exv10w1






Exhibit 10.1




Gen-Probe Incorporated

Performance Stock Award Grant Notice

(Fourth Amended and Restated 2003 Incentive Award Plan)



Gen-Probe Incorporated (the “Company”), pursuant to Section 9.1 of The Fourth Amended and Restated
2003 Incentive Award Plan of Gen-Probe Incorporated (the “Plan”), hereby awards to Holder the right
to acquire that number of shares of Common Stock set forth below pursuant to the attainment of
certain Performance Criteria and the passage of certain service-based vesting conditions specified
in this Grant Notice (the “Award”). This Award is intended to constitute Performance-Based
Compensation, is evidenced by a Performance Stock Award Agreement (the “Award Agreement”), and is
subject to all of the terms and conditions as set forth herein and in the applicable Award
Agreement and the Plan, each of which is attached hereto and incorporated herein in its entirety.
Capitalized terms not otherwise defined herein shall have the meanings set forth in the Plan or the
Award Agreement. In the event of any conflict between the terms of the Award Agreement, this Grant
Notice, and the Plan, the terms of the Plan shall control.




	 	 	 
	Holder:

	 	[Insert Name of Executive Officer or Senior Director]
	Date of Grant:

	 	[Insert Applicable Date]
	Maximum Number of Shares Subject to Award:

	 	[Insert maximum Number of Shares Subject to Award]
	Payment for Common Stock:

	 	Holder’s services to the Company or an Affiliate





1. Performance Criteria: Subject to Section 2 below, vesting of the shares of Common Stock
subject to the Award (the “Performance Shares”) shall be contingent upon the attainment at the end
of the [Insert Applicable Year] performance period, which begins on January 1, [___], and ends on
December 31, [___] (the “[___] Performance Period”), of a combination of [Identify Performance
Criteria] (collectively the “Performance Criteria”). For purposes of this Grant Notice and the
Award Agreement:




     [Define Performance Criteria and Related Calculations]



 









 




Performance Shares shall vest, if at all, according to the levels specified in the matrix below.
For each of the “Maximum Vesting,” “Target Vesting,” and “Threshold Vesting” vesting levels
specified in the matrix below (each such vesting level, a “Performance Criteria Vesting Level”),
Holder may earn up to the aggregate number of Performance Shares specified by reason of the
attainment of each of the Performance Criteria listed opposite each such Performance Criteria
Vesting Level:




	 	 	 	 	 	 	 
	 	 	[Insert Performance Criteria]	 	[Insert Performance Criteria]	 	[Insert Performance Criteria]
	Maximum Share Vesting

	 	[Insert Performance Level and
Number of Shares Awarded]
	 	[Insert Performance
Level and Number of
Shares Awarded]
	 	[Insert Performance Level
and Number of Shares
Awarded]
	 
	 	 	 	 	 	 
	Target Share Vesting

	 	[Insert Performance Level and
Number of Shares Awarded]
	 	[Insert Performance
Level and Number of
Shares Awarded]
	 	[Insert Performance Level
and Number of Shares
Awarded]
	 
	 	 	 	 	 	 
	Threshold Share Vesting

	 	[Insert Performance Level and
Number of Shares Awarded]
	 	[Insert Performance
Level and Number of
Shares Awarded]
	 	[Insert Performance Level
and Number of Shares
Awarded]





Actual performance levels shall be determined by the Compensation Committee of the Board of
Directors. The extent to which Holder shall earn any Performance Shares for the attainment of
Performance Criteria in between any two Performance Criteria Vesting Levels listed in the matrix
above shall be determined proportionally on a sliding scale for each such Performance Criteria.
Holder shall not earn any Performance Shares for attainment levels below the Threshold Vesting
level for each such Performance Criteria. Holder shall not under any circumstances earn any more
than the maximum number of Performance Shares subject to the Award.



For purposes of clarification and by way of example only, if a total of [Insert Maximum Number]
Performance Shares are subject to Holder’s Award and [Include Hypothetical Example and Resulting
Shares Awarded].



2. Vesting Schedule: Any Performance Shares earned by Holder pursuant to Section 1 of this Grant
Notice shall become vested according to the schedule set forth in the table below; provided,
however, that Holder has not had a Termination of Employment prior to any such vesting date (each
such date, a “Vesting Date”) and provided further that if the Compensation Committee has not
determined actual performance levels against the Performance Criteria by [Insert Date], the First
Vesting Date shall be postponed until the date on which such determination is made. Any fractional
Performance Shares that would otherwise vest on Vesting Dates prior to the Third Vesting Date shall
not vest on such prior Vesting Dates and shall instead vest in the aggregate on the Third Vesting
Date as a whole Performance Share.




	 	 	 	 	 	 	 
	Vesting Date	 	[Insert Applicable Date]	 	[Insert Applicable Date]	 	[Insert Applicable Date]
	Percentage of
Performance Shares
Potentially Vesting

	 	[Insert Applicable Amount]
	 	[Insert Applicable Amount]
	 	[Insert Applicable Amount]





For purposes of clarification and by way of example only, [Insert Vesting Example].



Additional Terms/Acknowledgements: Holder acknowledges receipt of, and understands and agrees to,
this Performance Stock Grant Notice, the Award Agreement, and the Plan. Holder further
acknowledges that as of the Date of Grant, this Performance Stock Grant Notice, the Award Agreement
and the Plan set forth the entire understanding between Holder and the Company regarding the
acquisition of the Common Stock pursuant to the Award specified above and supersede all prior oral
and written agreements on that subject with the exception of Awards, if any, previously granted and
delivered to Holder under the Plan.





 









 








	 	 	 	 	 	 	 	 	 	 	 
	Gen-Probe Incorporated	 	 	 	Holder	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	 

	 	 	 	  

	 	 
	 

	 	Signature
	 	 	 	 	 	Signature	 	 
	 
	Title:

	 	 	 	 	 	Date:	 	 	 	 
	 

	 	 

	 	 	 	 	 	 

	 	 
	Date:
	 	 	 	 	 	 	 	 	 	 
	 

	 	 

	 	 	 	 	 	 	 	 





Attachments: Award Agreement; The Fourth Amended and Restated 2003 Incentive Award Plan








 









 








Gen-Probe Incorporated

Fourth Amended and Restated 2003 Incentive Award Plan

Performance Stock Award Agreement




     Pursuant to the Performance Stock Award Grant Notice (the “Grant Notice”) and this Performance
Stock Award Agreement (the “Agreement”), Gen-Probe Incorporated (the “Company”) has awarded you
(“Holder”) the right to acquire the number of shares of Common Stock from the Company specified in
the Grant Notice attached hereto (the “Award”) in the form of Performance-Based Compensation
pursuant to Section 9.1 of The Fourth Amended and Restated 2003 Incentive Award Plan of Gen-Probe
Incorporated (the “Plan”). The Award is granted in exchange for past or future services to be
rendered by you to the Company or an affiliate of the Company (an “Affiliate”). In the event
additional consideration is required by law so that the Common Stock acquired under this Agreement
is deemed fully paid and nonassessable, the Board shall determine the amount and character of such
additional consideration to be paid. Capitalized terms not otherwise defined in this Agreement
shall have the meanings set forth in the Plan.



     The details of your Award, in addition to those set forth in the Grant Notice, are as follows.


1. Acquisition of Shares. By signing the Grant Notice, you hereby agree to acquire from the
Company, and the Company hereby agrees to issue to you, the number of shares of Common Stock
specified in your Grant Notice for the consideration set forth in Section 3 and subject to all of
the terms and conditions of the Award, this Agreement, the Grant Notice, and the Plan.



2. Closing. After attainment, if any, of the relevant Performance Criteria specified in Section 1
of the Grant Notice, your acquisition of the shares of Common Stock shall remain subject to the
service-based vesting conditions specified in Section 2 of the Grant Notice and shall be
consummated only as follows:




     (a) You will acquire the shares only after: (i) delivering your Grant Notice, executed by you
in the manner required by the Company, to the Corporate Secretary of the Company, or to such other
person as the Company may designate, during regular business hours, on the date that you have
executed the Grant Notice (or at such other time and place as you and the Company may mutually
agree upon in writing) along with any consideration, other than your past or future services,
required to be delivered by you by law and such additional documents as the Company may then
require; and (ii) the attainment, if any, of the Performance Criteria specified in Section 1 of the
Grant Notice, as determined by the Committee (such date after the conditions in (i) and (ii) have
been met, the “Closing Date”).



     (b) The Company will direct the transfer agent for the Company to deliver to the Escrow Agent
pursuant to the terms of Section 9 below, the certificate or certificates evidencing the shares of
Common Stock being acquired by you. You acknowledge and agree that any such shares may be held in
book entry form directly registered with the transfer agent or in such other form as the Company
may determine.


3. Consideration. Unless otherwise required by law, the shares of Common Stock to be delivered to
you on the Closing Date shall be deemed paid, in whole or in part, in exchange for past and future
services to be rendered to the Company or an Affiliate in the amounts and to the extent required by
law.



4. Performance Criteria and Vesting Schedule. The shares will vest, if at all, pursuant to the
Performance Criteria conditions and Vesting Schedule conditions set forth in Sections 1 and 2 of
your Grant Notice, provided that vesting shall cease upon your Termination of Employment, unless
provided otherwise in any other agreement between you and the Company.



5. Right of Reacquisition. The Company shall, simultaneously with your Termination of Employment,
automatically reacquire for no consideration all of the Unvested Shares (the “Reacquisition
Right”), unless the Company agrees to waive its Reacquisition Right as to some or all of the
Unvested Shares. Any such waiver shall be exercised by the Company by written notice to you or
your representative (with a copy to the Escrow Agent, as defined below) within ninety (90) calendar
days after your Termination of Employment, and the Escrow Agent may






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then release to you the number
of Unvested Shares not being reacquired by the Company. If the Company does not
waive its Reacquisition Right as to all of the Unvested Shares, then upon such Termination of
Employment, the Escrow Agent shall transfer to the Company the number of Unvested Shares the
Company is reacquiring. The Reacquisition Right shall expire when all of the shares have become
Vested Shares pursuant to Section 2 of the Grant Notice.



6. Capitalization Changes. The number of shares of Common Stock subject to your Award and
referenced in your Grant Notice may be adjusted from time to time for changes in capitalization
pursuant to Section 12.3 of the Plan.



7. Certain Corporate Transactions. In the event of a transaction described in Section 12.3 of the
Plan, the Reacquisition Right may be assigned by the Company to the successor of the Company (or
such successor’s parent corporation), if any, in connection with such transaction. To the extent
the Reacquisition Right remains in effect following such transaction, it shall apply to the new
capital stock or other property received in exchange for the Common Stock in consummation of the
transaction, but only to the extent the Common Stock was at the time covered by such right.



8. Securities Law Compliance. You may not be issued any Common Stock under your Award unless (i)
the shares of Common Stock are then-registered under the Securities Act of 1933, as amended (the
“Securities Act”), or (ii) the Company has determined that such issuance would be exempt from the
registration requirements of the Securities Act. Your Award must also comply with other applicable
laws and regulations governing the Award, and you shall not receive such Common Stock if the
Company determines that such receipt would not be in compliance with such laws and regulations.



9. Escrow of Unvested Common Stock. As security for your faithful performance of the terms of this
Agreement and to insure the availability for delivery of your Common Stock upon execution of the
Reacquisition Right provided in Section 5 above, you agree to the following “Joint Escrow” and
“Joint Escrow Instructions,” and you and the Company hereby authorize and direct the Corporate
Secretary of the Company or the Corporate Secretary’s designee (“Escrow Agent”) to hold the
documents delivered to Escrow Agent pursuant to the terms of this Agreement and of your Grant
Notice, in accordance with the following Joint Escrow Instructions:




     (a) In the event of your Termination of Employment, the Company shall, pursuant to the
Reacquisition Right, automatically reacquire for no consideration all Unvested Shares, as of the
date of such Termination of Employment, unless the Company elects to waive such right as to some or
all of the Unvested Shares. If the Company (or its assignee) elects to waive the Reacquisition
Right, the Company or its assignee will give you and Escrow Agent a written notice specifying the
number of shares of Common Stock not to be reacquired. You and the Company hereby irrevocably
authorize and direct Escrow Agent to close the transaction contemplated by such notice as soon as
practicable following the date of Termination of Employment in accordance with the terms of this
Agreement and the notice of waiver, if any.



     (b) Vested Shares shall be delivered to you upon your request given in the manner provided in
Section 20 for providing notice.



     (c) At any closing involving the transfer or delivery of some or all of the property subject
to the Grant Notice and this Agreement, Escrow Agent is directed (i) to date any Common Stock
assignments necessary for the transfer in question, (ii) to fill in the number of shares of Common
Stock being transferred, and (iii) to deliver same, together with the certificate, if any,
evidencing the shares of Common Stock to be transferred, to you or the Company, as applicable.



     (d) You irrevocably authorize the Company to deposit with Escrow Agent the certificates, if
any, evidencing shares of Common Stock to be held by Escrow Agent hereunder and any additions and
substitutions to said shares as specified in this Agreement. You do hereby irrevocably constitute
and appoint Escrow Agent as your attorney-in-fact and agent for the term of this escrow to execute
with respect to such securities and other property all documents of assignment and/or transfer and
all stock certificates necessary or appropriate to make all securities negotiable and complete any
transaction herein contemplated.



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     (e) This escrow shall terminate upon the expiration or application in full of the
Reacquisition Right, whichever occurs first, and the completion of the tasks contemplated by these
Joint Escrow Instructions.



     (f) If at the time of termination of this escrow, Escrow Agent should have in its possession
any documents, securities, or other property belonging to Holder, Escrow Agent shall deliver all of
same to Holder and shall be discharged of all further obligations hereunder.



     (g) Except as otherwise provided in these Joint Escrow Instructions, Escrow Agent’s duties
hereunder may be altered, amended, modified, or revoked only by a writing signed by all of the
parties hereto.



     (h) Escrow Agent shall be obligated only for the performance of such duties as are
specifically set forth herein and may rely and shall be protected in relying or refraining from
acting on any instrument reasonably believed by Escrow Agent to be genuine and to have been signed
or presented by the proper party or parties or their assignees. Escrow Agent shall not be
personally liable for any act Escrow Agent may do or omit to do hereunder as Escrow Agent or as
attorney-in-fact for you while acting in good faith and any act done or omitted by Escrow Agent
pursuant to the advice of Escrow Agent’s own attorneys shall be conclusive evidence of such good
faith.



     (i) Escrow Agent is hereby expressly authorized to disregard any and all warnings given by any
of the parties hereto or by any other person or corporation, excepting only orders or process of
courts of law, and is hereby expressly authorized to comply with and obey orders, judgments, or
decrees of any court. In case Escrow Agent obeys or complies with any such order, judgment, or
decree of any court, Escrow Agent shall not be liable to any of the parties hereto or to any other
person, firm, or corporation by reason of such compliance, notwithstanding any such order,
judgment, or decree being subsequently reversed, modified, annulled, set aside, vacated, or found
to have been entered without jurisdiction.



     (j) Escrow Agent shall not be liable in any respect on account of the identity, authority, or
rights of the parties executing or delivering or purporting to execute or deliver this Agreement or
any documents or papers deposited or called for hereunder.



     (k) Escrow Agent shall not be liable for the outlawing of any rights under any statute of
limitations with respect to these Joint Escrow Instructions or any documents deposited with Escrow
Agent.



     (l) Escrow Agent’s responsibilities as Escrow Agent hereunder shall terminate if Escrow Agent
shall cease to be the Secretary of the Company or if Escrow Agent shall resign by written notice to
each party. In the event of any such termination, the Company may appoint any officer or assistant
officer of the Company or other person who in the future assumes the position of Secretary for the
Company as successor Escrow Agent and Holder hereby confirms the appointment of such successor or
successors as Holder’s attorney-in-fact and agent to the full extent of such successor Escrow
Agent’s appointment.



     (m) If Escrow Agent reasonably requires other or further instruments in connection with these
Joint Escrow Instructions or obligations in respect hereto, the necessary parties hereto shall join
in furnishing such instruments.



     (n) It is understood and agreed that should any dispute arise with respect to the delivery
and/or ownership or right of possession of the securities, Escrow Agent is authorized and directed
to retain in its possession without liability to anyone all or any part of said securities until
such dispute shall have been settled either by mutual written agreement of the parties concerned or
by a final order, decree, or judgment of a court of competent jurisdiction after the time for
appeal has expired and no appeal has been perfected, but Escrow Agent shall be under no duty
whatsoever to institute or defend any such proceedings.



     (o) By signing this Agreement below Escrow Agent becomes a party hereto only for the purpose
of said Joint Escrow Instructions in this Section 9; Escrow Agent does not become a party to any
other rights and obligations of this Agreement apart from those in this Section 9.



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     (p) Escrow Agent shall be entitled to employ such legal counsel and other experts as Escrow
Agent may deem necessary to properly advise Escrow Agent in connection with Escrow Agent’s
obligations hereunder. Escrow Agent may rely upon the advice of such counsel, and may pay such
counsel reasonable compensation therefor. The Company shall be responsible for all fees generated
by such legal counsel in connection with Escrow Agent’s obligations hereunder.



     (q) These Joint Escrow Instructions set forth in this Section 9 shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and permitted assigns.
It is understood and agreed that references to “Escrow Agent” or “Escrow Agent’s” herein refer to
the original Escrow Agent and to any and all successor Escrow Agents. It is understood and agreed
that the Company may at any time or from time to time assign its rights under the Agreement and
these Joint Escrow Instructions in whole or in part.


10. Execution of Documents. You hereby acknowledge and agree that the manner selected by the
Company by which you indicate your consent to your Grant Notice is also deemed to be your execution
of your Grant Notice and of this Agreement. You further agree that such manner of indicating
consent may be relied upon as your signature for establishing your execution of any documents to be
executed in the future in connection with your Award.



11. Irrevocable Power of Attorney. You constitute and appoint the Company’s Secretary as
attorney-in-fact and agent to transfer said Common Stock on the books of the Company with full
power of substitution in the premises, and to execute with respect to such securities and other
property all documents of assignment and/or transfer and all stock certificates necessary or
appropriate to make all securities negotiable and complete any transaction herein contemplated.
This is a special power of attorney coupled with an interest (specifically, the Company’s
underlying security interest in retaining the shares of Common Stock in the event you do not
perform the requisite services for the Company), and is irrevocable and shall survive your death or
legal incapacity. This power of attorney is limited to the matters specified in this Agreement.



12. Rights as Stockholder. Subject to the provisions of this Agreement, you shall have the right
to exercise all rights and privileges of a stockholder of the Company with respect to the shares of
Common Stock, if any, deposited in the Joint Escrow after the attainment of the Performance
Criteria specified in Section 1 of the Grant Notice. You shall be deemed to be the holder of the
shares of Common Stock for purposes of receiving any dividends that may be paid with respect to
such shares and for purposes of exercising any voting rights relating to such shares, even if some
or all of the shares are Unvested Shares by reason of Section 2 of the Grant Notice.



13. Transfer Restrictions. In addition to any other limitation on transfer created by applicable
securities laws, you shall not sell, assign, hypothecate, donate, encumber, or otherwise dispose of
any interest in the Common Stock while such shares of Common Stock are Unvested Shares or continue
to be held in the Joint Escrow; provided, however, that an interest in such shares may be
transferred pursuant to a domestic relations order as defined in the Internal Revenue Code of 1986,
as amended (the “Code”), or Title I of the Employee Retirement Income Security Act of 1974, as
amended. After any Common Stock has been released from the Joint Escrow, you shall not sell,
assign, hypothecate, donate, encumber, or otherwise dispose of any interest in the Common Stock
except in compliance with the provisions herein and applicable securities laws. Notwithstanding
the foregoing, by delivering written notice to the Company, in a form satisfactory to the Company,
you may designate a third party who, in the event of your death, shall thereafter be entitled to
receive any distribution of Common Stock pursuant to this Agreement.



14. Non-transferability of the Award. Your Award (except for Vested Shares issued pursuant
thereto) is not transferable except by will or by the laws of descent and distribution. In the
event of your Termination of Employment prior to the Closing Date, the closing contemplated in this
Agreement shall not occur, unless provided otherwise in any other agreement between you and the
Company.



15. Lock-Up Period. You hereby agree that, if so requested by the Company or any representative of
the underwriters (the “Managing Underwriter”) in connection with any registration of the offering
of any securities of the Company under the Securities Act, you shall not sell or otherwise transfer
any shares of Common Stock or other securities of the Company during such period as may be
requested in writing by the Managing Underwriter and






4









 







agreed to in writing by the Company, which period shall not be longer than ninety calendar (90)
days, following the effective date of the applicable registration statement of the Company filed
under the Securities Act.



16. Restrictive Legends. The Common Stock issued under your Award shall be endorsed with
appropriate legends, if any, as determined by the Company.



17. Award not a Service Contract. Your Award is not an employment or service contract, and nothing
in your Award shall be deemed to create in any way whatsoever any obligation on your part to
continue in the service of the Company or any Affiliate, or on the part of the Company or any
Affiliate to continue such service. In addition, nothing in your Award shall obligate the Company
or any Affiliate, their respective stockholders, boards of directors, or employees to continue any
relationship that you might have as an Employee or Consultant of the Company or any Affiliate.



18. Withholding Obligations. At the time your Award is granted, or at any time thereafter as
requested by the Company, you hereby authorize withholding from any amounts payable to you, or
otherwise agree to make adequate provision in cash for, any sums required to satisfy the federal,
state, local and foreign tax withholding obligations of the Company or any Affiliate, if any, which
arise in connection with your Award. In the Company’s sole discretion, the Company may elect, and
you hereby authorize the Company, to satisfy the Company’s withholding obligation by redeeming
Vested Shares in such amounts as the Company determines are necessary, at Fair Market Value on the
date of redemption. Unless the tax withholding obligations of the Company and/or any Affiliate are
satisfied, the Company shall have no obligation to deliver to you any Common Stock.



19. Tax Consequences. You agree to review with your own tax advisors the federal, state, local and
foreign tax consequences of this Award and the transactions contemplated by this Agreement. You
shall rely solely on such advisors and not on any statements or representations of the Company or
any of its agents. You understand that you (and not the Company) shall be responsible for your own
tax liability that may arise as a result of this Award and the transactions contemplated by this
Agreement. You understand that Section 83 of the Code taxes as ordinary income to you the Fair
Market Value of the shares of Common Stock as of the date any restrictions on the shares lapse
(that is, as of the date on which part or all of the shares vest). In this context, “restriction”
includes the right of the Company to reacquire the shares pursuant to its Reacquisition Right. You
understand that you may elect to be taxed on the Fair Market Value of the shares at the time the
shares are acquired rather than when and as the Company’s Reacquisition Right expires by filing an
election under Section 83(b) of the Code with the Internal Revenue Service within thirty (30)
calendar days after the date you acquire the shares pursuant to your Award. YOU ACKNOWLEDGE THAT
IT IS YOUR SOLE RESPONSIBILITY, AND NOT THE COMPANY’S, TO FILE A TIMELY ELECTION UNDER CODE SECTION
83(b), EVEN IF YOU REQUEST THE COMPANY OR ITS REPRESENTATIVES TO MAKE THE FILING ON YOUR BEHALF.
You further acknowledge that you are aware that should you file an election under Section 83(b) of
the Code and then subsequently forfeit the shares, you will not be able to report as a loss the
value of any shares forfeited and will not get a refund of any of the tax paid.



20. Notices. Any notice or request required or permitted hereunder shall be given in writing to
each of the other parties hereto and shall be deemed effectively given on the earlier of (i) the
date of personal delivery, including delivery by express courier, or (ii) the date that is five (5)
calendar days after deposit in the United States Post Office (whether or not actually received by
the addressee), by registered or certified mail with postage and fees prepaid, addressed at the
following addresses, or at such other address(es) as a party may designate by ten (10) calendar
days’ advance written notice to each of the other parties hereto:




	 	 	 	 	 
	 

	 	Company: 
	 	Gen-Probe Incorporated
	 

	 	 	 	Attn: General Counsel
	 

	 	 	 	10210 Genetic Center Drive
	 

	 	 	 	San Diego, CA 92121-4362
	 
	 	 	 	 
	 

	 	Holder: 
	 	Your address as on file with the Company at the time notice is given






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	 	Escrow Agent: 
	 	Gen-Probe Incorporated
	 

	 	 	 	Attn: Corporate Secretary
	 

	 	 	 	10210 Genetic Center Drive
	 

	 	 	 	San Diego, CA 92121-4362





21. Headings. The headings of the Sections in this Agreement are inserted for convenience only and
shall not be deemed to constitute a part of this Agreement or to affect the meaning of this
Agreement.



22. Miscellaneous.




     (a) The rights and obligations of the Company under your Award shall be transferable by the
Company to any one or more persons or entities, and all covenants and agreements hereunder shall
inure to the benefit of, and be enforceable by, the Company’s successors and assigns.



     (b) You agree upon request to execute any further documents or instruments necessary or
desirable in the sole determination of the Company to carry out the purposes or intent of your
Award.



     (c) You acknowledge and agree that you have reviewed your Award in its entirety, have had an
opportunity to obtain the advice of counsel prior to executing and accepting your Award and fully
understand all provisions of your Award.



     (d) This Agreement 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.



     (e) All obligations of the Company under the Plan and this Agreement 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
and/or assets of the Company.


23. Governing Plan Document. Your Award is subject to all the provisions of the Plan, the
provisions of which are hereby made a part of your Award, and is further subject to all
interpretations, amendments, rules and regulations which may from time to time be promulgated and
adopted pursuant to the Plan. In the event of any conflict between the provisions of your Award
and those of the Plan, the provisions of the Plan shall control.



24. Effect on Other Employee Benefit Plans. The value of the Award subject to this Agreement shall
not be included as compensation, earnings, salaries, or other similar terms used when calculating
benefits under any employee benefit plan (other than the Plan) sponsored by the Company or any
Affiliate except as such plan otherwise expressly provides. The Company expressly reserves its
rights to amend, modify, or terminate any or all of the employee benefit plans of the Company or
any Affiliate.



25. Choice of Law. The interpretation, performance and enforcement of this Agreement shall be
governed by the law of the State of California without regard to such State’s conflicts of laws
rules.



26. Severability. If all or any part of this Agreement or the Plan is declared by any court or
governmental authority to be unlawful or invalid, such unlawfulness or invalidity shall not
invalidate any portion of this Agreement or the Plan not declared to be unlawful or invalid. Any
Section of this Agreement (or part of such a Section) so declared to be unlawful or invalid shall,
if possible, be construed in a manner which will give effect to the terms of such Section or part
of a Section to the fullest extent possible while remaining lawful and valid.



27. Other Documents. You hereby acknowledge receipt or the right to receive a document providing
the information required by Rule 428(b)(1) promulgated under the Securities Act. In addition, you
acknowledge receipt of the Company’s Securities Trading Policy.




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*****




     This Performance Stock Award Agreement shall be deemed to be signed by the Company and the
Holder upon the signing by the Holder of the Performance Stock Award Grant Notice to which it is
attached.



     The Escrow Agent hereby acknowledges and accepts its rights and responsibilities pursuant to
Section 9 above.



R. William Bowen

Senior Vice President, General Counsel & Secretary

Solely in the capacity of Escrow Agent





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