Exhibit 10.21


 


SERVICEMASTER GLOBAL HOLDINGS, INC.

STOCK INCENTIVE PLAN


 


Article I


Purpose


 


ServiceMaster Global Holdings, Inc. has established
this stock incentive plan to foster and promote its long-term financial
success.  Capitalized terms have the meaning
given in Article XII.


 


Article II


Powers of the Board


 


Section 2.1            Power
to Grant Awards.  The Board shall
select Employees to receive Awards.  The
Board shall also determine from time to time whether Eligible Directors (or
classes or categories of Eligible Directors) shall receive Director Share
Awards.  The Board shall determine the
terms of each Award, consistent with the Plan.


 


Section 2.2            Administration.  The Board shall be responsible for the
administration of the Plan.  The Board
may prescribe, amend and rescind rules and regulations relating to the
administration of the Plan, provide for conditions and assurances it deems
necessary or advisable to protect the interests of the Company and make all
other determinations necessary or advisable for the administration and
interpretation of the Plan.  Any
authority exercised by the Board under the Plan shall be exercised by the Board
in its sole discretion.  Determinations,
interpretations or other actions made or taken by the Board under the Plan
shall be final, binding and conclusive for all purposes and upon all persons.


 


Section 2.3            Delegation
by the Board.  All of the powers,
duties and responsibilities of the Board specified in this Plan may be
exercised and performed by any duly constituted committee thereof to the extent
authorized by the Board to exercise and perform such powers, duties and
responsibilities, and any determination, interpretation or other action taken
by such committee shall have the same effect hereunder as if made or taken by the
Board.


 

















 


Article III


Shares Subject to Plan


 


Section 3.1            Number.  The
maximum number of shares of Common Stock that may be issued under the Plan or
be subject to Awards may not exceed 13,045,000* shares.  The shares of Common Stock to be delivered
under the Plan may consist, in whole or in part, of authorized but unissued
Common Stock that are not reserved for any other purpose.


 


Section 3.2            Canceled,
Terminated or Forfeited Awards.  If
any Award or portion thereof is for any reason forfeited, canceled or otherwise
terminated without exercise, the Common Stock subject to such Award or portion
thereof shall again be available for grant under the Plan.


 


Section 3.3            Adjustment
in Capitalization.  If and to the
extent necessary or appropriate to reflect any Common Stock dividend,
extraordinary dividend, stock split or share combination or any
recapitalization, merger, consolidation, exchange of shares, spin-off
liquidation or dissolution of the Company or other similar transaction
affecting the Common Stock, the Board shall proportionately adjust the number
of shares of Common Stock available for issuance under the Plan and the number,
class, exercise price or other terms of any outstanding Award and/or make other
provisions with respect to the holder or holders of an outstanding Award.


 


Article IV


Stock Purchase or Grant


 


Section 4.1            Awards
and Administration.  The Board may
offer and sell or otherwise grant Common Stock to Participants at such time or
times and subject to such conditions as it shall determine, the terms of which
shall be set forth in a Subscription Agreement.


 


Section 4.2            Minimum
Purchase Price.  Unless otherwise
determined by the Board, the purchase price for any Common Stock to be offered
and sold pursuant to this Article IV shall not be less than the Fair
Market Value on the Grant Date.


 


Section 4.3            Payment.  Unless otherwise determined by the Board, the
purchase price with respect to any Common Stock offered and sold pursuant to
this Article IV shall be paid in cash or other readily available funds
simultaneously with the closing of the purchase of such Common Stock.


 






* Amended as of May 6, 2009. Prior figure was 12,445,000.


 


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Article V


Terms of Options


 


Section 5.1            Grant
of Options.  The Board may grant
Options to Participants at such time or times as it shall determine.  Options granted pursuant to the Plan will not
be “incentive stock options” as defined in the Code.  Each Option granted to a Participant shall be
evidenced by an Option Agreement that shall specify the number of shares of
Common Stock that may be purchased pursuant to such Option, the exercise price
at which shares of Common Stock may be purchased pursuant to such Option, the
duration of such Option (not to exceed the tenth anniversary of the Grant
Date), and such other terms as the Board shall determine.


 


Section 5.2            Exercise
Price.  The exercise price per share
of Common Stock to be purchased upon exercise of an Option shall not be less
than the Fair Market Value on the Grant Date.


 


Section 5.3            Vesting
and Exercise of Options.  Options
shall become vested or exercisable in accordance with the vesting schedule or
upon the attainment of such performance criteria as shall be specified by the
Board on or before the Grant Date.  The
Board may accelerate the vesting or exercisability of any Option, all Options
or any class of Options at any time and from time to time.


 


Section 5.4            Payment.  The Board shall establish procedures
governing the exercise of Options, which procedures shall generally require
that prior written notice of exercise be given and that the exercise price
(together with any required withholding taxes or other similar taxes, charges
or fees) be paid in full in cash, cash equivalents or other readily available funds
at the time of exercise.  Notwithstanding
the foregoing, on such terms as the Board may establish from time to time
following a Public Offering (i) the Board may permit a Participant
to tender any Common Stock such Participant has owned for at least six months
and one day for all or a portion of the applicable exercise price or minimum
required withholding taxes, and (ii) the Board may authorize the
Company to establish a broker-assisted exercise program.  In connection with any Option exercise, the Company
may require the Participant to furnish or execute such other documents as it
shall reasonably deem necessary to (a) evidence such exercise, (b) determine
whether registration is then required under the U.S. federal securities laws or
similar non-U.S. laws, or (c) comply with or satisfy the
requirements of the U.S. federal securities laws, applicable state or non-U.S.
securities laws or any other law.  As a
condition to the exercise of any Option before a Public Offering, a Participant
shall enter into a Subscription Agreement.


 


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Article VI


Termination of Employment


 


Section 6.1            Expiration
of Options Following Termination of Employment.  Unless otherwise determined by the Board on
or before the Grant Date, if a Participant’s employment with the Company
terminates, such Participant’s Options shall be treated as follows:


 


(a)           any unvested Options shall terminate
effective as of such termination of employment (determined without regard to
any statutory or deemed or express contractual notice period); provided
that if the Employee’s employment with the Company is terminated in a Special
Termination (i.e., by reason of the Employee’s death or Disability), any
unvested Options held by the Employee that by their terms would vest solely
based on continued employment shall immediately vest as of the effective date
of such Special Termination;


 


(b)           except in the case of a termination
for Cause, vested Options shall remain exercisable through the earliest of (i) the
normal expiration date, (ii) the three-month anniversary of the
effective date of the Participant’s termination of employment (determined
without regard to any statutory or deemed or express contractual notice
period), (iii) the one-year anniversary in the case of a Special
Termination or a retirement at normal retirement age or later), and (iv) any cancellation pursuant to Section 7.1;
and


 


(c)           in the case of a termination for
Cause, any and all Options held by such Participant (whether or not then vested
or exercisable) shall terminate immediately upon such termination of
employment.


 


Section 6.2            Certain
Rights upon Termination of Employment Prior to a Public Offering.  Each Subscription Agreement shall provide
that the Company and one or more of the Investors shall have successive rights
prior to a Public Offering to purchase all or any portion of a Participant’s
Common Stock upon any termination of employment (determined without regard to
any statutory or deemed or express contractual notice period), at such time and
at a purchase price per share equal to the Fair Market Value as of the date
specified in the Subscription Agreement (or, if the Participant’s employment
termination qualifies as a termination for Cause, for a purchase price per
share equal to the lesser of (i) the Fair Market Value as of the
date specified in the Subscription Agreement and (ii) such
Participant’s per share purchase price). 
The Board may provide in a Subscription Agreement that following a
Participant’s Special Termination, 


 


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retirement at or after normal retirement age or termination of
employment by the Company without Cause in each case prior to a Public
Offering, such Participant may require the Company to repurchase all (but not
less than all) of such Participant’s Common Stock (but excluding any shares
acquired on exercise of an Option), at such time and at a purchase price per
share equal to the Fair Market Value as of the date specified in the
Subscription Agreement, subject to the Company having the ability to do so
under the terms of its financing agreements.


 


Article VII


Change in Control


 


Section 7.1            Accelerated
Vesting and Payment.  Except as
otherwise provided in this Article VII, and unless otherwise provided in
the Award Agreement, upon a Change in Control, (a) each Award that
by its terms would otherwise vest based solely on continued employment shall
vest in full in connection with such Change in Control and each other Award
shall, to the extent it has not or will not by its terms vest before or in
connection with such Change in Control, be canceled, and (b) the
holder of any vested Award (including any Award that vests in connection with
such Change in Control) shall be entitled to receive, in complete satisfaction
of such Award, a payment in cash or readily marketable securities in an amount
or with a value equal to the number of shares of Common Stock covered by such
vested Award times the excess, if any, of the Change in Control Price over any
applicable exercise price or reference price, if any, for such Award.


 


Section 7.2            Alternative
Award.  No cancellation, acceleration
or other payment shall occur with respect to any Award or class or type of
Award if the Board reasonably determines in good faith, prior to the occurrence
of a Change in Control, that such Award shall be honored or assumed, or new
rights substituted therefor following the Change in Control (such honored,
assumed or substituted award, an “Alternative Award”); provided
that any Alternative Award must:


 


(a)           give the Participant who held such
Award rights and entitlements substantially equivalent to or better than the
rights and terms applicable under such Award, including, but not limited to, an
identical or better exercise and vesting schedule, identical or better timing
and methods of payment and, if the Alternative Award or the securities
underlying it are not publicly-traded, identical or better rights following a
termination of employment to require the Company or the acquiror in such Change
in 


 


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Control to repurchase the
Alternative Award or securities underlying such Alternative Award; and


 


(b)           have terms such that if, within two
years following a Change in Control, a Participant’s employment is
involuntarily or constructively terminated (other than for Cause), such
Alternative Award shall immediately vest in full and such Participant shall
receive a cash payment equal to the excess (if any) of the fair market value of
the stock subject to the Alternative Award on the date of surrender over the
price that such Participant would be required to pay to exercise such
Alternative Award or shall have an immediate right to exercise such Alternative
Award and receive shares that are then publicly traded.


 


Section 7.3            Limitation
of Benefits.  If, whether as a result
of accelerated vesting, the grant of an Alternative Award or otherwise, a
Participant would receive any payment, deemed payment or other benefit as a
result of the operation of Section 7.1 or Section 7.2 that, together
with any other payment, deemed payment or other benefit a Participant may
receive under any other plan, program, policy or arrangement, would constitute
an “excess parachute payment” under section 280G of the Code, then, notwithstanding
anything in this Plan to the contrary, the payments, deemed payments or other
benefits such Participant would otherwise receive under Section 7.1 or Section 7.2
shall be reduced to the extent necessary to eliminate any such excess parachute
payment and such Participant shall have no further rights or claims with
respect thereto.  If the preceding
sentence would result in a reduction of the payments, deemed payments or other
benefits a Participant would otherwise receive in more than an immaterial amount,
the Company will use its commercially reasonable best efforts to seek the
approval of the Company’s shareholders in the manner provided for in section
280G(b)(5) of the Code and the regulations thereunder with respect to such
reduced payments or other benefits (if the Company is eligible to do so), so
that such payments would not be treated as “parachute payments” for these
purposes (and therefore would cease to be subject to reduction pursuant to this
Section 7.3), and, if seeking such approval, the Company shall submit all
Participants for whom such approval is sought as a single slate to the
shareholders and not individually.  This Section 7.3
shall cease to apply if the stock of the Company or any direct or indirect
parent or subsidiary of the Company becomes readily tradable on an established
securities market or otherwise within the meaning of 26 CFR 1.280G-1, Q/A-6.


 


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Article VIII


Deferred Share Units


 


The Board may provide for the grant of Deferred Share Units to
Participants at such time or times and subject to such conditions as it shall
determine.  No shares of Common Stock
will be issued at the time an award of Deferred Share Units is made and the
Company shall not be required to set aside a fund for the payment of any such
award.


 


Article IX


Director Share Awards


 


Director Share Awards may have such terms as the Board
shall determine from time to time, and may be granted as part of the retainer
or other fees payable to an Eligible Director or as part of an arrangement that
permits the deferral of payment of such fees, on a mandatory or elective basis,
into the right to receive Common Stock and distributions thereon in the future
(or a cash payment measured by reference to the value thereof).


 


Article X


Authority to Vary Terms or Establish Local Jurisdiction
Plans


 


The Board may vary the terms of Awards to be granted under
the Plan, or establish sub-plans under this Plan to authorize the grant of
awards that have additional or different terms or features from those otherwise
provided for in the Plan, if and to the extent the Board determines necessary
or appropriate to permit the grant of awards that are best suited to further
the purposes of the Plan and to comply with applicable securities laws in a
particular jurisdiction or provide terms appropriately suited for Employees in
such jurisdiction in light of the tax laws of such jurisdiction while being as
consistent as otherwise possible with the terms of Awards under the Plan; provided
that this Article X shall not be deemed to authorize any increase in the
number of Common Stock available for issuance under the Plan set forth in Section 3.1.


 


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Article XI


Amendment, Modification, and Termination of the Plan


 


The Board may terminate or suspend the Plan at any time,
and may amend or modify the Plan from time to time.  No amendment, modification, termination or
suspension of the Plan shall in any manner adversely affect any Award
theretofore granted under the Plan without the consent of the Participant
holding such Award or the consent of a majority of Participants holding similar
Awards (such majority to be determined based on the number of shares covered by
such Awards).  Shareholder approval of
any such amendment, modification, termination or suspension shall be obtained
to the extent mandated by applicable law, or if otherwise deemed appropriate by
the Board.


 


Article XII


Definitions


 


Section 12.1          Definitions.  Whenever used herein, the following terms
shall have the respective meanings set forth below:


 


“Affiliate” means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common control with
such first Person; provided that a director, member of management or
other Employee of the Company or any of its Subsidiaries shall not be deemed to
be an Affiliate of the Investors.  For
these purposes, “control” (including the terms “controlled by” and “under
common control with”) means the possession, directly or indirectly, of the
power to direct or cause the direction of the management policies of a Person
by reason of ownership of voting securities, by contract or otherwise.


 


“Alternative Award” has the meaning given in Section 7.2.


 


“Award” means an Option, a Deferred Share Unit, a Director Share
Award or an offer and sale or grant of Common Stock pursuant to Article IV,
in each case granted pursuant to the terms of the Plan.


 


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“Award Agreement” means a Subscription Agreement, an Option
Agreement or any other agreement evidencing an Award.


 


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


 


“Cause” means, unless
otherwise provided in the Award Agreement, any of the following:  (i) the Participant’s commission
of a crime involving fraud, theft, false statements or other similar acts or
commission of any crime that is a felony (or a comparable classification in a
jurisdiction that does not use these terms); (ii) the Participant’s
willful and material or grossly negligent failure to perform his or her
material employment-related duties for the Company and its Subsidiaries; (iii) the
Participant’s material violation of any material Company policy as in effect
from time to time; (iv) the Participant’s engaging in any willful
act or making any public statement that impairs, impugns, denigrates,
disparages or negatively reflects upon the name, reputation or business
interests of the Company or its Subsidiaries; (v) the Participant’s
material breach of any Award Agreement, employment agreement, or
noncompetition, nondisclosure or nonsolicitation agreement to which the
Participant is a party or by which the Participant is bound or (vi) the
Participant’s engaging in any wrongful conduct injurious or detrimental to the
Company or its any of its Subsidiaries. The determination as to whether “Cause”
has occurred shall be made by the Board, which shall have the authority to
waive the consequences under the Plan of the existence or occurrence of any of
the events, acts or omissions constituting “Cause.”  A termination for Cause shall be deemed to
include a determination following a Participant’s termination of employment for
any reason if the circumstances existing prior to such termination would have
entitled the Company or one of its Subsidiaries to have terminated such
Participant’s employment for Cause.


 


“CD&R Investors” means, collectively, (i) Clayton,
Dubilier & Rice Fund VII, L.P., (ii) Clayton, Dubilier &
Rice Fund VII (Co-Investment), L.P., (iii) CDR SVM Co-Investor L.P.,
(iv) CD&R Parallel Fund VII, L.P., and (v) CDR
SVM Co-Investor No. 2 L.P.


 


“Change in Control” means the first to occur of the following
events after the Effective Date:


 


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(i)  the acquisition by any person, entity or “group”
(as defined in Section 13(d) of the Securities Exchange Act of 1934,
as amended) of beneficial ownership of 50% or more of the combined voting power
of the Company’s then outstanding voting securities, other than any such
acquisition by the Company, any of its Subsidiaries, any employee benefit plan
of the Company or any of its Subsidiaries, or by the Investors, or any
Affiliates of any of the foregoing;


 


(ii)  the merger, consolidation or other similar
transaction involving the Company, as a result of which persons who were
stockholders of the Company immediately prior to such merger, consolidation, or
other similar transaction do not, immediately thereafter, own, directly or
indirectly, more than 50% of the combined voting power entitled to vote
generally in the election of directors of the merged or consolidated company;


 


(iii)  within any 24-month period, the persons who were
directors of the Company at the beginning of such period (the “Incumbent Directors”)
shall cease to constitute at least a majority of the Board, provided
that any director elected or nominated for election  to the Board by any Investor or a majority of
the Incumbent Directors then still in office shall be deemed to be an Incumbent
Director for purposes of this clause (iii); or


 


(iv)  the sale, transfer or other disposition of all or
substantially all of the assets of the Company to one or more persons or
entities that are not, immediately prior to such sale, transfer or other disposition,
Affiliates of the Company.


 


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Notwithstanding
the foregoing, a Public Offering shall not constitute a Change in Control.


 


“Change in Control Price” means the price per share of Common Stock
offered in conjunction with any transaction resulting in a Change in
Control.  If any part of the offered
price is payable other than in cash, the Change in Control price shall be
determined in good faith by the Board as constituted immediately prior to the
Change in Control.


 


“Code” means the United States Internal Revenue Code of 1986, as
amended, and any successor thereto.


 


“Common Stock” means the common stock, par value U.S. $.01 per
share, of the Company.


 


“Company” means ServiceMaster Global Holdings, Inc., a
Delaware corporation, and any successor thereto, and, for purposes of
determining the status of a Participant’s employment with the “Company” shall
include the Company’s Subsidiaries.


 


“Deferred Share Unit” means the right granted pursuant to the Plan
to receive a share of Common Stock and distributions thereon in the future.


 


“Director Share Award” means an award pursuant to Article IX
to an Eligible Director of Common Stock, an Option or similar Award, a right to
receive Common Stock or a payment measured by reference thereto and
distributions thereon.


 


“Disability” means, unless otherwise provided in an Award
Agreement, a Participant’s long-term disability within the meaning of the
long-term disability insurance plan or program of the Company or any Subsidiary
then covering the Participant, or in the absence of such a plan or program, as
determined by the Board.  The Board’s
reasoned and good faith judgment of Disability shall be final and shall be
based on such competent medical evidence as shall be presented to it by the
Participant or by any 


 


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physician or group of physicians or other competent
medical expert employed by the Participant or the Company to advise the Board.


 


“Effective Date” has the meaning given in Section 13.10.


 


“Eligible Director” means a member of the Board other than an
employee or officer of the Company or any of its Subsidiaries.


 


“Employee” means any executive, officer or other employee of the
Company or any Subsidiary.


 


“Fair Market Value” means, as of any date of determination prior to
a Public Offering, the per share fair market value on such date of a share of
Common Stock as determined in good faith by the Board.  In making a determination of Fair Market
Value, the Board shall give due consideration to such factors as it deems
appropriate, including, but not limited to, the earnings and other financial
and operating information of the Company in recent periods, the potential value
of the Company as a whole, the future prospects of the Company and the
industries in which it competes, the history and management of the Company, the
general condition of the securities markets, the fair market value of
securities of companies engaged in businesses similar to those of the Company,
and any recent valuation of the Common Stock that shall have been performed by
an independent valuation firm (although nothing herein shall obligate the Board
to obtain any such independent valuation). 
The determination of Fair Market Value will not give effect to any
restrictions on transfer of the Common Stock or take into account any control
premium, but shall be determined taking into account the fact that such shares
would represent a minority interest in the Company and are illiquid.  Following a Public Offering, “Fair Market
Value” shall mean, as of any date of determination, the mid-point between the
high and the low trading prices for such date per share of Common Stock as
reported on the principal stock exchange on which the shares of Common Stock
are then listed.


 


“Grant Date” means, with respect to any Award, the date as of which
such Award is granted pursuant to the Plan.


 


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“Investor” means any of (i) BAS Capital Funding
Corporation, BACSVM-A, L.P. and Bank of America Capital Investors V, L.P., (ii) Citigroup
Capital Partners II 2007 Citigroup Investment, L.P., Citigroup Capital Partners
II Employee Master Fund, L.P., Citigroup Capital Partners II Onshore, L.P.,
Citigroup Capital Partners II Cayman Holdings, L.P. and CPE Co-Investment
(ServiceMaster) LLC, (iii) the CD&R Investors, (iv) J.P.
Morgan Ventures Corporation, (vi) any Affiliate of any of the
foregoing that acquires shares of Common Stock, and (vii) any
successor in interest to any thereof.


 


“Option” means the right granted pursuant to the Plan to purchase
one share of Common Stock.


 


“Option Agreement” means an agreement between the Company and a
Participant embodying the terms of any Options granted pursuant to the Plan and
in the form approved by the Board from time to time for such purpose.


 


“Participant”
means any Employee or Eligible Director who is granted an Award.


 


“Person” means any natural person, firm, partnership, limited
liability company, association, corporation, company, trust, business trust,
governmental authority or other entity.


 


“Plan” means this ServiceMaster Global Holdings, Inc. Stock
Incentive Plan.


 


“Public Offering” means the first day as of which (i) sales
of Common Stock are made to the public in the United States pursuant to an
underwritten public offering of the Common Stock, (ii) Common Stock
is otherwise listed for trading on a nationally recognized securities exchange,
or (iii) the Board has determined that shares of the Common Stock
otherwise have become publicly-traded for this purpose.


 


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“Special Termination” means a termination by reason of the
Participant’s death or Disability.


 


“Subscription Agreement” means a stock subscription agreement
between the Company and a Participant embodying the terms of any stock purchase
made pursuant to the Plan and in the form approved by the Board from time to
time for such purpose.


 


“Subsidiary” means any corporation, limited liability company or
other entity, a majority of whose outstanding voting securities is owned,
directly or indirectly, by the Company.


 


Section 12.2          Gender and Number.  Except when otherwise indicated by the
context, words in the masculine gender used in the Plan shall include the
feminine gender, the singular shall include the plural, and the plural shall
include the singular.


 


Article XIII


Miscellaneous Provisions


 


Section 13.1          Nontransferability of Awards.  Except as otherwise provided herein or as the
Board may permit on such terms as it shall determine, no Awards granted under
the Plan may be sold, transferred, pledged, assigned, hedged, encumbered or
otherwise alienated or hypothecated, other than by will or by the laws of
descent and distribution.  All rights
with respect to Awards granted to a Participant under the Plan shall be
exercisable during the Participant’s lifetime by such Participant only (or, in
the event of the Participant’s Disability, such Participant’s legal
representative).  Following a Participant’s
death, all rights with respect to Awards that were outstanding at the time of
such Participant’s death and have not terminated shall be exercised by his
designated beneficiary or by his estate in the absence of a designated
beneficiary.


 


Section 13.2          Tax Withholding.  The Company or the Subsidiary employing a
Participant shall have the power to withhold up to the minimum statutory
requirement, or to require such Participant to remit to the Company or such
Subsidiary, an amount sufficient to satisfy all U.S. federal, state, local and any
non-U.S. withholding tax or other governmental tax, charge or fee requirements
in respect of any Award granted under the Plan.


 


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Section 13.3          Beneficiary Designation.  Pursuant to such rules and procedures as
the Board may from time to time establish, a Participant may name a beneficiary
or beneficiaries (who may be named contingently or successively) by whom any
right under the Plan is to be exercised in case of such Participant’s
death.  Each designation will revoke all
prior designations by the same Participant, shall be in a form reasonably
prescribed by the Board, and will be effective only when filed by the
Participant in writing with the Board during his lifetime.


 


Section 13.4          No Guarantee of Employment or
Participation.  Nothing in the Plan
or in any agreement granted hereunder shall interfere with or limit in any way
the right of the Company or any Subsidiary to terminate any Participant’s
employment or retention at any time, or confer upon any Participant any right
to continue in the employ or retention of the Company or any Subsidiary.  No Employee or Eligible Director shall have a
right to be selected as a Participant or, having been so selected, to receive
any Awards.


 


Section 13.5          No Limitation on Compensation; No
Impact on Benefits.  Nothing in the
Plan shall be construed to limit the right of the Company or any Subsidiary to
establish other plans or to pay compensation to its Employees or Eligible
Directors, in cash or property, in a manner that is not expressly authorized
under the Plan.  Except as may otherwise
be specifically and unequivocally stated under any employee benefit plan,
policy or program, no amount payable in respect of any Award shall be treated
as compensation for purposes of calculating a Participant’s rights under any
such plan, policy or program.  The
selection of an Employee as a Participant shall neither entitle such Employee
to, nor disqualify such Employee from, participation in any other award or
incentive plan.


 


Section 13.6          No Voting Rights.  Except as otherwise required by law, no
Participant holding any Awards granted under the Plan shall have any right in
respect of such Awards to vote on any matter submitted to the Company’s
stockholders until such time as the shares of Common Stock underlying such
Awards have been issued, and then, subject to the voting restrictions contained
in the Subscription Agreement.


 


Section 13.7          Requirements of Law.  The granting of Awards and the issuance of
shares of Common Stock pursuant to the Plan shall be subject to all applicable
laws, rules and regulations, and to such approvals by any governmental
agencies or national securities exchanges as may be required.  No Awards shall be granted under the Plan,
and no Common Stock shall be issued under the Plan, if such grant or issuance
would result in a violation of applicable law, including U.S. federal
securities laws and any applicable state or non-U.S. securities laws.


 


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Section 13.8          Freedom of Action.  Nothing in the Plan or any Award Agreement
evidencing an Award shall be construed as limiting or preventing the Company or
any Subsidiary from taking any action that it deems appropriate or in its best
interest (as determined in its sole and absolute discretion) and no Participant
(or person claiming by or through a Participant) shall have any right relating
to the diminishment in the value of any Award as a result of any such action.


 


Section 13.9          Unfunded Plan; Plan Not Subject to
ERISA.  The Plan is an unfunded plan
and Participants shall have the status of unsecured creditors of the
Company.  The Plan is not intended to be
subject to the Employee Retirement Income and Security Act of 1974, as amended.


 


Section 13.10       Term of Plan.  The Plan shall be effective as of November 20,
2007, (the “Effective Date”) and shall continue in effect, unless sooner
terminated pursuant to Article XI, until the tenth anniversary of such
date.  The provisions of the Plan shall
continue thereafter to govern all outstanding Awards.


 


Section 13.11       Governing Law.  The Plan, and all agreements hereunder, shall
be governed by and construed in accordance with the law of the State of
Delaware regardless of the application of rules of conflict of law that
would apply the laws of any other jurisdiction.


 


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