exv10w1



 






Exhibit 10.1




Blackboard Inc.




AMENDED AND RESTATED 2004 STOCK INCENTIVE PLAN




1. Purpose




     The purpose of this Amended and Restated 2004 Stock Incentive Plan (the “Plan”) of Blackboard
Inc., a Delaware corporation (the “Company”), is to advance the interests of the Company’s
stockholders by enhancing the Company’s ability to attract, retain and motivate persons who make
(or are expected to make) important contributions to the Company by providing such persons with
equity ownership opportunities and performance-based incentives and thereby better aligning the
interests of such persons with those of the Company’s stockholders. Except where the context
otherwise requires, the term “Company” shall include any of the Company’s present or future parent
or subsidiary corporations as defined in Sections 424(e) or (f) of the Internal Revenue Code of
1986, as amended, and any regulations promulgated thereunder (the “Code”) and any other business
venture (including, without limitation, joint venture or limited liability company) in which the
Company has a controlling interest, as determined by the Board of Directors of the Company (the
“Board”).



2. Eligibility




     All of the Company’s employees, officers, directors, consultants and advisors are eligible to
receive options, stock appreciation rights, restricted stock, restricted stock units and other
stock-based awards (each, an “Award”) under the Plan. Each person who receives an Award under the
Plan is deemed a “Participant.”



3. Administration and Delegation




     (a) Administration by Board of Directors. The Plan will be administered by the Board.
The Board shall have authority to grant Awards and to adopt, amend and repeal such administrative
rules, guidelines and practices relating to the Plan as it shall deem advisable. The Board may
correct any defect, supply any omission or reconcile any inconsistency in the Plan or any Award in
the manner and to the extent it shall deem expedient to carry the Plan into effect and it shall be
the sole and final judge of such expediency. All decisions by the Board shall be made in the
Board’s sole discretion and shall be final and binding on all persons having or claiming any
interest in the Plan or in any Award. No director or person acting pursuant to the authority
delegated by the Board shall be liable for any action or determination relating to or under the
Plan made in good faith.



     (b) Appointment of Committees. To the extent permitted by applicable law, the Board
may delegate any or all of its powers under the Plan to one or more committees or subcommittees of
the Board (a “Committee”). All references in the Plan to the “Board” shall mean the Board or a
Committee of the Board or the executive officers referred to in Section 3(c) to the extent that the
Board’s powers or authority under the Plan have been delegated to such Committee or executive
officers.



     (c) Delegation to Executive Officers. To the extent permitted by applicable law, the
Board may delegate to one or more executive officers of the Company the power to grant



 









 




Awards to employees or officers of the Company or any of its present or future subsidiary
corporations and to exercise such other powers under the Plan as the Board may determine, provided
that the Board shall fix the terms of the Awards to be granted by such executive officers
(including the exercise price of such Awards, which may include a formula by which the exercise
price will be determined) and the maximum number of shares subject to Awards that the executive
officers may grant; provided further, however, that no executive officer shall be authorized to
grant Awards to any “executive officer” of the Company (as defined by Rule 3b-7 under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”)) or to any “officer” of the
Company (as defined by Rule 16a-1 under the Exchange Act).




4. Stock Available for Awards




     (a) Number of Shares. Subject to adjustment under Section 9, Awards may be made under
the Plan for up to 5,800,000 shares of common stock, $0.01 par value per share, of the Company (the
“Common Stock”).



     If any Award expires or is terminated, surrendered or canceled without having been fully
exercised or is forfeited in whole or in part (including as the result of shares of Common Stock
subject to such Award being repurchased by the Company at the original issuance price pursuant to a
contractual repurchase right) or results in any Common Stock not being issued, the unused Common
Stock covered by such Award shall again be available for the grant of Awards under the Plan,
subject, however, in the case of Incentive Stock Options, to any limitations under the Code. Upon
exercise of a SAR (as hereinafter defined), the Board may count such SAR against the Common Stock
available for grant under the Plan either (i) with respect to the total number of shares subject to
such SAR (“Gross-Counted SARs”) or (ii) with respect only to the number of shares actually issued
pursuant to such exercise (“Net-Counted SARs”), provided however that Net-Counted SARs will also be
counted against the sub-limit set forth in Section 4(b)(2). Shares issued under the Plan may
consist in whole or in part of authorized but unissued shares or treasury shares.



     (b) Sub-limits. Subject to adjustment under Section 9, the following sub-limits on
the number of shares subject to Awards shall apply:



          (1) Section 162(m) Per-Participant Limit. The maximum number of shares of Common
Stock with respect to which Awards may be granted to any Participant under the Plan shall be
471,923 per calendar year. For purposes of the foregoing limit, the combination of an Option in
tandem with a SAR (as each is hereinafter defined) shall be treated as a single Award. The
per-Participant limit described in this Section 4(b)(1) shall be construed and applied consistently
with Section 162(m) of the Code or any successor provision thereto, and the regulations thereunder
(“Section 162(m)”).




          (2) Limit on Awards other than Options and SARs. The maximum number of shares with
respect to which Awards other than Options and Gross-Counted SARs may be granted shall be 300,000.




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5. Stock Options




     (a) General. The Board may grant options to purchase Common Stock (each, an “Option”)
and determine the number of shares of Common Stock to be covered by each Option, the exercise price
of each Option and the conditions and limitations applicable to the exercise of each Option,
including conditions relating to applicable federal or state securities laws, as it considers
necessary or advisable. An Option which is not intended to be an Incentive Stock Option (as
hereinafter defined) shall be designated a “Nonstatutory Stock Option.”



     (b) Incentive Stock Options. An Option that the Board intends to be an “incentive
stock option” as defined in Section 422 of the Code (an “Incentive Stock Option”) shall only be
granted to employees of Blackboard Inc., any of Blackboard Inc.’s present or future parent or
subsidiary corporations as defined in Sections 424(e) or (f) of the Code, and any other entities
the employees of which are eligible to receive Incentive Stock Options under the Code, and shall be
subject to and shall be construed consistently with the requirements of Section 422 of the Code.
The Company shall have no liability to a Participant, or any other party, if an Option (or any part
thereof) that is intended to be an Incentive Stock Option is not an Incentive Stock Option.



     (c) Exercise Price. The Board shall establish the exercise price at the time each
Option is granted and specify it in the applicable option agreement. The exercise price per share
shall not be less than 100% of the market value on the date of grant. For purposes of the Plan,
“market value” shall mean the last reported sale price on the trading day prior to the date of
grant of the Corporation’s common stock on the principal securities exchange, inter-dealer
quotation system or nationally recognized trading system on which the stock is listed.



     (d) Duration of Options. Each Option shall be exercisable at such times and subject
to such terms and conditions as the Board may specify in the applicable option agreement. Other
than Options granted prior to March 1, 2005, Options granted hereunder shall expire no later than 8
years after the date of grant.



     (e) Exercise of Option. Options may be exercised by delivery to the Company of a
written notice of exercise signed by the proper person or by any other form of notice (including
electronic notice) approved by the Board together with payment in full as specified in Section 5(f)
for the number of shares for which the Option is exercised.



     (f) Payment Upon Exercise. Common Stock purchased upon the exercise of an Option
granted under the Plan shall be paid for as follows:



          (1) in cash or by check, payable to the order of the Company;




          (2) except as the Board may, in its sole discretion, otherwise provide in an option agreement,
by (i) delivery of an irrevocable and unconditional undertaking by a creditworthy broker to deliver
promptly to the Company sufficient funds to pay the exercise price and any required tax withholding
or (ii) delivery by the Participant to the Company of a copy of irrevocable and unconditional
instructions to a creditworthy broker to deliver promptly to the Company cash or a check sufficient
to pay the exercise price and any required tax withholding;




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          (3) when the Common Stock is registered under the Exchange Act and listed on a national
securities exchange, the NASDAQ National Market or another nationally recognized trading system, by
delivery of shares of Common Stock owned by the Participant valued at the average of the high and
low reported sale prices per share of Common Stock thereon on the trading day immediately preceding
the date of exercise (or, if no such price is reported on such day, the shares of Common Stock
shall be valued at their fair market value as determined by, or in a manner approved by, the Board
in good faith), provided (i) such method of payment is then permitted under applicable law and (ii)
such Common Stock, if acquired directly from the Company, was owned by the Participant at least six
months prior to such delivery;




          (4) to the extent permitted by applicable law and by the Board, in its sole discretion by (i)
delivery of a promissory note of the Participant to the Company on terms determined by the Board,
or (ii) payment of such other lawful consideration as the Board may determine; or




          (5) by any combination of the above permitted forms of payment.




     (g) Substitute Options. In connection with a merger or consolidation of an entity
with the Company or the acquisition by the Company of property or stock of an entity, the Board may
grant Options in substitution for any options or other stock or stock-based awards granted by such
entity or an affiliate thereof (“Substitute Options”). Substitute Options may be granted on such
terms as the Board deems appropriate in the circumstances, notwithstanding any limitations on
Options contained in the other sections of this Section 5 or in Section 2. Substitute Options
shall not count against the overall share limit set forth in Section 4(a), except as may be
required by reason of Section 422 and related provisions of the Code.



     (h) Limitation. Other than adjustments pursuant to Section 9 or actions approved by
the Company’s stockholders, outstanding Options shall not be amended to reduce the exercise price
per Share thereof and the Company shall not implement an option exchange program pursuant to which
an Option could be exchanged for a new Option with a lower exercise price per Share.



6. Stock Appreciation Rights.




     (a) General. A Stock Appreciation Right, or SAR, is an Award entitling the holder,
upon exercise, to receive an amount in Common Stock determined by reference to appreciation, from
and after the date of grant, in the fair market value of a share of Common Stock. The base price
from which such appreciation is measured shall not be less than 100% of the market value on the
date of grant, as defined in Section 5(c). The date as of which such appreciation or other measure
is determined shall be the exercise date. Stock Appreciation Rights granted hereunder shall expire
no later than 8 years after the date of grant.



     (b) Grants. Stock Appreciation Rights may be granted in tandem with, or independently
of, Options granted under the Plan.



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          (1) Tandem Awards. When Stock Appreciation Rights are expressly granted in tandem
with Options, (i) the Stock Appreciation Right will be exercisable only at such time or times, and
to the extent, that the related Option is exercisable (except to the extent designated by the Board
in connection with a Reorganization Event or a Change in Control Event) and will be exercisable in
accordance with the procedure required for exercise of the related Option; (ii) the Stock
Appreciation Right will terminate and no longer be exercisable upon the termination or exercise of
the related Option, except to the extent designated by the Board in connection with a
Reorganization Event or a Change in Control Event and except that a Stock Appreciation Right
granted with respect to less than the full number of shares covered by an Option will not be
reduced until the number of shares as to which the related Option has been exercised or has
terminated exceeds the number of shares not covered by the Stock Appreciation Right; (iii) the
Option will terminate and no longer be exercisable upon the exercise of the related Stock
Appreciation Right; and (iv) the Stock Appreciation Right will be transferable only with the
related Option.




          (2) Independent SARs. A Stock Appreciation Right not expressly granted in tandem with
an Option will become exercisable at such time or times, and on such conditions, as the Board may
specify in the SAR Award.




     (c) Exercise. Stock Appreciation Rights may be exercised by delivery to the Company
of a written notice of exercise signed by the proper person or by any other form of notice
(including electronic notice) approved by the Board, together with any other documents required by
the Board.



7. Restricted Stock; Restricted Stock Units.




     (a) General. The Board may grant Awards entitling recipients to acquire shares of
Common Stock (“Restricted Stock”), subject to the right of the Company to repurchase all or part of
such shares at their issue price or other stated or formula price (or to require forfeiture of such
shares if issued at no cost) from the recipient in the event that conditions specified by the Board
in the applicable Award are not satisfied prior to the end of the applicable restriction period or
periods established by the Board for such Award. Instead of granting Awards for Restricted Stock,
the Board may grant Awards entitling the recipient to receive shares of Common Stock to be
delivered at the time such shares of Common Stock vest (“Restricted Stock Units”) (Restricted Stock
and Restricted Stock Units are each referred to herein as a “Restricted Stock Award”).



     (b) Terms and Conditions. The Board shall determine the terms and conditions of a
Restricted Stock Award, including the conditions for repurchase (or forfeiture) and the issue
price, if any.



     (c) Stock Certificates. Any stock certificates issued in respect of a Restricted
Stock Award shall be registered in the name of the Participant and, unless otherwise determined by
the Board, deposited by the Participant, together with a stock power endorsed in blank, with the
Company (or its designee). At the expiration of the applicable restriction periods, the Company
(or such designee) shall deliver the certificates no longer subject to such restrictions to the
Participant or if the Participant has died, to the beneficiary designated, in a manner determined



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by the Board, by a Participant to receive amounts due or exercise rights of the Participant in
the event of the Participant’s death (the “Designated Beneficiary”). In the absence of an
effective designation by a Participant, “Designated Beneficiary” shall mean the Participant’s
estate.




     (d) Limitations on Vesting.



          (1) Restricted Stock Awards that vest based on the passage of time alone shall not provide for
vesting in full in less than a three-year period from the date of grant. Restricted Stock Awards
that vest upon the passage of time and provide for accelerated vesting based on performance shall
not vest prior to the first anniversary of the date of grant. This subsection (d)(1) shall not
apply to (A) Awards granted pursuant to Section 10(j) or (B) a maximum of 100,000 shares of Common
Stock with respect to which Restricted Stock Awards may be granted.




          (2) Notwithstanding any other provision of this Plan, the Board may, in its discretion, either
at the time a Restricted Stock Award is made or at any time thereafter, waive its right to
repurchase shares of Common Stock (or waive the forfeiture thereof) or remove or modify any part or
all of the restrictions applicable to the Restricted Stock Award, provided that the Board may only
exercise such rights in extraordinary circumstances which shall include, without limitation, death
or disability of the Participant; estate planning needs of the Participant; a merger,
consolidation, sale, reorganization, recapitalization, or change in control of the Company; or any
other nonrecurring significant event affecting the Company, a Participant or the Plan.




8. Other Stock-Based Awards.




     Other Awards of shares of Common Stock, and other Awards that are valued in whole or in part
by reference to, or are otherwise based on, shares of Common Stock or other property, may be
granted hereunder to Participants (“Other Stock Unit Awards”), including without limitation Awards
entitling recipients to receive shares of Common Stock to be delivered in the future. Such Other
Stock Unit Awards shall also be available as a form of payment in the settlement of other Awards
granted under the Plan or as payment in lieu of compensation to which a Participant is otherwise
entitled. Other Stock Unit Awards may be paid in shares of Common Stock or cash, as the Board
shall determine. Subject to the provisions of the Plan, the Board shall determine the conditions
of each Other Stock Unit Awards, including any purchase price applicable thereto.



9. Adjustments for Changes in Common Stock and Certain Other Events




     (a) Changes in Capitalization. In the event of any stock split, reverse stock split,
stock dividend, recapitalization, combination of shares, reclassification of shares, spin-off or
other similar change in capitalization or event, or any distribution to holders of Common Stock
other than an ordinary cash dividend, (i) the number and class of securities available under this
Plan, (ii) the sub-limits set forth in Section 4(b), (iii) the number and class of securities and
exercise price per share of each outstanding Option, (iv) the share- and per-share provisions of
each Stock Appreciation Right, (v) the repurchase price per share subject to each outstanding



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Restricted Stock Award and (vi) the share- and per-share-related provisions of each
outstanding Other Stock Unit Award, shall be appropriately adjusted by the Company (or substituted
Awards may be made, if applicable) to the extent determined by the Board. If this Section 9(a)
applies and Section 9(c) also applies to any event, Section 9(c) shall be applicable to such event,
and this Section 9(a) shall not be applicable.




     (b) Liquidation or Dissolution. In the event of a proposed liquidation or dissolution
of the Company, the Board shall upon written notice to the Participants provide that all then
unexercised Options will (i) become exercisable in full as of a specified time at least 10 business
days prior to the effective date of such liquidation or dissolution and (ii) terminate effective
upon such liquidation or dissolution, except to the extent exercised before such effective date.
The Board may specify the effect of a liquidation or dissolution on any Restricted Stock Award or
Other Stock Unit Award granted under the Plan at the time of the grant of such Award.



     (c) Reorganization and Change in Control Events




	 	(1)	 	Definitions






	 	(a)	 	A “Reorganization Event” shall mean:






	 	(i)	 	any merger or consolidation of
the Company with or into another entity as a result of which all
of the Common Stock of the Company is converted into or
exchanged for the right to receive cash, securities or other
property; or
	 
	 	(ii)	 	any exchange of all of the Common
Stock of the Company for cash, securities or other property
pursuant to a share exchange transaction.






	 	(b)	 	A “Change in Control Event” shall mean:






	 	(i)	 	the acquisition by an individual,
entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Exchange Act) (a “Person”) of beneficial
ownership of any capital stock of the Company if, after such
acquisition, such Person beneficially owns (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) 25% or more of
either (x) the then-outstanding shares of common stock of the
Company (the “Outstanding Company Common Stock”) or (y) the
combined voting power of the then-outstanding securities of the
Company entitled to vote generally in the election of directors
(the “Outstanding Company Voting Securities”); provided,
however, that for purposes of this subsection (i), the
following acquisitions shall not constitute a Change in Control
Event: (A) any acquisition directly from the Company (excluding
an acquisition pursuant to the exercise, conversion or exchange
of any security exercisable for, convertible into




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	 	 	 	or exchangeable for common stock or voting securities of the Company,
unless the Person exercising, converting or
exchanging such security acquired such security directly from
the Company or an underwriter or agent of the Company), (B)
any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any
corporation controlled by the Company, or (C) any acquisition
by any corporation pursuant to a Business Combination (as
defined below) which complies with clauses (x) and (y) of
subsection (iii) of this definition; or
	 
	 	(ii)	 	such time as the Continuing Directors (as defined below) do not constitute a majority of the
Board (or, if applicable, the Board of Directors of a successor
corporation to the Company), where the term “Continuing
Director” means at any date a member of the Board (x) who was a
member of the Board on the date of the initial adoption of this
Plan by the Board or (y) who was nominated or elected subsequent
to such date by at least a majority of the directors who were
Continuing Directors at the time of such nomination or election
or whose election to the Board was recommended or endorsed by at
least a majority of the directors who were Continuing Directors
at the time of such nomination or election; provided,
however, that there shall be excluded from this clause
(y) any individual whose initial assumption of office occurred
as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual
or threatened solicitation of proxies or consents, by or on
behalf of a person other than the Board; or






	 	(iii)	 	the consummation of a merger,
consolidation, reorganization, recapitalization or share
exchange involving the Company or a sale or other disposition of
all or substantially all of the assets of the Company (a
“Business Combination”), unless, immediately following such
Business Combination, each of the following two conditions is
satisfied: (x) all or substantially all of the individuals and
entities who were the beneficial owners of the Outstanding
Company Common Stock and Outstanding Company Voting Securities
immediately prior to such Business Combination beneficially own,
directly or indirectly, more than 50% of the then-outstanding shares of common stock and the combined voting power of the
then-outstanding securities entitled to vote generally in the
election of directors, respectively, of the resulting or




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	 	 	 	acquiring corporation in such Business Combination (which
shall include, without limitation, a corporation which as a
result of such transaction owns the Company or substantially
all of the Company’s assets either directly or through one or
more subsidiaries) (such resulting or acquiring corporation
is referred to herein as the “Acquiring Corporation”) in
substantially the same proportions as their ownership of the
Outstanding Company Common Stock and Outstanding Company
Voting Securities, respectively, immediately prior to such
Business Combination and (y) no Person (excluding the
Acquiring Corporation or any employee benefit plan (or
related trust) maintained or sponsored by the Company or by
the Acquiring Corporation) beneficially owns, directly or
indirectly, 25% or more of the then-outstanding shares of
common stock of the Acquiring Corporation, or of the combined
voting power of the then-outstanding securities of such
corporation entitled to vote generally in the election of
directors (except to the extent that such ownership existed
prior to the Business Combination).






	 	(2)	 	Effect on Options






	 	(a)	 	Reorganization Event. Upon the
occurrence of a Reorganization Event (regardless of whether such event
also constitutes a Change in Control Event), or the execution by the
Company of any agreement with respect to a Reorganization Event
(regardless of whether such event will result in a Change in Control
Event), the Board shall provide that all outstanding Options shall be
assumed, or equivalent options shall be substituted, by the acquiring
or succeeding corporation (or an affiliate thereof); provided
that if such Reorganization Event also constitutes a Change in
Control Event, except to the extent specifically provided to the
contrary in the applicable option agreement or any other agreement
between a Participant and the Company, upon such Change in Control
Event, the vesting schedule of an Option shall be accelerated so that
such Option shall become immediately exercisable for the number of shares subject to the Option which otherwise would have first vested
within 12 months following such Change in Control Event, and any
remaining unvested shares subject to such Option shall continue to vest
in accordance with the vesting schedule set forth in the applicable
option agreement as though such 12 month period had actually passed.
For purposes hereof, an Option shall be considered to be assumed if,
following consummation of the Reorganization Event, the Option confers
the right to purchase, for each share of Common Stock subject to the
Option immediately prior to the consummation of the Reorganization
Event, the





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	 	 	 	consideration (whether cash, securities or other property) received
as a result of the Reorganization Event by holders of Common Stock
for each share of Common Stock held immediately prior to the
consummation of the Reorganization Event (and if holders were offered
a choice of consideration, the type of consideration chosen by the
holders of a majority of the outstanding shares of Common Stock);
provided, however, that if the consideration received as a result of
the Reorganization Event is not solely common stock of the acquiring
or succeeding corporation (or an affiliate thereof), the Company may,
with the consent of the acquiring or succeeding corporation, provide
for the consideration to be received upon the exercise of Options to
consist solely of common stock of the acquiring or succeeding
corporation (or an affiliate thereof) equivalent in fair market value
to the per share consideration received by holders of outstanding
shares of Common Stock as a result of the Reorganization Event.
	 
	 	 	 	     Notwithstanding the foregoing, if the acquiring or succeeding
corporation (or an affiliate thereof) does not agree to assume, or
substitute for, such Options, then the Board shall, upon written
notice to the Participants, provide that all then unexercised Options
will become exercisable in full as of a specified time prior to the
Reorganization Event and will terminate immediately prior to the
consummation of such Reorganization Event, except to the extent
exercised by the Participants before the consummation of such
Reorganization Event; provided, however, that in the event of a
Reorganization Event under the terms of which holders of Common Stock
will receive upon consummation thereof a cash payment for each share
of Common Stock surrendered pursuant to such Reorganization Event
(the “Acquisition Price”), then the Board may instead provide that
all outstanding Options shall terminate upon consummation of such
Reorganization Event and that each Participant shall receive, in
exchange therefor, a cash payment equal to the amount (if any) by
which (A) the Acquisition Price multiplied by the number of shares of
Common Stock subject to such outstanding Options (whether or not then
exercisable), exceeds (B) the aggregate exercise price of such
Options. To the extent all or any portion of an Option becomes
exercisable solely as a result of the first sentence of this
paragraph, upon exercise of such Option the Participant shall receive shares subject to a right of repurchase by the Company or its
successor at the Option exercise price. Such repurchase right (1)
shall lapse at the same rate as the Option would have become
exercisable under its terms and (2) shall not apply to any shares
subject to the Option that were exercisable under its terms without
regard to the first sentence of this paragraph.




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	 	(b)	 	Change in Control Event that is not a
Reorganization Event. Upon the occurrence of a Change in Control
Event that does not also constitute a Reorganization Event, except to
the extent specifically provided to the contrary in the applicable
option agreement or any other agreement between a Participant and the
Company, upon such Change in Control Event, the vesting schedule of an
Option shall be accelerated so that such Option shall become
immediately exercisable for the number of shares subject to the Option
which otherwise would have first vested within 12 months following such
Change in Control Event, and any remaining unvested shares subject to
such Option shall continue to vest in accordance with the vesting
schedule set forth in the applicable option agreement as though such 12
month period had actually passed.






	 	(3)	 	Effect on Restricted Stock Awards






	 	(a)	 	Reorganization Event that is not a Change
in Control Event. Upon the occurrence of a Reorganization Event
that is not a Change in Control Event, the repurchase and other rights
of the Company under each outstanding Restricted Stock Award shall
inure to the benefit of the Company’s successor and shall apply to the
cash, securities or other property which the Common Stock was converted
into or exchanged for pursuant to such Reorganization Event in the same
manner and to the same extent as they applied to the Common Stock
subject to such Restricted Stock Award.
	 
	 	(b)	 	Change in Control Event. Upon the
occurrence of a Change in Control Event (regardless of whether such
event also constitutes a Reorganization Event), except to the extent
specifically provided to the contrary in the instrument evidencing a
Restricted Stock Award or any other agreement between a Participant and
the Company, upon such Change in Control Event, the vesting schedule of
a Restricted Stock Award shall be accelerated so that the number of shares subject to such Award which otherwise would have first vested
within 12 months following such Change in Control Event shall become
immediately vested, and any remaining unvested shares subject to such
Award shall continue to vest in accordance with the vesting schedule
set forth in the applicable Restricted Stock Award as though such 12
month period had actually passed.






	 	(4)	 	Effect on Other Stock Unit Awards






	 	(a)	 	Reorganization Event that is not a Change
in Control Event. The Board shall specify the effect of a
Reorganization Event that is not a Change in Control Event on any Other
Stock Unit Award granted




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	 	 	 	under the Plan at the time of the grant of such Other Stock Unit
Award.
	 
	 	(b)	 	Change in Control Event. Upon the
occurrence of a Change in Control Event (regardless of whether such
event also constitutes a Reorganization Event), except to the extent
specifically provided to the contrary in the instrument evidencing an
Other Stock Unit Award or any other agreement between a Participant and
the Company, upon such Change in Control Event, the vesting schedule of
any Other Stock Unit Award shall be accelerated so that the number of
shares subject to the Other Stock Unit Award which otherwise would have
first become exercisable, realizable, vested or free from conditions or
restrictions within 12 months following such Change in Control Event
shall immediately become exercisable, realizable, vested or free from
conditions or restrictions, and any remaining unvested shares subject
to such Award shall continue to become exercisable, realizable, vested
or free from conditions or restrictions in accordance with the vesting
schedule set forth in the applicable Other Stock Unit Award as though
such 12 month period had actually passed.





10. General Provisions Applicable to Awards




     (a) Transferability of Awards. Except as the Board may otherwise determine or provide
in an Award, Awards shall not be sold, assigned, transferred, pledged or otherwise encumbered by
the person to whom they are granted, either voluntarily or by operation of law, except by will or
the laws of descent and distribution, and, during the life of the Participant, shall be exercisable
only by the Participant. References to a Participant, to the extent relevant in the context, shall
include references to authorized transferees.



     (b) Documentation. Each Award shall be evidenced in such form (written, electronic or
otherwise) as the Board shall determine. Each Award may contain terms and conditions in addition
to those set forth in the Plan.



     (c) Board Discretion. Except as otherwise provided by the Plan, each Award may be
made alone or in addition or in relation to any other Award. The terms of each Award need not be
identical, and the Board need not treat Participants uniformly.



     (d) Termination of Status. The Board shall determine the effect on an Award of the
disability, death, retirement, authorized leave of absence or other change in the employment or
other status of a Participant and the extent to which, and the period during which, the
Participant, the Participant’s legal representative, conservator, guardian or Designated
Beneficiary may exercise rights under the Award.



     (e) Withholding. Each Participant shall pay to the Company, or make provision
satisfactory to the Board for payment of, any taxes required by law to be withheld in connection
with Awards to such Participant no later than the date of the event creating the tax liability.



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Except as the Board may otherwise provide in an Award, for so long as the Common Stock is
registered under the Exchange Act, Participants may satisfy such tax obligations in whole or in
part by delivery of shares of Common Stock, including shares retained from the Award creating the
tax obligation, valued in accordance with the procedures set forth in Section 5(f)(3); provided,
however, that the total tax withholding where stock is being used to satisfy such tax obligations
cannot exceed the Company’s minimum statutory withholding obligations (based on minimum statutory
withholding rates for federal and state tax purposes, including payroll taxes, that are applicable
to such supplemental taxable income). The Company may, to the extent permitted by law, deduct any
such tax obligations from any payment of any kind otherwise due to a Participant.




     (f) Amendment of Award. Except as provided in Section 5(h) above, the Board may
amend, modify or terminate any outstanding Award, including but not limited to, substituting
therefor another Award of the same or a different type, changing the date of exercise or
realization, and converting an Incentive Stock Option to a Nonstatutory Stock Option, provided that
the Participant’s consent to such action shall be required unless the Board determines that the
action, taking into account any related action, would not materially and adversely affect the
Participant.



     (g) Conditions on Delivery of Stock. The Company will not be obligated to deliver any
shares of Common Stock pursuant to the Plan or to remove restrictions from shares previously
delivered under the Plan until (i) all conditions of the Award have been met or removed to the
satisfaction of the Company, (ii) in the opinion of the Company’s counsel, all other legal matters
in connection with the issuance and delivery of such shares have been satisfied, including any
applicable securities laws and any applicable stock exchange or stock market rules and regulations,
and (iii) the Participant has executed and delivered to the Company such representations or
agreements as the Company may consider appropriate to satisfy the requirements of any applicable
laws, rules or regulations.



     (h) Acceleration. The Board may at any time provide that any Award shall become
immediately exercisable in full or in part, free of some or all restrictions or conditions, or
otherwise realizable in full or in part, as the case may be.



          (i) Deferred Delivery of Shares Issuable Pursuant to an Award. Subject to Section
11(g), the Board may, at the time any Award is granted, provide that, at the time Common Stock
would otherwise be delivered pursuant to the Award, the Participant shall instead receive an
instrument evidencing the right to future delivery of Common Stock at such time or times, and on
such conditions, as the Board shall specify. The Board may at any time accelerate the time at
which delivery of all or any part of the Common Stock shall take place.




     (j) Performance Conditions.



          (1) This Section 10(j) shall be administered by the Compensation Committee of the Board of
Directors, or such other committee of “outside directors”, as defined by Section 162(m), approved
by the Board (the “Section 162(m) Committee”).




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          (2) Notwithstanding any other provision of the Plan, if the Section 162(m) Committee
determines, at the time a Restricted Stock Award or Other Stock Unit Award is granted to a
Participant, that such Participant is, or may be as of the end of the tax year in which the Company
would claim a tax deduction in connection with such Award, a Covered Employee (as defined in
Section 162(m)), then the Section 162(m) Committee may provide that this Section 10(j) is
applicable to such Award.




          (3) If a Restricted Stock Award or Other Stock Unit Award is subject to this Section 10(j),
then the lapsing of restrictions thereon and the distribution of cash or Shares pursuant thereto,
as applicable, shall be subject to the achievement of one or more objective performance goals
established by the Section 162(m) Committee, which shall be based on the relative or absolute
attainment of specified levels of one or any combination of the following: (a) earnings per share,
(b) return on average equity or average assets with respect to a pre-determined peer group, (c)
earnings, (d) earnings growth, (e) revenues, (f) expenses, (g) stock price, (h) market share, (i)
return on sales, assets, equity or investment, (j) regulatory compliance, (k) improvement of
financial ratings, (l) achievement of balance sheet or income statement objectives, (m) total
shareholder return, (n) net operating profit after tax, (o) pre-tax or after-tax income, (p) cash
flow, or (q) such other objective goals established by the Board, and may be absolute in their
terms or measured against or in relationship to other companies comparably, similarly or otherwise
situated. Such performance goals may be adjusted to exclude any one or more of (i) extraordinary
items, (ii) gains or losses on the dispositions of discontinued operations, (iii) the cumulative
effects of changes in accounting principles, (iv) the writedown of any asset, and (v) charges for
restructuring and rationalization programs. Such performance goals may vary by Participant and may
be different for different Awards. Such performance goals shall be set by the Section 162(m)
Committee within the time period prescribed by, and shall otherwise comply with the requirements
of, Section 162(m).




          (4) Notwithstanding any provision of the Plan, with respect to any Restricted Stock Award or
Other Stock Unit Award that is subject to this Section 10(j), the Section 162(m) Committee may
adjust downwards, but not upwards, the cash or number of Shares payable pursuant to such Award, and
the Section 162(m) Committee may not waive the achievement of the applicable performance goals
except in the case of the death or disability of the Participant.




          (5) The Section 162(m) Committee shall have the power to impose such other restrictions on
Awards subject to this Section 10(j) as it may deem necessary or appropriate to ensure that such
Awards satisfy all requirements for “performance-based compensation” within the meaning of Section
162(m)(4)(C) of the Code, or any successor provision thereto.




11. Miscellaneous




     (a) No Right To Employment or Other Status. No person shall have any claim or right
to be granted an Award, and the grant of an Award shall not be construed as giving a Participant
the right to continued employment or any other relationship with the Company. The Company
expressly reserves the right at any time to dismiss or otherwise terminate its relationship with a
Participant free from any liability or claim under the Plan, except as expressly provided in the
applicable Award.



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     (b) No Rights As Stockholder. Subject to the provisions of the applicable Award, no
Participant or Designated Beneficiary shall have any rights as a stockholder with respect to any
shares of Common Stock to be distributed with respect to an Award until becoming the record holder
of such shares. Notwithstanding the foregoing, in the event the Company effects a split of the
Common Stock by means of a stock dividend and the exercise price of and the number of shares
subject to such Option are adjusted as of the date of the distribution of the dividend (rather than
as of the record date for such dividend), then an optionee who exercises an Option between the
record date and the distribution date for such stock dividend shall be entitled to receive, on the
distribution date, the stock dividend with respect to the shares of Common Stock acquired upon such
Option exercise, notwithstanding the fact that such shares were not outstanding as of the close of
business on the record date for such stock dividend.



     (c) Effective Date and Term of Plan. The Plan shall become effective on the date on
which it is adopted by the Board. No Awards shall be granted under the Plan after the completion
of ten years from the earlier of (i) the date on which the Plan was adopted by the Board or (ii)
the date the Plan was approved by the Company’s stockholders, but Awards previously granted may
extend beyond that date.



     (d) Amendment of Plan. The Board may amend, suspend or terminate the Plan or any
portion thereof at any time; provided that, to the extent required by Section 162(m), no Award
granted to a Participant that is intended to comply with Section 162(m) after the date of such
amendment shall become exercisable, realizable or vested, as applicable to such Award, unless and
until such amendment shall have been approved by the Company’s stockholders if required by Section
162(m) (including the vote required under Section 162(m)); and provided further that, without
approval of the Company’s stockholders, no amendment may (i) increase the number of shares
authorized under the Plan (other than pursuant to Section 9), (ii) materially increase the benefits
provided under the Plan, (iii) materially expand the class of participants eligible to participate
in the Plan, (iv) expand the types of Awards provided under the Plan or (v) make any other changes
that require stockholder approval under the rules of the Nasdaq National Market, Inc. In addition,
if at any time the approval of the Company’s stockholders is required as to any other modification
or amendment under Section 422 of the Code or any successor provision with respect to Incentive
Stock Options, the Board may not effect such modification or amendment without such approval.



     (e) Authorization of Sub-Plans. The Board may from time to time establish one or more
sub-plans under the Plan for purposes of satisfying applicable blue sky, securities or tax laws of
various jurisdictions. The Board shall establish such sub-plans by adopting supplements to this
Plan containing (i) such limitations on the Board’s discretion under the Plan as the Board deems
necessary or desirable or (ii) such additional terms and conditions not otherwise inconsistent with
the Plan as the Board shall deem necessary or desirable. All supplements adopted by the Board
shall be deemed to be part of the Plan, but each supplement shall apply only to Participants within
the affected jurisdiction and the Company shall not be required to provide copies of any supplement
to Participants in any jurisdiction which is not the subject of such supplement.



     (f) Provisions for Foreign Participants. The Board may modify Awards or Options
granted to Participants who are foreign nationals or employed outside the United States or



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establish subplans or procedures under the Plan to recognize differences in laws, rules,
regulations or customs of such foreign jurisdictions with respect to tax, securities, currency,
employee benefit or other matters.




     (g) Compliance With Code Section 409A. No Award shall provide for deferral of
compensation that does not comply with Section 409A of the Code, unless the Board, at the time of
grant, specifically provides that the Award is not intended to comply with Section 409A of the
Code.



     (h) Governing Law. The provisions of the Plan and all Awards made hereunder shall be
governed by and interpreted in accordance with the laws of the State of Delaware, without regard to
any applicable conflicts of law.



	 	 	 
	 

	 	Adopted by the Board of Directors on March 3, 2004
	 
	 	 
	 

	 	Approved by the Stockholders on April 23, 2004
	 
	 	 
	 

	 	Amended and Restated by the Board of Directors on March 21, 2005
	 
	 	 
	 

	 	Approved by Stockholders on May 19, 2005
	 
	 	 
	 

	 	Amended by the Board of Directors on February 22, 2006
	 
	 	 
	 

	 	Approved by Stockholders on June 14, 2006
	 
	 	 
	 

	 	Amended by the Board of Directors on March 8, 2007
	 
	 	 
	 

	 	Approved by Stockholders on June 7, 2007







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