exv10w18






Exhibit 10.18




2006 STOCK OPTION PLAN




OF




RM RESTAURANT HOLDING CORP.




                    1.      Purposes of the Plan. This Stock Option Plan (the “Plan”) is designed to provide
an incentive to key employees (including managers and officers who are key employees) of RM
Restaurant Holding Corp., a Delaware corporation (the “Company”), or any of its
Subsidiaries (as defined in Paragraph 21) and consultants and board members who are not
employees of the Company, and to offer an additional inducement in obtaining the services of such
persons. The Plan provides for the grant of options to acquire shares of Non-Voting Common Stock
(as defined in Paragraph 21 hereof) of the Company which may be subject to contingencies or
restrictions.



                    2.      Subject to the Plan. Subject to the provisions of Paragraph 13, the aggregate
number of shares of Non-Voting Common Stock for which options may be granted under the Plan shall
not exceed 100,000 shares. Such shares of Non-Voting Common Stock may, in the discretion of the
Board of Directors of the Company (the “Board of Directors” or the “Board”),
consist either in whole or in part of authorized but unissued shares of Non-Voting Common Stock or
shares of Non-Voting Common Stock held in the treasury of the Company. Subject to the provisions
of Paragraph 14, any share of Non-Voting Common Stock underlying an option granted under
this Plan which for any reason expires, is canceled, forfeited, or is terminated unexercised or
which ceases for any reason to be exercisable, shall again become available for the granting of
options under the Plan. The Company shall at all times during the term of the Plan reserve and
keep available such number of shares of Non-Voting Common Stock as will be sufficient to satisfy
the requirements of the Plan.



                    3.      Administration of the Plan. The Plan shall be administered by the Board of Directors or a
committee of the Board of Directors that is composed solely of two or more Non-Employee Directors
as that term is defined in the rules and regulations promulgated under Section 16(b) of the
Exchange Act (the Board of Directors and such committee being referred to collectively as the
“Committee”). A majority of the members of the Committee shall constitute a quorum, and
the acts of a majority of the members present at any meeting at which a quorum is present, and any
acts approved in writing by all members of the Committee without a meeting, shall be the acts of
the Committee.



                              Subject to the express provisions of the Plan and the grant agreement referred to in
Paragraph 12 hereof (the “Agreement”), the Committee shall have the authority, in
its sole discretion, to make all determinations relating to the Plan, including, but not limited
to,



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the right to determine: the key employees of the Company (or its Subsidiaries), consultants
and members of the Board, who shall be granted options; the type of option to be granted; the times
when an option shall be granted; whether the options comply with requirements of Code Section 409A;
the number of shares of Non-Voting Common Stock to be subject to each option; the term of each
option; the date each option shall vest and become exercisable; whether an option shall be
exercisable in whole, in part or in installments and, if in installments, the number of shares of
Non-Voting Common Stock to be subject to each installment, whether the installments shall be
cumulative, the date each installment shall become exercisable and the term of each installment;
whether to accelerate the date of exercise of any option or installment; whether shares of
Non-Voting Common Stock may be issued upon the exercise of an option as partly paid and, if so, the
dates when future installments of the exercise price shall become due and the amounts of such
installments; the exercise price of each option; the form of payment of the exercise price; whether
to restrict the sale or other disposition of the shares of Non-Voting Common Stock acquired upon
the exercise of an option and, if so, whether and under what conditions to waive any such
restriction; whether and under what conditions to subject all or a portion of the grant or exercise
of an option or the shares of Non-Voting Common Stock acquired pursuant to the exercise of an
option to the fulfillment of certain restrictions or contingencies as specified in the Agreement,
including without limitation, restrictions or contingencies relating to entering into a covenant
not to compete with the Company, any of its Subsidiaries or a Parent (as defined in Paragraph
21), to financial objectives for the Company, any of its Subsidiaries or a Parent or any of its
affiliates, a division of any of the foregoing, a product line or other category, and/or to the
period of continued employment of the optionee with the Company, any of its Subsidiaries or a
Parent or any of its affiliates, and to determine, in each case, whether such limitations,
restrictions or contingencies have been met; whether an optionee is Disabled (as defined in
Paragraph 21); the amount, if any, necessary to satisfy the obligation of the Company, a
Subsidiary or Parent to withhold taxes or other amounts; the fair market value (as defined in
Paragraph 21 hereof) of a share of Non-Voting Common Stock; to construe the respective
Agreement and the Plan; with the consent of the optionee, to cancel or modify an option,
provided, that the modified provision is permitted to be included in an option granted
under the Plan on the date of the modification, and further, provided, that in the
case of a modification, such option as modified would be permitted to be granted on the date of
such modification under the terms of the Plan; to prescribe, amend and rescind rules and
regulations relating to the Plan; and to make all other determinations necessary or advisable for
administering the Plan. Any controversy or claim arising out of or relating to the Plan, any
option granted under the Plan or any Agreement shall be determined unilaterally by the Committee in
its sole discretion. The determinations of the Committee on the matters referred to in this
Paragraph 3 shall be conclusive and binding on the parties. No member or former member of
the Committee shall be liable for any action, failure to act or determination made in good faith
with respect to the Plan, any Agreement or any option hereunder.



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                              The Company may establish a committee of outside directors meeting the requirements of Code
Section 162(m) to (i) approve the grant of options that might reasonably be
anticipated to result in the payment of employee remuneration that would otherwise exceed the limit
on employee remuneration deductible for income tax purposes by the Company pursuant to Code Section
162(m) and (ii) administer the Plan. In such event, the powers reserved to the Committee in the
Plan shall be exercised by such compensation committee. In addition, options under the Plan shall
be granted upon satisfaction of the conditions to such grants provided pursuant to Code Section
162(m) and any Treasury Regulations promulgated thereunder.



                              It is the Company’s intent that the options not be treated as a nonqualified deferred
compensation plan that fails to meet the requirements of Section 409A(a)(2), (3) or (4) of the Code
and that any ambiguities in construction be interpreted in order to effectuate such intent.
Options under the Plan shall contain such terms as the Committee determines are appropriate to
comply with the requirements of Section 409A of the Code. In the event that, after the issuance of
an option under the Plan, Section 409A of the Code or regulations thereunder are issued or amended,
or the Internal Revenue Service or Treasury Department issues additional guidance interpreting
Section 409A of the Code, the Committee may modify the terms of any such previously issued option
to the extent the Committee determines that such modification is necessary to comply with the
requirements of Section 409A of the Code.



                    4.      Eligibility. The Committee may from time to time, in its sole discretion, consistent with
the purposes of the Plan, grant options to (a) key employees (including officers and managers or
directors who are key employees) of the Company or any of its Subsidiaries, (b) consultants to the
Company or any of its Subsidiaries or (c) members of the Board. Such options granted shall cover
such number of shares of Non-Voting Common Stock as the Committee may determine, in its sole
discretion, as set forth in the applicable Agreement.



                    5.      Non-qualified Options. It is the Company’s intent that only Non-qualified Stock Options,
and not “incentive stock options” within the meaning of Section 422A of the Code, be granted under
the Plan and that any ambiguities in construction be interpreted in order to effectuate such
intent. The Committee may from time to time grant to eligible participants Non-qualified Stock
Options. The options granted shall take such form as the Committee shall determine, subject to the
terms and conditions herein.



                    6.      Exercise Price. The exercise price of the shares of Non-Voting Common Stock under each
option shall be determined by the Committee, in its sole discretion, and set forth in the
applicable Agreement.



                    7.      Term. The term of each option granted pursuant to the Plan shall be such term as is
established by the Committee, in its sole discretion, as set forth in the applicable Agreement;
provided, however, that the term of each option granted pursuant to the Plan shall
be for a period not exceeding 10 years from the date of grant thereof; and further,
provided, that options shall be subject to earlier termination as hereinafter provided.



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                    8.      Exercise. An option (or any part or installment thereof), to the extent then exercisable,
shall be exercised by giving written notice to the Company, c/o Sun Capital Partners Management IV,
LLC, 5200 Town Center Circle, Suite 470, Boca Raton, Florida 33486, Attention: C. Deryl Couch, in the form established by the Committee and accompanied by
payment in full of the aggregate exercise price therefor (a) in cash or by certified check or (b)
in such other form as the Committee may approve. The Company shall not be required to issue any
shares of Non-Voting Common Stock pursuant to any such option until all required payments,
including any required withholding, have been made and all required actions have been taken.



                              A person entitled to receive shares of Non-Voting Common Stock upon the exercise of an option
shall not have the rights of a stockholder of the Company with respect to such stock until the date
of issuance of a certificate for such shares of Non-Voting Common Stock, or in the case of
uncertificated shares of Non-Voting Common Stock, an entry is made on the books of the Company’s
transfer agent representing such shares.



                              In no case may a fraction of a share of Non-Voting Common Stock be purchased or issued under
the Plan.



                    9.      Termination of Relationship.



                              (a)      Employees and Consultants. Except as may otherwise be expressly provided in the
applicable Agreement, an optionee whose relationship with the Company, its Parent or Subsidiaries
as an employee or a consultant has terminated for any reason (other than as a result of the death
or Disability of the optionee) may exercise his options, to the extent exercisable on the date of
such termination, on the date of termination or at any time on or before the 15th day of
the third calendar month following the date of termination, but not thereafter and in no event
after the date the option would otherwise have expired; provided, however, that if the
Optionee is a “specified employee” as defined in Section 409A(a)(2)(B)(i) of the Code, then the
option shall instead be exercisable on the date that is six months after the date of termination
(or, if earlier, death of the optionee); provided, further, that (i) if such
relationship is terminated for Cause (as defined in Paragraph 21), such option shall
terminate on the day immediately before the date of such termination and (ii) if such relationship
is terminated without the consent of the Company, such option shall terminate on the day of such
termination. Except as may otherwise be expressly provided in the applicable Agreement, options
granted under the Plan to an employee or consultant shall not be affected by any change in the
status of the optionee so long as the optionee continues to be an employee of, or a consultant to,
the Company, or any of the Subsidiaries or a Parent (regardless of having changed from one to the
other or having been transferred from one corporation to another).



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                              (b)      Board Members. Except as may otherwise be expressly provided in the applicable
Agreement, an optionee whose relationship with the Company as a Board member
ceases for any reason (other than as a result of his death or Disability) may exercise his options,
to the extent exercisable on the date of such termination, on the date of termination or at any
time on or before the 15th day of the third calendar month following the date of
termination, but not thereafter and in no event after the date the option would otherwise have
expired; provided, however, that if the Optionee is a “specified employee” as defined in
Section 409A(a)(2)(B)(i) of the Code, then the option shall instead be exercisable on the date that
is six months after the date of termination (or, if earlier, death of the optionee);
provided, further, that (i) if such relationship is terminated for Cause, such
option shall terminate on the day immediately before the date of such termination and (ii) if such
relationship is terminated without the consent of the Company, such option shall terminate on the
day of such termination. Except as may otherwise be expressly provided in the applicable
Agreement, options granted to a Board member shall not be affected by the optionee becoming an
employee of, or consultant to, the Company, any of its Subsidiaries or a Parent.



                              (c)      General. Nothing in the Plan or in any option granted under the Plan shall confer
on any optionee any right to continue in the employ of, or as a consultant to, the Company, any of
its Subsidiaries or a Parent, or as a manager or director of the Company, or interfere in any way
with any right of the Company, any of its Subsidiaries or a Parent to terminate the optionee’s
relationship at any time for any reason whatsoever without liability to the Company, any of its
Subsidiaries or a Parent.



                    10.     Death or Disability of an Optionee.



                              (a)      Employees and Consultants.




                                        (i)      Except as may otherwise be expressly provided in the applicable Agreement, if an optionee
dies while he is an employee of, or consultant to, the Company, any of its Subsidiaries or a
Parent, the options that were granted to him as an employee or consultant may be exercised, to the
extent exercisable on the date of his death, by his Legal Representative (as defined in
Paragraph 21) on the date of death or at any time before the later of (A) December 31 of
the year in which the optionee dies or (B) the 15th day of the third calendar month
following the date on which the optionee dies, but not thereafter and in no event after the date
the option would otherwise have expired.




                                        (ii)      Except as may otherwise be expressly provided in the applicable Agreement, any optionee
whose relationship as an employee of, or consultant to, the Company, its Parent and Subsidiaries
has terminated by reason of such optionee’s Disability may exercise the options that were granted
to him as an employee or consultant, to the extent exercisable upon the effective date of such
termination, on the date of termination or at any time before the later of (A) December 31 of the
year in which termination occurs or (B) the 15th day of the third calendar month
following the date on which termination occurs, but not thereafter and in no event after the date
the option would otherwise have expired.



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                              (b)      Board Members. Except as may otherwise be expressly provided in the applicable
Agreement, any optionee whose relationship as a Board member ceases as a result of his death or
Disability may exercise the options that were granted to him as a Board member, to the extent
exercisable on the date of such termination, on the date of termination or at any time on or before
the 15th day of the third calendar month following the date of termination, but not
thereafter and in no event after the date the option would otherwise have expired. In the case of
the death of the Board member, the option may be exercised by his Legal Representative.



                    11.      Compliance with Securities Laws. The Committee may require, in its sole discretion, as a
condition to the exercise of any option that either (a) a Registration Statement under the
Securities Act of 1933, as amended (the “Securities Act”), with respect to the shares of
Non-Voting Common Stock to be issued upon such grant or exercise shall be effective and current at
the time of grant or exercise, or (b) there is an exemption from registration under the Securities
Act for the issuance of the shares of Non-Voting Common Stock upon such grant or exercise. Nothing
herein shall be construed as requiring the Company to register the shares of Non-Voting Common
Stock subject to any option under the Securities Act or to keep any Registration Statement
effective or current.



                              The Committee may require, in its sole discretion, as a condition to the receipt of an option
or the exercise of any option hereunder that the optionee execute and deliver to the Company his
representations and warranties, in form, substance and scope satisfactory to the Committee, which
representations and warranties the Committee determines are necessary or convenient in connection
with qualifying for an exemption from the registration requirements of the Securities Act,
applicable state securities laws or satisfying other legal requirements.



                              In addition, if at any time the Committee shall determine, in its sole discretion, that the
listing or qualification of the shares of Non-Voting Common Stock subject to any option on any
securities exchange or under any applicable law, or the consent or approval of any governmental
agency or regulatory body, is necessary or desirable as a condition to, or in connection with, the
granting of an option or the issuing of shares of Non-Voting Common Stock thereunder, such option
may not be granted and such option may not be exercised in whole or in part unless such listing,
qualification, consent or approval shall have been effected or obtained free of any conditions not
acceptable to the Committee.



                    12.      Agreements. Each option shall be evidenced by an appropriate Agreement which shall be
duly executed by the Company and the optionee, and shall contain such terms, provisions and
conditions not inconsistent herewith as may be determined by the Committee. The terms of each
option and Agreement need not be identical.



                    13.      Adjustments Upon Changes in Interests. Notwithstanding any other provision of the Plan, in
the event of:



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                              (a)      A dividend, recapitalization, or a spin-off, split-up, combination or exchange of shares
of Non-Voting Common Stock or the like which results in a change in the number or kind of shares of
Non-Voting Common Stock outstanding immediately prior to such event, the Committee shall
appropriately adjust the aggregate number and kind of shares of Non-Voting Common Stock subject
to the Plan, the aggregate number and kind of shares of Non-Voting Common Stock subject to each
outstanding option and the exercise price thereof. Such adjustments shall be conclusive and
binding on all parties and may provide for the elimination of fractional shares of Non-Voting
Common Stock which might otherwise be subject to options without payment therefor.



                              (b)      A merger, consolidation, or sale by the Company of all or substantially all of its assets,
in which the Company is not the surviving corporation, except as set forth below or in the
Agreement, the options granted hereunder as of the date of such event shall continue to be
outstanding and the optionee shall be entitled to receive in exchange therefor an option in the
surviving corporation for the same number of shares of Non-Voting Common Stock as he would have
been entitled to receive if he had exercised the options granted hereunder immediately prior to the
transaction and actually owned the shares of Non-Voting Common Stock subject to such option. The
exercise price of the option in the surviving corporation shall be such that the aggregate
consideration for the shares of Non-Voting Common Stock subject to the option in the surviving
corporation shall be equal to the aggregate consideration payable with respect to the option
granted under the Plan.



                    Notwithstanding the foregoing, the Company shall have the right, by written notice, provided
to an optionee sent no later than 5 days prior to the proposed sale of assets, merger or
consolidation (as determined by the Board of Directors in its sole discretion) or by inclusion in
the applicable Agreement, to advise the optionee that upon consummation of the transaction all
options granted to any optionee under the Plan and not theretofore exercised (or which are not then
currently exercisable) shall terminate and be void, in which event, the optionee shall have the
right to exercise all options then currently exercisable in accordance with the terms of the
applicable Agreement within 2 days after the date of the notice from the Company or as otherwise
provided in the Agreement; provided, however, that such proposed sale of assets,
merger or consolidation also constitutes a change in the ownership or effective control of the
Company, or in the ownership of a substantial portion of the Company’s assets, within the meaning
of Section 409A(a)(2)(A)(v) of the Code and the regulations or other published guidance (including,
without limitation, Internal Revenue Service Notice 2005-1 and Proposed Regulation Section
1.409A-3) promulgated thereunder.



                    14.      Amendments and Termination of the Plan. The Plan was adopted by the Board of Directors as
of December 21, 2006. The Board of Directors, without further approval of the Company’s
stockholders, may at any time suspend or terminate the Plan, in



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whole or in part, or amend it from time to time in such respects as it may deem advisable, including,
without limitation, to comply with any change in applicable law, regulations, rulings or
interpretations of any administrative agency; provided, however, that no amendment
for which applicable regulation related to the listing, registration or qualification of the shares
subject to the Plan upon any securities exchange or applicable law or regulation requires
stockholder approval shall be effective without the requisite prior or subsequent stockholder
approval. No termination, suspension or amendment of the Plan shall, without the consent of the
optionees holding a majority of all options granted under the Plan (based on the number of
underlying shares of Non-Voting Common Stock issuable upon the exercise of all such options),
adversely affect their rights under any option granted under the Plan. The power of the Committee
to construe and administer any option granted under the Plan prior to the termination or suspension
of the Plan nevertheless shall continue after such termination or during such suspension.




                    15.      Non-Transferability. No option granted under the Plan shall be transferable other than by
will or the laws of descent and distribution, and options may be exercised, during the lifetime of
the optionee, only by the optionee or his Legal Representatives. Except to the extent provided
above, options may not be assigned, transferred, pledged, hypothecated or disposed of in any way
(whether by operation of law or otherwise) and shall not be subject to execution, attachment or
similar process, and any such attempted assignment, transfer, pledge, hypothecation or disposition
shall be null and void ab initio and of no force or effect.



                    16.      Withholding Taxes. The Company, a Subsidiary or Parent may withhold (a) cash, (b) shares
of Non-Voting Common Stock to be issued upon exercise of an option having an aggregate fair market
value on the relevant date, or (c) any combination thereof, in an amount equal to the amount which
the Committee determines is necessary to satisfy the obligation of the Company, a Subsidiary or
Parent to withhold Federal, state or local taxes or other amounts incurred by reason of the grant,
vesting, exercise or disposition of an option, or the disposition of the underlying shares of
Non-Voting Common Stock. Alternatively, the Company may require the holder to pay to the Company
such amount, in cash, promptly upon demand.



                              The Company may require, as a condition to any grant or exercise under the Plan, that the
grantee make provision for the payment to the Company of federal, state or local taxes of any kind
required by law to be withheld with respect to any grant, vesting, exercise or disposition of any
option. Participants shall be required to indemnify or reimburse the Company with respect to any
federal, state or local taxes of any kind that the Company is required by law to withhold with
respect to any grant, vesting, exercise or disposition of any option, to the extent the Company
does not or cannot withhold such amount. Without limiting the generality of the foregoing, the
Company, to the extent permitted or required by law, shall have the right to deduct from any
payment(s) of any kind (including salary or bonus) otherwise due to a grantee, a total amount not
to exceed the amount of any federal, state or local taxes of any kind required by law to be
withheld with respect to any grant, vesting, exercise or disposition of any option.



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                    17.      Legends; Payment of Expenses. The Company may endorse such legend or legends upon the
certificates for shares of Non-Voting Common Stock issued upon exercise of an option under the Plan
and may issue such “stop transfer” instructions to its transfer agent in respect of such shares as
it determines, in its discretion, to be necessary or appropriate to (a) prevent a violation of, or
to qualify for an exemption from, the registration requirements of the Securities Act and any
applicable state securities laws, or (b) implement the provisions of the Plan or any agreement
between the Company and the optionee with respect to such shares of Non-Voting Common Stock. Each
optionee may, in the Committee’s discretion, be required either to execute a stockholders’
agreement as a condition either to receiving a grant of options hereunder or to exercising any
options granted hereunder.



                              The Company shall pay all issuance taxes with respect to the issuance of shares of Non-Voting
Common Stock upon the exercise of an option granted under the Plan, as well as all fees and
expenses incurred by the Company in connection with such issuance.



                    18.      Use of Proceeds. The cash proceeds received upon the exercise of an option under the Plan
shall be added to the general funds of the Company and used for such corporate purposes as the
Board of Directors may determine.



                    19.      Substitutions and Assumptions of Options of Certain Constituent Corporations. Anything in
this Plan to the contrary notwithstanding, the Board of Directors may, without further approval by
the stockholders, substitute new options for prior options of a Constituent Corporation (as defined
in Paragraph 21) or assume the prior options of such Constituent Corporation;
provided, however, that no substitution or assumption for which applicable
regulation or applicable law requires stockholder approval shall be effective without the requisite
prior or subsequent stockholder approval.



                    20.      Right of First Refusal; Right to Repurchase.



                              (a)      The Company shall have a right of first refusal with respect to any proposed sale or other
disposition by optionees (and their successors in interest by purchase, gift or other mode of
transfer) of any shares of Non-Voting Common Stock issued to them under the Plan which are
transferable. This right of first refusal shall be exercisable by the Company in accordance with
terms and conditions established by the Committee.



                              (b)      In the case of any optionee whose employment or service terminates for any reason
(including, without limitation, death, Disability, retirement, voluntary resignation or
termination, or involuntary termination with or without Cause), except as otherwise provided in any
Agreement, the Company shall have a right, exercisable at any time



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and from time to time after such termination, to repurchase from the optionee (or any successor in interest by purchase, gift or other mode of transfer) all (but not less than all) shares of
Non-Voting Common Stock issued to the optionee under the Plan. If either (i) the optionee’s
employment or service was terminated for Cause or (ii) in the Committee’s determination, the
optionee has taken any action prior to or following his termination of employment or service which
would have constituted grounds for a termination for Cause, then such repurchase shall be made at
the purchase price paid by the optionee for such shares of Common Stock (or if lower, the Fair
Market Value of such shares of Common Stock at the time of repurchase). In all other instances,
such repurchase shall be made at the Fair Market Value of the shares of Non-Voting Common Stock at
the time of repurchase. This right to repurchase shall be exercisable by the Company at any time
within one hundred eighty (180) days after the termination of such optionee’s employment or service
with the Company for any reason (including, without limitation, death, Disability, retirement,
voluntary resignation or termination, or involuntary termination with or without Cause) by: (i)
giving written notice of such repurchase to such optionee, (ii) tendering payment of the purchase
price of such shares of Non-Voting Common Stock to such optionee within thirty (30) days of the
delivery of such written notice and (iii) complying with such other terms and conditions
established by the Committee.



                    21.      Definitions. For purposes of the Plan, the following terms shall be defined as set forth
below:



       
                
       (a)      “Board” or “Board of Directors” shall mean the Board of Directors of the Company.



      
                
      (b)     “Cause” shall mean (i) in the case of an employee or consultant, if there is a written
employment or consulting agreement between the optionee and the Company, any of its Subsidiaries or
a Parent which defines termination of such relationship for cause, “cause” as defined in such
agreement, and (ii) in the absence of such agreement, (A) conviction of the employee or consultant
of any felony, or the conviction of the employee or consultant of a misdemeanor which involves
moral turpitude, or the entry by the employee or consultant of a plea of guilty or nolo contendere
with respect to any of the foregoing, (B) the commission of any act or failure to act by such
employee or consultant that involves moral turpitude, dishonesty, theft, destruction of property,
fraud, embezzlement or unethical business conduct, or that is otherwise injurious to the Company or
any of its affiliates, whether financially or otherwise, (C) any violation by such employee or
consultant of any rule or policy of the Company or any of its affiliates, (D) any violation by such
employee or consultant of the requirements of any other contract or agreement between the Company
(or any of its affiliates) and such employee or consultant, and the failure of such employee or
consultant to cure such violation within ten (10) days after receipt of written notice from the
Company or (E) any failure by the employee to abide by any directive of the Board or an officer to
whom the employee reports; in each case, with respect to subsections (A) through (E), as determined
in good faith by the Board of Directors of the Company in the exercise of its reasonable business
judgment.



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                              (c)      “Code” shall mean the Internal Revenue Code of 1986, as amended, and any successor
thereto.



                              (d)     “Common Stock” means the shares of Voting Common Stock and Non-Voting Common Stock.



                              (e)      “Constituent Corporation” shall mean any corporation which engages with the Company, any
of its Subsidiaries or a Parent in a transaction to which Section 424(a) of the Code applies, or
any Parent, Subsidiary or affiliate of such corporation.



                              (f)      “Disabled” or “Disability” shall mean a permanent and total disability within the meaning
of Section 22(e)(3) of the Code, but only if such condition is also a “disability” within the
meaning of Section 409A(a)(2)(C) of the Code and the regulations or other published guidance
promulgated thereunder.



                              (g)     “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and any
successor thereto.



                              (h)      “Fair Market Value” shall mean as of any applicable date, (i) if the principal securities
market on which the Non-Voting Common Stock is traded is a national securities exchange, The Nasdaq
National Market (“NNM”) or The Nasdaq SmallCap Market (“NSM”), the closing price of the Non-Voting
Common Stock on such exchange, the NNM or the NSM, as the case may be, as of the applicable date,
or if no sale of the Non-Voting Common Stock shall have occurred on such date, on the next
preceding date on which there was a reported sale; (ii) if the principal securities market on which
the Non-Voting Common Stock is traded is not a national securities exchange, the NNM or the NSM,
the average of the bid and asked prices reported by the National Quotation Bureau, Inc.; (iii) if
not reported by the National Quotation Board, the closing price of a share of Non-Voting Common
Stock on the date of grant as reported on the OTC Bulletin Board; or (iv) if the price of the
Non-Voting Common Stock is not so reported, the Board of Directors’ good faith determination of
the fair value of one share of Non-Voting Common Stock as of the applicable reference date, which
determination shall be consistent with the requirements of Section 409A of the Code.



                              (i)      “Legal Representative” shall mean the executor, administrator or other person who at the
time is entitled by law to exercise the rights of a deceased or incapacitated optionee with respect
to an option granted under the Plan.



                              (j)      “Non-qualified Stock Option” means any stock option other than an incentive stock option
as defined in Section 422 of the Code and any successor thereto.



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                              (k)     “Non-Voting Common Stock” means the shares of Non-Voting Common Stock of the Company, par
value $0.001 per share.



                              (l)       “Parent” shall have the same definition as “parent corporation” in Section 424(e) of the
Code.



                              (m)     “Subsidiary” shall have the same definition as “subsidiary corporation” in Section 424(f)
of the Code.



                              (n)      “Voting Common Stock” means the shares of Voting Common Stock of the Company, par value
$0.001 per share.



                    22.      Governing Law; Construction. The Plan, the options and any Agreement hereunder and all
related matters shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to conflict of law provisions.



                              Neither the Plan nor any Agreement shall be construed or interpreted with any presumption
against the Company by reason of the Company causing the Plan or Agreement to be drafted. Whenever
from the context it appears appropriate, any term stated in either the singular or plural shall
include the singular and plural, and any term stated in the masculine, feminine or neuter gender
shall include the masculine, feminine and neuter.



                    23.      Partial Invalidity. The invalidity, illegality or unenforceability of any provision in
the Plan, any option or Agreement shall not affect the validity, legality or enforceability of any
other provision, all of which shall be valid, legal and enforceable to the fullest extent permitted
by applicable law.




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