exv4w1



 







Exhibit 4.1




eBay Inc.

2001 Equity Incentive Plan, As Amended




Initial Stockholder Approval on May 25, 2001

Amendment Adopted by the Board of Directors on March 14, 2002

Stockholder Approval of Amendment on June 5, 2002

Amendment Adopted by the Compensation Committee as of March 18, 2003

Stockholder Approval of Amendment on June 26, 2003

Amendment Adopted by the Compensation Committee on March 18, 2004

Stockholder Approval of Amendment on June 24, 2004

Amendment Adopted By the Compensation Committee on March 21, 2006

Stockholder Approval of Amendment on June 13, 2006




Termination Date: March 21, 2011




1. Purposes.




     (a) Eligible Option Recipients. The persons eligible to receive Options are the Employees,
Directors and Consultants of the Company and its Affiliates.



     (b) Available Options. The purpose of the Plan is to provide a means by which eligible
recipients of Options may be given an opportunity to benefit from increases in value of the Common
Stock through the granting of (i) Incentive Stock Options and (ii) Nonstatutory Stock Options.



     (c) General Purpose. The Company, by means of the Plan, seeks to retain the services of the
group of persons eligible to receive Options, to secure and retain the services of new members of
this group and to provide incentives for such persons to exert maximum efforts for the success of
the Company and its Affiliates.



2. Definitions.




     (a) “Affiliate” means any parent corporation or subsidiary corporation of the Company, whether
now or hereafter existing, as those terms are defined in Sections 424(e) and (f), respectively, of
the Code, and any other entity which is controlled, directly or indirectly, by the Company.



     (b) “Board” means the Board of Directors of the Company.



     (c) “Code” means the United States Internal Revenue Code of 1986, as amended.



     (d) “Committee” means a committee of one or more members of the Board appointed by the Board
in accordance with subsection 3(c).



     (e) “Common Stock” means the common stock of the Company.



     (f) “Company” means eBay Inc., a Delaware corporation.



     (g) “Consultant” means any natural person, including an advisor, (i) engaged by the Company or
an Affiliate to render consulting or advisory services and who is compensated for such services, or
(ii) who is a member of the Board of Directors or comparable governing body of an Affiliate and who
is compensated for such services. However, the term “Consultant” shall not include Directors who
are not compensated by the Company for their services as Directors. In addition, the payment of a
director’s fee by the Company for services as a Director shall not cause a Director to be
considered a “Consultant” for purposes of the Plan.



     (h) “Continuous Service” means that the Optionholder’s service with the Company or an
Affiliate, whether as an Employee, Director or Consultant, is not interrupted or terminated. The
Optionholder’s Continuous Service shall not be deemed to have terminated merely because of a change
in the capacity in which the Optionholder renders service to the Company or an Affiliate as an
Employee, Consultant or Director or a change in the entity for which the Optionholder renders such
service, provided that there is no



 









 







interruption or termination of the Optionholder’s service with the Company or an Affiliate.
For example, a change in status from an Employee of the Company to a Consultant of an Affiliate or
a Director will not constitute an interruption of Continuous Service. The Board or the chief
executive officer of the Company, in that party’s sole discretion, may determine whether Continuous
Service shall be considered interrupted in the case of any leave of absence approved by that party,
including sick leave, military leave or any other personal leave.



     (i) “Covered Employee” means the chief executive officer and the four (4) other highest
compensated officers of the Company for whom total compensation is required to be reported to
stockholders under the Exchange Act, as determined for purposes of Section 162(m) of the Code.



     (j) “Director” means a member of the Board of Directors of the Company.



     (k) “Disability” means the inability of a natural person to continue to perform services for
the Company or any Affiliate of the type previously performed prior to the occurrence of such
Disability, whether as a result of physical and/or mental illness or injury, as determined by a
physician acceptable to the Company, for a period that is expected to be of a duration of no less
than six (6) months.



     (l) “Employee” means any person employed for tax purposes by the Company or an Affiliate. Mere
service as a Director or payment of a director’s fee by the Company or an Affiliate shall not be
sufficient to constitute “employment” by the Company or an Affiliate.



     (m) “Exchange Act” means the United States Securities Exchange Act of 1934, as amended.



     (n) “Fair Market Value” means, as of any date, the value of the Common Stock determined as
follows:




     (i) If the Common Stock is listed on any established stock exchange or traded on the Nasdaq
National Market or the Nasdaq SmallCap Market, the Fair Market Value of a share of Common Stock
shall be the closing sales price for such stock (or the closing bid, if no sales were reported)
as quoted on such exchange or market (or the exchange or market with the greatest volume of
trading in the Common Stock) on the last market trading day prior to the day of determination, as
reported in The Wall Street Journal or such other source as the Board deems reliable.




     (ii) In the absence of such markets for the Common Stock, the Fair Market Value shall be
determined in good faith by the Board.



     (o) “Incentive Stock Option” means an Option intended to qualify as an incentive stock option
within the meaning of Section 422 of the Code and the regulations promulgated thereunder.



     (p) “Non-Employee Director” means a Director who either (i) is not a current Employee or
Officer of the Company or its parent or a subsidiary, does not receive compensation (directly or
indirectly) from the Company or its parent or a subsidiary for services rendered as a consultant or
in any capacity other than as a Director (except for an amount as to which disclosure would not be
required under Item 404(a) of Regulation S-K promulgated pursuant to the Securities Act
(“Regulation S-K”)), does not possess an interest in any other transaction as to which disclosure
would be required under Item 404(a) of Regulation S-K and is not engaged in a business relationship
as to which disclosure would be required under Item 404(b) of Regulation S-K; or (ii) is otherwise
considered a “non-employee director” for purposes of Rule 16b-3.



     (q) “Nonstatutory Stock Option” means an Option not intended to qualify as an Incentive Stock
Option.



     (r) “Officer” means a person who is an officer of the Company within the meaning of Section 16
of the Exchange Act and the rules and regulations promulgated thereunder.



     (s) “Option” means an Incentive Stock Option or a Nonstatutory Stock Option granted pursuant
to Section 6 of the Plan.



     (t) “Option Agreement” means a written agreement between the Company and an Optionholder
evidencing the terms and conditions of an individual Option grant. Each Option Agreement shall be
subject to the terms and conditions of the Plan.



     (u) “Optionholder” means a person to whom an Option is granted pursuant to the Plan or, if
applicable, such other person who holds an outstanding Option.



 









 





     (v) “Outside Director” means a Director who either (i) is not a current employee of the
Company or an “affiliated corporation” (within the meaning of Treasury Regulations promulgated
under Section 162(m) of the Code), is not a former employee of the Company or an “affiliated
corporation” receiving compensation for prior services (other than benefits under a tax qualified
pension plan), was not an officer of the Company or an “affiliated corporation” at any time and is
not currently receiving direct or indirect remuneration from the Company or an “affiliated
corporation” for services in any capacity other than as a Director or (ii) is otherwise considered
an “outside director” for purposes of Section 162(m) of the Code.



     (w) “Plan” means this eBay Inc. 2001 Equity Incentive Plan, as amended.



     (x) “Rule 16b-3” means Rule 16b-3 promulgated under the Exchange Act or any successor to Rule
16b-3, as in effect from time to time.



     (y) “Securities Act” means the United States Securities Act of 1933, as amended.



     (z) “Ten Percent Stockholder” means a person who owns (or is deemed to own pursuant to Section
424(d) of the Code) stock possessing more than ten percent (10%) of the total combined voting power
of all classes of stock of the Company or of any of its Affiliates.



3. Administration.




     (a) Administration by Board. The Board shall administer the Plan unless and until the Board
delegates administration to a Committee, as provided in subsection 3(c).



     (b) Powers of Board. The Board shall have the power, subject to, and within the limitations
of, the express provisions of the Plan:




     (i) To determine from time to time which of the persons eligible under the Plan shall be
granted Options; when and how each Option shall be granted; what type or combination of types of
Option shall be granted; the provisions of each Option granted (which need not be identical),
including the time or times when a person shall be permitted to receive Common Stock pursuant to
an Option; and the number of shares of Common Stock with respect to which an Option shall be
granted to each such person.




     (ii) To construe and interpret the Plan and Options granted under it, and to establish,
amend and revoke rules and regulations for its administration. The Board, in the exercise of this
power, may correct any defect, omission or inconsistency in the Plan or in any Option Agreement,
in a manner and to the extent it shall deem necessary or expedient to make the Plan fully
effective.




     (iii) To amend the Plan or an Option as provided in Section 11.




     (iv) To terminate or suspend the Plan as provided in Section 12.




     (v) Generally, to exercise such powers and to perform such acts as the Board deems necessary
or expedient in its sole discretion to promote the best interests of the Company and its
stockholders that are not in conflict with the provisions of the Plan.



(c) Delegation to Committee.





     (i) General. The Board may delegate administration of the Plan to a Committee or Committees
of one (1) or more members of the Board, and the term “Committee” shall apply to any person or
persons to whom such authority has been delegated. If administration is delegated to a Committee,
the Committee shall have, in connection with the administration of the Plan, the powers
theretofore possessed by the Board, including the power to delegate to a subcommittee of one (1)
or more members of the Board any of the administrative powers the Committee is authorized to
exercise (and references in this Plan to the Board shall thereafter be to the Committee or
subcommittee), subject, however, to such resolutions, not inconsistent with the provisions of the
Plan, as may be adopted from time to time by the Board. The Board may abolish the Committee at
any time and revest in the Board the administration of the Plan.




     (ii) Committee Composition when Common Stock is Publicly Traded. At such time as the Common
Stock is publicly traded, in the discretion of the Board, a Committee may consist solely of two
(2) or more Outside Directors, in accordance with Section 162(m) of the Code, and/or solely of
two or more Non-Employee Directors, in accordance with Rule 16b-3. Within the



 









 







scope of such authority, the Board or the Committee may (1) delegate to a committee of one
or more members of the Board who are not Outside Directors the authority to grant Options to
eligible persons who are either (a) not then Covered Employees and are not expected to be Covered
Employees at the time of recognition of income resulting from such Option or (b) not persons with
respect to whom the Company wishes to comply with Section 162(m) of the Code and/or (2) delegate
to a committee of one or more members of the Board who are not Non-Employee Directors the
authority to grant Options to eligible persons who are not then subject to Section 16 of the
Exchange Act.



     (d) Effect of Board’s Decision. All determinations, interpretations and constructions made by
the Board in good faith shall not be subject to review by anyone and shall be final, binding and
conclusive on all Optionholders and any other person having an interest in such determination,
interpretation or construction.



4. Shares Subject to the Plan.




     (a) Share Reserve. Subject to the provisions of Section 10 relating to adjustments upon
changes in Common Stock, the Common Stock that may be issued pursuant to Options shall not exceed
in the aggregate Two Hundred Twenty Two Million (222,000,000)1 shares of Common Stock.



     (b) Reversion of Shares to the Share Reserve. If any Option shall for any reason expire or
otherwise terminate, in whole or in part, without having been exercised in full, the shares of
Common Stock not acquired under such Option shall revert to and again become available for issuance
under the Plan. If an Optionholder exercises an Option by attesting to the ownership of shares of
Common Stock in accordance with the provisions of Section 6(c) below, only the net number of
additional shares issued to the Optionholder shall be deducted from the share reserve.



     (c) Source of Shares. The shares of Common Stock subject to the Plan may be unissued shares
or reacquired shares, bought on the market or otherwise.



5. Eligibility.




     (a) Eligibility for Specific Options. Incentive Stock Options may be granted only to
Employees. Nonstatutory Stock Options may be granted to Employees, Directors and Consultants.



     (b) Non-Employee Directors. Notwithstanding the provisions of subsection 5(a) hereof, a
Director who is not an Employee only may be granted nondiscretionary Options that the Stockholders
have approved as to the following option provisions: Number of shares, date of automatic grant,
term, exercise price, consideration, vesting schedule, exercise schedule, and the post-termination
exercise periods.



     (c) Ten Percent Stockholders. Notwithstanding the provisions of subsection 5(a) hereof, a Ten
Percent Stockholder shall not be granted an Incentive Stock Option unless the exercise price of
such Option is at least one hundred ten percent (110%) of the Fair Market Value of the Common Stock
at the date of grant and the Option is not exercisable after the expiration of five (5) years from
the date of grant.



     (d) Section 162(m) Limitation. Notwithstanding the provisions of subsection 5(a) hereof and
subject to the provisions of Section 10 relating to adjustments upon changes in the shares of
Common Stock, no Employee shall be eligible to be granted Options covering more than Four Million
(4,000,000)1 shares of Common Stock during any calendar year.



     (e) Consultants. Notwithstanding the provisions of subsection 5(a) hereof, a Consultant shall
not be eligible for the grant of an Option if, at the time of grant, a Form S-8 Registration
Statement under the Securities Act (“Form S-8”) is not available to register either the offer or
the sale of the Company’s securities to such Consultant because of the nature of the services that
the Consultant is providing to the Company, or because the Consultant is not a natural person, or
as otherwise provided by the rules governing the use of Form S-8.





 




			
	(1)	 	Denotes that such share number reflects the stock split of eBay’s common stock occurring in 8/03 and 2/05.




 









 










6. Option Provisions.




     Each Option shall be in such form and shall contain such terms and conditions as the Board
shall deem appropriate. All Options shall be separately designated Incentive Stock Options or
Nonstatutory Stock Options at the time of grant, and, if certificates are issued, a separate
certificate or certificates will be issued for shares of Common Stock purchased on exercise of each
type of Option. The provisions of separate Options need not be identical, but each Option shall
include (through incorporation of provisions hereof by reference in the Option or otherwise) the
substance of each of the following provisions:



     (a) Term. Subject to the provisions of subsection 5(c) regarding Ten Percent Stockholders, no
Option shall be exercisable after the expiration of ten (10) years from the date it was granted.



(b) Exercise Price.





     (i) Subject to the provisions of subsection 5(c) regarding Ten Percent Stockholders and
subsection 6(b)(ii) below, the exercise price of each Option shall be not less than one hundred
percent (100%) of the Fair Market Value of the Common Stock subject to the Option on the date the
Option is granted.




     (ii) An Option may be granted with an exercise price lower than that set forth in subsection
6(b)(i) above if such Option is granted pursuant to an assumption or substitution for another
option in a manner satisfying the provisions of Section 424(a) of the Code.



(c) Consideration.





     (i) The purchase price of Common Stock acquired pursuant to an Option shall be paid, to the
extent permitted by applicable statutes and regulations, either (i) in cash at the time the
Option is exercised or (ii) at the discretion of the Board at the time of the grant of the Option
(or subsequently in the case of a Nonstatutory Stock Option) (1) by delivery to the Company, or
attestation to the Company of ownership, of other Common Stock or (2) in any other form of legal
consideration that may be acceptable to the Board.




     (ii) Unless otherwise specifically provided, the purchase price of Common Stock acquired
pursuant to an Option that is paid by delivery to the Company, or attestation to the Company of
ownership, of other Common Stock shall be paid only by shares of the Common Stock of the Company
that have been held for more than six (6) months (or such longer or shorter period of time
required to avoid a charge to earnings for financial accounting purposes).



     (d) Transferability of an Incentive Stock Option. An Incentive Stock Option shall not be
transferable except by will or by the laws of descent and distribution and shall be exercisable
during the lifetime of the Optionholder only by the Optionholder. Notwithstanding the foregoing,
the Optionholder may, by delivering written notice to the Company, in a form satisfactory to the
Company, designate a third party who, in the event of the death of the Optionholder, shall
thereafter be entitled to exercise the Option.



     (e) Transferability of a Nonstatutory Stock Option. A Nonstatutory Stock Option shall be
transferable to the extent provided in the Option Agreement. If the Nonstatutory Stock Option does
not provide for transferability, then the Nonstatutory Stock Option shall not be transferable
except by will or by the laws of descent and distribution and shall be exercisable during the
lifetime of the Optionholder only by the Optionholder. Notwithstanding the foregoing, the
Optionholder may, by delivering written notice to the Company, in a form satisfactory to the
Company, designate a third party who, in the event of the death of the Optionholder, shall
thereafter be entitled to exercise the Option.



     (f) Vesting Generally. The total number of shares of Common Stock subject to an Option may,
but need not, vest and therefore become exercisable in periodic installments that may, but need
not, be equal. The Option may be subject to such other terms and conditions on the time or times
when it may be exercised (which may be based on performance or other criteria) as the Board may
deem appropriate. The vesting provisions of individual Options may vary. The provisions of this
subsection 6(f) are subject to any Option provisions governing the minimum number of shares of
Common Stock as to which an Option may be exercised.



     (g) Termination of Continuous Service. In the event an Optionholder’s Continuous Service
terminates (other than upon the Optionholder’s death or Disability), the Optionholder may exercise
his or her Option (to the extent that the Optionholder was entitled to exercise such Option as of
the date of termination) but only within such period of time ending on the earlier of (i) the date
three



 









 




(3) months following the termination of the Optionholder’s Continuous Service (or such longer
or shorter period specified in the Option Agreement), or (ii) the expiration of the term of the
Option as set forth in the Option Agreement. If, after termination, the Optionholder does not
exercise his or her Option within the time specified in the Option Agreement, the Option shall
terminate.




     (h) Extension of Termination Date. An Optionholder’s Option Agreement may also provide that
if the exercise of the Option following the termination of the Optionholder’s Continuous Service
(other than upon the Optionholder’s death or Disability) would be prohibited at any time solely
because the issuance of shares of Common Stock would violate the registration requirements under
the Securities Act, then the Option shall terminate on the earlier of (i) the expiration of the
term of the Option or (ii) the expiration of a period of three (3) months after the termination of
the Optionholder’s Continuous Service during which the exercise of the Option would not be in
violation of such registration requirements.



     (i) Disability of Optionholder. In the event that an Optionholder’s Continuous Service
terminates as a result of the Optionholder’s Disability, the Optionholder may exercise his or her
Option (to the extent that the Optionholder was entitled to exercise such Option as of the date of
termination), but only within such period of time ending on the earlier of (i) the date twelve (12)
months following such termination (or such longer or shorter period specified in the Option
Agreement), or (ii) the expiration of the term of the Option as set forth in the Option Agreement.
If, after termination, the Optionholder does not exercise his or her Option within the time
specified herein, the Option shall terminate.



     (j) Death of Optionholder. In the event (i) an Optionholder’s Continuous Service terminates
as a result of the Optionholder’s death or (ii) the Optionholder dies within the period (if any)
specified in the Option Agreement after the termination of the Optionholder’s Continuous Service
for a reason other than death, then the Option may be exercised (to the extent the Optionholder was
entitled to exercise such Option as of the date of death) by the Optionholder’s estate, by a person
who acquired the right to exercise the Option by bequest or inheritance or by a person designated
to exercise the option upon the Optionholder’s death, but only within the period ending on the
earlier of (1) the date eighteen (18) months following the date of death (or such longer or shorter
period specified in the Option Agreement) or (2) the expiration of the term of such Option as set
forth in the Option Agreement. If, after death, the Option is not exercised within the time
specified herein, the Option shall terminate.



7. Covenants of the Company.




     (a) Availability of Shares. During the terms of the Options, the Company shall keep available
at all times the number of shares of Common Stock required to satisfy such Options.



     (b) Securities Law Compliance. The Company shall seek to obtain from each regulatory
commission or agency having jurisdiction over the Plan such authority as may be required to grant
Options and to issue and sell shares of Common Stock upon exercise of the Options; provided,
however, that this undertaking shall not require the Company to register under the Securities Act
the Plan, any Option or any Common Stock issued or issuable pursuant to any such Option. If, after
reasonable efforts, the Company is unable to obtain from any such regulatory commission or agency
the authority which counsel for the Company deems necessary for the lawful issuance and sale of
Common Stock under the Plan, the Company shall be relieved from any liability for failure to issue
and sell Common Stock upon exercise of such Options unless and until such authority is obtained.



8. Use of Proceeds from Stock.




     Proceeds from the sale of Common Stock pursuant to Options shall constitute general funds of
the Company.



9. Miscellaneous.




     (a) Stockholder Rights. No Optionholder shall be deemed to be the holder of, or to have any
of the rights of a holder with respect to, any shares of Common Stock subject to such Option unless
and until such Optionholder has satisfied all requirements for exercise of the Option pursuant to
its terms.



     (b) No Employment or other Service Rights. Nothing in the Plan or any instrument executed or
Option granted pursuant thereto shall confer upon any Optionholder any right to continue to serve
the Company or an Affiliate in the capacity in effect at the time the Option was granted or shall
affect the right of the Company or an Affiliate to terminate (i) the employment of an Employee with
or without notice and with or without cause, for any reason or no reason, (ii) the service of a
Consultant pursuant to the terms of such Consultant’s agreement with the Company or an Affiliate or
(iii) the service of a Director pursuant to the Bylaws of the Company or



 









 







an Affiliate, and any applicable provisions of the corporate law of the jurisdiction in which
the Company or the Affiliate is incorporated, as the case may be.



     (c) Incentive Stock Option $100,000 Limitation. To the extent that the aggregate Fair Market
Value (determined at the time of grant) of Common Stock with respect to which Incentive Stock
Options are exercisable for the first time by any Optionholder during any calendar year (under all
plans of the Company and its Affiliates) exceeds one hundred thousand dollars ($100,000), the
Options or portions thereof which exceed such limit (according to the order in which they were
granted) shall be treated as Nonstatutory Stock Options.



     (d) Investment Assurances. The Company may require an Optionholder, as a condition of
exercising an Option or acquiring Common Stock under any Option, (i) to give written assurances
satisfactory to the Company as to the Optionholder’s knowledge and experience in financial and
business matters and/or to employ a purchaser representative reasonably satisfactory to the Company
who is knowledgeable and experienced in financial and business matters and that he or she is
capable of evaluating, alone or together with the purchaser representative, the merits and risks of
exercising the Option; (ii) to give written assurances satisfactory to the Company stating that the
Optionholder is acquiring Common Stock subject to the Option for the Optionholder’s own account and
not with any present intention of selling or otherwise distributing the Common Stock; and/or (iii)
to give such other written assurances as the Company shall determine are necessary, desirable or
appropriate to comply with applicable securities regulation and other governing law. The Company
may, upon advice of counsel to the Company, place legends on stock certificates issued under the
Plan as such counsel deems necessary or appropriate in order to comply with applicable securities
laws, including, but not limited to, legends restricting the transfer of the Common Stock.



     (e) Withholding Obligations. To the extent provided by the terms of an Option Agreement, the
Optionholder may satisfy any tax withholding obligation arising under the laws or regulations of
any country, state or local jurisdiction relating to the exercise or acquisition of Common Stock
under an Option by any of the following means (in addition to the Company’s right to withhold from
any compensation paid to the Optionholder by the Company) or by a combination of such means: (i)
tendering a cash payment; (ii) authorizing the Company to withhold shares of Common Stock from the
shares of Common Stock otherwise issuable to the Optionholder as a result of the exercise or
acquisition of Common Stock under the Option; provided, however, that no shares of Common Stock are
withheld with a value exceeding the minimum amount of tax required to be withheld by law (or such
lesser amount as may be required to avoid variable award accounting); or (iii) delivering to the
Company owned and unencumbered shares of Common Stock.



10. Adjustments upon Changes in Stock.




     (a) Capitalization Adjustments. If any change is made in the Common Stock subject to the
Plan, or subject to any Option, without the receipt of consideration by the Company (through
merger, consolidation, reorganization, recapitalization, reincorporation, stock dividend, dividend
in property other than cash, stock split, liquidating dividend, combination of shares, exchange of
shares, change in corporate structure or other transaction not involving the receipt of
consideration by the Company), the Plan will be appropriately adjusted in the class(es) and maximum
number of securities subject to the Plan pursuant to subsection 4(a) and the maximum number of
securities subject to award to any person pursuant to subsection 5(d), and the outstanding Options
will be appropriately adjusted in the class(es) and number of securities and price per share of
Common Stock subject to such outstanding Options. The Board shall make such adjustments, and its
determination shall be final, binding and conclusive. (The conversion of any convertible securities
of the Company shall not be treated as a transaction “without receipt of consideration” by the
Company.)



     (b) Dissolution or Liquidation. In the event of a dissolution or liquidation of the Company,
then all outstanding Options shall terminate immediately prior to such event.



     (c) Corporate Transaction. In the event of (i) a sale, lease or other disposition of all or
substantially all of the assets of the Company, (ii) a merger or consolidation in which the Company
is not the surviving corporation, or (iii) a reverse merger in which the Company is the surviving
corporation but the shares of Common Stock outstanding immediately preceding the merger are
converted by virtue of the merger into other property, whether in the form of securities, cash or
otherwise, then any surviving corporation or acquiring corporation shall assume or continue any
Options outstanding under the Plan or shall substitute similar stock awards (including an award to
acquire the same consideration paid to the stockholders in the transaction described in this
subsection 10(c)) for those outstanding under the Plan. In the event any surviving corporation or
acquiring corporation refuses to assume or continue such Options or to substitute similar stock
awards for those outstanding under the Plan, then with respect to Options held by Optionholders
whose Continuous Service has not terminated, the vesting of such Options (and, if applicable, the
time during which such Options may be exercised) shall be accelerated in full, and the Options
shall terminate if not exercised (if applicable) at or prior to such event.



 









 




With respect to any other Options outstanding under the Plan, such Options shall terminate if
not exercised (if applicable) at or prior to such event.




11. Amendment of the Plan and Options.




     (a) Amendment of Plan. The Board at any time, and from time to time, may amend the Plan.
However, except as provided in Section 10 relating to adjustments upon changes in Common Stock, no
amendment shall be effective unless approved by the stockholders of the Company to the extent
stockholder approval is necessary under applicable laws or regulations or to the extent that such
amendment constitutes a material amendment of the Plan.



     (b) Stockholder Approval. The Board may, in its sole discretion, submit any other amendment
to the Plan for stockholder approval, including, but not limited to, amendments to the Plan
intended to satisfy the requirements of Section 162(m) of the Code and the regulations thereunder
regarding the exclusion of performance-based compensation from the limit on corporate deductibility
of compensation paid to certain executive officers. Notwithstanding any other provision of the Plan
to the contrary, the Board shall not, without prior stockholder approval, (A) reduce the exercise
price of any outstanding Option under the Plan, (B) cancel any outstanding Option under the Plan
and grant in substitution therefor, on either an immediate or delayed basis, a new Option under the
Plan covering the same or a different number of shares of Common Stock or cash, or (C) take any
other action with respect to any outstanding Option under the Plan that is treated as a repricing
of such Option pursuant to generally accepted accounting principles.



     (c) Contemplated Amendments. It is expressly contemplated that the Board may amend the Plan
in any respect the Board deems necessary or advisable to provide eligible Employees with the
maximum benefits provided or to be provided under the provisions of the Code and the regulations
promulgated thereunder relating to Incentive Stock Options and/or to bring the Plan and/or
Incentive Stock Options granted under it into compliance therewith.



     (d) No Impairment of Rights. Rights under any Option granted before amendment of the Plan
shall not be impaired by any amendment of the Plan unless (i) the Company requests the consent of
the Optionholder and (ii) the Optionholder consents in writing.



     (e) Amendment of Options. The Board at any time, and from time to time, may amend the terms
of any one or more Options; provided, however, that the rights under any Option shall not be
impaired by any such amendment unless (i) the Company requests the consent of the Optionholder and
(ii) the Optionholder consents in writing.



12. Termination or Suspension of the Plan.




     (a) Plan Term. The Board may suspend or terminate the Plan at any time. Unless sooner
terminated, the Plan shall terminate on the day before the tenth (10th) anniversary of the date the
Plan is adopted by the Board or approved by the stockholders of the Company, whichever is earlier.
No Options may be granted under the Plan while the Plan is suspended or after it is terminated.



     (b) No Impairment of Rights. Suspension or termination of the Plan shall not impair rights
and obligations under any Option granted while the Plan is in effect except with the written
consent of the Optionholder.



13. Effective Date of Plan.




     The Plan shall become effective as determined by the Board, but no Option shall be exercised
unless and until the Plan has been approved by the stockholders of the Company, which approval
shall be within twelve (12) months before or after the date the Plan is adopted by the Board.



14. Choice of Law.




     The law of the State of Delaware shall govern all questions concerning the construction,
validity and interpretation of this Plan, without regard to such state’s conflict of laws rules.