2006 Omnibus Stock and Incentive Plan


    EXHIBIT
      10.1

     

    UPSNAP,
      INC.

    2006
      OMNIBUS STOCK AND INCENTIVE PLAN

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    Table
      of Contents

     

    Page

    


    
      	
              Section
                1.

            	
              Purpose

            	
              1

            
	 	 	 
	
              Section
                2.

            	
              Definitions

            	
              1

            
	 	 	 
	
              Section
                3.

            	
              Administration

            	
              3

            
	
                  (a)

            	
              Power
                and Authority of the Committee

            	
              3

            
	
                  (b)

            	
              Power
                and Authority of the Board

            	
              4

            
	 	 	 
	
              Section
                4.

            	
              Shares
                Available for Awards

            	
              4

            
	
                  (a)

            	
              Shares
                Available

            	
              4

            
	
                  (b)

            	
              Accounting
                for Awards

            	
              5

            
	
                  (c)

            	
              Adjustments

            	
              5

            
	
                  (d)

            	
              Merger,
                Consolidation, Dissolution, or Liquidation

            	
              5

            
	 	 	 
	
              Section
                5.

            	
              Eligibility

            	
              6

            
	 	 	 
	
              Section
                6.

            	
              Awards

            	
              6

            
	
                  (a)

            	
              Options

            	
              6

            
	
                  (b)

            	
              Stock
                Appreciation Rights

            	
              7

            
	
                  (c)

            	
              Performance
                Awards

            	
              8

            
	
                  (d)

            	
              Dividend
                Equivalents

            	
              8

            
	
                  (e)

            	
              Other
                Stock Grants

            	
              8

            
	
                  (f)

            	
              General

            	
              9

            
	 	 	 
	
              Section
                7.

            	
              Amendment
                and Termination; Adjustments

            	
              10

            
	
                  (a)

            	
              Amendments
                to the Plan

            	
              10

            
	
                  (b)

            	
              Amendments
                to Awards

            	
              11

            
	
                  (c)

            	
              Correction
                of Defects, Omissions and Inconsistencies

            	
              11

            
	 	 	 
	
              Section
                8.

            	
              Income
                Tax Withholding

            	
              11

            
	 	 	 
	
              Section
                9.

            	
              General
                Provisions

            	
              11

            
	
                  (a)

            	
              No
                Rights to Awards

            	
              11

            
	
                  (b)

            	
              Award
                Agreements

            	
              11

            
	
                  (c)

            	
              Plan
                Provisions Control

            	
              12

            
	
                  (d)

            	
              No
                Rights of Shareholders

            	
              12

            
	
                  (e)

            	
              No
                Limit on Other Compensation Arrangements

            	
              12

            
	
                  (f)

            	
              No
                Right to Employment

            	
              12

            
	
                  (g)

            	
              Governing
                Law

            	
              12

            
	
                  (h)

            	
              Jurisdiction;
                Service of Process

            	
              12

            
	
                  (i)

            	
              Severability

            	
              12

            
	
                  (j)

            	
              No
                Trust or Fund Created

            	
              12

            
	
                  (k)

            	
              No
                Fractional Shares

            	
              13

            


    

     

    
      
        
        

      

      
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                  (l)

            	
              Headings

            	
              13

            
	 	 	 
	
              Section
                10.

            	
              Effective
                Date of the Plan

            	
              13

            
	 	 	 
	
              Section
                11.

            	
              Term
                of the Plan

            	
              13

            


    

     

    
      
        
        

      

      
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    UPSNAP,
      INC.

    2006
      OMNIBUS STOCK AND INCENTIVE PLAN

     

    
      	
              1.

            	
              Purpose

            


    

     

    The
      proper execution of the duties and responsibilities of the employees, officers,
      consultants, advisors and directors of UpSnap, Inc. (the “Corporation”),
      a
      Nevada corporation, is a vital factor in the continued growth and success of
      the
      Corporation. Toward this end, it is necessary to attract and retain employees,
      officers, consultants, advisors and directors capable of effectively assuring
      the future success of the Corporation and to provide incentive compensation
      opportunities that are competitive with other similar businesses. It will
      benefit the Corporation, therefore, to bind the interests of these persons
      more
      closely to its own interests by offering them an attractive opportunity to
      acquire a proprietary interest in the Corporation and thereby provide them
      with
      the added incentive to remain in the service of the Corporation, to increase
      the
      prosperity, growth, and earnings of the Corporation and to enhance long-term
      shareholder return. This omnibus stock and incentive plan is intended to serve
      these purposes.

     

    
      	
              2.

            	
              Definitions

            


    

     

    As
      used
      in the Plan, the following terms shall have the meanings set forth
      below:

     

    (a)   “Affiliate”
shall
      mean (i) any entity that, directly or indirectly through one or more
      intermediaries, is controlled by the Corporation or (ii) any entity in which
      the
      Corporation has a significant equity interest, in each case as determined by
      the
      Committee.

     

    (b)   “Award”
shall
      mean the award of an Option, Stock Appreciation Right, Restricted Stock,
      Restricted Stock Unit, Performance Award, Dividend Equivalent or Other Stock
      Grant under the Plan.

     

    (c)   “Award
      Agreement”
shall
      mean any written agreement, contract or other instrument or document evidencing
      an Award granted under the Plan. Each Award Agreement shall be subject to the
      applicable terms and conditions of the Plan and any other terms and conditions
      (not inconsistent with the Plan) determined by the Committee.

     

    (d)   “Board”
shall
      mean the Board of Directors of the Corporation.

     

    (e)   “Code”
shall
      mean the Internal Revenue Code of 1986, as amended, and any regulations
      promulgated thereunder.

     

    (f)   “Committee”
shall
      mean a committee designated by the Board to administer the Plan. The Committee
      shall be comprised of at least two Directors and each member of the Committee
      shall be a “Non-Employee Director” as shall be required to permit Awards granted
      under the Plan to qualify under Rule 16b-3 and Section 162(m) of the
      Code.

     

    (g)   “Director”
shall
      mean a member of the Board, including any Non-Employee Director.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (h)   “Dividend
      Equivalent”
shall
      mean any right granted under Section 6(e) of the Plan.

     

    (i)    “Employee
      Director”
shall
      mean any Director who is also an employee of the Corporation or an
      Affiliate.

     

    (j)    “Eligible
      Person”
shall
      mean any employee, officer, consultant, advisor or director providing services
      to the Corporation or any Affiliate who the Committee determines to be an
      Eligible Person. An Eligible Person must be a natural person.

     

    (k)   “Exchange
      Act”
shall
      mean the Securities Exchange Act of 1934, as amended.

     

    (l)    “Fair
      Market Value”
shall
      mean, unless otherwise determined by the Committee, a value on any relevant
      date
      that is determined in accordance with the following provisions:

     

    
      	 	
              (i)

            	
              If
                the Common Stock is traded or listed on the OTC BB, the Fair Market
                Value
                shall be the average of the closing bid and ask prices of a Share
                on that
                day as reported by the OTC BB or any comparable
                system.

            


    

     

    
      	 	
              (ii)

            	
              If
                the Common Stock is at the time listed on any other stock exchange,
                then
                the Fair Market Value shall be the closing selling price of a Share
                on the
                date in question on the stock exchange determined by the Committee
                to be
                the primary market for the Shares, as such price is officially quoted
                on
                such exchange and published on Yahoo! Finance, the internet
                site.

            


    

     

    
      	 	
              (iii)

            	
              If
                the Common Stock is not traded or included in the OTC BB, a security
                exchange, or any comparable system, the Fair Market Value shall be
                the
                average of the closing bid and ask prices on that day as furnished
                by any
                member of the National Association of Securities Dealers, Inc. selected
                from time to time by the Corporation for that
                purpose.

            


    

     

    
      	 	
              (iv)

            	
              If
                the date in question is not a trading day, or if the stock did not
                trade
                on such a day, then the Fair Market Value shall be determined based
                on
                prices for the trading day prior to the date in
                question.

            


    

     

    (m)   “Incentive
      Stock Option”
shall
      mean an option granted under Section 6(a) of the Plan that is intended to
      qualify as an “incentive stock option” in accordance with the terms of Section
      422 of the code or any successor provision.

     

    (n)   “Non-Employee
      Director”
shall
      mean any Director who is not also an employee of the Corporation or an Affiliate
      within the meaning of Rule 16b-3 and is an “outside director” within the meaning
      of Section 162(m) of the Code.

     

    (o)   “Non-Qualified
      Stock Option”
shall
      mean an option granted under Section 6(a) of the Plan that is not intended
      to
      satisfy the requirements of Section 422 of the Code.

     

    (p)   “Option”
shall
      mean an Incentive Stock Option or a Non-Qualified Stock Option.

     

    
      
        
        

      

      
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    (q)   “Other
      Stock Grant”
shall
      mean any right granted under Section 6(f) of the Plan.

     

    (r)   “Participant”
shall
      mean an Eligible Person granted an Award under the Plan.

     

    (s)   “Performance
      Award”
shall
      mean any right granted under Section 6(d) of the Plan.

     

    (t)   “Performance
      Goal”
shall
      mean performance goals, either individually, alternatively or in any
      combination, applied on a corporate, affiliate, or business unit basis
      established for use in the Plan to the extent required by Section 162(m) and
      conditioned solely on the achievement of one or more objective performance
      goals. Such performance goals shall be established by the Corporation’s
      Management and approved by the Committee within the time period prescribed
      by,
      and shall otherwise comply with the requirements of, Section
      162(m).

     

    (u)   “Person”
shall
      mean any individual or entity, including a corporation, partnership, limited
      liability company, association, joint venture or trust.

     

    (v)   “Plan”
shall
      mean the UpSNAP, Inc. 2006 Omnibus Stock and Incentive Plan, as amended from
      time to time, the provisions of which are set forth herein.

     

    (w)   “Restricted
      Stock”
shall
      mean any Shares granted under Section 6(c) of the Plan.

     

    (x)   “Restricted
      Stock Unit”
shall
      mean any unit granted under Section 6(c) of the Plan evidencing the right to
      receive a Shares share (or a cash payment equal to the Fair Market Value of
      a
      share) at some future date.

     

    (y)   “Rule
      16b-3”
shall
      mean, pursuant to the Code of Federal Regulations § 240.16b-3, Rule 16b-3
      promulgated by the Securities and Exchange Commission under the Securities
      Exchange Act of 1934, or any successor rule or regulation.

     

    (z)   “Section
      162(m)”
shall
      mean Section 162(m) of the Code and the applicable Treasury Regulations
      promulgated thereunder.

     

    (aa)   “Share”
or
      “Common
      Stock”
shall
      mean a share or shares of the Corporation’s common stock, $ 0.001 par value per
      share or such other securities or property as may become subject to Awards
      pursuant to an adjustment made under Section 4(c) of the Plan.

     

    (bb)   “Stock
      Appreciation Right”
shall
      mean any right granted under Section 6(b) of the Plan.

     

    
      	
              3.

            	
              Administration

            


    

     

    (a)   Power
      and Authority of the Committee.
      The
      Plan shall be administered by the Committee within the conditions of Rule 16b-3.
      Subject to the express provisions of the Plan and to applicable law, the
      Committee shall have full power and authority to:

     

    
      	 	
              (i)

            	
              designate
                Participants;

            


    

     

    
      
        
        

      

      
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              (ii)

            	
              determine
                the type or types of Awards to be granted to each Participant under
                the
                Plan;

            


    

     

    
      	 	
              (iii)

            	
              determine
                the amount of Shares to be covered by (or the method by which payments
                or
                other rights are to be determined in connection with) each
                Award;

            


    

     

    
      	 	
              (iv)

            	
              determine
                the terms and conditions of any Award or Award
                Agreement;

            


    

     

    
      	 	
              (v)

            	
              amend
                the terms and conditions of any Award or Award Agreement and accelerate
                the exercisability of any Option or waive any restrictions relating
                to any
                Award;

            


    

     

    
      	 	
              (vi)

            	
              determine
                whether, to what extent and under what circumstances Awards may be
                exercised in cash, Shares, other securities, other Awards or other
                property, or canceled, forfeited or
                suspended;

            


    

     

    
      	 	
              (vii)

            	
              determine
                whether, to what extent and under what circumstances cash, Shares,
                other
                securities, other Awards, other property and other amounts payable
                with
                respect to an Award under the Plan shall be deferred either automatically
                or at the election of the holder thereof or the
                Committee;

            


    

     

    
      	 	
              (viii)

            	
              interpret
                and administer the Plan and any instrument or agreement, including
                any
                Award Agreement, relating to the
                Plan;

            


    

     

    
      	 	
              (ix)

            	
              establish,
                amend, suspend or waive such rules and regulations and appoint such
                agents
                as it shall deem appropriate for the proper administration of the
                Plan;
                and

            


    

     

    
      	 	
              (x)

            	
              make
                any other determination and take any other action that the Committee
                deems
                necessary or desirable for the administration of the
                Plan.

            


    

     

    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 Award Agreement shall be within the sole discretion of the Committee,
      may be made at any time and shall be final, conclusive and binding upon any
      Eligible Person and any holder or beneficiary of any Award.

     

    (b)   Power
      and Authority of the Board.
      Notwithstanding anything to the contrary contained herein, the Board may, at
      any
      time and from time to time, exercise the powers and duties of the Committee
      under the Plan without any further action of the Committee. The Committee may
      delegate its responsibilities to others, including the Board, under such
      conditions and limitations as it may determine, except that the Committee may
      not delegate its authority with regard to the making of grants to Section 16(b)
      Employee Directors. However, if the grant to an Employee Director would not
      be
      exempt under 16b-3 if made by the Committee, such grant may be made by the
      Board. On the other hand, if the grant of an option is intended to be
      exempt

     

    
      
        
        

      

      
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    from
      162(m), it must be made by a committee composed exclusively of Non-Employee
      Directors.

     

    
      	
              4.

            	
              Shares
                Available for Awards

            


    

     

    (a)   Shares
      Available.
      The
      Shares issuable under the Plan shall be made available either from authorized
      but unissued Shares or from Shares reacquired by the Company on the open market.
      Subject to adjustment as provided in Section 4(c) of the Plan, the aggregate
      number of Shares that may be issued under the Plan shall not exceed four million
      (4,000,000) Shares.

     

    (b)   Accounting
      for Awards.
      For
      purposes of this Section 4, if an Award entitles the holder thereof to receive
      or purchase Shares, the number of Shares covered by such Award or to which
      such
      Award relates shall be counted on the date of grant of such Award against the
      aggregate number of Shares available for granting Awards under the Plan. If
      an
      Award terminates or is forfeited or cancelled without the issuance of any
      Shares, or if any Shares covered by an Award or to which an Award relates are
      not issued for any other reason, then the number of Shares counted against
      the
      aggregate number of Shares available under the Plan with respect to such Award,
      to the extent of any such termination, forfeiture, cancellation or other event,
      shall again be available for granting Awards under the Plan. If Shares of
      Restricted Stock are forfeited or otherwise reacquired by the Corporation prior
      to vesting, whether or not dividends have been paid on such Shares, then the
      number of Shares counted against the aggregate number of Shares available under
      the Plan with respect to such Award of Restricted Stock, to the extent of any
      such forfeiture or reacquisition by the Corporation, shall again be available
      for granting Awards under the Plan. Shares that are withheld in full or partial
      payment to the Corporation of the purchase or exercise price relating to an
      Award or in connection with the satisfaction of tax obligations relating to
      an
      Award other than a Stock Option shall again be available for granting Awards
      under the Plan.

     

    (c)   Adjustments.
      In the
      event that the Committee shall determine that any dividend or other distribution
      (whether in the form of cash, Shares, other securities or other property),
      recapitalization, stock split, reverse stock split, reorganization, merger,
      consolidation, split-up, spin-off, combination, repurchase or exchange of Shares
      or other securities of the Corporation, issuance of warrants or other rights
      to
      purchase Shares or other securities of the Corporation or other similar
      corporate transaction or event affects the Shares such that an adjustment is
      determined by the Committee to be appropriate in order to prevent dilution
      or
      enlargement of the benefits or potential benefits intended to be made available
      under the Plan, then the Committee shall, in such manner as it may deem
      equitable, adjust any or all of (i) the aggregate number and/or type of Shares
      (or other securities or other property) that thereafter may be made the subject
      of Awards, (ii) the number and type of Shares (or other securities or other
      property) subject to outstanding Awards, (iii) the purchase price or exercise
      price, so long as the option price per share is never less than the Fair Market
      Value per share, with respect to any Award within the limitations contained
      in
      Section 4(d) of the Plan.

     

    (d)   Merger,
      Consolidation, Dissolution, or Liquidation.
      Upon,
      (i) the merger or consolidation of the Corporation with or into another
      corporation (pursuant to which the stockholders of the Corporation immediately
      prior to such merger or consolidation will not, as of the date of such merger
      or
      consolidation, own a beneficial interest in shares of voting
      securities

     

    
      
        
        

      

      
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    of
      the
      corporation surviving such merger or consolidation having at least a majority
      of
      the combined voting power of such corporation’s then outstanding securities), if
      the agreement of merger or consolidation does not provide for (1) the
      continuance of the Options, Stock Appreciation Rights and shares of Restricted
      Stock granted hereunder, (2) the substitution of new options, stock appreciation
      rights or shares of restricted stock for Options, Stock Appreciation Rights
      and
      shares of Restricted Stock granted hereunder, or (3) the assumption of such
      Options, Stock Appreciation Rights and shares of Restricted Stock by the
      surviving corporation, or (ii) the dissolution, liquidation, or sale of
      substantially all the assets of the Corporation, then, unless the terms of
      the
      Award of such rights otherwise provides, the holder of any such Option or Stock
      Appreciation Right may only exercise such Option or Stock Appreciation Right
      to
      the extent that it has vested and all such Options and Stock Appreciation Rights
      which have not yet vested as of the effective time of such merger,
      consolidation, dissolution, liquidation or sale of assets shall be forfeited.
      All such Options and Stock Appreciation Rights which have vested, but are not
      so
      exercised shall be forfeited as of the effective time of such merger,
      consolidation, dissolution, liquidation or sale of assets.

     

    
      	
              5.

            	
              Eligibility

            


    

     

    Any
      Eligible Person shall be eligible to be designated a Participant. In determining
      which Eligible Persons shall receive an Award and the terms of any Award, the
      Committee may take into account the nature of the services rendered by the
      respective Eligible Persons, their present and potential contributions to the
      success of the Corporation or such other factors as the Committee, in its
      discretion, shall deem relevant. Notwithstanding the foregoing, a Stock Option
      may only be granted to full-time or part-time employees (which term as used
      herein includes, without limitation, officers and Directors who are also
      employees), and an Incentive Stock Option shall not be granted to an employee
      of
      an Affiliate unless such Affiliate is also a “subsidiary corporation” of the
      Corporation within the meaning of Section 424(f) of the Code or any successor
      provision.

     

    
      	
              6.

            	
              Awards

            


    

     

    (a)   Options.
      The
      Committee is hereby authorized to grant Options to Eligible Persons with the
      following terms and conditions and with such additional terms and conditions
      not
      inconsistent with the provisions of the Plan as the Committee shall
      determine:

     

    
      	 	
              (i)

            	
              Exercise
                Price.
                The purchase price per share purchasable under an Option shall be
                determined by the Committee; provided, however, that such purchase
                price
                shall not be less than 100% of the Fair Market Value of a share on
                the
                date of grant of such Option; provided, however, that the Committee
                may
                designate a per share exercise price below Fair Market Value on the
                date
                of grant (A) to the extent necessary or appropriate, as determined
                by the
                Committee, to satisfy applicable legal or regulatory requirements
                of a
                foreign jurisdiction or (B) if the Option is granted in substitution
                for a
                stock option previously granted by an entity that is acquired by
                or merged
                with the Corporation or an
                Affiliate.

            


    

     

    
      
        
        

      

      
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              (ii)

            	
              Option
                Term.
                The term of each Option shall be fixed by the Committee at the time
                of
                grant, shall be no longer than 10 years from the date of
                grant.

            


    

     

    
      	 	
              (iii)

            	
              Time
                and Method of Exercise.
                The Committee shall determine the time or times at which an Option
                may be
                exercised in whole or in part and the method or methods by which,
                and the
                form or forms (including, without limitation, cash, Shares, other
                securities, other Awards or other property, or any combination thereof,
                having a Fair Market Value on the exercise date equal to the applicable
                exercise price) in which, payment of the exercise price with respect
                thereto may be made or deemed to have been
                made.

            


    

     

    (b)   Stock
      Appreciation Rights.
      The
      Committee is hereby authorized to grant Stock Appreciation Rights to Eligible
      Persons subject to the terms of the Plan and any applicable Award Agreement.
      A
      Stock Appreciation Right granted under the Plan shall confer on the holder
      thereof a right to receive upon exercise thereof the excess of (i) the Fair
      Market Value of one share on the date of exercise (or, if the Committee shall
      so
      determine, at any time during a specified period before or after the date of
      exercise) over (ii) the grant price of the Stock Appreciation Right as
      determined by the Committee, which grant price shall not be less than 100%
      of
      the Fair Market Value of one share on the date of grant of the Stock
      Appreciation Right; provided, however, that the Committee may designate a per
      share grant price below Fair Market Value on the date of grant (A) to the extent
      necessary or appropriate, as determined by the Committee, to satisfy applicable
      legal or regulatory requirements of a foreign jurisdiction or (B) if the Stock
      Appreciation Right is granted in substitution for a stock appreciation right
      previously granted by an entity that is acquired by or merged with the
      Corporation or an Affiliate. Subject to the terms of the Plan, the grant price,
      term, methods of exercise, dates of exercise, methods of settlement and any
      other terms and conditions (including conditions or restrictions on the exercise
      thereof) of any Stock Appreciation Right shall be as determined by the
      Committee.

     

    (c)   Restricted
      Stock and Restricted Stock Units.
      The
      Committee is hereby authorized to grant Restricted Stock and Restricted Stock
      Units to Eligible Persons with the following terms and conditions and with
      such
      additional terms and conditions not inconsistent with the provisions of the
      Plan
      as the Committee shall determine:

     

    
      	 	
              (i)

            	
              Restrictions.
                Shares of Restricted Stock and Restricted Stock Units shall be subject
                to
                such restrictions as the Committee may impose (including, without
                limitation, any limitation on the right to vote a share of Restricted
                Stock or the right to receive any dividend or other right or property
                with
                respect thereto), which restrictions may lapse separately or in
                combination at such time or times, in such installments or otherwise
                as
                the Committee may deem appropriate. The minimum vesting period of
                such
                Awards shall be three years from the date of grant, unless the Award
                is
                conditioned on performance of the Corporation or an Affiliate or
                on
                personal performance (other than continued service with the Corporation
                or
                an Affiliate), in which case the Award may vest over a period as
                determined by the Committee. Notwithstanding the foregoing, the Committee
                may permit acceleration of vesting of such Awards in the event of
                the
                Participant’s death, disability or retirement or a change in control of
                the Corporation.

            


    

     

    
      
        
        

      

      
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              (ii)

            	
              Issuance
                and Delivery of Shares.
                Any Restricted Stock granted under the Plan shall be issued at the
                time
                such Awards are granted and may be evidenced in such manner as the
                Committee may deem appropriate, including book-entry registration
                or
                issuance of a stock certificate or certificates, which certificate
                or
                certificates shall be held by the Corporation. Such certificate or
                certificates shall be registered in the name of the Participant and
                shall
                bear an appropriate legend referring to the restrictions applicable
                to
                such Restricted Stock. Shares representing Restricted Stock that
                is no
                longer subject to restrictions shall be delivered to the Participant
                promptly after the applicable restrictions lapse or are waived. In
                the
                case of Restricted Stock Units, no shares shall be issued at the
                time such
                Awards are granted. Upon the lapse or waiver of restrictions and
                the
                restricted period relating to Restricted Stock Units evidencing the
                right
                to receive Shares, such Shares shall be issued and delivered to the
                holder
                of the Restricted Stock Units.

            


    

     

    
      	 	
              (iii)

            	
              Forfeiture.
                Except as otherwise determined by the Committee, upon a Participant’s
                termination of employment or resignation or removal as a Director
                (in
                either case, as determined under criteria established by the Committee)
                during the applicable restriction period, all shares of Restricted
                Stock
                and Restricted Stock Units held by the Participant at such time subject
                to
                restriction shall be forfeited and reacquired by the Corporation;
                provided, however, that the Committee may, when it finds that a waiver
                would be in the best interest of the Corporation, waive in whole
                or in
                part any or all remaining restrictions with respect to shares of
                Restricted Stock or Restricted Stock
                Units.

            


    

     

    (d)   Performance
      Awards.
      The
      Committee is hereby authorized to grant to Eligible Persons Performance Awards
      which are intended to be “qualified performance-based compensation” within the
      meaning of Section 162(m). A Performance Award granted under the Plan may be
      payable in cash or in Shares (including, without limitation, Restricted Stock).
      Performance Awards shall, to the extent required by Section 162(m), be
      conditioned solely on the achievement of one or more objective Performance
      Goals, and such Performance Goals shall be established by the Committee within
      the time period prescribed by, and shall otherwise comply with the requirements
      of, Section 162(m). Subject to the terms of the Plan and any applicable Award
      Agreement, the Performance Goals to be achieved during any performance period,
      the length of any performance period, the amount of any Performance Award
      granted, the amount of any payment or transfer to be made pursuant to any
      Performance Award and any other terms and conditions of any Performance Award
      shall be determined by the Committee. The Committee shall also certify in
      writing that such Performance Goals have been met prior to payment of the
      Performance Awards to the extent required by Section 162(m).

     

    (e)   Dividend
      Equivalents.
      The
      Committee is hereby authorized to grant Dividend Equivalents to Eligible Persons
      under which the Participant shall be entitled to receive payments (in cash,
      Shares, other securities, other Awards or other property as determined in the
      discretion of the Committee) equivalent to the amount of cash dividends paid
      by
      the Corporation to holders of Shares with respect to a number of shares
      determined by the Committee. Subject to the terms

     

    
      
        
        

      

      
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    of
      the
      Plan, such Dividend Equivalents may have such terms and conditions as the
      Committee shall determine.

     

    (f)   Other
      Stock Grants.
      The
      Committee is hereby authorized, subject to the terms of the Plan, to grant
      to
      Eligible Persons Shares without restrictions thereon as are deemed by the
      Committee to be consistent with the purpose of the Plan. Subject to the terms
      of
      the Plan and any applicable Award Agreement, such Other Stock Grant may have
      such terms and conditions as the Committee shall determine.

     

    (g)   General.

     

    
      	 	
              (i)

            	
              Consideration
                for Awards.
                Awards may be granted for no cash consideration or for any cash or
                other
                consideration as determined by the Committee or required by applicable
                law.

            


    

     

    
      	 	
              (ii)

            	
              Awards
                May Be Granted Separately or Together.
                Awards may, in the discretion of the Committee, be granted either
                alone or
                in addition to, in tandem with or in substitution for any other Award
                or
                any award granted under any plan of the Corporation or any Affiliate.
                Awards granted in addition to or in tandem with other Awards or in
                addition to or in tandem with awards granted under any such other
                plan of
                the Corporation or any Affiliate may be granted either at the same
                time as
                or at a different time from the grant of such other Awards or
                awards.

            


    

     

    
      	 	
              (iii)

            	
              Forms
                of Payment under Awards.
                Subject to the terms of the Plan and of any applicable Award Agreement,
                payments or transfers to be made by the Corporation or an Affiliate
                upon
                the grant, exercise or payment of an Award may be made in such form
                or
                forms as the Committee shall determine (including, without limitation,
                cash, Shares, other securities, other Awards or other property or
                any
                combination thereof), and may be made in a single payment or transfer,
                in
                installments or on a deferred basis, in each case in accordance with
                rules
                and procedures established by the Committee. Such rules and procedures
                may
                include, without limitation, provisions for the payment or crediting
                of
                reasonable interest on installment or deferred payments or the grant
                or
                crediting of Dividend Equivalents with respect to installment or
                deferred
                payments.

            


    

     

    
      	 	
              (iv)

            	
              Limits
                on Transfer of Awards.
                Except as otherwise provided by the Committee or the terms of this
                Plan,
                no Award and no right under any such Award shall be transferable
                by a
                Participant other than by will or by the laws of descent and distribution.
                The Committee may establish procedures as it deems appropriate for
                a
                Participant to designate a Person or Persons, as beneficiary or
                beneficiaries, to exercise the rights of the Participant and receive
                any
                property distributable with respect to any Award in the event of
                the
                Participant’s death. The Committee, in its discretion and subject to such
                additional terms and conditions as it determines, may permit a Participant
                to transfer a Non-Qualified Stock

            


    

     

    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

    

     

    
      
        	 	
                 

              	
                Option
                  to any “family member” (as such term is defined in the General
                  Instructions to Form S-8 (or any successor to such Instructions
                  or such
                  Form) under the Securities Act of 1933, as amended) at any time
                  that such
                  Participant holds such Option, provided that such transfers may
                  not be for
                  value (i.e., the transferor may not receive any consideration therefore)
                  and the family member may not make any subsequent transfers other
                  than by
                  will or by the laws of descent and distribution. Each Award under
                  the Plan
                  or right under any such Award shall be exercisable during the
                  Participant’s lifetime only by the Participant (except as provided herein
                  or in an Award Agreement or amendment thereto relating to a Non-Qualified
                  Stock Option) or, if permissible under applicable law, by the
                  Participant’s guardian or legal representative. No Award or right under
                  any such Award may be pledged, alienated, attached or otherwise
                  encumbered, and any purported pledge, alienation, attachment or
                  encumbrance thereof shall be void and unenforceable against the
                  Corporation or any Affiliate.

              


      

       

    

    
      	 	
              (v)

            	
              Term
                of Awards.
                The term of each Award shall be for a period not longer than 10 years
                from
                the date of grant.

            


    

     

    
      	 	
              (vi)

            	
              Restrictions;
                Securities Exchange Listing.
                All Shares or other securities delivered under the Plan pursuant
                to any
                Award or the exercise thereof shall be subject to such stop transfer
                orders and other restrictions as the Committee may deem advisable
                under
                the Plan, applicable federal or state securities laws and regulatory
                requirements, and the Committee may direct appropriate stop transfer
                orders and cause other legends to be placed on the certificates for
                such
                Shares or other securities to reflect such
                restrictions.

            


    

     

    If
      the
      Shares or other securities are traded on a securities exchange, the Corporation
      shall not be required to deliver any Shares or other securities covered by
      an
      Award unless and until such Shares or other securities have been and continue
      to
      be admitted for trading on such securities exchange.

     

    
      	 	
              (vii)

            	
              Prohibition
                on Repricing.
                Except as provided in Section 4(c) of the Plan, no Option or Stock
                Appreciation Right may be amended to reduce its initial exercise
                or grant
                price and no Option or Stock Appreciation Right shall be canceled
                and
                replaced with Options or Stock Appreciation Rights having a lower
                exercise
                or grant price, without the approval of the shareholders of the
                Corporation.

            


    

     

    
      	
              7.

            	
              Amendment
                and Termination;
                Adjustments

            


    

     

    (a)   Amendments
      to the Plan.
      The
      Board may amend, alter, suspend, discontinue or terminate the Plan at any time,
      without approval of the shareholders of the Corporation, provided that no such
      amendment, alteration, suspension, discontinuation or termination shall be
      made
      absent such approval that:

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

     

    
      	 	
              (i)

            	
              violates
                the rules or regulations of any other securities exchange applicable
                to
                the Corporation;

            


    

     

    
      	 	
              (ii)

            	
              increases
                the number of shares authorized under the Plan as specified in Section
                4(a) of the Plan, except to maintain such level as approved under
                Section
                4(c);

            


    

     

    
      	 	
              (iii)

            	
              increases
                the number of shares subject to the limitations contained in Section
                4(d)
                of the Plan;

            


    

     

    
      	 	
              (iv)

            	
              permits
                the award of Options or Stock Appreciation Rights at a price less
                than
                100% of the Fair Market Value of a share on the date of grant of
                such
                Option or Stock Appreciation Right, as prohibited by Sections 6(a)(i)
                and
                6(b)(ii) of the Plan or the repricing of Options or Stock Appreciation
                Rights, as prohibited by Section 6(g)(vii) of the Plan;
                or

            


    

     

    
      	 	
              (v)

            	
              expands
                the classes or categories of Eligible Persons to receive Awards under
                the
                Plan.

            


    

     

    (b)   Amendments
      to Awards.
      The
      Committee may waive any conditions of or rights of the Corporation under any
      outstanding Award, prospectively or retroactively. Except as otherwise provided
      herein or in an Award Agreement, the Committee may not amend, alter, suspend,
      discontinue or terminate any outstanding Award, prospectively or retroactively,
      if such action would adversely affect the rights of the holder of such Award,
      without the consent of the Participant or holder or beneficiary
      thereof.

     

    (c)   Correction
      of Defects, Omissions and Inconsistencies.
      The
      Committee may correct any defect, supply any omission or reconcile any
      inconsistency in the Plan or in any Award or Award Agreement in the manner
      and
      to the extent it shall deem desirable to implement or maintain the effectiveness
      of the Plan.

     

    
      	
              8.

            	
              Income
                Tax Withholding

            


    

     

    In
      order
      to comply with all applicable federal, state, local or foreign income tax laws
      or regulations, the Corporation may take such action as it deems appropriate
      to
      ensure that all applicable federal, state, local or foreign payroll,
      withholding, income or other taxes, which are the sole and absolute
      responsibility of a Participant, are withheld or collected from such
      Participant. In order to assist a Participant in paying all or a portion of
      applicable taxes to be withheld or collected upon exercise or receipt of (or
      the
      lapse of restrictions relating to) an Award, the Committee, in its discretion
      and subject to such additional terms and conditions as it may adopt, may permit
      the Participant to satisfy such tax obligation by (i) electing to have the
      Corporation withhold a portion of the Shares otherwise to be delivered upon
      exercise or receipt of (or the lapse of restrictions relating to) such Award
      with a Fair Market Value equal to the amount of such taxes or (ii) delivering
      to
      the Corporation Shares other than Shares issuable upon exercise or receipt
      of
      (or the lapse of restrictions relating to) such Award with a Fair Market Value
      equal to the amount of such taxes.

     

    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    

     

    
      	
              9.

            	
              General
                Provisions

            


    

     

    (a)   No
      Rights to Awards.
      No
      Eligible Person or other Person shall have any claim to be granted any Award
      under the Plan, and there is no obligation for uniformity of treatment of
      Eligible Persons or holders or beneficiaries of Awards under the Plan. The
      terms
      and conditions of Awards need not be the same with respect to any Participant
      or
      with respect to different Participants.

     

    (b)   Award
      Agreements.
      No
      Participant will have rights under an Award granted to such Participant unless
      and until an Award Agreement shall have been duly executed on behalf of the
      Corporation and, if requested by the Corporation, signed by the
      Participant.

     

    (c)   Plan
      Provisions Control.
      In the
      event that any provision of an Award Agreement conflicts with or is inconsistent
      in any respect with the terms of the Plan as set forth herein or subsequently
      amended, the terms of the Plan shall control.

     

    (d)   No
      Rights of Shareholders.
      Except
      with respect to shares of Restricted Stock as to which the Participant has
      been
      granted the right to vote, neither a Participant nor the Participant’s legal
      representative shall be, or have any of the rights and privileges of, a
      shareholder of the Corporation with respect to any Shares issuable to such
      Participant upon the exercise or payment of any Award, in whole or in part,
      unless and until such Shares have been issued.

     

    (e)   No
      Limit on Other Compensation Arrangements.
      Nothing
      contained in the Plan shall prevent the Corporation or any Affiliate from
      adopting or continuing in effect other or additional compensation arrangements,
      and such arrangements may be either generally applicable or applicable only
      in
      specific cases.

     

    (f)   No
      Right to Employment.
      The
      grant of an Award shall not be construed as giving a Participant the right
      to be
      retained as an employee of the Corporation or any Affiliate, or a Director
      to be
      retained as a Director, nor will it affect in any way the right of the
      Corporation or an Affiliate to terminate a Participant’s employment at any time,
      with or without cause. In addition, the Corporation or an Affiliate may at
      any
      time dismiss a Participant from employment free from any liability or any claim
      under the Plan or any Award, unless otherwise expressly provided in the Plan
      or
      in any Award Agreement.

     

    (g)   Governing
      Law.
      The
      validity, construction and effect of the Plan or any Award, and any rules and
      regulations relating to the Plan or any Award, shall be determined in accordance
      with the internal laws, and not the law of conflicts, of the State of North
      Carolina.

     

    (h)   Jurisdiction;
      Service of Process.
      Any
      action or proceeding seeking to enforce any provision of, or based on any right
      arising out of, this Plan may be brought in the courts of the State of North
      Carolina, County of Mecklenburg, or, if it has or can acquire jurisdiction,
      in
      the United States District Court for the State of North Carolina, Western
      District. Each of the parties consents to the jurisdiction of such courts (and
      of the appropriate appellate courts) in any such action or proceeding and waives
      any objection to venue laid therein. Process in any action or proceeding
      referred to in the preceding sentence may be served on any party anywhere in
      the
      world.

     

    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

    

     

    (i)   Severability.
      If any
      provision of the Plan or any Award is or becomes or is deemed to be invalid,
      illegal or unenforceable in any jurisdiction 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 applicable laws, or if it cannot
      be so
      construed or deemed amended without, in the determination of the Committee,
      materially altering the purpose or intent of the Plan or the Award, such
      provision shall be stricken as to such jurisdiction or Award, and the remainder
      of the Plan or any such Award shall remain in full force and
      effect.

     

    (j)   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 Corporation
      or
      any Affiliate and an Eligible Person or any other Person. To the extent that
      any
      Person acquires a right to receive payments from the Corporation or any
      Affiliate pursuant to an Award, such right shall be no greater than the right
      of
      any unsecured general creditor of the Corporation or any Affiliate.

     

    (k)   No
      Fractional Shares.
      No
      fractional Shares shall be issued or delivered pursuant to the Plan or any
      Award, and the Committee shall determine whether cash shall be paid in lieu
      of
      any fractional Shares or whether such fractional Shares or any rights thereto
      shall be canceled, terminated or otherwise eliminated.

     

    (l)   Headings.
      Headings are given to the Sections and subsections of the Plan or any Award
      Agreement solely as a convenience to facilitate reference. Such headings shall
      not be deemed in any way material or relevant to the construction or
      interpretation of the Plan or any provision thereof.

     

    
      	
              10.

            	
              Effective
                Date of the Plan

            


    

     

    The
      Plan
      shall be effective upon its adoption by the Board, provided however that the
      shareholders of the Corporation approve the Plan within twelve months of its
      adoption by the Board. All Awards granted prior to such approval shall be
      subject to such approval. If the stockholders do not so approve the Plan, it
      shall terminate and all Awards previously issued shall terminate as if they
      had
      never been awarded.

     

    
      	
              11.

            	
              Term
                of the Plan

            


    

     

    Subject
      to the preceding Section, the Plan shall remain in effect until terminated
      by
      the Board. Awards may be granted under the Plan until the Plan terminates or
      until all Shares available for Awards under the Plan have been purchased or
      acquired.

     

    Adopted
      by the Board of Directors on October 31, 2006.

     

    
      
        
        

      

      
        13