**Exhibit 10.3**

**FIBERNET TELECOM GROUP, INC.**

**2003 EQUITY INCENTIVE PLAN**

**PREAMBLE**

The FiberNet Telecom Group,Inc. 2003 Equity Incentive Plan (as amended, the “Plan”), as set forth herein, amends and restates the FiberNet Telecom Group, Inc. 1999 Stock Option Plan, as amended. The Plan is intended to incorporate the provisions of the 1999 StockOption Plan and permit FiberNet Telecom Group, Inc., a Delaware corporation (the “Company”), to provide additional forms of equity based incentives in order to attract and retain highly motivated employees and to provide them withopportunities to acquire a proprietary interest in the Company. 

**SECTION 1.**

Establishment, Objectives, and Duration 

1.1. Establishment of the Plan. The Companyhereby amends and restates the FiberNet Telecom Group, Inc. 1999 Stock Option Plan. The 1999 Stock Option Plan was amended and renamed the FiberNet Telecom Group, Inc. Equity Incentive Plan on May 23, 2000. The FiberNet Telecom Group, Inc.Equity Incentive Plan was further amended and renamed the FiberNet Telecom Group, Inc. 2003 Equity Incentive Plan by the Board of Directors on February 5, 2003 and approved by the Company’s stockholders by a majority written consent onFebruary 13, 2003. The Plan will become effective on or about May 6, 2003 (the “Effective Date”). An amendment to the Plan was approved by the Board of Directors on April 26, 2006 and by the Company’s stockholders onJune 14, 2006. 

1.2. Purpose of the Plan. The purpose of the Plan is to benefit the Company and its subsidiaries and affiliatedcompanies by enabling the Company to offer to certain present and future employees, directors and consultants stock based incentives and other equity interests in the Company, thereby giving them a stake in the growth and prosperity of the Companyand encouraging the continuance of their services with the Company or subsidiaries or affiliated companies. 

1.3. Duration of the Plan. ThePlan shall commence on the Effective Date and shall remain in effect, subject to the right of the Board of Directors to amend or terminate the Plan at any time pursuant to Section 16 hereof, until all Shares subject to it shall have beenpurchased or acquired according to the Plan’s provisions. However, in no event may an Award (defined below in Section 2) be granted under the Plan on or after May 6**,**2013. 

**SECTION 2.**

Definitions 

Whenever used in the Plan, the following terms shall have the meanings set forth below, and when the meaning is intended, the initial letter of the wordshall be capitalized: 

“Administrator” means the Board or the Compensation Committee of the Board, as described below inSection 3. 

“Affiliate” means a corporation which for purposes of Section 424 of the Code, is a parentor subsidiary of the Company, direct or indirect. 

“Award” means, individually or collectively, a grant under the Plan ofNonqualified Stock Options, Incentive Stock Options, Stock Appreciation Rights, Restricted Stock, Performance Shares or Performance Units. 

“Award Agreement” means a written agreement between the Company and each Participant that sets forth the terms and provisions applicable to an Award or Awards granted to each Participant under the Plan, and is a condition to thegrant of an Award or Award hereunder. 

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

“Cause” means, as determined by the Administrator, in its sole discretion, termination of the Participant’s employment, service as aDirector, or consulting arrangement with the Company or any Affiliate or Subsidiary because of: 

(a) In the case where thereis no employment, change in control or similar agreement in effect between the Participant and the Company or any Affiliate or Subsidiary, or where there is such an agreement, but a termination for “cause” would not be permitted under suchagreement at that time or the agreement does not define “cause” (or similar words), 

(i) the Participant’sdishonesty, theft or conviction of any crime or offense involving money or property of the Company or any Affiliate or Subsidiary, 

(ii) the Participant’s gross negligence, gross incompetence, or willful misconduct in the performance of his or her duties, 

(iii) the Participant’s willful and continued failure or refusal to perform his or her duties (other than any such failure resulting from the Participant’s Disability), or 

(iv) such other act or omission as determined in the Administrator’s sole discretion. 

(b) In the case where there is an employment, change in control or similar agreement in effect between the Participant and the Company oran Affiliate or Subsidiary that defines “cause” (or similar words), and a termination for “cause” would be permitted under such agreement at that time, such termination of employment, service as a Director, or consultingarrangement is or would be deemed to be for “cause” as defined in such agreement. 

“Change of Control” of the Companyshall mean: 

(a) The Company is merged, consolidated or reorganized into or with another corporation or other legal person(an “Acquiror”) and as a result of such merger, consolidation or reorganization, less than 51% of the outstanding voting securities or other capital interests of the surviving, resulting or acquiring corporation or other legal person areowned in the aggregate by the stockholders of the Company, directly or indirectly, immediately prior to such merger, consolidation or reorganization, other than by the Acquiror or any corporation or other legal person controlling, controlled by orunder common control with the Acquiror; 

 

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(b) The Company sells all or substantially all of its business and/or assets to anAcquiror, of which less than 51% of the outstanding voting securities or other capital interests are owned in the aggregate by the stockholders of the Company, directly or indirectly, immediately prior to such sale, other than by any corporation orother legal person controlling, controlled by or under common control with the Acquiror; 

(c) There is a report filed onSchedule 13D or Schedule 14D (or any successor schedule form or report), each as promulgated pursuant to the Exchange Act, disclosing that any person or group (as the terms “person” and “group” are used in Section 13(d) orSection 14(d) of the Exchange Act and the rules and regulations promulgated thereunder) has become the beneficial owner (as the term “beneficial owner” is defined under Rule l3d- 3 or any successor rule or regulation promulgated underthe Exchange Act) of 20% or more of the issued and outstanding shares of voting securities of Company; 

(d) During anyperiod of two consecutive years, the Continuing Directors cease to constitute at least a majority of the Board; or 

(e) Anyother event that the Board determines shall constitute a Change in Control for purposes of the Plan. 

“Code” means the InternalRevenue Code of 1986, as amended from time to time, or any successor legislation thereto. 

“Company” means FiberNet TelecomGroup, Inc., a Delaware corporation, as well as any successor to such entity as provided in Section 18 herein. 

“ContinuingDirectors” means, during any two year period, the Directors still in office who either were Directors at the beginning of the two year period or who were Directors elected to the Board and whose election or nomination was approved by a vote ofat least two-thirds of the Directors then still in office who were Directors at the beginning of the two year period or whose election to the Board was previously so approved. 

“Director” means any individual who is a member of the Board. 

“Disability” means, unless otherwise provided for in an employment, change of control or similar agreement in effect between the Participant and the Company or an Affiliate or Subsidiary, the inability of anemployee, Director or consultant to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death, or which has lasted or can be expected to last for acontinuous period of not less than 12 months, as determined by the Administrator, based upon medical evidence. 

 

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“Effective Date” means May 6**,**2003, the effective date of this amended and restatedPlan. 

“Employee” means any employee of the Company or any Affiliate. 

“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, or any successor act thereto. 

“Fair Market Value” means (i) for purposes of establishing any Option Price as of the date of the Award, unless otherwise required by anyapplicable provision of the Code or any regulations issued thereunder, or unless the Administrator otherwise determines, the closing sales price for the Shares, if applicable, or the average of the last bid and ask prices of the Shares on or before4:00 p.m. eastern time (as reported by Bloomberg, L.P.); and (ii) for purposes of the valuation of any Shares delivered in payment of the Option Price upon the exercise of an Option, for purposes of the valuation of any Shares withheld inpayment of the Option Price or to pay taxes due on an Award, or for purposes of the exercise of any SAR or conversion of a Performance Unit, unless the Administrator otherwise determines, the closing sales price for the Shares, if applicable, or theaverage of the last bid and ask prices of the Shares on or before 4:00 p.m. eastern time (as reported by Bloomberg, L.P.) on the date of exercise (or if the date of exercise is not a trading day, on the trading day next preceding the date ofexercise). 

“Good Reason” shall mean, with respect to the termination of a Participant’s employment or consultingarrangement, 

(a) In the case where there is no employment, change in control or similar agreement in effect between theParticipant and the Company or any Affiliate or Subsidiary, or where there is such an agreement but the agreement does not define “good reason” (or similar words) or a “good reason” termination would not be permitted under suchagreement at that time because other conditions were not satisfied, a voluntary termination of an employment arrangement or consulting arrangement due to “good reason” shall mean as determined by the Administrator, in its sole discretionthe following: 

(i) the assignment of the Participant of any duties which results in a material diminution in such position,authority, duties or responsibilities; or 

(ii) the Participant as a condition to remaining employed or continuing his orher consulting arrangement is required to relocate his or her place of service at least 50 miles from his or her current place of service; or 

(b) In the case where there is an employment, change in control or similar agreement in effect between the Participant and the Company or an Affiliate or Subsidiary that defines “good reason” (or similarwords) and a “good reason” termination would be permitted under such agreement at that time, such termination is or would be deemed to be for “good reason” (or similar words) as defined in such agreement. 

 

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“Incentive Stock Option” or “ISO” means an option to purchase Shares that is intendedto meet the requirements of Code Section 422, as described in Section 6 herein. 

“Insider” shall mean an individual whois, on the relevant date, an officer, Director or more than ten percent (10%) beneficial owner of any class of the Company’s equity securities that is registered pursuant to Section 12 of the Exchange Act, all as defined underSection 16 of the Exchange Act. 

“Named Executive Officer” means a Participant who is one of the group of covered employeesas defined in the regulations promulgated under Code Section 162(m), or any successor statute. 

“Nonqualified Stock Option”or “NQSO” means an option to purchase Shares granted under Section 6 herein and which is not intended to meet the requirements of Code Section 422. 

“Option” means an Incentive Stock Option or a Nonqualified Stock Option, as described in Section 6 herein. 

“Option Price” means the per share purchase price of a Share purchased pursuant to an Option. 

“Participant” means an Employee, prospective Employee, employee or prospective employee of a Subsidiary, Director or consultant who has outstanding an Award granted under the Plan. 

“Performance-Based Exception” means the exception for performance-based compensation from the tax deductibility limitations of CodeSection 162(m). 

“Performance Period” means the time period during which performance goals must be achieved with respect toan Award, as determined by the Administrator. 

“Performance Share” means an Award granted to a Participant, as described inSection 9 herein. 

“Performance Unit” means an Award granted to a Participant, as described in Section 9 herein.

“Period of Restriction” means the period during which the transfer of Shares of Restricted Stock is limited in some way, and theShares are subject to a substantial risk of forfeiture, as provided in Section 8 herein. 

“Plan” means the FiberNet TelecomGroup, Inc. 2003 Equity Incentive Plan, an amendment and restatement of the Company’s Equity Incentive Plan, as set forth herein. 

“Restricted Stock” means an Award granted to a Participant pursuant to Section 8 herein. 

 

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“Retirement” means the Participant’s termination of employment with the Company or itsAffiliates or Subsidiaries on or after the date on which the Participant reaches age 55 if he or she has at least ten years of service with the Company, or reaches age 65 regardless of his or her years of service. Notwithstanding the foregoing, theAdministrator may, in its sole discretion, determine that a Participant has met the criteria for a Retirement termination from the Company. 

“Share” or “Shares” means shares of common stock of the Company, par value $.001. 

“Stock AppreciationRight” or “SAR” means an Award, granted alone or in connection with a related Option, designated as an SAR, pursuant to the terms of Section 7 herein. 

“Subsidiary” means any corporation, partnership, joint venture, affiliate, or other entity in which the Company is at least a majority-owner of all issued and outstanding equity interests or has acontrolling interest. 

“Tandem SAR” means an SAR that is granted in connection with a related Option pursuant to Section 7herein, the exercise of which shall require forfeiture of the right to purchase a Share under the related Option (and when a Share is purchased under the Option, the Tandem SAR shall similarly be forfeited). 

“Non-Tandem SAR” means an SAR that is granted independently of any Options, as described in Section 7 herein. 

**SECTION 3.**

Administration 

3.1. Plan Administrator. The Administrator of the Plan shall be the Compensation Committee of the Board, or any other committee appointed by theBoard. The Board may, from time to time, remove members from, or add members to, the Compensation Committee. Any vacancies on the Compensation Committee shall be filled by members of the Board. The foregoing notwithstanding, the Board shall performthe functions of the Administrator for purposes of granting Awards to non-Employee Directors. However, the Board shall not have exclusive authority with respect to other aspects of non-Employee Director Awards. If and to the extent that no committeeexists that has the authority to administer the Plan, the Board shall administer the Plan. Acts of a majority of the Administrator at which a quorum is present, or acts reduced to or approved in writing by unanimous consent of the members of theAdministrator, shall be valid acts of the Administrator. 

3.2. Authority of the Administrator. Except as limited by law or by theCertificate of Incorporation or Bylaws of the Company, and subject to the provisions herein, the Administrator shall have full power to select Participants who shall be granted Awards under the Plan; determine the sizes and types of Awards;determine the terms and conditions of Awards in a manner consistent with the Plan; construe and interpret the Plan and any agreement or instrument entered into under the Plan; establish, amend, or waive rules and regulations for the Plan’s

 

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administration; and (subject to the provisions of Section 16 herein) amend the terms and conditions of any outstanding Award to the extent such termsand conditions are within the sole discretion of the Administrator as provided in the Plan. Further, the Administrator shall make all other determinations, which may be necessary or advisable for the administration of the Plan. As permitted by law,the Administrator may delegate the authority granted to it herein. 

3.3. Decisions Binding. All determinations and decisions made by theAdministrator pursuant to the provisions of the Plan and all related orders and resolutions of the Board shall be final, conclusive and binding on all persons, including the Company, its stockholders, employees, Participants, and their estates andbeneficiaries. 

**SECTION 4.**

Shares Subject to the Plan and Maximum Awards 

4.1. Shares Available for Awards. 

(a) The Shares available for Awards may be either authorized and unissued Shares or Shares held in or acquired for the treasury of theCompany. The aggregate number of Shares that may be issued or used for reference purposes under the Plan or with respect to which Awards may be granted shall not exceed (i) 1,875,482 Shares (subject to adjustment as provided inSection 4.3); plus (ii) 10% of the number of Shares issued or delivered by the Company on or after June 9, 2009 other than issuances or deliveries under the Plan or other incentive compensation plans of the Company; provided, however,that the aggregate number of Shares with respect to which ISOs may be granted shall not exceed the number specified under item (i) above. 

(b) Upon (i) a payout of a Non-Tandem SAR, Tandem SAR, or Restricted Stock award in the form of cash, (ii) a cancellation, termination, expiration, forfeiture, or lapse for any reason (with the exception ofthe termination of a Tandem SAR upon exercise of the related Options, or the termination of a related Option upon exercise of the corresponding Tandem SAR) of any Award or (iii) payment of an Option Price and/or payment of any taxes arisingupon exercise of an Option or payout of any Award with previously acquired Shares or by withholding Shares which otherwise would be acquired on exercise or issued upon such payout, the number of Shares underlying any such Award that were not issuedas a result of any of the foregoing actions shall again be available for the purposes of Awards under the Plan. 

(c) Inaddition, in the case of any Award granted in substitution for an award of a company or business acquired by the Company or any Affiliate or Subsidiary, Shares issued or issuable in connection with such substitute Award shall not be counted againstthe number of Shares reserved under the Plan, but shall be available under the Plan by virtue of the Company’s assumption of the plan or arrangement of the acquired company or business. 

4.2. Individual Participant Limitations. Unless and until the Administrator determines that an Award to a Named Executive Officer shall not be designedto comply with the Performance-Based Exception, the following rules shall apply to grants of such Awards under the Plan: 

(a) Subject to adjustment as provided in Section 4.3 herein, the maximum aggregate number of Shares (including Options, SARs, Restricted Stock, Performance Units and Performance Shares to be paid out in Shares) that may be granted inany one fiscal year to a Participant shall be 333,333 as of June 14, 2006. 

 

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(b) The maximum aggregate cash payout (including Performance Units and Performance Sharespaid out in cash) with respect to Awards granted in any one fiscal year that may be made to any Participant shall be $20,000,000. 

4.3.Adjustments in Authorized Shares. In the event of any change in corporate capitalization, such as a stock split, or a corporate transaction, such as any merger, consolidation, separation, including a spin-off, or other distribution of stock orproperty 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, an adjustment shall be made in the number andclass of Shares available for Awards, the number and class of and/or price of Shares subject to outstanding Awards granted under the Plan and the number of Shares set forth in Sections 4.1 and 4.2, as may be determined to be appropriate andequitable by the Administrator, in its sole discretion, to prevent dilution or enlargement of rights; provided, however, that the number of Shares subject to any Award shall always be a whole number. 

**SECTION 5.**

Eligibility andParticipation 

5.1. Eligibility. Persons eligible to participate in the Plan include all current and future Employees (including officers),employees of a Subsidiary, persons who have been offered employment by the Company or an Affiliate or Subsidiary (provided that such prospective employee may not receive any payment or exercise any right relating to an Award until such person hascommenced employment with the Company or an Affiliate or Subsidiary), Directors and consultants of the Company and its Affiliates and Subsidiaries, as determined by the Administrator, including employees of the Company and its Affiliates orSubsidiaries who reside in countries other than the United States of America. 

5.2. Participation. Subject to the provisions of the Plan,the Administrator shall determine and designate, from time to time, the Participants to whom Awards shall be granted, the terms of such Awards, and the number of Shares subject to such Award. 

**SECTION 6.**

Stock Options 

6.1. Grant of Options and Award Agreement. 

(a) Option Grant. Subject to the terms and provisions of the Plan, Options may be granted to one or more Participants in such number, upon such terms and 

 

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provisions, and at any time and from time to time, as determined by the Administrator, in its sole discretion. The Administrator may grant eitherNonqualified Stock Options or Incentive Stock Options, and shall have complete discretion in determining the number of Options of each granted to each Participant (subject to Section 4 herein); provided, however, that ISOs may only be grantedto Employees. 

(b) Award Agreement. The Company and each Participant to whom an Option is granted shall execute an AwardAgreement, effective as of the date of grant, which shall specify the Option Price, the term of the Option, the number of Shares subject to the Option, and such other provisions as the Administrator shall determine, and which are not inconsistentwith the terms and provisions of the Plan. The Award Agreement shall also specify whether the Option is intended to be an ISO within the meaning of Code Section 422. If such Option is not designated as an ISO, such Option shall be deemed aNQSO. 

6.2. Option Price. The Administrator shall designate the Option Price for each Share subject to an Option under the Plan, providedthat such Option Price for Options designated as ISOs shall not be less than one hundred percent (100%) of the Fair Market Value of Shares subject to an Option on the date the Option is granted. With respect to a Participant who owns, directlyor indirectly, more than ten percent (10%) of the total combined voting power of all classes of the stock of the Company or an Affiliate, the Option Price of Shares subject to an ISO shall be at least one hundred and ten percent (110%) ofthe Fair Market Value of such Shares on the date of grant. 

6.3. Term of Options. Each Option granted to an Employee shall expire at suchtime as the Administrator shall determine at the time of grant, but in no event shall be exercisable later than the tenth (10th) anniversary of the date of grant. Notwithstanding the foregoing, with respect to ISOs, in the case of a Participantwho owns, directly or indirectly, more than ten percent (10%) of the total combined voting power of all classes of the stock of the Company or an Affiliate, no such ISO shall be exercisable later than the fifth (5th) anniversary of thedate of grant. 

6.4. Exercise of Options. Options granted under this Section 6 shall be exercisable at such times and be subject tosuch restrictions and conditions as the Administrator shall in each instance approve, which need not be the same for each grant or for each Participant, and shall be set forth in the applicable Award Agreement. Notwithstanding the precedingsentence, the Award Agreements shall restrict the amount of ISOs which may become exercisable in any calendar year (under this or any other ISO plan of the Company or an Affiliate) so that the aggregate Fair Market Value of Shares (determined at thetime each ISO is granted) with respect to which ISOs are exercisable for the first time by any Participant during any calendar year may not exceed $100,000. Any ISOs that become exercisable in excess of such amount shall be deemed NQSOs to theextent of such excess. If the Award Agreement does not specify the time or times at which the Option shall first become exercisable, such an Option shall become exercisable by the Participant (i) to a maximum cumulative extent of one-third ofthe Shares covered by the Option on the first anniversary of the date of grant, and (ii) to a maximum cumulative extent of two-thirds of the Shares covered by the Option on the second anniversary of the date of grant, and (iii) to amaximum cumulative extent of 100% of the Shares covered by the Option on the third anniversary of the date of grant. 

 

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6.5. Payment. Options granted under this Section 6 shall be exercised by the delivery of a writtennotice of exercise to the Company, setting forth the number of Shares with respect to which the Option is to be exercised, accompanied by full payment for the Shares. The Option Price upon exercise of any Option shall be payable to the Company infull either: 

(a) in cash or its equivalent, 

(b) at the discretion of the Administrator, by tendering previously acquired Shares having an aggregate Fair Market Value at the time ofexercise equal to the total Option Price, 

(c) at the discretion of the Administrator, by withholding Shares that otherwisewould be acquired on exercise having an aggregate Fair Market Value at the time of exercise equal to the total Option Price, 

(d) at the discretion of the Administrator, by tendering other Awards payable under the Plan, or 

(e) by acombination of (a), (b), (c) and/or (d). 

The Administrator also may allow cashless exercise as permitted under Federal ReserveBoard’s Regulation T, subject to applicable securities law restrictions, or by any other means that the Administrator determines to be consistent with the Plan’s purpose and applicable law. As soon as practicable after receipt of a writtennotification of exercise and full payment, the Company shall deliver to the Participant the number of Shares purchased under the Option(s). 

In connection with the exercise of Options granted under the Plan, the Company may make loans to the Participants as the Administrator, in its sole discretion, may determine. Such loans shall be subject to the terms and conditions as theAdministrator shall determine not inconsistent with the Plan; provided, however, that in no event may any such loan exceed the Fair Market Value, at the date of exercise, of the shares covered by the Option, or portion thereof exercised by theParticipant. Any loan made pursuant to this Section 6.5 shall comply with Regulation U issued by the Board of Governors of the Federal Reserve System pursuant to the Exchange Act. 

6.6. Termination of Employment, Service as a Director, or Consulting Arrangement. The Administrator, in its sole discretion, shall set forth in theapplicable Award Agreement the extent to which a Participant shall have the right to exercise the Option or Options following termination of his or her employment, service as a Director, or consulting arrangement with the Company and/or itsAffiliates or Subsidiaries. Such provisions need not be uniform among all Options issued pursuant to the Plan, and may reflect distinctions based on the reasons for such termination, including, but not limited to, termination for Cause or GoodReason, or reasons relating to the breach or threatened breach of restrictive covenants. Subject to Section 14, in the event that a Participant’s Award Agreement does not set forth such provisions, the following provisions shall apply:

(a) Death, Disability and Retirement. In the event that each of the Participant’s employment, service as a Director and consultingarrangement with the Company and/or any Affiliate or Subsidiary terminates by reason of death, Disability or Retirement, all of his or her Options shall immediately become fully vested and shall remain exercisable until the earlier of (A) theremainder of the term of the Option, or (B) 12 months after the date of such termination provided that in the case of an ISO such twelve month period shall be reduced to three months. In the case of the Participant’s death, theParticipant’s beneficiary or estate may exercise the Option. 

 

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(b) Termination for Cause. In the event that each of the Participant’s employment, service as aDirector and consulting arrangement with the Company and/or any Affiliate or Subsidiary terminates for Cause, all Options shall expire immediately and all rights to purchase Shares (vested or nonvested) under the Option shall cease. 

(c) Other Termination. In the event that each of the Participant’s employment, service as a Director and consulting arrangement with the Companyand/or any Affiliate or Subsidiary terminates for any reason other than death, Disability, Retirement or for Cause, all Options held by the Participant shall expire and all rights to purchase Shares thereunder shall terminate immediately.Notwithstanding the preceding sentence, all Options as to which the Participant has a vested right to exercise the Option immediately prior to such termination shall remain exercisable until the earlier of (A) the remainder of the term of theOption, or (B) 90 days from the date of termination. 

6.7. Restrictions on Share Transferability. The Administrator may impose suchrestrictions on any Shares acquired pursuant to the exercise of an Option granted under this Section 6 as it may deem advisable, including, without limitation, restrictions under applicable Federal securities laws, under the requirements of anystock exchange or market upon which such Shares are then listed and/or traded, and under any blue sky or state securities laws applicable to such Shares. 

6.8. Nontransferability of Options. 

(a) Incentive Stock Options. No ISO granted under the Plan may be sold,transferred, pledged, assigned, or otherwise alienated or hypothecated, other than by will or by the laws of descent and distribution. Further, all ISOs granted to a Participant under the Plan shall be exercisable during his or her lifetime only bysuch Participant. 

(b) Nonqualified Stock Options. Except as otherwise provided in a Participant’s Award Agreement, or as provided bythe Administrator, no NQSO granted under this Section 6 may be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, other than by will or by the laws of descent and distribution. Further, except as otherwise provided ina Participant’s Award Agreement, all NQSOs granted to a Participant under this Section 6 shall be exercisable during his or her lifetime only by such Participant. 

6.9. Prior Option Grants. The terms and conditions of this amended and restated Plan shall supersede, amend and modify the terms and conditions of anywritten agreement covering an Option granted to a Participant under the Plan prior to the Effective Date; provided that this 

 

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Section 6.9 shall only apply if the Participant and the Company enter into a written agreement to effect the amendments and/or modifications.Notwithstanding the preceding sentence, to the extent that an amendment and/or modification would result in adverse tax consequences to the Participant and/or adverse accounting treatment with respect to the Option, such amendment and/ormodification shall not be effective. 

**SECTION 7.**

Stock Appreciation Rights 

7.1. Grant of SARs and Award Agreement. 

(a) SAR Grant. Subject to the terms and conditions of the Plan, SARs may be granted to Participants at any time and from time to time asshall be determined by the Administrator. The Administrator may grant Non-Tandem SARs, Tandem SARs, or any combination of these forms of SARs. The Administrator shall have complete discretion in determining the number of SARs granted to eachParticipant (subject to Section 4 herein) and, consistent with the provisions of the Plan, in determining the terms and conditions pertaining to such SARs. The Administrator shall designate, at the time of grant, the grant price of a Non-TandemSAR, which grant price shall be at least equal to the Fair Market Value of a Share on the date of grant of the SAR. The grant price of Tandem SARs shall equal the Option Price of the related Option. Grant prices of SARs shall not subsequently bechanged by the Administrator, except pursuant to Section 4.3 hereof. 

(b) Award Agreement. The Company and eachParticipant to whom an SAR is granted shall execute an Award Agreement that shall specify the grant price, the term of the SAR, and such other provisions as the Administrator shall determine, and which are not inconsistent with the terms andprovisions of the Plan. 

7.2. Term of SARs. The term of a SAR granted under the Plan shall be determined by the Administrator, in its solediscretion; provided, however, that unless otherwise designated by the Administrator, such term shall not exceed ten (10) years from the date of grant. 

7.3. Exercise of Tandem SARs. Tandem SARs may be exercised for all or part of the Shares subject to the related Option upon the surrender of the right to exercise the equivalent portion of the related Option. A TandemSAR may be exercised only with respect to the Shares for which its related Option is then exercisable. Notwithstanding any other provision of the Plan to the contrary, with respect to a Tandem SAR granted in connection with an ISO: (i) theTandem SAR will expire no later than the expiration of the underlying ISO; (ii) the value of the payout with respect to the Tandem SAR may be for no more than one hundred percent (100%) of the difference between the Option Price of theunderlying ISO and the Fair Market Value of the Shares subject to the underlying ISO at the time the Tandem SAR is exercised; and (iii) the Tandem SAR may be exercised only when the Fair Market Value of the Shares subject to the ISO exceeds theOption Price of the ISO. 

7.4. Exercise of Non-Tandem SARs. Non-Tandem SARs may be exercised upon whatever terms and conditions theAdministrator, in its sole discretion, imposes upon them. 

 

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7.5. Payment of SAR Amount. Upon exercise of a SAR, a Participant shall be entitled to receive paymentfrom the Company in an amount determined by multiplying: 

(a) The excess of the Fair Market Value of a Share on the date of exercise overthe grant price; by 

(b) The number of Shares with respect to which the SAR is exercised. 

At the sole discretion of the Administrator, the payment upon SAR exercise may be in cash, in Shares of equivalent value, or in some combination thereof.

7.6. Termination of Employment, Service as a Director, or Consulting Arrangement. The Administrator, in its sole discretion, shall setforth in the applicable Award Agreement the extent to which a Participant shall have the right to exercise the SAR or SARs following termination of his or her employment, service as a Director, or consulting arrangement with the Company and/or itsAffiliates or Subsidiaries. Such provisions need not be uniform among all SARs issued pursuant to the Plan, and may reflect distinctions based on the reasons for such termination, including, but not limited to, termination for Cause or Good Reason,or reasons relating to the breach or threatened breach of restrictive covenants. Subject to Section 14, in the event that a Participant’s Award Agreement does not set forth such provisions, the following provisions shall apply: 

(a) Death, Disability and Retirement. In the event that each of the Participant’s employment, service as a Director and consulting arrangementwith the Company and/or any Affiliate or Subsidiary terminates by reason of death, Disability or Retirement, all of his or her SARs shall immediately become fully vested (subject to Section 14) and shall remain exercisable until the earlier of(A) the remainder of the term of the SAR, or (B) 12 months after the date of such termination. In the case of the Participant’s death, the Participant’s beneficiary or estate may exercise the SAR. 

(b) Termination for Cause. In the event that each of the Participant’s employment, service as a Director and consulting arrangement with the Companyand/or any Affiliate or Subsidiary terminates for Cause, all SARs shall expire immediately and all rights thereunder shall cease. 

(c)Other Termination. In the event that each of the Participant’s employment, service as a Director and consulting arrangement with the Company and/or any Affiliate or Subsidiary terminates for any reason other than death, Disability, Retirementor for Cause, all SARs held by the Participant shall expire and all rights thereunder shall terminate immediately. Notwithstanding the preceding sentence, all SARs to which the Participant has a vested right to exercise the SAR immediately prior tosuch termination shall be exercisable until the earlier of (A) the remainder of the term of the SAR, or (B) 90 days from the date of termination. 

7.7. Nontransferability of SARs. Except as otherwise provided in a Participant’s Award Agreement, no SAR granted under the Plan may be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated,other than by will or by the laws of descent and distribution. Further, except as otherwise provided in a Participant’s Award Agreement, all SARs granted to a Participant under the Plan shall be exercisable during his or her lifetime only bysuch Participant. 

 

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**SECTION 8.**

Restricted Stock 

8.1. Grant of Restricted Stock and Award Agreement. 

(a) Grant of Restricted Stock. Subject to the terms and provisions of the Plan, the Administrator, at any time and from time to time, maygrant Shares of Restricted Stock to Participants in such amounts as the Administrator shall determine. 

(b) Award Agreement.The Company and each Participant to whom an award of Restricted Stock is granted shall execute an Award Agreement that shall specify the Period or Periods of Restriction, the number of Shares of Restricted Stock granted, and such other provisions asthe Administrator shall determine pursuant to Section 8.3 or otherwise, and which shall not be inconsistent with the terms and provisions of the Plan. If no Period of Restriction is set forth in the Award Agreement, the Period of Restrictionshall be three years for restrictions lapsing due to the passage of time and one year for restrictions lapsing due to the achievement of performance goals. 

8.2. Transferability. Except as provided in this Section 8, the Shares of Restricted Stock granted herein may not be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, voluntarily orinvoluntarily, until the end of the applicable Period of Restriction established by the Administrator and specified in the Restricted Stock Award Agreement, or upon earlier satisfaction of any other conditions, as specified by the Administrator inits sole discretion and set forth in the Restricted Stock Award Agreement. All rights with respect to the Restricted Stock granted to a Participant under the Plan shall be available during his or her lifetime only to such Participant. 

8.3. Other Restrictions. Subject to Section 10 herein, the Administrator may impose such other conditions and/or restrictions on any Shares ofRestricted Stock granted pursuant to the Plan as it may deem advisable including without limitation, a requirement that Participants pay a stipulated purchase price for each Share of Restricted Stock, restrictions based upon the achievement ofspecific performance goals (Company-wide, Subsidiary-wide, divisional, and/or individual), time-based restrictions on vesting, which may or may not be following the attainment of the performance goals, sales restrictions under applicable stockholderagreements or similar agreements, and/or restrictions under applicable Federal or state securities laws. The Company shall retain the Shares of Restricted Stock in the Company’s possession until such time as all conditions and/or restrictionsapplicable to such Shares have been satisfied. Except as otherwise provided in this Section 8 or in any Award Agreement, Shares of Restricted Stock covered by each Restricted Stock grant made under the Plan shall become freely transferable bythe Participant after the last day of the applicable Period of Restriction. 

8.4. Voting Rights. Unless otherwise designated by theAdministrator at the time of grant, Participants to whom Shares of Restricted Stock have been granted hereunder may exercise full voting rights with respect to those Shares during the Period of Restriction. 

 

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8.5. Dividends and Other Distributions. Unless otherwise designated by the Administrator at the time ofgrant, Participants holding Shares of Restricted Stock granted hereunder shall be credited with regular cash dividends paid with respect to the underlying Shares while they are so held during the Period of Restriction. The Administrator may applyany restrictions to the dividends that the Administrator deems appropriate. Without limiting the generality of the preceding sentence, if the grant or vesting of Shares of Restricted Stock granted to a Named Executive Officer is designed to complywith the requirements of the Performance-Based Exception, the Administrator may apply any restrictions it deems appropriate to the payment of dividends declared with respect to such Shares of Restricted Stock, such that the dividends and/or theShares of Restricted Stock maintain eligibility for the Performance-Based Exception. In the event that any dividend constitutes a derivative security or an equity security pursuant to the rules under Section 16 of the Exchange Act, suchdividend shall be subject to a vesting period equal to the remaining vesting period of the Shares of Restricted Stock with respect to which the dividend is paid. 

8.6. Termination of Employment, Service as a Director, or Consulting Arrangement. The Administrator, in its sole discretion, shall set forth in the applicable Award Agreement the extent to which the Participant shallhave the right to receive unvested Shares of Restricted Stock following termination of the Participant’s employment, service as a Director, or consulting arrangement with the Company and/or its Affiliates or Subsidiaries. Such provisions neednot be uniform among all Shares of Restricted Stock issued pursuant to the Plan, and may reflect distinctions based on the reasons for termination of employment including; but not limited to, termination of employment for Cause or Good Reason, orreasons relating to the breach or threatened breach of restrictive covenants; provided, however that, except in the cases of terminations connected with a Change of Control and terminations by reason of death or Disability, the vesting of Shares ofRestricted Stock that qualify for the Performance-Based Exception and that are held by Named Executive Officers shall not occur prior to the time they otherwise would have, but for the employment termination. Subject to Section 14, in the eventthat a Participant’s Award Agreement does not set forth such termination provisions, the following termination provisions shall apply: 

(a) Death, Disability and Retirement. Unless the Award qualifies for the Performance-Based Exception, in the event that each of a Participant’s employment, service as a Director, and consulting arrangement with the Company and/or itsAffiliates or Subsidiaries is terminated due to death, Disability or Retirement, all Shares of Restricted Stock of such Participant shall immediately become fully vested on the date of termination and the restrictions shall lapse. 

(b) Other Termination. In the event that each of a Participant’s employment, service as a Director, and consulting arrangement with the Companyand/or its Affiliates or Subsidiaries is terminated for any reason other than death, Disability or Retirement, all Shares of Restricted Stock that are unvested at the date of termination shall be forfeited to the Company. 

 

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**SECTION 9.**

Performance Units and Performance Shares 

9.1. Grant of Performance Units/Shares and Award Agreement.

(a) Grant of Performance Unit/Shares. Subject to the terms of the Plan, Performance Units and/or Performance Shares may begranted to Participants in such amounts and upon such terms, and at any time and from time to time, as shall be determined by the Administrator, which shall not be inconsistent with the terms and provisions of the Plan and shall be set forth in anAward Agreement. 

(b) Award Agreement. The Company and each Participant to whom Performance Units and/or Performance Sharesis granted shall execute an Award Agreement that shall specify the initial value of the Award, the performance goals and the Performance Period, as the Administrator shall determine, and which are not inconsistent with the terms and provisions ofthe Plan. 

9.2. Value of Performance Units/Shares. Each Performance Unit shall have an initial value that is established by theAdministrator at the time of grant. Each Performance Share shall have an initial value equal to the Fair Market Value of a Share on the date of grant. The Administrator shall set performance goals in its sole discretion which, depending on theextent to which they are met will determine the number and/or value of Performance Units and/or Performance Shares that will be paid out to the Participant. For purposes of this Section 9, the time period during which the performance goals mustbe met shall be called a Performance Period. 

9.3. Earning of Performance Units/Shares. Subject to the terms of the Plan, after theapplicable Performance Period has ended, the holder of Performance Units and/or Performance Shares shall be entitled to receive payout on the number and value of Performance Units and/or Performance Shares earned by the Participant over thePerformance Period, to be determined as a function of the extent to which the corresponding performance goals have been achieved, as established by the Administrator. 

9.4. Form and Timing of Payment of Performance Units/Shares. 

(a) Except as provided below, payment ofearned Performance Units and/or Performance Shares shall be made in a single lump sum as soon as reasonably practicable following the close of the applicable Performance Period. Subject to the terms of the Plan, the Administrator, in its solediscretion, may pay earned Performance Units and/or Performance Shares in the form of cash or in Shares (or in a combination thereof) which have an aggregate Fair Market Value equal to the value of the earned Performance Units and/or PerformanceShares at the close of the applicable Performance Period. Such Shares may be granted subject to any restrictions deemed appropriate by the Administrator. 

(b) At the time of grant or shortly thereafter, the Administrator, at its sole discretion and in accordance with terms designated by the Administrator, may provide for a voluntary and/or mandatory deferral of all orany part of an otherwise earned Performance Unit and/or Performance Share Award. 

 

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(c) At the sole discretion of the Administrator, Participants may be entitled to receive any dividendsdeclared with respect to Shares which have been earned in connection with grants of Performance Units and/or Performance Shares which have been earned, but not yet distributed to Participants (such dividends shall be subject to the same accrual,forfeiture, and payout restrictions as apply to dividends earned with respect to Shares of Restricted Stock, as set forth in Section 8.6 herein). In addition, Participants may, at the sole discretion of the Administrator, be entitled toexercise their voting rights with respect to such Shares. 

9.5. Termination of Employment, Service as a Director, or ConsultingArrangement. The Administrator, in its sole discretion, shall set forth in the applicable Award Agreement the extent to which the Participant shall have the right to receive payment for Performance Units and/or Performance Shares followingtermination of the Participant’s employment, service as a Director, or consulting arrangement with the Company and/or its Affiliates or Subsidiaries. Such provisions need not be uniform among all Performance Units and/or Performance Sharesgranted pursuant to the Plan, and may reflect distinctions based on the reasons for such termination including; but not limited to, termination for Cause or Good Reason, or reasons relating to the breach or threatened breach of restrictivecovenants. Subject to Section 14, in the event that a Participant’s Award Agreement does not set forth such termination provisions, the following termination provisions shall apply: 

(a) Death, Disability and Retirement. Subject to Section 14, in the event that each of a Participant’s employment, service as aDirector, and consulting arrangement with the Company and/or its Affiliates or Subsidiaries is terminated during a Performance Period due to death, Disability or Retirement, the Participant shall receive a prorated payout of the Performance Unitsand/or Performance Shares, unless the Administrator determines otherwise. The prorated payout shall be determined by the Administrator, shall be based upon the length of time that the Participant held the Performance Units and/or Performance Sharesduring the Performance Period, and shall further be adjusted based on the achievement of the pre-established performance goals. Subject to Section 14, unless the Administrator determines otherwise in the event of a termination due to death,Disability or Retirement payment of earned Performance Units and/or Performance Shares shall be made at the same time as payments are made to Participants who did not terminate employment during the applicable Performance Period. 

(b) Other Termination. Subject to Section 14, in the event that each of a Participant’s employment, service as a Director, andconsulting arrangement with the Company and/or its Affiliates or Subsidiaries is terminated during a Performance Period for any reason other than death, Disability or Retirement, all Performance Units and/or Performance Shares shall be forfeited bythe Participant to the Company. 

9.6. Nontransferability. Except as otherwise provided in a Participant’s Award Agreement, PerformanceUnits and/or Performance Shares may not be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, other than by will or by the laws of descent and distribution. Further, except as otherwise provided in a Participant’sAward Agreement, a Participant’s rights under the Plan shall be exercisable during the Participant’s lifetime only by the Participant or the Participant’s legal representative. 

 

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**SECTION 10.**

Performance Measures 

10.1. Unless and until the Administrator proposes for stockholder vote andstockholders approve a change in the general performance measures set forth in this Section 10, the attainment of which may determine the degree of payout and/or vesting with respect to Awards to Named Executive Officers that are designed toqualify for the Performance-Based Exception, the performance goals to be used for purposes of such grants shall be established by the Administrator in writing and stated in terms of the attainment of specified levels of or percentage changes in anyone or more of the following measurements: revenue; primary or fully-diluted earnings per Share; earnings before interest, taxes, depreciation, and/or amortization; pretax income; cash flow from operations; total cash flow; return on equity; returnon capital; return on assets; net operating profits after taxes; economic value added; total stockholder return or return on sales; or any individual performance objective which is measured solely in terms of quantitative targets related to theCompany or the Company’s business; or any combination thereof. In addition, such performance goals may be based in whole or in part upon the performance of the Company, a Subsidiary, division and/or other operational unit under one or more ofsuch measures. 

10.2. The degree of payout and/or vesting of such Awards designed to qualify for the Performance-Based Exception shall bedetermined based upon the written certification of the Administrator as to the extent to which the performance goals and any other material terms and conditions precedent to such payment and/or vesting have been satisfied. The Administrator shallhave the sole discretion to adjust the determinations of the degree of attainment of the pre-established performance goals; provided, however, that the performance goals applicable to Awards which are designed to qualify for the Performance- BasedException, and which are held by Named Executive Officers, may not be adjusted so as to increase the payment under the Award (the Administrator shall retain the sole discretion to adjust such performance goals upward, or to otherwise reduce theamount of the payment and/or vesting of the Award relative to the pre-established performance goals). 

10.3. In the event that applicabletax and/or securities laws change to permit Administrator sole discretion to alter the governing performance measures without obtaining stockholder approval of such changes, the Administrator shall have sole discretion to make such changes withoutobtaining stockholder approval. In addition, in the event that the Administrator determines that it is advisable to grant Awards which shall not qualify for the Performance-Based Exception, the Administrator may make such grants without satisfyingthe requirements of Code Section 162(m) and, thus, which use performance measures other than those specified above. 

 

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**SECTION 11.**

Award Forfeitures 

11.1. Forfeiture of Options and Other Awards and Gains Realized Upon Prior OptionExercises or Award Settlements. Unless otherwise determined by the Administrator, each Award granted hereunder shall be subject to the following additional forfeiture conditions, to which the Participant, by accepting an Award hereunder, agrees. Ifany of the events specified in Section 11.2 occurs (a “Forfeiture Event”), all of the following forfeitures will result: 

(a) The unexercised portion of any Option, whether or not vested, and any other Award not then settled (except for an Award that has not been settled solely due to an elective deferral pursuant to Section 12 bythe Participant and otherwise is not forfeitable in the event of any termination of service of the Participant) will be immediately forfeited and canceled upon the occurrence of the Forfeiture Event; and 

(b) The Participant will be obligated to repay to the Company, in cash, within five business days after demand is made therefor by theCompany, the total amount of Award Gain (as defined herein) realized by the Participant upon each exercise of an Option or settlement of an Award (regardless of any elective deferral pursuant to Section 12) that occurred on or after(i) the date that is six months prior to the occurrence of the Forfeiture Event, if the Forfeiture Event occurred while the Participant was employed by the Company or an Affiliate or Subsidiary, or (ii) the date that is six months prior tothe date the Participant’s employment by, service as a Director with, or consulting arrangement with the Company or an Affiliate or Subsidiary terminated, if the Forfeiture Event occurred after the Participant ceased to be so employed.

For purposes of this Section, the term “Award Gain” shall mean (i) in respect of a given Option exercise, the product of(X) the Fair Market Value per Share at the date of such exercise (without regard to any subsequent change in the market price of shares) minus the Option Price times (Y) the number of shares as to which the Option was exercised at thatdate, and (ii) in respect of any other settlement of an Award granted to the Participant, the Fair Market Value of the cash or Shares paid or payable to Participant (regardless of any elective deferral pursuant to Section 12) less any cashor the Fair Market Value of any shares or property (other than an Award or award that would have itself then been forfeitable hereunder and excluding any payment of tax withholding) paid by the Participant to the Company as a condition of or inconnection such settlement. 

11.2. Events Triggering Forfeiture. The forfeitures specified in Section 11.1 will be triggered upon theoccurrence of any one of the following Forfeiture Events at any time during the Participant’s employment by, service as a Director with, or consulting arrangement with the Company or an Affiliate or Subsidiary during the one-year periodfollowing termination of such employment, service or consulting arrangement: 

(a) Non-Solicitation. The Participant, for hisor her own benefit or for the benefit of any other person, company or entity, directly or indirectly, (i) induces or attempts to induce or hires or otherwise counsels, induces or attempts to induce or hire or 

 

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otherwise counsel, advise, encourage or solicit any person to leave the employment of or the service for the Company or any Affiliate or Subsidiary,(ii) hires or in any manner employs or retains the services of any individual employed by or providing services to the Company or any Affiliate or Subsidiary as of the date of his or her termination of employment, or employed by or providingservices to the Company or any Affiliate or Subsidiary subsequent to such termination, (iii) solicits, pursues, calls upon or takes away, any of the customers of the Company or any Affiliate or Subsidiary, (iv) solicits, pursues, callsupon or takes away, any potential customer of the Company or any Affiliate or Subsidiary that has been the subject of a bid, offer or proposal by the Company or any Affiliate or Subsidiary, or of substantial preparation with a view to making such abid, proposal or offer, within six (6) months prior to such Participant’s termination of employment with the Company or any Affiliate or Subsidiary, or (v) otherwise interferes with the business or accounts of the Company or anyAffiliate or Subsidiary. 

(b) Non-Competition. The Participant engages in “competition” (as defined below in thissubparagraph (b)) with the Company or any Affiliate or Subsidiary in any locality or region of the United States in which the Company or any Affiliate or Subsidiary had operations at the time of, or within six (6) months prior to, thetermination of the Participant’s employment with the Company or any Affiliate or Subsidiary, or in which, during the six (6) months period prior to the termination of the Participant’s employment with the Company or any Affiliate orSubsidiary, the Company or any Affiliate or Subsidiary had made substantial plans with the intention of establishing operations in such locality or region; provided that, it shall not be a violation of this provision for the Participant to becomethe registered or beneficial owner of up to five percent (5%) of any class of the capital stock of a competing corporation registered under the Exchange Act provided that the Participant does not actively participate in the business of suchcorporation until the one-year period following the Participant’s termination ends. For purposes of the Plan, “competition” means the Participant engages in, or otherwise directly or indirectly is employed by or acts as a consultantor lender to, or is a director, officer, employee, principal, agent, stockholder, member, owner or partner of, or permits the Participant’s name to be used in connection with, the activities of any other business or organization anywhere in theUnited States that directly or indirectly designs, develops, operates, builds or manufactures in-building communications transmission networks, or any other business of the Company or any Affiliate or Subsidiary at any time during or following theParticipant’s employment with the Company or any Affiliate or Subsidiary. 

(c) Confidential Information. TheParticipant discloses to any person or entity or makes use of any “confidential or proprietary information” (as defined below in this subparagraph (c)) for his or her own purpose or for the benefit of any person or entity, except as may benecessary in the ordinary course of employment with or other service to the Company or any Affiliate or Subsidiary. Such “confidential or proprietary information” of the Company or any Affiliate or Subsidiary, includes, but is not limitedto, the design, development, operation, building or manufacturing of in-building communications transmission networks, the identity of the Company’s or any Affiliate’s or Subsidiary’s customers, the identity of representatives ofcustomers with whom the 

 

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Company or any Affiliate or Subsidiary has dealt, the kinds of services provided by the Company or any Affiliate or Subsidiary to customers and offered to beperformed for potential customers, the manner in which such services are performed or offered to be performed, the service needs of actual or prospective customers, pricing information, information concerning the creation, acquisition or dispositionof products and services, customer maintenance listings, computer software and hardware applications and other programs, personnel information, information identifying, relating to or concerning investors in the Company or any Affiliate orSubsidiary, joint venture partners of the Company or any Affiliate or Subsidiary, business partners of the Company or any Affiliate or Subsidiary or other entities providing financing to the Company or any Affiliate or Subsidiary, real estate andleasing opportunities, communications and telecommunications operations and processes, zoning and licensing matters, relationships with, or matters involving, landlords and/or property owners, and other trade secrets. 

11.3. Agreement Does Not Prohibit Competition or Other Participant Activities. Although the conditions set forth in this Section 11 shall be deemedto be incorporated into an Award, the Plan does not thereby prohibit the Participant from engaging in any activity, including but not limited to competition with the Company and its Affiliates and Subsidiaries. Rather, the non-occurrence of theForfeiture Events set forth in Section 11.2 is a condition to the Participant’s right to realize and retain value from his or her compensatory Awards, and the consequence under the Plan if the Participant engages in an activity giving riseto any such Forfeiture Event are the forfeitures specified herein. This provision shall not preclude the Company and the Participant from entering into other written agreements concerning the subject matter of Sections 11.1 and 11.2 and, to theextent any terms of this Section 11 are inconsistent with any express terms of such agreement, this Section 11 shall not be deemed to modify or amend such terms. 

11.4. Administrator Discretion. The Administrator may, in its sole discretion, waive in whole or in part the Company’s right to forfeiture underthis Section, but no such waiver shall be effective unless evidenced by a writing signed by a duly authorized officer of the Company. In addition, the Administrator may impose additional conditions on Awards, by inclusion of appropriate provisionsin the document evidencing or governing any such Award. 

**SECTION 12.**

Deferrals 

The Administrator may permit a Participant to defer such Participant’sreceipt of the payment of cash or the delivery of Shares that would otherwise be due to such Participant upon the exercise of any Option or by virtue of the lapse or waiver of restrictions with respect to Restricted Stock, or the satisfaction of anyrequirements or goals with respect to Performance Units/Shares. If any such deferral election is required or permitted, the Administrator shall, in its sole discretion, establish rules and procedures for such payment deferrals. 

 

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**SECTION 13.**

Rights and Obligations of Parties 

13.1. No Guarantee of Employment or Service Rights. Nothing in the Planshall interfere with or limit in any way the right of the Company to terminate any Participant’s employment or consulting arrangement at any time, nor confer upon any Participant any right to continue in the employ of or consulting arrangementwith the Company or any Affiliate or Subsidiary. For purposes of the Plan, temporary absence from employment because of illness, vacation, approved leaves of absence, and transfers of employment among the Company and its Affiliates and Subsidiaries,shall not be considered to terminate employment or to interrupt continuous employment. Temporary cessation of the provision of consulting services because of illness, vacation or any other reason approved in advance by the Company shall not beconsidered a termination of the consulting arrangement or an interruption of the continuity thereof. Conversion of a Participant’s employment relationship to a consulting arrangement shall not result in termination of previously granted Awards.

13.2. Participation. No employee, Director or consultant shall have the right to be selected to receive an Award under the Plan, or,having been so selected, to be selected to receive a future Award. 

13.3. Right of Setoff. The Company or any Affiliate or Subsidiary may,to the extent permitted by applicable law, deduct from and set off against any amounts the Company or Affiliate or Subsidiary may owe to the Participant from time to time, including amounts payable in connection with any Award, owed as wages, fringebenefits, or other compensation owed to the Participant, such amounts as may be owed by the Participant to the Company or any Affiliate or Subsidiary, although the Participant shall remain liable for any part of the Participant’s paymentobligation not satisfied through such deduction and setoff. By accepting any Award granted hereunder, the Participant agrees to any deduction or setoff under this Section 13. 

13.4. Section 83(b) Election. No election under Section 83(b) of the Code (to include in gross income in the year of transfer the amountsspecified in Code Section 83(b)) or under a similar provision of the laws of a jurisdiction outside the United States may be made, unless expressly permitted by the terms of the Award Agreement or by action of the Administrator in writing priorto the making of such election. In any case in which a Participant is permitted to make such an election in connection with an Award, the Participant shall notify the Company of such election within ten days of filing notice of the election with theInternal Revenue Service or other governmental authority, in addition to any filing and notification required pursuant to regulations issued under Code Section 83(b) or other applicable provision. 

13.5. Disqualifying Disposition Notification. If any Participant shall make any disposition of Shares delivered pursuant to the exercise of an ISO underthe circumstances described in Code Section 421(b) (relating to certain disqualifying dispositions), such Participant shall notify the Company of such disposition within (10) ten days thereof. A Disqualifying Disposition is defined inSection 424(c) of the Code and includes any disposition (including any sale or gift) of such shares before the later of (a) two years after the date the Employee was granted the ISO, or (b) one year after the date the Employeeacquired Shares by exercising the 

 

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ISO, except as otherwise provided in Section 424(c) of the Code. If the Employee has died before such stock is sold, these holding period requirementsdo not apply and no Disqualifying Disposition can occur thereafter. 

**SECTION 14.**

Change of Control 

14.1. Upon the occurrenceof a Change of Control, unless otherwise specifically prohibited under applicable laws, or by the rules and regulations of any governing governmental agencies or national securities exchanges: 

(a) Any and all Options and SARs granted hereunder shall become immediately exercisable, and shall remain exercisable in accordance withthis Plan and the Participant’s Award Agreement; 

(b) Any Period of Restriction and other restrictions imposed onRestricted Shares shall lapse; and 

(c) Unless otherwise specified in a Participant’s Award Agreement at time of grant,the maximum payout opportunities attainable under all outstanding Awards of Performance Units and Performance Shares shall be deemed to have been fully earned for the entire Performance Period(s) as of the effective date of the Change of Control.The vesting of all such Awards shall be accelerated as of the effective date of the Change of Control, and in full settlement of such Awards, there shall be paid out in cash to Participants within thirty (30) days following the effective dateof the Change of Control the maximum of payout opportunities associated with such outstanding Awards. 

14.2. The foregoing provisions ofthis Section 14 notwithstanding, the Board and the Continuing Directors may determine that no Change in Control shall be deemed to have occurred or that some or all of the enhancements to the rights of Participants under outstanding Awards upona Change in Control, as provided under this Section 14 or the Award Agreement, shall not apply to specified Awards if, prior to the later of occurrence of the specified event that would otherwise constitute a Change in Control (the“Event”) or the expiration of seven days after the Company has obtained actual notice that such Event has occurred, the following conditions have been met: 

(a) The Board and the Continuing Directors of the Company then in office, each by a majority vote thereof, determine that the occurrenceof such Event shall not be deemed to be a Change in Control hereunder, shall not be deemed to be a Change in Control with respect to one or more specified Participants, or shall not result in specified enhancements to the rights of one or moreParticipants that would otherwise be triggered by the occurrence of a Change in Control; and 

(b) The Participant holding anAward affected by action of the Board and Continuing Directors under this Section 14 shall be protected by legally binding obligations of the Company as follows: 

(i) Such Award either shall remain outstanding following consummation of all transactions involved in or contemplated by such Change inControl or shall be assumed and adjusted by the surviving entity resulting from such transactions, and the Continuing Directors determine, in either case, that changes in the terms of the Award resulting from such transactions will not materiallyimpair its value to the Participant or his or her opportunity for future appreciation in respect of such Award; and 

 

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(ii) If, within two years following the Event, the Participant’s employment by theCompany or the surviving entity that has assumed the obligations under the Award (or by an affiliate) is terminated by such employer without Cause, or is terminated by the Participant for Good Reason, such Participant’s rights in respect ofsuch Award shall be no less favorable than would be the case if a Change in Control had occurred (without any limitation on the enhancement of the Participant’s rights) immediately prior to the Participant’s termination of employment.

**SECTION 15.**

Dissolution and Corporate Transactions 

15.1. Dissolution and Liquidation. Upon the dissolution or liquidation of the Company, allAwards granted under this Plan which as of such date shall not have been exercised or accepted, as the case may be, will terminate and become null and void; provided, however, that if the rights of a Participant have not otherwise terminated andexpired, the Participant will have the right immediately prior to such dissolution or liquidation to exercise or accept any Award to the extent that the Award is exercisable or subject to acceptance as of the date immediately prior to suchdissolution or liquidation. 

15.2. Effect of Corporate Transaction on Options. If the Company is to be consolidated with or acquired byanother entity in a merger, sale of all or substantially all of the Company’s assets other than a transaction to merely change the state of incorporation (a “Corporate Transaction”), the Administrator or the board of directors of anyentity assuming the obligations of the Company hereunder (the “Successor Board”), shall, as to outstanding Options, either (i) make appropriate provision for the continuation of such Options by substituting on an equitable basis forthe Shares then subject to such Options either the consideration payable with respect to the outstanding shares of Common Stock in connection with the Corporate Transaction or securities of any successor or acquiring entity; or (ii) uponwritten notice to the Participants, provide that all Options must be exercised (either to the extent then exercisable or, at the discretion of the Administrator, or, upon a Change of Control of the Company, all Options being made fully exercisablefor purposes of this Subparagraph), within a specified number of days of the date of such notice, at the end of which period the Options shall terminate; or (iii) terminate all Options in exchange for a cash payment equal to the excess of theFair Market Value of the Shares subject to such Options (either to the extent then exercisable or, at the discretion of the Administrator, all Options being made fully exercisable for purposes of this Subparagraph) over the exercise price thereof.

 

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15.3. Effect of Corporate Transaction on other Awards other than Options. Upon the happening of any ofthe events described in Section 15.2 above, Stock Appreciation Rights Restricted Stock, Performance Shares and Performance Units shall be appropriately adjusted to reflect the events described in Section 15.2. The Administrator or theSuccessor Board shall determine the specific adjustments to be made under this Section 15.3, and its determination shall be conclusive. 

15.4. Change of Control. In the event any provision of this Section 15 conflicts with Section 14, the provisions of Section 14 shall govern. 

**SECTION 16.**

Amendment, Modification, and Termination 

16.1. Amendment, Modification, and Termination. The Board may amend, suspend or terminate the Plan or the Administrator’s authority to grant Awardsunder the Plan without the consent of stockholders or Participants; provided, however, that any amendment to the Plan shall be submitted to the Company’s stockholders for approval not later than the earliest annual meeting for which the recorddate is after the date of such Board action if such stockholder approval is required by any federal or state law or regulation or the rules of any stock exchange or automated quotation system on which the Shares may then be listed or quoted and theBoard may otherwise, in its sole discretion, determine to submit other amendments to the Plan to stockholders for approval; and provided further, that, without the consent of an affected Participant, no such Board action may materially and adverselyaffect the rights of such Participant under any outstanding Award. The Administrator shall have no authority to waive or modify any other Award term after the Award has been granted to the extent that the waived or modified term was mandatory underthe Plan. 

16.2. Awards Previously Granted. No termination, amendment, or modification of the Plan shall adversely affect in any materialway any Award previously granted under the Plan, without the written consent of the Participant holding such Award. 

**SECTION 17.**

Withholding 

17.1. TaxWithholding. The Company shall have the power and the right to deduct or withhold, or require a Participant to remit to the Company, an amount sufficient to satisfy Federal, state, and local taxes, domestic or foreign, required by law or regulationto be withheld with respect to any taxable event arising as a result of the Plan. 

17.2. Share Withholding. With respect to withholdingrequired upon the exercise of Options or SARs, upon the lapse of restrictions on Restricted Stock, or upon any other taxable event arising as a result of Awards granted hereunder, Participants may elect, subject to the approval of the Administrator,to satisfy the withholding requirement, in whole or in part, by having the Company withhold Shares having a Fair Market Value on the date the tax is to be determined equal to the minimum statutory total tax which would be imposed on the transaction.

 

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All such elections shall be irrevocable, made in writing, signed by the Participant, and shall be subject to any restrictions or limitations that theAdministrator, in its sole discretion, deems appropriate. 

**SECTION 18.**

Successors 

All obligations of the Company under the Plan with respect to Awardsgranted hereunder shall be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect merger, consolidation, purchase of all or substantially all of the business and/or assets of theCompany or otherwise. 

**SECTION 19.**

Miscellaneous 

19.1. Unfunded Plan. The Plan is intended to constitute an “unfunded” plan forincentive and deferred compensation. With respect to any payments not yet made to a Participant or obligation to deliver Shares pursuant to an Award, nothing contained in the Plan or any Award shall give any such Participant any rights that aregreater than those of a general creditor of the Company; provided that the Administrator may authorize the creation of trusts and deposit therein cash, Shares, other Awards or other property, or make other arrangements to meet the Company’sobligations under the Plan. Such trusts or other arrangements shall be consistent with the “unfunded” status of the Plan unless the Administrator otherwise determines with the consent of each affected Participant. 

19.2. Forfeitures; Fractional Shares. Unless otherwise determined by the Administrator, in the event of a forfeiture of an Award with respect to which aParticipant paid cash consideration, the Participant shall be repaid the amount of such cash consideration. No fractional Shares shall be issued or delivered pursuant to the Plan or any Award. The Administrator shall determine whether cash, otherAwards or other property shall be issued or paid in lieu of such fractional Shares or whether such fractional Shares or any rights thereto shall be forfeited or otherwise eliminated. 

19.3. Gender and Number. Except where otherwise indicated by the context, any masculine term used herein also shall include the feminine; the pluralshall include the singular and the singular shall include the plural. 

19.4. Severability. In the event any provision of the Plan shall beheld illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining parts of the Plan, and the Plan shall be construed and enforced as if the illegal or invalid provision had not been included. 

19.5. Requirements of Law. The granting of Awards and the issuance of Shares under the Plan shall be subject to all applicable laws, rules, andregulations, and to such approvals by any governmental agencies or national securities exchanges as may be required. 

 

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19.6. Securities Law Compliance. With respect to Insiders, transactions under the Plan are intended tocomply with all applicable conditions of Rule 16b-3 or its successors under the Exchange Act. To the extent any provision of the Plan or action by the Administrator fails to so comply, it shall be deemed null and void, to the extent permitted by lawand deemed advisable by the Administrator. 

19.7. Governing Law. To the extent not preempted by Federal law, the Plan, and all agreementshereunder, shall be construed in accordance with and governed by the laws of the State of Delaware. 

 

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