exv10w3



 





Exhibit 10.3




APRIMO, INCORPORATED




 






2007 STOCK OPTION AND INCENTIVE PLAN




SECTION 1. GENERAL PURPOSE OF THE PLAN; DEFINITIONS




     The name of the plan is the Aprimo, Incorporated 2007 Stock Option and Incentive Plan (the
“Plan”). The purpose of the Plan is to encourage and enable the officers, employees, Non-Employee
Directors and other key persons (including consultants and prospective employees) of Aprimo,
Incorporated (the “Company”) and its Subsidiaries upon whose judgment, initiative and efforts the
Company largely depends for the successful conduct of its business to acquire a proprietary
interest in the Company. It is anticipated that providing such persons with a direct stake in the
Company’s welfare will assure a closer identification of their interests with those of the Company
and its stockholders, thereby stimulating their efforts on the Company’s behalf and strengthening
their desire to remain with the Company.



     The following terms shall be defined as set forth below:



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



     “Administrator” means either the Board or the compensation committee of the Board or a similar
committee performing the functions of the compensation committee and which is comprised of not less
than two Non-Employee Directors who are independent.



     “Award” or “Awards,” except where referring to a particular category of grant under the Plan,
shall include Incentive Stock Options, Non-Qualified Stock Options, Stock Appreciation Rights,
Deferred Stock Awards, Restricted Stock Awards, Unrestricted Stock Awards, Cash-based Awards,
Performance Share Awards and Dividend Equivalent Rights.



     “Award Agreement” means a written or electronic agreement setting forth the terms and
provisions applicable to an Award granted under the Plan. Each Award Agreement is subject to the
terms and conditions of the Plan.



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



     “Cash-based Award” means an Award entitling the recipient to receive a cash-denominated
payment.



     “Code” means the Internal Revenue Code of 1986, as amended, and any successor Code, and
related rules, regulations and interpretations.





 









 








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



     “Deferred Stock Award” means an Award of phantom stock units to a grantee.



     “Dividend Equivalent Right” means an Award entitling the grantee to receive credits based on
cash dividends that would have been paid on the shares of Stock specified in the Dividend
Equivalent Right (or other award to which it relates) if such shares had been issued to and held by
the grantee.



     “Effective Date” means the date on which the Plan is approved by stockholders as set forth in
Section 21.



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



     “Fair Market Value” of the Stock on any given date means the fair market value of the Stock
determined in good faith by the Administrator; provided, however, that if the Stock is admitted to
quotation on the National Association of Securities Dealers Automated Quotation System (“NASDAQ”),
NASDAQ Global Market or another national securities exchange, the determination shall be made by
reference to market quotations. If there are no market quotations for such date, the determination
shall be made by reference to the last date preceding such date for which there are market
quotations; provided further, however, that if the date for which Fair Market Value is determined
is the first day when trading prices for the Stock are reported on a national securities exchange,
the Fair Market Value shall be the “Price to the Public” (or equivalent) set forth on the cover
page for the final prospectus relating to the Company’s Initial Public Offering.



     “Incentive Stock Option” means any Stock Option designated and qualified as an “incentive
stock option” as defined in Section 422 of the Code.



     “Initial Public Offering” means the consummation of the first fully underwritten, firm
commitment public offering pursuant to an effective registration statement under the Act covering
the offer and sale by the Company of its equity securities, or such other event as a result of or
following which the Stock shall be publicly held.



     “Non-Employee Director” means a member of the Board who is not also an employee of the Company
or any Subsidiary.



     “Non-Qualified Stock Option” means any Stock Option that is not an Incentive Stock Option.



     “Option” or “Stock Option” means any option to purchase shares of Stock granted pursuant to
Section 5.



     “Performance-based Award” means any Restricted Stock Award, Deferred Stock Award, Performance
Share Award or Cash-based Award granted to a Covered Employee that is



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intended to qualify as “performance-based compensation” under Section 162(m) of the Code and
the regulations promulgated thereunder.




     “Performance Criteria” means the criteria that the Administrator selects for purposes of
establishing the Performance Goal or Performance Goals for an individual for a Performance Cycle.
The Performance Criteria (which shall be applicable to the organizational level specified by the
Administrator, including, but not limited to, the Company or a unit, division, group, or Subsidiary
of the Company) that will be used to establish Performance Goals are limited to the following:
earnings before interest, taxes, depreciation and amortization, net income (loss) (either before or
after interest, taxes, depreciation and/or amortization), changes in the market price of the Stock,
economic value-added, funds from operations or similar measure, sales or revenue, acquisitions or
strategic transactions, operating income (loss), cash flow (including, but not limited to,
operating cash flow and free cash flow), return on capital, assets, equity, or investment,
stockholder returns, return on sales, gross or net profit levels, productivity, expense, margins,
operating efficiency, customer satisfaction, working capital, earnings (loss) per share of Stock,
sales or market shares and number of customers, any of which may be measured either in absolute
terms or as compared to any incremental increase or as compared to results of a peer group.



     “Performance Cycle” means one or more periods of time, which may be of varying and overlapping
durations, as the Administrator may select, over which the attainment of one or more Performance
Criteria will be measured for the purpose of determining a grantee’s right to and the payment of a
Restricted Stock Award, Deferred Stock Award, Performance Share Award or Cash-based Award.



     “Performance Goals” means, for a Performance Cycle, the specific goals established in writing
by the Administrator for a Performance Cycle based upon the Performance Criteria.



     “Performance Share Award” means an Award entitling the recipient to acquire shares of Stock
upon the attainment of specified Performance Goals.



     “Restricted Stock Award” means an Award entitling the recipient to acquire, at such purchase
price (which may be zero) as determined by the Administrator, shares of Stock subject to such
restrictions and conditions as the Administrator may determine at the time of grant.



     “Sale Event” shall mean (i) the sale of all or substantially all of the assets of the Company
on a consolidated basis to an unrelated person or entity, (ii) a merger, reorganization or
consolidation in which the outstanding shares of Stock are converted into or exchanged for
securities of the successor entity and the holders of the Company’s outstanding voting power
immediately prior to such transaction do not own a majority of the outstanding voting power of the
successor entity immediately upon completion of such transaction, or (iii) the sale of all of the
Stock of the Company to an unrelated person or entity.



     “Sale Price” means the value as determined by the Administrator of the consideration payable,
or otherwise to be received by stockholders, per share of Stock pursuant to a Sale Event.



     “Section 409A” means Section 409A of the Code and the regulations and other guidance
promulgated thereunder.



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     “Stock” means the Common Stock, par value $0.001 per share, of the Company, subject to
adjustments pursuant to Section 3.



     “Stock Appreciation Right” means an Award entitling the recipient to receive shares of Stock
having a value equal to the excess of the Fair Market Value of the Stock on the date of exercise
over the exercise price of the Stock Appreciation Right multiplied by the number of shares of Stock
with respect to which the Stock Appreciation Right shall have been exercised.



     “Subsidiary” means any corporation or other entity (other than the Company) in which the
Company has at least a 50 percent interest, either directly or indirectly.



     “Ten Percent Owner” means an employee who owns or is deemed to own (by reason of the
attribution rules of Section 424(d) of the Code) more than 10 percent of the combined voting power
of all classes of stock of the Company or any parent or subsidiary corporation.



     “Unrestricted Stock Award” means an Award of shares of Stock free of any restrictions.




			
	SECTION 2.	 	ADMINISTRATION OF PLAN; ADMINISTRATOR AUTHORITY TO SELECT GRANTEES AND DETERMINE
AWARDS





     (a) Administration of Plan. The Plan shall be administered by the Administrator.



     (b) Powers of Administrator. The Administrator shall have the power and authority to
grant Awards consistent with the terms of the Plan, including the power and authority:



          (i) to select the individuals to whom Awards may from time to time be granted;




          (ii) to determine the time or times of grant, and the extent, if any, of Incentive Stock
Options, Non-Qualified Stock Options, Stock Appreciation Rights, Restricted Stock Awards, Deferred
Stock Awards, Unrestricted Stock Awards, Cash-based Awards, Performance Share Awards and Dividend
Equivalent Rights, or any combination of the foregoing, granted to any one or more grantees;




          (iii) to determine the number of shares of Stock to be covered by any Award;




          (iv) to determine and modify from time to time the terms and conditions, including
restrictions, not inconsistent with the terms of the Plan, of any Award, which terms and conditions
may differ among individual Awards and grantees, and to approve the form of written instruments
evidencing the Awards;




          (v) to accelerate at any time the exercisability or vesting of all or any portion of any
Award;




          (vi) subject to the provisions of Section 5(a)(ii), to extend at any time the period in which
Stock Options may be exercised; and




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          (vii) at any time to adopt, alter and repeal such rules, guidelines and practices for
administration of the Plan and for its own acts and proceedings as it shall deem advisable; to
interpret the terms and provisions of the Plan and any Award (including related written
instruments); to make all determinations it deems advisable for the administration of the Plan; to
decide all disputes arising in connection with the Plan; and to otherwise supervise the
administration of the Plan.




     All decisions and interpretations of the Administrator shall be binding on all persons,
including the Company and Plan grantees.



     (c) Delegation of Authority to Grant Options. Subject to applicable law, the
Administrator, in its discretion, may delegate to the Chief Executive Officer of the Company all or
part of the Administrator’s authority and duties with respect to the granting of Options, to
individuals who are (i) not subject to the reporting and other provisions of Section 16 of the
Exchange Act and (ii) not Covered Employees. Any such delegation by the Administrator shall
include a limitation as to the amount of Options that may be granted during the period of the
delegation and shall contain guidelines as to the determination of the exercise price and the
vesting criteria. The Administrator may revoke or amend the terms of a delegation at any time but
such action shall not invalidate any prior actions of the Administrator’s delegate or delegates
that were consistent with the terms of the Plan.



     (d) Award Agreement. Awards under the Plan shall be evidenced by Award Agreements
that set forth the terms, conditions and limitations for each Award which may include, without
limitation, the term of an Award, the provisions applicable in the event employment or service
terminates, and the Company’s authority to unilaterally or bilaterally amend, modify, suspend,
cancel or rescind an Award.



     (e) Indemnification. Neither the Board nor the Administrator, nor any member of
either or any delegate thereof, shall be liable for any act, omission, interpretation, construction
or determination made in good faith in connection with the Plan, and the members of the Board and
the Administrator (and any delegate thereof) shall be entitled in all cases to indemnification and
reimbursement by the Company in respect of any claim, loss, damage or expense (including, without
limitation, reasonable attorneys’ fees) arising or resulting therefrom to the fullest extent
permitted by law and/or under the Company’s articles or bylaws or any directors’ and officers’
liability insurance coverage which may be in effect from time to time and/or any indemnification
agreement between such individual and the Company.



     (f) Foreign Award Recipients. Notwithstanding any provision of the Plan to the
contrary, in order to comply with the laws in other countries in which the Company and its
Subsidiaries operate or have employees or other individuals eligible for Awards, the Administrator,
in its sole discretion, shall have the power and authority to: (i) determine which Subsidiaries
shall be covered by the Plan; (ii) determine which individuals outside the United States are
eligible to participate in the Plan; (iii) modify the terms and conditions of any Award granted to
individuals outside the United States to comply with applicable foreign laws; (iv) establish
subplans and modify exercise procedures and other terms and procedures, to the extent the
Administrator determines such actions to be necessary or advisable (and such subplans and/or
modifications shall be attached to this Plan as appendices); provided, however, that no



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such subplans and/or modifications shall increase the share limitations contained in Section
3(a) hereof; and (v) take any action, before or after an Award is made, that the Administrator
determines to be necessary or advisable to obtain approval or comply with any local governmental
regulatory exemptions or approvals. Notwithstanding the foregoing, the Administrator may not take
any actions hereunder, and no Awards shall be granted, that would violate the Exchange Act or any
other applicable United States securities law, the Code, or any other applicable United States
governing statute or law.




SECTION 3. STOCK ISSUABLE UNDER THE PLAN; MERGERS; SUBSTITUTION




     (a) Stock Issuable. The maximum number of shares of Stock reserved and available for
issuance under the Plan shall be 3,607,683 shares, plus (A) the number of shares under the
Company’s Amended and Restated 1998 Stock Option Plan (the “Prior Plan”) which are not needed to
fulfill the Company’s obligations for awards issued under the Prior Plan as a result of the
forfeiture, expiration, cancellation or termination of awards thereunder and (B) on each January 1,
beginning in 2008, an additional number of shares equal to either (i) 4% of the total number of
shares of the Company’s Stock outstanding as of the immediately preceding December 31, determined
on a fully-diluted basis, minus the total number of shares remaining available for issuance under
the Plan as of the immediately preceding December 31 or (ii) such lesser number as determined by
the Board, subject in all cases to adjustment as provided in Section 3(b); provided that no more
than the lesser of 3,607,683 shares, plus, on each January 1, beginning in 2008, an additional
number of shares equal to the lesser of 4% of the total number of shares of the Company’s stock
outstanding as of the immediately preceding December 31, determined on a fully-diluted basis, minus
the total number of shares remaining available for issuance under the Plan as of the immediately
preceding December 31 or 4,000,000 shares, shall be issued in the form of Incentive Stock Options.
For purposes of this limitation, the shares of Stock underlying any Awards that are forfeited,
canceled, held back upon exercise of an Option or settlement of an Award to cover the exercise
price or tax withholding, reacquired by the Company prior to vesting, satisfied without the
issuance of Stock or otherwise terminated (other than by exercise) shall be added back to the
shares of Stock available for issuance under the Plan. Subject to such overall limitations, shares
of Stock may be issued up to such maximum number pursuant to any type or types of Award; provided,
however, that Stock Options or Stock Appreciation Rights with respect to no more than 2,000,000
shares of Stock may be granted to any one individual grantee during any one calendar year period.
The shares available for issuance under the Plan may be authorized but unissued shares of Stock or
shares of Stock reacquired by the Company.



     (b) Changes in Stock. Subject to Section 3(c) hereof, if, as a result of any
reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock
split or other similar change in the Company’s capital stock, the outstanding shares of Stock are
increased or decreased or are exchanged for a different number or kind of shares or other
securities of the Company, or additional shares or new or different shares or other securities of
the Company or other non-cash assets are distributed with respect to such shares of Stock or other
securities, or, if, as a result of any merger or consolidation, sale of all or substantially all of
the assets of the Company, the outstanding shares of Stock are converted into or exchanged for
securities of the Company or any successor entity (or a parent or subsidiary thereof), the
Administrator shall make an appropriate or proportionate adjustment in (i) the maximum number



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of shares reserved for issuance under the Plan, (ii) the number of Stock Options or Stock
Appreciation Rights that can be granted to any one individual grantee and the maximum number of
shares that may be granted under a Performance-based Award, (iii) the number and kind of shares or
other securities subject to any then outstanding Awards under the Plan, (iv) the repurchase price,
if any, per share subject to each outstanding Restricted Stock Award, (v) the number of Stock
Options granted to Non-Employee Directors, and (vi) the price for each share subject to any then
outstanding Stock Options and Stock Appreciation Rights under the Plan, without changing the
aggregate exercise price (i.e., the exercise price multiplied by the number of Stock Options and
Stock Appreciation Rights) as to which such Stock Options and Stock Appreciation Rights remain
exercisable. The Administrator shall also make equitable or proportionate adjustments in the
number of shares subject to outstanding Awards and the exercise price and the terms of outstanding
Awards to take into consideration cash dividends paid other than in the ordinary course or any
other extraordinary corporate event. The adjustment by the Administrator shall be final, binding
and conclusive. No fractional shares of Stock shall be issued under the Plan resulting from any
such adjustment, but the Administrator in its discretion may make a cash payment in lieu of
fractional shares.




     (c) Mergers and Other Transactions. Except as the Administrator may otherwise specify
with respect to particular Awards in the relevant Award documentation, in the case of and subject
to the consummation of a Sale Event, all Options and Stock Appreciation Rights that are not
exercisable immediately prior to the effective time of the Sale Event shall become fully
exercisable as of the effective time of the Sale Event, all other Awards with time-based vesting,
conditions or restrictions shall become fully vested and nonforfeitable as of the effective time of
the Sale Event and all Awards with conditions and restrictions relating to the attainment of
performance goals may become vested and nonforfeitable in connection with a Sale Event in the
Administrator’s discretion, unless, in any case, the parties to the Sale Event agree that Awards
will be assumed or continued by the successor entity. Upon the effective time of the Sale Event,
the Plan and all outstanding Awards granted hereunder shall terminate, unless provision is made in
connection with the Sale Event in the sole discretion of the parties thereto for the assumption or
continuation of Awards theretofore granted by the successor entity, or the substitution of such
Awards with new Awards of the successor entity or parent thereof, with appropriate adjustment as to
the number and kind of shares and, if appropriate, the per share exercise prices, as such parties
shall agree (after taking into account any acceleration hereunder). In the event of such
termination, (i) the Company shall have the option (in its sole discretion) to make or provide for
a cash payment to the grantees holding Options and Stock Appreciation Rights, in exchange for the
cancellation thereof, in an amount equal to the difference between (A) the Sale Price multiplied by
the number of shares of Stock subject to outstanding Options and Stock Appreciation Rights (to the
extent then exercisable (after taking into account any acceleration hereunder) at prices not in
excess of the Sale Price) and (B) the aggregate exercise price of all such outstanding Options and
Stock Appreciation Rights; or (ii) each grantee shall be permitted, within a specified period of
time prior to the consummation of the Sale Event as determined by the Administrator, to exercise
all outstanding Options and Stock Appreciation Rights held by such grantee.



     (d) Substitute Awards. The Administrator may grant Awards under the Plan in
substitution for stock and stock based awards held by employees, directors or other key persons of
another corporation in connection with the merger or consolidation of the employing



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corporation with the Company or a Subsidiary or the acquisition by the Company or a Subsidiary
of property or stock of the employing corporation. The Administrator may direct that the
substitute awards be granted on such terms and conditions as the Administrator considers
appropriate in the circumstances. Any substitute Awards granted under the Plan shall not count
against the share limitation set forth in Section 3(a).




SECTION 4. ELIGIBILITY




     Grantees under the Plan will be such full or part-time officers and other employees,
Non-Employee Directors and key persons (including consultants and prospective employees) of the
Company and its Subsidiaries as are selected from time to time by the Administrator in its sole
discretion.



SECTION 5. STOCK OPTIONS




     Any Stock Option granted under the Plan shall be in such form as the Administrator may from
time to time approve.



     Stock Options granted under the Plan may be either Incentive Stock Options or Non-Qualified
Stock Options. Incentive Stock Options may be granted only to employees of the Company or any
Subsidiary that is a “subsidiary corporation” within the meaning of Section 424(f) of the Code. To
the extent that any Option does not qualify as an Incentive Stock Option, it shall be deemed a
Non-Qualified Stock Option.



     (a) Stock Options Granted to Employees and Key Persons. The Administrator in its
discretion may grant Stock Options to eligible employees and key persons of the Company or any
Subsidiary. Stock Options granted pursuant to this Section 5(a) shall be subject to the following
terms and conditions and shall contain such additional terms and conditions, not inconsistent with
the terms of the Plan, as the Administrator shall deem desirable. If the Administrator so
determines, Stock Options may be granted in lieu of cash compensation at the optionee’s election,
subject to such terms and conditions as the Administrator may establish.



          (i) Exercise Price. The exercise price per share for the Stock covered by a Stock
Option granted pursuant to this Section 5(a) shall be determined by the Administrator at the time
of grant but shall not be less than 100 percent of the Fair Market Value on the date of grant. In
the case of an Incentive Stock Option that is granted to a Ten Percent Owner, the option price of
such Incentive Stock Option shall be not less than 110 percent of the Fair Market Value on the
grant date.




          (ii) Option Term. The term of each Stock Option shall be fixed by the Administrator,
but no Stock Option shall be exercisable more than ten years after the date the Stock Option is
granted. In the case of an Incentive Stock Option that is granted to a Ten Percent Owner, the term
of such Stock Option shall be no more than five years from the date of grant.




          (iii) Exercisability; Rights of a Stockholder. Stock Options shall become exercisable
at such time or times, whether or not in installments, as shall be determined by the Administrator
at or after the grant date. The Administrator may at any time accelerate the exercisability of all
or any portion of any Stock Option. An optionee shall have the rights of a



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stockholder only as to shares acquired upon the exercise of a Stock Option and not as to
unexercised Stock Options.




          (iv) Method of Exercise. Stock Options may be exercised in whole or in part, by
giving written notice of exercise to the Company, specifying the number of shares to be purchased.
Payment of the purchase price may be made by one or more of the following methods to the extent
provided in the Option Award Agreement:





          (A) In cash, by certified or bank check or other instrument acceptable to the
Administrator;




          (B) Through the delivery (or attestation to the ownership) of shares of Stock that have
been purchased by the optionee on the open market or that are beneficially owned by the
optionee and are not then subject to restrictions under any Company plan. Such surrendered
            shares shall be valued at Fair Market Value on the exercise date. To the extent required to
avoid variable accounting treatment under FAS 123R or other applicable accounting rules,
such surrendered shares shall have been owned by the optionee for at least six months; or




          (C) By the optionee delivering to the Company a properly executed exercise notice
together with irrevocable instructions to a broker to promptly deliver to the Company cash
or a check payable and acceptable to the Company for the purchase price; provided that in
the event the optionee chooses to pay the purchase price as so provided, the optionee and
the broker shall comply with such procedures and enter into such agreements of indemnity and
other agreements as the Administrator shall prescribe as a condition of such payment
procedure.


Payment instruments will be received subject to collection. The transfer to the optionee on the
records of the Company or of the transfer agent of the shares of Stock to be purchased pursuant to
the exercise of a Stock Option will be contingent upon receipt from the optionee (or a purchaser
acting in his stead in accordance with the provisions of the Stock Option) by the Company of the
full purchase price for such shares and the fulfillment of any other requirements contained in the
Option Award Agreement or applicable provisions of laws (including the satisfaction of any
withholding taxes that the Company is obligated to withhold with respect to the optionee). In the
event an optionee chooses to pay the purchase price by previously-owned shares of Stock through the
attestation method, the number of shares of Stock transferred to the optionee upon the exercise of
the Stock Option shall be net of the number of attested shares. In the event that the Company
establishes, for itself or using the services of a third party, an automated system for the
exercise of Stock Options, such as a system using an internet website or interactive voice
response, then the paperless exercise of Stock Options may be permitted through the use of such an
automated system.




          (v) Annual Limit on Incentive Stock Options. To the extent required for “incentive
stock option” treatment under Section 422 of the Code, the aggregate Fair Market Value (determined
as of the time of grant) of the shares of Stock with respect to which Incentive Stock Options
granted under this Plan and any other plan of the Company or its parent and subsidiary corporations
become exercisable for the first time by an optionee during any calendar



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year shall not exceed $100,000. To the extent that any Stock Option exceeds this limit, it
shall constitute a Non-Qualified Stock Option.




     (b) Stock Options Granted to Non-Employee Directors. The Administrator, in its
discretion, may grant Non-Qualified Stock Options to Non-Employee Directors. Any such grant may
vary among individual Non-Employee Directors. An Option issued under this Section 5(b) shall not
be exercisable after the expiration of ten years from the date of grant. Options granted under
this Section 5(b) may be exercised only by written notice to the Company specifying the number of
shares to be purchased. Payment of the full purchase price of the shares to be purchased may be
made by one or more of the methods specified in Section 5(a)(iv). An optionee shall have the
rights of a stockholder only as to shares acquired upon the exercise of a Stock Option and not as
to unexercised Stock Options.



SECTION 6. STOCK APPRECIATION RIGHTS




     (a) Exercise Price of Stock Appreciation Rights. The exercise price of a Stock
Appreciation Right shall not be less than 100 percent of the Fair Market Value of the Stock on the
date of grant.



     (b) Grant and Exercise of Stock Appreciation Rights. Stock Appreciation Rights may be
granted by the Administrator independently of any Stock Option granted pursuant to Section 5 of the
Plan.



     (c) Terms and Conditions of Stock Appreciation Rights. Stock Appreciation Rights
shall be subject to such terms and conditions as shall be determined from time to time by the
Administrator.



SECTION 7. RESTRICTED STOCK AWARDS




     (a) Nature of Restricted Stock Awards. The Administrator shall determine the
restrictions and conditions applicable to each Restricted Stock Award at the time of grant.
Conditions may be based on continuing employment (or other service relationship) and/or achievement
of pre-established performance goals and objectives. The grant of a Restricted Stock Award is
contingent on the grantee executing the Restricted Stock Award Agreement. The terms and conditions
of each such Award Agreement shall be determined by the Administrator, and such terms and
conditions may differ among individual Awards and grantees.



     (b) Rights as a Stockholder. Upon execution of the Restricted Stock Award Agreement
and payment of any applicable purchase price, a grantee shall have the rights of a stockholder with
respect to the voting of the Restricted Stock, subject to such conditions contained in the
Restricted Stock Award Agreement. Unless the Administrator shall otherwise determine, (i)
uncertificated Restricted Stock shall be accompanied by a notation on the records of the Company or
the transfer agent to the effect that they are subject to forfeiture until such Restricted Stock
are vested as provided in Section 7(d) below, and (ii) certificated Restricted Stock shall remain
in the possession of the Company until such Restricted Stock is vested as provided in Section 7(d)
below, and the grantee shall be required, as a condition of the grant, to deliver to the Company
such instruments of transfer as the Administrator may prescribe.



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     (c) Restrictions. Restricted Stock may not be sold, assigned, transferred, pledged or
otherwise encumbered or disposed of except as specifically provided herein or in the Restricted
Stock Award Agreement. Except as may otherwise be provided by the Administrator either in the
Award Agreement or, subject to Section 18 below, in writing after the Award Agreement is issued if
a grantee’s employment (or other service relationship) with the Company and its Subsidiaries
terminates for any reason, any Restricted Stock that has not vested at the time of termination
shall automatically and without any requirement of notice to such grantee from or other action by
or on behalf of, the Company be deemed to have been reacquired by the Company at its original
purchase price (if any) from such grantee or such grantee’s legal representative simultaneously
with such termination of employment (or other service relationship), and thereafter shall cease to
represent any ownership of the Company by the grantee or rights of the grantee as a stockholder.
Following such deemed reacquisition of unvested Restricted Stock that are represented by physical
certificates, a grantee shall surrender such certificates to the Company upon request without
consideration.



     (d) Vesting of Restricted Stock. The Administrator at the time of grant shall specify
the date or dates and/or the attainment of pre-established performance goals, objectives and other
conditions on which the non-transferability of the Restricted Stock and the Company’s right of
repurchase or forfeiture shall lapse. Subsequent to such date or dates and/or the attainment of
such pre-established performance goals, objectives and other conditions, the shares on which all
restrictions have lapsed shall no longer be Restricted Stock and shall be deemed “vested.” Except
as may otherwise be provided by the Administrator either in the Award Agreement or, subject to
Section 18 below, in writing after the Award Agreement is issued, a grantee’s rights in any shares
of Restricted Stock that have not vested shall automatically terminate upon the grantee’s
termination of employment (or other service relationship) with the Company and its Subsidiaries and
such shares shall be subject to the provisions of Section 7(c) above.



SECTION 8. DEFERRED STOCK AWARDS




     (a) Nature of Deferred Stock Awards. The Administrator shall determine the
restrictions and conditions applicable to each Deferred Stock Award at the time of grant.
Conditions may be based on continuing employment (or other service relationship) and/or achievement
of pre-established performance goals and objectives. The grant of a Deferred Stock Award is
contingent on the grantee executing the Deferred Stock Award Agreement. The terms and conditions
of each such Award Agreement shall be determined by the Administrator, and such terms and
conditions may differ among individual Awards and grantees. At the end of the deferral period, the
Deferred Stock Award, to the extent vested, shall be settled in the form of shares of Stock. To
the extent that a Deferred Stock Award is subject to Section 409A, it may contain such additional
terms and conditions as the Administrator shall determine in order for such Award to comply with
the requirements of Section 409A.



     (b) Election to Receive Deferred Stock Awards in Lieu of Compensation. The
Administrator may, in its sole discretion, permit a grantee to elect to receive a portion of future
cash compensation otherwise due to such grantee in the form of a Deferred Stock Award. Any such
election shall be made in writing and shall be delivered to the Company no later than the date
specified by the Administrator and in accordance with Section 409A and such other rules and
procedures established by the Administrator. Any such future cash compensation that the



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grantee elects to defer shall be converted to a fixed number of phantom stock units based on
the Fair Market Value of Stock on the date the compensation would otherwise have been paid to the
grantee if such payment had not been deferred as provided herein. The Administrator shall have the
sole right to determine whether and under what circumstances to permit such elections and to impose
such limitations and other terms and conditions thereon as the Administrator deems appropriate.




     (c) Rights as a Stockholder. A grantee shall have the rights as a stockholder only as
to shares of Stock acquired by the grantee upon settlement of a Deferred Stock Award; provided,
however, that the grantee may be credited with Dividend Equivalent Rights with respect to the
phantom stock units underlying his Deferred Stock Award, subject to such terms and conditions as
the Administrator may determine.



     (d) Termination. Except as may otherwise be provided by the Administrator either in
the Award Agreement or, subject to Section 18 below, in writing after the Award Agreement is
issued, a grantee’s right in all Deferred Stock Awards that have not vested shall automatically
terminate upon the grantee’s termination of employment (or cessation of service relationship) with
the Company and its Subsidiaries for any reason.



SECTION 9. UNRESTRICTED STOCK AWARDS




     Grant or Sale of Unrestricted Stock. The Administrator may, in its sole discretion,
grant (or sell at par value or such higher purchase price determined by the Administrator) an
Unrestricted Stock Award under the Plan. Unrestricted Stock Awards may be granted in respect of
past services or other valid consideration, or in lieu of cash compensation due to such grantee.



SECTION 10. CASH-BASED AWARDS




     (a) Grant of Cash-based Awards. The Administrator may, in its sole discretion, grant
Cash-based Awards to any grantee in such number or amount and upon such terms, and subject to such
conditions, as the Administrator shall determine at the time of grant. The Administrator shall
determine the maximum duration of the Cash-based Award, the amount of cash to which the Cash-based
Award pertains, the conditions upon which the Cash-based Award shall become vested or payable, and
such other provisions as the Administrator shall determine. Each Cash-based Award shall specify a
cash-denominated payment amount, formula or payment ranges as determined by the Administrator.
Payment, if any, with respect to a Cash-based Award shall be made in accordance with the terms of
the Award and may be made in cash or in shares of Stock, as the Administrator determines.



SECTION 11. PERFORMANCE SHARE AWARDS




     (a) Nature of Performance Share Awards. The Administrator may, in its sole
discretion, grant Performance Share Awards independent of, or in connection with, the granting of
any other Award under the Plan. The Administrator shall determine whether and to whom Performance
Share Awards shall be granted, the Performance Goals, the periods during which performance is to be
measured, and such other limitations and conditions as the Administrator shall determine.



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     (b) Rights as a Stockholder. A grantee receiving a Performance Share Award shall have
the rights of a stockholder only as to shares actually received by the grantee under the Plan and
not with respect to shares subject to the Award but not actually received by the grantee. A
grantee shall be entitled to receive shares of Stock under a Performance Share Award only upon
satisfaction of all conditions specified in the Performance Share Award agreement (or in a
performance plan adopted by the Administrator).



     (c) Termination. Except as may otherwise be provided by the Administrator either in
the Award agreement or, subject to Section 18 below, in writing after the Award agreement is
issued, a grantee’s rights in all Performance Share Awards shall automatically terminate upon the
grantee’s termination of employment (or cessation of service relationship) with the Company and its
Subsidiaries for any reason.



SECTION 12. PERFORMANCE-BASED AWARDS TO COVERED EMPLOYEES




     (a) Performance-based Awards. Any employee or other key person providing services to
the Company and who is selected by the Administrator may be granted one or more Performance-based
Awards in the form of a Restricted Stock Award, Deferred Stock Award, Performance Share Awards or
Cash-based Award payable upon the attainment of Performance Goals that are established by the
Administrator and relate to one or more of the Performance Criteria, in each case on a specified
date or dates or over any period or periods determined by the Administrator. The Administrator
shall define in an objective fashion the manner of calculating the Performance Criteria it selects
to use for any Performance Period. Depending on the Performance Criteria used to establish such
Performance Goals, the Performance Goals may be expressed in terms of overall Company performance
or the performance of a division, business unit, or an individual. The Administrator, in its
discretion, may adjust or modify the calculation of Performance Goals for such Performance Period
in order to prevent the dilution or enlargement of the rights of an individual (i) in the event of,
or in anticipation of, any unusual or extraordinary corporate item, transaction, event or
development, (ii) in recognition of, or in anticipation of, any other unusual or nonrecurring
events affecting the Company, or the financial statements of the Company, or (iii) in response to,
or in anticipation of, changes in applicable laws, regulations, accounting principles, or business
conditions provided however, that the Administrator may not exercise such discretion in a manner
that would increase the Performance-based Award granted to a Covered Employee. Each
Performance-based Award shall comply with the provisions set forth below.



     (b) Grant of Performance-based Awards. With respect to each Performance-based Award
granted to a Covered Employee, the Administrator shall select, within the first 90 days of a
Performance Cycle (or, if shorter, within the maximum period allowed under Section 162(m) of the
Code) the Performance Criteria for such grant, and the Performance Goals with respect to each
Performance Criterion (including a threshold level of performance below which no amount will become
payable with respect to such Award). Each Performance-based Award will specify the amount payable,
or the formula for determining the amount payable, upon achievement of the various applicable
performance targets. The Performance Criteria established by the Administrator may be (but need
not be) different for each Performance Cycle and different Performance Goals may be applicable to
Performance-based Awards to different Covered Employees.



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     (c) Payment of Performance-based Awards. Following the completion of a Performance
Cycle, the Administrator shall meet to review and certify in writing whether, and to what extent,
the Performance Goals for the Performance Cycle have been achieved and, if so, to also calculate
and certify in writing the amount of the Performance-based Awards earned for the Performance Cycle.
The Administrator shall then determine the actual size of each Covered Employee’s
Performance-based Award, and, in doing so, may reduce or eliminate the amount of the
Performance-based Award for a Covered Employee if, in its sole judgment, such reduction or
elimination is appropriate.



     (d) Maximum Award Payable. The maximum Performance-based Award payable to any one
Covered Employee under the Plan for a Performance Cycle is 2,000,000 shares (subject to adjustment
as provided in Section 3(b) hereof) or $7,500,000 in the case of a Performance-based Award that is
a Cash-based Award.



SECTION 13. DIVIDEND EQUIVALENT RIGHTS




     (a) Dividend Equivalent Rights. A Dividend Equivalent Right may be granted hereunder
to any grantee as a component of a Deferred Stock Award, Restricted Stock Award or Performance
Share Award or as a freestanding award. The terms and conditions of Dividend Equivalent Rights
shall be specified in the Award Agreement. Dividend equivalents credited to the holder of a
Dividend Equivalent Right may be paid currently or may be deemed to be reinvested in additional
shares of Stock, which may thereafter accrue additional equivalents. Any such reinvestment shall
be at Fair Market Value on the date of reinvestment or such other price as may then apply under a
dividend reinvestment plan sponsored by the Company, if any. Dividend Equivalent Rights may be
settled in cash or shares of Stock or a combination thereof, in a single installment or
installments. A Dividend Equivalent Right granted as a component of a Deferred Stock Award,
Restricted Stock Award or Performance Share Award may provide that such Dividend Equivalent Right
shall be settled upon settlement or payment of, or lapse of restrictions on, such other Award, and
that such Dividend Equivalent Right shall expire or be forfeited or annulled under the same
conditions as such other Award. A Dividend Equivalent Right granted as a component of a Deferred
Stock Award, Restricted Stock Award or Performance Share Award may also contain terms and
conditions different from such other Award.



     (b) Interest Equivalents. Any Award under this Plan that is settled in whole or in
part in cash on a deferred basis may provide in the grant for interest equivalents to be credited
with respect to such cash payment. Interest equivalents may be compounded and shall be paid upon
such terms and conditions as may be specified by the grant.



     (c) Termination. Except as may otherwise be provided by the Administrator either in
the Award Agreement or, subject to Section 18 below, in writing after the Award Agreement is
issued, a grantee’s rights in all Dividend Equivalent Rights or interest equivalents granted as a
component of a Deferred Stock Award, Restricted Stock Award or Performance Share Award that has not
vested shall automatically terminate upon the grantee’s termination of employment (or cessation of
service relationship) with the Company and its Subsidiaries for any reason.



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SECTION 14. TRANSFERABILITY OF AWARDS




     (a) Transferability. Except as provided in Section 14(b) below, during a grantee’s
lifetime, his or her Awards shall be exercisable only by the grantee, or by the grantee’s legal
representative or guardian in the event of the grantee’s incapacity. No Awards shall be sold,
assigned, transferred or otherwise encumbered or disposed of by a grantee other than by will or by
the laws of descent and distribution. No Awards shall be subject, in whole or in part, to
attachment, execution, or levy of any kind, and any purported transfer in violation hereof shall be
null and void.



     (b) Administrator Action. Notwithstanding Section 14(a), the Administrator, in its
discretion, may provide either in the Award Agreement regarding a given Award or by subsequent
written approval that the grantee (who is an employee or director) may transfer his or her Awards
(other than any Incentive Stock Options) to his or her immediate family members, to trusts for the
benefit of such family members, or to partnerships in which such family members are the only
partners, provided that the transferee agrees in writing with the Company to be bound by all of the
terms and conditions of this Plan and the applicable Award.



     (c) Family Member. For purposes of Section 14(b), “family member” shall mean a
grantee’s child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse,
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, any person sharing the grantee’s household
(other than a tenant of the grantee), a trust in which these persons (or the grantee) have more
than 50 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 50 percent of the voting interests.



     (d) Designation of Beneficiary. Each grantee to whom an Award has been made under the
Plan may designate a beneficiary or beneficiaries to exercise any Award or receive any payment
under any Award payable on or after the grantee’s death. Any such designation shall be on a form
provided for that purpose by the Administrator and shall not be effective until received by the
Administrator. If no beneficiary has been designated by a deceased grantee, or if the designated
beneficiaries have predeceased the grantee, the beneficiary shall be the grantee’s estate.



SECTION 15. TAX WITHHOLDING




     (a) Payment by Grantee. Each grantee shall, no later than the date as of which the
value of an Award or of any Stock or other amounts received thereunder first becomes includable in
the gross income of the grantee for Federal income tax purposes, pay to the Company, or make
arrangements satisfactory to the Administrator regarding payment of, any Federal, state, or local
taxes of any kind required by law to be withheld by the Company with respect to such income. The
Company and its Subsidiaries shall, to the extent permitted by law, have the right to deduct any
such taxes from any payment of any kind otherwise due to the grantee. The Company’s obligation to
deliver evidence of book entry (or stock certificates) to any grantee is subject to and conditioned
on tax withholding obligations being satisfied by the grantee.



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     (b) Payment in Stock. Subject to approval by the Administrator, a grantee may elect
to have the Company’s minimum required tax withholding obligation satisfied, in whole or in part,
by authorizing the Company to withhold from shares of Stock to be issued pursuant to any Award a
number of shares with an aggregate Fair Market Value (as of the date the withholding is effected)
that would satisfy the withholding amount due.



SECTION 16. SECTION 409A AWARDS. 




     To the extent that any Award is determined to constitute “nonqualified deferred compensation”
within the meaning of Section 409A (a “409A Award”), the Award shall be subject to such additional
rules and requirements as specified by the Administrator from time to time in order to comply with
Section 409A. In this regard, if any amount under a 409A Award is payable upon a “separation from
service” (within the meaning of Section 409A) to a grantee who is then considered a “specified
employee” (within the meaning of Section 409A), then no such payment shall be made prior to the
date that is the earlier of (i) six months and one day after the grantee’s separation from service,
or (ii) the grantee’s death, but only to the extent such delay is necessary to prevent such payment
from being subject to interest, penalties and/or additional tax imposed pursuant to Section 409A.
Further, the settlement of any such Award may not be accelerated except to the extent permitted by
Section 409A.



SECTION 17. TRANSFER, LEAVE OF ABSENCE, ETC.




     For purposes of the Plan, the following events shall not be deemed a termination of
employment:



     (a) a transfer to the employment of the Company from a Subsidiary or from the Company to a
Subsidiary, or from one Subsidiary to another; or



     (b) an approved leave of absence for military service or sickness, or for any other purpose
approved by the Company, if the employee’s right to re-employment is guaranteed either by a statute
or by contract or under the policy pursuant to which the leave of absence was granted or if the
Administrator otherwise so provides in writing.



SECTION 18. AMENDMENTS AND TERMINATION




     The Board may, at any time, amend or discontinue the Plan and the Administrator may, at any
time, amend or cancel any outstanding Award for the purpose of satisfying changes in law or for any
other lawful purpose, but no such action shall adversely affect rights under any outstanding Award
without the holder’s consent. Except as provided in Section 3(b) or 3(c), in no event may the
Administrator exercise its discretion to reduce the exercise price of outstanding Stock Options or
Stock Appreciation Rights or effect repricing through cancellation and re-grants. To the extent
required under the rules of any securities exchange or market system on which the Stock is listed,
to the extent determined by the Administrator to be required by the Code to ensure that Incentive
Stock Options granted under the Plan are qualified under Section 422 of the Code, or to ensure that
compensation earned under Awards qualifies as performance-based compensation under Section 162(m)
of the Code, Plan amendments shall be subject to approval by the Company stockholders entitled to
vote at a meeting of stockholders.



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Nothing in this Section 18 shall limit the Administrator’s authority to take any action permitted
pursuant to Section 3(c).




SECTION 19. STATUS OF PLAN




     With respect to the portion of any Award that has not been exercised and any payments in cash,
Stock or other consideration not received by a grantee, a grantee shall have no rights greater than
those of a general creditor of the Company unless the Administrator shall otherwise expressly
determine in connection with any Award or Awards. In its sole discretion, the Administrator may
authorize the creation of trusts or other arrangements to meet the Company’s obligations to deliver
Stock or make payments with respect to Awards hereunder, provided that the existence of such trusts
or other arrangements is consistent with the foregoing sentence.



SECTION 20. GENERAL PROVISIONS




     (a) No Distribution. The Administrator may require each person acquiring Stock
pursuant to an Award to represent to and agree with the Company in writing that such person is
acquiring the shares without a view to distribution thereof.



     (b) Delivery of Stock Certificates. Stock certificates to grantees under this Plan
shall be deemed delivered for all purposes when the Company or a stock transfer agent of the
Company shall have mailed such certificates in the United States mail, addressed to the grantee, at
the grantee’s last known address on file with the Company. Uncertificated Stock shall be deemed
delivered for all purposes when the Company or a Stock transfer agent of the Company shall have
given to the grantee by electronic mail (with proof of receipt) or by United States mail, addressed
to the grantee, at the grantee’s last known address on file with the Company, notice of issuance
and recorded the issuance in its records (which may include electronic “book entry” records).
Notwithstanding anything herein to the contrary, the Company shall not be required to issue or
deliver any certificates evidencing shares of Stock pursuant to the exercise of any Award, unless
and until the Administrator has determined, with advice of counsel (to the extent the Administrator
deems such advice necessary or advisable), that the issuance and delivery of such certificates is
in compliance with all applicable laws, regulations of governmental authorities and, if applicable,
the requirements of any exchange on which the shares of Stock are listed, quoted or traded. All
Stock certificates delivered pursuant to the Plan shall be subject to any stop-transfer orders and
other restrictions as the Administrator deems necessary or advisable to comply with federal, state
or foreign jurisdiction, securities or other laws, rules and quotation system on which the Stock is
listed, quoted or traded. The Administrator may place legends on any Stock certificate to
reference restrictions applicable to the Stock. In addition to the terms and conditions provided
herein, the Administrator may require that an individual make such reasonable covenants,
agreements, and representations as the Administrator, in its discretion, deems necessary or
advisable in order to comply with any such laws, regulations, or requirements. The Administrator
shall have the right to require any individual to comply with any timing or other restrictions with
respect to the settlement or exercise of any Award, including a window-period limitation, as may be
imposed in the discretion of the Administrator.



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     (c) Stockholder Rights. Until Stock is deemed delivered in accordance with Section
20(b), no right to vote or receive dividends or any other rights of a stockholder will exist with
respect to shares of Stock to be issued in connection with an Award, notwithstanding the exercise
of a Stock Option or any other action by the grantee with respect to an Award.



     (d) Other Compensation Arrangements; No Employment Rights. Nothing contained in this
Plan shall prevent the Board from adopting other or additional compensation arrangements, including
trusts, and such arrangements may be either generally applicable or applicable only in specific
cases. The adoption of this Plan and the grant of Awards do not confer upon any employee any right
to continued employment with the Company or any Subsidiary.



     (e) Trading Policy Restrictions. Option exercises and other Awards under the Plan
shall be subject to such Company’s insider trading policy and procedures, as in effect from time to
time.



     (f) Forfeiture of Awards under Sarbanes-Oxley Act. If the Company is required to
prepare an accounting restatement due to the material noncompliance of the Company, as a result of
misconduct, with any financial reporting requirement under the securities laws, then any grantee
who is one of the individuals subject to automatic forfeiture under Section 304 of the
Sarbanes-Oxley Act of 2002 shall reimburse the Company for the amount of any Award received by such
individual under the Plan during the 12-month period following the first public issuance or filing
with the United States Securities and Exchange Commission, as the case may be, of the financial
document embodying such financial reporting requirement.



SECTION 21. EFFECTIVE DATE OF PLAN




     This Plan shall become effective upon approval by the holders of a majority of the votes cast
at a meeting of stockholders at which a quorum is present or pursuant to written consent. No
grants of Stock Options and other Awards may be made hereunder after the tenth anniversary of the
Effective Date and no grants of Incentive Stock Options may be made hereunder after the tenth
anniversary of the date the Plan is approved by the Board.



SECTION 22. GOVERNING LAW




     This Plan and all Awards and actions taken thereunder shall be governed by, and construed in
accordance with, the laws of the State of Delaware, applied without regard to conflict of law
principles.



DATE APPROVED BY BOARD OF DIRECTORS:




DATE APPROVED BY STOCKHOLDERS:





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