Exhibit 10.5 

 

**CAPTIVA SOFTWARE CORPORATION**

 

**2003 NEW EXECUTIVE RECRUITMENT STOCK OPTION PLAN**

 

**ADOPTED: OCTOBER 23, 2003**

 

**1. PURPOSES.**

 

**(a)****General Purpose**. The Company, by means of the Plan, seeksto retain the services of persons not previously an employee or director of the Company, or following a *bona fide* period of non-employment, as an inducement material to the individual’s entering into employment with the Company withinthe meaning of Rule 4350(i)(1)(A) of the NASD Marketplace Rules, and to provide incentives for such persons to exert maximum efforts for the success of the Company and its Affiliates. 

 

**(b)****Eligible Stock Award Recipients**. The persons eligible to receive Stock Awards are the Employees of theCompany and its Affiliates hired as managers of the Company (director level or higher). 

 

**(c)****Available Stock Awards**. The purpose of the Plan is to provide a means by which eligible recipients of Stock Awards may be given an opportunity to benefit from increases in value of the Common Stockthrough the granting of the following Stock Awards: (i) Options, (ii) Restricted Stock Awards, (iii) Stock Appreciation Rights (iv) Phantom Stock Awards and (v) Other Stock Awards. 

 

**2. DEFINITIONS.**

 

**(a)*****“Affiliate”*** means any parent corporation or subsidiary corporation of the Company, whether now or hereafter existing,as those terms are defined in Sections 424(e) and (f), respectively, of the Code. 

 

**(b)*****“Board”*** means the Board of Directors of the Company. 

 

**(c)*****“Capitalization Adjustment”*** has the meaning ascribed to that term in Section 11(a). 

 

**(d)*****“Cause”*** means, with respect to aparticular Participant (i) a felony conviction of such Participant; (ii) the commission by such Participant of an act of fraud or embezzlement against the Company or an Affiliate; (iii) such Participant’s willful misconduct or gross negligencematerially detrimental to the Company or an Affiliate; (iv) such Participant’s continued failure to implement reasonable requests or directions received in the course of his service as an Employee; (v) such Participant’s wrongfuldissemination or use of confidential or proprietary information; or (vi) the intentional and habitual neglect by such Participant of his or her duties to the Company or an Affiliate.****

 

**(e)*****“Change in Control”*** means or occurs upon(i) a sale or other disposition of all or substantially all of the assets of the Company; (ii) a merger or consolidation in which the Company is not the surviving entity and in which the stockholders of the Company immediately prior to suchconsolidation or merger Own less than 50% of the surviving entity’s voting power immediately after the transaction; (iii) a reverse merger in which the Company is the surviving entity but the shares of Common Stock outstanding immediatelypreceding the merger are converted by virtue of the merger into other property, whether in the form of securities, cash or otherwise, and in which the stockholders of the Company immediately prior to such reverse 

 

merger Own less than 50% of the Company’s voting power immediately after the transaction; and (iv) any Exchange Act Person becoming the Owner, directlyor indirectly, of securities of the Company representing more than fifty percent (50%) of the combined voting power of the Company’s then outstanding securities other than by virtue of a merger, consolidation or similar transaction. 

 

**(f)*****“Code”*** means the Internal Revenue Codeof 1986, as amended. 

 

**(g)*****“Committee”*** means a committee of one or more members of the Board appointed by the Board in accordance with Section 3(c). 

 

**(h)*****“Common Stock”*** means the common stock of the Company, or any security of the Company issued in substitution, exchangeor lieu thereof. 

 

**(i)*****“Company”***means Captiva Software Corporation, a Delaware corporation, or any successor corporation. 

 

**(j)*****“Consultant”*** means any person, including an advisor, (i) engaged by the Company or an Affiliate to render consulting or advisory services and who is compensated for such services or(ii) serving as a member of the Board of Directors of an Affiliate and who is compensated for such services. However, the term “Consultant” shall not include Directors who are not compensated by the Company for their services as Directors,and the payment of a director’s fee by the Company for services as a Director shall not cause a Director to be considered a “Consultant” for purposes of the Plan. 

 

**(k)*****“Continuous Service”*** means that the Participant’s service with the Company or anAffiliate, whether as an Employee, Director or Consultant, is not interrupted or terminated. A change in the capacity in which the Participant renders service to the Company or an Affiliate as an Employee, Consultant or Director or a change in theentity for which the Participant renders such service, provided that there is no interruption or termination of the Participant’s service with the Company or an Affiliate, shall not terminate a Participant’s Continuous Service. Forexample, a change in status from an Employee of the Company to a Consultant of an Affiliate or a Director shall not constitute an interruption of Continuous Service. The Board or the chief executive officer of the Company, in that party’s solediscretion, may determine whether Continuous Service shall be considered interrupted in the case of any leave of absence approved by that party, including sick leave, military leave or any other personal leave. Notwithstanding the foregoing, anapproved leave of absence shall be treated as Continuous Service for purposes of vesting in a Stock Award only to such extent as may be provided in the Company’s leave of absence policy or in the written terms of the Participant’s leave ofabsence. 

 

**(l)*****“CorporateTransaction”*** means the occurrence, in a single transaction or in a series of related transactions, of any one or more of the following events: 

 

**(i)**a sale or other disposition of all or substantially all, as determined by the Board in its discretion, of the consolidatedassets of the Company and its Subsidiaries; 

 

**(ii)**a sale or other disposition of at least ninety percent (90%) of the outstanding securities of the Company; 

 

**(iii)**a merger, consolidation or similar transaction following which the Company is not the surviving corporation; or 

 

- 2 - 

**(iv)**a merger, consolidation or similar transaction following which the Company isthe surviving corporation but the shares of Common Stock outstanding immediately preceding the merger, consolidation or similar transaction are converted or exchanged by virtue of the merger, consolidation or similar transaction into other property,whether in the form of securities, cash or otherwise. 

 

**(m)*****“Director”*** means a member of the Board of Directors of the Company. 

 

**(n)*****“Disability”*** means, with respect to a Participant, such Participant’s permanent and total disability within themeaning of the Company’s long-term disability plan, as it may be amended from time to time, or, if there is no such plan, as determined by the Committee. 

 

**(o)*****“Employee”*** means any person employed by the Company or an Affiliate. Service as a Director or payment of adirector’s fee by the Company or an Affiliate shall not be sufficient to constitute “employment” by the Company or an Affiliate. Subject to the exclusions set forth below, the term “Employee” shall include only an individualwho was hired (and advised that he or she was being hired) directly by the Company or an Affiliate as a regular employee and who performs regular employment services directly for the Company or an Affiliate. Exclusions: The term “Employee”as used in the Plan shall not include an individual who works, or who was hired to work, or who was advised that he or she works: (1) as an independent contractor or an employee of an independent contractor; or (2) as a temporary employee,regardless of the length of time that he or she works at the Company or an Affiliate; or (3) through a temporary employment agency, job placement agency, or other third party; or (4) as part of an employee leasing arrangement between the Company oran Affiliate and any third party. For the purposes of the Plan, the exclusions described above shall remain in effect even if the described individual could otherwise be construed as an employee under any applicable common law or is subsequentlydetermined under applicable laws to be an employee. 

 

**(p)*****“Entity”*** means a corporation, partnership or other entity. 

 

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

 

**(r)*****“Exchange Act Person”***means any natural person, Entity or “group” (within the meaning of Section 13(d) or14(d) of the Exchange Act), except that “Exchange Act Person” shall not include (A) the Company or any Subsidiary of the Company, (B) any employee benefit plan of the Company or any Subsidiary of the Company or any trustee or otherfiduciary holding securities under an employee benefit plan of the Company or any Subsidiary of the Company, (C) an underwriter temporarily holding securities pursuant to an offering of such securities, or (D) an Entity Owned, directly orindirectly, by the shareowners of the Company in substantially the same proportions as their Ownership of stock of the Company. 

 

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

 

**(i)**If the Common Stock is listed on any establishedstock exchange or traded on the Nasdaq National Market or the Nasdaq SmallCap Market, the Fair Market Value of a share of Common Stock shall be the closing sales price for such stock (or the closing bid, if no sales were reported) as quoted on suchexchange or market (or the exchange or market with the greatest volume of trading in the Common Stock) on the relevant date or, if no shares are traded on such date, then on the last market trading day prior to the relevant date. 

 

- 3 - 

**(ii)**In the absence of such markets for the Common Stock, the Fair Market Valueshall be determined in good faith by the Board. 

 

**(t)*****“Non-Employee Director”*******means a Director who either (i) is not a current Employee or Officer of the Company or its parent or a subsidiary, does not receive compensation (directly or indirectly) from the Company orits parent or a subsidiary for services rendered as a consultant or in any capacity other than as a Director (except for an amount as to which disclosure would not be required under Item 404(a) of Regulation S-K promulgated pursuant to theSecurities Act (“Regulation S-K”)), does not possess an interest in any other transaction as to which disclosure would be required under Item 404(a) of Regulation S-K and is not engaged in a business relationship as to which disclosurewould be required under Item 404(b) of Regulation S-K; or (ii) is otherwise considered a “non-employee director” for purposes of Rule 16b-3. 

 

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

 

**(v)*****“Option”*** means a nonstatutory stock option granted pursuant to the Plan that is not intended to qualify as an incentive stock option under Section 422 of the Code and the regulations promulgated thereunder. 

 

**(w)*****“Option Agreement”*** means an agreementbetween the Company and an Optionholder evidencing the terms and conditions of an individual Option grant. Each Option Agreement shall be subject to the terms and conditions of the Plan. 

 

**(x)*****“Optionholder”*** means a person to whom an Option is granted pursuant to the Plan or, ifapplicable, such other person who holds an outstanding Option. 

 

**(y)*****“Other Stock Award”*** means an award based in whole or in part by reference to the Common Stock which is granted pursuant to the terms and conditions of Section 7(d). 

 

**(z)*****“Other Stock Award Agreement”***means anagreement between the Company and a holder of an Other Stock Award evidencing the terms and conditions of an individual Other Stock Award grant. Each Other Stock Award Agreement shall be subject to the terms and conditions of the Plan. 

 

**(aa)*****“Own,” “Owned,” “Owner,”“Ownership”*******A person or Entity shall be deemed to “Own,” to have “Owned,” to be the “Owner” of, or to have acquired “Ownership” of securities if such person or Entity, directly orindirectly, through any contract, arrangement, understanding, relationship or otherwise, has or shares voting power, which includes the power to vote or to direct the voting, with respect to such securities. 

 

**(bb)*****“Participant”*** means a person to whom aStock Award is granted pursuant to the Plan or, if applicable, such other person who holds an outstanding Stock Award. 

 

**(cc)*****“Phantom Stock Award”***means a right to receive shares of Common Stock which is granted pursuant to the terms andconditions of Section 7(b). 

 

**(dd)*****“PhantomStock Award Agreement”***means an agreement between the Company and a holder of a Phantom Stock Award evidencing the terms and conditions of an individual Phantom Stock Award grant. Each Phantom Stock Award Agreement shall be subject tothe terms and conditions of the Plan. 

 

- 4 - 

**(ee)*****“Restricted Stock Award”***means an award of shares of Common Stockwhich is granted pursuant to the terms and conditions of Section 7(a). 

 

**(ff)*****“Restricted Stock Award Agreement”***means an agreement between the Company and a holder of a Restricted Stock Award evidencing the terms and conditions of an individual Restricted Stock Award grant. EachRestricted Stock Award Agreement shall be subject to the terms and conditions of the Plan. 

 

**(gg)*****“Plan”*** means this Captiva Software Corporation 2003 New Executive Recruitment Stock Option Plan. 

 

**(hh)*****“Rule 16b-3”*** means Rule 16b-3 promulgated under the Exchange Act or any successor toRule 16b-3, as in effect from time to time. 

 

**(ii)*****“Securities Act”*** means the Securities Act of 1933, as amended. 

 

**(jj)*****“Stock Appreciation Right”***means a right to receive the appreciation of Common Stock which is granted pursuant to the terms and conditions of Section 7(c). 

 

**(kk)*****“Stock Appreciation Right Agreement”***means an agreement between the Company and a holder of a Stock Appreciation Right evidencing the terms and conditions of an individual Stock Appreciation Right grant. Each Stock Appreciation Right Agreement shall be subject to the terms andconditions of the Plan. 

 

**(ll)*****“StockAward”*** means any right granted under the Plan, including an Option, a Restricted Stock Award, Phantom Stock, a Stock Appreciation Right and an Other Stock Award. 

 

**(mm)*****“Stock Award Agreement”*** means an agreement between the Company and a holder of a StockAward evidencing the terms and conditions of an individual Stock Award grant. Each Stock Award Agreement shall be subject to the terms and conditions of the Plan. 

 

**(nn)*****“Subsidiary”*** means, with respect to the Company, (i) any corporation of which more thanfifty percent (50%) of the outstanding capital stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether, at the time, stock of any other class or classes of such corporation shallhave or might have voting power by reason of the happening of any contingency) is at the time, directly or indirectly, Owned by the Company, and (ii) any partnership in which the Company has a direct or indirect interest (whether in the form ofvoting or participation in profits or capital contribution) of more than fifty percent (50%). 

 

**3. ADMINISTRATION.**

 

**(a) Administration by Board**. The Board shall administer the Plan unless and until the Board delegates administration to a committee, as provided in Section 3(c). 

 

**(b) Powers of Board**. The Board shall have the power, subject to, andwithin the limitations of, the express provisions of the Plan: 

 

**(i)**Subject to Section 5 herein, to determine from time to time which of the persons eligible under the Plan shall be granted Stock Awards; when and how each Stock Award shall be granted; what type orcombination of types of Stock Award shall be granted; the 

 

- 5 - 

provisions of each Stock Award granted (which need not be identical), including the time or times when a person shall be permitted to receive Common Stockpursuant to a Stock Award; and the number of shares of Common Stock with respect to which a Stock Award shall be granted to each such person. 

 

**(ii)**To construe and interpret the Plan and Stock Awards granted under it, and to establish, amend and revoke rules and regulationsfor its administration. The Board, in the exercise of this power, may correct any defect, omission or inconsistency in the Plan or in any Stock Award Agreement, in a manner and to the extent it shall deem necessary or expedient to make the Planfully effective. 

 

**(iii)**To amend thePlan or a Stock Award as provided in Section 12. 

 

**(iv)**To terminate or suspend the Plan as provided in Section 13. 

 

**(v)**Generally, to exercise such powers and to perform such acts as the Board deems necessary or expedient to promote the bestinterests of the Company and that are not in conflict with the provisions of the Plan. 

 

**(vi)**To adopt such procedures and sub-plans as are necessary or appropriate to permit participation in the Plan by employees whoare foreign nationals or employed outside the United States. 

 

**(c) DELEGATIONTO COMMITTEE.**

 

**(i) General**. The Board may delegate administration of the Plan to a Committee or Committees of one or more members of the Board,and the term ***“Committee”*** shall apply to any person or persons to whom such authority has been delegated. If administration is delegated to a Committee, the Committee shall have, in connection with the administration of thePlan, the powers theretofore possessed by the Board, including the power to delegate to a subcommittee any of the administrative powers the Committee is authorized to exercise (and references in this Plan to the Board shall thereafter be to theCommittee or subcommittee), subject, however, to such resolutions, not inconsistent with the provisions of the Plan, as may be adopted from time to time by the Board. The Board may abolish the Committee at any time and revest in the Board theadministration of the Plan. 

 

**(ii) Rule16b-3 Compliance**. In the discretion of the Board, the Committee may consist solely of two or more Non-Employee Directors, in accordance with Rule 16b-3. 

 

**(d) Effect of Board’s Decision**. All determinations, interpretations and constructions made by the Board in good faith shall not be subject toreview by any person and shall be final, binding and conclusive on all persons. 

 

**4. SHARES SUBJECTTOTHE PLAN.**

 

**(a) Share Reserve**. Subject to the provisions of Section 11(a) relating to Capitalization Adjustments, the shares of Common Stock that may be issuedpursuant to Stock Awards shall not exceed in the aggregate five hundred thousand (500,000) shares of Common Stock. 

 

**(b)****Reversion of Shares to the Share Reserve**. If any Stock Award shall for any reason expire or otherwise terminate, in whole or in part,without having been exercised in full, or if any shares of Common Stock issued to a Participant pursuant to a Stock Award are 

 

- 6 - 

forfeited back to or repurchased by the Company, including, but not limited to, any repurchase or forfeiture caused by the failure to meet a contingency orcondition required for the vesting of such shares, then the shares of Common Stock not acquired under such Stock Award, or forfeited back to or repurchased by the Company, shall revert to and again become available for issuance under the Plan. Ifany shares subject to a Stock Award are not delivered to a Participant because such shares are withheld for taxes or the Stock Award is exercised through a reduction of shares subject to the Stock Award (i.e., “net exercised”), then theshares that are not delivered to the Participant as a result thereof shall revert to and again become available for issuance under the Plan. If the exercise price of any Stock Award is satisfied by tendering shares of Common Stock held by theParticipant (either by actual delivery or attestation), then the number of shares so tendered shall revert to and again become available for issuance under the Plan. 

 

**(c) Source of Shares**. The shares of Common Stock subject to the Plan may be unissued shares or reacquired shares,bought on the market or otherwise. 

 

**5. ELIGIBILITY.**

 

Persons eligible for Stock Awards shall consist ofEmployees whose potential contribution, in the judgment of the Committee, will benefit the future success of the Company and/or an Affiliate. Stock Awards may be granted only to persons not previously an Employee or Director of the Company, orfollowing a *bona fide* period of non-employment, as an inducement material to the individual’s entering into employment with the Company within the meaning of Rule 4350(i)(1)(A) of the NASD Marketplace Rules. In addition, notwithstandingany other provision of the Plan to the contrary, all Stock Awards must be granted either by a majority of the Company’s independent directors or a committee comprised of a majority of independent directors. 

 

**6. OPTION PROVISIONS.**

 

Each Option shall be in such form and shall contain such terms andconditions as the Board shall deem appropriate. All Options shall be designated as nonstatutory stock options at the time of grant. The provisions of separate Options need not be identical, but each Option shall include (through incorporation ofprovisions hereof by reference in the Option or otherwise) the substance of each of the following provisions: 

 

**(a) Term**. The Board shall determine the term of an Option. 

 

**(b) Exercise Price of an Option**. The Board, in its discretion, shall determine the exercise price of each Option. 

 

**(c) Consideration**. The purchase price of Common Stock acquiredpursuant to an Option shall be paid, to the extent permitted by applicable law, either (i) in cash at the time the Option is exercised or (ii) at the discretion of the Board (1) by delivery to the Company of other Common Stock, (2) by a “netexercise” of the Option (as further described below) or (3) in any other form of legal consideration that may be acceptable to the Board. Unless otherwise specifically provided in the Option, the purchase price of Common Stock acquired pursuantto an Option that is paid by delivery to the Company of other Common Stock acquired, directly or indirectly from the Company, shall be paid only by shares of the Common Stock of the Company that have been held for more than six (6) months (or suchlonger or shorter period of time required to avoid a charge to earnings for financial accounting purposes). 

 

- 7 - 

In the case of a “net exercise” of an Option, the Company will not require a payment of theexercise price of the Option from the Participant but will reduce the number of shares of Common Stock issued upon the exercise by the largest number of whole shares that has a Fair Market Value that does not exceed the aggregate exercise price.With respect to any remaining balance of the aggregate exercise price, the Company shall accept a cash payment from the Participant. The shares of Common Stock so used to pay the exercise price of an Option under a “net exercise” will beconsidered to have resulted from the exercise of the Option, and accordingly, the Option will not again be exercisable with respect to such shares, the shares actually delivered to the Participant, and any shares withheld for purposes of taxwithholding. 

 

**(d) Transferability of an Option**. AnOption shall be transferable to the extent provided in the Option Agreement. If the Option does not provide for transferability, then the Option shall not be transferable except by (a) will, (b) the laws of descent and distribution, or (c) upondissolution of the Optionholder’s marriage pursuant to a domestic relations order. Also, during the Optionholder’s lifetime, only the Optionholder is entitled to exercise his or her Option. Notwithstanding the foregoing, by deliveringwritten notice to the Company, in a form satisfactory to the Company, an Optionholder may designate a third party who, in the event of such Optionholder’s death, shall thereafter be entitled to exercise the Option. 

 

**(e) Vesting Generally**. The total number of shares of Common Stocksubject to an Option may, but need not, vest and therefore become exercisable in periodic installments that may, but need not, be equal. The Option may be subject to such other terms and conditions on the time or times when it may be exercised(which may be based on performance or other criteria) as the Board may deem appropriate. The vesting provisions of individual Options may vary. The provisions of this Section 6(d) are subject to any Option provisions governing the minimum number ofshares of Common Stock as to which an Option may be exercised. 

 

**(f) Termination of Continuous Service**. In the event that an Optionholder’s Continuous Service terminates (other than for Cause or upon the Optionholder’s death or Disability), the Optionholder may exercise his or her Option(to the extent that the Optionholder was entitled to exercise such Option as of the date of termination) but only within such period of time ending on the earlier of (i) the date three (3) months following the termination of the Optionholder’sContinuous Service (or such longer or shorter period specified in the Option Agreement) or (ii) the expiration of the term of the Option as set forth in the Option Agreement. If, after termination, the Optionholder does not exercise his or herOption within the time specified in the Option Agreement, the Option shall terminate. 

 

**(g) Extension of Termination Date**. An Optionholder’s Option Agreement may also provide that if the exercise of the Option following the termination of the Optionholder’s Continuous Service (other thanfor Cause or upon the Optionholder’s death or Disability) would be prohibited at any time solely because the issuance of shares of Common Stock would violate the registration requirements under the Securities Act, then the Option shallterminate on the earlier of (i) the expiration of the term of the Option set forth in the Option Agreement or (ii) the expiration of a period of three (3) months after the termination of the Optionholder’s Continuous Service during which theexercise of the Option would not be in violation of such registration requirements. 

 

**(h) Disability of Optionholder**. In the event that an Optionholder’s Continuous Service terminates as a result of the Optionholder’s Disability, the Optionholder may exercise his or her Option (to theextent that the Optionholder was entitled to exercise such Option as of the date of termination), but only within such period of time ending on the earlier of (i) the date twelve 

 

- 8 - 

(12) months following such termination (or such longer or shorter period specified in the Option Agreement) or (ii) the expiration of the term of the Optionas set forth in the Option Agreement. If, after termination, the Optionholder does not exercise his or her Option within the time specified herein, the Option shall terminate. 

 

**(i) Death of Optionholder**. In the event that (i) an Optionholder’s Continuous Service terminates as a result ofthe Optionholder’s death or (ii) the Optionholder dies within the period (if any) specified in the Option Agreement after the termination of the Optionholder’s Continuous Service for a reason other than death, then the Option may beexercised (to the extent the Optionholder was entitled to exercise such Option as of the date of death) by the Optionholder’s estate, by a person who acquired the right to exercise the Option by bequest or inheritance or by a person designatedto exercise the option upon the Optionholder’s death pursuant to Section 6(c), but only within the period ending on the earlier of (1) the date thirty-six (36) months following the date of death (or such longer or shorter period specified inthe Option Agreement) or (2) the expiration of the term of such Option as set forth in the Option Agreement. If, after death, the Option is not exercised within the time specified herein, the Option shall terminate. 

 

**(j) Termination for Cause**. In the event an Optionholder’sContinuous Service is terminated for Cause, the Option shall terminate upon the termination date of such Optionholder’s Continuous Service and the Optionholder is prohibited from exercising his or her Option from and after the time of suchtermination. 

 

**(k) Early Exercise**. The Option may, butneed not, include a provision whereby the Optionholder may elect at any time before the Optionholder’s Continuous Service terminates to exercise the Option as to any part or all of the shares of Common Stock subject to the Option prior to thefull vesting of the Option. Any unvested shares of Common Stock so purchased may be subject to a repurchase option in favor of the Company or to any other restriction the Board determines to be appropriate. The Company will not exercise itsrepurchase option until at least six (6) months (or such longer or shorter period of time required to avoid a charge to earnings for financial accounting purposes) have elapsed following exercise of the Option unless the Board otherwise specificallyprovides in the Option. 

 

**7. PROVISIONSOFSTOCKAWARDSOTHER THAN OPTIONS.**

 

**(a) Restricted Stock Awards**. Each Restricted Stock Award agreement shall be in such form and shall contain such terms and conditions as the Boardshall deem appropriate. At the Board’s election, shares of Common Stock may be (i) held in book entry form subject to the Company’s instructions until any restrictions relating to the Restricted Stock Award lapse; or (ii) evidenced by acertificate, which certificate shall be held in such form and manner as determined by the Board. The terms and conditions of Restricted Stock Award Agreements may change from time to time, and the terms and conditions of separate Restricted StockAward Agreements need not be identical, *provided, however,*that each Restricted Stock Award Agreement shall include (through incorporation of the provisions hereof by reference in the agreement or otherwise) the substance of each of thefollowing provisions: 

 

**(i) PurchasePrice**. At the time of the grant of a Restricted Stock Award, the Board will determine the price to be paid by the Participant for each share subject to the Restricted Stock Award. To the extent required by applicable law, the price to be paid bythe Participant for each share of the Restricted Stock Award will not be less than the par value of a share of Common Stock. A Restricted Stock Award may be awarded as a stock bonus (*i.e.,*with no cash purchase price to be paid) to the extentpermissible under applicable law. 

 

- 9 - 

**(ii) Consideration**. At the time of the grant of a Restricted Stock Award, theBoard will determine the consideration permissible for the payment of the purchase price of the Restricted Stock Award. The purchase price of Common Stock acquired pursuant to the Restricted Stock Award shall be paid either: (i) in cash at the timeof purchase; (ii) by services rendered or to be rendered to the Company; or (iii) in any other form of legal consideration that may be acceptable to the Board in its discretion. 

 

**(iii) Vesting**. Shares of Common Stock acquired under a Restricted Stock Award may, but need not, besubject to a share repurchase option in favor of the Company in accordance with a vesting schedule to be determined by the Board. 

 

**(iv) Termination of Participant’s Continuous Service**. In the event that a Participant’s Continuous Service terminates,the Company shall have the right, but not the obligation, to repurchase or otherwise reacquire for no consideration any or all of the shares of Common Stock held by the Participant that have not vested as of the date of termination under the termsof the Restricted Stock Award Agreement. At the Board’s election, the repurchase right may be at the lower of: (i) the Fair Market Value on the relevant date; or (ii) the Participant’s original cost. The Company will not exercise itsrepurchase option until at least six (6) months (or such longer or shorter period of time required to avoid a charge to earnings for financial accounting purposes) have elapsed following the purchase of the restricted stock unless otherwisedetermined by the Board or provided in the Restricted Stock Award Agreement. 

 

**(v) Transferability**. Rights to purchase or receive shares of Common Stock granted under a Restricted Stock Award shall be transferable by the Participant only upon such terms and conditions as are set forth inthe Restricted Stock Award Agreement, as the Board shall determine in its discretion, and so long as Common Stock awarded under the Restricted Stock Award remains subject to the terms of the Restricted Stock Award Agreement. 

 

**(b) Phantom Stock**. Each Phantom Stock Award Agreement shall be in suchform and shall contain such terms and conditions as the Board shall deem appropriate. The terms and conditions of the Phantom Stock agreements may change from time to time, and the terms and conditions of separate Phantom Stock agreements need notbe identical, *provided, however,*that each Phantom Stock agreement shall include (through incorporation of the provisions hereof by reference in the agreement or otherwise) the substance of each of the following provisions:****

 

**(i) Consideration**. At the time of grant of aPhantom Stock Award, the Board will determine the consideration, if any, to be paid by the Participant upon delivery of each share of Common Stock subject to the Phantom Stock Award. To the extent required by applicable law, the consideration to bepaid by the Participant for each share of Common Stock subject to a Phantom Stock Award will not be less than the par value of a share of Common Stock. The consideration may be paid in any form permitted under applicable law. 

 

**(ii) Vesting**. At the time of the grant of a PhantomStock Award, the Board may impose such restrictions or conditions to the vesting of the Phantom Stock Award as it, in its absolute discretion, deems appropriate. 

 

**(iii) Additional Restrictions**. At the time of the grant of Phantom Stock, the Board may impose suchrestrictions or conditions that delay the delivery of the consideration after its vesting as the Board, in its absolute discretion, deems appropriate, with such terms to be contained in the Phantom Stock agreement. 

 

- 10 - 

**(iv)****Payment**. Phantom Stock Awards may be settled in Common Stock or incash or any combination of the two, or in any other form of consideration as determined by the Board and contained in the Phantom Stock Award Agreement. 

 

**(v) Dividend Equivalents**. Dividend equivalents may be credited in respect of shares covered by a Phantom Stock Award, as determinedby the Board and contained in the Phantom Stock Award Agreement. At the discretion of the Board, such dividend equivalents may be converted into additional shares covered by the Phantom Stock Award in such manner as determined by the Board. Anyadditional shares covered by the Phantom Stock Award credited by reason of such dividend equivalents will be subject to all the terms and conditions of the underlying Phantom Stock Award Agreement to which they relate. 

 

**(vi) Termination of Participant’s ContinuousService**. Except as otherwise provided in the applicable Phantom Stock Award Agreement, such portion of the Phantom Stock Award that has not vested will be forfeited upon the Participant’s termination of service for any reason. 

 

**(c) Stock Appreciation Rights**. Each Stock Appreciation RightAgreement shall be in such form and shall contain such terms and conditions as the Board shall deem appropriate. The terms and conditions of Stock Appreciation Right Agreements may change from time to time, and the terms and conditions of separateStock Appreciation Right Agreements need not be identical, but each Stock Appreciation Right Agreement shall include (through incorporation of provisions hereof by reference in the agreement or otherwise) the substance of each of the followingprovisions: ****

 

**(i) Strike Price andCalculation of Appreciation**. Each Stock Appreciation Right will be denominated in share of Common Stock equivalents. The appreciation distribution payable on the exercise of a Stock Appreciation Right will be not greater than an amount equal tothe excess of (A) the aggregate Fair Market Value (on the date of the exercise of the Stock Appreciation Right) of a number of shares of Common Stock equal to the number of share of Common Stock equivalents in which the Participant is vested undersuch Stock Appreciation Right and with respect to which the Participant is exercising the Stock Appreciation Right on such date, over (B) an amount that will be determined by the Committee at the time of grant of the Stock Appreciation Right.

 

**(ii) Vesting**. At the time of the grantof a Stock Appreciation Right, the Board may impose such restrictions or conditions to the vesting of such Stock Appreciate Right as it, in its absolute discretion, deems appropriate. 

 

**(iii) Exercise**. To exercise any outstanding Stock Appreciation Right, the Participant must providenotice of exercise to the Company in compliance with the provisions of the Stock Appreciation Right Agreement evidencing such Stock Appreciation Right. 

 

**(iv) Payment**. A Stock Appreciation Right may be paid in Common Stock or in cash or any combination of the two, or in any other formof consideration as determined by the Board and contained in the Stock Appreciation Right Agreement evidencing such Stock Appreciation Right. 

 

**(v) Termination of Continuous Service**. In the event that a Participant’s Continuous Service terminates, the Participant mayexercise his or her Stock Appreciation Right (to the extent that the Participant was entitled to exercise such Stock Appreciation Right as of the date of termination) but only within such period of time ending on the earlier of (i) the 

 

- 11 - 

date three (3) months following the termination of the Participant’s Continuous Service (or such longer or shorter period specified in the StockAppreciation Right Agreement) or (ii) the expiration of the term of the Stock Appreciation Right as set forth in the Stock Appreciation Right Agreement. If, after termination, the Participant does not exercise his or her Stock Appreciation Rightwithin the time specified in the Stock Appreciation Right Agreement, the Stock Appreciation Right shall terminate. 

 

**(d)****Other Stock Awards**. Other forms of Stock Awards valued in whole or in part by reference to, or otherwise based on, Common Stock may begranted either alone or in addition to Stock Awards provided for under Section 6 and the preceding provisions of this Section 7. Subject to the provisions of the Plan, the Board shall have sole and complete authority to determine the persons to whomand the time or times at which such Other Stock Awards will be granted, the number of shares of Common Stock (or the cash equivalent thereof) to be granted pursuant to such Awards and all other terms and conditions of such Awards. 

 

**8. SECURITIES LAW COMPLIANCE.**

 

The Company shall seek to obtain from each regulatory commission oragency having jurisdiction over the Plan such authority as may be required to grant Stock Awards and to issue and sell shares of Common Stock upon exercise of the Stock Awards; *provided, however,* that this undertaking shall not require theCompany to register under the Securities Act the Plan, any Stock Award or any Common Stock issued or issuable pursuant to any such Stock Award. If, after reasonable efforts, the Company is unable to obtain from any such regulatory commission oragency the authority which counsel for the Company deems necessary for the lawful issuance and sale of Common Stock under the Plan, the Company shall be relieved from any liability for failure to issue and sell Common Stock upon exercise of suchStock Awards unless and until such authority is obtained. 

 

**9.USEOF PROCEEDSFROM STOCK.**

 

Proceeds from the sale of Common Stock pursuant to Stock Awards shall constitute general funds of the Company. 

 

**10. MISCELLANEOUS.**

 

**(a) Acceleration of Exercisability and Vesting**. The Board shall havethe power to accelerate the time at which a Stock Award may first be exercised or the time during which a Stock Award or any part thereof will vest in accordance with the Plan, notwithstanding the provisions in the Stock Award stating the time atwhich it may first be exercised or the time during which it will vest. 

 

**(b) Shareowner Rights**. No Participant shall be deemed to be the holder of, or to have any of the rights of a holder with respect to, any shares of Common Stock subject to such Stock Award unless and until such Participant hassatisfied all requirements for exercise of the Stock Award pursuant to its terms. 

 

**(c) No Employment or other Service Rights**. Nothing in the Plan or any instrument executed or Stock Award granted pursuant thereto shall confer upon any Participant any right to continue to serve the Company oran Affiliate in the capacity in effect at the time the Stock Award was granted or shall affect the right of the Company or an Affiliate to terminate (i) the employment of an Employee with or without notice and with or without cause, (ii) the serviceof a Consultant pursuant to the terms of such Consultant’s agreement with the Company or an 

 

- 12 - 

Affiliate or (iii) the service of a Director pursuant to the Bylaws of the Company or an Affiliate, and any applicable provisions of the corporate law of thestate in which the Company or the Affiliate is incorporated, as the case may be. 

 

**(d) Investment Assurances**. The Company may require a Participant, as a condition of exercising or acquiring Common Stock under any Stock Award, (i) to give written assurances satisfactory to the Company as tothe Participant’s knowledge and experience in financial and business matters and/or to employ a purchaser representative reasonably satisfactory to the Company who is knowledgeable and experienced in financial and business matters and that heor she is capable of evaluating, alone or together with the purchaser representative, the merits and risks of exercising the Stock Award; and (ii) to give written assurances satisfactory to the Company stating that the Participant is acquiringCommon Stock subject to the Stock Award for the Participant’s own account and not with any present intention of selling or otherwise distributing the Common Stock. The foregoing requirements, and any assurances given pursuant to suchrequirements, shall be inoperative if (1) the issuance of the shares of Common Stock upon the exercise or acquisition of Common Stock under the Stock Award has been registered under a then currently effective registration statement under theSecurities Act or (2) as to any particular requirement, a determination is made by counsel for the Company that such requirement need not be met in the circumstances under the then applicable securities laws. The Company may, upon advice of counselto the Company, place legends on stock certificates issued under the Plan as such counsel deems necessary or appropriate in order to comply with applicable securities laws, including, but not limited to, legends restricting the transfer of theCommon Stock. 

 

**(e) Withholding Obligations**. To theextent provided by the terms of a Stock Award Agreement, the Participant may, with the approval of the Committee, satisfy any federal, state or local tax withholding obligation relating to the exercise or acquisition of Common Stock under a StockAward by any of the following means (in addition to the Company’s right to withhold from any compensation paid to the Participant by the Company) or by a combination of such means: (i) tendering a cash payment; (ii) authorizing the Company towithhold shares of Common Stock from the shares of Common Stock otherwise issuable to the Participant as a result of the exercise or acquisition of Common Stock under the Stock Award; *provided, however,* that no shares of Common Stock arewithheld with a value exceeding the minimum amount of tax required to be withheld by law (or such lesser amount as may be necessary to avoid variable award accounting); or (iii) delivering to the Company owned and unencumbered shares of CommonStock. 

 

**11. ADJUSTMENTSUPONCHANGESIN STOCK.**

 

**(a) Capitalization Adjustments**. If any change is made in, or other event occurs with respect to, the Common Stock subject to the Plan or subject to any Stock Award without the receipt of consideration by the Company (through merger,consolidation, reorganization, recapitalization, reincorporation, stock dividend, dividend in property other than cash, stock split, liquidating dividend, combination of shares, exchange of shares, change in corporate structure or other transactionnot involving the receipt of consideration by the Company (each a “Capitalization Adjustment”), the Plan will be appropriately adjusted in the class(es) and maximum number of securities subject to the Plan pursuant to Sections 4(a) and4(b) and the maximum number of securities subject to award to any person pursuant to Section 5(c), and the outstanding Stock Awards will be appropriately adjusted in the class(es) and number of securities and price per share of Common Stock subjectto such outstanding Stock Awards. The Board shall make such adjustments, and its determination shall be final, binding and 

 

- 13 - 

conclusive. (The conversion of any convertible securities of the Company shall not be treated as a transaction “without receipt of consideration”by the Company.) 

 

**(b)****Dissolution or Liquidation**.In the event of a dissolution or liquidation of the Company, then all outstanding Stock Awards shall terminate immediately prior to the completion of such dissolution or liquidation. 

 

**(c)****Corporate Transaction**. In the event of a Corporate Transaction, any surviving corporation or acquiringcorporation may assume or continue any or all Stock Awards outstanding under the Plan or may substitute similar stock awards for Stock Awards outstanding under the Plan (it being understood that similar stock awards include, but are not limited to,awards to acquire the same consideration paid to the shareowners or the Company, as the case may be, pursuant to the Corporate Transaction), and any reacquisition or repurchase rights held by the Company in respect of Common Stock issued pursuant toStock Awards may be assigned by the Company to the successor of the Company (or the successor’s parent company), if any, in connection with such Corporate Transaction. In the event that any surviving corporation or acquiring corporation doesnot assume or continue all such outstanding Stock Awards or substitute similar stock awards for all such outstanding Stock Awards, then with respect to Stock Awards that have been not assumed, continued or substituted and that are held byParticipants whose Continuous Service has not terminated prior to the effective time of the Corporate Transaction, the vesting of such Stock Awards (and, if applicable, the time at which such Stock Awards may be exercised) shall (contingent upon theeffectiveness of the Corporate Transaction) be accelerated in full to a date prior to the effective time of such Corporate Transaction as the Board shall determine (or, if the Board shall not determine such a date, to the date that is five (5) daysprior to the effective time of the Corporate Transaction), such Stock Awards shall terminate if not exercised (if applicable) at or prior to such effective time, and any reacquisition or repurchase rights held by the Company with respect to suchStock Awards shall (contingent upon the effectiveness of the Corporate Transaction) lapse. With respect to any other Stock Awards outstanding under the Plan that have not been assumed, continued or substituted, the vesting of such Stock Awards (and,if applicable, the time at which such Stock Award may be exercised) shall not be accelerated, unless otherwise provided in a written agreement between the Company or any Affiliate and the holder of such Stock Award, and such Stock Awards shallterminate if not exercised (if applicable) prior to the effective time of the Corporate Transaction. 

 

**(d) Change in Control**. A Stock Award held by any Participant whose Continuous Service has not terminated prior to the effective time of a Change inControl may be subject to additional acceleration of vesting and exercisability upon or after such event as may be provided in the Stock Award Agreement for such Stock Award or as may be provided in any other written agreement between the Company orany Affiliate and the Participant, but in the absence of such provision, no such acceleration shall occur. 

 

**12. AMENDMENTOF THE PLANAND STOCK AWARDS.**

 

**(a) Amendment of Plan**. The Board at any time, and from time to time,may amend the Plan. However, except as provided in Section 11(a) relating to Capitalization Adjustments, no amendment shall be effective unless approved by the shareowners of the Company to the extent shareowner approval is necessary to satisfyapplicable law. 

 

**(b) No Impairment of Rights**. Rightsunder any Stock Award granted before amendment of the Plan shall not be impaired by any amendment of the Plan unless (i) the Company requests the consent of the Participant and (ii) the Participant consents in writing. 

 

- 14 - 

**(c)****Amendment of Stock Awards**. The Board at any time, and from time to time, may amend theterms of any one or more Stock Awards to provide terms more favorable than previously provided in the Stock Award Agreement, subject to any specified limits in the Plan that are not subject to Board discretion; *provided, however,* that therights under any Stock Award shall not be impaired by any such amendment unless (i) the Company requests the consent of the Participant and (ii) the Participant consents in writing. 

 

**13. TERMINATIONOR SUSPENSIONOFTHE PLAN.**

 

**(a) Plan Term**. The Board may suspend or terminatethe Plan at any time. No Stock Awards may be granted under the Plan while the Plan is suspended or after it is terminated. 

 

**(b)****No Impairment of Rights.** Suspension or termination of the Plan shall not impair rights and obligations under any Stock Award grantedwhile the Plan is in effect except with the consent of the Participant. 

 

**14.EFFECTIVE DATEOF PLAN.**

 

The Plan shall become effective as determined by the Board. 

 

**15. CHOICEOF LAW.**

 

The law of the State of Delaware shall govern all questions concerning the construction, validity and interpretation of this Plan, without regard to suchstate’s conflict of laws rules. 

 

- 15 -