exv10w67






Exhibit 10.67




PCTEL, INC.




1997 STOCK PLAN




(as amended and restated August 20, 2008, effective January 1, 2009)




     1. Purposes of the Plan. The purposes of this Stock Plan are:




	 	•	 	to attract and retain the best available personnel for positions of
substantial responsibility,
	 
	 	•	 	to provide additional incentive to Employees, Directors and Consultants,
	 
	 	•	 	to promote the success of the Company’s business, and
	 
	 	•	 	to ensure that the incentives contemplated by this Stock Plan comport with
all Applicable Laws.





     Awards granted under the Plan may be Incentive Stock Options, Nonstatutory Stock Options,
Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Performance Units, Performance
Shares, Dividend Equivalents and other stock or cash awards as the Administrator may determine.



     2. Definitions. As used herein, the following definitions shall apply:



          (a) “Administrator” means the Board or any of its Committees as shall be administering
the Plan, in accordance with Section 4 of the Plan.




          (b) “Applicable Laws” means the requirements relating to the administration of
equity-based awards under U. S. state corporate laws, U.S. federal and state securities laws, the
Code, any stock exchange or quotation system on which the Common Stock is listed or quoted and the
applicable laws of any foreign country or jurisdiction where Awards are, or will be, granted under
the Plan.




          (c) “Award” means, individually or collectively, a grant under the Plan of Options,
Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Performance Units, Performance
Shares, Dividend Equivalents and other stock or cash awards as the Administrator may determine.




          (d) “Award Agreement” means the written agreement setting forth the terms and
provisions applicable to each Award granted under the Plan. The Award Agreement is subject to the
terms and conditions of the Plan.




          (e) “Awarded Stock” means the Common Stock subject to an Award.




 









 





          (f) “Board” means the Board of Directors of the Company.




          (g) “Change in Control” means the consummation of any of the following transactions:




               (i) Any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act)
becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly or
indirectly, of securities of the Company representing fifty percent (50%) or more of the total
voting power represented by the Company’s then outstanding voting securities; or



               (ii) The consummation of the sale or disposition by the Company of all or substantially all of
the Company’s assets; or



               (iii) A change in the composition of the Board occurring within a two-year period, as a result
of which fewer than a majority of the directors are Incumbent Directors. “Incumbent Directors”
means directors who either (A) are Directors as of the effective date of the Plan, or (B) are
elected, or nominated for election, to the Board with the affirmative votes of at least a majority
of the Incumbent Directors at the time of such election or nomination (but will not include an
individual whose election or nomination is in connection with an actual or threatened proxy contest
relating to the election of directors to the Company); or



               (iv) The consummation of a merger or consolidation of the Company with any other corporation,
other than a merger or consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by remaining outstanding or
by being converted into voting securities of the surviving entity or its parent) at least fifty
percent (50%) of the total voting power represented by the voting securities of the Company or such
surviving entity or its parent outstanding immediately after such merger or consolidation.



          (h) “Code” means the Internal Revenue Code of 1986, as amended. Any reference to a
section of the Code herein will be a reference to any successor or amended section of the Code.




          (i) “Committee” means a committee of Directors appointed by the Board in accordance
with Section 4 of the Plan.




          (j) “Common Stock” means the common stock of the Company.




          (k) “Company” means PCTEL, Inc., a Delaware corporation.




          (l) “Consultant” means any person, including an advisor, engaged by the Company or a
Parent or Subsidiary to render services to such entity.




          (m) “Determination Date” means the latest possible date that will not jeopardize the
qualification of an Award granted under the Plan as “performance-based compensation” under Section
162(m) of the Code.




          (n) “Director” means a member of the Board.




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          (o) “Disability” means total and permanent disability as defined in Section 22(e)(3)
of the Code.




          (p) “Dividend Equivalent” means a credit, payable in cash, made at the discretion of
the Administrator, to the account of a Participant in an amount equal to the cash dividends paid on
one Share for each Share represented by an Award held by such Participant. The Dividend Equivalent
for each Share subject to an Award shall only be paid to a Participant on the vesting date for such
Share.




          (q) “Employee” means any person, including Officers and Directors, employed by the
Company or any Parent or Subsidiary of the Company. A Service Provider shall not cease to be an
Employee in the case of (i) any leave of absence approved by the Company or (ii) transfers between
locations of the Company or between the Company, its Parent, any Subsidiary, or any successor. For
purposes of Incentive Stock Options, no such leave may exceed ninety days, unless reemployment upon
expiration of such leave is guaranteed by statute or contract. If reemployment upon expiration of
a leave of absence approved by the Company is not so guaranteed, on the 181st day of such leave any
Incentive Stock Option held by the Participant shall cease to be treated as an Incentive Stock
Option and shall be treated for tax purposes as a Nonstatutory Stock Option. Neither service as a
Director nor payment of a director’s fee by the Company shall be sufficient to constitute
“employment” by the Company.




          (r) “Exchange Act” means the Securities Exchange Act of 1934, as amended.




          (s) “Fair Market Value” means, as of any date, the value of Common Stock determined as
follows:




               (i) If the Common Stock is listed on any established stock exchange or a national market
system, including without limitation the Nasdaq National Market or The Nasdaq SmallCap Market of
The Nasdaq Stock Market, its Fair Market Value shall be the closing sales price for such stock (or
the closing bid, if no sales were reported) as quoted on such exchange or system on the day of
determination, as reported in The Wall Street Journal or such other source as the Administrator
deems reliable;



               (ii) If the Common Stock is regularly quoted by a recognized securities dealer but selling
prices are not reported, the Fair Market Value of a Share of Common Stock shall be the mean between
the high bid and low asked prices for the Common Stock on the day of determination, as reported in
The Wall Street Journal or such other source as the Administrator deems reliable; or



               (iii) In the absence of an established market for the Common Stock, the Fair Market Value
shall be determined in good faith by the Administrator.



          (t) “Fiscal Year” means the fiscal year of the Company.




          (u) “Incentive Stock Option” means an Option intended to qualify as an incentive stock
option within the meaning of Section 422 of the Code and the regulations promulgated thereunder.




          (v) “Inside Director” means a Director who is an Employee.




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          (w) “Nonstatutory Stock Option” means an Option not intended to qualify as an
Incentive Stock Option.




          (x) “Notice of Grant” means a written or electronic notice evidencing certain terms
and conditions of an individual Award. The Notice of Grant is part of the Award Agreement.




          (y) “Officer” means a person who is an officer of the Company within the meaning of
Section 16 of the Exchange Act and the rules and regulations promulgated thereunder.




          (z) “Option” means a stock option granted pursuant to the Plan.




          (aa) “Option Agreement” means an agreement between the Company and a Participant
evidencing the terms and conditions of an individual Option grant. The Option Agreement is subject
to the terms and conditions of the Plan.




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




          (cc) “Parent” means a “parent corporation,” whether now or hereafter existing, as
defined in Section 424(e) of the Code.




          (dd) “Participant” means the holder of an outstanding Award granted under the Plan.




          (ee) “Performance Goals” will have the meaning set forth in Section 11 of the Plan.




          (ff) “Performance Period” means any Fiscal Year of the Company or such other period as
determined by the Administrator in its sole discretion.




          (gg) “Performance Share” means an Award denominated in Shares which may be earned in
whole or in part upon attainment of Performance Goals or other vesting criteria as the
Administrator may determine pursuant to Section 10.




          (hh) “Performance Unit” means a bookkeeping entry representing an amount equal to the
Fair Market Value of one Share, which may be earned in whole or in part upon attainment of
Performance Goals or other vesting criteria as the Administrator may determine and which may be
settled for cash, Shares or other securities or a combination of the foregoing pursuant to Section
10.




          (ii) “Period of Restriction” means the period during which the transfer of Shares of
Restricted Stock are subject to restrictions and therefore, the Shares are subject to a substantial
risk of forfeiture. Such restrictions may be based on the passage of time, the achievement of
target levels of performance, or the occurrence of other events as determined by the Administrator.




          (jj) “Plan” means this 1997 Stock Plan, as amended and restated.




          (kk) “Restricted Stock” means Shares issued pursuant to a Restricted Stock award under
Section 8 of the Plan, or issued pursuant to the early exercise of an Option.




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          (ll) “Restricted Stock Unit” means a bookkeeping entry representing an amount equal to
the Fair Market Value of one Share, granted pursuant to Section 9 of the Plan. Each Restricted
Stock Unit represents an unfunded and unsecured obligation of the Company.




          (mm) “Restricted Stock Unit Agreement” means a written or electronic agreement between
the Company and the Participant evidencing the terms and restrictions applying to an award of
Restricted Stock Units. The Restricted Stock Unit Agreement is subject to the terms and conditions
of the Plan and the Notice of Grant.




          (nn) “Rule 16b-3” means Rule 16b-3 of the Exchange Act or any successor to Rule 16b-3,
as in effect when discretion is being exercised with respect to the Plan.




          (oo) “Section 16(b) “ means Section 16(b) of the Exchange Act.




          (pp) “Service Provider” means an Employee, Director or Consultant.




          (qq) “Share” means a share of the Common Stock, as adjusted in accordance with Section
15 of the Plan.




          (rr) “Stock Appreciation Right” or “SAR” means an Award granted pursuant to
Section 7 hereof.




          (ss) “Subsidiary” means a “subsidiary corporation”, whether now or hereafter existing,
as defined in Section 424(f) of the Code.




     3. Stock Subject to the Plan.



          (a) Stock Subject to the Plan. Subject to the provisions of Section 15 of the Plan,
the maximum aggregate number of Shares with respect to which Awards may be made under the Plan
after the effective date of this amendment and restatement is the sum of (a) 2,300,000 Shares, plus
(b) any Shares returned (or that would have otherwise returned) to the Plan on or after the date of
Board approval of the amendment and restatement of the Plan as a result of termination of options
or repurchase of Shares issued under such plan prior to the date of Board approval of the amendment
and restatement of the Plan, plus (c) any Shares returned (or that would have otherwise returned)
to the Company’s 1998 Director Option Plan on or after the date of Board approval of the amendment
and restatement of the Plan as a result of termination of options or repurchase of Shares issued
under such plan. The Shares may be authorized, but unissued, or reacquired Common Stock.




          (b) Lapsed Awards. If an Award expires or becomes unexercisable without having been
exercised in full, or, with respect to Restricted Stock, Restricted Stock Units, Performance Shares
or Performance Units, is forfeited to or repurchased by the Company, the unpurchased Shares (or for
Awards other than Options and Stock Appreciation Rights, the forfeited or repurchased Shares) which
were subject thereto will become available for future grant or sale under the Plan (unless the Plan
has terminated). With respect to SARs, only shares actually issued pursuant to a SAR shall cease
to be available under the Plan; all remaining shares under SARs shall remain available for future
grant or sale under the Plan (unless the Plan has terminated). However, Shares that have actually
been issued under the Plan under any Award shall not be returned to the Plan and shall not become
available for future distribution under the Plan, except that if unvested
Shares of Restricted Stock, Restricted Stock Units, Performance Shares or Performance Units are




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repurchased by the Company or are forfeited to the Company, such Shares will become available
for future grant under the Plan. Shares used to pay the tax and exercise price of an Award will
not become available for future grant or sale under the Plan. To the extent an Award under the
Plan is paid out in cash rather than Shares, such cash payment will not result in reducing the
number of Shares available for issuance under the Plan.




     4. Administration of the Plan.



          (a) Procedure.




               (i) Multiple Administrative Bodies. The Plan may be administered by different
Committees with respect to different groups of Service Providers.



               (ii) Section 162(m). To the extent that the Administrator determines it to be
desirable to qualify Awards granted hereunder as “performance-based compensation” within the
meaning of Section 162(m) of the Code, the Plan shall be administered by a Committee of two or more
“outside directors” within the meaning of Section 162(m) of the Code.



               (iii) Rule 16b-3. To the extent desirable to qualify transactions hereunder as exempt
under Rule 16b-3, the transactions contemplated hereunder shall be structured to satisfy the
requirements for exemption under Rule 16b-3.



               (iv) Other Administration. Other than as provided above, the Plan shall be
administered by (A) the Board or (B) a Committee, which committee shall be constituted to satisfy
Applicable Laws.



          (b) Powers of the Administrator. Subject to the provisions of the Plan, and in the
case of a Committee, subject to the specific duties delegated by the Board to such Committee, the
Administrator shall have the authority, in its discretion:




               (i) to determine the Fair Market Value;



               (ii) to select the Service Providers to whom Awards may be granted hereunder;



               (iii) to determine the number of shares of Common Stock to be covered by each Award granted
hereunder;



               (iv) to approve forms of agreement for use under the Plan;



               (v) to determine the terms and conditions, not inconsistent with the terms of the Plan, of any
Award granted hereunder. Such terms and conditions include, but are not limited to, the exercise
price, the time or times when Awards may be exercised (which may be based on performance criteria),
any vesting acceleration or waiver of forfeiture restrictions, and any restriction or limitation
regarding any Award or the shares of Common Stock relating thereto, based in each case on such
factors as the Administrator, in its sole discretion, shall determine; provided, however, that
unless otherwise determined by the Administrator, any extension of the term or exercise period
of an Award shall comply with Section 409A of the Code and any temporary, proposed or final
Treasury Regulations and guidance promulgated thereunder;



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               (vi) to construe and interpret the terms of the Plan and Awards granted pursuant to the Plan;



               (vii) to prescribe, amend and rescind rules and regulations relating to the Plan, including
rules and regulations relating to sub-plans established for the purpose of qualifying for preferred
tax treatment under foreign tax laws;



               (viii) to modify or amend each Award (subject to Section 20(c) of the Plan), including the
discretionary authority to extend the post-termination exercisability period of Options and SARs
longer than is otherwise provided for in the Plan. Notwithstanding the previous sentence, the
Administrator may not modify or amend an Option or Stock Appreciation Right to reduce the exercise
price of such Option or Stock Appreciation Right after it has been granted (except for adjustments
made pursuant to Section 15 of the Plan) nor may the Administrator cancel any outstanding Option or
Stock Appreciation Right and replace it with a new Option or Stock Appreciation Right with a lower
exercise price, unless, in either case, such action is approved by the Company’s stockholders;



               (ix) to determine whether Dividend Equivalents will be granted in connection with an Award;



               (x) to allow Participants to satisfy withholding tax obligations by electing to have the
Company withhold from the Shares to be issued upon exercise of an Award that number of Shares
having a Fair Market Value equal to the amount required to be withheld. The Fair Market Value of
the Shares to be withheld shall be determined on the date that the amount of tax to be withheld is
to be determined. All elections by a Participant to have Shares withheld for this purpose shall be
made in such form and under such conditions as the Administrator may deem necessary or advisable;



               (xi) to authorize any person to execute on behalf of the Company any instrument required to
effect the grant of an Award previously granted by the Administrator;



               (xii) to make all other determinations deemed necessary or advisable for administering the
Plan.



          (c) Section 409A. Unless otherwise determined by the Administrator, the Administrator
shall comply with Section 409A of the Code and any temporary, proposed or final Treasury
Regulations and guidance promulgated thereunder in taking or permitting any actions under the Plan
that would result in a deferral of compensation subject to Section 409A of the Code.




          (d) Effect of Administrator’s Decision. The Administrator’s decisions, determinations
and interpretations shall be final and binding on all Participants and any other holders of Awards.




     5. Eligibility. Nonstatutory Stock Options, Stock Appreciation Rights, Restricted
Stock, Restricted Stock Units, Performance Units, Performance Shares, Dividend Equivalents and such
other stock or cash awards as the Administrator determines may be granted to Service
Providers. Incentive Stock Options may be granted only to Employees.



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     6. Options.



          (a) Limitations.




               (i) Each Option shall be designated in the Option Agreement as either an Incentive Stock
Option or a Nonstatutory Stock Option. However, notwithstanding such designation, to the extent
that the aggregate Fair Market Value of the Shares with respect to which Incentive Stock Options
are exercisable for the first time by the Participant during any calendar year (under all plans of
the Company and any Parent or Subsidiary) exceeds $100,000, such Options shall be treated as
Nonstatutory Stock Options. For purposes of this Section 6(a), Incentive Stock Options shall be
taken into account in the order in which they were granted. The Fair Market Value of the Shares
shall be determined as of the time the Option with respect to such Shares is granted.



          (b) The following limitations shall apply to grants of Options:



               (i) No Service Provider shall be granted, in any Fiscal Year, Options to purchase more than
300,000 Shares.



               (ii) In connection with his or her initial service, a Service Provider may be granted Options
to purchase up to an additional 150,000 Shares which shall not count against the limit set forth in
subsection (i) above.



               (iii) The foregoing limitations shall be adjusted proportionately in connection with any
change in the Company’s capitalization as described in Section 15 of the Plan.



               (iv) If an Option is canceled in the same Fiscal Year in which it was granted (other than in
connection with a transaction described in Section 15 of the Plan), the canceled Option will be
counted against the limits set forth in subsections (i) and (ii) above.



               (v) The exercise price for an Option may not be reduced. This will include, without
limitation, a repricing of the Option as well as an Option exchange program whereby the Participant
agrees to cancel an existing Option in exchange for an Option, Stock Appreciation Right or other
Award.



          (c) Term of Option. The term of each Option shall be stated in the Option Agreement.
In the case of an Incentive Stock Option, the term shall be ten (10) years from the date of grant
or such shorter term as may be provided in the Option Agreement. Moreover, in the case of an
Incentive Stock Option granted to a Participant who, at the time the Incentive Stock Option is
granted, owns stock representing more than ten percent (10%) of the total combined voting power of
all classes of stock of the Company or any Parent or Subsidiary, the term of the Incentive Stock
Option shall be five (5) years from the date of grant or such shorter term as may be provided in
the Option Agreement.




          (d) Option Exercise Price and Consideration.




               (i) Exercise Price. The per share exercise price for the Shares to be issued pursuant
to exercise of an Option shall be determined by the Administrator, but will be no less than 100% of
the Fair Market Value per Share on the date of grant. In addition, in the case of an Incentive
Stock Option granted to an Employee who, at the time the Incentive Stock Option is



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granted, owns
stock representing more than ten percent (10%) of the voting power of all classes of stock of the
Company or any Parent or Subsidiary, the per Share exercise price will be no less than 110% of the
Fair Market Value per Share on the date of grant. Notwithstanding the foregoing provisions of this
Section 6(d), Options may be granted with a per Share exercise price of less than 100% of the Fair
Market Value per Share on the date of grant pursuant to a transaction described in, and in a manner
consistent with, Section 424(a) of the Code.



          (e) Waiting Period and Exercise Dates. At the time an Option is granted, the
Administrator shall fix the period within which the Option may be exercised and shall determine any
conditions which must be satisfied before the Option may be exercised.




          (f) Form of Consideration. The Administrator shall determine the acceptable form of
consideration for exercising an Option, including the method of payment. In the case of an
Incentive Stock Option, the Administrator shall determine the acceptable form of consideration at
the time of grant. To the extent consistent with Applicable Laws, such consideration may consist
entirely of:




               (i) cash;



               (ii) check;



               (iii) promissory note;



               (iv) other Shares which (A) in the case of Shares acquired upon exercise of an option, have
been owned by the Participant for more than six months on the date of surrender, and (B) have a
Fair Market Value on the date of surrender equal to the aggregate exercise price of the Shares as
to which said Option shall be exercised;



               (v) consideration received by the Company under a cashless exercise program implemented by the
Company in connection with the Plan;



               (vi) a reduction in the amount of any Company liability to the Participant, including any
liability attributable to the Participant’s participation in any Company-sponsored deferred
compensation program or arrangement;



               (vii) any combination of the foregoing methods of payment; or



               (viii) such other consideration and method of payment for the issuance of Shares to the extent
permitted by Applicable Laws.



          (g) Exercise of Option.




               (i) Procedure for Exercise; Rights as a Stockholder. Any Option granted hereunder
shall be exercisable according to the terms of the Plan and at such times and under such conditions
as determined by the Administrator and set forth in the Option Agreement. Unless the
Administrator provides otherwise, vesting of Options granted hereunder shall be tolled during
any unpaid leave of absence. An Option may not be exercised for a fraction of a Share.



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               An Option shall be deemed exercised when the Company receives: (i) notice of exercise (in such
form as the Administrator may specify from time to time) from the person entitled to exercise the
Option, and (ii) full payment for the Shares with respect to which the Option is exercised. Full
payment may consist of any consideration and method of payment authorized by the Administrator and
permitted by the Option Agreement and the Plan. Shares issued upon exercise of an Option shall be
issued in the name of the Participant or, if requested by the Participant, in the name of the
Participant and his or her spouse. Until the Shares are issued (as evidenced by the appropriate
entry on the books of the Company or of a duly authorized transfer agent of the Company), no right
to vote or receive dividends or any other rights as a stockholder shall exist with respect to the
Optioned Stock, notwithstanding the exercise of the Option. The Company shall issue (or cause to
be issued) such Shares promptly after the Option is exercised. No adjustment will be made for a
dividend or other right for which the record date is prior to the date the Shares are issued,
except as provided in Section 15 of the Plan.



               Exercising an Option in any manner shall decrease the number of Shares thereafter available,
both for purposes of the Plan and for sale under the Option, by the number of Shares as to which
the Option is exercised.



               (ii) Termination of Relationship as a Service Provider. If a Participant ceases to be
a Service Provider, other than upon the Participant’s death or Disability, the Participant may
exercise his or her Option within such period of time as is specified in the Option Agreement to
the extent that the Option is vested on the date of termination (but in no event later than the
expiration of the term of such Option as set forth in the Option Agreement). In the absence of a
specified time in the Option Agreement, the Option shall remain exercisable for three (3) months
following the Participant’s termination. If, on the date of termination, the Participant is not
vested as to his or her entire Option, the Shares covered by the unvested portion of the Option
shall revert to the Plan. If, after termination, the Participant does not exercise his or her
Option within the time specified by the Administrator, the Option shall terminate, and the Shares
covered by such Option shall revert to the Plan.



               (iii) Disability of Participant. If a Participant ceases to be a Service Provider as
a result of the Participant’s Disability, the Participant may exercise his or her Option within
such period of time as is specified in the Option Agreement to the extent the Option is vested on
the date of termination (but in no event later than the expiration of the term of such Option as
set forth in the Option Agreement). In the absence of a specified time in the Option Agreement,
the Option shall remain exercisable for twelve (12) months following the Participant’s termination.
If, on the date of termination, the Participant is not vested as to his or her entire Option, the
Shares covered by the unvested portion of the Option shall revert to the Plan. If, after
termination, the Participant does not exercise his or her Option within the time specified herein,
the Option shall terminate, and the Shares covered by such Option shall revert to the Plan.



               (iv) Death of Participant. If a Participant dies while a Service Provider, the Option
may be exercised within such period of time as is specified in the Option Agreement (but in no
event later than the expiration of the term of such Option as set forth in the Notice of Grant), by
the Participant’s estate or by a person who acquires the right to exercise the Option by bequest or
inheritance, but only to the extent that the Option is vested on the date of death. In the
absence of a specified time in the Option Agreement, the Option shall remain exercisable for twelve
(12) months following the Participant’s termination. If, at the time of death, the Participant is
not vested as to his




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or her entire Option, the Shares covered by the unvested portion of the Option
shall immediately revert to the Plan. The Option may be exercised by the executor or administrator
of the Participant’s estate or, if none, by the person(s) entitled to exercise the Option under the
Participant’s will or the laws of descent or distribution. If the Option is not so exercised
within the time specified herein, the Option shall terminate, and the Shares covered by such Option
shall revert to the Plan.




               (v) Buyout Provisions. The Administrator may at any time offer to buy out for a
payment in cash or Shares an Option previously granted based on such terms and conditions as the
Administrator shall establish and communicate to the Participant at the time that such offer is
made.



     7. Stock Appreciation Rights.



          (a) Grant of SARs. Subject to the terms and conditions of the Plan, SARs may be
granted to Participants at any time and from time to time as shall be determined by the
Administrator, in its sole discretion.




          (b) Number of Shares. The Administrator will have complete discretion to determine
the number of Stock Appreciation Rights granted to any Participant, provided that during any Fiscal
Year, no Participant will be granted Stock Appreciation Rights covering more than 300,000 Shares.
Notwithstanding the foregoing limitation, in connection with a Participant’s initial service as an
Employee, an Employee may be granted Stock Appreciation Rights covering up to an additional 150,000
Shares.




          (c) Exercise Price and other Terms. The Administrator, subject to the provisions of
the Plan, shall have complete discretion to determine the terms and conditions of SARs granted
under the Plan; provided, however, that no SAR may have a term of more than ten (10) years from the
date of grant. In addition, the per Share exercise price of a SAR shall be no less than 100% of
the Fair Market Value per Share on the date of grant.




          (d) Payment of SAR Amount. Upon exercise of a SAR, a Participant shall be entitled to
receive payment from the Company in an amount determined by multiplying:




               (i) The difference between the Fair Market Value of a Share on the date of exercise over the
exercise price; times



               (ii) the number of Shares with respect to which the SAR is exercised.



          (e) Payment upon Exercise of SAR. At the discretion of the Administrator, payment for
a SAR may be in cash, Shares or a combination thereof.




          (f) SAR Agreement. Each SAR grant shall be evidenced by an Award Agreement that shall
specify the exercise price, the term of the SAR, the conditions of exercise, and such other terms
and conditions as the Administrator, in its sole discretion, shall determine.




          (g) Expiration of SARs. A SAR granted under the Plan shall expire upon the date
determined by the Administrator, in its sole discretion, and set forth in the Award Agreement.




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          (h) Termination of Relationship as a Service Provider. If a Participant ceases to be
a Service Provider, other than upon the Participant’s death or Disability, the Participant may
exercise his or her SAR within such period of time as is specified in the SAR Agreement to the
extent that the SAR is vested on the date of termination (but in no event later than the expiration
of the term of such SAR as set forth in the SAR Agreement). In the absence of a specified time in
the SAR Agreement, the SAR shall remain exercisable for three (3) months following the
Participant’s termination. If, on the date of termination, the Participant is not vested as to his
or her entire SAR, the Shares covered by the unvested portion of the SAR shall revert to the Plan.
If, after termination, the Participant does not exercise his or her SAR within the time specified
by the Administrator, the SAR shall terminate, and the Shares covered by such SAR shall revert to
the Plan.




          (i) Disability of Participant. If a Participant ceases to be a Service Provider as a
result of the Participant’s Disability, the Participant may exercise his or her SAR within such
period of time as is specified in the SAR Agreement to the extent the SAR is vested on the date of
termination (but in no event later than the expiration of the term of such SAR as set forth in the
SAR Agreement). In the absence of a specified time in the SAR Agreement, the SAR shall remain
exercisable for twelve (12) months following the Participant’s termination. If, on the date of
termination, the Participant is not vested as to his or her entire SAR, the Shares covered by the
unvested portion of the SAR shall revert to the Plan. If, after termination, the Participant does
not exercise his or her SAR within the time specified herein, the SAR shall terminate, and the
Shares covered by such SAR shall revert to the Plan.




          (j) Death of Participant. If a Participant dies while a Service Provider, the SAR may
be exercised within such period of time as is specified in the SAR Agreement (but in no event later
than the expiration of the term of such SAR as set forth in the Notice of Grant), by the
Participant’s estate or by a person who acquires the right to exercise the SAR by bequest or
inheritance, but only to the extent that the SAR is vested on the date of death. In the absence of
a specified time in the SAR Agreement, the SAR shall remain exercisable for twelve (12) months
following the Participant’s termination. If, at the time of death, the Participant is not vested
as to his or her entire SAR, the Shares covered by the unvested portion of the SAR shall
immediately revert to the Plan. The SAR may be exercised by the executor or administrator of the
Participant’s estate or, if none, by the person(s) entitled to exercise the SAR under the
Participant’s will or the laws of descent or distribution. If the SAR is not so exercised within
the time specified herein, the SAR shall terminate, and the Shares covered by such SAR shall revert
to the Plan.




          (k) Buyout Provisions. The Administrator may at any time offer to buy out for a
payment in cash or Shares an SAR previously granted based on such terms and conditions as the
Administrator shall establish and communicate to the Participant at the time that such offer is
made.




     8. Restricted Stock.



          (a) Grant of Restricted Stock. Subject to the terms and provisions of the Plan, the
Administrator, at any time and from time to time, may grant Shares of
Restricted Stock to Service
Providers in such amounts as the Administrator, in its sole discretion, will determine.



          (b) Restricted Stock Agreement. Each Award of Restricted Stock will be evidenced by
an Award Agreement that will specify the Period of Restriction, the number of Shares granted, and
such other terms and conditions as the Administrator, in its sole discretion, will



12









 






determine.
Notwithstanding the foregoing sentence, during any Fiscal Year no Participant will receive more
than an aggregate of 150,000 Shares of Restricted Stock; provided, however, that in connection with
a Participant’s initial service as an Employee, an Employee may be granted an aggregate of up to an
additional 75,000 Shares of Restricted Stock. Unless the Administrator determines otherwise,
Shares of Restricted Stock will be held by the Company as escrow agent until the restrictions on
such Shares have lapsed.




          (c) Transferability. Except as provided in this Section 8, Shares of Restricted Stock
may not be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated until the
end of the applicable Period of Restriction.




          (d) Other Restrictions. The Administrator, in its sole discretion, may impose such
other restrictions on Shares of Restricted Stock as it may deem advisable or appropriate.




          (e) Removal of Restrictions. Except as otherwise provided in this Section 8, Shares
of Restricted Stock covered by each Restricted Stock grant made under the Plan will be released
from escrow as soon as practicable after the last day of the Period of Restriction. The
Administrator, in its discretion, may accelerate the time at which any restrictions will lapse or
be removed.




          (f) Voting Rights. During the Period of Restriction, Service Providers holding Shares
of Restricted Stock granted hereunder may exercise full voting rights with respect to those Shares,
unless the Administrator determines otherwise.




          (g) Dividends and Other Distributions. During the Period of Restriction, Service
Providers holding Shares of Restricted Stock will be entitled to receive all dividends and other
distributions paid with respect to such Shares unless otherwise provided in the Award Agreement.
If any such dividends or distributions are paid in Shares, the Shares will be subject to the same
restrictions on transferability and forfeitability as the Shares of Restricted Stock with respect
to which they were paid.




          (h) Return of Restricted Stock to Company. On the date set forth in the Award
Agreement, the Restricted Stock for which restrictions have not lapsed will revert to the Company
and again will become available for grant under the Plan.




     9. Restricted Stock Units.



          (a) Grant. Restricted Stock Units may be granted at any time and from time to time as
determined by the Administrator. Each Restricted Stock Unit grant will be evidenced by an
Award Agreement that will specify such other terms and conditions as the Administrator, in its
sole discretion, will determine, including all terms, conditions, and restrictions related to the
grant, the number of Restricted Stock Units and the form of payout, which, subject to Section 9(d),
may be left to the discretion of the Administrator. Notwithstanding anything to the contrary in
this subsection (a), during any Fiscal Year, no Participant will receive more than an aggregate of
150,000 Restricted
Stock Units; provided, however, that in connection with a Participant’s initial service as an
Employee, an Employee may be granted an aggregate of up to an additional 75,000 Restricted Stock
Units.




13









 








          (b) Vesting Criteria and Other Terms. The Administrator will set vesting criteria in
its discretion, which, depending on the extent to which the criteria are met, will determine the
number of Restricted Stock Units that will be paid out to the Participant. After the grant of
Restricted Stock Units, the Administrator, in its sole discretion, may reduce or waive any
restrictions for such Restricted Stock Units. Each Award of Restricted Stock Units will be
evidenced by an Award Agreement that will specify the vesting criteria, and such other terms and
conditions as the Administrator, in its sole discretion, will determine.




          (c) Earning Restricted Stock Units. Upon meeting the applicable vesting criteria, the
Participant will be entitled to receive a payout as specified in the Award Agreement.
Notwithstanding the foregoing, at any time after the grant of Restricted Stock Units, the
Administrator, in its sole discretion, may reduce or waive any vesting criteria that must be met to
receive a payout.




          (d) Form and Timing of Payment. Payment of earned Restricted Stock Units will be made
as soon as practicable after the date(s) set forth in the Award Agreement. The Administrator, in
its sole discretion, may pay earned Restricted Stock Units in cash, Shares, or a combination
thereof. Shares represented by Restricted Stock Units that are fully paid in cash again will be
available for grant under the Plan.




          (e) Cancellation. On the date set forth in the Award Agreement, all unearned
Restricted Stock Units will be forfeited to the Company.




     10. Performance Units and Performance Shares.



          (a) Grant of Performance Units/Shares. Performance Units and Performance Shares may
be granted to Service Providers at any time and from time to time, as will be determined by the
Administrator, in its sole discretion. The Administrator will have complete discretion in
determining the number of Performance Units/Shares granted to each Participant provided that during
any Fiscal Year, (a) no Participant will receive Performance Units having an initial value greater
than $500,000, and (b) no Participant will receive more than 150,000 Performance Shares.
Notwithstanding the foregoing limitation, in connection with a Participant’s initial service as an
Employee, an Employee may be granted up to an additional 75,000 Performance Shares.




          (b) Value of Performance Units/Shares. Each Performance Unit will have an initial
value that is established by the Administrator on or before the date of grant. Each Performance
Share will have an initial value equal to the Fair Market Value of a Share on the date of grant.




          (c) Performance Objectives and Other Terms. The Administrator will set performance
objectives or other vesting provisions (including, without limitation, continued status as
a Service Provider) in its discretion which, depending on the extent to which they are met,
will determine the number or value of Performance Units/Shares that will be paid out to the
Participant. The Administrator may set performance objectives based upon the achievement of
Company-wide, divisional, or individual goals, or any other basis determined by the Administrator
in its discretion. Each Award of Performance Units/Shares will be evidenced by an Award Agreement
that will specify
the Performance Period, and such other terms and conditions as the Administrator, in its sole
discretion, will determine.




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          (d) Earning of Performance Units/Shares. After the applicable Performance Period has
ended, the holder of Performance Units/Shares will be entitled to receive a payout of the number of
Performance Units/Shares earned by the Participant over the Performance Period, to be determined as
a function of the extent to which the corresponding performance objectives or other vesting
provisions have been achieved. After the grant of a Performance Unit/Share, the Administrator, in
its sole discretion, may reduce or waive any performance objectives or other vesting provisions for
such Performance Unit/Share.




          (e) Form and Timing of Payment of Performance Units/Shares. Payment of earned
Performance Units/Shares will be made as soon as practicable after the expiration of the applicable
Performance Period. The Administrator, in its sole discretion, may pay earned Performance
Units/Shares in the form of cash, in Shares (which have an aggregate Fair Market Value equal to the
value of the earned Performance Units/Shares at the close of the applicable Performance Period) or
in a combination thereof.




          (f) Cancellation of Performance Units/Shares. On the date set forth in the Award
Agreement, all unearned or unvested Performance Units/Shares will be forfeited to the Company, and
again will be available for grant under the Plan.




     11. Performance Goals. Awards of Restricted Stock, Restricted Stock Units,
Performance Shares and Performance Units and other incentives under the Plan may be made subject to
the attainment of performance goals relating to one or more business criteria within the meaning of
Section 162(m) of the Code and may provide for a targeted level or levels of achievement
(“Performance Goals”) including



          (a) cash flow;




          (b) cash position;




          (c) earnings before interest and taxes;




          (d) earnings before interest, taxes, depreciation and amortization;




          (e) earnings per Share;




          (f) economic profit;




          (g) economic value added;




          (h) equity or stockholder’s equity;




          (i) market share;




          (j) net income;




          (k) net profit;




          (l) net sales;




          (m) operating earnings;




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          (n) operating income;




          (o) profit before tax;




          (p) ratio of debt to debt plus equity;




          (q) ratio of operating earnings to capital spending;




          (r) return on equity;




          (s) return on net assets;




          (t) return on sales, revenue, sales growth; or




          (u) total return to stockholders.




               (i) Any Performance Goals may be used to measure the performance of the Company as a whole or
a business unit of the Company and may be measured relative to a peer group or index. The
Performance Goals may differ from Participant to Participant and from Award to Award. Prior to the
Determination Date, the Administrator will determine whether any significant element(s) will be
included in or excluded from the calculation of any Performance Goal with respect to any
Participant. In all other respects, Performance Goals will be calculated in accordance with the
Company’s financial statements, generally accepted accounting principles, or under a methodology
established by the Administrator prior to the issuance of an Award, which is consistently applied
and identified in the financial statements, including footnotes, the management discussion and
analysis section of the Company’s annual report, or the minutes of the Board.



     12. Automatic Awards to Outside Directors. All grants of Restricted Stock to Outside
Directors under this Section 12 shall be automatic and non-discretionary and shall be made in
accordance with the following provisions:



          (a) No person shall have the discretion to select which Outside Directors shall be granted
Restricted Stock or to determine the number of Shares to be included in the Awards of Restricted
Stock granted to Outside Directors.




          (b) Each Outside Director shall be automatically granted Shares of Restricted Stock with an aggregate Fair Market Value on the date of grant of $50,000 (a “First Award”) upon such date on which such person first becomes an Outside Director, whether through election by the stockholders of the Company or appointment by the Board to fill a vacancy; provided, however, that an Inside Director who ceases to be an Inside Director but who remains a Director shall not receive a First Award.




          (c) Each Outside Director subsequently shall be automatically granted Shares of Restricted Stock with an aggregate Fair Market Value on the date of grant of $35,000 (a “Subsequent Award”) on the date of the annual meeting of stockholders at which (i) if such Outside Director’s position on the Board is subject to stockholder approval, such director is re-elected to the Board, or (ii) if the Outside Director’s position is not subject to stockholder approval, such director is continuing as a member of the Board.





16











 





          (d) Each Outside Director who serves either as the Lead Director of the Board or as a member
and/or chair of the Audit Committee, the Compensation Committee or the Nominating and Governance
Committee of the Board shall be entitled to additional Shares of Restricted Stock with an aggregate
Fair Market Value (an “Additional Service Award”) on the date of grant as follows:




	 	 	 	 	 
	Position	 	Fair Market Value
	Audit Committee Member
	 	$	5,000	 
	Audit Committee Chair
	 	$	10,000	 
	Compensation Committee Member
	 	$	5,000	 
	Compensation Committee Chair
	 	$	9,000	 
	Nominating and Governance Committee Member
	 	$	5,000	 
	Nominating and Governance Committee Chair
	 	$	7,000	 
	Lead Director
	 	$	10,000	 






          (e) The terms of a First Award, a Subsequent Award and an Additional Service Award shall be
as follows:




               (i) Subject to Section 15 of the Plan, the First Award shall be subject to time-based
restrictions that shall lapse as to thirty-three and one-third percent (33-1/3%) of the Shares in
the First Award on each anniversary of its date of grant, provided that the Participant continues
to serve as a Director on such dates.



               (ii) Each Subsequent Award and Additional Service Award shall not be subject to any
time-based or other similar restrictions in favor of the Company.



          (f) When calculating the number of Shares that will be subject to a grant under this Section
12, in all cases, the number of Shares shall be determined by dividing the aggregate Fair Market
Value by the Fair Market Value of a Share on the date of grant, and rounding down. The aggregate
Fair Market Value in respect of Awards of Restricted Stock under this Section 12 may be increased
or decreased from time to time by the Administrator.




     13. Leaves of Absence. Unless the Administrator provides otherwise, vesting of Awards
granted hereunder will be suspended during any unpaid leave of absence. A Service Provider will
not cease to be an Employee in the case of (i) any leave of absence approved by the Company or
(ii) transfers between locations of the Company or between the Company and its Affiliates. For
purposes of Incentive Stock Options, no such leave may exceed ninety (90) days, unless reemployment
upon expiration of such leave is guaranteed by statute or contract. If reemployment upon
expiration of a leave of absence approved by the Company is not so guaranteed, then three (3)
months following the ninety-first (91st) day of such leave any Incentive Stock Option
held by the Participant will cease to be treated as an Incentive Stock Option and will be treated
for tax purposes as a Nonstatutory Stock Option.



17









 





     14. Non-Transferability of Awards. Unless determined otherwise by the Administrator,
an Award may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in any
manner other than by will or by the laws of descent or distribution and may be exercised, during
the lifetime of the recipient, only by the recipient. If the Administrator makes an Award
transferable, such Award shall contain such additional terms and conditions as the Administrator
deems appropriate.



     15. Adjustments Upon Changes in Capitalization, Dissolution, or Change in Control.



          (a) Changes in Capitalization. Subject to any required action by the stockholders of
the Company, the number of shares of Common Stock covered by each outstanding Award, the number of
shares of Common Stock which have been authorized for issuance under the Plan but as to which no
Awards have yet been granted or which have been returned to the Plan upon cancellation or
expiration of an Award, the price per share (if any) of Common Stock covered by each such
outstanding Award, the numerical Share limits set forth in Sections 3, 6, 7, 8, 9 and 10 of the
Plan, and the number of Shares automatically awarded to Outside Directors under Section 12 of the
Plan, shall be proportionately adjusted for any change in or increase or decrease in the number of
issued shares of Common Stock resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other change or increase or decrease in
the number of issued shares of Common Stock effected without receipt of consideration by the
Company; provided, however, that conversion of any convertible securities of the Company shall not
be deemed to have been “effected without receipt of consideration.” Such adjustment shall be made
by the Board, whose determination in that respect shall be final, binding and conclusive. Except
as expressly provided herein, 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 or price of shares of Common Stock subject to an
Award.




          (b) Dissolution or Liquidation. In the event of the proposed dissolution or
liquidation of the Company, the Administrator shall notify each Participant as soon as practicable
prior to the effective date of such proposed transaction. The Administrator in its discretion may
provide for a Participant to have the right to exercise his or her Award until ten (10) days prior
to such transaction as to all of the Awarded Stock covered thereby, including Shares as to which
the Award would not otherwise be exercisable. In addition, the Administrator may provide that any
Company repurchase option or forfeiture rights shall lapse 100%, and that any Award vesting shall
accelerate 100%, provided the proposed dissolution or liquidation takes place at the time and in
the manner contemplated. To the extent it has not been previously exercised (with respect to
Options, and SARs) or vested (with respect to Restricted Stock), an Award will terminate
immediately prior to the consummation of such proposed action.




          (c) Change in Control.




               (i) Assumption



                    (A) In the event of a Change in Control, each outstanding Award (including any related
Dividend Equivalent), other than an Award that vests, is earned or paid-out upon the satisfaction
of one or more Performance Goals, shall be assumed or an equivalent Award substituted by the
successor corporation or a Parent or Subsidiary of the successor corporation (the “Successor
Corporation”).



18









 





                    (B) For the purposes of this subsection, an Award shall be considered assumed if, following
the Change in Control, the Award confers the right to purchase or receive, for each Share of
Awarded Stock subject to the Award immediately prior to the Change in Control, the consideration
(whether stock, cash, or other securities or property) received in the Change in Control by holders
of Common Stock for each Share held on the effective date of the transaction (and if holders were
offered a choice of consideration, the type of consideration chosen by the holders of a majority of
the outstanding Shares); provided, however, that if such consideration received in the Change in
Control is not solely common stock of the Successor Corporation, the Administrator may, with the
consent of the Successor Corporation, provide for the consideration to be received upon the
exercise of an Option or Stock Appreciation Right, for each Share subject to such Award to be
solely common stock of the Successor Corporation equal in fair market value to the per share
consideration received by holders of Common Stock in the Change in Control.



          (ii) Non-Assumption




                    (A) Non-Performance Based Awards. In the event that the Successor Corporation refuses
to assume or substitute for the Award, the Participant shall fully vest in and have the right to
exercise the Award as to all of the Awarded Stock, including Shares as to which such Awards would
not otherwise be vested or exercisable. Additionally, all restrictions on Restricted Stock will
lapse. Note that this subsection (A) does not apply to any Award that vests, is earned or paid-out
upon the satisfaction of one or more Performance Goals.



                    (B) Performance-Based Awards. With respect to any Restricted Stock, Restricted Stock
Unit, Performance Share, Performance Unit, or other Award that vests, is earned or paid-out upon
the satisfaction of one or more Performance Goals all Performance Goals or other vesting criteria
will be deemed achieved at target levels and all other terms and conditions met (see subsection (D)
below for discussion of payment for performance-based awards).



                    (C) Notice. If an Award becomes fully vested and exercisable in lieu of assumption or
substitution in the event of a Change in Control, the Administrator shall notify the Participant in
writing or electronically that the Award shall be fully vested and exercisable for a period of
fifteen (15) days from the date of such notice, and the Award shall terminate upon the expiration
of such period.



                    (D) Pro-Ration. If the Change in Control occurs during a Performance Period while the
Participant (other than an Outside Director) is a Service Provider, the Participant will receive
payment of a pro-rated amount of the performance-based Award that would have actually been earned
had the Participant remained a Service Provider through the end of the Performance Period based on
the amount of time the Participant was a Service Provider during the Performance Period before the
Change in Control. Such payment pro-rated amount shall be paid within thirty (30) days of the
consummation of the Change in Control.



          (iii) Outside Directors. With respect to Awards granted to Outside Directors, in the event of
a Change of Control, the Participant shall fully vest in and have the right to exercise the Award
as to all of the Awarded Stock, including Shares as to which such Awards would not otherwise be
vested or exercisable, all restrictions on Restricted Stock will lapse, and, with respect to
Restricted Stock Units, Performance Shares and Performance Units, all Performance Goals or other
vesting criteria will be deemed achieved at target levels and all other terms and




19









 




conditions met. The Outside Director will receive payment of a pro-rated amount of the
Performance Shares, Performance Units, or other performance-based Award that would have actually
been earned had the Outside Director remained a Service Provider through the end of the Performance
Period based on the amount of time the Outside Director was a Service Provider during the
Performance Period before the Change in Control




     16. Tax Withholding.



          (a) Withholding Requirements. Prior to the delivery of any Shares or cash pursuant to
an Award (or exercise thereof), the Company will have the power and the right to deduct or
withhold, or require a Participant to remit to the Company, an amount sufficient to satisfy
federal, state, local, foreign or other taxes (including the Participant’s FICA obligation)
required to be withheld with respect to such Award (or exercise thereof).




          (b) Withholding Arrangements. The Administrator, in its sole discretion and pursuant
to such procedures as it may specify from time to time, may require a Participant to satisfy such
tax withholding obligation, in whole or in part (without limitation) by (i) paying cash, (ii)
electing to have the Company withhold otherwise deliverable cash or Shares having a Fair Market
Value equal to the amount required to be withheld, (iii) delivering to the Company already-owned
Shares having a Fair Market Value equal to the amount required to be withheld, or (iv) selling a
sufficient number of Shares otherwise deliverable to the Participant through such means as the
Administrator may determine in its sole discretion (whether through a broker or otherwise) equal to
the amount required to be withheld. The amount of the withholding requirement will be deemed to
include any amount which the Administrator agrees may be withheld at the time the election is made,
not to exceed the amount determined by using the maximum federal, state or local marginal income
tax rates applicable to the Participant with respect to the Award on the date that the amount of
tax to be withheld is to be determined. The Fair Market Value of the Shares to be withheld or
delivered will be determined as of the date that the taxes are required to be withheld.




     17. No Effect on Employment or Service. Neither the Plan nor any Award will confer
upon a Participant any right with respect to continuing the Participant’s relationship as a Service
Provider with the Company, nor will they interfere in any way with the Participant’s right or the
Company’s right to terminate such relationship at any time, with or without cause, to the extent
permitted by Applicable Laws.



     18. Date of Grant. The date of grant of an Award shall be, for all purposes, the date
on which the Administrator makes the determination granting such Award, or such other later date as
is determined by the Administrator. Notice of the determination shall be provided to each
Participant within a reasonable time after the date of such grant.



     19. Term of Plan. The Plan shall become effective upon its approval by the Company’s
stockholders. It shall continue in effect for 10 years thereafter unless terminated earlier under
Section 20 of the Plan.



     20. Amendment and Termination of the Plan.



          (a) Amendment and Termination. The Board may at any time amend, alter, suspend or
terminate the Plan.




20









 





          (b) Stockholder Approval. The Company shall obtain stockholder approval of any Plan
amendment to the extent necessary and desirable to comply with Applicable Laws.




          (c) Effect of Amendment or Termination. No amendment, alteration, suspension or
termination of the Plan shall impair the rights of any Participant, unless mutually agreed
otherwise between the Participant and the Administrator, which agreement must be in writing and
signed by the Participant and the Company. Termination of the Plan shall not affect the
Administrator’s ability to exercise the powers granted to it hereunder with respect to Awards
granted under the Plan prior to the date of such termination.




     21. Conditions Upon Issuance of Shares.



          (a) Legal Compliance. Shares shall not be issued pursuant to the exercise of an Award
unless the exercise of such Award and the issuance and delivery of such Shares shall comply with
Applicable Laws and shall be further subject to the approval of counsel for the Company with
respect to such compliance.




          (b) Investment Representations. As a condition to the exercise or receipt of an
Award, the Company may require the person exercising or receiving such Award to represent and
warrant at the time of any such exercise or receipt that the Shares are being purchased or received
only for investment and without any present intention to sell or distribute such Shares if, in the
opinion of counsel for the Company, such a representation is required.




     22. Inability to Obtain Authority. The inability of the Company to obtain authority
from any regulatory body having jurisdiction, which authority is deemed by the Company’s counsel to
be necessary to the lawful issuance and sale of any Shares hereunder, shall relieve the Company of
any liability in respect of the failure to issue or sell such Shares as to which such requisite
authority shall not have been obtained.



     23. Reservation of Shares. The Company, during the term of this Plan, will at all
times reserve and keep available such number of Shares as shall be sufficient to satisfy the
requirements of the Plan.



     24. Stockholder Approval. The Plan will be subject to approval by the stockholders of
the Company within twelve (12) months after the date the Plan is adopted. Such stockholder
approval will be obtained in the manner and to the degree required under Applicable Laws.




21