exv10w23






Exhibit 10.23




ACCRETIVE HEALTH, INC.

2010 STOCK INCENTIVE PLAN



1. Purpose




     The purpose of this 2010 Stock Incentive Plan (the “Plan”) of Accretive Health, Inc., a
Delaware corporation (the “Company”), is to advance the interests of the Company’s stockholders by
enhancing the Company’s ability to attract, retain and motivate persons who are expected to make
important contributions to the Company and by providing such persons with equity ownership
opportunities and performance-based incentives that are intended to better align the interests of
such persons with those of the Company’s stockholders. Except where the context otherwise
requires, the term “Company” shall include any of the Company’s present or future parent or
subsidiary corporations as defined in Sections 424(e) or (f) of the Internal Revenue Code of 1986,
as amended, and any regulations promulgated thereunder (the “Code”) and any other business venture
(including, without limitation, joint venture or limited liability company) in which the Company
has a controlling interest, as determined by the Board of Directors of the Company (the “Board”).


2. Eligibility




     All of the Company’s employees, officers and directors, as well as consultants and advisors
(as such terms are defined and interpreted for purposes of Form S-8 under the Securities Act of
1933, as amended (the “Securities Act”) or any successor form) are eligible to be granted Awards
under the Plan. Each person who is granted an Award under the Plan is deemed a “Participant”.
“Award” means Options (as defined in Section 5), SARs (as defined in Section 6), Restricted Stock
(as defined in Section 7), Restricted Stock Units (as defined in Section 7) and Other Stock-Based
Awards (as defined in Section 8).


3. Administration and Delegation




     (a) Administration by Board of Directors. The Plan will be administered by the Board.
The Board shall have authority to grant Awards and to adopt, amend and repeal such administrative
rules, guidelines and practices relating to the Plan as it shall deem advisable. The Board may
construe and interpret the terms of the Plan and any Award agreements entered into under the Plan.
The Board may correct any defect, supply any omission or reconcile any inconsistency in the Plan or
any Award in the manner and to the extent it shall deem expedient to carry the Plan into effect and
it shall be the sole and final judge of such expediency. All decisions by the Board shall be made
in the Board’s sole discretion and shall be final and binding on all persons having or claiming any
interest in the Plan or in any Award.



     (b) Appointment of Committees. To the extent permitted by applicable law, the Board
may delegate any or all of its powers under the Plan to one or more committees or subcommittees of
the Board (a “Committee”). All references in the Plan to the “Board” shall mean the Board or a
Committee of the Board or the officers referred to in Section 3(c) to the extent that the Board’s
powers or authority under the Plan have been delegated to such Committee or officers.
Notwithstanding anything herein to the contrary to the extent that the Committee is comprised
solely of an officer of the Company who is also a Board member, such



 









 




officer shall not be authorized to grant any Awards to any “officer” of the Company (as
defined by Rule 16a-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)).




     (c) Delegation to Officers. To the extent permitted by applicable law, the Board may
delegate to one or more officers of the Company the power to grant Options and other Awards that
constitute rights under Delaware law (subject to any limitations under the Plan) to employees or
officers of the Company or any of its present or future subsidiary corporations and to exercise
such other powers under the Plan as the Board may determine, provided that the Board shall fix the
terms of such Awards to be granted by such officers (including the exercise price of such Awards,
which may include a formula by which the exercise price will be determined) and the maximum number
of shares subject to such Awards that the officers may grant; provided further, however, that no
officer shall be authorized to grant such Awards to any “officer” of the Company (as defined by
Rule 16a-1 under the Exchange Act). The Board may not delegate authority under this Section 3(c)
to grant Restricted Stock, unless Delaware law then permits such delegation.


4. Stock Available for Awards




     (a) Number of Shares. Subject to adjustment under Section 9, Awards may be made under
the Plan for up to such number of shares of common stock, $0.01 par value per share, of the Company
(the “Common Stock”) (up to 6,218,050 shares) as is equal to the sum of (x) the number of shares of
Common Stock reserved for issuance under the Company’s Amended and Restated Stock Option Plan (the
“Existing Plan”) that remain available for grant under the Existing Plan immediately prior to the
closing of the Company’s initial public offering and (y) the number of shares of Common Stock
subject to awards granted under the Existing Plan which awards expire, terminate or are otherwise
surrendered, canceled, forfeited or repurchased by the Company at their original issuance price
pursuant to a contractual repurchase right (subject, however, in the case of Incentive Stock
Options (as hereinafter defined) to any limitations of the Code). Any or all of the shares of
Awards may be issued in the form of Incentive Stock Options.



     If any Award expires or is terminated, surrendered or canceled without having been fully
exercised, is forfeited in whole or in part (including as the result of shares of Common Stock
subject to such Award being repurchased by the Company at the original issuance price pursuant to a
contractual repurchase right), is settled in cash or otherwise results in any Common Stock not
being issued, the unused Common Stock covered by such Award shall again be available for the grant
of Awards under the Plan. Further, shares of Common Stock delivered (either by actual delivery or
attestation) to the Company by a Participant to exercise an Award or to satisfy any applicable tax
withholding obligation (including shares retained from the Award creating the tax obligation) shall
be added to the number of shares of Common Stock available for the grant of Awards under the Plan.
Shares issued under the Plan may consist in whole or in part of authorized but unissued shares or
treasury shares.



     (b) Substitute Awards. In connection with a merger or consolidation of an entity with
the Company or the acquisition by the Company of property or stock of an entity, the Board may
grant Awards in substitution for any options or other stock or stock-based awards granted by such
entity or an affiliate thereof. Substitute Awards may be granted on such terms as the Board deems
appropriate in the circumstances, notwithstanding any limitations on Awards contained in



-2-









 




the Plan. Substitute Awards shall not count against the overall share limit set forth in
Section 4(a), except as may be required by reason of Section 422 and related provisions of the
Code.



5. Stock Options




     (a) General. The Board may grant options to purchase Common Stock (each, an “Option”)
and determine the number of shares of Common Stock to be covered by each Option, the exercise price
of each Option and the conditions and limitations applicable to the exercise of each Option,
including conditions relating to applicable federal or state securities laws, as it considers
necessary or advisable. An Option that is not intended to be an Incentive Stock Option shall be
designated a “Nonstatutory Stock Option”.



     (b) Incentive Stock Options. An Option that the Board intends to be an “incentive
stock option” as defined in Section 422 of the Code (an “Incentive Stock Option”) shall only be
granted to employees of Accretive Health, Inc., any of Accretive Health, Inc.’s present or future
parent or subsidiary corporations as defined in Sections 424(e) or (f) of the Code, and any other
entities the employees of which are eligible to receive Incentive Stock Options under the Code, and
shall be subject to and shall be construed consistently with the requirements of Section 422 of the
Code. The Company shall have no liability to a Participant, or to any other party, if an Option
(or any part thereof) that is intended to be an Incentive Stock Option is not an Incentive Stock
Option or if the Company converts an Incentive Stock Option to a Nonstatutory Stock Option.



     (c) Exercise Price. The Board shall establish the exercise price of each Option and
specify the exercise price in the applicable Option agreement. The exercise price shall be not
less than 100% of the fair market value as determined by (or in a manner approved by) the Board
(“Fair Market Value”) on the date the Option is granted; provided that if the Board approves the
grant of an Option with an exercise price to be determined on a future date, the exercise price
shall be not less than 100% of the Fair Market Value on such future date.



     (d) Duration of Options. Each Option shall be exercisable at such times and subject
to such terms and conditions as the Board may specify in the applicable option agreement.



     (e) Exercise of Options. Options may be exercised by delivery to the Company of a
notice of exercise in a form (which may be electronic form) approved by the Company together with
payment in full (in the manner specified in Section 5(f) of the exercise price for the number of
shares for which the Option is exercised. Shares of Common Stock subject to the Option will be
delivered by the Company as soon as practicable following exercise.



     (f) Payment Upon Exercise. Common Stock purchased upon the exercise of an Option
granted under the Plan shall be paid for as follows:



          (1) in cash or by check, payable to the order of the Company;




          (2) except as may otherwise be provided in the applicable Option agreement, or approved by the
Board, in its sole discretion, by (i) delivery of an irrevocable and unconditional undertaking by a
creditworthy broker to deliver promptly to the Company sufficient funds to pay the exercise price
and any required tax withholding or (ii) delivery by the Participant to the Company of a copy of
irrevocable and unconditional instructions to a creditworthy broker to deliver promptly to the
Company cash or a check sufficient to pay the






-3-









 







exercise price and any required tax withholding;




          (3) to the extent provided for in the applicable Option agreement or approved by the Board, in
its sole discretion, by delivery (either by actual delivery or attestation) of shares of Common
Stock owned by the Participant valued at their Fair Market Value provided (i) such method of
payment is then permitted under applicable law, (ii) such Common Stock, if acquired directly from
the Company, was owned by the Participant for such minimum period of time, if any, as may be
established by the Board in its discretion and (iii) such Common Stock is not subject to any
repurchase, forfeiture, unfulfilled vesting or other similar requirements;




          (4) to the extent provided for in the applicable Nonstatutory Stock Option Agreement or
approved by the Board in its sole discretion, by delivery of a notice of “net exercise” to the
company, as a result of which the Participant would receive the number of shares of Common Stock
underlying the Option so exercised reduced by the number of shares of Common Stock equal to the
aggregate exercise price of the portion of the Option being exercised by the Fair Market Value of
the Common Stock on the date of exercise;




          (5) to the extent permitted by applicable law and provided for in the applicable Option
agreement or approved by the Board, in its sole discretion, by (i) delivery of a promissory note of
the Participant to the Company on terms determined by the Board, or (ii) payment of such other
lawful consideration as the Board may determine; or




          (6) by any combination of the above permitted forms of payment.



6. Stock Appreciation Rights.




     (a) General. The Board may grant Awards consisting of Stock Appreciation Rights
(“SARs”) entitling the holder, upon exercise, to receive an amount of Common Stock or cash or a
combination thereof (such form to be determined by the Board) determined by reference to
appreciation, from and after the date of grant, in the Fair Market Value of a share of Common Stock
over the measurement price established pursuant to Section 6(c). The date as of which such
appreciation is determined shall be the exercise date.



     (b) Grants. SARs may be granted in tandem with, or independently of, Options granted
under the Plan.



          (1) Tandem Awards. When SARs are expressly granted in tandem with Options, (i) the
SAR will be exercisable only at such time or times, and to the extent, that the related Option is
exercisable (except to the extent designated by the Board in connection with a Reorganization
Event) and will be exercisable in accordance with the procedure required for exercise of the
related Option; (ii) the SAR will terminate and no longer be exercisable upon the termination or
exercise of the related Option, except to the extent designated by the Board in connection with a
Reorganization Event and except that a SAR granted with respect to less than the full number of
shares covered by an Option will not be reduced until the number of shares as to which the related
Option has been exercised or has terminated exceeds the number of shares not covered by the SAR;
(iii) the Option will terminate and no longer be exercisable upon the exercise of the related SAR;
and (iv) the SAR will be transferable only with the related Option.




          (2) Independent SARs. A SAR not expressly granted in tandem with an Option will
become exercisable at such time or times, and on such conditions, as the Board may






-4-









 







specify in the SAR Award.




          (3) Measurement Price. The Board shall establish the measurement price of each SAR
and specify it in the applicable SAR agreement. The measurement price shall not be less than 100%
of the Fair Market Value on the date the SAR is granted; provided that if the Board approves the
grant of a SAR effective as of a future date, the measurement price shall be not less than 100% of
the Fair Market Value on such future date. 




          (4) Duration of SARs. Each SAR shall be exercisable at such times and subject to such
terms and conditions as the Board may specify in the applicable SAR agreement.




          (5) Exercise of SARs. SARs may be exercised by delivery to the Company of a notice of
exercise in a form (which may be in electronic form) approved by the Company, together with any
other documents required by the Board.



7. Restricted Stock; Restricted Stock Units.




     (a) General. The Board may grant Awards entitling recipients to acquire shares of
Common Stock (“Restricted Stock”), subject to the right of the Company to repurchase all or part of
such shares at their issue price or other stated or formula price (or to require forfeiture of such
shares if issued at no cost) from the recipient in the event that conditions specified by the Board
in the applicable Award are not satisfied prior to the end of the applicable restriction period or
periods established by the Board for such Award. The Board may also grant Awards entitling the
recipient to receive shares of Common Stock or cash to be delivered at the time such Award vests
(“Restricted Stock Units”) (Restricted Stock and Restricted Stock Units are each referred to herein
as a “Restricted Stock Award”).



     (b) Terms and Conditions for All Restricted Stock Awards. The Board shall determine
the terms and conditions of a Restricted Stock Award, including the conditions for vesting and
repurchase (or forfeiture) and the issue price, if any.



     (c) Additional Provisions Relating to Restricted Stock.



          (1) Dividends. Participants holding shares of Restricted Stock will be entitled to
all ordinary cash dividends paid with respect to such shares, unless otherwise provided in the
Restricted Stock Agreement. Unless otherwise provided by the Board, if any dividends or
distributions are paid in shares, or consist of a dividend or distribution to holders of Common
Stock other than an ordinary cash dividend, the shares, cash or other property will be subject to
the same restrictions on transferability and forfeitability as the shares of Restricted Stock with
respect to which they were paid. Each dividend payment will be made no later than the end of the
calendar year in which the dividends are paid to stockholders of that class of stock or, if later,
the 15th day of the third month following the date the dividends are paid to stockholders of that
class of stock.




          (2) Stock Certificates. The Company may require that any stock certificates issued in
respect of shares of Restricted Stock as well as dividends or distributions paid on such Restricted
Stock shall be deposited in escrow by the Participant, together with a stock power endorsed in
blank, with the Company (or its designee). At the expiration of the applicable restriction
periods, the Company (or such designee) shall deliver the certificates no longer subject to such
restrictions to the Participant or to his or her Designated Beneficiary.






-5-









 







“Designated Beneficiary” means (i) the beneficiary designated, in a manner determined by the
Board, by a Participant to receive amounts due or exercise rights of the Participant in the event
of the Participant’s death, or (ii) in the absence of an effective designation by a Participant,
“Designated Beneficiary” shall mean the Participant’s estate.




     (d) Additional Provisions Relating to Restricted Stock Units.



          (1) Settlement. Upon the vesting of and/or lapsing of any other restrictions (i.e.,
settlement) with respect to each Restricted Stock Unit, the Participant shall be entitled to
receive from the Company one share of Common Stock or an amount of cash equal to the Fair Market
Value of one share of Common Stock, as provided in the applicable Award agreement. The Board may,
in its discretion, provide that settlement of Restricted Stock Units shall be deferred, on a
mandatory basis or at the election of the Participant in each case in a manner that complies with
Section 409A of the Code.




          (2) Voting Rights. A Participant shall have no voting rights with respect to any
Restricted Stock Units.




          (3) Dividend Equivalents. To the extent provided by the Board, in its sole
discretion, a grant of Restricted Stock Units may provide Participants with the right to receive an
amount equal to any dividends or other distributions declared and paid on an equal number of
outstanding shares of Common Stock (“Dividend Equivalents”). Dividend Equivalents may be paid
currently or credited to an account for the Participants, may be settled in cash and/or shares of
Common Stock and may be subject to the same restrictions on transfer and forfeitability as the
Restricted Stock Units with respect to which paid, as determined by the Board in its sole
discretion, subject in each case to such terms and conditions as the Board shall establish, in each
case to be set forth in the applicable Award agreement.



8. Other Stock-Based Awards




     Other Awards of shares of Common Stock, and other Awards that are valued in whole or in part
by reference to, or are otherwise based on, shares of Common Stock or other property, may be
granted hereunder to Participants (“Other Stock-Based Awards”), including without limitation Awards
entitling recipients to receive shares of Common Stock to be delivered in the future. Such Other
Stock-Based Awards shall also be available as a form of payment in the settlement of other Awards
granted under the Plan or as payment in lieu of compensation to which a Participant is otherwise
entitled. Other Stock-Based Awards may be paid in shares of Common Stock or cash, as the Board
shall determine. Subject to the provisions of the Plan, the Board shall determine the terms and
conditions of each Other Stock-Based Award, including any purchase price applicable thereto.


9. Adjustments for Changes in Common Stock and Certain Other Events.




     (a) Changes in Capitalization. In the event of any stock split, reverse stock split,
stock dividend, recapitalization, combination of shares, reclassification of shares, spin-off or
other similar change in capitalization or event, or any dividend or distribution to holders of
Common Stock other than an ordinary cash dividend, (i) the number and class of securities available
under this Plan, (ii) the number and class of securities and exercise price per share of each
outstanding Option, (iii) the share- and per-share provisions and the measurement price of



-6-









 




each outstanding SAR, (iv) the number of shares subject to and the repurchase price per share
subject to each outstanding Restricted Stock Award, and (v) the share- and per-share-related
provisions and the purchase price, if any, of each outstanding Other Stock-Based Award, shall be
equitably adjusted by the Company (or substituted Awards may be made, if applicable) in the manner
determined by the Board. Without limiting the generality of the foregoing, in the event the
Company effects a split of the Common Stock by means of a stock dividend and the exercise price of
and the number of shares subject to an outstanding Option are adjusted as of the date of the
distribution of the dividend (rather than as of the record date for such dividend), then an
optionee who exercises an Option between the record date and the distribution date for such stock
dividend shall be entitled to receive, on the distribution date, the stock dividend with respect to
the shares of Common Stock acquired upon such Option exercise, notwithstanding the fact that such
shares were not outstanding as of the close of business on the record date for such stock dividend.




     (b) Reorganization Events.



          (1) Definition. A “Reorganization Event” shall mean: (a) any merger or consolidation
of the Company with or into another entity as a result of which all of the Common Stock of the
Company is converted into or exchanged for the right to receive cash, securities or other property
or is cancelled, (b) any transfer or disposition of all of the Common Stock of the Company for
cash, securities or other property pursuant to a share exchange or other transaction or (c) any
liquidation or dissolution of the Company.




          (2) Consequences of a Reorganization Event on Awards Other than Restricted Stock
Awards. In connection with a Reorganization Event, the Board may take any one or more of the
following actions as to all or any (or any portion of) outstanding Awards other than Restricted
Stock on such terms as the Board determines: (i) provide that Awards shall be assumed, or
substantially equivalent Awards shall be substituted, by the acquiring or succeeding corporation
(or an affiliate thereof), (ii) upon written notice to a Participant, provide that the
Participant’s unexercised Awards will terminate immediately prior to the consummation of such
Reorganization Event unless exercised by the Participant (to the extent then exercisable) within a
specified period following the date of such notice, (iii) provide that outstanding Awards shall
become exercisable, realizable, or deliverable, or restrictions applicable to an Award shall lapse,
in whole or in part prior to or upon such Reorganization Event, (iv) in the event of a
Reorganization Event under the terms of which holders of Common Stock will receive upon
consummation thereof a cash payment for each share surrendered in the Reorganization Event (the
“Acquisition Price”), make or provide for a cash payment to Participants with respect to each Award
held by a Participant equal to (A) the number of shares of Common Stock subject to the vested
portion of the Award (after giving effect to any acceleration of vesting that occurs upon or
immediately prior to such Reorganization Event) multiplied by (B) the excess, if any, of (I) the
Acquisition Price over (II) the exercise or purchase price of such Award and any applicable tax
withholdings, in exchange for the termination of such Awards, (v) provide that, in connection with
a liquidation or dissolution of the Company, Awards shall convert into the right to receive
liquidation proceeds (if applicable, net of the exercise price thereof and any applicable tax
withholdings) and (vi) any combination of the foregoing. In taking any of the actions permitted
under this Section 9(b), the Board shall not be obligated by the Plan to treat all Awards, all
Awards held by a Participant, or all Awards of the same type, identically.







-7-









 








     For purposes of clause (i) above, an Option shall be considered assumed if, following
consummation of the Reorganization Event, the Option confers the right to purchase, for each share
of Common Stock subject to the Option immediately prior to the consummation of the Reorganization
Event, the consideration (whether cash, securities or other property) received as a result of the
Reorganization Event by holders of Common Stock for each share of Common Stock held immediately
prior to the consummation of the Reorganization Event (and if holders were offered a choice of
consideration, the type of consideration chosen by the holders of a majority of the outstanding
shares of Common Stock); provided, however, that if the consideration received as a result of the
Reorganization Event is not solely common stock of the acquiring or succeeding corporation (or an
affiliate thereof), the Company may, with the consent of the acquiring or succeeding corporation,
provide for the consideration to be received upon the exercise of Options to consist solely of
common stock of the acquiring or succeeding corporation (or an affiliate thereof) equivalent in
value (as determined by the Board) to the per share consideration received by holders of
outstanding shares of Common Stock as a result of the Reorganization Event.



          (3) Consequences of a Reorganization Event on Restricted Stock. Upon the occurrence
of a Reorganization Event other than a liquidation or dissolution of the Company, the repurchase
and other rights of the Company with respect to outstanding Restricted Stock shall inure to the
benefit of the Company’s successor and shall, unless the Board determines otherwise, apply to the
cash, securities or other property which the Common Stock was converted into or exchanged for
pursuant to such Reorganization Event in the same manner and to the same extent as they applied to
such Restricted Stock; provided, however, that the Board may provide for the termination or deemed
satisfaction of such repurchase or other rights under the Restricted Stock Agreement or any other
agreement between the Participant and the Company, either initially or by amendment. Upon the
occurrence of a Reorganization Event involving the liquidation or dissolution of the Company,
except to the extent specifically provided to the contrary in the instrument evidencing any
Restricted Stock or any other agreement between a Participant and the Company, all restrictions and
conditions on all Restricted Stock then outstanding shall automatically be deemed terminated or
satisfied.



10. General Provisions Applicable to Awards




     (a) Transferability of Awards. Awards shall not be sold, assigned, transferred,
pledged or otherwise encumbered by the person to whom they are granted, either voluntarily or by
operation of law, except by will or the laws of descent and distribution or, other than in the case
of an Incentive Stock Option, pursuant to a qualified domestic relations order, and, during the
life of the Participant, shall be exercisable only by the Participant; provided, however, that the
Board may permit or provide in an Award for the gratuitous transfer of the Award by the Participant
to or for the benefit of any immediate family member, family trust or other entity established for
the benefit of the Participant and/or an immediate family member thereof if, with respect to such
proposed transferee, the Company would be eligible to use a Form S-8 for the registration of the
sale of the Common Stock subject to such Award under the Securities Act of 1933, as amended;
provided, further, that the Company shall not be required to recognize any such transfer until such
time as the Participant and such permitted transferee shall, as a condition to such transfer,
deliver to the Company a written instrument in form and substance satisfactory



-8-









 




to the Company confirming that such transferee shall be bound by all of the terms and
conditions of the Award. References to a Participant, to the extent relevant in the context, shall
include references to authorized transferees. For the avoidance of doubt, nothing contained in
this Section 10(a) shall be deemed to restrict a transfer to the Company.




     (b) Documentation. Each Award shall be evidenced in such form (written, electronic or
otherwise) as the Board shall determine. Each Award may contain terms and conditions in addition
to those set forth in the Plan.



     (c) Board Discretion. Except as otherwise provided by the Plan, each Award may be
made alone or in addition or in relation to any other Award. The terms of each Award need not be
identical, and the Board need not treat Participants uniformly.



     (d) Termination of Status. The Board shall determine the effect on an Award of the
disability, death, termination or other cessation of employment, authorized leave of absence or
other change in the employment or other status of a Participant and the extent to which, and the
period during which, the Participant, or the Participant’s legal representative, conservator,
guardian or Designated Beneficiary, may exercise rights under the Award. 



     (e) Withholding. The Participant must satisfy all applicable federal, state, and
local or other income and employment tax withholding obligations before the Company will deliver
stock certificates or otherwise recognize ownership of Common Stock under an Award. The Company
may decide to satisfy the withholding obligations through additional withholding on salary or
wages. If the Company elects not to or cannot withhold from other compensation, the Participant
must pay the Company the full amount, if any, required for withholding or have a broker tender to
the Company cash equal to the withholding obligations. Payment of withholding obligations is due
before the Company will issue any shares on exercise vesting, or release from forfeiture of an
Award or, if the Company so requires, at the same time as payment of the exercise or purchase price
unless the Company determines otherwise. If provided for in an Award or approved by the Board in
its sole discretion, a Participant may satisfy such tax obligations in whole or in part by delivery
(either by actual delivery or attestation) of shares of Common Stock, including shares retained
from the Award creating the tax obligation, valued at their Fair Market Value; provided, however,
except as otherwise provided by the Board, that the total tax withholding where stock is being used
to satisfy such tax obligations cannot exceed the Company’s minimum statutory withholding
obligations (based on minimum statutory withholding rates for federal and state tax purposes,
including payroll taxes, that are applicable to such supplemental taxable income). Shares used to
satisfy tax withholding requirements cannot be subject to any repurchase, forfeiture, unfulfilled
vesting or other similar requirements.



     (f) Amendment of Award. The Board may amend, modify or terminate any outstanding
Award, including but not limited to, substituting therefor another Award of the same or a different
type, changing the date of exercise or realization, and converting an Incentive Stock Option to a
Nonstatutory Stock Option. The Participant’s consent to such action shall be required unless (i)
the Board determines that the action, taking into account any related action, does not materially
and adversely affect the Participant’s rights under the Plan or (ii) the change is permitted under
Section 9.



-9-









 





     (g) Conditions on Delivery of Stock. The Company will not be obligated to deliver any
shares of Common Stock pursuant to the Plan or to remove restrictions from shares previously
delivered under the Plan until (i) all conditions of the Award have been met or removed to the
satisfaction of the Company, (ii) in the opinion of the Company’s counsel, all other legal matters
in connection with the issuance and delivery of such shares have been satisfied, including any
applicable securities laws and any applicable stock exchange or stock market rules and regulations,
and (iii) the Participant has executed and delivered to the Company such representations or
agreements as the Company may consider appropriate to satisfy the requirements of any applicable
laws, rules or regulations.



     (h) Acceleration. The Board may at any time provide that any Award shall become
immediately exercisable in whole or in part, free of some or all restrictions or conditions, or
otherwise realizable in whole or in part, as the case may be.


11. Miscellaneous




     (a) No Right To Employment or Other Status. No person shall have any claim or right
to be granted an Award, and the grant of an Award shall not be construed as giving a Participant
the right to continued employment or any other relationship with the Company. The Company
expressly reserves the right at any time to dismiss or otherwise terminate its relationship with a
Participant free from any liability or claim under the Plan, except as expressly provided in the
applicable Award.



     (b) No Rights As Stockholder. Subject to the provisions of the applicable Award, no
Participant or Designated Beneficiary shall have any rights as a stockholder with respect to any
shares of Common Stock to be distributed with respect to an Award until becoming the record holder
of such shares.



     (c) Effective Date and Term of Plan. The Plan shall become effective immediately
prior to the closing of the Company’s initial public offering of its Common Stock. No Awards shall
be granted under the Plan after the expiration of 10 years from the earlier of (i) the date on
which the Plan was adopted by the Board or (ii) the date the Plan was approved by the Company’s
stockholders, but Awards previously granted may extend beyond that date.



     (d) Amendment of Plan. The Board may amend, suspend or terminate the Plan or any
portion thereof at any time provided that (i) to the extent required by Section 162(m) of the Code,
no Award granted to a Participant that is intended to comply with Section 162(m) after the date of
such amendment shall become exercisable, realizable or vested, as applicable to such Award, unless
and until such amendment shall have been approved by the Company’s stockholders if required by
Section 162(m) (including the vote required under Section 162(m)); and (ii) no amendment that would
require stockholder approval under the rules of the New York Stock Exchange (“NYSE”) may be made
effective unless and until the Company’s stockholders approve such amendment; and (iii) if the
NYSE amends its corporate governance rules so that such rules no longer require stockholder
approval of “material revisions” to equity compensation plans, then, from and after the effective
date of such amendment to the NYSE rules, no amendment to the Plan (A) materially increasing the
number of shares authorized under the Plan (other than pursuant to Section 4(b) or 9), (B)
expanding the types of Awards that may be granted under the Plan, or (C) materially expanding the
class of participants eligible to



-10-









 




participate in the Plan shall be effective unless and until the Company’s stockholders approve
such amendment. In addition, if at any time the approval of the Company’s stockholders is required
as to any other modification or amendment under Section 422 of the Code or any successor provision
with respect to Incentive Stock Options, the Board may not effect such modification or amendment
without such approval. Unless otherwise specified in the amendment, any amendment to the Plan
adopted in accordance with this Section 11(d) shall apply to, and be binding on the holders of, all
Awards outstanding under the Plan at the time the amendment is adopted, provided the Board
determines that such amendment, taking into account any related action, does not materially and
adversely affect the rights of Participants under the Plan.




     (e) Authorization of Sub-Plans. The Board may from time to time establish one or more
sub-plans under the Plan for purposes of satisfying applicable securities or tax laws of various
jurisdictions. The Board shall establish such sub-plans by adopting supplements to the Plan
containing (i) such limitations on the Board’s discretion under the Plan as the Board deems
necessary or desirable or (ii) such additional terms and conditions not otherwise inconsistent with
the Plan as the Board shall deem necessary or desirable. All supplements adopted by the Board
shall be deemed to be part of the Plan, but each supplement shall apply only to Participants within
the affected jurisdiction and the Company shall not be required to provide copies of any supplement
to Participants in any jurisdiction which is not the subject of such supplement.



     (f) Section 409A of the Code. Except as provided in individual Award agreements
initially or by amendment, if and to the extent any portion of any payment, compensation or other
benefit provided to a Participant in connection with his or her employment termination is
determined to constitute “nonqualified deferred compensation” within the meaning of Section 409A of
the Code and the Participant is a specified employee as defined in Section 409A(a)(2)(B)(i) of the
Code, as determined by the Company in accordance with its procedures, by which determination the
Participant (through accepting the Award) agrees that he or she is bound, such portion of the
payment, compensation or other benefit shall not be paid before the day that is six months plus one
day after the date of “separation from service” (as determined under Code Section 409A) (the “New
Payment Date”), except as Code Section 409A may then permit. The aggregate of any payments that
otherwise would have been paid to the Participant during the period between the date of separation
from service and the New Payment Date shall be paid to the Participant in a lump sum on such New
Payment Date, and any remaining payments will be paid on their original schedule.


The Company makes no representations or warranty and shall have no liability to the Participant or
any other person if any provisions of or payments, compensation or other benefits under the Plan
are determined to constitute nonqualified deferred compensation subject to Code Section 409A but do
not to satisfy the conditions of that section.







-11-









 








     (g) Limitations on Liability. Notwithstanding any other provisions of the Plan, no
individual acting as a director, officer, other employee, or agent of the Company will be liable to
any Participant, former Participant, spouse, beneficiary, or any other person for any claim, loss,
liability, or expense incurred in connection with the Plan, nor will such individual be personally
liable with respect to the Plan because of any contract or other instrument he or she executes in
his or her capacity as a director, officer, other employee, or agent of the Company. The Company
will indemnify and hold harmless each director, officer, other employee, or agent of the Company to
whom any duty or power relating to the administration or interpretation of the Plan has been or
will be delegated, against any cost or expense (including attorneys’ fees) or liability (including
any sum paid in settlement of a claim with the Board’s approval) arising out of any act or omission
to act concerning this Plan unless arising out of such person’s own fraud or bad faith.



     (h) Governing Law. The provisions of the Plan and all Awards made hereunder shall be
governed by and interpreted in accordance with the laws of the State of Delaware, excluding
choice-of-law principles of the law of such state that would require the application of the laws of
a jurisdiction other than such state.




-12-