Exhibit 10.2


 


AMENDED AND RESTATED

SERVICEMASTER GLOBAL HOLDINGS, INC.

STOCK INCENTIVE PLAN


 


Effective November 20, 2007

As Amended September 24, 2010


 


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
13,845,000 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.


 


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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.


 


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


 


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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.


 


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


 


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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, 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:


 


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(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 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


 


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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.


 


Article VIII

Deferred Share Units and Restricted Stock Units


 


Section 8.1          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.


 


Section 8.2            Restricted Stock Units. The
Board may provide for the grant of Restricted Stock Units to Participants at
such time or times and subject to such conditions as it shall determine, but
which shall (unless the Board determines otherwise) be subject to vesting based
on continued service, satisfaction of performance conditions or other vesting
conditions determined by the Board. No shares of Common Stock will be issued at
the time an award of Restricted Stock 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).


 


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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.


 


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


 


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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 Restricted
Stock 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.


 


“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


 


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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:


 


(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 


 


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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.


 


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.


 


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“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 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


 


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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.


 


“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.


 


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“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.


 


“Restricted Stock Unit” means the right granted pursuant to the
Plan to receive a share of Common Stock and distributions thereon in the
future, subject to the satisfaction of vesting or other conditions related
thereto.


 


“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


 


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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.


 


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


 


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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.


 


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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