Exhibit 10.01





Exhibit 10.01


Glu Mobile Inc.

Amended and Restated 2007 Employee Stock Purchase Plan


Adopted by the Board of Directors on January 25, 2007

and amended by the Committee Through July 1, 2009


(All share numbers adjusted to reflect the 1-for-3 reverse stock split

effected on march 2, 2007)


1. Establishment of Plan. Glu Mobile Inc. (the
“Company”) proposes to grant options for purchase of
the Company’s Common Stock to eligible employees of the Company and its
Participating Corporations (as hereinafter defined) pursuant to this Employee
Stock Purchase Plan (this “Plan”). For purposes of
this Plan, “Parent” and “Subsidiary” shall have the
same meanings as “parent corporation” and “subsidiary
corporation” in Sections 424(e) and 424(f), respectively, of the Internal
Revenue Code of 1986, as amended (the “Code”), and
“Corporate Group” shall refer collectively to the
Company and all its Parents and Subsidiaries. “Participating
Corporations” are the Company and any Parents or Subsidiaries
that the Board of Directors of the Company (the
“Board”) designates from time to time as corporations
that shall participate in this Plan. The Company intends this Plan to qualify
as an “employee stock purchase plan” under Section 423 of the
Code (including any amendments to or replacements of such Section), and this
Plan shall be so construed. Any term not expressly defined in this Plan but
defined for purposes of Section 423 of the Code shall have the same
definition herein. A total of 1,252,7401 shares of the Company’s Common Stock is reserved for issuance under this Plan. In
addition, on each January 1 for the first eight calendar years after the first
Offering Date, the aggregate number of shares of the Company’s Common
Stock reserved for issuance under the Plan shall be increased automatically by
the number of shares equal to one percent (1%) of the total number of
outstanding shares of the Company Common Stock on the immediately preceding
December 31 (rounded down to the nearest whole share);
provided, that the Board or the Committee may in its sole discretion
reduce the amount of the increase in any particular year; and, provided
further, that the aggregate number of shares issued over the term of this
Plan shall not exceed 5,333,333 shares of Common Stock. The number of shares
reserved for issuance under this Plan and the maximum number of shares that may
be issued under this Plan shall be subject to adjustments effected in
accordance with Section 14 of this Plan.


2. Purpose. The purpose of this Plan is to provide eligible employees of the Company and Participating Corporations with a means
of acquiring an equity interest in the Company through payroll deductions, to
enhance such employees’ sense of participation in the affairs of the
Company and Participating Corporations, and to provide an incentive for
continued employment.


3. Administration. This Plan shall be administered by the Compensation Committee of the Board or by the Board (either referred to
herein as the “Committee”). Subject to the provisions
of this Plan and the limitations of Section 423 of the Code or any successor
provision in the Code, all questions of interpretation or application of this
Plan shall be determined by the Committee and its decisions shall be final and
binding upon all Participants. Members of the Committee shall receive no
compensation for their services in connection with the administration of this
Plan, other than standard fees as established from time to time by the Board
for services rendered by Board members serving on Board committees. All
expenses incurred in connection with the administration of this Plan shall be
paid by the Company.


 

 



1 Includes
290,223 and 295,841 shares of Common Stock automatically added on
January 1, 2008 and January 1, 2009, respectively, pursuant to this
Section 1.





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4. Eligibility. Any
employee of the Company or the Participating Corporations is eligible to
participate in an Offering Period (as hereinafter defined) under this Plan
except the following:


(a) employees who
are not employed by the Company or a Participating Corporation for at least one
(1) month prior to the beginning of such Offering Period or prior to such
other time period as specified by the Committee;


(b) employees who
are customarily employed for twenty (20) hours or less per week;


(c) employees who
are customarily employed for five (5) months or less in a calendar year;


(d) employees
who, together with any other person whose stock would be attributed to such
employee pursuant to Section 424(d) of the Code, own stock or hold options to
purchase stock possessing five percent (5%) or more of the total combined
voting power or value of all classes of stock of the Company or any of its
Participating Corporations or who, as a result of being granted an option under
this Plan with respect to such Offering Period, would own stock or hold options
to purchase stock possessing five percent (5%) or more of the total combined
voting power or value of all classes of stock of the Company or any of its
Participating Corporations;


(e) employees who
do not meet any other eligibility requirements that the Committee may choose to
impose (within the limits permitted by the Code); and


(f) individuals
who provide services to the Company or any of its Participating Corporations as
independent contractors who are reclassified as common law employees for any
reason except for federal income and employment tax purposes.


5. Offering
Dates.


(a) The offering
periods of this Plan (each, an “Offering Period”) may
be of up to twenty-four (24) months duration and shall commence and end at
the times designated by the Committee. Each Offering Period may consist of up
to five (5) purchase periods (individually, a “Purchase
Period”) during which payroll deductions of Participants are
accumulated under this Plan.


(b) The initial
Offering Period shall commence on the date on which the Registration Statement
covering the initial public offering of shares of the Company’s Common
Stock is declared effective by the U.S. Securities and Exchange Commission (the
“Effective Date”), and shall end with the Purchase
Date that occurs on or prior to the February 14 or August 14 that
first occurs six months or more after the Effective Date. The initial Offering
Period shall consist of a single Purchase Period. Thereafter and through
August 14, 2009, a six-month Offering Period shall commence on each
February 15 and August 15, with each such Offering Period also
consisting of a single six-month Purchase Period. Thereafter, a six-month
Offering Period shall commence on each February 22 and August 22,
with each such Offering Period consisting of a single six-month Purchase Period.


(c) The first
business day of each Offering Period is referred to as the
“Offering Date,” however, for the initial Offering
Period this shall be the Effective Date. The last business day of each Purchase
Period is referred to as the “Purchase Date.” The
Committee shall have the power to change these terms as provided in
Section 25 below.





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6. Participation in this Plan.


(a) Any employee
who is an eligible employee determined in accordance with Section 4
immediately prior to the initial Offering Period will be automatically enrolled
in the initial Offering Period under this Plan. With respect to subsequent
Offering Periods, any eligible employee determined in accordance with
Section 4 will be eligible to participate in this Plan, subject to the
requirement of Section 6(b) hereof and the other terms and provisions of this
Plan. Eligible employees who meet the eligibility requirements set forth in
Section 4 and who are either automatically enrolled in the initial
offering period or who elect to participate in the this Plan pursuant to
Section 6(b) are referred to herein as a
“Participant” or collectively as
“Participants.”


(b) Notwithstanding the foregoing, (i) an eligible
employee may elect to decrease the number of shares of Common Stock that such
employee would otherwise be permitted to purchase for the initial Offering
Period under the Plan and/or purchase shares of Common Stock for the initial
Offering Period through payroll deductions by delivering a subscription
agreement to the Company within thirty (30) days after the filing of an
effective registration statement pursuant to Form S-8 and (ii) the
Committee may set a later time for filing the subscription agreement
authorizing payroll deductions for all eligible employees with respect to a
given Offering Period. With respect to Offering Periods after the initial
Offering Period, a Participant may elect to participate in this Plan by
submitting a subscription agreement prior to the commencement of the Offering
Period (or such earlier date as the Committee may determine) to which such
agreement relates.


(c) Once an
employee becomes a Participant in an Offering Period, then such Participant
will automatically participate in the Offering Period commencing immediately
following the last day of such prior Offering Period unless the Participant
withdraws or is deemed to withdraw from this Plan or terminates further
participation in the Offering Period as set forth in Section 11 below.
Such Participant is not required to file any additional subscription agreement
in order to continue participation in this Plan.


7. Grant of
Option on Enrollment. Becoming a Participant with respect to an Offering
Period will constitute the grant (as of the Offering Date) by the Company to
such Participant of an option to purchase on the Purchase Date up to that
number of shares of Common Stock of the Company determined by a fraction, the
numerator of which is the amount accumulated in such Participant’s
payroll deduction account during such Purchase Period and the denominator of
which is the lower of (i) eighty-five percent (85%) of the fair
market value of a share of the Company’s Common Stock on the Offering
Date (but in no event less than the par value of a share of the Company’s
Common Stock), or (ii) eighty-five percent (85%) of the fair market value
of a share of the Company’s Common Stock on the Purchase Date (but in no
event less than the par value of a share of the Company’s Common Stock)
provided, however, that for the Purchase Period within the initial
Offering Period the numerator shall be fifteen percent (15%) of the
Participant’s compensation for such Purchase Period and
provided, further, that the number of shares
of the Company’s Common Stock subject to any option granted pursuant to
this Plan shall not exceed the lesser of (x) the maximum number of shares
set by the Committee pursuant to Section 10(b) below with respect to the
applicable Purchase Date, or (y) the maximum number of shares which may be
purchased pursuant to Section 10(a) below with respect to the applicable
Purchase Date. The fair market value of a share of the Company’s Common
Stock shall be determined as provided in Section 8 below.


8. Purchase
Price. The purchase price per share at which a share of Common Stock will
be sold in any Offering Period shall be eighty-five percent (85%) of the lesser
of:


(a) The fair
market value on the Offering Date; or


(b) The fair
market value on the Purchase Date.





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The term
“fair market value” means, as of any date, the value
of a share of the Company’s Common Stock determined as follows:


(i) if such
Common Stock is then listed on a national securities exchange, its closing
price on the date of determination on the principal national securities
exchange on which the Common Stock is listed or admitted to trading as reported
in The Wall Street Journal or such other source as the Committee deems
reliable; or


(ii) if such
Common Stock is publicly traded but is not admitted to trading on a national
securities exchange, the average of the closing bid and asked prices on the
date of determination as reported in The Wall Street Journal or such
other source as the Committee deems reliable; and


(iii) with
respect to the initial Offering Period, “fair market value” on the
Offering Date shall be the price at which shares of Common Stock are offered to
the public pursuant to the Registration Statement covering the initial public
offering of shares of the Company’s Common Stock.


9. Payment of
Purchase Price; Payroll Deduction Changes; Share Issuances.


(a) The purchase
price of the shares is accumulated by regular payroll deductions made during
each Offering Period. The deductions are made as a percentage of the
Participant’s compensation in one percent (1%) increments not less than
one percent (1%), nor greater than fifteen percent (15%) or such lower limit
set by the Committee. Compensation shall mean all W-2 cash compensation
categorized by the Company as base salary or regular hourly wages, and
expressly excluding commissions, overtime, shift premiums, bonuses and
incentive compensation, plus draws against commissions,
provided, however, that for purposes of
determining a Participant’s compensation, any election by such
Participant to reduce his or her regular cash remuneration under
Sections 125 or 401(k) of the Code shall be treated as if the Participant
did not make such election. Payroll deductions shall commence on the first
payday following the last Purchase Date (first payday following the effective
date of filing with the U.S. Securities and Exchange Commission a securities
registration statement for the Plan with respect to the initial Offering
Period) and shall continue to the end of the Offering Period unless sooner
altered or terminated as provided in this Plan.


(b) A Participant
may decrease the rate of payroll deductions during an Offering Period by filing
with the Company a new authorization for payroll deductions, with the new rate
to become effective for the next payroll period commencing after the
Company’s receipt of the authorization and continuing for the remainder
of the Offering Period unless changed as described below. Such change in the
rate of payroll deductions may be made at any time during an Offering Period,
but not more than one (1) decrease may be made effective during any
Purchase Period. A Participant may increase or decrease the rate of payroll
deductions for any subsequent Offering Period by filing with the Company a new
authorization for payroll deductions prior to the beginning of such Offering
Period, or such other time period as specified by the Committee.


(c) A Participant
may reduce his or her payroll deduction percentage to zero during an Offering
Period by filing with the Company a request for cessation of payroll
deductions. Such reduction shall be effective beginning with the next payroll
period after the Company’s receipt of the request and no further payroll
deductions will be made for the duration of the Offering Period. Payroll
deductions credited to the Participant’s account prior to the effective
date of the request shall be used to purchase shares of Common Stock of the
Company in accordance with Section (e) below. A reduction of the payroll
deduction percentage to zero shall be treated as such Participant’s
withdrawal from such Offering Period, and the Plan, effective as of the day
after the next Purchase Date following the filing date of such request with the
Company.


(d) All payroll
deductions made for a Participant are credited to his or her account under this
Plan and are deposited with the general funds of the Company. No interest
accrues on the payroll deductions. All payroll deductions received or held by
the Company may be used by the Company for any corporate purpose, and the
Company shall not be obligated to segregate such payroll deductions.





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(e) On each
Purchase Date, so long as this Plan remains in effect and provided that the
Participant has not submitted a signed and completed withdrawal form before
that date which notifies the Company that the Participant wishes to withdraw
from that Offering Period under this Plan and have all payroll deductions
accumulated in the account maintained on behalf of the Participant as of that
date returned to the Participant, the Company shall apply the funds then in the
Participant’s account to the purchase of whole shares of Common Stock
reserved under the option granted to such Participant with respect to the
Offering Period to the extent that such option is exercisable on the Purchase
Date. The purchase price per share shall be as specified in Section 8 of
this Plan. Any amount remaining in a Participant’s account on a Purchase
Date which is less than the amount necessary to purchase a full share of the
Company’s Common Stock shall be carried forward, without interest, into
the next Purchase Period or Offering Period, as the case may be. In the event
that this Plan has been oversubscribed, all funds not used to purchase shares
on the Purchase Date shall be returned to the Participant, without interest. No
Common Stock shall be purchased on a Purchase Date on behalf of any employee
whose participation in this Plan has terminated prior to such Purchase Date.


(f) As promptly
as practicable after the Purchase Date, the Company shall issue shares for the
Participant’s benefit representing the shares purchased upon exercise of
his or her option.


(g) During a
Participant’s lifetime, his or her option to purchase shares hereunder is
exercisable only by him or her. The Participant will have no interest or voting
right in shares covered by his or her option until such option has been
exercised.


10. Limitations on Shares to be Purchased.


(a) No
Participant shall be entitled to purchase stock under any Offering Period at a
rate which, when aggregated with such Participant’s rights to purchase
stock, that are also outstanding in the same calendar year(s) (whether under
other Offering Periods or other employee stock purchase plans of the Corporate
Group), exceeds $25,000 in fair market value, determined as of the Offering
Date, (or such other limit as may be imposed by the Code) for each calendar
year in which such Offering Period is in effect (hereinafter the “Maximum
Share Amount”). The Company shall automatically suspend the payroll
deductions of any Participant as necessary to enforce such limit provided that
when the Company automatically resumes such payroll deductions, the Company
must apply the rate in effect immediately prior to such suspension. In addition
to the foregoing monetary limit, the Committee may, in its sole discretion, set
a maximum number of shares which may be purchased by all Participants on an
aggregate basis during any Offering Period (hereinafter, the “Maximum
Offering Period Share Amount”), which shall then be the Maximum Offering
Period Share Amount for subsequent Offering Periods. If a new Maximum Offering
Period Share Amount is set, then all Participants must be notified of such
Maximum Offering Period Share Amount prior to the commencement of the next
Offering Period for which it is to be effective. The Maximum Offering Period
Share Amount shall continue to apply with respect to all succeeding Offering
Periods unless revised by the Committee as set forth above. If the number of
Shares to be purchased on a Purchase Date by all Participants exceeds the
number of shares that comprise the Maximum Offering Period Share Amount, then
the number of shares to be purchased shall be allocated on a pro-rata basis in
as uniform a manner as shall be reasonably practicable and as the Committee
shall determine to be equitable. In such event, the Company shall give written
notice of such allocation to affected Participants.


(b) The Committee
may, in its sole discretion, set a lower maximum number of shares which may be
purchased by any Participant during any Offering Period than that determined
under Section 10(a) above, which shall then be the Maximum Share Amount for
subsequent Offering Periods. If a new Maximum Share Amount is set, then all
Participants must be notified of such Maximum Share Amount prior to the
commencement of the next Offering Period for which it is to be effective. The
Maximum Share Amount shall continue to apply with respect to all succeeding
Offering Periods unless revised by the Committee as set forth above.





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(c) If the number
of shares to be purchased on a Purchase Date by all Participants exceeds the
number of shares then available for issuance under this Plan, then the Company
will make a pro rata allocation of the remaining shares in as uniform a manner
as shall be reasonably practicable and as the Committee shall determine to be
equitable. In such event, the Company shall give written notice of such
reduction of the number of shares to be purchased under a Participant’s
option to each Participant affected.


(d) Any payroll
deductions accumulated in a Participant’s account which are not used to
purchase stock due to the limitations in this Section 10, and not covered
by Section 9(e), shall be returned to the Participant as soon as
practicable after the end of the applicable Purchase Period, without interest.


11. Withdrawal.


(a) Each
Participant may withdraw from an Offering Period under this Plan by signing and
delivering to the Company a written notice to that effect on a form provided
for such purpose by the Company. Such withdrawal may be elected at any time
prior to the end of an Offering Period, or such other time period as specified
by the Committee.


(b) Upon
withdrawal from this Plan, the accumulated payroll deductions shall be returned
to the withdrawn Participant, without interest, and his or her interest in this
Plan shall terminate. In the event a Participant voluntarily elects to withdraw
from this Plan, he or she may not resume his or her participation in this Plan
during the same Offering Period, but he or she may participate in any Offering
Period under this Plan which commences on a date subsequent to such withdrawal
by filing a new authorization for payroll deductions in the same manner as set
forth in Section 6 above for initial participation in this Plan.


12. Termination of Employment. Termination of a
Participant’s employment for any reason, including retirement, death,
disability, or the failure of a Participant to remain an eligible employee of
the Company or of a Participating Corporation, immediately terminates his or
her participation in this Plan. In such event, accumulated payroll deductions
credited to the Participant’s account will be returned to him or her or,
in the case of his or her death, to his or her legal representative, without
interest. For purposes of this Section 12, an employee will not be deemed
to have terminated employment or failed to remain in the continuous employ of
the Company or of a Participating Corporation in the case of sick leave,
military leave, or any other leave of absence approved by the Company;
provided that such leave is for a period of not more than ninety
(90) days or reemployment upon the expiration of such leave is guaranteed
by contract or statute.


13. Return of
Payroll Deductions. In the event a Participant’s interest in this
Plan is terminated by withdrawal, termination of employment or otherwise, or in
the event this Plan is terminated by the Board, the Company shall deliver to
the Participant all accumulated payroll deductions credited to such
Participant’s account. No interest shall accrue on the payroll deductions
of a Participant in this Plan.


14. Capital
Changes. In the event that any dividend or other distribution (whether in
the form of cash, Common Stock, other securities, or other property),
recapitalization, stock split, reverse stock split, reorganization, merger,
consolidation, split-up, spin-off, combination, repurchase, or exchange of
Common Stock or other securities of the Company, or other change in the
corporate structure of the Company affecting the Common Stock such that an
adjustment is determined by the Committee (in its sole discretion) to be
appropriate in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan, then the
Committee shall, in such manner as it may deem equitable, adjust the number and
class of Common Stock which may be delivered under the Plan, the purchase price
per share and the number of shares of Common Stock covered by each option under
the Plan which has not yet been exercised, and the numerical limits of
Sections 1 and 10 shall be proportionately adjusted.





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15. Nonassignability. Neither payroll deductions credited to a Participant’s account nor any rights with regard to the
exercise of an option or to receive shares under this Plan may be assigned,
transferred, pledged or otherwise disposed of in any way (other than by will,
the laws of descent and distribution or as provided in Section 22 below)
by the Participant. Any such attempt at assignment, transfer, pledge or other
disposition shall be void and without effect.


16. Reports. Individual accounts will be maintained for each Participant in this Plan. Each Participant shall receive promptly
after the end of each Purchase Period a report of his or her account setting
forth the total payroll deductions accumulated, the number of shares purchased,
the per share price thereof and the remaining cash balance, if any, carried
forward to the next Purchase Period or Offering Period, as the case may be.


17. Notice of
Disposition. Each Participant shall notify the Company in writing if the
Participant disposes of any of the shares purchased in any Offering Period
pursuant to this Plan if such disposition occurs within two (2) years from the
Offering Date or within one (1) year from the Purchase Date on which such
shares were purchased (the “Notice Period”). The
Company may, at any time during the Notice Period, place a legend or legends on
any certificate representing shares acquired pursuant to this Plan requesting
the Company’s transfer agent to notify the Company of any transfer of the
shares. The obligation of the Participant to provide such notice shall continue
notwithstanding the placement of any such legend on the certificates.


18. No Rights
to Continued Employment. Neither this Plan nor the grant of any option
hereunder shall confer any right on any employee to remain in the employ of the
Company or any Participating Corporation, or restrict the right of the Company
or any Participating Corporation to terminate such employee’s employment.


19. Equal
Rights And Privileges. All eligible employees shall have equal rights and
privileges with respect to this Plan so that this Plan qualifies as an
“employee stock purchase plan” within the meaning of
Section 423 or any successor provision of the Code and the related
regulations. Any provision of this Plan which is inconsistent with
Section 423 or any successor provision of the Code shall, without further
act or amendment by the Company, the Committee or the Board, be reformed to
comply with the requirements of Section 423. This Section 19 shall
take precedence over all other provisions in this Plan.


20. Notices. All notices or other communications by a Participant to the Company under or in connection with this Plan shall be
deemed to have been duly given when received in the form specified by the
Company at the location, or by the person, designated by the Company for the
receipt thereof.


21. Term;
Stockholder Approval. This Plan will become effective on the Effective
Date. This Plan shall be approved by the stockholders of the Company, in any
manner permitted by applicable corporate law, within twelve (12) months before
or after the date this Plan is adopted by the Board. No purchase of shares that
are subject to such stockholder approval before becoming available under this
Plan shall occur prior to stockholder approval of such shares and the Board or
Committee may delay any Purchase Date and postpone the commencement of any
Offering Period subsequent to such Purchase Date as deemed necessary or
desirable to obtain such approval (provided that if a Purchase Date would occur
more than twenty-four (24) months after commencement of the Offering
Period to which it relates, then such Purchase Date shall not occur and instead
such Offering Period shall terminate without the purchase of such shares and
Participants in such Offering Period shall be refunded their contributions
without interest). This Plan shall continue until the earlier to occur of
(a) termination of this Plan by the Board (which termination may be
effected by the Board at any time pursuant to Section 25 below),
(b) issuance of all of the shares of Common Stock reserved for issuance
under this Plan, or (c) the tenth anniversary of the first Purchase Date
under the Plan.





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22. Designation of Beneficiary.


(a) A Participant
may file a written designation of a beneficiary who is to receive any shares
and cash, if any, from the Participant’s account under this Plan in the
event of such Participant’s death subsequent to the end of a Purchase
Period but prior to delivery to him of such shares and cash. In addition, a
Participant may file a written designation of a beneficiary who is to receive
any cash from the Participant’s account under this Plan in the event of
such Participant’s death prior to a Purchase Date.


(b) Such
designation of beneficiary may be changed by the Participant at any time by
written notice. In the event of the death of a Participant and in the absence
of a beneficiary validly designated under this Plan who is living at the time
of such Participant’s death, the Company shall deliver such shares or
cash to the executor or administrator of the estate of the Participant, or if
no such executor or administrator has been appointed (to the knowledge of the
Company), the Company, in its discretion, may deliver such shares or cash to
the spouse or to any one or more dependents or relatives of the Participant, or
if no spouse, dependent or relative is known to the Company, then to such other
person as the Company may designate.


23. Conditions
Upon Issuance of Shares; Limitation on Sale of Shares. Shares shall not be
issued with respect to an option unless the exercise of such option and the
issuance and delivery of such shares pursuant thereto shall comply with all
applicable provisions of law, domestic or foreign, including, without
limitation, the Securities Act, the Securities Exchange Act of 1934, as
amended, the rules and regulations promulgated thereunder, and the requirements
of any stock exchange or automated quotation system upon which the shares may
then be listed, and shall be further subject to the approval of counsel for the
Company with respect to such compliance.


24. Applicable
Law. The Plan shall be governed by the substantive laws (excluding the
conflict of laws rules) of the State of Delaware.


25. Amendment
or Termination. The Committee, in its sole discretion, may amend, suspend,
or terminate the Plan, or any part thereof, at any time and for any reason. If
the Plan is terminated, the Committee, in its discretion, may elect to
terminate all outstanding Offering Periods either immediately or upon
completion of the purchase of shares of Common Stock on the next Purchase Date
(which may be sooner than originally scheduled, if determined by the Committee
in its discretion), or may elect to permit Offering Periods to expire in
accordance with their terms (and subject to any adjustment pursuant to
Section 14). If an Offering Period is terminated prior to its
previously-scheduled expiration, all amounts then credited to
Participants’ accounts for such Offering Period, which have not been used
to purchase shares of the Company’s Common Stock, shall be returned to
those Participants (without interest thereon, except as otherwise required
under local laws) as soon as administratively practicable. Further, the
Committee will be entitled to change the Offering Periods, limit the frequency
and/or number of changes in the amount withheld during an Offering Period,
establish the exchange ratio applicable to amounts withheld in a currency other
than U.S. dollars, permit payroll withholding in excess of the amount
designated by a Participant in order to adjust for delays or mistakes in the
administration of the Plan, establish reasonable waiting and adjustment periods
and/or accounting and crediting procedures to ensure that amounts applied
toward the purchase of the Company’s Common Stock for each Participant
properly correspond with amounts withheld from the Participant’s base
salary or regular hourly wages, and establish such other limitations or
procedures as the Committee determines in its sole discretion advisable which
are consistent with the Plan. Such actions will not require stockholder
approval or the consent of any Participants. However, no amendment shall be
made without approval of the stockholders of the Company (obtained in
accordance with Section 21 above) within twelve (12) months of the
adoption of such amendment (or earlier if required by Section 21) if such
amendment would: (a) increase the number of shares that may be issued
under this Plan; or (b) change the designation of the employees (or class
of employees) eligible for participation in this Plan.





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26. Corporate Transactions.


(a) In the event
of a Corporate Transaction (as defined below), each outstanding right to
purchase Company Common Stock will be assumed or an equivalent option
substituted by the successor corporation or a parent or a subsidiary of the
successor corporation. In the event that the successor corporation refuses to
assume or substitute for the purchase right, the Offering Period with respect
to which such purchase right relates will be shortened by setting a new
Purchase Date (the “New Purchase Date” and will end
on the New Purchase Date. The New Purchase Date shall occur on or prior to the
consummation of the Corporate Transaction.


(b) “Corporate Transaction” 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 or indirectly, of securities of
the Company representing fifty percent (50%) or more of the total voting
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 of the Company’s assets; or (iii) 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 Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting securities
of the surviving entity or its parent) at least fifty percent (50%) of the
total voting power represented by the voting securities of the Company or such
surviving entity or its parent outstanding immediately after such merger or
consolidation.





9