exv10w6






Exhibit 10.6




ONLINE RESOURCES CORPORATION




AMENDED AND RESTATED




2005 RESTRICTED STOCK AND OPTION PLAN

October 10, 2008




SECTION 1




DEFINITIONS




     As used herein, the following terms have the meanings hereinafter set forth unless the context
clearly indicates to the contrary:



     “Administrator” means the Committee, as described in Section 3 of this Plan, and shall include
any Special Committee that the Committee may appoint (provided that the Special Committee may only
exercise discretion with respect to Participants to whom the Special Committee is authorized to
make Awards).



     “Affiliate” means any entity, including any Parent Corporation or Subsidiary Corporation
within the meaning of Section 424 of the Code, which together with the Company is under common
control within the meaning of Section 414 of the Code.



     “Award” means any award made pursuant to Section 6 of this Plan, whether in the form of
Restricted Shares, Restricted Units, Options, Stock Appreciation Rights or a Performance Award.



     “Award Agreement” means any written document setting forth the terms and conditions of an
Award, as prescribed by the Committee.



     “Award Term” means the maximum period of time during which an Award may be earned, exercised
or purchased as set forth in Section 6.7 below.



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



     “Cause” means any event specified as Cause in any employment agreement between an Employer
Company and an Employee and any such other events set forth in Section 6.11(c) hereof.



     “Change of Control” means those events set forth in Section 6.9(d).



     “Code” means the Internal Revenue Code of 1986, as amended.



     “Committee” means the committee appointed by the Board in accordance with Section 3 of this
Plan. Unless otherwise determined by the Board consistent with Section 3, “Committee” means the
Compensation and Management Development Committee of the Board, provided, however, that with
respect to Awards made to Outside Directors,



 









 




“Committee” means the Governance Committee of the Board.




     “Company” means Online Resources Corporation, a Delaware corporation.



     “Director” means a member of the Board of Directors of the Company, and any director or
directors of an Employer Company whom the Board designates as being eligible for Awards.



     “Employee” means an individual who is employed (within the meaning of Section 3401 of the Code
and the Treasury Regulations thereunder) by the Company or any present or future Employer Company.



     “Employer Company” means a company, whether (i) the Company or a Parent Corporation or
Subsidiary Corporation of the Company, which employs the Employee; (ii) a 50% or more affiliate of
the Company or a Parent Corporation or Subsidiary Corporation of the Company, which employs the
Employee or receives services from a Service Provider, or (iii) the Company or a Parent Corporation
or Subsidiary Corporation of the Company, to which the Service Provider is providing services or
with which Service Provider engages in business.



     “Fair Market Value of Shares” shall mean (i) if the Shares are not publicly traded on the day
in question, the closing price of the Shares on the prior trading day or the next trading day
(whichever is closest in time to the day in question), provided that such date is no more than five
(5) days from the date the Award is granted, (ii) if the Shares are not publicly traded on the day
in question and (i) above does not apply, the fair market value of the Shares on the day in
question as determined and set forth in writing by the Administrator (which, in making such
determination, shall make a good faith effort to establish the true fair market value of the Shares
as of such date using such methods as it deems appropriate, including independent appraisals, and
taking into consideration any requirements set forth in the Code or the Treasury Regulations
thereunder), or (iii) if the Shares are publicly traded on the day in question, the closing price
of the Shares on the day in question.



     “Good Reason” shall mean, with respect to the termination of employment of any Employee, any
of the following:




     (i) A change of more than fifty (50) miles in the principal location at which
Employee provides services to the Company, without the Employee’s prior written consent;




     (ii) A material adverse change by the Company in the Employee’s duties, authority or
responsibilities with the Company which causes the Employee’s position with the Company to
become of less responsibility or authority than such Employee’s position as of immediately
following the date of any Award Agreement between such Participant and the Company,
provided that such change is not in connection with a termination of Participant’s
employment for Cause by the Company;



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     (iii) The assignment to the Employee of duties not commensurate or consistent with
Employee’s position with the Company without Employee’s prior written consent;




     (iv) A reduction in Employee’s compensation or other benefits except such a reduction
in connection with a general reduction in compensation or other benefits of similarly
situated employees of the Company;




     (v) A material breach by the Company of any Award Agreement or employment agreement
between the Employee and the Company that has not been cured within 30 days after written
notice thereof by Employee to the Company;




     (vi) The Company, or any successor thereto, no longer having a publicly traded class
of equity securities and/or no longer being subject to reporting requirements under the
Exchange Act; or




     (vii) Failure by the Company to obtain the assumption of any Award Agreement or
employment agreement between Employee and the Company by any successor to the Company.



     “Incentive Stock Option” means an Option for Shares that is intended to be, designated in
writing as, and qualifies as an Incentive Stock Option within the meaning of Section 422 of the
Code.



     “Long Term Employee” means any salaried employee of the Company who has been continuously
employed by the Company on a full-time basis for the two (2) year period ending on the effective
date of a Change of Control.



     “Nonstatutory Stock Option” means an Option which is not an Incentive Stock Option and which
is designated as a Nonstatutory Stock Option by the Administrator.



     “Option” means an option to purchase a Share pursuant to the provisions of this Plan.



     “Option Price” means the price per share of the Shares subject to each Option or Stock
Appreciation Right as provided, respectively, in Sections 6.3(c) and 6.4 (b) below.



     “Outside Director” means a Director who is not an Employee.



     “Parent Corporation” shall have the meaning assigned to that term under Section 424 of the
Code.



     “Participant” means any holder of one or more Awards, or the Shares issuable or issued upon
the vesting, exercise or distribution of Awards, pursuant to the Plan.



     “Performance Awards” mean Performance Units and Performance Compensation



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Awards granted pursuant to Section 6.5 of the Plan.




     “Performance Compensation Awards” mean Awards granted pursuant to Section 6.5(b) of the Plan.



     “Performance Units” means Awards granted pursuant to Section 6.5(a) of the Plan which may be
paid in cash, in Shares, or such combination of cash and Shares as the Committee in its sole
discretion shall determine.



     “Plan” means the Online Resources Corporation Amended and Restated 2005 Restricted Stock and
Option Plan, the terms of which are set forth herein.



     “Restricted Shares” means Shares subject to restrictions imposed pursuant to Section 6.2 of
this Plan.



     “Restricted Units” means units awarded pursuant to Section 6.2(f) of this Plan.



     “Service Provider” means any individual who follows an independent trade, business or
profession in which he/she provides his/her services to the Company, any present or future Parent
Corporation or Subsidiary Corporation of the Company, or any 50% or more affiliate of the Company
or a Parent Corporation or Subsidiary Corporation, including, without limitation, consultants,
independent contractors and suppliers to the Company.



     “Share” or “Shares” means Common Stock of the Company, par value $.0001 per share, or, in the
event that the outstanding Shares are hereafter changed into or exchanged for different shares or
securities of the Company or some other corporation or other entity, such other shares or
securities.



     “Special Committee” means any committee to which the Board or Committee may delegate the
authority to grant Awards to eligible persons not described in Section 16 of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”).



     “Stock Appreciation Right” means the right to receive the appreciation in value, or the
portion of the appreciation in value, or a specified number of Shares pursuant to Section 6.4.



     “Subsidiary Corporation” shall have the meaning assigned to that term under Section 424 of the
Code.



     “Total and Permanent Disability,” unless otherwise specified in the applicable Award
Agreement, means the inability of an Employee, Service Provider or Outside Director to engage in
any substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to last
for a continuous period of not less than twelve months.



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SECTION 2




THE PLAN




     2.1 Name. This Plan shall be known as “Online Resources Corporation Amended and
Restated 2005 Restricted Stock and Option Plan.”



     2.2 Purpose. The purpose of this Plan is to advance the interests of the Company and
its stockholders by affording Employees and Service Providers of the Employer Company and Outside
Directors an opportunity to acquire or increase their proprietary interest in the Company by the
grant to such individuals of Awards under the terms set forth herein.



     2.3 Intention; Options.



     (a) It is intended that Options (if any) issued as Incentive Stock Options under this Plan
may qualify as incentive stock options under Section 422 of the Code and the terms of this Plan
shall be interpreted in accordance with such intention



     (b) It is intended that all Options issued to Service Providers and Outside Directors shall
be Nonstatutory Stock Options and that any Options issued to Employees may be Nonstatutory Stock
Options.



     (c) Unless otherwise specifically provided in an Award Agreement, an Option will be a
Nonqualified Stock Option.



SECTION 3




ADMINISTRATION




     3.1 Administration. This Plan shall be administered by the Committee acting as the
Administrator. The Committee shall be appointed by the Board, in a manner consistent with the
Company’s By-laws, and shall consist of two (2) or more members, each of whom is an outside
director (within the meaning of Code Section 162(m) and the Treasury Regulations thereunder) as
well as a non-employee director (within the meaning of Rule 16(b)-3 under the Exchange Act, as
amended). The Board may from time to time remove members from, or add members to, the Committee.
The Board shall fill vacancies on the Committee however caused. The Board may appoint one (1) of
the members of the Committee as Chairman. The Administrator shall hold meetings at such times and
places as it may determine. Acts of a majority of the Administrator at which a quorum is present,
or acts reduced to or approved in writing by the unanimous consent of the members of the
Administrator, shall be the valid acts of the Administrator. Additionally, and notwithstanding
anything to the contrary contained in this Plan, the Board or Committee may delegate to a Special
Committee the authority to grant Awards and to specify the terms and conditions thereof to certain
eligible persons who are not subject to



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the requirements of Section 16 of the Exchange Act, in accordance with guidelines approved by the
Board or Committee.




     3.2 Duties. The Administrator (or the Special Committee) shall from time to time at
its discretion determine the Employees, Service Providers and Outside Directors who are to be
granted Awards, the terms of any Awards (which may be based on performance), and the number of
Shares to be subject to Awards to be granted to each Participant. The interpretation and
construction by the Administrator of any provisions of this Plan or of any Award granted thereunder
shall be final. Moreover, the Administrator shall at any time be entitled to modify the vesting
terms for Awards, the timing rules for exercise of Options and Stock Appreciation Rights, and any
other provisions of outstanding Awards (to the extent the modification would be allowable under
this Plan for a new Awa rd), provided that the Participant shall so consent to any modification
adverse to the Participant’s interests. No member of the Administrator shall be liable for any
action or determination made in good faith with respect to this Plan or any Award granted
hereunder.



SECTION 4




PARTICIPATION




     4.1 Eligibility. The Administrator may from time to time make Awards to such persons
(collectively, “Participants”; individually a “Participant”) as the Administrator (or the Special
Committee) may select from among the following classes of persons, subject to the terms and
conditions of Section 4.2 below:



     (a) Employees of the Company;



     (b) Employees of any Employer Company;



     (c) Service Providers of the Company or any Employer Company (or any other related entity);



     (d) Outside Directors; and



     (e) Directors of the Company’s Employer Companies.



     4.2 Ten-Percent Stockholders. A Participant who beneficially owns more than ten
percent (10%) of the total combined voting power of all classes of outstanding stock of the
Company, as determined under Sections 422 and 424 of the Code, shall not be eligible to receive an
Incentive Stock Option unless:



     (a) the Option Price of the Shares subject to such Option is at least one hundred ten percent
(110%) of the Fair Market Value of such Shares on the date of grant; and



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     (b) such Option by its terms is not exercisable after the expiration of five (5) years from
the date of grant.


For purposes of this Section 4.2, “outstanding stock” shall include all stock actually issued and
outstanding immediately after the grant of the Option to the Participant. “Outstanding stock” shall
not include Shares authorized for issue under outstanding Options held by the Participant or by any
other person.




SECTION 5




SHARES SUBJECT TO PLAN




     5.1 Shares Available for Awards. Subject to adjustment pursuant to the provisions of
Section 5.2 hereof, the total number of Shares, which may be issued pursuant to all Awards, shall
not exceed 3,500,000 Shares. Shares that may be issued pursuant to Awards may be either authorized
and unissued Shares or issued Shares which have been reacquired by the Company. Shares of Common
Stock subject to an Award under the Plan which Award is canceled, expired, forfeited or otherwise
terminated without a delivery of shares to the Participant or with the return to the Company of
shares previously delivered, including the number of shares surrendered in payment of any taxes
relating to any Award, hereof will again be available for Awards under the Plan, except that if any
such shares could not again be available for Awards to a particular Participant under any
applicable law or regulation, such shares shall be available exclusively for Awards to Participants
who are not subject to such limitation. Notwithstanding the foregoing, (i) Shares tendered in
payment of the exercise price of an Option, (ii) Shares withheld by the Company to satisfy any tax
withholding obligation with respect to an Award, and (iii) Shares that are repurchased by the
Company on the open market with the proceeds of the exercise of an Option, may not again be
available for issuance in connection with Awards under the Plan. Also notwithstanding the
foregoing, if a Stock Appreciation Right is settled in Shares, the Shares representing the excess,
if any, of (a) the number of Shares subject to the Stock Appreciation Right, over (b) the number of
Shares delivered in settlement of the Stock Appreciation Right may not again be available for
issuance in connection with Awards under the Plan.


Notwithstanding the foregoing, the maximum number of Shares that may be issued pursuant to ISOs is
350,000, and the maximum number of Shares that may be issued in connection with Awards under the
Plan that are neither Options or Stock Appreciation Rights is 2,625,000.




     5.2 Adjustments.



     (a) Stock Splits and Dividends. Subject to any required action by the Board, the
number of Shares covered by this Plan as provided in Section 5.1 hereof, the number of



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Shares covered by each outstanding Award, and the price if any at which a Participant may purchase
Restricted Shares or exercise Options or Stock Appreciation Rights shall be proportionately
adjusted for any increase or decrease in the number of issued Shares resulting from a
recapitalization, reclassification, subdivision or consolidation of Shares or the payment of a
stock dividend (but only if paid in Shares), a stock split or any other increase or decrease in the
number of issued Shares effected without receipt of consideration by the Company.




     (b) Mergers. Subject to any required action by the Board and/or stockholders, if the
Company shall merge with another corporation and the Company is the surviving corporation in such
merger and under the terms of such merger the Shares outstanding immediately prior to the merger
remain outstanding and unchanged, each outstanding Award shall continue to apply to the Shares
subject thereto and shall also pertain and apply to any additional securities and other property,
if any, to which a holder of the number of Shares subject to the Award would have been entitled as
a result of the merger.



     (c) Adjustment Determination. To the extent that the foregoing adjustments relate to
securities of the Company, such adjustments shall be made by the Administrator, whose determination
shall be conclusive and binding on all persons. In computing any adjustment under this Section 5.2,
any fractional Share which might otherwise become subject to an Award shall be eliminated.



     (d) Special Dividends. Subject to any required action by the Board, the Administrator
shall be entitled to determine whether any adjustment shall be made with respect to the number of
Shares covered by this Plan as provided in Section 5.1 hereof, the number of Shares covered by each
outstanding Award and the Option Price for Options if the Company pays a special or extraordinary
dividend.



SECTION 6




AWARDS




     6.1 Award Grant and Agreement.



     (a) The Administrator may from time to time, subject to the terms of this Plan, grant to any
Participant one or more Awards; provided, however, that the Special Committee may from time to time
grant Awards to eligible persons not described in Section 16 of the Exchange Act or serving on the
Special Committee. Each Award grant shall be evidenced by a written Award Agreement, dated as of
the date of grant and executed by the Company and the Participant, which Award Agreement shall set
forth the number of Awards granted (or formula, that may be based on future performance or
conditions, for determining the number of Shares to be issued pursuant to the Award), whether the
Award is for Restricted Shares, Options, or Stock Appreciation Rights, the price if any at which a
Participant may purchase Restricted Shares, the Option Price



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associated with Options and Stock Appreciation Rights, the Award Term, in the case of a Performance
Award, in addition to the matters addressed in Section 6.5 below, the specific objectives, goals
and performance criteria that further define the Award, and such other terms and conditions as may
be determined appropriate by the Administrator (or the Special Committee), provided that such terms
and conditions are not inconsistent with this Plan. The Award Agreement shall incorporate this Plan
by reference and provide that any inconsistencies or disputes shall be resolved in favor of this
Plan language. In no event, however, may Award Agreements to an individual Participant provide for
a payment of more than 750,000 Shares, or a cash payment of more than $7,500,000, in any calendar
year.




     (b) Awards shall be made by the Administrator or Special Committee selectively among the
Participants and the terms and provisions of such grants and the Award Agreements evidencing the
same (including, without limitation, the form, the amount, the timing, the terms for any purchase,
the exercisability of Options and Stock Appreciation Rights, and vesting schedule of such grants)
need not be uniform, whether or not the Participants are similarly situated.



     (c) Notwithstanding any provision of the plan to the contrary, any Award Agreement, other
than an Award Agreement evidencing an Award the payment of which is conditioned on the satisfaction
of Performance Measures, shall provide that the Award will be forfeited unless the Participant to
whom the Award is granted remains in the employment of an Employer Company for a specified period.
For this purpose, the minimum period that can be established for the Award to become fully
nonforfeitable shall be three years, except in the case of Awards (1) made as employment inducement
incentives or as retention incentives, or (2) granted in lieu of salary or other compensation that
otherwise would be payable in cash to a Participant for a specified period, provided that the fair
market value of the stock subject to the Award on the date of grant is not more than the salary or
other compensation foregone in exchange for the Award. Notwithstanding the foregoing, an Award
Agreement can provide for the lapsing of all forfeiture restrictions before the end of the
three-year period in the event that the Participant’s employment with all Employer Companies is
terminated as a result of the Participant’s death, disability or retirement or following a Change
of Control.



     6.2 Restricted Share and Restricted Unit Awards.



     (a) Awards. The Administrator may award Restricted Shares (or Shares subject to
Restricted Units pursuant to Section 6.2(f) below) to Participants, in such amounts, and subject to
such terms and conditions as the Administrator shall determine in its discretion, subject to the
provisions of this Plan. The Administrator shall determine the purchase price, if any, of
Restricted Shares, and may issue Shares that are immediately vested and unrestricted. A Participant
shall have no rights with respect to a Restricted Share Award unless the Participant accepts the
Award within the time period the Administrator specifies by executing the Award Agreement
prescribed by the Administrator and, if applicable, pays the purchase price for the Restricted
Shares by any method that is acceptable to the Company.



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     (b) Issuance of Award. The Company shall issue in the Participant’s name a
certificate or certificates for the appropriate number of Shares representing the Restricted Shares
upon the Participant’s execution of the applicable Award Agreement.



     (c) Plan and Regulatory Exceptions. Any certificate issued evidencing Restricted
Shares shall remain in the Company’s possession until those Shares are free of restrictions, except
as otherwise determined by the Administrator.



     (d) Forfeiture. If so provided in an Award Agreement, during a designated period of
up to 120 days following termination of the Participant’s service with the Company for any reason
or for reasons designated in the Award Agreement, the Company shall have the right to repurchase
Shares to which restrictions on transferability apply, in exchange for which the Company shall
repay to the Participant the lesser of the amount paid by the Participant for such Shares or the
Fair Market Value of such Shares at the time of repurchase by the Company (or such other price as
the Administrator shall specify in the Award Agreement).



     (e) Restricted Units In lieu of issuing Restricted Shares to a Participant, the
Administrator may in its discretion grant a Participant the right to receive Shares after certain
vesting requirements are met, and shall evidence such grant in an Award Agreement that sets forth




     (i) a number of Restricted Units that correspond to the number of Shares that the
Participant shall be entitled to receive upon vesting,




     (ii) the terms upon which the Shares subject to the Restricted Units may become
vested, and




     (iii) whether or not the Award is subject to the terms and conditions set forth in
Sections 6.2(d) and 6.2(e), which shall be deemed to apply unless an Award Agreement
expressly provides to the contrary.


As soon as practicable after vesting of a Participant’s Restricted Units, the Company shall issue
to the Participant, free from the vesting restrictions, one Share for each vested Restricted Unit,
unless the Award provides otherwise. No fractional shares shall be distributed, and cash shall be
paid in lieu thereof. Whenever Shares are issued to a Participant pursuant to the Award of
Restricted Units, the Participant shall also be entitled to receive, with respect to each Share
issued, an amount equal to any cash dividends and a number of Shares equal to any stock dividends,
which were declared and paid to the holders of Shares between the date of grant of the Restricted
Unit and the date such Share is issued. If a Participant who has received an Award in the form of
Restricted Units provides the Administrator with written notice of his or her intention to make an
election under Section 83(b) of the Code with respect to the Shares subject to the Award, the
Administrator may, in its discretion and subject to any terms and conditions that the Administrator
may impose, exchange the Participant’s Restricted Units into Restricted




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Shares, on a one-for-one basis.




     6.3 Options. The Administrator may from time to time grant Options subject to the
terms of this Plan, including the specified terms of this Section.



     (a) Conditions With Respect to Non-Statutory Stock Options. Certain Nonstatutory
Stock Options (“Performance Grants”) shall, if the Administrator so determines in its discretion,
be subject to the following conditions, which conditions shall be stated within the applicable
Award Agreement:




     (i) At the time of grant, the Administrator may, in its discretion, place additional
restrictions on Performance Grants requiring that the Option will vest only if and when, or
on an accelerated basis if and when, the Common Stock price exceeds a specific amount.
Generally, Performance Grants will be subject to the same requirements described herein,
unless the Administrator decides otherwise.




     (ii) At the time of grant, the Administrator may, in its discretion, place additional
restrictions on the Performance Grants requiring that on the exercise of such a grant an
Employee will purchase Shares that will be forfeited if the Participant terminates
employment within a certain number of years. Additional transferability restrictions may be
imposed in connection with Performance Grants.



     (b) Conditions With Respect to Incentive Stock Options. Each Incentive Stock Option
shall be subject to the following conditions, in addition to those set forth in Section 4.2, all of
which conditions shall be stated within the applicable Award Agreement:




     (i) To the extent that the aggregate Fair Market Value of Shares (determined as of
the time an Option is granted) exercisable for the first time by a Participant during any
calendar year under such Incentive Stock Option and any other Incentive Stock Option issued
by the Company or any Subsidiary Corporation or Parent Corporation exceeds $100,000, such
excess Incentive Stock Options shall be deemed Nonstatutory Stock Options.




     (ii) In no event may any Incentive Stock Option become exercisable later than the
date preceding the tenth anniversary date of the grant thereof.


Any Incentive Stock Option which does not comply with the forgoing provisions shall not be
considered an Incentive Stock Option, and instead shall be considered a Nonstatutory Stock Option
issued under this Plan.




     (c) Option Price. The Option Price shall be determined by the Administrator (or the
Special Committee), subject to any limitations imposed by this Plan and, in any event, shall not be
less than one hundred percent (100%) of the Fair Market Value of Shares on the date of grant in the
case of both Incentive Stock Options and Nonstatutory Stock



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Options; provided that in the case of Incentive Stock Options granted to a Participant described in
Section 4.3 hereof, the Option Price shall not be less than one hundred ten percent (110%) of the
Fair Market Value of Shares on the date of grant.




     (d) Limitations on Exercise of Options. Notwithstanding anything contained in this
Plan to the contrary:




     (i) Options may not be exercised until this Plan has been approved by the
stockholders as provided in Section 9.8.




     (ii) Options shall be exercisable in full or in such equal or unequal installments as
the Administrator shall determine; provided that if a Participant does not purchase all of
the Shares which the Participant is entitled to purchase on a certain date or within an
established installment period, the Participant’s right to purchase any unpurchased Shares
shall continue during the Award Term (taking into account any early termination of such
Award Term which may be provided for under this Plan).



     (e) Method of Exercising Options. Options shall be exercised by a written notice,
delivered to the Company at its principal office located at 4795 Meadow Wood Lane, Suite 300,
Chantilly, Virginia 20151 Attn: Chief Financial Officer or such other address that may be
designated by the Company, specifying the number of Shares to be purchased and tendering payment in
full for such Shares. Payment may be tendered in cash or by certified, bank cashier’s or teller’s
check or by Shares (valued at Fair Market Value as of the date of tender) that the Participant has
owned for at least six months, or some combination of the foregoing or such other form of
consideration which has been approved by the Administrator, including any cashless exercise
mechanism or a promissory note given by the Participant and approved by the Administrator. The
right to deliver in full or partial payment of such Option Price any consideration other than cash
shall be limited to such frequency as the Administrator shall determine in its sole discretion from
time to time. In the event all or part of the Option Price is paid in Shares, any excess of the
value of such Shares over the Option Price will be returned to the Participant as follows:




     (i) any whole Share remaining in excess of the Option Price will be returned in kind,
and may be represented by one or more share certificates; and




     (ii) any partial Shares remaining in excess of the Option Price will be returned in
cash.



     (f) Buyout Provisions. Subject to stockholder approval for a broad-based offer and to
any other approval requirements that may apply (in either case, as determined by the Administrator
in its sole discretion), the Administrator may at any time offer to buy out an Option, in exchange
for a payment in cash or Shares, based on such terms and conditions as the Administrator shall
establish and communicate to the Participant at the time that such offer is made. In addition,
subject to stockholder approval for a broad-



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based offer and to any other approval requirements that may apply (in either case, as determined by
the Administrator in its sole discretion) if the Fair Market Value for Shares subject to an Option
is more than 50% below their Option Price for more than 30 consecutive business days, the
Administrator may unilaterally terminate and cancel the Option by paying the Participant, in cash
or Shares, an amount not less than the Black-Scholes value of the vested portion of the Option or
such other valuation methodology that the Administrator may adopt.




     6.4 Stock Appreciation Rights.



     (a) Granting of Stock Appreciation Rights. In its sole discretion, the Administrator
may from time to time grant Stock Appreciation Rights to Participants either in conjunction with,
or independently of, any Options granted under this Plan. A Stock Appreciation Right granted in
conjunction with an Option may be an alternative right wherein the exercise of the Option
terminates the Stock Appreciation Right to the extent of the number of Shares purchased upon
exercise of the Option and, correspondingly, the exercise of the Stock Appreciation Right
terminates the Option to the extent of the number of Shares with respect to which the Stock
Appreciation Right is exercised. Alternatively, a Stock Appreciation Right granted in conjunction
with an Option may be an additional right wherein both the Stock Appreciation Right and the Option
may be exercised. A Stock Appreciation Right may not be granted in conjunction with an Incentive
Stock Option under circumstances in which the exercise of the Stock Appreciation Right affects the
right to exercise the Incentive Stock Option or vice versa, unless the Stock Appreciation Right, by
its terms, meets all of the following requirements:




     (i) the Stock Appreciation Right will expire no later than the Incentive Stock Option;




     (ii) the Stock Appreciation Right may be for no more than the difference between the
Option Price of the Incentive Stock Option and the Fair Market Value of the Shares subject
to the Incentive Stock Option at the time the Stock Appreciation Right is exercised;




     (iii) the Stock Appreciation Right is transferable only when the Incentive Stock
Option is transferable, and under the same conditions;




     (iv) the Stock Appreciation Right may be exercised only when the Incentive Stock
Option may be exercised; and




     (v) the Stock Appreciation Right may be exercised only when the Fair Market Value of
the Shares subject to the Incentive Stock Option exceeds the Option Price of the Incentive
Stock Option.



     (b) Option Price. The Option Price as to any particular Stock Appreciation Right
shall not be less than the Fair Market Value of the Shares on the date of grant.



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     (c) Timing of Exercise. The provisions of Section 6.4(d) regarding the period of
exercisability of Options are incorporated by reference herein, and shall determine the period of
exercisability of Stock Appreciation Rights.



     (d) Exercise of Stock Appreciation Rights. A Stock Appreciation Right granted
hereunder shall be exercisable at such times and under such conditions as shall be permissible
under the terms of this Plan and of the Award Agreement granted to a Participant, provided that a
Stock Appreciation Right may not be exercised for a fractional Share. Upon exercise of a Stock
Appreciation Right, the Participant shall be entitled to receive, without payment to the Company,
an amount equal to the excess of (or, in the discretion of the Committee if provided in the Award
Agreement, a portion of) the excess of the then aggregate Fair Market Value of the number of Shares
with respect to which the Participant exercises the Stock Appreciation Right, over the aggregate
Option Price of such number of optioned Shares. This amount shall be payable by the Company in
Shares valued at the then Fair Market Value thereof, or any combination thereof.



     (e) Procedure for Exercising Stock Appreciation Rights. To the extent not
inconsistent herewith, the provisions of Section 6.3(e) as to the procedure for exercising Options
are incorporated by reference, and shall determine the procedure for exercising Stock Appreciation
Rights.



     (f) Buy-out. Subject to stockholder approval for broad-based offer and any other
approval requirements that may apply (in either case, as determined by the Administrator in its
sole discretion), the Administrator has the same discretion to buy-out Stock Appreciation Rights as
it has to take such actions with respect to Options.



     6.5 Performance Awards.



     (a) Performance Units. The Administrator may in its discretion grant Performance
Units to any eligible Participant and shall evidence such grant in an Award Agreement that is
delivered to the Participant which sets forth the terms and conditions of the Award. A Performance
Unit is an Award (which may be a Performance Grant) which is based on the achievement of specific
goals with respect to the Company or any Affiliate or individual performance of the Participant, or
a combination thereof, over a specified period of time.



     (b) Performance Compensation Awards. The Administrator may, in its discretion, at the
time of grant of a Performance Unit, designate such Award as a “Performance Compensation Award” in
order that such Award will constitute “qualified performance-based compensation” under Code Section
162(m), in which event the Administrator shall have the power to grant such Performance
Compensation Award upon terms and conditions that qualify it as “qualified performance-based
compensation” within the meaning of Code Section 162(m). With respect to each such Performance
Compensation Award, the Administrator shall establish, in writing within the time required under
Code



14









 




Section 162(m), a “Performance Period,” “Performance Measure(s)”, and “Performance Formula(e)”
(each such term being hereinafter defined). Once established for a Performance Period, the
Performance Measure(s) and Performance Formula(e) shall not be amended or otherwise modified to the
extent such amendment or modification would cause the compensation payable pursuant to the Award to
fail to constitute qualified performance-based compensation under Code Section 162(m).



A Participant shall be eligible to receive payment in respect of a Performance Compensation Award
only to the extent that the Performance Measure(s) for such Award are achieved and the Performance
Formula(e) as applied against such Performance Measure(s) determines that all or some portion of
such Participant’s Award has been earned for the Performance Period. As soon as practicable after
the close of each Performance Period, the Administrator shall review and certify in writing
whether, and to what extent, the Performance Measure(s) for the Performance Period have been
achieved and, if so, determine and certify in writing the amount of the Performance Compensation
Award to be paid to the Participant and, in so doing, may use negative discretion to decrease, but
not increase, the amount of the Award otherwise payable to the Participant based upon such
performance.




     (c) Definitions.




     (i) “Performance Formula” means, for a Performance Period, one or more objective
formulas or standards established by the Administrator for purposes of determining whether
or the extent to which an Award has been earned based on the level of performance attained
or to be attained with respect to one or more Performance Measure(s). Performance Formulae
may vary from Performance Period to Performance Period and from Participant to Participant
and may be established on a stand-alone basis, in tandem or in the alternative.




     (ii) “Performance Measure” means one or more of the following selected by the
Administrator to measure Company, Affiliate, and/or business unit performance for a
Performance Period, whether in absolute or relative terms (including, without limitation,
terms relative to a peer group or index): basic, diluted, or adjusted earnings per share;
sales or revenue; earnings before interest, taxes, and other adjustments (in total or on a
per share basis); basic or adjusted net income; returns on equity, assets, capital, revenue
or similar measure; economic value added; working capital; total stockholder return;
service quality; and product development, product market share, research, licensing,
litigation, human resources, information services, mergers, acquisitions, sales of assets
of Affiliates or sales of business units. Each such measure shall be to the extent
applicable, determined in accordance with generally accepted accounting principles as
consistently applied by the Company (or such other standard applied by the Administrator)
and, if so determined by the Administrator, and in the case of a Performance Compensation
Award, to the extent permitted under Code Section 162(m), adjusted to omit the effects of
extraordinary items, gain or loss on the disposal of a business segment, unusual or
infrequently occurring events and



15









 






transactions and cumulative effects of changes in accounting principles. Performance
Measures may vary from Performance Period to Performance Period and from Participant to
Participant, and may be established on a stand-alone basis, in tandem or in the
alternative.




     (iii) “Performance Period” means one or more periods of time (of not less than one
fiscal year of the Company) as the Administrator may designate, over which the attainment
of one or more Performance Measure(s) will be measured for the purpose of determining a
Participant’s rights in respect of an Award.



     6.6 Non-Transferability.



     (a) General. Except as set forth in Section 6.6(c) below, Awards may not be sold,
pledged, assigned, hypothecated, transferred, or otherwise encumbered or disposed of other than by
will or by the laws of descent or distribution, and except as specifically provided in this Plan or
the applicable Award Agreement. During a Participant’s lifetime, an Option or Stock Appreciation
Right shall only be exercisable by the Participant. Furthermore, unless the applicable Award
Agreement provides otherwise, additional Shares or other property distributed to the Participant in
respect of Awards, as dividends or otherwise, shall be subject to the same restrictions applicable
to such Award.



     (b) Special Rule for Beneficiaries. The designation of a beneficiary by a Participant
will not constitute a transfer. In the absence of a validly designated beneficiary, a Participant’s
beneficiary shall be his or her estate.



     (c) Limited Transferability Rights. To the extent specifically authorized by the
Administrator in an Award Agreement or amendment thereto, any Participant may transfer Awards
(other than Incentive Stock Options) either by gift to immediate family, or by instrument to an
inter vivos or testamentary trust in which the Awards are to be passed, upon the death of the
grantor, to beneficiaries who are immediate family (or otherwise approved by the Administrator). A
permitted transfer of an Award (including but not limited to a transfer by will or by the laws of
descent and distribution) shall not be effective to bind the Company unless the Company shall have
been furnished with written notice thereof and an authenticated copy of such evidence (e.g., an
executed will or trust) as the Administrator may deem necessary to establish the validity of the
transfer and the acceptance by the transferee of the terms and conditions of such Award.



     6.7 Award Term. The Award Term shall be determined by the Administrator at the time of
grant, subject to any limitations imposed by this Plan, but in any event shall not be more than ten
years from the date such Award is granted (five years under the circumstances described in Section
4.3(b)). Awards may be subject to earlier termination as provided in this Plan.



     6.8 Withholding Tax.



     (a) In the event the Company determines that it is required to withhold income



16









 




tax in connection with an Award (for instance, as a result of the exercise of an Option as a
condition for the exercise thereof), the Participant may be required to make arrangements
satisfactory to the Company to enable it to satisfy such withholding requirements. Payment of such
withholding requirements may be made, in the discretion of the Administrator, (i) in cash, (ii) by
delivery of Shares registered in the name of the Participant having a Fair Market Value at the time
the Participant becomes subject to income tax equal to the amount to be withheld and that have been
held by the Participant for more than six months, (iii) by the Company retaining or not issuing
such number of Shares subject to the Award as have a Fair Market Value at the time the Participant
becomes subject to income tax equal to the amount to be withheld or (iv) any combination of (i),
(ii) and (iii) above.




     (b) The Administrator shall be entitled as it deems appropriate to make available for
issuance under this Plan Shares tendered by a Participant as payment of the price for any Shares
used to satisfy the Company’s withholding requirements.



     6.9 Rights in the Event of Sale, Merger or Other Reorganization. Except as expressly
provided in Section 5.2 and this Section, the Participant shall have no rights by reason of any
subdivision or consolidation of shares of stock of any class, the payment of any stock dividend or
any other increase or decrease in the number of shares of stock of any class or by reason of any
dissolution, liquidation, merger or consolidation or spin-off of assets or stock of another
corporation, and any issue by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall not affect, and no adjustment by reason
thereof shall be made with respect to, the number or price (if applicable) of Shares subject to an
Award. The grant of an Award pursuant to this Plan shall not affect in any way the right or power
of the Company to make adjustments, reclassifications, reorganizations or changes of its capital or
business structure, to merge or consolidate or to dissolve, liquidate, sell or transfer all or any
part of its business or assets. In any such event:



     (a) Unless otherwise provided in the Award Agreement for any given Award, except as otherwise
provided in subparagraph (c), below, upon any such merger (other than a merger in which the
Company is the surviving corporation as described in Section 5.2(b) and under the terms of which
the shares of Common Stock outstanding immediately prior to the merger remain outstanding and
unchanged), consolidation, or sale or transfer of assets, all rights of the Participant with
respect to the unvested portion of any Restricted Share, Restricted Units, or the unexercised
portion of any Stock Appreciation Right or Option shall become immediately vested, and any Option
or Stock Appreciation Right may be exercised immediately, except to the extent that any agreement
or undertaking of any party to any such merger, consolidation, or sale or transfer of assets, shall
make specific provision for the assumption of the obligations of the Company with respect to this
Plan and the rights of Participants with respect to Awards granted hereunder.



     (b) Unless otherwise provided in the Award Agreement for any given Award, upon any such
liquidation or dissolution, all rights of the Participant with respect to the



17









 




unvested portion of any Award shall wholly and completely terminate and all Awards shall be
canceled at the time of any such liquidation or dissolution, except to the extent otherwise
provided in subparagraph (c), below, and except to the extent that any plan pursuant to which such
liquidation or dissolution is effected, shall make specific provision with respect to this Plan and
the rights of Participants with respect to Awards granted hereunder.




     (c) Unless otherwise provided in any Award Agreement, upon a Change of Control (as defined
herein), (i) all rights of Long Term Employees with respect to the unvested portion of any
Restricted Share or Restricted Unit and the unexercised portion of any Option or Stock Appreciation
Rights shall fully vest and become exercisable upon the effective date of any such Change of
Control and (ii) for all other Employees who remain employed by the Company or its affiliated
companies, or both, as applicable, from the date of a Change of Control to the date of the first
anniversary of such Change of Control, or if prior to the first anniversary of such Change of
Control, the Employee’s employment with the Company or an Affiliate is involuntarily terminated by
the Company or its Affiliates, or both, as applicable, other than for Cause, each Restricted Share
or Restricted Unit and the unexercised portion of any Option or Stock Appreciation Right that may
be exercised and which is not subject to performance criteria, to the extent any of which is
outstanding immediately prior to a Change of Control, shall (irrespective of any provision of the
applicable Award Agreement providing for earlier or later vesting) become vested and earned as of
the earlier of (a) the first anniversary of the Change of Control or (b) the date the Participant’s
employment is terminated. Payment in respect of such awards shall be made as soon as practicable
following such date. For purposes of this section, termination of an Employee’s employment with
the Company for Good Reason shall be deemed a termination of employment other than for Cause. Notwithstanding the foregoing, any Long Term Employee holding any Award theretofore granted and
still outstanding shall have the right immediately prior to the effective date of such Change of
Control, but subject to such Change of Control, to pay the purchase or exercise price, if any, for
such Award in whole or in part without regard to any installment provision that may have been made
part of the terms and conditions of such Award or right; provided, that any conditions precedent to
such purchase set forth in the Award Agreement, other than vesting, have occurred or been waived.
In no event, however, may any Incentive Stock Option that becomes exercisable pursuant to this
Section 6.9 be exercised, in whole or in part, later than the date preceding the tenth anniversary
date of the grant thereof, and in no case may an Incentive Stock Option granted to a Participant
described in Section 4.3 be exercised in whole or in part, later than the date preceding the fifth
anniversary date of the grant thereof.



     (d) Definition of “Change in Control.” For purposes of this Plan, “Change in Control”
shall be defined as:




     (i) When any “person” as defined in Section 3(a)(9) of the Exchange Act and as used
in Sections 13(d) and 14(d) thereof (including a “group” as defined in Section 13(d) of the
Exchange Act, but excluding the Company, any Subsidiary or any employee benefit plan
sponsored or maintained by the Company or any



18









 




Subsidiary (including any trustee of such plan acting as trustee)), directly or
indirectly, becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange
Act, as amended from time to time), of securities of the Company representing 50% or more
of the combined voting power of the Company’s then outstanding securities.





     (ii) The individuals who, as of January 1, 2005, constitute the Board (the “Incumbent
Board”), cease for any reason to constitute at least a majority of the Board; provided
however, that any individual becoming a director subsequent to such date, whose election,
or nomination for election by the Company’s stockholders, was approved by a vote of at
least a majority of the directors then comprising the Incumbent Board shall, for purposes
of this section, be counted as a member of the Incumbent Board in determining whether the
Incumbent Board constitutes a majority of the Board.




     (iii) Consummation of a reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of the Company or the acquisition of
assets of another corporation (a “Business Combination”), in each case, unless, following
such Business Combination:




     (A) all or substantially all of the individuals and entities who were the
beneficial owners of the then outstanding shares of common stock of the Company and
the beneficial owners of the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of directors
immediately prior to such Business Combination beneficially own, directly or
indirectly, more than fifty percent (50%) of the then outstanding shares of common
stock and the combined voting power of the then outstanding securities entitled to
vote generally in the election of directors, respectively, as the case may be, of
the corporation resulting from such Business Combination (including, without
limitation, a corporation which as a result of such transaction owns the Company or
all or substantially all of the Company’s assets either directly or indirectly or
through one or more subsidiaries); and




     (B) no person (excluding any employee benefit plan or related trust of the
Company or such corporation resulting from such Business Combination) beneficially
owns, directly or indirectly, fifty percent (50%) or more of the then outstanding shares of common stock of the corporation resulting from such Business Combination
or the combined voting power of such corporation except to the extent that such
ownership existed prior to the Business Combination; or




     (iv) Approval by the stockholders of the Company of a complete liquidation or
dissolution of the Company.




6.10 Restricted Share and Restricted Unit Rights in the Event of Death, Total 



19









 




and Permanent Disability, or Termination. Unless otherwise provided in an Award Agreement
for any given Restricted Share or Restricted Unit if a Participant’s employment or business
relationship with or service to the Company is terminated on account of the Participant’s death,
Total and Permanent Disability, retirement, or without Cause, vesting on all outstanding Restricted
Share and Restricted Unit may accelerate to 100% at the discretion of the Administrator.




     6.11 Option and Stock Appreciation Right Award Rights in the Event of Death, Total and
Permanent Disability, or Termination.



     (a) Rights in the Event of Death. Unless otherwise provided in the Award Agreement
for any given Option or Stock Appreciation Right, if a Participant’s employment or business
relationship with or service to the Employer Company or service as a member of the Board is
terminated on account of death, the person or persons who shall have acquired the right, by will or
the laws of descent and distribution, to exercise the Participant’s Options shall continue to have
(subject to Sections 6.3(b) and 6.3(d) above) the right, for a period of at least one (1) year from
the date of termination by death or such longer period (if any) as may be specified in the
applicable Award Agreement, to exercise any Options which such Participant would have been entitled
to exercise on the Participant’s death. At the expiration of such period any such Options or Stock
Appreciation Rights which remain unexercised shall expire. Unless the Administrator provides
otherwise in the Award Agreement, any Options or Stock Appreciation Rights that could not have been
exercised by a Participant as of the Participant’s death may not be exercised.



     (b) Rights in the Event of Total and Permanent Disability. Unless otherwise provided
in the Award Agreement for any given Option or Stock Appreciation Right, if a Participant’s
employment or business relationship with or service to the Employer Company or service as a member
of the Board is terminated on account of Total and Permanent Disability, the Participant shall have
(subject to Sections 6.3(b) and 6.3(d) above) the right, for a period of at least one(1) year from
the date of termination by disability or such longer period (if any) as may be specified in the
applicable Award Agreement, to exercise any Options or Stock Appreciation Rights which such
Participant would have been entitled to exercise on the date of such Participant’s Total and
Permanent Disability. At the expiration of such period any such Options or Stock Appreciation
Rights which remain unexercised shall expire. Unless the Administrator provides otherwise in the
Award Agreement, any Options or Stock Appreciation Rights that could not have been exercised by a
Participant on the date of such Participant’s Total and Permanent Disability may not be exercised.



     (c) Rights in the Event of Termination of Employment or Service. Unless otherwise
provided in the Award Agreement for any given Option or Stock Appreciation Right, in the event that
a Participant’s employment or business relationship with or service to the Employer Company or
service as a member of the Board terminates, other than by reason of death or Total and Permanent
Disability and other than due to termination for “Cause,” the Participant shall have (subject to
Sections 6.3(b) and 6.3(d)



20









 




above) the right, for a period of at least three (3) months from the date of such termination or
such longer period (if any) as may be specified in the applicable Award Agreement, to exercise any
Options or Stock Appreciation Rights which such Participant would have been entitled to exercise on
the date of such Participant’s termination. At the expiration of such period any such Options which
remain unexercised shall expire. Unless the Administrator provides otherwise in the Award Agreement
any Options or Stock Appreciation Rights that could not have been exercised by a Participant on the
date of such Participant’s termination of employment or service as a member of the Board or
business relationship may not be exercised. Notwithstanding the foregoing, if the employment or
service of or business relationship with a Participant is terminated for “Cause” by the Employer
Company, the Company may notify the Participant that any Options not exercised prior to the
termination are cancelled. For purposes of this Plan and unless the Administrator provides
otherwise in the Award Agreement, a termination of service or business relationship for “Cause”
shall include dismissal as a result of (1) Participant’s conviction of any crime or offense
involving money or other property of the Company or its subsidiaries or which constitutes a felony
in the jurisdiction involved; (2) Participant’s gross negligence, gross incompetence or willful
gross misconduct in the performance of his or her duties; or (3) Participant’s willful and material
failure or refusal to perform his or her duties.




SECTION 7




SHARES ISSUED PURSUANT TO AN AWARD




     7.1 Issuance of Certificates. The Company shall not be required to issue or deliver
any certificate for Shares issued pursuant to any Award including upon exercise of a Stock
Appreciation Right or Option, or any portion thereof, prior to fulfillment of all of the following
applicable conditions:



     (a) The admission of such Shares to listing on all stock exchanges or markets on which the
Shares are then listed to the extent such admission is necessary;



     (b) The completion of any registration or other qualification of such Shares under any
federal or state securities laws or under the rulings or regulations of the Securities and Exchange
Commission or any other governmental regulatory body, which the Board shall in its sole discretion
deem necessary or advisable, or the determination by the Board in its sole discretion that no such
registration or qualification is required;



     (c) The obtaining of any approval or other clearance from any federal or state governmental
agency which the Board shall, in its sole discretion, determine to be necessary or advisable; and



     (d) The lapse of such reasonable period of time which the Board or Committee may establish
for reasons of administrative convenience following the date a Participant becomes entitled to
receive unrestricted Shares pursuant to an Award.



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     7.2 Compliance with Securities and Other Laws. In no event shall the Company be
required to sell, issue or deliver Shares pursuant to Awards if in the opinion of the Company the
issuance thereof would constitute a violation by either the Participant or the Company of any
provision of any law or regulation of any governmental authority or any securities exchange or
market. As a condition of any sale or issuance of Shares pursuant to Awards, the Company may place
legends on the Shares, issue stop-transfer orders and require such agreements or undertakings from
the Participant as the Company may deem necessary or advisable to assure compliance with any such
law or regulation, including if the Company or its counsel deems it appropriate, representations
from the Participant that the Participant is acquiring the Shares solely for investment and not
with a view to distribution and that no distribution of the Shares acquired by the Participant will
be made unless registered pursuant to applicable federal and state securities laws or unless, in
the opinion of counsel to the Company, such registration is unnecessary.



     7.3 Requirements in the Event of a Disposition of Incentive Stock Option Shares. Any
Participant, or person representing such Participant, who sells, exchanges, transfers or otherwise
disposes of any Shares acquired pursuant to the exercise of an Incentive Stock Option within two
(2) years following the grant of such Incentive Stock Option or within one (1) year following the
actual transfer of such Shares to the Participant, shall be obligated to notify the Company in
writing of the date of disposition, the number of Shares so disposed and the amount of
consideration received as a result of such disposition. The Company shall have the right to take
whatever reasonable action it deems appropriate against a Participant, including early termination
of any Options which remain outstanding, in order to recover any additional taxes the Company
incurs as a result of such Participant failure to so notify the Company.



     7.4. Legend. All certificates for Shares purchased upon the exercise of an Incentive
Stock Option may bear a legend indicating that such Shares were issued pursuant to an Incentive
Stock Option grant.



SECTION 8




TERMINATION, AMENDMENT AND MODIFICATION OF PLAN




     8.1 Board Termination, Amendment and Modification of Plan. The Board shall have
complete power and authority to amend the Plan at any time; provided, however, that the Board shall
not, without the affirmative approval of stockholders of the Company, make any amendment that
materially modifies the Plan by increasing the benefits accrued to Participants under the Plan,
increasing the number of securities that may be issued under the Plan, modifying the requirements
for participation in the Plan, including a provision allowing the Board to lapse or waive
restrictions at its discretion, or that requires stockholder approval under the Code, unless such
compliance is no longer desired under the Code, or under any other applicable law or rule of any
stock exchange on which Shares or other securities of the Company are traded. No termination or
amendment of the Plan may adversely affect the right of any Participant with respect to



22









 




any Award previously granted under the Plan without the prior written consent of the Participant.
Notwithstanding anything to the contrary, the Board shall be entitled to adjust the Option Price
with respect to any outstanding Option or Stock Appreciation Right at any time provided that the
Participant shall so consent, subject to the approval of the stockholders of the Company if the
modification reduces the Option Price (except for any reduction of the Option Price pursuant to the
provisions of Section 5.2 hereof).




     8.2 Plan Termination. Unless terminated earlier as provided in Section 8.1, this Plan
shall terminate ten (10) years from the date this Plan is adopted by the Board and no Award shall
be granted under this Plan after such expiration date. Termination of this Plan shall not alter or
impair any of the rights or obligations under any Award theretofore granted under this Plan unless
the Participant shall so consent.



     8.3 Effect of Termination, Amendment or Modification of Plan. Notwithstanding Sections
8.1 and 8.2, no termination, amendment or modification of this Plan shall in any manner affect any
Award theretofore granted under this Plan without the written consent of the Participant or a
person who shall have acquired the right to the Award by will or the laws of descent and
distribution.



SECTION 9




MISCELLANEOUS




     9.1 Non-Assignability of Awards. No Award shall be assignable or transferable by the
Participant except pursuant to Section 6.6 hereof.



     9.2 Leaves of Absence. Unless the Administrator determines otherwise, the vesting of
an Award granted under this Plan shall not be tolled during any unpaid leave of absence taken by a
Participant.



     9.3 No Rights to Employment or Provide Service. Nothing in this Plan or in any Award
granted hereunder or in any Award Agreement relating thereto shall confer upon any individual the
right to continue employment with or to provide service to the Employer Company or service as a
member of the Board.



     9.4 Purchase Offer. The Administrator may offer to purchase, for cash or Shares, any
Award granted hereunder and such offer to purchase any Award shall be on such terms and conditions
as the Administrator establishes and communicates to the Participant at the time the offer is
extended to the Participant.



     9.5 Binding Effect. This Plan shall be binding upon the successors and assigns of the
Company.



     9.6 Singular, Plural, Gender. Whenever used herein, except where the context clearly
indicates to the contrary, nouns in the singular shall include the plural, and the masculine
pronoun shall include the feminine gender.



23









 





     9.7 Headings. Headings of the Sections hereof are inserted for convenience and
reference and constitute no part of this Plan.



     9.8 Effective Date; Ratification by Stockholders. The terms of this Plan shall become
effective upon the approval of the stockholders of the Company, by a majority of the votes cast at
a meeting held within 12 months after the date on which this Plan received Board approval. If this
Plan is not duly approved by the Company’s stockholders, this Plan shall become null and void and
of no force or effect.



     9.9 Rights as Stockholder. Any Participant or transferee of an Award shall have no
rights as a stockholder with respect to any Shares subject to such Award prior to the date on which
the Participant becomes entitled to receive unrestricted Shares or exercise Options or Stock
Appreciation Rights pursuant to the Plan, as provided herein.



     9.10 Applicable Law. This Plan and the Awards granted hereunder shall be interpreted,
administered and otherwise subject to the laws of the State of Delaware, without giving effect to
the principles of conflict of laws thereof.



     9.11 Reports. The Company will comply with all applicable reporting and tax
requirements applicable to Awards under the Code.




24