exv4w4



Table of Contents






    Appendix A



 


 




    INFORMATICA
    CORPORATION

    2009 EQUITY INCENTIVE PLAN

    (Effective April 28, 2009)



 












Table of Contents














 




    TABLE OF
    CONTENTS



 


	 	 	 	 	 
	
 
	
 
	
    Page

	 

	

    Section 1 BACKGROUND
    AND PURPOSE


	
 
	 
	
    A-1
	 

	

    1.1    Background and
    Effective Date


	
 
	 
	
    A-1
	 

	

    1.2    Purpose of the Plan


	
 
	 
	
    A-1
	 

	
 
	
 
	
	
 
	 
	

    Section 2 DEFINITIONS


	
 
	 
	
    A-1
	 

	

    2.1    “1934 Act”


	
 
	 
	
    A-1
	 

	

    2.2    “Affiliate”


	
 
	 
	
    A-1
	 

	

    2.3    “Award”


	
 
	 
	
    A-1
	 

	

    2.4    “Award
    Agreement”


	
 
	 
	
    A-1
	 

	

    2.5    “Board” or
    “Board of Directors”


	
 
	 
	
    A-1
	 

	

    2.6    “Change of
    Control”


	
 
	 
	
    A-1
	 

	

    2.7    “Code”


	
 
	 
	
    A-2
	 

	

    2.8    “Committee”


	
 
	 
	
    A-2
	 

	

    2.9    “Company”


	
 
	 
	
    A-2
	 

	

    2.10  “Consultant”


	
 
	 
	
    A-2
	 

	

    2.11  “Determination Date”


	
 
	 
	
    A-2
	 

	

    2.12  “Director”


	
 
	 
	
    A-2
	 

	

    2.13  “Disability”


	
 
	 
	
    A-2
	 

	

    2.14  “Employee”


	
 
	 
	
    A-2
	 

	

    2.15  “Exchange Program”


	
 
	 
	
    A-2
	 

	

    2.16  “Exercise Price”


	
 
	 
	
    A-2
	 

	

    2.17  “Fair Market Value”


	
 
	 
	
    A-2
	 

	

    2.18  “Fiscal Quarter”


	
 
	 
	
    A-2
	 

	

    2.19  “Fiscal Year”


	
 
	 
	
    A-2
	 

	

    2.20  “Grant Date”


	
 
	 
	
    A-2
	 

	

    2.21  “Incentive Stock
    Option”


	
 
	 
	
    A-2
	 

	

    2.22  “Nonemployee
    Director”


	
 
	 
	
    A-2
	 

	

    2.23  “Nonqualified Stock
    Option”


	
 
	 
	
    A-3
	 

	

    2.24  “Option”


	
 
	 
	
    A-3
	 

	

    2.25  “Participant”


	
 
	 
	
    A-3
	 

	

    2.26  “Performance Goals”


	
 
	 
	
    A-3
	 

	

    2.27  “Performance Period”


	
 
	 
	
    A-3
	 

	

    2.28  “Performance Share”


	
 
	 
	
    A-3
	 

	

    2.29  “Performance Unit”


	
 
	 
	
    A-3
	 

	

    2.30  “Period of
    Restriction”


	
 
	 
	
    A-3
	 

	

    2.31  “Plan”


	
 
	 
	
    A-3
	 

	

    2.32  “Profit”


	
 
	 
	
    A-3
	 

	

    2.33  “Restricted Stock”


	
 
	 
	
    A-3
	 

	

    2.34  “Restricted Stock Unit”
    or “RSU”


	
 
	 
	
    A-3
	 

	

    2.35  “Revenue”


	
 
	 
	
    A-3
	 

	

    2.36  “RSU Vesting Commencement
    Date”


	
 
	 
	
    A-3
	 

	

    2.37  “Rule 16b-3”


	
 
	 
	
    A-3
	 

	

    2.38  “Section 16 Person”


	
 
	 
	
    A-3
	 





    

    A-i








Table of Contents





	 	 	 	 	 
	
 
	
 
	
    Page

	 

	

    2.39  “Shares”


	
 
	 
	
    A-3
	 

	

    2.40  “Stock Appreciation
    Right” or “SAR”


	
 
	 
	
    A-3
	 

	

    2.41  “Subsidiary”


	
 
	 
	
    A-3
	 

	

    2.42  “Tax Obligations”


	
 
	 
	
    A-4
	 

	

    2.43  “Termination of
    Service”


	
 
	 
	
    A-4
	 

	

    2.44  “Total Shareholder
    Return”


	
 
	 
	
    A-4
	 

	
 
	
 
	
	
 
	 
	

    Section 3 ADMINISTRATION


	
 
	 
	
    A-4
	 

	

    3.1    The Committee


	
 
	 
	
    A-4
	 

	

    3.2    Authority of the
    Committee


	
 
	 
	
    A-4
	 

	

    3.3    Delegation by the
    Committee


	
 
	 
	
    A-4
	 

	

    3.4    Decisions Binding


	
 
	 
	
    A-4
	 

	
 
	
 
	
	
 
	 
	

    Section 4 SHARES
    SUBJECT TO THE PLAN


	
 
	 
	
    A-5
	 

	

    4.1    Number of Shares


	
 
	 
	
    A-5
	 

	

    4.2    Full Value Awards


	
 
	 
	
    A-5
	 

	

    4.3    Lapsed Awards


	
 
	 
	
    A-5
	 

	

    4.4    Adjustments in Awards
    and Authorized Shares


	
 
	 
	
    A-5
	 

	

    4.5    Change of Control


	
 
	 
	
    A-5
	 

	

    Section 5 STOCK
    OPTIONS


	
 
	 
	
    A-6
	 

	

    5.1    Grant of Options


	
 
	 
	
    A-6
	 

	

    5.2    Award Agreement


	
 
	 
	
    A-6
	 

	

    5.3    Exercise Price


	
 
	 
	
    A-6
	 

	

    5.4    Expiration of
    Options


	
 
	 
	
    A-7
	 

	

    5.5    Exercisability of
    Options


	
 
	 
	
    A-7
	 

	

    5.6    Payment


	
 
	 
	
    A-7
	 

	

    5.7    Restrictions on Share
    Transferability


	
 
	 
	
    A-7
	 

	

    5.8    Certain Additional
    Provisions for Incentive Stock Options


	
 
	 
	
    A-7
	 

	
 
	
 
	
	
 
	 
	

    Section 6 STOCK
    APPRECIATION RIGHTS


	
 
	 
	
    A-8
	 

	

    6.1    Grant of SARs


	
 
	 
	
    A-8
	 

	

    6.2    SAR Agreement


	
 
	 
	
    A-8
	 

	

    6.3    Expiration of SARs


	
 
	 
	
    A-8
	 

	

    6.4    Payment of SAR
    Amount


	
 
	 
	
    A-8
	 

	
 
	
 
	
	
 
	 
	

    Section 7 RESTRICTED
    STOCK


	
 
	 
	
    A-8
	 

	

    7.1    Grant of Restricted
    Stock


	
 
	 
	
    A-8
	 

	

    7.2    Restricted Stock
    Agreement


	
 
	 
	
    A-9
	 

	

    7.3    Transferability


	
 
	 
	
    A-9
	 

	

    7.4    Other Restrictions


	
 
	 
	
    A-9
	 

	

    7.5    Removal of
    Restrictions


	
 
	 
	
    A-9
	 

	

    7.6    Voting Rights


	
 
	 
	
    A-9
	 

	

    7.7    Dividends and Other
    Distributions


	
 
	 
	
    A-9
	 

	

    7.8    Return of Restricted
    Stock to Company


	
 
	 
	
    A-9
	 





    

    A-ii








Table of Contents





	 	 	 	 	 
	
 
	
 
	
    Page

	 

	

    Section 8 PERFORMANCE
    UNITS


	
 
	 
	
    A-10
	 

	

    8.1    Grant of Performance
    Units


	
 
	 
	
    A-10
	 

	

    8.2    Value of Performance
    Units


	
 
	 
	
    A-10
	 

	

    8.3    Performance Objectives
    and Other Terms


	
 
	 
	
    A-10
	 

	

    8.4    Earning of Performance
    Units


	
 
	 
	
    A-10
	 

	

    8.5    Form and Timing of
    Payment of Performance Units


	
 
	 
	
    A-10
	 

	

    8.6    Cancellation of
    Performance Units


	
 
	 
	
    A-10
	 

	
 
	
 
	
	
 
	 
	

    Section 9 PERFORMANCE
    SHARES


	
 
	 
	
    A-10
	 

	

    9.1    Grant of Performance
    Shares


	
 
	 
	
    A-10
	 

	

    9.2    Value of Performance
    Shares


	
 
	 
	
    A-11
	 

	

    9.3    Performance Share
    Agreement


	
 
	 
	
    A-11
	 

	

    9.4    Performance Objectives
    and Other Terms


	
 
	 
	
    A-11
	 

	

    9.5    Earning of Performance
    Shares


	
 
	 
	
    A-11
	 

	

    9.6    Form and Timing of
    Payment of Performance Shares


	
 
	 
	
    A-11
	 

	

    9.7    Cancellation of
    Performance Shares


	
 
	 
	
    A-11
	 

	
 
	
 
	
	
 
	 
	

    Section 10 RESTRICTED
    STOCK UNITS


	
 
	 
	
    A-11
	 

	

    10.1  Grant of RSUs


	
 
	 
	
    A-11
	 

	

    10.2  Value of RSUs


	
 
	 
	
    A-12
	 

	

    10.3  RSU Agreement


	
 
	 
	
    A-12
	 

	

    10.4  Earning of RSUs


	
 
	 
	
    A-12
	 

	

    10.5  Form and Timing of Payment of
    RSUs


	
 
	 
	
    A-12
	 

	

    10.6  Cancellation of RSUs


	
 
	 
	
    A-12
	 

	

    10.7  Section 162(m) Performance
    Restrictions


	
 
	 
	
    A-12
	 

	
 
	
 
	
	
 
	 
	

    Section 11 NONEMPLOYEE
    DIRECTOR AWARDS


	
 
	 
	
    A-12
	 

	

    11.1  Granting of Awards


	
 
	 
	
    A-12
	 

	

    11.2  Terms of Awards


	
 
	 
	
    A-13
	 

	

    11.3  Committee Discretion


	
 
	 
	
    A-13
	 

	
 
	
 
	
	
 
	 
	

    Section 12 MISCELLANEOUS


	
 
	 
	
    A-13
	 

	

    12.1  Deferrals


	
 
	 
	
    A-13
	 

	

    12.2  No Effect on Employment or
    Service


	
 
	 
	
    A-14
	 

	

    12.3  Participation


	
 
	 
	
    A-14
	 

	

    12.4  Indemnification


	
 
	 
	
    A-14
	 

	

    12.5  Successors


	
 
	 
	
    A-14
	 

	

    12.6  Beneficiary Designations


	
 
	 
	
    A-14
	 

	

    12.7  Limited Transferability of
    Awards


	
 
	 
	
    A-14
	 

	

    12.8  No Rights as Stockholder


	
 
	 
	
    A-14
	 

	
 
	
 
	
	
 
	 
	

    Section 13 AMENDMENT,
    TERMINATION, AND DURATION


	
 
	 
	
    A-15
	 

	

    13.1  Amendment, Suspension, or
    Termination


	
 
	 
	
    A-15
	 

	

    13.2  Duration of the Plan


	
 
	 
	
    A-15
	 

	
 
	
 
	
	
 
	 
	

    Section 14 TAX
    WITHHOLDING


	
 
	 
	
    A-15
	 

	

    14.1  Withholding Requirements


	
 
	 
	
    A-15
	 

	

    14.2  Withholding Arrangements


	
 
	 
	
    A-15
	 





    

    A-iii








Table of Contents





	 	 	 	 	 
	
 
	
 
	
    Page

	 

	

    Section 15 LEGAL
    CONSTRUCTION


	
 
	 
	
    A-15
	 

	

    15.1  Gender and Number


	
 
	 
	
    A-15
	 

	

    15.2  Severability


	
 
	 
	
    A-15
	 

	

    15.3  Requirements of Law


	
 
	 
	
    A-15
	 

	

    15.4  Securities Law Compliance


	
 
	 
	
    A-15
	 

	

    15.5  Code Section 409A


	
 
	 
	
    A-15
	 

	

    15.6  Governing Law


	
 
	 
	
    A-16
	 

	

    15.7  Captions


	
 
	 
	
    A-16
	 

	
 
	
 
	
	
 
	 














    

    A-iv








Table of Contents







    INFORMATICA
    CORPORATION




    2009 EQUITY INCENTIVE PLAN




    (Effective April 28, 2009)



 




    Section 1

    



 




    BACKGROUND
    AND PURPOSE
    




 



    1.1 Background and Effective
    Date.  The Plan permits the grant of
    Nonqualified Stock Options, Incentive Stock Options, Stock
    Appreciation Rights, Restricted Stock, Restricted Stock Units,
    Performance Units, and Performance Shares. The Plan is effective
    as of April 28, 2009 upon approval by an affirmative vote
    of the holders of a majority of the Shares that are present in
    person or by proxy and entitled to vote at the 2009 Annual
    Meeting of Stockholders of the Company.



 




    1.2 Purpose of the Plan.  The
    Plan is intended to attract, motivate, and retain
    (a) employees of the Company and its Affiliates,
    (b) consultants who provide significant services to the
    Company and its Affiliates, and (c) directors of the
    Company who are employees of neither the Company nor any
    Affiliate. The Plan also is designed to encourage stock
    ownership by Participants, thereby aligning their interests with
    those of the Company’s shareholders and to permit the
    payment of compensation that qualifies as performance-based
    compensation under Section 162(m) of the Code.



 




    Section 2

    



 




    DEFINITIONS
    



 



    The following words and phrases shall have the following
    meanings unless a different meaning is plainly required by the
    context:



 



    2.1 “1934 Act” means the
    Securities Exchange Act of 1934, as amended. Reference to a
    specific section of the 1934 Act or regulation thereunder
    shall include such section or regulation, any valid regulation
    promulgated under such section, and any comparable provision of
    any future legislation or regulation amending, supplementing or
    superseding such section or regulation.



 



    2.2 “Affiliate” means any
    corporation or any other entity (including, but not limited to,
    partnerships and joint ventures) controlling, controlled by, or
    under common control with the Company.



 



    2.3 “Award” means, individually
    or collectively, a grant under the Plan of Options, SARs,
    Restricted Stock, Restricted Stock Units, Performance Units, or
    Performance Shares.



 



    2.4 “Award Agreement” means the
    written agreement setting forth the terms and conditions
    applicable to each Award granted under the Plan.



 



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



 



    2.6 “Change of Control” means
    the occurrence of any of the following events: (a) a change
    in the ownership of the Company which occurs on the date that
    any one person, or more than one person acting as a group,
    (“Person”) acquires ownership of the stock of the
    Company that, together with the stock held by such Person,
    constitutes more than 50% of the total voting power of the stock
    of the Company; provided, however, that for purposes of this
    subsection (a), the acquisition of additional stock by any one
    Person, who is considered to own more than 50% of the total
    voting power of the stock of the Company shall not be considered
    a Change of Control; (b) a change in the effective control
    of the Company which occurs on the date that a majority of the
    members of the Board are replaced during any twelve
    (12) month period by Directors whose appointment or
    election is not endorsed by a majority of the members of the
    Board prior to the date of the appointment or election. For
    purposes of this clause (b), if any Person is considered to
    effectively control the Company, the acquisition of additional
    control of the Company by the same Person shall not be
    considered a Change of Control; or (c) a change in the
    ownership of a substantial portion of the Company’s assets
    which occurs on the date that any Person acquires (or has
    acquired during the twelve (12) month period ending on the
    date of the most recent acquisition by such person or persons)
    assets from the Company that have a total gross fair market
    value equal to or more than 50% of the total gross fair market
    value of all of the assets of the Company immediately prior to
    such acquisition or acquisitions; provided, however, that for




    

    A-1








Table of Contents






    purposes of this subsection (c), gross fair market value means
    the value of the assets of the Company, or the value of the
    assets being disposed of, determined without regard to any
    liabilities associated with such assets. For purposes of this
    Section 2.6, persons will be considered to be acting as a
    group if they are owners of a corporation that enters into a
    merger, consolidation, purchase or acquisition of stock, or
    similar business transaction with the Company. Notwithstanding
    the foregoing, a transaction will not be deemed a Change of
    Control unless the transaction qualifies as a change in control
    event within the meaning of Code Section 409A, as it has
    been and may be amended from time to time, and any proposed or
    final Treasury Regulations and Internal Revenue Service guidance
    that has been promulgated or may be promulgated thereunder from
    time to time.



 



    2.7 “Code” means the Internal
    Revenue Code of 1986, as amended. Reference to a specific
    section of the Code or regulation thereunder shall include such
    section or regulation, any valid regulation promulgated under
    such section, and any comparable provision of any future
    legislation or regulation amending, supplementing or superseding
    such section or regulation.



 



    2.8 “Committee” means the
    committee appointed by the Board (pursuant to Section 3.1)
    to administer the Plan.



 



    2.9 “Company” means Informatica
    Corporation, a Delaware corporation, or any successor thereto.



 



    2.10 “Consultant” means any
    consultant, independent contractor, or other person who provides
    significant services to the Company or its Affiliates, but who
    is neither an Employee nor a Director.



 



    2.11 “Determination Date” means
    the latest possible date that will not jeopardize the
    qualification of an Award granted under the Plan as
    “performance-based compensation” under
    Section 162(m) of the Code.



 



    2.12 “Director” means any
    individual who is a member of the Board of Directors of the
    Company.



 



    2.13 “Disability” means a
    permanent disability in accordance with a policy or policies
    established by the Committee (in its discretion) from time to
    time.



 



    2.14 “Employee” means any
    employee of the Company or of an Affiliate, whether such
    employee is so employed at the time the Plan is adopted or
    becomes so employed subsequent to the adoption of the Plan.



 



    2.15 “Exchange Program” means a
    program established by the Committee under which outstanding
    Awards are amended to provide for a lower Exercise Price or
    surrendered or cancelled in exchange for Awards with a lower
    Exercise Price. Notwithstanding the preceding, the term Exchange
    Program does not include any (a) action described in
    Section 4.4, nor (b) transfer or other disposition
    permitted under Section 12.7.



 



    2.16 “Exercise Price” means the
    price at which a Share may be purchased by a Participant
    pursuant to the exercise of an Option.



 



    2.17 “Fair Market Value” means
    the closing per share selling price for Shares on Nasdaq on the
    relevant date, or if there were no sales on such date, the
    average of the closing sales prices on the immediately following
    and preceding trading dates, in either case as reported by The
    Wall Street Journal or such other source selected in the
    discretion of the Committee (or its delegate). Notwithstanding
    the preceding, for federal, state, and local income tax
    reporting purposes, fair market value shall be determined by the
    Company in accordance with uniform and nondiscriminatory
    standards adopted by it from time to time.



 



    2.18 “Fiscal Quarter” means a
    fiscal quarter of the Company.



 



    2.19 “Fiscal Year” means the
    fiscal year of the Company.



 



    2.20 “Grant Date” means, with
    respect to an Award, the date that the Award was granted. The
    Grant Date of an Award shall not be earlier than the date the
    Award is approved by the Committee.



 



    2.21 “Incentive Stock Option”
    means an Option to purchase Shares that is designated as an
    Incentive Stock Option and is intended to meet the requirements
    of Section 422 of the Code.



 



    2.22 “Nonemployee Director”
    means a Director who is an employee of neither the Company nor
    of any Affiliate.




    

    A-2








Table of Contents





 



    2.23 “Nonqualified Stock
    Option” means an option to purchase Shares that
    is not intended to be an Incentive Stock Option.



 



    2.24 “Option” means an
    Incentive Stock Option or a Nonqualified Stock Option.



 



    2.25 “Participant” means an
    Employee, Consultant, or Nonemployee Director who has an
    outstanding Award.



 



    2.26 “Performance Goals” means
    the goal(s) (or combined goal(s)) determined by the Committee
    (in its discretion) to be applicable to a Participant with
    respect to an Award. As determined by the Committee, the
    Performance Goals applicable to an Award may provide for a
    targeted level or levels of achievement using one or more of the
    following measures: (a) Profit, (b) Revenue, and
    (c) Total Shareholder Return. The Performance Goals may
    differ from Participant to Participant and from Award to Award.
    Any criteria used may be measured, as applicable, (i) in
    absolute terms, (ii) in relative terms (including, but not
    limited to, passage of time
    and/or
    against another company or companies), (iii) on a per-share
    basis, (iv) against the performance of the Company as a
    whole or a business unit of the Company
    and/or
    (v) on a pre-tax or after-tax basis. Prior to the
    Determination Date, the Committee shall determine whether any
    element(s) or item(s) shall be included in or excluded from the
    calculation of any Performance Goal with respect to any
    Participants.



 



    2.27 “Performance Period” means
    any Fiscal Quarter or such longer period as determined by the
    Committee in its sole discretion.



 



    2.28 “Performance Share” means
    an Award granted to a Participant pursuant to Section 9.



 



    2.29 “Performance Unit” means
    an Award granted to a Participant pursuant to Section 8.



 



    2.30 “Period of Restriction”
    means the period during which the transfer of Shares of
    Restricted Stock are subject to restrictions and therefore, the
    Shares are subject to a substantial risk of forfeiture. As
    provided in Section 7, such restrictions may be based on
    the passage of time, the achievement of target levels of
    performance, or the occurrence of other events as determined by
    the Committee, in its discretion.



 



    2.31 “Plan” means the
    Informatica Corporation 2009 Equity Incentive Plan, as set forth
    in this instrument and as hereafter amended from time to time.



 



    2.32 “Profit” means as to any
    Performance Period, the Company’s income, determined in
    accordance with generally accepted accounting principles.



 



    2.33 “Restricted Stock” means
    an Award granted to a Participant pursuant to Section 7.



 



    2.34 “Restricted Stock Unit” or
    “RSU” means an Award granted to a
    Participant pursuant to Section 10.
    “Revenue” means as to
    any Performance Period, the Company’s net revenues
    generated from third parties, determined in accordance with
    generally accepted accounting principles.



 



    2.36 “RSU Vesting Commencement
    Date” means the first day of the second month
    of the quarter in which the RSU was granted to a Participant
    pursuant to the Plan.



 



    2.37 “Rule 16b-3”
    means
    Rule 16b-3
    promulgated under the 1934 Act, and any future regulation
    amending, supplementing or superseding such regulation.



 



    2.38 “Section 16 Person”
    means a person who, with respect to the Shares, is subject to
    Section 16 of the 1934 Act.



 



    2.39 “Shares” means the shares
    of common stock of the Company.



 



    2.40 “Stock Appreciation Right” or
    “SAR” means an Award, granted alone
    or in connection with a related Option, that pursuant to
    Section 6 is designated as an SAR.



 



    2.41 “Subsidiary” means any
    corporation in an unbroken chain of corporations beginning with
    the Company as the corporation at the top of the chain, but only
    if each of the corporations below the Company (other than the
    last corporation in the unbroken chain) then owns stock
    possessing fifty percent (50%) or more of the total combined
    voting power of all classes of stock in one of the other
    corporations in such chain.




    

    A-3








Table of Contents





 



    2.42 “Tax Obligations” means
    tax and social insurance liability obligations and requirements
    in connection with the Awards, including, without limitation,
    (a) all federal, state, and local taxes (including the
    Participant’s FICA obligation) that are required to be
    withheld by the Company or the employing Affiliate, (b) the
    Participant’s and, to the extent required by the Company
    (or the employing Affiliate), the Company’s (or the
    employing Affiliate’s) fringe benefit tax liability, if
    any, associated with the grant, vesting, or sale of Shares, and
    (c) any other Company (or employing Affiliate) taxes the
    responsibility for which the Participant has agreed to bear with
    respect to such Award (or exercise thereof or issuance of Shares
    thereunder).



 



    2.43 “Termination of Service”
    means (a) in the case of an Employee, a cessation of the
    employee-employer relationship between the Employee and the
    Company or an Affiliate for any reason, including, but not by
    way of limitation, a termination by resignation, discharge,
    death, Disability, retirement, or the disaffiliation of an
    Affiliate, but excluding any such termination where there is a
    simultaneous reemployment by the Company or an Affiliate;
    (b) in the case of a Consultant, a cessation of the service
    relationship between the Consultant and the Company or an
    Affiliate for any reason, including, but not by way of
    limitation, a termination by resignation, discharge, death,
    Disability, or the disaffiliation of an Affiliate, but excluding
    any such termination where there is a simultaneous re-engagement
    of the consultant by the Company or an Affiliate; and
    (c) in the case of a Nonemployee Director, a cessation of
    the Director’s service on the Board for any reason,
    including, but not by way of limitation, a termination by
    resignation, death, Disability, retirement or non-reelection to
    the Board.



 



    2.44 “Total Shareholder Return”
    means as to any Performance Period, the total return (change in
    share price plus reinvestment of any dividends) of a Share.



 




    Section 3

    



 




    ADMINISTRATION
    




 



    3.1 The Committee.  The Plan
    shall be administered by the Committee. The Committee shall
    consist of not less than two (2) Directors who shall be
    appointed from time to time by, and shall serve at the pleasure
    of, the Board of Directors. The Committee shall be comprised
    solely of Directors who are (a) “outside
    directors” under Section 162(m), and
    (b) “non-employee directors” under
    Rule 16b-3.



 



    3.2 Authority of the
    Committee.  It shall be the duty of the
    Committee to administer the Plan in accordance with the
    Plan’s provisions. The Committee shall have all powers and
    discretion necessary or appropriate to administer the Plan and
    to control its operation, including, but not limited to, the
    power to (a) determine which Employees, Consultants and
    Directors shall be granted Awards, (b) prescribe the terms
    and conditions of the Awards, (c) interpret the Plan and
    the Awards, (d) adopt such procedures and subplans as are
    necessary or appropriate to permit participation in the Plan by
    Employees, Consultants and Directors who are foreign nationals
    or employed outside of the United States, (e) adopt rules
    for the administration, interpretation and application of the
    Plan as are consistent therewith, (f) subject to the
    provisions of Section 4.5.5. of the Plan, accelerate the
    exercisability of any outstanding Awards, and
    (g) interpret, amend or revoke any such rules.
    Notwithstanding the preceding, the Committee shall not implement
    an Exchange Program without the approval of the holders of a
    majority of the Shares that are present in person or by proxy
    and entitled to vote at any Annual or Special Meeting of
    Stockholders of the Company.



 



    3.3 Delegation by the
    Committee.  The Committee, in its sole
    discretion and on such terms and conditions as it may provide,
    may delegate all or any part of its authority and powers under
    the Plan to one or more Directors or officers of the Company.
    Notwithstanding the foregoing, with respect to Awards that are
    intended to qualify as performance-based compensation under
    Section 162(m) of the Code, the Committee may not delegate
    its authority and powers with respect to such Awards if such
    delegation would cause the Awards to fail to so qualify.



 



    3.4 Decisions Binding.  All
    determinations and decisions made by the Committee, the Board,
    and any delegate of the Committee pursuant to the provisions of
    the Plan shall be final, conclusive, and binding on all persons,
    and shall be given the maximum deference permitted by law.




    

    A-4








Table of Contents





 




    Section 4

    



 




    SHARES
    SUBJECT TO THE PLAN
    




 



    4.1 Number of Shares.  Subject
    to adjustment as provided in Section 4.4, the total number
    of Shares available issuance under the Plan shall not exceed
    nine million (9,000,000). Shares granted under the Plan may be
    either authorized but unissued Shares or treasury Shares.



 



    4.2 Full Value Awards.  Any
    Shares subject to all Awards except Options and SARs shall be
    counted against the numerical limits of Section 4.1 as one
    and fifty two hundredths (1.52) Shares for every one
    (1) Share subject thereto. Further, if Shares acquired
    pursuant to any Awards of Restricted Stock, Restricted Stock
    Units, Performance Units, and Performance Shares are forfeited
    or repurchased by the Company and would otherwise return to the
    Plan pursuant to Section 4.3, one and fifty two hundredths
    (1.52) times the number of Shares so forfeited or repurchased
    shall return to the Plan and shall again become available for
    issuance.



 



    4.3 Lapsed Awards.  If an Award
    is settled in cash, or is cancelled, terminates, expires, or
    lapses for any reason, any Shares subject to such Award again
    shall be available to be the subject of an Award. With respect
    to Stock Appreciation Rights, all of the Shares covered by the
    Award (that is, Shares actually issued pursuant to a Stock
    Appreciation Right as well as the Shares that represent payment
    of the exercise price and tax related to the Award) shall cease
    to be available under the Plan. Shares that have actually been
    issued under the Plan under any Award shall not be returned to
    the Plan and shall not become available for future distribution
    under the Plan. To the extent an Award under the Plan is paid
    out in cash rather than Shares, such cash payment shall not
    reduce the number of Shares available for issuance under the
    Plan. Notwithstanding the foregoing and, subject to adjustment
    provided in Section 4.4, the maximum number of Shares that
    may be issued upon the exercise of Incentive Stock Options shall
    equal the aggregate Share number stated in Section 4.1,
    plus, to the extent allowable under Section 422 of the
    Code, any Shares that become available for issuance under the
    Plan under this Section 4.3. The following shares shall not
    be available for future grant: (i) shares tendered in payment of
    the exercise price of an option; and (ii) shares withheld by the
    Company or otherwise received by the Company to satisfy tax
    withholding obligations.



 



    4.4 Adjustments in Awards and Authorized
    Shares.  In the event that any dividend or
    other distribution (whether in the form of cash, Shares, other
    securities, or other property), recapitalization, stock split,
    reverse stock split, reorganization, merger, consolidation,
    split-up,
    spin-off, combination, repurchase, or exchange of Shares or
    other securities of the Company, or other change in the
    corporate structure of the Company affecting the Shares such
    that an adjustment is determined by the Committee (in its sole
    discretion) to be appropriate in order to prevent dilution or
    enlargement of the benefits or potential benefits intended to be
    made available under the Plan, then the Committee shall, in such
    manner as it may deem equitable, adjust the number and class of
    Shares that may be delivered under the Plan, the number, class,
    and price of Shares (or other property or cash) subject to
    outstanding Awards, and the numerical limits of
    Sections 5.1, 6.1, 7.1, 8.1, 9.1, 10.1 and 11.1.
    Notwithstanding the preceding, the number of Shares subject to
    any Award always shall be a whole number.



 



    4.5 Change of Control.



 



    4.5.1 In the event of a Change of Control, each outstanding
    Award shall be treated as the Committee determines, including,
    without limitation, that each Award be assumed or an equivalent
    option or right substituted by the successor corporation or a
    parent or subsidiary of the successor corporation. The Committee
    shall not be required to treat all Awards similarly in the
    transaction.



 



    4.5.2 In the event that the successor corporation does not
    assume or substitute for the Award, the Participant shall fully
    vest in and have the right to exercise all of his or her
    outstanding Options and SARs, including Shares as to which such
    Awards would not otherwise be vested or exercisable, all
    restrictions on Restricted Stock and Restricted Stock Units
    shall lapse, and, with respect to Awards with performance-based
    vesting, all performance goals or other vesting criteria shall
    be deemed achieved at 100% on-target levels and all other terms
    and conditions met. In addition, if an Option or SAR is not
    assumed or substituted in the event of a Change of Control, the
    Committee shall notify the Participant in writing or
    electronically that the Option or SAR shall be exercisable for a
    period of time determined by the Committee in its sole
    discretion, and the Option or SAR shall terminate upon the
    expiration of such period.




    

    A-5








Table of Contents





 



    4.5.3 For the purposes of this Section 4.5, an Award
    shall be considered assumed if, following the Change of Control,
    the Award confers the right to purchase or receive, for each
    Share subject to the Award immediately prior to the Change of
    Control, the consideration (whether stock, cash, or other
    securities or property) received in the Change of Control by
    holders of the Shares 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 of Control is
    not solely common stock of the successor corporation or its
    parent, the Committee may, with the consent of the successor
    corporation, provide for the consideration to be received upon
    the exercise of an Option or SAR or upon the payout of a
    Restricted Stock Unit, Restricted Stock, Performance Unit or
    Performance Share, for each Share subject to such 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 Shares in the Change of Control.



 



    4.5.4 Notwithstanding anything in this Section 4.5 to
    the contrary, an Award that vests, is earned or paid-out upon
    the satisfaction of one or more performance goals will not be
    considered assumed if the Company or its successor modifies any
    of such performance goals without the Participant’s
    consent; provided, however, a modification to such performance
    goals only to reflect the successor corporation’s
    post-Change of Control corporate structure shall not be deemed
    to invalidate an otherwise valid Award assumption.



 



    4.5.5 Further, and notwithstanding anything in this
    Section 4.5 to the contrary, the provisions of this
    Section 4.5 only shall apply upon the consummation of a
    Change of Control, and shall not apply to a proposed or
    potential Change of Control.



 




    Section 5

    



 




    STOCK
    OPTIONS
    




 



    5.1 Grant of Options.  Subject
    to the terms and provisions of the Plan, Options may be granted
    to Employees, Directors and Consultants at any time and from
    time to time as determined by the Committee in its sole
    discretion. The Committee, in its sole discretion, shall
    determine the number of Shares subject to each Option, provided
    that during any Fiscal Year, no Participant shall be granted
    Options (and/or SARs) covering more than a total of one million
    (1,000,000) Shares. Notwithstanding the foregoing, during the
    Fiscal Year in which a Participant first becomes an Employee, he
    or she may be granted Options (and/or SARs) to purchase up to a
    total of an additional two million (2,000,000) Shares. The
    Committee may grant Incentive Stock Options, Nonqualified Stock
    Options, or a combination thereof.



 



    5.2 Award Agreement.  Each
    Option shall be evidenced by an Award Agreement that shall
    specify the Exercise Price, the expiration date of the Option,
    the number of Shares covered by the Option, any conditions to
    exercise the Option, and such other terms and conditions as the
    Committee, in its discretion, shall determine. The Award
    Agreement shall also specify whether the Option is intended to
    be an Incentive Stock Option or a Nonqualified Stock Option.



 



    5.3 Exercise Price.  Subject to
    the provisions of this Section 5.3, the Exercise Price for
    each Option shall be determined by the Committee in its sole
    discretion.



 



    5.3.1 Nonqualified Stock
    Options.  The Exercise Price of each
    Nonqualified Stock option shall be determined by the Committee
    in its discretion but shall be not less than one hundred percent
    (100%) of the Fair Market Value of a Share on the Grant Date.



 



    5.3.2 Incentive Stock Options.  In
    the case of an Incentive Stock Option, the Exercise Price shall
    be not less than one hundred percent (100%) of the Fair Market
    Value of a Share on the Grant Date; provided, however, that if
    on the Grant Date, the Employee (together with persons whose
    stock ownership is attributed to the Employee pursuant to
    Section 424(d) of the Code) owns stock possessing more than
    ten percent (10%) of the total combined voting power of all
    classes of stock of the Company or any of its Subsidiaries, the
    Exercise Price shall be not less than one hundred and ten
    percent (110%) of the Fair Market Value of a Share on the Grant
    Date.



 



    5.3.3 Substitute
    Options.  Notwithstanding the provisions of
    Section 5.3.2, in the event that the Company or an
    Affiliate consummates a transaction described in
    Section 424(a) of the Code (e.g., the acquisition of
    property or stock from an unrelated corporation), persons who
    become Employees, Nonemployee Directors or Consultants on
    account of such transaction may be granted Options in
    substitution for




    

    A-6








Table of Contents






    options granted by their former employer. If such substitute
    Options are granted, the Committee, in its sole discretion and
    consistent with Section 424(a) of the Code, may determine
    that such substitute Options shall have an exercise price less
    than one hundred percent (100%) of the Fair Market Value of the
    Shares on the Grant Date.



 



    5.4 Expiration of Options.



 



    5.4.1 Expiration Dates.  Each
    Option shall terminate no later than the first to occur of the
    following events:



 



    (a) The date for termination of the Option set forth in the
    written Award Agreement; or



 



    (b) The expiration of seven (7) years from the Grant
    Date.



 



    5.4.2 Death or Disability of
    Participant.  Subject to Section 5.4.1,
    if a Participant dies or becomes disabled prior to the
    expiration of his or her Options, the Committee, in its
    discretion, may provide that his or her Options shall be
    exercisable for up to one (1) year after the date of death.



 



    5.4.3 Committee
    Discretion.  Subject to the seven
    (7) limit of Sections 5.4.1, the Committee, in its
    sole discretion, (a) shall provide in each Award Agreement
    when each Option expires and becomes unexercisable, and
    (b) may, after an Option is granted, extend the maximum
    term of the Option (subject to Section 5.8.4 regarding
    Incentive Stock Options).



 



    5.5 Exercisability of
    Options.  Options granted under the Plan
    shall be exercisable at such times and be subject to such
    restrictions and conditions as the Committee shall determine in
    its sole discretion. Subject to the provisions of
    Section 4.5.5 of the Plan, after an Option is granted, the
    Committee, in its sole discretion, may accelerate the
    exercisability of the Option.



 



    5.6 Payment.  Options shall be
    exercised by the Participant giving notice and following such
    procedures as the Company (or its designee) may specify from
    time to time. Exercise of an Option also requires that the
    Participant make arrangements satisfactory to the Company for
    full payment of the Exercise Price for the Shares. All exercise
    notices shall be given in the form and manner specified by the
    Company from time to time. The Exercise Price shall be payable
    to the Company in full in cash or its equivalent. The Committee,
    in its sole discretion, also may permit exercise (a) by
    tendering previously acquired Shares having an aggregate Fair
    Market Value at the time of exercise equal to the total Exercise
    Price, or (b) by any other means which the Committee, in
    its sole discretion, determines to both provide legal
    consideration for the Shares, and to be consistent with the
    purposes of the Plan. As soon as practicable after receipt of a
    notification of exercise satisfactory to the Company and full
    payment for the Shares purchased, the Company shall deliver to
    the Participant (or the Participant’s designated broker),
    Share certificates (which may be in book entry form)
    representing such Shares.



 



    5.7 Restrictions on Share
    Transferability.  The Committee may impose
    such restrictions on any Shares acquired pursuant to the
    exercise of an Option as it may deem advisable, including, but
    not limited to, restrictions related to applicable federal
    securities laws, the requirements of any national securities
    exchange or system upon which Shares are then listed or traded,
    or any blue sky or state securities laws.



 



    5.8 Certain Additional Provisions for Incentive Stock
    Options.



 



    5.8.1 Exercisability.  The
    aggregate Fair Market Value (determined on the Grant Date(s)) of
    the Shares with respect to which Incentive Stock Options are
    exercisable for the first time by any Employee during any
    calendar year (under all plans of the Company and its
    Subsidiaries) shall not exceed $100,000.



 



    5.8.2 Termination of Service.  No
    Incentive Stock Option may be exercised more than three
    (3) months after the Participant’s Termination of
    Service for any reason other than Disability or death, unless
    (a) the Participant dies during such three-month period,
    and/or
    (b) the Award Agreement or the Committee permits later
    exercise (in which case the Option instead may be deemed to be a
    Nonqualified Stock Option). No Incentive Stock Option may be
    exercised more than one (1) year after the
    Participant’s Termination of Service on account of
    Disability, unless (a) the Participant dies during such
    one-year period,
    and/or
    (b) the Award Agreement or the Committee permit later
    exercise (in which case the option instead may be deemed to be a
    Nonqualified Stock Option).




    

    A-7








Table of Contents






    5.8.3 Employees Only.  Incentive
    Stock Options may be granted only to persons who are employees
    of the Company or a Subsidiary on the Grant Date.



 



    5.8.4 Expiration.  No Incentive
    Stock Option may be exercised after the expiration of ten
    (10) years from the Grant Date as required by
    Section 422 of the Code; provided, however, that if the
    Option is granted to an Employee who, together with persons
    whose stock ownership is attributed to the Employee pursuant to
    Section 424(d) of the Code, owns stock possessing more than
    ten percent (10%) of the total combined voting power of all
    classes of the stock of the Company or any of its Subsidiaries,
    the Option may not be exercised after the expiration of five
    (5) years from the Grant Date.



 




    Section 6

    



 




    STOCK
    APPRECIATION RIGHTS
    




 



    6.1 Grant of SARs.  Subject to
    the terms and conditions of the Plan, a SAR may be granted to
    Employees, Directors and Consultants at any time and from time
    to time as shall be determined by the Committee, in its sole
    discretion.



 



    6.1.1 Number of Shares.  The
    Committee shall have complete discretion to determine the number
    of SARs granted to any Participant, provided that during any
    Fiscal Year, no Participant shall be granted SARs (and/or
    Options) covering more than a total of one million (1,000,000)
    Shares. Notwithstanding the foregoing, during the Fiscal Year in
    which a Participant first becomes an Employee, he or she may be
    granted SARs
    (and/or
    Options) covering up to a total of an additional two million
    (2,000,000) Shares.



 



    6.1.2 Exercise Price and Other
    Terms.  The Committee, subject to the
    provisions of the Plan, shall have complete discretion to
    determine the terms and conditions of SARs granted under the
    Plan. The Exercise Price of each SAR shall be determined by the
    Committee in its discretion but shall not be less than one
    hundred percent (100%) of the Fair Market Value of a Share on
    the Grant Date.



 



    6.2 SAR Agreement.  Each SAR
    grant shall be evidenced by an Award Agreement that shall
    specify the exercise price, the term of the SAR, the conditions
    of exercise, and such other terms and conditions as the
    Committee, in its sole discretion, shall determine.



 



    6.3 Expiration of SARs.  An SAR
    granted under the Plan shall expire upon the date determined by
    the Committee, in its sole discretion, and set forth in the
    Award Agreement. Notwithstanding the foregoing, the rules of
    Section 5.4 also shall apply to SARs.



 



    6.4 Payment of SAR
    Amount.  Upon exercise of an SAR, a
    Participant shall be entitled to receive payment from the
    Company in an amount determined by multiplying:



 



    (a) The Fair Market Value of a Share on the date of
    exercise (or, if so specified in the Award Agreement, on the
    date immediately preceding the date of exercise) minus the
    exercise price; times



 



    (b) The number of Shares with respect to which the SAR is
    exercised. At the discretion of the Committee, the payment upon
    SAR exercise may be in cash, in Shares of equal value, or in
    some combination thereof.



 




    Section 7

    



 




    RESTRICTED
    STOCK
    




 



    7.1 Grant of Restricted
    Stock.  Subject to the terms and
    provisions of the Plan, the Committee, at any time and from time
    to time, may grant Shares of Restricted Stock to Employees,
    Directors and Consultants as the Committee, in its sole
    discretion, shall determine. The Committee, in its sole
    discretion, shall determine the number of Shares to be granted
    to each Participant, provided that during any Fiscal Year, no
    Participant shall receive more than a total of three hundred
    thirty three thousand three hundred thirty three (333,333)
    Shares of Restricted Stock (and/or Performance Shares or
    Restricted Stock Units). Notwithstanding the foregoing, during
    the Fiscal Year in which a Participant first becomes an
    Employee, he or she may be granted up to a total of an
    additional six hundred




    

    A-8








Table of Contents






    sixty six thousand six hundred sixty seven (666,667) Shares of
    Restricted Stock (and/or Performance Shares or Restricted Stock
    Units).



 



    7.2 Restricted Stock
    Agreement.  Each Award of Restricted Stock
    shall be evidenced by an Award Agreement that shall specify the
    Period of Restriction, the number of Shares granted, and such
    other terms and conditions as the Committee, in its sole
    discretion, shall determine. Unless the Committee determines
    otherwise, Shares of Restricted Stock shall be held by the
    Company as escrow agent until the restrictions on such Shares
    have lapsed.



 



    7.3 Transferability.  Except as
    provided in this Section 7, Shares of Restricted Stock may
    not be sold, transferred, pledged, assigned, or otherwise
    alienated or hypothecated until the end of the applicable Period
    of Restriction.



 



    7.4 Other Restrictions.  The
    Committee, in its sole discretion, may impose such other
    restrictions on Shares of Restricted Stock as it may deem
    advisable or appropriate, in accordance with this
    Section 7.4.



 



    7.4.1 General Restrictions.  The
    Committee may set restrictions based upon continued employment
    or service with the Company and its affiliates, the achievement
    of specific performance objectives (Company-wide, departmental,
    or individual), applicable federal or state securities laws, or
    any other basis determined by the Committee in its discretion.



 



    7.4.2 Section 162(m) Performance
    Restrictions.  For purposes of qualifying
    grants of Restricted Stock as “performance-based
    compensation” under Section 162(m) of the Code, the
    Committee, in its discretion, may set restrictions based upon
    the achievement of Performance Goals. The Performance Goals
    shall be set by the Committee on or before the latest date
    permissible to enable the Restricted Stock to qualify as
    “performance-based compensation” under
    Section 162(m) of the Code. In granting Restricted Stock
    which is intended to qualify under Section 162(m) of the
    Code, the Committee shall follow any procedures determined by it
    from time to time to be necessary or appropriate to ensure
    qualification of the Restricted Stock under Section 162(m)
    of the Code (e.g., in determining the Performance Goals).



 



    7.4.3 Legend on Certificates.  The
    Committee, in its discretion, may legend the certificates
    representing Restricted Stock to give appropriate notice of such
    restrictions.



 



    7.5 Removal of
    Restrictions.  Except as otherwise
    provided in this Section 7, Shares of Restricted Stock
    covered by each Restricted Stock grant made under the Plan shall
    be released from escrow as soon as practicable after the last
    day of the Period of Restriction. Subject to the provisions of
    Section 4.5.5. of the Plan, the Committee, in its
    discretion, may accelerate the time at which any restrictions
    shall lapse or be removed. After the restrictions have lapsed,
    the Participant shall be entitled to have any legend or legends
    under Section 7.4.3 removed from his or her Share
    certificate, and the Shares shall be freely transferable by the
    Participant. The Committee (in its discretion) may establish
    procedures regarding the release of Shares from escrow and the
    removal of legends, as necessary or appropriate to minimize
    administrative burdens on the Company



 



    7.6 Voting Rights.  During the
    Period of Restriction, Participants holding Shares of Restricted
    Stock granted hereunder may exercise full voting rights with
    respect to those Shares, unless the Committee determines
    otherwise.



 



    7.7 Dividends and Other
    Distributions.  During the Period of
    Restriction, Participants holding Shares of Restricted Stock
    shall be entitled to receive all dividends and other
    distributions paid with respect to such Shares unless otherwise
    provided in the Award Agreement. Any such dividends or
    distribution shall be subject to the same restrictions on
    transferability and forfeitability as the Shares of Restricted
    Stock with respect to which they were paid, unless otherwise
    provided in the Award Agreement.



 



    7.8 Return of Restricted Stock to
    Company.  On the date set forth in the
    Award Agreement, the Restricted Stock for which restrictions
    have not lapsed shall revert to the Company and again shall
    become available for grant under the Plan.




    

    A-9








Table of Contents





 




    Section 8

    



 




    PERFORMANCE
    UNITS
    




 



    8.1 Grant of Performance
    Units.  Performance Units may be granted
    to Employees, Directors and Consultants at any time and from
    time to time, as shall be determined by the Committee, in its
    sole discretion. The Committee shall have complete discretion in
    determining the number of Performance Units granted to each
    Participant provided that during any Fiscal Year, no Participant
    shall receive Performance Units having an initial value greater
    than three million dollars ($3,000,000). Notwithstanding the
    foregoing, during the Fiscal Year in which a Participant first
    becomes an Employee, he or she may be granted additional
    Performance Shares having an initial value of up to three
    million dollars ($3,000,000).



 



    8.2 Value of Performance
    Units.  Each Performance Unit shall have
    an initial value that is established by the Committee on or
    before the Grant Date.



 



    8.3 Performance Objectives and Other
    Terms.  The Committee, in its discretion,
    shall set performance objectives or other vesting criteria
    which, depending on the extent to which they are met, will
    determine the number or value of Performance Units that will be
    paid out to the Participants. Each Award of Performance Units
    shall be evidenced by an Award Agreement that shall specify the
    Performance Period, and such other terms and conditions as the
    Committee, in its sole discretion, shall determine.



 



    8.3.1 General Performance Objectives or Vesting
    Criteria.  The Committee may set performance
    objectives or vesting criteria based upon the achievement of
    Company-wide, departmental, or individual goals, applicable
    federal or state securities laws, or any other basis determined
    by the Committee in its discretion (for example, but not by way
    of limitation, continuous service as an Employee, Director or
    Consultant).



 



    8.3.2 Section 162(m) Performance
    Objectives.  For purposes of qualifying grants
    of Performance Units as “performance-based
    compensation” under Section 162(m) of the Code, the
    Committee, in its discretion, may determine that the performance
    objectives applicable to Performance Units shall be based on the
    achievement of Performance Goals. The Performance Goals shall be
    set by the Committee on or before the latest date permissible to
    enable the Performance Units to qualify as
    “performance-based compensation” under
    Section 162(m) of the Code. In granting Performance Units
    that are intended to qualify under Section 162(m) of the
    Code, the Committee shall follow any procedures determined by it
    from time to time to be necessary or appropriate to ensure
    qualification of the Performance Units under Section 162(m)
    of the Code (e.g., in determining the Performance Goals).



 



    8.4 Earning of Performance
    Units.  After the applicable Performance
    Period has ended, the holder of Performance Units shall be
    entitled to receive a payout of the number of Performance Units
    earned by the Participant over the Performance Period, to be
    determined as a function of the extent to which the
    corresponding performance objectives have been achieved. Subject
    to the provisions of Section 4.5.5 of the Plan, after the
    grant of a Performance Unit, the Committee, in its sole
    discretion, may reduce or waive any performance objectives for
    such Performance Unit.



 



    8.5 Form and Timing of Payment of Performance
    Units.  Payment of earned Performance
    Units shall be made as soon as practicable after the expiration
    of the applicable Performance Period. The Committee, in its sole
    discretion, may pay earned Performance Units in the form of
    cash, in Shares (which have an aggregate Fair Market Value equal
    to the value of the earned Performance Units at the close of the
    applicable Performance Period) or in a combination thereof.



 



    8.6 Cancellation of Performance
    Units.  On the date set forth in the Award
    Agreement, all unearned or unvested Performance Units shall be
    forfeited to the Company, and again shall be available for grant
    under the Plan.



 




    Section 9

    



 




    PERFORMANCE
    SHARES
    




 



    9.1 Grant of Performance
    Shares.  Performance Shares may be granted
    to Employees, Directors and Consultants at any time and from
    time to time, as shall be determined by the Committee, in its
    sole discretion.




    

    A-10








Table of Contents






    The Committee shall have complete discretion in determining the
    number of Performance Shares granted to each Participant,
    provided that during any Fiscal Year, no Participant shall be
    granted more than a total of three hundred thirty three thousand
    three hundred thirty three (333,333) Performance Shares (and/or
    Shares of Restricted Stock or Restricted Stock Units).
    Notwithstanding the foregoing, during the Fiscal Year in which a
    Participant first becomes an Employee, he or she may be granted
    up to a total of an additional six hundred sixty six thousand
    six hundred sixty seven (666,667) Performance Shares (and/or
    Shares of Restricted Stock or Restricted Stock Units).



 



    9.2 Value of Performance
    Shares.  Each Performance Share shall have
    an initial value equal to the Fair Market Value of a Share on
    the Grant Date.



 



    9.3 Performance Share
    Agreement.  Each Award of Performance
    Shares shall be evidenced by an Award Agreement that shall
    specify any vesting conditions, the number of Performance Shares
    granted, and such other terms and conditions as the Committee,
    in its sole discretion, shall determine.



 



    9.4 Performance Objectives and Other
    Terms.  The Committee, in its discretion,
    shall set performance objectives or other vesting criteria
    which, depending on the extent to which they are met, will
    determine the number or value of Performance Shares that will be
    paid out to the Participants. Each Award of Performance Shares
    shall be evidenced by an Award Agreement that shall specify the
    Performance Period, and such other terms and conditions as the
    Committee, in its sole discretion, shall determine.



 



    9.4.1 General Performance Objectives or Vesting
    Criteria.  The Committee may set performance
    objectives or vesting criteria based upon the achievement of
    Company-wide, departmental, or individual goals, applicable
    federal or state securities laws, or any other basis determined
    by the Committee in its discretion (for example, but not by way
    of limitation, continuous service as an Employee, Director or
    Consultant).



 



    9.4.2 Section 162(m) Performance
    Objectives.  For purposes of qualifying grants
    of Performance Shares as “performance-based
    compensation” under Section 162(m) of the Code, the
    Committee, in its discretion, may determine that the performance
    objectives applicable to Performance Shares shall be based on
    the achievement of Performance Goals. The Performance Goals
    shall be set by the Committee on or before the latest date
    permissible to enable the Performance Shares to qualify as
    “performance-based compensation” under
    Section 162(m) of the Code. In granting Performance Shares
    that are intended to qualify under Section 162(m) of the
    Code, the Committee shall follow any procedures determined by it
    from time to time to be necessary or appropriate to ensure
    qualification of the Performance Shares under
    Section 162(m) of the Code (e.g., in determining the
    Performance Goals).



 



    9.5 Earning of Performance
    Shares.  After the applicable Performance
    Period has ended, the holder of Performance Shares shall be
    entitled to receive a payout of the number of Performance Shares
    earned by the Participant over the Performance Period, to be
    determined as a function of the extent to which the
    corresponding performance objectives have been achieved. Subject
    to the provisions of Section 4.5.5. of the Plan, after the
    grant of a Performance Share, the Committee, in its sole
    discretion, may reduce or waive any performance objectives for
    such Performance Share.



 



    9.6 Form and Timing of Payment of Performance
    Shares.  Payment of vested Performance
    Shares shall be made as soon as practicable after vesting
    (subject to any deferral permitted under Section 12.1). The
    Committee, in its sole discretion, may pay Performance Shares in
    the form of cash, in Shares or in a combination thereof.



 



    9.7 Cancellation of Performance
    Shares.  On the date set forth in the
    Award Agreement, all unvested Performance Shares shall be
    forfeited to the Company, and except as otherwise determined by
    the Committee, again shall be available for grant under the Plan.



 




    Section 10

    



 




    RESTRICTED
    STOCK UNITS
    




 



    10.1 Grant of RSUs.  Restricted
    Stock Units may be granted to Employees, Directors and
    Consultants at any time and from time to time, as shall be
    determined by the Committee, in its sole discretion. The
    Committee shall have complete discretion in determining the
    number of Restricted Stock Units granted to each Participant,
    provided




    

    A-11








Table of Contents






    that during any Fiscal Year, no Participant shall be granted
    more than a total of three hundred thirty three thousand three
    hundred thirty three (333,333) Restricted Stock Units (and/or
    Shares of Restricted Stock or Performance Shares).
    Notwithstanding the foregoing, during the Fiscal Year in which a
    Participant first becomes an Employee, he or she may be granted
    up to a total of an additional six hundred sixty six thousand
    six hundred sixty seven (666,667) Restricted Stock Units (and/or
    Shares of Restricted Stock or Performance Shares).



 



    10.2 Value of RSUs.  Each
    Restricted Stock Unit shall have an initial value equal to the
    Fair Market Value of a Share on the Grant Date.



 



    10.3 RSU Agreement.  Each Award
    of Restricted Stock Units shall be evidenced by an Award
    Agreement that shall specify any vesting conditions, the number
    of Restricted Stock Units granted, and such other terms and
    conditions as the Committee, in its sole discretion, shall
    determine.



 



    10.4 Earning of RSUs.  After
    the applicable vesting period has ended, the holder of
    Restricted Stock Units shall be entitled to receive a payout of
    the number of Restricted Stock Units earned by the Participant
    over the vesting period. Subject to the provisions of
    Section 4.5.5. of the Plan, after the grant of a Restricted
    Stock Unit, the Committee, in its sole discretion, may reduce or
    waive any vesting condition for such Restricted Stock Unit.



 



    10.5 Form and Timing of Payment of
    RSUs.  Payment of vested Restricted Stock
    Units shall be made as soon as practicable after vesting
    (subject to any deferral permitted under Section 12.1). The
    Committee, in its sole discretion, may pay Restricted Stock
    Units in the form of cash, in Shares or in a combination thereof.



 



    10.6 Cancellation of RSUs.  On
    the date set forth in the Award Agreement, all unvested
    Restricted Stock Units shall be forfeited to the Company, and
    except as otherwise determined by the Committee, again shall be
    available for grant under the Plan.



 



    10.7 Section 162(m) Performance
    Restrictions.



 



    For purposes of qualifying grants of Restricted Stock Units as
    “performance-based compensation” under
    Section 162(m) of the Code, the Committee, in its
    discretion, may set restrictions based upon the achievement of
    Performance Goals. The Performance Goals shall be set by the
    Committee on or before the latest date permissible to enable the
    Restricted Stock Units to qualify as “performance-based
    compensation” under Section 162(m) of the Code. In
    granting Restricted Stock Units which are intended to qualify
    under Section 162(m) of the Code, the Committee shall
    follow any procedures determined by it from time to time to be
    necessary or appropriate to ensure qualification of the
    Restricted Stock Units under Section 162(m) of the Code
    (e.g., in determining the Performance Goals).



 




    Section 11

    



 




    NON-EMPLOYEE
    DIRECTOR AWARDS
    



 



    The provisions of this Section 11 are applicable only to
    Awards granted to Non-employee Directors.



 



    11.1 Granting of Awards.  The
    Committee’s philosophy is to grant Awards to Non-employee
    Directors of the same type and following the same ratio as
    grants to the Company’s Section 16 officers. The types
    and amounts of Awards to be granted are set out below.



 



    11.1.1 Initial Grants.  Each
    Non-employee Director who first becomes a Non-employee Director
    on or after the effective date of this Plan, automatically, in
    accord with the Committee’s preceding grants to the
    Section 16 officers, shall receive, as of the date that the
    individual first is appointed or elected as a Non-employee
    Director: (a) an Option to purchase sixty thousand (60,000)
    Shares; (b) (x) an Option to purchase thirty thousand
    (30,000) Shares and (y) an Award of ten thousand (10,000)
    Restricted Stock Units; or (c) an Award of twenty thousand
    (20,000) Restricted Stock Units .



 



    11.1.2 Ongoing Grants.  Each
    Nonemployee Director who both is a Nonemployee Director on the
    date of an Annual Meeting of Stockholders of the Company, and
    has served as a Nonemployee Director for at least six
    (6) months prior to such Annual Meeting automatically, in
    accord with the Committee’s preceding grants to the
    Section 16 officers, shall receive, as of the date of the
    Annual Meeting only; (a) an Option to purchase




    

    A-12








Table of Contents






    twenty five thousand (25,000) Shares; (b) (x) an Option to
    purchase twelve thousand five hundred (12,500) Shares and
    (y) an Award of four thousand one hundred sixty seven
    (4,167) Restricted Stock Units; or (c) an Award of eight
    thousand three hundred thirty three (8,333) Restricted Stock
    Units.



 



    11.2 Terms of Awards.



 



    11.2.1 Agreement.  Each Award
    granted pursuant to this Section 11 shall be evidenced by a
    written Award Agreement between the Participant and the Company.



 



    11.2.2 Exercise Price.  The
    Exercise Price for the Shares subject to each Option granted
    pursuant to this Section 11 shall be one hundred percent
    (100%) of the Fair Market Value of such Shares on the Grant Date.



 



    11.2.3 Exercisability and Vesting.



 



    (a) Each Option granted pursuant to Section 11.1.1
    shall become exercisable as to thirty three percent (33%) of the
    Shares on the first anniversary of the Grant Date, as to an
    additional two and seventy eight one-hundredths percent (2.78%)
    on each monthly thereafter until one hundred percent (100%) of
    the Shares have vested.



 



    (b) The Restricted Stock Units granted pursuant to
    Section 11.1.1 shall vest as to thirty three and one third
    percent
    (331/3%)
    of the Restricted Stock Units on each of the first anniversary,
    second anniversary and third anniversary of the RSU Vesting
    Commencement Date, respectively.



 



    (c) Each Option granted pursuant to Section 11.1.2
    shall become exercisable as to one hundred percent (100%) of the
    Shares on the first anniversary of the Grant Date.



 



    (d) The Restricted Stock Units granted pursuant to
    Section 11.1.2 shall vest as to one hundred percent (100%)
    of the Restricted Stock Units on the first anniversary of the
    RSU Vesting Commencement Date.



 



    Notwithstanding the preceding, once a Participant ceases to be a
    Director, his or her Options which are not then exercisable
    shall never become exercisable and shall be immediately
    forfeited and all unvested Restricted Stock Units shall be
    forfeited to the Company.



 



    11.2.4 Expiration of Options.  Each
    Option granted pursuant to this Section 11 shall terminate
    upon the first to occur of the following events:



 



    (a) The expiration of seven (7) years from the Grant
    Date; or



 



    (b) The expiration of three (3) months from the date
    of the Participant’s Termination of Service for any reason
    other than the Participant’s death or Disability;



 



    (c) The expiration of one (1) year from the date of
    the Participant’s Termination of Service by reason of
    Disability or death.



 



    11.2.5 Nonqualified Stock
    Options.  Options granted pursuant to this
    Section 11 shall be designated as Nonqualified Stock
    Options.



 



    11.2.6 Other Terms.  All provisions
    of the Plan not inconsistent with this Section 11 shall
    apply to Awards granted to Nonemployee Directors.



 



    11.3 Committee Discretion.  The
    Committee, in its sole discretion, at any time may change the
    number and other terms and conditions of the Awards subject to
    future grants under this Section 11.



 




    Section 12

    



 




    MISCELLANEOUS
    




 



    12.1 Deferrals  The Committee,
    in its sole discretion, may permit a Participant to defer
    receipt of the payment of cash or the delivery of Shares that
    otherwise would be due to such Participant under an Award. Any
    such




    

    A-13








Table of Contents






    deferral elections shall be subject to such rules and procedures
    as shall be determined by the Committee in its sole discretion.



 



    12.2 No Effect on Employment or
    Service.  Nothing in the Plan shall
    interfere with or limit in any way the right of the Company or
    an Affiliate to terminate any Participant’s employment or
    service at any time, with or without cause. For purposes of the
    Plan, transfer of employment of a Participant between the
    Company and any one of its Affiliates (or between Affiliates)
    shall not be deemed a Termination of Service. Employment with
    the Company and its Affiliates is on an at-will basis only.



 



    12.3 Participation.  No
    Employee, Director or Consultant shall have the right to be
    selected to receive an Award under this Plan, or, having been so
    selected, to be selected to receive a future Award.



 



    12.4 Indemnification.  Each
    person who is or shall have been a member of the Committee, or
    of the Board, shall be indemnified and held harmless by the
    Company against and from (a) any loss, cost, liability, or
    expense that may be imposed upon or reasonably incurred by him
    or her 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 taken or
    failure to act under the Plan or any Award Agreement, and
    (b) from any and all amounts paid by him or her in
    settlement thereof, with the Company’s approval, or paid by
    him or her in satisfaction of any judgment in any such claim,
    action, suit, or proceeding against him or her, provided he or
    she shall give 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
    under the Company’s Certificate of Incorporation or Bylaws,
    by contract, as a matter of law, or otherwise, or under any
    power that the Company may have to indemnify them or hold them
    harmless.



 



    12.5 Successors.  All
    obligations of the Company under the Plan, with respect to
    Awards granted hereunder, shall be binding on any successor to
    the Company, whether the existence of such successor is the
    result of a direct or indirect purchase, merger, consolidation,
    or otherwise, of all or substantially all of the business or
    assets of the Company.



 



    12.6 Beneficiary
    Designations.  If permitted by the
    Committee, a Participant under the Plan may name a beneficiary
    or beneficiaries to whom any vested but unpaid Award shall be
    paid in the event of the Participant’s death. Each such
    designation shall revoke all prior designations by the
    Participant and shall be effective only if given in a form and
    manner acceptable to the Committee. In the absence of any such
    designation, any vested benefits remaining unpaid at the
    Participant’s death shall be paid to the Participant’s
    estate and, subject to the terms of the Plan and of the
    applicable Award Agreement, any unexercised vested Award may be
    exercised by the administrator or executor of the
    Participant’s estate.



 



    12.7 Limited Transferability of
    Awards.  No Award granted under the Plan
    may be sold, transferred, pledged, assigned, or otherwise
    alienated or hypothecated, other than by will, by the laws of
    descent and distribution, or to the limited extent provided in
    Section 12.6. All rights with respect to an Award granted
    to a Participant shall be available during his or her lifetime
    only to the Participant. Notwithstanding the foregoing, the
    Participant may, in a manner specified by the Committee, if the
    Committee (in its discretion) so permits, (a) transfer an
    Award to a Participant’s spouse, former spouse or dependent
    pursuant to a court-approved domestic relations order which
    relates to the provision of child support, alimony payments or
    marital property rights, and (b) transfer an Award by bona
    fide gift and not for any consideration, to (i) a member or
    members of the Participant’s immediate family, (ii) a
    trust established for the exclusive benefit of the Participant
    and/or
    member(s) of the Participant’s immediate family,
    (iii) a partnership, limited liability company or other
    entity whose only partners or members are the Participant
    and/or
    member(s) of the Participant’s immediate family, or
    (iv) a foundation in which the Participant an/or member(s)
    of the Participant’s immediate family control the
    management of the foundation’s assets. Any such transfer
    shall be made in accordance with such procedures as the
    Committee may specify from time to time.



 



    12.8 No Rights as
    Stockholder.  No Participant (nor any
    beneficiary) shall have any of the rights or privileges of a
    stockholder of the Company with respect to any Shares issuable
    pursuant to an Award (or exercise thereof), unless and until
    certificates representing such Shares shall have been issued,
    recorded on the records of the Company or its transfer agents or
    registrars, and delivered to the Participant (or beneficiary).




    

    A-14








Table of Contents





 




    Section 13

    



 




    AMENDMENT,
    TERMINATION, AND DURATION
    




 



    13.1 Amendment, Suspension, or
    Termination.  The Board, in its sole
    discretion, may amend, suspend or terminate the Plan, or any
    part thereof, at any time and for any reason. The amendment,
    suspension, or termination of the Plan shall not, without the
    consent of the Participant, alter or impair any rights or
    obligations under any Award theretofore granted to such
    Participant. No Award may be granted during any period of
    suspension or after termination of the Plan.



 



    13.2 Duration of the Plan.  The
    Plan shall be effective as
    of          ,
    2009, and subject to Section 13.1 (regarding the
    Board’s right to amend or terminate the Plan), shall remain
    in effect thereafter. However, without further stockholder
    approval, no Incentive Stock Option may be granted under the
    Plan
    after          ,
    2019.



 




    Section 14

    



 




    TAX
    WITHHOLDING
    




 



    14.1 Withholding
    Requirements.  Prior to the delivery of
    any Shares or cash pursuant to an Award (or exercise thereof),
    the Company shall have the power and the right to deduct or
    withhold, or require a Participant to remit to the Company, an
    amount sufficient to satisfy federal, state, and local taxes
    (including the Participant’s FICA obligation) required to
    be withheld with respect to such Award (or exercise thereof).



 



    14.2 Withholding
    Arrangements.  The Committee, in its sole
    discretion and pursuant to such procedures as it may specify
    from time to time, may permit a Participant to satisfy such Tax
    Obligations, in whole or in part by (a) electing to have
    the Company withhold otherwise deliverable Shares, or
    (b) delivering to the Company already-owned Shares having a
    Fair Market Value equal to the amount required to be withheld or
    remitted. The amount of the Tax Obligations shall be deemed to
    include any amount which the Committee agrees may be withheld at
    the time the election is made, not to exceed the amount
    determined by using the maximum federal, state or local marginal
    income tax rates applicable to the Participant or the Company,
    as applicable, with respect to the Award on the date that the
    amount of tax or social insurance liability to be withheld or
    remitted is to be determined. The Fair Market Value of the
    Shares to be withheld or delivered shall be determined as of the
    date that the Tax Obligations are required to be withheld.



 




    Section 15

    



 




    LEGAL
    CONSTRUCTION
    




 



    15.1 Gender and Number.  Except
    where otherwise indicated by the context, any masculine term
    used herein also shall include the feminine; the plural shall
    include the singular and the singular shall include the plural.



 



    15.2 Severability.  In the
    event any provision of the Plan shall be held illegal or invalid
    for any reason, the illegality or invalidity shall not affect
    the remaining parts of the Plan, and the Plan shall be construed
    and enforced as if the illegal or invalid provision had not been
    included.



 



    15.3 Requirements of Law.  The
    granting of Awards and the issuance of Shares under the Plan
    shall be subject to all applicable laws, rules, and regulations,
    and to such approvals by any governmental agencies or national
    securities exchanges as may be required.



 



    15.4 Securities Law
    Compliance.  With respect to
    Section 16 Persons, transactions under this Plan are
    intended to qualify for the exemption provided by
    Rule 16b-3.
    To the extent any provision of the Plan, Award Agreement or
    action by the Committee fails to so comply, it shall be deemed
    null and void, to the extent permitted by law and deemed
    advisable or appropriate by the Committee.



 



    15.5 Code
    Section 409A.  Unless otherwise
    specifically determined by the Committee, the Committee shall
    comply with Code Section 409A in establishing the rules and
    procedures applicable to deferrals in accordance with
    Section 12.1 and taking or permitting such other actions
    under the terms of the Plan that otherwise would result in a
    deferral of compensation subject to Code Section 409A.




    

    A-15








Table of Contents





 



    15.6 Governing Law.  The Plan
    and all Award Agreements shall be construed in accordance with
    and governed by the laws of the State of California (with the
    exception of its conflict of laws provisions).



 



    15.7 Captions.  Captions are
    provided herein for convenience only, and shall not serve as a
    basis for interpretation or construction of the Plan.


 









    

    A-16