Exhibit
10.1


 


priceline.com Incorporated


1999 Omnibus Plan


(As Amended and Restated Effective June 4, 2008)


 


1.                                       Establishment
and Purpose.


 


The
priceline.com Incorporated 1999 Omnibus Plan (the “Plan”) is hereby amended and
restated in its entirety, effective as of June 4, 2008.  The Plan is intended to promote the interests
of priceline.com Incorporated (the “Company”) by providing employees of the
Company with appropriate incentives and rewards to encourage them to enter into
and continue in the employ of the Company and to acquire a proprietary interest
in the long-term success of the Company; and to reward the performance of
individual officers, other employees, consultants and directors in fulfilling
their responsibilities for long-range achievements.


 


2.                                       Definitions.


 


As
used in the Plan, the following definitions apply to the terms indicated below:


 


(a)          “Affiliate” shall mean an affiliate of the Company,
as defined in Rule 12b-2 promulgated under Section 12 of the Exchange
Act.


 


(b)         “Agreement” shall mean the written agreement between
the Company and a Participant evidencing an Award.  The Agreement may be in an electronic medium,
may be limited to notation on the books and records of the Company and, unless
otherwise determined by the Board, need not be signed by a representative of
the Company or a Participant.


 


(c)          “Award” shall mean any Option, Restricted Stock or
Other Stock-Based Award granted under the Plan.


 


(d)         “Beneficial Owner” shall have the meaning set forth
in Rule 13d-3 under the Exchange Act.


 


(e)          “Board” shall mean the Board of Directors of the
Company.


 


(f)            “Cause” shall mean (i) the willful and
continued failure by the Participant substantially to perform his or her duties
and obligations to the Company (other than any such failure resulting from his
or her incapacity due to physical or mental illness); (ii) the willful
engaging by the Participant in misconduct which is materially injurious to the
Company; (iii) the commission by the Participant of a felony; or (iv) the
commission by the Participant of a crime against the Company which is
materially injurious to the Company.  For
purposes of this Section 2(f), no act, or failure to act, on a Participant’s
part shall be considered “willful” unless done, or omitted to be done, by the
Participant in bad faith and without reasonable belief that his or her action
or omission was in the best interest of the Company.  Determination of Cause shall be made by the
Committee in its sole discretion.


 


(g)         “Change in Control” shall mean the occurrence of any
one of the following events, except as otherwise specified in any particular
Agreement:


 

















 


(i)                                                       any Person is
or becomes the Beneficial Owner, directly or indirectly, of securities of the
Company representing thirty-five percent (35%) or more of the combined voting
power of the Company’s then outstanding securities eligible to vote for the
election of the Board (the “Company Voting Securities”); provided, however,
that the event described in this Section 2(g)(i) shall not be deemed
to be a Change in Control if such event results from the acquisition of Company
Voting Securities pursuant to a Non-Qualifying Transaction (as defined in Section 2(g)(iii));


 


(ii)                                                    individuals
who, on the date an Award is granted (the “Grant Date”), constitute the Board
(the “Incumbent Directors”) cease for any reason to constitute at least a
majority of the Board; provided, however, that any person becoming a director
subsequent to the Grant Date, whose election or nomination for election was
approved (either by a specific vote or by approval of the proxy statement of
the Company in which such person is named as a nominee for director, without
written objection to such nomination) by a vote of at least two-thirds of the
directors who were, as of the date of such approval, Incumbent Directors, shall
be an Incumbent Director; provided, further, that no individual initially
appointed, elected or nominated as a director of the Company as a result of an
actual or threatened election contest with respect to the election or removal of
directors or as a result of any other actual or threatened solicitation of
proxies or consents by or on behalf of any person other than the Board shall be
deemed to be an Incumbent Director;


 


(iii)                                                 the
consummation of a merger, consolidation, statutory share exchange or similar
form of corporate transaction involving (A) the Company or (B) any of
its wholly owned subsidiaries pursuant to which, in the case of this clause
(B), Company Voting Securities are issued or issuable (any event described in
the immediately preceding clause (A) or (B), a “Reorganization”) or the
sale or other disposition of all or substantially all of the assets of the
Company to an entity that is not an Affiliate of the Company (a “Sale”), unless
immediately following such Reorganization or Sale: (1) more than 50% of
the total voting power (in respect of the election of directors, or similar
officials in the case of an entity other than a corporation) of (x) the
Company (or, if the Company ceases to exist, the entity resulting from such
Reorganization), or, in the case of a Sale, the entity which has acquired all
or substantially all of the assets of the Company (in either case, the “Surviving
Entity”), or (y) if applicable, the ultimate parent entity that directly
or indirectly has Beneficial Ownership of more than 50% of the total voting
power (in respect of the election of directors, or similar officials in the
case of an entity other than a corporation) of the Surviving Entity (the “Parent
Entity”), is represented by Company Voting Securities that were outstanding
immediately prior to such Reorganization or Sale (or, if applicable, is
represented by shares into which such Company Voting Securities were converted
pursuant to such Reorganization or Sale), (2) no Person is or becomes the
Beneficial Owner, directly or indirectly, of 35% or more of the total voting
power (in respect of the election of directors, or similar officials in the
case of an entity other than a 


 

















 


corporation)
of the outstanding voting securities of the Parent Entity (or, if there is no
Parent Entity, the Surviving Entity) and (3) at least a majority of the
members of the board of directors (or similar officials in the case of an
entity other than a corporation) of the Parent Entity (or, if there is no
Parent Entity, the Surviving Entity) following the consummation of the
Reorganization or Sale were, at the time of the approval by the Board of the
execution of the initial agreement providing for such Reorganization or Sale,
Incumbent Directors (any Reorganization or Sale which satisfies all of the
criteria specified in (1), (2) and (3) above being deemed to be a “Non-Qualifying
Transaction”); or


 


(iv)                                                the
stockholders of the Company approve a plan of complete liquidation or
dissolution of the Company.


 


Notwithstanding
the foregoing, if any Person becomes the Beneficial Owner, directly or
indirectly, of 35% or more of the combined voting power of Company Voting
Securities solely as a result of the acquisition of Company Voting Securities
by the Company which reduces the number of Company Voting Securities
outstanding, such increased amount shall be deemed not to result in a Change in
Control; provided, however, that if such Person subsequently becomes the
Beneficial Owner, directly or indirectly, of additional Company Voting
Securities that increases the percentage of outstanding Company Voting
Securities Beneficially Owned by such Person to a percentage equal to or
greater than 35, a Change in Control of the Company shall then be deemed to
occur.


 


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


 


(i)             “Committee” shall mean (i) with respect to the
application of this Plan to employees and consultants, a committee established
by the Board, which committee shall be intended to consist of two or more
non-employee directors, each of whom shall be a “non-employee director” as
defined in Rule 16b-3 of the Exchange Act and an “outside director” as
defined under Section 162(m) of the Code and (ii) with respect
to the application of this Plan to Non-Employee Directors, the Board.


 


(j)             “Company” shall mean priceline.com Incorporated, a
corporation organized under the laws of the State of Delaware, or any successor
corporation.


 


(k)          “Director” shall mean a member of the Board.


 


(l)             “Disability” shall mean: (i) any physical or
mental condition that would qualify a Participant for a disability benefit
under the long-term disability plan maintained by the Company and applicable to
him or her; (ii) when used in connection with the exercise of an Incentive
Stock Option following termination of employment, disability within the meaning
of Section 22(e)(3) of the Code, or (iii) such other condition
as may be determined in the sole discretion of the Committee to constitute
Disability.


 


(m)       “Effective Date” shall mean June 4, 2008,
provided that the Plan had been approved by the stockholders of the Company at
the annual meeting of stockholders in 2008.


 

















 


(n)         “Exchange Act” shall mean the Securities Exchange Act
of 1934, as amended from time to time.


 


(o)         “Executive Officer” shall have the meaning set forth
in Rule 3b-7 promulgated under the Exchange Act.


 


(p)         “Fair Market Value” of a share of Stock as of a
particular date shall mean the closing sales price per share of Stock on the
national securities exchange on which the Stock is principally traded, for the
last preceding date on which there was a sale of such Stock on such exchange.


 


(q)         “Incentive Stock Option” shall mean an Option that
is an “incentive stock option” within the meaning of Section 422 of the
Code, or any successor provision, and that is designated by the Committee as an
Incentive Stock Option.


 


(r)            “Issue Date” shall mean the date established by the
Company on which certificates representing Restricted Stock, if issued, shall
be issued by the Company or the date when Restricted Stock is transferred
pursuant to the terms of Section 8(e).


 


(s)          “Non-Employee Director” shall mean a member of the
Board who is not a current employee of the Company.


 


(t)            “Non-Qualified Option” shall mean an Option other
than an Incentive Stock Option.


 


(u)         “Option” shall mean an option to purchase a number
of shares of Stock granted pursuant to Section 7.


 


(v)         “Other Stock-Based Award” shall mean an award
granted pursuant to Section 9 hereof.


 


(w)       “Partial Exercise” shall mean an exercise of an
Award for less than the full extent permitted at the time of such exercise.


 


(x)           “Participant” shall mean (i) an employee,
consultant or Non-Employee Director of the Company to whom an Award is granted
hereunder and (ii) any such persons successors, heirs, executors and
administrators, as the case may be, in such capacity.


 


(y)         “Performance Goals” shall mean performance goals
approved by the Committee, which in the case of an Award intended to comply
with Section 162(m) of the Code shall be based on one or more of the
following criteria: (i) pre-tax income or after-tax income, (ii) operating
profit, (iii) return on equity, as sets, capital or investment, (iv) earnings
or book value per share, (v) sales or revenues, (vi) operating
expenses or (vii) Stock price appreciation.  Where applicable, the Performance Goals may
be expressed in terms of attaining a specified level of the particular criteria
or the attainment of a percentage increase or decrease in the particular
criteria, and may be applied to one or more of the Company, a Subsidiary or
Affiliate, or a division or strategic business unit of the Company, or may be
applied to the performance of the Company relative to a market index, a group
of other companies or a combination thereof, all as determined by the
Committee.  The Performance Goals may
include a threshold level of performance below which no vesting will occur,
levels of 


 

















 


performance
at which specified vesting will occur, and a maximum level of performance at
which full vesting will occur.  The
Committee shall have the authority to make equitable adjustments to the
Performance Goals in recognition of, among other things, unusual or
non-recurring events affecting the Company or any Subsidiary or Affiliate or
the financial statements of the Company or any Subsidiary or Affiliate, in
response to changes in applicable laws or regulations, or to account for items
of gain, loss or expense determined to be extraordinary or unusual in nature or
infrequent in occurrence or related to the disposal of a segment of a business
or related to a change in accounting principles.


 


(z)           “Person” shall have the meaning set forth in Section 3(a)(9) of
the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof,
except that such term shall not include (i) the Company or any Subsidiary,
(ii) a trustee or other fiduciary holding securities under an employee
benefit plan (or related trust) sponsored or maintained by the Company or any
Subsidiary, (iii) an underwriter temporarily holding securities pursuant
to an offering of such securities, (iv) a corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the same
proportions as their ownership of shares of Stock, or (v) the Participant
or any group of persons including the Participant, or any entity controlled by
the Participant or any group of persons including the Participant; provided the
Participant is an executive officer, director or more than 10% owner of Stock.


 


(aa)    “Plan” shall mean the priceline.com 1999 Omnibus
Plan, as amended from time to time.


 


(bb)  “Restricted Stock” shall mean a share of Stock which
is granted pursuant to the terms of Section 8 hereof and which is subject
to the restrictions set forth in Section 8(c).


 


(cc)    “Rule 16b-3” shall mean the Rule 16b-3
promulgated under the Exchange Act, as amended from time to time.


 


(dd)  “Securities Act” shall mean the Securities Act of
1933, as amended from time to time.


 


(ee)    “Stock” shall mean shares of the common stock, par
value $.01 per share, of the Company.


 


(ff)        “Subsidiary” shall mean any corporation in an
unbroken chain of corporations beginning with the Company if, at the time of
granting of an Award, each of the corporations (other than the last corporation
in the unbroken chain) owns stock possessing 50% or more of the total combined
voting power of all classes of stock in one of the other corporations in the
chain.


 


(gg)  “Vesting Date” shall mean the date established by
the Committee on which Restricted Stock may vest.


 


3.                                       Stock
Subject to the Plan.


 


                                                The maximum
number of shares of Stock reserved for the grant or settlement of Awards under
the Plan shall be 9,195,833  shares, 7,895,833 of which are
shares previously authorized and 


 

















 


available
under the Plan prior to the Effective Date and 1,300,000 of which are additional shares that shall be authorized
and available on the Effective Date pursuant to this amended and restated
version of the Plan, subject to adjustment as provided herein.  No more than 1,250,000 shares of Stock may be
awarded in respect of Options, no more than 416,666 shares of Stock may be
awarded in respect of Restricted Stock and no more than 833,334 shares of Stock
may be awarded in respect of Other Stock-Based Awards to a single individual in
any given year during the life of the Plan, which amounts shall be subject to
adjustment as provided herein. 
Determinations made in respect of the limitation set forth in the
preceding sentence shall be made in a manner consistent with Section 162(m) of
the Code.  Such shares may, in whole or
in part, be authorized but unissued shares or shares that shall have been or
may be reacquired by the Company in the open market, in private transactions or
otherwise.  Subject to Section 18(b),
if any shares of Stock subject to an Award are forfeited, cancelled, exchanged
or surrendered or if an Award otherwise terminates or expires without a
distribution of shares to the holder of such Award, the shares of Stock with
respect to such Award shall, to the extent of any such forfeiture,
cancellation, exchange, surrender, termination or expiration, again be
available for Awards under the Plan and pursuant to the terms of Sections 8(a) and
9.


 


                                                Notwithstanding
anything to the contrary contained herein: (a) shares of Stock tendered in
payment of the exercise price of an Option shall not be added to the aggregate
plan limit described above; (b) shares of Stock withheld by the Company to
satisfy any tax withholding obligations shall not be added to the aggregate
plan limit described above; and (c) shares of Stock that are repurchased
by the Company with Option proceeds shall not be added to the aggregate plan
limit described above.


 


Except
as provided in an Award Agreement, in the event that the Committee shall
determine that any dividend or other distribution (whether in the form of cash,
Stock, or other property), recapitalization, Stock split, reverse split,
reorganization, merger, consolidation, spin-off, combination, repurchase, or share
exchange, or other similar corporate transaction or event, affects the Stock
such that an adjustment is appropriate in order to prevent dilution or
enlargement of the rights of holders of Awards under the Plan, then the
Committee shall make such equitable changes or adjustments as it deems
necessary or appropriate to any or all of (i) the number and kind of
shares of Stock or other property (including cash) that may thereafter be
issued under this Plan and in connection with Awards, (ii) the number and kind
of shares of Stock or other property (including cash) issued or issuable in
respect of outstanding Awards, (iii) the exercise price, grant price, or
purchase price relating to any Award; provided that, with respect to Incentive
Stock Options, such adjustment shall be made in accordance with Section 424(h) of
the Code, (iv) the Performance Goals and (v) the individual
limitations applicable to Awards.


 


4.                                       Administration
of the Plan.


 


The
Plan shall be administered by the Committee. 
The Committee shall have the authority in its sole discretion, subject
to and not inconsistent with the express provisions of the Plan, to administer
the Plan and to exercise all the powers and authorities either specifically
granted to it under the Plan or necessary or advisable in the administration of
the Plan, including, with out limitation, the authority to grant Awards; to
determine the persons to whom and the time or times at which Awards shall be
granted; to determine the type and number of Awards to be granted, the number
of shares of Stock to which an Award may relate and the terms, conditions,
restrictions and Performance Goals relating to any Award; to determine whether,
to what extent, and under what circumstances an Award may be settled, canceled,
forfeited, exchanged, or surrendered; to make adjustments in the Performance
Goals in recognition of unusual or non-recurring events affecting the Company
or the financial statements of the Company (to the extent 


 

















 


not inconsistent with Section 162(m) of
the Code, if applicable), or in response to changes in applicable laws,
regulations, or accounting principles; to construe and interpret the Plan and
any Award; to prescribe, amend and rescind rules and regulations relating
to the Plan; to determine the terms and provisions of Agreements; and to make
all other determinations deemed necessary or advisable for the administration
of the Plan.


 


The
Committee may, to the extent permitted by law, delegate to one or more of its
members or to one or more officers of the Company, or to one or more agents or
advisors, such duties or powers as it may deem advisable, and the Committee, or
any person to whom duties or powers have been delegated as aforesaid, may
employ one or more persons to render advice with respect to any responsibility
the Board, the Committee or such person may have under the Plan.


 


The
Committee may, in its absolute discretion, without amendment to the Plan, (a) accelerate
the date on which any Option granted under the Plan becomes exercisable, waive
or amend the operation of Plan provisions respecting exercise after termination
of employment or otherwise adjust any of the terms of such Option, (b) accelerate
the Vesting Date or waive any condition imposed hereunder with respect to any
Restricted Stock and (c) otherwise adjust any of the terms applicable to
any Award; provided, however, in each case, that in the event of the occurrence
of a Change in Control, the provisions of Section 10 hereof shall govern
vesting and exercisability schedule of any Award granted hereunder.


 


No
member of the Committee shall be liable for any action, omission or
determination relating to the Plan, and the Company shall indemnify (to the
extent permitted under Delaware law) and hold harmless each member of the
Committee and each other director or employee of the Company to whom any duty
or power relating to the administration or interpretation of the Plan has been
delegated against any cost or expense (including counsel fees) or liability
(including any sum paid in settlement of a claim with the approval of the
Committee) arising out of any action, omission or determination relating to the
Plan, unless, in either case, such action, omission or determination was taken
or made by such member, director or employee in bad faith and without reasonable
belief that it was in the best interests of the Company.


 


5.                                       Eligibility.


 


Incentive
Stock Options shall be granted only to key employees (including officers and
directors who are also employees) of the Company, its parent or any of its
Subsidiaries.  All other Awards may be
granted to officers, independent contractors, key employees and non-employee
directors of the Company or of any of its Subsidiaries and Affiliates.


 


6.                                       Awards
Under the Plan; Non-Employee Director Grants


 


(a) 
Grants.  The Committee may grant Options,
Restricted Stock and Other Stock-Based Awards to Participants in such amounts
and on such terms and conditions, not inconsistent with the Plan, as the
Committee shall determine in its sole and absolute discretion.


 


(b) 
Non-Employee Director Grants.  The
Committee may grant Options, Restricted Stock and Other Stock-Based Awards to
Non-Employee Directors in such amounts and on such terms and conditions, not
inconsistent with the Plan, as the Committee shall determine in its sole and
absolute discretion.  If a Non-Employee
Director subsequently becomes an employee of the Company while remaining a
member of the Board, any Award held under this Plan by such 


 

















 


individual
at the time of such commencement of employment will not be affected
thereby.  Pursuant to this Section 6(b) and
pursuant to procedures established by the Committee, Non-Employee Directors may
be awarded all or any portion of their annual retainer, meeting fees or other
fees in shares of Stock, restricted stock, or other awards under the Plan in
lieu of cash.


 


(c) 
Agreements.  Each Award granted under the
Plan shall be evidenced by an Agreement that shall contain such provisions as
the Committee may, in its sole and absolute discretion, deem necessary or
desirable.


 


(d) 
Notwithstanding the above, no grants under Section (b) above shall be
made to the extent it would exceed the limitations set forth in Section 3
of the Plan with any grants then due being cut back pari passu and such
non-made grants automatically being made at such time as they may be made under
Section 3 (other than as a result of an amendment thereof).


 


7.                                       Options.


 


(a)          Identification of Options. Each Option
shall be clearly identified in the applicable Agreement as either an Incentive
Stock Option or a Non-Qualified Option.


 


(b)         Exercise Price. Each Agreement with
respect to an Option shall set forth the exercise price per share of Stock
payable by the Participant to the Company upon exercise of the Option.  The exercise price per share of Stock shall be
determined by the Committee; provided, however, that in no case shall an Option
have an exercise price per share of Stock that is less than the Fair Market
Value of a share of Stock as of the date on which the Option is granted.


 


(c)          Term and Exercise of Options.


 


	
  (i)

  	
  Each
  Agreement with respect to an Option shall specify the period or periods of
  continuous service by the Participant with the Company or any Subsidiary that
  is necessary before the Option or installments thereof will become
  exercisable. A grant of an Option may provide for the earlier exercise of
  such Option in the event of a Change in Control. The Committee shall
  determine the expiration date of each Option; provided, however, that no
  Option shall be exercisable more than 10 years after the date of grant.
  Unless the applicable Agreement provides otherwise and except in the event of
  a Change in Control, no Option shall be exercisable prior to the first
  anniversary of the date of grant.

  
	
   

  	
   

  
	
  (ii)

  	
  An
  Option may be exercised for all or any portion of the Stock as to which it is
  exercisable, provided that no Partial Exercise of an Option shall be for an
  aggregate exercise price of less than $100.00. The Partial Exercise of an
  Option shall not cause the expiration, termination or cancellation of the
  remaining portion thereof.

  
	
   

  	
   

  
	
  (iii)

  	
  Each
  Agreement with respect to an Option shall specify whether the payment for
  Stock purchased upon the exercise of an Option shall be made by one or a
  combination of the following means: (A) in cash or by personal check,
  certified check, bank cashier’s check or by wire transfer of immediately

  



 

















 


	
   

  	
  available
  funds; (B) in Stock owned by the Participant for at least six months
  prior to the date of exercise and valued at their Fair Market Value on the
  effective date of such exercise; or (C) by such other provision as the
  Committee may from time to time authorize.

  
	
   

  	
   

  
	
  (iv)

  	
  To
  the extent permitted by law, any grant of an Option may provide for deferred
  payment of the exercise price from the proceeds of sale through a broker on a
  date satisfactory to the Company of some or all of the shares to which such
  exercise relates.

  
	
   

  	
   

  
	
  (v)

  	
  Stock
  purchased upon the exercise of an Option shall be in the name of the
  Participant or other person entitled to receive such Stock and transferred or
  delivered to the Participant or such other person as soon as practicable
  following the effective date on which the Option is exercised.

  



 


(d)         Limitations on Incentive Stock
Options.


 


	
  (i)

  	
  To
  the extent that the aggregate Fair Market Value of Stock of the Company with
  respect to which Incentive Stock Options are exercisable for the first time
  by a Participant during any calendar year under the Plan and any other option
  plan of the Company (or any Subsidiary) shall exceed $100,000, such Options
  shall be treated as Non-Qualified Options. Such Fair Market Value shall be
  determined as of the date on which each such Incentive Stock Option is
  granted.

  
	
   

  	
   

  
	
  (ii)

  	
  No
  Incentive Stock Option may be granted to an individual if, at the time of the
  proposed grant; such individual owns (or is attributed to own by virtue of
  the Code) Stock possessing more than ten (10) percent of the total
  combined voting power of all classes of stock of the Company or any
  Subsidiary unless (A) the exercise price of such Incentive Stock Option
  is at least 110 percent of the Fair Market Value of a share of Stock at the
  time such Incentive Stock Option is granted and (B) such Incentive Stock
  Option is not exercisable after the expiration of five years from the date
  such Incentive Stock Option is granted.

  



 


(e)          Effect of Termination of Employment.  If permitted by Section 409A of the Code,
in the event that the employment, directorship or consultancy (together,
hereinafter referred to as “Employment”)  of a
Participant with the Company shall terminate on account of death, Disability,
retirement, Change in Control, termination without Cause, or other special
circumstances (including termination for good reason as determined by the
Board), the Board may, in its sole discretion, accelerate the time at which an
Option may be exercised.  Notwithstanding
the foregoing, no Option shall be exercisable after the expiration of its term.


 


8.                                       Restricted
Stock.


 


(a)   Issue Date and Vesting Date.  At the time of the grant of Restricted Stock,
the Committee shall establish an Issue Date or Issue Dates and a Vesting Date
or Vesting Dates with respect to such shares of Restricted Stock.  The Committee may divide such shares of
Restricted Stock into classes and assign a different Issue Date and/or Vesting
Date for each class.  If the Participant
is employed by the Company on an 


 

















 


Issue
Date (which may be the date of grant), the specified number of shares of
Restricted Stock shall be issued in accordance with the provisions of Section 8(e).  Provided that all conditions to the vesting
of Restricted Stock imposed pursuant to Section 8(b) are satisfied,
and except as provided in Section 8(g), upon the occurrence of the Vesting
Date with respect to Restricted Stock, such Restricted Stock shall vest and the
restrictions of Section 8(c) shall lapse.  If the vesting
conditions are based only on the passage of time, the Vesting Date for the
Restricted Stock awarded after the Effective Date shall occur at least three
years from the date of grant, except that the award may vest ratably during the
three-year period and vesting may occur earlier in case of death, Disability,
retirement, Change in Control, termination without Cause or other special
circumstances (including termination for good reason as determined by the
Committee).  The Committee may also grant
Restricted Stock with vesting conditions that do not meet the requirements set
forth in the preceding sentence so long as the aggregate amount of such
Restricted Stock awarded under this Plan, when taken together with any Other
Stock-Based Awards granted pursuant to the last sentence of Section 9, may
not exceed ten (10) percent of the maximum number of additional shares of
Stock in the aggregate made available under this amended and restated version
of the Plan as specified in Section 3 above.


 


(b)         Conditions to Vesting.  At the time of the grant of Restricted Stock,
the Committee may impose such restrictions or conditions to the vesting of such
Restricted Stock as it, in its absolute discretion, deems appropriate,
including the attainment of Performance Goals.


 


(c)          Restrictions on Transfer Prior to Vesting.  Prior to the vesting of any Restricted Stock,
no transfer of a Participant’s rights with respect to such Restricted Stock,
whether voluntary or involuntary, by operation of law or otherwise, shall be
permitted.  Immediately upon any attempt
to transfer such rights, such Restricted Stock, and all of the rights related
thereto, shall be forfeited by the Participant.


 


(d)         Dividends on Restricted Stock.  The Committee in its discretion may require
that any dividends or distributions paid on Restricted Stock be held in escrow
until all restrictions on such Restricted Stock has lapsed.


 


(e)          Book Entry; Issuance
of Certificates.  Unless
otherwise directed by the Committee, (i) any certificates representing
shares of Stock issued, together with the powers relating to the Restricted
Stock evidenced by such certificate, shall be held by the Company until all
restrictions have lapsed or (ii) all shares of Restricted Stock shall be
held at the Company’s transfer agent in book entry form with appropriate
restrictions relating to the transfer of such shares of Restricted Stock.


 


(f)            Consequences of Vesting.  Upon the vesting of any Restricted Stock
pursuant to the terms hereof, the restrictions of Section 8(c) shall
lapse with respect to such Restricted Stock. 
Reasonably promptly after any Restricted Stock vests, the Company shall (i) cause
to be delivered to the Participant to whom such shares of Restricted Stock were
granted a certificate evidencing such Stock, if certificates are issued, or (ii) otherwise
cause the shares of Restricted Stock to be transferred to the Participant free
and clear of any restrictions.


 
















 


(g)   Effect
of Termination of Employment.


 


(i)    Subject to
such other provision as the Committee may set forth in the applicable
Agreement, and to the Committee’s amendment authority pursuant to Section 4,
upon the termination of a Participant’s employment for any reason other than
Cause, any and all Stock to which restrictions on transferability apply shall
be immediately forfeited by the Participant and transferred to, and reacquired
by, the Company.


 


(ii)   In the event of the termination of a
Participant’s employment for Cause, all shares of Restricted Stock granted to
such Participant that have not vested as of the date of such termination shall
immediately be returned to the Company, together with any dividends or
distributions paid on such shares of Stock, in return for which the Company
shall repay to the Participant any amount paid by the Participant for such
shares of Stock.


 


(h)   Special
Provisions Regarding Awards.
Notwithstanding anything to the contrary contained herein, Restricted Stock
granted pursuant to this Section 8 to Participants may be based on the
attainment by the Company (or a Subsidiary or division of the Company if
applicable) of Performance Goals  with a
performance period of at least one year pre-established by the Committee.


 


9.             Other Stock-Based Awards.


 


Other
forms of Awards valued in whole or in part by reference to, or otherwise based
on, shares of Stock (“Other Stock-Based Awards”) may be granted either alone or
in addition to other Awards under the Plan. 
Subject to the provisions of the Plan, the Committee shall have sole and
complete authority to determine the persons to whom and the time or times at
which such Other Stock-Based Awards shall be granted, the number of shares of
Stock to be granted pursuant to such Other Stock-Based Awards and all other
conditions of such Other Stock-Based Awards, including the attainment of
Performance Goals.  If the vesting
conditions are based only on the passage of time, the Other Stock-Based Award
awarded after the Effective Date shall vest at least three years from the date
of grant, except that the award may vest ratably during the three-year period
and vesting may occur earlier in case of death, Disability, retirement, Change
in Control, termination without Cause or other special circumstances (including
termination for good reason as determined by the Committee).  Notwithstanding the foregoing, if the vesting
conditions are based on the attainment of Performance Goals, the Other
Stock-Based Award shall vest at least one year from the date of grant, except
that vesting may occur earlier in case of death, Disability, retirement, Change
in Control, termination without Cause, or other special circumstances
(including termination for good reason as determined by the Committee).  The Committee may also grant Other
Stock-Based Awards with vesting conditions that do not meet the requirements
set forth in the preceding two sentences so long as the aggregate amount of
such Other Stock-Based Awards awarded under this Plan, when taken together with
any Restricted Stock granted under this Plan that do not meet the requirements
set forth in the fifth sentence of Section 8(a), may not exceed ten (10) percent
of the maximum number of additional shares of Stock in the aggregate made
available under this amended and restated version of the Plan as specified in Section 3
above.


 

















 


10.           Change in Control.


 


Notwithstanding
anything in the Plan to the contrary, with respect to any Award made under this
Plan, no acceleration of exercisability, vesting or lapsing shall occur on a
Change in Control except to the extent, if any, provided in the specific Award
Agreement or as otherwise determined by the Committee or the Board.  Notwithstanding anything in the Plan to the
contrary, upon the occurrence of a Change in Control, the purchaser(s) of
the Company’s assets or stock may, in his, her, or its discretion, deliver to
the holder of an Award the same kind of consideration that is delivered to the
stockholders of the Company as a result of such sale, conveyance or Change in
Control, or the Board may cancel all outstanding Options in exchange for
consideration in cash or in kind which consideration in both cases shall be
equal in value to the higher of (a) the Fair Market Value of those shares
of Stock or other securities the holder of such Option would have received had
the Option been exercised and no disposition of the shares acquired upon such
exercise been made prior to such sale, conveyance or Change in Control, less
the exercise price there for, and (b) the Fair Market Value of those
shares of Stock or other securities the holder of the Option would have
received had the Option been exercised and no disposition of the shares
acquired upon such exercise been made immediately following such sale,
conveyance or Change in Control, less the exercise price therefor.


 


Upon
dissolution or liquidation of the Company, all Options and other Awards granted
under this Plan shall terminate, but each holder of an Option shall have the
right, immediately prior to such dissolution or liquidation, to exercise his or
her Option to the extent then exercisable.


 


11.           Rights as a Stockholder.


 


No
person shall have any rights as a stockholder with respect to any shares of
Stock covered by or relating to any Award until the date of issuance of a certificate
with respect to such shares of Stock. 
Except as otherwise expressly provided in Section 3(b), no
adjustment to any Award shall be made for dividends or other rights prior to
the date such certificate is issued.


 


12.           No Special Employment Rights; No Right to Award.


 


Nothing
contained in the Plan or any Agreement shall confer upon any Participant any
right with respect to the continuation of employment by the Company or
interfere in any way with the right of the Company, subject to the terms of any
separate employment agreement to the contrary, at any time to terminate such
employment or to increase or decrease the compensation of the Participant.


 


No
person shall have any claim or right to receive an Award hereunder.  The Committee’s granting of an Award to a
participant at any time shall neither require the Committee to grant any other
Award to such Participant or other person at any time or preclude the Committee
from making subsequent grants to such Participant or any other person.


 


13.           Securities Matters.


 


(a)   The Company
shall be under no obligation to effect the registration pursuant to the
Securities Act of any interests in the Plan or any Stock to be issued hereunder
or to effect similar compliance under any state laws.  Notwithstanding anything herein to the
contrary, the Company shall not be obligated to cause to be issued or delivered
any certificates evidencing Stock pursuant to the Plan unless and until the
Company 


 

















 


is
advised by its counsel that the issuance and delivery of such certificates is
in compliance with all applicable laws, regulations of governmental authority
and the requirements of any securities exchange on which shares of Stock are
traded.  The Committee may require, as a
condition of the issuance and delivery of certificates evidencing shares of
Stock pursuant to the terms hereof, that the recipient of such shares of Stock
make such agreements and representations, and that such certificates bear such
legends, as the Committee, in its sole discretion, deems necessary or
desirable.


 


(b) 
The transfer of any shares of Stock hereunder shall be effective only at such
time as counsel to the Company shall have determined that the issuance and
delivery of such shares of Stock is in compliance with all applicable laws,
regulations of governmental authority, and the requirements of any securities
exchange on which shares of Stock are traded. 
The Committee may, in its sole discretion, defer the effectiveness of
any transfer of Stock hereunder in order to allow the issuance of such Stock to
be made pursuant to registration or an exemption from registration or other
methods for compliance available under federal or state securities laws.  The Committee shall inform the Participant in
writing of its decision to defer the effectiveness of a transfer. During the
period of such deferral in connection with the exercise of an Option, the
Participant may, by written notice, withdraw such exercise and obtain the
refund of any amount paid with respect thereto.


 


14.           Withholding Taxes.


 


With respect to an Award
granted pursuant to this Plan, the Company shall have the right to require the
Participant to remit to the Company in cash an amount sufficient to satisfy any
federal, state, local and foreign withholding tax requirements related thereto.  With the approval of the Committee, a
Participant may satisfy the foregoing requirement by electing to have the
Company withhold from delivery shares of Stock having a value equal to the
amount of tax to be withheld.  Such
shares of Stock shall be valued at their Fair Market Value on the date of which
the amount of tax to be withheld is determined. 
Fractional shares of Stock amounts shall be settled in cash.  Such a withholding election may be made with
respect to all or any portion of the Stock to be delivered pursuant to an
Award.


 


15.           Notification of Election Under Section 83(b) of the Code.


 


If
any Participant shall, in connection with the acquisition of Stock under the
Plan, make the election permitted under Section 83(b) of the Code
(i.e., an election to include in gross income in the year of transfer the
amounts specified in Section 83(b)), such Participant shall notify the
Company of such election within 10 days of filing notice of the election with
the Internal Revenue Service, in addition to any filing and a notification
required pursuant to regulation issued under the authority of Section 83(b) of
the Code.


 


16.           Notification Upon Disqualifying Disposition Under Section 421(b) of
the Code.


 


Each
Participant shall notify the Company of any disposition of Stock issued
pursuant to the exercise of an Incentive Stock Option under the circumstances
described in Section 421(b) of the Code (relating to certain
disqualifying dispositions), within ten (10) days of such disposition.


 

















 


17.           Amendment or Termination of the Plan.


 


(a)           The Board may, at any time, suspend or terminate the Plan or revise or
amend it in any respect whatsoever; provided, however, that stockholder
approval shall be required if an amendment to the Plan would (i) materially
increase the benefits accruing to Participants under the Plan, (ii) would
materially increase the number of shares which may be issued under the Plan, (iii) would
materially modify the requirements for participation in the Plan or (iv) must
otherwise be approved by the stockholders of the Company in order to comply
with applicable law or the rules of NASDAQ or, if Stock is not traded on
NASDAQ, the principal national securities exchange upon which the Stock is
traded or quoted.  Awards may be granted
under the Plan prior to the receipt of such approval but each such grant shall
be subject in its entirety to such approval and no award may be exercised,
vested or otherwise satisfied prior to the receipt of such approval.  Nothing herein shall restrict the Committee’s
ability to exercise its discretionary authority pursuant to Section 4,
which discretion may be exercised without amendment to the Plan.  No action hereunder may, without the consent
of a Participant, reduce the Participant’s rights under any outstanding Award.


 


(b)           The Board will not, without the further approval of the stockholders of
the Company, authorize the amendment of any outstanding Option to reduce its
exercise price.  Furthermore, no Option
will be cancelled and replaced with awards having a lower exercise price, or
cancelled in exchange for cash or other awards, without further approval of the
stockholders of the Company.  This Section 17(b) is
intended to prohibit the repricing of “underwater” Options and will not be
construed to prohibit the adjustments provided for in Section 3 of this
Plan and any payments made in connection with a Change in Control contemplated
in Section 10 of this Plan.


 


18.           Transfers Upon Death; Nonassignability.


 


Upon
the death of a Participant, outstanding Awards granted to such Participant may
be exercised only by the executor or administrator of the Participant’s estate
or by a person who shall have acquired the right to such exercise by will or by
the laws of descent and distribution.  No
transfer of an Award by will or the laws of descent and distribution shall be
effective to bind the Company unless the Committee shall have been furnished
with (a) written notice thereof and with a copy of the will and/or such
evidence as the Committee may deem necessary to establish the validity of the
transfer and (b) an agreement by the transferee to comply with all the
terms and conditions of the Award that are or would have been applicable to the
Participant and to be bound by the acknowledgments made by the Participant in
connection with the grant of the Award. 
In no event shall any outstanding Award under this Plan be transferred
for value.


 


During
a Participant’s lifetime, the Committee may permit the transfer, assignment or
other encumbrance of an outstanding Option unless (i) such Option is an
Incentive Stock Option and the Committee and the Participant intend that it
shall retain such status, or (ii) such Option is meant to qualify for the
exemptions available under Rule 16b-3, nontransferability is necessary
under Rule 16b-3 in order for the award to so qualify and the Committee
and the Participant intend that it shall continue to so qualify.  Subject to any conditions as the Committee
may prescribe, a Participant may, upon providing written notice to the
Secretary of the Company, elect to transfer any or all Options granted to such
Participant pursuant to the Plan to members of his or her immediate family,
including, but not limited to, children, grandchildren and spouse or to trusts
for the benefit of such immediate family members or to partnerships in which
such family members are the only partners; provided, however, that no such
transfer by any Participant may be made in exchange for consideration.


 

















 


19.           Expenses and Receipts.


 


The
expenses of the Plan shall be paid by the Company.  Any proceeds received by the Company in
connection with any Award will be used for general corporate purposes.


 


20.           Failure to Comply.


 


In
addition to the remedies of the Company elsewhere provided for herein, failure
by a Participant (or beneficiary) to comply with any of the terms and
conditions of the Plan or the applicable Agreement, unless such failure is
remedied by such Participant (or beneficiary) within ten days after notice of
such failure by the Committee, shall be grounds for the cancellation and
forfeiture of such Award, in whole or in part, as the Committee, in its
absolute discretion, may determine.


 


21.           Effective Date and Term of Plan.


 


The
Plan became effective on the Effective Date and, unless earlier terminated by
the Board, the right to grant Awards under the Plan will terminate on the tenth
anniversary of the date on which stockholders of the Company approve the
Plan.  Awards outstanding at Plan
termination will remain in effect according to their terms and the provisions
of the Plan.


 


22.           Applicable Law.


 


Except
to the extent preempted by any applicable federal law, the Plan will be
construed and administered in accordance with the laws of the State of
Delaware, without reference to its principles of conflicts of law.


 


23.           Participant Rights.


 


No
Participant shall have any claim to be granted any award under the Plan, and
there is no obligation for uniformity of treatment for Participants.  Except as provided specifically herein, a
Participant or a transferee of an Award shall have no rights as a stockholder
with respect to any shares of Stock covered by any award until the date of the
issuance of a certificate or certificates to him or her for such shares of
Stock.


 


24.           Unfunded Status of Awards.


 


The
Plan is intended to constitute an “unfunded” plan for incentive and deferred
compensation.  With respect to any
payments not yet made to a Participant pursuant to an Award, nothing contained
in the Plan or any Agreement shall give any such Participant any rights that
are greater than those of a general creditor of the Company.


 


25.           Beneficiary.


 


The
Committee may provide that, to the extent acceptable under applicable law, a
Participant may file with the Committee a written designation of a beneficiary
on such form as may be prescribed by the Committee and may, from time to time,
amend or revoke such designation.  If no
designated beneficiary survives the Participant, the executor or administrator
of the Participant’s estate shall be deemed to be the Participant’s
beneficiary.


 

















 


26.           Interpretation.


 


The
Plan is designed and intended to comply with Rule l6b-3 and, to the extent
applicable, with Section 162(m) of the Code, and all provisions
hereof shall be construed in a manner to so comply.


 


27.           Severability.


 


                If any provision of the Plan is held to be
invalid or unenforceable, the other provisions of the Plan shall not be
affected but shall be applied as if the invalid or unenforceable provision had
not been included in the Plan.


 


28.           Compliance with Section 409A of the Code.


 


(a)           To the extent applicable, it is intended that this Plan and any grants
made hereunder comply with the provisions of Section 409A of the Code, so
that the income inclusion provisions of Section 409A(a)(1) of the
Code do not apply to the Participants. 
This Plan and any grants made hereunder shall be administered in a
manner consistent with this intent.  Any
reference in this Plan to Section 409A of the Code will also include any
regulations or any other formal guidance promulgated with respect to such Section by
the U.S. Department of the Treasury or the Internal Revenue Service.


 


(b)           Neither a Participant nor any of a Participant’s creditors or
beneficiaries shall have the right to subject any deferred compensation (within
the meaning of Section 409A of the Code) payable under this Plan and
grants hereunder to any anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, attachment or garnishment. 
Except as permitted under Section 409A of the Code, any deferred
compensation (within the meaning of Section 409A of the Code) payable to a
Participant or for a Participant’s benefit under this Plan and grants hereunder
may not be reduced by, or offset against, any amount owing by a Participant to
the Company or any of its affiliates.


 


(c)           If, at the time of a Participant’s separation from service (within the
meaning of Section 409A of the Code), (i) the Participant shall be a
specified employee (within the meaning of Section 409A of the Code and
using the identification methodology selected by the Company from time to time)
and (ii) the Company shall make a good faith determination that an amount
payable hereunder constitutes deferred compensation (within the meaning of Section 409A
of the Code) the payment of which is required to be delayed pursuant to the
six-month delay rule set forth in Section 409A of the Code in order
to avoid taxes or penalties under Section 409A of the Code, then the
Company shall not pay such amount on the otherwise scheduled payment date but
shall instead pay it, without interest, on the first business day of the
seventh month after such six-month period.


 


(d)           Notwithstanding any provision of this Plan and grants hereunder to the
contrary, in light of the uncertainty with respect to the proper application of
Section 409A of the Code, the Company reserves the right to make
amendments to this Plan and grants hereunder as the Company deems necessary or
desirable to avoid the imposition of taxes or penalties under Section 409A
of the Code.  In any case, a Participant
shall be solely responsible and liable for the satisfaction of all taxes and
penalties that may be imposed on a Participant or for a Participant’s account
in connection with this Plan and grants hereunder (including any taxes and
penalties under Section 409A of the Code), and neither the Company nor any
of its affiliates shall have any


 

















 


obligation
to indemnify or otherwise hold a Participant harmless from any or all of such
taxes or penalties.


 


29.           Non-U.S. Participants.


 


In order to facilitate the making
of any grant or combination of grants under this Plan, the Board may provide
for such special terms for awards to Participants who are foreign nationals or
who are employed by the Company or any Subsidiary outside of the United States
of America or who provide services to the Company under an agreement with a
foreign nation or agency, as the Board may consider necessary or appropriate to
accommodate differences in local law, tax policy or custom.  Moreover, the Board may approve such
supplements to or amendments, restatements or alternative versions of this Plan
as it may consider necessary or appropriate for such purposes, without thereby
affecting the terms of this Plan (including, without limitation, sub-plans) as
in effect for any other purpose, and the Secretary or other appropriate officer
of the Company may certify any such document as having been approved and
adopted in the same manner as this Plan. 
No such special terms, supplements, amendments or restatements, however,
will include any provisions that are inconsistent with the terms of this Plan
as then in effect unless this Plan could have been amended to  eliminate such inconsistency without further
approval by the shareholders of the Company.


 


30.           Contrary to Law.


 


No
award under this Plan may be exercised by the holder thereof if such exercise,
and the receipt of cash or stock thereunder, would be, in the opinion of
counsel selected by the Board, contrary to law or the regulations of any duly
constituted authority having jurisdiction over this Plan.


 


31.           Leave of Absence.


 


Absence
on leave approved by a duly authorized representative of the Company shall not
be considered interruption or termination of service of any employee for any
purposes of this Plan or Awards granted hereunder.