ex10-1.htm


    EXHIBIT
10.1

     

    

      SUN
HEALTHCARE GROUP, INC.

      2009
PERFORMANCE INCENTIVE PLAN

      


      1. PURPOSE
OF PLAN

       

      The
purpose of this Sun Healthcare Group, Inc. 2009 Performance Incentive Plan (this
“Plan”) of Sun
Healthcare Group, Inc., a Delaware corporation (the “Corporation”), is to promote
the success of the Corporation and to increase stockholder value by providing an
additional means through the grant of awards to attract, motivate, retain and
reward selected employees and other eligible persons.

       

      2. ELIGIBILITY

       

      The
Administrator (as such term is defined in Section 3.1) may grant awards under
this Plan only to those persons that the Administrator determines to be Eligible
Persons.  An “Eligible Person” is any person
who is either: (a) an officer (whether or not a director) or employee of the
Corporation or one of its Subsidiaries; (b) a director of the Corporation or one
of its Subsidiaries; or (c) an individual consultant or advisor who renders or
has rendered bona fide services (other than services in connection with the
offering or sale of securities of the Corporation or one of its Subsidiaries in
a capital-raising transaction or as a market maker or promoter of securities of
the Corporation or one of its Subsidiaries) to the Corporation or one of its
Subsidiaries and who is selected to participate in this Plan by the
Administrator; provided, however, that a person who is otherwise an Eligible
Person under clause (c) above may participate in this Plan only if such
participation would not adversely affect either the Corporation’s eligibility to
use Form S-8 to register under the Securities Act of 1933, as amended (the
“Securities Act”), the
offering and sale of shares issuable under this Plan by the Corporation or the
Corporation’s compliance with any other applicable laws.  An Eligible
Person who has been granted an award (a “participant”) may, if otherwise
eligible, be granted additional awards if the Administrator shall so
determine.  As used herein, “Subsidiary” means any
corporation or other entity a majority of whose outstanding voting stock or
voting power is beneficially owned directly or indirectly by the Corporation;
and “Board” means the
Board of Directors of the Corporation.

       

      3. PLAN
ADMINISTRATION

       

      
        	
                3.1  

              	
                The
      Administrator.  This Plan shall be administered by and
      all awards under this Plan shall be authorized by the
      Administrator.  The “Administrator” means the
      Board or one or more committees appointed by the Board or another
      committee (within its delegated authority) to administer all or certain
      aspects of this Plan.  Any such committee shall be comprised
      solely of one or more directors or such number of directors as may be
      required under applicable law.  A committee may delegate some or
      all of its authority to another committee so constituted.  The
      Board or a committee comprised solely of directors may also delegate, to
      the extent permitted by Section 157(c) of the Delaware General Corporation
      Law and any other applicable law, to one or more officers of the
      Corporation, its powers under this Plan (a) to designate the officers and
      employees of the Corporation and its Subsidiaries who will receive grants
      of awards under this Plan, and (b) to determine the number of shares
      subject to, and the other terms and conditions of,
  

              


      

       

      
        
          
          

        

        
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      such
awards.  The Board may delegate different levels of authority to
different committees with administrative and grant authority under this
Plan.  Unless otherwise provided in the Bylaws of the Corporation or
the applicable charter of any Administrator: (a) a majority of the members of
the acting Administrator shall constitute a quorum, and (b) the vote of a
majority of the members present assuming the presence of a quorum or the
unanimous written consent of the members of the Administrator shall constitute
action by the acting Administrator.

       

      With
respect to awards intended to satisfy the requirements for performance-based
compensation under Section 162(m) of the Internal Revenue Code of 1986, as
amended (the “Code”),
this Plan shall be administered by a committee consisting solely of two or more
outside directors (as this requirement is applied under Section 162(m) of the
Code); provided, however, that the failure to satisfy such requirement shall not
affect the validity of the action of any committee otherwise duly authorized and
acting in the matter.  Award grants, and transactions in or involving
awards, intended to be exempt under Rule 16b-3 under the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), must be duly
and timely authorized by the Board or a committee consisting solely of two or
more non-employee directors (as this requirement is applied under Rule 16b-3
promulgated under the Exchange Act).  To the extent required by any
applicable listing agency, this Plan shall be administered by a committee
composed entirely of independent directors (within the meaning of the applicable
listing agency).

       

      
        	
                3.2  

              	
                Powers of
      the Administrator.  Subject to the express provisions of
      this Plan, the Administrator is authorized and empowered to do all things
      necessary or desirable in connection with the authorization of awards and
      the administration of this Plan (in the case of a committee or delegation
      to one or more officers, within the authority delegated to that committee
      or person(s)), including, without limitation, the authority
      to:

              


      

       

      
        	
                 
      

              	
                (a)

              	
                determine
      eligibility and, from among those persons determined to be eligible, the
      particular Eligible Persons who will receive an award under this
      Plan;

              


      

       

      
        	
              	
                (b)

              	
                      
                  grant
      awards to Eligible Persons, determine the price at which securities will
      be offered or awarded and the number of securities to be offered or
      awarded to any of such persons, determine the other specific terms and
      conditions of such awards consistent with the express limits of this Plan,
      establish the installments (if any) in which such awards shall become
      exercisable or shall vest (which may include, without limitation,
      performance and/or time-based schedules), or determine that no delayed
      exercisability or vesting is required, establish any applicable
      performance targets, and establish the events of termination or reversion
      of such awards;

                

              


      

       

      
        	
                 
      

              	
                (c)

              	
                approve
      the forms of award agreements (which need not be identical either as to
      type of award or among
participants);

              


      

       

      
        
          
          

        

        
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                (d)

              	
                construe
      and interpret this Plan and any agreements defining the rights and
      obligations of the Corporation, its Subsidiaries, and participants under
      this Plan, further define the terms used in this Plan, and prescribe,
      amend and rescind rules and regulations relating to the administration of
      this Plan or the awards granted under this
Plan;

              


      

       

      
        	
                 
      

              	
                (e)

              	
                cancel,
      modify, or waive the Corporation’s rights with respect to, or modify,
      discontinue, suspend, or terminate any or all outstanding awards, subject
      to any required consent under Section
8.6.5;

              


      

       

      
        	
                 
      

              	
                (f)

              	
                accelerate
      or extend the vesting or exercisability or extend the term of any or all
      such outstanding awards (in the case of options or stock appreciation
      rights, within the maximum ten-year term of such awards) in such
      circumstances as the Administrator may deem appropriate (including,
      without limitation, in connection with a termination of employment or
      services or other events of a personal nature) subject to any required
      consent under Section 8.6.5;

              


      

       

      
        	
              	
                (g)

              	
                      
                  adjust
      the number of shares of Common Stock subject to any award, adjust the
      price of any or all outstanding awards or otherwise change previously
      imposed terms and conditions, in such circumstances as the Administrator
      may deem appropriate, in each case subject to Sections 4 and 8.6 (subject
      to the no repricing provision
  below);

                

              


      

       

      
        
        

      

      
        	
                 
      

              	
                (h)

              	
                determine
      the date of grant of an award, which may be a designated date after but
      not before the date of the Administrator’s action (unless otherwise
      designated by the Administrator, the date of grant of an award shall be
      the date upon which the Administrator took the action granting an
      award);

              


      

       

      
        	
                 
      

              	
                (i)

              	
                determine
      whether, and the extent to which, adjustments are required pursuant to
      Section 7 hereof and authorize the termination, conversion, substitution
      or succession of awards upon the occurrence of an event of the type
      described in Section 7;

              


      

       

      
        	
                 
      

              	
                (j)

              	
                acquire
      or settle (subject to Sections 7 and 8.6) rights under awards in cash,
      stock of equivalent value, or other consideration (subject to the no
      repricing provision below); and

              


      

       

      
        	
              	
                (k)

              	
                      
                  determine
      the fair market value of the Common Stock or awards under this Plan from
      time to time and/or the manner in which such value will be
      determined.

                

              


      

       

      Notwithstanding
the foregoing and except for an adjustment pursuant to Section 7.1 or a
repricing approved by stockholders, in no case may the Administrator (1) amend
an outstanding stock option or SAR to reduce the exercise price or base price of
the award, (2) cancel, exchange, or surrender an outstanding stock option or SAR
in exchange for cash or other awards for the purpose of repricing the award, or
(3) cancel, exchange, or surrender an outstanding stock option or SAR


      
        
          
          

        

        
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      in
exchange for an option or SAR with an exercise or base price that is less than
the exercise or base price of the original award.

       

      
        	
                3.3  

              	
                Binding
      Determinations.  Any action taken by, or inaction of, the
      Corporation, any Subsidiary, or the Administrator relating or pursuant to
      this Plan and within its authority hereunder or under applicable law shall
      be within the absolute discretion of that entity or body and shall be
      conclusive and binding upon all persons.  Neither the Board nor
      any Board committee, nor any member thereof or person acting at the
      direction thereof, shall be liable for any act, omission, interpretation,
      construction or determination made in good faith in connection with this
      Plan (or any award made under this Plan), and all such persons shall be
      entitled to indemnification and reimbursement by the Corporation in
      respect of any claim, loss, damage or expense (including, without
      limitation, attorneys’ fees) arising or resulting therefrom to the fullest
      extent permitted by law and/or under any directors and officers liability
      insurance coverage that may be in effect from time to
  time.

              


      

       

      
        	
                3.4  

              	
                Reliance on
      Experts.  In making any determination or in taking or not
      taking any action under this Plan, the Administrator may obtain and may
      rely upon the advice of experts, including employees and professional
      advisors to the Corporation.  No director, officer or agent of
      the Corporation or any of its Subsidiaries shall be liable for any such
      action or determination taken or made or omitted in good
      faith.

              


      

       

      
        	
                3.5  

              	
                Delegation.  The
      Administrator may delegate ministerial, non-discretionary functions to
      individuals who are officers or employees of the Corporation or any of its
      Subsidiaries or to third parties.

              


      

       

      4. SHARES
OF COMMON STOCK SUBJECT TO THE PLAN; SHARE LIMITS

       

      
        	
                4.1  

              	
                Shares
      Available.  Subject to the provisions of Section 7.1, the
      capital stock that may be delivered under this Plan shall be shares of the
      Corporation’s authorized but unissued Common Stock and any shares of its
      Common Stock held as treasury shares.  For purposes of this
      Plan, “Common
      Stock” shall mean the common stock of the Corporation and such
      other securities or property as may become the subject of awards under
      this Plan, or may become subject to such awards, pursuant to an adjustment
      made under Section 7.1.

              


      

       

      
        	
                4.2  

              	
                Share
      Limits.  The maximum number of shares of Common Stock
      that may be delivered pursuant to awards granted to Eligible Persons under
      this Plan (the “Share
      Limit”) is equal to the sum of the
  following:

              


      

       

      
        	
                 
      

              	
                (1)

              	
                5,200,000
      shares of Common Stock, plus

              


      

       

      
        	
                 
      

              	
                (2)

              	
                the
      number of any shares subject to stock options and stock appreciation
      rights granted under the Corporation’s 2004 Equity Incentive Plan (the
      “2004 Plan”) and
      under the Corporation’s 2002 Non-Employee Director Equity Incentive Plan
      (the “Director
      Plan”) and outstanding on December 31, 2008 which expire, or for
      any reason are cancelled or terminated, after that date without being
      exercised, plus

              


      

       

      
        
          
          

        

        
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                (3)

              	
                1.25
      times the number of any shares subject to restricted stock and restricted
      stock unit awards granted under the 2004 Plan that are outstanding and
      unvested on December 31, 2008 that are forfeited, terminated, cancelled or
      otherwise reacquired by the Corporation without having become
      vested.

              


      

       

      Shares
issued in respect of any “Full-Value Award” granted under this Plan shall be
counted against the foregoing Share Limit as 1.25 shares for every one share
actually issued in connection with such award.  (For example, if a
stock bonus of 100 shares of Common Stock is granted under this Plan, 125 shares
shall be charged against the Share Limit in connection with that
award.)  For this purpose, a “Full-Value Award” means any
award under this Plan that is not a stock option
grant or a stock appreciation right grant.

       

      Awards
granted under the 2004 Plan after December 31, 2008 and prior to the termination
of award grant authority under that plan shall count against the Share Limit as
though such awards had been granted under this Plan.

       

      The
following limits also apply with respect to awards granted under this
Plan:

       

      
        	
                 
      

              	
                (a)

              	
                The
      maximum number of shares of Common Stock that may be delivered pursuant to
      options qualified as incentive stock options granted under this Plan is
      5,200,000 shares.

              


      

       

      
        	
                 
      

              	
                (b)

              	
                The
      maximum number of shares of Common Stock subject to those options and
      stock appreciation rights that are granted during any calendar year to any
      individual under this Plan is 1,000,000 shares.

              


      

       

      
        	
                 
      

              	
                (c)

              	
                Additional
      limits with respect to Performance-Based Awards are set forth in Section
      5.2.3.

              


      

       

      Each of
the foregoing numerical limits is subject to adjustment as contemplated by
Section 4.3, Section 7.1, and Section 8.10.

       

      
        	
                4.3  

              	
                Awards
      Settled in Cash, Reissue of Awards and Shares.  To the
      extent that an award granted under this Plan is settled in cash or a form
      other than shares of Common Stock, the shares that would have been
      delivered had there been no such cash or other settlement shall not be
      counted against the shares available for issuance under this
      Plan.  In the event that shares of Common Stock are delivered in
      respect of a dividend equivalent right granted under this Plan, the actual
      number of shares delivered with respect to the award shall be counted
      against the share limits of this Plan (including, for purposes of clarity,
      the limits of Section 4.2 of this Plan).  (For purposes of
      clarity, if 1,000 dividend equivalent rights are granted and outstanding
      when the Corporation pays a dividend, and 50 shares are delivered in
      payment of those rights with respect to that dividend, 50 shares shall be
      counted against the share limits of this Plan).  To the extent
      that shares of Common Stock are delivered pursuant to the exercise of a
      stock appreciation right or stock option granted under this Plan, the
      number of underlying shares as to which the exercise related shall be
      counted against the applicable share limits under Section 4.2, as opposed
      to only counting the shares actually issued.  (For
    

              


      

       

      
        
          
          

        

        
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      purposes of clarity, if a stock appreciation right relates to
100,000 shares and is exercised at a time when the payment due to the
participant is 15,000 shares, 100,000 shares shall be charged against the
applicable share limits under Section 4.2 with respect to such
exercise.)  Shares that are subject to or underlie awards granted
under this Plan which expire or for any reason are cancelled or terminated, are
forfeited, fail to vest, or for any other reason are not paid or delivered under
this Plan shall again be available for subsequent awards under this
Plan.  Shares that are exchanged by a participant or withheld by the
Corporation as full or partial payment in connection with any award under this
Plan, as well as any shares exchanged by a participant or withheld by the
Corporation or one of its Subsidiaries to satisfy the tax withholding
obligations related to any award, shall not be available for subsequent awards
under this Plan.  Refer to Section 8.10 for application of the
foregoing share limits with respect to assumed awards.  The foregoing
adjustments to the share limits of this Plan are subject to any applicable
limitations under Section 162(m) of the Code with respect to awards intended as
performance-based compensation thereunder.

       

      
        	
                4.4  

              	
                Reservation
      of Shares; No Fractional Shares; Minimum Issue. The
      Corporation shall at all times reserve a number of shares of Common Stock
      sufficient to cover the Corporation’s obligations and contingent
      obligations to deliver shares with respect to awards then outstanding
      under this Plan (exclusive of any dividend equivalent obligations to the
      extent the Corporation has the right to settle such rights in
      cash).  No fractional shares shall be delivered under this
      Plan.  The Administrator may pay cash in lieu of any fractional
      shares in settlements of awards under this Plan.  No fewer than
      100 shares may be purchased on exercise of any award (or, in the case of
      stock appreciation or purchase rights, no fewer than 100 rights may be
      exercised at any one time) unless the total number purchased or exercised
      is the total number at the time available for purchase or exercise under
      the award.

              


      

       

      5. AWARDS

       

      
        	
                5.1  

              	
                Type and
      Form of Awards.  The Administrator shall determine the
      type or types of award(s) to be made to each selected Eligible
      Person.  Awards may be granted singly, in combination or in
      tandem.  Awards also may be made in combination or in tandem
      with, in replacement of, as alternatives to, or as the payment form for
      grants or rights under any other employee or compensation plan of the
      Corporation or one of its Subsidiaries.  The types of awards
      that may be granted under this Plan are (subject, in each case, to the no
      repricing provisions of Section
3.2):

              


      

       

      5.1.1 Stock
Options.  A stock option is the grant of a right to purchase a
specified number of shares of Common Stock during a specified period as
determined by the Administrator.  An option may be intended as an
incentive stock option within the meaning of Section 422 of the Code (an “ISO”) or a nonqualified stock
option (an option not intended to be an ISO).  The award agreement for
an option will indicate if the option is intended as an ISO; otherwise it will
be deemed to be a nonqualified stock option.  The maximum term of each
option (ISO or nonqualified) shall be seven (7) years.  The per share


      
        
          
          

        

        
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      exercise
price for each option shall be not less than 100% of the fair market value of a
share of Common Stock on the date of grant of the option.  When an
option is exercised, the exercise price for the shares to be purchased shall be
paid in full in cash or such other method permitted by the Administrator
consistent with Section 5.5.

       

      5.1.2 Additional Rules
Applicable to ISOs.  To the extent that the aggregate fair
market value (determined at the time of grant of the applicable option) of stock
with respect to which ISOs first become exercisable by a participant in any
calendar year exceeds $100,000, taking into account both Common Stock subject to
ISOs under this Plan and stock subject to ISOs under all other plans of the
Corporation or one of its Subsidiaries (or any parent or predecessor corporation
to the extent required by and within the meaning of Section 422 of the Code and
the regulations promulgated thereunder), such options shall be treated as
nonqualified stock options.  In reducing the number of options treated
as ISOs to meet the $100,000 limit, the most recently granted options shall be
reduced first.  To the extent a reduction of simultaneously granted
options is necessary to meet the $100,000 limit, the Administrator may, in the
manner and to the extent permitted by law, designate which shares of Common
Stock are to be treated as shares acquired pursuant to the exercise of an
ISO.  ISOs may only be granted to employees of the Corporation or one
of its subsidiaries (for this purpose, the term “subsidiary” is used as defined
in Section 424(f) of the Code, which generally requires an unbroken chain of
ownership of at least 50% of the total combined voting power of all classes of
stock of each subsidiary in the chain beginning with the Corporation and ending
with the subsidiary in question).  There shall be imposed in any award
agreement relating to ISOs such other terms and conditions as from time to time
are required in order that the option be an “incentive stock option” as that
term is defined in Section 422 of the Code.  No ISO may be granted to
any person who, at the time the option is granted, owns (or is deemed to own
under Section 424(d) of the Code) shares of outstanding Common Stock possessing
more than 10% of the total combined voting power of all classes of stock of the
Corporation, unless the exercise price of such option is at least 110% of the
fair market value of the stock subject to the option and such option by its
terms is not exercisable after the expiration of five years from the date such
option is granted.

       

      5.1.3 Stock
Appreciation Rights.  A stock appreciation right or “SAR” is a right to receive a
payment, in cash and/or Common Stock, equal to the excess of the fair market
value of a specified number of shares of Common Stock on the date the SAR is
exercised over the “base
price” of the award, which base price shall be set forth in the
applicable award agreement and shall be not less than 100% of the fair market
value of a share of Common Stock on the date of grant of the SAR.  The
maximum term of a SAR shall be seven (7) years.

       

      5.1.4 Other
Awards.  The other types of awards that may be granted under
this Plan include: (a) stock bonuses, restricted stock, performance stock, stock
units, phantom stock, dividend equivalents, or similar rights to purchase or
acquire shares, whether at a fixed or variable price or ratio related to the
Common Stock, upon the passage of time, the occurrence of one or more events, or
the satisfaction 

      
        
          
          

        

        
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      of
performance criteria or other conditions, or any combination thereof;
(b) any similar securities with a value derived from the value of or
related to the Common Stock and/or returns thereon; or (c) cash
awards.

       

      
        	
                5.2  

              	
                Section
      162(m) Performance-Based Awards.  Without
      limiting the generality of the foregoing, any of the types of awards
      listed in Section 5.1.4 above may be, and options and SARs granted to
      officers and employees (“Qualifying Options” and
      “Qualifying SARS,”
      respectively) typically will be, granted as awards intended to satisfy the
      requirements for “performance-based compensation” within the meaning of
      Section 162(m) of the Code (“Performance-Based
      Awards”).  The
      grant, vesting, exercisability or payment of Performance-Based Awards may
      depend (or, in the case of Qualifying Options or Qualifying SARs, may also
      depend) on the degree of achievement of one or more performance goals
      relative to a pre-established targeted level or levels using one or more
      of the Business Criteria set forth below (on an absolute basis or relative
      to the performance of other companies or upon comparisons of any of the
      indicators of performance relative to other companies) for the Corporation
      on a consolidated basis or for one or more of the Corporation’s
      subsidiaries, segments, divisions or business units, or any combination of
      the foregoing.  Any Qualifying Option or Qualifying SAR shall be
      subject only to the requirements of Section 5.2.1 and 5.2.3 in order for
      such award to satisfy the requirements for “performance-based
      compensation” under Section 162(m) of the Code.  Any other
      Performance-Based Award shall be subject to all of the following
      provisions of this Section 5.2.

              


      

       

      5.2.1 Class;
Administrator.  The eligible
class of persons for Performance-Based Awards under this Section 5.2 shall
be officers and employees of the Corporation or one of its
Subsidiaries.  The Administrator approving Performance-Based Awards or
making any certification required pursuant to Section 5.2.4 must be constituted
as provided in Section 3.1 for awards that are intended as performance-based
compensation under Section 162(m) of the Code.

       

      5.2.2 Performance
Goals.  The specific
performance goals for Performance-Based Awards (other than Qualifying Options
and Qualifying SARs) shall be, on an absolute or relative basis, established
based on one or more of the following business criteria (“Business Criteria”) as
selected by the Administrator in its sole discretion:  earnings per
share; cash flow (which means cash and cash equivalents derived from either net
cash flow from operations or net cash flow from operations, financing and
investing activities); stock price; total stockholder return; gross revenue;
revenue growth; operating income (before or after taxes); net earnings (before
or after interest, taxes, depreciation and/or amortization); return on equity or
on assets or on net investment; cost containment or reduction; net sales growth;
market share; net operating profit; expense targets; working capital targets
relating to inventory and/or accounts receivable; operating margin; planning
accuracy (as measured by comparing planned results to actual results);
measurably improving quality of care outcomes at company facilities; net sales;
earnings before interest, taxes, depreciation, amortization (EBITDA); earnings
before interest, taxes, depreciation, amortization, and rents (EBITDAR);
operating income (before or after taxes); pre- or after-tax income (before or
after allocation of corporate overhead and bonus); appreciation in and/or
maintenance of the price 

      
        
          
          

        

        
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      of the
Common Stock or any other publicly-traded securities of the Corporation; gross
profits; economic value-added models or equivalent metrics; comparisons with
various stock market indices; cash flow per share (before or after dividends);
return on capital (including return on total capital or return on invested
capital); return on equity; return on assets; cash flow return on investment;
gross margins or cash margin; year-end cash; debt reduction; stockholder equity;
operating efficiencies; strategic partnerships or transactions (including
in-licensing and out-licensing of intellectual property; establishing
relationships with commercial entities with respect to the marketing,
distribution and sale of the Corporation’s products (including with group
purchasing organizations, distributors and other vendors); co-development,
co-marketing, profit sharing, joint venture or other similar arrangements);
financial ratios, including those measuring liquidity, activity, profitability
or leverage; cost of capital or assets under management; financing and other
capital raising transactions (including sales of the Corporation’s equity or
debt securities; factoring transactions; sales or licenses of the Corporation’s
assets, including its intellectual property, whether in a particular
jurisdiction or territory or globally; or through partnering transactions);
implementation, completion or attainment of measurable objectives with respect
to research, development, manufacturing, commercialization, products or
projects, production volume levels, acquisitions and divestitures and recruiting
and maintaining personnel; or any combination thereof.  These terms
are used as applied under generally accepted accounting principles or in the
financial reporting of the Corporation or of its Subsidiaries.  To
qualify awards as performance-based under Section 162(m), the applicable
Business Criterion (or Business Criteria, as the case may be) and specific
performance goal or goals (“targets”) must be established and approved by the
Administrator during the first 90 days of the performance period (and, in the
case of performance periods of less than one year, in no event after 25% or more
of the performance period has elapsed) and while performance relating to such
target(s) remains substantially uncertain within the meaning of Section 162(m)
of the Code.  The terms of the Performance-Based Award may specify the
manner, if any, in which performance targets shall be adjusted to mitigate the
unbudgeted impact of material, unusual or nonrecurring gains and losses,
accounting changes or other extraordinary events not foreseen at the time the
targets were set unless the Administrator provides otherwise at the time of
establishing the targets.  The applicable performance measurement
period may not be less than three months nor more than 10 years.

       

      5.2.3 Form of Payment;
Maximum Performance-Based Award.  Grants or awards
under this Section 5.2 may be paid in cash or shares of Common Stock or any
combination thereof.  Grants of Qualifying Options and Qualifying SARs
to any one participant in any one calendar year shall be subject to the limit
set forth in Section 4.2(b).  The maximum number of shares of Common
Stock which may be delivered pursuant to Performance-Based Awards (other than
Qualifying Options and Qualifying SARs, and other than cash awards covered by
the following sentence) that are granted to any one participant in any one
calendar year shall not exceed 1,000,000 shares, either
individually or in the aggregate, subject to adjustment as provided in Section
7.1.  In addition, the aggregate amount of compensation to be paid to
any one participant in respect of all Performance-Based Awards payable only in
cash and not related to shares of 

      
        
          
          

        

        
          9

          
            

          

        

        
          
          

        

      

       

      Common
Stock and granted to that participant in any one calendar year shall not exceed
$3,000,000.  Awards that are cancelled during the year shall be
counted against these limits to the extent required by Section 162(m) of the
Code.

       

      5.2.4 Certification of
Payment.  Before any
Performance-Based Award under this Section 5.2 (other than Qualifying Options
and Qualifying SARs) is paid and to the extent required to qualify the award as
performance-based compensation within the meaning of Section 162(m) of the Code,
the Administrator must certify in writing that the performance target(s) and any
other material terms of the Performance-Based Award were in fact timely
satisfied.

       

      5.2.5 Reservation of
Discretion.  The Administrator
will have the discretion to determine the restrictions or other limitations of
the individual awards granted under this Section 5.2 including the authority to
reduce awards, payouts or vesting or to pay no awards, in its sole discretion,
if the Administrator preserves such authority at the time of grant by language
to this effect in its authorizing resolutions or otherwise.

       

      5.2.6 Expiration of
Grant Authority.  As required
pursuant to Section 162(m) of the Code and the regulations promulgated
thereunder, the Administrator’s authority to grant new awards that are intended
to qualify as performance-based compensation within the meaning of Section
162(m) of the Code (other than Qualifying Options and Qualifying SARs) shall
terminate upon the first meeting of the Corporation’s stockholders that occurs
in the fifth year following the year in which the Corporation’s stockholders
first approve this Plan, subject to any subsequent extension that may be
approved by stockholders.

       

      
        	
                5.3  

              	
                Award
      Agreements.  Each award shall be evidenced by either (1)
      a written award agreement in a form approved by the Administrator and
      executed by the Corporation by an officer duly authorized to act on its
      behalf, or (2) an electronic notice of award grant in a form approved by
      the Administrator and recorded by the Corporation (or its designee) in an
      electronic recordkeeping system used for the purpose of tracking award
      grants under this Plan generally (in each case, an “award agreement”), as
      the Administrator may provide and, in each case and if required by the
      Administrator, executed or otherwise electronically accepted by the
      recipient of the award in such form and manner as the Administrator may
      require.  The Administrator may authorize any officer of the
      Corporation (other than the particular award recipient) to execute any or
      all award agreements on behalf of the Corporation.  The award
      agreement shall set forth the material terms and conditions of the award
      as established by the Administrator consistent with the express
      limitations of this Plan.

              


      

       

      
        	
                5.4  

              	
                Deferrals
      and Settlements.  Payment of awards may be in the form of
      cash, Common Stock, other awards or combinations thereof as the
      Administrator shall determine, and with such restrictions as it may
      impose.  The Administrator may also require or permit
      participants to elect to defer the issuance of shares or the settlement of
      awards in cash under such rules and procedures as it may establish under
      this Plan.  The Administrator may also provide that deferred
      settlements include the payment or crediting of interest or other earnings
      on the deferral 

              


      

       

      
        
          
          

        

        
          10

          
            

          

        

        
          
          

        

      

      amounts, or the payment or crediting of dividend equivalents where
the deferred amounts are denominated in shares.

       

      
        	
                5.5  

              	
                Consideration
      for Common Stock or Awards.  The purchase price for any
      award granted under this Plan or the Common Stock to be delivered pursuant
      to an award, as applicable, may be paid by means of any lawful
      consideration as determined by the Administrator, including, without
      limitation, one or a combination of the following
  methods:

              


      

       

      
        	
                ·  

              	
                services
      rendered by the recipient of such
award;

              


      

       

      
        	
                ·  

              	
                cash,
      check payable to the order of the Corporation, or electronic funds
      transfer;

              


      

       

      
        	
                ·  

              	
                notice
      and third party payment in such manner as may be authorized by the
      Administrator;

              


      

       

      
        	
                ·  

              	
                the
      delivery of previously owned shares of Common
  Stock;

              


      

       

      
        	
                ·  

              	
                by
      a reduction in the number of shares otherwise deliverable pursuant to the
      award; or

              


      

       

      
        	
                ·  

              	
                subject
      to such procedures as the Administrator may adopt, pursuant to a “cashless
      exercise” with a third party who provides financing for the purposes of
      (or who otherwise facilitates) the purchase or exercise of
      awards.

              


      

       

      In no
event shall any shares newly-issued by the Corporation be issued for less than
the minimum lawful consideration for such shares or for consideration other than
consideration permitted by applicable state law.  Shares of Common
Stock used to satisfy the exercise price of an option shall be valued at their
fair market value on the date of exercise.  The Corporation will not
be obligated to deliver any shares unless and until it receives full payment of
the exercise or purchase price therefor and any related withholding obligations
under Section 8.5 and any other conditions to exercise or purchase have been
satisfied.  Unless otherwise expressly provided in the applicable
award agreement, the Administrator may at any time eliminate or limit a
participant’s ability to pay the purchase or exercise price of any award or
shares by any method other than cash payment to the Corporation.

       

      
        	
                5.6  

              	
                Definition
      of Fair Market Value.  For purposes of this Plan, “fair
      market value” shall mean, unless otherwise determined or provided by the
      Administrator in the circumstances, the last price (in regular trading)
      for a share of Common Stock as furnished by the National Association of
      Securities Dealers, Inc. (the “NASD”) through the
      NASDAQ Global Market Reporting System (the “Global Market”) for the
      date in question or, if no sales of Common Stock were reported by the NASD
      on the Global Market on that date, the last price (in regular trading) for
      a share of Common Stock as furnished by the NASD through the Global Market
      for the next preceding day on which sales of Common Stock were reported by
      the NASD.  The Administrator may, however, provide with respect
      to one or more 

              


      

       

      
        
          
          

        

        
          11

          
            

          

        

        
          
          

        

      

      awards that the fair market value shall equal the last price (in
regular trading) for a share of Common Stock as furnished by the NASD through
the Global Market on the last trading day preceding the date in question or the
average of the high and low trading prices of a share of Common Stock as
furnished by the NASD through the Global Market for the date in question or the
most recent trading day.  If the Common Stock is no longer listed or
is no longer actively traded on the Global Market as of the applicable date, the
fair market value of the Common Stock shall be the value as reasonably
determined by the Administrator for purposes of the award in the
circumstances.  The Administrator also may adopt a different
methodology for determining fair market value with respect to one or more awards
if a different methodology is necessary or advisable to secure any intended
favorable tax, legal or other treatment for the particular award(s) (for
example, and without limitation, the Administrator may provide that fair market
value for purposes of one or more awards will be based on an average of closing
prices (or the average of high and low daily trading prices) for a specified
period preceding the relevant date).

       

      5.7 Transfer
Restrictions.

       

      5.7.1 Limitations on
Exercise and Transfer.  Unless otherwise expressly provided in
(or pursuant to) this Section 5.7 or required by applicable law: (a) all awards
are non-transferable and shall not be subject in any manner to sale, transfer,
anticipation, alienation, assignment, pledge, encumbrance or charge; (b) awards
shall be exercised only by the participant; and (c) amounts payable or shares
issuable pursuant to any award shall be delivered only to (or for the account
of) the participant.

       

      5.7.2 Exceptions.  The
Administrator may permit awards to be exercised by and paid to, or otherwise
transferred to, other persons or entities pursuant to such conditions and
procedures, including limitations on subsequent transfers, as the Administrator
may, in its sole discretion, establish in writing.  Any permitted
transfer shall be subject to compliance with applicable federal and state
securities laws and shall not be for value (other than nominal consideration,
settlement of marital property rights, or for interests in an entity in which
more than 50% of the voting interests are held by the Eligible Person or by the
Eligible Person’s family members).

       

      5.7.3 Further
Exceptions to Limits on Transfer.  The exercise and transfer
restrictions in Section 5.7.1 shall not apply to:

       

      
        	
                 
      

              	
                (a)

              	
                transfers
      to the Corporation (for example, in connection with the expiration or
      termination of the award),

              


      

       

      
        	
                 
      

              	
                (b)

              	
                the
      designation of a beneficiary to receive benefits in the event of the
      participant’s death or, if the participant has died, transfers to or
      exercise by the participant’s beneficiary, or, in the absence of a validly
      designated beneficiary, transfers by will or the laws of descent and
      distribution,

              


      

       

      
        
          
          

        

        
          12

          
            

          

        

        
          
          

        

      

      
        	
                 
      

              	
                (c)

              	
                subject
      to any applicable limitations on ISOs, transfers to a family member (or
      former family member) pursuant to a domestic relations order if approved
      or ratified by the Administrator,

              


      

       

      
        	
                 
      

              	
                (d)

              	
                if
      the participant has suffered a disability, permitted transfers or
      exercises on behalf of the participant by his or her legal representative,
      or

              


      

       

      
        	
              	
                (e)

              	
                      
                  the
      authorization by the Administrator of “cashless exercise” procedures with
      third parties who provide financing for the purpose of (or who otherwise
      facilitate) the exercise of awards consistent with applicable laws and the
      express authorization of the
  Administrator.

                

              


      

       

      
        	
                5.8  

              	
                International
      Awards.  One or more awards may be granted to Eligible
      Persons who provide services to the Corporation or one of its Subsidiaries
      outside of the United States.  Any awards granted to such
      persons may be granted pursuant to the terms and conditions of any
      applicable sub-plans, if any, appended to this Plan and approved by the
      Administrator.

              


      

       

      6. EFFECT
OF TERMINATION OF EMPLOYMENT OR SERVICE ON AWARDS

       

      
        	
                6.1  

              	
                General.  The
      Administrator shall establish the effect of a termination of employment or
      service on the rights and benefits under each award under this Plan and in
      so doing may make distinctions based upon, inter alia, the cause of
      termination and type of award.  If the participant is not an
      employee of the Corporation or one of its Subsidiaries and provides other
      services to the Corporation or one of its Subsidiaries, the Administrator
      shall be the sole judge for purposes of this Plan (unless a contract or
      the award otherwise provides) of whether the participant continues to
      render services to the Corporation or one of its Subsidiaries and the
      date, if any, upon which such services shall be deemed to have
      terminated.

              


      

       

      
        	
                6.2  

              	
                Events Not
      Deemed Terminations of Service.  Unless the express
      policy of the Corporation or one of its Subsidiaries, or the
      Administrator, otherwise provides, the employment relationship shall not
      be considered terminated in the case of (a) sick leave, (b) military
      leave, or (c) any other leave of absence authorized by the Corporation or
      one of its Subsidiaries, or the Administrator; provided that, unless
      reemployment upon the expiration of such leave is guaranteed by contract
      or law or the Administrator otherwise provides, such leave is for a period
      of not more than three months.  In the case of any employee of
      the Corporation or one of its Subsidiaries on an approved leave of
      absence, continued vesting of the award while on leave from the employ of
      the Corporation or one of its Subsidiaries may be suspended until the
      employee returns to service, unless the Administrator otherwise provides
      or applicable law otherwise requires.  In no event shall an
      award be exercised after the expiration of the term set forth in the
      applicable award agreement.

              


      

       

      
        	
                6.3  

              	
                Effect of
      Change of Subsidiary Status.  For purposes of this Plan
      and any award, if an entity ceases to be a Subsidiary of the Corporation a
      termination of employment or service shall be deemed to have occurred with
      respect to each 

              


      

       

      
        
          
          

        

        
          13

          
            

          

        

        
          
          

        

      

      Eligible Person in respect of such Subsidiary who does not
continue as an Eligible Person in respect of the Corporation or another
Subsidiary that continues as such after giving effect to the transaction or
other event giving rise to the change in status.

       

      7. ADJUSTMENTS;
ACCELERATION

       

      
        	
                7.1  

              	
                Adjustments.  Subject
      to Section 7.2, upon (or, as may be necessary to effect the adjustment,
      immediately prior to): any reclassification, recapitalization, stock split
      (including a stock split in the form of a stock dividend) or reverse stock
      split; any merger, combination, consolidation, or other reorganization;
      any spin-off, split-up, or similar extraordinary dividend distribution in
      respect of the Common Stock; or any exchange of Common Stock or other
      securities of the Corporation, or any similar, unusual or extraordinary
      corporate transaction in respect of the Common Stock; then the
      Administrator shall equitably and proportionately adjust (1) the number
      and type of shares of Common Stock (or other securities) that thereafter
      may be made the subject of awards (including the specific share limits,
      maximums and numbers of shares set forth elsewhere in this Plan), (2) the
      number, amount and type of shares of Common Stock (or other securities or
      property) subject to any outstanding awards, (3) the grant, purchase, or
      exercise price (which term includes the base price of any SAR or similar
      right) of any outstanding awards, and/or (4) the securities, cash or other
      property deliverable upon exercise or payment of any outstanding awards,
      in each case to the extent necessary to preserve (but not increase) the
      level of incentives intended by this Plan and the then-outstanding
      awards.

              


      

       

      Unless
otherwise expressly provided in the applicable award agreement, upon (or, as may
be necessary to effect the adjustment, immediately prior to) any event or
transaction described in the preceding paragraph or a sale of all or
substantially all of the business or assets of the Corporation as an entirety,
the Administrator shall equitably and proportionately adjust the performance
standards applicable to any then-outstanding performance-based awards to the
extent necessary to preserve (but not increase) the level of incentives intended
by this Plan and the then-outstanding performance-based awards.

       

      It is
intended that, if possible, any adjustments contemplated by the preceding two
paragraphs be made in a manner that satisfies applicable U.S. legal, tax
(including, without limitation and as applicable in the circumstances, Section
424 of the Code, Section 409A of the Code and Section 162(m) of the Code) and
accounting (so as to not trigger any charge to earnings with respect to such
adjustment) requirements.

       

      Without
limiting the generality of Section 3.3, any good faith determination by the
Administrator as to whether an adjustment is required in the circumstances
pursuant to this Section 7.1, and the extent and nature of any such adjustment,
shall be conclusive and binding on all persons.

       

      
        	
                7.2  

              	
                Corporate
      Transactions - Assumption and Termination of
      Awards.  Upon the occurrence of any of the following: any
      merger, combination, consolidation, or


              


      

       

      
        
          
          

        

        
          14

          
            

          

        

        
          
          

        

      

      other reorganization in connection with which the Corporation does
not survive (or does not survive as a public company in respect of its Common
Stock); any exchange of Common Stock or other securities of the Corporation in
connection with which the Corporation does not survive (or does not survive as a
public company in respect of its Common Stock); a sale of all or substantially
all the business, stock or assets of the Corporation in connection with which
the Corporation does not survive (or does not survive as a public company in
respect of its Common Stock); a dissolution of the Corporation; or any other
event in which the Corporation does not survive (or does not survive as a public
company in respect of its Common Stock); then the Administrator may make
provision for a cash payment in settlement of, or for the assumption,
substitution or exchange of any or all outstanding share-based awards or the
cash, securities or property deliverable to the holder of any or all outstanding
share-based awards, based upon, to the extent relevant under the circumstances,
the distribution or consideration payable to holders of the Common Stock upon or
in respect of such event.  Upon the occurrence of any event described
in the preceding sentence, then, unless the Administrator has made a provision
for the substitution, assumption, exchange or other continuation or settlement
of the award or the award would otherwise continue in accordance with its terms
in the circumstances: (1) unless otherwise provided in the applicable award
agreement, each then-outstanding option and SAR shall become fully vested, all
shares of restricted stock then outstanding shall fully vest free of
restrictions, and each other award granted under this Plan that is then
outstanding shall become payable to the holder of such award; and (2) each award
shall terminate upon the related event; provided that the holder of an option or
SAR shall be given reasonable advance notice of the impending termination and a
reasonable opportunity to exercise his or her outstanding vested options and
SARs (after giving effect to any accelerated vesting required in the
circumstances) in accordance with their terms before the termination of such
awards (except that in no case shall more than ten days’ notice of the impending
termination be required and any acceleration of vesting and any exercise of any
portion of an award that is so accelerated may be made contingent upon the
actual occurrence of the event).

       

      Without
limiting the preceding paragraph, in connection with any event referred to in
the preceding paragraph or any change in control event defined in any applicable
award agreement, the Administrator may, in its discretion, provide for the
accelerated vesting of any award or awards as and to the extent determined by
the Administrator in the circumstances.

       

      The
Administrator may adopt such valuation methodologies for outstanding awards as
it deems reasonable in the event of a cash or property settlement and, in the
case of options, SARs or similar rights, but without limitation on other
methodologies, may base such settlement solely upon the excess if any of the per
share amount payable upon or in respect of such event over the exercise or base
price of the award.

       

      In any of
the events referred to in this Section 7.2, the Administrator may take such
action contemplated by this Section 7.2 prior to such event (as opposed to on
the occurrence of such event) to the extent that the Administrator deems the


      
        
          
          

        

        
          15

          
            

          

        

        
          
          

        

      

       

      action
necessary to permit the participant to realize the benefits intended to be
conveyed with respect to the underlying shares.  Without limiting the
generality of the foregoing, the Administrator may deem an acceleration to occur
immediately prior to the applicable event and/or reinstate the original terms of
the award if an event giving rise to an acceleration does not
occur.

       

      Without
limiting the generality of Section 3.3, any good faith determination by the
Administrator pursuant to its authority under this Section 7.2 shall be
conclusive and binding on all persons.

       

      
        	
                7.3  

              	
                Other
      Acceleration Rules.  The Administrator may override the
      provisions of Section 7.2 by express provision in the award agreement and
      may accord any Eligible Person a right to refuse any acceleration, whether
      pursuant to the award agreement or otherwise, in such circumstances as the
      Administrator may approve.  The portion of any ISO accelerated
      in connection with an event referred to in Section 7.2 (or such other
      circumstances as may trigger accelerated vesting of the award) shall
      remain exercisable as an ISO only to the extent the applicable $100,000
      limitation on ISOs is not exceeded.  To the extent exceeded, the
      accelerated portion of the option shall be exercisable as a nonqualified
      stock option under the Code.

              


      

       

      8. OTHER
PROVISIONS

       

      
        	
                8.1  

              	
                Compliance
      with Laws.  This Plan, the granting and vesting of awards
      under this Plan, the offer, issuance and delivery of shares of Common
      Stock, and/or the payment of money under this Plan or under awards are
      subject to compliance with all applicable federal and state laws, rules
      and regulations (including but not limited to state and federal securities
      law and federal margin requirements) and to such approvals by any listing,
      regulatory or governmental authority as may, in the opinion of counsel for
      the Corporation, be necessary or advisable in connection
      therewith.  The person acquiring any securities under this Plan
      will, if requested by the Corporation or one of its Subsidiaries, provide
      such assurances and representations to the Corporation or one of its
      Subsidiaries as the Administrator may deem necessary or desirable to
      assure compliance with all applicable legal and accounting
      requirements.

              


      

       

      
        	
                8.2  

              	
                No Rights
      to Award.  No person shall have any claim or rights to be
      granted an award (or additional awards, as the case may be) under this
      Plan, subject to any express contractual rights (set forth in a document
      other than this Plan) to the
contrary.

              


      

       

      
        	
                8.3  

              	
                No
      Employment/Service Contract.  Nothing contained in this
      Plan (or in any other documents under this Plan or in any award) shall
      confer upon any Eligible Person or other participant any right to continue
      in the employ or other service of the Corporation or one of its
      Subsidiaries, constitute any contract or agreement of employment or other
      service or affect an employee’s status as an employee at will, nor shall
      interfere in any way with the right of the Corporation or one of its
      Subsidiaries to change a person’s compensation or other benefits, or to
      terminate his or her employment or other service, with or without
      cause.  Nothing in this 

              


      

       

      
        
          
          

        

        
          16

          
            

          

        

        
          
          

        

      

      Section 8.3, however, is intended to adversely affect any express
independent right of such person under a separate employment or service contract
other than an award agreement.

       

      
        	
                8.4  

              	
                Plan Not
      Funded.  Awards payable under this Plan shall be payable
      in shares or from the general assets of the Corporation, and no special or
      separate reserve, fund or deposit shall be made to assure payment of such
      awards.  No participant, beneficiary or other person shall have
      any right, title or interest in any fund or in any specific asset
      (including shares of Common Stock, except as expressly otherwise provided)
      of the Corporation or one of its Subsidiaries by reason of any award
      hereunder.  Neither the provisions of this Plan (or of any
      related documents), nor the creation or adoption of this Plan, nor any
      action taken pursuant to the provisions of this Plan shall create, or be
      construed to create, a trust of any kind or a fiduciary relationship
      between the Corporation or one of its Subsidiaries and any participant,
      beneficiary or other person.  To the extent that a participant,
      beneficiary or other person acquires a right to receive payment pursuant
      to any award hereunder, such right shall be no greater than the right of
      any unsecured general creditor of the
  Corporation.

              


      

       

      
        	
                8.5  

              	
                Tax
      Withholding.  Upon any exercise, vesting, or payment of
      any award or upon the disposition of shares of Common Stock acquired
      pursuant to the exercise of an ISO prior to satisfaction of the holding
      period requirements of Section 422 of the Code, the Corporation or one of
      its Subsidiaries shall have the right at its option
  to:

              


      

       

      
        	
                 
      

              	
                (a)

              	
                require
      the participant (or the participant’s personal representative or
      beneficiary, as the case may be) to pay or provide for payment of at least
      the minimum amount of any taxes which the Corporation or one of its
      Subsidiaries may be required to withhold with respect to such award event
      or payment; or

              


      

       

      
        	
                 
      

              	
                (b)

              	
                deduct
      from any amount otherwise payable in cash to the participant (or the
      participant’s personal representative or beneficiary, as the case may be)
      the minimum amount of any taxes which the Corporation or one of its
      Subsidiaries may be required to withhold with respect to such cash
      payment.

              


      

       

      In any
case where a tax is required to be withheld in connection with the delivery of
shares of Common Stock under this Plan, the Administrator may in its sole
discretion (subject to Section 8.1) require or grant (either at the time of the
award or thereafter) to the participant the right to elect, pursuant to such
rules and subject to such conditions as the Administrator may establish, that
the Corporation reduce the number of shares to be delivered by (or otherwise
reacquire) the appropriate number of shares, valued in a consistent manner at
their fair market value or at the sales price in accordance with authorized
procedures for cashless exercises, necessary to satisfy the minimum applicable
withholding obligation on exercise, vesting or payment.  In no event
shall the shares withheld exceed the minimum whole number of shares required for
tax withholding under applicable law.

      
        
          
          

        

        
          17

          
            

          

        

        
          
          

        

      

      8.6  Effective Date,
Termination and Suspension, Amendments.

       

      8.6.1 Effective
Date.  This Plan is effective as of March 27, 2009, the date of
its approval by the Board (the “Effective
Date”).  This Plan shall be submitted for and subject to
stockholder approval no later than twelve months after the Effective
Date.  Unless earlier terminated by the Board, this Plan shall
terminate at the close of business on the day before the tenth anniversary of
the Effective Date.  After the termination of this Plan either upon
such stated expiration date or its earlier termination by the Board, no
additional awards may be granted under this Plan, but previously granted awards
(and the authority of the Administrator with respect thereto, including the
authority to amend such awards) shall remain outstanding in accordance with
their applicable terms and conditions and the terms and conditions of this
Plan.

       

      8.6.2 Board
Authorization.  The Board may, at any time, terminate or, from
time to time, amend, modify or suspend this Plan, in whole or in
part.  No awards may be granted during any period that the Board
suspends this Plan.

       

      8.6.3 Stockholder
Approval.  To the extent then required by applicable law or any
applicable listing agency or required under Sections 162, 422 or 424 of the Code
to preserve the intended tax consequences of this Plan, or deemed necessary or
advisable by the Board, any amendment to this Plan shall be subject to
stockholder approval.  In addition, the no repricing provision
included in Section 3.2 may not be amended without shareholder
approval.

       

      8.6.4 Amendments to
Awards.  Without limiting any other express authority of the
Administrator under (but subject to) the express limits of this Plan, the
Administrator by agreement or resolution may waive conditions of or limitations
on awards to participants that the Administrator in the prior exercise of its
discretion has imposed, without the consent of a participant, and (subject to
the requirements of Sections 3.2 and 8.6.5) may make other changes to the terms
and conditions of awards.  Any amendment or other action that would
constitute a repricing of an award is subject to the limitations set forth in
Section 3.2(g).

       

      8.6.5 Limitations on
Amendments to Plan and Awards.  No amendment, suspension or
termination of this Plan or amendment of any outstanding award agreement shall,
without written consent of the participant, affect in any manner materially
adverse to the participant any rights or benefits of the participant or
obligations of the Corporation under any award granted under this Plan prior to
the effective date of such change.  Changes, settlements and other
actions contemplated by Section 7 shall not be deemed to constitute changes or
amendments for purposes of this Section 8.6.

       

      
        	
                8.7  

              	
                Privileges
      of Stock Ownership.  Except as otherwise expressly
      authorized by the Administrator, a participant shall not be entitled to
      any privilege of stock ownership as to any shares of Common Stock not
      actually delivered to and held of record by the
      participant.  Except as expressly required by Section 7.1 or
      otherwise expressly provided by the Administrator, no adjustment will be
      made 

              


      

       

      
        
          
          

        

        
          18

          
            

          

        

        
          
          

        

      

      for dividends or other rights as a stockholder for which a record
date is prior to such date of delivery.

       

      8.8 Governing Law;
Construction; Severability.

       

      8.8.1 Choice of
Law.  This Plan, the awards, all documents evidencing awards
and all other related documents shall be governed by, and construed in
accordance with the laws of the State of Delaware.

       

      8.8.2 Severability.  If
a court of competent jurisdiction holds any provision invalid and unenforceable,
the remaining provisions of this Plan shall continue in effect.

       

      
        	
                8.8.3  

              	
                Plan
      Construction.

              


      

       

      
        	
                 
      

              	
                (a)

              	
                Rule
      16b-3.  It is the intent of the Corporation that the
      awards and transactions permitted by awards be interpreted in a manner
      that, in the case of participants who are or may be subject to Section 16
      of the Exchange Act, qualify, to the maximum extent compatible with the
      express terms of the award, for exemption from matching liability under
      Rule 16b-3 promulgated under the Exchange Act.  Notwithstanding
      the foregoing, the Corporation shall have no liability to any participant
      for Section 16 consequences of awards or events under awards if an award
      or event does not so qualify.

              


      

       

      
        	
                 
      

              	
                (b)

              	
                Section
      162(m).  Awards under Section 5.1.4 to persons described
      in Section 5.2 that are either granted or become vested, exercisable or
      payable based on attainment of one or more performance goals related to
      the Business Criteria, as well as Qualifying Options and Qualifying SARs
      granted to persons described in Section 5.2, that are approved by a
      committee composed solely of two or more outside directors (as this
      requirement is applied under Section 162(m) of the Code) shall be deemed
      to be intended as performance-based compensation within the meaning of
      Section 162(m) of the Code unless such committee provides otherwise at the
      time of grant of the award.  It is the further intent of the
      Corporation that (to the extent the Corporation or one of its Subsidiaries
      or awards under this Plan may be or become subject to limitations on
      deductibility under Section 162(m) of the Code) any such awards and any
      other Performance-Based Awards under Section 5.2 that are granted to or
      held by a person subject to Section 162(m) will qualify as
      performance-based compensation or otherwise be exempt from deductibility
      limitations under Section 162(m).

              


      

       

      
        	
                8.9  

              	
                Captions.  Captions
      and headings are given to the sections and subsections of this Plan solely
      as a convenience to facilitate reference.  Such headings shall
      not be deemed in any way material or relevant to the construction or
      interpretation of this Plan or any provision
  thereof.

              


      

       

      
        
          
          

        

        
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                8.10  

              	
                Stock-Based
      Awards in Substitution for Stock Options or Awards Granted by Other
      Corporation.  Awards may be granted to Eligible Persons
      in substitution for or in connection with an assumption of employee stock
      options, SARs, restricted stock or other stock-based awards granted by
      other entities to persons who are or who will become Eligible Persons in
      respect of the Corporation or one of its Subsidiaries, in connection with
      a distribution, merger or other reorganization by or with the granting
      entity or an affiliated entity, or the acquisition by the Corporation or
      one of its Subsidiaries, directly or indirectly, of all or a substantial
      part of the stock or assets of the employing entity.  The awards
      so granted need not comply with other specific terms of this Plan,
      provided the awards reflect only adjustments giving effect to the
      assumption or substitution consistent with the conversion applicable to
      the Common Stock in the transaction and any change in the issuer of the
      security.  Any shares that are delivered and any awards that are
      granted by, or become obligations of, the Corporation, as a result of the
      assumption by the Corporation of, or in substitution for, outstanding
      awards previously granted by an acquired company (or previously granted by
      a predecessor employer (or direct or indirect parent thereof) in the case
      of persons that become employed by the Corporation or one of its
      Subsidiaries in connection with a business or asset acquisition or similar
      transaction) shall not be counted against the Share Limit or other limits
      on the number of shares available for issuance under this
      Plan.

              


      

       

      
        	
                8.11  

              	
                Non-Exclusivity of
      Plan.  Nothing in this Plan shall limit or be deemed to
      limit the authority of the Board or the Administrator to grant awards or
      authorize any other compensation, with or without reference to the Common
      Stock, under any other plan or
authority.

              


      

       

      
        	
                8.12  

              	
                No
      Corporate Action Restriction.  The existence of this
      Plan, the award agreements and the awards granted hereunder shall not
      limit, affect or restrict in any way the right or power of the Board or
      the stockholders of the Corporation to make or authorize: (a) any
      adjustment, recapitalization, reorganization or other change in the
      capital structure or business of the Corporation or any Subsidiary, (b)
      any merger, amalgamation, consolidation or change in the ownership of the
      Corporation or any Subsidiary, (c) any issue of bonds, debentures,
      capital, preferred or prior preference stock ahead of or affecting the
      capital stock (or the rights thereof) of the Corporation or any
      Subsidiary, (d) any dissolution or liquidation of the Corporation or any
      Subsidiary, (e) any sale or transfer of all or any part of the assets or
      business of the Corporation or any Subsidiary, or (f) any other corporate
      act or proceeding by the Corporation or any Subsidiary.  No
      participant, beneficiary or any other person shall have any claim under
      any award or award agreement against any member of the Board or the
      Administrator, or the Corporation or any employees, officers or agents of
      the Corporation or any Subsidiary, as a result of any such
      action.

              


      

       

      
        	
                8.13  

              	
                Other
      Company Benefit and Compensation Programs.  Payments and
      other benefits received by a participant under an award made pursuant to
      this Plan shall not be deemed a part of a participant’s compensation for
      purposes of the determination of benefits under any other employee welfare
      or benefit plans or arrangements, if any, provided by the Corporation or
      any Subsidiary, except 

              


      

       

      
        
          
          

        

        
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      where the Administrator expressly otherwise provides or authorizes
in writing.  Awards under this Plan may be made in addition to, in
combination with, as alternatives to or in payment of grants, awards or
commitments under any other plans or arrangements of the Corporation or its
Subsidiaries.

       

      9. DEFINITIONS

       

      Unless
otherwise expressly provided in the applicable award agreement, the following
terms shall have the meanings set forth in this Section 9 for purposes of awards
granted hereunder to the extent any such terms are used with respect to such an
award:

       

      A “Change in Control” of the
Corporation shall be deemed to have occurred if any of the following events
occurs:

       

      
        	
                 
      

              	
                (i)

              	
                Any
      “person” or “group” (within the meaning of Sections 13(d) and 14(d)(2) of
      the Exchange Act), other than a trustee or other fiduciary holding
      securities under an employee benefit plan of the Corporation (an “Acquiring Person”), is
      or becomes the “beneficial owner” (as defined in Rule 13d-3 under the
      Exchange Act), directly or indirectly, of more than 33 1/3% of the then
      outstanding voting stock of the
Corporation;

              


      

       

      
        	
                 
      

              	
                (ii)

              	
                A
      merger or consolidation of the Corporation with any other corporation,
      other than a merger or consolidation which would result in the voting
      securities of the Corporation outstanding immediately prior thereto
      continuing to represent (either by remaining outstanding or by being
      converted into voting securities of the surviving entity) at least 51% of
      the combined voting power of the voting securities of the Corporation or
      surviving entity outstanding immediately after such merger or
      consolidation;

              


      

       

      
        	
                 
      

              	
                (iii)

              	
                A
      sale or other disposition by the Corporation of all or substantially all
      of the Corporation’s assets;

              


      

       

      
        	
                 
      

              	
                (iv)

              	
                During
      any period of two (2) consecutive years (beginning on or after the
      Effective Date), individuals who at the beginning of such period
      constitute the Board and any new director (other than a director who is a
      representative or nominee of an Acquiring Person) whose election by the
      Board or nomination for election by the Corporation’s shareholders was
      approved by a vote of at least a majority of the directors then still in
      office who either were directors at the beginning of the period or whose
      election or nomination was previously so approved, no longer constitute a
      majority of the Board;

              


      

       

      provided, however, in no
event shall any acquisition of securities, a change in the composition of the
Board or a merger or other consolidation pursuant to a plan of reorganization
under chapter 11 of the Bankruptcy Code with respect to the Corporation (“Chapter 11 Plan”), or a
liquidation under the Bankruptcy Code constitute a Change in
Control.  In addition, notwithstanding Sections 12(d)(1), 12(d)(2),
12(d)(3) and 12(d)(4) hereof, a Change in Control shall not be deemed to have
occurred in the event of a sale or conveyance in which the Corporation continues
as a holding company of an entity or entities that conduct the business or
businesses formerly conducted by the Corporation, or any transaction undertaken
for the purpose of reincorporating the Corporation under the 

      
        
          
          

        

        
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      laws of another jurisdiction, if such transaction does not materially
affect the beneficial ownership of the Corporation’s capital stock.

       

      “Disability” with respect to a
participant means that the participant has experienced one of the following: (1)
the participant is unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment that can be
expected to result in death or can be expected to last for a continuous period
of not less than 12 months, or (2) the participant is, by reason of any
medically determinable physical or mental impairment that can be expected to
result in death or can be expected to last for a continuous period of not less
than 12 months, receiving income replacement benefits for a period of not less
than three months under an accident and health plan covering employees of the
participant’s employer.

       

      “Good Cause” with respect to a
participant means (unless otherwise expressly provided in the applicable
agreement setting forth the terms and conditions of the award, or another
applicable contract with the participant that defines such term for purposes of
determining the effect that a “for cause” termination has on the participant’s
awards) any one of the following: (A) any criminal conviction of the participant
under the laws of the United States or any state or other political subdivision
thereof which, in the good faith determination of the Corporation renders the
participant unsuitable as an employee or officer of the Corporation or any
Subsidiary; (B) the participant’s continued failure to substantially perform the
duties reasonably requested by the Corporation and commensurate with the
participant’s position and within the participant’s control in such position
(other than any such failure resulting from participant’s incapacity due to the
participant’s Disability) after a written demand for substantial performance is
delivered to the participant by the Corporation, which demand specifically
identifies the manner in which the Corporation believes that the participant has
not substantially performed the participant’s duties, and which performance is
not substantially corrected by the participant within ten (10) days of receipt
of such demand; or (C) any material workplace misconduct or willful failure to
comply with the Corporation’s general policies and procedures as they may exist
from time to time by the Corporation which, in the good faith determination of
the Corporation, renders the participant unsuitable as an employee or officer of
Corporation.

       

      “Good Reason” with respect to a
participant means (unless otherwise expressly provided in the applicable
agreement setting forth the terms and conditions of the award, or another
applicable contract with the participant that defines such term for purposes of
determining the effect that a “good reason” termination has on the participant’s
awards) a resignation of the participant’s employment with the Corporation as a
result of and within 60 days after the occurrence of any of the following
without the participant’s written consent:  (A) a meaningful and
detrimental reduction in the participant’s authority, duties or
responsibilities, or a meaningful and detrimental change in the participant’s
reporting responsibilities, as in effect immediately prior to the participant’s
termination of employment; (B) a material reduction in the participant’s annual
base salary as in effect immediately prior to the participant’s delivery of
notice to the Corporation stating the basis of the participant’s allegation that
“Good Reason” exists (the “Good
Reason Notice”), a material reduction in the participant’s target annual
bonus (expressed as a percentage of base salary), if any, as in effect
immediately prior to the circumstances described in the Good Reason Notice, or a
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      any other form of compensation or material employment benefit being
provided to the participant immediately prior to the circumstances described in
the Good Reason Notice (excluding however, any reduction in the amount of any
annual bonus or the granting or withholding of incentive compensation (including
without limitation options or restricted stock units) but including a material
reduction to the target amount of the bonus as stated above); or (C) a
relocation of the participant’s principal place of employment by more than fifty
(50) miles (or the requirement that the participant be based at a different
location), provided that such relocation results in a longer commute (measured
by actual mileage) for the participant from his or her primary residence to such
new location.  Notwithstanding the foregoing, for any of the foregoing
circumstances to constitute “Good Reason” hereunder, (x) the participant must
deliver the Good Reason Notice to the Corporation within 30 days of the date on
which the circumstances creating “Good Reason” have first occurred, (y) such
circumstances are not corrected by the Corporation in a manner that is
reasonably satisfactory to the participant (including full retroactive
correction with respect to any monetary matter) within 30 days of the
Corporation’s receipt of the Good Reason Notice from the participant and, (z)
the participant thereafter resigns his or her employment within the 60 day time
period described above.

       

      A “Separation from Service” shall
mean a “separation from service” within the meaning of Treasury Regulation
Section 1.409A-1(h)(1), without regard to the optional alternative definitions
available thereunder.

       

      An “Unforeseeable Emergency” means
a severe financial hardship to the participant resulting from (i) an illness or
accident of the participant, the participant’s spouse, or a dependent (as
defined in Section 152(a) of the Code without regard to paragraphs (b)(1),
(b)(2) and (d)(1)(b) thereof) of the participant, (ii) loss of the
participant’s property due to casualty, or (iii) other similar
extraordinary and unforeseeable circumstances arising as a result of events
beyond the control of the participant, all as determined by the Administrator in
its sole discretion and in all events constituting an “unforeseeable emergency”
within the meaning of Section 409A of the Code.

       

      
        
          
          

        

        
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