Unassociated Document


    Exhibit
      10.1

    
      GLYCOGENESYS,
        INC.

      2003
        OMNIBUS INCENTIVE PLAN, AS AMENDED

      


      1.  Purpose.
        The purpose of the GlycoGenesys, Inc. 2003 Omnibus Incentive Plan, as amended
        (the "Plan") is to provide (i) officers and key employees of GlycoGenesys,
        Inc.
        (the “Company”) and its subsidiaries, (ii) certain consultants and advisors who
        perform services for the Company or its subsidiaries, and (iii) members of
        the
        Board of Directors of the Company (the “Board”), with the opportunity to acquire
        shares of the Common Stock of the Company (“Common Stock”) or receive monetary
        payments based on the value of such shares or upon the satisfaction of other
        performance criteria intended to enhance the value of such shares. The Company
        believes that the Plan will enhance the incentive for Participants (as defined
        in Section 3) to contribute to the growth of the Company, thereby benefiting
        the
        Company and the Company’s shareholders, and will align the economic interests of
        the Participants with those of the shareholders.

       

      2.  Administration.
        

       

      (a)  Committee.
        The Plan shall be administered and interpreted by a compensation committee
        (the
“Committee”). The Committee may consist of two or more members of the Board who
        are “outside directors” as defined under Section 162(m) of the Internal Revenue
        Code of 1986, as amended (the “Code”) and “non-employee directors” as defined
        under Rule 16b-3 under the Securities Exchange Act of 1934, as amended (the
        “Exchange Act”), or such other members of the Board. 

       

      (b)  Authority
        of Committee. The Committee has the sole authority, subject to the
        provisions of the Plan, to (i) select the employees and other individuals
        to
        receive Awards (as defined in Section 4) under the Plan, (ii) determine the
        type, size and terms of the Awards to be made to each individual selected,
        (iii)
        determine the time when the Awards will be granted and the duration of any
        applicable exercise and vesting period, including the criteria for
        exercisability and vesting and the acceleration of exercisability and vesting
        with respect to each individual selected, and (iv) deal with any other matter
        arising under the Plan. The Committee is authorized to interpret the Plan
        and
        the Awards granted under the Plan, to establish, amend and rescind any rules
        and
        regulations relating to the Plan, and to make any other determination 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 or in any Award 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 shall lie within its sole and absolute discretion
        and
        shall be final, conclusive and binding on all parties concerned. All powers
        of
        the Committee shall be executed in its sole discretion and need not be uniform
        as to similarly situated individuals. Any act of the Committee with respect
        to
        the Plan may only be undertaken and executed with the affirmative consent
        of at
        least two-thirds of the members of the Committee.

       

      (c)  Responsibility
        of Committee. No member of the Board, no member of the Committee and no
        employee of the Company shall be liable for any act or failure to act hereunder,
        except in circumstances involving his or her bad faith, gross negligence
        or
        willful misconduct, or for any act or failure to act hereunder by any other
        member of the Committee or employee of the Company. The Company shall indemnify
        members of the Committee and any employee of the Company against any and
        all
        liabilities or expenses to which they may be subjected by reason of any act
        or
        failure to act with respect to their duties under the Plan, except in
        circumstances involving his or her bad faith, gross negligence or willful
        misconduct.

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

      (d)  Delegation
        of Authority. The Board may delegate to the President of the Company the
        authority to (i) make grants under the Plan to employees of the Company and
        its
        subsidiaries who are not subject to the restrictions of Section 16(b) of
        the
        Exchange Act and who are not expected to be subject to the limitations of
        Section 162(m) of the Code, and (ii) execute and deliver documents or take
        any
        other ministerial actions on behalf of the Committee with respect to Awards.
        The
        grant of authority under this Subsection 2(d) shall be subject to such
        conditions and limitations as may be determined by the Board (as required
        under
        applicable law). If the President makes grants pursuant to the delegated
        authority under this Subsection 2(d), references in the Plan to the “Committee”
        as they relate to making such grants shall be deemed to refer to the
        President.

       

      3.  Participants.
        All employees, officers and directors of the Company and its subsidiaries
        (including members of the Board who are not employees), as well as consultants
        and advisors to the Company or its subsidiaries, are eligible to participate
        in
        the Plan. Consistent with the purposes of the Plan, the Committee shall have
        exclusive power to select the employees, officers, directors and consultants
        and
        advisors who may participate in the Plan (“Participants”). Eligible individuals
        may be selected individually or by groups or categories, as determined by
        the
        Committee in its discretion, and designation as a person to receive Awards
        in
        any year shall not require the Committee to designate such a person as eligible
        to receive Awards in any other year.

       

      4.  Types
        of Awards. Awards under the Plan may be granted in any one or a combination
        of (a) Stock Options, (b) Stock Appreciation Rights, (c) Restricted Stock
        Awards, (d) Deferred Stock Units, and (e) Performance Awards (each as described
        below, and collectively, “Awards”). Awards may constitute Performance-Based
        Awards, as described in Section 10. Each Award shall be evidenced by a written
        agreement between the Company and the Participant (an “Agreement”), which need
        not be identical between Participants or among Awards, in such form as the
        Committee may from time to time approve; provided, however, that in the event
        of
        any conflict between the provisions of the Plan and any Agreement, the
        provisions of the Plan shall prevail.

       

      5.  Common
        Stock Available under the Plan. The aggregate number of shares of Common
        Stock that may be subject to Awards shall be 1,104,167 shares of Common Stock,
        which may be authorized and unissued or treasury shares, subject to any
        adjustments made in accordance with Section 12 hereof. The maximum number
        of
        shares of Common Stock with respect to which Awards may be granted to any
        individual Participant in any one calendar year shall be 100,000 shares.
        Any
        share of Common Stock subject to an Award that for any reason is cancelled
        or
        terminated without having been exercised or vested shall again be available
        for
        Awards under the Plan; provided, however, that any such availability shall
        apply
        only for purposes of determining the aggregate number of shares of Common
        Stock
        subject to Awards and shall not apply for purposes of determining the maximum
        number of shares subject to Awards that any individual Participant may
        receive.

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

      6.  Stock
        Options. Stock Options will enable a Participant to purchase shares of
        Common Stock upon set terms and at a fixed purchase price. Stock Options
        may be
        treated as (i) “incentive stock options” within the meaning of Section 422(b) of
        the Code (“Incentive Stock Options”), or (ii) Stock Options which do not
        constitute Incentive Stock Options (“Nonqualified Stock Options”). Each Stock
        Option shall be subject to the terms, conditions and restrictions consistent
        with the Plan as the Committee may impose, subject to the following
        limitations:

       

      (a)  Exercise
        Price. The exercise price per share (the “Exercise Price”) of Common Stock
        subject to a Stock Option shall be determined by the Committee and may be
        equal
        to, greater than, or less than the Fair Market Value (as defined in Section
        16)
        of a share of Common Stock on the date the Stock Option is granted.

       

      (b)  Payment
        of Exercise Price. The Exercise Price may be paid in cash or, in the
        discretion of the Committee, by the delivery of shares of Common Stock that
        have
        been owned by the Participant for at least six months, or by a combination
        of
        these methods. In the discretion of the Committee, payment may also be made
        by
        delivering a properly executed exercise notice to the Company together with
        a
        copy of irrevocable instructions to a broker to deliver promptly to the Company
        the amount of sale or loan proceeds to pay the Exercise Price. To facilitate
        the
        foregoing, the Company may enter into agreements for coordinated procedures
        with
        one or more brokerage firms. The Committee may also prescribe any other method
        of paying the Exercise Price that it determines to be consistent with applicable
        law and the purpose of the Plan, including, without limitation, in lieu of
        the
        exercise of a Stock Option by delivery of shares of Common Stock of the Company
        then owned by the Participant, providing the Company with a notarized statement
        attesting to the number of shares owned for at least six months, where upon
        verification by the Company, the Company would issue to the Participant only
        the
        number of incremental shares to which the Participant is entitled upon exercise
        of the Stock Option.

       

      (c)  Exercise
        Period. Stock Options shall be exercisable at such time or times and subject
        to such terms and conditions as shall be determined by the Committee; provided,
        however, that no Stock Option shall be exercisable later than ten years after
        the date it is granted. All Stock Options shall terminate at such earlier
        times
        and upon such conditions or circumstances as the Committee shall determine,
        as
        set forth in the related Agreement.

       

      (d)  Limitations
        on Incentive Stock Options. Incentive Stock Options may be granted only to
        Participants who, at the time of the grant, are employees of the Company
        or a
        parent or subsidiary of the Company, and only at an Exercise price that is
        not
        less than the Fair Market Value of a share of Common Stock on the date of
        the
        grant. The aggregate Fair Market Value of the Common Stock (determined as
        of the
        date of the grant) with respect to which Incentive Stock Options are exercisable
        for the first time by a Participant during any calendar year (under all option
        plans of the Company) shall not exceed $100,000. For purposes of the preceding
        sentence, Incentive Stock Options will be taken into account in the order
        in
        which they are granted. Incentive Stock Options may not be granted to a
        Participant who, at the time of grant, owns stock possessing (after the
        application of the attribution rules of Section 424(d) of the Code) more
        than
        10% of the total combined voting power of all outstanding classes of stock
        of
        the Company or any subsidiary of the Company, unless the option price is
        fixed
        at not less than 110% of the Fair Market Value of the Common Stock on the
        date
        of grant and the exercise of such Incentive Stock Option is prohibited by
        its
        terms after the expiration of five years from its date of grant. 

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

      (e)  Termination
        of Employment, Disability or Death.

       

      (1)  Except
        as provided below or in an Agreement, a Stock Option may only be exercised
        while
        the Participant is employed by, or providing service to, the Company, as
        an
        employee, member of the Board or advisor or consultant. In the event that
        a
        Participant ceases to be employed by, or provide service to, the Company
        for any
        reason other than Disability (as defined in Paragraph (5) below), death or
        termination for Cause (as defined in Paragraph (5) below), any Stock Option
        which is otherwise exercisable by the Participant shall terminate unless
        exercised within 90 days after the date on which the Participant ceases to
        be
        employed by, or provide service to, the Company, but in any event no later
        than
        the date of expiration of the Stock Option. Except as otherwise provided
        by the
        Committee, any Stock Options which are not otherwise exercisable as of the
        date
        on which the Participant ceases to be employed by, or provide service to,
        the
        Company shall terminate as of such date.

       

      (2)  In
        the event the Participant ceases to be employed by, or provide service to,
        the
        Company on account of a termination for Cause by the Company, any Stock Option
        held by the Participant shall terminate as of the date the Participant ceases
        to
        be employed by, or provide service to, the Company. In addition, notwithstanding
        any other provisions of this Section 6, if the Committee determines that
        the
        Participant has engaged in conduct that constitutes Cause at any time while
        the
        Participant is employed by, or providing service to, the Company, or after
        the
        Participant’s termination of employment or service, any Stock Option held by the
        Participant shall immediately terminate. In the event the Committee determines
        that the Participant has engaged in conduct that constitutes Cause, in addition
        to the immediate termination of all Stock Options, the Participant shall
        automatically forfeit all shares underlying any exercised portion of a Stock
        Option for which the Company has not yet delivered the share certificates,
        upon
        refund by the Company of the Exercise Price paid by the Participant for such
        shares (subject to any right of setoff by the Company).

       

      (3)  In
        the event the Participant ceases to be employed by, or provide service to,
        the
        Company because the Participant is Disabled, any Stock Option which is otherwise
        exercisable by the Participant shall terminate unless exercised within one
        year
        after the date on which the Participant ceases to be employed by, or provide
        service to, the Company, but in any event no later than the date of expiration
        of the Stock Option.

       

      (4)  If
        the Participant dies while employed by, or providing service to, the Company,
        any Stock Option which is otherwise exercisable by the Participant shall
        terminate unless exercised within one year after the date on which the
        Participant ceases to be employed by, or provide service to, the Company,
        but in
        any event no later than the date of expiration of the Stock Option.

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

      (5)  For
        purposes of this Section 6(e):

       

      (A)  The
        term “Company” shall mean the Company and its subsidiary corporations.

       

      (B)  “Disability”
        or “Disabled” shall mean a Participant’s becoming disabled within the meaning of
        Section 22(e)(3) of the Code.

       

      (C)  “Cause”
        shall mean, except to the extent specified otherwise by the Committee, a
        finding
        by the Committee that the Participant has breached any provision of his or
        her
        terms of employment or service contract with the Company, including without
        limitation covenants against competition, or has engaged in disloyalty to
        the
        Company, including, without limitation, fraud, embezzlement, theft, commission
        of a felony or proven dishonesty in the course of his or her employment or
        service, or has disclosed trade secrets or confidential information of the
        Company to persons not entitled to receive such information.

       

      7.  Stock
        Appreciation Rights. Stock Appreciation Rights shall provide a Participant
        with the right to receive a payment, in cash, Common Stock or a combination
        thereof, in an amount equal to the excess of (i) the Fair Market Value, or
        other
        specified valuation, of a specified number of shares of Common Stock on the
        date
        the right is exercised, over (ii) the Fair Market Value of such shares on
        the
        date of grant, or other specified valuation (which shall be no less than
        the
        Fair Market Value on the date of grant). Each Stock Appreciation Right shall
        expire no more than ten years from its date of grant, and shall be subject
        to
        such other terms and conditions as the Committee shall deem appropriate,
        including, without limitation, provisions for the forfeiture of the Stock
        Appreciation Right for no consideration upon termination of employment. 

       

      8.  Restricted
        Stock Awards. Restricted Stock Awards shall consist of Common Stock issued
        or transferred to Participants with or without other payments therefor as
        additional compensation for services to the Company. Restricted Stock Awards
        may
        be subject to such terms and conditions as the Committee determines appropriate,
        including, without limitation, restrictions on the sale or other disposition
        of
        such shares and the right of the Company to reacquire such shares for no
        consideration upon termination of the Participant’s employment within specified
        periods or prior to becoming vested. The Committee may require the Participant
        to deliver a duly signed stock power, endorsed in blank, relating to the
        Common
        Stock covered by a Restricted Stock Award. The Committee may also require
        that
        the stock certificates evidencing such shares be held in custody or bear
        restrictive legends until the restrictions thereon shall have lapsed. The
        Restricted Stock Award shall specify whether the Participant shall have,
        with
        respect to the shares of Common Stock subject to a Restricted Stock Award,
        all
        of the rights of a holder of shares of Common Stock of the Company, including
        the right to receive dividends and to vote the shares.

       

      9.  Deferred
        Stock Units. Deferred Stock Units shall provide a Participant with the right
        to receive a specified number of shares of Common Stock at the end of a
        specified period. The Committee shall have complete discretion in determining
        the number, vesting and time of payment of Common Stock with respect to Deferred
        Stock Units granted to each Participant, as set forth in the Agreement. The
        Committee may condition the vesting or payment of Deferred Stock Units upon
        the
        attainment of specific performance goals, or subject Deferred Stock Units
        to
        such other terms and conditions as the Committee deems appropriate and as
        set
        forth in the Agreement, including, without limitation, provisions for the
        forfeiture of Deferred Stock Units (and the Common Stock payable thereunder)
        for
        no consideration upon termination of the Participant’s employment prior to the
        end of a specified period.

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

      10.  Performance
        Awards. Performance Awards shall provide a Participant with the right to
        receive a specified number of shares of Common Stock or cash at the end of
        a
        specified period. The Committee shall have complete discretion in determining
        the number, amount and timing of Performance Awards granted to each Participant.
        The Committee may condition the vesting or payment of Performance Awards
        upon
        the attainment of specific performance goals or such other terms and conditions
        as the Committee deems appropriate, including, without limitation, provisions
        for the forfeiture of such payment for no consideration upon termination
        of the
        Participant’s employment prior to the end of a specified period. 

       

      11.  Performance-Based
        Awards. Certain Awards granted under the Plan may be granted in a manner
        such that they qualify for the performance based compensation exemption from
        Section 162(m) of the Code (“Performance-Based Awards”). As determined by the
        Committee in its sole discretion, either the granting, vesting or payment
        of
        such Performance-Based Awards are to be based upon one or more of the following
        factors: net sales; pretax income before allocation of corporate overhead
        and
        bonus; budget; earnings per share; net income; division, group or corporate
        financial goals; return on stockholders’ equity; return on assets; attainment of
        strategic and operational initiatives; appreciation in and/or maintenance
        of the
        price of the Common Stock or any other publicly-traded securities of the
        Company; market share; gross profits; earnings before interest and taxes;
        earnings before interest, taxes, depreciation and amortization; economic
        value-added models and comparisons with various stock market indices; reductions
        in costs; or any combination of the foregoing. With respect to Performance-Based
        Awards that are not Stock Options or Stock Appreciation Rights based solely
        on
        the appreciation in the Fair Market Value of Common Stock after the grant
        of the
        Award, (i) the Committee shall establish in writing (x) the objective
        performance-based goals applicable to a given period and (y) the individual
        employees or class of employees to which such performance-based goals apply,
        no
        later than 90 days after the commencement of such fiscal period (but in no
        event
        after 25% of such period has elapsed), (ii) no Performance-Based Awards shall
        be
        payable to or vest with respect to, as the case may be, any Participant for
        a
        given fiscal period until the Committee certifies in writing that the objective
        performance goals (and any other material terms) applicable to such period
        have
        been satisfied, and (iii) the Committee may reduce or eliminate the number
        of
        shares of Common Stock or cash granted or the number of shares of Common
        Stock
        vested upon the attainment of such performance goal. After establishment
        of a
        performance goal, the Committee shall not revise such performance goal or
        increase the amount of compensation payable thereunder (as determined in
        accordance with Section 162(m) of the Code) upon the attainment of such
        performance goal.

       

      12.  Adjustments
        to Awards. In the event of any change in the outstanding Common Stock of the
        Company by reason of any stock split, stock dividend, split-up, split-off,
        spin-off, recapitalization, merger, consolidation, reorganization, combination
        or exchange of shares, a sale by the Company of all or part of its assets,
        or in
        the event of any distribution to stockholders of other than a normal cash
        dividend, or other extraordinary or unusual event, if the Committee shall
        determine, in its discretion, that such change equitably requires an adjustment
        to the terms of any Awards or the number of shares of Common Stock that are
        subject to Awards, such adjustment shall be made by the Committee and shall
        be
        final, conclusive and binding for all purposes of the Plan.

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

      13.  Change
        in Control.

       

      (a)  Effect.
        In its sole discretion, the Committee may determine that, upon the occurrence
        of
        a Change in Control (as defined below), all or a portion of each outstanding
        Award shall become exercisable or payable in full (if applicable, and whether
        or
        not then exercisable), either upon the Change of Control or at such other
        date
        or dates that the Committee may determine, and that any forfeiture and vesting
        restrictions thereon shall lapse on such date or dates. In its sole discretion,
        the Committee may also determine that, upon the occurrence of a Change in
        Control, each outstanding Stock Option and Stock Appreciation Right shall
        terminate within a specified number of days after notice to the Participant
        thereunder, and each such Participant shall receive, with respect to each
        share
        of Common Stock subject to such Stock Option or Stock Appreciation Right,
        an
        amount equal to the excess of the Fair Market Value of such shares immediately
        prior to such Change in Control over the exercise price per share of such
        Stock
        Option or Stock Appreciation Right; such amount shall be payable in cash,
        in one
        or more kinds of property (including the property, if any, payable in the
        transaction) or a combination thereof, as the Committee shall determine in
        its
        sole discretion.

       

      (b)  Defined.
        For purposes of this Plan, a Change in Control shall be deemed to have occurred
        if:

       

      (1)  a
        tender offer (or series of related offers) shall be made and consummated
        for the
        ownership of 30% or more of the outstanding voting securities of the
        Company;

       

      (2)  the
        Company shall be merged or consolidated with another corporation and as a
        result
        of such merger or consolidation less than 50% of the outstanding voting
        securities of the surviving or resulting corporation shall be owned in the
        aggregate by the former shareholders of the Company, any employee benefit
        plan
        of the Company or its subsidiaries, and their affiliates;

       

      (3)  the
        Company shall sell substantially all of its assets to another corporation
        that
        is not wholly owned by the Company; or

       

      (4)  a
        Person (as defined below) shall acquire 30% or more of the outstanding voting
        securities of the Company (whether directly, indirectly, beneficially or
        of
        record). 

       

      For
        purposes of this Section 13(b), ownership of voting securities
        shall take into account and shall include ownership as determined by applying
        the provisions of Rule 13d-3(d)(I)(i) (as in effect on the date hereof) under
        the Exchange Act. Also for purposes of this Subsection 13(b), Person shall
        have
        the meaning given in Section 3(a)(9) of the Exchange Act, as modified and
        used
        in Sections 13(d) and 14(d) thereof; however, a Person shall not include
        (1) the
        Company or any of its subsidiaries; (2) a trustee or other fiduciary holding
        securities under an employee benefit plan of the Company or any of its
        subsidiaries; (3) an underwriter temporarily holding securities pursuant
        to an
        offering of such securities; or (4) a corporation owned, directly or indirectly,
        by the shareholders of the Company in substantially the same proportion as
        their
        ownership of stock of the Company.

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

      14.  Transferability
        of Awards. Except as provided below, a Participant’s rights under an Award
        may not be transferred or encumbered, except by will or by the laws of descent
        and distribution or, in the case of Awards other than Incentive Stock Options,
        pursuant to a qualified domestic relations order (as defined under Section
        414(p) the Code). The Committee may provide, in an Agreement for a Nonqualified
        Stock Option or Restricted Stock Award, for its transferability as a gift
        to
        family members, one or more trusts for the benefit of family members, or
        one or
        more partnerships of which family members are the only partners, according
        to
        such terms as the Committee may determine; provided that the Participant
        receives no consideration for the transfer and the transferred Nonqualified
        Stock Option or Restricted Stock Award shall continue to be subject to the
        same
        terms and conditions as were applicable to the Nonqualified Stock Option
        or
        Restricted Stock Award immediately before the transfer. 

       

      15.  Market
        Stand-Off. 

       

      (a)  In
        connection with any underwritten public offering by the Company of its equity
        securities pursuant to an effective registration, if required by the Committee,
        a Participant shall not sell, make any short sale of, loan, hypothecate,
        pledge,
        grant any option for the purchase of, or otherwise dispose or transfer for
        value
        or otherwise agree to engage in any of the foregoing transactions with respect
        to, any Common Stock without the prior written consent of the Company or
        its
        underwriters. Such restriction (the "Market Stand-Off") shall be in effect
        for
        such period of time from and after the effective date of the final prospectus
        for the offering as may be requested by the Company or such underwriters,
        but in
        no event shall such period exceed one hundred eighty (180) days.

       

      (b)  A
        Participant shall be subject to the Market Stand-Off provided and only if
        the
        officers and directors of the Company are also subject to similar
        restrictions.

       

      (c)  In
        order to enforce the Market Stand-Off, the Corporation may impose stop-transfer
        instructions with respect to the Common Stock until the end of the applicable
        stand-off period.

       

      16.  Fair
        Market Value. If Common Stock is publicly traded, then the “Fair Market
        Value” per share shall be determined as follows: (1) if the principal trading
        market for the Common Stock is a national securities exchange or the NASDAQ
        SmallCap Market, the last reported sale price thereof on the relevant date
        or,
        if there were no trades on that date, the latest preceding date upon which
        a
        sale was reported, or (2) if the Common Stock is not principally traded on
        such
        exchange or market, the mean between the last reported “bid” and “asked” prices
        of Common Stock on the relevant date, as reported on NASDAQ or, if not so
        reported, as reported by the National Daily Quotation Bureau, Inc. or as
        reported in a customary financial reporting service, as applicable and as
        the
        Committee determines. If the Common Stock is not publicly traded or, if publicly
        traded, is not subject to reported transactions or “bid” or “asked” quotations
        as set forth above, the Fair Market Value per share shall be as determined
        by
        the Committee.

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

      17.  Withholding.
        All distributions or payments made with respect to an Award shall be net
        of any
        amounts required to be withheld pursuant to applicable federal, state and
        local
        tax withholding requirements. The Company may require a Participant to remit
        to
        it or to the subsidiary that employs a Participant an amount sufficient to
        satisfy such tax withholding requirements prior to the delivery of any
        certificates for Common Stock. In lieu thereof, the Company or the employing
        corporation shall have the right to withhold the amount of such taxes from
        any
        other sums due or to become due to the Participant as the Company shall
        prescribe. The Committee may, in its discretion and subject to such rules
        as it
        may adopt, permit a Participant to pay all or a portion of the federal, state
        and local withholding taxes arising in connection with any Award by electing
        to
        have the Company withhold shares of Common Stock deliverable thereunder having
        a
        Fair Market Value that is not in excess of the amount of tax to be
        withheld.

       

      18.  Shareholder
        Rights. A Participant shall not have any of the rights or privileges of a
        holder of Common Stock for any Common Stock that is subject to an Award,
        including any rights regarding voting or the payment of dividends (except
        as
        expressly provided under the terms of the Award), unless and until a certificate
        representing such Common Stock has been delivered to the Participant.

       

      19.  Tenure.
        A Participant’s right, if any, to continue to serve the Company or its
        subsidiaries as a director, officer, employee, consultant or advisor shall
        not
        be expanded or otherwise affected by his or her designation as a
        Participant.

       

      20.  No
        Fractional Shares. No fractional shares of Common Stock shall be issued or
        delivered pursuant to the Plan or any Award. The Committee shall determine
        whether cash shall be paid in lieu of fractional shares or whether such
        fractional shares or any rights thereto shall be forfeited or otherwise
        eliminated.

       

      21.  Duration,
        Amendment and Termination. No Award may be granted more than ten years after
        the Effective Date (as described in Section 23). The Plan may be amended
        or
        terminated in whole or in part at any time and from time to time by the Board,
        but no amendment shall be effective unless and until the same is approved
        by
        shareholders of the Company where the amendment would (i) increase the total
        number of shares which may be issued under the Plan, (ii) increase the maximum
        number of shares which may be issued to any individual Participant in any
        one
        calendar year under the Plan or (iii) otherwise require approval by shareholders
        by any applicable self regulatory organization (SRO). No amendment or
        termination of the Plan shall adversely affect in a material manner any right
        of
        any Participant with respect to any Award theretofore granted without such
        Participant’s written consent.

       

      22.  Governing
        Law. This Plan, Awards granted hereunder and actions taken in connection
        with the Plan shall be governed by the laws of the State of New York regardless
        of the law that might otherwise apply under applicable principles of conflicts
        of laws.

       

      23.  Effective
        Date. This Plan shall be effective as of April 28, 2003, which is the date
        as of which the Plan was adopted by the Board, provided that the Plan is
        approved by the shareholders of the Company at its 2003 annual meeting of
        shareholders, and such approval of shareholders shall be a condition to the
        right of each Participant to receive an Award hereunder.