**EXHIBIT 10.1**

**CONCEPTUS, INC.**

**2010 EQUITY INCENTIVE AWARD PLAN**

**Adopted: April 27, 2010**

**Approved By Stockholders: June 14, 2010**

**ARTICLE 1.**

**PURPOSE**

The purpose of the Conceptus, Inc. 2010 Equity Incentive Award Plan (as amended from time to time, the “Plan”) is topromote the success and enhance the value of Conceptus, Inc. (the “Company”) by linking the personal interests of the members of the Board, Employees, and Consultants to those of Company stockholders and by providing suchindividuals with an incentive for outstanding performance to generate superior returns to Company stockholders. The Plan is further intended to provide flexibility to the Company in its ability to motivate, attract, and retain the services ofmembers of the Board, Employees, and Consultants upon whose judgment, interest, and special effort the successful conduct of the Company’s operation is largely dependent. 

**ARTICLE 2.**

**DEFINITIONS AND CONSTRUCTION**

Wherever the following terms are used in the Plan they shall have the meanings specified below, unless the context clearly indicatesotherwise. The singular pronoun shall include the plural where the context so indicates. 

2.1 “Award” meansan Option, a Restricted Stock award, a Stock Appreciation Right award, a Performance Share award, a Performance Stock Unit award, a Dividend Equivalents award, a Stock Payment award, a Deferred Stock award, a Restricted Stock Unit award, aPerformance Bonus Award or a Performance-Based Award granted to a Participant pursuant to the Plan. 

2.2 “AwardAgreement” means any written agreement, contract, or other instrument or document evidencing an Award, including through electronic medium. 

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

2.4 “Change in Control” means and includes each of the following: 

(a) A transaction or series of transactions (other than an offering of Stock to the general public through a registration statement filedwith the Securities and Exchange Commission) whereby any “person” or related “group” of “persons” (as such terms are used in Sections 13(d) and 14(d)(2) of the Exchange Act) (other than the Company, any of itssubsidiaries, an employee benefit plan maintained by the Company or any of its subsidiaries or a “person” that, prior to such transaction, directly or indirectly controls, is controlled by, or is

under common control with, the Company) directly or indirectly acquires beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of securities of the Company possessing morethan 50% of the total combined voting power of the Company’s securities outstanding immediately after such acquisition; or 

(b) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with anynew director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in Section 2.4(a) or Section 2.4(c)) whose election by the Board or nomination forelection by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two-year period or whose election or nomination for election waspreviously so approved, cease for any reason to constitute a majority thereof; or 

(c) The consummation by the Company(whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all orsubstantially all of the Company’s assets in any single transaction or series of related transactions or (z) the acquisition of assets or stock of another entity, in each case other than a transaction: 

(i) Which results in the Company’s voting securities outstanding immediately before the transaction continuing to represent (eitherby remaining outstanding or by being converted into voting securities of the company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of theCompany’s assets or otherwise succeeds to the business of the Company (the Company or such person, the “Successor Entity”)) directly or indirectly, at least a majority of the combined voting power of the Successor Entity’soutstanding voting securities immediately after the transaction, and 

(ii) After which no person or group beneficially ownsvoting securities representing 50% or more of the combined voting power of the Successor Entity; *provided, however,* that no person or group shall be treated for purposes of this Section 2.4(c)(ii) as beneficially owning 50% or more ofcombined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or 

(d) The Company’s stockholders approve a liquidation or dissolution of the Company. 

The Committee shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control ofthe Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto. In addition, if a Change in Control constitutes a payment event with respect to anyAward which provides for the deferral of compensation and is subject to Section 409A of the Code, the transaction or event described in this Section 2.5 with respect to such Award must also constitute a “change in control event,”as defined in Treasury Regulation §1.409A-3(i)(5) to the extent required by Section 409A of the Code. 

 

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2.5 “Code” means the Internal Revenue Code of 1986, as amended. 

2.6 “Committee” means the committee of the Board described in Article 13. 

2.7 “Company” has the meaning given in Article 1. 

2.8 “Consultant” means any consultant or adviser if: (a) the consultant or adviser renders bona fide services tothe Company or any Subsidiary; (b) the services rendered by the consultant or adviser are not in connection with the offer or sale of securities in a capital-raising transaction and do not directly or indirectly promote or maintain a market forthe Company’s securities; and (c) the consultant or adviser is a natural person. 

2.9 “CoveredEmployee” means an Employee who is, or could be, a “covered employee” within the meaning of Section 162(m) of the Code. 

2.10 “Deferred Stock” means a right to receive a specified number of shares of Stock during specified time periodspursuant to Section 8.5. 

2.11 “Director” means a member of the Board, or as applicable, a member of theboard of directors of a Subsidiary. 

2.12 “Disability” means that the Participant qualifies to receivelong-term disability payments under the Company’s long-term disability insurance program, as it may be amended from time to time. 

2.13 “Dividend Equivalents” means a right granted to a Participant pursuant to Section 8.3 to receive theequivalent value (in cash or Stock) of dividends paid on Stock. 

2.14 “DRO” means a domestic relations orderas defined by the Code or Title I of the Employee Retirement Income Security Act of 1974, as amended from time to time, or the rules thereunder. 

2.15 “Effective Date” has the meaning set forth in Section 14.1. 

2.16 “Eligible Individual” means any person who is an Employee, a Consultant or an Independent Director, as determinedby the Committee. 

2.17 “Employee” means any officer or other employee (as defined in accordance withSection 3401(c) of the Code) of the Company or any Subsidiary. 

2.18 “Equity Restructuring” means anonreciprocal transaction between the Company and its stockholders, such as a stock dividend, stock split, spin-off, or recapitalization through a large, nonrecurring cash dividend, that affects the shares of Stock (or other securities of theCompany) or the share price of Stock (or other securities) and causes a change in the per share value of the Stock underlying outstanding Awards. 

2.19 “Exchange Act” means the Securities Exchange Act of 1934, as amended. 

 

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2.20 “Fair Market Value” means, as of any given date, (a) if Stock istraded on any established stock exchange, the closing price of a share of Stock as reported in the *Wall Street Journal* (or such other source as the Company may deem reliable for such purposes) for such date, or if no sale occurred on suchdate, the first trading date immediately prior to such date during which a sale occurred; or (b) if Stock is not traded on an exchange but is quoted on a national market or other quotation system, the last sales price on such date, or if nosales occurred on such date, then on the date immediately prior to such date on which sales prices are reported; or (c) if Stock is not publicly traded, the fair market value established by the Committee acting in good faith. 

2.21 “Full Value Award” means a Restricted Stock award, a Performance Share award, a Performance Stock Unit award, aStock Payment award, a Dividend Equivalents award, a Deferred Stock award, a Restricted Stock Unit award, a Performance Bonus Award or a Performance-Based Award. 

2.22 “Incentive Stock Option” means an Option that is intended to meet the requirements of Section 422 of the Codeor any successor provision thereto. 

2.23 “Independent Director” means a Director of the Company who is notan Employee. 

2.24 “Independent Director Equity Compensation Policy” shall have the meaning set forth inArticle 12. 

2.25 “Non-Employee Director” means a Director of the Company who qualifies as a“Non-Employee Director” as defined in Rule 16b-3(b)(3) under the Exchange Act, or any successor rule. 

2.26“Non-Qualified Stock Option” means an Option that is not intended to be an Incentive Stock Option. 

2.27“Option” means a right granted to a Participant pursuant to Article 5 of the Plan to purchase a specified number of shares of Stock at a specified price during specified time periods. An Option may be either an Incentive StockOption or a Non-Qualified Stock Option. 

2.28 “Participant” means any Eligible Individual who, as a Director,Consultant or Employee, has been granted an Award pursuant to the Plan. 

2.29 “Performance-Based Award” meansan Award granted to selected Covered Employees pursuant to Section 8.7, but which is subject to the terms and conditions set forth in Article 9. All Performance-Based Awards are intended to qualify as Qualified Performance-Based Compensation.

2.30 “Performance Bonus Award” has the meaning set forth in Section 8.7. 

2.31 “Performance Criteria” means the criteria that the Committee selects for purposes of establishing the PerformanceGoal or Performance Goals for a Participant for a Performance Period. The Performance Criteria that will be used to establish Performance 

 

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Goals are limited to the following: net earnings (either before or after interest, taxes, depreciation and amortization), economic value-added, sales or revenue, net income (either before orafter taxes), operating earnings, cash flow (including, but not limited to, operating cash flow and free cash flow), cash flow return on capital, return on net assets, return on stockholders’ equity, return on assets, return on capital,stockholder returns, return on sales, gross or net profit margin, productivity, expense, margins, operating efficiency, customer satisfaction, working capital, earnings per share, price per share of Stock, and market share, any of which may bemeasured either in absolute terms or as compared to any incremental increase or as compared to results of a peer group. The Committee shall define in an objective fashion the manner of calculating the Performance Criteria it selects to use for suchPerformance Period for such Participant. 

2.32 “Performance Goals” means, for a Performance Period, the goalsestablished in writing by the Committee for the Performance Period based upon the Performance Criteria. Depending on the Performance Criteria used to establish such Performance Goals, the Performance Goals may be expressed in terms of overallCompany performance or the performance of a division, network, business unit, or an individual. The Committee, in its discretion, may, within the time prescribed by Section 162(m) of the Code, adjust or modify the calculation of PerformanceGoals for such Performance Period in order to prevent the dilution or enlargement of the rights of Participants (a) in the event of, or in anticipation of, any unusual or extraordinary corporate item, transaction, event, or development, or(b) in recognition of, or in anticipation of, any other unusual or nonrecurring events affecting the Company, or the financial statements of the Company, or in response to, or in anticipation of, changes in applicable laws, regulations,accounting principles, or business conditions. 

2.33 “Performance Period” means the one or more periods oftime, which may be of varying and overlapping durations, as the Committee may select, over which the attainment of one or more Performance Goals will be measured for the purpose of determining a Participant’s right to, and the payment of, anAward. 

2.34 “Performance Share” means a right granted to a Participant pursuant to Section 8.1, toreceive Stock, the payment of which is contingent upon achieving certain Performance Goals or other performance-based targets established by the Committee. 

2.35 “Performance Stock Unit” means a right granted to a Participant pursuant to Section 8.2, to receive Stock, thepayment of which is contingent upon achieving certain Performance Goals or other performance-based targets established by the Committee. 

2.36 “Permitted Transferee” shall mean, with respect to a Participant, any “family member” of the Participant,as defined under the instructions to use of the Form S-8 Registration Statement under the Securities Act, after taking into account any state, federal, local or foreign tax and securities laws applicable to transferable Awards. 

2.37 “Plan” has the meaning set forth in Article 1. 

2.38 “Prior Plans” means, collectively, the following plans of the Company: the Conceptus, Inc. Equity Incentive Plan,the Conceptus, Inc. Twelfth Amended and Restated 2001 Equity Incentive Plan and the Conceptus, Inc. Amended and Restated 2002 Non-Qualified Stock Option Plan, in each case as such plan may be amended from time to time. 

 

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2.39 “Qualified Performance-Based Compensation” means any compensation thatis intended to qualify as “qualified performance-based compensation” as described in Section 162(m)(4)(C) of the Code and which is subject to the terms and conditions set forth in Article 9. 

2.40 “Restricted Stock” means Stock awarded to a Participant pursuant to Article 6 that is subject to certainrestrictions and may be subject to risk of forfeiture. 

2.41 “Restricted Stock Unit” means an Award grantedpursuant to Section 8.6. 

2.42 “Securities Act” means the Securities Act of 1933, as amended.

2.43 “Stock” means the common stock of the Company, par value $0.003 per share, and such other securities ofthe Company that may be substituted for Stock pursuant to Article 11. 

2.44 “Stock Appreciation Right” or“SAR” means a right granted pursuant to Article 7 to receive a payment equal to the excess of the Fair Market Value of a specified number of shares of Stock on the date the SAR is exercised over the Fair Market Value on the date theSAR was granted as set forth in the applicable Award Agreement. 

2.45 “Stock Payment” means a payment in theform of shares of Stock granted pursuant to Section 8.4 as part of any bonus, deferred compensation or other arrangement. 

2.46 “Subsidiary” means any “subsidiary corporation” as defined in Section 424(f) of the Code and anyapplicable regulations promulgated thereunder or any other entity of which a majority of the outstanding voting stock or voting power is beneficially owned directly or indirectly by the Company. 

2.47 “Substitute Awards” means Awards granted or shares of Stock issued by the Company in assumption of, or insubstitution or exchange for, awards previously granted, or the right or obligation to make future awards, in each case by a company acquired by the Company or any Subsidiary or with which the Company or any Subsidiary combined. 

2.48 “Successor Entity” has the meaning given in Section 2.4(c)(i). 

**ARTICLE 3.**

**SHARES SUBJECT TO THE PLAN**

3.1 Number of Shares. 

(a) Subject to Article 11 and Sections 3.1(b), (c) and (d), the maximum aggregate number of shares of Stock that may be issued ordelivered under the Plan is (i) 3,000,000 shares of Stock plus (ii) that number of shares of Stock that as of March 31, 2010 are 

 

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available for issuance under the Prior Plans plus (iii) that number of shares of Stock that are subject to equity awards granted under the Prior Plans which were outstanding as ofMarch 31, 2010 and thereafter terminate, expire, lapse or are forfeited for any reason and which following the termination, expiration, lapse or forfeiture of such awards do not again become available for issuance under the Prior Plans;*provided*, *however*, that such aggregate number of shares of Stock available for issuance under the Plan shall be reduced by two and a half (2.5) shares for each share of Stock delivered in settlement of any Full Value Award. Theaggregate number of shares of Stock available for issuance under the Prior Plans as of March 31, 2010 was 152,259, the aggregate number of shares of Stock subject to outstanding awards under the Prior Plans as of March 31, 2010 was10,128,105, and, accordingly, the total number of shares of Stock in the preceding sentence shall not exceed 13,280,634. 

(b)If an award granted under a Prior Plan or an Award is forfeited (including a repurchase of an unvested Award upon a Participant’s termination of service at a price equal to the par value of the Stock subject to the Award) or expires, the sharesof Stock subject to such Award or award under the Prior Plan shall, to the extent of such forfeiture or expiration, again be available for Awards under the Plan, subject to Section 3.1(d) below. Notwithstanding anything to the contrarycontained herein, the following shares of Stock shall not be added to the shares of Stock authorized for grant under paragraph (a) of this Section: (i) shares of Stock tendered by the Participant or withheld by the Company in payment ofthe purchase price of an Option or an option granted under a Prior Plan, (ii) shares of Stock tendered by the Participant or withheld by the Company to satisfy any tax withholding obligation with respect to an Award or an award granted under aPrior Plan, and (iii) shares of Stock subject to a Stock Appreciation Right (or a stock appreciation right from a Prior Plan) that are not issued in connection with the stock settlement of the Stock Appreciation Right (or a stock appreciationright from a Prior Plan) on exercise thereof. Notwithstanding the provisions of this Section 3.1(b), no shares of Stock may again be optioned, granted or awarded if such action would cause an Incentive Stock Option to fail to qualify as anincentive stock option under Section 422 of the Code. 

(c) Substitute Awards shall not reduce the shares of Stockauthorized for grant under the Plan or authorized for grant to a Participant in any calendar year. Additionally, in the event that a company acquired by the Company or any Subsidiary or with which the Company or any Subsidiary combines has sharesavailable under a pre-existing plan approved by shareholders and not adopted in contemplation of such acquisition or combination, the shares available for grant pursuant to the terms of such pre-existing plan (as adjusted, to the extent appropriate,using the exchange ratio or other adjustment or valuation ratio or formula used in such acquisition or combination to determine the consideration payable to the holders of common stock of the entities party to such acquisition or combination) may beused for Awards under the Plan and shall not reduce the shares of Stock authorized for grant under the Plan; *provided* that Awards using such available shares shall not be made after the date awards or grants could have been made under theterms of the pre-existing plan, absent the acquisition or combination, and shall only be made to individuals who were not Employees, Consultants or Directors prior to such acquisition or combination. 

(d) Any shares of Stock that again become available for grant pursuant to this Section 3 shall be added back as (i) one(1) share of stock if such shares of Stock were subject to Options or Stock Appreciation Rights granted under the Plan or options or stock appreciation 

 

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rights granted under the Prior Plans and (ii) as two and a half (2.5) shares of Stock if such shares of Stock were subject to Full Value Awards or awards other than options or stockappreciation rights granted under the Prior Plans. 

(e) Notwithstanding anything to the contrary in this Section 3, orelsewhere in this Plan, but subject to adjustment pursuant to Article 11 of the Plan, the aggregate number of shares of Stock actually issued or transferred by the Company upon the exercise of Incentive Stock Options shall not exceed 13,280,634shares of Stock. 

3.2 Stock Distributed. Any Stock distributed pursuant to an Award may consist, in whole or in part,of authorized and unissued Stock, treasury Stock or Stock purchased on the open market. 

3.3 Limitation on Number of SharesSubject to Awards. Notwithstanding any provision in the Plan to the contrary, and subject to Article 11, the maximum number of shares of Stock with respect to one or more Awards that may be granted to any one Participant during any calendar yearshall be 800,000 shares of Stock. The maximum amount that may be paid in cash to any one Participant during any calendar year with respect to any Performance-Based Award (including, without limitation, any Performance Bonus Award) shall be$2,000,000. 

**ARTICLE 4.**

**ELIGIBILITY AND PARTICIPATION**

4.1 Eligibility. Each Eligible Individual shall be eligible to be granted one or more Awards pursuant to the Plan. 

4.2 Participation. Subject to the provisions of the Plan, the Committee may, from time to time, select from among all EligibleIndividuals, those to whom Awards shall be granted and shall determine the nature and amount of each Award. No Eligible Individual shall have any right to be granted an Award pursuant to this Plan. 

4.3 Foreign Participants. Notwithstanding any provision of the Plan to the contrary, in order to comply with the laws in othercountries in which the Company and its Subsidiaries operate or have Eligible Individuals, the Committee, in its sole discretion, shall have the power and authority to: (i) determine which Subsidiaries shall be covered by the Plan;(ii) determine which Eligible Individuals outside the United States are eligible to participate in the Plan; (iii) modify the terms and conditions of any Award granted to Eligible Individuals outside the United States to comply withapplicable foreign laws; (iv) establish subplans and modify exercise procedures and other terms and procedures, to the extent such actions may be necessary or advisable (any such subplans and/or modifications shall be attached to this Plan asappendices); *provided, however*, that no such subplans and/or modifications shall increase the share limitations contained in Sections 3.1 and 3.3 of the Plan; and (v) take any action, before or after an Award is made, that it deemsadvisable to obtain approval or comply with any necessary local governmental regulatory exemptions or approvals. Notwithstanding the foregoing, the Committee may not take any actions hereunder, and no Awards shall be granted, that would violate theExchange Act, the Code, any securities law or governing statute or any other applicable law. 

 

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**ARTICLE 5.**

**STOCK OPTIONS**

5.1 General. The Committee is authorized to grant Options to Eligible Individuals on the following terms and conditions:

(a) Exercise Price. The exercise price per share of Stock subject to an Option shall be determined by the Committeeand set forth in the Award Agreement; *provided*, that, subject to Section 5.2(c), the exercise price for any Option shall not be less than 100% of the Fair Market Value of a share of Stock on the date of grant. Notwithstanding theforegoing, Options that are Substitute Awards may be granted with a per share exercise price other than as required in the preceding sentence. 

(b) Time and Conditions of Exercise. The Committee shall determine the time or times at which an Option may be exercised in wholeor in part; *provided* that the term of any Option granted under the Plan shall not exceed seven (7) years. The Committee shall also determine the Performance Criteria, other specific performance criteria or other conditions, if any, thatmust be satisfied before all or part of an Option may be exercised. 

(c) Payment. The Committee shall determine themethods by which the exercise price of an Option may be paid and the form of payment, including, without limitation: (i) cash, (ii) shares of Stock held for such period of time as may be required by the Committee and having a Fair MarketValue on the date of delivery equal to the aggregate exercise price of the Option or exercised portion thereof, or (iii) other property acceptable to the Committee (including through the delivery of a notice that the Participant has placed amarket sell order with a broker with respect to shares of Stock then issuable upon exercise of the Option, and that the broker has been directed to pay a sufficient portion of the net proceeds of the sale to the Company in satisfaction of the Optionexercise price; *provided* that payment of such proceeds is then made to the Company upon settlement of such sale). Notwithstanding any other provision of the Plan to the contrary, no Participant who is a Director or an “executiveofficer” of the Company within the meaning of Section 13(k) of the Exchange Act shall be permitted to pay the exercise price of an Option, or continue any extension of credit with respect to the exercise price of an Option with a loan fromthe Company or a loan arranged by the Company (d) in violation of Section 13(k) of the Exchange Act. 

(e) Evidence ofGrant. All Options shall be evidenced by an Award Agreement between the Company and the Participant. The Award Agreement shall include such additional provisions as may be specified by the Committee. 

5.2 Incentive Stock Options. Incentive Stock Options shall be granted only to Employees and the terms of any Incentive StockOptions granted pursuant to the Plan, in addition to the requirements of Section 5.1, must comply with the provisions of this Section 5.2. 

 

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(a) Expiration. Subject to Section 5.2(c), an Incentive Stock Option shallexpire and may not be exercised to any extent by anyone after the date seven (7) years from the date it is granted, unless an earlier time is set in the Award Agreement. 

(b) Dollar Limitation. The aggregate Fair Market Value (determined as of the time the Option is granted) of all shares of Stockwith respect to which Incentive Stock Options are first exercisable by a Participant in any calendar year may not exceed $100,000 or such other limitation as imposed by Section 422(d) of the Code, or any successor provision. To the extent thatIncentive Stock Options are first exercisable by a Participant in excess of such limitation, the excess shall be considered Non-Qualified Stock Options. 

(c) Ten Percent Owners. An Incentive Stock Option shall be granted to any individual who, at the date of grant, owns stockpossessing more than ten percent of the total combined voting power of all classes of Stock of the Company only if such Option is granted at a price that is not less than 110% of Fair Market Value on the date of grant and the Option is exercisablefor no more than five years from the date of grant. 

(d) Notice of Disposition. The Participant shall give the Companyprompt notice of any disposition of shares of Stock acquired by exercise of an Incentive Stock Option within (i) two years from the date of grant of such Incentive Stock Option or (ii) one year after the transfer of such shares of Stock tothe Participant. 

(e) Right to Exercise. During a Participant’s lifetime, an Incentive Stock Option may beexercised only by the Participant. 

(f) Failure to Meet Requirements. Any Option (or portion thereof) purported to bean Incentive Stock Option, which, for any reason, fails to meet the requirements of Section 422 of the Code shall be considered a Non-Qualified Stock Option. 

**ARTICLE 6.**

**RESTRICTED STOCK AWARDS**

6.1 Grant of Restricted Stock. The Committee is authorized to make Awards of Restricted Stock to any Eligible Individual selectedby the Committee in such amounts and subject to such terms and conditions as determined by the Committee. All Awards of Restricted Stock shall be evidenced by an Award Agreement and shall be subject to Article 10. 

6.2 Issuance and Restrictions. Restricted Stock shall be subject to such restrictions on transferability and other restrictions asthe Committee may impose (including, without limitation, limitations on the right to vote Restricted Stock or the right to receive dividends on the Restricted Stock) and may be linked to any one or more of the Performance Criteria or other specificperformance criteria determined appropriate by the Committee. These restrictions may lapse separately or in combination at such times, pursuant to such circumstances, in such installments, or otherwise, as the Committee determines at the time of thegrant of the Award or thereafter. 

 

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**ARTICLE 7.**

**STOCK APPRECIATION RIGHTS**

7.1 Grant of Stock Appreciation Rights. 

(a) A Stock Appreciation Right may be granted to any Eligible Individual selected by the Committee. The exercise price per share of Stocksubject to each Stock Appreciation Right shall be set by the Committee, but shall not be less than 100% of the per share Fair Market Value on the date the Stock Appreciation Right is granted. A Stock Appreciation Right shall be subject to such termsand conditions not inconsistent with the Plan as the Committee shall impose (including any Performance Criteria or other specific performance criteria that must be satisfied before all or part of a Stock Appreciation Right may be exercised) andshall be evidenced by an Award Agreement. The Committee shall determine the time or times at which a SAR may be exercised in whole or in part; *provided* that the term of any SAR granted under the Plan shall not exceed seven (7) years.

(b) A Stock Appreciation Right shall entitle the Participant (or other person entitled to exercise the Stock AppreciationRight pursuant to the Plan) to exercise all or a specified portion of the Stock Appreciation Right (to the extent then exercisable pursuant to its terms) and to receive from the Company an amount equal to the product of (i) the excess of(A) the Fair Market Value of the Stock on the date the Stock Appreciation Right is exercised over (B) the Fair Market Value of the Stock on the date the Stock Appreciation Right was granted (which may be the original date of grant for aSubstitute Award) and (ii) the number of shares of Stock with respect to which the Stock Appreciation Right is exercised, subject to any limitations the Committee may impose. 

7.2 Payment and Limitations on Exercise. 

(a) Subject to Section 7.2(b), payment of the amounts determined under Section 7.1(b) above shall be in cash, in Stock (basedon its Fair Market Value as of the date the Stock Appreciation Right is exercised) or a combination of both, as determined by the Committee and set forth in the Award Agreement. 

(b) To the extent any payment under this Section 7 is effected in Stock, it shall be made subject to satisfaction of all provisionsof Article 5 above pertaining to Options. 

**ARTICLE 8.**

**OTHER TYPES OF AWARDS**

8.1 Performance Share Awards. Any Eligible Individual selected by the Committee may be granted one or more Performance Shareawards which shall be denominated in a number of shares of Stock and which may be linked to any one or more of the Performance Criteria or other specific performance criteria determined appropriate by the Committee, in each case on a specified dateor dates or over any period or periods determined by the Committee. In making such determinations, the Committee shall consider (among such other factors as it deems relevant in light of the specific type of award) the contributions,responsibilities and other compensation of the particular Participant. 

 

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8.2 Performance Stock Units.****Any Eligible Individual selected by the Committeemay be granted one or more Performance Stock Unit awards which shall be denominated in unit equivalent of shares of Stock and/or units of value including dollar value of shares of Stock and which may be linked to any one or more of the PerformanceCriteria or other specific performance criteria determined appropriate by the Committee, in each case on a specified date or dates or over any period or periods determined by the Committee. In making such determinations, the Committee shall consider(among such other factors as it deems relevant in light of the specific type of award) the contributions, responsibilities and other compensation of the particular Participant. 

8.3 Dividend Equivalents. Any Eligible Individual selected by the Committee may be granted Dividend Equivalents based on thedividends declared on the shares of Stock that are subject to any Award other than an Option or Stock Appreciation Right, to be credited as of dividend payment dates, during the period between the date such Award is granted and the date such Awardis exercised, vests or expires, as determined by the Committee. Such Dividend Equivalents shall be converted to cash or additional shares of Stock by such formula and at such time and subject to such limitations as may be determined by theCommittee. Notwithstanding the foregoing, any Dividend Equivalents granted with respect to Performance Shares, Performance Stock Units, Performance Bonus Awards or Performance-Based Awards shall only be paid as such Awards vest based upon theachievement of the applicable Performance Goals or other performance-based objectives. For the avoidance of doubt, Dividend Equivalents shall not be granted with respect to Options or Stock Appreciation Rights. 

8.4 Stock Payments. Any Eligible Individual selected by the Committee may receive Stock Payments in the manner determined fromtime to time by the Committee. The number of shares shall be determined by the Committee and may be based upon the Performance Criteria or other specific performance criteria determined appropriate by the Committee, determined on the date such StockPayment is made or on any date thereafter. 

8.5 Deferred Stock. Any Eligible Individual selected by the Committee maybe granted an award of Deferred Stock in the manner determined from time to time by the Committee. The number of shares of Deferred Stock shall be determined by the Committee and may be linked to the Performance Criteria or other specificperformance criteria determined to be appropriate by the Committee, in each case on a specified date or dates or over any period or periods determined by the Committee subject to Section 10.6. Stock underlying a Deferred Stock award will not beissued until the Deferred Stock award has vested, pursuant to a vesting schedule or performance criteria set by the Committee. Unless otherwise provided by the Committee, a Participant awarded Deferred Stock shall have no rights as a Companystockholder with respect to such Deferred Stock until such time as the Deferred Stock award has vested and the Stock underlying the Deferred Stock award has been issued. 

 

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8.6 Restricted Stock Units. The Committee is authorized to make Awards of RestrictedStock Units to any Eligible Individual selected by the Committee in such amounts and subject to such terms and conditions as determined by the Committee. At the time of grant, the Committee shall specify the date or dates on which the RestrictedStock Units shall become fully vested and nonforfeitable, and may specify such conditions to vesting as it deems appropriate subject to Section 10.6. At the time of grant, the Committee shall specify the maturity date applicable to each grantof Restricted Stock Units which shall be no earlier than the vesting date or dates of the Award and may be determined at the election of the grantee. On the maturity date, the Company shall, subject to Section 10.5(b), transfer to theParticipant one unrestricted, fully transferable share of Stock for each Restricted Stock Unit scheduled to be paid out on such date and not previously forfeited. 

8.7 Performance Bonus Awards. Any Eligible Individual selected by the Committee may be granted one or more Performance-BasedAwards in the form of a cash bonus (a “Performance Bonus Award”) payable upon the attainment of Performance Goals that are established by the Committee and relate to one or more of the Performance Criteria, in each case on aspecified date or dates or over any period or periods determined by the Committee subject to Section 10.6. Any such Performance Bonus Award paid to a Covered Employee shall be based upon objectively determinable bonus formulas established inaccordance with Article 9. 

**ARTICLE 9.**

**PERFORMANCE-BASED AWARDS**

9.1 Purpose. The purpose of this Article 9 is to provide the Committee the ability to qualify Awards other than Options and SARsand that are granted pursuant to Articles 6 and 8 as Qualified Performance-Based Compensation. If the Committee, in its discretion, decides to grant a Performance-Based Award to a Covered Employee, the provisions of this Article 9 shall control overany contrary provision contained in Articles 6, 8 or 10; *provided, however*, that the Committee may in its discretion grant Awards to Eligible Individuals (including Covered Employees) that are based on Performance Criteria or PerformanceGoals but that do not satisfy the requirements of this Article 9. 

9.2 Applicability. This Article 9 shall apply onlyto those Covered Employees selected by the Committee to receive Performance-Based Awards. The designation of a Covered Employee as a Participant for a Performance Period shall not in any manner entitle the Participant to receive an Award for theperiod. Moreover, designation of a Covered Employee as a Participant for a particular Performance Period shall not require designation of such Covered Employee as a Participant in any subsequent Performance Period and designation of one CoveredEmployee as a Participant shall not require designation of any other Covered Employees as a Participant in such period or in any other period. 

9.3 Procedures with Respect to Performance-Based Awards. To the extent necessary to comply with the Qualified Performance-BasedCompensation requirements of Section 162(m)(4)(C) of the Code, with respect to any Award granted under Articles 6 or 8 which may be granted to one or more Covered Employees, no later than ninety (90) days

 

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following the commencement of any fiscal year in question or any other designated fiscal period or period of service (or such other time as may be required or permitted by Section 162(m) ofthe Code), the Committee shall, in writing, (a) designate one or more Covered Employees, (b) select the Performance Criteria applicable to the Performance Period, (c) establish the Performance Goals, and amounts of such Awards, asapplicable, which may be earned for such Performance Period, and (d) specify the relationship between Performance Criteria and the Performance Goals and the amounts of such Awards, as applicable, to be earned by each Covered Employee for suchPerformance Period. Following the completion of each Performance Period, the Committee shall certify in writing whether the applicable Performance Goals have been achieved for such Performance Period. In determining the amount earned by a CoveredEmployee, the Committee shall have the right to reduce or eliminate (but not to increase) the amount payable at a given level of performance to take into account additional factors that the Committee may deem relevant to the assessment of individualor corporate performance for the Performance Period. 

9.4 Payment of Performance-Based Awards. Unless otherwiseprovided in the applicable Award Agreement, a Participant must be employed by the Company or a Subsidiary on the day a Performance-Based Award for such Performance Period is paid to the Participant. Furthermore, a Participant shall be eligible toreceive a payment pursuant to a Performance-Based Award for a Performance Period only if the Performance Goals for such period are achieved. In determining the amount earned under a Performance-Based Award, the Committee may reduce or eliminate theamount of the Performance-Based Award earned for the Performance Period, if in its sole and absolute discretion, such reduction or elimination is appropriate. 

9.5 Additional Limitations. Notwithstanding any other provision of the Plan, any Award which is granted to a Covered Employee andis intended to constitute Qualified Performance-Based Compensation shall be subject to any additional limitations set forth in Section 162(m) of the Code (including any amendment to Section 162(m) of the Code) or any regulations or rulingsissued thereunder that are requirements for qualification as qualified performance-based compensation as described in Section 162(m)(4)(C) of the Code, and the Plan shall be deemed amended to the extent necessary to conform to suchrequirements. 

**ARTICLE 10.**

**PROVISIONS APPLICABLE TO AWARDS**

10.1 Stand-Alone and Tandem Awards. Awards granted pursuant to the Plan may, in the discretion of the Committee, be granted eitheralone, in addition to, or in tandem with, any other Award granted pursuant to the Plan. Awards granted in addition to or in tandem with other Awards may be granted either at the same time as or at a different time from the grant of such otherAwards. 

10.2 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 the term of an Award, the provisions applicable in the event the Participant’s employment or service terminates, and the Company’s authority to unilaterally or bilaterally amend,modify, suspend, cancel or rescind an Award. 

 

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10.3 Limits on Transfer. 

(a) Except as otherwise provided in Section 10.3(b): 

(i) No Award under the Plan may be sold, pledged, assigned or transferred in any manner other than by will or the laws of descent anddistribution or, subject to the consent of the Administrator, pursuant to a DRO, unless and until such Award has been exercised, or the shares underlying such Award have been issued, and all restrictions applicable to such shares have lapsed;

(ii) No Award or interest or right therein shall be liable for the debts, contracts or engagements of the Participant or hissuccessors in interest or shall be subject to disposition by transfer, alienation, anticipation, pledge, hypothecation, encumbrance, assignment or any other means whether such disposition be voluntary or involuntary or by operation of law byjudgment, levy, attachment, garnishment or any other legal or equitable proceedings (including bankruptcy), and any attempted disposition thereof shall be null and void and of no effect, except to the extent that such disposition is permitted by thepreceding sentence; and 

(iii) During the lifetime of the Participant, only the Participant may exercise an Award (or anyportion thereof) granted to him under the Plan, unless it has been disposed of pursuant to a DRO; after the death of the Participant, any exercisable portion of an Award may, prior to the time when such portion becomes unexercisable under the Planor the applicable Award Agreement, be exercised by his personal representative or by any person empowered to do so under the deceased Participant’s will or under the then applicable laws of descent and distribution. 

(b) Notwithstanding Section 10.3(a), the Administrator, in its sole discretion, may determine to permit a Participant to transfer anAward other than an Incentive Stock Option to any one or more Permitted Transferees, subject to the following terms and conditions: (i) an Award transferred to a Permitted Transferee shall not be assignable or transferable by the PermittedTransferee other than by will or the laws of descent and distribution; (ii) an Award transferred to a Permitted Transferee shall continue to be subject to all the terms and conditions of the Award as applicable to the original Participant(other than the ability to further transfer the Award); and (iii) the Participant and the Permitted Transferee shall execute any and all documents requested by the Administrator, including, without limitation documents to (A) confirm thestatus of the transferee as a Permitted Transferee, (B) satisfy any requirements for an exemption for the transfer under applicable federal, state and foreign securities laws and (C) evidence the transfer. 

10.4 Beneficiaries. Notwithstanding Section 10.3, a Participant may, in the manner determined by the Committee, designate abeneficiary to exercise the rights of the Participant and to receive any distribution with respect to any Award upon the Participant’s death. A beneficiary, legal guardian, legal representative, or other person claiming any rights pursuant tothe Plan is subject to all terms and conditions of the Plan and any Award Agreement applicable 

 

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to the Participant, except to the extent the Plan and Award Agreement otherwise provide, and to any additional restrictions deemed necessary or appropriate by the Committee. If the Participant ismarried and resides in a community property state, a designation of a person other than the Participant’s spouse as his or her beneficiary with respect to more than 50% of the Participant’s interest in the Award shall not be effectivewithout the prior written consent of the Participant’s spouse. If no beneficiary has been designated or survives the Participant, payment shall be made to the person entitled thereto pursuant to the Participant’s will or the laws ofdescent and distribution. Subject to the foregoing, a beneficiary designation may be changed or revoked by a Participant at any time provided the change or revocation is filed with the Committee. 

10.5 Stock Certificates; Book Entry Procedures. 

(a) Notwithstanding anything herein to the contrary, the Company shall not be required to issue or deliver any certificates evidencingshares of Stock pursuant to the exercise of any Award, unless and until the Board has determined, with advice of counsel, that the issuance and delivery of such certificates is in compliance with all applicable laws, regulations of governmentalauthorities and, if applicable, the requirements of any exchange on which the shares of Stock are listed or traded. All Stock certificates delivered pursuant to the Plan are subject to any stop-transfer orders and other restrictions as the Committeedeems necessary or advisable to comply with federal, state, or foreign jurisdiction, securities or other laws, rules and regulations and the rules of any national securities exchange or automated quotation system on which the Stock is listed,quoted, or traded. The Committee may place legends on any Stock certificate to reference restrictions applicable to the Stock. In addition to the terms and conditions provided herein, the Board may require that a Participant make such reasonablecovenants, agreements, and representations as the Board, in its discretion, deems advisable in order to comply with any such laws, regulations, or requirements. The Committee shall have the right to require any Participant to comply with any timingor 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 Committee. 

(b) Notwithstanding any other provision of the Plan, unless otherwise determined by the Committee or required by any applicable law, ruleor regulation, the Company shall not deliver to any Participant certificates evidencing shares of Stock issued in connection with any Award and instead such shares of Stock shall be recorded in the books of the Company (or, as applicable, itstransfer agent or stock plan administrator). 

10.6 Full Value Award Vesting Limitations. Subject to Section 11 andexcept as may be determined by the Committee in the event of the Participant’s death, Disability or retirement, notwithstanding any other provision of this Plan to the contrary, Full Value Awards made to Employees shall become vested over aperiod of not less than three years (or, in the case of vesting based upon the attainment of Performance Goals or other performance-based objectives, over a period of not less than one year, which shall include fully-vested Awards granted in lieu ofcash awards that have been earned based on a performance period of at least one year); *provided, however,* that notwithstanding the foregoing, (i) Full Value Awards that result in the issuance of an aggregate of up to 5% of the shares ofStock available pursuant to Section 3.1(a) may be granted to any one or more Participants without respect to such 

 

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minimum vesting provisions and (ii) the Company may grant Full Value Awards to employees newly hired by the Company or any of its Subsidiaries without respect to such minimum vestingprovisions. 

10.7 Paperless Administration. In the event that the Company establishes, for itself or using the servicesof a third party, an automated system for the documentation, granting or exercise of Awards, such as a system using an internet website or interactive voice response, then the paperless documentation, granting or exercise of Awards by a Participantmay be permitted through the use of such an automated system. 

10.8 Term. Except as otherwise provided herein, the termof any Award shall be set by the Committee in its discretion. 

10.9 Exercise or Purchase Price. Except as set forth inSections 5.1(a) and 7.1(b), the Committee may establish the exercise or purchase price, if any, of any Award; *provided, however*, that such price shall not be less than the par value of a share of Stock on the date of grant, unless otherwisepermitted by applicable state law. 

10.10 Treatment upon Termination of Employment or Service. An Award shall only beexercisable or payable while the Participant is an Employee, Consultant or Director, as applicable; *provided, however*, that the Committee in its sole and absolute discretion may provide that an Award may be exercised or paid subsequent to atermination of employment or service, as applicable, or following a Change in Control of the Company, or because of the Participant’s retirement, death or Disability, or otherwise. 

10.11 Form of Payment. Payments with respect to any Awards granted under this Plan shall be made in cash, in Stock or acombination of both, as determined by the Committee and set forth in the Award Agreement. 

10.12 Award Agreement. AllAwards granted under this Plan shall be subject to such additional terms and conditions as determined by the Committee and shall be evidenced by an Award Agreement. 

**ARTICLE 11.**

**CHANGES IN CAPITAL STRUCTURE**

11.1 Adjustments. 

(a) In connection with the occurrence of any Equity Restructuring, and notwithstanding anything to the contrary in Sections 11.1(b) and11.1(c): 

(i) The number and type of securities subject to each outstanding Award and the exercise price or grant pricethereof, if applicable, will be equitably adjusted. The adjustments provided under this Section 11.1(a)(i) shall be nondiscretionary and shall be final and binding on the affected Participant and the Company. 

 

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(ii) With respect to the aggregate number and kind of shares that may be issued under thePlan (including, but not limited to, adjustments of the limitations in Sections 3.1 and 3.3), the Committee shall make such equitable adjustments, if any, as the Committee in its discretion may deem appropriate to reflect such Equity Restructuring.

(b) Other than in connection with an Equity Restructuring, in the event of any combination or exchange of shares, merger,consolidation or other distribution (other than normal cash dividends) of Company assets to stockholders, or any other change affecting the shares of Stock or the share price of the Stock, the Committee may make such equitable adjustments, if any,as the Committee in its discretion may deem appropriate to reflect such change with respect to (a) the aggregate number and kind of shares that may be issued under the Plan (including, but not limited to, adjustments of the limitations inSections 3.1 and 3.3); (b) the terms and conditions of any outstanding Awards (including, without limitation, any applicable performance targets or criteria with respect thereto); and (c) the grant or exercise price per share for anyoutstanding Awards under the Plan. 

(c) Other than in connection with an Equity Restructuring, in the event of any transactionor event described in Section 11.1 or any unusual or nonrecurring transactions or events affecting the Company, any affiliate of the Company, or the financial statements of the Company or any affiliate, or of changes in applicable laws,regulations or accounting principles, the Committee, in its sole and absolute discretion, and on such terms and conditions as it deems appropriate, either by the terms of the Award or by action taken prior to the occurrence of such transaction orevent and either automatically or upon the Participant’s request, is hereby authorized to take any one or more of the following actions whenever the Committee determines that such action is appropriate in order to prevent dilution orenlargement of the benefits or potential benefits intended to be made available under the Plan or with respect to any Award under the Plan, to facilitate such transactions or events or to give effect to such changes in laws, regulations orprinciples: 

(i) To provide for either (A) termination of any such Award in exchange for an amount of cash and/orproperty, if any, equal to the amount that would have been attained upon the exercise of such Award or realization of the Participant’s rights (and, for the avoidance of doubt, if as of the date of the occurrence of the transaction or eventdescribed in this Section 11.1 the Committee determines in good faith that no amount would have been attained upon the exercise of such Award or realization of the Participant’s rights, then such Award may be terminated by the Companywithout payment) or (B) the replacement of such Award with other rights or property selected by the Committee in its sole discretion; 

(ii) To provide that such Award be assumed by the successor or survivor corporation, or a parent or subsidiary thereof, or shall besubstituted for by similar options, rights or awards covering the stock of the successor or survivor corporation, or a parent or subsidiary thereof, with appropriate adjustments as to the number and kind of shares and prices; 

(iii) To make adjustments in the number and type of shares of Stock (or other securities or property) subject to outstanding Awards, andin the number and kind of outstanding Award and/or in the terms and conditions of (including the grant or exercise price), and the criteria included in, outstanding options, rights and awards and options, rights and awards which may be granted inthe future; 

 

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(iv) To provide that such Award shall be exercisable or payable or fully vested withrespect to all shares covered thereby, notwithstanding anything to the contrary in the Plan or the applicable Award Agreement; and 

(v) To provide that the Award cannot vest, be exercised or become payable after such event. 

11.2 Change in Control. If the Company undergoes a Change in Control, then any surviving corporation or entity or acquiringcorporation or entity, or affiliate of such corporation or entity, may assume any Awards outstanding under the Plan or may substitute similar stock awards (including an award to acquire the same consideration paid to the stockholders in the Changein Control) for those outstanding under the Plan. Notwithstanding Section 11.1, and except as may otherwise be provided in any applicable Award Agreement or other written agreement entered into between the Company and a Participant, if a Changein Control occurs and a Participant’s Award is not assumed or an equivalent award substituted by a successor entity, then immediately prior to the Change in Control such Award shall become fully exercisable and all forfeiture restrictions onsuch Awards shall lapse. Upon, or in anticipation of, a Change in Control, the Committee may cause any and all Awards outstanding hereunder to terminate at a specific time in the future, including but not limited to the date of such Change inControl, and shall give each Participant the right to exercise such Awards during a period of time as the Committee, in its sole and absolute discretion, shall determine. In the event that the terms of any agreement between the Company or anyCompany subsidiary or affiliate and a Participant contains provisions that conflict with and are more restrictive than the provisions of this Section 11.2, this Section 11.2 shall prevail and control and the more restrictive terms of suchagreement (and only such terms) shall be of no force or effect. Notwithstanding the assumption or substitution of Awards granted to Participants other than Independent Directors pursuant to the foregoing provisions, any Award granted to anIndependent Director pursuant to the Independent Director Equity Compensation Policy which is outstanding immediately prior to the closing of the Change in Control shall be accelerated and made fully vested and/or exercisable, as applicable, atleast ten (10) days prior to the closing of the Change in Control. 

11.3 No Other Rights. Except as expresslyprovided in the Plan, no Participant shall have any rights by reason of any subdivision or consolidation of shares of stock of any class, the payment of any dividend, any increase or decrease in the number of shares of stock of any class or anydissolution, liquidation, merger, or consolidation of the Company or any other corporation. Except as expressly provided in the Plan or pursuant to action of the Committee under the Plan, no issuance by the Company of shares of stock of any class,or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number of shares of Stock subject to an Award or the grant or exercise price of any Award. 

11.4 Restrictions on Exercise. In the event of any pending stock dividend, stock split, combination or exchange of shares, merger,consolidation or other distribution (other than 

 

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normal cash dividends) of Company assets to stockholders, or any other change affecting the shares of Stock or the share price of the Stock including any Equity Restructuring, for reasons ofadministrative convenience, the Company in its sole discretion may refuse to permit the exercise of any Award during a period of 30 days prior to the consummation of any such transaction. 

**ARTICLE 12.**

**GRANTS OF AWARDS TO INDEPENDENT DIRECTORS**

Notwithstanding anything herein to the contrary, the grant of any Award to an Independent Director shall be made by the Board pursuant toa written policy or program which may be recommended by a committee of the Board and approved by the Board (the “Independent Director Equity Compensation Policy”) in its discretion. The Independent Director Equity CompensationPolicy shall set forth the type of Award(s) to be granted to Independent Directors, the number of shares of Stock to be subject to Independent Director Awards, the conditions on which such Awards shall be granted, become exercisable and/or payableand expire, and such other terms and conditions as may be set forth in the Independent Director Equity Compensation Policy and determined by the Board in its discretion. For the avoidance of doubt, Awards granted to Independent Directors shall besubject to all of the limitations set forth in the Plan. 

**ARTICLE 13.**

**ADMINISTRATION**

13.1 Committee. Unless and until the Board delegates administration of the Plan to a Committee as set forth below, the Plan shallbe administered by the full Board, and for such purposes the term “Committee” as used in this Plan shall be deemed to refer to the Board. The Board, at its discretion or as otherwise necessary to comply with the requirements ofSection 162(m) of the Code, Rule 16b-3 promulgated under the Exchange Act or to the extent required by any other applicable rule or regulation, may delegate administration of the Plan to a Committee consisting of two or more members of theBoard. Unless otherwise determined by the Board, the Committee shall consist solely of two or more members of the Board each of whom is an “outside director,” within the meaning of Section 162(m) of the Code, a Non-Employee Directorand an “independent director” under the rules of the NASDAQ Stock Market (or other principal securities market on which shares of Stock are traded); provided that any action taken by the Committee shall be valid and effective, whether ornot members of the Committee at the time of such action are later determined not to have satisfied the requirements for membership set forth in this Section 13.1 or otherwise provided in any charter of the Committee. Notwithstanding theforegoing: (a) the full Board, acting by a majority of its members in office, shall conduct the general administration of the Plan with respect to all Awards granted to Independent Directors and for purposes of such Awards the term“Committee” as used in this Plan shall be deemed to refer to the Board and (b) the Committee may delegate its authority hereunder to the extent permitted by Section 13.5. In its sole discretion, the Board may at any time and fromtime to time exercise any and all rights and duties of the Committee under the Plan except with respect to matters which under Rule 16b-3 

 

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under the Exchange Act or Section 162(m) of the Code, or any regulations or rules issued thereunder, are required to be determined in the sole discretion of the Committee. Except as mayotherwise be provided in any charter of the Committee, appointment of Committee members shall be effective upon acceptance of appointment; Committee members may resign at any time by delivering written notice to the Board; and vacancies in theCommittee may only be filled by the Board. 

13.2 Action by the Committee. Unless otherwise established by the Board orin any charter of the Committee, a majority of the Committee shall constitute a quorum and the acts of a majority of the members present at any meeting at which a quorum is present, and acts approved in writing by a majority of the Committee in lieuof a meeting, shall be deemed the acts of the Committee. Each member of the Committee is entitled to, in good faith, rely or act upon any report or other information furnished to that member by any officer or other employee of the Company or anySubsidiary, the Company’s independent certified public accountants, or any executive compensation consultant or other professional retained by the Company to assist in the administration of the Plan. 

13.3 Authority of Committee. Subject to any specific designation in the Plan, the Committee has the exclusive power, authority anddiscretion to: 

(a) Designate Participants to receive Awards; 

(b) Determine the type or types of Awards to be granted to each Participant; 

(c) Determine the number of Awards to be granted and the number of shares of Stock to which an Award will relate; 

(d) Determine the terms and conditions of any Award granted pursuant to the Plan, including, but not limited to, the exercise price,grant price, or purchase price, any reload provision, any restrictions or limitations on the Award, any schedule for lapse of forfeiture restrictions or restrictions on the exercisability of an Award, and accelerations or waivers thereof, anyprovisions related to non-competition and recapture of gain on an Award, based in each case on such considerations as the Committee in its sole discretion determines; *provided*, *however*, that the Committee shall not have the authorityto accelerate the vesting or waive the forfeiture of any Performance-Based Awards; 

(e) Determine whether, to what extent, andpursuant to what circumstances an Award may be settled in, or the exercise price of an Award may be paid in, cash, Stock, other Awards, or other property, or an Award may be canceled, forfeited, or surrendered; 

(f) Prescribe the form of each Award Agreement, which need not be identical for each Participant; 

(g) Decide all other matters that must be determined in connection with an Award; 

(h) Establish, adopt, or revise any rules and regulations as it may deem necessary or advisable to administer the Plan; 

 

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(i) Interpret the terms of, and any matter arising pursuant to, the Plan or any AwardAgreement; and 

(j) Make all other decisions and determinations that may be required pursuant to the Plan or as the Committeedeems necessary or advisable to administer the Plan. 

13.4 Decisions Binding. The Committee’s interpretation ofthe Plan, any Awards granted pursuant to the Plan, any Award Agreement and all decisions and determinations by the Committee with respect to the Plan are final, binding, and conclusive on all parties. 

13.5 Delegation of Authority. To the extent permitted by applicable law, the Board or the Committee may from time to time delegateto a committee of one or more members of the Board or one or more officers of the Company the authority to grant or amend Awards to Participants other than (a) Employees who are subject to Section 16 of the Exchange Act, (b) CoveredEmployees, or (c) officers of the Company (or Directors) to whom authority to grant or amend Awards has been delegated hereunder. Any delegation hereunder shall be subject to the restrictions and limits that the Board or the Committee, asapplicable, specifies at the time of such delegation, and the Board or the Committee, as applicable, may at any time rescind the authority so delegated or appoint a new delegatee. At all times, the delegatee appointed under this Section 13.5shall serve in such capacity at the pleasure of the Board. 

**ARTICLE 14.**

**EFFECTIVE AND EXPIRATION DATE**

14.1 Effective Date. The Plan is effective as of the date the Plan is approved by the Company’s stockholders (the“Effective Date”). The Plan will be deemed to be approved by the stockholders if it is approved either: 

(a)By a majority of the votes cast at a duly held stockholder’s meeting at which a quorum representing a majority of outstanding voting stock is, either in person or by proxy, present and voting on the plan; or 

(b) By a method and in a degree that would be treated as adequate under Delaware law in the case of an action requiring stockholderapproval. 

14.2 Expiration Date. The Plan will expire on, and no Award may be granted pursuant to the Plan after thetenth anniversary of the Effective Date, except that no Incentive Stock Options may be granted under the Plan after the earlier of the tenth anniversary of (a) the date the Plan is approved by the Board or (b) the Effective Date. AnyAwards that are outstanding on the tenth anniversary of the Effective Date shall remain in force according to the terms of the Plan and the applicable Award Agreement. 

 

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**ARTICLE 15.**

**AMENDMENT, MODIFICATION, AND TERMINATION**

15.1 Amendment, Modification, and Termination. Subject to Section 16.14, with the approval of the Board, at any time and fromtime to time, the Committee may terminate, amend or modify the Plan; *provided, however*, that (a) to the extent necessary and desirable to comply with any applicable law, regulation, or stock exchange rule, the Company shall obtainstockholder approval of any Plan amendment in such a manner and to such a degree as required, and (b) stockholder approval shall be required for any amendment to the Plan that (i) increases the number of shares available under the Plan(other than any adjustment as provided by Article 11), (ii) permits the Committee to grant Options with an exercise price that is below Fair Market Value on the date of grant, or (iii) permits the Committee to extend the exercise periodfor an Option beyond seven (7) years from the date of grant. Notwithstanding any provision in this Plan to the contrary, absent approval of the stockholders of the Company, (i) except as permitted by Article 11, no Option or SAR may beamended to reduce the per share exercise price of the shares subject to such Option or SAR below the per share exercise price as of the date the Option or SAR is granted and (ii) except as permitted by Article 11, no Award or cash award may begranted in exchange for the cancellation or surrender of an Option or SAR. Further notwithstanding any provision in this Plan to the contrary, except as permitted by Article 11, absent the approval of the stockholders of the Company, the Committeeshall not offer to buyout for a payment in cash, an Option or Stock Appreciation Right previously granted. 

15.2 AwardsPreviously Granted. Except with respect to amendments made pursuant to Section 16.14, no termination, amendment, or modification of the Plan shall adversely affect in any material way any Award previously granted pursuant to the Planwithout the prior written consent of the Participant. 

**ARTICLE 16.**

**GENERAL PROVISIONS**

16.1 No Rights to Awards. No Eligible Individual or other person shall have any claim to be granted any Award pursuant to thePlan, and neither the Company nor the Committee is obligated to treat Eligible Individuals, Participants or any other persons uniformly. 

16.2 No Stockholders Rights. Except as otherwise provided herein, a Participant shall have none of the rights of a stockholderwith respect to shares of Stock covered by any Award until the Participant becomes the record owner of such shares of Stock. 

16.3 Withholding. The Company or any Subsidiary shall have the authority and the right to deduct or withhold, or require aParticipant to remit to the Company, an amount sufficient to satisfy federal, state, local and foreign taxes (including the Participant’s employment tax obligations) required by law to be withheld with respect to any taxable event concerning aParticipant arising as a result of this Plan. The Committee may in its discretion and in satisfaction of the foregoing requirement allow a Participant to elect to have the Company withhold shares of Stock otherwise issuable under an Award having aFair Market Value equal to the sums required to be withheld. Notwithstanding any other provision of the Plan, the number of shares of Stock which may be withheld with respect to the issuance, 

 

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vesting, exercise or payment of any Award (or which may be repurchased from the Participant of such Award within six months (or such other period as may be determined by the Committee) after suchshares of Stock were acquired by the Participant from the Company) in order to satisfy the Participant’s federal, state, local and foreign income and payroll tax liabilities with respect to the issuance, vesting, exercise or payment of theAward shall be limited to the number of shares which have a Fair Market Value on the date of withholding or repurchase equal to the aggregate amount of such liabilities based on the minimum statutory withholding rates for federal, state, local andforeign income tax and payroll tax purposes that are applicable to such supplemental taxable income. 

16.4 No Right toEmployment or Services. Nothing in the Plan or any Award Agreement shall interfere with or limit in any way the right of the Company or any Subsidiary to terminate any Participant’s employment or services at any time, nor confer upon anyParticipant any right to continue in the employ or service of the Company or any Subsidiary. 

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

16.6Indemnification. To the extent allowable pursuant to applicable law, each member of the Committee or of the Board shall be indemnified and held harmless by the Company from any loss, cost, liability, or expense that may be imposed upon orreasonably incurred by such member in connection with or resulting from any claim, action, suit, or proceeding to which he or she may be a party or in which he or she may be involved by reason of any action or failure to act pursuant to the Plan andagainst and from any and all amounts paid by him or her in satisfaction of judgment in such action, suit, or proceeding against him or her; *provided* he or she gives the Company an opportunity, at its own expense, to handle and defend the samebefore he or she undertakes to handle and defend it on his or her own behalf. The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which such persons may be entitled pursuant to the Company’sCertificate of Incorporation or Bylaws, by contract, as a matter of law, or otherwise, or any power that the Company may have to indemnify them or hold them harmless. 

16.7 Relationship to other Benefits. No payment pursuant to the Plan shall be taken into account in determining any benefitspursuant to any pension, retirement, savings, profit sharing, group insurance, welfare or other benefit plan of the Company or any Subsidiary except to the extent otherwise expressly provided in writing in such other plan or an agreement thereunder.

16.8 Expenses. The expenses of administering the Plan shall be borne by the Company and its Subsidiaries. 

16.9 Titles and Headings. The titles and headings of the Sections in the Plan are for convenience of reference only and, in theevent of any conflict, the text of the Plan, rather than such titles or headings, shall control. 

 

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16.10 Fractional Shares. No fractional shares of Stock shall be issued and theCommittee shall determine, in its discretion, whether cash shall be given in lieu of fractional shares or whether such fractional shares shall be eliminated by rounding up or down as appropriate. 

16.11 Limitations Applicable to Section 16 Persons. Notwithstanding any other provision of the Plan, the Plan, and any Awardgranted or awarded to any Participant who is then subject to Section 16 of the Exchange Act, shall be subject to any additional limitations set forth in any applicable exemptive rule under Section 16 of the Exchange Act (including anyamendment to Rule 16b-3 under the Exchange Act) that are requirements for the application of such exemptive rule. To the extent permitted by applicable law, the Plan and Awards granted or awarded hereunder shall be deemed amended to the extentnecessary to conform to such applicable exemptive rule. 

16.12 Government and Other Regulations. The obligation of theCompany to make payment of awards in Stock or otherwise shall be subject to all applicable laws, rules, and regulations, and to such approvals by government agencies as may be required. The Company shall be under no obligation to register pursuantto the Securities Act, as amended, any of the shares of Stock paid pursuant to the Plan. If the shares paid pursuant to the Plan may in certain circumstances be exempt from registration pursuant to the Securities Act, as amended, the Company mayrestrict the transfer of such shares in such manner as it deems advisable to ensure the availability of any such exemption. 

16.13 Governing Law. The Plan and all Award Agreements shall be construed in accordance with and governed by the laws of the Stateof Delaware without regard to otherwise governing principles of conflicts of law. 

16.14 Section 409A. To theextent that the Committee determines that any Award granted under the Plan is subject to Section 409A of the Code, the Award Agreement evidencing such Award shall incorporate the terms and conditions required by Section 409A of the Code.To the extent applicable, the Plan and Award Agreements shall be interpreted in accordance with Section 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder, including without limitation anysuch regulations or other guidance that may be issued after the Effective Date. Notwithstanding any provision of the Plan to the contrary, in the event that following the Effective Date the Committee determines that any Award may be subject toSection 409A of the Code and related Department of Treasury guidance (including such Department of Treasury guidance as may be issued after the Effective Date), the Committee may adopt such amendments to the Plan and the applicable AwardAgreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Committee determines are necessary or appropriate to (a) exempt the Award fromSection 409A of the Code and/or preserve the intended tax treatment of the benefits provided with respect to the Award, or (b) comply with the requirements of Section 409A of the Code and related Department of Treasury guidance andthereby avoid the application of any penalty taxes under such Section. 

 

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