EXHIBIT 10.39




THIRD
AMENDED AND RESTATED


DEALERTRACK
HOLDINGS, INC.


2005
INCENTIVE AWARD PLAN




ARTICLE
1




PURPOSE




The
purpose of this Third Amended and Restated DealerTrack Holdings, Inc. 2005
Incentive Award Plan (the “ Plan “) is to promote
the success and enhance the value of DealerTrack Holdings, Inc. (the “ Company “) by linking
the personal interests of the members of the Board, Employees, and Consultants
to those of Company stockholders and by providing such individuals with an
incentive for outstanding performance to generate superior returns to Company
stockholders. The Plan is further intended to provide flexibility to the Company
in its ability to motivate, attract, and retain the services of members of the
Board, Employees, and Consultants upon whose judgment, interest, and special
effort the successful conduct of the Company’s operation is largely
dependent.




ARTICLE
2




DEFINITIONS
AND CONSTRUCTION




Wherever
the following terms are used in the Plan they shall have the meanings specified
below, unless the context clearly indicates otherwise. The singular pronoun
shall include the plural where the context so indicates.




2.1 “ Award
” means an Option, a
Restricted Stock award, a Stock Appreciation Right, a Performance Share award, a
Performance Stock Unit award, a Stock Payment award, a Deferred Stock award, a
Restricted Stock Unit award, a Performance Bonus Award, or a Performance-Based
Award granted to a Participant pursuant to the Plan.




2.2 “ Award
Agreement ”
means any written agreement, contract, or other instrument or document
evidencing an Award, including through electronic medium.




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




2.4 “ Cause
” shall, unless
otherwise specifically provided in any applicable Award Agreement, mean with
respect to any Participant: (a) the Participant’s commission of an act of
fraud or embezzlement upon the Company or any of its affiliates; (b) the
Participant’s commission of any willful act intended to injure the reputation,
business, or any business relationship of the Company or any of its affiliates;
(c) the Participant is found by a court of competent jurisdiction to have
committed a felony; (d) the refusal or failure of the Participant to
perform the Participant’s duties with the Company or any of its affiliates, as
applicable, in a competent and professional manner that is not cured by the
Participant within ten (10) business days after a written demand therefor
is delivered to the Participant by the Company or applicable affiliate which
specifically identifies the manner in which the Company or applicable affiliate
believes that the Participant has not substantially performed the Participant’s
duties; provided, that if the Company or applicable affiliate, in good faith,
determines that the refusal or failure by the participant is egregious in nature
or is not susceptible of cure, then no such cure period shall be required; or
(e) the refusal or failure of the Participant to comply with any of his
material obligations under any Award Agreement or any applicable employment
agreement between the Company, or an affiliate, and the Participant that is not
cured by the Participant within ten (10) business days after a written
demand therefor is delivered to the Participant by the Company or the applicable
affiliate which specifically identifies the manner in which the Company or the
applicable affiliate believes the Participant has materially breached the Award
Agreement or employment agreement; provided, that if the Company or the
applicable affiliate, in good faith, determines that the refusal or failure by
the Participant is egregious in nature or is not susceptible of cure, then no
such cure period shall be required.







2.5 “ Change
in Control ”
means and includes each of the following:




(a) A
transaction or series of transactions (other than an offering of Stock to the
general public through a registration statement filed with the Securities and
Exchange Commission) whereby any “person” or related “group” of “persons” (as
such terms are used in Sections 13(d) and 14(d)(2) of the Exchange Act) (other
than the Company, any of its subsidiaries, an employee benefit plan maintained
by the Company or any of its subsidiaries or a “person” that, prior to such
transaction, directly or indirectly controls, is controlled by, or is under
common control with, the Company) directly or indirectly acquires beneficial
ownership (within the meaning of Rule 13d-3 under the Exchange Act) of
securities of the Company possessing more than 50% of the total combined voting
power of the Company’s securities outstanding immediately after such
acquisition; or




(b) During
any period of two consecutive years, individuals who, at the beginning of such
period, constitute the Board together with any new director(s) (other than a
director designated by a person who shall have entered into an agreement with
the Company to effect a transaction described in Section 2.5(a) or
Section 2.5(c)) whose election by the Board or nomination for election by
the Company’s stockholders was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the beginning of the
two-year period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof; or




(c) The
consummation by the Company (whether directly involving the Company or
indirectly involving the Company through one or more intermediaries) of
(x) a merger, consolidation, reorganization, or business combination or
(y) a sale or other disposition of all or substantially all of the
Company’s assets in any single transaction or series of related transactions or
(z) the acquisition of assets or stock of another entity, in each case
other than a transaction:




(i) Which
results in the Company’s voting securities outstanding immediately before the
transaction continuing to represent (either by remaining outstanding or by being
converted into voting securities of the Company or the person that, as a result
of the transaction, controls, directly or indirectly, the Company or owns,
directly or indirectly, all or substantially all of the Company’s assets or
otherwise succeeds to the business of the Company (the Company or such person,
the “ Successor
Entity “)) directly or indirectly, at least a majority of the combined
voting power of the Successor Entity’s outstanding voting securities immediately
after the transaction, and




(ii) After
which no person or group beneficially owns voting securities representing 50% or
more of the combined voting power of the Successor Entity; provided, however, that no
person or group shall be treated for purposes of this Section 2.5(c)(ii) as
beneficially owning 50% or more of combined voting power of the Successor Entity
solely as a result of the voting power held in the Company prior to the
consummation of the transaction; or







(d) The
Company’s stockholders approve a liquidation or dissolution of the
Company.




The
Committee shall have full and final authority, which shall be exercised in its
discretion, to determine conclusively whether a Change in Control of the Company
has occurred pursuant to the above definition, and the date of the occurrence of
such Change in Control and any incidental matters relating thereto.




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




2.7 “ Committee
” means the committee
of the Board described in Article 12.




2.8 “ Consultant
” means any consultant
or adviser if: (a) the consultant or adviser renders bona fide services to
the Company; (b) the services rendered by the consultant or adviser are not
in connection with the offer or sale of securities in a capital-raising
transaction and do not directly or indirectly promote or maintain a market for
the Company’s securities; and (c) the consultant or adviser is a natural
person who has contracted directly with the Company to render such
services.




2.9 “ Covered
Employee ” means
an Employee who is, or could be, a “covered employee” within the meaning of
Section 162(m) of the Code.




2.10
“ Deferred
Stock ” means a
right to receive a specified number of shares of Stock during specified time
periods pursuant to Section 8.4.




2.11
“ Disability
” means that the
Participant qualifies to receive long-term disability payments under the
Company’s long-term disability insurance program, as it may be amended from time
to time.




2.12
“ Effective
Date ” shall
have the meaning set forth in Section 13.1.




2.13
“ Eligible
Individual ”
means any person who is an Employee, a Consultant or a member of the Board, as
determined by the Committee.




2.14
“ Employee
” means any officer or
other employee (as defined in accordance with Section 3401(c) of the Code) of
the Company or any Subsidiary.




2.15
“ Exchange
Act ” means the
Securities Exchange Act of 1934, as amended.




2.16
“ Fair
Market Value ”
means, as of any given date, (a) if Stock is traded on an exchange, the
closing price of a share of Stock as reported in the Wall Street Journal for such
date, or if there is no closing price for the Stock on the date in question,
then the Fair Market Value shall be the first trading date immediately prior to
such date during which a sale occurred; or (b) if Stock is not publicly
traded, the fair market value established by the Committee acting in good
faith.




2.17
“ Incentive
Stock Option ”
means an Option that is intended to meet the requirements of Section 422 of
the Code or any successor provision thereto.




2.18
“ Independent
Director ” means
a member of the Board who is not an Employee of the Company.




2.19
“ Non-Employee
Director ” means
a member of the Board who qualifies as a “Non-Employee Director” as defined in
Rule 16b-3(b)(3) under the Exchange Act, or any successor definition
adopted by the Board.







2.20
“ Non-Qualified
Stock Option ”
means an Option that is not intended to be an Incentive Stock
Option.




2.21
“ Option
” means a right granted
to a Participant pursuant to Article 5 of the Plan to purchase a specified
number of shares of Stock at a specified price during specified time periods. An
Option may be either an Incentive Stock Option or a Non-Qualified Stock
Option.




2.22
“ Participant
” means any Eligible
Individual who, as a member of the Board, Consultant or Employee, has been
granted an Award pursuant to the Plan.




2.23
“ Performance-Based
Award ” means an
Award granted to selected Covered Employees pursuant to Article 9, but
which is subject to the terms and conditions set forth in Article 9. All
Performance-Based Awards are intended to qualify as Qualified Performance-Based
Compensation.




2.24
“ Performance
Bonus Award ”
has the meaning set forth in Section 8.6.




2.25
“ Performance
Criteria ” means
the criteria that the Committee selects for purposes of establishing the
Performance Goal or Performance Goals for a Participant for a Performance
Period. The Performance Criteria (which shall be applicable to the
organizational level specified by the Committee, including, but not limited, to
the Company or a unit, division, group, subsidiary or plan of the Company) that
will be used to establish Performance Goals are limited to the following:
earnings before interest, taxes, depreciation and amortization, net income
(loss) (either before or after interest, taxes, depreciation and/or
amortization), economic value-added, sales or revenue, acquisitions or strategic
transactions, operating income (loss), cash flow (including, but not limited to,
operating cash flow and free cash flow, or cash net income), cash net income,
return on capital, return on assets, return on stockholders’ equity, stockholder
returns, return on sales, gross or net profit margin, productivity, expense,
margins, operating efficiency, customer satisfaction, working capital, earnings
(loss) per share, price per share of Stock, market share, number of
customers and market capitalization, any of which may be measured either in
absolute terms or as compared to any incremental increase or as compared to
results of a peer group. The Committee shalldefine in an objective fashion the
manner of calculating the Performance Criteria it selects to use for such
Performance Period for such Participant.




2.26
“ Performance
Goals ” means,
for a Performance Period, the goals established in writing by the Committee for
the Performance Period based upon the Performance Criteria. Depending on the
Performance Criteria used to establish such Performance Goals, the Performance
Goals may be expressed in terms of overall Company performance or the
performance of a division, business unit, or an individual. The Committee, in
its discretion, may adjust or modify the calculation of Performance Goals for
such Performance Period in order to prevent the dilution or enlargement of the
rights of Participants (a) in the event of, or in anticipation of, any
unusual or extraordinary corporate item, transaction, event, or development, or
(b) in recognition of, or in anticipation of, any other unusual or
nonrecurring events affecting the Company, or the financial statements of the
Company, or in response to, or in anticipation of, changes in applicable laws,
regulations, accounting principles, or business conditions.




2.27
“ Performance
Period ” means
the one or more periods of time, which may be of varying and overlapping
durations but may not be shorter than one year in length, as the Committee may
select, over which the attainment of one or more Performance Goals will be
measured for the purpose of determining a Participant’s right to, and the
payment of, a Performance-Based Award.







2.28
“ Performance
Share ” means a
right granted to a Participant pursuant to Article 8, to receive Stock, the
payment of which is contingent upon achieving certain Performance Goals or other
performance-based targets established by the Committee.




2.29
“ Performance
Stock Unit ”
means a right granted to a Participant pursuant to Section 8.2, to receive
Stock, the payment of which is contingent upon achieving certain Performance
Goals or other performance-based targets established by the
Committee.




2.30
“ Prior
Plan ” means the
DealerTrack Holdings, Inc. 2001 Stock Option Plan, effective as of
August 10, 2001, as such plan may be amended from time to
time.




2.31
“ Plan
” means this Amended
and Restated DealerTrack Holdings, Inc. 2005 Incentive Award Plan, as it may be
further amended from time to time.




2.32
“ Public
Trading Date ”
means the first date upon which Stock is listed (or approved for listing) upon
notice of issuance on any securities exchange or designated (or approved for
designation) upon notice of issuance as a national market security on an
interdealer quotation system.




2.33
“ Qualified
Performance-Based Compensation ” means any compensation that
is intended to qualify as “qualified performance-based compensation” as
described in Section 162(m)(4)(C) of the Code.




2.34
“ Restricted
Stock ” means
Stock awarded to a Participant pursuant to Article 6 that is subject to
certain restrictions and may be subject to risk of forfeiture.




2.35
“ Restricted
Stock Unit ”
means an Award granted pursuant to Section 8.5.




2.36
“ Securities
Act ” shall mean
the Securities Act of 1933, as amended.




2.37
“ Stock
” means the common
stock of the Company, par value $0.01 per share, and such other securities of
the Company that may be substituted for Stock pursuant to
Article 11.




2.38
“ Stock
Appreciation Right ” or “ SAR
” means a right granted
pursuant to Article 7 to receive a payment equal to the excess of the Fair
Market Value of a specified number of shares of Stock on the date the SAR is
exercised over the Fair Market Value on the date the SAR was granted as set
forth in the applicable Award Agreement.




2.39
“ Stock
Payment ” means
(a) a payment in the form of shares of Stock, or (b) an option or
other right to purchase shares of Stock, as part of any bonus, deferred
compensation or other arrangement, made in lieu of all or any portion of the
compensation, granted pursuant to Section 8.3.




2.40
“ Subsidiary
” means any “subsidiary
corporation” as defined in Section 424(f) of the Code and any applicable
regulations promulgated thereunder or any other entity of which a majority of
the outstanding voting stock or voting power is beneficially owned directly or
indirectly by the Company.




ARTICLE
3




SHARES
SUBJECT TO THE PLAN




3.1 Number
of Shares .




(a) Subject
to Article 11 and Section 3.1(b), the aggregate number of shares of
Stock which may be issued or transferred pursuant to Awards under the Plan is
increased from 6,033,853 to 10,889,700; however, no more than
4,000,000 shares of Stock may be delivered upon the exercise of Incentive Stock
Options.







(b) To
the extent that an Award terminates, expires, or lapses for any reason, any
shares of Stock subject to the Award shall again be available for the grant of
an Award pursuant to the Plan. Any shares of Stock tendered or withheld to
satisfy the grant or exercise price or tax withholding obligation pursuant to
any Award shall not be available for the grant of an Award pursuant to the Plan.
In addition, upon the exercise of any SAR for shares of Stock, the gross number
of shares exercised shall be deducted from the total number of shares of Stock
available for future issuance under the Plan. To the extent permitted by
applicable law or any exchange rule, shares of Stock issued in assumption of, or
in substitution for, any outstanding awards of any entity acquired in any form
of combination by the Company or any Subsidiary shall not be counted against
shares of Stock available for grant pursuant to this Plan. Notwithstanding the
provisions of this Section 3.1(b), no shares of Stock may again be
optioned, granted or awarded if such action would cause an Incentive Stock
Option to fail to qualify as an incentive stock option under Section 422 of
the Code.




3.2 Stock
Distributed .
Any Stock distributed pursuant to an Award may consist, in whole or in part, of
authorized and unissued Stock, treasury Stock or Stock purchased on the open
market.




3.3 Limitation
on Number of Shares Subject to Awards . Notwithstanding any
provision in the Plan to the contrary, and subject to Article 11, the
maximum number of shares of Stock with respect to one or more Awards that may be
granted to any one Participant during any fiscal year of the Company shall be
750,000. The maximum amount payable with respect to Performance Bonus Awards to
a Covered Employee during any fiscal year of the Company shall be $3,000,000.
Shares of Stock issued in respect of any “Full-Value Award” granted under this
Plan shall be counted against the share limit set forth in Section 3.1 as
1.53 shares for every one share actually issued in connection with such award.
(For example, if a stock bonus of 100 shares of Stock is granted under this
Plan, 153 shares shall be charged against the share limit in connection with
that award.) For this purpose, a “ Full-Value Award ”
means any award under this Plan that is not a stock option grant or a stock
appreciation right grant.




ARTICLE
4




ELIGIBILITY
AND PARTICIPATION




4.1 Eligibility
. Each Eligible
Individual shall be eligible to be granted one or more Awards pursuant to the
Plan.




4.2 Participation
. Subject to the
provisions of the Plan, the Committee may, from time to time, select from among
all Eligible Individuals, those to whom Awards shall be granted and shall
determine the nature and amount of each Award. No Eligible Individual shall have
any right to be granted an Award pursuant to this Plan.




4.3 Foreign
Participants .
Notwithstanding any provision of the Plan to the contrary, in order to comply
with the laws in other countries in which the Company and its Subsidiaries
operate or have Eligible Individuals, the Committee, in its sole discretion,
shall have the power and authority to: (i) determine which Subsidiaries
shall be covered by the Plan; (ii) determine which Eligible Individuals
outside the United States are eligible to participate in the Plan;
(iii) modify the terms and conditions of any Award granted to Eligible
Individuals outside the United States to comply with applicable foreign laws;
(iv) establish subplans and modify exercise procedures and other terms and
procedures, to the extent such actions may be necessary or advisable (any such
subplans and/or modifications shall be attached to this Plan as appendices);
provided, however ,
that no such subplans and/or modifications shall increase the share limitations
contained in Sections 3.1 and 3.3 of the Plan; and (v) take any
action, before or after an Award is made, that it deems advisable to obtain
approval or comply with any necessary local governmental regulatory exemptions
or approvals. Notwithstanding the foregoing, the Committee may not take any
actions hereunder, and no Awards shall be granted, that would violate the
Exchange Act, the Code, any securities law or governing statute or any other
applicable law.







ARTICLE
5




STOCK
OPTIONS




5.1 General
. The Committee is
authorized to grant Options to Participants on the following terms and
conditions:




(a) Exercise
Price . The
exercise price per share of Stock subject to an Option shall be determined by
the Committee and set forth in the Award Agreement; provided that, subject to
Section 5.2(d), the exercise price for any Option shall not be less than
100% of the Fair Market Value of a share of Stock on the date of
grant.




(b) Time and
Conditions of Exercise . The Committee shall
determine the time or times at which an Option may be exercised in whole or in
part; provided that the
term of any Option granted under the Plan shall not exceed seven years. The
Committee shall also determine the performance or other conditions, if any, that
must be satisfied before all or part of an Option may be exercised.




(c) Payment
. The Committee shall
determine the methods by which the exercise price of an Option may be paid, the
form of payment, including, without limitation: (i) cash, (ii) except
with respect to Incentive Stock Options, shares of Stock issuable to the Option
holder upon exercise of the Option, with a Fair Market Value on the date of the
Option exercise equal to the aggregate Option exercise price of the shares with
respect to which such Option or portion thereof is thereby exercised,
(iii) shares of Stock held for such period of time as may be required by
the Committee in order to avoid adverse accounting consequences and having a
Fair Market Value on the date of delivery equal to the aggregate exercise price
of the Option or exercised portion thereof, or (iv) through the delivery of
a notice that the Participant has placed a market sell order with a broker with
respect to shares of Stock then issuable upon exercise of the Option, and that
the broker has been directed to pay a sufficient portion of the net proceeds of
the sale to the Company in satisfaction of the Option exercise price; provided that payment of such
proceeds is then made to the Company upon settlement of such sale. The Committee
shall also determine the methods by which shares of Stock shall be delivered or
deemed to be delivered to Participants. Notwithstanding any other provision of
the Plan to the contrary, no Participant who is a member of the Board or an
“executive officer” of the Company within the meaning of Section 13(k) of the
Exchange Act shall be permitted to pay the exercise price of an Option in any
method which would violate Section 13(k) of the Exchange Act.




(d) Evidence
of Grant . All
Options shall be evidenced by an Award Agreement between the Company and the
Participant. The Award Agreement shall include such additional provisions as may
be specified by the Committee.




5.2 Incentive
Stock Options .
Incentive Stock Options shall be granted only to Employees and the terms of any
Incentive Stock Options granted pursuant to the Plan, in addition to the
requirements of Section 5.1, must comply with the provisions of this
Section 5.2.







(a) Expiration
. Subject to
Section 5.2(c), an Incentive Stock Option shall expire and may not be
exercised to any extent by anyone after the first to occur of the following
events:




(i) Seven
years from the date it is granted, unless an earlier time is set in the Award
Agreement;




(ii) Three
months after the Participant’s termination of employment as an Employee;
and




(iii) One
year after the date of the Participant’s termination of employment or service on
account of Disability or death. Upon the Participant’s Disability or death, any
Incentive Stock Options exercisable at the Participant’s Disability or death may
be exercised by the Participant’s legal representative or representatives, by
the person or persons entitled to do so pursuant to the Participant’s last will
and testament, or, if the Participant fails to make testamentary disposition of
such Incentive Stock Option or dies intestate, by the person or persons entitled
to receive the Incentive Stock Option pursuant to the applicable laws of descent
and distribution.




(b)
Individual
Dollar Limitation . The aggregate Fair Market
Value (determined as of the time the Option is granted) of all shares of Stock
with respect to which Incentive Stock Options are first exercisable by a
Participant in any calendar year may not exceed $100,000 or such other
limitation as imposed by Section 422(d) of the Code, or any successor provision.
To the extent that Incentive Stock Options are first exercisable by a
Participant in excess of such limitation, the excess shall be considered
Non-Qualified Stock Options.




(c) Ten
Percent Owners .
An Incentive Stock Option shall be granted to any individual who, at the date of
grant, owns stock possessing more than ten percent of the total combined voting
power of all classes of Stock of the Company only if such Option is granted at a
price that is not less than 110% of Fair Market Value on the date of grant and
the Option is exercisable for no more than five years from the date of
grant.




(d) Transfer
Restriction .
The Participant shall give the Company prompt notice of any disposition of
shares of Stock acquired by exercise of an Incentive Stock Option within
(i) two years from the date of grant of such Incentive Stock Option or
(ii) one year after the transfer of such shares of Stock to the
Participant.




(e) Expiration
of Incentive Stock Options . No Award of an Incentive
Stock Option may be made pursuant to this Plan after the tenth anniversary of
the Effective Date.




(f) Right to
Exercise .
During a Participant’s lifetime, an Incentive Stock Option may be exercised only
by the Participant.




(g) Failure
to Meet Requirements . Any Option (or portion
thereof) purported to be an Incentive Stock Option, which, for any reason, fails
to meet the requirements of Section 422 of the Code shall be considered a
Non-Qualified Stock Option.




5.3 Granting
of Options to Independent Directors . The Board may from time to
time, in its sole discretion, and subject to the limitations of the
Plan:




(a) Select
from among the Independent Directors (including Independent Directors who have
previously been granted Options under the Plan) such of them as in its opinion
should be granted Options;







(b) Subject
to Section 3.3, determine the number of shares of Stock that may be
purchased upon exercise of the Options granted to such selected Independent
Directors; and




(c) Subject
to the provisions of this Article 5, determine the terms and conditions of
such Options, consistent with the Plan.




Options
granted to Independent Directors shall be Non-Qualified Stock
Options.




ARTICLE
6




RESTRICTED
STOCK AWARDS




6.1 Grant of
Restricted Stock . The Committee is authorized
to make Awards of Restricted Stock to any Participant selected by the Committee
in such amounts and subject to such terms and conditions as determined by the
Committee. All Awards of Restricted Stock shall be evidenced by an Award
Agreement.




6.2 Issuance
and Restrictions . Restricted Stock shall be
subject to such restrictions on transferability and other restrictions as the
Committee may impose (including, without limitation, limitations on the right to
vote Restricted Stock or the right to receive dividends on the Restricted
Stock). These restrictions may lapse separately or in combination at such times,
pursuant to such circumstances, in such installments, or otherwise (including,
without limitation, pursuant to the satisfaction or time-vesting requirements,
performance vesting requirements, or both), as the Committee determines at the
time of the grant of the Award or thereafter. With regard to Restricted Stock
granted to employees, any time-based vesting shall be over a minimum period of
three years and any performance vesting shall be over a minimum period of one
year.




6.3 Forfeiture
. Except as otherwise
determined by the Committee at the time of the grant of the Award or thereafter,
upon termination of employment or service during the applicable restriction
period, Restricted Stock that is at that time subject to restrictions shall be
forfeited; provided,
however , that, the Committee may (a) provide in any Restricted
Stock Award Agreement that restrictions or forfeiture conditions relating to
Restricted Stock will be waived in whole or in part in the event of terminations
resulting from specified causes, and (b) in other cases waive in whole or
in part restrictions or forfeiture conditions relating to Restricted
Stock.




6.4 Certificates
for Restricted Stock . Restricted Stock granted
pursuant to the Plan may be evidenced in such manner as the Committee shall
determine. If certificates representing shares of Restricted Stock are
registered in the name of the Participant, certificates must bear an appropriate
legend referring to the terms, conditions, and restrictions applicable to such
Restricted Stock, and the Company may, at its discretion, retain physical
possession of the certificate until such time as all applicable restrictions
lapse.




ARTICLE
7




STOCK
APPRECIATION RIGHTS




7.1 Grant of
Stock Appreciation Rights.




(a) A
Stock Appreciation Right may be granted to any Participant selected by the
Committee. A Stock Appreciation Right shall be subject to such terms and
conditions not inconsistent with the Plan as the Committee shall impose and
shall be evidenced by an Award Agreement. In no event shall the term of any
Stock Appreciation Right granted under the Plan exceed seven
years.







(b) A
Stock Appreciation Right shall entitle the Participant (or other person entitled
to exercise the Stock Appreciation Right pursuant to the Plan) to exercise all
or a specified portion of the Stock Appreciation Right (to the extent then
exercisable pursuant to its terms) and to receive from the Company an amount
equal to the product of (i) the excess of (A) the Fair Market Value of
the Stock on the date the Stock Appreciation Right is exercised over
(B) the Fair Market Value of the Stock on the date the Stock Appreciation
Right was granted and (ii) the number of shares of Stock with respect to
which the Stock Appreciation Right is exercised, subject to any limitations the
Committee may impose.




7.2 Payment
and Limitations on Exercise . Payment of the amounts
determined under Sections 7.1(b) above shall be in Stock (based on its Fair
Market Value as of the date the Stock Appreciation Right is exercised) and shall
be made subject to satisfaction of all provisions of Article 5 above
pertaining to Options.




ARTICLE
8




OTHER
TYPES OF AWARDS




8.1 Performance
Share Awards .
Any Participant selected by the Committee may be granted one or more Performance
Share awards which shall be denominated in a number of shares of Stock and which
may be linked to any one or more of the Performance Criteria or other specific
performance criteria determined appropriate by the Committee, in each case on a
specified date or dates or over any period or periods determined by the
Committee. In making such determinations, the Committee shall consider (among
such other factors as it deems relevant in light of the specific type of award)
the contributions, responsibilities and other compensation of the particular
Participant.




8.2 Performance
Stock Units .
Any Participant selected by the Committee may be granted one or more Performance
Stock Unit awards which shall be denominated in unit equivalent of shares of
Stock and/or units of value including dollar value of shares of Stock and which
may be linked to any one or more of the Performance Criteria or other specific
performance criteria determined appropriate by the Committee, in each case on a
specified date or dates or over any period or periods determined by the
Committee. In making such determinations, the Committee shall consider (among
such other factors as it deems relevant in light of the specific type of award)
the contributions, responsibilities and other compensation of the particular
Participant.




8.3 Stock
Payments . Any
Participant selected by the Committee may receive Stock Payments in the manner
determined from time to time by the Committee. The number of shares shall be
determined by the Committee and may be based upon the Performance Criteria or
other specific performance criteria determined appropriate by the Committee,
determined on the date such Stock Payment is made or on any date
thereafter.




8.4 Deferred
Stock . Any
Participant selected by the Committee may be granted an award of Deferred Stock
in the manner determined from time to time by the Committee. The number of
shares of Deferred Stock shall be determined by the Committee and may be linked
to the Performance Criteria or other specific performance criteria determined to
be appropriate by the Committee, in each case on a specified date or dates or
over any period or periods determined by the Committee. Stock underlying a
Deferred Stock award will not be issued until the Deferred Stock award has
vested, pursuant to a vesting schedule or performance criteria set by the
Committee. Unless otherwise provided by the Committee, a Participant awarded
Deferred Stock shall have no rights as a Company stockholder with respect to
such Deferred Stock until such time as the Deferred Stock Award has vested and
the Stock underlying the Deferred Stock Award has been issued.







8.5 Restricted
Stock Units .
The Committee is authorized to make Awards of Restricted Stock Units to any
Participant selected by the Committee in such amounts and subject to such terms
and conditions as determined by the Committee. At the time of grant, the
Committee shall specify the date or dates on which the Restricted Stock Units
shall become fully vested and nonforfeitable, and may specify such conditions to
vesting as it deems appropriate. At the time of grant, the Committee shall
specify the maturity date applicable to each grant of Restricted Stock Units
which shall be no earlier than the vesting date or dates of the Award and may be
determined at the election of the grantee. On the maturity date, the Company
shall, subject to Section 10.5(b), transfer to the Participant one
unrestricted, fully transferable share of Stock for each Restricted Stock Unit
scheduled to be paid out on such date and not previously forfeited. The
Committee shall specify the purchase price, if any, to be paid by the grantee to
the Company for such shares of Stock.




8.6 Performance
Bonus Awards .
Any Participant selected by the Committee may be granted one or more
Performance-Based Awards in the form of a cash bonus (a “ Performance Bonus
Award “) payable upon the attainment of Performance Goals that are
established by the Committee and relate to one or more of the Performance
Criteria, in each case on a specified date or dates or over any period or
periods determined by the Committee. Any such Performance Bonus Award paid to a
Covered Employee shall be based upon objectively determinable bonus formulas
established in accordance with Article 9.




8.7 Term
. Except as otherwise
provided herein, the term of any Award of Performance Shares, Performance Stock
Units, Stock Payments, Deferred Stock or Restricted Stock Units shall be set by
the Committee in its discretion.




8.8 Exercise
or Purchase Price . The Committee may establish
the exercise or purchase price, if any, of any Award of Performance Shares,
Performance Stock Units, Deferred Stock, Stock Payments or Restricted Stock
Units; provided,
however , that such price shall not be less than the par value of a share
of Stock on the date of grant, unless otherwise permitted by applicable state
law.




8.9 Exercise
upon Termination of Employment or Service . An Award of Performance
Shares, Performance Stock Units, Deferred Stock, Stock Payments and Restricted
Stock Units shall only be exercisable or payable while the Participant is an
Employee, Consultant or a member of the Board, as applicable; provided, however , that the
Committee in its sole and absolute discretion may provide that an Award of
Performance Shares, Performance Stock Units, Stock Payments, Deferred Stock or
Restricted Stock Units may be exercised or paid subsequent to a termination of
employment or service, as applicable, or following a Change in Control of the
Company, or because of the Participant’s retirement, death or disability, or
otherwise; provided,
however , that any such provision with respect to Performance Shares or
Performance Stock Units shall be subject to the requirements of Section 162(m)
of the Code that apply to Qualified Performance-Based Compensation.




8.10
Form of
Payment .
Payments with respect to any Awards granted under this Article 8 shall be
made in cash, in Stock or a combination of both, as determined by the
Committee.




8.11
Award
Agreement . All
Awards under this Article 8 shall be subject to such additional terms and
conditions as determined by the Committee and shall be evidenced by an Award
Agreement.




ARTICLE
9




PERFORMANCE-BASED
AWARDS




9.1 Purpose
. The purpose of this
Article 9 is to provide the Committee the ability to qualify Awards other
than Options and SARs and that are granted pursuant to Articles 6 and 8 as
Qualified Performance-Based Compensation. If the Committee, in its discretion,
decides to grant a Performance-Based Award to a Covered Employee, the provisions
of this Article 9 shall control over any contrary provision contained in
Articles 6 or 8; provided,
however , that the Committee may in its discretion grant Awards to
Covered Employees that are based on Performance Criteria or Performance Goals
but that do not satisfy the requirements of this
Article 9.







9.2 Applicability
. This Article 9
shall apply only to those Covered Employees selected by the Committee to receive
Performance-Based Awards. The designation of a Covered Employee as a Participant
for a Performance Period shall not in any manner entitle the Participant to
receive an Award for the period. Moreover, designation of a Covered Employee as
a Participant for a particular Performance Period shall not require designation
of such Covered Employee as a Participant in any subsequent Performance Period
and designation of one Covered Employee as a Participant shall not require
designation of any other Covered Employees as a Participant in such period or in
any other period.




9.3 Procedures
with Respect to Performance-Based Awards . To the extent necessary to
comply with the Qualified Performance-Based Compensation requirements of
Section 162(m)(4)(C) of the Code, with respect to any Award granted under
Articles 6 and 8 which may be granted to one or more Covered Employees, no later
than ninety (90) days following the commencement of any fiscal year in
question or any other designated fiscal period or period of service (or such
other time as may be required or permitted by Section 162(m) of the Code), the
Committee shall, in writing, (a) designate one or more Covered Employees,
(b) select the Performance Criteria applicable to the Performance Period,
(c) establish the Performance Goals, and amounts of such Awards, as
applicable, which may be earned for such Performance Period, and
(d) specify the relationship between Performance Criteria and the
Performance Goals and the amounts of such Awards, as applicable, to be earned by
each Covered Employee for such Performance Period. Following the completion of
each Performance Period, the Committee shall certify in writing whether the
applicable Performance Goals have been achieved for such Performance Period. In
determining the amount earned by a Covered Employee, the Committee shall have
the right to reduce or eliminate (but not to increase) the amount payable at a
given level of performance to take into account additional factors that the
Committee may deem relevant to the assessment of individual or corporate
performance for the Performance Period.




9.4 Payment
of Performance-Based Awards . Unless otherwise provided
in the applicable Award Agreement, a Participant must be employed by the Company
or a Subsidiary on the day a Performance-Based Award for such Performance Period
is paid to the Participant. Furthermore, a Participant shall be eligible to
receive payment pursuant to a Performance-Based Award for a Performance Period
only if the Performance Goals for such period are achieved. In determining the
amount earned under a Performance-Based Award, the Committee may reduce or
eliminate the amount of the Performance-Based Award earned for the Performance
Period, if in its sole and absolute discretion, such reduction or elimination is
appropriate.




9.5 Additional
Limitations .
Notwithstanding any other provision of the Plan, any Award which is granted to a
Covered Employee and is intended to constitute Qualified Performance-Based
Compensation shall be subject to any additional limitations set forth in Section
162(m) of the Code (including any amendment to Section 162(m) of the Code) or
any regulations or rulings issued thereunder that are requirements for
qualification as qualified performance-based compensation as described in
Section 162(m)(4)(C) of the Code, and the Plan shall be deemed amended to
the extent necessary to conform to such requirements.







ARTICLE
10




PROVISIONS
APPLICABLE TO AWARDS




10.1
Stand-Alone
and Tandem Awards . Awards granted pursuant to
the Plan may, in the discretion of the Committee, be granted either alone, in
addition to, or in tandem with, any other Award granted pursuant to the
Plan.




Awards
granted in addition to or in tandem with other Awards may be granted either at
the same time as or at a different time from the grant of such other
Awards.




10.2
Award
Agreement .
Awards under the Plan shall be evidenced by Award Agreements that set forth the
terms, conditions and limitations for each Award which may include the term of
an Award, the provisions applicable in the event the Participant’s employment or
service terminates, and the Company’s authority to unilaterally or bilaterally
amend, modify, suspend, cancel or rescind an Award.




10.3
Limits
on Transfer . No
right or interest of a Participant in any Award may be pledged, encumbered, or
hypothecated to or in favor of any party other than the Company or a Subsidiary,
or shall be subject to any lien, obligation, or liability of such Participant to
any other party other than the Company or a Subsidiary. Except as otherwise
provided by the Committee, no Award shall be assigned, transferred, or otherwise
disposed of by a Participant other than by will or the laws of descent and
distribution. The Committee by express provision in the Award or an amendment
thereto may permit an Award (other than an Incentive Stock Option) to be
transferred to, exercised by and paid to certain persons or entities related to
the Participant, including but not limited to members of the Participant’s
family, charitable institutions, or trusts or other entities whose beneficiaries
or beneficial owners are members of the Participant’s family and/or charitable
institutions, or to such other persons or entities as may be expressly approved
by the Committee, pursuant to such conditions and procedures as the Committee
may establish. Any permitted transfer shall be subject to the condition that the
Committee receive evidence satisfactory to it that the transfer is being made
for estate and/or tax planning purposes (or to a “blind trust” in connection
with the Participant’s termination of employment or service with the Company or
a Subsidiary to assume a position with a governmental, charitable, educational
or similar non-profit institution) and on a basis consistent with the Company’s
lawful issue of securities.




10.4
Beneficiaries
. Notwithstanding
Section 10.3, a Participant may, in the manner determined by the Committee,
designate a beneficiary to exercise the rights of the Participant and to receive
any distribution with respect to any Award upon the Participant’s death. A
beneficiary, legal guardian, legal representative, or other person claiming any
rights pursuant to the Plan is subject to all terms and conditions of the Plan
and any Award Agreement applicable to the Participant, except to the extent the
Plan and Award Agreement otherwise provide, and to any additional restrictions
deemed necessary or appropriate by the Committee. If the Participant is married
and resides in a community property state, a designation of a person other than
the Participant’s spouse as his or her beneficiary with respect to more than 50%
of the Participant’s interest in the Award shall not be effective without the
prior written consent of the Participant’s spouse. If no beneficiary has been
designated or survives the Participant, payment shall be made to the person
entitled thereto pursuant to the Participant’s will or the laws of descent and
distribution. Subject to the foregoing, a beneficiary designation may be changed
or revoked by a Participant at any time provided the change or revocation is
filed with the Committee.







10.5
Stock
Certificates; Book Entry Procedures .




(a) Notwithstanding
anything herein to the contrary, the Company shall not be required to issue or
deliver any certificates evidencing shares of Stock pursuant to the exercise of
any Award, unless and until the Board has determined, with advice of counsel,
that the issuance and delivery of such certificates is in compliance with all
applicable laws, regulations of governmental authorities and, if applicable, the
requirements of any exchange on which the shares of Stock are listed or traded.
All Stock certificates delivered pursuant to the Plan are subject to any
stop-transfer orders and other restrictions as the Committee deems necessary or
advisable to comply with federal, state, or foreign jurisdiction, securities or
other laws, rules and regulations and the rules of any national securities
exchange or automated quotation system on which the Stock is listed, quoted, or
traded. The Committee may place legends on any Stock certificate to reference
restrictions applicable to the Stock. In addition to the terms and conditions
provided herein, the Board may require that a Participant make such reasonable
covenants, agreements, and representations as the Board, in its discretion,
deems advisable in order to comply with any such laws, regulations, or
requirements. The Committee shall have the right to require any Participant to
comply with any timing or other restrictions with respect to the settlement or
exercise of any Award, including a window-period limitation, as may be imposed
in the discretion of the Committee.




(b) Notwithstanding
any other provision of the Plan, unless otherwise determined by the Committee or
required by any applicable law, rule or regulation, the Company shall not
deliver to any Participant certificates evidencing shares of Stock issued in
connection with any Award and instead such shares of Stock shall be recorded in
the books of the Company (or, as applicable, its transfer agent or stock plan
administrator).




10.6
Paperless
Exercise . In
the event that the Company establishes, for itself or using the services of a
third party, an automated system for the exercise of Awards, such as a system
using an internet website or interactive voice response, then the paperless
exercise of Awards by a Participant may be permitted through the use of such an
automated system.




10.7
Limitations
on Payments to Specified Employees . In the case of any Award
that constitutes deferred compensation within the meaning of Section 409A
of the Code, including any grants of Deferred Stock awards, Restricted Stock
Unit awards, or Performance Stock Unit awards, any payment to a “specified
employee” within the meaning of Section 409A of the Code on account of
separation of service of such specified employee shall be made no earlier than
six months and a day after such specified employee’s separation from service or
the date of such specified employee’s death, if earlier.




ARTICLE
11




CHANGES
IN CAPITAL STRUCTURE




11.1
Adjustments
. In the event of any
stock dividend, stock split, combination or exchange of shares, merger,
consolidation, spin-off, recapitalization or other distribution (other than
normal cash dividends) of Company assets to stockholders, or any other change
affecting the shares of Stock or the share price of the Stock, the Committee
shall make such proportionate adjustments, if any, as the Committee in its
discretion may deem appropriate to reflect such change with respect to
(a) the aggregate number and kind of shares that may be issued under the
Plan (including, but not limited to, adjustments of the limitations in
Sections 3.1 and 3.3); (b) the terms and conditions of any outstanding
Awards (including, without limitation, any applicable performance targets or
criteria with respect thereto); and (c) the grant or exercise price per
share for any outstanding Awards under the Plan. Any adjustment affecting an
Award intended as Qualified Performance-Based Compensation shall be made
consistent with the requirements of Section 162(m) of the Code.




11.2
Change
in Control . In
the event of any transaction or event described in Section 2.5(a),
(c) or (d) or any unusual or nonrecurring transactions or events
affecting the Company, any affiliate of the Company, or the financial statements
of the Company or any affiliate, or of changes in applicable laws, regulations
or accounting principles, the Committee, in its sole and absolute discretion,
and on such terms and conditions as it deems appropriate, either by the terms of
the Award or by action taken prior to the occurrence of such transaction or
event and either automatically or upon the Participant’s request, is hereby
authorized to take any one or more of the following actions whenever the
Committee determines that such action is appropriate in order to prevent
dilution or enlargement of the benefits or potential benefits intended to be
made available under the Plan or with respect to any Award under the Plan, to
facilitate such transactions or events or to give effect to such changes in
laws, regulations or principles:







(i) To
provide for either (A) termination of any such Award in exchange for an
amount of cash, if any, equal to the amount that would have been attained upon
the exercise of such Award or realization of the Participant’s rights (and, for
the avoidance of doubt, if as of the date of the occurrence of the transaction
or event described in this Section 11.2 the Committee determines in good
faith that no amount would have been attained upon the exercise of such Award or
realization of the Participant’s rights, then such Award may be terminated by
the Company without payment) or (B) the replacement of such Award with
other rights or property selected by the Committee in its sole
discretion;




(ii) To
provide that such Award be assumed by the successor or survivor corporation, or
a parent or subsidiary thereof, or shall be substituted for by similar options,
rights or awards covering the stock of the successor or survivor corporation, or
a parent or subsidiary thereof, with appropriate adjustments as to the number
and kind of shares and prices;




(iii) To
make adjustments in the number and type of shares of Common Stock (or other
securities or property) subject to outstanding Awards, and in the number and
kind of outstanding Restricted Stock or Deferred Stock and/or in the terms and
conditions of (including the grant or exercise price), and the criteria included
in, outstanding options, rights and awards and options, rights and awards which
may be granted in the future;




(iv) To
provide that such Award shall be exercisable or payable or fully vested with
respect to all shares covered thereby, notwithstanding anything to the contrary
in the Plan or the applicable Award Agreement; and




(v) To
provide that the Award cannot vest, be exercised or become payable after such
event.




11.3
Acceleration
Upon a Change in Control . Notwithstanding
Section 11.2, and except as may otherwise be provided in any applicable
Award Agreement or other written agreement entered into between the Company and
a Participant, if a Change in Control occurs and a Participant’s Awards are not
converted, assumed, or replaced by a successor entity, then immediately prior to
the Change in Control such Awards shall become fully exercisable and all
forfeiture restrictions on such Awards shall lapse. The Committee may cause any
and all Awards outstanding hereunder to terminate on the date of such Change in
Control, and shall give each Participant the right to exercise such Awards
during a period of time immediately preceding such Change in Control as the
Committee, in its sole and absolute discretion, shall determine (except that in
no case shall more than ten days’ notice of the impending termination be
required and any acceleration of vesting and any exercise of any portion of an
award that is so accelerated shall be made contingent upon the actual occurrence
of the event).




11.4
Outstanding
Awards — Certain Mergers . Subject to any required
action by the stockholders of the Company, in the event that the Company shall
be the surviving corporation in any merger or consolidation (except a merger or
consolidation as a result of which the holders of shares of Stock receive
securities of another corporation), each Award outstanding on the date of such
merger or consolidation shall pertain to and apply to the securities that a
holder of the number of shares of Stock subject to such Award would have
received in such merger or consolidation.







11.5
Outstanding
Awards — Other Changes . In the event of any other
change in the capitalization of the Company or corporate change other than those
specifically referred to in this Article 11, the Committee may, in its
absolute discretion, make such adjustments in the number and kind of shares or
other securities subject to Awards outstanding on the date on which such change
occurs and in the per share grant or exercise price of each Award as the
Committee may consider appropriate to prevent dilution or enlargement of
rights.




11.6
No
Other Rights .
Except as expressly provided in the Plan, no Participant shall have any rights
by reason of any subdivision or consolidation of shares of stock of any class,
the payment of any dividend, any increase or decrease in the number of shares of
stock of any class or any dissolution, liquidation, merger, or consolidation of
the Company or any other corporation. Except as expressly provided in the Plan
or pursuant to action of the Committee under the Plan, no issuance by the
Company of shares of stock of any class, or securities convertible into shares
of stock of any class, shall affect, and no adjustment by reason thereof shall
be made with respect to, the number of shares of Stock subject to an Award or
the grant or exercise price of any Award.




ARTICLE
12




ADMINISTRATION




12.1
Committee
. The Plan shall be
administered by the Compensation Committee of the Board, and for such purposes
the term “Committee” as used in this Plan shall be deemed to refer to the
Compensation Committee. The Committee shall consist solely of two or more
members of the Board each of whom is (a) an “outside director,” within the
meaning of Section 162(m) of the Code, (b) a Non-Employee Director and
(c) an “independent director” under the rules of NASDAQ (or other principal
securities market on which shares of Stock are traded). Appointment of Committee
members shall be effective upon acceptance of appointment. Committee members may
resign at any time by delivering written notice to the Board. Vacancies in the
Committee may only be filled by the Board.




12.2
Action
by the Committee . A majority of the Committee
shall constitute a quorum. The acts of a majority of the members present at any
meeting at which a quorum is present, and acts approved in writing by a majority
of the Committee in lieu of a meeting, shall be deemed the acts of the
Committee. Each member of the Committee is entitled to, in good faith, rely or
act upon any report or other information furnished to that member by any officer
or other employee of the Company or any Subsidiary, the Company’s independent
certified public accountants, or any executive compensation consultant or other
professional retained by the Company to assist in the administration of the
Plan.




12.3
Authority
of Committee .
Subject to any specific designation in the Plan, the Committee has the exclusive
power, authority and discretion to:




(a) Designate
Participants to receive Awards;




(b) Determine
the type or types of Awards to be granted to each Participant;




(c) Determine
the number of Awards to be granted and the number of shares of Stock to which an
Award will relate;




(d) Determine
the terms and conditions of any Award granted pursuant to the Plan, including,
but not limited to, the exercise price, grant price, or purchase price, any
reload provision, any restrictions or limitations on the Award, any schedule for
lapse of forfeiture restrictions or restrictions on the exercisability of an
Award, and accelerations or waivers thereof, any provisions related to
non-competition and recapture of gain on an Award, based in each case on such
considerations as the Committee in its sole discretion determines; provided, however , that the
Committee shall not have the authority to accelerate the vesting or waive the
forfeiture of any Performance-Based Awards;







(e) Determine
whether, to what extent, and pursuant to what circumstances an Award may be
settled in, or the exercise price of an Award may be paid in, cash, Stock, other
Awards, or other property, or an Award may be canceled, forfeited, or
surrendered;




(f) Prescribe
the form of each Award Agreement, which need not be identical for each
Participant;




(g) Decide
all other matters that must be determined in connection with an
Award;




(h) Establish,
adopt, or revise any rules and regulations as it may deem necessary or advisable
to administer the Plan;




(i) Interpret
the terms of, and any matter arising pursuant to, the Plan or any Award
Agreement; and




(j) Make
all other decisions and determinations that may be required pursuant to the Plan
or as the Committee deems necessary or advisable to administer the
Plan.




12.4
Decisions
Binding . The
Committee’s interpretation of the Plan, any Awards granted pursuant to the Plan,
any Award Agreement and all decisions and determinations by the Committee with
respect to the Plan are final, binding, and conclusive on all
parties.




12.5
Delegation
of Authority .
To the extent permitted by applicable law, the Committee may from time to time
delegate to a committee of one or more members of the Board or one or more
officers of the Company the authority to grant or amend Awards to Participants
other than (a) senior executives of the Company who are subject to
Section 16 of the Exchange Act, (b) Covered Employees, or
(c) officers of the Company (or members of the Board) to whom authority to
grant or amend Awards has been delegated hereunder. Any delegation hereunder
shall be subject to the restrictions and limits that the Committee specifies at
the time of such delegation, and the Committee may at any time rescind the
authority so delegated or appoint a new delegatee. At all times, the delegatee
appointed under this Section 12.5 shall serve in such capacity at the
pleasure of the Committee.




ARTICLE
13




EFFECTIVE
AND EXPIRATION DATE




13.1
Effective
Date . The Plan
became effective as of the date the Plan was approved by the Company’s
stockholders (the “ Effective Date “) and
the amended and restated Plan will become effective as of the date the amended
and restated Plan is approved by the Company’s stockholders. The amended and
restated Plan will be deemed to be approved by the stockholders if it receives
the affirmative vote of the holders of a majority of the shares of stock of the
Company present or represented and entitled to vote at a meeting duly held in
accordance with the applicable provisions of the Company’s Bylaws.




13.2
Expiration
Date . The
amended and restated Plan will expire on, and no Award may be granted pursuant
to the Plan after the tenth anniversary of the date the amended and restated
Plan is approved by the Committee. Any Awards that are outstanding on the tenth
anniversary of such date shall remain in force according to the terms of the
Plan and the applicable Award Agreement.







ARTICLE
14




AMENDMENT,
MODIFICATION, AND TERMINATION




14.1
Amendment,
Modification, and Termination . Subject to
Section 15.14, with the approval of the Board, at any time and from time to
time, the Committee may terminate, amend or modify the Plan; provided, however , that
(a) to the extent necessary and desirable to comply with any applicable
law, regulation, or stock exchange rule, the Company shall obtain stockholder
approval of any Plan amendment in such a manner and to such a degree as
required, and (b) stockholder approval is required for any amendment to the
Plan that (i) increases the number of shares available under the Plan
(other than any adjustment as provided by Article 11), (ii) permits
the Committee to grant Options with an exercise price that is below Fair Market
Value on the date of grant, or (iii) permits the Committee to extend the
exercise period for an Option or Stock Appreciation Award beyond seven years
from the date of grant or (iv) results in a material increase in benefits
or a change in eligibility requirements. Notwithstanding any provision in this
Plan to the contrary, absent approval of the stockholders of the Company, no
Option may be amended to reduce the per share exercise price of the shares
subject to such Option below the per share exercise price as of the date the
Option is granted and, except as permitted by Article 11, no Option may be
granted in exchange for, or in connection with, the cancellation or surrender of
an Option having a higher per share exercise price.




14.2
Awards
Previously Granted . Except with respect to
amendments made pursuant to Section 15.14, no termination, amendment, or
modification of the Plan shall adversely affect in any material way any Award
previously granted pursuant to the Plan without the prior written consent of the
Participant.




ARTICLE
15




GENERAL
PROVISIONS




15.1
No
Rights to Awards . No Eligible Individual,
Participant, or other person shall have any claim to be granted any Award
pursuant to the Plan, and neither the Company nor the Committee is obligated to
treat Eligible Individuals, Participants or any other persons
uniformly.




15.2
No
Stockholders Rights . Except as otherwise
provided herein, a Participant shall have none of the rights of a stockholder
with respect to shares of Stock covered by any Award until the Participant
becomes the record owner of such shares of Stock.




15.3
Withholding
. The Company or any
Subsidiary shall have the authority and the right to deduct or withhold, or
require a Participant to remit to the Company, an amount sufficient to satisfy
federal, state, local and foreign taxes (including the Participant’s employment
tax obligations) required by law to be withheld with respect to any taxable
event concerning a Participant arising as a result of this Plan. The Committee
may in its discretion and in satisfaction of the foregoing requirement allow a
Participant to elect to have the Company withhold shares of Stock otherwise
issuable under an Award (or allow the return of shares of Stock) having a Fair
Market Value equal to the sums required to be withheld. Notwithstanding any
other provision of the Plan, the number of shares of Stock which may be withheld
with respect to the issuance, vesting, exercise or payment of any Award (or
which may be repurchased from the Participant of such Award within six months
(or such other period as may be determined by the Committee) after such shares
of Stock were acquired by the Participant from the Company) in order to satisfy
the Participant’s federal, state, local and foreign income and payroll tax
liabilities with respect to the issuance, vesting, exercise or payment of the
Award shall be limited to the number of shares which have a Fair Market Value on
the date of withholding or repurchase equal to the aggregate amount of such
liabilities based on the minimum statutory withholding rates for federal, state,
local and foreign income tax and payroll tax purposes that are applicable to
such supplemental taxable income.







15.4
No
Right to Employment or Services . Nothing in the Plan or any
Award Agreement shall interfere with or limit in any way the right of the
Company or any Subsidiary to terminate any Participant’s employment or services
at any time, nor confer upon any Participant any right to continue in the employ
or service of the Company or any Subsidiary.




15.5
Unfunded
Status of Awards . The Plan is intended to be
an “unfunded” plan for incentive compensation. With respect to any payments not
yet made to a Participant pursuant to an Award, nothing contained in the Plan or
any Award Agreement shall give the Participant any rights that are greater than
those of a general creditor of the Company or any Subsidiary.




15.6
Indemnification
. To the extent
allowable pursuant to applicable law, each member of the Committee or of the
Board shall be indemnified and held harmless by the Company from any loss, cost,
liability, or expense that may be imposed upon or reasonably incurred by such
member in connection with or resulting from any claim, action, suit, or
proceeding to which he or she may be a party or in which he or she may be
involved by reason of any action or failure to act pursuant to the Plan and
against and from any and all amounts paid by him or her in satisfaction of
judgment in such action, suit, or proceeding against him or her; provided he or she gives the
Company an opportunity, at its own expense, to handle and defend the same before
he or she undertakes to handle and defend it on his or her own behalf. The
foregoing right of indemnification shall not be exclusive of any other rights of
indemnification to which such persons may be entitled pursuant to the Company’s
Certificate of Incorporation or Bylaws, as a matter of law, or otherwise, or any
power that the Company may have to indemnify them or hold them
harmless.




15.7
Relationship
to other Benefits . No payment pursuant to the
Plan shall be taken into account in determining any benefits pursuant to any
pension, retirement, savings, profit sharing, group insurance, welfare or other
benefit plan of the Company or any Subsidiary except to the extent otherwise
expressly provided in writing in such other plan or an agreement
thereunder.




15.8
Expenses
. The expenses of
administering the Plan shall be borne by the Company and its
Subsidiaries.




15.9
Titles
and Headings .
The titles and headings of the Sections in the Plan are for convenience of
reference only and, in the event of any conflict, the text of the Plan, rather
than such titles or headings, shall control.




15.10
Fractional
Shares . No
fractional shares of Stock shall be issued and the Committee shall determine, in
its discretion, whether cash shall be given in lieu of fractional shares or
whether such fractional shares shall be eliminated by rounding up or down as
appropriate.




15.11
Limitations
Applicable to Section 16 Persons . Notwithstanding any other
provision of the Plan, the Plan, and any Award granted or awarded to any
Participant who is then subject to Section 16 of the Exchange Act, shall be
subject to any additional limitations set forth in any applicable exemptive rule
under Section 16 of the Exchange Act (including any amendment to
Rule 16b-3 under the Exchange Act) that are requirements for the
application of such exemptive rule. To the extent permitted by applicable law,
the Plan and Awards granted or awarded hereunder shall be deemed amended to the
extent necessary to conform to such applicable exemptive rule.




15.12
Government
and Other Regulations . The obligation of the
Company to make payment of awards in Stock or otherwise shall be subject to all
applicable laws, rules, and regulations, and to such approvals by government
agencies as may be required. The Company shall be under no obligation to
register pursuant to the Securities Act, as amended, any of the shares of Stock
paid pursuant to the Plan. If the shares paid pursuant to the Plan may in
certain circumstances be exempt from registration pursuant to the Securities
Act, as amended, the Company may restrict the transfer of such shares in such
manner as it deems advisable to ensure the availability of any such
exemption.







15.13
Governing
Law . The Plan
and all Award Agreements shall be construed in accordance with and governed by
the laws of the State of Delaware.




15.14
Section 409A
. To the extent that
the Committee determines that any Award granted under the Plan is subject to
Section 409A of the Code, the Award Agreement evidencing such Award shall
incorporate the terms and conditions required by Section 409A of the Code.
To the extent applicable, the Plan and Award Agreements shall be interpreted in
accordance with Section 409A of the Code and Department of Treasury
regulations and other interpretive guidance issued thereunder, including without
limitation any such regulations or other guidance that may be issued after the
Effective Date. Notwithstanding any provision of the Plan to the contrary, in
the event that following the Effective Date the Committee determines that any
Award may be subject to Section 409A of the Code and related Department of
Treasury guidance (including such Department of Treasury guidance as may be
issued after the Effective Date), the Committee may adopt such amendments to the
Plan and the applicable Award Agreement or adopt other policies and procedures
(including amendments, policies and procedures with retroactive effect), or take
any other actions, that the Committee determines are necessary or appropriate to
(a) exempt the Award from Section 409A of the Code and/or preserve the
intended tax treatment of the benefits provided with respect to the Award, or
(b) comply with the requirements of Section 409A of the Code and
related Department of Treasury guidance.




15.15
One-Time
Option Exchange. Notwithstanding any other provision of the Plan to the
contrary, upon approval of our stockholders, the Committee may provide for, and
the Company may implement, a one-time-only option exchange offer, pursuant to
which certain outstanding Options could, at the election of the person holding
such Option, be tendered to the Company for cancellation in exchange for the
issuance of a lesser amount of Options with a lower exercise price, provided
that such one-time-only option exchange offer is commenced within twelve months
of the date of such stockholder approval. Any options cancelled by the Company
pursuant to this option exchange will not be available for reissuance under any
award under this Plan.