively or
        prospectively, but no such amendment shall materially impair or diminish
        any
        rights or obligations of a Recipient under such Award without such Recipient’s
        written consent. Without limiting the generality of the foregoing, the
        Administering Body may, in its discretion, at any time and from time to time
        after the grant of any Award (i) accelerate or extend the vesting or exercise
        period, or lapse of restrictions, applicable to any Award as

      


      
        
           

        

        
          5

          
            

          

        

        
           

        

      

       

      a
        whole
        or in part, (ii) adjust or reduce the purchase or exercise price, as applicable,
        of Awards held by such Recipient by cancellation of such Awards and granting
        of
        Awards at lower purchase or exercise prices or by modification, extension
        or
        renewal of such Awards and (iii) reduce or otherwise modify the performance
        goals applicable to any Award. Notwithstanding any other provision of this
        Plan
        to the contrary, no amendment or modification of this Plan or any outstanding
        Award shall cause any outstanding Award granted with the intention that it
        qualify as Performance-Based Compensation to fail to continue to so qualify.
        In
        the case of Incentive Stock Options, Recipients acknowledge that extensions
        of
        the exercise period may result in the loss of the favorable tax treatment
        afforded incentive stock options under Section 422 of the IRC. 

       

      4.6 OTHER
        COMPENSATION PLANS. The adoption of this Plan shall not affect any other
        stock
        option, securities purchase, incentive or other compensation plans in effect
        for
        the Company or any Affiliated Entity, and this Plan shall not preclude the
        Company or an Affiliated Entity from establishing any other forms of incentive
        or other compensation for Employees, Directors, Consultants or others, whether
        or not approved by the stockholders of the Company. 

      
 

      4.7 PLAN
        BINDING ON SUCCESSORS. This Plan shall be binding upon the successors and
        assigns of the Company. 

       

      4.8 REFERENCES
        TO SUCCESSOR STATUTES, REGULATIONS AND RULES. Any reference in this Plan
        to a
        particular statute, regulation or rule shall also refer to any successor
        provision of such statute, regulation or rule. 

       

      


      4.9 ISSUANCES
        FOR COMPENSATION PURPOSES ONLY. This Plan constitutes an “employee benefit plan”
as defined in Rule 405 promulgated under the Securities Act. Awards to eligible
        Employees or Directors shall be granted for any lawful consideration, including
        compensation for services rendered, promissory notes or otherwise. Awards
        to
        eligible Consultants shall be granted only in exchange for bona fide services
        rendered by such Consultants and such services must not be in connection
        with
        the offer and sale of securities in a capital-raising transaction. 

       

      4.10 INVALID
        PROVISIONS. In the event that any provision of this Plan is found to be invalid
        or otherwise unenforceable under any applicable law, such invalidity or
        unenforceability shall not be construed as rendering any other provisions
        contained herein invalid or unenforceable, and all such other provisions
        shall
        be given full force and effect to the same extent as though the invalid and
        unenforceable provision were not contained herein. 

       

      4.11 GOVERNING
        LAW. This Plan and each Award Agreement shall be governed by and interpreted
        in
        accordance with the internal laws of the State of Delaware, without giving
        effect to the principles of the conflicts of laws thereof. 

      


      
        
           

        

        
          6

          
            

          

        

        
           

        

      

       

      ARTICLE
        5. 

      GENERAL
        AWARD PROVISIONS

       

      5.1  PARTICIPATION
        IN THIS PLAN.

       

      
        (a)
          A
          person shall be eligible to receive Award grants under this Plan if, at
          the
time
          of
          the grant of such Award, such person is an Eligible Person. 

      

       

      (b) Incentive
        Stock Options may be granted only to Employees who, at the date of granting
        of
        such Incentive Stock Options, are Employees of the Company or a Parent
        Corporation or a Subsidiary Corporation, and otherwise meet the employment
        requirements of Section 422 of the IRC, or a similar statute governing Incentive
        Stock Options. 

       

      


      (c) Notwithstanding
        anything to the contrary herein, the Administering Body may, in its discretion,
        in order to fulfill the purposes of this Plan, modify grants of Awards to
        Recipients who are foreign nationals or employed outside of the United States
        to
        recognize differences in applicable law, tax policy or local custom.


      


      5.2  AWARD
        AGREEMENTS.

       

      
        (a)
          Each
          Award granted under this Plan shall be evidenced by an agreement duly
          executed on behalf of the Company and by the Recipient or, in the Administering
          Body’s discretion, a confirming memorandum issued by the Company to the
          Recipient, setting forth such terms and conditions applicable to such Award
          as
          the Administering Body may in its discretion determine. Award Agreements
          may but
          need not be identical and shall comply with and be subject to the terms
          and
          conditions of this Plan, a copy of which shall be provided to each Recipient
          and
          incorporated by reference into each Award Agreement. Any Award Agreement
          may
          contain such other terms, provisions and conditions not inconsistent with
          this
          Plan as may be determined by the Administering Body. 


      

      (b) In
        case
        of any conflict between this Plan and any Award Agreement, this Plan shall
        control except as specifically provided in the Award Agreement. 

      


      (c) In
        case
        of any conflict between this Plan and any Award Agreement, on the one hand,
        and
        any employment agreement (an “Employment Agreement”) between a Recipient and
        either the Company and/or an Affiliated Entity, on the other hand, the terms
        and
        conditions of the Employment Agreement shall apply with respect to those
        items
        specifically addressed in the Employment Agreement. 

       

      (d) In
        consideration of the granting of an Award under this Plan, if requested by
        the
        Company, the Recipient shall agree, in the Award Agreement, to remain in
        the
        employ of (or to consult for or to serve as a Director of, as applicable)
        the
        Company or any Affiliated Entity for a period of at least one (1) year (or
        such
        shorter period as may be fixed in the Award Agreement or by action of the
        Administering Body following grant of the Award) after the Award is granted
        (or,
        in the case of a Director, until the next annual meeting of stockholders
        of the
        Company). 

      


      
        
           

        

        
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      5.3 EXERCISE
        OF AWARDS. No Award granted hereunder shall be issuable or exercisable except
        in
        respect of whole shares, and fractional share interests shall be disregarded.
        Not less than 100 shares of Common Stock (or such other amount as is set
        forth
        in the applicable Award Agreement) may be purchased or issued at one time
        upon
        exercise of a Stock Option or under any other Award, and Stock Options and
        other
        Awards must be exercised, issued or purchased, as applicable, in multiples
        of
        100 shares unless the number of shares purchased is the total number of shares
        at the time available under the terms of the Award. An Award shall be deemed
        to
        be claimed or exercised when the Secretary or other official of the Company
        designated by the Administering Body receives appropriate written notice,
        on
        such form acceptable to the Administering Body, from the Recipient together
        with
        payment of the applicable purchase or exercise price, if any, made in accordance
        with the Award Agreement and any amounts required under Section 5.11 of this
        Plan. Notwithstanding any other provision of this Plan, the Administering
        Body
        may impose, by rule and/or in Award Agreements, such conditions upon the
        exercise of Awards (including without limitation conditions limiting the
        time of
        exercise to specified periods) as may be required to satisfy applicable
        regulatory requirements, including without limitation Rule 16b-3 and Rule
        10b-5
        under the Exchange Act, or any other applicable law, regulation or rule,
        including, without limitation, any applicable requirements under the IRC,
        or the
        regulations promulgated thereunder. 

      


      5.4  PAYMENT
        FOR AWARDS.

       

      
        (a)
          Awards requiring payment of a purchase or exercise price shall be payable
          upon
          the
          exercise or purchase of such Award by delivery of legal tender of the United
          States or payment of such other consideration permitted by applicable law
          as the
          Administering Body may from time to time deem acceptable in any particular
          instance, including consideration pursuant to paragraph (b) or (c) of this
          Section 5.4. 

      

       

      (b) The
        Company may, in the discretion of the Administering Body, assist any Recipient
        (including without limitation any Employee, Director or Consultant) in the
        payment of the exercise price or other amounts payable in connection with
        the
        receipt or exercise of such Award, by lending such amounts to such person
        on
        such terms and at such rates of interest and upon such security (if any)
        as
        shall be approved by the Administering Body. 

       

      (c) In
        the
        discretion of the Administering Body, and subject to such limitations or
        conditions as it may prescribe, if permitted by applicable law, (i) payments
        for
        purchase or exercise of Awards may be by matured capital stock of the Company
        (i.e., capital stock owned longer than six (6) months by the person delivering
        such capital stock (or by such person and his or her spouse jointly)) delivered
        in transfer to the Company by or on behalf of the Recipient exercising or
        purchasing the Award and duly endorsed in blank or accompanied by stock powers
        duly endorsed in blank, with signatures guaranteed in accordance with the
        Exchange Act if required by the Administering Body (valued at Fair Market
        Value
        as of the exercise or purchase date), or such other consideration as the
        Administering Body may from time to time in the exercise of its discretion
        deem
        acceptable in any particular instance; (ii) the Administering Body may allow
        the
        exercise of Stock Options in a broker-assisted or similar transaction in
        which
        the exercise price is not received by the Company until

      


      
        
           

        

        
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      promptly
        after exercise; and (iii) the Administering Body may allow the Company to
        loan
        the applicable purchase or exercise price to the Recipient, if the purchase
        or
        exercise will be followed by a prompt sale of some or all of the underlying
        shares and a portion of the sale proceeds is dedicated to full payment of
        the
        purchase or exercise price and amounts required pursuant to Section 5.11
        of this
        Plan. 

       

      


      5.5 NO
        EMPLOYMENT OR OTHER CONTINUING RIGHTS. Nothing contained in this Plan (or
        in any
        Award Agreement or in any other agreement or document related to this Plan
        or to
        Awards granted hereunder) shall confer upon (a) any Eligible Person or Recipient
        any right to continue in the employ (or other business relationship) of the
        Company or any Affiliated Entity or constitute any contract or agreement
        of
        employment or engagement, or interfere in any way with the right of the Company
        or any Affiliated Entity to reduce such person’s compensation or other benefits
        or to terminate the employment or engagement of such Eligible Person or
        Recipient, with or without cause; or (b) any Recipient any right to exercise
        or
        claim his or her Award otherwise than in accordance with the express terms
        and
        conditions of his or her Award Agreement and this Plan. Except as expressly
        provided in this Plan or in any Award Agreement pursuant to this Plan, the
        Company and any Affiliated Entity shall have the right to deal with each
        Recipient in the same manner as if this Plan and any such Award Agreement
        did
        not exist, including without limitation with respect to all matters related
        to
        the hiring, retention, discharge, compensation and conditions of the employment
        or engagement of the Recipient. Any questions as to whether and when there
        has
        been a termination of a Recipient’s employment or engagement, the reason (if
        any) for such termination, and/or the consequences thereof under the terms
        of
        this Plan or any statement evidencing the grant of Awards pursuant to this
        Plan
        shall be determined by the Administering Body, and the Administering Body’s
        determination thereof shall be final and binding. 

      


      5.6  RESTRICTIONS
        UNDER APPLICABLE LAWS AND REGULATIONS. (a) All Awards granted under this
        Plan
        shall be subject to the requirement that,
        if
        at any time the Company shall determine, in its discretion, that the listing,
        registration or qualification of the shares subject to any such Award granted
        under this Plan upon any securities exchange or under any federal, state
        or
        foreign law, or the consent or approval of any government regulatory body,
        is
        necessary or desirable as a condition of, or in connection with, the granting
        of
        such Awards or the issuance, if any, or purchase of shares in connection
        therewith, such Awards may not be granted or exercised as a whole or in part
        unless and until such listing, registration, qualification, consent or approval
        shall have been effected or obtained free of any conditions not acceptable
        to
        the Administering Body. During the term of this Plan, the Company will use
        reasonable efforts to seek to obtain from the appropriate regulatory agencies
        any requisite qualifications, consents, approvals or authorizations in order
        to
        issue and sell such number of shares of its Common Stock as shall be sufficient
        to satisfy the requirements of this Plan. The inability of the Company to
        obtain
        from any such regulatory agency having jurisdiction thereof the qualifications,
        consents, approvals or authorizations deemed by the Company to be necessary
        for
        the lawful issuance and sale of any shares of its Common Stock hereunder
        shall
        relieve the Company of any liability in respect of the nonissuance or sale
        of
        such stock as to which such requisite authorization shall not have been
        obtained. 

      


      
        
           

        

        
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      -9-

      


      (b) The
        Company shall be under no obligation to register or qualify the issuance
        of
        Awards or underlying shares of Common Stock under the Securities Act or
        applicable state securities laws. Unless the shares of Common Stock applicable
        to any such Award have been registered under the Securities Act and qualified
        or
        registered under applicable state securities laws, the Company shall be under
        no
        obligation to issue any shares of Common Stock covered by any Award unless
        the
        Award and underlying shares of Common Stock, as applicable, may be issued
        pursuant to applicable exemptions from such registration or qualification
        requirements. In connection with any such exempt issuance, the Administering
        Body may require the Recipient to provide a written representation and
        undertaking to the Company, satisfactory in form and scope to the Administering
        Body and upon which the Company may reasonably rely, that such Recipient
        is
        acquiring such shares of Common Stock for his or her own account as an
        investment and not with a view to, or for sale in connection with, the
        distribution of any such shares of Common Stock, and that such person will
        make
        no transfer of the same except in compliance with any rules and regulations
        in
        force at the time of such transfer under the Securities Act and other applicable
        law, and that if shares of Common Stock are issued under this Plan without
        such
        registration, a legend to this effect (together with any other legends deemed
        appropriate by the Administering Body) may be endorsed upon the certificates
        evidencing the shares of Common Stock so issued. The Administering Body may
        also
        order its transfer agent to stop transfers of such shares. The Administering
        Body may also require the Recipient to provide the Company such information
        and
        other documents as the Administering Body may request in order to satisfy
        the
        Administering Body as to the investment sophistication and experience of
        the
        Recipient and as to any other conditions for compliance with any such exemptions
        from registration or qualification. 

       

      5.7 ADDITIONAL
        CONDITIONS. Any Award may also be subject to such other provisions (whether
        or
        not applicable to any other Award or Eligible Person) as the Administering
        Body
        determines appropriate, in accordance with this Plan and the Award Agreement,
        including, without limitation, (a) provisions to assist the Recipient in
        financing the purchase of Common Stock issuable as a result of such Award,
        (b)
        provisions for the forfeiture of or restrictions on resale or other disposition
        of shares of Common Stock acquired under any Award, (c) provisions giving
        the
        Company the right to repurchase shares of Common Stock acquired under any
        Award
        in the event the Recipient elects to dispose of such shares, and (d) provisions
        to comply with federal, state or foreign securities laws and federal, state
        or
        foreign income or employment tax withholding requirements. 

       

      5.8 NO
        PRIVILEGES OF STOCK OWNERSHIP. Except as otherwise set forth herein, a Recipient
        shall have no rights as a stockholder with respect to any shares issuable
        or
        issued in connection with an Award until the date of the exercise of the
        Option
        or Stock Appreciation Right, if applicable, in accordance with the Award
        Agreement and this Plan, and the receipt by the Company of all amounts payable
        in connection with the purchase or exercise, as applicable, of the Award,
        the
        satisfaction or waiver of all applicable performance goals and performance
        by
        the Recipient of all conditions and obligations applicable to the Award,
        in
        accordance with this Plan and the applicable Award Agreement. Status as an
        Eligible Person shall not be construed as a commitment that any Award will
        be
        granted under this Plan to an Eligible Person or to Eligible Persons generally.
        No person shall have any right, title or interest

      


      
        
           

        

        
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      in
        any
        fund or in any specific asset (including shares of capital stock) of the
        Company
        by reason of any Award granted hereunder. Neither this Plan (nor any documents
        related hereto) nor any action taken pursuant hereto (or thereto) shall be
        construed to create a trust of any kind or a fiduciary relationship between
        the
        Company and any Person. To the extent that any Person acquires any right
        with
        respect to Awards hereunder, such right shall be no greater than the right
        of
        any unsecured general creditor of the Company. 

      


      5.9  TRANSFERABILITY
        OF AWARDS.

       

      
        (a)
          Except as otherwise provided by this Section 5.9 or by the Administering
          Body,
          no
          Award under this Plan may be sold, pledged, assigned, transferred, encumbered,
          alienated, hypothecated or otherwise disposed of (whether voluntarily or
          involuntarily or by operation of law by judgment, levy, attachment, garnishment
          or any other legal or equitable proceedings (including bankruptcy)) in
          any
          manner other than by will or the laws of descent and distribution or, subject
          to
          the consent of the Administering Body, pursuant to a DRO, unless and until
          such
          Award has been exercised, if applicable, and the shares of Common Stock
          underlying such Award have been issued, and all restrictions applicable
          to such
          shares have lapsed, and no Award or interest or right therein shall be
          liable
          for the debts, contracts, liabilities or contractual obligations of the
          Recipient thereof. Any attempted disposition of an Award or any interest
          therein
          shall be null and void and of no effect, except to the extent that such
          disposition is permitted by the preceding sentence. 

      

       

      (b) Except
        as
        otherwise provided by the Administering Body, during the lifetime of a
        Recipient, only he or his court appointed guardian may exercise an Award
        (or any
        portion thereof) granted to him under this Plan, unless it has been transferred
        in accordance with paragraph (c) of this Section 5.9 or, with the consent
        of the
        Administering Body, pursuant to a DRO. After the death of a Recipient, any
        exercisable or vested but unpaid portion of an Award may, prior to the time
        when
        such portion becomes unexercisable or is terminated or expires under this
        Plan
        or the applicable Award Agreement, be exercised by or paid to the beneficiary
        most recently named by such Recipient in a written designation thereof filed
        with the Company, to the extent permitted by the Recipient’s Award Agreement,
        or, in the absence of a validly designated beneficiary, his or her personal
        representative or by any person empowered to do so under the deceased
        Recipient’s will or under the then applicable laws of descent and distribution.
        In the event any Award is to be exercised by, or paid to, the executors,
        administrators, heirs or distributees of the estate of a deceased Recipient,
        or
        such Recipient’s beneficiary, or an incapacitated Recipient’s guardian, or the
        transferee of such Award, in any case pursuant to the terms and conditions
        of
        this Plan and the applicable Award Agreement, and in accordance with such
        terms
        and conditions as may be specified from time to time by the Administering
        Body,
        the Company shall be under no obligation to issue shares of Common Stock
        or make
        any payment under such Award unless and until the Administering Body is
        satisfied that the person or persons exercising or to receive payment under
        such
        Award is the duly appointed legal representative of the deceased Recipient’s
        estate or the proper legatee or distributee thereof. 

      


      
        
           

        

        
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      (c) The
        Administering Body may, in its discretion, permit the transfer of an Award
        to,
        exercise of an Award by, or payment of an Award to, a person other than the
        Recipient who received the grant of such Award in accordance with the Award
        Agreement and such terms and conditions as the Administering Body may specify
        from time to time. 

       

      (d) Notwithstanding
        the foregoing, no Stock Option owned by a Recipient subject to Section 16
        of the
        Exchange Act may be assigned or transferred in any manner inconsistent with
        Rule
        16b-3, and Incentive Stock Options (or other Stock Options subject to transfer
        restrictions under the IRC) may not be assigned or transferred if such
        assignment or transfer would cause such an Incentive Stock Option to fail
        to
        qualify under Section 422 of the IRC (or any comparable or successor provision)
        or the regulations thereunder. 

      


      5.10  INFORMATION
        TO RECIPIENTS.

       

      (a)
        The
        Administering Body in its sole discretion shall determine what, if any,
financial
        and other information shall be provided to Recipients and when such financial
        and other information shall be provided after giving consideration to applicable
        federal, state and foreign laws, rules and regulations, including without
        limitation applicable federal, state and foreign securities laws, rules and
        regulations. 

       

      


      (b) The
        furnishing of financial and other information that is confidential to the
        Company shall be subject to the Recipient’s agreement that the Recipient shall
        maintain the confidentiality of such financial and other information, shall
        not
        disclose such information to third parties, and shall not use the information
        for any purpose other than evaluating an investment in the Company’s securities
        under this Plan. The Administering Body may impose other restrictions on
        the
        access to and use of such confidential information and may require a Recipient
        to acknowledge the Recipient’s obligations under this Section 5.10(b) (which
        acknowledgment shall not be a condition to the Recipient’s obligations under
        this Section 5.10(b)). 

       

      5.11 WITHHOLDING
        TAXES. Whenever the granting, vesting, exercise or payment of any Award granted
        under this Plan, or the transfer of any shares issued upon exercise of any
        Award, gives rise to tax or tax withholding liabilities or obligations, the
        Administering Body shall have the right, as a condition to the issuance of
        any
        shares of Common Stock under, or other payment of, such Award, to require
        the
        Recipient to remit to the Company an amount sufficient to satisfy all such
        federal, state, local and foreign tax requirements, and the Company or any
        Affiliated Entity shall, to the extent permitted by applicable law, have
        the
        right to deduct any such taxes from any payment of any kind otherwise due
        to
        such Recipient. The Administering Body may, in the exercise of its discretion,
        permit a Recipient to satisfy such tax withholding requirements by (a) delivery
        to the Company of Common Stock owned by such Recipient (or by such Recipient
        and
        his or her spouse jointly) and acquired more than six (6) months prior to
        such
        delivery or (b) electing withholding by the Company of a portion of the Common
        Stock otherwise issuable in connection with such Recipient’s Award (provided,
        however, that the amount of any Common Stock so withheld shall not exceed
        the
        amount necessary to satisfy required federal, state, local and foreign
        withholding obligations using the

      


      
        
           

        

        
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      minimum
        statutory rate), to the extent permitted by applicable law and pursuant to
        procedures approved by the Administering Body. 

       

      5.12 LEGENDS
        ON COMMON STOCK CERTIFICATES. Each certificate representing shares acquired
        as a
        result of any Award granted hereunder shall be endorsed with all legends,
        if
        any, required by applicable federal and state securities or other laws or
        the
        Administering Body to be placed on the certificate. The determination of
        which
        legends, if any, shall be placed upon such certificates shall be made by
        the
        Administering Body in its sole discretion and such decision shall be final
        and
        binding. 

       

      5.13 EFFECT
        OF
        TERMINATION OF EMPLOYMENT ON AWARDS -EMPLOYEES ONLY. 

       

      (a) TERMINATION
        FOR JUST CAUSE. Subject to Section 5.13(c), and except as otherwise provided
        in
        a written agreement (including, without limitation, any Award Agreement)
        between
        the Company and/or an Affiliated Entity and the Recipient, which may be entered
        into at any time before or after termination of employment of the Recipient,
        in
        the event of a Just Cause Dismissal of an Employee Recipient from employment
        with the Company or any Affiliated Entity, all of the Recipient’s unvested
        Awards shall be terminated and become void, and all of the Recipient’s
        unexercised Awards (whether or not vested) shall be forfeited, expire and
        become
        void, as of the date of such Just Cause Dismissal. 

      


      (b) TERMINATION
        OTHER THAN FOR JUST CAUSE DISMISSAL. Subject to Section 5.13(c), and except
        as
        otherwise provided in a written agreement (including, without limitation,
        any
        Award Agreement) between the Company and/or an Affiliated Entity and the
        Recipient, which may be entered into at any time before or after termination
        of
        employment, in the event of an Employee Recipient’s termination of employment
        with the Company or any Affiliated Entity for: 

      


      (i) any
        reason other than for Just Cause Dismissal, death, Permanent Disability or
        Retirement, the Recipient’s unvested and/or unexercised Awards, whether or not
        vested, shall expire and become void as of the earlier of (A) the date such
        Awards would have expired in accordance with their terms had the Recipient
        remained employed and (B) three (3) months after the date of such termination;
        or 

       

      (ii) death,
        Permanent Disability or Retirement, the Recipient’s unvested and/or unexercised,
        whether or not vested, Awards shall expire and become void as of the earlier
        of
        (A) the date such Awards would have expired in accordance with their terms
        had
        the Recipient remained employed and (B) one (1) year after the date of such
        termination; provided, however, that the one-year period provided in (B)
        shall
        be three (3) months for Incentive Stock Options following termination of
        employment for Retirement. 

       

      (c)
ALTERATION
        OF VESTING
        AND
        EXERCISE
        PERIODS.
        Notwithstanding
        anything to the contrary in Section 5.13(a) or Section 5.13(b),
        the

    

    

       

      
        
           

        

        
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      Administering
        Body may in its discretion designate shorter or longer periods to claim or
        otherwise exercise Awards following a Recipient’s termination of employment with
        the Company or any Affiliated Entity; provided, however, that any shorter
        periods determined by the Administering Body shall be effective only if provided
        for in the Award Agreement that evidences the Recipient’s Award or if such
        shorter period is agreed to in writing between the Recipient and the Company.
        Notwithstanding anything to the contrary herein, Awards shall be claimed,
        paid
        or exercisable by a Recipient following such Recipient’s termination of
        employment with the Company or any Affiliated Entity only to the extent that
        installments thereof had become exercisable or vested (i.e., in the case
        of any
        Restricted Stock Awards, to the extent restrictions described in Article
        7
        applicable to such Awards have lapsed) on or prior to the date of such
        termination; and provided further that the Administering Body may, in its
        discretion, elect to accelerate the vesting or exercisability of, or lapse
        of
        restrictions applicable to, all or any portion of any Awards that had not
        become
        vested or exercisable on or prior to the date of such termination, in the
        event
        of a termination of employment due to the Recipient’s death or Permanent
        Disability, or, except with respect to any Award intended to qualify as
        Performance-Based Compensation, in the event of Retirement or otherwise.
        Furthermore, at any time prior to a Recipient’s termination of employment with
        the Company or any Affiliated Entity, the Administering Body may, in its
        discretion, accelerate the vesting or exercisability, or waive or, subject
        to
        the other provisions of this Plan, amend any and all of the goals, restrictions
        or conditions imposed under any Award; provided, however, no such acceleration,
        waiver or amendment shall cause any Award otherwise intended to qualify as
        Performance-Based Compensation to fail to so qualify. 

       

      5.14 EFFECT
        OF
        TERMINATION OF ENGAGEMENT ON AWARDS - NON-EMPLOYEES ONLY. 

       

      (a) TERMINATION
        OF ENGAGEMENT. Subject to Section 5.14(b), and except as otherwise provided
        in a
        written agreement between the Company and/or an Affiliated Entity and the
        Recipient, which may be entered into at any time before or after termination
        of
        engagement of the Recipient, in the event of the termination of any non-Employee
        Recipient’s engagement with the Company or any Affiliated Entity (including any
        such Recipient who is a Director, but not also an Employee, or a Consultant),
        all of the Recipient’s unvested Awards shall be terminated and become void, and
        all of the Recipient’s unexercised Awards (whether or not vested) shall be
        forfeited, expire and become void as of the earlier of (i) the date such
        Awards
        would expire in accordance with their terms had the Recipient remained engaged
        by the Company or such Affiliated Entity and (ii)(A) three (3) months after
        such
        termination as a result of death or Permanent Disability and (B) thirty (30)
        days after such termination for any other reason. 

       

      (b) ALTERNATION
        OF VESTING AND EXERCISE PERIODS. Notwithstanding anything to the contrary
        in
        Section 5.14(a), the Administering Body may, in its discretion, designate
        shorter or longer periods to claim or otherwise exercise Awards following
        a
        non-Employee Recipient’s termination of engagement with the Company or any
        Affiliated Entity; provided, however, that any shorter periods determined
        by the
        Administering Body shall be effective only if provided for in the

      


      
        
           

        

        
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      Award
        Agreement that evidences the Recipient’s Award or if such shorter period is
        agreed to in writing by the Recipient. Notwithstanding anything to the contrary
        herein, Awards shall be claimed, paid or exercisable by a Recipient following
        such Recipient’s termination of engagement with the Company or any Affiliated
        Entity only to the extent that the installments thereof had become exercisable
        or vested (i.e., in the case of any Restricted Stock Awards, to the extent
        restrictions described in Article 7 applicable to such Awards have lapsed)
        on or
        prior to the date of such termination; and provided further that the
        Administering Body may, in its discretion, elect to accelerate the vesting
        or
        exercisability of, or lapse of restrictions applicable to, all or any portion
        of
        any Awards that had not become vested or exercisable on or prior to the date
        of
        such termination. Furthermore, at any time prior to a Recipient’s termination of
        engagement with the Company or any Affiliated Entity, the Administering Body
        may, in its discretion, accelerate the vesting or exercisability, or waive
        or,
        subject to the other provisions of this Plan, amend any and all of the goals,
        restrictions or conditions imposed under any Award. 

      


      5.15 TRANSFER;
        LEAVE OF ABSENCE. For purposes of this Plan, the transfer by a Recipient
        to the
        employment or engagement of (i) the Company from an Affiliated Entity, (ii)
        from
        the Company to an Affiliated Entity or (iii) from one Affiliated Entity to
        another Affiliated Entity (including, with respect to Consultants, the
        assignment between the Company and an Affiliated Entity or between two
        Affiliated Entities, as applicable, of an agreement pursuant to which such
        services are rendered) or, with respect solely to Employees, an approved
        leave
        of absence for military service, sickness, or for any other purpose approved
        by
        the Company, shall not be deemed a termination of employment or engagement
        of
        such Recipient, as the case may be; provided, however, that a change in status
        of a Recipient from an Employee to a Consultant, or to a Director who is
        not an
        Employee, shall be considered a termination of such Recipient’s employment with
        the Company or an Affiliated Entity for purposes of this Plan and such
        Recipient’s Awards, except to the extent that the Administering Body determines,
        in its discretion, otherwise with respect to any Award that is not an Incentive
        Stock Option. In no event, however, shall an Award be exercisable after the
        date
        such Award would expire in accordance with its terms had the Recipient remained
        continuously employed or engaged in the service of the Company or an Affiliated
        Entity. Whether a Recipient’s employment or service with the Company or any
        Affiliated Entity has terminated, and, if so, whether such termination
        constituted Just Cause Dismissal, shall be determined by the Administering
        Body,
        in its good faith discretion, in accordance with this Plan, and any such
        determination shall be final, binding and conclusive upon all persons.


      

        5.16 LIMITS
          ON
          AWARDS TO CERTAIN ELIGIBLE PERSONS»

         

        (a) LIMITATIONS
          APPLICABLE TO IRC SECTION 162(M) RECIPIENTS. Notwithstanding any other
          provision
          of this Plan, in order for the compensation attributable to Awards hereunder
          to
          qualify as Performance-Based Compensation, no one Eligible Person shall
          be
          granted any one or more Awards with respect to more than Five Hundred Thousand
          (500,000) shares of Common Stock in any one calendar year. The limitation
          set
          forth in this Section 5.16(a) shall be subject to adjustment as provided
          in
          Section 3.4 and under Article 12, but only to the extent such adjustment
          would
          not affect the status of compensation attributable to Awards hereunder
          as
          Performance-Based Compensation. To the extent required by Section 162(m)
          of the
          IRC, shares of Common Stock subject to Awards which are canceled shall
          continue
          to be counted against such limitation and if, after the grant of an Award,
          the
          price of shares subject to such Award is reduced and the transaction is
          treated
          as a cancellation of the Award and a grant of a new Award, both the Award
          deemed
          to be canceled and the Award deemed to be granted shall be counted against
          such
          limitation.

         

        
          
             

          

          
            15

            
              

            

          

          
             

          

        

      

      


      as
        Performance-Based Compensation. To the extent required by Section 162(m)
        of the
        IRC, shares of Common Stock subject to Awards which are canceled shall continue
        to be counted against such limitation and if, after the grant of an Award,
        the
        price of shares subject to such Award is reduced and the transaction is treated
        as a cancellation of the Award and a grant of a new Award, both the Award
        deemed
        to be canceled and the Award deemed to be granted shall be counted against
        such
        limitation. 

       

      (b) LIMITATIONS
        APPLICABLE TO SECTION 16 PERSONS. Notwithstanding any other provision of
        this
        Plan, this Plan, and any Award granted or awarded to any individual who is
        then
        subject to Section 16 of the Exchange Act, shall be subject to any additional
        limitations set forth in any applicable exemptive rule under Section 16 of
        the
        Exchange Act (including Rule 16b-3) that are requirements for the application
        of
        such exemptive rule. To the extent permitted by applicable law, this Plan
        and
        Awards granted or awarded hereunder shall be deemed amended to the extent
        necessary to conform to such applicable exemptive rule. 

       

      5.17 PERFORMANCE-BASED
        COMPENSATION. If the amount of compensation an Eligible Person may receive
        under
        any Award is not based solely on an increase in the value of Common Stock
        after
        the date of grant, the Administering Body, in order to qualify such Awards
        as
        Performance-Based Compensation, may condition the payment, granting, vesting
        or
        exercisability or purchase price of such Awards on the attainment of one
        or more
        pre-established, objective performance goals that are determined over a
        measurement period or periods established by the Administering Body and relate
        to one or more Performance Criteria. The Administering Body shall establish
        and
        administer any such performance goals. Payment of compensation in respect
        of any
        such Award shall not be made unless and until the Administering Body certifies
        in writing that the applicable performance goals and any other material terms
        of
        such Award were in fact satisfied, except as otherwise provided by the
        Administering Body in accordance with this Plan and the applicable Award
        Agreement in the event of termination of a Recipient’s employment or service
        with the Company or an Affiliated Entity due to death or Disability or in
        the
        event of a Change in Control. 

      


      ARTICLE
        6. 

      STOCK
        OPTIONS

       

      6.1 NATURE
        OF
        STOCK OPTIONS. Subject to the limitations provided otherwise herein, Stock
        Options may be Incentive Stock Options or Non-qualified Stock Options. Each
        Award Agreement relating to a Stock Option shall state whether such Option
        will
        be treated as an Incentive Stock Option or a Non-qualified Stock Option.
        

      


      6.2 OPTION
        EXERCISE PRICE. The exercise price for each Stock Option shall be determined
        by
        the Administering Body as of the date such Stock Option is granted and stated
        in
        the Award Agreement. The exercise price shall be no less than the Fair Market
        Value of the Common Stock subject to the Option on the date such Option is
        granted; provided, however, that the Administering Body may, in its discretion,
        with the consent of the Recipient in the case of an Incentive Stock Option,
        amend the terms of any Stock Option not intended to qualify as Performance-Based
        Compensation to provide that the exercise price of the shares
        remaining

      


      
        
           

        

        
          16

          
            

          

        

        
           

        

      

       

      subject
        to the Stock Option shall be reestablished at a price not less than 100%
        of the
        Fair Market Value of the Common Stock on the effective date of the amendment.
        

       

      6.3 OPTION
        PERIOD AND VESTING. Stock Options granted hereunder shall vest and may be
        exercised as determined by the Administering Body and stated in the Award
        Agreement, except that exercise of such Stock Options after termination of
        the
        Recipient’s employment or engagement shall be subject to Section 5.13 or 5.14,
        as the case may be. Each Stock Option granted hereunder and all rights or
        obligations thereunder shall expire on such date as shall be determined by
        the
        Administering Body, but not later than ten (10) years after the date the
        Stock
        Option is granted and shall be subject to earlier termination as provided
        herein
        or in the Award Agreement. The Administering Body may, in its discretion
        at any
        time and from time to time after the grant of a Stock Option, accelerate
        vesting
        of such Option as a whole or in part by increasing the number of shares then
        purchasable, provided that the total number of shares subject to such Stock
        Option may not be increased. Except as otherwise provided herein, a Stock
        Option
        shall become exercisable, as a whole or in part, on the date or dates, or
        upon
        satisfaction of such conditions, specified by the Administering Body and
        thereafter shall remain exercisable until the expiration or earlier termination
        of the Stock Option. 

      


      6.4  SPECIAL
        PROVISIONS REGARDING INCENTIVE STOCK OPTIONS. (a) Notwithstanding anything
        in
        this Article 6 to the contrary, the exercise price
        and
        vesting period of any Stock Option intended to qualify as an Incentive Stock
        Option shall comply with the provisions of Section 422 of the IRC and the
        regulations thereunder. As of the Effective Date, such provisions require,
        among
        other matters, that (i) the exercise price must not be less than the Fair
        Market
        Value of the underlying stock as of the date the Incentive Stock Option is
        granted, and not less than 110% of the Fair Market Value as of such date
        in the
        case of a grant to a Significant Stockholder; and (ii) that the Incentive
        Stock
        Option not be exercisable after the expiration of five (5) years from the
        date
        of grant in the case of an Incentive Stock Option granted to a Significant
        Stockholder. 

       

      (b) The
        aggregate Fair Market Value (determined as of the respective date or dates
        of
        grant) of the Common Stock for which one or more Incentive Stock Options
        granted
        to any Recipient under this Plan (or any other option plan of the Company
        or an
        Affiliated Entity) may for the first time become exercisable as “incentive stock
        options” under the IRC during any one calendar year shall not exceed $100,000.


       

      (c) Any
        Options granted as Incentive Stock Options pursuant to this Plan that for
        any
        reason fail or cease to qualify as such shall be treated as Non-qualified
        Stock
        Options. 

       

      6.5 RELOAD
        OPTIONS. At the discretion of the Administering Body, Stock Options granted
        pursuant to this Plan may include a “reload” feature pursuant to which a
        Recipient exercising an Option by the delivery of a number of shares of matured
        capital stock in accordance with Section 5.4(c) hereof and the Award Agreement
        would automatically be granted an additional Option (with an exercise price
        equal to the Fair Market Value of the Common Stock on the date the additional
        Option is granted and with the same expiration date as the

      


      
        
           

        

        
          17

          
            

          

        

        
           

        

      

       

      original
        Option being exercised, and with such other terms as the Administering Body
        may
        provide) to purchase that number of shares of Common Stock equal to the number
        delivered to exercise the original Option. 

       

      6.6 RESTRICTIONS.
        The Administering Body, in its sole and absolute discretion, may impose such
        restrictions on the ownership and transferability of the shares purchasable
        upon
        the exercise of an Option as it deems appropriate. Any such restriction shall
        be
        set forth in the respective Award Agreement and may be referred to on the
        certificates evidencing such shares. The Recipient shall give the Company
        prompt
        notice of any disposition of shares of Common Stock acquired by exercise
        of an
        Incentive Stock Option within (i) two years from the date of granting (including
        the date the Option is modified, extended or renewed for purposes of Section
        424(h) of the IRC) such Option to such Recipient or (ii) one year after the
        transfer of such shares to such Recipient. 

      


      ARTICLE
        7. 

      RESTRICTED
        STOCK AWARDS

       

      7.1 NATURE
        OF
        RESTRICTED STOCK AWARDS. The Administering Body may grant Restricted Stock
        Awards to any Eligible Person. A Restricted Stock Award is an Award entitling
        the recipient to acquire, at par value or such other purchase price, if any,
        determined by the Administering Body (but not less than the par value thereof
        unless permitted by applicable state law), shares of Common Stock subject
        to
        such restrictions and conditions as the Administering Body may determine
        at the
        time of grant (“RESTRICTED STOCK”). Conditions may be based on continuing
        employment (or other business relationships) with the Company or an Affiliated
        Entity and/or, in the case of Restricted Stock Awards intended to be
        Performance-Based Compensation, the achievement of pre-established, objective
        performance goals that are determined over a measurement period or periods
        established by the Administering Body and relate to one or more Performance
        Criteria. Any Restricted Stock Award must be accepted by the applicable
        Recipient within a period of sixty (60) days (or a shorter period as determined
        by the Administering Body at the time of award) after the award date, by
        executing the applicable Award Agreement and providing to the Administering
        Body
        or its designee a copy of such executed Award Agreement and payment of the
        applicable purchase price, if any, of such shares of Restricted Stock.


       

      7.2 RIGHTS
        AS
        STOCKHOLDERS. Subject to Section 7.3, upon delivery of the shares of the
        Restricted Stock to a Recipient, or creation of a book entry evidencing a
        Recipient’s ownership of shares of Restricted Stock, pursuant to Section 7.5,
        the Recipient shall have, unless otherwise provided by the Administering
        Body,
        all the rights of a stockholder with respect to said shares, subject to the
        restrictions in his or her Award Agreement, including the right to receive
        all
        dividends and other distributions paid or made with respect to the shares;
        provided, however, that, in the discretion of the Administering Body, any
        extraordinary distributions with respect to the Common Stock shall be subject
        to
        the restrictions set forth in Section 7.3. 

       

      7.3 RESTRICTION.
        All shares of Restricted Stock issued under this Plan (including any shares
        received by holders thereof with respect to shares of Restricted Stock as
        a
        result of stock dividends, stock splits or any other form of recapitalization)
        shall, in the terms of each individual Award Agreement, be subject to such
        restrictions as the Administering Body shall

      


      
        
           

        

        
          18

          
            

          

        

        
           

        

      

       

      provide,
        which restrictions may include, without limitation, restrictions concerning
        voting rights and transferability and restrictions based on duration of
        employment or engagement with the Company or its Affiliated Entities, Company
        performance and individual performance; provided, however, that, except with
        respect to shares of Restricted Stock intended to qualify as Performance-Based
        Compensation, by action taken after the Restricted Stock is issued, the
        Administering Body may, on such terms and conditions as it may determine
        to be
        appropriate, remove any or all of the restrictions imposed by the terms of
        the
        Award Agreement. Restricted Stock may not be sold, transferred, assigned
        or
        encumbered until all restrictions are terminated or expire. 

       

      7.4 FORFEITURE
        OR REPURCHASE OF RESTRICTED STOCK. The Administering Body shall provide in
        the
        terms of each individual Award Agreement for forfeiture and reversion to
        the
        Company of a Recipient’s shares of Restricted Stock, or that the Company shall
        have a right to repurchase such shares of Restricted Stock, at a cash price
        per
        share equal to the price, if any, paid by the Recipient for such shares of
        Restricted Stock, to the extent such shares are then subject to restrictions
        under the Award Agreement, immediately upon any failure to satisfy applicable
        conditions set forth in the Award Agreement or upon a termination of employment
        (with or without cause and for any reason whatsoever) or, if applicable,
        upon a
        termination of engagement (with or without cause and for any reason whatsoever)
        between the Recipient and the Company or any Affiliated Entity, subject,
        in any
        case, to Sections 5.13 and 5.14, as applicable. 

       

      7.5 CERTIFICATES,
        ESCROWS. Each Recipient receiving a Restricted Stock Award shall be issued
        a
        stock certificate or certificates evidencing the shares of Common Stock covered
        by such Award registered in the name of such Recipient. The Administering
        Body
        may require a Recipient who receives a certificate or certificates evidencing
        a
        Restricted Stock Award to immediately deposit such certificate or certificates,
        together with a stock power or other appropriate instrument of transfer,
        endorsed in blank by the Recipient, with signatures guaranteed in accordance
        with the Exchange Act if required by the Administering Body, with the Secretary
        of the Company or an escrow holder as provided in the immediately following
        sentence. The Secretary of the Company or such other escrow holder as the
        Administering Body may appoint shall retain physical custody of each certificate
        representing Restricted Stock until all of the restrictions imposed under
        the
        Award Agreement with respect to the shares evidenced by such certificate
        expire
        or shall have been removed. The foregoing to the contrary notwithstanding,
        the
        Administering Body may, in its discretion, provide that a Recipient’s ownership
        of Restricted Stock prior to lapse of the restrictions set forth in the Award
        Agreement shall, in lieu of certificates, be evidenced by a “book entry” (i.e.,
        a computerized or manual entry) in the records of the Company or its designated
        agent in the name of such Recipient. Such records of the Company or such
        agent
        shall, absent manifest error, be binding on all Recipients who receive
        Restricted Stock Awards. The holding of shares of Restricted Stock by the
        Company or an escrow holder, in accordance with this Section 7.5, or the
        use of
        book entries to evidence the ownership of shares of Restricted Stock, in
        accordance with this Section 7.5, shall not affect the rights of Recipients
        as
        owners of their shares of Restricted Stock, nor affect the restrictions
        applicable to such shares under the Award Agreement or this Plan. 

      


      7.6 VESTING
        OF RESTRICTED STOCK. The Administering Body at the time of grant shall specify
        and state in the Award Agreement the date or dates and/or, in the case
        of

       

      
        
           

        

        
          19

          
            

          

        

        
           

        

      

      


      Restricted
        Stock Awards intended to qualify as Performance-Based Compensation, attainment
        of performance goals and other conditions, on which Restricted Stock shall
        become vested and free of restrictions applicable thereto, subject to Section
        7.4 and to such further rights of the Company or its assigns as may be specified
        in the Award Agreement or other instrument evidencing the Restricted Stock
        Award. Upon expiration or termination of the restrictions applicable to a
        Recipient’s shares of Restricted Stock, pursuant to the applicable Award
        Agreement and this Plan, the Company shall, subject to Sections 5.6, 5.11
        and
        5.12, then deliver to such Recipient a certificate or certificates evidencing
        such shares registered in the name of such Recipient. 

       

      7.7 WAIVER,
        DEFERRAL AND REINVESTMENT OF DIVIDENDS. The Award Agreement or other written
        instrument evidencing a Restricted Stock Award may require or permit the
        immediate payment, waiver, deferral or investment of dividends paid on the
        Restricted Stock. 

       

      7.8 SECTION
        83(b) ELECTION. If a Recipient of a Restricted Stock Award makes an election
        under Section 83(b) of the IRC, or any successor section thereto, to be taxed
        with respect to the Restricted Stock as of the date of transfer of the
        Restricted Stock rather than as of the date or dates upon which such Recipient
        would otherwise be taxable under Section 83(a) of the IRC, such Recipient
        shall
        deliver a copy of such election to the Company immediately after filing such
        election with the Internal Revenue Service. Such election shall be in the
        sole
        discretion of any such Recipient. None of the Company or any Affiliated Entity
        shall have any liability or responsibility relating to or arising out of
        the
        filing or not filing of any such election or any defects in its construction.
        

      


      ARTICLE
        8. 

      UNRESTRICTED
        STOCK AWARDS

       

      8.1  GRANT
        OR
        SALE OF UNRESTRICTED STOCK.

       

      
        (a)
          GRANT
          OR SALE OF UNRESTRICTED STOCK. The Administering Body
          may,
          in its sole discretion, grant (or sell at a purchase price determined by
          the
          Administering Body) an Unrestricted Stock Award to any Eligible Person,
          pursuant
          to which such individual may receive shares of Common Stock free of any
          vesting
          restrictions (“UNRESTRICTED STOCK”) under this Plan. Unrestricted Stock Awards
          may be granted or sold as described in the preceding sentence as a bonus
          in
          respect of past services or other valid consideration, or in lieu of any
          cash
          compensation due to such individual. 

      

       

      (b) DEFERRAL
        OF AWARDS. The Administering Body may, in its discretion, permit any Recipient
        who has received shares of Unrestricted Stock under this Article 8 to elect
        to
        defer receipt of up to 100% of such shares of Unrestricted Stock in accordance
        with such rules and procedures as may from time to time be established by
        the
        Administering Body for that purpose, and such election shall be effective
        on the
        later of the date one (1) year from the date of such election or the beginning
        of the next calendar year, or such later date as the Administering Body may
        specify in the Award

      


      
        
           

        

        
          20

          
            

          

        

        
           

        

      

      


      Agreement.
        Any such deferred Unrestricted Stock shall be entitled to receive Dividend
        Equivalent Rights settled in shares of Common Stock. 

      


      ARTICLE
        9. 

      PERFORMANCE
        STOCK AWARDS

       

      9.1 NATURE
        OF
        PERFORMANCE STOCK AWARDS. A Performance Stock Award is an Award entitling
        the
        Recipient to acquire shares of Common Stock upon the attainment of
        pre-established, objective performance goals based on Performance Criteria.
        The
        Administering Body may make Performance Stock Awards independent of or in
        connection with the granting of any other Award under this Plan. Performance
        Stock Awards may be granted under this Plan to any Eligible Person. The
        Administering Body, in its sole discretion, shall determine whether and to
        whom
        Performance Stock Awards shall be made, the performance goals applicable
        under
        each such Award, the periods during which performance is to be measured,
        and all
        other limitations and conditions applicable to the awarded shares, which,
        in any
        case, shall be stated in the Award Agreement; provided, however, that the
        Administering Body may rely on the performance goals, based on Performance
        Criteria, and other standards applicable to other performance unit plans
        of the
        Company in setting the standards for Performance Stock Awards under this
        Plan.


       

      


      9.2 RIGHTS
        AS
        A STOCKHOLDER. A Recipient receiving a Performance Stock Award shall have
        the
        rights of a stockholder only as to shares of Common Stock actually received
        by
        the Recipient upon satisfaction or achievement of the terms and conditions
        of
        such Award and not with respect to shares subject to the Award but not actually
        issued to such Recipient. Accordingly, a Recipient shall be entitled to receive
        a stock certificate evidencing the acquisition of shares of Common Stock
        under a
        Performance Stock Award only upon satisfaction of all conditions specified
        in
        the Award Agreement evidencing the Performance Stock Award (or in a performance
        plan adopted by the Administering Body). 

       

      ARTICLE
        10. 

      DIVIDEND
        EQUIVALENT RIGHTS; INTEREST EQUIVALENTS 

       

      10.1 DIVIDEND
        EQUIVALENT RIGHTS. A Dividend Equivalent Right is an Award entitling the
        Recipient to receive credits based on cash dividends that would be paid on
        the
        shares of Common Stock specified in the Dividend Equivalent Right (or other
        Award to which it relates) if such shares were held by the Recipient. A Dividend
        Equivalent Right may be granted hereunder to any Eligible Person, as a component
        of another Award or as a freestanding Award. The terms and conditions of
        Dividend Equivalent Rights shall be specified by the Administering Body and
        stated in the Award Agreement. Dividend equivalents credited to the holder
        of a
        Dividend Equivalent Right may be paid currently or may be deemed to be
        reinvested in additional shares of Common Stock, which may thereafter accrue
        additional equivalents. Any such reinvestment shall be at Fair Market Value
        on
        the date of reinvestment or such other price as may then apply under a dividend
        reinvestment plan sponsored by the Company, if any. Dividend Equivalent Rights
        may be settled in cash or shares of Common Stock or a combination thereof,
        in a
        single installment or installments. A Dividend Equivalent Right granted as
        a
        component of another Award may provide that such Dividend Equivalent Right
        shall
        be settled upon exercise, settlement, or payment of, or lapse of restrictions
        on, such other Award and that

      


      
        
           

        

        
          21

          
            

          

        

        
           

        

      

       

      such
        Dividend Equivalent Right shall expire or be forfeited or annulled under
        the
        same conditions as such other Award. A Dividend Equivalent Right granted
        as a
        component of another Award may also contain terms and conditions different
        from
        such other Award. 

       

      10.2 INTEREST
        EQUIVALENTS. Any Award under this Plan that is settled in whole or in part
        in
        cash on a deferred basis may provide in the Award Agreement for interest
        equivalents to be credited with respect to such cash payment. Interest
        equivalents may be compounded and shall be paid upon such terms and conditions
        as may be specified at the time of grant in the Award Agreement. 

      


      ARTICLE
        11. 

      STOCK
        APPRECIATION RIGHTS

       

      11.1 GRANT
        OF
        STOCK APPRECIATION RIGHTS. A Stock Appreciation Right may be granted to any
        Eligible Person selected by the Administering Body. A Stock Appreciation
        Right
        may be granted (a) in connection and simultaneously with the grant of a Stock
        Option, (b) with respect to previously granted Non-qualified Stock Options,
        or
        (c) independent of a Stock Option. A Stock Appreciation Right shall be subject
        to such terms and conditions not inconsistent with this Plan as the
        Administering Body shall impose and shall be evidenced by an Award Agreement.
        

      


      11.2  COUPLED
        STOCK APPRECIATION RIGHTS.

       

      (a)
        A
        Coupled Stock Appreciation Right (“CSAR”) shall be related to a particular
        Stock Option and shall be exercisable only when and to the extent the related
        Stock Option is exercisable. 

       

      (b) A
        CSAR
        may be granted to the Recipient for no more than the number of shares subject
        to
        the simultaneously or previously granted and unexercised Stock Option to
        which
        it is coupled. 

       

      (c) A
        CSAR
        shall entitle the Recipient to surrender to the Company unexercised a portion
        of
        the Stock Option to which the CSAR relates (to the extent then exercisable
        pursuant to its terms) and to receive from the Company in exchange therefor
        an
        amount determined by multiplying the difference obtained by subtracting the
        Stock Option exercise price from the Fair Market Value of a share of Common
        Stock on the date of exercise of the CSAR by the number of shares of Common
        Stock with respect to which the CSAR shall have been exercised, subject to
        any
        limitations the Administering Body may impose. An Option with respect to
        which a
        Recipient has elected to exercise a CSAR shall, to the extent of the shares
        covered by such exercise, be canceled automatically and surrendered to the
        Company. Such Option shall thereafter remain exercisable according to its
        terms
        only with respect to the number of shares of Common Stock as to which it
        would
        otherwise be exercisable, less the number of such shares with respect to
        which
        such CSAR has been so exercised. 

      


      
        
           

        

        
          22

          
            

          

        

        
           

        

      

      


      11.3  INDEPENDENT
        STOCK APPRECIATION RIGHTS.

       

      (a)
        An
        Independent Stock Appreciation Right (“ISAR”) shall be unrelated to any
        Stock
        Option and shall have the terms set by the Administering Body. An ISAR shall
        be
        exercisable in such installments and subject to such conditions as the
        Administering Body may determine. An ISAR shall cover such number of shares
        of
        Common Stock as the Administering Body may determine. The exercise price
        per
        share of the Common Stock subject to each ISAR shall be set by the Administering
        Body and, together with the other terms and conditions of the ISAR, shall
        be set
        forth in the Award Agreement. 

       

      (b) An
        ISAR
        shall entitle the Recipient to exercise all or a specified portion of the
        ISAR
        (to the extent then exercisable pursuant to its terms) and to receive from
        the
        Company an amount determined by multiplying the difference obtained by
        subtracting the exercise price per share of the ISAR from the Fair Market
        Value
        of a share of Common Stock on the date of exercise of the ISAR by the number
        of
        shares of Common Stock with respect to which the ISAR shall have been exercised,
        subject to any limitations the Administering Body may impose. 

      


      11.4  PAYMENT
        AND LIMITATIONS ON EXERCISE.

       

      (a)
        Payment of the amounts determined under Section 11.2(c) and 11.3(b) above
        shall be in cash, in Common Stock (based on its Fair Market Value as of the
        date
        the Stock Appreciation Right is exercised) or a combination of both, as
        determined by the Administering Body. To the extent such payment is effected
        in
        Common Stock it shall be made subject to satisfaction of all provisions of
        this
        Plan pertaining to Stock Options. 

       

      (b) Holders
        of Stock Appreciation Rights may be required to comply with any timing or
        other
        restrictions with respect to the settlement or exercise of a Stock Appreciation
        Right, including a window-period limitation, as may be imposed in the discretion
        of the Administering Body. 

      


      ARTICLE
        12.

      REORGANIZATIONS

       

      12.1 CORPORATE
        TRANSACTIONS NOT INVOLVING A CHANGE IN CONTROL. If the Company shall consummate
        any Reorganization not involving a Change in Control in which holders of
        shares
        of Common Stock are entitled to receive in respect of such shares any
        securities, cash or other consideration (including without limitation a
        different number of shares of Common Stock), each Award outstanding under
        this
        Plan shall thereafter be claimed or exercisable, in accordance with this
        Plan,
        only for the kind and amount of securities, cash and/or other consideration
        receivable upon such Reorganization by a holder of the same number of shares
        of
        Common Stock as are subject to that Award immediately prior to such
        Reorganization, and any adjustments will be made to the terms of the Award,
        and
        the underlying Award Agreement, in the sole discretion of the Administering
        Body
        as it may deem appropriate to give effect to the Reorganization. 

       

      12.2 CORPORATE
        TRANSACTIONS INVOLVING A CHANGE IN CONTROL. As of the effective time and
        date of
        any Change in Control, this Plan and any then outstanding

       

      
        
           

        

        
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      Awards
        (whether or not vested) shall automatically terminate unless (a) provision
        is
        made in writing in connection with such transaction for the continuance of
        this
        Plan and for the assumption of such Awards, or for the substitution for such
        Awards of new grants covering the securities of a successor entity or other
        party to the transaction resulting in such Change in Control, or an affiliate
        thereof, with appropriate adjustments as to the number and kind of securities
        and exercise prices, in which event this Plan and such outstanding Awards
        shall
        continue or be replaced, as the case may be, in the manner and under the
        terms
        provided by the Administering Body and/or in any written agreement relating
        to
        such Change in Control transaction; or (b) the Board otherwise has provided
        or
        shall provide in writing for such adjustments as it deems appropriate in
        the
        terms and conditions of the then-outstanding Awards (whether or not vested),
        including without limitation (i) accelerating the vesting or exercisability
        of
        outstanding Awards and/or (ii) providing for the cancellation of Awards and
        their automatic conversion into the right to receive the securities, cash
        and/or
        other consideration that a holder of the shares underlying such Awards would
        have been entitled to receive upon consummation of such Change in Control
        had
        such shares been issued and outstanding immediately prior to the effective
        date
        and time of the Change in Control (net of the appropriate option exercise
        prices). If, pursuant to the foregoing provisions of this Section 12.2, this
        Plan and any outstanding Awards granted hereunder shall terminate by reason
        of
        the occurrence of a Change in Control without provision for any of the actions
        described in clause (a) or (b) hereof, then any Recipient holding outstanding
        Awards shall have the right, at such time immediately prior to the consummation
        of the Change in Control as the Administering Body shall designate, to convert,
        claim or exercise, as applicable, the Recipient’s Awards to the full extent not
        theretofore converted, claimed or exercised, including any installments which
        have not yet become vested or exercisable. 

      


      ARTICLE
        13.

      DEFINITIONS

       

      Capitalized
        terms used in this Plan and not otherwise defined shall have the meanings
        set
        forth below: 

       

      “ADMINISTERING
        BODY” shall mean the Board as long as no Stock Plan Committee has been appointed
        and is in effect and shall mean the Stock Plan Committee as long as the Stock
        Plan Committee is appointed and in effect. 

       

      “AFFILIATED
        ENTITY” shall mean (i) any corporation or limited liability company, other than
        the Company, in an unbroken chain of corporations or limited liability companies
        ending with the Company if each corporation or limited liability company
        owns
        stock or membership interests (as applicable) possessing more than fifty
        percent
        (50%) of the total combined voting power of all classes of stock in one of
        the
        other corporations or limited liability companies in such chain; (ii) any
        corporation, trade or business (including, without limitation, a partnership
        or
        limited liability company) which is more than fifty percent (50%) controlled
        (whether by ownership of stock, assets or an equivalent ownership interest
        or
        voting interest) by the Company or another Affiliated Entity; or (iii) any
        other
        entity, approved by the Administering Body as an Affiliated Entity under
        the
        Plan, in which the Company or any other Affiliated Entity has a material
        equity
        interest. 

      


      
        
           

        

        
          24

          
            

          

        

        
           

        

      

       

      “AWARD”
        OR “AWARDS,” except where referring to a particular category or grant under this
        Plan, shall include Incentive Stock Options, Non-qualified Stock Options,
        Restricted Stock Awards, Unrestricted Stock Awards, Performance Stock Awards,
        Dividend Equivalent Rights and Stock Appreciation Rights. 

       

      “AWARD
        AGREEMENT” means the agreement or confirming memorandum setting forth the terms
        and conditions of the Award. 

       

      “BOARD”
        means the Board of Directors of the Company. 

       

      “CHANGE
        IN CONTROL” means the following and shall be deemed to occur if any of the
        events specified in clause (a), (b), (c) or (d) occur: 

       

      (a) Any
        person, within the meaning of Section 13(d) or 14(d) of the Exchange Act
        (other
        than the Company or any corporation or other such person of which a majority
        of
        its voting power or its voting equity securities or equity interests is owned,
        directly or indirectly, by the Company (a “RELATED ENTITY”), or any employee
        benefit plan (or a trust forming a part thereof) maintained by the Company
        or
        any Related Entity), becomes, after the Effective Date, the beneficial owner
        (within the meaning of Rule 13d-3 promulgated under the Exchange Act), directly
        or indirectly, of fifty percent (50%) or more of the combined voting power
        of
        the Company’s then outstanding securities; or 

       

      (b) During
        any period of two (2) consecutive years, individuals, who at the beginning
        of
        such period, constitute the Board and any new Director of the Company (other
        than a Director designated by a person who has entered into an agreement
        with
        the Company to effect a transaction described in clause (a), (c) or (d) of
        this
        definition) whose election by the Board or nomination for election by the
        Company’s stockholders was approved by a vote of at least two-thirds (2/3) of
        the Directors of the Company then still in office who either were Directors
        of
        the Company at the beginning of the two-year period or whose election or
        nomination for election was previously so approved, cease for any reason
        to
        constitute at least a majority of the Board; or 

       

      (c) A
        merger
        or consolidation of the Company with any other corporation, other than a
        merger
        or consolidation which would result in the voting securities of the Company
        outstanding immediately prior thereto continuing to represent (either by
        remaining outstanding or by being converted into voting securities of the
        surviving entity) more than fifty percent (50%) of the combined voting power
        of
        the voting securities of the Company or such surviving entity outstanding
        immediately after such merger or consolidation; provided, however, that a
        merger
        or consolidation effected to implement a recapitalization of the Company
        (or
        similar transaction) in which no person acquires more than fifty percent
        (50%)
        of the combined voting power of the Company’s then outstanding securities shall
        not constitute a Change in Control; and provided further a merger or
        consolidation in which the Company is the surviving entity (other than as
        a
        wholly owned subsidiary of another entity) and in which the Board of Directors
        of the Company or the successor to the Company, after giving effect to the
        merger or consolidation, is comprised of a majority of members who are either
        (x) Directors of the Company immediately preceding the merger or consolidation,
        or (y) appointed to the

      


      
        
           

        

        
          25

          
            

          

        

        
           

        

      

       

      Board
        by
        the Company (or the Board) as an integral part of such merger or consolidation,
        shall not constitute a Change in Control; or 

       

      (d) Approval
        by the stockholders of the Company or any order by a court of competent
        jurisdiction of a plan of liquidation of the Company, or the sale or disposition
        by the Company of all or substantially all of the Company’s assets other than
        (i) the sale or disposition of all or substantially all of the assets of
        the
        Company to a person or persons who beneficially own, directly or indirectly,
        at
        least fifty percent (50%) or more of the combined voting power of the
        outstanding voting securities of the Company at the time of the sale; or
        (ii)
        pursuant to a dividend in kind or spin-off type transaction, directly or
        indirectly, of such assets to the stockholders of the Company. 

       

      (e) Notwithstanding
        the foregoing, a Change in Control of the type described in paragraph (b),
        (c)
        or (d) shall be deemed to be completed on the date it occurs, and a Change
        in
        Control of the type described in paragraph (a) shall be deemed to be completed
        as of the date the entity or group attaining 50% or greater ownership has
        elected its representatives to the Board and/or caused its nominees to become
        officers of the Company with the authority to terminate or alter the terms
        of
        any Employee’s employment. 

       

      “COMMON
        STOCK” means the common stock of the Company, par value $.001 per share, as
        constituted on the Effective Date, and as thereafter adjusted as a result
        of any
        one or more events requiring adjustment of outstanding Awards under Section
        3.4
        above. 

       

      “COMPANY”
        means Berliner Communications, Inc., a Delaware corporation. 

       

      “CONSULTANT”
        means any consultant or advisor if: 


       

      (a) the
        consultant or advisor renders bona fide services to the Company or any
        Affiliated Entity; 

       

      (b) the
        services rendered by the consultant or advisor are not in connection with
        the
        offer or sale of securities in a capital-raising transaction and do not directly
        or indirectly promote or maintain a market for the Company’s securities; and


       

      (c) the
        consultant or advisor is a natural person who has contracted directly with
        the
        Company or an Affiliated Entity to render such services. 

       

      “CSAR”
        means a coupled stock appreciation right as defined in Section 11.2.


      


      “DIRECTOR”
        means any person serving on the Board or the Board of Directors of an Affiliated
        Entity irrespective of whether such person is also an Employee of the Company
        or
        an Affiliated Entity. 

       

      “DIVIDEND
        EQUIVALENT RIGHT” shall mean any Award granted pursuant to Article 10 of this
        Plan. 

      
        
           

        

        
          26

          
            

          

        

        
           

        

      

       

      “DRO”
        shall mean a domestic relations order as defined by the IRC or Title I of
        ERISA
        or the rules thereunder. 

       

      “EFFECTIVE
        DATE” means September 22, 1999, which is the date this Plan was adopted by the
        Board. 

       

      “ELIGIBLE
        PERSON” shall include key Employees, Directors and Consultants of the Company or
        of any Affiliated Entity. 

       

      “EMPLOYEE”
        means any officer or other employee (as defined in accordance with Section
        3401(c) of the IRC) of the Company or any Affiliated Entity. 

      


      “ERISA”
        means the Employee Retirement Income Security Act of 1974, as amended.

       

      “EXCHANGE
        ACT” means the Securities Exchange Act of 1934, as amended. 

       

      “EXPIRATION
        DATE” means the tenth anniversary of the Effective Date. 

      


      “FAIR
        MARKET VALUE” of a share of the Company’s capital stock as of a particular date
        shall be: (a) if the stock is listed on an established stock exchange or
        exchanges (including for this purpose, the NASDAQ National Market), the closing
        sale price of the stock quoted for such date as reported in the transactions
        index of each such exchange, as published in The Wall Street Journal and
        determined by the Administering Body, or, if no sale price was quoted in
        any
        such index for such date, then as of the next preceding date on which such
        a
        sale price was quoted; or (b) if the stock is not then listed on an exchange
        or
        the NASDAQ National Market, the average of the closing bid and asked prices
        per
        share for the stock in the over-the-counter market as quoted on The NASDAQ
        Small
        Cap Market, or, if not so quoted, on the OTC Bulletin Board, on such date;
        or
        (c) if the stock is not then listed on an exchange or quoted in the
        over-the-counter market, an amount determined in good faith by the Administering
        Body; provided, however, that (i) when appropriate, the Administering Body,
        in
        determining Fair Market Value of capital stock of the Company, may take into
        account such other factors as it may deem appropriate under the circumstances
        and (ii) if the stock is traded on The NASDAQ Small Cap Market and both sales
        prices and bid and asked prices are quoted or available, the Administering
        Body
        may elect to determine Fair Market Value under either clause (a) or (b) above.
        Notwithstanding the foregoing, the Fair Market Value of capital stock for
        purposes of grants of Incentive Stock Options shall be determined in compliance
        with applicable provisions of the IRC. 

       

      “INCENTIVE
        STOCK OPTION” means a Stock Option that qualifies as an incentive stock option
        under Section 422 of the IRC, or any successor statute thereto. 

       

      “IRC”
        means the Internal Revenue Code of 1986, as amended. 

       

      “ISAR”
        means an independent stock appreciation right as defined in Section 11.3.
        

       

      “JUST
        CAUSE DISMISSAL” shall mean a termination of a Recipient’s employment for any of
        the following reasons: (a) the Recipient violates any reasonable rule
        or

      


      
        
           

        

        
          27

          
            

          

        

        
           

        

      

      


      regulation
        of the Board, the Company’s Chief Executive Officer or the Recipient’s superiors
        that results in material damage to the Company or an Affiliated Entity or
        which,
        after written notice to do so, the Recipient fails to correct within a
        reasonable time; (b) any willful misconduct or gross negligence by the Recipient
        in the responsibilities assigned to the Recipient; (c) any willful failure
        to
        perform the Recipient’s job as required to meet the Company’s or an Affiliated
        Entity’s objectives; (d) any wrongful conduct of a Recipient which has an
        adverse impact on the Company or an Affiliated Entity or which constitutes
        a
        misappropriation of assets of the Company or an Affiliated Entity; (e) the
        Recipient’s performing services for any other person or entity that competes
        with the Company or an Affiliated Entity while the Recipient is employed
        by the
        Company or an Affiliated Entity, without the prior written approval of the
        Chief
        Executive Officer of the Company or an Affiliated Entity; or (f) any other
        conduct that the Administering Body determines constitutes just cause for
        dismissal; provided, however, that if a Recipient is party to an employment
        agreement with the Company and/or an Affiliated Entity providing for just
        cause
        dismissal (or some comparable notion) of such Recipient from his or her
        employment with the Company or an Affiliated Entity, “Just Cause Dismissal” for
        purposes of this Plan shall have the same meaning as ascribed thereto or
        to such
        comparable notion in such employment agreement. 

       

      “NON-QUALIFIED
        STOCK OPTION” means a Stock Option that is not an Incentive Stock Option.


       

      “PARENT
        CORPORATION” means any parent corporation of the Company as defined in Section
        424(e) of the IRC. 

       

      “PERFORMANCE-BASED
        COMPENSATION” means performance-based compensation as described in Section
        162(m)(4)(C) of the IRC. 

       

      “PERFORMANCE
        CRITERIA” shall mean the following business criteria with respect to the
        Company, any Affiliated Entity or any division or operating unit of any thereof:
        (a) income or net income, (b) pre-tax income, (c) operating income or net
        operating income, (d) cash flow, (e) earnings per share (including earnings
        before interest, taxes and amortization), (f) return on equity, (g) return
        on
        invested capital or assets, (h) cost reductions or savings, (i) funds from
        operations, (j) appreciation in the fair market value of Common Stock, (k)
        earnings before any one or more of the following items: interest, taxes,
        depreciation or amortization, (l) book value of Common Stock, (m) total
        stockholder return, (n) return on capital, (o) return on assets or net assets,
        or (p) operating margin. 

       

      “PERFORMANCE
        STOCK AWARDS” means Awards granted pursuant to

      


      Article
        9.

      “PERMANENT
        DISABILITY” shall mean that the Recipient becomes physically or mentally
        incapacitated or disabled so that the Recipient is unable to perform
        substantially the same services as the Recipient performed prior to incurring
        such incapacity or disability (the Administering Body, at its option and
        the
        Company’s expense, may retain a physician to confirm the existence of such
        incapacity or disability, and the determination of such physician shall be
        binding upon the Company and the Recipient), and such incapacity or disability
        continues for a period of three consecutive months or six months in any 12-month
        period or such other period(s)

      


      
        
           

        

        
          28

          
            

          

        

        
           

        

      

       

      as
        may be
        determined by the Administering Body with respect to any Award, provided
        that
        for purposes of determining the period during which an Incentive Stock Option
        may be exercised pursuant to Section 5.13(b)(ii) hereof, Permanent Disability
        shall mean “permanent and total disability” as defined in Section 22(e) of the
        IRC. 

       

      “PLAN”
        means this Omnibus Securities Plan of the Company. 

       

      “PLAN
        TERM” means the period during which this Plan remains in effect (commencing on
        the Effective Date and ending on the Expiration Date). 

       

      “RECIPIENT”
        means an Eligible Person who has received an Award or Awards under this Plan
        or
        any person who is recognized under this Plan as the successor in interest
        to
        such an Eligible Person with respect to such Eligible Person’s Award.


      


      “REORGANIZATION”
        means any merger, consolidation or other reorganization.

       

      “RESTRICTED
        STOCK” shall have the meaning ascribed thereto in Section 7.1. 

       

      “RESTRICTED
        STOCK AWARDS” means any Award granted pursuant to Article 7 of this Plan.


       

      “RETIREMENT”
        means normal retirement from employment with the Company or an Affiliated
        Entity
        in accordance with the retirement policies of the Company or any such Affiliated
        Entity then in effect, as determined by the Administering Body. 

       

      “RULE
        16B-3” means Rule 16b-3 under the Exchange Act, or any successor or similar rule
        under the Exchange Act, as the same may be amended from time to time.


       

      “SECURITIES
        ACT” means the Securities Act of 1933, as amended. 

       

      “SIGNIFICANT
        STOCKHOLDER” is an individual who, at the time an Award is granted to such
        individual under this Plan, owns more than 10% of the combined voting power
        of
        all classes of stock of the Company or of any Parent Corporation or Subsidiary
        Corporation (after application of the attribution rules set forth in Section
        424(d) of the IRC). 

       

      “STOCK
        APPRECIATION RIGHT” means a stock appreciation right granted under Article 11 of
        this Plan. 

       

      “STOCK
        OPTION” OR “OPTION” means a right to purchase stock of the Company granted under
        Article 6 of this Plan to an Eligible Person. 

       

      “STOCK
        PLAN COMMITTEE” means the committee appointed by the Board to administer this
        Plan pursuant to Section 4.1. 

       

      “SUBSIDIARY
        CORPORATION” means any subsidiary corporation of the Company as defined in
        Section 424(f) of the IRC. 

      


      
        
           

        

        
          29

          
            

          

        

        
           

        

      

      


      “UNRESTRICTED
        STOCK” shall have the meaning ascribed thereto in Section 8.1. 

       

      “UNRESTRICTED
        STOCK AWARD” means any Award granted pursuant to Article 8 of this Plan.


       

      
        
           

        

          30