exv4w4






Exhibit 4.4




MEDQUIST HOLDINGS INC.

2010 EQUITY INCENTIVE PLAN




     1. Purpose. The purpose of the MedQuist Holdings Inc. 2010 Equity Incentive Plan is to provide a means
through which MedQuist Holdings Inc.(the “Company”) and its Affiliates may attract and
retain key personnel and to provide a means whereby current and prospective directors, officers,
employees, consultants and advisors of the Company and its Affiliates can acquire and maintain an
equity interest in the Company, or be paid incentive compensation, which may (but need not) be
measured by reference to the value of Common Stock, thereby strengthening their commitment to the
welfare of the Company and its Affiliates and aligning their interests with those of the Company’s
stockholders.



     2. Definitions. The following definitions shall be applicable throughout the Plan:



          (a) “Affiliate” means (i) any person or entity that directly or indirectly controls,
is controlled by or is under common control with the Company and/or (ii) to the extent provided by
the Committee, any person or entity in which the Company has a significant interest. The term
“control” (including, with correlative meaning, the terms “controlled by” and “under common control
with”), as applied to any person or entity, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such person or entity,
whether through the ownership of voting or other securities, by contract or otherwise.




          (b) “Award” means, individually or collectively, any Incentive Stock Option,
Nonqualified Stock Option, Stock Appreciation Right, Restricted Stock, Restricted Stock Unit, Stock
Bonus Award, and Performance Compensation Award granted under the Plan.




          (c) “Board” means the Board of Directors of the Company.




          (d) “Business Combination” has the meaning given such term in the definition of
“Change in Control.”




          (e) “Cause” means, in the case of a particular Award, unless the applicable Award
agreement states otherwise, (i) the Company or an Affiliate having “cause” to terminate a
Participant’s employment or service, as defined in any employment or consulting agreement between
the Participant and the Company or an Affiliate in effect at the time of such termination or (ii)
in the absence of any such employment or consulting agreement (or the absence of any definition of
“Cause” contained therein), (A) the Participant’s commission of, conviction for, plea of
guilty or nolo contendere to a felony or a crime involving moral turpitude, or other material act
or omission involving dishonesty or fraud, (B) the Participant’s conduct that brings or is
reasonably likely to bring the Company or any of its Affiliates into public disgrace or
disrepute and that affects the Company or any Affiliate’s business in any material way, (C)
the Participant’s failure to perform duties as reasonably directed by the Company or




 









 




the
Participant’s material violation of any rule, regulation, policy or plan for the conduct of any
service provider to the Company or its Affiliates or its or their business (which, if curable, is
not cured within 10 days after notice thereof is provided to the Participant) or (D) the
Participant’s gross negligence, willful malfeasance or material act of disloyalty with respect to
the Company or its Affiliates (which, if curable, is not cured within 10 days after notice thereof
is provided to the Participant). Any determination of whether Cause exists shall be made by the
Committee in its sole discretion.




          (f) “Change in Control” shall, in the case of a particular Award, unless the
applicable Award agreement states otherwise or contains a different definition of “Change in
Control,” be deemed to occur upon:




               (i) Any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”)) (a “Person”)
becomes the beneficial owner (within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of 50% or more of either (A) the then-outstanding shares of Common Stock of the Company (the
“Outstanding Company Common Stock”) or (B) the combined voting power of the
then-outstanding voting securities of the Company entitled to vote generally in the election of
directors (the “Outstanding Company Voting Securities”); provided, however, that, for
purposes of this Section 2(f), the following acquisitions shall not constitute a Change in Control:
(I) any acquisition directly from the Company, (II) any acquisition by the Company, (III) any
acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company
or any Affiliate, (IV) any acquisition by any corporation pursuant to a transaction that complies
with Sections 2(f)(iii)(A), 2(f)(iii)(B) and 2(f)(iii)(C), or (V) any acquisition by S.A.C. PEI CB
Investments, L.P. (“SAC”), any affiliate of SAC or any group of which SAC is a member (a
“Designated Holder”).



               (ii) During any period of two (2) consecutive years, individuals who, as of the date hereof,
constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a director subsequent to the
date hereof whose election, or nomination for election by the Company’s stockholders, was approved
by a vote of at least a majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a result of an actual or
threatened election contest with respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person other than the Board;



               (iii) Consummation of a reorganization (excluding a reorganization under either Chapter 7 or
Chapter 11 of Title 11 of the United States Code), merger, statutory share exchange or
consolidation or similar transaction involving the Company or any of its Affiliates, a sale or
other disposition of all or substantially all
of the assets of the Company, or the acquisition of assets or stock of another entity by the
Company or any of its Affiliates (each, a “Business Combination”), in each case unless,



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following such Business Combination, (A) all or substantially all of the individuals and entities
that were the beneficial owners of the Outstanding Company Common Stock and the Outstanding Company
Voting Securities immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 50% of the then-outstanding shares of common stock (or, for a non-corporate
entity, equivalent securities) and the combined voting power of the then-outstanding voting
securities entitled to vote generally in the election of directors (or, for a non-corporate entity,
equivalent governing body), as the case may be, of the entity resulting from such Business
Combination (including, without limitation, an entity that, as a result of such transaction, owns
the Company or all or substantially all of the Company’s assets either directly or through one or
more subsidiaries) in substantially the same proportions as their ownership immediately prior to
such Business Combination of the Outstanding Company Common Stock and the Outstanding Company
Voting Securities, as the case may be, (B) no Person (excluding any corporation resulting from such
Business Combination or any employee benefit plan (or related trust) of the Company or such
corporation resulting from such Business Combination) beneficially owns, directly or indirectly,
50% or more of, respectively, the then-outstanding shares of common stock of the corporation
resulting from such Business Combination or the combined voting power of the then-outstanding
voting securities of such corporation, except to the extent that such ownership existed prior to
the Business Combination, and (C) at least a majority of the members of the board of directors (or,
for a non-corporate entity, equivalent governing body) of the entity resulting from such Business
Combination were members of the Incumbent Board at the time of the execution of the initial
agreement or of the action of the Board providing for such Business Combination;



               (iv) Adoption by the Board of a resolution to the effect that, in its judgment, as a
consequence of any transaction or event, a Change in Control has effectively occurred; or



               (v) Approval by the stockholders of the Company of a complete liquidation or dissolution of
the Company.



          In addition, if a Change in Control constitutes a payment event with respect to any Award
which provides for the deferral of compensation and is subject to Section 409A of the Code, the
transaction or event described in subsection (i), (ii), (iii), (iv) or (v) with respect to such
Award must also constitute a “change in control event,” as defined in Treasury Regulation §
1.409A-3(i)(5) to the extent required by Section 409A of the Code.




          The Committee shall have full and final authority, which shall be exercised in its discretion,
to determine conclusively whether a Change in Control of the Company has occurred pursuant to the
above definition, and the date of the occurrence of such Change in Control and any incidental
matters relating thereto.




          (g) “Code” means the Internal Revenue Code of 1986, as amended, and any successor
thereto. Reference in the Plan to any section of the Code shall be




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deemed to include any
regulations or other interpretative guidance under such section, and any amendments or successor
provisions to such section, regulations or guidance.




          (h) “Committee” means a committee of at least two people as the Board may appoint to
administer the Plan or, if no such committee has been appointed by the Board, the Board.




          (i) “Common Stock” means the common stock, par value $0.01 per share, of the Company
(and any stock or other securities into which such common stock may be converted or into which it
may be exchanged).




          (j) “Company” means MedQuist Holdings Inc., a Delaware corporation, and any successor
thereto.




          (k) “Date of Grant” means the date on which the granting of an Award is authorized, or
such other date as may be specified in such authorization.




          (l) “Designated Holder” has the meaning given such term in the definition of “Change
in Control.”




          (m) “Dividend Equivalent” shall mean a right to receive the equivalent value (in cash
or Common Stock) of dividends paid on Common Stock, awarded under Section 10(b).




          (n) “Effective Date” means the date on which the Company’s existence is continued
under the laws of the State of Delaware.




          (o) “Eligible Director” means a person who is (i) a “non-employee director” within the
meaning of Rule 16b-3 under the Exchange Act, and (ii) an “outside director” within the meaning of
Section 162(m) of the Code.




          (p) “Eligible Person” means any (i) individual employed by the Company or an
Affiliate; provided, however, that no such employee covered by a collective bargaining agreement
shall be an Eligible Person unless and to the extent that such eligibility is set forth in such
collective bargaining agreement or in an agreement or instrument relating thereto; (ii) director of
the Company or an Affiliate; (iii) consultant or advisor to the Company or an Affiliate who may be
offered securities registrable on Form S-8 under the Securities Act or pursuant to Rule 701 of the
Securities Act, or any other available exemption, as applicable; or (iv) prospective employees,
directors, officers, consultants or advisors who have accepted offers of employment or consultancy
from the Company or its Affiliates (and would satisfy the provisions of clauses (i) through (iii)
above once such person begins employment with or providing services to the Company or its
Affiliates).




          (q) “Exchange Act” has the meaning given such term in the definition of “Change in
Control,” and any reference in the Plan to any section of (or rule promulgated under) the Exchange
Act shall be deemed to include any rules, regulations




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or other interpretative guidance under such
section or rule, and any amendments or successor provisions to such section, rules, regulations or
guidance.




          (r) “Exercise Price” has the meaning given such term in Section 7(b) of the Plan.




          (s) “Fair Market Value” means, on a given date, (i) if the Common Stock is listed on
the New York Stock Exchange or another national securities exchange, the closing sales price of the
Common Stock reported on such national securities exchange, or, if there is no such sale on that
date, then on the last preceding date on which such a sale was reported; (ii) if the Common Stock
is not listed on the New York Stock Exchange or another national securities exchange, but is quoted
in the NASDAQ National Market Reporting System or another inter-dealer quotation system on a last
sale basis, the closing bid price or, if there is no such sale on that date, then on the last
preceding date on which a sale was reported; or (iii) if the Common Stock is not listed on a
national securities exchange or quoted in an inter-dealer quotation system on a last sale basis,
the amount determined by the Committee in good faith to be the fair market value of the Common
Stock.




          (t) “Immediate Family Members” shall have the meaning set forth in Section 15(b).




          (u) “Incentive Stock Option” means an Option that is designated by the Committee as an
incentive stock option as described in Section 422 of the Code and otherwise meets the requirements
set forth in the Plan.




          (v) “Incumbent Board” has the meaning given such term in the definition of “Change in
Control.”




          (w) “Indemnifiable Person” shall have the meaning set forth in Section 4(e) of the
Plan.




          (x) “Mature Shares” means shares of Common Stock owned by a Participant that are not
subject to any pledge or security interest and that have been either previously acquired by the
Participant on the open market or meet such other requirements, if any, as the Committee may
determine are necessary in order to avoid an accounting earnings charge on account of the use of
such shares to pay the Exercise Price or satisfy a withholding obligation of the Participant.




          (y) “Negative Discretion” shall mean the discretion authorized by the Plan to be
applied by the Committee to eliminate or reduce the size of a Performance Compensation Award
consistent with Section 162(m) of the Code.




          (z) “Nonqualified Stock Option” means an Option that is not designated by the
Committee as an Incentive Stock Option.




          (aa) “Option” means an Award granted under Section 7 of the Plan.




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          (bb) “Option Period” has the meaning given such term in Section 7(c) of the Plan.




          (cc) “Outstanding Company Common Stock” has the meaning given such term in the
definition of “Change in Control.”




          (dd) “Outstanding Company Voting Securities” has the meaning given such term in the
definition of “Change in Control.”




          (ee) “Ownership Limit” means the ownership (either beneficially or constructively), or
deemed ownership by virtue of the attribution provisions of the Code, of (i) not more than 9.8% in
value or in number of shares, whichever is more restrictive, of the outstanding shares of Common
Stock of the Company, or (ii) not more than 9.8% in value of the outstanding shares of all classes
and series of the Company’s stock, as such limits may be amended by the Board from time to time.




          (ff) “Participant” means an Eligible Person who has been selected by the Committee to
participate in the Plan and to receive an Award pursuant to Section 6 of the Plan.




          (gg) “Performance Compensation Award” shall mean any Award designated by the Committee
as a Performance Compensation Award pursuant to Section 11 of the Plan.




          (hh) “Performance Criteria” shall mean the criterion or criteria that the Committee
shall select for purposes of establishing the Performance Goal(s) for a Performance Period with
respect to any Performance Compensation Award under the Plan.




          (ii) “Performance Formula” shall mean, for a Performance Period, the one or more
objective formulae applied against the relevant Performance Goal to determine, with regard to the
Performance Compensation Award of a particular Participant, whether all, some portion but less than
all, or none of the Performance Compensation Award has been earned for the Performance Period.




          (jj) “Performance Goals” shall mean, for a Performance Period, the one or more goals
established by the Committee for the Performance Period based upon the Performance Criteria.




          (kk) “Performance Period” shall mean the one or more periods of time, as the Committee
may select, over which the attainment of one or more Performance
Goals will be measured for the purpose of determining a Participant’s right to, and the
payment of, a Performance Compensation Award.




          (ll) “Permitted Transferee” shall have the meaning set forth in Section 15(b) of the
Plan.




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          (mm) “Person” has the meaning given such term in the definition of “Change in
Control.”




          (nn)
“Plan” means the MedQuist Holdings Inc. 2010 Equity Incentive Plan.




          (oo) “Restricted Period” means the period of time determined by the Committee during
which an Award is subject to restrictions or, as applicable, the period of time within which
performance is measured for purposes of determining whether an Award has been earned.




          (pp) “Restricted Stock Unit” means an unfunded and unsecured promise to deliver shares
of Common Stock, cash, other securities or other property, subject to certain restrictions
(including, without limitation, a requirement that the Participant remain continuously employed or
provide continuous services for a specified period of time), granted under Section 9 of the Plan.




          (qq) “Restricted Stock” means Common Stock, subject to certain specified restrictions
(including, without limitation, a requirement that the Participant remain continuously employed or
provide continuous services for a specified period of time), granted under Section 9 of the Plan.




          (rr) “SAR Period” has the meaning given such term in Section 8(b) of the Plan.




          (ss) “Securities Act” means the Securities Act of 1933, as amended, and any successor
thereto. Reference in the Plan to any section of the Securities Act shall be deemed to include any
rules, regulations or other interpretative guidance under such section, and any amendments or
successor provisions to such section, rules, regulations or guidance.




          (tt) “SEC” means the Securities and Exchange Commission.




          (uu) “Stock Appreciation Right” or “SAR” means an Award granted under Section
8 of the Plan.




          (vv) “Stock Bonus Award” means an Award granted under Section 10 of the Plan.




          (ww) “Strike Price” means, except as otherwise provided by the Committee in the case
of Substitute Awards, (i) in the case of a SAR granted in tandem
with an Option, the Exercise Price of the related Option, or (ii) in the case of a SAR granted
independent of an Option, the Fair Market Value on the Date of Grant.




          (xx) “Substitute Award” has the meaning given such term in Section 5(e).




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     3. Effective Date; Duration. The Plan shall be effective as of the Effective Date. The expiration date of the Plan, on
and after which date no Awards may be granted hereunder, shall be the tenth anniversary of the
Effective Date; provided, however, that such expiration shall not affect Awards then outstanding,
and the terms and conditions of the Plan shall continue to apply to such Awards.



     4. Administration.



          (a) The Committee shall administer the Plan. To the extent required to comply with the
provisions of Rule 16b-3 promulgated under the Exchange Act (if the Board is not acting as the
Committee under the Plan) or necessary to obtain the exception for performance-based compensation
under Section 162(m) of the Code, as applicable, it is intended that each member of the Committee
shall, at the time he takes any action with respect to an Award under the Plan, be an Eligible
Director. However, the fact that a Committee member shall fail to qualify as an Eligible Director
shall not invalidate any Award granted by the Committee that is otherwise validly granted under the
Plan. The majority of the members of the Committee shall constitute a quorum. The acts of a
majority of the members present at any meeting at which a quorum is present or acts approved in
writing by a majority of the Committee shall be deemed the acts of the Committee.




          (b) Subject to the provisions of the Plan and applicable law, the Committee shall have the
sole and plenary authority, in addition to other express powers and authorizations conferred on the
Committee by the Plan, to: (i) designate Participants; (ii) determine the type or types of Awards
to be granted to a Participant; (iii) determine the number of shares of Common Stock to be covered
by, or with respect to which payments, rights, or other matters are to be calculated in connection
with, Awards; (iv) determine the terms and conditions of any Award and any amendments thereto; (v)
determine whether, to what extent, and under what circumstances Awards may be settled or exercised
in cash, shares of Common Stock, other securities, other Awards or other property, or canceled,
forfeited, or suspended and the method or methods by which Awards may be settled, exercised,
canceled, forfeited, or suspended; (vi) determine whether, to what extent, and under what
circumstances the delivery of cash, Common Stock, other securities, other Awards or other property
and other amounts payable with respect to an Award shall be deferred either automatically or at the
election of the Participant or of the Committee; (vii) interpret, administer, reconcile any
inconsistency
in, correct any defect in and/or supply any omission in the Plan and any instrument or
agreement relating to, or Award granted under, the Plan; (viii) establish, amend, suspend, or waive
any rules and regulations and appoint such agents as the Committee shall deem appropriate for the
proper administration of the Plan; (ix) accelerate the vesting or exercisability of, payment for or
lapse of restrictions on, Awards; and (x) make any other determination and take any other action
that the Committee deems necessary or desirable for the administration of the Plan.




          (c) The Committee may delegate to one or more officers of the Company or any Affiliate the
authority to act on behalf of the Committee with respect to




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any matter, right, obligation, or
election that is the responsibility of or that is allocated to the Committee herein, and that may
be so delegated as a matter of law, except for grants of Awards to persons (i) subject to Section
16 of the Exchange Act or (ii) who are, or who are reasonably expected to be, “covered employees”
for purposes of Code Section 162(m).




          (d) Unless otherwise expressly provided in the Plan, all designations, determinations,
interpretations, and other decisions under or with respect to the Plan or any Award or any
documents evidencing Awards granted pursuant to the Plan shall be within the sole discretion of the
Committee, may be made at any time and shall be final, conclusive and binding upon all persons or
entities, including, without limitation, the Company, any Affiliate, any Participant, any holder or
beneficiary of any Award, and any stockholder of the Company.




          (e) No member of the Board, the Committee, delegate of the Committee or any employee or agent
of the Company (each such person, an “Indemnifiable Person”) shall be liable for any action
taken or omitted to be taken or any determination made in good faith with respect to the Plan or
any Award hereunder. Each Indemnifiable Person shall be indemnified and held harmless by the
Company against and from any loss, cost, liability, or expense (including attorneys’ fees) that may
be imposed upon or incurred by such Indemnifiable Person in connection with or resulting from any
action, suit or proceeding to which such Indemnifiable Person may be a party or in which such
Indemnifiable Person may be involved by reason of any action taken or omitted to be taken under the
Plan or any Award agreement and against and from any and all amounts paid by such Indemnifiable
Person with the Company’s approval, in settlement thereof, or paid by such Indemnifiable Person in
satisfaction of any judgment in any such action, suit or proceeding against such Indemnifiable
Person, provided, that the Company shall have the right, at its own expense, to assume and defend
any such action, suit or proceeding and once the Company gives notice of its intent to assume the
defense, the Company shall have sole control over such defense with counsel of the Company’s
choice. The foregoing right of indemnification shall not be available to an Indemnifiable Person
to the extent that a final judgment or other final adjudication (in either case not subject to
further appeal) binding upon such Indemnifiable Person determines that the acts or omissions of
such Indemnifiable Person giving rise to the indemnification claim resulted from such Indemnifiable
Person’s bad faith, fraud, gross negligence or willful criminal act or omission or that such right
of indemnification is
otherwise prohibited by law or by the Company’s Certificate of Incorporation or Bylaws. The
foregoing right of indemnification shall not be exclusive of any other rights of indemnification to
which such Indemnifiable Persons may be entitled under the Company’s Certificate of Incorporation
or Bylaws, as a matter of law, or otherwise, or any other power that the Company may have to
indemnify such Indemnifiable Persons or hold them harmless.




          (f) Notwithstanding anything to the contrary contained in the Plan, the Board may, in its sole
discretion, at any time and from time to time, grant Awards and




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administer the Plan with respect to
such Awards. In any such case, the Board shall have all the authority granted to the Committee
under the Plan.




     5. Grant of Awards; Shares Subject to the Plan; Limitations.



          (a) The Committee may, from time to time, grant Options, Stock Appreciation Rights, Restricted
Stock, Restricted Stock Units, Stock Bonus Awards and/or Performance Compensation Awards to one or
more Eligible Persons.




          (b) Awards granted under the Plan shall be subject to the following limitations: (i) subject
to Section 12 of the Plan, the Committee is authorized to deliver under the Plan no more than 7.5%
of that number of shares of Common Stock that is represented by (A) the sum of the number of Shares
outstanding immediately after (i) consummation of the Company’s initial public offering, (ii) the
issuance of Common Stock pursuant to the Exchange Agreement, dated September 30, 2010, between
CBaySystems Holdings Inc. and the Investors signatories thereto and (iii) consummation of the
Company’s registered exchange offer in which shares of Common Stock are exchanged for shares of the
common stock of MedQuist Inc., in each case, after giving effect to any share conversion, share
split, reverse share split, adjustment, conversion or similar action, less (B) the sum of (i) the
number of shares of Common Stock underlying the outstanding options under the Company’s 2007 Equity
Incentive Plan at such time and (ii) the number of shares of Common Stock reserved by the Committee
for issuance under the Company’s 2010 Employee Stock Purchase Plan (the “Share Reserve”);
provided, however, no more than 70% of the Share Reserve may be issued upon the exercise of
Incentive Stock Options; (ii) subject to Section 12 of the Plan, grants of Options or SARs under
the Plan in respect of no more than 20% of the Share Reserve may be made to any single Participant
during any calendar year; (iii) subject to Section 12 of the Plan, no more than 20% of the Share
Reserve may be earned in respect of Performance Compensation Awards granted pursuant to Section 11
of the Plan to any single Participant for a single calendar year during a Performance Period, or in
the event such Performance Compensation Award is paid in cash, other securities, other Awards or
other property, no more than the Fair Market Value of 20% of the Share Reserve, calculated on the
last day of the Performance Period to which such Award relates; and (iv) the maximum amount that
can be paid to any single Participant in any one calendar
year pursuant to a cash bonus Award described in Section 11(a) of the Plan shall be
$5,000,000.




          (c) Shares of Common Stock used to pay the required Exercise Price or tax obligations, or
shares not issued in connection with settlement of an Option or SAR or that are used or withheld to
satisfy tax obligations of the Participant shall, notwithstanding anything herein to the contrary,
not be available again for other Awards under the Plan. Shares underlying Awards under this Plan
that are forfeited, cancelled, expire unexercised, or are settled in cash will be available again
for Awards under the Plan.




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          (d) Shares of Common Stock delivered by the Company in settlement of Awards may be authorized
and unissued shares, shares held in the treasury of the Company, shares purchased on the open
market or by private purchase, or a combination of the foregoing.




          (e) Awards may, in the sole discretion of the Committee, be granted under the Plan in
assumption of, or in substitution for, outstanding awards previously granted by an entity acquired
by the Company or with which the Company combines (“Substitute Awards”). The number of
shares of Common Stock underlying any Substitute Awards shall not be counted against the aggregate
number of shares of Common Stock available for Awards under the Plan.




     6. Eligibility. Participation shall be limited to Eligible Persons who have entered into an Award agreement
or who have received written notification from the Committee, or from a person designated by the
Committee, that they have been selected to participate in the Plan.



     7. Options. 



          (a) Generally. Each Option granted under the Plan shall be evidenced by an Award
agreement (whether in paper or electronic medium (including email or the posting on a web site
maintained by the Company or a third party under contract with the Company)). Each Option so
granted shall be subject to the conditions set forth in this Section 7, and to such other
conditions not inconsistent with the Plan as may be reflected in the applicable Award agreement.
All Options granted under the Plan shall be Nonqualified Stock Options unless the applicable Award
agreement expressly states that the Option is intended to be an Incentive Stock Option. Incentive
Stock Options shall be granted only to Eligible Persons who are employees of the Company and its
Affiliates, and no Incentive Stock Option shall be granted to any Eligible Person who is ineligible
to receive an Incentive Stock Option under the Code. No Option shall be treated as an Incentive
Stock Option unless the Plan has been approved by the stockholders of the Company in a manner
intended to comply with the stockholder approval requirements of Section 422(b)(1) of the Code,
provided that any Option intended to be an Incentive
Stock Option shall not fail to be effective solely on account of a failure to obtain such
approval, but rather such Option shall be treated as a Nonqualified Stock Option unless and until
such approval is obtained. In the case of an Incentive Stock Option, the terms and conditions of
such grant shall be subject to and comply with such rules as may be prescribed by Section 422 of
the Code. If for any reason an Option intended to be an Incentive Stock Option (or any portion
thereof) shall not qualify as an Incentive Stock Option, then, to the extent of such
non-qualification, such Option or portion thereof shall be regarded as a Nonqualified Stock Option
appropriately granted under the Plan.




          (b) Exercise Price. Except as otherwise provided by the Committee in the case of
Substitute Awards, the exercise price (“Exercise Price”) per share of Common Stock for each
Option shall not be less than 100% of the Fair Market Value of such share (determined as of the
Date of Grant); provided, however, that in the case of an Incentive




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Stock Option granted to an
employee who, at the time of the grant of such Option, owns stock representing more than 10% of the
voting power of all classes of stock of the Company or any Affiliate, the Exercise Price per share
shall not be less than 110% of the Fair Market Value per share on the Date of Grant; and provided,
further, that a Nonqualified Stock Option may be granted with an Exercise Price lower than that set
forth herein if such option is granted pursuant to an assumption or substitution for another option
in a manner satisfying the provisions of Section 424(a) and Section 409A of the Code.




          (c) Vesting and Expiration. Options shall vest and become exercisable in such manner
and on such date or dates determined by the Committee and shall expire after such period, not to
exceed ten years, as may be determined by the Committee (the “Option Period”); provided, however,
that the Option Period shall not exceed five years from the Date of Grant in the case of an
Incentive Stock Option granted to a Participant who on the Date of Grant owns stock representing
more than 10% of the voting power of all classes of stock of the Company or any Affiliate;
provided, further, that notwithstanding any vesting dates set by the Committee, the Committee may,
in its sole discretion, accelerate the exercisability of any Option. Unless otherwise provided by
the Committee in an Award agreement: (i) an Option shall vest and become exercisable with respect
to 25% of the shares of Common Stock subject to such Option on each of the first four anniversaries
of the Date of Grant; (ii) the unvested portion of an Option shall expire upon termination of
employment or service of the Participant granted the Option, and the vested portion of such Option
shall remain exercisable for (A) one year following termination of employment or service by reason
of such Participant’s death or disability (as determined by the Committee), but not later than the
expiration of the Option Period or (B) 90 days following termination of employment or service for
any reason other than such Participant’s death or disability, and other than such Participant’s
termination of employment or service for Cause, but not later than the expiration of the Option
Period; and (iii) both the unvested and the vested portion of an Option shall expire upon the
termination of the Participant’s employment or service by the Company or any Affiliate for Cause.




          (d) Method of Exercise and Form of Payment. No shares of Common Stock shall be
delivered pursuant to any exercise of an Option until payment in full of the Exercise Price
therefor is received by the Company and the Participant has paid to the Company an amount equal to
any federal, state, local and non-U.S. income and employment taxes required to be withheld.
Options that have become exercisable may be exercised by delivery of written or electronic notice
of exercise to the Company in accordance with the terms of the Option accompanied by payment of the
Exercise Price. The Exercise Price shall be payable (i) in cash, check, cash equivalent and/or
shares of Common Stock valued at the Fair Market Value at the time the Option is exercised
(including, pursuant to procedures approved by the Committee, by means of attestation of ownership
of a sufficient number of shares of Common Stock in lieu of actual delivery of such shares to the
Company); provided, that such shares of Common Stock are Mature Shares; and (ii) by such other
method as the Committee may permit in its sole discretion, including without limitation: (A) in
other property having a fair market value on the date




12









 




of exercise equal to the Exercise Price or
(B) if there is a public market for the shares of Common Stock at such time, by means of a
broker-assisted “cashless exercise” pursuant to which the Company is delivered a copy of
irrevocable instructions to a stockbroker to sell the shares of Common Stock otherwise deliverable
upon the exercise of the Option and to deliver promptly to the Company an amount equal to the
Exercise Price or (C) by a “net exercise” method whereby the Company withholds from the delivery of
the shares of Common Stock for which the Option was exercised that number of shares of Common Stock
having a Fair Market Value equal to the aggregate Exercise Price for the shares of Common Stock for
which the Option was exercised. Any fractional shares of Common Stock shall be settled in cash.




          (e) Notification upon Disqualifying Disposition of an Incentive Stock Option. Each
Participant awarded an Incentive Stock Option under the Plan shall notify the Company in writing
immediately after the date he makes a disqualifying disposition of any Common Stock acquired
pursuant to the exercise of such Incentive Stock Option. A disqualifying disposition is any
disposition (including, without limitation, any sale) of such Common Stock before the later of (A)
two years after the Date of Grant of the Incentive Stock Option or (B) one year after the date of
exercise of the Incentive Stock Option.




          (f) Compliance With Laws, etc. Notwithstanding the foregoing, in no event shall a
Participant be permitted to exercise an Option in a manner that the Committee determines would
violate the Sarbanes-Oxley Act of 2002, or any other applicable law or the applicable rules and
regulations of the SEC or the applicable rules and regulations of any securities exchange or
inter-dealer quotation system on which the securities of the Company are listed or traded.




     8. Stock Appreciation Rights. 



          (a) Generally. Each SAR granted under the Plan shall be evidenced by an Award
agreement (whether in paper or electronic medium (including email or the posting on a web site
maintained by the Company or a third party under contract with the
Company)). Each SAR so granted shall be subject to the conditions set forth in this Section
8, and to such other conditions not inconsistent with the Plan as may be reflected in the
applicable Award agreement. Any Option granted under the Plan may include tandem SARs. The
Committee also may award SARs to Eligible Persons independent of any Option.




          (b) Vesting and Expiration. A SAR granted in connection with an Option shall become
exercisable and shall expire according to the same vesting schedule and expiration provisions as
the corresponding Option. A SAR granted independent of an Option shall vest and become exercisable
and shall expire in such manner and on such date or dates determined by the Committee and shall
expire after such period, not to exceed ten years, as may be determined by the Committee (the
“SAR Period”); provided, however, that notwithstanding any vesting dates set by the
Committee, the Committee may, in its sole discretion, accelerate the exercisability of any SAR.
Unless otherwise




13









 




provided by the Committee in an Award agreement: (i) a SAR shall vest and become
exercisable with respect to 25% of the shares of Common Stock subject to such SAR on each of the
first four anniversaries of the Date of Grant; (ii) the unvested portion of a SAR shall expire upon
termination of employment or service of the Participant granted the SAR, and the vested portion of
such SAR shall remain exercisable for (A) one year following termination of employment or service
by reason of such Participant’s death or disability (as determined by the Committee), but not later
than the expiration of the SAR Period or (B) 90 days following termination of employment or service
for any reason other than such Participant’s death or disability, and other than such Participant’s
termination of employment or service for Cause, but not later than the expiration of the SAR
Period; and (iii) both the unvested and the vested portion of a SAR shall expire upon the
termination of the Participant’s employment or service by the Company for Cause.




          (c) Method of Exercise. SARs that have become exercisable may be exercised by
delivery of written or electronic notice of exercise to the Company in accordance with the terms of
the Award, specifying the number of SARs to be exercised and the date on which such SARs were
awarded. Notwithstanding the foregoing, if on the last day of the Option Period (or in the case of
a SAR independent of an option, the SAR Period), the Fair Market Value exceeds the Strike Price,
the Participant has not exercised the SAR or the corresponding Option (if applicable), and neither
the SAR nor the corresponding Option (if applicable) has expired, such SAR shall be deemed to have
been exercised by the Participant on such last day and the Company shall make the appropriate
payment therefor.




          (d) Payment. Upon the exercise of a SAR, the Company shall pay to the Participant an
amount equal to the number of shares subject to the SAR that are being exercised multiplied by the
excess, if any, of the Fair Market Value of one share of Common Stock on the exercise date over the
Strike Price, less an amount equal to any federal, state, local and non-U.S. income and employment
taxes required to be withheld. The Company shall pay such amount in cash, in shares of Common
Stock valued at Fair
Market Value, or any combination thereof, as determined by the Committee. Any fractional
shares of Common Stock shall be settled in cash.




     9. Restricted Stock and Restricted Stock Units.



          (a) Generally. Each grant of Restricted Stock and Restricted Stock Units shall be
evidenced by an Award agreement (whether in paper or electronic medium (including email or the
posting on a web site maintained by the Company or a third party under contract with the Company)).
Each such grant shall be subject to the conditions set forth in this Section 9, and to such other
conditions not inconsistent with the Plan as may be reflected in the applicable Award agreement.




          (b) Stock Certificates; Escrow or Similar Arrangement. Upon the grant of Restricted
Stock, the Committee shall cause a stock certificate registered in the name of the Participant to
be issued and, if the Committee determines that the Restricted




14









 




Stock shall be held by the Company
or in escrow rather than delivered to the Participant pending the release of the applicable
restrictions, the Committee may require the Participant to additionally execute and deliver to the
Company (i) an escrow agreement satisfactory to the Committee, if applicable, and (ii) the
appropriate stock power (endorsed in blank) with respect to the Restricted Stock covered by such
agreement. If a Participant shall fail to execute an agreement evidencing an Award of Restricted
Stock and, if applicable, an escrow agreement and blank stock power within the amount of time
specified by the Committee, the Award shall be null and void. Subject to the restrictions set
forth in this Section 9 and the applicable Award agreement, the Participant generally shall have
the rights and privileges of a stockholder as to such Restricted Stock, including without
limitation the right to vote such Restricted Stock. To the extent shares of Restricted Stock are
forfeited, any stock certificates issued to the Participant evidencing such shares shall be
returned to the Company, and all rights of the Participant to such shares and as a stockholder with
respect thereto shall terminate without further obligation on the part of the Company.




          (c) Vesting; Acceleration of Lapse of Restrictions. Unless otherwise provided by the
Committee in an Award agreement: (i) the Restricted Period shall lapse with respect to 25% of the
Restricted Stock and Restricted Stock Units on each of the first four anniversaries of the Date of
Grant; and (ii) the unvested portion of Restricted Stock and Restricted Stock Units shall terminate
and be forfeited upon termination of employment or service of the Participant granted the
applicable Award.




          (d) Delivery of Restricted Stock and Settlement of Restricted Stock Units. (i) Upon
the expiration of the Restricted Period with respect to any shares of Restricted Stock, the
restrictions set forth in the applicable Award agreement shall be of no further force or effect
with respect to such shares, except as set forth in the applicable Award agreement. If an escrow
arrangement is used, upon such expiration, the Company shall deliver to the Participant, or his
beneficiary, without charge, the stock certificate evidencing the shares of Restricted Stock that
have not then been forfeited and with respect to which the Restricted Period has expired (rounded
down to the nearest full
share). Dividends, if any, that may have been withheld by the Committee and attributable to
any particular share of Restricted Stock shall be distributed to the Participant in cash or, at the
sole discretion of the Committee, in shares of Common Stock having a Fair Market Value equal to the
amount of such dividends, upon the release of restrictions on such share and, if such share is
forfeited, the Participant shall have no right to such dividends (except as otherwise set forth by
the Committee in the applicable Award agreement). (ii) Unless otherwise provided by the Committee
in an Award agreement, upon the expiration of the Restricted Period with respect to any outstanding
Restricted Stock Units, the Company shall deliver to the Participant, or his beneficiary, without
charge, one share of Common Stock for each such outstanding Restricted Stock Unit; provided,
however, that the Committee may, in its sole discretion, elect to (i) pay cash or part cash and
part Common Stock in lieu of delivering only shares of Common Stock in respect of such Restricted
Stock Units or (ii) defer the delivery of Common Stock (or cash or part Common Stock and part cash,
as the case may be) beyond the expiration of the Restricted Period. If a cash payment is made in
lieu of




15









 




delivering shares of Common Stock, the amount of such payment shall be equal to the Fair
Market Value of the Common Stock as of the date on which the Restricted Period lapsed with respect
to such Restricted Stock Units, less an amount equal to any federal, state, local and non-U.S.
income and employment taxes required to be withheld.




          (e) Legends on Restricted Stock. Each certificate representing Restricted Stock
awarded under the Plan shall bear a legend substantially in the form of the following in addition
to any other information the Company deems appropriate until the lapse of all restrictions with
respect to such Common Stock:



TRANSFER OF THIS CERTIFICATE AND THE SHARES REPRESENTED HEREBY IS RESTRICTED PURSUANT TO THE TERMS
OF THE MEDQUIST HOLDINGS INC.2010 EQUITY INCENTIVE PLAN AND A RESTRICTED STOCK AWARD AGREEMENT,
BETWEEN MEDQUIST HOLDINGS INC.AND THE PARTICIPANT. A COPY OF SUCH PLAN AND AWARD AGREEMENT IS ON
FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF MEDQUIST HOLDINGS INC.




     10. Stock Bonus Awards; Dividend Equivalents.



          (a) Bonus Awards. The Committee may issue unrestricted Common Stock, or other Awards
denominated in Common Stock, under the Plan to Eligible Persons, either alone or in tandem with
other awards, in such amounts as the Committee shall from time to time in its sole discretion
determine. Each Stock Bonus Award granted under the Plan shall be evidenced by an Award agreement
(whether in paper or electronic medium (including email or the posting on a web site maintained by
the Company or a third party under contract with the Company)). Each Stock Bonus Award so granted
shall be subject to such conditions not inconsistent with the Plan as may be reflected in the
applicable Award agreement.




          (b) Dividend Equivalents. Dividend Equivalents may be granted by the Committee based
on dividends declared on the Common Stock, to be credited as of
dividend payment dates during the period between the date an Award is granted to a Participant
and the date such Award vests, is exercised, is distributed or expires, as determined by the
Committee. Such Dividend Equivalents shall be converted to cash or additional shares of Common
Stock by such formula and at such time and subject to such limitations as may be determined by the
Committee. No Dividend Equivalent shall be payable with respect to any Award unless specified by
the Committee in the Award agreement.




     11. Performance Compensation Awards.



          (a) Generally. The Committee shall have the authority, at the time of grant of any
Award described in Sections 7 through 10 of the Plan, to designate such Award as a Performance
Compensation Award intended to qualify as “performance-based compensation” under Section 162(m) of
the Code. The Committee shall have the authority to make an award of a cash bonus to any
Participant and designate such Award




16









 




as a Performance Compensation Award intended to qualify as
“performance-based compensation” under Section 162(m) of the Code.




          (b) Discretion of Committee with Respect to Performance Compensation Awards. With
regard to a particular Performance Period, the Committee shall have sole discretion to select the
length of such Performance Period, the type(s) of Performance Compensation Awards to be issued, the
Performance Criteria that will be used to establish the Performance Goal(s), the kind(s) and/or
level(s) of the Performance Goals(s) that is (are) to apply and the Performance Formula. Within
the first 90 days of a Performance Period (or, if longer or shorter, within the maximum period
allowed under Section 162(m) of the Code), the Committee shall, with regard to the Performance
Compensation Awards to be issued for such Performance Period, exercise its discretion with respect
to each of the matters enumerated in the immediately preceding sentence and record the same in
writing.




          (c) Performance Criteria. The Performance Criteria that will be used to establish the
Performance Goal(s) shall be based on the attainment of specific levels of performance of the
Company (and/or one or more Affiliates, divisions or operational units, or any combination of the
foregoing) and shall include the following: (i) net earnings or net income (before or after taxes);
(ii) basic or diluted earnings per share (before or after taxes); (iii) net revenue or revenue
growth; (iv) net interest margin; (v) operating profit (before or after taxes); (vi) return
measures (including, but not limited to, return on assets or equity); (vii) cash flow (including,
but not limited to, operating cash flow and free cash flow); (viii) share price (including, but not
limited to, growth measures and total stockholder return); (ix) expense targets; (x) margins; (xi)
operating efficiency; (xii) measures of economic value added; (xiii) asset quality; (xiv)
enterprise value; (xv) employee retention; (xvi) objective measures of personal targets, goals or
completion of projects; (xvii) asset growth; (xviii) dividend yield; or (xix) any combination of
the foregoing. Any one or more of the Performance Criteria may be used on an absolute or relative
basis to measure the performance of the Company and/or one or more Affiliates as a whole or any
business unit(s) of the Company and/or one or more Affiliates or any
combination thereof, as the Committee may deem appropriate, or any of the above Performance
Criteria may be compared to the performance of a selected group of comparison companies, or a
published or special index that the Committee, in its sole discretion, deems appropriate, or as
compared to various stock market indices. The Committee also has the authority to provide for
accelerated vesting of any Award based on the achievement of Performance Goals pursuant to the
Performance Criteria specified in this paragraph. To the extent required under Section 162(m) of
the Code, the Committee shall, within the first 90 days of a Performance Period (or, if longer or
shorter, within the maximum period allowed under Section 162(m) of the Code), define in an
objective fashion the manner of calculating the Performance Criteria it selects to use for such
Performance Period and thereafter promptly communicate such Performance Criteria to the
Participant.




          (d) Modification of Performance Goal(s). In the event that applicable tax and/or
securities laws change to permit Committee discretion to alter the governing




17









 




Performance Criteria
without obtaining stockholder approval of such alterations, the Committee shall have sole
discretion to make such alterations without obtaining stockholder approval. The Committee is
authorized at any time during the first 90 days of a Performance Period (or, if longer or shorter,
within the maximum period allowed under Section 162(m) of the Code), or at any time thereafter to
the extent the exercise of such authority at such time would not cause the Performance Compensation
Awards granted to any Participant for such Performance Period to fail to qualify as
“performance-based compensation” under Section 162(m) of the Code, in its sole discretion, to
adjust or modify the calculation of a Performance Goal for such Performance Period, based on and in
order to appropriately reflect the following events: (i) asset write-downs; (ii) litigation or
claim judgments or settlements; (iii) the effect of changes in tax laws, accounting principles, or
other laws or regulatory rules affecting reported results; (iv) any reorganization and
restructuring programs; (v) extraordinary nonrecurring items as described in Accounting Principles
Board Opinion No. 30 (or any successor pronouncement thereto) and/or in management’s discussion and
analysis of financial condition and results of operations appearing in the Company’s annual report
to stockholders for the applicable year; (vi) acquisitions or divestitures; (vii) any other
specific unusual or nonrecurring events, or objectively determinable category thereof; (viii)
foreign exchange gains and losses; and (ix) a change in the Company’s fiscal year.




          (e) Payment of Performance Compensation Awards.




               (i) Condition to Receipt of Payment. Unless otherwise provided in the applicable
Award agreement, a Participant must be employed by the Company on the last day of a Performance
Period to be eligible for payment in respect of a Performance Compensation Award for such
Performance Period.



               (ii) Limitation. A Participant shall be eligible to receive payment in respect of a
Performance Compensation Award only to the extent that: (A) the Performance Goals for such period
are achieved; and (B) all or some of the portion of such Participant’s Performance Compensation
Award has been earned for the
Performance Period based on the application of the Performance Formula to such achieved
Performance Goals.



               (iii) Certification. Following the completion of a Performance Period, the Committee
shall review and certify in writing whether, and to what extent, the Performance Goals for the
Performance Period have been achieved and, if so, calculate and certify in writing that amount of
the Performance Compensation Awards earned for the period based upon the Performance Formula. The
Committee shall then determine the amount of each Participant’s Performance Compensation Award
actually payable for the Performance Period and, in so doing, may apply Negative Discretion.



               (iv) Use of Negative Discretion. In determining the actual amount of an individual
Participant’s Performance Compensation Award for a Performance Period, the Committee may reduce or
eliminate the amount of the Performance Compensation Award earned under the Performance Formula in
the



18









 







Performance Period through the use of Negative Discretion if, in its sole judgment, such
reduction or elimination is appropriate. The Committee shall not have the discretion, except as is
otherwise provided in the Plan, to (A) grant or provide payment in respect of Performance
Compensation Awards for a Performance Period if the Performance Goals for such Performance Period
have not been attained; or (B) increase a Performance Compensation Award above the applicable
limitations set forth in Section 5 of the Plan.



          (f) Timing of Award Payments. Performance Compensation Awards granted for a
Performance Period shall be paid to Participants as soon as administratively practicable following
completion of the certifications required by this Section 11, but in no event later than
two-and-one-half months following the end of the fiscal year during which the Performance Period is
completed.




     12. Changes in Capital Structure and Similar Events. In the event
of (a) any dividend or other distribution (whether in the form of cash, shares
of Common Stock, other securities or other property), recapitalization, stock split, reverse stock
split, reorganization, merger, consolidation, split-up, split-off, combination, repurchase or
exchange of shares of Common Stock or other securities of the Company, issuance of warrants or
other rights to acquire shares of Common Stock or other securities of the Company, or other similar
corporate transaction or event (including, without limitation, a Change in Control) that affects
the shares of Common Stock, or (b) unusual or nonrecurring events (including, without limitation, a
Change in Control) affecting the Company, any Affiliate, or the financial statements of the Company
or any Affiliate, or changes in applicable rules, rulings, regulations or other requirements of any
governmental body or securities exchange or inter-dealer quotation system, accounting principles or
law, such that in either case an adjustment is determined by the Committee in its sole discretion
to be necessary or appropriate, then the Committee shall make any such adjustments in such manner
as it may deem equitable, including without limitation any or all of the following:



               (i) adjusting any or all of (A) the number of shares of Common Stock or other securities of
the Company (or number and kind of other securities or other property) that may be delivered in
respect of Awards or with respect to which Awards may be granted under the Plan (including, without
limitation, adjusting any or all of the limitations under Section 5 of the Plan) and (B) the terms
of any outstanding Award, including, without limitation, (1) the number of shares of Common Stock
or other securities of the Company (or number and kind of other securities or other property)
subject to outstanding Awards or to which outstanding Awards relate, (2) the Exercise Price or
Strike Price with respect to any Award or (3) any applicable performance measures (including,
without limitation, Performance Criteria and Performance Goals);



               (ii) providing for a substitution or assumption of Awards, accelerating the exercisability of,
lapse of restrictions on, or termination of, Awards or providing for a period of time for exercise
prior to the occurrence of such event; and



19









 





               (iii) cancelling any one or more outstanding Awards and causing to be paid to the holders
thereof, in cash, shares of Common Stock, other securities or other property, or any combination
thereof, the value of such Awards, if any, as determined by the Committee (which if applicable may
be based upon the price per share of Common Stock received or to be received by other stockholders
of the Company in such event), including without limitation, in the case of an outstanding Option
or SAR, a cash payment in an amount equal to the excess, if any, of the Fair Market Value (as of a
date specified by the Committee) of the shares of Common Stock subject to such Option or SAR over
the aggregate Exercise Price or Strike Price of such Option or SAR, respectively (it being
understood that, in such event, any Option or SAR having a per share Exercise Price or Strike Price
equal to, or in excess of, the Fair Market Value of a share of Common Stock subject thereto may be
canceled and terminated without any payment or consideration therefor);


provided, however, that in the case of any “equity restructuring” (within the meaning of the
Financial Accounting Standards Board Statement of Financial Accounting Standards No. 123 (revised
2004)), the Committee shall make an equitable or proportionate adjustment to outstanding Awards to
reflect such equity restructuring. Any adjustment in Incentive Stock Options under this Section 12
(other than any cancellation of Incentive Stock Options) shall be made only to the extent not
constituting a “modification” within the meaning of Section 424(h)(3) of the Code, and any
adjustments under this Section 12 shall be made in a manner that does not adversely affect the
exemption provided pursuant to Rule 16b-3 under the Exchange Act, to the extent applicable. The
Company shall give each Participant notice of an adjustment hereunder and, upon notice, such
adjustment shall be conclusive and binding for all purposes.




     13. Effect of Change in Control. Except to the extent otherwise provided in an Award agreement, in the event of a Change in
Control, notwithstanding any provision of the Plan to the contrary, the
Committee may provide that, with respect to all or any portion of a particular outstanding
Award or Awards:



          (a) the then outstanding Options and SARs shall become immediately exercisable as of a time
prior to the Change in Control;




          (b) the Restricted Period shall expire as of a time prior to the Change in Control (including
without limitation a waiver of any applicable Performance Goals);




          (c) Performance Periods in effect on the date the Change in Control occurs shall end on such
date, and (i) determine the extent to which Performance Goals with respect to each such Performance
Period have been met based upon such audited or unaudited financial information or other
information then available as it deems relevant and (ii) cause the Participant to receive partial
or full payment of Awards for each such Performance Period based upon the Committee’s determination
of the degree of attainment of the Performance Goals, or by assuming that the applicable “target”
levels of performance have been attained or on such other basis determined by the Committee; and




20









 








          (d) cause Awards previously deferred to be settled in full as soon as practicable.



To the extent practicable, any actions taken by the Committee under the immediately preceding
clauses (a) through (d) shall occur in a manner and at a time which allows affected Participants
the ability to participate in the Change in Control transactions with respect to the Common Stock
subject to their Awards.




     14. Amendments and Termination. 



          (a) Amendment and Termination of the Plan. The Board may amend, alter, suspend,
discontinue, or terminate the Plan or any portion thereof at any time; provided, that (i) no
amendment to Section 11(c) or Section 14(b) (to the extent required by the proviso in such Section
14(b)) shall be made without stockholder approval and (ii) no such amendment, alteration,
suspension, discontinuation or termination shall be made without stockholder approval if such
approval is necessary to comply with any tax or regulatory requirement applicable to the Plan
(including, without limitation, as necessary to comply with any rules or requirements of any
securities exchange or inter-dealer quotation system on which the shares of Common Stock may be
listed or quoted or to prevent the Company from being denied a tax deduction under Section 162(m)
of the Code); provided, further, that any such amendment, alteration, suspension, discontinuance or
termination that would materially and adversely affect the rights of any Participant or any holder
or beneficiary of any Award theretofore granted shall not to that extent be effective without the
consent of the affected Participant, holder or beneficiary.




          (b) Amendment of Award Agreements. The Committee may, to the extent consistent with
the terms of any applicable Award agreement, waive any conditions or rights under, amend any terms
of, or alter, suspend, discontinue, cancel or
terminate, any Award theretofore granted or the associated Award agreement, prospectively or
retroactively; provided that any such waiver, amendment, alteration, suspension, discontinuance,
cancellation or termination that would materially and adversely affect the rights of any
Participant with respect to any Award theretofore granted shall not to that extent be effective
without the consent of the affected Participant; provided, further, that without stockholder
approval, except as otherwise permitted under Section 12 of the Plan, (i) no amendment or
modification may reduce the Exercise Price of any Option or the Strike Price of any SAR, and (ii)
the Committee may not cancel any outstanding Option or SAR in order to replace it with a new
Option, SAR or other Award, and the Committee may not take any other action that is considered a
“repricing” for purposes of the stockholder approval rules of the applicable securities exchange or
inter-dealer quotation system on which the Common Stock is listed or quoted.




          (c) Extension of Termination Date. A Participant’s Award agreement may provide that
if the exercise of the Option following the termination of the Participant’s employment or service
(other than upon the Participant’s death or disability) would be prohibited at any time solely
because the issuance of shares of Common Stock




21









 




would violate the registration requirements under
the Securities Act, or any other requirements of applicable law, then the Option shall terminate on
the earlier of (i) the expiration of the term of the Option set forth in Section 7(c), or (ii) the
expiration of a period of 90 days after the termination of the Participant’s employment or service
during which the exercise of the Option would not be in violation of such registration requirements
or other applicable requirements.




          (d) Restriction on Grant of Awards. No Awards may be granted during any period of
suspension or after termination of the Plan, and in no event may any Award be granted under the
Plan after the tenth anniversary of the Effective Date.




     15. General.



          (a) Award Agreements. Each Award under the Plan shall be evidenced by an Award
agreement, which shall be delivered to the Participant (whether in paper or electronic medium
(including email or the posting on a web site maintained by the Company or a third party under
contract with the Company)) and shall specify the terms and conditions of the Award and any rules
applicable thereto, including without limitation, the effect on such Award of the death, disability
or termination of employment or service of a Participant, or of such other events as may be
determined by the Committee.




          (b) Nontransferability.




               (i) Each Award shall be exercisable only by a Participant during the Participant’s lifetime,
or, if permissible under applicable law, by the Participant’s legal guardian or representative. No
Award may be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by
a Participant other than
by will or by the laws of descent and distribution and any such purported assignment,
alienation, pledge, attachment, sale, transfer or encumbrance shall be void and unenforceable
against the Company or an Affiliate; provided that the designation of a beneficiary shall not
constitute an assignment, alienation, pledge, attachment, sale, transfer or encumbrance.



               (ii) Notwithstanding the foregoing, the Committee may, in its sole discretion, permit Awards
(other than Incentive Stock Options) to be transferred by a Participant, without consideration,
subject to such rules as the Committee may adopt consistent with any applicable Award agreement to
preserve the purposes of the Plan, to: (A) any person who is a “family member” of the Participant,
as such term is used in the instructions to Form S-8 under the Securities Act (collectively, the
“Immediate Family Members”); (B) a trust solely for the benefit of the Participant and his or her
Immediate Family Members; or (C) a partnership or limited liability company whose only partners or
stockholders are the Participant and his or her Immediate Family Members; or (D) any other
transferee as may be approved either (I) by the Board or the Committee in its sole discretion, or
(II) as provided in the applicable Award agreement (each transferee described in clauses (A), (B)
(C) and (D) above is hereinafter referred to as a “Permitted Transferee”); provided, that the
Participant gives the Committee advance written notice



22









 







describing the terms and conditions of the
proposed transfer and the Committee notifies the Participant in writing that such a transfer would
comply with the requirements of the Plan.



               (iii) The terms of any Award transferred in accordance with the immediately preceding sentence
shall apply to the Permitted Transferee and any reference in the Plan, or in any applicable Award
agreement, to a Participant shall be deemed to refer to the Permitted Transferee, except that (A)
Permitted Transferees shall not be entitled to transfer any Award, other than by will or the laws
of descent and distribution; (B) Permitted Transferees shall not be entitled to exercise any
transferred Option unless there shall be in effect a registration statement on an appropriate form
covering the shares of Common Stock to be acquired pursuant to the exercise of such Option if the
Committee determines, consistent with any applicable Award agreement, that such a registration
statement is necessary or appropriate; (C) the Committee or the Company shall not be required to
provide any notice to a Permitted Transferee, whether or not such notice is or would otherwise have
been required to be given to the Participant under the Plan or otherwise; and (D) the consequences
of the termination of the Participant’s employment by, or services to, the Company or an Affiliate
under the terms of the Plan and the applicable Award agreement shall continue to be applied with
respect to the Participant, including, without limitation, that an Option shall be exercisable by
the Permitted Transferee only to the extent, and for the periods, specified in the Plan and the
applicable Award agreement.



          (c) Tax Withholding.




               (i) A Participant shall be required to pay to the Company or any Affiliate, and the Company or
any Affiliate shall have the right and is hereby
authorized to withhold, from any cash, shares of Common Stock, other securities or other
property deliverable under any Award or from any compensation or other amounts owing to a
Participant, the amount (in cash, Common Stock, other securities or other property) of any required
withholding taxes in respect of an Award, its exercise, or any payment or transfer under an Award
or under the Plan and to take such other action as may be necessary in the opinion of the Committee
or the Company to satisfy all obligations for the payment of such withholding and taxes.



               (ii) Without limiting the generality of clause (i) above, the Committee may, in its sole
discretion, permit a Participant to satisfy, in whole or in part, the foregoing withholding
liability by (A) the delivery of shares of Common Stock (which are Mature Shares) owned by the
Participant having a Fair Market Value equal to such withholding liability or (B) having the
Company withhold from the number of shares of Common Stock otherwise issuable or deliverable
pursuant to the exercise or settlement of the Award a number of shares with a Fair Market Value
equal to such withholding liability (but no more than the minimum required statutory withholding
liability).



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          (d) No Claim to Awards; No Rights to Continued Employment; Waiver. No employee of the
Company or an Affiliate, or other person, shall have any claim or right to be granted an Award
under the Plan or, having been selected for the grant of an Award, to be selected for a grant of
any other Award. There is no obligation for uniformity of treatment of Participants or holders or
beneficiaries of Awards. The terms and conditions of Awards and the Committee’s determinations and
interpretations with respect thereto need not be the same with respect to each Participant and may
be made selectively among Participants, whether or not such Participants are similarly situated.
Neither the Plan nor any action taken hereunder shall be construed as giving any Participant any
right to be retained in the employ or service of the Company or an Affiliate, nor shall it be
construed as giving any Participant any rights to continued service on the Board. The Company or
any of its Affiliates may at any time dismiss a Participant from employment or discontinue any
consulting relationship, free from any liability or any claim under the Plan, unless otherwise
expressly provided in the Plan or any Award agreement. By accepting an Award under the Plan, a
Participant shall thereby be deemed to have waived any claim to continued exercise or vesting of an
Award or to damages or severance entitlement related to non-continuation of the Award beyond the
period provided under the Plan or any Award agreement, notwithstanding any provision to the
contrary in any written employment contract or other agreement between the Company and its
Affiliates and the Participant, whether any such agreement is executed before, on or after the Date
of Grant.




          (e) International Participants. With respect to Participants who reside or work
outside of the United States of America and who are not (and who are not expect to be) “covered
employees” within the meaning of Section 162(m) of the Code, the Committee may in its sole
discretion amend the terms of the Plan or outstanding Awards with respect to such Participants in
order to conform such terms with the requirements of
local law or to obtain more favorable tax or other treatment for a Participant, the Company or
its Affiliates.




          (f) Designation and Change of Beneficiary. Each Participant may file with the
Committee a written designation of one or more persons as the beneficiary(ies) who shall be
entitled to receive the amounts payable with respect to an Award, if any, due under the Plan upon
his death. A Participant may, from time to time, revoke or change his beneficiary designation
without the consent of any prior beneficiary by filing a new designation with the Committee. The
last such designation received by the Committee shall be controlling; provided, however, that no
designation, or change or revocation thereof, shall be effective unless received by the Committee
prior to the Participant’s death, and in no event shall it be effective as of a date prior to such
receipt. If no beneficiary designation is filed by a Participant, the beneficiary shall be deemed
to be his or her spouse or, if the Participant is unmarried at the time of death, his or her
estate.




          (g) Termination of Employment/Service. Unless determined otherwise by the Committee
at any point following such event: (i) neither a temporary absence from employment or service due
to illness, vacation or leave of absence nor a transfer from employment or service with the Company
to employment or service with an Affiliate (or




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vice-versa) shall be considered a termination of
employment or service with the Company or an Affiliate; and (ii) if a Participant’s employment with
the Company and its Affiliates terminates, but such Participant continues to provide services to
the Company and its Affiliates in a non-employee capacity (or vice-versa), such change in status
shall not be considered a termination of employment with the Company or an Affiliate.




          (h) No Rights as a Stockholder. Except as otherwise specifically provided in the Plan
or any Award agreement, no person shall be entitled to the privileges of ownership in respect of
shares of Common Stock that are subject to Awards hereunder until such shares have been issued or
delivered to that person.




          (i) Government and Other Regulations.




               (i) The obligation of the Company to settle Awards in Common Stock or other consideration
shall be subject to all applicable laws, rules, and regulations, and to such approvals by
governmental agencies as may be required. Notwithstanding any terms or conditions of any Award to
the contrary, the Company shall be under no obligation to offer to sell or to sell, and shall be
prohibited from offering to sell or selling, any shares of Common Stock pursuant to an Award unless
such shares have been properly registered for sale pursuant to the Securities Act with the SEC or
unless the Company has received an opinion of counsel, satisfactory to the Company, that such
shares may be offered or sold without such registration pursuant to an available exemption
therefrom and the terms and conditions of such exemption have been fully complied with. The
Company shall be under no obligation to register for sale under the Securities Act any of the
shares of Common Stock to be offered or sold under the Plan. The Committee shall have the
authority to provide that all certificates for shares of Common Stock or other securities of the
Company or any Affiliate delivered under the
Plan shall be subject to such stop transfer orders and other restrictions as the Committee may
deem advisable under the Plan, the applicable Award agreement, the federal securities laws, or the
rules, regulations and other requirements of the SEC, any securities exchange or inter-dealer
quotation system upon which such shares or other securities are then listed or quoted and any other
applicable federal, state, local or non-U.S. laws, and, without limiting the generality of Section
9 of the Plan, the Committee may cause a legend or legends to be put on any such certificates to
make appropriate reference to such restrictions. Notwithstanding any provision in the Plan to the
contrary, the Committee reserves the right to add any additional terms or provisions to any Award
granted under the Plan that it in its sole discretion deems necessary or advisable in order that
such Award complies with the legal requirements of any governmental entity to whose jurisdiction
the Award is subject.



               (ii) The Committee may cancel an Award or any portion thereof if it determines, in its sole
discretion, that legal or contractual restrictions and/or blockage and/or other market
considerations would make the Company’s acquisition of shares of Common Stock from the public
markets, the Company’s issuance of Common Stock to the Participant, the Participant’s acquisition
of Common Stock from the Company and/or the Participant’s sale of Common Stock to the public
markets, illegal,



25









 







impracticable or inadvisable. If the Committee determines to cancel all or any
portion of an Award in accordance with the foregoing, the Company shall pay to the Participant an
amount equal to the excess of (A) the aggregate Fair Market Value of the shares of Common Stock
subject to such Award or portion thereof canceled (determined as of the applicable exercise date,
or the date that the shares would have been vested or delivered, as applicable), over (B) the
aggregate Exercise Price or Strike Price (in the case of an Option or SAR, respectively) or any
amount payable as a condition of delivery of shares of Common Stock (in the case of any other
Award). Such amount shall be delivered to the Participant as soon as practicable following the
cancellation of such Award or portion thereof.



          (j) Payments to Persons Other Than Participants. If the Committee shall find that any
person to whom any amount is payable under the Plan is unable to care for his affairs because of
illness or accident, or is a minor, or has died, then any payment due to such person or his estate
(unless a prior claim therefor has been made by a duly appointed legal representative) may, if the
Committee so directs the Company, be paid to his spouse, child, relative, an institution
maintaining or having custody of such person, or any other person deemed by the Committee to be a
proper recipient on behalf of such person otherwise entitled to payment. Any such payment shall be
a complete discharge of the liability of the Committee and the Company therefor.



          (k) Nonexclusivity of the Plan. Neither the adoption of this Plan by the Board nor
the submission of this Plan to the stockholders of the Company for approval shall be construed as
creating any limitations on the power of the Board to adopt such other incentive arrangements as it
may deem desirable, including, without limitation, the granting of stock options or other awards
otherwise than under this Plan, and such arrangements may be either applicable generally or only in
specific cases.



          (l) No Trust or Fund Created. Neither the Plan nor any Award shall create or be
construed to create a trust or separate fund of any kind or a fiduciary relationship between the
Company or any Affiliate, on the one hand, and a Participant or other person or entity, on the
other hand. No provision of the Plan or any Award shall require the Company, for the purpose of
satisfying any obligations under the Plan, to purchase assets or place any assets in a trust or
other entity to which contributions are made or otherwise to segregate any assets, nor shall the
Company maintain separate bank accounts, books, records or other evidence of the existence of a
segregated or separately maintained or administered fund for such purposes. Participants shall
have no rights under the Plan other than as unsecured general creditors of the Company, except that
insofar as they may have become entitled to payment of additional compensation by performance of
services, they shall have the same rights as other employees under general law.




          (m) Reliance on Reports. Each member of the Committee and each member of the Board
shall be fully justified in acting or failing to act, as the case may be, and shall not be liable
for having so acted or failed to act in good faith, in reliance upon any report made by the
independent public accountant of the Company and its Affiliates



26









 







and/or any other information
furnished in connection with the Plan by any agent of the Company or the Committee or the Board,
other than himself.



          (n) Relationship to Other Benefits. No payment under the Plan shall be taken into
account in determining any benefits under any pension, retirement, profit sharing, group insurance
or other benefit plan of the Company except as otherwise specifically provided in such other plan.




          (o) Governing Law. The Plan shall be governed by and construed in accordance with the
internal laws of the State of Delaware applicable to contracts made and performed wholly within the
State of Delaware, without giving effect to the conflict of laws provisions thereof.




          (p) Severability. If any provision of the Plan or any Award or Award agreement is or
becomes or is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to any
person or entity or Award, or would disqualify the Plan or any Award under any law deemed
applicable by the Committee, such provision shall be construed or deemed amended to conform to the
applicable laws, or if it cannot be construed or deemed amended without, in the determination of
the Committee, materially altering the intent of the Plan or the Award, such provision shall be
construed or deemed stricken as to such jurisdiction, person or entity or Award and the remainder
of the Plan and any such Award shall remain in full force and effect.




          (q) Obligations Binding on Successors. The obligations of the Company under the Plan
shall be binding upon any successor corporation or organization resulting from the merger,
consolidation or other reorganization of the Company, or upon any successor corporation or
organization succeeding to substantially all of the assets and business of the Company.




          (r) Code Section 162(m) Approval. If so determined by the Committee, (i) the Plan
shall be approved by the stockholders of the Company no later than the first meeting of
stockholders at which directors are to be elected that occurs after the close of the third calendar
year following the calendar year in which the Company’s initial public offering, if any, occurs,
and (ii) the provisions of the Plan regarding Performance Compensation Awards shall be disclosed
and reapproved by stockholders no later than the first stockholder meeting that occurs in the fifth
year following the year in which stockholders previously approved such provisions following the
Company’s initial public offering, if any, in each case in order for certain Awards granted after
such time to be exempt from the deduction limitations of Section 162(m) of the Code. Nothing in
this clause, however, shall affect the validity of Awards granted after such time if such
stockholder approval has not been obtained.




          (s) Expenses; Gender; Titles and Headings. The expenses of administering the Plan
shall be borne by the Company and its Affiliates. Masculine pronouns and other words of masculine
gender shall refer to both men and women. The titles and headings of the sections in the Plan are
for convenience of reference only, and



27









 







in the event of any conflict, the text of the Plan, rather
than such titles or headings shall control.



          (t) Other Agreements. Notwithstanding the above, the Committee may require, as a
condition to the grant of and/or the receipt of shares of Common Stock under an Award, that the
Participant execute lock-up, stockholder or other agreements, as it may determine in its sole and
absolute discretion.




          (u) Payments. Participants shall be required to pay, to the extent required by
applicable law, any amounts required to receive shares of Common Stock under any Award made under
the Plan.




          (v) Non-Qualified Deferred Compensation. To the extent applicable and notwithstanding
any other provision of this Plan, this Plan and Awards hereunder shall be administered, operated
and interpreted in accordance with Section 409A of the Code. Notwithstanding any provision of the
Plan to the contrary, in the event that the Committee determines that any amounts payable hereunder
will be taxable to a Participant under Section 409A of the Code prior to the payment and/or
delivery to such Participant of such amount, the Company may (i) adopt such amendments to the Plan
and related Award agreement, and appropriate policies and procedures, including amendments and
policies with retroactive effect, that the Committee determines necessary or appropriate to
preserve the intended tax treatment of the benefits provided by the Plan and Awards hereunder
and/or (ii) take such other actions as the Committee determines necessary or appropriate to comply
with the requirements of Section 409A of the Code. No action shall be taken under this Plan which
shall cause an Award to fail to comply with Section 409A of the Code, to the extent applicable to
such Award. However, in no event shall any member of the Board, the Company or any of their
respective Affiliates (including their respective employees, officers, directors or agents)
have any liability to any Participant (or any other person) with respect to this Section
15(v).



As adopted by the Board of Directors of the Company on December 17, 2010.




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