Unassociated Document


     

    AMENDED
      2003 STOCK OPTION AND INCENTIVE PLAN

     

    MCF
      Corporation, a Delaware corporation (the “Company”), sets forth herein the terms
      of its 2003 Stock Option and Incentive Plan (the “Plan”) as follows:

     

    1.  
      PURPOSE

     

    The
      Plan
      is intended to enhance the Company's and its subsidiaries' (as defined herein)
      ability to attract and retain highly qualified officers, directors, key
      employees, and other persons, and to motivate such officers, directors, key
      employees, and other persons to serve the Company and its affiliates and to
      expend maximum effort to improve the business results and earnings of the
      Company, by providing to such officers, key employees, and other persons an
      opportunity to acquire or increase a direct proprietary interest in the
      operations and future success of the Company. To this end, the Plan provides
      for
      the grant of stock options, restricted stock, and restricted stock units in
      accordance with the terms hereof. Stock options granted under the Plan may
      be
      non-qualified stock options or incentive stock options, as provided
      herein.

     

    2.
         DEFINITIONS

     

    For
      purposes of interpreting the Plan and related documents (including Award
      Agreements), the following definitions shall apply:

     

    
      	
              2.1

            	 	
              “Affiliate”
                of, or person “affiliated” with, a person means any company or other trade
                or business that controls, is controlled by, or is under common control
                with such person within the meaning of Rule 405 of Regulation C under
                the Securities Act, including, without limitation, any
                Subsidiary.

            
	
               

            	 	
               

            
	
              2.2

            	 	
              “Award
                Agreement” means the stock option agreement, restricted stock agreement,
                restricted stock unit agreement, or other written agreement between
                the
                Company and a Grantee that evidences and sets out the terms and conditions
                of a Grant.

            
	
               

            	 	
               

            
	
              2.3

            	 	
              “Benefit
                Arrangement” shall have the meaning set forth in
                Section 14
                hereof.

            
	
               

            	 	
               

            
	
              2.4

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

            
	
               

            	 	
               

            
	
              2.5

            	 	
              “Change
                of Control” means (i) the dissolution or liquidation of the Company
                or a merger, consolidation, or reorganization of the Company with
                one or
                more other entities in which the Company is not the surviving entity,
                (ii) a sale of substantially all of the assets of the Company to
                another entity, or (iii) any transaction (including without
                limitation a merger or reorganization in which the Company is the
                surviving entity) which results in any person or entity (other than
                persons who are stockholders or affiliates of the Company at the
                time the
                Plan is approved by the Company's stockholders) owning 50% or more
                of the
                combined voting power of all classes of stock of the
                Company.

            
	
               

            	 	
               

            
	
              2.6

            	 	
              “Code”
                means the Internal Revenue Code of 1986, as now in effect or as hereafter
                amended.

            
	
               

            	 	
               

            
	
              2.7

            	 	
              “Committee”
                means a committee of, and designated from time to time by resolution
                of,
                the Board.

            
	
               

            	 	
               

            
	
              2.8

            	 	
              “Company”
                means MCF Corporation.

            
	
               

            	 	
               

            
	
              2.9

            	 	
              “Effective
                Date” means March 7, 2003, the date the Plan was approved by the
                Board.

            


    

     

    
      
        
        

      

      
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              2.10

            	 	
              “Exchange
                Act” means the Securities Exchange Act of 1934, as now in effect or as
                hereafter amended.

            
	
               

            	 	
               

            
	
              2.11

            	 	
              “Fair
                Market Value” means the closing price of the Stock on the American Stock
                Exchange or the Nasdaq Stock Market on the Grant Date or such other
                determination date (or if there is no such reported closing price,
                the
                Fair Market Value shall be the mean between the highest bid and lowest
                asked prices or between the high and low sale prices on such trading
                day)
                or, if no sale of Stock is reported for such trading day, on the
                next
                preceding day on which any sale shall have been
                reported.

            
	
               

            	 	
               

            
	
              2.12

            	 	
              “Family
                Member” means a person who is a spouse, child, stepchild, grandchild,
                parent, stepparent, grandparent, sibling, niece, nephew, mother-in-law,
                father-in-law, son-in-law, daughter-in-law, brother-in-law, or
                sister-in-law, including adoptive relationships, of the Grantee,
                any
                person sharing the Grantee's household (other than a tenant or employee),
                a trust in which these persons have more than fifty percent of the
                beneficial interest, a foundation in which these persons (or the
                Grantee)
                control the management of assets, and any other entity in which these
                persons (or the Grantee) own more than fifty percent of the voting
                interests.

            
	
               

            	 	
               

            
	
              2.13

            	 	
              “Grant”
                means an award of an Option, Restricted Stock, or Restricted Stock
                Unit
                under the Plan.

            
	
               

            	 	
               

            
	
              2.14

            	 	
              “Grant
                Date” means, as determined by the Board or authorized Committee,
                (i) the date as of which the Board or such Committee approves a
                Grant, (ii) the date on which the recipient of a Grant first becomes
                eligible to receive a Grant under
                Section 6
                hereof, or (iii) such other date as may be specified by the Board or
                such Committee.

            
	
               

            	 	
               

            
	
              2.15

            	 	
              “Grantee”
                means a person who receives or holds an Option, Restricted Stock,
                or
                Restricted Stock Unit under the Plan.

            
	
               

            	 	
               

            
	
              2.16

            	 	
              “Incentive
                Stock Option” means an “incentive stock option” within the meaning of
                Section 422 of the Code, or the corresponding provision of any
                subsequently enacted tax statute, as amended from time to
                time.

            
	
               

            	 	
               

            
	
              2.17

            	 	
              “Option”
                means an option to purchase one or more shares of Stock pursuant
                to the
                Plan.

            
	
               

            	 	
               

            
	
              2.18

            	 	
              “Option
                Period” means the period during which Options may be exercised as set
                forth in
                Section 10
                hereof.

            
	
               

            	 	
               

            
	
              2.19

            	 	
              “Option
                Price” means the purchase price for each share of Stock subject to an
                Option.

            
	
               

            	 	
               

            
	
              2.20

            	 	
              “Other
                Agreement” shall have the meaning set forth in
                Section 14
                hereof.

            
	
               

            	 	
               

            
	
              2.21

            	 	
              “Plan”
                means this 2003 Stock Option and Incentive Plan.

            
	
               

            	 	
               

            
	
              2.22

            	 	
              “Reporting
                Person” means a person who is required to file reports under
                Section 16(a) of the Exchange Act.

            
	
               

            	 	
               

            
	
              2.23

            	 	
              “Restricted
                Period” means the period during which Restricted Stock or Restricted Stock
                Units are subject to restrictions or conditions pursuant to
                Section 12.2
                hereof.

            
	
               

            	 	
               

            
	
              2.24

            	 	
              “Restricted
                Stock” means shares of Stock, awarded to a Grantee pursuant to
                Section 12
                hereof, that are subject to restrictions and to a risk of
                forfeiture.

            
	
               

            	 	
               

            
	
              2.25

            	 	
              “Restricted
                Stock Unit” means a unit awarded to a Grantee pursuant to
                Section 12
                hereof, which represents a conditional right to receive a share of
                Stock
                in the future, and which is subject to restrictions and to a risk
                of
                forfeiture.

            


    

     

    
      
        
        

      

      
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              2.26

            	 	
              “Securities
                Act” means the Securities Act of 1933, as now in effect or as hereafter
                amended.

            
	
               

            	 	
               

            
	
              2.27

            	 	
              “Stock”
                means the common stock of the Company.

            
	
               

            	 	
               

            
	
              2.28

            	 	
              “Subsidiary”
                means any “subsidiary corporation” of the Company within the meaning of
                Section 424(f) of the
                Code.

            


    

     

    3.  
      ADMINISTRATION OF THE PLAN

     

    3.1  
      Board.

     

    The
      Board, or a committee thereof, shall have such powers and authorities related
      to
      the administration of the Plan as are consistent with the Company's certificate
      of incorporation and by-laws and applicable law. The Board shall have full
      power
      and authority to take all actions and to make all determinations required or
      provided for under the Plan, any Grant, or any Award Agreement, and shall have
      full power and authority to take all such other actions and make all such other
      determinations not inconsistent with the specific terms and provisions of the
      Plan that the Board deems to be necessary or appropriate to the administration
      of the Plan, any Grant, or any Award Agreement. All such actions and
      determinations shall be by the affirmative vote of a majority of the members
      of
      the Board present at a meeting or by unanimous consent of the Board executed
      in
      writing in accordance with the Company's certificate of incorporation and
      by-laws and applicable law. The interpretation and construction by the Board
      of
      any provision of the Plan, any Grant, or any Award Agreement shall be final
      and
      conclusive.

     

    3.2  
      Committee.

     

    The
      Board
      from time to time may delegate to a Committee such powers and authorities
      related to the administration and implementation of the Plan, as set forth
      in
      Section 3.1
      above
      and in other applicable provisions, as the Board shall determine, consistent
      with the certificate of incorporation and by-laws of the Company and applicable
      law. In the event that the Plan, any Grant, or any Award Agreement entered
      into
      hereunder provides for any action to be taken by or determination to be made
      by
      the Board, such action may be taken by or such determination may be made by
      the
      Committee if the power and authority to do so has been delegated to the
      Committee by the Board as provided for in this Section. Unless otherwise
      expressly determined by the Board, any such action or determination by the
      Committee shall be final, binding, and conclusive.

     

    3.3  
      Grants.

     

    Subject
      to the other terms and conditions of the Plan, the Board shall have full and
      final authority (i) to designate Grantees, (ii) to determine the type
      or types of Grant to be made to a Grantee, (iii) to determine the number of
      shares of Stock to be subject to a Grant, (iv) to establish the terms and
      conditions of each Grant (including, but not limited to, the exercise price
      of
      any Option, the nature and duration of any restriction or condition (or
      provision for lapse thereof) relating to the vesting, exercise, transfer, or
      forfeiture of a Grant or the shares of Stock subject thereto, and any terms
      or
      conditions that may be necessary to qualify Options as Incentive Stock Options),
      (v) to prescribe the form of each Award Agreement evidencing a Grant, and
      (vi) to amend, modify, or supplement the terms of any outstanding Grant.
      Such authority specifically includes the authority, in order to effectuate
      the
      purposes of the Plan but without amending the Plan, to modify Grants to eligible
      individuals who are foreign nationals or are individuals who are employed
      outside the United States to recognize differences in local law, tax policy,
      or
      custom. As a condition to any Grant, the Board shall have the right, at its
      discretion, to require Grantees to return to the Company Grants previously
      awarded under the Plan. Subject to the terms and conditions of the Plan, any
      such subsequent Grant shall be upon such terms and conditions as are specified
      by the Board

    at
      the
      time the new Grant is made. The Company may retain the right in an Award
      Agreement to cause a forfeiture of the gain realized by a Grantee on account
      of
      actions taken by the Grantee in violation or breach of or in conflict with
      any
      non-competition agreement, any agreement prohibiting solicitation of employees
      or clients of the Company or any affiliate thereof or any confidentiality
      obligation with respect to the Company or any affiliate thereof or otherwise
      in
      competition with the Company, to the extent specified in such Award Agreement
      applicable to the Grantee. Furthermore, the Company may annul a Grant if the
      Grantee is an employee of the Company or an affiliate thereof and is terminated
      “for cause” as defined in the applicable Award Agreement. The Board may permit
      or require the deferral of any award payment, subject to such rules and
      procedures as it may establish, which may include provisions for the payment
      or
      crediting of interest or dividend equivalents, including converting such credits
      into deferred Stock equivalents.

     

    
      
        
        

      

      
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    3.4  
      No Liability.

     

    No
      member
      of the Board or of the Committee shall be liable for any action or determination
      made in good faith with respect to the Plan or any Grant or Award
      Agreement.

     

    4.  
      STOCK SUBJECT TO THE PLAN

     

    Subject
      to adjustment as provided in
      Section 17
      hereof,
      the number of shares of Stock available for issuance under the Plan shall be
      three million one hundred eighty-five thousand seven hundred fourteen
      (3,185,714) [post reverse split of November 2006]. Stock issued or to be issued
      under the Plan shall be authorized but unissued shares. If any shares covered
      by
      a Grant are not purchased or are forfeited, or if a Grant otherwise terminates
      without delivery of any Stock subject thereto, then the number of shares of
      Stock counted against the aggregate number of shares available under the Plan
      with respect to such Grant shall, to the extent of any such forfeiture or
      termination, again be available for making Grants under the Plan.

     

    5.  
      EFFECTIVE DATE AND TERM OF THE PLAN

     

    5.1  
      Effective Date.

     

    The
      Plan
      shall be effective as of the Effective Date, subject to approval of the Plan
      within one year of the Effective Date, by the stockholders of the Company in
      accordance with Section 422(b) of the Code and the regulations
      thereunder. Upon approval of the Plan by the stockholders of the Company as
      set
      forth above, all Grants made under the Plan on or after the Effective Date
      shall
      be fully effective as if the stockholders of the Company had approved the Plan
      on the Effective Date. If the stockholders fail to approve the Plan within
      one
      year after the Effective Date, any Grants made hereunder shall be null and
      void
      and of no effect.

     

    5.2  
      Term.

     

    The
      Plan
      shall terminate on the tenth anniversary of the Effective Date.

     

    6.  
      OPTION GRANTS

     

    6.1  
      Employees or Consultants.

     

    Grants
      (including Grants of Incentive Stock Options, subject to
      Section 7.1)
      may be
      made under the Plan to any employee, officer or director of, or any consultant
      or advisor to, the Company or any Subsidiary, as the Board shall determine
      and
      designate from time to time.

     

    
      
        
        

      

      
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    6.2  
      Successive Grants.

     

    An
      eligible person may receive more than one Grant, subject to such restrictions
      as
      are provided herein.

     

    7.  
      LIMITATIONS ON GRANTS

     

    7.1  
      Limitations on Incentive Stock Options.

     

    An
      Option
      shall constitute an Incentive Stock Option only (i) if the Grantee of such
      Option is an employee of the Company or any Subsidiary of the Company;
      (ii) to the extent specifically provided in the related Award Agreement;
      and (iii) to the extent that the aggregate Fair Market Value (determined at
      the time the Option is granted) of the shares of Stock with respect to which
      all
      Incentive Stock Options held by such Grantee become exercisable for the first
      time during any calendar year (under the Plan and all other plans of the
      Grantee's employer and its affiliates) does not exceed $100,000. This limitation
      shall be applied by taking Options into account in the order in which they
      were
      granted.

     

    8.  
      AWARD AGREEMENT

     

    Each
      Grant pursuant to the Plan shall be evidenced by an Award Agreement, in such
      form or forms as the Board shall from time to time determine. Award Agreements
      granted from time to time or at the same time need not contain similar
      provisions but shall be consistent with the terms of the Plan. Each Award
      Agreement evidencing a Grant of Options shall specify whether such Options
      are
      intended to be non-qualified stock options or Incentive Stock Options, and
      in
      the absence of such specification such options shall be deemed non-qualified
      stock options.

     

    9.  
      OPTION PRICE

     

    The
      Option Price of each Option shall be fixed by the Board and stated in the Award
      Agreement evidencing such Option. In the case of an Incentive Stock Option
      the
      Option Price shall be the Fair Market Value on the Grant Date of a share of
      Stock;
      provided
      ,
      however
      , that
      in the event that a Grantee would otherwise be ineligible to receive an
      Incentive Stock Option by reason of the provisions of Sections
      422(b)(6) and 424(d) of the Code (relating to ownership of more than
      ten percent of the Company's outstanding shares of Stock), the Option Price
      of
      an Option granted to such Grantee that is intended to be an Incentive Stock
      Option shall be not less than the greater of the par value or 110 percent of
      the
      Fair Market Value of a share of Stock on the Grant Date. In no case shall the
      Option Price of any Option be less than the par value of a share of
      Stock.

     

    10.  
      VESTING, TERM AND EXERCISE OF OPTIONS

     

    10.1  
      Vesting and Option Period.

     

    Subject
      to
      Sections 10.2
      and
      17.3
      hereof,
      each Option granted under the Plan shall become exercisable at such times and
      under such conditions as shall be determined by the Board and stated in the
      Award Agreement. For purposes of this
      Section 10.1
      ,
      fractional numbers of shares of Stock subject to an Option shall be rounded
      down
      to the next nearest whole number. The period during which any Option shall
      be
      exercisable shall constitute the “Option Period” with respect to such
      Option.

     

    10.2  
      Term.

     

    Each
      Option granted under the Plan shall terminate, and all rights to purchase shares
      of Stock thereunder shall cease, upon the expiration of ten years from the
      date
      such Option is granted, or under such circumstances and on such date prior
      thereto as is set forth in the Plan or as may be fixed by the Board and stated
      in the Award Agreement relating to such Option;
      provided
      ,
      however
      , that
      in the event that
      the
      Grantee would otherwise be ineligible to receive an Incentive Stock Option
      by
      reason of the provisions of Sections 422(b)(6) and 424(d) of the Code
      (relating to ownership of more than ten percent of the outstanding shares of
      Stock), an Option granted to such Grantee that is intended to be an Incentive
      Stock Option shall not be exercisable after the expiration of five years from
      its Grant Date.

     


    
      
        
        

      

      
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    10.3  
      Acceleration.

     

    Any
      limitation on the exercise of an Option contained in any Award Agreement may
      be
      rescinded, modified or waived by the Board, in its sole discretion, at any
      time
      and from time to time after the Grant Date of such Option, so as to accelerate
      the time at which the Option may be exercised. Notwithstanding any other
      provision of the Plan, no Option shall be exercisable in whole or in part prior
      to the date the Plan is approved by the stockholders of the Company as provided
      in
      Section 5.1
      hereof.

     

    10.4  
      Termination of Employment or Other Relationship.

     

    Unless
      otherwise provided by the Board, upon the termination of a Grantee's employment
      or other relationship with the Company or any Subsidiary other than by reason
      of
      death or “permanent and total disability” (within the meaning of
      Section 22(e)(3) of the Code), any Option or portion thereof held by
      such Grantee that has not vested in accordance with the provisions
      of
      Section 10.1
      hereof
      shall terminate immediately, and any Option or portion thereof that has vested
      in accordance with the provisions of
      Section 10.1
      hereof
      but has not been exercised shall terminate at the close of business on the
      90th
      day following the Grantee's termination of employment or other relationship
      (or,
      if such 90th day is a Saturday, Sunday or holiday, at the close of business
      on
      the next preceding day that is not a Saturday, Sunday or holiday). Upon
      termination of an Option or portion thereof, the Grantee shall have no further
      right to purchase shares of Stock pursuant to such Option or portion thereof.
      Whether a termination of employment or other relationship shall have occurred
      for purposes of the Plan shall be determined by the Board, which determination
      shall be final and conclusive. For purposes of the Plan, a termination of
      employment, service or other relationship shall not be deemed to occur if the
      Grantee is immediately thereafter a director of the Company or an
      affiliate.

     

    10.5  
      Rights in the Event of Death.

     

    Unless
      otherwise provided by the Board, if a Grantee dies while employed by or
      providing services to the Company or Subsidiary, all Options granted to such
      Grantee shall fully vest on the date of death, and the executors or
      administrators or legatees or distributees of such Grantee's estate shall have
      the right, at any time within one year after the date of such Grantee's death
      and prior to termination of the Option pursuant to
      Section 10.2
      above,
      to exercise any Option held by such Grantee at the date of such Grantee's
      death.

     

    10.6  
      Rights in the Event of Disability.

     

    Unless
      otherwise provided by the Board, if a Grantee's employment or other relationship
      with the Company or Subsidiary is terminated by reason of the “permanent and
      total disability” (within the meaning of Section 22(e)(3) of the Code)
      of such Grantee, all Options granted to such Grantee shall fully vest on the
      date of permanent and total disability, and the Grantee shall have the right,
      at
      any time within one year after the date of such Grantee's permanent and total
      disability and prior to termination of the Option pursuant to
      Section 10.2
      above,
      to exercise any Option held by such Grantee. Whether a termination of employment
      or service is to be considered by reason of “permanent and total disability” for
      purposes of the Plan shall be determined by the Board, which determination
      shall
      be final and conclusive.

     

    
      
        
        

      

      
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    10.7  
      Limitations on Exercise of Option.

     

    Notwithstanding
      any other provision of the Plan, in no event may any Option be exercised, in
      whole or in part, prior to the date the Plan is approved by the stockholders
      of
      the Company as provided herein, or after ten years following the date upon
      which
      the Option is granted, or after the occurrence of an event referred to
      in
      Section 17
      hereof
      which results in termination of the Option.

     

    10.8  
      Method of Exercise.

     

    An
      Option
      that is exercisable may be exercised by the Grantee's delivery to the Company
      of
      written notice of exercise on any business day, at the Company's principal
      office, addressed to the attention of the Board. Such notice shall specify
      the
      number of shares of Stock with respect to which the Option is being exercised
      and shall be accompanied by payment in full of the Option Price of the shares
      for which the Option is being exercised. The minimum number of shares of Stock
      with respect to which an Option may be exercised, in whole or in part, at any
      time shall be the lesser of (i) 100 shares or such lesser number set forth
      in the applicable Award Agreement and (ii) the maximum number of shares
      available for purchase under the Option at the time of exercise. Payment of
      the
      Option Price for the shares purchased pursuant to the exercise of an Option
      shall be made (i) in cash or in cash equivalents acceptable to the Company;
      (ii) to the extent permitted by law and at the Board's discretion, through
      the tender to the Company of shares of Stock, which shares, if acquired from
      the
      Company, shall have been held for at least six months at the time of tender
      and
      which shall be valued, for purposes of determining the extent to which the
      Option Price has been paid thereby, at their Fair Market Value on the date
      of
      exercise; or (iii) to the extent permitted by law and at the Board's
      discretion, by a combination of the methods described in (i) and (ii). In
      addition and unless the Board provides otherwise in the Award Agreement, payment
      in full of the Option Price need not accompany the written notice of exercise
      provided that the notice of exercise directs that the certificate or
      certificates for the shares of Stock for which the Option is exercised be
      delivered to a licensed broker acceptable to the Company as the agent for the
      individual exercising the Option and, at the time such certificate or
      certificates are delivered, the broker tenders to the Company cash (or cash
      equivalents acceptable to the Company) equal to the Option Price for the shares
      of Stock purchased pursuant to the exercise of the Option plus the amount (if
      any) of federal and/or other taxes which the Company may in its judgment, be
      required to withhold with respect to the exercise of the Option. An attempt
      to
      exercise any Option granted hereunder other than as set forth above shall be
      invalid and of no force and effect. Unless otherwise stated in the applicable
      Award Agreement, an individual holding or exercising an Option shall have none
      of the rights of a stockholder (for example, the right to receive cash or
      dividend payments or distributions attributable to the subject shares of Stock
      or to direct the voting of the subject shares of Stock) until the shares of
      Stock covered thereby are fully paid and issued to such individual. Except
      as
      provided in
      Section 17
      hereof,
      no adjustment shall be made for dividends, distributions, or other rights for
      which the record date is prior to the date of such issuance.

     

    10.9  
      Delivery of Stock Certificates.

     

    Promptly
      after the exercise of an Option by a Grantee and the payment in full of the
      Option Price, such Grantee shall be entitled to the issuance of a stock
      certificate or certificates evidencing such Grantee's ownership of the shares
      of
      Stock subject to the Option.

     

    11.  
      TRANSFERABILITY OF OPTIONS

     

    11.1  
      Transferability of Options.

     

    Except
      as
      provided in
      Section 11.2,
      during
      the lifetime of a Grantee, only the Grantee (or, in the event of legal
      incapacity or incompetency, the Grantee's guardian or legal representative)
      may
      exercise an Option.
      Except as provided in
      Section 11.2,
      no
      Option shall be assignable or transferable by the Grantee to whom it is granted,
      other than by will or the laws of descent and distribution.

     

    
      
        
        

      

      
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    11.2  
      Transfers.

     

    A.  
      Family Transfers

     

    If
      authorized in the applicable Award Agreement, a Grantee may transfer, not for
      value, all or part of an Option which is not an Incentive Stock Option to any
      Family Member. For the purpose of this
      Section 11.2
      , a “not
      for value” transfer is a transfer which is (i) a gift, (ii) a transfer
      under a domestic relations order in settlement of marital property rights;
      or
      (iii) a transfer to an entity in which more than fifty percent of the
      voting interests are owned by Family Members (or the Grantee) in exchange for
      an
      interest in that entity. Following a transfer under this
      Section 11.2
      , any
      such Option shall continue to be subject to the same terms and conditions as
      were applicable immediately prior to transfer. Subsequent transfers of
      transferred Options are prohibited except to Family Members of the original
      Grantee in accordance with this
      Section 11.2
      or by
      will or the laws of descent and distribution. The events of termination of
      employment or other relationship of
      Section 10.4
      hereof
      shall continue to be applied with respect to the original Grantee, following
      which the Option shall be exercisable by the transferee only to the extent,
      and
      for the periods specified in
      Sections 10.4
      ,
      10.5
      ,
      or
      10.6
      .

     

    12.  
      RESTRICTED STOCK AND RESTRICTED STOCK UNITS

     

    12.1  
      Grant of Restricted Stock or Restricted Stock Units.

     

    The
      Board
      may from time to time grant Restricted Stock or Restricted Stock Units to
      persons eligible to receive Grants under
      Section 6
      hereof,
      subject to such restrictions, conditions and other terms as the Board may
      determine.

     

    12.2  
      Restrictions.

     

    At
      the
      time a Grant of Restricted Stock or Restricted Stock Units is made, the Board
      shall establish a period of time (the “Restricted Period”) applicable to such
      Restricted Stock or Restricted Stock Units. Each Grant of Restricted Stock
      or
      Restricted Stock Units may be subject to a different Restricted Period. The
      Board may, in its sole discretion, at the time a Grant of Restricted Stock
      or
      Restricted Stock Units is made, prescribe restrictions in addition to or other
      than the expiration of the Restricted Period, including the satisfaction of
      corporate or individual performance objectives, which may be applicable to
      all
      or any portion of the Restricted Stock or Restricted Stock Units. Such
      performance objectives shall be established in writing by the Board prior to
      the
      ninetieth day of the year in which the Grant is made and while the outcome
      is
      substantially uncertain. Performance objectives shall be based on a number
      of
      factors including, but not limited to, Stock price, market share, sales,
      earnings per share, return on equity or costs. Performance objectives may
      include positive results, maintaining the status quo or limiting economic
      losses. Subject to the fourth sentence of this
      Section 12.2
      , the
      Board also may, in its sole discretion, shorten or terminate the Restricted
      Period or waive any other restrictions applicable to all or a portion of the
      Restricted Stock or Restricted Stock Units. Neither Restricted Stock nor
      Restricted Stock Units may be sold, transferred, assigned, pledged or otherwise
      encumbered or disposed of during the Restricted Period or prior to the
      satisfaction of any other restrictions prescribed by the Board with respect
      to
      such Restricted Stock or Restricted Stock Units.

     

    12.3  
      Restricted Stock Certificates.

     

    The
      Company shall issue, in the name of each Grantee to whom Restricted Stock has
      been granted, stock certificates representing the total number of shares of
      Restricted Stock granted to the Grantee, as soon as reasonably practicable
      after
      the Grant Date. The Board may provide in an Award Agreement that either
      (i) the Secretary of the Company shall hold such certificates for the
      Grantees' benefit until such time as the Restricted Stock is forfeited to the
      Company
      ,
      or the
      restrictions lapse, or (ii) such certificates shall be delivered to the
      Grantee, provided, however, that such certificates shall bear a legend or
      legends that complies with the applicable securities laws and regulations and
      makes appropriate reference to the restrictions imposed under the Plan and
      the
      Award Agreement.

     

    
      
        
        

      

      
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    12.4  
      Rights of Holders of Restricted Stock.

     

    Unless
      the Board otherwise provides in an Award Agreement, holders of Restricted Stock
      shall have the right to vote such Stock and the right to receive any dividends
      declared or paid with respect to such Stock. The Board may provide that any
      dividends paid on Restricted Stock must be reinvested in shares of Stock, which
      may or may not be subject to the same vesting conditions and restrictions
      applicable to such Restricted Stock. All distributions, if any, received by
      a
      Grantee with respect to Restricted Stock as a result of any stock split, stock
      dividend, combination of shares or other similar transaction shall be subject
      to
      the restrictions applicable to the original Grant.

     

    12.5  
      Rights of Holders of Restricted Stock Units.

     

    Unless
      the Board otherwise provides in an Award Agreement, holders of Restricted Stock
      Units shall have no rights as stockholders of the Company. The Board may provide
      in an Award Agreement evidencing a Grant of Restricted Stock Units that the
      holder of such Restricted Stock Units shall be entitled to receive, upon the
      Company's payment of a cash dividend on its outstanding Stock, a cash payment
      for each Restricted Stock Unit held equal to the per-share dividend paid on
      the
      Stock. Such Award Agreement may also provide that such cash payment will be
      deemed reinvested in additional Restricted Stock Units at a price per unit
      equal
      to the Fair Market Value of a share of Stock on the date that such dividend
      is
      paid.

     

    12.6  
      Termination of Employment or Other Relationship.

     

    Unless
      otherwise provided by the Board, upon the termination of a Grantee's employment
      or other relationship with the Company or Subsidiary other than by reason of
      death or “permanent and total disability” (within the meaning of
      Section 22(e)(3) of the Code), any shares of Restricted Stock or
      Restricted Stock Units held by such Grantee that have not vested, or with
      respect to which all applicable restrictions and conditions have not lapsed,
      shall immediately be deemed forfeited. Upon forfeiture of Restricted Stock
      or
      Restricted Stock Units, the Grantee shall have no further rights with respect
      to
      such Grant, including but not limited to any right to vote Restricted Stock
      or
      any right to receive dividends with respect to shares of Restricted Stock or
      Restricted Stock Units. Whether a termination of employment or other
      relationship shall have occurred for purposes of the Plan shall be determined
      by
      the Board, which determination shall be final and conclusive. For purposes
      of
      the Plan, a termination of employment, service or other relationship shall
      not
      be deemed to occur if the Grantee is immediately thereafter a director of the
      Company or an affiliate.

     

    12.7  
      Rights in the Event of Death.

     

    Unless
      otherwise provided by the Board, if a Grantee dies while employed by the Company
      or Subsidiary, all Restricted Stock or Restricted Stock Units granted to such
      Grantee shall fully vest on the date of death, and the shares of Stock
      represented thereby shall be deliverable in accordance with the terms of the
      Plan to the executors, administrators, legatees or distributees of the Grantee's
      estate.

     

    
      
        
        

      

      
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    12.8  
      Rights in the Event of Disability.

     

    Unless
      otherwise provided by the Board, if a Grantee's employment or other relationship
      with the Company or Subsidiary is terminated by reason of the “permanent and
      total disability” (within the meaning of Section 22(e)(3) of the Code)
      of such Grantee, such Grantee's Restricted Stock or Restricted Stock Units
      shall
      continue to vest in accordance with the applicable Award Agreement for a period
      of one year after such termination of employment or service, subject to the
      earlier forfeiture of such Restricted Stock or Restricted Stock Units in
      accordance with the terms of the applicable Award Agreement. Whether a
      termination of employment or service is to be considered by reason of “permanent
      and total disability” for purposes of the Plan shall be determined by the Board,
      which determination shall be final and conclusive.

     

    12.9  
      Delivery of Stock and Payment Therefor.

     

    Upon
      the
      expiration or termination of the Restricted Period and the satisfaction of
      any
      other conditions prescribed by the Board, the restrictions applicable to shares
      of Restricted Stock or Restricted Stock Units shall lapse, and, unless otherwise
      provided in the Award Agreement, upon payment by the Grantee to the Company,
      in
      cash or by check, of the greater of (i) the aggregate par value of the
      shares of Stock represented by such Restricted Stock or Restricted Stock Units
      or (ii) the purchase price, if any, specified in the Award agreement
      relating to such Restricted Stock or Restricted Stock Units, a stock certificate
      for such shares shall be delivered, free of all such restrictions, to the
      Grantee or the Grantee's beneficiary or estate, as the case may be.

     

    13.  
      CERTAIN PROVISIONS APPLICABLE TO AWARDS

     

    13.1  
      Stand-Alone, Additional, Tandem, and Substitute Grants.

     

    Grants
      under the Plan may, in the discretion of the Board, be granted either alone
      or
      in addition to, in tandem with or in substitution or exchange for, any other
      Grant or any award granted under another plan of the Company, any affiliate
      or
      any business entity to be acquired by the Company or an affiliate, or any other
      right of a Grantee to receive payment from the Company or any affiliate. Such
      additional, tandem and substitute or exchange Grants may be awarded at any
      time.
      If a Grant is awarded in substitution or exchange for another Grant, the Board
      shall require the surrender of such other Grant in consideration for the new
      Grant. In addition, Grants may be made in lieu of cash compensation, including
      in lieu of cash amounts payable under other plans of the Company or any
      affiliate, in which the value of Stock subject to the Grant is equivalent in
      value to the cash compensation (for example, Restricted Stock), or in which
      the
      exercise price, grant price or purchase price of the Grant in the nature of
      a
      right that may be exercised is equal to the Fair Market Value of the underlying
      Stock minus the value of the cash compensation surrendered (for example, Options
      granted with an exercise price “discounted” by the amount of the cash
      compensation surrendered).

     

    13.2  
      Term of Grant.

     

    The
      term
      of each Grant shall be for such period as may be determined by the Board;
      provided that in no event shall the term of any Option exceed a period of ten
      years (or such shorter term as may be required in respect of an Incentive Stock
      Option under Section 422 of the Code).

     

    13.3  
      Form and Timing of Payment Under Grants; Deferrals.

     

    Subject
      to the terms of the Plan and any applicable Award Agreement, payments to be
      made
      by the Company or an affiliate upon the exercise of an Option or other Grant
      may
      be made in such forms as the Board shall determine, including, without
      limitation, cash, Stock, other Grants or other property, and may be made in
      a
      single payment or transfer, in installments, or on a deferred basis. The
      settlement of any Grant
      may
      be accelerated, and cash paid in lieu of Stock in connection with such
      settlement, in the discretion of the Board or upon occurrence of one or more
      specified events. Installment or deferred payments may be required by the Board
      or permitted at the election of the Grantee on terms and conditions established
      by the Board. Payments may include, without limitation, provisions for the
      payment or crediting of a reasonable interest rate on installment or deferred
      payments or the grant or crediting of dividend equivalents or other amounts
      in
      respect of installment or deferred payments denominated in Stock.

     


    
      
        
        

      

      
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    14.  
      PARACHUTE LIMITATIONS

     

    Notwithstanding
      any other provision of this Plan or of any other agreement, contract, or
      understanding heretofore or hereafter entered into by a Grantee with the Company
      or any affiliate, except an agreement, contract, or understanding hereafter
      entered into that expressly modifies or excludes application of this paragraph
      (an “Other Agreement”), and notwithstanding any formal or informal plan or other
      arrangement for the direct or indirect provision of compensation to the Grantee
      (including groups or classes of participants or beneficiaries of which the
      Grantee is a member), whether or not such compensation is deferred, is in cash
      or is in the form of a benefit to or for the Grantee (a “Benefit Arrangement”),
      if the Grantee is a “disqualified individual,” as defined in
      Section 280G(c) of the Code, any Option, Restricted Stock or
      Restricted Stock Unit held by that Grantee and any right to receive any payment
      or other benefit under this Plan shall not become exercisable or vested
      (i) to the extent that such right to exercise, vesting, payment or benefit,
      taking into account all other rights, payments, or benefits to or for the
      Grantee under this Plan, all Other Agreements and all Benefit Arrangements,
      would cause any payment or benefit to the Grantee under this Plan to be
      considered a “parachute payment” within the meaning of
      Section 280G(b)(2) of the Code as then in effect (a “Parachute
      Payment”)
      and
      (ii) if, as a result of receiving a Parachute Payment, the aggregate
      after-tax amounts received by the Grantee from the Company under this Plan,
      all
      Other Agreements and all Benefit Arrangements would be less than the maximum
      after-tax amount that could be received by the Grantee without causing any
      such
      payment or benefit to be considered a Parachute Payment. In the event that
      the
      receipt of any such right to exercise, vesting, payment or benefit under this
      Plan, in conjunction with all other rights, payments or benefits to or for
      the
      Grantee under any Other Agreement or any Benefit Arrangement would cause the
      Grantee to be considered to have received a Parachute Payment under this Plan
      that would have the effect of decreasing the after-tax amount received by the
      Grantee as described in clause (ii) of the preceding sentence, then the
      Grantee shall have the right, in the Grantee's sole discretion, to designate
      those rights, payments or benefits under this Plan, any Other Agreements and
      any
      Benefit Arrangements that should be reduced or eliminated so as to avoid having
      the payment or benefit to the Grantee under this Plan be deemed to be a
      Parachute Payment.

     

    15.  
      REQUIREMENTS OF LAW

     

    15.1  
      General.

     

    The
      Company shall not be required to sell or issue any shares of Stock under any
      Grant if the sale or issuance of such shares would constitute a violation by
      the
      Grantee, any other individual exercising a right emanating from such Grant,
      or
      the Company of any provision of any law or regulation of any governmental
      authority, including without limitation any federal or state securities laws
      or
      regulations. If at any time the Company shall determine, in its discretion,
      that
      the listing, registration or qualification of any shares subject to a Grant
      upon
      any securities exchange or under any governmental regulatory body is necessary
      or desirable as a condition of, or in connection with, the issuance or purchase
      of shares hereunder, no shares of Stock may be issued or sold to the Grantee
      or
      any other individual exercising an Option pursuant to such Grant unless such
      listing, registration, qualification, consent or approval shall have been
      effected or obtained free of any conditions not acceptable to the Company,
      and
      any delay caused thereby shall in no way
      affect the date of termination of the Grant. Specifically, in connection with
      the Securities Act, upon the exercise of any right emanating from such Grant
      or
      the delivery of any shares of Restricted Stock or Stock underlying Restricted
      Stock Units, unless a registration statement under such Act is in effect with
      respect to the shares of Stock covered by such Grant, the Company shall not
      be
      required to sell or issue such shares unless the Board has received evidence
      satisfactory to it that the Grantee or any other individual exercising an Option
      may acquire such shares pursuant to an exemption from registration under the
      Securities Act. Any determination in this connection by the Board shall be
      final, binding and conclusive. The Company may, but shall in no event be
      obligated to, register any securities covered hereby pursuant to the Securities
      Act. The Company shall not be obligated to take any affirmative action in order
      to cause the exercise of an Option or the issuance of shares of Stock pursuant
      to the Plan to comply with any law or regulation of any governmental authority.
      As to any jurisdiction that expressly imposes the requirement that an Option
      shall not be exercisable until the shares of Stock covered by such Option are
      registered or are exempt from registration, the exercise of such Option (under
      circumstances in which the laws of such jurisdiction apply) shall be deemed
      conditioned upon the effectiveness of such registration or the availability
      of
      such an exemption.


    
      
        
        

      

      
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    15.2  
      Rule 16b-3.

     

    During
      any time when the Company has a class of equity security registered under
      Section 12 of the Exchange Act, it is the intent of the Company that Grants
      pursuant to the Plan and the exercise of Options granted hereunder will qualify
      for the exemption provided by Rule 16b-3 under the Exchange Act. To the
      extent that any provision of the Plan or action by the Board does not comply
      with the requirements of Rule 16b-3, it shall be deemed inoperative to the
      extent permitted by law and deemed advisable by the Board, and shall not affect
      the validity of the Plan. In the event that Rule 16b-3 is revised or
      replaced, the Board may exercise its discretion to modify this Plan in any
      respect necessary to satisfy the requirements of, or to take advantage of any
      features of, the revised exemption or its replacement.

     

    16.  
      AMENDMENT AND TERMINATION OF THE PLAN

     

    The
      Board
      may, at any time and from time to time, amend, suspend or terminate the Plan
      as
      to any shares of Stock as to which Grants have not been made;
      provided
      ,
      however
      , that
      the Board shall not, without approval of the Company's stockholders, amend
      the
      Plan such that it does not comply with the Code. Except as permitted under
      this
      Section 16
      or
      Section 17
      hereof,
      no amendment, suspension or termination of the Plan shall, without the consent
      of the Grantee, alter or impair rights or obligations under any Grant
      theretofore awarded under the Plan.

     

    17.  
      EFFECT OF CHANGES IN CAPITALIZATION

     

    17.1  
      Changes in Stock.

     

    If
      the
      number of outstanding shares of Stock is increased or decreased or the shares
      of
      Stock are changed into or exchanged for a different number or kind of shares
      or
      other securities of the Company on account of any recapitalization,
      reclassification, stock split, reverse split, combination of shares, exchange
      of
      shares, stock dividend or other distribution payable in capital stock, or other
      increase or decrease in such shares effected without receipt of consideration
      by
      the Company occurring after the Effective Date, the number and kinds of shares
      for which Grants of Options, Restricted Stock and Restricted Stock Units may
      be
      made under the Plan shall be adjusted proportionately and accordingly by the
      Company. In addition, the number and kind of shares for which Grants are
      outstanding shall be adjusted proportionately and accordingly so that the
      proportionate interest of the Grantee immediately following such event shall
      be,
      to the extent practicable, the same as immediately before such event. Any such
      adjustment in outstanding Options shall not change the aggregate Option Price
      payable with respect to shares that are subject to the unexercised portion
      of an
      Option outstanding but shall include a corresponding proportionate adjustment
      in
      the Option Price per share. The conversion of any convertible securities of
      the
      Company shall not be treated as an increase in shares effected without receipt
      of consideration.

     

    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

    

     

    17.2  
      Reorganization in Which the Company Is the Surviving Entity and in Which No
      Change of Control Occurs.

     

    Subject
      to
      Section 17.3
      hereof,
      if the Company shall be the surviving entity in any reorganization, merger
      or
      consolidation of the Company with one or more other entities and in which no
      Change of Control occurs, any Option theretofore granted pursuant to the Plan
      shall pertain to and apply to the securities to which a holder of the number
      of
      shares of Stock subject to such Option would have been entitled immediately
      following such reorganization, merger or consolidation, with a corresponding
      proportionate adjustment of the Option Price per share so that the aggregate
      Option Price thereafter shall be the same as the aggregate Option Price of
      the
      shares remaining subject to the Option immediately prior to such reorganization,
      merger or consolidation. Subject to any contrary language in an Award Agreement
      evidencing a Grant of Restricted Stock, any restrictions applicable to such
      Restricted Stock shall apply as well to any replacement shares received by
      the
      Grantee as a result of the reorganization, merger or consolidation.

     

    17.3  
      Reorganization, Sale of Assets or Sale of Stock Which Involves a Change of
      Control.

     

    Subject
      to the exceptions set forth in the last sentence of this
      Section 17.3,
      (i) upon the occurrence of a Change of Control, all outstanding shares of
      Restricted Stock and Restricted Stock Units shall be deemed to have vested,
      and
      all restrictions and conditions applicable to such shares of Restricted Stock
      and Restricted Stock Units shall be deemed to have lapsed, immediately prior
      to
      the occurrence of such Change of Control, and (ii) fifteen days prior to
      the scheduled consummation of a Change of Control, all Options outstanding
      hereunder shall become immediately exercisable and shall remain exercisable
      for
      a period of fifteen days. Any exercise of an Option during such fifteen-day
      period shall be conditioned upon the consummation of the event and shall be
      effective only immediately before the consummation of the event. Upon
      consummation of any Change of Control, the Plan and all outstanding but
      unexercised Options shall terminate. The Board shall send written notice of
      an
      event that will result in such a termination to all individuals who hold Options
      not later than the time at which the Company gives notice thereof to its
      stockholders. This
      Section 17.3
      shall
      not apply to any Change of Control to the extent that (A) provision is made
      in writing in connection with such Change of Control for the assumption of
      the
      Options, Restricted Stock and Restricted Stock Units theretofore granted, or
      for
      the substitution for such Options, Restricted Stock and Restricted Stock Units
      of new options, restricted stock and restricted stock units covering the stock
      of a successor entity, or a parent or subsidiary thereof, with appropriate
      adjustments as to the number and kinds of shares or units and exercise prices,
      in which event the Plan and Options, Restricted Stock and Restricted Stock
      Units
      theretofore granted shall continue in the manner and under the terms so provided
      or (B) a majority of the full Board determines that such Change of Control
      shall not trigger application of the provisions of this
      Section 17.3
      .

     

    17.4  
      Adjustments.

     

    Adjustments
      under this
      Section 17
      related
      to shares of Stock or securities of the Company shall be made by the Board,
      whose determination in that respect shall be final, binding and conclusive.
      No
      fractional shares or other securities shall be issued pursuant to any such
      adjustment, and any fractions resulting from any such adjustment shall be
      eliminated in each case by rounding downward to the nearest whole
      share.

     

    
      
        
        

      

      
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    17.5  
      No Limitations on Company.

     

    The
      making of Grants pursuant to the Plan shall not affect or limit in any way
      the
      right or power of the Company to make adjustments, reclassifications,
      reorganizations or changes of its capital or business structure or to merge,
      consolidate, dissolve or liquidate, or to sell or transfer all or any part
      of
      its business or assets.

     

    18.  
      DISCLAIMER OF RIGHTS

     

    No
      provision in the Plan or in any Grant or Award Agreement shall be construed
      to
      confer upon any individual the right to remain in the employ or service of
      the
      Company or any affiliate, or to interfere in any way with any contractual or
      other right or authority of the Company either to increase or decrease the
      compensation or other payments to any individual at any time, or to terminate
      any employment or other relationship between any individual and the Company.
      In
      addition, notwithstanding anything contained in the Plan to the contrary, unless
      otherwise stated in the applicable Award Agreement, no Grant awarded under
      the
      Plan shall be affected by any change of duties or position of the Grantee,
      so
      long as such Grantee continues to be a director, officer, consultant or employee
      of the Company or any affiliate. The obligation of the Company to pay any
      benefits pursuant to this Plan shall be interpreted as a contractual obligation
      to pay only those amounts described herein, in the manner and under the
      conditions prescribed herein. The Plan shall in no way be interpreted to require
      the Company to transfer any amounts to a third party trustee or otherwise hold
      any amounts in trust or escrow for payment to any participant or beneficiary
      under the terms of the Plan. No Grantee shall have any of the rights of a
      stockholder with respect to the shares of Stock subject to an Option except
      to
      the extent the certificates for such shares of Stock shall have been issued
      upon
      the exercise of the Option.

     

    19.  
      NONEXCLUSIVITY OF THE PLAN

     

    Neither
      the adoption of the Plan nor the submission of the Plan to the stockholders
      of
      the Company for approval shall be construed as creating any limitations upon
      the
      right and authority of the Board to adopt such other incentive compensation
      arrangements (which arrangements may be applicable either generally to a class
      or classes of individuals or specifically to a particular individual or
      particular individuals) as the Board in its discretion determines desirable,
      including, without limitation, the granting of stock options otherwise than
      under the Plan.

     

    20.  
      WITHHOLDING TAXES

     

    The
      Company or any affiliate, as the case may be, shall have the right to deduct
      from payments of any kind otherwise due to a Grantee any Federal, state or
      local
      taxes of any kind required by law to be withheld with respect to the vesting
      of
      or other lapse of restrictions applicable to Restricted Stock or Restricted
      Stock Units or upon the issuance of any shares of Stock upon the exercise of
      an
      Option. At the time of such vesting, lapse or exercise, the Grantee shall pay
      to
      the Company or affiliate, as the case may be, any amount that the Company or
      affiliate may reasonably determine to be necessary to satisfy such withholding
      obligation. Subject to the prior approval of the Company or the affiliate,
      which
      may be withheld by the Company or the affiliate, as the case may be, in its
      sole
      discretion, the Grantee may elect to satisfy such obligations, in whole or
      in
      part, (i) by causing the Company or the affiliate to withhold shares of
      Stock otherwise issuable to the Grantee in an amount equal to the statutory
      withholding amount or (ii) by delivering to the Company or the affiliate
      shares of Stock already owned by the Grantee. The shares of Stock so delivered
      or withheld shall have an aggregate Fair Market Value equal to such withholding
      obligations. The Fair Market Value of the shares of Stock used to satisfy such
      withholding obligation shall be determined by the Company or the affiliate
      as of
      the date that the amount of tax to be withheld is to be determined. A Grantee
      who has made an election pursuant to this
      Section 20
      may
      satisfy his or her withholding
      obligation only with shares of Stock that are not subject to any repurchase,
      forfeiture, unfulfilled vesting or other similar requirements.

     

    
      
        
        

      

      
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    21.  
      CAPTIONS

     

    The
      use
      of captions in this Plan or any Award Agreement is for the convenience of
      reference only and shall not affect the meaning of any provision of the Plan
      or
      such Award Agreement.

     

    22.  
      OTHER PROVISIONS

     

    Each
      Grant awarded under the Plan may contain such other terms and conditions not
      inconsistent with the Plan as may be determined by the Board, in its sole
      discretion.

     

    23.  
      NUMBER AND GENDER

     

    With
      respect to words used in this Plan, the singular form shall include the plural
      form, the masculine gender shall include the feminine gender, etc., as the
      context requires.

     

    24.  
      SEVERABILITY

     

    If
      any
      provision of the Plan or any Award Agreement shall be determined to be illegal
      or unenforceable by any court of law in any jurisdiction, the remaining
      provisions hereof and thereof shall be severable and enforceable in accordance
      with their terms, and all provisions shall remain enforceable in any other
      jurisdiction.

     

    25.  
      POOLING

     

    In
      the
      event any provision of the Plan or the Award Agreement would prevent the use
      of
      pooling of interests accounting in a corporate transaction involving the Company
      and such transaction is contingent upon pooling of interests accounting, then
      that provision shall be deemed amended or revoked to the extent required to
      preserve such pooling of interests. The Company may require in an Award
      Agreement that a Grantee who receives a Grant under the Plan shall, upon advice
      from the Company, take (or refrain from taking, as appropriate) all actions
      necessary or desirable to ensure that pooling of interests accounting is
      available.

     

    26.  
      GOVERNING LAW

     

    The
      validity and construction of this Plan and the instruments evidencing the Grants
      awarded hereunder shall be governed by the laws of the State of Delaware
      (excluding the choice of law rules thereof).

     

    
      
        
        

      

      
        15