Exhibit 10.2


 


OPENTABLE, INC.

2009 EQUITY INCENTIVE AWARD PLAN


 


ARTICLE 1.


 


PURPOSE


 


The
purpose of the OpenTable, Inc. 2009 Equity Incentive Award Plan (the “Plan”)
is to promote the success and enhance the value of OpenTable, Inc. (the “Company”)
by linking the personal interests of the members of the Board, Employees, and
Consultants to those of Company stockholders and by providing such individuals
with an incentive for outstanding performance to generate superior returns to
Company stockholders.  The Plan is
further intended to provide flexibility to the Company in its ability to
motivate, attract, and retain the services of members of the Board, Employees,
and Consultants upon whose judgment, interest, and special effort the
successful conduct of the Company’s operation is largely dependent.


 


ARTICLE 2.


 


DEFINITIONS AND CONSTRUCTION


 


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


 


2.1           “Administrator”
shall mean the entity that conducts the general administration of the Plan as
provided in Article 13.  With reference
to the duties of the Committee under the Plan which have been delegated to one
or more persons pursuant to Section 13.6, or as to which the Board has assumed,
the term “Administrator” shall refer to such person(s) unless the Committee or
the Board has revoked such delegation or the Board has terminated the
assumption of such duties.


 


2.2           “Award”
shall mean an Option, a Restricted Stock award, a Restricted Stock Unit award,
a Performance Award, a Dividend Equivalents award, a Deferred Stock award,
a  Stock Payment award or a  Stock Appreciation Right, which may be
awarded or granted under the Plan (collectively, “Awards”).


 


2.3           “Award
Agreement” shall mean any written notice, agreement, terms and conditions,
contract or other instrument or document evidencing an Award, including through
electronic medium, which shall contain such terms and conditions with respect
to an Award as the Administrator shall determine consistent with the Plan.


 


2.4           “Award
Limit” shall mean with respect to Awards that shall be payable in shares of
Common Stock or in cash, as the case may be, the respective limit set forth in Section
3.3.


 


2.5           “Board”
shall mean the Board of Directors of the Company.


 

















 


2.6           “Change
in Control” shall mean and includes each of the following:


 


(a)           A
transaction or series of transactions (other than an offering of Common Stock
to the general public through a registration statement filed with the
Securities and Exchange Commission) whereby any “person” or related “group” of “persons”
(as such terms are used in Sections 13(d) and 14(d)(2) of the Exchange Act)
(other than the Company, any of its subsidiaries, an employee benefit plan
maintained by the Company or any of its subsidiaries or a “person” that, prior
to such transaction, directly or indirectly controls, is controlled by, or is
under common control with, the Company) directly or indirectly acquires
beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act)
of securities of the Company possessing more than 50% of the total combined
voting power of the Company’s securities outstanding immediately after such
acquisition; or


 


(b)           During
any period of two consecutive years, individuals who, at the beginning of such
period, constitute the Board together with any new director(s) (other than a
director designated by a person who shall have entered into an agreement with
the Company to effect a transaction described in Section 2.6(a) or Section 2.6(c))
whose election by the Board or nomination for election by the Company’s
stockholders was approved by a vote of at least two-thirds of the directors
then still in office who either were directors at the beginning of the two-year
period or whose election or nomination for election was previously so approved,
cease for any reason to constitute a majority thereof; or


 


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


 


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


 


(ii)           After which no person or group beneficially owns voting
securities representing 50% or more of the combined voting power of the
Successor Entity; provided, however,
that no person or group shall be treated for purposes of this Section 2.6(c)(ii)
as beneficially owning 50% or more of combined voting power of the Successor
Entity solely as a result of the voting power held in the Company prior to the
consummation of the transaction; or


 


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


 

















 


In
addition, if a Change in Control constitutes a payment event with respect to
any Award which provides for the deferral of compensation and is subject to Section
409A of the Code, the transaction or event described in subsection (a), (b), (c)
or (d) with respect to such Award must also constitute a “change in control
event,” as defined in Treasury Regulation §1.409A-3(i)(5) to the extent
required by Section 409A.


 


The
Committee shall have full and final authority, which shall be exercised in its
discretion, to determine conclusively whether a Change in Control of the
Company has occurred pursuant to the above definition, and the date of the
occurrence of such Change in Control and any incidental matters relating
thereto.


 


2.7           “Code”
shall mean the Internal Revenue Code of 1986, as amended from time to time.


 


2.8           “Committee”
shall mean the Compensation Committee of the Board, or another committee or
subcommittee of the Board, appointed as provided in Section 13.1.


 


2.9           “Common
Stock” shall mean the common stock of the Company, par value $0.0001 per
share.


 


2.10         “Company”
shall mean OpenTable, Inc., a Delaware corporation.


 


2.11         “Consultant”
shall mean any consultant or adviser engaged to provide services to the Company
or any Subsidiary that qualifies as a consultant under the applicable rules of
the Securities and Exchange Commission for registration of shares on a Form S-8
Registration Statement.


 


2.12         “Covered
Employee” shall mean any Employee who is, or could be, a “covered employee”
within the meaning of Section 162(m) of the Code.


 


2.13         “Deferred
Stock” shall mean a right to receive Common Stock awarded under Section 9.4.


 


2.14         “Director”
shall mean a member of the Board, as constituted from time to time.


 


2.15         “Dividend
Equivalent” shall mean a right to receive the equivalent value (in cash or
Common Stock) of dividends paid on Common Stock, awarded under Section 9.2.


 


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


 


2.17         “Effective
Date” shall mean the date the Plan is approved by the Board, subject to
approval of the Plan by the Company’s stockholders.


 


2.18         “Eligible
Individual” shall mean any person who is an Employee, a Consultant or a
Non-Employee Director, as determined by the Committee.


 

















 


2.19         “Employee”
shall mean any officer or other employee (as determined in accordance with Section
3401(c) of the Code and the Treasury Regulations thereunder) of the Company or
of any Subsidiary.


 


2.20         “Equity Restructuring” shall mean a nonreciprocal
transaction between the Company and its stockholders, such as a stock dividend,
stock split, spin-off, rights offering or recapitalization through a large,
nonrecurring cash dividend, that affects the number or kind of shares of Common
Stock (or other securities of the Company) or the share price of Common Stock
(or other securities) and causes a change in the per share value of the Common
Stock underlying outstanding Awards.


 


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


 


2.22         “Fair
Market Value” shall mean, as of any given date, the value of a share of
Common Stock determined as follows:


 


(a)           If
the Common Stock is listed on any established stock exchange (such as the New
York Stock Exchange, the NASDAQ Global Market and the NASDAQ Global Select
Market) or national market system, its Fair Market Value shall be the closing
sales price for a share of Common Stock as quoted on such exchange or system
for such date or, if there is no closing sales price for a share of Common
Stock on the date in question, the closing sales price for a share of Common
Stock on the last preceding date for which such quotation exists, as reported
in The Wall Street Journal or such other
source as the Administrator deems reliable;


 


(b)           If
the Common Stock is not listed on an established stock exchange or national
market system, but the Common Stock is regularly quoted by a recognized
securities dealer, its Fair Market Value shall be the mean of the high bid and
low asked prices for such date or, if there are no high bid and low asked
prices for a share of Common Stock on such date, the high bid and low asked
prices for a share of Common Stock on the last preceding date for which such
information exists, as reported in The Wall Street Journal
or such other source as the Administrator deems reliable; or


 


(c)           If
the Common Stock is neither listed on an established stock exchange or a
national market system nor regularly quoted by a recognized securities dealer,
its Fair Market Value shall be established by the Administrator in good faith


 


2.23         “Greater
Than 10% Stockholder” shall mean an individual then owning (within the
meaning of Section 424(d) of the Code) more than 10% of the total combined
voting power of all classes of stock of the Company or any subsidiary
corporation (as defined in Section 424(f) of the Code) or parent corporation
thereof (as defined in Section 424(e) of the Code).


 


2.24         “Holder”
shall mean a person who has been granted an Award.


 


2.25         “Incentive
Stock Option” shall mean an Option that is intended to qualify as an
incentive stock option and conforms to the applicable provisions of Section 422
of the Code.


 

















 


2.26         “Non-Employee
Director” shall mean a Director of the Company who is not an Employee.


 


2.27         “Non-Qualified
Stock Option” shall mean an Option that is not an Incentive Stock Option.


 


2.28         “Option”
shall mean a right to purchase shares of Common Stock at a specified exercise
price, granted under Article 6.  An
Option shall be either a Non-Qualified Stock Option or an Incentive Stock
Option; provided, however, that Options granted to Non-Employee
Directors and Consultants shall be Non-Qualified Stock Options.


 


2.29         “Performance
Award” shall mean a cash bonus award, stock bonus award, performance award
or incentive award that is paid in cash, Common Stock or a combination of both,
awarded under Section 9.1.


 


2.30         “Performance-Based
Compensation” shall mean any compensation that is intended to qualify as “performance-based
compensation” as described in Section 162(m)(4)(C) of the Code.


 


2.31         “Performance
Criteria” shall mean the criteria (and adjustments) that the Committee
selects for an Award for purposes of establishing the Performance Goal or
Performance Goals for a Performance Period, determined as follows:


 


(a)           The
Performance Criteria that shall be used to establish Performance Goals are
limited to the following:  (i) net
earnings (either before or after one or more of the following: (A) interest, (B)
taxes, (C) depreciation and (D) amortization), (ii) gross or net sales or
revenue, (iii) net income (either before or after taxes), (iv) operating
earnings or profit, (v) cash flow (including, but not limited to, operating
cash flow and free cash flow), (vi) return on assets, (vii) return on capital, (viii)
return on stockholders’ equity, (ix) return on sales, (x) gross or net profit
or operating margin, (xi) costs, (xii) funds from operations, (xiii) expenses,
(xiv) working capital, (xv) earnings per share, (xvi) price per share of Common
Stock, (xvii) regulatory body approval for commercialization of a product,
(xviii) implementation or completion of critical projects and (xix) market
share, any of which may be measured either in absolute terms or as compared to
any incremental increase or decrease or as compared to results of a peer group
or to market performance indicators or indices.


 


(b)           The
Administrator may, in its sole discretion, provide that one or more objectively
determinable adjustments shall be made to one or more of the Performance
Goals.  Such adjustments may include one
or more of the following:  (i) items
related to a change in accounting principle; (ii) items relating to financing
activities; (iii) expenses for restructuring or productivity initiatives; (iv) other
non-operating items; (v) items related to acquisitions; (vi) items attributable
to the business operations of any entity acquired by the Company during the
Performance Period; (vii) items related to the disposal of a business or
segment of a business; (viii) items related to discontinued operations that do
not qualify as a segment of a business under United States generally accepted
accounting principles (“GAAP”); (ix) items attributable to any stock
dividend, stock split, combination or exchange of shares occurring during the Performance Period; or (x) any other items of
significant income or expense which are 


 

















 


determined
to be appropriate adjustments; (xi) items relating to unusual or extraordinary
corporate transactions, events or developments, (xii)  items related to amortization of acquired
intangible assets; (xiii) items that are outside the scope of the Company’s
core, on-going business activities; or (xiv) items relating to any other
unusual or nonrecurring events or changes in applicable laws, accounting
principles or business conditions.  For
all Awards intended to qualify as Performance-Based Compensation, such
determinations shall be made within the time prescribed by, and otherwise in
compliance with, Section 162(m) of the Code.


 


2.32         “Performance
Goals” shall mean, for a Performance Period, one or more goals established
in writing by the Administrator for the Performance Period based upon one or
more Performance Criteria.  Depending on
the Performance Criteria used to establish such Performance Goals, the
Performance Goals may be expressed in terms of overall Company performance or
the performance of a division, business unit, or an individual.  The achievement of each Performance Goal
shall be determined in accordance with GAAP to the extent applicable.


 


2.33         “Performance
Period” shall mean one or more periods of time, which may be of varying and
overlapping durations, as the Administrator may select, over which the
attainment of one or more Performance Goals will be measured for the purpose of
determining a Holder’s right to, and the payment of, a Performance Award.


 


2.34         “Plan”
shall mean this OpenTable, Inc. 2009 Equity Incentive Award Plan, as it may be
amended or restated from time to time.


 


2.35         “Prior
Plan” shall mean the OpenTable, Inc. Amended and Restated 1999 Stock Plan,
as such plan may be amended from time to time.


 


2.36         “Public
Trading Date” shall mean the first date upon which Common Stock is listed
(or approved for listing) upon notice of issuance on any securities exchange or
designated (or approved for designation) upon notice of issuance as a national
market security on an interdealer quotation system.


 


2.37         “Restricted
Stock” shall mean Common Stock awarded under Article 8 that is subject to
certain restrictions and may be subject to risk of forfeiture or repurchase.


 


2.38         “Restricted
Stock Units” shall mean the right to receive Common Stock awarded under Section
9.5.


 


2.39         “Securities
Act” shall mean the Securities Act of 1933, as amended.


 


2.40         “Stock
Appreciation Right” shall mean a stock appreciation right granted under Article
10.


 


2.41         “Stock
Payment” shall mean (a) a payment in the form of shares of Common Stock, or
(b) an option or other right to purchase shares of Common Stock, as part of a
bonus, deferred compensation or other arrangement, awarded under Section 9.3.


 

















 


2.42         “Subsidiary”
means any entity (other than the Company), whether domestic or foreign, in an
unbroken chain of entities beginning with the Company if each of the entities
other than the last entity in the unbroken chain beneficially owns, at the time
of the determination, securities or interests representing more than fifty
percent (50%) of the total combined voting power of all classes of securities
or interests in one of the other entities in such chain.


 


2.43         “Substitute
Award” shall mean an Award granted under the Plan upon the assumption of,
or in substitution for, outstanding equity awards previously granted by a
company or other entity in connection with a corporate transaction, such as a
merger, combination, consolidation or acquisition of property or stock; provided,
however, that in no event shall the term “Substitute Award” be construed
to refer to an award made in connection with the cancellation and repricing of
an Option or Stock Appreciation Right.


 


2.44         “Termination
of Service” shall mean:


 


(a)           As
to a Consultant, the time when the engagement of a Holder as a Consultant to
the Company or a Subsidiary is terminated for any reason, with or without
cause, including, without limitation, by resignation, discharge, death or
retirement, but excluding terminations where the Consultant simultaneously
commences or remains in employment or service with the Company or any
Subsidiary.


 


(b)           As
to a Non-Employee Director, the time when a Holder who is a Non-Employee
Director ceases to be a Director for any reason, including, without limitation,
a termination by resignation, failure to be elected, death or retirement, but
excluding terminations where the Holder simultaneously commences or remains in
employment or service with the Company or any Subsidiary.


 


(c)           As
to an Employee, the time when the employee-employer relationship between a
Holder and the Company or any Subsidiary is terminated for any reason,
including, without limitation, a termination by resignation, discharge, death,
disability or retirement; but excluding terminations where the Holder
simultaneously commences or remains in employment or service with the Company
or any Subsidiary.


 


The Administrator, in its sole discretion, shall
determine the effect of all matters and questions relating to a Termination of
Service, including, without limitation, the question of whether a Termination
of Service resulted from a discharge for cause and all questions of whether
particular leaves of absence constitute a Termination of Service; provided,
however, that, with respect to Incentive Stock Options, unless the Administrator
otherwise provides in the terms of the Award Agreement or otherwise, a leave of
absence, change in status from an employee to an independent contractor or
other change in the employee-employer relationship shall constitute a
Termination of Service only if, and to the extent that, such leave of absence,
change in status or other change interrupts employment for the purposes of Section
422(a)(2) of the Code and the then applicable regulations and revenue rulings
under said Section.   For purposes of the Plan, a Holder’s employee-employer
relationship or consultancy relations shall be deemed to be terminated in the
event that the Subsidiary employing or contracting with such 


 

















 


Holder ceases to remain a
Subsidiary following any merger,
sale of stock or other corporate transaction or event (including, without
limitation, a spin-off).


 


ARTICLE 3.


 


SHARES SUBJECT TO THE PLAN


 


3.1           Number
of Shares.


 


(a)           Subject
to Section 14.2 and Section 3.1(b) the aggregate number of shares of Stock
which may be issued or transferred pursuant to Awards under the Plan is the sum
of (i) 1,240,104, (ii) any
shares of Stock which as of the Effective Date are available for issuance under
the Prior Plan, or are subject to awards under the Prior Plan which are
forfeited or lapse unexercised and which following the Effective Date are not
issued under the Prior Plan; and (iii) an annual increase on the first day of
each year beginning in 2010 and ending in 2019, equal to the least of (A) 744,063 shares and (B) three percent (3%) of the shares of Stock
outstanding (on an as converted basis) on the last day of the immediately
preceding fiscal year and (C) such smaller number of shares of Stock as
determined by the Board; provided, however,
no more than 8,680,734 shares of
Stock may be issued upon the exercise of Incentive Stock Options.


 


(b)           To
the extent that an Award terminates, expires, or lapses for any reason, or an
Award is settled in cash without the delivery of shares to the Holder, then any
shares of Common Stock subject to the Award shall again be available for the
grant of an Award pursuant to the Plan. 
Any shares of Common Stock tendered or withheld to satisfy the grant or
exercise price or tax withholding obligation pursuant to any Award shall again
be available for the grant of an Award pursuant to the Plan.  Any shares of Common Stock repurchased by the
Company under Section 8.4 at the same price paid by the Holder so that such
shares are returned to the Company will again be available for Awards.  To the extent permitted by applicable law or
any exchange rule, shares of Common Stock issued in assumption of, or in
substitution for, any outstanding awards of any entity acquired in any form of
combination by the Company or any Subsidiary shall not be counted against shares
of Common Stock available for grant pursuant to the Plan.  The payment of Dividend Equivalents in cash
in conjunction with any outstanding Awards shall not be counted against the
shares available for issuance under the Plan. 
Notwithstanding the provisions of this Section 3.1(b), no shares of
Common Stock may again be optioned, granted or awarded if such action would
cause an Incentive Stock Option to fail to qualify as an incentive stock option
under Section 422 of the Code.


 


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


 


3.3           Limitation on Number of Shares Subject to
Awards.  Notwithstanding any
provision in the Plan to the contrary, and subject to Section 14.2, the maximum
aggregate number of shares of Common Stock with respect to one or more Awards
that may be granted to any one person during any calendar year shall be 620,052,
and the maximum aggregate amount of cash that may be paid in cash during any
calendar year with respect to one or more Awards payable in cash shall be
$500,000; provided, however, that the foregoing
limitations shall not 


 

















 


apply prior to the Public Trading
Date and, following the Public Trading Date, the foregoing limitations shall
not apply until the earliest of: (a) the first material modification of the
Plan (including any increase in the number of shares reserved for issuance
under the Plan in accordance with Section 3.1); (b) the issuance of all of the
shares of Common Stock reserved for issuance under the Plan; (c) the expiration
of the Plan; (d) the first meeting of stockholders at which members of the
Board are to be elected that occurs after the close of the third calendar year
following the calendar year in which occurred the first registration of an
equity security of the Company under Section 12 of the Exchange Act; or (e) such
other date required by Section 162(m) of the Code and the rules and regulations
promulgated thereunder. To the extent required by Section 162(m) of the Code,
shares subject to Awards which are canceled shall continue to be counted
against the Award Limit.


 


ARTICLE 4.


 


GRANTING OF AWARDS


 


4.1           Participation.  The Administrator may, from time to time,
select from among all Eligible Individuals, those to whom an Award shall be
granted and shall determine the nature and amount of each Award, which shall
not be inconsistent with the requirements of the Plan.  Except as provided in Article 12 regarding
the automatic grant of options to Non-Employee Directors, no Eligible
Individual shall have any right to be granted an Award pursuant to the Plan.


 


4.2           Award
Agreement.  Each Award shall be
evidenced by an Award Agreement.  Award
Agreements evidencing Awards intended to qualify as Performance-Based
Compensation shall contain such terms and conditions as may be necessary to
meet the applicable provisions of Section 162(m) of the Code.  Award Agreements evidencing Incentive Stock
Options shall contain such terms and conditions as may be necessary to meet the
applicable provisions of Section 422 of the Code.


 


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


 


4.4           At-Will
Employment.  Nothing in the Plan or
in any Award Agreement hereunder shall confer upon any Holder any right to
continue in the employ of, or as a Director or Consultant for, the Company or
any Subsidiary, or shall interfere with or restrict in any way the rights of
the Company and any Subsidiary, which rights are hereby expressly reserved, to
discharge any Holder at any time for any reason whatsoever, with or without
cause, except to the extent expressly provided otherwise in a written agreement
between the Holder and the Company or any Subsidiary.


 

















 


4.5           Foreign
Holders.  Notwithstanding any
provision of the Plan to the contrary, in order to comply with the laws in
other countries in which the Company and its Subsidiaries operate or have
Employees, Non-Employee Directors or Consultants, or in order to comply with
the requirements of any foreign stock exchange, the Administrator, in its sole
discretion, shall have the power and authority to: (a) determine which
Subsidiaries shall be covered by the Plan; (b) determine which Eligible
Individuals outside the United States are eligible to participate in the Plan; (c)
modify the terms and conditions of any Award granted to Eligible Individuals
outside the United States to comply with applicable foreign laws or listing
requirements of any such foreign stock exchange; (d) establish subplans and
modify exercise procedures and other terms and procedures, to the extent such
actions may be necessary or advisable (any such subplans and/or modifications
shall be attached to the Plan as appendices); provided, however,
that no such subplans and/or modifications shall increase the share limitations
contained in Sections 3.1 and 3.3; and (e) take any action, before or after an
Award is made, that it deems advisable to obtain approval or comply with any
necessary local governmental regulatory exemptions or approvals or listing
requirements of any such foreign stock exchange.  Notwithstanding the foregoing, the Administrator
may not take any actions hereunder, and no Awards shall be granted, that would
violate the Code, the Exchange Act, the Securities Act or any other securities
law or governing statute or any other applicable law.


 


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


 


ARTICLE 5.



PROVISIONS APPLICABLE TO AWARDS INTENDED TO QUALIFY AS PERFORMANCE-BASED
COMPENSATION.


 


5.1           Purpose.  The Committee, in its sole discretion, may
determine whether an Award is to qualify as Performance-Based Compensation. If
the Committee, in its sole discretion, decides to grant such an Award to an
Eligible Individual that is intended to qualify as Performance-Based
Compensation, then the provisions of this Article 5 shall control over any
contrary provision contained in the Plan. 
The Administrator may in its sole discretion grant Awards to other
Eligible Individuals that are based on Performance Criteria or Performance
Goals but that do not satisfy the requirements of this Article 5 and that are
not intended to qualify as Performance-Based Compensation.  Unless otherwise specified by the
Administrator at the time of grant, the Performance Criteria with respect to an
Award intended to be Performance-Based Compensation payable to a Covered
Employee shall be determined on the basis of GAAP.


 


5.2           Applicability.  The
grant of an Award to an Eligible Individual for a particular Performance
Period shall not require the grant of an Award to such Individual in any
subsequent Performance Period and the grant of an Award to any one Eligible
Individual shall not require the grant of an Award to any other Eligible
Individual in such period or in any other period.


 














 


5.3           Types
of Awards.  Notwithstanding anything
in the Plan to the contrary, the Committee may grant any Award to an Eligible
Individual intended to qualify as Performance-Based Compensation, including,
without limitation, Restricted Stock the restrictions with respect to which
lapse upon the attainment of specified Performance Goals, and any performance
or incentive Awards described in Article 9 that vest or become exercisable or
payable upon the attainment of one or more specified Performance Goals.


 


5.4           Procedures with Respect to Performance-Based
Awards.  To the extent
necessary to comply with the requirements of Section 162(m)(4)(C) of the Code,
with respect to any Award granted under Articles 7 or 8 to one or more Eligible
Individuals and which is intended to qualify as Performance-Based Compensation,
no later than 90 days following the commencement of any Performance Period or
any designated fiscal period or period of service (or such earlier time as may
be required under Section 162(m) of the Code), the Committee shall, in writing,
(a) designate one or more Holders, (b) select the Performance Criteria
applicable to the Performance Period, (c) establish the Performance Goals, and
amounts of such Awards, as applicable, which may be earned for such Performance
Period based on the Performance Criteria, and (d) specify the relationship
between Performance Criteria and the Performance Goals and the amounts of such
Awards, as applicable, to be earned by each Covered Employee for such
Performance Period.  Following the
completion of each Performance Period, the Committee shall certify in writing
whether and the extent to which the applicable Performance Goals have been
achieved for such Performance Period.  In
determining the amount earned under such Awards, the Committee shall have the
right to reduce or eliminate (but not to increase) the amount payable at a
given level of performance to take into account additional factors that the
Committee may deem relevant to the assessment of individual or corporate performance
for the Performance Period.


 


5.5           Payment of Performance-Based Awards.  Unless otherwise provided in the applicable
Award Agreement and only to the extent otherwise permitted by Section 162(m)(4)(C)
of the Code, as to an Award that is intended to qualify as Performance-Based
Compensation, the Holder must be employed by the Company or a Subsidiary
throughout the Performance Period. 
Furthermore, a Holder shall be eligible to receive payment pursuant to
such Awards for a Performance Period only if and to the extent the Performance
Goals for such period are achieved.


 


5.6           Additional
Limitations.  Notwithstanding any
other provision of the Plan, any Award which is granted to an Eligible
Individual and is intended to qualify as Performance-Based Compensation shall
be subject to any additional limitations set forth in Section 162(m) of the
Code or any regulations or rulings issued thereunder that are requirements for
qualification as Performance-Based Compensation, and the Plan and the Award
Agreement shall be deemed amended to the extent necessary to conform to such
requirements.


 

















 


ARTICLE 6.


 


GRANTING OF
OPTIONS


 


6.1           Granting
of Options to Eligible Individuals. 
The Administrator is authorized to grant Options to Eligible Individuals
from time to time, in its sole discretion, on such terms and conditions as it
may determine which shall not be inconsistent with the Plan.


 


6.2           Qualification
of Incentive Stock Options.  No
Incentive Stock Option shall be granted to any person who is not an Employee of
the Company or any subsidiary corporation of the Company (as defined in Section
424(f) of the Code).  No person who
qualifies as a Greater Than 10% Stockholder may be granted an Incentive Stock
Option unless such Incentive Stock Option conforms to the applicable provisions
of Section 422 of the Code.  Any
Incentive Stock Option granted under the Plan may be modified by the
Administrator, with the consent of the Holder, to disqualify such Option from
treatment as an “incentive stock option” under Section 422 of the Code. To the
extent that the aggregate fair market value of stock with respect to which “incentive
stock options” (within the meaning of Section 422 of the Code, but without
regard to Section 422(d) of the Code) are exercisable for the first time by a
Holder during any calendar year under the Plan, and all other plans of the
Company and any Subsidiary or parent corporation thereof (as defined in Section
424(e) of the Code), exceeds $100,000, the Options shall be treated as
Non-Qualified Stock Options to the extent required by Section 422 of the
Code.  The rule set forth in the
preceding sentence shall be applied by taking Options and other “incentive
stock options” into account in the order in which they were granted and the
fair market value of stock shall be determined as of the time the respective
options were granted.


 


6.3           Option
Exercise Price.  The exercise price
per share of Common Stock subject to each Option shall be set by the
Administrator, but shall not be less than 100% of the Fair Market Value of a
share of Common Stock on the date the Option is granted (or, as to Incentive
Stock Options, on the date the Option is modified, extended or renewed for
purposes of Section 424(h) of the Code). 
In addition, in the case of Incentive Stock Options granted to a Greater
Than 10% Stockholder, such price shall not be less than 110% of the Fair Market
Value of a share of Common Stock on the date the Option is granted (or the date
the Option is modified, extended or renewed for purposes of Section 424(h) of
the Code).


 


6.4           Option
Term.  The term of each Option shall
be set by the Administrator in its sole discretion; provided, however,
that the term shall not be more than ten (10) years from the date the Option is
granted, or five (5) years from the date an Incentive Stock Option is granted
to a Greater Than 10% Stockholder.  The
Administrator shall determine the time period, including the time period
following a Termination of Service, during which the Holder has the right to
exercise the vested Options, which time period may not extend beyond the term
of the Option term. Except as limited by the requirements of Section 409A or Section
422 of the Code and regulations and rulings thereunder, the Administrator may
extend the term of any outstanding Option, and may extend the time period
during which vested Options may be exercised, in connection with any
Termination of Service of the Holder, and may amend any other term or condition
of such Option relating to such a Termination of Service.


 

















 


6.5           Option
Vesting.


 


(a)           The period during which the right to
exercise, in whole or in part, an Option vests in the Holder shall be set by
the Administrator and the Administrator may determine that an Option may not be
exercised in whole or in part for a specified period after it is granted.  Such vesting may be based on service with the
Company or any Subsidiary, any of the Performance Criteria, or any other
criteria selected by the Administrator. 
At any time after grant of an Option, the Administrator may, in its sole
discretion and subject to whatever terms and conditions it selects, accelerate
the period during which an Option vests.


 


(b)           No portion of an Option which is
unexercisable at a Holder’s Termination of Service shall thereafter become
exercisable, except as may be otherwise provided by the Administrator either in
the Award Agreement or by action of the Administrator following the grant of
the Option.


 


6.6           Substitute
Awards.  Notwithstanding the
foregoing provisions of this Article 6 to the contrary, in the case of an
Option that is a Substitute Award, the price per share of the shares subject to
such Option may be less than the Fair Market Value per share on the date of
grant, provided, that the excess of: 
(a) the aggregate Fair Market Value (as of the date such Substitute
Award is granted) of the shares subject to the Substitute Award, over (b) the
aggregate exercise price thereof does not exceed the excess of:  (x) the aggregate fair market value (as of
the time immediately preceding the transaction giving rise to the Substitute
Award, such fair market value to be determined by the Administrator) of the
shares of the predecessor entity that were subject to the grant assumed or
substituted for by the Company, over (y) the aggregate exercise price of such
shares.


 


6.7           Substitution
of Stock Appreciation Rights.  The
Administrator may provide in the Award Agreement evidencing the grant of an
Option that the Administrator, in its sole discretion, shall have the right to
substitute a Stock Appreciation Right for such Option at any time prior to or
upon exercise of such Option; provided,
that such Stock Appreciation Right shall be exercisable with respect to the
same number of shares of Common Stock for which such substituted Option would
have been exercisable.


 


ARTICLE 7.


 


EXERCISE OF
OPTIONS


 


7.1           Partial
Exercise.  An exercisable Option may
be exercised in whole or in part. 
However, an Option shall not be exercisable with respect to fractional
shares and the Administrator may require that, by the terms of the Option, a
partial exercise must be with respect to a minimum number of shares.


 


7.2           Manner
of Exercise.  All or a portion of an
exercisable Option shall be deemed exercised upon delivery of all of the
following to the Secretary of the Company, or such other person or entity
designated by the Administrator, or his, her or its office, as applicable:


 


(a)           A written notice complying with the
applicable rules established by the Administrator stating that the Option, or a
portion thereof, is exercised.  The
notice shall be 


 

















 


signed by the Holder or other person then
entitled to exercise the Option or such portion of the Option;


 


(b)           Such representations and documents as
the Administrator, in its sole discretion, deems necessary or advisable to
effect compliance with all applicable provisions of the Securities Act and any
other federal, state or foreign securities laws or regulations.  The Administrator may, in its sole
discretion, also take whatever additional actions it deems appropriate to
effect such compliance including, without limitation, placing legends on share
certificates and issuing stop-transfer notices to agents and registrars;


 


(c)           In the event that the Option shall be
exercised pursuant to Section 11.3 by any person or persons other than the
Holder, appropriate proof of the right of such person or persons to exercise
the Option; and


 


(d)           Full payment of the exercise price
and applicable withholding taxes to the Secretary of the Company for the shares
with respect to which the Option, or portion thereof, is exercised, in a manner
permitted by Section 11.1 and 11.2.


 


7.3           Notification
Regarding Disposition.  The Holder
shall give the Company prompt notice of any disposition of shares of Common
Stock acquired by exercise of an Incentive Stock Option which occurs within (a)
two years from the date of granting (including the date the Option is modified,
extended or renewed for purposes of Section 424(h) of the Code) such Option to
such Holder, or (b) one year after the transfer of such shares to such Holder.


 


ARTICLE 8.


 


AWARD OF
RESTRICTED STOCK


 


8.1           Award
of Restricted Stock.


 


(a)           The Administrator is authorized to
grant Restricted Stock to Eligible Individuals, and shall determine the terms
and conditions, including the restrictions applicable to each award of Restricted
Stock, which terms and conditions shall not be inconsistent with the Plan, and
may impose such conditions on the issuance of such Restricted Stock as it deems
appropriate.


 


(b)           The Administrator shall establish the
purchase price, if any, and form of payment for Restricted Stock; provided,
however, that such purchase price shall be no less than the par value of
the Common Stock to be purchased, unless otherwise permitted by applicable
state law.  In all cases, legal
consideration shall be required for each issuance of Restricted Stock.


 


8.2           Rights
as Stockholders.  Subject to Section 8.4,
upon issuance of Restricted Stock, the Holder shall have, unless otherwise
provided by the Administrator, all the rights of a stockholder with respect to
said shares, subject to the restrictions in his or her Award Agreement,
including the right to receive all dividends and other distributions paid or
made with respect to the shares; provided, however, that, in the
sole discretion of the Administrator, 


 

















 


any extraordinary
distributions with respect to the Common Stock shall be subject to the
restrictions set forth in Section 8.3.


 


8.3           Restrictions.  All shares of Restricted Stock (including any
shares received by Holders thereof with respect to shares of Restricted Stock
as a result of stock dividends, stock splits or any other form of
recapitalization) shall, in the terms of each individual Award Agreement, be
subject to such restrictions and vesting requirements as the Administrator
shall provide.  Such restrictions may
include, without limitation, restrictions concerning voting rights and
transferability and such restrictions may lapse separately or in combination at
such times and pursuant to such circumstances or based on such criteria as
selected by the Administrator, including, without limitation, criteria based on
the Holder’s duration of employment, directorship or consultancy with the
Company, the Performance Criteria, Company performance, individual performance
or other criteria selected by the Administrator.  By action taken after the Restricted Stock is
issued, the Administrator may, on such terms and conditions as it may determine
to be appropriate, accelerate the vesting of such Restricted Stock by removing
any or all of the restrictions imposed by the terms of the Award
Agreement.  Restricted Stock may not be
sold or encumbered until all restrictions are terminated or expire.


 


8.4           Repurchase
or Forfeiture of Restricted Stock. 
If no price was paid by the Holder for the Restricted Stock, upon a
Termination of Service the Holder’s rights in unvested Restricted Stock then
subject to restrictions shall lapse, and such Restricted Stock shall be
surrendered to the Company and cancelled without consideration. If a price was
paid by the Holder for the Restricted Stock, upon a Termination of Service the
Company shall have the right to repurchase from the Holder the unvested
Restricted Stock then subject to restrictions at a cash price per share equal
to the price paid by the Holder for such Restricted Stock or such other amount
as may be specified in the Award Agreement 
The Administrator in its sole discretion may provide that in the event
of certain events, including a Change in Control, the Holder’s death,
retirement or disability or any other specified Termination of Service or any
other event, the Holder’s rights in unvested Restricted Stock shall not lapse,
such Restricted Stock shall vest and, if applicable, the Company shall not have
a right of repurchase.


 


8.5           Certificates for Restricted Stock.  Restricted Stock granted pursuant to the Plan
may be evidenced in such manner as the Administrator shall determine.  Certificates or book entries evidencing
shares of Restricted Stock must include an appropriate legend referring to the
terms, conditions, and restrictions applicable to such Restricted Stock, and
the Company may, in it sole discretion, retain physical possession of any stock
certificate until such time as all applicable restrictions lapse.


 


8.6           Section
83(b) Election.  If a Holder makes an
election under Section 83(b) of the Code to be taxed with respect to the
Restricted Stock as of the date of transfer of the Restricted Stock rather than
as of the date or dates upon which the Holder would otherwise be taxable under Section
83(a) of the Code, the Holder shall be required to deliver a copy of such
election to the Company promptly after filing such election with the Internal
Revenue Service.


 

















 


ARTICLE 9.


 


AWARD OF
PERFORMANCE AWARDS, DIVIDEND EQUIVALENTS, DEFERRED STOCK, STOCK PAYMENTS,
RESTRICTED STOCK UNITS


 


9.1           Performance
Awards.


 


(a)           The Administrator is authorized to
grant Performance Awards to any Eligible Individual and to determine whether
such Performance Awards shall be Performance-Based Compensation.  The value of Performance Awards may be linked
to any one or more of the Performance Criteria or other specific criteria
determined by the Administrator, in each case on a specified date or dates or
over any period or periods determined by the Administrator.  In making such determinations, the Administrator
shall consider (among such other factors as it deems relevant in light of the
specific type of Award) the contributions, responsibilities and other
compensation of the particular Eligible Individual.  Performance Awards may be paid in cash,
shares of Common Stock, or both, as determined by the Administrator.


 


(b)           Without limiting Section 9.1(a), the
Administrator may grant Performance Awards to any Eligible Individual in the
form of a cash bonus payable upon the attainment of objective Performance Goals,
or such other criteria, whether or not objective, which are established by the
Administrator, in each case on a specified date or dates or over any period or
periods determined by the Administrator. 
Any such bonuses paid to a Holder which are intended to be
Performance-Based Compensation shall be based upon objectively determinable
bonus formulas established in accordance with the provisions of Article 5.  Additionally, any such bonuses paid to any
Eligible Individual shall be subject to the Award Limit.


 


9.2           Dividend
Equivalents.


 


(a)           Dividend Equivalents may be granted
by the Administrator based on dividends declared on the Common Stock, to be
credited as of dividend payment dates during the period between the date an
Award is granted to a Holder and the date such Award vests, is exercised, is
distributed or expires, as determined by the Administrator.  Such Dividend Equivalents shall be converted
to cash or additional shares of Common Stock by such formula and at such time
and subject to such limitations as may be determined by the Administrator.


 


(b)           Notwithstanding the foregoing, no
Dividend Equivalents shall be payable with respect to Options or Stock
Appreciation Rights.


 


9.3           Stock
Payments.  The Administrator is
authorized to make Stock Payments to any Eligible Individual.  The number or value of shares of any Stock
Payment shall be determined by the Administrator and may be based upon one or
more Performance Criteria or any other specific criteria, including service to
the Company or any Subsidiary, determined by the Administrator.  Stock Payments may, but are not required to
be made in lieu of base salary, bonus, fees or other cash compensation
otherwise payable to such Eligible Individual.


 


9.4           Deferred
Stock.  The Administrator is
authorized to grant Deferred Stock to any Eligible Individual.  The number of shares of Deferred Stock shall
be determined by the Administrator and may be based on one or more Performance
Criteria or other specific criteria, 


 

















 


including service to the Company or any Subsidiary,
as the Administrator determines, in each case on a specified date or dates or
over any period or periods determined by the Administrator.  Common Stock underlying a Deferred Stock
award will not be issued until the Deferred Stock award has vested, pursuant to
a vesting schedule or other conditions or criteria set by the
Administrator.  Unless otherwise provided
by the Administrator, a Holder of Deferred Stock shall have no rights as a
Company stockholder with respect to such Deferred Stock until such time as the
Award has vested and the Common Stock underlying the Award has been issued to
the Holder.


 


9.5           Restricted
Stock Units.  The Administrator is
authorized to grant Restricted Stock Units to any Eligible Individual.  The number and terms and conditions of
Restricted Stock Units shall be determined by the Administrator.  The Administrator shall specify the date or
dates on which the Restricted Stock Units shall become fully vested and
nonforfeitable, and may specify such conditions to vesting as it deems
appropriate, including conditions based on one or more Performance Criteria or
other specific criteria, including service to the Company or any Subsidiary, in
each case on a specified date or dates or over any period or periods, as the
Administrator determines.  The
Administrator shall specify, or permit the Holder to elect, the conditions and
dates upon which the shares of Common Stock underlying the Restricted Stock
Units which shall be issued, which dates shall not be earlier than the date as
of which the Restricted Stock Units vest and become nonforfeitable and which
conditions and dates shall be subject to compliance with Section 409A of the
Code.  On the distribution dates, the
Company shall issue to the Holder one unrestricted, fully transferable share of
Common Stock for each vested and nonforfeitable Restricted Stock Unit.


 


9.6           Term.  The term of a Performance Award, Dividend
Equivalent award, Deferred Stock award, Stock Payment award and/or Restricted
Stock Unit award shall be set by the Administrator in its sole discretion.


 


9.7           Exercise
or Purchase Price.  The Administrator
may establish the exercise or purchase price of a Performance Award, shares of
Deferred Stock, shares distributed as a 
Stock Payment award or shares distributed pursuant to a Restricted Stock
Unit award; provided, however, that value of the consideration
shall not be less than the par value of a share of Common Stock, unless
otherwise permitted by applicable law.


 


9.8           Exercise
upon Termination of Service.  A
Performance Award, Dividend Equivalent award, Deferred Stock award,  Stock Payment award and/or Restricted Stock
Unit award is exercisable or distributable only while the Holder is an
Employee, Director or Consultant, as applicable.  The Administrator, however, in its sole
discretion may provide that the Performance Award, Dividend Equivalent award,
Deferred Stock award, Stock Payment award and/or Restricted Stock Unit award
may be exercised or distributed subsequent to a Termination of Service in
certain events, including a Change in Control, the Holder’s death, retirement
or disability or any other specified Termination of Service.


 

















 


ARTICLE 10.


 


AWARD OF STOCK
APPRECIATION RIGHTS


 


10.1         Grant
of Stock Appreciation Rights.


 


(a)           The Administrator is authorized to
grant Stock Appreciation Rights to Eligible Individuals from time to time, in
its sole discretion, on such terms and conditions as it may determine
consistent with the Plan.


 


(b)           A Stock Appreciation Right shall
entitle the Holder (or other person entitled to exercise the Stock Appreciation
Right pursuant to the Plan) to exercise all or a specified portion of the Stock
Appreciation Right (to the extent then exercisable pursuant to its terms) and
to receive from the Company an amount determined by multiplying the difference
obtained by subtracting the exercise price per share of the Stock Appreciation
Right from the per share Fair Market Value on the date of exercise of the Stock
Appreciation Right by the number of shares of Common Stock with respect to
which the Stock Appreciation Right shall have been exercised, subject to any
limitations the Administrator may impose. 
Except as described in (c) below, the exercise price per share of Common
Stock subject to each Stock Appreciation Right shall be set by the Administrator,
but shall not be less than 100% of the Fair Market Value on the date the Stock
Appreciation Right is granted.


 


(c)           Notwithstanding the foregoing
provisions of Section 10.1(b) to the contrary, in the case of an Stock
Appreciation Right that is a Substitute Award, the price per share of the
shares subject to such Stock Appreciation Right may be less than the Fair
Market Value per share on the date of grant, provided, that the excess
of:  (a) the aggregate Fair Market Value
(as of the date such Substitute Award is granted) of the shares subject to the
Substitute Award, over (b) the aggregate exercise price thereof does not exceed
the excess of:  (x) the aggregate fair
market value (as of the time immediately preceding the transaction giving rise
to the Substitute Award, such fair market value to be determined by the
Administrator) of the shares of the predecessor entity that were subject to the
grant assumed or substituted for by the Company, over (y) the aggregate
exercise price of such shares.


 


10.2         Stock
Appreciation Right Vesting.


 


(a)           The period during which the right to
exercise, in whole or in part, a Stock Appreciation Right vests in the Holder
shall be set by the Administrator and the Administrator may determine that a
Stock Appreciation Right may not be exercised in whole or in part for a
specified period after it is granted. 
Such vesting may be based on service with the Company or any Subsidiary,
or any other criteria selected by the Administrator.  At any time after grant of a Stock Appreciation
Right, the Administrator may, in its sole discretion and subject to whatever
terms and conditions it selects, accelerate the period during which a Stock
Appreciation Right vests.


 


(b)           No portion of a Stock Appreciation
Right which is unexercisable at Termination of Service shall thereafter become
exercisable, except as may be otherwise provided by the Administrator either in
the Award Agreement or by action of the Administrator following the grant of
the Stock Appreciation Right.


 

















 


10.3         Manner
of Exercise.  All or a portion of an
exercisable Stock Appreciation Right shall be deemed exercised upon delivery of
all of the following to the Secretary of the Company, or such other person or
entity designated by the Administrator, or his, her or its office, as
applicable:


 


(a)           A written notice complying with the
applicable rules established by the Administrator stating that the Stock
Appreciation Right, or a portion thereof, is exercised.  The notice shall be signed by the Holder or
other person then entitled to exercise the Stock Appreciation Right or such
portion of the Stock Appreciation Right;


 


(b)           Such representations and documents as
the Administrator, in its sole discretion, deems necessary or advisable to
effect compliance with all applicable provisions of the Securities Act and any
other federal, state or foreign securities laws or regulations.  The Administrator may, in its sole
discretion, also take whatever additional actions it deems appropriate to
effect such compliance; and


 


(c)           In the event that the Stock
Appreciation Right shall be exercised pursuant to this Section 10.3 by any
person or persons other than the Holder, appropriate proof of the right of such
person or persons to exercise the Stock Appreciation Right.


 


10.4         Payment.  Payment of the amounts determined under Section
10.2(c) and 10.3(b) above shall be in cash, shares of Common Stock (based on
its Fair Market Value as of the date the 
Stock Appreciation Right is exercised), or a combination of both, as
determined by the Administrator.


 


ARTICLE 11.


 


ADDITIONAL TERMS
OF AWARDS


 


11.1         Payment.  The Administrator shall determine the methods
by which payments by any Holder with respect to any Awards granted under the
Plan shall be made, including, without limitation: (a) cash or check, (b) shares
of Common Stock (including, in the case of payment of the exercise price of an
Award, shares of Common Stock issuable pursuant to the exercise of the Award)
or shares of Common Stock held for such period of time as may be required by
the Administrator in order to avoid adverse accounting consequences, in each
case, having a Fair Market Value on the date of delivery equal to the aggregate
payments required, (c) delivery of a notice that the Holder has placed a market
sell order with a broker with respect to shares of Common Stock then issuable
upon exercise or vesting of an Award, and that the broker has been directed to
pay a sufficient portion of the net proceeds of the sale to the Company in
satisfaction of the aggregate payments required, provided, that payment of such proceeds is then made to the
Company upon settlement of such sale, or (d) other form of legal consideration
acceptable to the Administrator.  The
Administrator shall also determine the methods by which shares of Common Stock
shall be delivered or deemed to be delivered to Holders.  Notwithstanding any other provision of the
Plan to the contrary, no Holder who is a Director or an “executive officer” of
the Company within the meaning of Section 13(k) of the Exchange Act shall be
permitted to make payment with respect to any Awards granted under the Plan, or
continue any extension of credit with respect to such payment with a loan from
the 


 

















 


Company or a loan
arranged by the Company in violation of Section 13(k) of the Exchange Act.


 


11.2         Tax
Withholding.  The Company or any
Subsidiary shall have the authority and the right to deduct or withhold, or
require a Holder to remit to the Company, an amount sufficient to satisfy
federal, state, local and foreign taxes (including the Holder’s FICA or
employment tax obligation) required by law to be withheld with respect to any
taxable event concerning a Holder arising as a result of the Plan.  The Administrator may in its sole discretion
and in satisfaction of the foregoing requirement allow a Holder to elect to
have the Company withhold shares of Common Stock otherwise issuable under an
Award (or allow the surrender of shares of Common Stock). The number of shares
of Common Stock which may be so withheld or surrendered shall be limited to the
number of shares which have a Fair Market Value on the date of withholding or
repurchase equal to the aggregate amount of such liabilities based on the
minimum statutory withholding rates for federal, state, local and foreign
income tax and payroll tax purposes that are applicable to such supplemental
taxable income. The Administrator shall determine the fair market value of the
Common Stock, consistent with applicable provisions of the Code, for tax
withholding obligations due in connection with a broker-assisted cashless
Option or Stock Appreciation Right exercise involving the sale of shares to pay
the Option or Stock Appreciation Right exercise price or any tax withholding
obligation.


 


11.3         Transferability
of Awards.


 


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


 


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


 


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


 


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


 














 


(b)           Notwithstanding Section 11.3(a), the
Administrator, in its sole discretion, may determine to permit a Holder to
transfer an Award other than an Incentive Stock Option to any one or more
Permitted Transferees (as defined below), subject to the following terms and
conditions:  (i) an Award transferred to
a Permitted Transferee shall not be assignable or transferable by the Permitted
Transferee other than by will or the laws of descent and distribution; (ii) an
Award transferred to a Permitted Transferee shall continue to be subject to all
the terms and conditions of the Award as applicable to the original Holder
(other than the ability to further transfer the Award); and (iii) the Holder
and the Permitted Transferee shall execute any and all documents requested by
the Administrator, including, without limitation documents to (A) confirm the
status of the transferee as a Permitted Transferee, (B) satisfy any
requirements for an exemption for the transfer under applicable federal, state
and foreign securities laws and (C) evidence the transfer.  For purposes of this Section 11.3(b), “Permitted
Transferee” shall mean, with respect to a Holder, any “family member” of
the Holder, as defined under the instructions to use of the Form S-8
Registration Statement under the Securities Act, or any other transferee
specifically approved by the Administrator after taking into account any state,
federal, local or foreign tax and securities laws applicable to transferable
Awards.


 


(c)           Notwithstanding
Section 11.3(a), a Holder may, in the manner determined by the Administrator,
designate a beneficiary to exercise the rights of the Holder and to receive any
distribution with respect to any Award upon the Holder’s death.  A beneficiary, legal guardian, legal
representative, or other person claiming any rights pursuant to the Plan is
subject to all terms and conditions of the Plan and any Award Agreement
applicable to the Holder, except to the extent the Plan and Award Agreement
otherwise provide, and to any additional restrictions deemed necessary or
appropriate by the Administrator.  If the
Holder is married and resides in a community property state, a designation of a
person other than the Holder’s spouse as his or her
beneficiary with respect to more than 50% of the Holder’s interest in the Award
shall not be effective without the prior written consent of the Holder’s
spouse.  If no beneficiary has been
designated or survives the Holder, payment shall be made to the person entitled
thereto pursuant to the Holder’s will or the laws of descent and
distribution.  Subject to the foregoing,
a beneficiary designation may be changed or revoked by a Holder at any time
provided the change or revocation is filed with the Administrator prior to the
Holder’s death.


 


11.4         Conditions to Issuance
of Shares.


 


(a)           Notwithstanding anything herein to
the contrary, the Company shall not be required to issue or deliver any
certificates or make any book entries evidencing shares of Common Stock
pursuant to the exercise of any Award, unless and until the Board has
determined, with advice of counsel, that the issuance of such shares is in
compliance with all applicable laws, regulations of governmental authorities
and, if applicable, the requirements of any exchange on which the shares of
Common Stock are listed or traded, and the shares of Common Stock are covered
by an effective registration statement or applicable exemption from
registration.  In addition to the terms
and conditions provided herein, the Board may require that a Holder make such
reasonable covenants, agreements, and representations as the Board, in its
discretion, deems advisable in order to comply with any such laws, regulations,
or requirements.


 


(b)           All Common Stock certificates
delivered pursuant to the Plan and all shares issued pursuant to book entry
procedures are subject to any stop-transfer orders and other 


 

















 


restrictions as the Administrator deems
necessary or advisable to comply with federal, state, or foreign securities or
other laws, rules and regulations and the rules of any securities exchange or
automated quotation system on which the Common Stock is listed, quoted, or
traded.  The Administrator may place
legends on any Common Stock certificate or book entry to reference restrictions
applicable to the Common Stock.


 


(c)           The
Administrator shall have the right to require any Holder to comply with any timing or other restrictions with respect to
the settlement, distribution or exercise of any Award, including a
window-period limitation, as may be imposed in the sole discretion of the
Administrator.


 


(d)           No fractional shares of Common Stock
shall be issued and the Administrator shall determine, in its sole discretion,
whether cash shall be given in lieu of fractional shares or whether such
fractional shares shall be eliminated by rounding down.


 


(e)           Notwithstanding any other provision
of the Plan, unless otherwise determined by the Administrator or required by
any applicable law, rule or regulation, the Company shall not deliver to any
Holder certificates evidencing shares of Common Stock issued in connection with
any Award and instead such shares of Common Stock shall be recorded in the
books of the Company (or, as applicable, its transfer agent or stock plan
administrator).


 


11.5         Forfeiture
Provisions.  Pursuant to its general
authority to determine the terms and conditions applicable to Awards under the
Plan, the Administrator shall have the right to provide, in the terms of Awards
made under the Plan, or to require a Holder to agree by separate written
instrument, that:  (a)(i) any proceeds,
gains or other economic benefit actually or constructively received by the
Holder upon any receipt or exercise of the Award, or upon the receipt or resale
of any Common Stock underlying the Award, must be paid to the Company, and (ii)
the Award shall terminate and any unexercised portion of the Award (whether or
not vested) shall be forfeited, if (b)(i) a Termination of Service occurs prior
to a specified date, or within a specified time period following receipt or
exercise of the Award, or (ii) the Holder at any time, or during a specified
time period, engages in any activity in competition with the Company, or which
is inimical, contrary or harmful to the interests of the Company, as further
defined by the Administrator or (iii) the Holder incurs a Termination of
Service for “cause” (as such term is defined in the sole discretion of the
Administrator, or as set forth in a written agreement relating to such Award
between the Company and the Holder).


 


11.6         Repricing.  Subject to Section 14.2, the Administrator
shall have the authority, without the approval of the stockholders of the
Company, to amend any outstanding award to increase or reduce the price per
share or to cancel and replace an Award with the grant of an Award having a
price per share that is less than, greater than or equal to the price per share
of the original Award.


 

















 


ARTICLE 12.


 


NON-EMPLOYEE
DIRECTOR AWARDS


 


12.1         Non-Employee
Director Awards.  The Board may grant
Awards to Non-Employee Directors, subject to the limitations of the Plan,
pursuant to a written non-discretionary formula established by the Committee,
or any successor committee thereto carrying out its responsibilities on the
date of grant of any such Award (the “Non-Employee Director Equity
Compensation Policy”).  The
Non-Employee Director Equity Compensation Policy shall set forth the type of
Award(s) to be granted to Non-Employee Directors, the number of shares of Stock
to be subject to Non-Employee Director Awards, the conditions on which such
Awards shall be granted, become exercisable and/or payable and expire, and such
other terms and conditions as the Committee (or such other successor committee
as described above) shall determine in its discretion.


 


ARTICLE 13.


 


ADMINISTRATION


 


13.1         Administrator.  The Compensation Committee (or another
committee or a subcommittee of the Board assuming the functions of the
Committee under the Plan) shall administer the Plan (except as otherwise
permitted herein) and shall consist solely of two or more Non-Employee Directors
appointed by and holding office at the pleasure of the Board, each of whom is
intended to qualify as both a “non-employee director” as defined by Rule 16b-3
of the Exchange Act or any successor rule, an “outside director” for purposes
of Section 162(m) of the Code and an “independent director” under the rules of
the NASDAQ Stock Market (or other principal securities market on which shares
of Common Stock are traded); provided, that any
action taken by the Committee shall be valid and effective, whether or not
members of the Committee at the time of such action are later determined not to
have satisfied the requirements for membership set forth in this Section 13.l
or otherwise provided in any charter of the Committee.  Except as may otherwise be provided in any
charter of the Committee, appointment of Committee members shall be effective
upon acceptance of appointment. 
Committee members may resign at any time by delivering written notice to
the Board.  Vacancies in the Committee
may only be filled by the Board. 
Notwithstanding the foregoing, (a) the full Board, acting by a majority
of its members in office, shall conduct the general administration of the Plan
with respect to Awards granted to Non-Employee Directors and (b) the Board or
Committee may delegate its authority hereunder to the extent permitted by Section
13.6.


 


13.2         Duties
and Powers of Committee.  It shall be
the duty of the Committee to conduct the general administration of the Plan in
accordance with its provisions.  The
Committee shall have the power to interpret the Plan and the Award Agreement,
and to adopt such rules for the administration, interpretation and application
of the Plan as are not inconsistent therewith, to interpret, amend or revoke
any such rules and to amend any Award Agreement provided that the rights or
obligations of the holder of the Award that is the subject 


 

















 


of any such Award Agreement are not affected
adversely by such amendment, unless the consent of the Holder is obtained or
such amendment is otherwise permitted under Section 14.10.  Any such grant or award under the Plan need
not be the same with respect to each holder. 
Any such interpretations and rules with respect to Incentive Stock
Options shall be consistent with the provisions of Section 422 of the
Code.  In its sole discretion, the Board
may at any time and from time to time exercise any and all rights and duties of
the Committee under the Plan except with respect to matters which under Rule 16b-3
under the Exchange Act or any successor rule, or Section 162(m) of the Code, or
any regulations or rules issued thereunder, are required to be determined in
the sole discretion of the Committee.


 


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


 


13.4         Authority of Administrator.  Subject to any specific designation in the
Plan, the Administrator has the exclusive power, authority and sole discretion
to:


 


(a)   Designate
Eligible Individuals to receive Awards;


 


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


 


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


 


(d)   Determine
the terms and conditions of any Award granted pursuant to the Plan, including,
but not limited to, the exercise price, grant price, or purchase price, any
reload provision, any restrictions or limitations on the Award, any schedule
for vesting, lapse of forfeiture restrictions or restrictions on the
exercisability of an Award, and accelerations or waivers thereof, and any
provisions related to non-competition and recapture of gain on an Award, based in
each case on such considerations as the Administrator in its sole discretion
determines;


 


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


 


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


 


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


 

















 


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


 


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


 


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


 


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


 


13.6         Delegation
of Authority.  To the extent
permitted by applicable law, the Board or Committee may from time to time
delegate to a committee of one or more members of the Board or one or more
officers of the Company the authority to grant or amend Awards; provided, however, that in no event shall an officer be
delegated the authority to grant awards to, or amend awards held by, the
following individuals:  (a) individuals
who are subject to Section 16 of the Exchange Act, (b) Covered Employees, or (c)
officers of the Company (or Directors) to whom authority to grant or amend
Awards has been delegated hereunder.  Any
delegation hereunder shall be subject to the restrictions and limits that the
Board or Committee specifies at the time of such delegation, and the Board may
at any time rescind the authority so delegated or appoint a new delegatee.  At all times, the delegatee appointed under
this Section 13.6 shall serve in such capacity at the pleasure of the Board and
the Committee.


 


ARTICLE 14.


 


MISCELLANEOUS
PROVISIONS


 


14.1         Amendment,
Suspension or Termination of the Plan. 
Except as otherwise provided in this Section 14.1, the Plan may be
wholly or partially amended or otherwise modified, suspended or terminated at
any time or from time to time by the Board. 
However, without approval of the Company’s stockholders given within
twelve (12) months before or after the action by the Administrator, no action
of the Administrator may, except as provided in Section 14.2, increase the
limits imposed in Section 3.1 on the maximum number of shares which may be
issued under the Plan.  Except as
provided in Section 14.10, no amendment, suspension or termination of the Plan
shall, without the consent of the Holder, impair any rights or obligations
under any Award theretofore granted or awarded, unless the Award itself
otherwise expressly so provides.  No Awards
may be granted or awarded during any period of suspension or after termination
of the Plan, and in no event may any Award be granted under the Plan after the
tenth (10th) anniversary of the Effective Date.


 


14.2         Changes
in Common Stock or Assets of the Company, Acquisition or Liquidation of the
Company and Other Corporate Events.


 


(a)           In
the event of any stock dividend, stock split, combination or exchange of
shares, merger, consolidation or other distribution (other than normal cash
dividends) of 


 

















 


Company assets to stockholders, or any other
change affecting the shares of the Company’s stock or the share price of the
Company’s stock other than an Equity Restructuring, the Administrator shall
make equitable adjustments, if any, to reflect such change with respect to (i) the
aggregate number and kind of shares that may be issued under the Plan
(including, but not limited to, adjustments of the limitations in
Section 3.1 on the maximum number and kind of shares which may be issued under
the Plan, and adjustments of the Award Limit); (ii) the
number and kind of shares of Common Stock (or other securities or property)
subject to outstanding Awards; (iii) the terms
and conditions of any outstanding Awards (including, without limitation, any
applicable performance targets or criteria with respect thereto); and (iv) the
grant or exercise price per share for any outstanding Awards under the
Plan.  Any adjustment affecting an Award
intended as Performance-Based Compensation shall be made consistent with the
requirements of Section 162(m) of the Code.


 


(b)           In the event of any transaction or
event described in Section 14.2(a) or any unusual or nonrecurring transactions
or events affecting the Company, any affiliate of the Company, or the financial
statements of the Company or any affiliate, or of changes in applicable laws,
regulations or accounting principles, the Administrator, in its sole
discretion, and on such terms and conditions as it deems appropriate, either by
the terms of the Award or by action taken prior to the occurrence of such
transaction or event and either automatically or upon the Holder’s request, is
hereby authorized to take any one or more of the following actions whenever the
Administrator determines that such action is appropriate in order to prevent
dilution or enlargement of the benefits or potential benefits intended to be
made available under the Plan or with respect to any Award under the Plan, to
facilitate such transactions or events or to give effect to such changes in
laws, regulations or principles.


 


(i)            To provide for either (A) termination
of any such Award in exchange for an amount of cash, if any, equal to the
amount that would have been attained upon the exercise of such Award or
realization of the Holder’s rights (and, for the avoidance of doubt, if as of
the date of the occurrence of the transaction or event described in this Section
14.2 the Administrator determines in good faith that no amount would have been
attained upon the exercise of such Award or realization of the Holder’s rights,
then such Award may be terminated by the Company without payment) or (B) the
replacement of such Award with other rights or property selected by the
Administrator in its sole discretion having an aggregate value not exceeding
the amount that could have been attained upon the exercise of such Award or
realization of the Holder’s rights had such Award been currently exercisable or
payable or fully vested;


 


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


 


(iii)          To make adjustments in the number and
type of shares of the Company’s stock (or other securities or property) subject
to outstanding Awards, and in the number and kind of outstanding Restricted
Stock or Deferred Stock and/or in the terms and 


 

















 


conditions
of (including the grant or exercise price), and the criteria included in,
outstanding Awards and Awards which may be granted in the future;


 


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


 


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


 


(c)           In
connection with the occurrence of any Equity Restructuring, and notwithstanding
anything to the contrary in Sections 13.2(a) and 13.2(b):


 


(i)            The
number and type of securities subject to each outstanding Award and the
exercise price or grant price thereof, if applicable, shall be equitably adjusted.  The adjustments provided under this Section 14.2(c)
shall be nondiscretionary and shall be final and binding on the affected Holder
and the Company.


 


(ii)           The
Administrator shall make such equitable adjustments, if any, as the
Administrator in its discretion may deem appropriate to reflect such Equity
Restructuring with respect to the aggregate number and kind of shares that may
be issued under the Plan (including, but not limited to, adjustments
of the limitations in Section 3.1 on the maximum number and kind of shares
which may be issued under the Plan, and adjustments of the Award Limit).


 


(d)           Notwithstanding any other provision
of the Plan, in the event of a Change in Control, each outstanding Award shall
be assumed or an equivalent Award substituted by the successor corporation or a
parent or subsidiary of the successor corporation.


 


(e)           In the event that the successor
corporation in a Change in Control refuses to assume or substitute for the
Award, the Administrator shall cause any or all of such Awards to become fully
exercisable immediately prior to the consummation of such transaction and all
forfeiture restrictions on any or all of such Awards to lapse.  If an Award is exercisable in lieu of
assumption or substitution in the event of a Change in Control, the
Administrator shall notify the Holder that the Award shall be fully exercisable
for a period of fifteen (15) days from the date of such notice, contingent upon
the occurrence of the Change in Control, and the Award shall terminate upon the
expiration of such period.


 


(f)            For the purposes of this Section 14.2,
an Award shall be considered assumed if, following the Change in Control, the
Award confers the right to purchase or receive, for each share of Common Stock
subject to the Award immediately prior to the Change in Control, the
consideration (whether stock, cash, or other securities or property) received
in the Change in Control by holders of Common Stock for each share held on the
effective date of the transaction (and if holders were offered a choice of
consideration, the type of consideration chosen by the holders of a majority of
the outstanding shares); provided, however, that if such
consideration received in the Change in Control was not solely common stock of
the successor corporation or its parent, the Administrator may, with the
consent of the successor corporation, provide for the consideration to be
received upon the exercise of the Award, for each share of 


 

















 


Common
Stock subject to an Award, to be solely common stock of the successor
corporation or its parent equal in fair market value to the per share
consideration received by holders of Common Stock in the Change in Control.


 


(g)           The Administrator may, in its sole
discretion, include such further provisions and limitations in any Award,
agreement or certificate, as it may deem equitable and in the best interests of
the Company that are not inconsistent with the provisions of the Plan.


 


(h)           With respect to Awards which are
granted to Covered Employees and are intended to qualify as Performance-Based
Compensation, no adjustment or action described in this Section 14.2 or in any
other provision of the Plan shall be authorized to the extent that such
adjustment or action would cause such Award to fail to so qualify as Performance-Based
Compensation, unless the Administrator determines that the Award should not so
qualify.  No adjustment or action
described in this Section 14.2 or in any other provision of the Plan shall be
authorized to the extent that such adjustment or action would cause the Plan to
violate Section 422(b)(1) of the Code. 
Furthermore, no such adjustment or action shall be authorized to the
extent such adjustment or action would result in short-swing profits liability
under Section 16 or violate the exemptive conditions of Rule 16b-3 unless the
Administrator determines that the Award is not to comply with such exemptive
conditions.


 


(i)            The existence of the Plan, the Award
Agreement and the Awards granted hereunder shall not affect or restrict in any
way the right or power of the Company or the stockholders of the Company to
make or authorize any adjustment, recapitalization, reorganization or other
change in the Company’s capital structure or its business, any merger or
consolidation of the Company, any issue of stock or of options, warrants or
rights to purchase stock or of bonds, debentures, preferred or prior preference
stocks whose rights are superior to or affect the Common Stock or the rights
thereof or which are convertible into or exchangeable for Common Stock, or the
dissolution or liquidation of the company, or any sale or transfer of all or
any part of its assets or business, or any other corporate act or proceeding,
whether of a similar character or otherwise.


 


(j)            No action shall be taken under this Section
14.2 which shall cause an Award to fail to comply with Section 409A of the Code
or the Treasury Regulations thereunder, to the extent applicable to such Award.


 


(k)           In the event of any pending stock
dividend, stock split, combination or exchange of shares, merger, consolidation
or other distribution (other than normal cash dividends) of Company assets to
stockholders, or any other change affecting the shares of Stock or the share
price of the Stock including any Equity Restructuring, for reasons of administrative
convenience, the Company in its sole discretion may refuse to permit the
exercise of any Award during a period of up to thirty (30) days prior to the
consummation of any such transaction.


 


14.3         Approval
of Plan by Stockholders.  The Plan
will be submitted for the approval of the Company’s stockholders within twelve
(12) months of the date of the Board’s initial adoption of the Plan. Awards may
be granted or awarded prior to such stockholder approval, provided that such
Awards shall not be exercisable, shall not vest and the restrictions thereon
shall not lapse and no shares of Common Stock shall be issued pursuant thereto
prior to the 


 

















 


time when the Plan is approved by the
stockholders, and provided further that if such approval has not been obtained
at the end of said twelve (12) month period, all Awards previously granted or
awarded under the Plan shall thereupon be canceled and become null and void.


 


14.4         No Stockholders Rights.  Except as otherwise provided herein, a Holder
shall have none of the rights of a stockholder with respect to shares of Common
Stock covered by any Award until the Holder becomes the record owner of such
shares of Common Stock.


 


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


 


14.6         Effect
of Plan upon Other Compensation Plans. 
The adoption of the Plan shall not affect any other compensation or
incentive plans in effect for the Company or any Subsidiary.  Nothing in the Plan shall be construed to
limit the right of the Company or any Subsidiary:  (a) to establish any other forms of
incentives or compensation for Employees, Directors or Consultants of the
Company or any Subsidiary, or (b) to grant or assume options or other rights or
awards otherwise than under the Plan in connection with any proper corporate
purpose including without limitation, the grant or assumption of options in
connection with the acquisition by purchase, lease, merger, consolidation or otherwise,
of the business, stock or assets of any corporation, partnership, limited
liability company, firm or association.


 


14.7         Compliance
with Laws.  The Plan, the granting
and vesting of Awards under the Plan and the issuance and delivery of shares of
Common Stock and the payment of money under the Plan or under Awards granted or
awarded hereunder are subject to compliance with all applicable federal, state,
local and foreign laws, rules and regulations (including but not limited to
state, federal and foreign securities law and margin requirements) and to such
approvals by any listing, regulatory or governmental authority as may, in the
opinion of counsel for the Company, be necessary or advisable in connection
therewith.  Any securities delivered
under the Plan shall be subject to such restrictions, and the person acquiring
such securities shall, if requested by the Company, provide such assurances and
representations to the Company as the Company may deem necessary or desirable
to assure compliance with all applicable legal requirements.  To the extent permitted by applicable law,
the Plan and Awards granted or awarded hereunder shall be deemed amended to the
extent necessary to conform to such laws, rules and regulations.


 


14.8         Titles
and Headings, References to Sections of the Code or Exchange Act.  The titles and headings of the Sections in
the Plan are for convenience of reference only and, in the event of any
conflict, the text of the Plan, rather than such titles or headings, shall
control. References to sections of the Code or the Exchange Act shall include
any amendment or successor thereto.


 


14.9         Governing
Law.  The Plan and any agreements
hereunder shall be administered, interpreted and enforced under the internal
laws of the State of Delaware without regard to conflicts of laws thereof.


 

















 


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


 


14.11       No Rights to Awards.  No Eligible Individual or other person shall
have any claim to be granted any Award pursuant to the Plan, and neither the
Company nor the Administrator is obligated to treat Eligible Individuals,
Holders or any other persons uniformly.


 


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


 


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


 


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


 

















 


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


 


* 
*  *  *  *


 


I hereby certify that the foregoing Plan was duly adopted by the Board
of Directors of OpenTable, Inc. on                   , 200    .


 


* 
*  *  *  *


 


I hereby certify that the foregoing Plan was approved by the
stockholders of OpenTable, Inc. on                  , 200    .


 


Executed on this          day of                   , 200    .


 


 


	
   

  	
   

  
	
   

  	
  Corporate
  Secretary