EXHIBIT
10.17

     

     

     

     

     

     

    NOVAMED,
INC.

    SECOND
AMENDED AND RESTATED

    2005
STOCK INCENTIVE PLAN

     

    


    


    


     

     

     

     

     

    
 

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    


    TABLE OF
CONTENTS

     

    


    Page

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          
                                            
                                              
                                                
                                                  
                                                    
                                                      
                                                        
                                                          
                                                            
                                                              
                                                                
                                                                  
                                                                    
                                                                      
                                                                        
                                                                          
                                                                            
                                                                              
                                                                                
                                                                                  
                                                                                    
                                                                                      
                                                                                        
                                                                                          
                                                                                            
                                                                                              
                                                                                                
                                                                                                  
                                                                                                    
                                                                                                      
                                                                                                        	
                                                                                                                ARTICLE
      I

                                                                                                              	
                                                                                                                ESTABLISHMENT

                                                                                                              	
                                                                                                                1

                                                                                                              
	 	 	 
	
                                                                                                                ARTICLE
      II

                                                                                                              	
                                                                                                                DEFINITIONS

                                                                                                              	
                                                                                                                1

                                                                                                              
	 	 	 
	
                                                                                                                ARTICLE
      III

                                                                                                              	
                                                                                                                ADMINISTRATION

                                                                                                              	
                                                                                                                5

                                                                                                              
	 	 	 
	
                                                                                                                3.1

                                                                                                              	
                                                                                                                Committee
      Structure and Authority

                                                                                                              	
                                                                                                                5

                                                                                                              
	 	 	 
	
                                                                                                                ARTICLE
      IV

                                                                                                              	
                                                                                                                SHARES
      SUBJECT TO PLAN

                                                                                                              	
                                                                                                                7

                                                                                                              
	 	 	 
	
                                                                                                                4.1

                                                                                                              	
                                                                                                                Number
      of Shares

                                                                                                              	
                                                                                                                7

                                                                                                              
	 	 	 
	
                                                                                                                4.2

                                                                                                              	
                                                                                                                Release
      of Shares

                                                                                                              	
                                                                                                                7

                                                                                                              
	 	 	 
	
                                                                                                                4.3

                                                                                                              	
                                                                                                                Restrictions
      on Shares

                                                                                                              	
                                                                                                                8

                                                                                                              
	 	 	 
	
                                                                                                                4.4

                                                                                                              	
                                                                                                                Stockholder
      Rights

                                                                                                              	
                                                                                                                8

                                                                                                              
	 	 	 
	
                                                                                                                4.5

                                                                                                              	
                                                                                                                Anti-Dilution

                                                                                                              	
                                                                                                                8

                                                                                                              
	 	 	 
	
                                                                                                                ARTICLE
      V

                                                                                                              	
                                                                                                                ELIGIBILITY

                                                                                                              	
                                                                                                                9

                                                                                                              
	 	 	 
	
                                                                                                                5.1

                                                                                                              	
                                                                                                                Eligibility

                                                                                                              	
                                                                                                                9

                                                                                                              
	 	 	 
	
                                                                                                                ARTICLE
      VI

                                                                                                              	
                                                                                                                OPTIONS

                                                                                                              	
                                                                                                                9

                                                                                                              
	 	 	 
	
                                                                                                                6.1

                                                                                                              	
                                                                                                                General

                                                                                                              	
                                                                                                                9

                                                                                                              
	 	 	 
	
                                                                                                                6.2

                                                                                                              	
                                                                                                                Grant

                                                                                                              	
                                                                                                                9

                                                                                                              
	 	 	 
	
                                                                                                                6.3

                                                                                                              	
                                                                                                                Terms
      and Conditions

                                                                                                              	
                                                                                                                10

                                                                                                              
	 	 	 
	
                                                                                                                6.4

                                                                                                              	
                                                                                                                Termination
      by Reason of Death

                                                                                                              	
                                                                                                                11

                                                                                                              
	 	 	 
	
                                                                                                                6.5

                                                                                                              	
                                                                                                                Termination
      by Reason of Disability

                                                                                                              	
                                                                                                                11

                                                                                                              
	 	 	 
	
                                                                                                                6.6

                                                                                                              	
                                                                                                                Other
      Termination

                                                                                                              	
                                                                                                                12

                                                                                                              
	 	 	 
	
                                                                                                                6.7

                                                                                                              	
                                                                                                                Cashing-Out
      of Options

                                                                                                              	
                                                                                                                12

                                                                                                              
	 	 	 
	
                                                                                                                ARTICLE
      VII

                                                                                                              	
                                                                                                                STOCK
      AWARDS

                                                                                                              	
                                                                                                                12

                                                                                                              
	 	 	 
	
                                                                                                                7.1

                                                                                                              	
                                                                                                                General

                                                                                                              	
                                                                                                                12

                                                                                                              
	 	 	 
	
                                                                                                                7.2

                                                                                                              	
                                                                                                                Grant

                                                                                                              	
                                                                                                                12

                                                                                                              
	 	 	 
	
                                                                                                                7.3

                                                                                                              	
                                                                                                                Terms
      and Conditions

                                                                                                              	
                                                                                                                13

                                                                                                              
	 	 	 
	
                                                                                                                ARTICLE
      VIII

                                                                                                              	
                                                                                                                PERFORMANCE
      AWARDS

                                                                                                              	
                                                                                                                13

                                                                                                              
	 	 	 
	
                                                                                                                8.1

                                                                                                              	
                                                                                                                Performance
      Conditions

                                                                                                              	
                                                                                                                13

                                                                                                              
	 	 	 
	
                                                                                                                8.2

                                                                                                              	
                                                                                                                Performance
      Awards Granted to Designated Covered Employees

                                                                                                              	
                                                                                                                13

                                                                                                              
	 	 	 
	
                                                                                                                8.3

                                                                                                              	
                                                                                                                Written
      Determinations

                                                                                                              	
                                                                                                                14

                                                                                                              
	 	 	 
	
                                                                                                                ARTICLE
      IX

                                                                                                              	
                                                                                                                CHANGE
      IN CONTROL PROVISIONS

                                                                                                              	
                                                                                                                15

                                                                                                              
	 	 	 
	
                                                                                                                9.1

                                                                                                              	
                                                                                                                Impact
      of Event

                                                                                                              	
                                                                                                                15

                                                                                                              


                                                                                                      

                                                                                                    

                                                                                                     

                                                                                                     

                                                                                                    
                                                                                                      
                                                                                                         

                                                                                                      

                                                                                                      
                                                                                                        i

                                                                                                        
                                                                                                          

                                                                                                        

                                                                                                      

                                                                                                      
                                                                                                         

                                                                                                      

                                                                                                    

                                                                                                     

                                                                                                     

                                                                                                     

                                                                                                    
                                                                                                      	
                                                                                                              9.2

                                                                                                            	
                                                                                                              Definition
      of Change in Control

                                                                                                            	
                                                                                                              15

                                                                                                            
	 	 	 
	
                                                                                                              9.3

                                                                                                            	
                                                                                                              Change
      in Control Price

                                                                                                            	
                                                                                                              15

                                                                                                            
	 	 	 
	
                                                                                                              ARTICLE
      X

                                                                                                            	
                                                                                                              MISCELLANEOUS

                                                                                                            	
                                                                                                              16

                                                                                                            
	 	 	 
	
                                                                                                              10.1

                                                                                                            	
                                                                                                              Amendments
      and Termination

                                                                                                            	
                                                                                                              16

                                                                                                            
	 	 	 
	
                                                                                                              10.2

                                                                                                            	
                                                                                                              Unfunded
      Status of Plan

                                                                                                            	
                                                                                                              16

                                                                                                            
	 	 	 
	
                                                                                                              10.3

                                                                                                            	
                                                                                                              Limits
      on Transferability

                                                                                                            	
                                                                                                              16

                                                                                                            
	 	 	 
	
                                                                                                              10.4

                                                                                                            	
                                                                                                              General
      Provisions

                                                                                                            	
                                                                                                              16

                                                                                                            
	 	 	 
	
                                                                                                              10.5

                                                                                                            	
                                                                                                              Mitigation
      of Excise Tax

                                                                                                            	
                                                                                                              18

                                                                                                            
	 	 	 
	
                                                                                                              10.6

                                                                                                            	
                                                                                                              Awards
      in Substitution for Awards Granted by Other Entities

                                                                                                            	
                                                                                                              18

                                                                                                            
	 	 	 
	
                                                                                                              10.7

                                                                                                            	
                                                                                                              Procedure
      for Adoption

                                                                                                            	
                                                                                                              19

                                                                                                            
	 	 	 
	
                                                                                                              10.8

                                                                                                            	
                                                                                                              Procedure
      for Withdrawal

                                                                                                            	
                                                                                                              19

                                                                                                            
	 	 	 
	
                                                                                                              10.9

                                                                                                            	
                                                                                                              Delay

                                                                                                            	
                                                                                                              19

                                                                                                            
	 	 	 
	
                                                                                                              10.10

                                                                                                            	
                                                                                                              Headings

                                                                                                            	
                                                                                                              19

                                                                                                            
	 	 	 
	
                                                                                                              10.11

                                                                                                            	
                                                                                                              Severability

                                                                                                            	
                                                                                                              19

                                                                                                            
	 	 	 
	
                                                                                                              10.12

                                                                                                            	
                                                                                                              Successors
      and Assigns

                                                                                                            	
                                                                                                              19

                                                                                                            
	 	 	 
	
                                                                                                              10.13

                                                                                                            	
                                                                                                              409A
      Savings Clause

                                                                                                            	
                                                                                                              20

                                                                                                            
	 	 	 
	
                                                                                                              10.14

                                                                                                            	
                                                                                                              Entire
      Agreement

                                                                                                            	
                                                                                                              20

                                                                                                            


                                                                                                    

                                                                                                  

                                                                                                

                                                                                              

                                                                                            

                                                                                          

                                                                                        

                                                                                      

                                                                                    

                                                                                  

                                                                                

                                                                              

                                                                            

                                                                          

                                                                        

                                                                      

                                                                    

                                                                  

                                                                

                                                              

                                                            

                                                          

                                                        

                                                      

                                                    

                                                  

                                                

                                              

                                            

                                          

                                        

                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

     

     

     

    
      
         

      

      
        ii

        
          

        

      

      
         

      

    

     

     

    NOVAMED,
INC.

    SECOND
AMENDED AND RESTATED

    2005
STOCK INCENTIVE PLAN

     

    ARTICLE
I

     

    ESTABLISHMENT

     

    NovaMed,
Inc. (the “Company”), a
Delaware corporation, maintains the Plan (as defined herein), a stock incentive
plan designed to promote the overall financial objectives of the Company, its
stockholders and its Affiliates by motivating those persons selected to
participate in the Plan to achieve long-term growth in the stockholder equity in
the Company and by retaining the association of those individuals who are
instrumental in achieving this growth.  The stock incentive plan was
originally adopted by the Company’s Board of Directors on April 25, 2005 (the
“Effective Date”), and
approved by the Company’s stockholders on June 15, 2005.  The stock
incentive plan was subsequently amended and restated effective December 12,
2006, to modify the anti-dilution provisions set forth therein.  The
Plan is further amended and restated herein effective as of May 20, 2009,
subject to stockholder approval, to increase the number of shares of common
stock of the Company that may be issued pursuant to awards granted under the
Plan.  The Plan, upon its approval by the Company’s stockholders, will
thereafter be known as the NovaMed, Inc. Second Amended and Restated 2005 Stock
Incentive Plan.

     

    ARTICLE
II

     

    DEFINITIONS

     

    For
purposes of the Plan, the following terms are defined as set forth
below:

     

    “Affiliate” means any
individual, corporation, partnership, limited liability company, association,
joint-stock company, trust, unincorporated association or other entity (other
than the Company) that directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with, the
Company, including, without limitation, any stockholder of an affiliated group
of which the Company is a common parent corporation as provided in Section 1504
of the Code.

     

    “Agreement” or “Award Agreement” means,
individually or collectively, any agreement entered into pursuant to the Plan
pursuant to which an Award is granted to a Participant.

     

    “Award” means an Option or
Stock Award.

     

    “Beneficiary” means the person,
persons, trust or trusts which have been designated by a Participant in his or
her most recent written beneficiary designation filed with the Committee to
receive the benefits specified under the Plan upon such Participant’s death or
to which Awards are transferred if and to the extent permitted
hereunder.  If, upon a Participant’s death, there is no designated
Beneficiary or surviving designated Beneficiary, then the term Beneficiary means
person, persons, trust or trust entitled by will or the laws of descent and
distribution to receive such benefits.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    “Board of Directors” or “Board” means the Board of
Directors of the Company.

     

    “Cause” means, for purposes of
whether and when a Participant has incurred a Termination of Employment for
Cause, any act or omission which permits the Company or an Affiliate to
terminate the Participant’s employment with the Company or an Affiliate for
“cause” as defined in such agreement or arrangement, or in the event there is no
such agreement or arrangement or the agreement or arrangement does not define
the term “cause” or a substantially equivalent term, then Cause means, unless
otherwise defined in the Award Agreement with respect to the corresponding
Award:

     

    (a)           any
act or failure to act deemed to constitute cause under the Company’s or an
Affiliate’s established practices, policies or guidelines applicable to the
Participant;

     

    (b)           breach
of a covenant made by the Participant in conjunction with the grant of an Award
or the transfer of Shares hereunder;

     

    (c)           the
Participant’s gross negligence in the performance of his duties or material
failure or willful refusal to perform his duties;

     

    (d)           the
determination by the Committee in the exercise of its reasonable judgment that
Participant has committed an act that (i) negatively affects the Company’s or
Affiliate’s business or reputation or (ii) indicates alcohol or drug abuse by
Participant that adversely affects his performance hereunder; or

     

    (e)           the
determination by the Committee in the exercise of its reasonable judgment that
Participant has committed an act or acts constituting a felony or other act
involving dishonesty, disloyalty or fraud against the Company or an
Affiliate.

     

    “Change in Control” and “Change in Control Price” have
the meanings set forth in Sections 9.2 and 9.3, respectively.

     

    “Code” or “Internal Revenue Code” means
the Internal Revenue Code of 1986, as amended, any Treasury Regulations
(including proposed regulations) thereunder and any subsequent Internal Revenue
Code.

     

    “Commission” means the
Securities and Exchange Commission or any successor agency.

     

    “Committee” means the person or
persons appointed to administer the Plan, as further described
herein.

     

    “Common Stock” means the
regular voting common stock, $0.01 par value per share, of the Company, whether
presently or hereafter issued, and any other stock or security resulting from
adjustment thereof as described hereinafter or the equity of any successor to
the Company which is designated for the purposes of this Plan.

     

    
      
         

      

      
        2

        
          

        

      

      
         

      

    

    “Company” means NovaMed, Inc.,
a Delaware corporation, and includes any successor or assignee entity or
entities into which the Company may be merged, changed or consolidated; any
entity for whose securities the securities of the Company shall be exchanged;
and any assignee of or successor to substantially all of the assets of the
Company.

     

    “Covered Employee” means a
Participant who is a “covered employee” within the meaning of Section 162(m) of
the Code.

     

    “Disability” means a mental or
physical illness that entitles the Participant to receive benefits under the
long term disability plan of the Company or an Affiliate, or if the Participant
is not covered by such a plan or the Participant is not an employee of the
Company or an Affiliate, a mental or physical illness that renders a Participant
totally and permanently incapable of performing the Participant’s duties for the
Company or an Affiliate.  Notwithstanding the foregoing, a Disability
will not qualify under this Plan if it is the result of (i) a willfully
self-inflicted injury or willfully self-induced sickness; or (ii) an injury or
disease contracted, suffered, or incurred, while participating in a criminal
offense.  The determination of Disability will be made by the
Committee.  The determination of Disability for purposes of this Plan
will not be construed to be an admission of disability for any other
purpose.

     

    “Effective Date” means April
25, 2005.

     

    “Exchange Act” means the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.

     

    “Fair Market Value” means,
unless otherwise determined by the Committee, the closing sale price per share
reported on a consolidated basis for stock listed on the principal stock
exchange or market on which Common Stock is traded on the date as of which such
value is being determined or, if there is no sale on that date, then on the last
previous day on which a sale was reported.

     

    “Grant Date” means the date as
of which an Award is granted pursuant to the Plan.

     

    “Incentive Stock Option” means
an Option to purchase shares of Common Stock granted under this Plan which
satisfies the requirements of Section 422 of the Code.

     

    “NASDAQ” means the Nasdaq Stock
Market, including the Nasdaq National Market.

     

    “Nonqualified Stock Option”
means an Option to purchase Shares granted under this Plan, the taxation of
which is pursuant to Section 83 of the Code.

     

    “Option” or “Stock Option” means an option
or right granted to a Participant (under Article VI hereof) to purchase Shares
at a specified price during specified time periods.

     

    “Option Period” means the
period during which an Option shall be exercisable in accordance with the
related Agreement and Article VI.

     

    “Option Price” means the price
at which Shares may be purchased under an Option as provided in Section
6.3.

     

    
      
         

      

      
        3

        
          

        

      

      
         

      

    

    “Participant” means a person
who satisfies the eligibility conditions of Article V and to whom an Award has
been granted by the Committee under this Plan, and in the event a Representative
is appointed for a Participant or another person becomes a Representative, then
the term “Participant” shall mean such Representative.  The term shall
also include a trust for the benefit of the Participant, a partnership the
interest of which is held by or for the benefit of the Participant, the
Participant’s parents, spouse or descendants, or a custodian under a uniform
gifts to minors act or similar statute for the benefit of the Participant’s
descendants, to the extent permitted by the Committee and not inconsistent with
Rule 16b-3 or the status of the Option as an Incentive Stock Option, to the
extent intended.  Notwithstanding the foregoing, the term “Termination
of Employment” shall mean the Termination of Employment of the person to whom
the Award was originally granted.

     

    “Performance Award” means a
right, granted to a Participant under Article VIII, to receive or become vested
in an Award based upon performance criteria specified by the
Committee.

     

    “Plan” means the NovaMed, Inc.
Amended and Restated 2005 Stock Incentive Plan, as herein set forth and as may
be amended from time to time.

     

    “Reapproval Date” means the
date on which the Second Amended and Restated 2005 Stock Incentive Plan, as set
forth herein, is adopted by the Board of Directors.

     

    “Representative” means (a) the
person or entity acting as the executor or administrator of a Participant’s
estate pursuant to the last will and testament of a Participant or pursuant to
the laws of the jurisdiction in which the Participant had the Participant’s
primary residence at the date of the Participant’s death; (b) the person or
entity acting as the guardian or temporary guardian of a Participant; (c) the
person or entity which is the Beneficiary of the Participant upon or following
the Participant’s death; or (d) any person to whom an Award has been transferred
with the permission of the Committee or by operation of law; provided that only
one of the foregoing shall be the Representative at any point in time as
determined under applicable law and recognized by the Committee.  Any
Representative shall be subject to all terms and conditions applicable to the
Participant.

     

    “Retirement” means the
Participant’s Termination of Employment after attaining either the normal
retirement age or the early retirement age as defined in the principal (as
determined by the Committee) tax-qualified plan of the Company or an Affiliate,
if the Participant is covered by such plan, and if the Participant is not
covered by such a plan, then age 65, or age 55 with the accrual of 10 years of
service.

     

    “Rule 16b-3” means Rule 16b-3,
as from time to time in effect and applicable to the Plan and Participants,
promulgated by the Securities and Exchange Commission under Section 16 of the
Exchange Act.

     

    “Securities Act” means the
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder.

     

    “Shares” means shares of Common
Stock.

     

    
      
         

      

      
        4

        
          

        

      

      
         

      

    

    “Stock Award” means an Award,
other than a Stock Option, made in Shares or denominated in Shares.

     

    “Termination of Employment”
means the occurrence of any act or event, whether pursuant to an employment
agreement or otherwise, that actually or effectively causes or results in the
person’s ceasing, for whatever reason, to be an officer, independent contractor,
board member, consultant, director or employee of the Company or of any
Affiliate, or to be an officer, independent contractor, board member,
consultant, director or employee of any entity that provides services to the
Company or an Affiliate, including, without limitation, death, Disability,
dismissal, severance at the election of the Participant, Retirement, or
severance as a result of the discontinuance, liquidation, sale or transfer by
the Company or its Affiliates of all businesses owned or operated by the Company
or its Affiliates.  With respect to any person who is not an employee
with respect to the Company or an Affiliate, the Agreement will establish what
act or event shall constitute a Termination of Employment for purposes of the
Plan.  A transfer of employment from the Company to an Affiliate, or
from an Affiliate to the Company, shall not be a Termination of Employment,
unless expressly determined by the Committee.  A Termination of
Employment shall occur for an employee who is employed by an Affiliate if the
Affiliate shall cease to be an Affiliate and the Participant does not
immediately thereafter become an employee of the Company or an
Affiliate.

     

    “Voluntary Termination of
Employment” means a Termination of Employment at the election of the
Participant, including, with limitation, resignation by the Participant, but
excluding Retirement.

     

    In
addition, certain other terms used herein have definitions given to them in the
first place in which they are used.

     

    ARTICLE
III

     

    ADMINISTRATION

     

    3.1  Committee Structure and
Authority.  The Plan shall be administered by the Committee,
which shall be composed of two or more members of the Board of Directors, each
of whom is a “non-employee director” within the meaning of Rule 16b-3 of the
Exchange Act and an “outside director” for purposes of the deduction of
compensation under Section 162(m) of the Code.  The Committee shall be
the Compensation Committee of the Board of Directors, unless such committee does
not exist or the Board establishes a committee whose purpose is the
administration of this Plan.  A majority of the Committee shall
constitute a quorum at any meeting thereof (including by telephone conference)
and the acts of a majority of the members present, or acts approved in writing
by a majority of the entire Committee without a meeting, shall be the acts of
the Committee for purposes of this Plan.  The Committee may authorize
any one or more of its stockholders or an officer of the Company to execute and
deliver documents on behalf of the Committee.  A member of the
Committee shall not exercise any discretion respecting himself or herself under
the Plan.  In the event that the Compensation Committee of the Board
no longer is the Committee, the Board shall have the authority to remove,
replace or fill any vacancy of any member of the Committee upon notice to the
Committee and the affected member.  Any member of the Committee may
resign upon notice to the Board.  The Committee may allocate among one
or more of its members, or may delegate to one or more of its agents, such
duties and responsibilities as it determines.

     

    
      
         

      

      
        5

        
          

        

      

      
         

      

    

    Among
other things, the Committee shall have the authority, subject to the terms of
the Plan:

     

    (a)  to select
those persons to whom Awards may be granted from time to time;

     

    (b)  to
determine whether and to what extent Awards are to be granted
hereunder;

     

    (c)  to
determine the number of Shares to be covered by each Award granted
hereunder;

     

    (d)  to
determine the terms and conditions of any Award granted hereunder (including,
but not limited to, the Option Price, the Option Period, any exercise
restriction or limitation and any exercise acceleration, forfeiture or waiver
regarding any Award and the Shares relating thereto);

     

    (e)  to adjust
the terms and conditions, at any time or from time to time, of any Award,
subject to the limitations of Section 10.1;

     

    (f)  to
determine under what circumstances an Award may be settled in cash or
Shares;

     

    (g)  to
provide for the forms of Agreement to be utilized in connection with the
Plan;

     

    (h)  to
determine whether a Participant has a Disability or a Retirement;

     

    (i)  to
determine whether and with what effect an individual has incurred a Termination
of Employment;

     

    (j)  to
determine what securities law requirements are applicable to the Plan, Awards,
and the issuance of Shares and to require of a Participant that appropriate
action be taken with respect to such requirements;

     

    (k)  to
cancel, with the consent of the Participant or as otherwise provided in the Plan
or an Agreement, outstanding Awards;

     

    (l)  to
interpret and make final determinations with respect to the remaining number of
Shares available under this Plan;

     

    (m)  to
require as a condition of the exercise of an Option or the issuance or transfer
of a certificate for Shares, the withholding from a Participant of the amount of
any federal, state or local taxes as may be required by law;

     

    
      
         

      

      
        6

        
          

        

      

      
         

      

    

    (n)  to
determine whether the Company or any other person has a right or obligation to
purchase Shares from a Participant and, if so, the terms and conditions on which
such Shares are to be purchased;

     

    (o)  to
determine the restrictions or limitations on the transfer of
Shares;

     

    (p)  to
determine whether an Award is to be adjusted, modified or purchased, or whether
an Option is to become fully exercisable, under the Plan or the terms of an
Agreement;

     

    (q)  to
determine the permissible methods of Option exercise and payment, including
cashless exercise arrangements;

     

    (r)  to adopt,
amend and rescind such rules and regulations as, in its opinion, may be
advisable in the administration of the Plan; and

     

    (s)  to
appoint and compensate agents, counsel, auditors or other specialists to aid it
in the discharge of its duties.

     

    The
Committee shall have the authority to adopt, alter and repeal such
administrative rules, guidelines and practices governing the Plan as it shall,
from time to time, deem advisable, to interpret the terms and provisions of the
Plan and any Award issued under the Plan (and any Agreement) and to otherwise
supervise the administration of the Plan.  The Committee’s policies
and procedures may differ with respect to Awards granted at different times or
to different Participants.

     

    Any
determination made by the Committee pursuant to the provisions of the Plan shall
be made in its sole discretion, and in the case of any determination relating to
an Award, may be made at the time of the grant of the Award or, unless in
contravention of any express term of the Plan or an Agreement, at any time
thereafter.  All decisions made by the Committee pursuant to the
provisions of the Plan shall be final and binding on all persons, including the
Company and Participants.  No determination shall be subject to de
novo review if challenged in court.

     

    ARTICLE
IV

     

    SHARES SUBJECT TO
PLAN

     

    4.1  Number of
Shares.  Subject to adjustment under Section 4.5, the total
number of Shares reserved and available for distribution pursuant to Awards
under the Plan shall be 2,400,000 Shares, as authorized for issuance on the
Effective Date and thereafter from time to time.  Such Shares may
consist, in whole or in part, of authorized and unissued Shares or shares of
treasury stock.  Subject to adjustment under Section 4.5, the maximum
number of Shares that may be covered by Awards, in the aggregate, granted to any
one Participant during any calendar year shall be 500,000 Shares.

     

    4.2  Release of
Shares.  If any Shares that are subject to an Option cease to
be such, if any Shares that are subject to any Award are forfeited, if any Award
otherwise terminates without issuance of Shares being made to the Participant,
or if any Shares are received by the Company in connection with the exercise of
an Option or the satisfaction of a tax withholding obligation, such Shares, in
the discretion of the Committee, may be available for distribution in connection
with Awards (other than Incentive Stock Options) under the Plan.  If
any Shares could not again be available for Awards to a particular Participant
under any applicable law, such Shares shall be available exclusively for Awards
to Participants who are not subject to such limitations.

     

    
      
         

      

      
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    4.3  Restrictions on
Shares.  Shares issued under the Plan shall be subject to the
terms and conditions specified herein and to such other terms, conditions and
restrictions as the Committee in its discretion may determine or provide in an
Award Agreement.  The Company shall not be required to issue or
deliver any certificates for Shares, cash or other property prior to: (i) the
Participant executing any agreement that the Committee has required the
Participant to execute as a condition for the grant of Shares; (ii) the listing
of such shares on any stock exchange or NASDAQ (or other public market) on which
the Shares may then be listed (or regularly traded), (iii) the completion of any
registration or qualification of such Shares under federal or state law, or any
ruling or regulation of any government body which the Committee determines to be
necessary or advisable, and (iv) the satisfaction of any applicable withholding
obligation.  The Company may cause any certificate for any Shares to
be delivered to be properly marked with a legend or other notation reflecting
the limitations on transfer of such Shares as provided in this Plan or as the
Committee may otherwise require.  The Committee may require a
Participant to make such representations and furnish such information as it may
consider appropriate in connection with the issuance or delivery of the Shares
in compliance with applicable law or otherwise.  Fractional shares
shall not be delivered, but shall be rounded to the next lower whole number of
shares.

     

    4.4  Stockholder
Rights.  No person shall have any rights of a stockholder as to
Shares subject to an Option until, after proper exercise of the Option or other
action required, such Shares have been recorded on the Company’s official
stockholder records as having been issued and transferred.  Upon
exercise of the Option or any portion thereof, the Company shall have thirty
(30) days in which to issue the Shares, and the Participant will not be treated
as a stockholder for any purpose whatsoever prior to such
issuance.  No adjustment shall be made for cash dividends or other
rights for which the record date is prior to the date such Shares are recorded
as issued and transferred in the Company’s official stockholder records, except
as provided herein or in an Agreement.

     

    4.5  Anti-Dilution.  In
the event of any Company stock dividend, stock split, reverse stock split,
combination or exchange of shares, recapitalization or other change in the
capital structure of the Company, corporate separation or division of the
Company (including, but not limited to, a split-up, spin-off, split-off or
distribution to Company stockholders other than a normal cash than dividend),
sale by the Company of all or a substantial portion of its assets (measured
either on a stand-alone or consolidated basis), reorganization, rights offering,
a partial or complete liquidation, or any other corporate transaction or event
involving the Company and having an effect similar to any of the foregoing, then
the Committee shall adjust or substitute, as the case may be, the number of
Shares available for Awards under the Plan, the number of Shares covered by
outstanding Awards, the exercise price per Share of outstanding Options, and any
other characteristics or terms of the Awards as the Committee shall deem
necessary or appropriate to reflect equitably the effects of such changes to the
Participants; provided, however, that the Committee may limit any such
adjustment so as to maintain the deductibility of the Awards under Section
162(m) of the Code, and that any fractional shares resulting from such
adjustment shall be eliminated by rounding to the next lower whole number of
shares with appropriate payment for such fractional share as shall reasonably be
determined by the Committee.

     

    
      
         

      

      
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    ARTICLE
V

     

    ELIGIBILITY

     

    5.1  Eligibility.  Except
as herein provided, the persons who shall be eligible to participate in the Plan
and be granted Awards shall be those persons who are directors, officers,
employees, independent contractors or consultants with respect to the Company or
any Affiliate, who are in a position, in the opinion of the Committee, to make
contributions to the growth, management, protection and success of the Company
and its Affiliates.  Of those persons described in the preceding
sentence, the Committee may, from time to time, select persons to be granted
Awards and shall determine the terms and conditions with respect
thereto.  In making any such selection and in determining the form of
the Award, the Committee may give consideration to the functions and
responsibilities of the person’s contributions to the Company and its
Affiliates, the value of the individual’s service to the Company and its
Affiliates and such other factors deemed relevant by the
Committee.  The Committee may designate as ineligible to participate
in the Plan any person who would otherwise be eligible to
participate.  To the extent approval of the Plan by the Company’s
stockholders is necessary for a person to participate in the Plan, such person
will not participate in the Plan until such approval is obtained.

     

    ARTICLE
VI

     

    OPTIONS

     

    6.1  General.  The
Committee shall have authority to grant Options under the Plan at any time or
from time to time.  Options may be either Incentive Stock Options or
Nonqualified Stock Options, provided that no Incentive Stock Options may be
granted if the Second Amended and Restated 2005 Stock Incentive Plan, as set
forth herein, is not approved by the Company’s stockholders within twelve (12)
months after the Reapproval Date.  An Option shall entitle the
Participant to receive Shares upon the exercise of such Option, subject to the
Participant’s satisfaction in full of any conditions, restrictions or
limitations imposed in accordance with the Plan or an Agreement (the terms and
provisions of which may differ from other Agreements) including without
limitation, payment of the Option Price.

     

    6.2  Grant.  The
grant of an Option shall occur as of the date the Committee
determines.  Each Option granted under this Plan shall be evidenced by
an Agreement, in a form approved by the Committee, which shall embody the terms
and conditions of such Option and which shall be subject to the express terms
and conditions set forth in the Plan.  Such Agreement shall become
effective upon execution by the Company and the Participant.  Only a
person who is a common-law employee of the Company, any parent corporation of
the Company or a subsidiary (as such terms are defined in Section 424 of the
Code) on the date of grant shall be eligible to be granted an Option which is
intended to be and is an Incentive Stock Option.  To the extent that
any Option is not designated as an Incentive Stock Option or even if so
designated does not qualify as an Incentive Stock Option, it shall constitute a
Nonqualified Stock Option.  

     

    
      
         

      

      
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    6.3  Terms and
Conditions.  Except to the extent determined to be appropriate
by the Committee and consented to by the Participant, an Option granted pursuant
to the Plan shall be subject to such terms and conditions as shall be determined
by the Committee, including the following:

     

    (a)  Option
Period.  The Option Period of each Option will be fixed by the
Committee; provided that the Option Period of a Nonqualified Stock Option shall
not exceed ten (10) years from the date the Option is granted.  In the
case of an Incentive Stock Option, the Option Period shall not exceed ten (10)
years from the date of grant or five (5) years in the case of an individual who
owns more than ten percent (10%) of the combined voting power of all classes of
stock of the Company, a corporation which is a parent corporation of the Company
or any subsidiary of the Company (each as defined in Section 424 of the
Code).  No Option which is intended to be an Incentive Stock Option
shall be granted more than ten (10) years after the Reapproval
Date.

     

    (b)  Option
Price.  The Option Price per share of Common Stock purchasable
under an Option shall be determined by the Committee; provided, however, that
the Option Price per share of Common Stock shall not be less than the Fair
Market Value per share of Common Stock on the date the Option is
granted.  If an Option is intended to qualify as an Incentive Stock
Option to be granted to an individual who owns or who is deemed to own stock
possessing more than ten percent (10%) of the combined voting power of all
classes of stock of the Company, a corporation which is a parent corporation of
the Company or any subsidiary of the Company (each as defined in Section 424 of
the Code), the Option Price per share of Common Stock shall be not less than one
hundred ten percent (110%) of such Fair Market Value per share.

     

    (c)  Exercisability.  Subject
to Section 9.1, Options shall be exercisable at such time or times and subject
to such terms and conditions as shall be determined by the
Committee.  If the Committee provides that any Option is exercisable
only in installments, the Committee may at any time waive such installment
exercise provisions, in whole or in part.  In addition, the Committee
may at any time accelerate the exercisability of any Option.  If the
Committee intends that an Option be an Incentive Stock Option, the Committee
may, in its discretion, provide that the aggregate Fair Market Value (determined
at the Grant Date) of an Incentive Stock Option which is exercisable for the
first time during the calendar year shall not exceed $100,000.

     

    (d)  Method of
Exercise.  Subject to the provisions of this Article VI, a
Participant may exercise an Option, in whole or in part, at any time during the
Option Period by the Participant’s giving written notice of exercise on a form
provided by the Committee (if available) to the Company specifying the number of
Shares subject to the Option to be purchased.  Such notice shall be
accompanied by payment in full of the purchase price by cash or check or such
other form of payment as the Company may accept.  If approved by the
Committee, payment in full or in part may also be made (i) by delivering Shares
already owned by the Participant for a period of at least six (6) months prior
to payment having a total Fair Market Value on the date of such delivery equal
to the Option Price; (ii) to the extent permitted by the Sarbanes-Oxley Act of
2002 and other applicable law, by the execution and delivery of a note or other
full recourse evidence of indebtedness (and any security agreement thereunder)
satisfactory to the Committee; (iii) by the delivery of cash or the extension of
credit by a broker-dealer to whom the Participant has submitted a notice of
exercise or otherwise indicated an intent to exercise an Option (in accordance
with Part 220, Chapter II, Title 12 of the Code of Federal Regulations,
so-called “cashless” exercise); (iv) by certifying ownership of shares owned by
the Participant to the satisfaction of the Committee for later delivery to the
Company as expected by the Committee; and (v) by any combination of the
foregoing.  No Shares will be issued until full payment therefor has
been made and the Participant has executed any and all agreements that the
Company may require the Participant to execute.  A Participant will
have all of the rights of a stockholder of the Company holding the Shares that
are subject to such Option (including, if applicable, the right to vote the
Shares and the right to receive dividends), when the Participant has given
written notice of exercise, has paid in full for such Shares, executed all
relevant agreements, and such Shares have been recorded on the Company’s
official records as having been issued and transferred.

     

    
      
         

      

      
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    (e)  Non-transferability of
Options.  Except as provided herein or in an Agreement, no
Option or interest therein shall be transferable by the Participant other than
by will or by the laws of descent and distribution or by a designation of
Beneficiary effective upon the death of the Participant, and all Options shall
be exercisable during the Participant’s lifetime only by the Participant or the
Participant’s Representative.  If and to the extent transferability is
permitted by the Committee as provided by an Agreement, the Option shall be
transferable only if such transfer does not result in liability under Section 16
of the Exchange Act to the Participant or other Participants and is consistent
with registration of the Option and sale of Common Stock on Form S-8 (or a
successor form) or is consistent with the use of Form S-8 (or the Committee’s
waiver of such condition) and consistent with an Option’s intended status as an
Incentive Stock Option (if applicable).

     

    6.4  Termination by Reason of
Death.  Unless otherwise provided in an Agreement or determined
by the Committee, if a Participant incurs a Termination of Employment due to
death, any unexpired and unexercised Option held by such Participant shall
thereafter be fully exercisable for a period of one (1) year following the date
of the appointment of a Representative (or such other period or no period as the
Committee may specify) or until the expiration of the Option Period, whichever
period is the shorter.

     

    6.5  Termination by Reason of
Disability.  Unless otherwise provided in an Agreement or
determined by the Committee, if a Participant incurs a Termination of Employment
due to a Disability, any unexpired and unexercised Option held by such
Participant shall thereafter be fully exercisable by the Participant for the
period of one (1) year (or such other period or no period as the Committee may
specify) immediately following the date of such Termination of Employment or
until the expiration of the Option Period, whichever period is shorter, and the
Participant’s death at any time following such Termination of Employment due to
Disability will not affect the foregoing.  In the event of Termination
of Employment by reason of Disability, if an Incentive Stock Option is exercised
after the expiration of the exercise periods that apply for purposes of Section
422 of the Code, such Option will thereafter be treated as a Nonqualified Stock
Option.

     

    
      
         

      

      
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    6.6  Other
Termination.  Unless otherwise provided in an Agreement or
determined by the Committee, if a Participant incurs a Termination of Employment
due to Retirement, or the Termination of Employment is involuntary on the part
of the Participant (but is not due to death or Disability or for Cause), any
Option held by such Participant shall thereupon terminate, except that such
Option, to the extent then exercisable, may be exercised for the lesser of the
ninety (90)-day period commencing with the date of such Termination of
Employment or until the expiration of the Option Period, whichever period is
shorter.  If the Participant incurs a Termination of Employment which
is either (a) for Cause or (b) a Voluntary Termination of Employment on the part
of the Participant, the Option will terminate immediately.  The death
or Disability of a Participant after a Termination of Employment otherwise
provided herein will not extend the time permitted to exercise an
Option.

     

    6.7  Cashing-Out of
Options.  Unless otherwise provided in the Agreement, on
receipt of written notice of exercise, the Committee may elect to cash-out all
or part of the portion of any Option to be exercised by paying the Participant
an amount, in cash or Shares, equal to the excess of (a) the Fair Market Value
of the Shares that are subject to the portion of the Option being cashed-out,
over (b) the Option Price, such difference multiplied by (c) the number of
Shares subject to the portion of the Option being cashed-out, all as of the
effective date of such cash-out.

     

    ARTICLE
VII

     

    STOCK
AWARDS

     

    7.1  General.  The
Committee shall have authority to grant Stock Awards under the Plan at any time
or from time to time.  Stock Awards may be directly issued under the
Plan subject to such terms, conditions, performance requirements, restrictions,
forfeiture provisions, contingencies and limitations as the Committee shall
determine.  Stock Awards may be issued that are fully and immediately
vested upon issuance or that vest in one or more installments over the
Participant’s period of employment or other service to the Company or upon the
attainment of specified performance objectives, or the Company may issue Stock
Awards that entitle the Participant to receive a specified number of vested
Shares upon the attainment of one or more performance goals or service
requirements established by the Committee.

     

    7.2  Grant.  The
grant of a Stock Award shall occur as of the date the Committee
determines.  Each Stock Award granted under the Plan shall be
evidenced by an Agreement, in a form approved by the Committee, which shall
embody the terms and conditions of such Stock Award and which shall be subject
to the express terms and conditions set forth in the Plan.  Such
Agreement shall become effective upon execution by the Company and the
Participant.  Shares representing a Stock Award shall be evidenced in
such manner as the Committee may deem appropriate, including book-entry
registration on issuance of one or more certificates (which may bear appropriate
legends referring to the terms, conditions and restrictions applicable to such
Award).  The Committee may require that any such certificates be held
in custody by the Company until any restrictions thereon shall have lapsed and
that the Participant deliver a stock power, endorsed in blank, relating to the
Shares covered by such Award.

     

    
      
         

      

      
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    7.3  Terms and
Conditions.  A Stock Award may be issued in exchange for any
consideration which the Committee may deem appropriate in each individual
instance, including, without limitation:  (i) cash or cash
equivalents; (ii) past services rendered to the Company or any Affiliate; or
(iii) future services to be rendered to the Company or any
Affiliate.  A Stock Award that is subject to restrictions on transfer
and/or forfeiture provisions may be referred to as an award of “Restricted
Stock.”

     

    ARTICLE
VIII

     

    PERFORMANCE
AWARDS

     

    8.1  Performance
Conditions.  The right of a Participant to exercise, become
vested in, or receive a grant or settlement of any Award, and its timing, may be
subject to performance conditions specified by the Committee.  The
Committee may use business criteria and other measures of performance it deems
appropriate in establishing any performance conditions, and may exercise its
discretion to reduce or increase amounts payable under any Award subject to
performance conditions, except as limited under Sections 8.2 and 8.3 hereof in
the case of a Performance Award intended to qualify under Section 162(m) of the
Code.

     

    8.2  Performance Awards Granted
to Designated Covered Employees.  If the Committee determines
that a Performance Award to be granted to a person the Committee regards as
likely to be a Covered Employee should qualify as “performance-based
compensation” for purposes of Section 162(m) of the Code, the grant, vesting
and/or settlement of such Performance Award shall be contingent upon achievement
of pre-established performance goals and other terms set forth in this Section
8.2.

     

    (a)  Performance Goals
Generally.  The performance goals for such Performance Awards
shall consist of one or more business criteria and a targeted level or levels of
performance with respect to such criteria, as specified by the Committee
consistent with this Section 8.2.  Performance goals shall be
objective and shall otherwise meet the requirements of Section 162(m) of the
Code, including the requirement that the level or levels of performance targeted
by the Committee result in the performance goals being “substantially
uncertain.”  At the time the performance goals are established, the
Committee may determine that more than one performance goal must be achieved as
a condition to the grant, vesting or settlement of such Performance
Awards.  Performance goals may differ for Performance Awards granted
to any one Participant or to different Participants.

     

    (b)  Business
Criteria.  One or more of the following business criteria for
the Company, on a consolidated basis, and/or for specified subsidiaries or
business units of the Company (except with respect to the total stockholder
return and earnings per share criteria), shall be used exclusively by the
Committee in establishing performance goals for such Performance Awards: (1)
total stockholder return; (2) such total stockholder return as compared to total
return (on a comparable basis) of a publicly available index; (3) net income;
(4)  pre-tax earnings; (5) EBITDA; (6) pre-tax operating earnings
after interest expense and before business and extraordinary or special items;
(7) operating margin; (8) basic earnings per share; (9) return on equity; (10)
return on capital; (11) return on investment; (12) operating income; (13)
diluted earnings per share; (14) working capital; and (15) total
revenues.  The Committee may specify any reasonable definition of the
financial measures it uses.  Such definitions may provide for
reasonable adjustments and may include or exclude items, including but not
limited to: realized investment gains and losses; gains and/or losses on the
sale of minority interests; extraordinary, unusual or non-recurring items;
effects of accounting changes, currency fluctuations, acquisitions,
divestitures, or necessary financing activities; recapitalizations, including
stock splits and dividends; expenses for restructuring or productivity
initiatives; stock compensation expense; gains and/or losses from mark-to-market
adjustments for derivative instruments; and other non-operating
items.

     

    
      
         

      

      
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    (c)  Performance Period; Timing
for Established Performance Goals.  Achievement of performance
goals in respect of such Performance Awards shall be measured over such periods
as may be specified by the Committee.  Performance goals shall be
established on or before the dates that are required or permitted for
“performance-based compensation” under Section 162(m) of the Code.

     

    (d)  Settlement of Performance
Awards; Other Terms.  Settlement of Performance Awards may be
in cash or Shares, or other Awards, or other property, in the discretion of the
Committee.  The Committee may, in its discretion, reduce the amount of
a settlement otherwise to be made in connection with such Performance Awards,
but may not exercise discretion to increase any such amount payable in respect
of a Performance Award subject to this Section 8.2.  The Committee
shall specify the circumstances in which such Performance Awards shall be
forfeited or paid in the event of a termination of employment or a Change in
Control prior to the end of a performance period or settlement of Performance
Awards, and other terms relating to such Performance Awards.

     

    8.3  Written
Determinations.  All determinations by the Committee as to the
establishment of performance goals and the potential Performance Awards related
to such performance goal and as to the achievement of performance goals relating
to such Awards, shall be made in writing in the case of any Award intended to
qualify under Section 162(m) of the Code.  The Committee may not
delegate any responsibility relating to such Performance Awards.

     

    ARTICLE
IX


     

    CHANGE IN CONTROL
PROVISIONS

     

    9.1  Impact of
Event.  An Agreement may provide that in the event of a Change
in Control (as defined in Section 9.2):

     

    (a)  Any
Options outstanding as of the date of such Change in Control and not then
exercisable shall become fully exercisable to the full extent of the original
grant.

     

    
      
         

      

      
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    (b)  All
restrictions applicable to any outstanding Stock Awards shall be removed, the
effect of which shall be that the Shares relating to such Awards shall become
fully vested and transferable.

     

    (c) 
Outstanding Awards shall be subject to any agreement of merger or
reorganization that effects such Change in Control, which agreement shall
provide for:

     

    (i)  The
continuation of outstanding Awards by the Company, if the Company is a surviving
corporation;

     

    (ii)  The
assumption of outstanding Awards by the surviving corporation or its parent or
subsidiary;

     

    (iii)  The
substitution by the surviving corporation or its parent or subsidiary of
equivalent awards for the outstanding Awards; or

     

    (iv) 
Settlement of each Share subject to an outstanding Award for the Change
in Control Price (less, to the extent applicable, the per share exercise price),
or, if the per share exercise price equals or exceeds the Change in Control
Price, the outstanding Award shall terminate and be canceled.

     

    (d)  In the
absence of any agreement of merger or reorganization effecting such Change in
Control, each Share subject to an outstanding Award shall be settled for the
Change in Control Price (less, to the extent applicable, the per share exercise
price), or, if the per share exercise price equals or exceeds the Change in
Control Price, the outstanding Award shall terminate and be
canceled.

     

    9.2  Definition of Change in
Control.  For purposes of this Plan, unless otherwise specified
in the Agreement with respect to the corresponding Award, a “Change in Control” shall be
deemed to have occurred if (a) any corporation, person or other entity (other
than the Company, a majority-owned subsidiary of the Company or any of its
subsidiaries, or an employee benefit plan (or related trust) sponsored or
maintained by the Company or an Affiliate), including a “group” as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the
beneficial owner of Shares representing more than fifty percent of the combined
voting power of the Company’s then outstanding securities; (b)(i) the Company
approves, in any transaction or series of related transactions, a definitive
agreement to merge or consolidate the Company with or into another entity other
than a majority-owned subsidiary of the Company, or to sell or otherwise dispose
of all or substantially all of the Company’s assets, and (ii) the persons who
were the members of the Board of Directors prior to such approval do not
represent a majority of the Board of Directors of the surviving, resulting or
acquiring entity or the parent thereof; or (c) the stockholders of the Company
approve a plan of liquidation of the Company.

     

    9.3  Change in Control
Price.  For purposes of the Plan, unless otherwise specified in
the Agreement with respect to the corresponding Award, “Change in Control Price” means
the higher of (a) the highest reported sales price of a Share in any transaction
reported on the principal exchange on which such Shares are listed or on NASDAQ
during the sixty (60)-day period prior to and including the date of a Change in
Control or (b) if the Change in Control is the result of a tender or exchange
offer, merger, consolidation, liquidation or sale of all or substantially all of
the assets of the Company (in each case a “Transaction”), the highest
price per Share paid in such Transaction.  To the extent that the
consideration paid in any Transaction consists all or in part of securities or
other non-cash consideration, the value of such securities or other non-cash
consideration shall be determined in the sole discretion of the
Committee.

     

    
      
         

      

      
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    ARTICLE
X


     

    MISCELLANEOUS

     

    10.1  Amendments and
Termination.  The Board may amend, alter or discontinue the
Plan at any time, but no amendment, alteration or discontinuation shall be made
which would impair the rights of a Participant under an Award theretofore
granted without the Participant’s consent, except such an amendment (a) made to
avoid an expense charge to the Company or an Affiliate, (b) made to cause the
Plan to qualify for the exemption provided by Rule 16b-3 or (c) made to permit
the Company or an Affiliate a deduction under the Code.  In addition,
no such amendment shall be made without the approval of the Company’s
stockholders to the extent such approval is required by law or
agreement.

     

    The
Committee may amend, alter or discontinue the Plan or an Award at any time on
the same conditions and limitations (and exceptions to limitations) as apply to
the Board’s authority to amend the Plan and further subject to any approval or
limitations the Board may impose.

     

    10.2  Unfunded Status of
Plan.  It is intended that the Plan be an “unfunded” plan for
incentive and deferred compensation.  The Committee may authorize the
creation of trusts or other arrangements to meet the obligations created under
the Plan to deliver Shares or make payments; provided, however, that, unless the
Committee otherwise determines, the existence of such trusts or other
arrangements is consistent with the “unfunded” status of the
Plan.  

     

    10.3  Limits on
Transferability.  Unless otherwise provided in this Plan or in
an Agreement, no Award shall be subject to the claims of Participant’s creditors
and no Award may be sold, transferred, assigned, alienated, encumbered,
hypothecated, gifted, conveyed, pledged or disposed of in any way other than by
will or the laws of descent and distribution or to a Representative upon the
death of the Participant.

     

    10.4  General
Provisions.

     

    (a)  Representation.  The
Committee may require each person purchasing or receiving Shares pursuant to an
Award to represent to and agree with the Company in writing that such person is
acquiring the Shares without a view to the distribution thereof.  The
certificates for such Shares may include any legend which the Committee deems
appropriate to reflect any restrictions on transfer.

     

    (b)  No Additional
Obligation.  Nothing contained in the Plan shall prevent the
Company or an Affiliate from adopting other or additional compensation
arrangements for its employees.

     

    
      
         

      

      
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    (c)  Withholding.  No
later than the date as of which an amount first becomes includable in the gross
income of the Participant for income tax purposes with respect to any Award, the
Participant shall pay to the Company (or other entity identified by the
Committee), or make arrangements satisfactory to the Company or other entity
identified by the Committee regarding the payment of, any federal, state, local
or foreign taxes of any kind required by law to be withheld with respect to such
amount required in order for the Company or an Affiliate to obtain a current
deduction.  Unless otherwise determined by the Committee, withholding
obligations may be settled with Shares, including Shares that are part of the
Award that gives rise to the withholding requirement, provided that any
applicable requirements under Section 16 of the Exchange Act are
satisfied.  The obligations of the Company under the Plan will be
conditional on such payment or arrangements, and the Company and its Affiliates
will, to the extent permitted by law, have the right to deduct any such taxes
from any payment otherwise due to the Participant.  If the Participant
disposes of shares of Common Stock acquired pursuant to an Incentive Stock
Option in any transaction considered to be a disqualifying transaction under the
Code, the Participant must give written notice of such transfer and the Company
shall have the right to deduct any taxes required by law to be withheld from any
amounts otherwise payable to the Participant.  The obligations of the
Company under the Plan shall be conditional on such payment or arrangements, and
the Company and its Affiliates shall, to the extent permitted by law, have the
right to deduct any such taxes from any payment otherwise due to the
Participant.

     

    (d)  Representative.  The
Committee shall establish such procedures as it deems appropriate for a
Participant to designate a Representative to whom any amounts payable in the
event of the Participant’s death are to be paid.

     

    (e)  Controlling
Law.  The Plan and all Awards made and actions taken thereunder
will be governed by and construed in accordance with the laws of the State of
Delaware (other than its law respecting choice of law).  The Plan
shall be construed to comply with all applicable law and to avoid liability to
the Company, an Affiliate or a Participant or loss of a deduction, including,
without limitation, liability under Section 16(b) of the Exchange
Act.

     

    (f)  Offset.  Any
amounts owed to the Company or an Affiliate by the Participant of whatever
nature may be offset by the Company from the value of any Shares, cash or other
thing of value under this Plan or an Agreement to be transferred to the
Participant, and no Shares, cash or other thing of value under this Plan or an
Agreement shall be transferred unless and until all disputes between the Company
and the Participant have been fully and finally resolved and the Participant has
waived all claims to such against the Company or an Affiliate.

     

    (g)  No Rights with Respect to
Continuance of Employment.  Nothing contained herein shall be
deemed to alter the relationship between the Company or an Affiliate and a
Participant, or the contractual relationship between a Participant and the
Company or an Affiliate if there is a written contract regarding such
relationship.  Nothing contained herein shall be construed to
constitute a contract of employment between the Company or an Affiliate and a
Participant.  The Company or an Affiliate and each of the Participants
continue to have the right to terminate the employment or service relationship
at any time for any reason, except as provided in a written
contract.  The Company or an Affiliate shall have no obligation to
retain the Participant in its employ or service as a result of this
Plan.  There shall be no inference as to the length of employment or
service hereby, and the Company or an Affiliate reserves the same rights to
terminate the Participant’s employment or service as existed prior to the
individual’s becoming a Participant in this Plan.

     

    
      
         

      

      
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    (h)  Fail-Safe.  With
respect to persons subject to Section 16 of the Exchange Act, transactions under
this Plan are intended to comply with all applicable conditions of Rule 16b-3,
as applicable.  To the extent any provision of the Plan or action by
the Committee fails to so comply, it shall be deemed null and void, to the
extent permitted by law and deemed advisable by the
Committee.  Moreover, in the event the Plan does not include a
provision required by Rule 16b-3 to be stated herein, such provision (other than
one relating to eligibility requirements or the price and amount of Options)
shall be deemed to be incorporated by reference into the Plan with respect to
Participants subject to Section 16.

     

    (i)  Right to
Capitalize.  The grant of an Award shall in no way affect the
right of the Company to adjust, reclassify, reorganize or otherwise change its
capital or business structure or to merge, consolidation, dissolve, liquidate or
sell or transfer all or any part of its business or assets.

     

    10.5  Mitigation of Excise
Tax.  Subject to any agreement with a Participant, if any
payment or right accruing to a Participant under this Plan (without the
application of this Section 10.5), either alone or together with other payments
or rights accruing to the Participant from the Company or an Affiliate (“Total Payments”), would
constitute a “parachute payment” (as defined in Section 280G of the Code and
regulations thereunder), such payment or right shall be reduced to the largest
amount or greatest right that will result in no portion of the amount payable or
right accruing under the Plan being subject to an excise tax under Section 4999
of the Code or being disallowed as a deduction under Section 280G of the
Code.  The determination of whether any reduction in the rights or
payments under this Plan is to apply shall be made by the Committee in good
faith after consultation with the Participant, and such determination will be
conclusive and binding on the Participant.  The Participant shall
cooperate in good faith with the Committee in making such determination and
providing the necessary information for this purpose.  The provisions
of this Section 10.5 shall apply with respect to any Participant only if, after
reduction for any applicable federal excise tax imposed by Section 4999 of the
Code and other federal income tax imposed by the Code, the Total Payments
accruing to such Participant would be less than the amount of the Total Payments
as reduced (i) if applicable, pursuant to the provisions of this Section 10.5
and any similar provisions under any other plan of the Company or any Affiliate
to mitigate the applicable federal excise tax, and (ii) by federal income taxes
(other than such excise tax).

     

    10.6  Awards in Substitution for
Awards Granted by Other Entities.  Awards may be granted under
the Plan from time to time in substitution for awards held by employees,
directors or service providers of other entities who are about to become
officers, directors, stockholders or employees of the Company or an
Affiliate.  The terms and conditions of the Awards so granted may vary
from the terms and conditions set forth in this Plan at the time of such grant
as the majority of the stockholders of the Committee may deem appropriate to
conform, in whole or in part, to the provisions of the Awards in substitution
for which they are granted.

     

    
      
         

      

      
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    10.7  Procedure for
Adoption.  Any Affiliate of the Company may by resolution of
such Affiliate’s board of directors with the consent of the Board of Directors
and subject to such conditions as may be imposed by the Board of Directors,
adopt the Plan for the benefit of its employees as of the date specified in the
resolution.

     

    10.8  Procedure for
Withdrawal.  Any Affiliate which has adopted the Plan may, by
resolution of the board of directors of such Affiliate, with the consent of the
Board of Directors and subject to such conditions as may be imposed by the Board
of Directors, terminate its adoption of the Plan.

     

    10.9  Delay.  If
at the time a Participant incurs a Termination of Employment (other than due to
Cause) or if at the time of a Change in Control, the Participant is subject to
“short-swing” liability under Section 16 of the Exchange Act, any time period
provided for under the Plan or an Agreement to the extent necessary to avoid the
imposition of liability will be suspended and delayed during the period the
Participant would be subject to such liability, but not more than six months and
one day and not to exceed the Option Period.  Furthermore, if at any
time after a Termination of Employment (other than due to Cause or a
Voluntary Termination of Employment) a Participant is precluded from selling
Shares to fund the exercise of Options under the Plan because of any
restrictions imposed under the Company’s Insider Trading Compliance Policy, as
then in effect, any time period provided for under the Plan or an Agreement will
be extended by a number of days equal to the number of days during which such
restrictions applied to such Participant after such Termination of Employment,
but in no event more than ninety additional days and not to exceed the Option
Period.  The Company shall have the right to suspend or delay any time
period described in the Plan or an Agreement if the Committee shall determine
that the action may constitute a violation of any law or result in liability
under any law to the Company, an Affiliate or a shareholder in the Company until
such time as the action required or permitted will not constitute a violation of
law or result in liability to the Company, an Affiliate or a shareholder of the
Company.  The Committee shall have the discretion to suspend the
application of the provisions of the Plan required solely to comply with Rule
16b-3 if the Committee determines that Rule 16b-3 does not apply to the
Plan.

     

    10.10  Headings.  The
headings contained in this Plan are for reference purposes only and shall not
affect the meaning or interpretation of this Plan.

     

    10.11  Severability.  If
any provision of this Plan is for any reason held to be invalid or
unenforceable, such invalidity or unenforceability shall not affect any other
provision of this Plan, and this Plan will be construed as if such invalid or
unenforceable provision were omitted.

     

    10.12  Successors and
Assigns.  This Plan shall inure to the benefit of and be
binding upon each successor and assign of the Company.  All
obligations imposed upon a Participant, and all rights granted to the Company
hereunder, shall be binding upon the Participant’s heirs, legal representatives
and successors.

     

    
      
         

      

      
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    10.13  409A Savings
Clause.  The Plan and all Awards granted thereunder are
intended to comply with, or otherwise be exempt from, Section 409A of the
Code.  The Plan and all Awards granted under the Plan shall be
administered, interpreted, and construed in a manner consistent with Section
409A of the Code to the extent necessary to avoid the imposition of additional
taxes under Section 409A(a)(1)(B) of the Code.  Should any provision
of the Plan, any Award Agreement, or any other agreement or arrangement
contemplated by the Plan be found not to comply with, or otherwise be exempt
from, the provisions of Section 409A of the Code, such provision shall be
modified and given effect (retroactively if necessary), in the sole discretion
of the Committee, and without the consent of the holder of the Award, in such
manner as the Committee determines to be necessary or appropriate to comply
with, or to effectuate an exemption from, Section 409A of the
Code.  Notwithstanding anything in the Plan to the contrary, in no
event shall the Committee exercise its discretion to accelerate the payment or
settlement of an Award where such payment or settlement constitutes deferred
compensation within the meaning of Section 409A of the Code unless, and solely
to the extent, that such accelerated payment or settlement is permissible under
Treasury Regulation section 1.409A-3(j)(4) or any successor
provision.

     

    10.14  Entire
Agreement.  Unless provided otherwise in an Award Agreement,
the Plan and the relevant Award Agreement shall constitute the entire agreement
with respect to the subject matter hereof and thereof, provided that in the
event of any inconsistency between the Plan and an Award Agreement, the terms
and conditions of the Plan shall control.

     

    Executed
effective as of the 20th day of
May, 2009.

     

     

    
      
        
          
            
              
                
                  
                    	 	NovaMed,
      Inc.	 
	 	 	 
      	 
	 	 	 	 
	 	By:  	
                            /s/ Scott T. Macomber

                          	 
	 	Its:	      
                            Executive
      Vice President and

                            Chief
      Financial Officer

                          	 


                  

                

              

            

          

        

      

    

    


     

    
      
         

      

      
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