**EXHIBIT 10.1**
**KOMAG, INCORPORATED**
**AMENDED AND RESTATED 2002 QUALIFIED STOCK PLAN**
**(as of April 2005)**
     1. Purposes of the Plan. The purposes of this Amended and Restated 2002 QualifiedStock Plan are:
    • to attract and retain the best available personnel for positionsof substantial responsibility,     • to provide additional incentive to Service Providers, and     • to promote the success of the Company’s business.
          Awards granted under the Plan may be Incentive Stock Options, Nonstatutory Stock Options,Stock Purchase Rights, Stock Appreciation Rights, Performance Shares or Performance Units, asdetermined by the Administrator at the time of grant.
     2. Definitions. As used herein, the following definitions shall apply:
          (a) “Administrator” means the Board or any of its Committees as shall be administeringthe Plan, in accordance with Section 4 of the Plan.
          (b) “Applicable Laws” means the requirements relating to the administration of equitycompensation plans under U. S. state corporate laws, U.S. federal and state securities laws, theCode, any stock exchange or quotation system on which the Common Stock is listed or quoted and theapplicable laws of any foreign country or jurisdiction where Awards are, or will be, granted underthe Plan.
          (c) “Award” means individually or collectively, a grant under the Plan of Options,Stock Purchase Rights, Stock Appreciation Rights, Performance Shares or Performance Units.
          (d) “Award Agreement” means the written agreement setting forth the terms andprovisions applicable to each Award granted under the Plan. The Award Agreement is subject to theterms and conditions of the Plan.
          (e) “Awarded Stock” means the Common Stock subject to an Award.
          (f) “Board” means the Board of Directors of the Company.
          (g) “Change in Control” means the occurrence of any of the following events:
 

 

               (i) Any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act)becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly orindirectly, of securities of the Company representing fifty percent (50%) or more of the totalvoting power represented by the Company’s then outstanding voting securities; or
               (ii) The consummation of the sale or disposition by the Company of all or substantially all ofthe Company’s assets;
               (iii) A change in the composition of the Board occurring within a two-year period, as a resultof which fewer than a majority of the directors are Incumbent Directors. “Incumbent Directors”means directors who either (A) are Directors as of the effective date of the Plan, or (B) areelected, or nominated for election, to the Board with the affirmative votes of at least a majorityof the Incumbent Directors at the time of such election or nomination (but will not include anindividual whose election or nomination is in connection with an actual or threatened proxy contestrelating to the election of directors to the Company); or
               (iv) The consummation of a merger or consolidation of the Company with any other corporation,other than a merger or consolidation which would result in the voting securities of the Companyoutstanding immediately prior thereto continuing to represent (either by remaining outstanding orby being converted into voting securities of the surviving entity or its parent) at least fiftypercent (50%) of the total voting power represented by the voting securities of the Company or suchsurviving entity or its parent outstanding immediately after such merger or consolidation.
          (h) “Code” means the Internal Revenue Code of 1986, as amended.
          (i) “Committee” means a committee of Directors appointed by the Board in accordancewith Section 4 of the Plan.
          (j) “Common Stock” means the common stock of the Company, or in the case ofPerformance Units, the cash equivalent thereof.
          (k) “Company” means Komag, Incorporated, a Delaware corporation.
          (l) “Consultant” means any natural person, including an advisor, engaged by theCompany or a Parent or Subsidiary to render services to such entity.
          (m) “Deferred Stock Unit” means a deferred stock unit Award granted to a ServiceProvider pursuant to Section 13.
          (n) “Director” means a member of the Board.
          (o) “Disability” means total and permanent disability as defined in Section 22(e)(3)of the Code.
          (p) “Employee” means any person, including Officers and Directors, employed by theCompany or any Parent or Subsidiary of the Company. A Service Provider shall not cease to betreated as an Employee in the case of (i) any leave of absence approved by the Company or
2

 

(ii) transfers between locations of the Company or between the Company, its Parent, anySubsidiary, or any successor. For purposes of Incentive Stock Options, no such leave may exceedninety days, unless reemployment upon expiration of such leave is guaranteed by statute orcontract. If reemployment upon expiration of a leave of absence approved by the Company is not soguaranteed, then three (3) months following the 91st day of such leave any IncentiveStock Option held by the Participant shall cease to be treated as an Incentive Stock Option andshall be treated for tax purposes as a Nonstatutory Stock Option. Neither service as a Directornor payment of a director’s fee by the Company shall be sufficient to constitute “employment” bythe Company.
          (q) “Exchange Act” means the Securities Exchange Act of 1934, as amended.
          (r) “Fair Market Value” means, as of any date, the value of Common Stock determined asfollows:
               (i) If the Common Stock is listed on any established stock exchange or a national marketsystem, including without limitation the Nasdaq National Market or The Nasdaq SmallCap Market ofThe Nasdaq Stock Market, its Fair Market Value shall be the closing sales price for such stock (orthe closing bid, if no sales were reported) as quoted on such exchange or system on the day ofdetermination, as reported in *The Wall Street Journal*or such other source as the Administratordeems reliable;
               (ii) If the Common Stock is regularly quoted by a recognized securities dealer but sellingprices are not reported, the Fair Market Value of a Share of Common Stock shall be the mean betweenthe high bid and low asked prices for the Common Stock on the day of determination, as reported in*The Wall Street Journal*or such other source as the Administrator deems reliable; or
               (iii) In the absence of an established market for the Common Stock, the Fair Market Valueshall be determined in good faith by the Administrator.
               (iv) Notwithstanding the preceding, for federal, state, and local income tax reportingpurposes and for such other purposes as the Administrator deems appropriate, the Fair Market Valueshall be determined by the Administrator in accordance with uniform and nondiscriminatory standardsadopted by it from time to time.
     (s) “Incentive Stock Option” means an Option intended to qualify as an incentive stockoption within the meaning of Section 422 of the Code and the regulations promulgated thereunder.
     (t) “Nonstatutory Stock Option” means an Option not intended to qualify as anIncentive Stock Option.
     (u) “Notice of Grant” means a written or electronic notice evidencing certain termsand conditions of an individual Award. The Notice of Grant is part of the Award Agreement.
     (v) “Officer” means a person who is an officer of the Company within the meaning ofSection 16 of the Exchange Act and the rules and regulations promulgated thereunder.
3

 

          (w) “Option” means a stock option granted pursuant to the Plan.
          (x) “Parent” means a “parent corporation,” whether now or hereafter existing, asdefined in Section 424(e) of the Code.
          (y) “Participant” means the holder of an outstanding Award granted under the Plan.
          (z) “Performance Goals” means the goal(s) determined by the Administrator (in itsdiscretion) to be applicable to a Participant with respect to an Award. As determined by theAdministrator, the Performance Goals applicable to an Award may provide for a targeted level orlevels of achievement using one or more of the following measures: (i) cash flow, (ii) customersatisfaction, (iii) earnings, (iv) gross margin, (v) market price of stock, (vi) market share,(vii) net income, (viii) operating income, (ix) operating margin, (x) return on capital, (xi)return on equity, (xii) return on net assets, (xiii) revenue and (xiv) sales. The PerformanceGoals may differ from Participant to Participant and from Award to Award. Any criteria used may bemeasured, as applicable, (i) in absolute terms, (ii) in relative terms (including, but not limitedto, 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 segment of the Company, and (v) on a pre-taxor after-tax basis.
          (aa) “Performance Share” means a performance share Award granted to a Service Providerpursuant to Section 11.
          (bb) “Performance Unit” means a performance unit Award granted to a Service Providerpursuant to Section 12.
          (cc) “Plan” means this Amended and Restated 2002 Qualified Stock Plan.
          (dd) “Restricted Stock” means Shares, acquired upon exercise of a Stock PurchaseRight, that are subject to vesting, if any.
          (ee) “Rule 16b-3” means Rule 16b-3 of the Exchange Act or any successor to Rule 16b-3,as in effect when discretion is being exercised with respect to the Plan.
          (ff) “Section 16(b) “ means Section 16(b) of the Exchange Act.
          (gg) “Service Provider” means an Employee, Director or Consultant.
          (hh) “Share” means a share of the Common Stock, as adjusted in accordance with Section16 of the Plan.
          (ii) “Stock Appreciation Right” or “SAR” means an Award, granted alone or inconnection with a related Option, that pursuant to Section 10 is designated as a SAR.
          (jj) “Stock Purchase Right” means the right to purchase Shares pursuant to Section 9of the Plan, as evidenced by a Notice of Grant.
4

 

          (kk) “Subsidiary” means a “subsidiary corporation”, whether now or hereafter existing,as defined in Section 424(f) of the Code.
     3. Stock Subject to the Plan. Subject to the provisions of Section 16 of the Plan,the maximum aggregate number of Shares that may be issued under the Plan is 3,925,000 Shares, plus317,054 Shares available for issuance under the Company’s 2002 Employee Stock Purchase Plan. TheShares may be authorized, but unissued, or reacquired Common Stock.
          If an Award expires or becomes unexercisable without having been exercised in full, or, withrespect to Restricted Stock, Performance Shares, Performance Units or Deferred Stock Units, isforfeited back to or repurchased by the Company, the unpurchased Shares (or for Awards other thanOptions and SARs, the forfeited or repurchased Shares) which were subject thereto shall becomeavailable for future grant or sale under the Plan (unless the Plan has terminated). However,Shares that have actually been issued under the Plan, under any Award, shall not be returned to thePlan and shall not become available for future distribution under the Plan, except that if Sharesof Restricted Stock, Performance Shares, Performance Units or Deferred Stock Units are repurchasedby the Company at their original purchase price or are forfeited to the Company, such Shares shallbecome available for future grant under the Plan. To the extent an Award under the Plan is paidout in cash rather than stock, such cash payment shall not result in reducing the number of Sharesavailable for issuance under the Plan.
          If a Participant pays the exercise price (or purchase price, if applicable) of an Awardthrough the tender of Shares, or if Shares are tendered or withheld to satisfy any Companywithholding obligations, the number of Shares so tendered or withheld shall again be available forissuance pursuant to future Awards under the Plan.
     4. Administration of the Plan.
          (a) Procedure.
               (i) Multiple Administrative Bodies. Different Committees with respect to differentgroups of Service Providers may administer the Plan.
               (ii) Section 162(m). To the extent that the Administrator determines it to bedesirable to qualify Options granted hereunder as “performance-based compensation” within themeaning of Section 162(m) of the Code, the Plan shall be administered by a Committee of two or more“outside directors” within the meaning of Section 162(m) of the Code.
               (iii) Rule 16b-3. To the extent desirable to qualify transactions hereunder as exemptunder Rule 16b-3, the transactions contemplated hereunder shall be structured to satisfy therequirements for exemption under Rule 16b-3.
               (iv) Other Administration. Other than as provided above, the Plan shall beadministered by (A) the Board or (B) a Committee, which committee shall be constituted to satisfyApplicable Laws.
5

 

          (b) Powers of the Administrator. Subject to the provisions of the Plan, and in thecase of a Committee, subject to the specific duties delegated by the Board to such Committee, theAdministrator shall have the authority, in its discretion:
               (i) to determine the Fair Market Value;
               (ii) to select the Service Providers to whom Awards may be granted hereunder;
               (iii) to determine the number of Shares to be covered by each Award granted hereunder;
               (iv) to approve forms of agreement for use under the Plan;
               (v) to determine the terms and conditions, not inconsistent with the terms of the Plan, of anyAward granted hereunder. Such terms and conditions include, but are not limited to, the exerciseprice, the time or times when Options, Stock Purchase Rights or SARs may be exercised (which may bebased on performance criteria), any vesting acceleration or waiver of forfeiture or repurchaserestrictions, and any restriction or limitation regarding any Award or the Shares relating thereto,based in each case on such factors as the Administrator, in its sole discretion, shall determine;
               (vi) to construe and interpret the terms of the Plan and Awards granted pursuant to the Plan;
               (vii) to prescribe, amend and rescind rules and regulations relating to the Plan, includingrules and regulations relating to sub-plans established for the purpose of qualifying for preferredtax treatment under foreign tax laws;
               (viii) to modify or amend each Award (subject to Section 18(c) of the Plan), including thediscretionary authority to extend the post-termination exercisability period of Options or SARslonger than is otherwise provided for in the Plan. Notwithstanding the previous sentence, theAdministrator may not modify or amend an Option or SAR to reduce the exercise price of such Optionor SAR after it has been granted (except for adjustments made pursuant to Section 16) nor may theAdministrator cancel any outstanding Option or SAR and replace it with a new Option or SAR with alower exercise price, unless, in either case, such action is approved by the Company’sstockholders;
               (ix) to offer to buyout for a payment in cash or Shares an Award previously granted under thePlan, provided any such offer is approved by the Company’s stockholders;
               (x) to allow Participants to satisfy withholding tax obligations by electing to have theCompany withhold from the Shares or cash to be issued upon exercise or vesting of an Award thatnumber of Shares or cash having a Fair Market Value equal to the amount required to be withheld.The Fair Market Value of any Shares to be withheld shall be determined on the date that the amountof tax to be withheld is to be determined. All elections by a Participant to have Shares or
6

 

cash withheld for this purpose shall be made in such form and under such conditions as theAdministrator may deem necessary or advisable;
               (xi) to authorize any person to execute on behalf of the Company any instrument required toeffect the grant of an Award previously granted by the Administrator; and
               (xii) to make all other determinations deemed necessary or advisable for administering thePlan.
          (c) Effect of Administrator’s Decision. The Administrator’s decisions, determinationsand interpretations shall be final and binding on all Participants.
     5. Eligibility. Stock Purchase Rights, Performance Shares, Performance Units, StockAppreciation Rights, Deferred Stock Units and Nonstatutory Stock Options may be granted to ServiceProviders. Incentive Stock Options may be granted only to Employees.
     6. Limitations.
          (a) ISO $100,000 Rule. Each Option shall be designated in the Award Agreement aseither an Incentive Stock Option or a Nonstatutory Stock Option. However, notwithstanding suchdesignation, to the extent that the aggregate Fair Market Value of the Shares with respect to whichIncentive Stock Options are exercisable for the first time by the Participant during any calendaryear (under all plans of the Company and any Parent or Subsidiary) exceeds $100,000, such Optionsshall be treated as Nonstatutory Stock Options. For purposes of this Section 6(a), Incentive StockOptions shall be taken into account in the order in which they were granted. The Fair Market Valueof the Shares shall be determined as of the time the Option with respect to such Shares is granted.
          (b) No Rights as a Service Provider. Neither the Plan nor any Award shall confer upona Participant any right with respect to continuing his or her relationship as a Service Provider,nor shall they interfere in any way with the right of the Participant or the right of the Companyor its Parent or Subsidiaries to terminate such relationship at any time, with or without cause.
          (c) 162(m) Limitation. The following limitations shall apply to Awards under thePlan:
               (i) No Service Provider shall be granted, in any fiscal year of the Company, (A) Option orSARs to purchase more than 1,500,000 Shares, (B) Stock Purchase Rights to purchase more than500,000 Shares, (C) Performance Shares covering more than 500,000 Shares and (D) Performance Unitswith an initial value in excess of $5,000,000.
               (ii) In connection with his or her initial service, a Service Provider may be granted Optionsor SARS to purchase up to an additional 1,500,000 Shares, which shall not count against the limitset forth in subsection (i) above.
               (iii) The foregoing limitations shall be adjusted proportionately in connection with anychange in the Company’s capitalization as described in Section 16(a).
7

 

               (iv) If an Award is cancelled in the same fiscal year of the Company in which it was granted(other than in connection with a transaction described in Section 16(c)), the cancelled Award willbe counted against the limits set forth in subsections (i) and (ii) above.
     7. Term of Plan. The Plan shall become effective upon its adoption by the Board. Itshall continue in effect for a term of ten (10) years unless terminated earlier under Section 18 ofthe Plan.
     8. Stock Options.
          (a) Term of Options. The term of each Option shall be ten (10) years from the date ofgrant or such shorter term as may be provided in the Award Agreement. Moreover, in the case of anIncentive Stock Option granted to a Participant who, at the time the Incentive Stock Option isgranted, owns stock representing more than ten percent (10%) of the total combined voting power ofall classes of stock of the Company or any Parent or Subsidiary, the term of the Incentive StockOption shall be five (5) years from the date of grant or such shorter term as may be provided inthe Award Agreement.
          (b) Option Exercise Price and Consideration.
               (i) Exercise Price. The per Share exercise price for the Shares to be issued pursuantto exercise of an Option shall be determined by the Administrator, subject to the following:
                    (A) In the case of an Incentive Stock Option
                         (a) granted to an Employee who, at the time the Incentive Stock Option is granted, owns stockrepresenting more than ten percent (10%) of the voting power of all classes of stock of the Companyor any Parent or Subsidiary, the per Share exercise price shall be no less than 110% of the FairMarket Value per Share on the date of grant.
                         (b) granted to any Employee other than an Employee described in paragraph (a) immediatelyabove, the per Share exercise price shall be no less than 100% of the Fair Market Value per Shareon the date of grant.
                    (B) In the case of a Nonstatutory Stock Option, the per Share exercise price shall bedetermined by the Administrator. In the case of a Nonstatutory Stock Option intended to qualify as“performance-based compensation” within the meaning of Section 162(m) of the Code, the per Shareexercise price shall be no less than 100% of the Fair Market Value per Share on the date of grant.
               (ii) The exercise price for the Shares to be issued pursuant to an already granted Option maynot be changed without the consent of the Company’s stockholders. This shall include, withoutlimitation, a repricing of the Option as well as an option exchange program whereby the Participantagrees to cancel an existing Option in exchange for an Option, SAR or other Award.
8

 

          (c) Waiting Period and Exercise Dates. At the time an Option is granted, theAdministrator shall fix the period within which the Option may be exercised and shall determine anyconditions that must be satisfied before the Option may be exercised.
          (d) Form of Consideration. The Administrator shall determine the acceptable form ofconsideration for exercising an Option, including the method of payment. In the case of anIncentive Stock Option, the Administrator shall determine the acceptable form of consideration atthe time of grant. Such consideration to the extent permitted by Applicable Laws may consistentirely of:
               (i) cash;
               (ii) check;
               (iii) promissory note;
               (iv) other Shares which meet the conditions established by the Administrator to avoid adverseaccounting consequences (as determined by the Administrator);
               (v) consideration received by the Company under a cashless exercise program implemented by theCompany in connection with the Plan;
               (vi) a reduction in the amount of any Company liability to the Participant, including anyliability attributable to the Participant’s participation in any Company-sponsored deferredcompensation program or arrangement;
               (vii) any combination of the foregoing methods of payment; or
               (viii) such other consideration and method of payment for the issuance of Shares to the extentpermitted by Applicable Laws.
          (e) Exercise of Option.
          (i) Procedure for Exercise; Rights as a Stockholder. Any Option granted hereundershall be exercisable according to the terms of the Plan and at such times and under such conditionsas determined by the Administrator and set forth in the Award Agreement. Unless the Administratorprovides otherwise, vesting of Options granted hereunder shall be suspended beginning on the91st day of a Participant’s leave of absence and will resume on the date the Participantreturns to work on a regular schedule as determined by the Company; provided, however, that novesting credit will be awarded for the time vesting has been suspended during such leave ofabsence. An Option may not be exercised for a fraction of a Share.
     An Option shall be deemed exercised when the Company receives: (i) written or electronicnotice of exercise (in accordance with the Award Agreement) from the person entitled to exercisethe Option, and (ii) full payment for the Shares with respect to which the Option is exercised.Full payment may consist of any consideration and method of payment authorized by the Administratorand permitted by the Award Agreement and the Plan. Shares issued upon exercise of an Option shallbe issued in the name of the Participant or, if requested by the Participant, in the name of the
9

 

Participant and his or her spouse. Until the Shares are issued (as evidenced by theappropriate entry on the books of the Company or of a duly authorized transfer agent of theCompany), no right to vote or receive dividends or any other rights as a stockholder shall existwith respect to the Awarded Stock, notwithstanding the exercise of the Option. The Company shallissue (or cause to be issued) such Shares promptly after the Option is exercised. No adjustmentwill be made for a dividend or other right for which the record date is prior to the date theShares are issued, except as provided in Section 16 of the Plan.
     Exercising an Option in any manner shall decrease the number of Shares thereafter available,both for purposes of the Plan and for sale under the Option, by the number of Shares as to whichthe Option is exercised.
          (f) Termination of Relationship as a Service Provider. If a Participant ceases to bea Service Provider, other than upon the Participant’s death or Disability, the Participant mayexercise his or her Option within such period of time as is specified in the Award Agreement to theextent that the Option is vested on the date of termination (but in no event later than theexpiration of the term of such Option as set forth in the Award Agreement). In the absence of aspecified time in the Award Agreement, the Option shall remain exercisable for three (3) monthsfollowing the Participant’s termination. If, on the date of termination, the Participant is notvested as to his or her entire Option, the Shares covered by the unvested portion of the Optionshall revert to the Plan. If, after termination, the Participant does not exercise his or herOption within the time specified by the Administrator, the Option shall terminate, and the Sharescovered by such Option shall revert to the Plan.
          (g) Disability of Participant. If a Participant ceases to be a Service Provider as aresult of the Participant’s Disability, the Participant may exercise his or her Option within suchperiod of time as is specified in the Award Agreement to the extent the Option is vested on thedate of termination (but in no event later than the expiration of the term of such Option as setforth in the Award Agreement). In the absence of a specified time in the Award Agreement, theOption shall remain exercisable for twelve (12) months following the Participant’s termination.If, on the date of termination, the Participant is not vested as to his or her entire Option, theShares covered by the unvested portion of the Option shall revert to the Plan. If, aftertermination, the Participant does not exercise his or her Option within the time specified herein,the Option shall terminate, and the Shares covered by such Option shall revert to the Plan.
          (h) Death of Participant. If a Participant dies while a Service Provider, the Optionmay be exercised following the Participant’s death within such period of time as is specified inthe Award Agreement to the extent that the Option is vested on the date of death (but in no eventmay the option be exercised later than the expiration of the term of such Option as set forth inthe Award Agreement), by the Participant’s designated beneficiary, provided such beneficiary hasbeen designated prior to Participant’s death in a form acceptable to the Administrator. If no suchbeneficiary has been designated by the Participant, then such Option may be exercised by thepersonal representative of the Participant’s estate or by the person(s) to whom the Option istransferred pursuant to the Participant’s will or in accordance with the laws of descent anddistribution. In the absence of a specified time in the Award Agreement, the Option shall remainexercisable for twelve (12) months following Participant’s death. If, at the time of death, theParticipant is not vested as to his or her entire Option, the Shares covered by the unvestedportion of
10

 

the Option shall immediately revert to the Plan. If the Option is not so exercised within thetime specified herein, the Option shall terminate, and the Shares covered by such Option shallrevert to the Plan.
     9. Stock Purchase Rights.
          (a) Rights to Purchase. Stock Purchase Rights may be issued either alone, in additionto, or in tandem with other Awards granted under the Plan and/or cash awards made outside of thePlan. After the Administrator determines that it will offer Stock Purchase Rights under the Plan,it shall advise the offeree in writing or electronically, of the terms, conditions and restrictionsrelated to the offer, including the number of Shares that the offeree shall be entitled topurchase, the price to be paid, and the time within which the offeree must accept such offer. Theoffer shall be accepted by execution of an Award Agreement in the form determined by theAdministrator.
          (b) Repurchase Option. Unless the Administrator determines otherwise, the AwardAgreement shall grant the Company a repurchase option exercisable upon the voluntary or involuntarytermination of the purchaser’s service with the Company for any reason (including death orDisability). The purchase price for Shares repurchased pursuant to the Award Agreement shall bethe original price paid by the purchaser and may be paid by cancellation of any indebtedness of thepurchaser to the Company. The repurchase option shall lapse at a rate determined by theAdministrator. However, if the Administrator determines it is desirable for the Award to qualifyas “performance-based compensation” for purposes of Section 162(m) of the Code, the repurchaseoption shall lapse based upon the achievement of Performance Goals.
          (c) Other Provisions. The Award Agreement shall contain such other terms, provisionsand conditions not inconsistent with the Plan as may be determined by the Administrator in its solediscretion.
          (d) Rights as a Stockholder. Once the Stock Purchase Right is exercised, thepurchaser shall have the rights equivalent to those of a stockholder, and shall be a stockholderwhen his or her purchase is entered upon the records of the duly authorized transfer agent of theCompany. No adjustment will be made for a dividend or other right for which the record date isprior to the date the Stock Purchase Right is exercised, except as provided in Section 16 of thePlan.
     10. Stock Appreciation Rights.
          (a) Grant of SARs. Subject to the terms and conditions of the Plan, SARs may begranted to Service Providers at any time and from time to time as shall be determined by theAdministrator, in its sole discretion. The Administrator shall have complete discretion todetermine the number of SARs granted to any Participant.
          (b) Exercise Price and other Terms. The Administrator, subject to the provision ofthe Plan, shall have complete discretion to determine the terms and conditions of SARs grantedunder the Plan; provided, however, that no SAR may have a term of more than ten (10) years from thedate of grant. The exercise price for the Shares or cash to be issued pursuant to an alreadygranted SAR may not be changed without the consent of the Company’s stockholders. This shallinclude, without limitation, a repricing of the SAR as well as an SAR exchange program whereby theParticipant agrees to cancel an existing SAR in exchange for an Option, SAR or other Award.
11

 

          (c) Payment of SAR Amount. Upon exercise of a SAR, a Participant shall be entitled toreceive payment from the Company in an amount determined by multiplying:
               (i) the difference between the Fair Market Value of a Share on the date of exercise over theexercise price; times
               (ii) the number of Shares with respect to which the SAR is exercised.
          (d) Payment upon Exercise of SAR. At the discretion of the Administrator, payment fora SAR may be in cash, Shares or a combination thereof.
          (e) SAR Agreement. Each SAR grant shall be evidenced by an Award Agreement that shallspecify the exercise price, the term of the SAR, the conditions of exercise, and such other termsand conditions as the Administrator, in its sole discretion, shall determine.
          (f) Expiration of SARs. Subject to the term stated in Section 10(b), a SAR grantedunder the Plan shall expire upon the date determined by the Administrator, in its sole discretion,and set forth in the Award Agreement.
          (g) Termination of Relationship as a Service Provider. If a Participant ceases to bea Service Provider, other than upon the Participant’s death or Disability, the Participant mayexercise his or her Stock Appreciation Right within such period of time as is specified in theAward Agreement to the extent that the Stock Appreciation Right is vested and exercisable on thedate of termination (but in no event later than the expiration of the term of such StockAppreciation Right as set forth in the Award Agreement). In the absence of a specified time in theAward Agreement, the Stock Appreciation Right shall remain exercisable for three (3) monthsfollowing the Participant’s termination. If, on the date of termination, the Participant is notvested as to his or her entire Stock Appreciation Right, the Shares covered by the unvested portionof the Stock Appreciation Right shall revert to the Plan. If, after termination, the Participantdoes not exercise his or her Stock Appreciation Right within the time specified by theAdministrator, the Stock Appreciation Right shall terminate, and the Shares covered by such StockAppreciation Right shall revert to the Plan.
          (h) Disability of Participant. If a Participant ceases to be a Service Provider as aresult of the Participant’s Disability, the Participant may exercise his or her Stock AppreciationRight within such period of time as is specified in the Award Agreement to the extent the StockAppreciation Right is vested and exercisable on the date of termination (but in no event later thanthe expiration of the term of such Stock Appreciation Right as set forth in the Award Agreement).In the absence of a specified time in the Award Agreement, the Stock Appreciation Right shallremain exercisable for twelve (12) months following the Participant’s termination. If, on the dateof termination, the Participant is not vested as to his or her entire Stock Appreciation Right, theShares covered by the unvested portion of the Stock Appreciation Right shall revert to the Plan.If, after termination, the Participant does not exercise his or her Stock Appreciation Right withinthe time specified herein, the Stock Appreciation Right shall terminate, and the Shares covered bysuch Stock Appreciation Right shall revert to the Plan.
          (i) Death of Participant. If a Participant dies while a Service Provider, the StockAppreciation Right may be exercised within such period of time as is specified in the AwardAgreement (but in no event later than the expiration of the term of such Stock Appreciation Rightas
12

 

set forth in the Notice of Grant), by the Participant’s estate or by a person who acquires theright to exercise the Stock Appreciation Right by bequest or inheritance, but only to the extentthat the Stock Appreciation Right is vested and exercisable on the date of death. In the absenceof a specified time in the Award Agreement, the Stock Appreciation Right shall remain exercisablefor twelve (12) months following the Participant’s termination. If, at the time of death, theParticipant is not vested as to his or her entire Stock Appreciation Right, the Shares covered bythe unvested portion of the Stock Appreciation Right shall immediately revert to the Plan. TheStock Appreciation Right may be exercised by the executor or administrator of the Participant’sestate or, if none, by the person(s) entitled to exercise the Stock Appreciation Right under theParticipant’s will or the laws of descent or distribution. If the Stock Appreciation Right is notso exercised within the time specified herein, the Stock Appreciation Right shall terminate, andthe Shares covered by such Stock Appreciation Right shall revert to the Plan.
     11. Performance Shares.
          (a) Grant of Performance Shares. Subject to the terms and conditions of the Plan,Performance Shares may be granted to Service Providers at any time and from time to time as shallbe determined by the Administrator, in its sole discretion. The Administrator shall have completediscretion to determine (i) the number of Shares subject to a Performance Share award granted toany Participant, and (ii) the conditions that must be satisfied, which typically will be basedprincipally or solely on achievement of performance milestones but may include a service-basedcomponent, upon which is conditioned the grant or vesting of Performance Shares; provided, however,that the performance milestones will be based on Performance Goals if the Administrator desiresthat the Award qualify as “performance-based compensation” under Section 162(m) of the Code.Performance Shares shall be granted in the form of units/rights to acquire Shares. Each suchunit/right shall be the equivalent of one Share for purposes of determining the number of Sharessubject to an Award. Until the Shares are issued, no right to vote or receive dividends or anyother rights as a stockholder shall exist with respect to the units/rights to acquire Shares.
          (b) Other Terms. The Administrator, subject to the provisions of the Plan, shall havecomplete discretion to determine the terms and conditions of Performance Shares granted under thePlan. Performance Share grants shall be subject to the terms, conditions, and restrictionsdetermined by the Administrator at the time the stock is awarded, which may include suchperformance-based milestones as are determined appropriate by the Administrator. The Administratormay require the recipient to sign a Performance Shares agreement as a condition of the award. Anycertificates representing the Shares of stock awarded shall bear such legends as shall bedetermined by the Administrator.
          (c) Performance Share Award Agreement. Each Performance Share grant shall beevidenced by an agreement that shall specify such other terms and conditions as the Administrator,in its sole discretion, shall determine.
     12. Performance Units.
          (a) Grant of Performance Units. Performance Units are similar to Performance Shares,except that they shall be settled in a cash equivalent to the Fair Market Value of the underlyingShares, determined as of the vesting date. Subject to the terms and conditions of the
13

 

Plan, Performance Units may be granted to Service Providers at any time and from time to timeas shall be determined by the Administrator, in its sole discretion. The Administrator shall havecomplete discretion to determine (i) the number of Shares subject to a Performance Unit awardgranted to any Participant, and (ii) the conditions that must be satisfied, which typically will bebased principally or solely on achievement of performance milestones but may include aservice-based component, upon which is conditioned the grant or vesting of Performance Units;provided, however, that the performance milestones will be based on Performance Goals if theAdministrator desires that the Award qualify as performance-based compensation under Section 162(m)of the Code. Performance Units shall be granted in the form of units/rights to acquire Shares.Each such unit/right shall be the cash equivalent of one Share of Common Stock. No right to voteor receive dividends or any other rights as a stockholder shall exist with respect to PerformanceUnits or the cash payable thereunder.
          (b) Other Terms. The Administrator, subject to the provisions of the Plan, shall havecomplete discretion to determine the terms and conditions of Performance Units granted under thePlan. Performance Unit grants shall be subject to the terms, conditions, and restrictionsdetermined by the Administrator at the time the stock is awarded, which may include suchperformance-based milestones as are determined appropriate by the Administrator. The Administratormay require the recipient to sign a Performance Unit agreement as a condition of the award. Anycertificates representing the Shares of stock awarded shall bear such legends as shall bedetermined by the Administrator.
          (c) Performance Unit Award Agreement. Each Performance Unit grant shall be evidencedby an agreement that shall specify such terms and conditions as the Administrator, in its solediscretion, shall determine.
     13. Deferred Stock Units. Deferred Stock Units shall consist of a Restricted Stock,Performance Share or Performance Unit Award that the Administrator, in its sole discretion permitsto be paid out in installments or on a deferred basis, in accordance with rules and proceduresestablished by the Administrator.
     14. Non-Transferability of Awards. Unless determined otherwise by the Administrator,an Award may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in anymanner other than by will or by the laws of descent or distribution and may be exercised, duringthe lifetime of the recipient, only by the recipient. If the Administrator makes an Awardtransferable, such Award shall contain such additional terms and conditions as the Administratordeems appropriate.
     15. Leaves of Absence. Subject to any other provision of the Plan, unless theAdministrator provides otherwise or as otherwise required by Applicable Laws, vesting of Awardsgranted hereunder shall cease commencing on the first day of any unpaid leave of absence and shallrecommence only upon return to active service.
     16. Adjustments Upon Changes in Capitalization, Dissolution, Merger, or Asset Sale.
          (a) Changes in Capitalization. Subject to any required action by the stockholders ofthe Company, the number of Shares covered by each outstanding Award, the number of Shares
14

 

which have been authorized for issuance under the Plan but as to which no Awards have yet beengranted or which have been returned to the Plan upon cancellation or expiration of an Award, thenumber of Shares as well as the price per share of Common Stock covered by each such outstandingAward, and the 162(m) annual share issuance limits under Section 6(c) shall be proportionatelyadjusted for any increase or decrease in the number of issued Shares resulting from a stock split,reverse stock split, stock dividend, combination or reclassification of the Common Stock, or anyother increase or decrease in the number of issued Shares effected without receipt of considerationby the Company; provided, however, that conversion of any convertible securities of the Companyshall not be deemed to have been “effected without receipt of consideration.” Such adjustmentshall be made by the Board, whose determination in that respect shall be final, binding andconclusive. Except as expressly provided herein, no issuance by the Company of shares of stock ofany class, or securities convertible into shares of stock of any class, shall affect, and noadjustment by reason thereof shall be made with respect to, the number or price of Shares subjectto an Award.
          (b) Dissolution or Liquidation. In the event of the proposed dissolution orliquidation of the Company, the Administrator shall notify each Participant as soon as practicableprior to the effective date of such proposed transaction. The Administrator in its discretion mayprovide for a Participant to have the right to exercise his or her Option or SAR until ten (10)days prior to such transaction as to all of the Awarded Stock covered thereby, including Shares asto which the Award would not otherwise be exercisable. In addition, the Administrator may providethat any Company repurchase option or forfeiture rights applicable to any Award shall lapse 100% ,and that any Award vesting shall accelerate 100%, provided the proposed dissolution or liquidationtakes place at the time and in the manner contemplated. To the extent it has not been previouslyexercised (with respect to Options and SARs) or vesting (with respect to other Awards), an Awardwill terminate immediately prior to the consummation of such proposed action.
          (c) Merger or Change in Control.
               (i) Options and SARs. In the event of a merger or Change in Control, each outstandingOption and SAR shall be assumed or an equivalent option or SAR substituted by the successorcorporation or a Parent or Subsidiary of the successor corporation. In the event that thesuccessor corporation refuses to assume or substitute for the Option or SAR, the Participant shallfully vest in and have the right to exercise the Option or SAR as to all of the Awarded Stock,including Shares as to which it would not otherwise be vested or exercisable. If an Option or SARbecomes fully vested and exercisable in lieu of assumption or substitution in the event of a mergeror Change in Control, the Administrator shall notify the Participant in writing or electronicallythat the Option or SAR shall be fully vested and exercisable for a period of fifteen (15) days fromthe date of such notice, and the Option or SAR shall terminate upon the expiration of such period.For the purposes of this paragraph, the Option or SAR shall be considered assumed if, following themerger or Change in Control, the option or stock appreciation right confers the right to purchaseor receive, for each Share of Awarded Stock subject to the Option or SAR immediately prior to themerger or Change in Control, the consideration (whether stock, cash, or other securities orproperty) received in the merger or Change in Control by holders of Common Stock for each Shareheld on the effective date of the transaction (and if holders were offered a choice ofconsideration, the type of consideration chosen by the holders of a majority of the outstandingShares); provided, however, that if such consideration received in the merger or sale or assets isnot solely common stock of the successor corporation or its Parent, the Administrator may, with theconsent of the successor
15

 

corporation, provide for the consideration to be received upon the exercise of the Option orSAR, for each Share of Awarded Stock subject to the Option or SAR, to be solely common stock of thesuccessor corporation or its Parent equal in fair market value to the per share considerationreceived by holders of Common Stock in the merger or Change in Control.
               (ii) Officer Adjustment. Officers subject to the short-swing profit restrictions ofApplicable Laws may, in the Administrator’s sole discretion, be granted limited Stock AppreciationRights in tandem with their outstanding Options. Upon the occurrence of a Hostile Take-Over, eachoutstanding Option with such a limited stock appreciation right in effect for at least six (6)months shall automatically be cancelled and the recipient shall in be entitled to a cashdistribution from the Company in an amount equal to the excess of (a) the Take-Over Price of theShares subject to the cancelled Option (whether or not such Shares are exercisable) over (b) theaggregate exercise price payable for such Shares. The cash distribution payable upon suchcancellation shall be made within five (5) days following the consummation of the HostileTake-Over. Neither the approval of the Administrator nor the consent of the Board shall berequired in connection with such Option cancellation and cash distribution. The Shares subject toany Option cancelled for an appreciation distribution pursuant to this Section shall not beavailable for subsequent grant under the Plan.
               (iii) Hostile Take-Over. A Hostile Take-Over shall be deemed to occur in the event(a) any person or related group of persons (other than the Company or a person that directly orindirectly controls, is controlled by, or is under common control with, the Company) directly orindirectly acquires beneficial ownership (within the meaning of Rule 13d-3 of the Exchange Act) ofsecurities possessing more than fifty percent (50%) of the total combined voting power of theCompany’s outstanding securities pursuant to a tender or exchange offer which the Board does notrecommend the Company’s stockholders to accept, and (b) more than fifty percent (50%) ofthe securities so acquired in such tender or exchange offer are accepted from holders other thanCompany Officers and Directors subject to the short-swing profit restrictions of Applicable Laws.
     The Take-Over Price per share shall be deemed to be equal to the greater of (a) the FairMarket Value per share on the date of cancellation, or (b) the highest reported price per sharepaid in effecting such Hostile Take-Over; provided, however, that if the cancelled option is anIncentive Stock Option, the Take-Over Price shall not exceed the Fair Market Value per share on thedate of cancellation.
               (iv) Restricted Stock, Performance Shares, Performance Units and Deferred Stock Units.In the event of a merger or Change in Control, each outstanding Restricted Stock, PerformanceShare, Performance Unit and Deferred Stock Unit award shall be assumed or an equivalent RestrictedStock, Performance Share, Performance Unit and Deferred Stock Unit award substituted by thesuccessor corporation or a Parent or Subsidiary of the successor corporation. In the event thatthe successor corporation refuses to assume or substitute for the Restricted Stock, PerformanceShare, Performance Unit or Deferred Stock Unit award, the Participant shall fully vest in theRestricted Stock, Performance Share, Performance Unit or Deferred Stock Unit including as to Shares(or with respect to Performance Units, the cash equivalent thereof) which would not otherwise bevested. For the purposes of this paragraph, a Restricted Stock, Performance Share, PerformanceUnit and Deferred Stock Unit award shall be considered assumed if, following the
16

 

merger or Change in Control, the award confers the right to purchase or receive, for eachShare (or with respect to Performance Units, the cash equivalent thereof) subject to the Awardimmediately prior to the merger or Change in Control, the consideration (whether stock, cash, orother securities or property) received in the merger or Change in Control by holders of CommonStock for each Share held on the effective date of the transaction (and if holders were offered achoice of consideration, the type of consideration chosen by the holders of a majority of theoutstanding Shares); provided, however, that if such consideration received in the merger or Changein Control is not solely common stock of the successor corporation or its Parent, the Administratormay, with the consent of the successor corporation, provide for the consideration to be received,for each Share and each unit/right to acquire a Share subject to the Award, to be solely commonstock of the successor corporation or its Parent equal in fair market value to the per shareconsideration received by holders of Common Stock in the merger or Change in Control.
     17. Date of Grant. The date of grant of an Award shall be, for all purposes, the dateon which the Administrator makes the determination granting such Award, or such other later date asis determined by the Administrator. Notice of the determination shall be provided to eachrecipient within a reasonable time after the date of such grant.
     18. Amendment and Termination of the Plan.
          (a) Amendment and Termination. The Board may at any time amend, alter, suspend orterminate the Plan.
          (b) Stockholder Approval. The Company shall obtain stockholder approval of any Planamendment to the extent necessary and desirable to comply with Applicable Laws.
          (c) Effect of Amendment or Termination. No amendment, alteration, suspension ortermination of the Plan shall impair the rights of any Participant, unless mutually agreedotherwise between the Participant and the Administrator, which agreement must be in writing andsigned by the Participant and the Company. Termination of the Plan shall not affect theAdministrator’s ability to exercise the powers granted to it hereunder with respect to Awardsgranted under the Plan prior to the date of such termination.
     19. Conditions Upon Issuance of Shares.
          (a) Legal Compliance. Shares shall not be issued pursuant to the exercise of an Awardunless the exercise of the Award or the issuance and delivery of such Shares (or with respect toPerformance Units, the cash equivalent thereof) shall comply with Applicable Laws and shall befurther subject to the approval of counsel for the Company with respect to such compliance.
          (b) Investment Representations. As a condition to the exercise or receipt of anAward, the Company may require the person exercising or receiving such Award to represent andwarrant at the time of any such exercise or receipt that the Shares are being purchased only forinvestment and without any present intention to sell or distribute such Shares if, in the opinionof counsel for the Company, such a representation is required.
     20. Inability to Obtain Authority. The inability of the Company to obtain authorityfrom any regulatory body having jurisdiction, which authority is deemed by the Company’s counsel tobe
17

 

necessary to the lawful issuance and sale of any Shares hereunder (or with respect toPerformance Units, the cash equivalent thereof), shall relieve the Company of any liability inrespect of the failure to issue or sell such Shares (or with respect to Performance Units, the cashequivalent thereof) as to which such requisite authority shall not have been obtained.
     21. Reservation of Shares. The Company, during the term of this Plan, will at alltimes reserve and keep available such number of Shares as shall be sufficient to satisfy therequirements of the Plan.
     22. Stockholder Approval. The Plan shall be subject to approval by the stockholdersof the Company within twelve (12) months after the date the Plan is adopted by the Board. Suchstockholder approval shall be obtained in the manner and to the degree required under ApplicableLaws.
18