EX-10.1 2008 INCENTIVE COMPENSATION PLAN






Exhibit 10.1




SUPERIOR BANCORP 2008 INCENTIVE COMPENSATION PLAN




     Superior Bancorp, a Delaware corporation (the “Company”), by resolution of its Board
of Directors, hereby adopts the Superior Bancorp 2008 Incentive Compensation Plan (the
“Plan”). The Plan will become effective upon the approval of the Company’s stockholders
(the “Effective Date”).



     The purpose of the Plan is to promote the success and enhance the value of the Company by
linking the personal interests of its directors, officers and employees to those of the Company’s
stockholders and by providing such individuals with an incentive for outstanding performance to
generate superior returns to the Company’s stockholders. The Plan is further intended to provide
flexibility to the Company in its ability to motivate, attract, and retain the services of
directors, officers and employees upon whose judgment, interest, and special effort the successful
conduct of the Company’s operation is largely dependent.



ARTICLE I




DEFINITIONS




     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.



     1.1. “Administrator” shall mean the entity that conducts the general administration
of the Plan as provided in Article X.



     1.2. “Award” shall mean an Option, a Restricted Stock Award, a Restricted Stock Unit
Award, a Performance Award, a Dividend Equivalents Award, a Stock Appreciation Right or an Other
Stock-Based Award, which may be awarded or granted under the Plan (collectively, “Awards”).



     1.3. “Award Agreement” shall mean a written agreement executed by an authorized
officer of the Company and the Holder which shall contain such terms and conditions with respect to
an Award as the Administrator shall determine, consistent with the Plan.



     1.4. “Award Limit” shall mean 30,000 shares of Common Stock for grants to any
individual in any calendar year as adjusted pursuant to Section 11.3.



     1.5. “Board” shall mean the Board of Directors of the Company.



     1.6. “Change in Control” shall mean the occurrence of any of the following
transactions or events occurring on or after the Effective Date:



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     (a) a merger, consolidation or other corporate reorganization of the Company in which the
Company does not survive, or, if it survives, the shareholders of the Company before such
transaction do not own more than 50% of, respectively: (i) the common stock of the surviving
entity, and (ii) the combined voting power of any other outstanding securities entitled to vote on
the election of directors of the surviving entity;



     (b) the acquisition, other than from the Company, by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act of beneficial ownership of 25% or
more of either: (i) the then outstanding shares of Common Stock of the Company, or (ii) the
combined voting power of the then outstanding voting securities of the Company entitled to vote
generally in the election of directors; provided, however, that neither of the following shall
constitute a Change in Control:




     (A) any acquisition by the Company, any of its subsidiaries, or any employee benefit plan
(or related trust) of the Company or its subsidiaries, or




     (B) any acquisition by any corporation, entity, or group, if, following such acquisition,
more than 50% of the then outstanding voting rights of such corporation, entity or group are
owned, directly or indirectly, by all or substantially all of the persons who were the owners
of the Common Stock of the Company immediately prior to such acquisition;



     (c) individuals who, as of the effective date of the Plan, constitute the Board of the Company
(the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board,
provided that any individual becoming a director subsequent to such date, whose election, or
nomination for election by the Company’s shareholders, was approved by a vote of at least a
majority of the directors then comprising the Board, shall be considered as though such individual
were a member of the Incumbent Board, but excluding, for this purpose, any individual whose initial
assumption of office is in connection with an actual or threatened election contest relating to the
election of the directors of the Company (as such terms are used in Rule 14a-l 1 of Regulation l4A
promulgated under the Exchange Act; or




     (d) approval by the shareholders of the Company of:




     (i) a complete liquidation or dissolution of the Company, or




     (ii) the sale or other disposition of all or substantially all the assets of the
Company, other than to a corporation, with respect to which immediately following such sale
or other disposition more than 50%, respectively, of the then outstanding shares of common
stock of such corporation, and the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the election of directors, is
then beneficially owned, directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of the outstanding
Common Stock of the



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Company, and the outstanding voting securities of the Company immediately prior to
such sale or other disposition, in substantially the same proportions as their ownership,
immediately prior to such sale or disposition, of the outstanding Common Stock of the
Company and outstanding securities of the Company, as the case may be.



     1.7. “Code” shall mean the Internal Revenue Code of 1986, as amended from time to
time.



     1.8. “Committee” shall mean the Compensation Committee of the Board, or another
committee or subcommittee of the Board, appointed as provided in Section 10.1.



     1.9. “Common Stock” shall mean the common stock of the Company, par value $0.001 per
share.



     1.10. “Company” shall mean Superior Bancorp., a Delaware corporation.



     1.11. “Covered Employee” shall mean any Employee who is, or the Committee determines
could be, a “covered employee” within the meaning of Section 162(m) of the Code.



     1.12. “Director” shall mean a member of the Board.



     1.13. “Dividend Equivalent” shall mean a right to receive the equivalent value (in
cash or Common Stock) of dividends paid on Common Stock, awarded under Section 8.3 of the Plan.



     1.14. “DRO” shall mean a domestic relations order as defined by the Code or Title I
of the Employee Retirement Income Security Act of 1974, as amended from time to time, or the rules
thereunder.



     1.15. “Effective Date” shall mean the date the Plan is approved by the Company’s
stockholders.



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



     1.17. “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from
time to time.



     1.18. “Fair Market Value” means, as of any date, the value of a share of Common Stock
determined as follows:



     (a) If the Common Stock is listed on any established stock exchange (such as the New York
Stock Exchange, the NASDAQ Global Market and the NASDAQ Global Select Market) or any national
market system, including without limitation any market



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system of The NASDAQ Stock Market, the value of a share of Common Stock shall be the closing
sales price for a share of Common Stock as quoted on such exchange or system for such date, or if
there is no closing sales price for a share of Common Stock on the date in question, the closing
sales price for a share of Common Stock on the last preceding date for which such quotation exists,
as reported in The Wall Street Journal or such other source as the Administrator deems reliable;




     (b) If the Common Stock is regularly quoted by a recognized securities dealer but closing
sales prices are not reported, the value of a share of Common Stock shall be the mean of the high
bid and low asked prices for such date or, if there are no high bid and low asked prices for a
share of Common Stock on the date in question, the high bid and low asked prices for a share of
Common Stock on the last preceding date for which such information exists, as reported in The Wall
Street Journal or such other source as the Administrator deems reliable; or



     (c) If the Common Stock is neither listed on an established stock exchange or a national
market system nor regularly quoted by a recognized securities dealer, the value of a share of
Common Stock shall be established by the Administrator in good faith.



     1.19. “Fiscal Year” means the fiscal year of the Company.



     1.20. “Full Value Award” means any Award other than an Option or a Stock Appreciation
Right.



     1.21. “Holder” shall mean a person who has been granted an Award.



     1.22. “Incentive Stock Option” shall mean an option which conforms to the applicable
provisions of Section 422 of the Code and which is designated as an Incentive Stock Option by the
Administrator.



     1.23. “Non-Employee Director” shall mean a member of the Board who is not an
Employee.



     1.24. “Non-Qualified Stock Option” shall mean an Option which is not designated as an
Incentive Stock Option by the Administrator.



     1.25. “Option” shall mean a stock option granted under Article IV of the Plan. An
Option granted under the Plan shall, as determined by the Administrator, be either a Non-Qualified
Stock Option or an Incentive Stock Option; provided, however, that Options granted to Non-Employee
Directors shall be Non-Qualified Stock Options.



     1.26. “Other Stock-Based Award” shall have the meaning set forth in Section 8.5 of
the Plan.



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     1.27. “Performance Award” shall mean a performance or incentive award that is
denominated in stock and is paid in cash, Common Stock or a combination of both, awarded under
Section 8.2 of the Plan.



     1.28. “Performance Criteria” means the criteria (and adjustments) that the Committee
selects for an Award for purposes of establishing the Performance Goal or Performance Goals for a
Performance Period, determined as follows:



     (a) The Performance Criteria that shall be used to establish Performance Goals are limited to
the following: (i) net earnings (either before or after (A) interest, (B) taxes, (C) depreciation
and (D) amortization), (ii) gross or net sales or revenue, (iii) net income (either before or after
taxes), (iv) operating profit, (v) cash flow (including, but not limited to, operating cash flow
and free cash flow), (vi) return on assets, (vii) return on capital, (viii) return on stockholders’
equity, (ix) return on sales, (x) gross or net profit or operating margin, (xi) costs, (xii) funds
from operations, (xiii) expense, (xiv) working capital, (xv) earnings per share, and (xvi) price
per share of Common Stock, (xvii) regulatory ratings, (xviii) market share, (xix) growth in loans
and/or other assets, (xx) growth in deposits and (xxi) various measures of credit quality, any of
which may be measured either in absolute terms or as compared to any incremental increase or
decrease or as compared to results of a peer group.



     (b) The Committee may, in its discretion, at the time of grant, specify in the Award that one
or more objectively determinable adjustments shall be made to one or more of the Performance Goals.
Such adjustments may include one or more of the following: (i) items related to a change in
accounting principle; (ii) items relating to financing activities; (iii) expenses for restructuring
or productivity initiatives; (iv) other non-operating items; (v) items related to acquisitions;
(vi) items attributable to the business operations of any entity acquired by the Company during the
Performance Period; (vii) items related to the disposal of a business or segment of a business; or
(viii) items related to discontinued operations that do not qualify as a segment of a business
under United States generally accepted accounting principles (“GAAP”).



     1.29. “Performance Goals” means, for a Performance Period, one or more goals
established in writing by the Committee for the Performance Period based upon one or more
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 achievement of each Performance
Goal shall be determined in accordance with GAAP to the extent applicable.



     1.30. “Performance Period” means one or more periods of time, which may be of varying
and overlapping durations, as the Committee may select, over which the attainment of one or more
Performance Goals will be measured for the purpose of determining a Holder’s right to, and the
payment of, a Performance Award.



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     1.31. “Plan” shall mean the Superior Bancorp 2008 Incentive Compensation Plan, as
amended from time to time.



     1.32. “Prior Award” shall mean a stock option, restricted stock or other stock award
granted under any Prior Plan.



     1.33. “Prior Plan” shall mean the Third Amended and Restated 1998 Stock Incentive
Plan of The Banc Corporation, as amended from time to time.



     1.34. “Restricted Stock” shall mean Common Stock awarded under Article VII of the
Plan that is subject to repurchase or forfeiture.



     1.35. “Restricted Stock Units” shall mean rights to receive Common Stock or its cash
equivalent awarded under Section 8.4.



     1.36. “Rule 16b-3” shall mean Rule 16b-3 promulgated under the Exchange Act, as such
Rule may be amended from time to time.



     1.37. “Securities Act” shall mean the Securities Act of 1933, as amended from time to
time.



     1.38. “Stock Appreciation Right” shall mean a stock appreciation right granted under
Article IX of the Plan.



     1.39. “Subsidiary” means any entity (other than the Company), whether domestic or
foreign, in an unbroken chain of entities beginning with the Company if each of the entities other
than the last entity in the unbroken chain beneficially owns, at the time of the determination,
securities or interests representing more than fifty percent (50%) of the total combined voting
power of all classes of securities or interests in one of the other entities in such chain.



     1.40. “Subsidiary Corporation” shall mean any corporation in an unbroken chain of
corporations beginning with the Company if each of the corporations other than the last corporation
in the unbroken chain then owns stock possessing fifty percent (50%) or more of the total combined
voting power of all classes of stock in one of the other corporations in such chain.



     1.41. “Substitute Award” shall mean an Award granted under this Plan upon the
assumption of, or in substitution for, outstanding equity awards previously granted by a company or
other entity in connection with a corporate transaction, such as a merger, combination,
consolidation or acquisition of property or stock; provided, however, that in no event shall the
term “Substitute Award” be construed to refer to an award made in connection with the cancellation
and repricing of an Option or Stock Appreciation Right.



     1.42. “Termination of Directorship” shall mean the time when a Holder who is a
Non-Employee Director ceases to be a Director for any reason, including, without



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limitation, a termination by resignation, failure to be elected, death or retirement. The
Administrator, in its discretion, shall determine the effect of all matters and questions relating
to Termination of Directorship with respect to Non-Employee Directors.




     1.43. “Termination of Employment” shall mean the time when the employee-employer
relationship between a Holder and the Company or any Subsidiary is terminated for any reason, with
or without cause, including, without limitation, a termination by resignation, discharge, death,
disability or retirement; but excluding terminations where there is a simultaneous reemployment or
continuing employment of a Holder by the Company or any Subsidiary. The Administrator, in its
discretion, shall determine the effect of all matters and questions relating to Termination of
Employment, including, without limitation, the question of whether a Termination of Employment
resulted from a discharge for cause; provided, however, that, with respect to Incentive Stock
Options, unless the Administrator otherwise provides in the terms of the Award Agreement or
otherwise, a leave of absence, change in status from an employee to an independent contractor or
other change in the employee-employer relationship shall constitute a Termination of Employment if,
and to the extent that, such leave of absence, change in status or other change interrupts
employment for the purposes of Section 422(a)(2) of the Code and the then applicable regulations
and revenue rulings under said Section. For purposes of the Plan, a Holder’s employee-employer
relationship shall be deemed to be terminated in the event that the Subsidiary employing such
Holder ceases to remain a Subsidiary following any merger, sale of stock or other corporate
transaction or event (including, without limitation, a spin-off).



ARTICLE II




SHARES SUBJECT TO PLAN




     2.1. Shares Subject to Plan.



     (a) Subject to Section 11.3 and Section 2.1(b), the aggregate number of shares of Common Stock
that may be issued or transferred pursuant to Awards under the Plan shall be 300,000 shares (the
“Initial Authorized Shares”). Notwithstanding the preceding sentence, the aggregate number
of shares of Common Stock that may be issued or transferred pursuant to Full Value Awards under the
Plan shall not exceed 90,000 shares.



     (b) To the extent that an Award under the Plan or a Prior Award under the Prior Plan
terminates, expires, is settled in cash, lapses or is forfeited for any reason, any shares of
Common Stock then subject to such Award shall again be available for the grant of an Award pursuant
to the Plan. To the extent permitted by applicable law or any exchange rule, shares of Common 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
Common Stock available for grant pursuant to this Plan. The payment of Dividend Equivalents in cash
in conjunction with any outstanding Awards shall not be counted against the shares available for
issuance under the Plan. Notwithstanding the provisions of this Section 2.1(b), no shares of



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Common 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. In
addition, the following shares of Common Stock shall not become available for purposes of the Plan:
(1) shares of Common Stock previously owned or acquired by the Holder that are delivered to the
Company, or withheld from an Award, to pay the exercise price, (2) shares of Common Stock that are
delivered or withheld for purposes of satisfying a tax withholding obligation, or (3) shares of
Common Stock reserved for issuance upon the grant of a SAR that exceed the number of shares
actually issued upon exercise.




     2.2. Stock Distributed. Any Common Stock distributed pursuant to an Award shall
consist, in whole or in part, of authorized and unissued Common Stock, shares of Common Stock held
in treasury or shares of Common Stock purchased on the open market.



     2.3. Limitation on Number of Shares Subject to Awards. Notwithstanding any provision
in the Plan to the contrary, and subject to Article XI, the maximum number of shares of Common
Stock with respect to one or more Awards that may be granted to any one Employee during any
calendar year shall not exceed the Award Limit. To the extent required by Section 162(m) of the
Code, shares subject to Awards which are canceled shall continue to be counted against the Award
Limit.



ARTICLE III




GRANTING OF AWARDS




     3.1. Award Agreement. Each Award shall be evidenced by an Award Agreement. Award
Agreements evidencing Awards intended to qualify as performance-based compensation (as described in
Section 162(m)(4)(C) of the Code) shall contain such terms and conditions as may be necessary to
meet the applicable provisions of Section 162(m) of the Code. Award Agreements evidencing Incentive
Stock Options shall contain such terms and conditions as may be necessary to meet the applicable
provisions of Section 422 of the Code.



     3.2. Provisions Applicable to Section 162(m) Performance-Based Compensation.



     (a) The Committee, in its discretion, may determine whether an Award is to qualify as
performance-based compensation (as described in Section 162(m)(4)(C) of the Code).



     (b) Notwithstanding anything in the Plan to the contrary, the Committee may grant any Award to
a Covered Employee, including Restricted Stock the restrictions with respect to which lapse upon
the attainment of specified Performance Goals and any performance or incentive award described in
Article VIII that vests or becomes exercisable or payable upon the attainment of one or more
specified Performance Goals.



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     (c) To the extent necessary to comply with the performance-based compensation requirements of
Section 162(m)(4)(C) of the Code, with respect to any Award granted under Articles VII and VIII
which may be granted to one or more Covered Employees, no later than ninety (90) days following the
commencement of any Performance Period (or such earlier time as may be required under Section
162(m) of the Code), the Committee shall, in writing, (i) designate one or more Covered Employees,
(ii) select the Performance Criteria applicable to the Performance Period (including any applicable
adjustments), (iii) establish the various performance targets, in terms of an objective formula or
standard, and amounts of such Awards, as applicable, which may be earned for such Performance
Period, and (iv) specify the relationship between Performance Criteria and the performance targets
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 targets have been achieved for such
Performance Period. In determining the amount earned by a Covered Employee, the Committee shall
have the right to reduce (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.



     (d) Furthermore, notwithstanding any other provision of the Plan, any Award which is granted
to a Covered Employee and is intended to qualify as performance-based compensation (as described in
Section 162(m)(4)(C) of the Code) 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
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.



     (e) The maximum aggregate amount of all Awards intended to qualify as performance-based
compensation during any calendar year shall not exceed the Award Limit. Unless otherwise specified
by the Administrator at the time of grant, the Performance Criteria with respect to an Award
payable to a Covered Employee shall be determined on the basis of GAAP.



     3.3. Limitations Applicable to Section 16 Persons. Notwithstanding any other
provision of the Plan, the Plan, and any Award granted or awarded to any individual 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 of 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.



     3.4. At-Will Employment. Nothing in the Plan or in any Award Agreement hereunder
shall confer upon any Holder any right to continue in the employ of the



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Company or any Subsidiary, or as a Director of the Company, or shall interfere with or restrict in any way the rights of the Company and any Subsidiary, which rights are hereby
expressly reserved, to discharge any Holder at any time for any reason whatsoever, with or without
cause, except to the extent expressly provided otherwise in a written employment agreement between
the Holder and the Company and any Subsidiary.




ARTICLE IV




GRANTING OF OPTIONS TO EMPLOYEES AND NON-EMPLOYEE DIRECTORS




     4.1. Eligibility. Any Employee or Non-Employee Director selected by the Administrator
pursuant to Section 4.4(a) shall be eligible to be granted an Option.



     4.2. Disqualification for Stock Ownership. No person may be granted an Incentive
Stock Option under the Plan if such person, at the time the Incentive Stock Option is granted, owns
stock possessing more than 10% of the total combined voting power of all classes of stock of the
Company or any then existing Subsidiary Corporation or parent corporation (as defined in Section
424(e) of the Code) unless such Incentive Stock Option conforms to the applicable provisions of
Section 422 of the Code.



     4.3. Qualification of Incentive Stock Options. No Incentive Stock Option shall be
granted to any person who is not an Employee of the Company or a Subsidiary Corporation.



     4.4. Granting of Options.



     (a) Options may be awarded to any Employee or Non-Employee Director who the Administrator
determines should receive such an Award. The Administrator shall in its discretion, and, subject to
applicable limitations of the Plan:




     (i) Subject to the Award Limit, determine the number of shares to be subject to such
Options granted;




     (ii) Subject to Section 4.2 and Section 4.3, determine whether such Options are to be
Incentive Stock Options or Non-Qualified Stock Options; and




     (iii) Determine the terms and conditions of such Options, consistent with the Plan.



     (b) Upon the selection of an Employee or Non-Employee Director to be granted an Option, the
Administrator shall instruct the Secretary of the Company to issue the Option and may impose such
conditions on the grant of the Option as it deems appropriate.



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     (c) Any Incentive Stock Option granted under the Plan may be modified by the Administrator,
with the consent of the Holder, to disqualify such Option from treatment as an “incentive stock
option” under Section 422 of the Code.



ARTICLE V




TERMS OF OPTIONS




     5.1. Option Price. The price per share of Common Stock subject to each Option
granted to Employees and Non-Employee Directors shall be set by the Administrator; provided,
however, that:



     (a) Except in the case of an Option that is a Substitute Award, such price shall not be less
than 100% of the Fair Market Value of a share of Common Stock on the date the Option is granted
(or, in the case of Incentive Stock Options, the date the Option is modified, extended or renewed
for purposes of Section 424(h) of the Code); and



     (b) In the case of Incentive Stock Options granted to an individual then owning (within the
meaning of Section 424(d) of the Code) more than 10% of the total combined voting power of all
classes of stock of the Company or any Subsidiary Corporation or parent corporation thereof (as
defined in Section 424(e) of the Code), such price shall not be less than 110% of the Fair Market
Value of a share of Common Stock on the date the Option is granted (or the date the Option is
modified, extended or renewed for purposes of Section 424(h) of the Code); and



     5.2. Option Term. The term of an Option granted to an Employee or Non-Employee
Director shall be set by the Administrator in its discretion; provided, however, that the term
shall not be more than ten (10) years from the date the Option is granted, or five (5) years from
the date the Option is granted if the Option is an Incentive Stock Option granted to an individual
then owning (within the meaning of Section 424(d) of the Code) more than 10% of the total combined
voting power of all classes of stock of the Company or any Subsidiary Corporation or parent
corporation thereof (as defined in Section 424(e) of the Code). Except as limited by requirements
of Section 409A or Section 422 of the Code and regulations and rulings thereunder, the
Administrator may extend the term of any outstanding Option in connection with any Termination of
Employment or Termination of Directorship of the Holder, or amend any other term or condition of
such Option relating to such a Termination of Employment or Termination of Directorship.



     5.3. Option Vesting.



     (a) The period during which the right to exercise, in whole or in part, an Option vests in the
Holder shall be set by the Administrator and the Administrator may determine that an Option may not
be exercised in whole or in part for a specified period after it is granted. At any time after
grant of an Option, the Administrator may, in its



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discretion and subject to whatever terms and
conditions it selects, accelerate the period during which an Option vests.




     (b) A Option is exercisable only while the Holder is an Employee or Non-Employee Director, as
applicable; provided, however, that the Administrator in its discretion may provide that the Option
may be exercised subsequent to a Termination of Employment or Termination of Directorship, as
applicable, following a Change in Control or because of the Holder’s retirement, death or
disability or termination without cause, or otherwise.



     (c) To the extent that the aggregate fair market value of stock with respect to which
“incentive stock options” (within the meaning of Section 422 of the Code, but without regard to
Section 422(d) of the Code) are exercisable for the first time by a Holder during any calendar year
under the Plan, and all other plans of the Company and any Subsidiary Corporation or parent
corporation thereof (as defined in Section 424(e) of the Code), exceeds $100,000, the Options shall
be treated as Non-Qualified Stock Options to the extent required by Section 422 of the Code. The
rule set forth in the preceding sentence shall be applied by taking Options and other “incentive
stock options” into account in the order in which they were granted. For purposes of this Section
5.3(c), the fair market value of stock shall be determined as of the time the Option or other
“incentive stock options” with respect to such stock is granted.



ARTICLE VI




EXERCISE OF OPTIONS




     6.1. Partial Exercise. An exercisable Option may be exercised in whole or in part.
However, an Option shall not be exercisable with respect to fractional shares and the Administrator
may require that, by the terms of the Option, a partial exercise be with respect to a minimum
number of shares.



     6.2. Manner of Exercise. All or a portion of an exercisable Option shall be deemed
exercised upon delivery of all of the following to the Secretary of the Company, or such other
person or entity designated by the Administrator, or his, her or its office, as applicable:



     (a) A written notice complying with the applicable rules established by the Administrator
stating that the Option, or a portion thereof, is exercised. Such rules may provide that for
administrative convenience an Option may not be exercised during such period (not exceeding 10
days) as is specified in advance by the Administrator. The notice shall be signed by the Holder or
other person then entitled to exercise the Option or such portion of the Option;



     (b) Such representations and documents as the Administrator, in its discretion, deems
necessary or advisable to effect compliance with all applicable provisions of the Securities Act
and any other federal, state or foreign securities laws or regulations. The



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Administrator may, in
its discretion, also take whatever additional actions it deems appropriate to effect such
compliance including, without limitation, placing legends on share certificates and issuing
stop-transfer notices to agents and registrars;




     (c) In the event that the Option shall be exercised pursuant to Section 11.1 by any person or
persons other than the Holder, appropriate proof of the right of such person or persons to exercise
the Option; and



     (d) Full cash payment to the Secretary of the Company for the shares with respect to which the
Option, or portion thereof, is exercised. However, the Administrator may, in its discretion, (i)
allow payment, in whole or in part, through the delivery of shares of Common Stock which have been
owned by the Holder for at least six months, duly endorsed for transfer to the Company with a Fair
Market Value on the date of delivery equal to the aggregate exercise price of the Option or
exercised portion thereof; (ii) allow payment, in whole or in part, through the surrender of shares
of Common Stock then issuable upon exercise of the Option having a Fair Market Value on the date of
Option exercise equal to the aggregate exercise price of the Option or exercised portion thereof;
(iii) allow payment, in whole or in part, through the delivery of property of any kind which
constitutes good and valuable consideration; (iv) allow payment, in whole or in part, through the
delivery of a notice that the Holder has placed a market sell order with a broker with respect to
shares of Common Stock then issuable upon exercise of the Option, and the broker timely pays a
sufficient portion of the net proceeds of the sale to the Company in satisfaction of the Option
exercise price; or (v) allow payment through any combination of the consideration provided in the
foregoing subparagraphs (i), (ii), (iii) and (iv); provided, however, that the payment in the
manner prescribed in the preceding paragraphs shall not be permitted to the extent that the
Administrator determines that payment in such manner shall result in an extension or maintenance of
credit, an arrangement for the extension of credit, or a renewal or an extension of credit in the
form of a personal loan to or for any Director or executive officer of the Company that is
prohibited by Section 13(k) of the Exchange Act or other applicable law.



     6.3. Conditions to Issuance of Stock Certificates. The Company shall not be required
to issue or deliver any certificate or certificates for shares of stock purchased upon the exercise
of any Option or portion thereof prior to fulfillment of all of the following conditions:



     (a) The admission of such shares to listing on all stock exchanges on which such class of
stock is then listed;



     (b) The completion of any registration or other qualification of such shares under any
federal, state or foreign law, or under the rulings or regulations of the Securities and Exchange
Commission or any other governmental regulatory body which the Administrator shall, in its
discretion, deem necessary or advisable;



13









 





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



     (d) The lapse of such reasonable period of time following the exercise of the Option as the
Administrator may establish from time to time for reasons of administrative convenience; and



     (e) The receipt by the Company of full payment for such shares, including payment of any
applicable withholding tax, which in the discretion of the Administrator may be in the form of
consideration used by the Holder to pay for such shares under Section 6.2(d).



     6.4. Rights as Stockholders. Holders shall not be, nor have any of the rights or
privileges of, stockholders of the Company in respect of any shares purchasable upon the exercise
of any part of an Option unless and until certificates representing such shares have been issued by
the Company to such Holders.



     6.5. Ownership and Transfer Restrictions. The Administrator, in its discretion, may
impose such restrictions on the ownership and transferability of the shares purchasable upon the
exercise of an Option as it deems appropriate. Any such restriction shall be set forth in the
respective Award Agreement and may be referred to on the certificates evidencing such shares. The
Holder shall give the Company prompt notice of any disposition of shares of Common Stock acquired
by exercise of an Incentive Stock Option within (a) two years from the date of granting (including
the date the Option is modified, extended or renewed for purposes of Section 424(h) of the Code)
such Option to such Holder, or (b) one year after the transfer of such shares to such Holder.



     6.6. Additional Limitations on Exercise of Options. Holders may be required to
comply with any timing or other restrictions with respect to the settlement or exercise of an
Option, including a window-period limitation, as may be imposed in the discretion of the
Administrator.



ARTICLE VII




AWARD OF RESTRICTED STOCK




     7.1. Eligibility. Subject to the Award Limit, Restricted Stock may be awarded to any
Employee or Non-Employee Director who the Administrator determines should receive such an Award.



     7.2. Award of Restricted Stock.



     (a) The Administrator may from time to time, in its discretion:



14









 






     (i) Select from among the Employees or Non-Employee Directors (including Employees or
Non-Employee Directors who have previously received Awards under the Plan) such of them as in
its opinion should be awarded Restricted Stock; and




     (ii) Determine the purchase price, if any, and other terms and conditions applicable to
such Restricted Stock, consistent with the Plan.



     (b) The Administrator shall establish the purchase price, if any, and form of payment for
Restricted Stock; provided, however, that such purchase price shall be no less than the minimum
amount required by applicable state law.



     (c) Upon the selection of an Employee or Non-Employee Director to be awarded Restricted Stock,
the Administrator shall instruct the Secretary of the Company to issue such Restricted Stock and
may impose such conditions on the issuance of such Restricted Stock as it deems appropriate.



     7.3. Rights as Stockholders. Subject to Section 7.4, upon delivery of the shares of
Restricted Stock to the escrow holder pursuant to Section 7.5, the Holder shall have, unless
otherwise provided by the Administrator, all the rights of a stockholder with respect to said
shares, subject to the restrictions in his or her Award Agreement, including the right to receive
all dividends and other distributions paid or made with respect to the shares; provided, however,
that, in the discretion of the Administrator, any extraordinary distributions with respect to the
Common Stock shall be subject to the restrictions set forth in Section 7.4.



     7.4. Restriction. All shares of Restricted Stock issued under the Plan (including
any shares received by Holders thereof with respect to shares of Restricted Stock as a result of
stock dividends, stock splits or any other form of recapitalization) shall, in the terms of each
individual Award Agreement, be subject to such restrictions as the Administrator shall provide,
which restrictions may include, without limitation, restrictions concerning voting rights and
transferability and restrictions based on duration of employment or directorship with the Company,
Company performance and individual performance; provided, however, by action taken after the
Restricted Stock is issued, the Administrator may, on such terms and conditions as it may determine
to be appropriate, remove any or all of the restrictions imposed by the terms of the Award
Agreement. Restricted Stock may not be sold or encumbered until all restrictions are terminated or
expire. A Holder’s rights in unvested Restricted Stock shall lapse, and such Restricted Stock shall
be surrendered to the Company without consideration, upon Termination of Employment or Termination
of Directorship, as applicable; provided, however, that the Administrator in its discretion may
provide that such rights shall not lapse in the event of a Termination of Employment or Termination
of Directorship, as applicable, following a Change in Control or because of the Holder’s
retirement, death or disability or termination without cause, or otherwise.



15









 





     7.5. Escrow. The Secretary of the Company or such other escrow holder as the
Administrator may appoint shall retain physical custody of each certificate representing Restricted
Stock until all of the restrictions imposed under the Award Agreement with respect to the shares
evidenced by such certificate expire or shall have been removed.



     7.6. Legend. In order to enforce the restrictions imposed upon shares of Restricted
Stock hereunder, the Administrator shall cause a legend or legends to be placed on certificates
representing all shares of Restricted Stock that are still subject to restrictions under Award
Agreements, which legend or legends shall make appropriate reference to the conditions imposed
thereby.



     7.7. Section 83(b) Election. If a Holder makes an election under Section 83(b) of
the Code, or any successor section thereto, to be taxed with respect to the Restricted Stock as of
the date of transfer of the Restricted Stock rather than as of the date or dates upon which the
Holder would otherwise be taxable under Section 83(a) of the Code, the Holder shall deliver a copy
of such election to the Company immediately after filing such election with the Internal Revenue
Service.



ARTICLE VIII




PERFORMANCE AWARDS, DIVIDEND EQUIVALENTS, , RESTRICTED STOCK

UNITS, OTHER STOCK-BASED AWARDS




     8.1. Eligibility. Subject to the Award Limit, one or more Performance Awards,
Dividend Equivalent Awards, Restricted Stock Unit Awards and/or Other Stock-Based Awards may be
granted to any Employee or Non-Employee Director whom the Administrator determines should receive
such an Award.



     8.2. Performance Awards. Any Employee or Non-Employee Director selected by the
Administrator may be granted one or more Performance Awards. The value of such Performance Awards
may be linked to any one or more of the Performance Criteria or other specific performance criteria
determined appropriate by the Administrator, in each case on a specified date or dates or over any
period or periods determined by the Administrator. In making such determinations, the Administrator
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 Employee or
Non-Employee Director.



     8.3. Dividend Equivalents. Any Employee or Non-Employee Director selected by the
Administrator may be granted Dividend Equivalents based on the dividends declared on Common Stock,
to be credited as of dividend payment dates, during the period between the date a Full Value Award
is granted and the date such Full Value Award vests, is exercised, is distributed or expires, as
determined by the Administrator. Such Dividend Equivalents shall be converted to cash or additional
shares of Common Stock by such formula and at such time and subject to such limitations as may be
determined by the Administrator.



16









 





     8.4. Restricted Stock Units. Any Employee or Non-Employee Director selected by the
Administrator may be granted an award of Restricted Stock Units in the manner determined from time
to time by the Administrator. The Administrator is authorized to make awards of Restricted Stock
Units in such amounts and subject to such terms and conditions as determined by the Administrator. The Administrator 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, and may specify that such Restricted
Stock Units become fully vested and nonforfeitable pursuant to the satisfaction of one or more
Performance Goals or other specific performance goals as the Administrator determines to be
appropriate at the time of the grant, in each case on a specified date or dates or over any period
or periods determined by the Administrator. The Administrator shall specify the distribution dates
applicable to each award of Restricted Stock Units which shall be no earlier than the vesting dates
or events of the award and may be determined at the election of the Employee or Non-Employee
Director, subject to compliance with Section 409A of the Code. Payment of Restricted Stock Units
shall be in cash, in Common Stock or a combination of both, as determined by the Administrator.



     8.5. Other Stock-Based Awards. Any Employee or Non-Employee Director selected by the
Administrator may be granted an Other Stock-Based Award (as hereinafter defined) in the manner
determined from time to time by the Administrator. An Other Stock-Based Award means any other type
of equity-based or equity-related Award not otherwise described by the terms of this Plan
(including the grant or offer for sale of unrestricted Shares) in such amount and subject to such
terms and conditions as the Administrator shall determine. Such Awards may involve the transfer of
actual shares of Common Stock, or payment in cash or otherwise of amounts based on the value of
shares of Common Stock.



     8.6. Termination of Employment or Termination of Directorship. A Performance Award,
Dividend Equivalent Award, Restricted Stock Unit Award and/or Other Stock-Based Award is
exercisable or distributable only while the Holder is an Employee or Non-Employee Director, as
applicable; provided, however, that the Administrator in its discretion may provide that the Award
may be exercised or distributed subsequent to a Termination of Employment or Termination of
Directorship, as applicable, following a Change in Control or because of the Holder’s retirement,
death or disability or termination without cause, or otherwise.



ARTICLE IX




STOCK APPRECIATION RIGHTS




     9.1. Grant of Stock Appreciation Rights. A Stock Appreciation Right may be granted
to any Employee or Non-Employee Director selected by the Administrator. A Stock Appreciation Right
may be granted: (a) in connection and simultaneously with the grant of an Option, or (b)
independent of an Option. A Stock Appreciation Right shall be



17









 




subject to such terms and conditions not inconsistent with the Plan as the Administrator shall impose and shall be evidenced by an Award
Agreement.




     9.2. Coupled Stock Appreciation Rights.



     (a) A Coupled Stock Appreciation Right (“CSAR”) shall be related to a particular
Option and shall be exercisable only when and to the extent the related Option is exercisable.



     (b) A CSAR may be granted to the Holder for no more than the number of shares subject to the
simultaneously granted Option to which it is coupled.



     (c) A CSAR shall entitle the Holder (or other person entitled to exercise the Option pursuant
to the Plan) to surrender to the Company unexercised a portion of the Option to which the CSAR
relates (to the extent then exercisable pursuant to its terms) and to receive from the Company in
exchange therefor an amount determined by multiplying (i) the difference obtained by subtracting
the exercise price per share of the CSAR from (ii) the Fair Market Value of a share of Common Stock
on the date of exercise of the CSAR by the number of shares of Common Stock with respect to which
the CSAR shall have been exercised, subject to any limitations the Administrator may impose.



     9.3. Independent Stock Appreciation Rights.



     (a) An Independent Stock Appreciation Right (“ISAR”) shall be unrelated to any Option
and shall have a term set by the Administrator in its discretion; provided, however, that the term
shall not be more than ten (10) years from the date the ISAR is granted. An ISAR shall be
exercisable in such installments as the Administrator may determine. An ISAR shall cover such
number of shares of Common Stock as the Administrator may determine The exercise price per share of
Common Stock subject to each ISAR shall be set by the Administrator; provided, that such exercise
price per share shall not be less than 100% of the Fair Market Value of a share of Common Stock on
the date the ISAR is granted. An ISAR is exercisable only while the Holder is an Employee or
Non-Employee Director; provided, that the Administrator may provide that ISARs may be exercised
following a Termination of Employment, or Termination of Directorship, as applicable, or following
a Change in Control, or because of the Holder’s retirement, death or disability or termination
without cause, or otherwise.



     (b) An ISAR shall entitle the Holder (or other person entitled to exercise the ISAR pursuant
to the Plan) to exercise all or a specified portion of the ISAR (to the extent then exercisable
pursuant to its terms) and to receive from the Company an amount determined by multiplying (i) the
difference obtained by subtracting the exercise price per share of the ISAR from the Fair Market
Value of a share of Common Stock on the date of exercise of the ISAR by (ii) the number of shares
of Common Stock with respect to which the ISAR shall have been exercised, subject to any
limitations the Administrator may impose.




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     9.4. Payment and Limitations on Exercise.



     (a) Payment of the amounts determined under Section 9.2(c) and 9.3(b) above shall be in cash,
shares of Common Stock (based on its Fair Market Value as of the date the Stock Appreciation Right
is exercised), or a combination of both, as determined by the Administrator. The Company shall not
be required to issue or deliver any certificate or certificates for shares of stock issuable upon
the exercise of any Stock Appreciation Right prior to fulfillment of the conditions set forth in
Section 6.3 above.



     (b) Holders of Stock Appreciation Rights may be required to comply with any timing or other
restrictions with respect to the settlement or exercise of a Stock Appreciation Right, including a
window-period limitation, as may be imposed in the discretion of the Administrator.



ARTICLE X.




ADMINISTRATION




     10.1. Committee. The Committee shall consist solely of two or more Non-Employee
Directors appointed by and holding office at the pleasure of the Board, each of whom is intended to
(a) be independent under rules promulgated by a securities exchange on which the Company’s Common
Stock is listed and (b) qualify as both a “non-employee director” as defined by Rule 16b-3 and an
“outside director” for purposes of Section 162(m) of the Code. 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 be filled by the Board.



     10.2. Duties and Powers of Committee. It shall be the duty of the Committee to
conduct the general administration of the Plan in accordance with its provisions. The Committee
shall have the power to interpret the Plan and the Award Agreements, and to adopt such rules for
the administration, interpretation and application of the Plan as are consistent therewith, to
interpret, amend or revoke any such rules, and to amend any Award Agreement provided that the
rights or obligations of the Holder of the Award that is the subject of any such Award Agreement
are not affected adversely. Any such grant or award under the Plan need not be the same with
respect to each Holder. Any such interpretations and rules with respect to Incentive Stock Options
shall be consistent with the provisions of Section 422 of the Code. In its discretion, the Board
may at any time and from time to time exercise any and all rights and duties of the Committee under
the Plan except with respect to matters which under Rule 16b-3 or Section 162(m) of the Code, or
any regulations or rules issued thereunder, are required to be determined in the discretion of the
Committee. The Board or the Committee may in its discretion, and consistent with applicable law,
delegate to one or more officers of the Company all or part of the Committee’s authority and duties
with respect to Awards to be granted to individuals who are (i) not subject to the reporting
requirements of Section 16 of the Exchange Act, and (ii) not Covered Employees.



19









 





     10.3. Majority Rule; Unanimous Written Consent. The Committee shall act by a
majority of its members in attendance at a meeting at which a quorum is present or by a memorandum
or other written instrument signed by all members of the Committee.



     10.4. Compensation; Professional Assistance; Good Faith Actions. Members of the
Committee shall receive such compensation, if any, for their services as members as may be
determined by the Board. All expenses and liabilities which members of the Committee incur in
connection with the administration of the Plan shall be borne by the Company. The Committee may,
with the approval of the Board, employ attorneys, consultants, accountants, appraisers, brokers or
other persons. The Committee, the Company and the Company’s officers and Directors shall be
entitled to rely upon the advice, opinions or valuations of any such persons. All actions taken and
all interpretations and determinations made by the Committee or the Board in good faith shall be
final and binding upon all Holders, the Company and all other interested persons. No members of the
Committee or Board shall be personally liable for any action, determination or interpretation made
in good faith with respect to the Plan or Awards, and all members of the Committee and the Board
shall be fully protected by the Company in respect of any such action, determination or
interpretation.



ARTICLE XI




MISCELLANEOUS PROVISIONS




     11.1. Transferability of Awards.



     (a) Except as otherwise provided in Section 11.1(b):




     (i) No Award under the Plan may be sold, pledged, assigned or transferred in any
manner other than by will or the laws of descent and distribution or, subject to the
consent of the Administrator, pursuant to a DRO, unless and until such Award has been
exercised, or the shares underlying such Award have been issued, and all restrictions
applicable to such shares have lapsed;




     (ii) No Award or interest or right therein shall be liable for the debts, contracts or
engagements of the Holder or his successors in interest or shall be subject to disposition by
transfer, alienation, anticipation, pledge, hypothecation, encumbrance, assignment or any
other means whether such disposition be voluntary or involuntary or by operation of law by
judgment, levy, attachment, garnishment or any other legal or equitable proceedings (including
bankruptcy), and any attempted disposition thereof shall be null and void and of no effect,
except to the extent that such disposition is permitted by the preceding sentence; and




     (iii) During the lifetime of the Holder, only the Holder may exercise an Option or other
Award (or any portion thereof) granted to him under the Plan, unless it has been disposed of
pursuant to a DRO; after the death of the Holder, any



20









 






exercisable portion of an Option or other Award may, prior to the time when such portion
becomes unexercisable under the Plan or the applicable Award Agreement, be exercised by his
personal representative or by any person empowered to do so under the deceased Holder’s will
or under the then applicable laws of descent and distribution.



     (b) Notwithstanding Section 11.1(a), the Administrator, in its discretion, may determine to
permit a Holder to transfer a Non-Qualified Stock Option to any one or more Permitted Transferees
(as defined below), subject to the following terms and conditions: (i) a Non-Qualified Stock Option
transferred to a Permitted Transferee shall not be assignable or transferable by the Permitted
Transferee other than by will or the laws of descent and distribution; (ii) any Non-Qualified Stock
Option which is transferred to a Permitted Transferee shall continue to be subject to all the terms
and conditions of the Non-Qualified Stock Option as applicable to the original Holder (other than
the ability to further transfer the Non-Qualified Stock Option); and (iii) the Holder and the
Permitted Transferee shall execute any and all documents requested by the Administrator, including,
without limitation documents to (A) confirm the status of the transferee as a Permitted Transferee,
(B) satisfy any requirements for an exemption for the transfer under applicable federal, state and
foreign securities laws and (C) evidence the transfer. For purposes of this Section 11.1(b),
“Permitted Transferee” shall mean, with respect to a Holder, any child, stepchild,
grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew,
mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law,
including adoptive relationships, any person sharing the Holder’s household (other than a tenant or
employee), a trust in which these persons (or the Holder) control the management of assets, and any
other entity in which these persons (or the Holder) own more than fifty percent of the voting
interests, or any other transferee specifically approved by the Administrator after taking into
account any federal, state, local and foreign tax and securities laws applicable to transferable
Non-Qualified Stock Options.



     11.2. Amendment, Suspension or Termination of the Plan. Except as otherwise provided
in this Section 11.2, the Plan may be wholly or partially amended or otherwise modified, suspended
or terminated at any time or from time to time by the Board, or the Compensation Committee of the
Board. However, without approval of the Company’s stockholders given within twelve (12) months
before or after the action by the Administrator, no action of the Administrator may, except as
provided in Section 11.3, (i) increase the limits imposed in Section 2.1 on the maximum number of
shares which may be issued under the Plan, (ii) decrease the exercise price of any outstanding
Option or Stock Appreciation Right granted under the Plan, or (iii) result in a material change in
eligibility requirements. Except as provided in Section 11.12, no amendment, suspension or
termination of the Plan shall, without the consent of the Holder, alter or impair any rights or
obligations under any Award theretofore granted or awarded, unless the Award itself otherwise
expressly so provides. No Awards may be granted or awarded during any period of suspension or after
termination of the Plan, and in no event may any Award be granted under the Plan after the first to
occur of the following events:



21









 





     (a) The expiration of ten (10) years from the date the Plan is adopted by the Board; or



     (b) The expiration of ten (10) years from the date the Plan is first approved by the Company’s
stockholders.



     11.3. Changes in Common Stock or Assets of the Company, Acquisition or Liquidation of the
Company and Other Corporate Events.



     (a) Subject to Section 11.3(d), in the event of any dividend or other distribution (whether in
the form of cash, Common Stock, other securities or other property), recapitalization,
reclassification, stock split, reverse stock split, reorganization, merger, consolidation,
split-up, spin-off, combination, repurchase, liquidation, dissolution, or sale, transfer, exchange
or other disposition of all or substantially all of the assets of the Company, or exchange of
Common Stock or other securities of the Company, issuance of warrants or other rights to purchase
Common Stock or other securities of the Company, or other similar corporate transaction or event
that affects the Common Stock, then the Administrator shall equitably adjust any or all of the
following 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 an Award:




     (i) The number and kind of shares of Common Stock (or other securities or property) with
respect to which Awards may be granted or awarded (including, without limitation, adjustments
of the limitations in Section 2.1 on the maximum number and kind of shares which may be issued
under the Plan, adjustments of the Award Limit, and adjustments of the manner in which shares
subject to Full Value Awards will be counted);




     (ii) The number and kind of shares of Common Stock (or other securities or property)
subject to outstanding Awards; and




     (iii) The grant or exercise price with respect to any Award.



     (b) Subject to Section 11.3(d), in the event of any transaction or event described in Section
11.3(a) 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 Administrator, in its 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
Holder’s request, is hereby authorized to take any one or more of the following actions whenever
the Administrator 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:



22









 






     (i) To provide for the purchase of any such Award for an amount of cash equal to the
amount that could have been attained upon the exercise of such Award or realization of the
Holder’s rights had such Award been currently exercisable or payable or fully vested, to
authorize a cash payment to the Holder of an Option or SAR in an amount equal to the amount
that could have been attained upon the exercise of the Option or SAR, or to cancel for no
consideration an Option that upon exercise would not yield a positive benefit for the Holder;




     (ii) To provide for the replacement of such Award with other rights or property selected
by the Administrator in its discretion having an aggregate value not exceeding the amount that
could have been attained upon the exercise of such Award or realization of the Holder’s rights
had such Award been currently exercisable or payable or fully vested;




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




     (iv) To provide that such Award shall be exercisable as to all shares covered thereby,
notwithstanding anything to the contrary in Section 5.3 or the provisions of such Award;




     (v) 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;




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




     (vii) To provide that, for a specified period of time prior to such event, the
restrictions imposed under an Award Agreement upon some or all shares of Restricted Stock,
Restricted Stock Units or Other Stock-Based Awards may be terminated, and, in the case of
Restricted Stock, some or all shares of such Restricted Stock may cease to be subject to
forfeiture under Section 7.4 after such event.



     (c) Subject to Sections 11.3(d) and 3.2, the Administrator may, in its discretion, include
such further provisions and limitations in any Award, agreement or certificate, as it may deem
equitable and in the best interests of the Company.



     (d) With respect to Awards which are granted to Covered Employees and are intended to qualify
as performance-based compensation under Section 162(m)(4)(C), no



23









 




adjustment or action described in this Section 11.3 or in any other provision of the Plan
shall be authorized to the extent that such adjustment or action would cause such Award to fail to
so qualify under Section 162(m)(4)(C), or any successor provisions thereto. No adjustment or action
described in this Section 11.3 or in any other provision of the Plan shall be authorized to the
extent that such adjustment or action would cause the Plan to violate Section 422(b)(1) of the
Code. Furthermore, no such adjustment or action shall be authorized to the extent such adjustment
or action would result in short-swing profits liability under Section 16 or violate the exemptive
conditions of Rule 16b-3 unless the Administrator determines that the Award is not to comply with
such exemptive conditions. The number of shares of Common Stock subject to any Award shall always
be rounded down to the next whole number.




     (e) The existence of the Plan, the Award Agreement and the Awards granted hereunder shall not
affect or restrict in any way the right or power of the Company or the stockholders of the Company
to make or authorize any adjustment, recapitalization, reorganization or other change in the
Company’s capital structure or its business, any merger or consolidation of the Company, any issue
of stock or of options, warrants or rights to purchase stock or of bonds, debentures, preferred or
prior preference stocks whose rights are superior to or affect the Common Stock or the rights
thereof or which are convertible into or exchangeable for Common Stock, or the dissolution or
liquidation of the company, or any sale or transfer of all or any part of its assets or business,
or any other corporate act or proceeding, whether of a similar character or otherwise.



     (f) No action shall be taken under this Section 11.3 which shall cause an Award to fail to
comply with Section 409A of the Code or the Treasury Regulations thereunder, to the extent
applicable to such Award.



     11.4. Approval of Plan by Stockholders. The Plan will be submitted for the approval
of the Company’s stockholders within twelve (12) months after the date of the Board’s initial
adoption of the Plan. No Awards may be granted or awarded prior to such stockholder approval. In
addition, if the Board determines that Awards other than Options or Stock Appreciation Rights which
may be granted to Covered Employees should continue to be eligible to qualify as performance-based
compensation under Section 162(m)(4)(C) of the Code, the Performance Criteria must be disclosed to
and approved by the Company’s stockholders no later than the first stockholder meeting that occurs
in the fifth year following the year in which the Company’s stockholders previously approved the
Plan.



     11.5. Tax Withholding. The Company or any Subsidiary shall have the authority and
the right to deduct or withhold, or require a Holder to remit to the Company, an amount sufficient
to satisfy federal, state, local and foreign taxes (including the Holder’s FICA obligation)
required by law to be withheld with respect to any taxable event concerning a Holder arising as a
result of this Plan. The Administrator may in its discretion and in satisfaction of the foregoing
requirement allow a Holder to elect to have the Company withhold shares of Common Stock otherwise
issuable under an Award (or allow the return of shares of Common Stock) having a Fair Market Value
equal to the



24









 




sums required to be withheld. Notwithstanding any other provision of the Plan, the number of
shares of Common Stock which may be withheld with respect to the issuance, vesting, exercise or
payment of any Award (or which may be repurchased from the Holder of such Award within six months
(or such other period as may be determined by the Administrator) after such shares of Common Stock
were acquired by the Holder from the Company) in order to satisfy the Holder’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.




     11.6. Prohibition on Repricing. Subject to Section 11.3, the Administrator shall not,
without the approval of the stockholders of the Company, authorize the amendment of any outstanding
Award to reduce its price per share. Furthermore, no Award shall be canceled and replaced with the
grant of an Award having a lesser price per share without the further approval of stockholders of
the Company. Subject to Section 11.2, the Administrator shall have the authority, without the
approval of the stockholders of the Company, to amend any outstanding award to increase the price
per share or to cancel and replace an Award with the grant of an Award having a price per share
that is greater than or equal to the price per share of the original Award.



     11.7. Forfeiture Provisions. Pursuant to its general authority to determine the
terms and conditions applicable to Awards under the Plan, the Administrator shall have the right to
provide, in the terms of Awards made under the Plan, or to require a Holder to agree by separate
written instrument, that: (a)(i) any proceeds, gains or other economic benefit actually or
constructively received by the Holder upon any receipt or exercise of the Award, or upon the
receipt or resale of any Common Stock underlying the Award, must be paid to the Company, and (ii)
the Award shall terminate and any unexercised portion of the Award (whether or not vested) shall be
forfeited, if (b)(i) a Termination of Employment or Termination of Directorship occurs prior to a
specified date, or within a specified time period following receipt or exercise of the Award, or
(ii) the Holder at any time, or during a specified time period, engages in any activity in
competition with the Company, or which is inimical, contrary or harmful to the interests of the
Company, as further defined by the Administrator or (iii) the Holder incurs a Termination of
Employment or Termination of Directorship for “cause” (as such term is defined in the discretion of
the Administrator, or as set forth in a written agreement relating to such Award between the
Company and the Holder).



     11.8. Effect of Plan upon Other Compensation Plans. The adoption of the Plan shall
not affect any other compensation or incentive plans in effect for the Company or any Subsidiary.
Nothing in the Plan shall be construed to limit the right of the Company or any Subsidiary: (a) to
establish any other forms of incentives or compensation for Employees, Directors or Consultants of
the Company or any Subsidiary, or (b) to grant or
assume options or other rights or awards otherwise than under the Plan in connection with any
proper corporate purpose including without limitation, the grant or assumption



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of options in connection with the acquisition by purchase, lease, merger, consolidation or
otherwise, of the business, stock or assets of any corporation, partnership, limited liability
company, firm or association.




     11.9. Compliance with Laws. The Plan, the granting and vesting of Awards under the
Plan and the issuance and delivery of shares of Common Stock and the payment of money under the
Plan or under Awards granted or awarded hereunder are subject to compliance with all applicable
federal, state, local and foreign laws, rules and regulations (including but not limited to
federal, state and foreign securities law and margin requirements) and to such approvals by any
listing, regulatory or governmental authority as may, in the opinion of counsel for the Company, be
necessary or advisable in connection therewith. Any securities delivered under the Plan shall be
subject to such restrictions, and the person acquiring such securities shall, if requested by the
Company, provide such assurances and representations to the Company as the Company may deem
necessary or desirable to assure compliance with all applicable legal requirements. 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 laws, rules and regulations.



     11.10. Titles. Titles are provided herein for convenience only and are not to serve
as a basis for interpretation or construction of the Plan.



     11.11. Governing Law. The Plan and any agreements hereunder shall be administered,
interpreted and enforced under the internal laws of the State of Delaware without regard to
conflicts of laws thereof.



     11.12. Section 409A. To the extent that the Administrator 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 Administrator 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 Administrator 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 Administrator 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.



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