exv10w8






Exhibit 10.8




CERES, INC. 2011 EQUITY INCENTIVE PLAN




ARTICLE I




PURPOSE OF THE PLAN




          The purpose of the Ceres, Inc. 2011 Equity Incentive Plan (the “Plan”) is to promote
the success and enhance the value of Ceres, Inc. by linking the personal interests of the members
of the Board, Employees and Consultants to those of Company stockholders and by providing such
individuals with an incentive for outstanding performance to generate superior returns to Company
stockholders.




ARTICLE II




DEFINITIONS



          As used herein, the following definitions will apply:




          2.1 “Administrator” means the person(s) who conduct the general administration of the
Plan as provided in Article V. With reference to the duties of the Committee under the Plan that
have been delegated to one or more persons pursuant to Article V, or as to which the Board has
assumed, the term “Administrator” shall refer to such person(s) unless the Committee or the Board
has revoked such delegation or the Board has terminated the assumption of such duties.




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




          2.3 “Award” means, individually or collectively, a grant under the Plan of Options,
SARs, Restricted Stock, Restricted Stock Units, Performance Shares, Performance Units, Dividend
Equivalents, Deferred Stock, Stock Payments or any other type of award that may be granted under
the Plan.




          2.4 “Award Agreement” means the written or electronic notice, agreement, contract or
other instrument or document evidencing the Award and setting forth the terms and provisions
applicable to each Award granted under the Plan.




          2.5 “Board” means the Board of Directors of the Company, as constituted from time to
time.




          2.6 “Change in Control” means the occurrence of any of the following events:





     (a) Any “person” or group of “persons” (as such term is used in Sections 13(d) and
14(d) of the Exchange Act) becomes the “beneficial owner” (as defined in Rule



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13d-3 of the Exchange Act), directly or indirectly, of securities of the Company
representing greater than 50% of the total voting power represented by the Company’s then
outstanding voting securities (or has become the beneficial owner during the 12-month period
ending on the date of the most recent acquisition by such person or persons);




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




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


provided, however, that if a Change in Control constitutes a payment event with
respect to any Award that provides for the deferral of compensation and is subject to Section 409A
of the Code, the transaction or event described in subsection (a), (b) or (c) herein, with respect
to such Award must also constitute a “change in control event,” as defined in Treasury Regulation
§1.409A-3(i)(5) to the extent required by Section 409A of the Code. The Committee shall have full
and final authority, which shall be exercised in good faith, to determine conclusively whether a
Change in Control of the Company has occurred pursuant to the above definition, and the date of the
occurrence of such Change in Control and any incidental matters relating thereto.




          2.7 “Code” means the Internal Revenue Code of 1986, as amended, and the rules and
regulations promulgated thereunder from time to time.




          2.8 “Committee” means the Compensation Committee of the Board, or another committee or
subcommittee satisfying all Applicable Laws, as appointed by the Board in accordance with Article V
of the Plan.




          2.9 “Common Stock” means the Common Stock of the Company, par value $0.01.




          2.10 “Company” means Ceres, Inc., a Delaware corporation, or any successor thereof.




          2.11 “Consultant” means any person, including an advisor, engaged by the Company or a
Parent or Subsidiary to render services to such entity who qualifies as a consultant under the
applicable rules of the Securities and Exchange Commission for registration of shares on a Form S-8
Registration Statement.




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




          2.13 “Director” means a member of the Board.







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          2.14 “Dividend Equivalent” means a credit, made at the discretion of the
Administrator, to the account of a Participant in an amount equal to the value of dividends paid on
one Share for each Share represented by an Award held by such Participant.




          2.15 “Effective Date” means [___], 2011.




          2.16 “Employee” means any person employed by the Company or any Parent or Subsidiary
of the Company. Neither service as a Director nor payment of a director’s fee by the Company will
be sufficient to constitute “employment” by the Company.




          2.17 “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder from time to time.




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





     (a) If the Common Stock is listed on any established stock exchange (such as the New
York Stock Exchange and the NASDAQ Global Select Market) or national market system, its Fair
Market Value shall be the closing sales price for a Share as quoted on such exchange or
system for such date or, if there is no closing sales price for a Share on the date in
question, the closing sales price for a Share on the last preceding date for which such
quotation exists, as reported in The Wall Street Journal or such other source as the
Administrator deems reliable;




     (b) If the Common Stock is not listed on an established stock exchange or national
market system, but the Common Stock is regularly quoted by a recognized securities dealer,
its Fair Market Value shall be the mean of the high bid and low asked prices for such date
or, if there are no high bid and low asked prices for a Share on such date, the high bid and
low asked prices for a Share on the last preceding date for which such information exists,
as reported in The Wall Street Journal or such other source as the Administrator deems
reliable; or




     (c) If the Common Stock is neither listed on an established stock exchange or a
national market system nor regularly quoted by a recognized securities dealer, its Fair
Market Value shall be established by the Administrator in good faith, in compliance with the
requirements of Section 409A of the Code.



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




          2.20 “GAAP” means the United States Generally Accepted Accounting Principles, as in
effect from time to time.




          2.21 “Greater Than 10% Stockholder” means an individual then owning (within the
meaning of Section 424(d) of the Code) more than 10% of the total combined voting power of all
classes of stock of the Company or any subsidiary corporation (as defined in Section 424(f) of the
Code) or Parent thereof (as defined in Section 424(e) of the Code).







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          2.22 “Incentive Stock Option” means an Option intended to qualify as an incentive
stock option within the meaning of Section 422 of the Code.




          2.23 “Misconduct” means (a) “Cause” as defined in such Participant’s employment
agreement, if applicable, or (b) if the Participant is not a party to an employment agreement or if
his or her employment agreement does not have a definition of “cause”, the following: (i) the
Participant’s breach of any agreement with the Company, (ii) the Participant’s failure or refusal
to satisfactorily perform the duties reasonably required of him or her as a Service Provider to the
Company, (iii) the Participant’s commission of any act of fraud, embezzlement, dishonesty or
insubordination, (iv) the Participant’s unauthorized use or disclosure by such person of
confidential information or trade secrets of the Company or any Subsidiary or affiliate, (v) the
Participant’s breach of a Company policy or the rules of any governmental or regulatory body
applicable to the Company or (vi) any other misconduct by such person which has, or could have, an
adverse impact on the business, reputation or affairs of the Company or any of its Subsidiaries or
affiliates.




          2.24 “Nonstatutory Stock Option” means an Option that is not an Incentive Stock
Option.




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




          2.26 “Option” means a stock option granted pursuant to the Plan.




          2.27 “Outside Director” means a Director who is not an Employee.




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




          2.29 “Participant” means the holder of an outstanding Award granted under the Plan.




          2.30 “Performance Award” means a cash bonus award, stock bonus award, performance
award or incentive award that is paid in cash, Common Stock or a combination of both, awarded under
Article XI.




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




          2.32 “Performance Criteria” means the criteria that the Committee selects for an Award
for purposes of establishing the Performance Goal or Performance Goals for a Performance Period,
determined as follows:





     (a) The Performance Criteria that shall be used to establish Performance Goals are
limited to the following: (i) earnings (either before or after interest, taxes,
depreciation and amortization), (ii) sales or revenue, (iii) net income (either before or



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after taxes), (iv) operating earnings or profit, (v) cash flow, (vi) return on assets
or net assets, (vii) return on capital, (viii) return on sales, (ix) profit or operating
margin, (x) costs, (xi) funds from operations, (xii) expenses, (xiii) working capital, (xiv)
earnings per share, (xv) price per share of Common Stock, (xvi) regulatory body approval for
commercialization of a product, (xvii) implementation or completion of critical projects,
(xviii) market share, (xix) billings, (xx) operating income or profit, (xxi) operating
expenses, (xxii) total stockholder return, (xxiii) cash conversion cycle, (xxiv) economic
value added, (xxv) contract awards or backlog, (xxvi) overhead or other expense reduction,
(xxvii) credit rating, (xxviii) acquisitions or strategic transactions, (xxix) strategic
plan development and implementation, (xxx) succession plan development and implementation,
(xxxi) customer surveys, (xxxii) new product invention or innovation, (xxxiii) attainment of
research and development milestones, (xxxiv) improvements in productivity, and (xxxv)
attainment of objective operating goals and employee metrics.




     (b) Any of the Performance Criteria may be measured either in absolute terms for the
Company or any operating or business unit of the Company, as compared to any incremental
increase or decrease or as compared to results of a peer group or to market performance
indicators or indices.




     (c) The Administrator may provide that one or more objectively determinable adjustments
shall be made to one or more of the Performance Criteria. Such adjustments may include one
or more of the following: (i) items related to a change in accounting principles; (ii)
items relating to financing activities; (iii) expenses for restructuring or productivity
initiatives; (iv) other non-operating items; (v) items related to acquisitions; (vi) items
attributable to the business operations of any entity acquired by the Company during the
Performance Period; (vii) items related to the disposal of a business or segment of a
business; (viii) items related to discontinued operations that do not qualify as a segment
of a business under GAAP; (ix) items attributable to any stock dividend, stock split,
combination or exchange of shares occurring during the Performance Period; (x) any other
items of significant income or expense that are determined to be appropriate adjustments;
(xi) items relating to unusual or extraordinary corporate transactions, events or
developments; (xii) items related to amortization of acquired intangible assets; (xiii)
items that are outside the scope of the Company’s core, ongoing business activities; or
(xiv) items relating to any other unusual or non-recurring events or changes in Applicable
Laws, accounting principles or business conditions. For all Awards intended to qualify as
Performance-Based Compensation, such determinations shall be made within the time prescribed
by, and otherwise in compliance with, Section 162(m) of the Code.



          2.33 “Performance Goals” means, for a Performance Period, one or more goals
established in writing by the Administrator for the Performance Period based upon one or more
Performance Criteria. Depending on the Performance Criteria used to establish such Performance
Goals, the Performance Goals may be expressed in terms of overall Company performance or the
performance of a division, operating or business unit, or an individual.





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          2.34 “Performance Period” means the Company’s Fiscal Year, or any other period of time
as the Administrator may select, over which the attainment of one or more Performance Goals will be measured for the purpose of determining a Participant’s right to,
and the payment of, a Performance Award.




          2.35 “Plan” means this Ceres, Inc. 2011 Equity Incentive Plan, as amended from time to
time.




          2.36 “Prior Plans” means the Ceres, Inc. 2010 Stock Option/Stock Issuance Plan, the
Ceres, Inc. 2000 Stock Option/Stock Issuance Plan and the Ceres, Inc. 1996 Stock Option/Stock
Issuance Plan, as each such plan may have been or may be amended from time to time.




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




          2.38 “Qualifying Termination” means any Termination of the Service of any Participant
that occurs within six months prior to or within 12 months following a Change in Control, by reason
of:





     (a) the Participant’s dismissal or discharge by the Company for reasons other than
Misconduct, or




     (b) the Participant’s voluntary resignation (i) for “Good Reason” as defined in such
Participant’s employment agreement, if applicable, or (ii) if the Participant is not a party
to an employment agreement or if his or her employment agreement does not have a definition
of “good reason”, for any of the following reasons: (A) a material adverse change in the
Participant’s position with the Company that materially reduces his or her level of
responsibility; (B) a material adverse reduction in the Participant’s level of base salary
by more than 15 percent, except a reduction that is applied in a consistent manner to
substantially all of the Company’s other employees; or (C) a relocation of the Participant’s
place of employment by more than 50 miles without the Participant’s consent;


provided, however, that in the event of the existence of the grounds set forth in
Section 2.38(b), the grounds shall constitute a Qualifying Termination only if (A) the Participant
provides written notice to the Company of the facts that constitute the grounds within 90 days
following the initial existence of the grounds, and the Company thereafter fails to cure such
grounds within 30 business days following its receipt of such notice (or, in the event that such
grounds cannot be corrected within such 30-day period, the Company has not taken all reasonable
steps within such 30-day period to correct such grounds as promptly as practicable thereafter).




          2.39 “Restricted Stock” means Shares issued pursuant to a Restricted Stock award under
Article IX or issued pursuant to the early exercise of an Option.





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          2.40 “Restricted Stock Unit” means the right to receive Common Stock, the cash
equivalent of a designated number of Shares, or a combination thereof, awarded under Section 11.5
of the Plan.




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




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




          2.43 “Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.




          2.44 “Service Provider” means an Employee, Director or Consultant.




          2.45 “Share” means a share of Common Stock, as adjusted in accordance with Article
XIII of the Plan.




          2.46 “Stock Appreciation Right” or “SAR” means a stock appreciation right
granted pursuant to Article X of the Plan.




          2.47 “Stock Payment” means (a) a payment in the form of Shares, or (b) an option or
other right to purchase Shares, as part of a bonus, deferred compensation or other arrangement,
awarded under Section 11.3 of the Plan.




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




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




          2.50 “Termination of Service” means:





     (a) As to a Consultant, the time when the engagement of the Consultant is terminated
for any reason, with or without cause, including, without limitation, by resignation,
discharge, death or retirement, but excluding terminations where the Consultant
simultaneously commences or remains in employment or service with the Company or any
Subsidiary.




     (b) As to a Outside Director, the time when the Outside Director ceases to be a
Director for any reason, including, without limitation, a termination by resignation,
failure to be elected, death or retirement, but excluding terminations where the Outside



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Director simultaneously commences or remains in employment or service with the Company or
any Subsidiary.




     (c) As to an Employee, the time when the employee-employer relationship between the
Employee and the Company or any Subsidiary is terminated for any reason, including, without
limitation, a termination by resignation, discharge, death, disability or retirement, but
excluding terminations where the Employee simultaneously commences or remains in employment
or service with the Company or any Subsidiary.


The Administrator, in its sole discretion, shall determine the effect of all matters and questions
relating to a Termination of Service, including, without limitation, the question of whether a
Termination of Service resulted from a discharge for cause and all questions of whether particular
leaves of absence constitute a Termination of Service; provided, however, that,
with respect to Incentive Stock Options, unless the Administrator otherwise provides in the terms
of the Award Agreement or otherwise, a leave of absence, change in status from an employee to an
independent contractor or other change in the employee-employer relationship shall constitute a
Termination of Service only if, and to the extent that, such leave of absence, change in status or
other change interrupts employment for the purposes of Section 422(a)(2) of the Code and the then
applicable regulations and revenue rulings thereunder; provided, further, that to
the extent any Award provides for the “deferral of compensation” within the meaning of Section
409A(d)(1) of the Code, a Termination of Service will not be deemed to have occurred unless and
until the Participant experiences a “separation from service,” as defined under Section 409A of the
Code. For purposes of the Plan, a Participant’s employee-employer relationship or consultancy
relationship shall be deemed to be terminated in the event that the Subsidiary employing or
contracting with such Participant ceases to remain a Subsidiary following any merger, sale of stock
or other corporate transaction or event (including, without limitation, a spin-off).




ARTICLE III




ELIGIBILITY



     Incentive Stock Options may be granted only to Employees. All other Awards may be granted to
Employees, Consultants and Outside Directors; provided such Consultants and Outside
Directors render bona fide services not in connection with the offer and sale of securities in a
capital-raising transaction.



ARTICLE IV




STOCK SUBJECT TO THE PLAN



          4.1 Stock Subject to the Plan. Subject to the provisions of Article XIII of the Plan,
the maximum aggregate number of Shares that may be issued under the Plan is 4,000,000. The Shares
may be authorized, but unissued, or reacquired Common Stock. The number of Shares remaining
available for issuance shall be reduced by the number of Shares subject to outstanding Awards and,
for Awards that are not denominated by Shares, by the number of Shares the participant becomes
entitled to receive upon settlement or payment of the Award;






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provided, however, the number of Shares available for issuance under the Plan shall not be reduced with respect to any
portion of an Award that is settled in cash. The following Shares may not again be made available
for granting Awards under the Plan: (i) Shares not issued or delivered as a result of the net settlement of an outstanding Award, (ii) Shares used to pay
the exercise price or withholding taxes related to an outstanding Award, or (iii) Shares
repurchased on the open market with the proceeds of a Stock Option exercise.




          4.2 Lapsed Awards. If any outstanding Award or any outstanding award granted under a
Prior Plan expires or is terminated or canceled without having been exercised or settled in full,
or if Shares acquired pursuant to an Award subject to forfeiture are forfeited, the Shares
allocable to the terminated portion of such Award or such forfeited Shares shall again be available
for grant under the Plan.




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




          4.4 Assumed and Substituted Shares. To the extent permitted by Applicable Law or any
exchange rule, Shares issued in assumption of, or in substitution for, any outstanding awards of
any entity acquired in any form of combination by the Company or any Subsidiary shall not be
counted against Shares available for grant pursuant to the Plan. The payment of Dividend
Equivalents in cash in conjunction with any outstanding Awards shall not be counted against the
Shares available for issuance under the Plan. Notwithstanding the provisions of this Section 4.4,
no Shares may again be optioned, granted or awarded if such action would cause an Incentive Stock
Option to fail to qualify as an incentive stock option under Section 422 of the Code.




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




ARTICLE V




ADMINISTRATION OF THE PLAN



          5.1 Administrator. The Committee shall administer the Plan (except as otherwise
provided or permitted herein) and shall consist solely of two or more Outside Directors appointed
by and holding office at the pleasure of the Board, each of whom is intended to qualify as (a) a
“non-employee director” as defined by Rule 16b-3 of the Exchange Act or any successor rule, (b) an
“outside director” for purposes of Section 162(m) of the Code and (c) an “independent director”
under the rules of the NASDAQ Select Global Market (or other principal securities market on which
Shares are traded); provided that any action taken by the Committee shall be valid and
effective, whether or not members of the Committee at the time of such action are later determined
not to have satisfied the requirements for membership set forth in this Article V or otherwise
provided in any charter of the Committee. Notwithstanding the foregoing, (i) the full Board,
acting by a majority of its members in office, shall have final authority to approve all Awards
made under the Plan, except to the extent those Awards are









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required to be granted in the sole discretion of the Committee under Section 162(m) of the Code or any regulations or rules issued
thereunder, or under the rules of the NASDAQ Global Select Market or under any other Applicable
Law, (ii) the full Board, acting by a majority of its members in office, shall conduct the general administration of the Plan with respect to Awards
granted to Outside Directors and (iii) the Board or Committee may delegate its authority hereunder
to the extent permitted by Section 5.5.




          5.2 Duties and Powers of Committee. It shall be the duty of the Committee to conduct
the general administration of the Plan in accordance with its provisions. The Committee shall have
the power to interpret the Plan and the Award Agreements, and to adopt such rules for the
administration, interpretation and application of the Plan as are not inconsistent therewith, to
interpret, amend or revoke any such rules and to amend any Award Agreement, provided that the
rights or obligations of the holder of the Award that is the subject of any such Award Agreement
are not affected adversely by such amendment (unless the consent of the Participant is obtained or
such amendment is otherwise permitted under Section 16.4). In its sole discretion, the Board may
at any time and from time to time exercise any and all rights and duties of the Committee under the
Plan except with respect to matters that under Rule 16b-3 under the Exchange Act or any successor
rule, under Section 162(m) of the Code, or any regulations or rules issued thereunder, or under the
rules of the NASDAQ Global Select Market, are required to be determined in the sole discretion of
the Committee.




          5.3 Authority of Administrator. Subject to any specific designation in the Plan, the
Administrator has the exclusive power, authority and sole discretion to:





     (a) Designate Service Providers to receive Awards;




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




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




     (d) Determine the terms and conditions of any Award granted pursuant to the Plan,
including, but not limited to, the exercise price, grant price or purchase price, any reload
provision, any restrictions or limitations on the Award, any schedule for vesting, lapse of
forfeiture restrictions or restrictions on the exercisability of an Award and accelerations
or waivers thereof, any Performance Criteria that will be applicable to an Award (whether or
not such Award is intended to meet the requirements for performance-based criteria under
Section 162(m) of the Code) and any provisions related to noncompetition and recapture of
gain on an Award, based in each case on such considerations as the Administrator in its sole
discretion determines;




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




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



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




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




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




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



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




          5.5 Delegation of Authority. To the extent permitted by Applicable Law, the Board or
Committee may from time to time delegate to a committee of one or more members of the Board or one
or more officers of the Company the authority to grant or amend Awards; provided,
however, that in no event shall an officer be delegated the authority to grant awards to,
or amend awards held by, the following individuals: (a) individuals who are subject to Section 16
of the Exchange Act, (b) Covered Employees, or (c) officers of the Company (or Directors) to whom
authority to grant or amend Awards has been delegated hereunder. Any delegation hereunder shall be
subject to the restrictions and limits that the Board or Committee specifies at the time of such
delegation, and the Board may at any time rescind the authority so delegated or appoint a new
delegatee. At all times, the delegatee appointed under this Section 5.5 shall serve in such
capacity at the pleasure of the Board and the Committee.




ARTICLE VI




GRANTING OF AWARDS



          6.1 Participation. The Administrator may, from time to time, select those Service
Providers to whom an Award shall be granted and shall determine the nature and amount of each
Award, which shall not be inconsistent with the requirements of the Plan. No Employee, Consultant
or Outside Director shall have any right to be granted an Award pursuant to the Plan.




          6.2 Award Agreement. Each Award shall be evidenced by an Award Agreement. Award
Agreements evidencing Awards intended to qualify as Performance-Based Compensation shall contain
such terms and conditions as may be necessary to meet the applicable provisions of Section 162(m)
of the Code. Award Agreements evidencing Incentive Stock Options shall contain such terms and
conditions as may be necessary to meet the applicable provisions of Section 422 of the Code. Each
Award Agreement is subject to the terms and conditions of the Plan.




          6.3 Limitations Applicable to Section 16 Persons. Notwithstanding any other provision
of the Plan, the Plan, and any Award granted or awarded to any individual who is then subject to
Section 16 of the Exchange Act, shall be subject to any additional limitations set forth







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in any applicable exemption rule under Section 16 of the Exchange Act (including Rule 16b-3) that are
requirements for the application of such exemption rule. To the extent permitted by
Applicable Law, the Plan and Awards granted or awarded hereunder shall be deemed amended to
the extent necessary to conform to such applicable exemption rule.




          6.4 At-Will Employment. Nothing in the Plan or in any Award Agreement hereunder shall
confer upon any Participant any right to continue in the employ of, or as a Director or Consultant
for, the Company or any Subsidiary, or shall interfere with or restrict in any way the rights of
the Company and any Subsidiary, which rights are hereby expressly reserved, to discharge any
Participant at any time for any reason whatsoever, with or without cause, except to the extent
expressly provided otherwise in a written agreement between the Participant and the Company or any
Subsidiary.




          6.5 Non-U.S. Participants. Notwithstanding any provision of the Plan to the contrary,
in order to comply with Applicable Laws in other countries in which the Company and its
Subsidiaries operate or have Service Providers, or in order to comply with the requirements of any
foreign stock exchange, the Administrator, in its sole discretion, shall have the power and
authority to: (a) determine which Subsidiaries shall be covered by the Plan; (b) determine which
Service Providers outside the United States are eligible to participate in the Plan; (c) modify the
terms and conditions of any Award granted to individuals outside the United States to comply with
Applicable Laws or listing requirements of any such foreign stock exchange; (d) establish sub-plans
and modify exercise procedures and other terms and procedures, to the extent such actions may be
necessary or advisable (any such sub-plans and/or modifications shall be attached to the Plan as
appendices); provided, however, that no such sub-plans and/or modifications shall
increase the share limitations contained in Article IV; and (e) take any action, before or after an
Award is made, that it deems advisable to obtain approval or comply with any necessary local
governmental regulatory exemptions or approvals or listing requirements of any such foreign stock
exchange. Notwithstanding the foregoing, the Administrator may not take any actions hereunder, and
no Awards shall be granted, that would violate the Exchange Act, the Securities Act or any other
securities law or governing statute or any other Applicable Law.




          6.6 Stand-Alone and Tandem Awards. Awards granted pursuant to the Plan may, in the
sole discretion of the Administrator, be granted either alone, in addition to, or in tandem with,
any other Award granted pursuant to the Plan. Awards granted in addition to or in tandem with
other Awards may be granted either at the same time as or at a different time from the grant of
such other Awards.




ARTICLE VII




PERFORMANCE-BASED AWARDS



          7.1 Purpose. The Committee, in its sole discretion, may determine whether an Award is
to qualify as Performance-Based Compensation. If the Committee, in its sole discretion, decides to
grant such an Award to a Service Provider that is intended to qualify as Performance-Based
Compensation, then the provisions of this Article VII shall control over any contrary provision
contained in the Plan. The Administrator may in its sole discretion grant Awards to any Service
Provider that are based on Performance Criteria or Performance Goals but





12









 







that do not satisfy the requirements of this Article VII and that are not intended to qualify as Performance-Based
Compensation. Unless otherwise specified by the Administrator at the time
of grant, the Performance Criteria with respect to an Award intended to be Performance-Based
Compensation payable to a Covered Employee shall be determined on the basis of GAAP (where
applicable).




          7.2 Applicability. The grant of an Award to a Service Provider for a particular
Performance Period shall not require the grant of an Award to such individual in any subsequent
Performance Period and the grant of an Award to any one Service Provider shall not require the
grant of an Award to any other Service Provider in such period or in any other period.




          7.3 Types of Awards. Notwithstanding anything in the Plan to the contrary, the
Committee may grant any Award to a Service Provider intended to qualify as Performance-Based
Compensation, including, without limitation, Options, SARs and Restricted Stock and Restricted
Stock Units, the restrictions with respect to which lapse upon the attainment of specified
Performance Goals, and any performance or incentive Awards described in Article XI that vest or
become exercisable or payable upon the attainment of one or more specified Performance Goals.




          7.4 Procedures with Respect to Performance-Based Awards. To the extent necessary to
comply with the requirements of Section 162(m)(4)(C) of the Code, with respect to any Award granted
under Article IX or Article XI to one or more Service Providers and which is intended to qualify as
Performance-Based Compensation, no later than 90 days following the commencement of any Performance
Period or any designated fiscal period or period of service (or such earlier time as may be
required under Section 162(m) of the Code), the Committee shall, in writing, (i) designate one or
more Participants, (ii) select the Performance Criteria applicable to the Performance Period, (iii)
establish the Performance Goals, and amounts of such Awards, as applicable, which may be earned for
such Performance Period based on the Performance Criteria, and (iv) specify the relationship
between Performance Criteria and the Performance Goals and the amounts of such Awards, as
applicable, that may be earned by each Covered Participant for such Performance Period. Following
the completion of each Performance Period, the Committee shall certify in writing whether and the
extent to which the applicable Performance Goals have been achieved for such Performance Period.
In determining the amount earned under such Awards, the Committee shall have the right to reduce or
eliminate (but not to increase) the amount payable at a given level of performance to take into
account additional factors that the Committee may deem relevant to the assessment of individual or
corporate performance for the Performance Period.




          7.5 Payment of Performance-Based Awards. Unless otherwise provided in the applicable
Award Agreement and only to the extent otherwise permitted by Section 162(m)(4)(C) of the Code, as
to an Award that is intended to qualify as Performance-Based Compensation, the Participant must be
employed by the Company or a Subsidiary throughout the Performance Period. Furthermore, a
Participant shall be eligible to receive payment pursuant to such Awards for a Performance Period
only if and to the extent the Performance Goals for such period are achieved.





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          7.6 Limitations. Notwithstanding any other provision of the Plan, the maximum number
of Shares with respect to any one or more Awards that may be granted to any Service Provider in any
one calendar year is 2,000,000 Shares. If an Award is canceled in the
same Fiscal Year of the Company in which it was granted, the canceled Award will be counted
against the limits set forth above. For this purpose, if the exercise/purchase price of an Award
is reduced, the transaction will be treated as a cancellation of the Award and the grant of a new
Award.




ARTICLE VIII




STOCK OPTIONS



          8.1 Granting of Options to Service Providers. The Administrator is authorized to
grant Options to Service Providers from time to time, in its sole discretion, on such terms and
conditions as it may determine which shall not be inconsistent with the Plan.




          8.2 Qualification of Incentive Stock Options. No Incentive Stock Option shall be
granted to any person who is not an Employee of the Company or any subsidiary corporation of the
Company (as defined in Section 424(f) of the Code). No person who qualifies as a Greater Than 10%
Stockholder may be granted an Incentive Stock Option unless such Incentive Stock Option conforms to
the applicable provisions of Section 422 of the Code. Any Incentive Stock Option granted under the
Plan may be modified by the Administrator, with the consent of the Participant, to disqualify such
Option from treatment as an “incentive stock option” under Section 422 of the Code. To the extent
that the aggregate fair market value of Common Stock with respect to which “incentive stock
options” (within the meaning of Section 422 of the Code, but without regard to Section 422(d) of
the Code) are exercisable for the first time by a Participant during any calendar year under the
Plan, and all other plans of the Company and any Subsidiary or parent corporation thereof (as
defined in Section 424(e) of the Code), exceeds $100,000, the Options shall be treated as
Non-Qualified Stock Options to the extent required by Section 422 of the Code. The rule set forth
in the preceding sentence shall be applied by taking Options and any other “incentive stock
options” into account in the order in which they were granted and the fair market value of stock
shall be determined as of the time the respective Options were granted.




          8.3 Option Exercise Price. The exercise price per Share subject to each Option shall
be set by the Administrator, but shall not be less than 100% of the Fair Market Value of a Share on
the date the Option is granted. In addition, in the case of Incentive Stock Options granted to a
Greater Than 10% Stockholder, the exercise price per share shall not be less than 110% of the Fair
Market Value of a Share on the date the Option is granted (or the date the Option is modified,
extended or renewed for purposes of Section 424(h) of the Code).




          8.4 Option Term. The term of each Option shall be set by the Administrator in its
sole discretion; provided, however, that the term shall not be more than 10 years
from the date the Option is granted, or five years from the date an Incentive Stock Option is
granted to a Greater Than 10% Stockholder. The Administrator shall determine the time period,
including the time period following a Termination of Service, during which the Participant has the
right to







14









 







exercise the vested Options, which time period may not extend beyond the term of the
Option term.




          8.5 Option Vesting. The Administrator shall determine the period during which a
Participant shall vest in an Option and have the right to exercise such Option in whole or in part.
Such vesting may be based on service with the Company or any Subsidiary, any of the Performance
Criteria, or any other criteria selected by the Administrator. At any time after grant of an
Option, the Administrator may, in its sole discretion and subject to whatever terms and conditions
it selects, accelerate the period during which an Option vests. No portion of an Option that is
unexercisable at a Participant’s Termination of Service shall thereafter become exercisable, except
as may be otherwise provided by the Administrator either in the Award Agreement or by action of the
Administrator following the grant of the Option.




          8.6 Substitute Awards. Notwithstanding the foregoing provisions of this Article VIII
to the contrary, in the case of an Option that is a Substitute Award, the price per Share of the
Shares subject to such Option may be less than the Fair Market Value per share on the date of
grant, provided that the excess of: (a) the aggregate Fair Market Value (as of the date such
Substitute Award is granted) of the Shares subject to the Substitute Award, over (b) the aggregate
exercise price thereof does not exceed the excess of: (i) the aggregate fair market value (as of
the time immediately preceding the transaction giving rise to the Substitute Award, such fair
market value to be determined by the Administrator) of the shares of the predecessor entity that
were subject to the grant assumed or substituted for by the Company, over (ii) the aggregate
exercise price of such shares.




          8.7 Substitution of Stock Appreciation Rights. The Administrator may provide in the
Award Agreement evidencing the grant of an Option that the Administrator, in its sole discretion,
shall have the right to substitute a Stock Appreciation Right for such Option at any time prior to
or upon exercise of such Option; provided that such Stock Appreciation Right shall be
exercisable with respect to the same number of Shares for which such substituted Option would have
been exercisable




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




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





     (a) A written notice complying with the applicable rules established by the
Administrator stating that the Option, or a portion thereof, is exercised. The notice shall
be signed by the Participant or other person then entitled to exercise the Option or such
portion of the Option;



15









 






     (b) Such representations and documents as the Administrator, in its sole discretion,
deems necessary or advisable to effect compliance with all applicable provisions of the
Securities Act and any other Applicable Laws. The Administrator may, in its sole
discretion, also take whatever additional actions it deems appropriate to effect such
compliance, including, without limitation, placing legends on share certificates and issuing
stop-transfer notices to agents and registrars;




     (c) In the event that the Option is exercised pursuant to this Section 8.9 by any
person or persons other than the Participant, appropriate proof of the right of such person
or persons to exercise the Option; and




     (d) Full payment of the exercise price and applicable withholding taxes to the
Secretary of the Company for the Shares with respect to which the Option, or portion
thereof, is exercised, in a manner permitted by Sections 12.1 and 12.2.



          8.10 Notification Regarding Disposition. The Participant shall give the Company
prompt notice of any disposition of Shares acquired by exercise of an Incentive Stock Option that
occurs within (i) two years from the date of granting (including the date the Option is modified,
extended or renewed for purposes of Section 424(h) of the Code) such Option to such Participant, or
(ii) one year after the transfer of such Shares to such Participant.




ARTICLE IX




RESTRICTED STOCK



          9.1 Award of Restricted Stock.





     (a) The Administrator is authorized to grant Restricted Stock to Service Providers, and
shall determine the terms and conditions, including the restrictions applicable to each
award of Restricted Stock, which terms and conditions shall not be inconsistent with the
Plan, and may impose such conditions on the issuance of such Restricted Stock as it deems
appropriate.




     (b) The Administrator shall establish the purchase price, if any, and form of payment
for Restricted Stock; provided, however, that such purchase price shall be
no less than the par value of the Common Stock to be purchased, unless otherwise permitted
by Applicable Law. In all cases, legal consideration shall be required for each issuance of
Restricted Stock.



          9.2 Rights as Stockholders. Subject to Section 9.4, upon issuance of Restricted
Stock, the Participant shall have, unless otherwise provided by the Administrator, all the rights
of a stockholder with respect to the Shares of Restricted Stock, subject to the restrictions in his
or her Award Agreement, including the right to receive all dividends and other distributions paid
or made with respect to the Shares; provided, however, that, in the sole discretion
of the Administrator, any extraordinary distributions with respect to the Common Stock shall be
subject to the restrictions set forth in Section 9.3.







16









 








          9.3 Restrictions. All Shares of Restricted Stock (including any Shares received by
Participants thereof with respect to Shares of Restricted Stock as a result of stock dividends,
stock splits or any other form of recapitalization) shall, in the terms of each individual Award
Agreement, be subject to such restrictions and vesting requirements as the Administrator shall
provide. Such restrictions may include, without limitation, restrictions concerning voting rights
and transferability, and such restrictions may lapse separately or in combination at such times and
pursuant to such circumstances or based on such criteria as selected by the Administrator,
including, without limitation, criteria based on the Participant’s duration of employment,
directorship or consultancy with the Company, the Performance Criteria, Company performance,
individual performance or other criteria selected by the Administrator. By action taken after the
Restricted Stock is issued, the Administrator may, on such terms and conditions as it may determine
to be appropriate, accelerate the vesting of such Restricted Stock by removing any or all of the
restrictions imposed by the terms of the Award Agreement. Restricted Stock may not be sold or
encumbered until all restrictions are terminated or expire.




          9.4 Repurchase or Forfeiture of Restricted Stock. If no price was paid by the
Participant for the Restricted Stock, upon a Termination of Service, the Participant’s rights in
unvested Restricted Stock then subject to restrictions shall lapse, and such Restricted Stock shall
be surrendered to the Company and cancelled without consideration. If a price was paid by the
Participant for the Restricted Stock, upon a Termination of Service, the Company shall have the
right to repurchase from the Participant the unvested Restricted Stock then subject to restrictions
at a cash price per Share equal to the price paid by the Participant for such Restricted Stock or
such other amount as may be specified in the Award Agreement. The Administrator in its sole
discretion may provide that upon the occurrence of certain events, including a Change in Control,
the Participant’s death, retirement or disability or any other specified Termination of Service or
any other event, the Participant’s rights in unvested Restricted Stock shall not lapse, such
Restricted Stock shall vest and, if applicable, the Company shall not have a right of repurchase.




          9.5 Certificates for Restricted Stock. Restricted Stock granted pursuant to the Plan
may be evidenced in such manner as the Administrator shall determine. Certificates or book entries
evidencing Shares of Restricted Stock must include an appropriate legend referring to the terms,
conditions and restrictions applicable to such Restricted Stock, and the Company may, in it sole
discretion, retain physical possession of any stock certificate until such time as all applicable
restrictions lapse.




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







17









 








ARTICLE X




STOCK APPRECIATION RIGHTS



          10.1 Grant of Stock Appreciation Rights.





     (a) The Administrator is authorized to grant Stock Appreciation Rights to Service
Providers from time to time, in its sole discretion, on such terms and conditions as it may
determine, consistent with the Plan.




     (b) A Stock Appreciation Right shall entitle the Participant (or other person entitled
to exercise the Stock Appreciation Right pursuant to the Plan) to exercise all or a
specified portion of the Stock Appreciation Right (to the extent then exercisable pursuant
to its terms) and to receive from the Company an amount determined by multiplying the
difference obtained by subtracting the exercise price per Share of the Stock Appreciation
Right from the per-Share Fair Market Value on the date of exercise of the Stock Appreciation
Right by the number of Shares with respect to which the Stock Appreciation Right shall have
been exercised, subject to any limitations the Administrator may impose. Except as
described in Section 10.1(c) below, the exercise price per Share subject to each Stock
Appreciation Right shall be set by the Administrator, but shall not be less than 100% of the
Fair Market Value on the date the Stock Appreciation Right is granted.




     (c) Notwithstanding the foregoing provisions of Section 10.1(b) to the contrary, in the
case of a Stock Appreciation Right that is a Substitute Award, the price per Share of the
Shares subject to such Stock Appreciation Right may be less than the Fair Market Value per
Share on the date of grant, provided that the excess of: (a) the aggregate Fair Market
Value (as of the date such Substitute Award is granted) of the Shares subject to the
Substitute Award, over (b) the aggregate exercise price thereof, does not exceed the excess
of: (i) the aggregate fair market value (as of the time immediately preceding the
transaction giving rise to the Substitute Award, such fair market value to be determined by
the Administrator) of the shares of the predecessor entity that were subject to the grant
assumed or substituted for by the Company, over (ii) the
aggregate exercise price of such shares.



          10.2 Stock Appreciation Right Vesting.





     (a) The Administrator shall determine the period during which a Participant shall vest
in a Stock Appreciation Right and have the right to exercise such Stock Appreciation Right
in whole or in part. Such vesting may be based on service with the Company or any
Subsidiary, or any other criteria selected by the Administrator. At any time after grant of
a Stock Appreciation Right, the Administrator may, in its sole discretion and subject to
whatever terms and conditions it selects, accelerate the period during which a Stock
Appreciation Right vests.




     (b) No portion of a Stock Appreciation Right that is unexercisable at Termination of
Service shall thereafter become exercisable, except as may be otherwise



18









 






provided by the Administrator either in the Award Agreement or by action of the
Administrator following the grant of the Stock Appreciation Right.



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





     (a) A written notice complying with the applicable rules established by the
Administrator stating that the Stock Appreciation Right, or a portion thereof, is exercised.
The notice shall be signed by the Participant or other person then entitled to exercise the
Stock Appreciation Right or such portion of the Stock Appreciation Right;




     (b) Such representations and documents as the Administrator, in its sole discretion,
deems necessary or advisable to effect compliance with all applicable provisions of the
Securities Act and any other Applicable Laws. The Administrator may, in its sole
discretion, also take whatever additional actions it deems appropriate to effect such
compliance; and




     (c) In the event that the Stock Appreciation Right is exercised pursuant to this
Section 10.3 by any person or persons other than the Participant, appropriate proof of the
right of such person or persons to exercise the Stock Appreciation Right.



          10.4 Payment. Payment of the amount determined under Section 10.1(b) above shall be
in cash, Shares (based on its Fair Market Value as of the date the Stock Appreciation Right is
exercised), or a combination of both, as determined by the Administrator.




ARTICLE XI




PERFORMANCE AWARDS, DIVIDEND EQUIVALENTS, DEFERRED STOCK,

STOCK PAYMENTS, RESTRICTED STOCK UNITS AND OTHER AWARDS



          11.1 Performance Awards.





     (a) The Administrator is authorized to grant Performance Awards to any Service Provider
and to determine whether such Performance Awards shall be Performance-Based Compensation.
The value of Performance Awards may be linked to any one or more of the Performance Criteria
or other specific criteria determined by the Administrator, in each case on a specified date
or dates or over any period or periods determined by the Administrator. In making such
determinations, the Administrator shall consider (among such other factors as it deems
relevant in light of the specific type of Award) the contributions, responsibilities and
other compensation of the particular Service Provider. Performance Awards may be paid in
cash, Shares or both, as determined by the Administrator.




     (b) Without limiting Section 11.1(a), the Administrator may grant Performance Awards to
any Service Provider in the form of a cash bonus payable upon the attainment of objective
Performance Goals, or such other criteria, whether or not



19









 






objective, which are established by the Administrator, in each case on a specified date
or dates or over any period or periods determined by the Administrator. Any such bonuses
paid to a Participant that are intended to be Performance-Based Compensation shall be based
upon objectively determinable bonus formulas established in accordance with the provisions
of Article VII.



          11.2 Dividend Equivalents.





     (a) Dividend Equivalents may be granted by the Administrator based on dividends
declared on the Common Stock, to be credited as of dividend payment dates during the period
between the date an Award is granted to a Participant and the date such Award vests, is
exercised, is distributed or expires, as determined by the Administrator. Such Dividend
Equivalents shall be converted to cash or additional Shares by such formula and at such time
and subject to such limitations as may be determined by the Administrator.




     (b) Notwithstanding the foregoing, no Dividend Equivalents shall be payable with
respect to Options or Stock Appreciation Rights, unless otherwise determined by the
Administrator.



          11.3 Stock Payments. The Administrator is authorized to make Stock Payments to any
Service Provider. The number or value of Shares of any Stock Payment shall be determined by the
Administrator and may be based upon one or more Performance Criteria or any other specific
criteria, including service to the Company or any Subsidiary, determined by the Administrator.
Stock Payments may, but are not required to, be made in lieu of base salary, bonus, fees or other
cash compensation otherwise payable to such Service Provider.




          11.4 Deferred Stock. The Administrator is authorized to grant Deferred Stock to any
Service Provider. The number of Shares of Deferred Stock shall be determined by the Administrator
and may be based on one or more Performance Criteria or other specific criteria, including service
to the Company or any Subsidiary, as the Administrator determines, in each case on a specified date
or dates or over any period or periods determined by the Administrator. Common Stock underlying a
Deferred Stock award will not be issued until the Deferred Stock award has vested, pursuant to a
vesting schedule or other conditions or criteria set by the Administrator. Unless otherwise
provided by the Administrator, a recipient of Deferred Stock shall have no rights as a Company
stockholder with respect to such Deferred Stock until such time as the Award has vested and the
Common Stock underlying the Award has been issued to the Participant.




          11.5 Restricted Stock Units. The Administrator is authorized to grant Restricted
Stock Units to any Service Provider. The number and terms and conditions of Restricted Stock Units
shall be determined by the Administrator. The Administrator shall specify the date or dates on
which the Restricted Stock Units shall become fully vested and nonforfeitable, and may specify such
conditions to vesting as it deems appropriate, including conditions based on one or more
Performance Criteria or other specific criteria, including service to the Company or any
Subsidiary, in each case on a specified date or dates or over any period or periods, as the
Administrator determines. The Administrator shall specify, or permit the






20









 







Participant to elect, the conditions and dates upon which the Shares underlying the Restricted
Stock Units shall be issued. On the distribution dates, the Company shall issue to the Participant
one unrestricted, fully transferable Share or a cash payment equal to the Fair Market Value of
Common Stock as of the distribution date for each vested and nonforfeitable Restricted Stock Unit.




          11.6 Other Awards. The Administrator shall have the authority to specify the terms
and provisions of other forms of equity-based or equity-related Awards not described above which
the Administrator determines to be consistent with the purpose of the Plan and the interests of the
Company, which Awards may provide for cash payments based in whole or in part on the value or
future value of Common Stock, for the acquisition or future acquisition of Common Stock, or any
combination thereof. Other Awards shall also include cash payments (including the cash payment of
dividend equivalents) under the Plan which may be based on one or more criteria determined by the
Administrator which are unrelated to the value of Common Stock and which may be granted in tandem
with, or independent of, Awards of Stock Options, Restricted Stock Units or Performance-Based
Restricted Stock Units under the Plan.




          11.7 Term. The term of a Performance Award, Dividend Equivalent award, Deferred Stock
award, Stock Payment award, Restricted Stock Unit award or other award shall be set by the
Administrator in its sole discretion.




          11.8 Exercise or Purchase Price. The Administrator may establish the exercise or
purchase price of a Performance Award, Shares of Deferred Stock, Shares distributed as a Stock
Payment award, Shares distributed pursuant to a Restricted Stock Unit award or Shares distributed
under another award; provided, however, that value of the consideration shall not
be less than the par value of a Share, unless otherwise permitted by Applicable Law.




          11.9 Exercise upon Termination of Service. A Performance Award, Dividend Equivalent
award, Deferred Stock award, Stock Payment award, Restricted Stock Unit award or other award is
exercisable or distributable only while the Participant is an Employee, Director or Consultant, as
applicable. The Administrator, however, in its sole discretion, may provide that the Performance
Award, Dividend Equivalent award, Deferred Stock award, Stock Payment award, Restricted Stock Unit
award or other award may be exercised or distributed subsequent to a Termination of Service in
certain events, including a Change in Control, the Participant’s death, retirement or disability or
any other specified Termination of Service.




ARTICLE XII




ADDITIONAL TERMS OF AWARDS



          12.1 Payment. The Administrator shall determine the methods by which payments by any
Participant with respect to any Awards granted under the Plan shall be made, including, without
limitation: (a) cash or check, (b) Shares (including, in the case of payment of the exercise price
of an Award, Shares issuable pursuant to the exercise of the Award) or Shares held for such period
of time as may be required by the Administrator in order to avoid adverse accounting consequences,
in each case, having a Fair Market Value on the date of delivery equal to the aggregate payments
required, (c) delivery of a notice that the Participant has placed a






21









 







market sell order with a broker with respect to Shares then issuable upon exercise or vesting
of an Award, and that the broker has been directed to pay a sufficient portion of the net proceeds
of the sale to the Company in satisfaction of the aggregate payments required; provided,
that payment of such proceeds is then made to the Company upon settlement of such sale, or (d)
other form of legal consideration acceptable to the Administrator. The Administrator shall also
determine the methods by which Shares shall be delivered or deemed to be delivered to Participants.
Notwithstanding any other provision of the Plan to the contrary, no Participant who is a Director
or an “executive officer” of the Company within the meaning of Section 13(k) of the Exchange Act
shall be permitted to make payment with respect to any Awards granted under the Plan, or continue
any extension of credit with respect to such payment with a loan from the Company or a loan
arranged by the Company in violation of Section 13(k) of the Exchange Act.




          12.2 Tax Withholding. The Company or any Subsidiary shall have the authority and the
right to deduct or withhold, or require a Participant to remit to the Company, an amount sufficient
to satisfy federal, state, local and foreign taxes (including the Participant’s FICA or employment
tax obligations) required by law to be withheld with respect to any taxable event concerning a
Participant arising as a result of the Plan. The Administrator may, in its sole discretion and in
satisfaction of the foregoing requirement, withhold, or allow a Participant to elect to have the
Company withhold, Shares otherwise issuable under an Award (or allow the surrender of Shares).
Unless determined otherwise by the Administrator, the number of Shares that may be so withheld or
surrendered shall be limited to the number of Shares that have a Fair Market Value on the date of
withholding or repurchase no greater than the aggregate amount of such liabilities based on the
minimum statutory withholding rates for federal, state, local and foreign income tax and payroll
tax purposes that are applicable to such supplemental taxable income. The Administrator shall
determine the Fair Market Value, consistent with applicable provisions of the Code, for tax
withholding obligations due in connection with a broker-assisted cashless Option or Stock
Appreciation Right exercise involving the sale of Shares to pay the Option or Stock Appreciation
Right exercise price or any tax withholding obligation.




          12.3 Transferability of Awards.





     (a) Except as otherwise provided in Section 12.3(b):




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




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



22









 






except to the extent that such disposition is permitted by the preceding
sentence; and




     (iii) During the lifetime of the Participant, only the Participant may exercise
an Award (or any portion thereof) granted to him under the Plan, unless it has been
disposed of pursuant to a qualified domestic relations order. After the death of
the Participant, any exercisable portion of an Award may, prior to the time when
such portion becomes unexercisable under the Plan or the applicable Award Agreement,
be exercised by his personal representative or by any person empowered to do so
under the deceased Participant’s will or under the then Applicable Laws of descent
and distribution.




     (b) Notwithstanding Section 12.3(a), the Administrator, in its sole discretion, may
determine to permit a Participant to transfer an Award other than an Incentive Stock Option
to any one or more Permitted Transferees (as defined below), subject to the following terms
and conditions:




     (i) an Award transferred to a Permitted Transferee shall not be assignable or
transferable by the Permitted Transferee other than by will or the laws of descent
and distribution;




     (ii) an Award transferred to a Permitted Transferee shall continue to be
subject to all the terms and conditions of the Award as applicable to the original
Participant (other than the ability to further transfer the Award); and




     (iii) the Participant and the Permitted Transferee shall execute any and all
documents requested by the Administrator, including, without limitation, documents
to (A) confirm the status of the transferee as a Permitted Transferee, (B) satisfy
any requirements for an exemption for the transfer under applicable federal, state
and foreign securities laws and (C) evidence the transfer.


For purposes of this Section 12.3(b), “Permitted Transferee” shall mean, with respect to a
Participant, any “family member” of the Participant, as defined under the instructions to use of
the Form S-8 Registration Statement under the Securities Act, or any other transferee specifically
approved by the Administrator after taking into account any Applicable Laws.





     (c) Notwithstanding Section 12.3(a)(i), a Participant may, in the manner determined by
the Administrator, designate a beneficiary to exercise the rights of the Participant and to
receive any distribution with respect to any Award upon the Participant’s death. A
beneficiary, legal guardian, legal representative or other person claiming any rights
pursuant to the Plan is subject to all terms and conditions of the Plan and any Award
Agreement applicable to the Participant, except to the extent the Plan and Award Agreement
otherwise provide, and to any additional restrictions deemed necessary or appropriate by the
Administrator. If the Participant is married or a domestic partner in a domestic
partnership qualified under Applicable Law and resides in a community property state, a
designation of a person other than the Participant’s spouse or domestic partner, as
applicable, as his or her beneficiary with respect to more than 50% of the



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Participant’s interest in the Award shall not be effective without the prior written
consent of the Participant’s spouse or domestic partner. If no beneficiary has been
designated or survives the Participant, payment shall be made to the person entitled thereto
pursuant to the Participant’s will or the laws of descent and distribution. Subject to the
foregoing, a beneficiary designation may be changed or revoked by a Participant at any time
provided the change or revocation is filed with the Administrator prior to the Participant’s
death.



     12.4 Conditions to Issuance of Shares.




     (a) Notwithstanding anything herein to the contrary, the Company shall not be required
to issue or deliver any certificates or make any book entries evidencing Shares pursuant to
the exercise of any Award, unless and until the Board has determined, with advice of
counsel, that the issuance of such Shares is in compliance with all Applicable Laws,
regulations of governmental authorities and, if applicable, the requirements of any exchange
on which the Shares are listed or traded, and the Shares are covered by an effective
registration statement or applicable exemption from registration. In addition to the terms
and conditions provided herein, the Board may require that a Participant make such
reasonable covenants, agreements and representations as the Board, in its discretion, deems
advisable in order to comply with any such laws, regulations or requirements.




     (b) All Common Stock certificates delivered pursuant to the Plan and all Shares issued
pursuant to book entry procedures are subject to any stop-transfer orders and other
restrictions as the Administrator deems necessary or advisable to comply with federal, state
or foreign securities or other laws, rules and regulations and the rules of any securities
exchange or automated quotation system on which the Common Stock is listed, quoted or
traded. The Administrator may place legends on any Common Stock certificate or book entry
to reference restrictions applicable to the Common Stock.




     (c) The Administrator shall have the right to require any Participant to comply with
any timing or other restrictions with respect to the settlement, distribution or exercise of
any Award, including a window-period limitation, as may be imposed in the sole discretion of
the Administrator.




     (d) No fractional Shares shall be issued and the Administrator shall determine, in its
sole discretion, whether cash shall be given in lieu of fractional Shares or whether such
fractional Shares shall be eliminated by rounding down.




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



          12.5 Recoupment Provisions. Any Awards granted under this Plan shall be subject to
any clawback or recoupment policies and procedures that are required under Applicable Law.







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          12.6 Repricing. Subject to Article XIII, the Administrator shall have the authority,
without the approval of the stockholders of the Company, to amend any outstanding award, in whole
or in part, to increase or reduce the price per Share or to cancel and replace an Award, in whole
or in part, with the grant of an Award having a price per Share that is less than, greater than or
equal to the price per Share of the original Award.




ARTICLE XIII




CORPORATE EVENTS AND CHANGE IN CONTROL



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




          13.2 Change in Capitalization. The number, type and kind of Shares authorized for
issuance under Sections 4.1 and 7.6 above shall be equitably adjusted in the event of a stock
split, reverse stock split, subdivision, bonus issue, stock dividend, recapitalization,
reorganization, merger, amalgamation, consolidation, division, extraordinary dividend, split-up,
spin-off, combination, exchange of shares, warrants or rights offering to purchase Common Stock at
a price substantially below Fair Market Value, or other similar corporate event affecting the
Common Stock in order to preserve the benefits intended to be made available under the Plan. In
addition, upon the occurrence of any of the foregoing events, the number of outstanding Awards and
the number, type and kind of securities subject to any outstanding Award and the exercise or
purchase price per share, if any, under any outstanding Award shall be equitably adjusted
(including by payment of cash to a Participant) in order to preserve the benefits intended to be
made available to Participants. Such adjustments shall be made by the Administrator, whose
determination as to what adjustments shall be made, and the extent thereof, shall be final, binding
and conclusive on all persons having an interest therin. Unless otherwise determined by the
Administrator, such adjusted Awards shall be subject to the same vesting schedule and restrictions
to which the underlying Award is subject. Any adjustment affecting an Award intended as
Performance-Based Compensation shall be made consistent with the requirements of Section 162(m) of
the Code to the extent necessary to preserve deductibility.




          13.3 Change in Control. In the event of a Change in Control, the Administrator, in
its sole discretion, and on such terms and conditions as it deems appropriate, either by the terms
of the Award or by action taken prior to the occurrence of such Change in Control, may take any one
or more of the following actions whenever the Administrator determines that such action is
appropriate or desirable in order to prevent the dilution or enlargement of the benefits intended
to be made available under the Plan or to facilitate the Change in Control transaction:







25









 









     (a) to terminate or cancel any outstanding Award in exchange for a cash payment (and,
for the avoidance of doubt, if as of the date of the Change in Control, the Administrator
determines that no amount would have been realized upon the exercise of the Award or other
realization of the Participant’s rights, then the Award may be cancelled by the Company
without payment of consideration);




     (b) to provide for the assumption, substitution, replacement or continuation of any
Award by the successor or surviving corporation (or a parent or subsidiary thereof) with
cash, securities, rights or other property to be paid or issued, as the case may be, by the
successor or surviving corporation (or a parent or subsidiary thereof), and to provide for
appropriate adjustments with respect to the number, type and kind of securities (or other
consideration) of the successor or surviving corporation (or a parent or subsidiary
thereof), subject to any replacement awards, the terms and conditions of the replacement
awards (including, without limitation, any applicable performance targets or criteria with
respect thereto) and the grant, exercise or purchase price per share for the replacement
awards;




     (c) to make any other adjustments in the number, type and kind of securities (or other
consideration) subject to outstanding Awards and in the terms and conditions of outstanding
Awards (including the grant or exercise price and performance criteria with respect thereto)
and Awards that may be granted in the future;




     (d) to provide that any Award shall be accelerated and become exercisable, payable
and/or fully vested with respect to all Shares covered thereby, notwithstanding anything to
the contrary in the Plan or the applicable Award Agreement; and




     (e) to provide that any Award cannot vest, be exercised or become payable after such
event.



          13.4 In the event that upon a Change in Control, all outstanding Awards are continued,
assumed, replaced or substituted with substantially equivalent terms and conditions, unless
otherwise provided by the Administrator (either as evidenced in the Award Agreement or by an action
taken thereafter), the vesting terms of the outstanding Awards shall continue and there shall not
be any acceleration of vesting or exercisability of the outstanding Awards. Notwithstanding the
foregoing, if (a) the surviving or successor corporation in a Change in Control does not continue,
assume, replace or substitute an outstanding Award upon a Change in Control or (b) the Participant
experiences a Qualifying Termination, such Award shall become fully vested and, if applicable,
exercisable and all forfeiture restrictions on such Award shall lapse, in each case, as of
immediately prior to the consummation of such Change in Control or the Qualified Termination, as
applicable. If an Award is exercisable in lieu of assumption or substitution in the event of a
Change in Control, the Administrator shall notify the Participant that the Award shall be fully
exercisable for a period of 30 days from the date of such notice, contingent upon the occurrence of
the Change in Control, and the Award shall terminate upon the expiration of such period.







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          13.5 The Administrator may, in its sole discretion, include such further provisions and
limitations in any Award, agreement or certificate, as it may deem equitable and in the best
interests of the Company that are not inconsistent with the provisions of the Plan.




          13.6 With respect to Awards that are granted to Covered Employees and are intended to qualify
as Performance-Based Compensation, no adjustment or action described in this Article XIII or in any
other provision of the Plan shall be authorized to the extent that such adjustment or action would
cause such Award to fail to so qualify as Performance-Based Compensation, unless the Administrator
determines that the Award should not so qualify. No adjustment or action described in this Article
XIII or in any other provision of the Plan shall be authorized to the extent that such adjustment
or action would cause the Plan to violate Section 422(b)(1) of the Code. Furthermore, no such
adjustment or action shall be authorized to the extent such adjustment or action would result in
short-swing profits liability under Section 16 or violate the exemption conditions of Rule 16b-3
unless the Administrator determines that the Award is not to comply with such exemption conditions.




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




          13.8 Upon the occurrence of any event described in Section 13.2, for reasons of administrative
convenience, the Company, in its sole discretion, may refuse to permit the exercise of any Award
during a period of up to 30 days prior to the consummation of any such transaction.




          13.9 No action shall be taken under this Article XIII that will cause an Award to fail to
comply with Section 409A of the Code, to the extent applicable to such Award. Any adjustments to
outstanding Awards shall be effected in a manner which shall preclude the enlargement or dilution
of rights and benefits under such options and shall be conducted in compliance with Section 409A of
the Code.




ARTICLE XIV




AMENDMENT, SUSPENSION OR TERMINATION OF THE PLAN



          Except as otherwise provided in this Article XIV, the Plan may be wholly or partially amended
or otherwise modified, suspended or terminated at any time or from time to time by the Board.
However, without approval of the Company’s stockholders given within 12 months before or after the
action by the Board, no action of the Board may, except as provided in Article XIII, increase the
limits imposed in Article IV on the maximum number of






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Shares that may be issued under the Plan. Except as provided in Section 16.4 or as the Board determines in
good faith to be in the best interests of the Participants affected thereby, no amendment,
suspension or termination of the Plan shall, without the consent of the Participant, impair any
rights or obligations under any Award theretofore granted or awarded, unless the Award itself
otherwise expressly so provides. No Awards may be granted or awarded during any period of
suspension or after termination of the Plan, and in no event may any Award be granted under the
Plan after the tenth anniversary of the Effective Date.




ARTICLE XV




APPROVAL OF PLAN BY STOCKHOLDERS



          The Plan will be submitted for the approval of the Company’s stockholders within 12 months of
the date of the Board’s initial adoption of the Plan. Awards may be granted or awarded prior to
such stockholder approval; provided that such Awards shall not be exercisable, shall not
vest and the restrictions thereon shall not lapse and no Shares shall be issued pursuant thereto
prior to the time when the Plan is approved by the stockholders; and provided
further that if such approval has not been obtained at the end of said 12-month period, all
Awards previously granted or awarded under the Plan shall thereupon be canceled and become null and
void.




ARTICLE XVI




MISCELLANEOUS PROVISIONS



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




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




          16.3 Effect of Plan upon Other Compensation Plans. The adoption of the Plan shall not
affect any other compensation or incentive plans in effect for the Company or any Subsidiary.
Nothing in the Plan shall be construed to limit the right of the Company or any Subsidiary: (i) to
establish any other forms of incentives or compensation for Employees, Directors or Consultants of
the Company or any Subsidiary, or (ii) to grant or assume options or other rights or awards
otherwise than under the Plan in connection with any proper corporate purpose, including, without
limitation, the grant or assumption of options in connection with the acquisition by purchase,
lease, merger, consolidation or otherwise, of the business, stock or assets of any corporation,
partnership, limited liability company, firm or association.




          16.4 Compliance with Laws. The Plan, the granting and vesting of Awards under the
Plan and the issuance and delivery of Shares and the payment of money under the Plan or under
Awards granted or awarded hereunder are subject to compliance with all applicable






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U.S. Federal, state, local and non-U.S. laws, rules and regulations (including but not limited
to U.S. Federal, state and non-U.S. securities law and margin requirements) and to such approvals
by any listing, regulatory or governmental authority as may, in the opinion of the Company, be
necessary or advisable in connection therewith and if requested by the Company, the person
acquiring any securities under the Plan shall provide such assurances and representations to the
Company as the Company may deem necessary or desirable to assure compliance with all applicable
legal requirements. To the extent permitted by Applicable Law, the Plan and Awards granted or
awarded hereunder shall be deemed amended to the extent necessary to conform to such laws, rules
and regulations.




          16.5 Titles and Headings, References to Sections of the Code or Exchange Act. The
titles and headings of the Sections in the Plan are for convenience of reference only and, in the
event of any conflict, the text of the Plan, rather than such titles or headings, shall control.
References to sections of the Code or the Exchange Act shall include any amendment or successor
thereto.




          16.6 Governing Law. The Plan and any agreements hereunder shall be administered,
interpreted and enforced under the internal laws of the State of Delaware.




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




          16.8 No Rights to Awards. No Service Provider or other person shall have any claim to
be granted any Award pursuant to the Plan, and neither the Company nor the Administrator is
obligated to treat Service Providers, Participants or any other persons uniformly.




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







29









 








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




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




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





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