Unassociated Document


     

    
      EYETEL
        IMAGING, INC. 

       

      2007
        LONG-TERM INCENTIVE PLAN

       

      1.  Background.
        The
        objectives of the Plan are to optimize the profitability and growth of the
        Company through long-term incentives that are consistent with the Company's
        goals and that link the interests of Participants to those of the Company's
        stockholders; to provide Participants with incentives for excellence in
        individual performance; to provide flexibility to the Company in its ability
        to
        motivate, attract, and retain the services of Participants who make significant
        contributions to the Company's success; and to allow Participants to share
        in
        the success of the Company. The Plan represents a restatement and consolidation
        into a single plan of the EyeTel Imaging, Inc. 2002
        Equity
        Incentive Plan and the EyeTel Imaging, Inc. 2004
        Equity
        Incentive Plan.

       

      2.  Definitions.
        As used
        herein, the singular includes the plural, the masculine includes the feminine,
        and vice versa, and the following terms will have the meanings ascribed to
        them
        below, unless otherwise clearly required by the context.

       

      2.1  “Award”
        means a grant under the Plan of Options, Stock Appreciation Rights, Stock
        Units
        or any other form of incentive compensation award permitted by the
        Plan.

       

      2.2  “Award
        Agreement” means an agreement entered into by the Company and a Participant, or
        another instrument prepared by the Company in lieu of such an agreement,
        setting
        forth the terms and conditions applicable to an Award pursuant to the Plan.
        An
        Award Agreement may be in hard copy, electronic form or such other form as
        the
        Company may permit. 

       

      2.3  “Board”
        means the board of directors of the Company.

       

      2.4  “Change
        in Control” means the occurrence after the Effective Date of any of the
        following events— 

       

      (a)  any
        person, as such term is used in Section 13(d) and 14(d) of the Securities
        Exchange Act of 1934, other than (1) the Company, (2) any trustee or other
        fiduciary holding securities under an employee benefit Plan of the Company,
        (3)
        any company owned, directly or indirectly, by the stockholders of the Company
        in
        substantially the same proportions as their ownership of stock of the Company,
        or (4) any person who becomes a beneficial owner (as defined below) in
        connection with a transaction described in clause (1) of subparagraph (c)
        below,
        is or becomes the beneficial owner (as defined in Rule 13d-3 under the
        Securities Exchange Act of 1934), directly or indirectly, of securities of
        the
        Company (not including in the securities beneficially owned by such person
        any
        securities acquired directly from the Company or its affiliates) representing
        40
        percent or more of the combined voting power of the Company’s then outstanding
        voting securities;

       

      (b)  the
        following individuals cease for any reason to constitute a majority of the
        directors then serving: individuals who on the Effective Date, constitute
        the
        Board and any new director (other than a director whose initial assumption
        of
        office is in connection with an actual or threatened election contest, including
        but not limited to a consent solicitation relating to the election of directors
        of the Company) whose appointment or election by the Board or nomination
        for
        election by the Company’s stockholders was approved or recommended by a vote of
        at least two-thirds of the directors then still in office who were directors
        on
        the Effective Date, or whose appointment, election or nomination for election
        was previously so approved or recommended;

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

      (c)  there
        is
        consummated a merger or consolidation of the Company or any direct or indirect
        subsidiary of the Company with any other corporation, other than (1) a merger
        or
        consolidation which results in the directors of the Company immediately prior
        to
        such merger or consolidation continuing to constitute at least a majority
        of the
        board of directors of the Company, the surviving entity or any parent thereof
        or
        (2) a merger or consolidation effected to implement a recapitalization of
        the
        Company (or similar transaction) in which no person is or becomes the beneficial
        owner, directly or indirectly, of securities of the Company (not including
        in
        the securities beneficially owned by such person any securities acquired
        directly from the Company or its affiliates) representing 40% or more of
        the
        combined voting power of the Company’s then outstanding securities;
        or

       

      (d)  the
        stockholders of the Company approve a Plan of complete liquidation or
        dissolution of the Company or there is consummated an agreement for the sale
        or
        disposition by the Company of all or substantially all of the Company’s assets,
        other than a sale or disposition by the Company of all or substantially all
        of
        the Company’s assets to an entity, at least 50% of the combined voting power of
        the voting securities of which are owned by stockholders of the Company in
        substantially the same proportions as their ownership of the Company immediately
        prior to such sale.

       

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

       

      2.6  “Committee”
        means the Compensation Committee of the Board or any other committee appointed
        by the Board (which must consist of at least two and may consist of all members
        of the Board) to administer the Plan.

       

      2.7  “Company”
        means EyeTel Imaging, Inc., a Delaware corporation, and any successor
        thereto.

       

      2.8  “Effective
        Date” means ____________________, 2007.

       

      2.9  “Fair
        Market Value” means, as of any relevant date, the closing price on such date of
        Shares on the principal securities exchange on which the Shares are traded,
        or,
        if no Shares are traded on the relevant date on such exchange, then the closing
        price of Shares on the trading date next preceding the relevant date, or,
        if
        Shares are not listed on a securities exchange, the fair market value of
        the
        Shares on such date as reasonably determined by the Committee. The Committee,
        acting in its reasonable discretion consistent with applicable law, may
        prescribe a different method if the Committee determines that such different
        method is appropriate under the circumstances. 

       

      
        
           

        

        
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      2.10  “ISO”
        means an Option designated by the Committee as an “incentive stock option”
within the meaning of Section 422 of the Code.

       

      2.11  “NQSO”
        means an Option that is not designated by the Committee as an ISO.

       

      2.12  “Option”
        means an ISO or a NQSO granted pursuant to the Plan.

       

      2.13  “Participant”
        means, with respect to any outstanding Award, the eligible person to whom
        the
        Award is granted pursuant to the Plan.

       

      2.14  “Plan”
        means the EyeTel Imaging, Inc. Long-Term Incentive Plan, as it is set forth
        herein and as it may be amended from time to time.

       

      2.15  “Predecessor
        Plans” means the EyeTel Imaging, Inc. 2002
        Equity
        Incentive Plan and the EyeTel Imaging, Inc. 2004
        Equity
        Incentive Plan.

       

      2.16  “Restricted
        Shares” means Shares issued pursuant to Section 8, subject to such transfer
        restrictions, forfeiture and other terms and conditions set forth in the
        applicable Award Agreement.

       

      2.17  “Restricted
        Period” means the period during which Restricted Shares are subject to transfer
        restrictions and forfeiture conditions.

       

      2.18  “Share”
        means a share of common stock of the Company.

       

      2.19  “Stock
        Appreciation Right” or “SAR” means an Award, granted either alone or in
        connection with a related Option, pursuant to the terms of Section
        7.

       

      2.20  “Stock
        Unit” means a right to receive Shares in the future which is granted pursuant to
        Section 8, subject to such forfeiture and other terms and conditions set
        forth
        in the applicable Award Agreement.

       

      2.21  “Subsidiary”
        means (a) a corporation, partnership, joint venture, or other entity in which
        the Company has an ownership interest of at least fifty percent (50%), and
        (b)
        any corporation, partnership, joint venture, or other entity in which the
        Company holds an ownership interest of less than fifty percent (50%) but
        which,
        in the discretion of the Committee, is treated as a Subsidiary for purposes
        of
        the Plan.

       

      3.  Administration.

       

      3.1  The
        Committee.
        The
        Plan will be administered by the Committee. All determinations and decisions
        made by the Committee pursuant to the provisions of the Plan and all related
        orders and resolutions of such Committee shall be final, conclusive, and
        binding
        on all persons.

       

      3.2  Responsibility
        and Authority of the Committee.
        Subject
        to the provisions of the Plan, the Committee, acting in its discretion, will
        have full responsibility, power and authority to (a) select the persons to
        whom
        Awards will be made, (b) prescribe the terms and conditions of each Award
        and
        make amendments thereto, (c) construe, interpret and apply the provisions
        of the
        Plan and of any Award Agreement, and (d) make any and all determinations
        and
        take any and all other actions as it deems necessary or desirable in order
        to
        carry out the terms of the Plan and administer any Award. The Committee may
        obtain at the Company’s expense such advice, guidance and other assistance from
        outside compensation consultants and other professional advisers as the
        Committee deems appropriate in connection with the proper administration
        of the
        Plan. 

       

      
        
           

        

        
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      3.3  Delegation
        of Authority by Committee.
        Subject
        to the requirements of applicable law, the Committee may delegate to any
        person
        or group or subcommittee of persons (who may, but need not be members of
        the
        Committee) such Plan-related functions within the scope of its responsibility,
        power and authority as it deems appropriate. 

       

      3.4  Indemnification.
        The
        Company shall indemnify and hold harmless each member of the Committee and
        any
        employee or director of the Company or any Subsidiary to whom any duty or
        power
        relating to the administration or interpretation of the Plan is delegated
        from
        and against any loss, cost, liability (including any sum paid in settlement
        of a
        claim with the approval of the Board), damage and expense (including reasonable
        legal and other expenses incident thereto) arising out of or incurred in
        connection with the Plan, unless and except to the extent attributable to
        such
        person’s fraud or willful misconduct.

       

      4.  Shares
        Issuable Under the Plan.

       

      4.1  Share
        Pool.
        Subject
        to adjustment as provided in Section 4.3, the Company may issue up to 1,800,000
        Shares under the Plan (giving effect to the 1-for-3.6 reverse stock split
        effected pursuant to the Company’s Second Amended and Restated Certificate of
        Incorporation). For this purpose, (a) Shares issued pursuant to the exercise
        of
        options that were granted under a Predecessor Plan before and are outstanding
        on
        the Effective Date will be deemed to have been issued under the Plan, and
        (b)
        the following Shares will be deemed not to have been issued under the Plan
        and
        will remain in the Share Pool: (1) Shares covered by the unexercised portion
        of
        an Option or SAR that terminates, expires, is canceled or is settled in cash,
        (2) Shares forfeited or repurchased under the Plan, (3) Shares covered by
        Awards
        that are forfeited, canceled, terminated or settled in cash, (4) Shares withheld
        or surrendered in order to pay the exercise or purchase price under an Award
        or
        to satisfy the tax withholding obligations associated with the exercise,
        vesting
        or settlement of an Award, and (5) Shares covered by stock-based Awards assumed
        by the Company in connection with the acquisition of another company or
        business.

       

      4.2  ISO
        Share Limitation.
        Subject
        to adjustment as provided in Section 4.3, of the number of Shares that may
        be
        issued under the Plan, no more than 1,800,000 Shares may be issued pursuant
        to
        ISOs.

       

      4.3  Adjustments
        for Capital Changes.
        In the
        event of a change in corporate capitalization, such as a stock split, or
        a
        corporate transaction, such as a merger, consolidation, separation, including
        a
        spin-off, or other distribution of stock or property of the Company, any
        reorganization (whether or not such reorganization comes within the definition
        of such term in Code Section 368) or any partial or complete liquidation
        of the
        Company, such adjustment shall be made in the number and class of Shares
        available for grants under the Plan and in the number and class of and/or
        price
        of Shares subject to outstanding Awards, as may be determined to be appropriate
        and equitable by the Committee, in its discretion, to prevent dilution or
        enlargement of the benefits available under the Plan and of the rights of
        Participants; provided that the number of Shares subject to any Award shall
        always be a whole number.

       

      
        
           

        

        
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      5.  Eligibility
        to Receive Awards.
        Awards
        may be granted under the Plan to any present or future employees, officers
        and
        non-employee directors of and consultants to the Company or a Subsidiary.
        The
        terms and provisions of Awards may differ on a Participant-by-Participant
        basis.

       

      6.  Stock
        Option Awards.
        

       

       

      6.1  Grant
        of Options.
        The
        Committee may grant Options upon such vesting and other terms and conditions
        as
        the Committee, acting in its discretion in accordance with the Plan, may
        determine, either at the time the Options are granted or, if the holder’s rights
        are not adversely affected, at any subsequent time. Options outstanding on
        the
        Effective Date pursuant to a Predecessor Plan will remain outstanding in
        accordance with their terms. Nothing contained herein is intended to adversely
        affect the rights of any person pursuant to the terms of such previously
        outstanding Options. 

       

       

      6.2  Option
        Exercise Price.
        The
        Option exercise price per Share under each Option shall not be less than
        100% of
        the Fair Market Value per Share on the date the Option is granted (or not
        be
        less than 110% of such Fair Market Value in the case of an ISO granted to
        an
        employee who is a 10% stockholder within the meaning of Section 422(b)(6)
        of the
        Code). 

       

       

      6.3  No
        Repricing of Options.
        The
        repricing of Options granted under the Plan is prohibited in the absence
        of
        stockholder approval.

       

       

      6.4  Term
        of Options.
        Each
        Option granted to a Participant shall expire at such time as the Committee
        shall
        determine at the time of grant or by subsequent amendment; provided that
        no ISO
        awarded to an employee who is a 10% stockholder within the meaning of Section
        422(b)(6) of the Code shall be exercisable after the fifth anniversary of
        the
        date the ISO is granted and no other Option shall be exercisable after the
        tenth
        anniversary of its date of grant. The exercise period of an Option may be
        extended if such extension would not cause the Option to be subject to Section
        409A of the Code. 

       

       

      6.5  Exercise
        of Options.
        Options
        shall be exercisable at such times and be subject to such restrictions and
        conditions as the Committee shall in each instance determine. An Option may
        be
        exercised by transmitting to the Secretary of the Company (or other person
        designated for this purpose by the Committee) a written notice identifying
        the
        Option that is being exercised and specifying the number of whole Shares
        to be
        purchased pursuant to that Option, together with payment in full of the exercise
        price and the withholding taxes due in connection with the exercise, unless
        and
        except to the extent that other arrangements satisfactory to the Company
        have
        been made for such payment(s). The exercise price may be paid in cash or
        in any
        other manner the Committee, in its discretion, may permit, including, without
        limitation, (a) by the delivery of previously-owned Shares, (b) by a combination
        of a cash payment and delivery of previously-owned Shares, or (c) pursuant
        to a
        cashless exercise program established and made available through a registered
        broker-dealer in accordance with applicable law. Any Shares transferred to
        the
        Company (or withheld upon exercise) in connection with the exercise of an
        Option
        shall be valued at Fair Market Value for purposes of determining the extent
        to
        which the exercise price and/or tax withholding obligation is satisfied by
        such
        transfer (or withholding) of Shares.

       

      
        
           

        

        
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      6.6  Transferability.
        Except
        as otherwise provided, no Option shall be assignable or transferable except
        upon
        a Participant’s death to a beneficiary designated by the Participant in a manner
        prescribed or approved for this purpose by the Committee or, if no designated
        beneficiary shall survive the Participant, pursuant to the Participant’s will or
        by the laws of descent and distribution. During a Participant’s lifetime,
        Options may be exercised only by the Participant or the Participant’s guardian
        or legal representative. Notwithstanding the foregoing, a Participant may
        make
        an inter vivos transfer of a NQSO pursuant to a domestic relations order
        (within
        the meaning of Rule 16a-12 promulgated under the Securities Exchange Act
        of
        1934) in settlement of marital property rights, or by transfer to a “family
        member” (within the meaning of Item A.1.(5)
        of the General Instructions to Form S-8 or any successor provision).
Subject
        to any governing rules or regulations, as soon as practicable after receipt
        of a
        written notification of exercise and full payment of the Option exercise
        price
        and of the applicable withholding taxes (or satisfactory arrangement for
        the
        payment of such taxes), the Company shall issue the Shares purchased by such
        exercise in the Participant's name (or, at the direction of the Participant,
        jointly in the names of the Participant and the Participant's spouse) or,
        if
        applicable, in the name of a deceased Participant’s beneficiary(ies).


       

       

      6.7  Limitations
        on ISOs.
        To the
        extent required from time to time by the Code and/or applicable regulations,
        the
        following additional provisions shall apply to the grant of Options that
        are
        intended to qualify as ISOs.

       

       

      (a)  Fair
        Market Value Limitation.
        The
        aggregate Fair Market Value (determined as of the date the ISO is granted)
        of
        the Shares with respect to which ISOs are exercisable for the first time
        by any
        Participant during any calendar year (under all Plans of the Company or any
        parent or subsidiary corporation within the meaning of Section 424 of the
        Code)
        shall not exceed $100,000 or such other amount as may subsequently be specified
        by the Code and/or applicable regulations; provided that, to the extent such
        limitation is exceeded, any Options on Shares with a Fair Market Value in
        excess
        of such amount shall be deemed to be NQSOs.

       

       

      (b)  Code
        Section 422.
        ISOs
        shall contain such other provisions as the Committee shall deem advisable,
        but
        shall in all events be consistent with and contain or be deemed to contain
        all
        provisions required in order to qualify as incentive stock options under
        Section
        422 of the Code. No ISOs may be granted more than ten years from the earlier
        of
        the date on which the Plan was adopted by the Board or the date the Plan
        received stockholder approval.

       

      7.  Stock
        Appreciation Rights.

       

      
        
           

        

        
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      7.1  General.
        The
        Committee may grant stock appreciation rights (“SARs”), either alone or in
        connection with the grant of an Option, upon such vesting and other terms
        and
        conditions as the Committee, acting in its discretion in accordance with
        the
        Plan, may determine, either at the time the SARs are granted or, if the holder’s
        rights are not adversely affected, at any subsequent time. Upon exercise,
        the
        holder of an SAR shall be entitled to receive cash and/or a number of whole
        Shares having a Fair Market Value equal to the product of X
        and
Y,
        where--

       

      X
        = the
        number of whole Shares as to which the SAR is being exercised, and

       

      Y
        = the
        excess of the Fair Market Value per Share on the date of exercise over the
        Fair
        Market Value per Share on the date the SAR is granted (or such greater base
        value as the Committee may prescribe at the time the SAR is
        granted).

       

      7.2  Method
        of Exercise.
        An
        outstanding and exercisable SAR may be exercised by transmitting to the
        Secretary of the Company (or other person designated for this purpose by
        the
        Committee) a written notice identifying the SAR that is being exercised and
        specifying the number of Shares as to which the SAR is being exercised, together
        with payment in full of the withholding taxes due in connection with the
        exercise, unless and except to the extent that other arrangements satisfactory
        to the Company have been made for such payment. The Committee may impose
        such
        additional or different conditions for exercise of an SAR as it deems
        appropriate. No fractional Shares will be issued in connection with the exercise
        of an SAR.

       

      8.  Restricted
        Shares and Stock Units.

       

      8.1  General.
        The
        Committee may grant Restricted Shares and Stock Units to any eligible person
        upon such vesting and other terms, restrictions and conditions as the Committee,
        acting in its discretion in accordance with the Plan, may determine, either
        at
        the time the Restricted Shares or Stock Units are issued or, if the
        Participant’s (or beneficiary’s) rights are not adversely affected, at any
        subsequent time.

       

      8.2  Minimum
        Purchase Price.
        Unless
        the Committee, acting in accordance with applicable law, determines otherwise,
        the purchase price payable for Shares transferred to a Participant (or
        beneficiary) pursuant a Restricted Share or Stock Unit Award must be at least
        equal to the par value of the Shares.

       

      8.3  Issuance
        of Restricted Shares.
        Shares
        issued pursuant to a Restricted Share Award may be evidenced by book entries
        on
        the Company’s stock transfer records pending satisfaction of the applicable
        vesting conditions. If a stock certificate for Restricted Shares is issued,
        the
        certificate will bear an appropriate legend to reflect the nature of the
        conditions and restrictions applicable to the Restricted Shares. The Company
        may
        require that any or all such stock certificates be held in custody by the
        Company until the applicable conditions are satisfied and other restrictions
        lapse. The Committee may establish such other conditions as it deems appropriate
        in connection with the issuance of certificates for Restricted Shares,
        including, without limitation, a requirement that the Participant deliver
        a duly
        signed stock power, endorsed in blank, for the Restricted Shares covered
        by the
        Restricted Share Award.

       

      
        
           

        

        
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      8.4  Rights
        as a Stockholder.
        Subject
        to and except as otherwise provided by the terms of a Restricted Share Award,
        the holder of Restricted Shares will be entitled to receive dividends paid
        on,
        and exercise voting rights associated with, such Restricted Shares as if
        the
        Restricted Shares were fully vested. The holder of a Stock Unit Award shall
        have
        no rights as a stockholder with respect to Shares covered by the Stock Unit
        Award unless and until the Award vests and the vested Shares are issued;
        provided, however, that the Committee, in its discretion, may provide for
        the
        crediting and payment of dividend equivalents on Shares covered by a Stock
        Unit
        Award.

       

      8.5  Nontransferability.
        Except
        as otherwise provided with respect to the death of a Participant, Restricted
        Shares and Stock Units may not be sold, assigned, transferred, disposed of,
        pledged or otherwise hypothecated other than to the Company or its designee
        in
        accordance with the terms of the Award or of the Plan, and any attempt to
        do so
        shall be null and void and, unless the Committee determines otherwise, shall
        result in the immediate forfeiture of the Award or the Restricted Shares,
        as the
        case may be.

       

      8.6  Termination
        of Service Before Vesting; Forfeiture.
        Unless
        the Committee determines otherwise, Restricted Shares and non-vested Stock
        Units
        will be forfeited upon the recipient’s termination of employment or other
        service with the Company and its Subsidiaries. If Restricted Shares are
        forfeited, any certificate or book entry representing such Restricted Shares
        will be canceled and the holder of the Award will be entitled to receive
        from
        the Company an amount equal to the cash purchase price, if any, previously
        paid
        by the Participant for such Restricted Shares. If a non-vested Stock Unit
        Award
        is forfeited, the affected Participant will have no further right to receive
        any
        Shares covered by the non-vested Award.

       

      9.  Other
        Stock-Based Awards and Cash Incentive Awards.
        The
        Committee is authorized, subject to limitations under applicable law, to
        grant
        to Participants such other Awards that may be denominated or payable in,
        valued
        in whole or in part by reference to, or otherwise based on, or related to,
        the
        Company’s Shares or factors that may influence the value of the Company’s
        Shares, including, without limitation, stock bonuses, dividend equivalents,
        convertible or exchangeable debt securities, other rights convertible or
        exchangeable into Shares, purchase rights for Shares, performance Shares,
        Awards
        with value and payment contingent upon performance of the Company or business
        units thereof or any other factors designated by the Committee, and Awards
        valued by reference to the book value of the Company’s Shares or the value of
        securities of or the performance of specified Subsidiaries or affiliates
        or
        other business units and Awards designed to comply with or take advantage
        of
        other applicable law. The Committee shall determine the terms and conditions
        of
        such Awards. In addition, cash Awards, including annual incentive cash Awards
        and long-term incentive cash Awards, denominated and settled in cash, may
        be
        granted under this Section, which Awards may be earned at such times, under
        such
        circumstances (including based on achievement of performance goals and/or
        future
        service requirements), in such installments or otherwise and under such other
        circumstances as the Committee may determine at the date of grant or
        thereafter.

       

      10.  Transfer
        Restrictions; Beneficiaries.

       

      10.1  Transfer
        Restrictions.
        Except
        as otherwise provided, no Award or other right or interest of a Participant
        under the Plan shall be pledged, hypothecated or otherwise encumbered or
        subject
        to any lien, obligation or liability of such Participant to any party (other
        than the Company or an affiliate thereof), or assigned or transferred by
        such
        Participant otherwise than by will or the laws of descent and distribution
        or to
        a beneficiary upon the death of a Participant, and such Awards or rights
        that
        may be exercisable shall be exercised during the lifetime of the Participant
        only by the Participant or his or her guardian or legal
        representative.

       

      
        
           

        

        
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      10.2  Beneficiaries.
        Each
        Participant may designate the beneficiary or beneficiaries who shall be entitled
        to receive any benefits provided upon the Participant’s death in accordance with
        the Plan and/or Award Agreement. A beneficiary designation must be in writing
        delivered to the Committee or its designee during the Participant’s lifetime in
        such manner and in accordance with such other conditions as the Committee
        may
        require. Each such designation shall revoke all prior designations by the
        same
        Participant. In the absence of any such designation or if no designated
        beneficiary survives a deceased Participant, the deceased Participant’s
        beneficiary will be the Participant's estate.

       

      11.  Change
        in Control.
        Except
        as otherwise provided in this Section, in the event of a Change in Control,
        all
        Option and SAR holders shall be permitted to exercise their outstanding Options
        and SARs in whole or in part (whether or not otherwise exercisable) immediately
        prior to such Change in Control, and any outstanding Options and SARs that
        are
        not exercised before the Change in Control shall thereupon terminate.
        Notwithstanding the preceding sentence, if, as part of a Change in Control
        transaction, the stockholders of the Company receive capital stock of another
        corporation (“Exchange Stock”) in exchange for their Shares (whether or not such
        Exchange Stock is the sole consideration), the Company may cause all Options
        and
        SARs outstanding at the time of the Change in Control to be converted into
        options or stock appreciation rights (as the case may be) for shares of Exchange
        Stock. The number of shares of Exchange Stock and the exercise price per
        share
        of Exchange Stock under a converted Option will be adjusted such that (a)
        the
        ratio of the exercise price per share to the value per share at the time
        of the
        conversion (which value will be equal to the consideration payable for each
        Share in connection with the transaction) is the same as the ratio of the
        per
        Share exercise price to the value of per Share under the original Option;
        and
        (b) the aggregate difference between the value of the shares of Exchange
        Stock
        and the exercise price under the converted Option immediately after the
        transaction is the same as the aggregate difference between the value of
        the
        Shares and the exercise price under the original Option immediately before
        the
        transaction. Similar adjustments will be made to the number of shares of
        Exchange Stock and the base value per Share covered by SARs that are converted.
        Unless the Company’s board of directors determines otherwise, the vesting and
        other terms and conditions of the converted Options and SARs shall be
        substantially the same as the vesting and corresponding other terms and
        conditions of the original Options and SARs. The Company’ board of directors,
        acting in its discretion, may accelerate vesting of other non-vested Awards,
        and
        cause cash settlements and/or other adjustments to be made to any outstanding
        Awards (including, without limitation, Options and SARs) as it deems appropriate
        in the context of a Change in Control, taking into account with respect to
        other
        Awards the manner in which outstanding Options and SARs are being treated.
        If a
        Participant’s employment or other service is terminated within two years after a
        Change in Control for any reason other than voluntary termination by the
        Participant or termination by the acquiring or successor company due to the
        Participant’s willful and gross misconduct, then any Options or other Awards
        that were granted under the Plan and that were assumed by the acquiring or
        successor entity in connection with the Change in Control will, upon such
        termination, become fully vested and non-forfeitable. All adjustments under
        this
        Section shall be made or approved by the Board, and its determination as
        to what
        adjustments shall be made, and the extent thereof, shall be final, binding
        and
        conclusive. Notwithstanding anything to the contrary contained herein, for
        the
        purpose of determining whether settlement of restricted stock units or any
        other
        award that constitutes deferred compensation covered by Section 409A of the
        Code
        can be accelerated by reason of a Change in Control, the term “Change in
        Control” shall be defined as a change in the ownership or effective control of
        the Company or a change in the ownership of a substantial portion of the
        assets
        of the Company, in each case within the meaning and for the purposes of Section
        409A of the Code.

       

      
        
           

        

        
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      12.  Termination
        and Amendment of the Plan.
        The
        Board may terminate the Plan at any time or amend the Plan at any time and
        from
        time to time; provided, however, that:

       

      (a)  no
        such
        action shall impair or adversely alter any Awards theretofore granted under
        the
        Plan, except with the consent of the Participant (or beneficiary), nor shall
        any
        such action deprive any such person of any Shares which he or she may have
        acquired through or as a result of the Plan; and

       

      (b)  to
        the
        extent necessary under applicable law or the
        requirements of any stock exchange or market upon which the Shares may then
        be
        listed, no
        amendment shall be effective unless approved by the stockholders of the Company
        in accordance with applicable law.

       

      13.  Limitation
        of Rights.
        Nothing
        contained in the Plan or in any Award agreement shall confer upon any
        Participant any right with respect to the continuation of his or her employment
        or other service with the Company or a Subsidiary, or interfere in any way
        with
        the right of the Company and its Subsidiaries at any time to terminate such
        employment or other service or to increase or decrease, or otherwise adjust,
        the
        compensation and/or other terms and conditions of the Participant’s employment
        or other service.

       

      14.  Miscellaneous.

       

      14.1  Governing
        Law.
        The
        Plan and the rights of all persons claiming under the Plan shall be governed
        by
        the laws of the State of Delaware, without giving effect to conflicts of
        laws
        principles thereof.

       

      14.2  Compliance
        with Law.
        The
        Company will not be obligated to issue or deliver Shares pursuant to the
        Plan
        unless the issuance and delivery of such Shares complies with applicable
        law,
        including, without limitation, the Securities Act of 1933, as amended, the
        Exchange Act, and the requirements of any stock exchange or market upon which
        the Shares may then be listed, and shall be further subject to the approval
        of
        counsel for the Company with respect to such compliance.

       

      14.3  Transfer
        Orders; Placement of Legends.
        All
        certificates or book entries for Shares issued under the Plan shall be subject
        to such stock-transfer orders and other restrictions as the Company may deem
        advisable under the rules, regulations, and other requirements of the Securities
        and Exchange Commission, any stock exchange or market upon which the Shares
        may
        then be listed, and any applicable federal or state securities law. The Company
        may cause a legend or legends to be placed on any such certificates or book
        entries to make appropriate reference to such restrictions.

       

      
        
           

        

        
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      14.4  Decisions
        and Determinations Final.
        All
        decisions and determinations made by the Board pursuant to the provisions
        hereof
        and, except to the extent rights or powers under the Plan are reserved
        specifically to the discretion of the board of directors, all decisions and
        determinations of the Committee, shall be final, binding and conclusive on
        all
        persons.

       

      14.5  Withholding
        of Taxes.
        As a
        condition to the exercise and/or settlement of any Award or the lapse of
        restrictions on any Award or Shares, or in connection with any other event
        that
        gives rise to a federal or other governmental tax withholding obligation
        on the
        part of the Company or a Subsidiary with respect to an Award, the Company
        and/or
        the Subsidiary may (a) deduct or withhold (or cause to be deducted or withheld)
        from any payment or distribution otherwise payable to the Award recipient,
        whether or not such payment or distribution is covered by the Plan, or (b)
        require the recipient to remit cash (through payroll deduction or otherwise)
        or
        make other arrangements permitted by the Company, in each case in an amount
        or
        of a nature sufficient in the opinion of the Company to satisfy or provide
        for
        the satisfaction of such withholding obligation. If the event giving rise
        to the
        withholding obligation involves a transfer of Shares, then, at the sole
        discretion of the Committee, a Participant or beneficiary may satisfy the
        withholding obligations associated with such transfer by electing to have
        the
        Company withhold Shares or by tendering previously-owned Shares, in each
        case
        having a Fair Market Value equal to the amount of tax to be
        withheld.

       

      14.6  Compliance
        With Section 409A of the Code.
        If a
        participant is a “specified employee” within the meaning of Treasury Regulation
        Section 1.409A-1(a)(i), then, notwithstanding anything to the contrary contained
        herein, payments and benefits to which such participant becomes entitled
        by
        reason of a separation from service shall be delayed for six months following
        the Participant’s termination of employment if such payments or benefits
        constitute deferred compensation subject to Section 409A of the Code and,
        then,
        to the limited extent necessary in order to satisfy the requirements of Section
        409A(a)(2)(B) of the Code. For the avoidance of doubt, payments and benefits
        will not be delayed if and to the extent such payments and benefits do not
        constitute deferred compensation under Section 409A of the Code, including,
        without limitation, by reason of the exceptions described in Section
        1.409A-1(b)(9). Any payments that are delayed pursuant to this Section will
        be
        distributed in a single sum at the expiration of the required delay period
        (but
        not later than six months after such separation from service).

       

      15.  Term
        of the Plan.
        Unless
        sooner terminated by the Board, the Plan shall terminate on _________________,
        2012, which is the original termination date of the first Predecessor Plan.
        The
        rights of any person with respect to an Award made under the Plan that is
        outstanding at the time of the termination of the Plan shall not be affected
        solely by reason of the termination of the Plan and shall continue in accordance
        with the terms of the Award and of the Plan, as each is then in effect or
        is
        thereafter amended

       

      
        
           

        

        
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