Exhibit 10.6


 


DYNAVOX INC.


 


2010 LONG-TERM INCENTIVE
PLAN


 


1.                                       Purpose of the Plan


 


The purpose of the Plan is
to aid the Company and its Subsidiaries in recruiting and retaining key
employees, directors or other service providers and to motivate such employees,
directors or other service providers to exert their best efforts on behalf of
the Company and its Subsidiaries by providing incentives through the granting
of Awards.  The Company expects that it
will benefit from the added interest which such key employees, directors or
other service providers will have in the welfare of the Company as a result of
their proprietary interest in the Company’s success.


 


2.                                       Definitions


 


The following capitalized
terms used in the Plan have the respective meanings set forth in this Section:


 


(a)                                 Act:  The Securities Exchange Act of 1934, as
amended, or any successor thereto.


 


(b)                                Affiliate: 
With respect to any entity, any
entity directly or indirectly controlling, controlled by, or under common
control with, such entity.


 


(c)                                 Award:  An Option, Stock Appreciation Right, Other
Stock-Based Award or Performance-Based Award granted pursuant to the Plan.


 


(d)                                Board:  The Board of Directors of the Company.


 


(e)                                 Change in Control:  The occurrence of any of the following
events: (i) the sale or disposition, in one or a series of related
transactions, of all or substantially all of the assets of the Company to any “person”
or “group” (as such terms are defined in Sections 13(d)(3) and 14(d)(2) of
the Act) other than any member of the Vestar/Company Group; provided
that, for the avoidance of doubt, a sale of the Mayer-Johnson business shall
not constitute a Change in Control hereunder, (ii) any “person” or “group”,
other than any member of the Vestar/Company Group, is or becomes the “beneficial
owner” (as defined in Rules 13d-3 and 13d-5 under the Act), directly or
indirectly, of more than 50% of the total voting power of the voting stock of
the Company, including by way of purchase, merger, consolidation or otherwise,
or (iii) during any period of two (2) consecutive
years, individuals who at the beginning of such period constituted the Board
(together with any new directors whose election by such Board or whose
nomination for election by the shareholders of the Company was approved by a
vote of a majority of the directors of the Company, then still in office, who
were either directors at the beginning of such period or whose election or
nomination for election was previously so approved) (the “Incumbent Board”)
cease for any reason to constitute a majority of the Board then in office; provided that, any director appointed or elected to the
Board to avoid or settle a threatened or actual proxy contest shall in no event
be deemed to be an individual on the Incumbent Board.


 


(f)                                   Code:  The Internal Revenue Code of 1986, as
amended, or any successor thereto, and the regulations and guidance promulgated
thereunder.


 

















 


(g)                                Committee:  The
Compensation Committee of the Board (or a subcommittee thereof), or such other
committee of the Board (including, without limitation, the full Board) to which
the Board has delegated power to act under or pursuant to the provisions of the
Plan.


 


(h)                                Company:  DynaVox Inc., a Delaware corporation.


 


(i)                                    Disability:  Unless otherwise agreed by the Company (or any
of its Subsidiaries) in a written employment agreement or employment letter
with such Participant, the inability of the Participant to perform in all
material respects his or her duties and responsibilities to the Company or any
of its Subsidiaries by reason of a physical or mental disability or infirmity
which inability is reasonably expected to be permanent and has continued for a
period of six consecutive months or for an aggregate of nine months in any
twenty-four consecutive month period. 
The Disability determination shall be in the sole discretion of the
Committee.


 


(j)                                    Effective
Date:  The date the
Board approves the Plan, or such later date as is designated by the Board.


 


(k)                                 Employment:  The term “Employment” as used herein shall be
deemed to refer to (i) a Participant’s employment if the Participant is an
employee of the Company or any of its Subsidiaries, (ii) a Participant’s
services as a consultant, if the Participant is a consultant to the Company or
any of its Subsidiaries, and (iii) a Participant’s services as a
non-employee director, if the Participant is a non-employee member of the
Board.


 


(l)                                    Fair Market Value:  On a given date, (i) if there should be
a public market for the Shares on such date, the closing price of the Shares as
reported on such date on the Composite Tape of the principal national
securities exchange on which such Shares are listed or admitted to trading, or,
if the Shares are not listed or admitted on any national securities exchange,
the closing bid price on such date as quoted on the National Association of
Securities Dealers Automated Quotation System (or such market in which such
prices are regularly quoted (the “NASDAQ”), or, if no sale of Shares
shall have been reported on the Composite Tape of any national securities
exchange or quoted on the NASDAQ on such date, then the immediately preceding
date on which sales of the Shares have been so reported or quoted shall be
used, and (ii) if there should not be a public market for the Shares on
such date, the Fair Market Value shall be the fair market value of the Shares
as determined by the Committee in good faith.


 


(m)                              ISO: An
Option that is also an incentive stock option granted pursuant to Section 6(d) of
the Plan.


 


(n)                                Option:  A stock option granted pursuant to Section 6
of the Plan.


 


(o)                                Option Price:  The purchase price per Share of an Option, as
determined pursuant to Section 6(a) of the Plan.


 


(p)                                Other Stock-Based Awards:  Awards granted pursuant to Section 8 of
the Plan.


 


(q)                                Participant:  An employee, director or other service
provider of the Company or any of its Subsidiaries who is selected by the
Committee to participate in the Plan.


 


(r)                                   Performance-Based Awards:  Awards granted pursuant to Section 9 of
the Plan.


 


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(s)                                 Plan:  The DynaVox Inc. 2010 Long-Term Incentive Plan, as it may be amended from
time to time.


 


(t)                                   Service Recipient:  The Company, any
Subsidiary of the Company, or any Affiliate of the Company that satisfies the
definition of “service recipient” within the meaning of Treasury Regulation Section 1.409A-1
(or any successor regulation), with respect to which the person is a “service
provider” (within the meaning of Treasury Regulation Section 1.409A-1(or
any successor regulation).


 


(u)                                Shares:  Shares of Class A common stock of the
Company.


 


(v)                                Stock Appreciation Right:  A stock appreciation right granted pursuant
to Section 7 of the Plan.


 


(w)                               Subsidiary:  A subsidiary corporation, as defined in Section 424(f) of
the Code (or any successor section thereto).


 


(x)                                   Vestar/Company Group:
(i) Vestar Capital Partners IV, L.P. or any of its Affiliates, (ii) any
party from time to time to the Securityholders Agreement, dated as of or about
the date of the initial public offering of the Shares, by and among the
Company, DynaVox Systems Holdings LLC and the Securityholders from time to time
parties thereto, as such agreement may be amended from time to time (the “Securityholders
Agreement”) unless such party together with its Affiliates is the holder of securities
representing at least 50.01% of the outstanding voting securities of the
Company or is deemed to beneficially own at least 50.01% of the outstanding
voting securities of the Company for purposes of Rule 16a-1(a)(2) under
the Act or any group (as such term is used in Section 13(d)(3) of the
Act) to the extent that such group may be deemed to exist solely as a result of
the Securityholders Agreement, (iii) any employee benefit plan (or trust
forming a part thereof) maintained by the Company or any of its Affiliates, or (iv) any
corporation or other “person” of which a majority of the voting power of its
voting equity securities and equity interest is owned, directly or indirectly,
by the Company.


 


3.                                       Shares Subject to the Plan


 


Subject
to Section 10, the total number of Shares which may be issued under the
Plan is 3,550,000 and the maximum number of Shares for which ISOs may be
granted is 3,550,000.  The Shares may
consist, in whole or in part, of unissued Shares or treasury Shares.  The issuance of Shares shall reduce the total
number of Shares available under the Plan. 
Shares related to Awards or portions of Awards that are (a) forfeited,
terminated, canceled, expire unexercised, (b) withheld or tendered to
satisfy tax withholding obligations, the aggregate Option Price on the exercise
of Options or the purchase price for any other Award, or (c) repurchased
by the Company, in each case, shall immediately become available for new
Awards.  If an Award is settled for cash
(in whole or in part) or otherwise does not result in the issuance of all or a
portion of the Shares subject to such Award (including in connection with
payment in Shares on exercise of a Stock Appreciation Right) such Shares shall,
to the extent of such cash settlement, immediately become available for new
Awards.


 


Awards
may, in the discretion of the Committee, be made under the Plan in assumption
of, or in substitution for, outstanding awards previously granted by the
Company or any of its 


 


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Subsidiaries
or a company acquired by the Company or with which the Company combines.  The number of Shares underlying awards made
in assumption of, or in substitution for, outstanding awards previously granted
by a company acquired by the Company or any of its Subsidiaries or with which
the Company or any of its Subsidiaries combines shall not be counted against
the aggregate number of Shares available for Awards under the Plan, nor shall
the Shares subject to such substitute awards become available for new Awards
under the circumstances described in the prior paragraph of this Section 3.  In addition, in the event that a company
acquired by the Company or any of its Subsidiaries or with which the Company or
any of its Subsidiaries combines has shares available under a pre-existing plan
approved by shareholders and not adopted in contemplation of such acquisition
or combination, the shares available for grant pursuant to the terms of such
pre-existing plan (as adjusted, to the extent appropriate, using the exchange
ratio or other adjustment or valuation ratio or formula used in such
acquisition or combination to determine the consideration payable to the
holders of common stock of the entities party to such acquisition or
combination) may be used for Awards under the Plan and shall not reduce the
Shares authorized for issuance; provided that Awards using such available
shares shall not be made after the date awards or grants could have been made
under the terms of the pre-existing plan, absent the acquisition or
combination, and shall only be made to individuals who were not employees or
directors of the Company or any of its Subsidiaries prior to such acquisition
or combination.


 


4.                                       Administration


 


(a)                                 The Plan shall be administered by the Committee, which may
delegate its duties and powers in whole or in part to any subcommittee thereof
consisting solely of at least two individuals who are intended to qualify as “Non-Employee
Directors” within the meaning of Rule 16b-3 under the Act (or any
successor rule thereto), “independent directors” within the meaning of the
NASDAQ listed company rules and “outside directors” within the meaning of Section 162(m) of
the Code (or any successor section thereto), to the extent Rule 16b-3
under the Act and Section 162(m) of the Code, respectively, are
applicable to the Company and the Plan; provided, however, that
the Board may, in its sole discretion, take any action designated to the
Committee under this Plan as it may deem necessary.


 


(b)                                Subject to Section 17 of the Plan, the Committee is
authorized to (i) interpret the Plan, (ii) establish, amend and
rescind any rules and regulations relating to the Plan, and (iii) make
any other determinations that it deems necessary or desirable for the
administration of the Plan.  The
Committee may correct any defect or supply any omission or reconcile any
inconsistency in the Plan in the manner and to the extent the Committee deems
necessary or desirable.  Any decision of
the Committee in the interpretation and administration of the Plan, as
described herein, shall lie within its sole and absolute discretion and shall
be final, conclusive and binding on all parties concerned (including, but not
limited to, Participants and their beneficiaries or successors).  The Committee shall have the full power and
authority to establish the terms and conditions of any Award consistent with
the provisions of the Plan and to waive any such terms and conditions at any
time (including, without limitation, accelerating or waiving any vesting conditions).


 


(c)                                 The Committee shall require payment of any amount it may
determine to be necessary to withhold for federal, state, local or other taxes
as a result of the exercise, grant or 


 


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vesting of an Award and the Company or
any of its Subsidiaries shall have the right and is authorized to withhold any
applicable withholding taxes in respect to the Award, its exercise or any
payment or transfer under or with respect to the Award and to take such other action
as may be necessary in the opinion of the Committee to satisfy all obligations
for the payment of such withholding taxes. 
Unless the Committee specifies otherwise, the Participant may elect to
pay a portion or all of such withholding taxes by (i) delivery of Shares,
provided that such Shares have been held by the Participant for more than six (6) months
(or such other period as established by the Committee from time to time in
order to avoid adverse accounting treatment applying generally accepted accounting
principles) or (ii) with respect to minimum withholding amounts only,
having Shares with a Fair Market Value equal to the amount withheld by the
Company from any Shares that would have otherwise been received by the
Participant.


 


5.                                       Limitations


 


No Award may be granted
under the Plan after the tenth anniversary of the Effective Date, but Awards
theretofore granted may extend beyond that date.


 


6.                                       Terms and Conditions of Options


 


Options granted under the
Plan shall be non-qualified or incentive stock options for federal income tax
purposes, as determined by the Committee and evidenced by the related Award
agreements, and shall be subject to such other terms and conditions not
inconsistent therewith.  In addition to
the foregoing, except as otherwise determined by the Committee and evidenced by
the related Award agreements, the Options shall also be subject to the
following terms and conditions:


 


(a)                                  Option Price.  The Option Price per Share shall be
determined by the Committee, but shall not be less than 100% of the Fair Market
Value of a Share on the date an Option is granted (other than in the case of
Options granted in substitution of previously granted awards, as described in Section 3).


 


(b)                                Exercisability.  Options granted under the Plan shall be
exercisable at such time and upon such terms and conditions as may be
determined by the Committee, but in no event shall an Option be exercisable
more than ten years after the date it is granted.


 


(c)                                  Exercise of Options.  Except as otherwise provided in the Plan or
in an Award agreement, an Option may be exercised for all, or from time to time
any part, of the Shares for which it is then exercisable.  For purposes of Section 6 of the Plan,
the exercise date of an Option shall be the later of the date a notice of
exercise is received by the Company and, if applicable, the date payment is
received by the Company pursuant to clauses (i), (ii), (iii), (iv) or (v) in
the following sentence.  The purchase
price for the Shares as to which an Option is exercised shall be paid to the
Company in full at the time of exercise at the election of the Participant (i) in
cash or its equivalent (e.g., by
check), (ii) to the extent permitted by the Committee, in Shares having a
Fair Market Value equal to the aggregate Option Price for the Shares being
purchased and satisfying such other requirements as may be imposed by the
Committee; provided, that such Shares have been held by the Participant for
more than six months (or such other period as established from time to time by
the Committee in order to avoid adverse accounting treatment applying generally
accepted accounting principles), (iii) partly in cash and, to the
extent 


 


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permitted by the Committee, partly in
such Shares, (iv) if there is a public market for the Shares at such time,
to the extent permitted by, and subject to such rules as may be
established by the Committee, through the delivery of irrevocable instructions
to a broker to sell Shares obtained upon the exercise of the Option and to
deliver promptly to the Company an amount out of the proceeds of such sale
equal to the aggregate Option Price for the Shares being purchased, or (v) through net settlement in Shares as
described in Section 4(c)(ii) above.  No Participant shall have any rights to
dividends or other rights of a shareholder with respect to Shares subject to an
Option until the Participant has given written notice of exercise of the
Option, paid in full for such Shares and, if applicable, has satisfied any
other conditions imposed by the Committee pursuant to the Plan.


 


(d)                                ISOs.  The Committee may grant Options under the
Plan that are intended to be ISOs.  Such
ISOs shall comply with the requirements of Section 422 of the Code (or any
successor section thereto).  No ISO may
be granted to any Participant who at the time of such grant, owns more than ten
percent (10%) of the total combined voting power of all classes of stock of the
Company or of any of its Subsidiaries, unless (i) the Option Price for such
ISO is at least 110% of the Fair Market Value of a Share on the date the ISO is
granted and (ii) the date on which such ISO terminates is a date not later
than the day preceding the fifth anniversary of the date on which the ISO is
granted.  Any Participant who disposes of
Shares acquired upon the exercise of an ISO either (x) within two years
after the date of grant of such ISO or (y) within one year after the
transfer of such Shares to the Participant, shall notify the Company of such
disposition and of the amount realized upon such disposition.  All Options granted under the Plan are
intended to be nonqualified stock options, unless the applicable Award
agreement expressly states that the Option is intended to be an ISO.  If an Option is intended to be an ISO, and,
if for any reason such Option (or portion thereof) shall not qualify as an ISO,
then, to the extent of such nonqualification, such Option (or portion thereof)
shall be regarded as a nonqualified stock option granted under the Plan; provided
that such Option (or portion thereof) otherwise complies with the Plan’s
requirements relating to nonqualified stock options.  In no event shall any member of the
Committee, the Company or any of its Subsidiaries (or their respective
employees, officers or directors) have any liability to any Participant (or any
other Person) due to the failure of an Option to qualify for any reason as an
ISO.


 


(e)                                 Attestation.  Wherever in this Plan or any agreement
evidencing an Award a Participant is permitted to pay the Option Price of an
Option or taxes relating to the exercise of an Option by delivering Shares, the
Participant may, subject to procedures satisfactory to the Committee, satisfy
such delivery requirement by presenting proof of beneficial ownership of such Shares,
in which case the Company shall treat the Option as exercised without further
payment and shall withhold such number of Shares from the Shares acquired by
the exercise of the Option.


 


(f)                                    Repricing of Options.  Notwithstanding
any provision herein to the contrary, the repricing of an Option, once granted
hereunder, is prohibited without prior approval of the Company’s shareholders.
For this purpose, a “repricing” means any of the following (or any other action
that has the same effect as any of the following): (i) changing the terms
of an Option to lower the Option Price; (ii) any other action that is
treated as a “repricing” under generally accepted accounting principles; and (iii) repurchasing
for cash or canceling an Option at a time when the Option Price is greater than
the Fair Market Value of the underlying Shares in 


 


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exchange for another Award, unless the
cancellation and exchange occurs in connection with a change in capitalization
or similar change permitted under Section 10(a) below.  Such cancellation and exchange would be
considered a “repricing” regardless of whether it is treated as a “repricing”
under generally accepted accounting principles and regardless of whether it is
voluntary on the part of the Participant.


 


7.                                       Terms and Conditions of Stock Appreciation Rights


 


(a)                                 Grants.  The Committee also may grant (i) a Stock
Appreciation Right independent of an Option or (ii) a Stock Appreciation
Right in connection with an Option, or a portion thereof.  A Stock Appreciation Right granted pursuant
to clause (ii) of the preceding sentence (A) may be granted at
the time the related Option is granted or at any time prior to the exercise or
cancellation of the related Option, (B) shall cover the same number of
Shares covered by an Option (or such lesser number of Shares as the Committee
may determine) and (C) shall be subject to the same terms and conditions
as such Option except for such additional limitations as are contemplated by
this Section 7 (or such additional limitations as may be included in an
Award agreement).


 


(b)                                Terms.  The exercise price per Share of a Stock
Appreciation Right shall be an amount determined by the Committee but in no
event shall such amount be less than 100% of the Fair Market Value of a Share
on the date the Stock Appreciation Right is granted (other than in the case of
Stock Appreciation Rights granted in substitution of previously granted awards,
as described in Section 3); provided, however, that in the
case of a Stock Appreciation Right granted in conjunction with an Option, or a
portion thereof, the exercise price may not be less than the Option Price of
the related Option.  Each Stock
Appreciation Right granted independent of an Option shall entitle a Participant
upon exercise to an amount equal to (i) the excess of (A) the Fair
Market Value on the exercise date of one Share over (B) the exercise price
per Share, times (ii) the number of Shares covered by the Stock
Appreciation Right.  Each Stock
Appreciation Right granted in conjunction with an Option, or a portion thereof,
shall entitle a Participant to surrender to the Company the unexercised Option,
or any portion thereof, and to receive from the Company in exchange therefor an
amount equal to (i) the excess of (A) the Fair Market Value on the
exercise date of one Share over (B) the Option Price per Share, times (ii) the
number of Shares covered by the Option, or portion thereof, which is
surrendered.  The date a notice of
exercise is received by the Company shall be the exercise date.  Payment to the Participant shall be made in
Shares or in cash, or partly in Shares and partly in cash (any such Shares
valued at such Fair Market Value), all as shall be determined by the Committee.  Stock Appreciation Rights may be exercised
from time to time upon actual receipt by the Company of written notice of
exercise stating the number of Shares with respect to which the Stock
Appreciation Right is being exercised. 
No fractional Shares will be issued in payment for Stock Appreciation
Rights, but instead cash will be paid for a fraction or, if the Committee
should so determine, the number of Shares will be rounded downward to the next
whole Share.


 


(c)                                 Limitations.  The Committee may impose, in its discretion,
such conditions upon the exercisability or transferability of Stock
Appreciation Rights as it may deem fit, but in no event shall a Stock
Appreciation Right be exercisable more than ten years after the date it is
granted.


 


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(d)                                 Repricing of Stock Appreciation Rights.  Notwithstanding any provision herein to the contrary, the
repricing of a Stock Appreciation Right, once granted hereunder, is prohibited
without prior approval of the Company’s shareholders. For this purpose, a “repricing”
means any of the following (or any other action that has the same effect as any
of the following): (i) changing the terms of a Stock Appreciation Right to
lower its exercise price; (ii) any other action that is treated as a “repricing”
under generally accepted accounting principles; and (iii) repurchasing for
cash or canceling a Stock Appreciation Right at a time when its exercise price
is greater than the Fair Market Value of the underlying Shares in exchange for
another Award, unless the cancellation and exchange occurs in connection with a
change in capitalization or similar change permitted under Section 10(a) below.  Such cancellation and exchange would be
considered a “repricing” regardless of whether it is treated as a “repricing”
under generally accepted accounting principles and regardless of whether it is
voluntary on the part of the Participant.


 


8.                                       Other Stock-Based Awards


 


The Committee, in its sole discretion,
may grant or sell Awards of Shares, Awards of restricted Shares and Awards that
are valued in whole or in part by reference to, or are otherwise based on the
Fair Market Value of, Shares (such Awards, “Other Stock-Based Awards”).  Such Other Stock-Based Awards shall be in
such form, and dependent on such conditions, as the Committee shall determine,
including, without limitation, the right to receive, or vest with respect to,
one or more Shares (or the equivalent cash value of such Shares) upon the
completion of a specified period of service, the occurrence of an event and/or the
attainment of performance objectives. 
Other Stock-Based Awards may be granted alone or in addition to any
other Awards granted under the Plan. 
Subject to the provisions of the Plan, the Committee shall determine to
whom and when Other Stock-Based Awards will be made, the number of Shares to be
awarded under (or otherwise related to) such Other Stock-Based Awards, whether
such Other Stock-Based Awards shall be settled in cash, Shares or a combination
of cash and Shares, and all other terms and conditions of such Awards
(including, without limitation, the vesting provisions thereof and provisions
ensuring that all Shares so awarded and issued shall be fully paid and
non-assessable).


 


9.                                       Performance-Based Awards


 


During
any period when Section 162(m) of the Code is applicable to the
Company and the Plan, the Committee, in its sole discretion, may grant Awards
which are denominated in Shares or cash (such Awards, “Performance-Based
Awards”), which Awards may, but for the avoidance of doubt are not required
to, be granted in a manner which is intended to be deductible by the Company
under Section 162(m) of the Code (or any successor section
thereto).  Such Performance-Based Awards
shall be in such form, and dependent on such conditions, as the Committee shall
determine, including, without limitation, the right to receive, or vest with
respect to, one or more Shares or the cash value of the Award upon the
completion of a specified period of service, the occurrence of an event and/or
the attainment of performance objectives. 
Performance-Based Awards may be granted alone or in addition to any
other Awards granted under the Plan. 
Subject to the provisions of the Plan, the Committee shall determine to
whom and when Performance-Based Awards will be made, the number of Shares or
aggregate amount of cash to be awarded under (or otherwise related to) such
Performance-Based Awards, whether such Performance-Based Awards shall be
settled in cash, Shares or a combination of cash and Shares, and all other
terms and conditions of such Awards (including, without limitation, the 


 


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vesting
provisions thereof and provisions ensuring that all Shares so awarded and
issued, to the extent applicable, shall be fully paid and non-assessable).


 


A
Participant’s Performance-Based Award shall be determined based on the
attainment of written performance goals approved by the Committee for a
performance period established by the Committee (i) while the outcome for
that performance period is substantially uncertain and (ii) no more than
90 days after the commencement of the performance period to which the
performance goal relates or, if less, the number of days which is equal to 25
percent of the relevant performance period. 
The performance goals, which must be objective, shall be based upon one
or more of the following criteria: (i) consolidated income before or after
taxes (including income before interest, taxes, depreciation and amortization);
(ii) EBITDA; (iii) adjusted EBITDA; (iv) operating income; (v) net
income; (vi) net income per Share; (vii) book value per Share; (viii) return
on members’ or shareholders’ equity; (ix) expense management; (x) return
on investment; (xi) improvements in capital structure; (xii) profitability of
an identifiable business unit or product; (xiii) maintenance or improvement of
profit margins; (xiv) stock price; (xv) market share; (xvi) revenue or sales;
(xvii) costs; (xviii) cash flow; (xix) working capital; (xx) multiple of
invested capital; (xxi) total return; and (xxii) such other objective
performance criteria as determined by the Committee in its sole
discretion.  The foregoing criteria may
relate to the Company, one or more of its Subsidiaries or one or more of its or
their divisions or units, or any combination of the foregoing, and may be
applied on an absolute basis and/or be relative to one or more peer group
companies or indices, or any combination thereof, all as the Committee shall
determine.  In addition, to the degree
consistent with Section 162(m) of the Code (or any successor section
thereto), the performance goals may be calculated without regard to
extraordinary items.  The maximum amount
of a Performance-Based Award during a fiscal year to any Participant shall be: (x) with
respect to Performance-Based Awards that are denominated in Shares, 300,000 Shares and (y) with
respect to Performance-Based Awards that are denominated in cash, $4
million.  The Committee shall determine
whether, with respect to a performance period, the applicable performance goals
have been met with respect to a given Participant and, if they have, during any
period when Section 162(m) of the Code is applicable to the Company
and the Plan and such Performance-Based Award is intended to be deductible by
the Company under Section 162(m) of the Code, shall so certify and
ascertain the amount of the applicable Performance-Based Award.  No Performance-Based Awards will be paid for
such performance period until such certification, to the extent applicable, is
made by the Committee.  The amount of the
Performance-Based Award actually paid to a given Participant may be less than
the amount determined by the applicable performance goal formula, at the
discretion of the Committee.  The amount
of the Performance-Based Award determined by the Committee for a performance
period shall be paid to the Participant at such time as determined by the
Committee in its sole discretion after the end of such performance period;
provided, however, that a Participant may, if and to the extent permitted by
the Committee and consistent with the provisions of Sections 162(m) and
409A of the Code, to the extent applicable, elect to defer payment of a
Performance-Based Award.


 


10.                                 Adjustments Upon Certain Events


 


Notwithstanding any other
provisions in the Plan to the contrary, the following provisions shall apply to
all Awards granted under the Plan:


 


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(a)                                 Generally.  In the event of any change in the outstanding
Shares after the Effective Date by reason of any Share dividend or split,
reorganization, recapitalization, merger, consolidation, spin-off, combination,
combination or transaction or exchange of Shares or other corporate exchange,
or any distribution to shareholders other than regular cash dividends or any
transaction similar to the foregoing, the Committee in its sole discretion and
without liability to any Person shall make such substitution or adjustment, if
any, as it deems to be equitable (subject to Section 21), as to (i) the
number or kind of Shares or other securities issued or reserved for issuance
pursuant to the Plan or pursuant to outstanding Awards, (ii) the maximum
number of Shares for which Options or Stock Appreciation Rights may be granted
during a fiscal year to any Participant, (iii) the maximum amount of a
Performance Based Award that may be granted during a fiscal year to any
Participant, (iv) the Option Price or exercise price of any Award and/or (v) any
other affected terms of such Awards.


 


(b)                                Change in Control.
In the event of a Change in Control after the Effective Date, (i) if
determined by the Committee in the applicable Award agreement or otherwise, any
outstanding Awards then held by Participants which are unexercisable or
otherwise unvested or subject to lapse restrictions shall  automatically be deemed exercisable or
otherwise vested or no longer subject to lapse restrictions, as the case may
be, as of immediately prior to such Change in Control and (ii) the
Committee may (subject to Section 21), but shall not be obligated to,
provide for the issuance of substitute Awards that will substantially preserve
the otherwise applicable terms of any affected Awards previously granted
hereunder, including without limitation, any applicable vesting conditions
(such Awards, “Substitute Awards”), as determined by the Committee in
its sole discretion; provided, however, that if the Committee does not provide
for the issuance of  Substitute Awards,
it may (subject to Section 21), but shall not be obligated to, (A) cancel
Awards for fair value (as determined in the sole discretion of the Committee),
to the extent permitted under Section 409A of the Code, which, in the case
of Options and Stock Appreciation Rights, may equal the excess, if any, of
value of the consideration to be paid in the Change in Control transaction to
holders of the same number of Shares subject to such Options or Stock
Appreciation Rights (or, if no consideration is paid in any such transaction,
the Fair Market Value of the Shares subject to such Options or Stock Appreciation
Rights) over the aggregate Option Price or exercise price of such Options or
Stock Appreciation Rights, or (B) provide that for a period of at least 15
days prior to the Change in Control, such Awards shall be exercisable, to the
extent applicable, as to all Shares subject thereto and the Committee may
further provide that upon the occurrence of the Change in Control, such Awards
shall terminate and be of no further force and effect.  For the avoidance of doubt, pursuant to (A) above,
the Committee may cancel Options and Stock Appreciation Rights for no
consideration if the aggregate Fair Market Value of the Shares subject to such
Options or Stock Appreciation Rights is less than or equal to the aggregate
Option Price of such Options or exercise price
of such Stock Appreciation Rights.


 


11.                                 Forfeiture/Clawback


 


The Committee may,
in its sole discretion, specify in an Award that the Participant’s rights,
payments, and benefits with respect to an Award shall be subject to reduction,
cancellation, forfeiture or recoupment upon the occurrence of certain specified
events, in addition to any otherwise applicable vesting or performance
conditions of an Award. Such events may include, but shall not be limited to,
termination of Employment for cause, termination of the Participant’s 


 


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provision of
services to the Company or any of its Subsidiaries, breach of noncompetition,
confidentiality, or other restrictive covenants that may apply to the
Participant, or restatement of the Company’s financial statements to reflect
adverse results from those previously released financial statements, as a
consequence of errors, omissions, fraud, or misconduct.


 


12.                                 No Right to Employment or Awards


 


The granting of an Award under
the Plan shall impose no obligation on the Company or any of its Subsidiaries
to continue the Employment of a Participant and shall not lessen or affect the
Company’s or any Subsidiary’s right to terminate the Employment of such
Participant.  No Participant or other
Person shall have any claim to be granted any Award, and there is no obligation
for uniformity of treatment of Participants, or holders or beneficiaries of
Awards.  The terms and conditions of
Awards and the Committee’s determinations and interpretations with respect
thereto need not be the same with respect to each Participant (whether or not
such Participants are similarly situated).


 


13.                                 Certificates


 


All
certificates, if any, evidencing Shares or other securities of the Company
delivered under the Plan pursuant to any Award or the exercise thereof shall be
subject to such stop transfer orders and other restrictions as the Committee
may deem advisable under the Plan or the rules, regulations, and other
requirements of the Securities and Exchange Commission or other applicable
governmental authority, any stock exchange or market upon which such securities
are then listed, admitted or quoted, as applicable, and any applicable Federal,
state or any other applicable laws, and the Committee may cause a legend or
legends to be put on any such certificates to make appropriate reference to
such restrictions.


 


14.                                 Other Laws


 


The
Committee may refuse to issue or transfer any Shares or other consideration
under an Award if, acting in its sole discretion, it determines that the
issuance or transfer of such Shares or such other consideration might violate
any applicable law or regulation and any payment tendered to the Company  by a Participant, other holder or
beneficiary in connection with the exercise of such Award shall be promptly
refunded to the relevant Participant, holder or beneficiary.  Without limiting the generality of the
foregoing, no Award granted hereunder shall be construed as an offer to sell
securities of the Company, and no such offer shall be outstanding, unless and
until the Committee in its sole discretion has determined that any such offer,
if made, would be in compliance with all applicable requirements of applicable
securities laws, including, without limitation, laws of the United States (and
any state thereof), and England.


 


15.                                 Successors and Assigns


 


The Plan shall be binding on
all successors and assigns of the Company and a Participant, including without
limitation, the estate of such Participant and the executor, administrator or
trustee of such estate, or any receiver or trustee in bankruptcy or
representative of the Participant’s creditors.


 


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16.                                 Nontransferability of Awards


 


Unless otherwise determined
by the Committee, an Award shall not be transferable or assignable by the
Participant otherwise than by will or by the laws of descent and
distribution.  An Award exercisable after
the death of a Participant may be exercised by the legatees, personal
representatives or distributees of the Participant.


 


17.                                 Amendments or Termination


 


The Board may amend, alter
or discontinue the Plan, but no amendment, alteration or discontinuation shall
be made, (a) without the approval of the shareholders of the Company to
the extent such approval is (x) required by or (y) desirable to
satisfy the requirements of, in each case, any applicable law, regulation or
other rule, including, the listing standards of the securities exchange, which
is, at the applicable time, the principal market for the Shares or (b) without
the consent of a Participant, if such action would materially adversely affect
any of the rights of the Participant under any Award theretofore granted to
such Participant under the Plan; provided, however, that the Committee may amend
the Plan in such manner as it deems necessary to permit the granting of Awards
meeting the requirements of the Code or other applicable laws (including,
without limitation, to avoid adverse tax or accounting consequences to the
Company or to Participants).


 


18.                                 International Participants


 


With respect to Participants
who reside or work outside the United States of America and who are not (and
who are not expected to be) “covered employees” within the meaning of Section 162(m) of
the Code, the Committee may, in its sole discretion, amend the terms of the
Plan or Awards with respect to such Participants in order to conform such terms
with the requirements of local law or to obtain more favorable tax or other
treatment for a Participant, the Company or a Subsidiary.


 


19.                                 Choice of Law


 


The Plan shall be governed
by and construed in accordance with the laws of the State of Delaware without
regard to conflicts of laws.


 


20.                                 Effectiveness of the Plan


 


The Plan shall be effective as of the Effective Date,
subject to the approval of the shareholders of the Company.


 


21.                                 Section 409A


 


To the extent applicable,
this Plan and all Awards granted hereunder are intended to comply with Section 409A
of the Code and will be interpreted in a manner intended to comply with Section 409A
of the Code.  References under the Plan or an Award to the
Participant’s termination of Employment shall be deemed to refer to the date
upon which the Participant has experienced a “separation from service” within
the meaning of Section 409A of the Code. 
Notwithstanding anything herein to the contrary, (i) if at the
time of the Participant’s separation from service with any Service Recipient
the Participant is a “specified employee” as defined in Section 409A of
the 


 


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Code, and the deferral of
the commencement of any payments or benefits otherwise payable hereunder as a
result of such separation from service is necessary in order to prevent the
imposition of any accelerated or additional tax under Section 409A of the
Code, then the Company will defer the commencement of the payment of any such
payments or benefits hereunder (without any reduction in such payments or
benefits ultimately paid or provided to the Participant) to the minimum extent
necessary to satisfy Section 409A of the Code until the date that is six
months and one day following the Participant’s separation from service with all Service Recipients
(or the earliest date as is permitted under Section 409A of the Code), if
such payment or benefit is payable upon a termination of Employment and (ii) if
any other payments of money or other benefits due to the Participant hereunder
would cause the application of an accelerated or additional tax under Section 409A
of the Code, such payments or other benefits shall be deferred, if deferral
will make such payment or other benefits compliant under Section 409A of
the Code, or otherwise such payment or other benefits shall be restructured, to
the minimum extent necessary, in a manner, reasonably determined by the Board,
that does not cause such an accelerated or additional tax or result in an
additional cost to the Company (without any reduction in such payments or
benefits ultimately paid or provided to the Participant).


 


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