Unassociated Document


     

    
      


      Exhibit
        10.1

      


      EL
        CAPITAN PRECIOUS METALS, INC.

      2005
        STOCK INCENTIVE PLAN

      


       

      1.    Purpose.
        The
        purpose of the 2005 Stock Incentive Plan (the “Plan”) of El Capitan Precious
        Metals, Inc. (the “Company”) is to increase stockholder value and to advance the
        interests of the Company by furnishing a variety of economic incentives
        (“Incentives'”) designed to attract, retain and motivate employees, certain key
        consultants and directors of the Company. Incentives may consist of
        opportunities to purchase or receive shares of Common Stock, $0.01 par value
        per
        share, of the Company (“Common Stock”) on terms determined under this
        Plan.

       

      2.    Administration.
        The
        Plan shall be administered by the board of directors of the Company (the
“Board
        of Directors”) or by a stock option or compensation committee (the “Committee”)
        of the Board of Directors. The Committee shall consist of not less than two
        directors of the Company and shall be appointed from time to time by the
        Board
        of Directors. Each member of the Committee shall be (i) a “non-employee
        director” within the meaning of Rule 16b-3 of the Securities
        Exchange Act of 1934 (including the regulations promulgated thereunder, the
        “1934 Act”)
        (a
“Non-Employee Director”), and
        (ii)
        shall be an “outside director” within the meaning of Section 162(m) under the
        Internal Revenue Code of 1986, as amended (the “Code”) and the regulations
        promulgated thereunder. The Committee shall have complete authority to award
        Incentives under the Plan, to interpret the Plan, and to make any other
        determination which it believes necessary and advisable for the proper
        administration of the Plan. The Committee’s decisions and matters relating to
        the Plan shall be final and conclusive on the Company and its participants.
        If
        at any time there is no stock option or compensation committee, the term
        “Committee”, as used in the Plan, shall refer to the Board of
        Directors.

       

      3.    Eligible
        Participants.
        Officers of the Company, employees of the Company or its subsidiaries, members
        of the Board of Directors, and consultants or other independent contractors
        who
        provide services to the Company or its subsidiaries shall be eligible to
        receive
        Incentives under the Plan when designated by the Committee. Participants
        may be
        designated individually or by groups or categories (for example, by pay grade)
        as the Committee deems appropriate. Participation by officers of the Company
        or
        its subsidiaries and any performance objectives relating to such officers
        must
        be approved by the Committee. Participation by others and any performance
        objectives relating to others may be approved by groups or categories (for
        example, by pay grade) and authority to designate participants who are not
        officers and to set or modify such targets may be delegated.

       

      4.    Types
        of Incentives.
        Incentives under the Plan may be granted in any one or a combination of the
        following forms: (a) incentive stock options and non-statutory stock options
        (section 6); (b) stock appreciation rights (“SARs”) (section 7); (c) stock
        awards (section 8); (d) restricted stock (section 8); and (e) performance
        shares
        (section 9).

       

      5.    Shares
        Subject to the Plan.

       

      5.1.    Number
        of Shares.
        Subject
        to adjustment as provided in Section 10.6, the number of shares of Common
        Stock
        which may be issued under the Plan shall not exceed 16,000,000 shares of
        Common
        Stock. Shares of Common Stock that are issued under the Plan or are subject
        to
        outstanding Incentives will be applied to reduce the maximum number of shares
        of
        Common Stock remaining available for issuance under the Plan.

       

      5.2.    Cancellation.
        To the
        extent that cash in lieu of shares of Common Stock is delivered upon the
        exercise of an SAR pursuant to Section 7.4, the Company shall be deemed,
        for
        purposes of applying the limitation on the number of shares, to have issued
        the
        greater of the number of shares of Common Stock which it was entitled to
        issue
        upon such exercise or on the exercise of any related option. In the event
        that a
        stock option or SAR granted hereunder expires or is terminated or canceled
        unexercised as to any shares of Common Stock, such shares may again be issued
        under the Plan either pursuant to stock options, SARs or otherwise. In the
        event
        that shares of Common Stock are issued as restricted stock or pursuant to
        a
        stock award and thereafter are forfeited or reacquired by the Company pursuant
        to rights reserved upon issuance thereof, such forfeited and reacquired shares
        may again be issued under the Plan, either as restricted stock, pursuant
        to
        stock awards or otherwise. The Committee may also determine to cancel, and
        agree
        to the cancellation of, stock options in order to make a participant eligible
        for the grant of a stock option at a lower price than the option to be canceled.
        

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      5.3.    Type
        of Common Stock.
        Common
        Stock issued under the Plan in connection with stock options, SARs, performance
        shares, restricted stock or stock awards, may be authorized and unissued
        shares
        or treasury stock, as designated by the Committee.

       

      6.    Stock
        Options.
        A stock
        option is a right to purchase shares of Common Stock from the Company. Each
        stock option granted by the Committee under this Plan shall be subject to
        the
        following terms and conditions:

       

      6.1.    Price.
        The
        option price per share shall be determined by the Committee, subject to
        adjustment under Section 10.6.

       

      6.2.    Number.
        The
        number of shares of Common Stock subject to the option shall be determined
        by
        the Committee, subject to adjustment as provided in Section 10.6. The number
        of
        shares of Common Stock subject to a stock option shall be reduced in the
        same
        proportion that the holder thereof exercises a SAR if any SAR is granted
        in
        conjunction with or related to the stock option. Notwithstanding the foregoing,
        no person shall receive grants of Stock Options under the Plan that exceed
        2,000,000 shares during any one fiscal year of the Company. 

       

      6.3.    Duration
        and Time for Exercise.
        Subject
        to earlier termination as provided in Section 10.4, the term of each stock
        option shall be determined by the Committee but shall not exceed ten years
        and
        one day from the date of grant. Each stock option shall become exercisable
        at
        such time or times during its term as shall be determined by the Committee
        at
        the time of grant. The Committee may accelerate the exercisability of any
        stock
        option. Subject to the foregoing and with the approval of the Committee,
        all or
        any part of the shares of Common Stock with respect to which the right to
        purchase has accrued may be purchased by the Company at the time of such
        accrual
        or at any time or times thereafter during the term of the option at such
        price
        and on such terms as the Company and the optionee shall mutually agree;
provided,
        however,
        that any
        shares so repurchased shall not be available for re-issuance under the
        Plan.

       

      6.4.    Manner
        of Exercise.
        A stock
        option may be exercised, in whole or in part, by giving written notice to
        the
        Company, specifying the number of shares of Common Stock to be purchased
        and
        accompanied by the full purchase price for such shares. The option price
        shall
        be payable (a) in United States dollars upon exercise of the option and may
        be
        paid by cash, uncertified or certified check or bank draft; (b) at the
        discretion of the Committee, by delivery of shares of Common Stock in payment
        of
        all or any part of the option price, which shares shall be valued for this
        purpose at the Fair Market Value on the date such option is exercised; or
        (c) at
        the discretion of the Committee, by instructing the Company to withhold from
        the
        shares of Common Stock issuable upon exercise of the stock option shares
        of
        Common Stock in payment of all or any part of the exercise price and/or any
        related withholding tax obligations, which shares shall be valued for this
        purpose at the Fair Market Value or in such other manner as may be authorized
        from time to time by the Committee. The shares of Common Stock delivered
        by the
        participant pursuant to Section 6.4(b) must have been held by the participant
        for a period of not less than six months prior to the exercise of the option,
        unless otherwise determined by the Committee. Prior to the issuance of shares
        of
        Common Stock upon the exercise of a stock option, a participant shall have
        no
        rights as a stockholder.

       

      6.5.    Incentive
        Stock Options.
        Notwithstanding anything in the Plan to the contrary, the following additional
        provisions shall apply to the grant of stock options which are intended to
        qualify as Incentive Stock Options (as such term is defined in Section 422
        of
        the Code):

       

       (a)    The
        aggregate Fair Market Value (determined as of the time the option is granted)
        of
        the shares of Common Stock with respect to which Incentive Stock Options
        are
        exercisable for the first time by any participant during any calendar year
        (under all of the Company’s plans) shall not exceed $100,000. The determination
        will be made by taking incentive stock options into account in the order
        in
        which they were granted. If such excess only applies to a portion of an
        Incentive Stock Option, the Committee, in its discretion, will designate
        which
        shares will be treated as shares to be acquired upon exercise of an Incentive
        Stock Option.

       

      (b)    Any
        Incentive Stock Option certificate authorized under the Plan shall contain
        such
        other provisions as the Committee shall deem advisable, but shall in all
        events
        be consistent with and contain all provisions required in order to qualify
        the
        options as Incentive Stock Options.

       

      (c)    All
        Incentive Stock Options must be granted within ten years from the earlier
        of the
        date on which this Plan was adopted by Board of Directors.

       

      
        
          
          

        

        
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      (d)    Unless
        sooner exercised, all Incentive Stock Options shall expire no later than
        10
        years after the date of grant.

       

      (e)    The
        option price for Incentive Stock Options shall be not less than the Fair
        Market
        Value of the Common Stock subject to the option on the date of
        grant.

       

      (f)    If
        Incentive Stock Options are granted to any participant who, at the time such
        option is granted, would own (within the meaning of Section 422 of the Code)
        stock possessing more than 10% of the total combined voting power of all
        classes
        of stock of the employer corporation or of its parent or subsidiary corporation,
        (i) the option price for such Incentive Stock Options shall be not less than
        110% of the Fair Market Value of the Common Stock subject to the option on
        the
        date of grant and (ii) such Incentive Stock Options shall expire no later
        than
        five years after the date of grant.

       

      7.    Stock
        Appreciation Rights.
        An SAR
        is a right to receive, without payment to the Company, a number of shares
        of
        Common Stock, cash or any combination thereof, the amount of which is determined
        pursuant to the formula set forth in Section 7.4. An SAR may be granted (a)
        with
        respect to any stock option granted under this Plan, either concurrently
        with
        the grant of such stock option or at such later time as determined by the
        Committee (as to all or any portion of the shares of Common Stock subject
        to the
        stock option), or (b) alone, without reference to any related stock option.
        Each
        SAR granted by the Committee under this Plan shall be subject to the following
        terms and conditions:

       

      7.1.    Number.
        Each
        SAR granted to any participant shall relate to such number of shares of Common
        Stock as shall be determined by the Committee, subject to adjustment as provided
        in Section 10.6. In the case of an SAR granted with respect to a stock option,
        the number of shares of Common Stock to which the SAR pertains shall be reduced
        in the same proportion that the holder of the option exercises the related
        stock
        option.

       

      7.2.    Duration.
        Subject
        to earlier termination as provided in Section 10.4, the term of each SAR
        shall
        be determined by the Committee but shall not exceed ten years and one day
        from
        the date of grant. Unless otherwise provided by the Committee, each SAR shall
        become exercisable at such time or times, to such extent and upon such
        conditions as the stock option, if any, to which it relates is exercisable.
        The
        Committee may in its discretion accelerate the exercisability of any
        SAR.

       

      7.3.    Exercise.
        An SAR
        may be exercised, in whole or in part, by giving written notice to the Company,
        specifying the number of SARs which the holder wishes to exercise. Upon receipt
        of such written notice, the Company shall, within 90 days thereafter, deliver
        to
        the exercising holder certificates for the shares of Common Stock or cash
        or
        both, as determined by the Committee, to which the holder is entitled pursuant
        to Section 7.4.

       

      7.4.    Payment.
        Subject
        to the right of the Committee to deliver cash in lieu of shares of Common
        Stock
        (which, as it pertains to officers and directors of the Company, shall comply
        with all requirements of the 1934 Act), the number of shares of Common Stock
        which shall be issuable upon the exercise of an SAR shall be determined by
        dividing:

       

      (a)    the
        number of shares of Common Stock as to which the SAR is exercised multiplied
        by
        the amount of the appreciation in such shares (for this purpose, the
“appreciation” shall be the amount by which the Fair Market Value of the shares
        of Common Stock subject to the SAR on the exercise date exceeds (1) in the
        case
        of an SAR related to a stock option, the purchase price of the shares of
        Common
        Stock under the stock option or (2) in the case of an SAR granted alone,
        without
        reference to a related stock option, an amount which shall be determined
        by the
        Committee at the time of grant, subject to adjustment under Section 10.6);
        by

       

      (b)    the
        Fair
        Market Value of a share of Common Stock on the exercise date.

       

      In
        lieu
        of issuing shares of Common Stock upon the exercise of a SAR, the Committee
        may
        elect to pay the holder of the SAR cash equal to the Fair Market Value on
        the
        exercise date of any or all of the shares which would otherwise be issuable.
        No
        fractional shares of Common Stock shall be issued upon the exercise of an
        SAR;
        instead, the holder of the SAR shall be entitled to receive a cash adjustment
        equal to the same fraction of the Fair Market Value of a share of Common
        Stock
        on the exercise date or to purchase the portion necessary to make a whole
        share
        at its Fair Market Value on the date of exercise.

       

      8.    Stock
        Awards and Restricted Stock.
        A stock
        award consists of the transfer by the Company to a participant of shares
        of
        Common Stock, without other payment therefor, as additional compensation
        for
        services to the Company. A share of restricted stock consists of shares of
        Common Stock which are sold or transferred by the Company to a participant
        at a
        price determined by the Committee (which price shall be at least equal to
        the
        minimum price required by applicable law for the issuance of a share of Common
        Stock) and subject to restrictions on their sale or other transfer by the
        participant. The transfer of Common Stock pursuant to stock awards and the
        transfer and sale of restricted stock shall be subject to the following terms
        and conditions:

       

      
        
          
          

        

        
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      8.1.    Number
        of Shares.
        The
        number of shares to be transferred or sold by the Company to a participant
        pursuant to a stock award or as restricted stock shall be determined by the
        Committee.

       

      8.2.    Sale
        Price.
        The
        Committee shall determine the price, if any, at which shares of restricted
        stock
        shall be sold to a participant, which may vary from time to time and among
        participants and which may be below the Fair Market Value of such shares
        of
        Common Stock at the date of sale.

       

      8.3.    Restrictions.
        All
        shares of restricted stock transferred or sold hereunder shall be subject
        to
        such restrictions as the Committee may determine, including, without limitation
        any or all of the following:

       

      (a)    a
        prohibition against the sale, transfer, pledge or other encumbrance of the
        shares of restricted stock, such prohibition to lapse at such time or times
        as
        the Committee shall determine (whether in annual or more frequent installments,
        at the time of the death, disability or retirement of the holder of such
        shares,
        or otherwise);

       

      (b)    a
        requirement that the holder of shares of restricted stock forfeit, or (in
        the
        case of shares sold to a participant) resell back to the Company at his or
        her
        cost, all or a part of such shares in the event of termination of his or
        her
        employment or consulting engagement during any period in which such shares
        are
        subject to restrictions;

       

      (c)    such
        other conditions or restrictions as the Committee may deem
        advisable.

       

      8.4.    Escrow.
        In
        order to enforce the restrictions imposed by the Committee pursuant to Section
        8.3, the participant receiving restricted stock shall enter into an agreement
        with the Company setting forth the conditions of the grant. Shares of restricted
        stock shall be registered in the name of the participant and deposited, together
        with a stock power endorsed in blank, with the Company. Each such certificate
        shall bear a legend in substantially the following form:

       

      The
        transferability of this certificate and the shares of Common Stock represented
        by it are subject to the terms and conditions (including conditions of
        forfeiture) contained in the 2005 Stock Incentive Plan of El Capitan Precious
        Metals, Inc. (the “Company”), and an agreement entered into between the
        registered owner and the Company. A copy of the Plan and the agreement is
        on
        file in the office of the secretary of the Company.

       

      8.5.    End
        of
        Restrictions.
        Subject
        to Section 10.5, at the end of any time period during which the shares of
        restricted stock are subject to forfeiture and restrictions on transfer,
        such
        shares will be delivered free of all restrictions to the participant or to
        the
        participant's legal representative, beneficiary or heir.

       

      8.6.    Stockholder.
        Subject
        to the terms and conditions of the Plan, each participant receiving restricted
        stock shall have all the rights of a stockholder with respect to shares of
        stock
        during any period in which such shares are subject to forfeiture and
        restrictions on transfer, including without limitation, the right to vote
        such
        shares. Dividends paid in cash or property other than Common Stock with respect
        to shares of restricted stock shall be paid to the participant
        currently.

       

      9.    Performance
        Shares.
        A
        performance share consists of an award which shall be paid in shares of Common
        Stock, as described below. The grant of performance share shall be subject
        to
        such terms and conditions as the Committee deems appropriate, including the
        following:

       

      9.1.    Performance
        Objectives.
        Each
        performance share will be subject to performance objectives for the Company
        or
        one of its operating units to be achieved by the end of a specified period.
        The
        number of performance shares granted shall be determined by the Committee
        and
        may be subject to such terms and conditions, as the Committee shall determine.
        If the performance objectives are achieved, each participant will be paid
        in
        shares of Common Stock or cash. If such objectives are not met, each grant
        of
        performance shares may provide for lesser payments in accordance with formulas
        established in the award.

       

      9.2.    Not
        Stockholder.
        The
        grant of performance shares to a participant shall not create any rights
        in such
        participant as a stockholder of the Company, until the payment of shares
        of
        Common Stock with respect to an award.

       

      9.3.    No
        Adjustments.
        No
        adjustment shall be made in performance shares granted on account of cash
        dividends which may be paid or other rights which may be issued to the holders
        of Common Stock prior to the end of any period for which performance objectives
        were established.

       

      
        
          
          

        

        
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      9.4.    Expiration
        of Performance Share.
        If any
        participant's employment or consulting engagement with the Company is terminated
        for any reason other than normal retirement, death or disability prior to
        the
        achievement of the participant's stated performance objectives, all the
        participant's rights on the performance shares shall expire and terminate
        unless
        otherwise determined by the Committee. In the event of termination of employment
        or consulting by reason of death, disability, or normal retirement, the
        Committee, in its own discretion may determine what portions, if any, of
        the
        performance shares should be paid to the participant.

       

      10.    General.

       

      10.1.    Effective
        Date.
        The
        Plan will become effective upon its approval by the Board of Directors.


       

      10.2.    Duration.
        The
        Plan shall remain in effect until all Incentives granted under the Plan have
        either been satisfied by the issuance of shares of Common Stock or the payment
        of cash or been terminated under the terms of the Plan and all restrictions
        imposed on shares of Common Stock in connection with their issuance under
        the
        Plan have lapsed. No Incentives may be granted under the Plan after the tenth
        anniversary of the date the Plan is approved by the Board of
        Directors.

       

      10.3.    Non-transferability
        of Incentives.
        No
        stock option, SAR, restricted stock or performance award may be transferred,
        pledged or assigned by the holder thereof (except, in the event of the holder's
        death, by will or the laws of descent and distribution to the limited extent
        provided in the Plan or the Incentive), or pursuant to a qualified domestic
        relations order as defined by the Code or Title I of the Employee Retirement
        Income Security Act, or the rules thereunder, and the Company shall not be
        required to recognize any attempted assignment of such rights by any
        participant. Notwithstanding the preceding sentence, stock options may be
        transferred by the holder thereof to Employee’s spouse, children, grandchildren
        or parents (collectively, the “Family Members”), to trusts for the benefit of
        Family Members, to partnerships or limited liability companies in which Family
        Members are the only partners or shareholders, or to entities exempt from
        federal income taxation pursuant to Section 501(c)(3) of the Internal Revenue
        Code of 1986, as amended. During a participant’s lifetime, a stock option may be
        exercised only by him or her, by his or her guardian or legal representative
        or
        by the transferees permitted by the preceding sentence.

       

      10.4.    Effect
        of Termination or Death.
        In the
        event that a participant ceases to be an employee of or consultant to the
        Company for any reason, including death or disability, any Incentives may
        be
        exercised or shall expire at such times as may be determined by the
        Committee.

       

      10.5.    Additional
        Condition.
        Notwithstanding anything in this Plan to the contrary: (a) the Company may,
        if
        it shall determine it necessary or desirable for any reason, at the time
        of
        award of any Incentive or the issuance of any shares of Common Stock pursuant
        to
        any Incentive, require the recipient of the Incentive, as a condition to
        the
        receipt thereof or to the receipt of shares of Common Stock issued pursuant
        thereto, to deliver to the Company a written representation of present intention
        to acquire the Incentive or the shares of Common Stock issued pursuant thereto
        for his or her own account for investment and not for distribution; and (b)
        if
        at any time the Company further determines, in its sole discretion, that
        the
        listing, registration or qualification (or any updating of any such document)
        of
        any Incentive or the shares of Common Stock issuable pursuant thereto is
        necessary on any securities exchange or under any federal or state securities
        or
        blue sky law, or that the consent or approval of any governmental regulatory
        body is necessary or desirable as a condition of, or in connection with the
        award of any Incentive, the issuance of shares of Common Stock pursuant thereto,
        or the removal of any restrictions imposed on such shares, such Incentive
        shall
        not be awarded or such shares of Common Stock shall not be issued or such
        restrictions shall not be removed, as the case may be, in whole or in part,
        unless such listing, registration, qualification, consent or approval shall
        have
        been effected or obtained free of any conditions not acceptable to the
        Company.

       

      10.6.    Adjustment.
        In the
        event of any recapitalization, stock dividend, stock split, combination of
        shares or other change in the Common Stock, the number of shares of Common
        Stock
        then subject to the Plan, including shares subject to restrictions, options
        or
        achievements of performance shares, shall be adjusted in proportion to the
        change in outstanding shares of Common Stock. In the event of any such
        adjustments, the purchase price of any option, the performance objectives
        of any
        Incentive, and the shares of Common Stock issuable pursuant to any Incentive
        shall be adjusted as and to the extent appropriate, in the discretion of
        the
        Committee, to provide participants with the same relative rights before and
        after such adjustment.

       

      10.7.    Incentive
        Plans and Agreements.
        Except
        in the case of stock awards, the terms of each Incentive shall be stated
        in a
        plan or agreement approved by the Committee. The Committee may also determine
        to
        enter into agreements with holders of options to reclassify or convert certain
        outstanding options, within the terms of the Plan, as Incentive Stock Options
        or
        as non-statutory stock options and in order to eliminate SARs with respect
        to
        all or part of such options and any other previously issued
        options.

       

      
        
          
          

        

        
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      10.8.    Withholding.

       

      (a)    The
        Company shall have the right to withhold from any payments made under the
        Plan
        or to collect as a condition of payment, any taxes required by law to be
        withheld. At any time when a participant is required to pay to the Company
        an
        amount required to be withheld under applicable income tax laws in connection
        with a distribution of Common Stock or upon exercise of an option or SAR,
        the
        participant may satisfy this obligation in whole or in part by electing (the
        “Election”) to have the Company withhold from the distribution shares of Common
        Stock having a value up to the minimum amount of withholding taxes required
        to
        be collected on the transaction. The value of the shares to be withheld shall
        be
        based on the Fair Market Value of the Common Stock on the date that the amount
        of tax to be withheld shall be determined (“Tax Date”).

       

      (b)    Each
        Election must be made prior to the Tax Date. The Committee may disapprove
        of any
        Election, may suspend or terminate the right to make Elections, or may provide
        with respect to any Incentive that the right to make Elections shall not
        apply
        to such Incentive. An Election is irrevocable.

       

      10.9.    No
        Continued Employment, Engagement or Right to Corporate Assets.
        No
        participant under the Plan shall have any right, because of his or her
        participation, to continue in the employ of the Company for any period of
        time
        or to any right to continue his or her present or any other rate of
        compensation. Nothing contained in the Plan shall be construed as giving
        an
        employee, a consultant, such persons' beneficiaries or any other person any
        equity or interests of any kind in the assets of the Company or creating
        a trust
        of any kind or a fiduciary relationship of any kind between the Company and
        any
        such person.

       

      10.10.    Deferral
        Permitted.
        Payment
        of cash or distribution of any shares of Common Stock to which a participant
        is
        entitled under any Incentive shall be made as provided in the Incentive.
        Payment
        may be deferred at the option of the participant if provided in the
        Incentive.

       

      10.11.    Amendment
        of the Plan.
        The
        Board may amend, suspend or discontinue the Plan at any time; provided, however,
        that no amendments to the Plan will be effective without approval of the
        shareholders of the Company if shareholder approval of the amendment is then
        required pursuant to Section 422 of the Code or the rules of any stock exchange
        or Nasdaq or similar regulatory body.

       

      10.12.    Sale,
        Merger, Exchange or Liquidation.
        Unless
        otherwise provided in the agreement for an Incentive, in the event of an
        acquisition of the Company through the sale of substantially all of the
        Company's assets or through a merger, exchange, reorganization or liquidation
        of
        the Company or a similar event as determined by the Committee (collectively
        a
“transaction”), the Committee shall be authorized, in its sole discretion, to
        take any and all action it deems equitable under the circumstances, including
        but not limited to any one or more of the following:

      


      (1)
         providing
        that the Plan and all Incentives shall terminate and the holders of (i) all
        outstanding vested options shall receive, in lieu of any shares of Common
        Stock
        they would be entitled to receive under such options, such stock, securities
        or
        assets, including cash, as would have been paid to such participants if their
        options had been exercised and such participant had received Common Stock
        immediately prior to such transaction (with appropriate adjustment for the
        exercise price, if any), (ii) performance shares and/or SARs that entitle
        the participant to receive Common Stock shall receive, in lieu of any shares
        of
        Common Stock each participant was entitled to receive as of the date of the
        transaction pursuant to the terms of such Incentive, if any, such stock,
        securities or assets, including cash, as would have been paid to such
        participant if such Common Stock had been issued to and held by the participant
        immediately prior to such transaction, and (iii) any Incentive under this
        Agreement which does not entitle the participant to receive Common Stock
        shall
        be equitably treated as determined by the Committee. 

      


      (2)
        providing that participants holding outstanding vested Common Stock based
        Incentives shall receive, with respect to each share of Common Stock issuable
        pursuant to such Incentives as of the effective date of any such transaction,
        at
        the determination of the Committee, cash, securities or other property, or
        any
        combination thereof, in an amount equal to the excess, if any, of the Fair
        Market Value of such Common Stock on a date within ten days prior to the
        effective date of such transaction over the option price or other amount
        owed by
        a participant, if any, and that such Incentives shall be cancelled, including
        the cancellation without consideration of all options that have an exercise
        price below the per share value of the consideration received by the Company
        in
        the transaction. 

      


      (3)
        providing that the Plan (or replacement plan) shall continue with respect
        to
        Incentives not cancelled or terminated as of the effective date of such
        transaction and provide to participants holding such Incentives the right
        to
        earn their respective Incentives on a substantially equivalent basis (taking
        into account the transaction and the number of shares or other equity issued
        by
        such successor entity) with respect to the equity of the entity succeeding
        the
        Company by reason of such transaction.

      


      (4)
        providing that all unvested, unearned or restricted Incentives, including
        but
        not limited to restricted stock for which restrictions have not lapsed as
        of the
        effective date of such transaction, shall be void and deemed terminated,
        or, in
        the alternative, for the acceleration or waiver of any vesting, earning or
        restrictions on any Incentive.

       

      
        
          
          

        

        
          6

          
            

          

        

        
          
          

        

      

       

      The
        Board
        may restrict the rights of participants or the applicability of this
        Section 10.12 to the extent necessary to comply with Section 16(b) of the
        Securities Exchange Act of 1934, the Internal Revenue Code or any other
        applicable law or regulation. The grant of an Incentive award pursuant to
        the
        Plan shall not limit 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, exchange or consolidate or to dissolve,
        liquidate, sell or transfer all or any part of its business or assets.


      


      10.13.    Definition
        of Fair Market Value.
        For
        purposes of this Plan, the “Fair Market Value” of a share of Common Stock at a
        specified date shall, unless otherwise expressly provided in this Plan, be
        the
        amount which the Committee or the Board of Directors determines in good faith
        to
        be 100% of the fair market value of such a share as of the date in question;
        provided, however, that notwithstanding the foregoing, if such shares are
        listed
        on a U.S. securities exchange or are quoted on the Nasdaq National Market
        or
        Nasdaq Small-Cap Market (“Nasdaq”), then Fair Market Value shall be determined
        by reference to the last sale price of a share of Common Stock on such U.S.
        securities exchange or Nasdaq on the applicable date. If such U.S. securities
        exchange or Nasdaq is closed for trading on such date, or if the Common Stock
        does not trade on such date, then the last sale price used shall be the one
        on
        the date the Common Stock last traded on such U.S. securities exchange or
        Nasdaq.

      


       

      Approved
        by the Board of Directors on July 30, 2008

       

      
        
          
          

        

        
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