ex10-2.htm


    

    Exhibit
10.2

     

    FIRST SOLAR, INC.

    AMENDED
& RESTATED 2006 OMNIBUS 

    INCENTIVE
COMPENSATION PLAN

    
      

    

    
       

       

      SECTION
1.  Purpose.  The
purpose of this First Solar, Inc. Amended & Restated 2006 Omnibus
Incentive Compensation Plan is to promote the interests of First Solar, Inc., a
Delaware corporation (the “Company”), and its
stockholders by (a) attracting and retaining exceptional directors,
officers, employees and consultants (including prospective directors, officers,
employees and consultants) of the Company and its Affiliates (as defined below)
and (b) enabling such individuals to participate in the long-term growth
and financial success of the Company.

       

      SECTION
2.  Definitions.  As
used herein, the following terms shall have the meanings set forth
below:

       

      “Affiliate” means
(a) any entity that, directly or indirectly, is controlled by, controls or
is under common control with, the Company and (b) any entity in which the
Company has a significant equity interest, in either case as determined by the
Committee.

       

      “Award” means any
award that is permitted under Section 6 and granted under the
Plan.

       

      “Award Agreement”
means any written agreement, contract or other instrument or document evidencing
any Award, which may, but need not, require execution or acknowledgment by a
Participant.

       

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

       

      “Cash Incentive Award”
shall have the meaning specified in Section 6(f).

       

      “Change of Control”
shall (a) have the meaning set forth in an Award Agreement or (b) if
there is no definition set forth in an Award Agreement, mean the occurrence of
any of the following events, not including any events occurring prior to or in
connection with the initial public offering of Shares (including the occurrence
of such initial public offering):

       

      (i)  during
any period of 24 consecutive months, individuals who were members of the Board
at the beginning of such period (the “Incumbent Directors”)
cease at any time during such period for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming
a director subsequent to the beginning of such period whose appointment or
election, or nomination for election, by the Company’s stockholders was approved
by a vote of at least a majority of the Incumbent Directors shall be considered
as though such individual were an Incumbent Director, but excluding, for
purposes of this proviso, any such individual whose initial

       

      
        
          
          

        

        
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      assumption
of office occurs as a result of an actual or threatened proxy contest with
respect to election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of any “person” (as such
term is used in Section 13(d) of the Exchange Act) (each, a “Person”), other than
the Board or any Specified Shareholder;

       

      (ii)  the
consummation of (A) a merger, consolidation, statutory share exchange or similar
form of corporate transaction involving (x) the Company or (y) any of its
Subsidiaries, but in the case of this clause (y) only if Company Voting
Securities (as defined below) are issued or issuable in connection with such
transaction (each of the transactions referred to in this clause (A), being
hereinafter referred to as a “Reorganization”) or
(B) a sale or other disposition of all or substantially all the assets of the
Company (a “Sale”), unless,
immediately following such Reorganization or Sale, (1) all or substantially all
the individuals and entities who were the “beneficial owners” (as such term is
defined in Rule 13d-3 under the Exchange Act (or a successor rule thereto)) of
shares of the Company’s common stock or other securities eligible to vote for
the election of the Board outstanding immediately prior to the consummation of
such Reorganization or Sale (such securities, the “Company Voting
Securities”) beneficially own, directly or indirectly, more than 50% of
the combined voting power of the then outstanding voting securities of the
corporation or other entity resulting from such Reorganization or Sale
(including a corporation or other entity that, as a result of such transaction,
owns the Company or all or substantially all the Company’s assets either
directly or through one or more subsidiaries) (the “Continuing Entity”)
in substantially the same proportions as their ownership, immediately prior to
the consummation of such Reorganization or Sale, of the outstanding Company
Voting Securities (excluding any outstanding voting securities of the Continuing
Entity that such beneficial owners hold immediately following the consummation
of such Reorganization or Sale as a result of their ownership prior to such
consummation of voting securities of any corporation or other entity involved in
or forming part of such Reorganization or Sale other than the Company or a
Subsidiary), (2) no Person (excluding (x) any employee benefit plan (or related
trust) sponsored or maintained by the Continuing Entity or any corporation or
other entity controlled by the Continuing Entity and (y) any Specified
Shareholder beneficially owns, directly or indirectly, 20% or more of the
combined voting power of the then outstanding voting securities of the
Continuing Entity and (3) at least a majority of the members of the board of
directors or other governing body of the Continuing Entity were Incumbent
Directors at the time of the execution of the definitive agreement providing for
such Reorganization or Sale or, in the absence of such an agreement, at the time
at which approval of the Board was obtained for such Reorganization or
Sale;

       

      (iii)  the
stockholders of the Company approve a plan of complete liquidation or
dissolution of the Company, unless such liquidation or dissolution is part
of

       

      


      
        
          
          

        

        
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      a
transaction or series of transactions described in paragraph (ii) above that
does not otherwise constitute a Change of Control; or

       

      (iv)  any
Person, corporation or other entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Exchange Act) other than any Specified Shareholder
becomes the beneficial owner, directly or indirectly, of securities of the
Company representing a percentage of the combined voting power of the Company
Voting Securities that is equal to or greater than the greater of (x) 20%
and (y) the percentage of the combined voting power of the Company Voting
Securities beneficially owned directly or indirectly by the Specified
Shareholders at such time; provided, however, that for
purposes of this subparagraph (iv) (and not for purposes of
subparagraphs (i)
through (iii) above), the following acquisitions shall not constitute a
Change in Control:  (A) any acquisition by the Company or any
Subsidiary, (B) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any Subsidiary, (C) any acquisition by
an underwriter temporarily holding such Company Voting Securities pursuant to an
offering of such securities or (D) any acquisition pursuant to a Reorganization
or Sale that does not constitute a Change in Control for purposes of
subparagraph (ii) above.

       

       “Code” means the
Internal Revenue Code of 1986, as amended from time to time, and the regulations
promulgated thereunder.

       

      “Committee” means the
compensation committee of the Board, or such other committee of the Board as may
be designated by the Board to administer the Plan.

       

       “Exchange Act” means
the Securities Exchange Act of 1934, as amended, or any successor statute
thereto.

       

      “Exercise Price” means
(a) in the case of Options, the price specified in the applicable Award
Agreement as the price-per-Share at which Shares may be purchased pursuant to
such Option or (b) in the case of SARs, the price specified in the
applicable Award Agreement as the reference price-per-Share used to calculate
the amount payable to the Participant.

       

      “Fair Market Value”
means (a) with respect to any property other than Shares, the fair market
value of such property determined by such methods or procedures as shall be
established from time to time by the Committee and (b) with respect to the
Shares, as of any date, (i) the closing per share sales price of the Shares
(A) as reported by NASDAQ for such date or (B) if the Shares are
listed on any other national stock exchange, as reported on the stock exchange
composite tape for securities traded on such stock exchange for such date or,
with respect to each of clauses (A) and (B), if there were no sales on such
date, on the closest preceding date on which there were sales of
Shares

       

      


      
        
          
          

        

        
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      or
(ii) in the event there shall be no public market for the Shares on such
date, the fair market value of the Shares as determined in good faith by the
Committee.

       

      “Incentive Stock
Option” means an option to purchase Shares from the Company that
(a) is granted under Section 6 and (b) is intended to qualify for
special Federal income tax treatment pursuant to Sections 421 and 422 of
the Code, as now constituted or subsequently amended, or pursuant to a successor
provision of the Code, and which is so designated in the applicable Award
Agreement.

       

      “Independent Director”
means a member of the Board who is neither (a) an employee of the Company
nor (b) an employee of any Affiliate, and who, at the time of acting, is a
“Non-Employee Director” under Rule 16b-3.

       

      “IRS” means the
Internal Revenue Service or any successor thereto and includes the staff
thereof.

       

      “NASDAQ” means the
National Association of Securities Dealers Autmomated Quotation
system.

       

      “Nonqualified Stock
Option” means an option to purchase Shares from the Company that
(a) is granted under Section 6 and (b) is not an Incentive Stock
Option.

       

      “Option” means an
Incentive Stock Option or a Nonqualified Stock Option or both, as the context
requires.

       

      “Participant” means
any director, officer, employee or consultant (including any prospective
director, officer, employee or consultant) of the Company or its Affiliates who
is eligible for an Award under Section 5 and who is selected by the
Committee to receive an Award under the Plan or who receives a Substitute Award
pursuant to Section 4(c).

       

      “Performance
Compensation Award” means
any Award designated by the Committee as a Performance Compensation Award
pursuant to Section 6(e).

       

      “Performance
Criteria” means the
criterion or criteria that the Committee shall select for purposes of
establishing a Performance Goal for a Performance Period with respect to any
Performance Compensation Award, Performance Unit or Cash Incentive Award under
the Plan.

       

      “Performance
Formula” means, for a
Performance Period, the one or more objective formulas applied against the
relevant Performance Goal to determine, with regard to the Performance
Compensation Award, Performance Unit or Cash Incentive

       

      
        
          
          

        

        
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      Award of a particular Participant,
whether all, a portion or none of the Award has been earned for the Performance
Period.

       

      “Performance
Goal” means, for a
Performance Period, the one or more goals established by the Committee for the
Performance Period based upon the Performance Criteria.

       

      “Performance
Period” means the one or
more periods of time 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 a Performance Compensation Award,
Performance Unit or Cash Incentive Award.

       

      “Performance Unit”
means an Award under Section 6(f) that has a value set by the Committee (or that
is determined by reference to a valuation formula specified by the Committee or
the Fair Market Value of Shares), which value may be paid to the Participant by
delivery of such property as the Committee shall determine, including without
limitation, cash or Shares, or any combination thereof, upon achievement of such
Performance Goals during the relevant Performance Period as the Committee shall
establish at the time of such Award or thereafter.

       

      “Plan” means this
First Solar Holdings, Inc. 2006 Omnibus Incentive Compensation Plan, as in
effect from time to time.

       

      “Restricted Share”
means a Share delivered under the Plan that is subject to certain transfer
restrictions, forfeiture provisions and/or other terms and conditions specified
herein and in the applicable Award Agreement.

       

      “RSU” means a
restricted stock unit Award that is designated as such in the applicable Award
Agreement and that represents an unfunded and unsecured promise to deliver
Shares, cash, other securities, other Awards or other property in accordance
with the terms of the applicable Award Agreement.

       

      “Rule 16b-3”
means Rule 16b-3 as promulgated and interpreted by the SEC under the
Exchange Act or any successor rule or regulation thereto as in effect from time
to time.

       

      “SAR” means a stock
appreciation right Award that represents an unfunded and unsecured promise to
deliver Shares, cash, other securities, other Awards or other property equal in
value to the excess, if any, of the Fair Market Value per Share over the
Exercise Price per Share of the SAR, subject to the terms of the applicable
Award Agreement.

       

      


      
        
          
          

        

        
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      “SEC” means the
Securities and Exchange Commission or any successor thereto and shall include
the staff thereof.

       

      “Shares” means shares
of common stock of the Company, $0.001 par value, or such other securities of
the Company (a) into which such shares shall be changed by reason of a
recapitalization, merger, consolidation, split-up, combination, exchange of
shares or other similar transaction or (b) as may be determined by the
Committee pursuant to Section 4(b).

       

      “Specified
Shareholder” means JWMA Partners, LLC and, following the dissolution of
JWMA Partners, LLC, any of (i) the Estate of John T. Walton and its
beneficiaries, (ii) JCL Holdings, LLC and its beneficiaries, (iii) Michael J.
Ahearn and any of his immediate family, (iv) any Person directly or indirectly
controlled by any of the foregoing and (v) any trust for the direct or indirect
benefit of any of the foregoing.

       

       “Subsidiary” means any
entity in which the Company, directly or indirectly, possesses 50% or more of
the total combined voting power of all classes of its stock.

       

      “Substitute Awards”
shall have the meaning specified in Section 4(c).

       

      SECTION
3.  Administration.  a)Composition of
Committee.  The Plan shall be administered by the Committee,
which shall be composed of one or more directors, as determined by the Board;
provided that
after the date of the consummation of the initial public offering of Shares, to
the extent necessary to comply with the rules of NASDAQ and Rule 16b-3 and to
satisfy any applicable requirements of Section 162(m) of the Code and any other
applicable laws or rules, the Committee shall be composed of two or more
directors, all of whom shall be Independent Directors and all of whom shall (i)
qualify as “outside directors” under Section 162(m) of the Code and (ii) meet
the independence requirements of NASDAQ.

       

      (b)  Authority of
Committee.  Subject to the terms of the Plan and applicable
law, and in addition to other express powers and authorizations conferred on the
Committee by the Plan, the Committee shall have sole and plenary authority to
administer the Plan, including, but not limited to, the authority to
(i) designate Participants, (ii) determine the type or types of Awards
to be granted to a Participant, (iii) determine the number of Shares to be
covered by, or with respect to which payments, rights or other matters are to be
calculated in connection with, Awards, (iv) determine the terms and
conditions of any Awards, (v) determine the vesting schedules of Awards
and, if certain performance criteria must be attained in order for an Award to
vest or be settled or paid, establish such performance criteria and certify
whether, and to what extent, such

       

      
        
          
          

        

        
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      performance
criteria have been attained, (vi) determine whether, to what extent and under
what circumstances Awards may be settled or exercised in cash, Shares, other
securities, other Awards or other property, or canceled, forfeited or suspended
and the method or methods by which Awards may be settled, exercised, canceled,
forfeited or suspended, (vii) determine whether, to what extent and under
what circumstances cash, Shares, other securities, other Awards, other property
and other amounts payable with respect to an Award shall be deferred either
automatically or at the election of the holder thereof or of the Committee,
(viii) interpret, administer, reconcile any inconsistency in, correct any
default in and supply any omission in, the Plan and any instrument or agreement
relating to, or Award made under, the Plan, (ix) establish, amend, suspend
or waive such rules and regulations and appoint such agents as it shall deem
appropriate for the proper administration of the Plan, (x) accelerate the
vesting or exercisability of, payment for or lapse of restrictions on, Awards,
(xi) amend an outstanding Award or grant a replacement Award for an Award
previously granted under the Plan if, in its sole discretion, the Committee
determines that (A) the tax consequences of such Award to the Company or the
Participant differ from those consequences that were expected to occur on the
date the Award was granted or (B)
clarifications or
interpretations of, or
changes to, tax law or regulations permit Awards to be granted that have more
favorable tax consequences than initially anticipated and (xii) make any
other determination and take any other action that the Committee deems necessary
or desirable for the administration of the Plan.

       

      (c)  Committee
Decisions.  Unless otherwise expressly provided in the Plan,
all designations, determinations, interpretations and other decisions under or
with respect to the Plan or any Award shall be within the sole and plenary
discretion of the Committee, may be made at any time and shall be final,
conclusive and binding upon all persons, including the Company, any Affiliate,
any Participant, any holder or beneficiary of any Award and any
stockholder.

       

      (d)  Indemnification.  No
member of the Board, the Committee or any employee of the Company (each such
person, a “Covered
Person”) shall be liable for any action taken or omitted to be taken or
any determination made in good faith with respect to the Plan or any Award
hereunder.  Each Covered Person shall be indemnified and held harmless
by the Company against and from (i) any loss, cost, liability or expense
(including attorneys’ fees) that may be imposed upon or incurred by such Covered
Person in connection with or resulting from any action, suit or proceeding to
which such Covered Person may be a party or in which such Covered Person may be
involved by reason of any action taken or omitted to be taken under the Plan or
any Award Agreement and (ii) any and all amounts paid by such Covered
Person, with the Company’s approval, in settlement thereof, or paid by such
Covered Person in satisfaction of any judgment in any such action, suit or
proceeding against such Covered Person; provided that the
Company shall have the right, at its own expense, to assume and defend any such
action,

       

      
        
          
          

        

        
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      suit or
proceeding, and, once the Company gives notice of its intent to assume the
defense, the Company shall have sole control over such defense with counsel of
the Company’s choice.  The foregoing right of indemnification shall
not be available to a Covered Person to the extent that a court of competent
jurisdiction in a final judgment or other final adjudication, in either case not
subject to further appeal, determines that the acts or omissions of such Covered
Person giving rise to the indemnification claim resulted from such Covered
Person’s bad faith, fraud or willful criminal act or omission or that such right
of indemnification is otherwise prohibited by law or by the Company’s
Certificate of Incorporation or Bylaws.  The foregoing right of
indemnification shall not be exclusive of any other rights of indemnification to
which Covered Persons may be entitled under the Company’s Certificate of
Incorporation or Bylaws, as a matter of law, or otherwise, or any other power
that the Company may have to indemnify such persons or hold them
harmless.

       

      (e)  Delegation of Authority to
Senior Officers.  The Committee may delegate, on such terms and
conditions as it determines in its sole and plenary discretion, to one or more
senior officers of the Company the authority to make grants of Awards to
officers (other than executive officers), employees and consultants of the
Company and its Affiliates (including any prospective officer, employee or
consultant) and all necessary and appropriate decisions and determinations with
respect thereto.

       

      (f)  Awards to Independent
Directors.  Notwithstanding anything to the contrary contained
herein, the Board may, in its sole and plenary discretion, at any time and from
time to time, grant Awards to Independent Directors or administer the Plan with
respect to such Awards.  In any such case, the Board shall have all
the authority and responsibility granted to the Committee herein.

       

      SECTION
4.  Shares
Available for Awards.  b)Shares
Available.  Subject to adjustment as provided in
Section 4(b), (i) the aggregate number of Shares that may be delivered
pursuant to Awards granted under the Plan shall be 5,820,000, of which the
maximum number of Shares that may be delivered pursuant to Incentive Stock
Options granted under the Plan shall be 5,820,000 and the maximum number of
Shares that may be delivered pursuant to Awards of Restricted Shares under the
Plan shall be 2,910,000, provided that each such number of Shares does not
reflect, and shall automatically be adjusted to take into account any stock
distribution or stock split that occurs in connection with the initial public
offering of Shares.  If, after the effective date of the Plan, any
Award granted under the Plan is forfeited, or otherwise expires, terminates or
is canceled without the delivery of Shares, then the Shares covered by such
forfeited, expired, terminated or canceled Award shall again become available to
be delivered pursuant to Awards under the Plan.  If Shares issued upon
exercise, vesting or settlement of an Award, or Shares owned by a Participant
(which are not subject to any pledge or other security interest), are
surrendered or tendered to the Company in payment of the

       

      
        
          
          

        

        
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      Exercise
Price of an Award or any taxes required to be withheld in respect of an Award,
in each case, in accordance with the terms and conditions of the Plan and any
applicable Award Agreement, such surrendered or tendered Shares shall again
become available to be delivered pursuant to Awards under the Plan; provided, however, that in no
event shall such Shares increase the number of Shares that may be delivered
pursuant to Incentive Stock Options granted under the Plan.  Subject
to adjustment as provided in Section 4(b), (i) the maximum aggregate
number of Shares with respect to which Awards may be granted to any Participant
in any fiscal year of the Company shall be 679,000, provided that such number of
Shares does not reflect, and shall automatically be adjusted to take into
account any stock distribution or stock split that occurs in connection with the
initial public offering of Shares, and (ii) the maximum aggregate amount of
cash and other property (valued at its Fair Market Value) other than Shares that
may be paid or delivered pursuant to Awards under the Plan to any Participant in
any fiscal year of the Company shall be $20,000,000.

       

      (b)  Adjustments for Changes in
Capitalization and Similar Events.  c) In the event of any
extraordinary dividend or other extraordinary distribution (whether in the form
of cash, Shares, other securities or other property), recapitalization, stock
split, reverse stock split, split-up or spin-off, the Committee shall, in order
to preserve the value of the Award and in the manner determined by the
Committee, adjust any or all of (A) the number of Shares or other
securities of the Company (or number and kind of other securities or property)
with respect to which Awards may be granted, including (1) the aggregate
number of Shares that may be delivered pursuant to Awards granted under the
Plan, as provided in Section 4(a) and (2) the maximum number of Shares
or other securities of the Company (or number and kind of other securities or
property) with respect to which Awards may be granted to any Participant in any
fiscal year of the Company and (B) the terms of any outstanding Award,
including (1) the number of Shares or other securities of the Company (or
number and kind of other securities or property) subject to outstanding Awards
or to which outstanding Awards relate and (2) the Exercise Price with
respect to any Award.

       

      (ii)  In
the event that the Committee determines that any reorganization, merger,
consolidation, combination, repurchase or exchange of Shares or other securities
of the Company, issuance of warrants or other rights to purchase Shares or other
securities of the Company, or other similar corporate transaction or event
affects the Shares such that an adjustment is determined by the Committee in its
discretion to be appropriate or desirable, then the Committee may (A) in
such manner as it may deem equitable or desirable, adjust any or all of
(1) the number of Shares or other securities of the Company (or number and
kind of other securities or property) with respect to which Awards may be
granted, including (X) the aggregate number of Shares that may be delivered
pursuant to Awards granted under the Plan, as provided in Section 4(a) and
(Y) the maximum number of Shares or other securities of the Company (or
number and

       

      
        
          
          

        

        
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      kind of
other securities or property) with respect to which Awards may be granted to any
Participant in any fiscal year of the Company and (2) the terms of any
outstanding Award, including (X) the number of Shares or other securities
of the Company (or number and kind of other securities or property) subject to
outstanding Awards or to which outstanding Awards relate and (Y) the
Exercise Price with respect to any Award, (B) if deemed appropriate or desirable
by the Committee, make provision for a cash payment to the holder of an
outstanding Award in consideration for the cancelation of such Award, including,
in the case of an outstanding Option or SAR, a cash payment to the holder of
such Option or SAR in consideration for the cancelation of such Option or SAR in
an amount equal to the excess, if any, of the Fair Market Value (as of a date
specified by the Committee) of the Shares subject to such Option or SAR over the
aggregate Exercise Price of such Option or SAR and (C) if deemed appropriate or
desirable by the Committee, cancel and terminate any Option or SAR having a per
Share Exercise Price equal to, or in excess of, the Fair Market Value of a Share
subject to such Option or SAR without any payment or consideration
therefor.

       

      (c)  Substitute
Awards.  Awards may, in the discretion of the Committee, be
granted under the Plan in assumption of, or in substitution for, outstanding
awards previously granted by the Company or any of its Affiliates or a company
acquired by the Company or any of its Affiliates or with which the Company or
any of its Affiliates combines (“Substitute
Awards”).  The number of Shares underlying any Substitute
Awards shall be counted against the aggregate number of Shares available for
Awards under the Plan; provided, however, that
Substitute Awards issued in connection with the assumption of, or in
substitution for, outstanding awards previously granted by an entity that is
acquired by the Company or any of its Affiliates or with which the Company or
any of its Affiliates combines shall not be counted against the aggregate number
of Shares available for Awards under the Plan; provided further,
however, that
Substitute Awards issued in connection with the assumption of, or in
substitution for, outstanding stock options intended to qualify for special tax
treatment under Sections 421 and 422 of the Code that were previously granted by
an entity that is acquired by the Company or any of its Affiliates or with which
the Company or any of its Affiliates combines shall be counted against the
aggregate number of Shares available for Incentive Stock Options under the
Plan.

       

      (d)  Sources of Shares
Deliverable Under Awards.  Any Shares delivered pursuant to an
Award may consist, in whole or in part, of authorized and unissued Shares or of
treasury Shares.

       

      SECTION
5.  Eligibility.  Any
director, officer, employee or consultant (including any prospective director,
officer, employee or consultant) of the Company or any of its Affiliates shall
be eligible to be designated a Participant.

       


      
        
           


        

        
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      SECTION
6.  Awards.  d)Types of
Awards.  Awards may be made under the Plan in the form of
(i) Options, (ii) SARs, (iii) Restricted Shares, (iv) RSUs,
(v) Performance Units, (vi) Cash Incentive Awards and (vii) other
equity-based or equity-related Awards that the Committee determines are
consistent with the purpose of the Plan and the interests of the
Company.  Awards may be granted in tandem with other
Awards.  No Incentive Stock Option (other than an Incentive Stock
Option that may be assumed or issued by the Company in connection with a
transaction to which Section 424(a) of the Code applies) may be granted to
a person who is ineligible to receive an Incentive Stock Option under the
Code.

       

      (b)  Options.  e)Grant.  Subject
to the provisions of the Plan, the Committee shall have sole and plenary
authority to determine the Participants to whom Options shall be granted, the
number of Shares to be covered by each Option, whether the Option will be an
Incentive Stock Option or a Nonqualified Stock Option and the conditions and
limitations applicable to the vesting and exercise of the Option.  In
the case of Incentive Stock Options, the terms and conditions of such grants
shall be subject to and comply with such rules as may be prescribed by
Section 422 of the Code and any regulations related thereto, as may be
amended from time to time.  All Options granted under the Plan shall
be Nonqualified Stock Options unless the applicable Award Agreement expressly
states that the Option is intended to be an Incentive Stock
Option.  If an Option is intended to be an Incentive Stock Option, and
if for any reason such Option (or any portion thereof) shall not qualify as an
Incentive Stock Option, then, to the extent of such nonqualification, such
Option (or portion thereof) shall be regarded as a Nonqualified Stock Option
appropriately granted under the Plan; provided that such
Option (or portion thereof) otherwise complies with the Plan’s requirements
relating to Nonqualified Stock Options.

       

      (ii)  Exercise
Price.  Except as otherwise established by the Committee at the
time an Option is granted and set forth in the applicable Award Agreement, the
Exercise Price of each Share covered by an Option shall be not less than 100% of
the Fair Market Value of such Share (determined as of the date the Option is
granted); provided, however, that
(A) except as otherwise established by the Committee at the time an Option
is granted and set forth in the applicable Award Agreement, the Exercise Price
of each Share covered by an Option that is granted effective as of the Company’s
initial public offering of Shares shall be the initial public offering price per
Share and (B) in the case of an Incentive Stock Option granted to an employee
who, at the time of the grant of such Option, owns stock representing more than
10% of the voting power of all classes of stock of the Company or any Affiliate,
the per Share Exercise Price shall be no less than 110% of the Fair Market Value
per Share on the date of the grant.  Options are intended to qualify
as “qualified performance-based compensation” under Section 162(m) of the
Code.

       

      
        
          
          

        

        
          -11-

        

        
          
          

        

      

      


      (iii)  Vesting and
Exercise.  Each Option shall be vested and exercisable at such
times, in such manner and subject to such terms and conditions as the Committee
may, in its sole and plenary discretion, specify in the applicable Award
Agreement or thereafter.  Except as otherwise specified by the
Committee in the applicable Award Agreement, an Option may only be exercised to
the extent that it has already vested at the time of exercise.  Except
as otherwise specified by the Committee in the Award Agreement, Options shall
become vested and exercisable with respect to one-fourth of the Shares subject
to such Options on each of the first four anniversaries of the date of
grant.  An Option shall be deemed to be exercised when written or
electronic notice of such exercise has been given to the Company in accordance
with the terms of the Award by the person entitled to exercise the Award and
full payment pursuant to Section 6(b)(iv) for the Shares with respect to which
the Award is exercised has been received by the Company.  Exercise of
an Option in any manner shall result in a decrease in the number of Shares that
thereafter may be available for sale under the Option and, except as expressly
set forth in Section 4(c), in the number of Shares that may be available for
purposes of the Plan, by the number of Shares as to which the Option is
exercised.  The Committee may impose such conditions with respect to
the exercise of Options, including, without limitation, any relating to the
application of Federal or state securities laws, as it may deem necessary or
advisable.

       

      (iv)  Payment.  i)No
Shares shall be delivered pursuant to any exercise of an Option until payment in
full of the aggregate Exercise Price therefor is received by the Company, and
the Participant has paid to the Company an amount equal to any Federal, state,
local and foreign income and employment taxes required to be
withheld.  Such payments may be made in cash (or its equivalent) or,
in the Committee’s sole and plenary discretion, (1) by exchanging Shares
owned by the Participant (which are not the subject of any pledge or other
security interest) or (2) if there shall be a public market for the Shares
at such time, subject to such rules as may be established by the Committee,
through delivery of irrevocable instructions to a broker to sell the Shares
otherwise deliverable upon the exercise of the Option and to deliver promptly to
the Company an amount equal to the aggregate Exercise Price, or by a combination
of the foregoing; provided that the
combined value of all cash and cash equivalents and the Fair Market Value of any
such Shares so tendered to the Company as of the date of such tender is at least
equal to such aggregate Exercise Price and the amount of any Federal, state,
local or foreign income or employment taxes required to be
withheld.

       

      (B)  Wherever
in the Plan or any Award Agreement a Participant is permitted to pay the
Exercise Price of an Option or taxes relating to the exercise of an Option by
delivering Shares, the Participant may, subject to procedures satisfactory to
the Committee, satisfy such delivery requirement by presenting proof of
beneficial ownership of such Shares, in which case the Company shall treat the
Option as exercised

       

      
        
          
          

        

        
          -12-

          
          

        

        
          
          

        

      

      


      without
further payment and shall withhold such number of Shares from the Shares
acquired by the exercise of the Option.

       

      (v)  Expiration.  Except
as otherwise set forth in the applicable Award Agreement, each Option shall
expire immediately, without any payment, upon the earlier of (A) the tenth
anniversary of the date the Option is granted and (B) either (x) 180
days after the date the Participant who is holding the Option ceases to be a
director, officer, employee or consultant of the Company or one of its
Affiliates for any reason other than the Participant's death or (y) six
months after the date the Participant who is holding the Option ceases to be a
director, officer, employee or consultant of the Company or one of its
Affiliates by reason of the Participant's death.  In no event may an
Option be exercisable after the tenth anniversary of the date the Option is
granted.

       

      (c)  SARs.  f)Grant.  Subject
to the provisions of the Plan, the Committee shall have sole and plenary
authority to determine the Participants to whom SARs shall be granted, the
number of Shares to be covered by each SAR, the Exercise Price thereof and the
conditions and limitations applicable to the exercise thereof.  SARs
may be granted in tandem with another Award, in addition to another Award or
freestanding and unrelated to another Award.  SARs granted in tandem
with, or in addition to, an Award may be granted either at the same time as the
Award or at a later time.

       

      (ii)  Exercise
Price.  Except as otherwise established by the Committee at the
time a SAR is granted and set forth in the applicable Award Agreement, the
Exercise Price of each Share covered by a SAR shall be not less than 100% of the
Fair Market Value of such Share (determined as of the date the SAR is
granted).  SARs are intended to qualify as “qualified
performance-based compensation” under Section 162(m) of the
Code.

       

      (iii)  Exercise.  A
SAR shall entitle the Participant to receive an amount equal to the excess, if
any, of the Fair Market Value of a Share on the date of exercise of the SAR over
the Exercise Price thereof.  The Committee shall determine, in its
sole and plenary discretion, whether a SAR shall be settled in cash, Shares,
other securities, other Awards, other property or a combination of any of the
foregoing.

       

      (iv)  Other Terms and
Conditions.  Subject to the terms of the Plan and any
applicable Award Agreement, the Committee shall determine, at or after the grant
of a SAR, the vesting criteria, term, methods of exercise, methods and form of
settlement and any other terms and conditions of any SAR.  Any such
determination by the Committee may be changed by the Committee from time to time
and may govern the exercise of SARs granted or exercised
thereafter.  The Committee may impose such conditions or restrictions
on the exercise of any SAR as it shall deem appropriate or
desirable.

       

      
        
          
          

        

        
          -13-

          
          

        

        
          
          

        

      

      (d)  Restricted Shares and
RSUs.  g)Grant.  Subject
to the provisions of the Plan, the Committee shall have sole and plenary
authority to determine the Participants to whom Restricted Shares and RSUs shall
be granted, the number of Restricted Shares and RSUs to be granted to each
Participant, the duration of the period during which, and the conditions, if
any, under which, the Restricted Shares and RSUs may vest or may be forfeited to
the Company and the other terms and conditions of such Awards.

       

      (ii)  Transfer
Restrictions.  Restricted Shares and RSUs may not be sold,
assigned, transferred, pledged or otherwise encumbered except as provided in the
Plan or as may be provided in the applicable Award Agreement; provided, however, that the
Committee may in its discretion determine that Restricted Shares and RSUs may be
transferred by the Participant.  Certificates issued in respect of
Restricted Shares shall be registered in the name of the Participant and
deposited by such Participant, together with a stock power endorsed in blank,
with the Company or such other custodian as may be designated by the Committee
or the Company, and shall be held by the Company or other custodian, as
applicable, until such time as the restrictions applicable to such Restricted
Shares lapse.  Upon the lapse of the restrictions applicable to such
Restricted Shares, the Company or other custodian, as applicable, shall deliver
such certificates to the Participant or the Participant’s legal
representative.

       

      (iii)  Payment/Lapse of
Restrictions.  Each RSU shall be granted with respect to one
Share or shall have a value equal to the Fair Market Value of one
Share.  RSUs shall be paid in cash, Shares, other securities, other
Awards or other property, as determined in the sole and plenary discretion of
the Committee, upon the lapse of restrictions applicable thereto, or otherwise
in accordance with the applicable Award Agreement.  If a Restricted
Share or an RSU is intended to qualify as “qualified performance-based
compensation” under Section 162(m) of the Code, all requirements set forth in
Section 6(i) must be satisfied in order for the restrictions applicable thereto
to lapse.

       

      (e)  Performance
Units.  i)Grant.  Subject
to the provisions of the Plan, the Committee shall have sole and plenary
authority to determine the Participants to whom Performance Units shall be
granted and the terms and conditions thereof.

       

      (ii)  Value of Performance
Units.  Each Performance Unit shall have an initial value that
is established by the Committee at the time of grant.  The Committee
shall set Performance Goals in its discretion which, depending on the extent to
which they are met during a Performance Period, will determine the number and
value of Performance Units that will be paid out to the
Participant.

       

      
        
          
          

        

        
          -14-

          
          

        

        
          
          

        

      

      (iii)  Earning of Performance
Units.  Subject to the provisions of the Plan, after the
applicable Performance Period has ended, the holder of Performance Units shall
be entitled to receive a payout of the number and value of Performance Units
earned by the Participant over the Performance Period, to be determined by the
Committee, in its sole and plenary discretion, as a function of the extent to
which the corresponding Performance Goals have been achieved.

       

      (iv)  Form and Timing of Payment
of Performance Units.  Subject to the provisions of the Plan,
the Committee, in its sole and plenary discretion, may pay earned Performance
Units in the form of cash or in Shares (or in a combination thereof) that has an
aggregate Fair Market Value equal to the value of the earned Performance Units
at the close of the applicable Performance Period.  Such Shares may be
granted subject to any restrictions in the applicable Award Agreement deemed
appropriate by the Committee.  The determination of the Committee with
respect to the form and timing of payout of such Awards shall be set forth in
the applicable Award Agreement.  If a Performance Unit is intended to
qualify as “qualified performance-based compensation” under Section 162(m) of
the Code, all requirements set forth in Section 6(i) must be satisfied in order
for a Participant to be entitled to payment.

       

      (f)  Cash Incentive
Awards.  Subject to the provisions of the Plan, the Committee,
in its sole and plenary discretion, shall have the authority to grant Cash
Incentive Awards.  The Committee shall establish Cash Incentive Award
levels to determine the amount of a Cash Incentive Award payable upon the
attainment of Performance Goals.  If a Cash Incentive Award is
intended to qualify as “qualified performance-based compensation” under Section
162(m) of the Code, all requirements set forth in Section 6(i) must be satisfied
in order for a Participant to be entitled to payment.

       

      (g)  Other Stock-Based
Awards.  Subject to the provisions of the Plan, the Committee
shall have the sole and plenary authority to grant to Participants other
equity-based or equity-related Awards (including, but not limited to,
fully-vested Shares) in such amounts and subject to such terms and conditions as
the Committee shall determine.  If such an Award is intended to
qualify as “qualified performance-based compensation” under Section 162(m) of
the Code, all requirements set forth in Section 6(i) must be satisfied in order
for a Participant to be entitled to payment.

       

      (h)  Dividend
Equivalents.  In the sole and plenary discretion of the
Committee, an Award, other than an Option, SAR or Cash Incentive Award, may
provide the Participant with dividends or dividend equivalents, payable in cash,
Shares, other securities, other Awards or other property, on a current or
deferred basis, on such terms and conditions as may be determined by the
Committee in its sole and plenary discretion, including, without limitation,
payment directly to the Participant, withholding of such amounts by the Company
subject to vesting of the Award or reinvestment in additional Shares, Restricted
Shares or other Awards.

       

      
        
          
          

        

        
          -15-

          
          

        

        
          
          

        

      

      (i)  Performance Compensation
Awards.  ii) General.  The
Committee shall have the authority, at the time of grant of any Award, to
designate such Award (other than Options and SARs) as a Performance Compensation
Award in order to qualify such Award as “qualified performance-based
compensation” under Section 162(m) of the Code.  Options and SARs
granted under the Plan shall not be included among Awards that are designated as
Performance Compensation Awards under this Section 6(i).

       

      (ii)  Eligibility.  The
Committee shall, in its sole discretion, designate within the first 90 days
of a Performance Period (or, if shorter, within the maximum period allowed under
Section 162(m) of the Code) which Participants will be eligible to receive
Performance Compensation Awards in respect of such Performance
Period.  However, designation of a Participant eligible to receive an
Award hereunder for a Performance Period shall not in any manner entitle the
Participant to receive payment in respect of any Performance Compensation Award
for such Performance Period.  The determination as to whether or not
such Participant becomes entitled to payment in respect of any Performance
Compensation Award shall be decided solely in accordance with the provisions of
this Section 6(i).  Moreover, designation of a Participant
eligible to receive an Award hereunder for a particular Performance Period shall
not require designation of such Participant eligible to receive an Award
hereunder in any subsequent Performance Period and designation of one person as
a Participant eligible to receive an Award hereunder shall not require
designation of any other person as a Participant eligible to receive an Award
hereunder in such period or in any other period.

       

      (iii)  Discretion of Committee with
Respect to Performance Compensation Awards.  With regard to a
particular Performance Period, the Committee shall have full discretion to
select the length of such Performance Period, the types of Performance
Compensation Awards to be issued, the Performance Criteria that will be used to
establish the Performance Goals, the kinds and levels of the Performance Goals
that are to apply to the Company or any of its Subsidiaries, Affiliates,
divisions or operational units, or any combination of the foregoing, and the
Performance Formula.  Within the first 90 days of a Performance Period
(or, if shorter, within the maximum period allowed under Section 162(m) of the
Code), the Committee shall, with regard to the Performance Compensation Awards
to be issued for such Performance Period, exercise its discretion with respect
to each of the matters enumerated in the immediately preceding sentence and
record the same in writing.

       

      
        
          
          

        

        
          -16-

          
          

        

        
          
          

        

      

      (iv)  Performance
Criteria.  Notwithstanding the foregoing, the Performance
Criteria that will be used to establish the Performance Goals shall be based on
the attainment of specific levels of performance of the Company or any of its
Subsidiaries, Affiliates, divisions or operational units, or any combination of
the foregoing, and shall be limited to the following:  (A) net
income before or after taxes, (B) earnings before or after taxes (including
earnings before interest, taxes, depreciation and amortization),
(C) operating income, (D) earnings per share, (E) return on
shareholders’ equity, (F) return on investment or capital, (G) return
on assets, (H) level or amount of acquisitions, (I) share price,
(J) profitability and profit margins, (K) market share (in the
aggregate or by segment), (L) revenues or sales (based on units or
dollars), (M) costs, (N) cash flow, (O) working capital, (P) cost
per watt, (Q) megawatts produced, (R) watts per module, (S) conversion
efficiency, (T) modules produced (U) produced production throughput
rates, (V) bill of material costs, (W) production yields,
(X) production expansion build and ramp times, (Y) module field
performance, (Z) average sales price, (AA) budgeted expenses
(operating and capital), (BB) inventory turns and (CC) accounts
receivable levels.  Such performance criteria may be applied on an
absolute basis and/or be relative to one or more peer companies of the Company
or indices or any combination thereof.  To the extent required under
Section 162(m) of the Code, the Committee shall, within the first 90 days
of the applicable Performance Period (or, if shorter, within the maximum period
allowed under Section 162(m) of the Code), define in an objective manner the
method of calculating the Performance Criteria it selects to use for such
Performance Period.

       

      (v)  Modification of Performance
Goals.  The Committee is authorized at any time during the
first 90 days of a Performance Period (or, if shorter, within the maximum period
allowed under Section 162(m) of the Code), or any time thereafter (but only
to the extent the exercise of such authority after such 90-day period (or such
shorter period, if applicable) would not cause the Performance Compensation
Awards granted to any Participant for the Performance Period to fail to qualify
as “qualified performance-based compensation” under Section 162(m) of the
Code), in its sole and plenary discretion, to adjust or modify the calculation
of a Performance Goal for such Performance Period to the extent permitted under
Section 162(m) of the Code (A) in the event of, or in anticipation of, any
unusual or extraordinary corporate item, transaction, event or development
affecting the Company or any of its Affiliates, Subsidiaries, divisions or
operating units (to the extent applicable to such Performance Goal) or (B) in
recognition of, or in anticipation of, any other unusual or nonrecurring events
affecting the Company or any of its Affiliates, Subsidiaries, divisions or
operating units (to the extent applicable to such Performance Goal), or the
financial statements of the Company or any of its Affiliates, Subsidiaries,
divisions or operating units (to the extent applicable to such Performance
Goal), or of changes in applicable rules, rulings, regulations or other
requirements of any governmental body or securities exchange, accounting
principles, law or business conditions.

       

      
        
          
          

        

        
          -17-

          
          

        

        
          
          

        

      

      (vi)  Payment of Performance
Compensation Awards.  (1)Condition to Receipt of
Payment.  A Participant must be employed by the Company on the
last day of a Performance Period to be eligible for payment in respect of a
Performance Compensation Award for such Performance
Period.  Notwithstanding the foregoing, in the discretion of the
Committee, Performance Compensation Awards may be paid to Participants who have
retired or whose employment has terminated prior to the last day of the
Performance Period for which a Performance Compensation Award is made or to the
designee or estate of a Participant who died prior to the last day of a
Performance Period.

       

      (B)  Limitation.  A
Participant shall be eligible to receive payments in respect of a Performance
Compensation Award only to the extent that (1) the Performance Goals for
such period are achieved and certified by the Committee in accordance with
Section 6(i)(vi)(C) and (2) the Performance Formula as applied against
such Performance Goals determines that all or some portion of such Participant’s
Performance Compensation Award has been earned for the Performance
Period.

       

      (C)  Certification.  Following
the completion of a Performance Period, the Committee shall meet to review and
certify in writing whether, and to what extent, the Performance Goals for the
Performance Period have been achieved and, if so, to calculate and certify in
writing that amount of the Performance Compensation Awards earned for the period
based upon the Performance Formula.  The Committee shall then
determine the actual size of each Participant’s Performance Compensation Award
for the Performance Period and, in so doing, may apply negative discretion as
authorized by Section 6(i)(vi)(D).

       

      (D)  Negative
Discretion.  In determining the actual size of an individual
Performance Compensation Award for a Performance Period, the Committee may, in
its sole and plenary discretion, reduce or eliminate the amount of the Award
earned in the Performance Period, even if applicable Performance Goals have been
attained.

       

      (E)  Timing of Award
Payments.  The Performance Compensation Awards granted for a
Performance Period shall be paid to Participants as soon as administratively
possible following completion of the certifications required by
Section 6(i)(vi)(C), unless the Committee shall determine that any
Performance Compensation Award shall be deferred.

       

      (F)  Discretion. In no event shall any
discretionary authority granted to the Committee by the Plan be used to
(1) grant or provide payment in respect of Performance Compensation Awards
for a Performance Period if the Performance Goals for such Performance Period
have not been attained, (2) increase a Performance Compensation Award for any
Participant at any time after the first 90 days of the Performance Period (or,
if shorter, the maximum period allowed under Section 162(m)) or
(3) increase a Performance Compensation Award above the maximum amount
payable under Section 4(a) of the Plan.

       

      
        
          
          

        

        
          -18-

          
          

        

        
          
          

        

      

      SECTION
7.  Amendment and
Termination.  h)Amendments to the
Plan.  Subject to any applicable law or government regulation,
to any requirement that must be satisfied if the Plan is intended to be a
shareholder approved plan for purposes of Section 162(m) of the Code and to the
rules of NASDAQ or any successor exchange or quotation system on which the
Shares may be listed or quoted, the Plan may be amended, modified or terminated
by the Board without the approval of the stockholders of the Company except that
stockholder approval shall be required for any amendment that would
(i) increase the maximum number of Shares for which Awards may be granted
under the Plan or increase the maximum number of Shares that may be delivered
pursuant to Incentive Stock Options granted under the Plan; provided, however, that any
adjustment under Section 4(b) shall not constitute an increase for purposes of
this Section 7(a) or (ii) change the class of employees or other
individuals eligible to participate in the Plan.  No modification,
amendment or termination of the Plan may, without the consent of the Participant
to whom any Award shall theretofor have been granted, materially and adversely
affect the rights of such Participant (or his or her transferee) under such
Award, unless otherwise provided by the Committee in the applicable Award
Agreement.

       

      (b)  Amendments to
Awards.  The Committee may waive any conditions or rights
under, amend any terms of, or alter, suspend, discontinue, cancel or terminate
any Award theretofor granted, prospectively or retroactively; provided, however, that, except
as set forth in the Plan, unless otherwise provided by the Committee in the
applicable Award Agreement, any such waiver, amendment, alteration, suspension,
discontinuance, cancelation or termination that would materially and adversely
impair the rights of any Participant or any holder or beneficiary of any Award
theretofor granted shall not to that extent be effective without the consent of
the impaired Participant, holder or beneficiary.

       

      (c)  Adjustment of Awards Upon
the Occurrence of Certain Unusual or Nonrecurring Events.  The
Committee is hereby authorized to make adjustments in the terms and conditions
of, and the criteria included in, Awards in recognition of unusual or
nonrecurring events (including, without limitation, the events described in
Section 4(b) or the occurrence of a Change of Control) affecting the
Company, any Affiliate, or the financial statements of the Company or any
Affiliate, or of changes in applicable rules, rulings, regulations or other
requirements of any governmental body or securities exchange, accounting
principles or law (i) whenever the Committee, in its sole and plenary
discretion, determines that such adjustments are appropriate or desirable,
including, without limitation, providing for a substitution or assumption of
Awards, accelerating the exercisability of, lapse of restrictions on, or
termination of, Awards or providing for a period of time for exercise prior to
the occurrence of such event, (ii) if deemed appropriate or desirable by
the Committee, in its sole and plenary discretion, by providing for a cash
payment to the holder of an Award in consideration for the cancelation of such
Award, including, in the case of an outstanding Option or SAR, a cash payment to
the holder of such Option or SAR in consideration for the cancelation of such
Option or SAR in an amount equal to the excess, if any, of the Fair Market Value
(as of a date specified by the Committee) of the Shares subject to such Option
or SAR over the aggregate Exercise Price of such Option or SAR and (iii) if
deemed appropriate or desirable by the Committee, in its sole and plenary
discretion, by canceling and terminating any Option or SAR having a per Share
Exercise Price equal to, or in excess of, the Fair Market Value of a Share
subject to such Option or SAR without any payment or consideration
therefor.

       

      
        
          
          

        

        
          -19-

          
          

        

        
          
          

        

      

      SECTION
8.  Change
of Control.  Unless otherwise provided in the applicable Award
Agreement, in the event of a Change of Control after the date of the adoption of
the Plan, unless provision is made in connection with the Change of Control for
(a) assumption of Awards previously granted or (b) substitution for such Awards
of new awards covering stock of a successor corporation or its “parent
corporation” (as defined in Section 424(e) of the Code) or “subsidiary
corporation” (as defined in Section 424(f) of the Code) with appropriate
adjustments as to the number and kinds of shares and the Exercise Prices, if
applicable, (i) any outstanding Options or SARs then held by Participants that
are unexercisable or otherwise unvested shall automatically be deemed
exercisable or otherwise vested, as the case may be, as of immediately prior to
such Change of Control, (ii) all Performance Units and Cash Incentive
Awards shall be paid out as if the date of the Change of Control were the last
day of the applicable Performance Period and “target” performance levels had
been attained and (iii) all other outstanding Awards (i.e., other than
Options, SARs, Performance Units and Cash Incentive Awards) then held by
Participants that are unexercisable, unvested or still subject to restrictions
or forfeiture, shall automatically be deemed exercisable and vested and all
restrictions and forfeiture provisions related thereto shall lapse as of
immediately prior to such Change of Control.

       

      SECTION
9.  General
Provisions.  2)Nontransferability.  Except
as otherwise specified in the applicable Award Agreement, during the
Participant’s lifetime each Award (and any rights and obligations thereunder)
shall be exercisable only by the Participant, or, if permissible under
applicable law, by the Participant’s legal guardian or representative, and no
Award (or any rights and obligations thereunder) may be assigned, alienated,
pledged, attached, sold or otherwise transferred or encumbered by a Participant
otherwise than by will or by the laws of descent and distribution, and any such
purported assignment, alienation, pledge, attachment, sale, transfer or
encumbrance shall be void and unenforceable against the Company or any
Affiliate; provided that (i) the
designation of a beneficiary shall not constitute an assignment, alienation,
pledge, attachment, sale, transfer or encumbrance and (ii) the Board or the
Committee may permit further transferability, on a general or specific basis,
and may impose conditions and limitations on any permitted transferability;
provided, however, that
Incentive Stock Options granted under the Plan shall not be transferable in any
way that would violate Section 1.422-2(a)(2) of the Treasury
Regulations.  All terms and conditions of the Plan and all Award
Agreements shall be binding upon any permitted successors and
assigns.

       

      
        
          
          

        

        
          -20-

          
          

        

        
          
          

        

      

      (b)  No Rights to
Awards.  No Participant or other Person shall have any claim to
be granted any Award, and there is no obligation for uniformity of treatment of
Participants or holders or beneficiaries of Awards.  The terms and
conditions of Awards and the Committee’s determinations and interpretations with
respect thereto need not be the same with respect to each Participant and may be
made selectively among Participants, whether or not such Participants are
similarly situated.

       

      (c)  Share
Certificates.  All certificates for Shares or other securities
of the Company or any Affiliate delivered under the Plan pursuant to any Award
or the exercise thereof shall be subject to such stop transfer orders and other
restrictions as the Committee may deem advisable under the Plan, the applicable
Award Agreement or the rules, regulations and other requirements of the SEC,
NASDAQ or any other stock exchange or quotation system upon which such Shares or
other securities are then listed or reported and any applicable Federal or state
laws, and the Committee may cause a legend or legends to be put on any such
certificates to make appropriate reference to such restrictions.

       

      (d)  Withholding.  A
Participant may be required to pay to the Company or any Affiliate, and the
Company or any Affiliate shall have the right and is hereby authorized to
withhold from any Award, from any payment due or transfer made under any Award
or under the Plan or from any compensation or other amount owing to a
Participant, the amount (in cash, Shares, other securities, other Awards or
other property) of any applicable withholding taxes in respect of an Award, its
exercise or any payment or transfer under an Award or under the Plan and to take
such other action as may be necessary in the opinion of the Committee or the
Company to satisfy all obligations for the payment of such taxes.

       

      (e)  Award
Agreements.  Each Award hereunder shall be evidenced by an
Award Agreement, which shall be delivered to the Participant and shall specify
the terms and conditions of the Award and any rules applicable thereto,
including, but not limited to, the effect on such Award of the death, disability
or termination of employment or service of a Participant and the effect, if any,
of such other events as may be determined by the Committee.

       

      
        
          
          

        

        
          -21-

          
          

        

        
          
          

        

      

      (f)  No Limit on Other
Compensation Arrangements.  Nothing contained in the Plan shall
prevent the Company or any Affiliate from adopting or continuing in effect other
compensation arrangements, which may, but need not, provide for the grant of
options, restricted stock, shares and other types of equity-based awards
(subject to stockholder approval if such approval is required), and such
arrangements may be either generally applicable or applicable only in specific
cases.

       

      (g)  No Right to
Employment.  The grant of an Award shall not be construed as
giving a Participant the right to be retained as a director, officer, employee
or consultant of or to the Company or any Affiliate, nor shall it be construed
as giving a Participant any rights to continued service on the
Board.  Further, the Company or an Affiliate may at any time dismiss a
Participant from employment or discontinue any consulting relationship, free
from any liability or any claim under the Plan, unless otherwise expressly
provided in the Plan or in any Award Agreement.

       

      (h)  No Rights as
Stockholder.  No Participant or holder or beneficiary of any
Award shall have any rights as a stockholder with respect to any Shares to be
distributed under the Plan until he or she has become the holder of such
Shares.  In connection with each grant of Restricted Shares, except as
provided in the applicable Award Agreement, the Participant shall not be
entitled to the rights of a stockholder in respect of such Restricted
Shares.  Except as otherwise provided in Section 4(b), Section 7(c) or
the applicable Award Agreement, no adjustments shall be made for dividends or
distributions on (whether ordinary or extraordinary, and whether in cash,
Shares, other securities or other property), or other events relating to, Shares
subject to an Award for which the record date is prior to the date such Shares
are delivered.

       

      (i)  Governing
Law.  The validity, construction and effect of the Plan and any
rules and regulations relating to the Plan and any Award Agreement shall be
determined in accordance with the laws of the State of Delaware, without giving
effect to the conflict of laws provisions thereof.

       

      (j)  Severability.  If
any provision of the Plan or any Award is or becomes or is deemed to be invalid,
illegal or unenforceable in any jurisdiction or as to any Person or Award, or
would disqualify the Plan or any Award under any law deemed applicable by the
Committee, such provision shall be construed or deemed amended to conform to the
applicable laws, or if it cannot be construed or deemed amended without, in the
determination of the Committee, materially altering the intent of the Plan or
the Award, such provision shall be construed or deemed stricken as to such
jurisdiction, Person or Award and the remainder of the Plan and any such Award
shall remain in full force and effect.

       

      
        
          
          

        

        
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      (k)  Other
Laws.  The Committee may refuse to issue or transfer any Shares
or other consideration under an Award if, acting in its sole and plenary
discretion, it determines that the issuance or transfer of such Shares or such
other consideration might violate any applicable law or regulation or entitle
the Company to recover the same under Section 16(b) of the Exchange Act,
and any payment tendered to the Company by a Participant, other holder or
beneficiary in connection with the exercise of such Award shall be promptly
refunded to the relevant Participant, holder or beneficiary.  Without
limiting the generality of the foregoing, no Award granted hereunder shall be
construed as an offer to sell securities of the Company, and no such offer shall
be outstanding, unless and until the Committee in its sole and plenary
discretion has determined that any such offer, if made, would be in compliance
with all applicable requirements of the U.S. Federal and any other applicable
securities laws.

       

      (l)  No Trust or Fund
Created.  Neither the Plan nor any Award shall create or be
construed to create a trust or separate fund of any kind or a fiduciary
relationship between the Company or any Affiliate, on one hand, and a
Participant or any other Person, on the other hand.  To the extent
that any Person acquires a right to receive payments from the Company or any
Affiliate pursuant to an Award, such right shall be no greater than the right of
any unsecured general creditor of the Company or such Affiliate.

       

      (m)  No Fractional
Shares.  No fractional Shares shall be issued or delivered
pursuant to the Plan or any Award, and the Committee shall determine whether
cash, other securities or other property shall be paid or transferred in lieu of
any fractional Shares or whether such fractional Shares or any rights thereto
shall be canceled, terminated or otherwise eliminated.

       

      (n)  Requirement of Consent and
Notification of Election Under Section 83(b) of the Code or Similar
Provision.  No election under Section 83(b) of the Code (to
include in gross income in the year of transfer the amounts specified in
Section 83(b) of the Code) or under a similar provision of law may be made
unless expressly permitted by the terms of the applicable Award Agreement or by
action of the Committee in writing prior to the making of such
election.  If an Award recipient, in connection with the acquisition
of Shares under the Plan or otherwise, is expressly permitted under the terms of
the applicable Award Agreement or by such Committee action to make such an
election and the Participant makes the election, the Participant shall notify
the Committee of such election within ten days of filing notice of the election
with the IRS or other governmental authority, in addition to any filing and
notification required pursuant to regulations issued under Section 83(b) of
the Code or other applicable provision.

       

      (o)  Requirement of Notification
Upon Disqualifying Disposition Under Section 421(b) of the
Code.  If any Participant shall make any disposition of Shares
delivered pursuant to the exercise of an Incentive Stock Option under the
circumstances described in Section 421(b) of the Code (relating to certain
disqualifying dispositions) or any successor provision of the Code, such
Participant shall notify the Company of such disposition within ten days of such
disposition.

       

      
        
          
          

        

        
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      (p)  Headings.  Headings
are given to the Sections and subsections of the Plan solely as a convenience to
facilitate reference. Such headings shall not be deemed in any way material or
relevant to the construction or interpretation of the Plan or any provision
thereof.

       

      SECTION
10.  Term of
the Plan.  a)Effective
Date.  The Plan shall be effective as of the date of its
adoption by the Board and approval by the Company's stockholders; provided, however, that no
Incentive Stock Options may be granted under the Plan unless it is approved by
the Company’s stockholders within twelve (12) months before or after the date
the Plan is adopted by the Board.

       

      (b)  Expiration
Date.  No Award shall be granted under the Plan after the tenth
anniversary of the date the Plan is approved under Section
10(a).  Unless otherwise expressly provided in the Plan or in an
applicable Award Agreement, any Award granted hereunder may, and the authority
of the Board or the Committee to amend, alter, adjust, suspend, discontinue or
terminate any such Award or to waive any conditions or rights under any such
Award shall, nevertheless continue thereafter.

       

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