Registrant's 2004 Equity Compensation Plan



 Exhibit 10.23 
  
 AUXILIUM PHARMACEUTICALS, INC. 
  
 2004 EQUITY COMPENSATION PLAN 







 TABLE OF CONTENTS 
  

					
	 	 	 	  	Page


	 SECTION 1
	 	Administration	  	1
	 SECTION 2
	 	Grants	  	2
	 SECTION 3
	 	Shares Subject to the Plan	  	2
	 SECTION 4
	 	Eligibility for Participation	  	3
	 SECTION 5
	 	Options	  	4
	 SECTION 6
	 	Stock Awards	  	7
	 SECTION 7
	 	Stock Units	  	8
	 SECTION 8
	 	Other Equity Awards	  	9
	 SECTION 9
	 	Dividend Equivalents	  	9
	 SECTION 10
	 	Qualified Performance-Based Compensation	  	9
	 SECTION 11
	 	Deferrals	  	10
	 SECTION 12
	 	Withholding of Taxes	  	10
	 SECTION 13
	 	Transferability of Grants	  	11
	 SECTION 14
	 	Change of Control of the Company	  	11
	 SECTION 15
	 	Consequences of a Change of Control	  	12
	 SECTION 16
	 	Limitations On Issuance Or Transfer Of Shares	  	12
	 SECTION 17
	 	Amendment and Termination of the Plan	  	13
	 SECTION 18
	 	Funding of the Plan	  	14
	 SECTION 19
	 	Rights of Participants	  	14
	 SECTION 20
	 	No Fractional Shares	  	14
	 SECTION 21
	 	Headings	  	14
	 SECTION 22
	 	Effective Date of the Plan	  	14
	 SECTION 23
	 	Miscellaneous	  	14

  

 - i - 








 AUXILIUM PHARMACEUTICALS, INC. 
 2004 EQUITY COMPENSATION PLAN 
  
 The purpose of the Auxilium Pharmaceuticals, Inc. 2004 Equity Compensation Plan (the “Plan”) is to provide (i) designated employees of Auxilium
Pharmaceuticals, Inc. (the “Company”) and its subsidiaries, (ii) certain consultants and advisors who perform services for the Company or its subsidiaries and (iii) non-employee members of the Board of Directors of the Company (the
“Board”) with the opportunity to receive grants of incentive stock options, nonqualified stock options, stock awards, stock units and other equity-based awards. The Company believes that the Plan will encourage the participants to
contribute materially to the growth of the Company, thereby benefitting the Company’s stockholders, and will align the economic interests of the participants with those of the stockholders. 
  
 The Auxilium Pharmaceuticals, Inc. 2000 Equity Compensation Plan (the
“2000 Plan”) will be merged with and into this Plan as of the effectiveness of the registration statement for the Company’s initial public offering, and no additional grants will be made thereafter under the 2000 Plan. Outstanding
grants under the 2000 Plan will continue in effect according to their terms as in effect before the Plan merger (subject to such amendments as the Committee (as defined below) determines, consistent with the 2000 Plan), and the shares with respect
to outstanding grants under the 2000 Plan will be issued or transferred under this Plan. 
  
 SECTION 1 Administration 
  
 (a) Committee. The Plan shall be administered and interpreted by a committee consisting of members of the Board, which shall be appointed by the Board (the “Committee”). The Committee may consist of two or more persons who
are “outside directors” as defined under section 162(m) of the Internal Revenue Code of 1986, as amended (the “Code”), and related Treasury regulations, and “non-employee directors” as defined under Rule 16b-3 under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”). However, the Board may ratify or approve any grants as it deems appropriate, and the Board shall approve and administer all grants made to non-employee directors. The
Committee may delegate authority to one or more subcommittees, as it deems appropriate. To the extent a Board or subcommittee administers the Plan, references in the Plan to the “Committee” shall be deemed to refer to such Board or
subcommittee. 
  
 (b) Committee Authority. The Committee
shall have the sole authority to (i) determine the individuals to whom grants shall be made under the Plan, (ii) determine the type, size and terms of the grants to be made to each such individual, (iii) determine the time when the grants will be
made and the duration of any applicable exercise or restriction period, including the criteria for exercisability and the acceleration of exercisability, (iv) amend the terms of any previously issued grant, and (v) deal with any other matters
arising under the Plan. 
  
 (c) Committee Determinations.
The Committee shall have full power and authority to administer and interpret the Plan, to make factual determinations and to adopt or amend such rules, regulations, agreements and instruments for implementing the Plan and for the conduct of its
business as it deems necessary or advisable, in its sole discretion. The Committee’s interpretations of the Plan and all determinations made by the Committee pursuant to the powers vested in it hereunder shall be conclusive and binding on all
persons having any interest in the 







 Plan or in any awards granted hereunder. All powers of the Committee shall be executed in its sole discretion, in the
best interest of the Company, not as a fiduciary, and in keeping with the objectives of the Plan and need not be uniform as to similarly situated individuals. 
  

SECTION 2 Grants 
  
 Awards under the Plan may consist of grants of incentive stock options as described in Section 5 (“Incentive Stock Options”), nonqualified stock
options as described in Section 5 (“Nonqualified Stock Options”) (Incentive Stock Options and Nonqualified Stock Options are collectively referred to as “Options”), stock awards as described in Section 6 (“Stock
Awards”), stock units as described in Section 7 (“Stock Units”) and other equity-based awards as described in Section 8 (“Other Equity Awards”) (collectively referred to herein as “Grants”). All Grants shall be
subject to the terms and conditions set forth herein and to such other terms and conditions consistent with this Plan as the Committee deems appropriate and as are specified in writing by the Committee to the individual in a grant instrument or an
amendment to the grant instrument (the “Grant Instrument”). All Grants shall be made conditional upon the Grantee’s acknowledgement, in writing or by acceptance of the Grant, that all decisions and determinations of the Committee
shall be final and binding on the Grantee, his beneficiaries and any other person having or claiming an interest under such Grant. Grants under a particular Section of the Plan need not be uniform as among the Grantees. 
  
 SECTION 3 Shares Subject to the Plan 
  
 (a) Shares Authorized. Subject to adjustment as described below, the
aggregate number of shares of common stock of the Company (“Company Stock”) that may be issued or transferred under the Plan is 3,000,000 shares. The maximum number of authorized shares includes shares to be issued or transferred pursuant
to outstanding grants under the 2000 Plan, which has been merged into this Plan. 
  
 (b) Individual Limits. All Grants under the Plan, other than Dividend Equivalents, shall be expressed in shares of Company Stock. The maximum aggregate number of shares of Company Stock with respect to which
all Grants, other than Dividend Equivalents, may be made under the Plan to any individual during any calendar year shall be 2,500,000 shares, subject to adjustment as described below. A Grantee may not accrue Dividend Equivalents during any calendar
year in excess of $100,000. The individual limits of this subsection (b) shall apply without regard to whether the Grants are to be paid in Company Stock or cash. All cash payments (other than with respect to Dividend Equivalents) shall equal the
Fair Market Value of the shares of Company Stock to which the cash payment relates. 
  
 (c) Determination of Authorized Shares. The shares may be authorized but unissued shares of Company Stock or reacquired shares of Company Stock, including shares purchased by the Company on the open market for
purposes of the Plan. If and to the extent Options granted under the Plan (including options outstanding under the 2000 Plan) terminate, expire, or are canceled, forfeited, exchanged or surrendered without having been exercised or if any Stock
Awards, Stock Units, or Other Equity Awards are forfeited, the shares subject to such Grants shall again be available for purposes of the Plan. Shares of Company Stock surrendered in payment of the exercise price of an Option shall again be
available for issuance or transfer under 
  

 2 








 the Plan. To the extent any Grants are paid in cash, and not in shares of Company Stock, any shares previously subject to
such Grants shall again be available for issuance or transfer under the Plan. 
  
 (d) Adjustments. If there is any change in the number or kind of shares of Company Stock outstanding (i) by reason of a stock dividend, spinoff, recapitalization, stock split, or combination or exchange of
shares, (ii) by reason of a merger, reorganization or consolidation, (iii) by reason of a reclassification or change in par value, or (iv) by reason of any other extraordinary or unusual event affecting the outstanding Company Stock as a class
without the Company’s receipt of consideration, or if the value of outstanding shares of Company Stock is substantially reduced as a result of a spinoff or the Company’s payment of an extraordinary dividend or distribution, the maximum
number of shares of Company Stock available for Grants, the maximum number of shares of Company Stock that any individual participating in the Plan may be granted in any year, the number and kind of shares covered by outstanding Grants, the kind of
shares to be issued or transferred under the Plan, and the price per share or the applicable market value of such Grants may be appropriately adjusted by the Committee to reflect any increase or decrease in the number of, or change in the kind or
value of, issued shares of Company Stock to preclude, to the extent practicable, the enlargement or dilution of rights and benefits under such Grants; provided, however, that any fractional shares resulting from such adjustment shall be eliminated.
Any adjustments determined by the Committee shall be final, binding and conclusive. 
  
 SECTION 4 Eligibility for Participation 
  
 (a)
Eligible Persons. All employees of the Company and its subsidiaries, including Employees who are officers or members of the Board (“Employees”), and members of the Board who are not Employees (“Non-Employee Directors”)
shall be eligible to participate in the Plan. Consultants and advisors who perform services for the Company or any of its subsidiaries (“Key Advisors”) shall be eligible to participate in the Plan if the Key Advisors render bona fide
services to the Company or its subsidiaries, the services are not in connection with the offer and sale of securities in a capital-raising transaction and the Key Advisors do not directly or indirectly promote or maintain a market for the
Company’s securities. 
  
 (b) Selection of Grantees.
The Committee shall select the Employees, Non-Employee Directors and Key Advisors to receive Grants and shall determine the number of shares of Company Stock subject to a particular Grant in such manner as the Committee determines. Employees, Key
Advisors and Non-Employee Directors who receive Grants under this Plan shall hereinafter be referred to as “Grantees.” 
  
 SECTION 5 Options 
  
 The Committee may grant Options to an Employee, Non-Employee Director or Key Advisor, upon such terms as the Committee deems appropriate. The following
provisions are applicable to Options: 
  
 (a) Number of
Shares. The Committee shall determine the number of shares of Company Stock that will be subject to each Grant of Options to Employees, Non-Employee Directors and Key Advisors. 
  

 3 








 (b) Type of Option and Price. 
  
 (i) The Committee may grant Incentive Stock Options that are intended to qualify as “incentive stock options”
within the meaning of section 422 of the Code or Nonqualified Stock Options that are not intended so to qualify or any combination of Incentive Stock Options and Nonqualified Stock Options, all in accordance with the terms and conditions set forth
herein. Incentive Stock Options may be granted only to Employees. Nonqualified Stock Options may be granted to Employees, Non-Employee Directors and Key Advisors. 
  
 (ii) The purchase price (the “Exercise Price”) of Company Stock subject to an Option shall be determined by the
Committee and may be less than, equal to or greater than the Fair Market Value (as defined below) of a share of Company Stock on the date the Option is granted; provided, however, that an Incentive Stock Option may not be granted to an Employee who,
at the time of grant, owns stock possessing more than 10% of the total combined voting power of all classes of stock of the Company or any subsidiary of the Company, unless the Exercise Price per share is not less than 110% of the Fair Market Value
of Company Stock on the date of grant. 
  
 (iii) If the Company
Stock is publicly traded, then the Fair Market Value per share shall be determined as follows: (A) if the principal trading market for the Company Stock is a national securities exchange or the Nasdaq National Market, the last reported sale price
thereof on the relevant date or (if there were no trades on that date) the latest preceding date upon which a sale was reported, or (B) if the Company Stock is not principally traded on such exchange or market, the mean between the last reported
“bid” and “asked” prices of Company Stock on the relevant date, as reported on Nasdaq or, if not so reported, as reported by the National Daily Quotation Bureau, Inc. or as reported in a customary financial reporting service, as
applicable and as the Committee determines. If the Company Stock is not publicly traded or, if publicly traded, is not subject to reported transactions or “bid” or “asked” quotations as set forth above, the Fair Market Value per
share shall be as determined by the Committee. 
  
 (c) Option
Term. The Committee shall determine the term of each Option. The term of any Option shall not exceed ten years from the date of grant. However, an Incentive Stock Option that is granted to an Employee who, at the time of grant, owns stock
possessing more than 10% of the total combined voting power of all classes of stock of the Company, or any subsidiary of the Company, may not have a term that exceeds five years from the date of grant. 
  
 (d) Exercisability of Options. 
  
 (i) Options shall become exercisable in accordance with such terms and
conditions, consistent with the Plan, as may be determined by the Committee and specified in the Grant Instrument. The Committee may accelerate the exercisability of any or all outstanding Options at any time for any reason. 
  

 4 








 (ii) The Committee may provide in a Grant Instrument that the Grantee may elect to exercise part or all
of an Option before it otherwise has become exercisable. Any shares so purchased shall be restricted shares and shall be subject to a repurchase right in favor of the Company during a specified restriction period, with the repurchase price equal to
the lesser of (A) the Exercise Price or (B) the Fair Market Value of such shares at the time of repurchase, or such other restrictions as the Committee deems appropriate. 
  
 (e) Grants to Non-Exempt Employees. Notwithstanding the foregoing, Options granted to persons who are non-exempt
employees under the Fair Labor Standards Act of 1938, as amended, shall have an Exercise Price not less than 85% of the Fair Market Value of the Company Stock on the date of grant, and may not be exercisable for at least six months after the date of
grant (except that such Options may become exercisable, as determined by the Committee, upon the Grantee’s death, Disability or retirement, or upon a Change of Control or other circumstances permitted by applicable regulations). 
  
 (f) Termination of Employment, Disability or Death. 
  
 (i) Except as provided below, an Option may only be exercised while the
Grantee is employed by, or providing service to, the Employer (as defined below) as an Employee, Key Advisor or member of the Board. 
  
 (ii) In the event that a Grantee ceases to be employed by, or provide service to, the Employer for any reason other than Disability, death, or termination
for Cause (as defined below), any Option which is otherwise exercisable by the Grantee shall terminate unless exercised within 90 days after the date on which the Grantee ceases to be employed by, or provide service to, the Employer (or within such
other period of time as may be specified by the Committee), but in any event no later than the date of expiration of the Option term. Except as otherwise provided by the Committee, any of the Grantee’s Options that are not otherwise exercisable
as of the date on which the Grantee ceases to be employed by, or provide service to, the Employer shall terminate as of such date. 
  
 (iii) In the event the Grantee ceases to be employed by, or provide service to, the Employer on account of a termination for Cause by the Employer, any
Option held by the Grantee shall terminate as of the date the Grantee ceases to be employed by, or provide service to, the Employer. In addition, notwithstanding any other provisions of this Section 5, if the Committee determines that the Grantee
has engaged in conduct that constitutes Cause at any time while the Grantee is employed by, or providing service to, the Employer or after the Grantee’s termination of employment or service, any Option held by the Grantee shall immediately
terminate and the Grantee shall automatically forfeit all shares underlying any exercised portion of an Option for which the Company has not yet delivered the share certificates, upon refund by the Company of the Exercise Price paid by the Grantee
for such shares. Upon any exercise of an Option, the Company may withhold delivery of share certificates pending resolution of an inquiry that could lead to a finding resulting in a forfeiture. 
  
 (iv) In the event the Grantee ceases to be employed by, or provide service
to, the Employer on account of the Grantee’s Disability, any Option which is otherwise exercisable by the Grantee shall terminate unless exercised within one year after the date on which the 
  

 5 








 Grantee ceases to be employed by, or provide service to, the Employer (or within such other period of time as may be
specified by the Committee), but in any event no later than the date of expiration of the Option term. Except as otherwise provided by the Committee, any of the Grantee’s Options which are not otherwise exercisable as of the date on which the
Grantee ceases to be employed by, or provide service to, the Employer shall terminate as of such date. 
  
 (v) If the Grantee dies while employed by, or providing service to, the Employer or within 90 days after the date on which the Grantee ceases to be
employed or provide service on account of a termination specified in Section 5(f)(ii) above (or within such other period of time as may be specified by the Committee), any Option that is otherwise exercisable by the Grantee shall terminate unless
exercised within one year after the date on which the Grantee ceases to be employed by, or provide service to, the Employer (or within such other period of time as may be specified by the Committee or in the Grantee’s employment agreement, if
any), but in any event no later than the date of expiration of the Option term. Except as otherwise provided by the Committee, any of the Grantee’s Options that are not otherwise exercisable as of the date on which the Grantee ceases to be
employed by, or provide service to, the Employer shall terminate as of such date. 
  
 (vi) For purposes of the Plan: 
  
 (A) The term “Employer” shall mean the Company and its subsidiary corporations or other affiliates, as determined by the Committee. 
  
 (B) “Employed by, or provide service to, the Employer” shall mean employment or service as an
Employee, Key Advisor or member of the Board (so that, for purposes of exercising Options and satisfying conditions with respect to other Grants, a Grantee shall not be considered to have terminated employment or service until the Grantee ceases to
be an Employee, Key Advisor and member of the Board), unless the Committee determines otherwise. 
  
 (C) “Disability” shall mean, except as otherwise specified by the Committee, if any, with the Employer, a Grantee’s
becoming disabled within the meaning of section 22(e)(3) of the Code, within the meaning of the Employer’s long-term disability plan applicable to the Grantee, or as otherwise determined by the Committee. 
  
 (D) “Cause” shall mean, except to the extent
otherwise specified by the Committee, a finding by the Committee that the Grantee (i) has materially breached his or her employment or service contract with the Employer, which breach has not been remedied by the Grantee after written notice has
been provided to the Grantee of such breach, (ii) has engaged in disloyalty to the Company, including, without limitation, fraud, embezzlement, theft, commission of a felony or proven dishonesty, (iii) has disclosed trade secrets or confidential
information of the Employer to persons not entitled to receive such information, (iv) has breached any written non-competition or non-solicitation agreement between the Grantee and the Employer or (v) has engaged in such other behavior detrimental
to the interests of the Employer as the Committee determines. 
  

 6 








 (g) Exercise of Options. A Grantee may exercise an Option that has become exercisable, in whole or
in part, by delivering a notice of exercise to the Company. The Grantee shall pay the Exercise Price for an Option as specified by the Committee (i) in cash, (ii) with the approval of the Committee, by delivering shares of Company Stock owned by the
Grantee (including Company Stock acquired in connection with the exercise of an Option, subject to such restrictions as the Committee deems appropriate) and having a Fair Market Value on the date of exercise equal to the Exercise Price or by
attestation (on a form prescribed by the Committee) to ownership of shares of Company Stock having a Fair Market Value on the date of exercise equal to the Exercise Price, (iii) payment through a broker in accordance with procedures permitted by
Regulation T of the Federal Reserve Board, or (iv) by such other method as the Committee may approve. Shares of Company Stock used to exercise an Option shall have been held by the Grantee for the requisite period of time to avoid adverse accounting
consequences to the Company with respect to the Option. The Grantee shall pay the Exercise Price and the amount of any withholding tax due (pursuant to Section 12) at such time as may be specified by the Committee. 
  
 (h) Limits on Incentive Stock Options. Each Incentive Stock Option
shall provide that, if the aggregate Fair Market Value of the stock on the date of the grant with respect to which Incentive Stock Options are exercisable for the first time by a Grantee during any calendar year, under the Plan or any other stock
option plan of the Company or a subsidiary, exceeds $100,000, then the Option, as to the excess, shall be treated as a Nonqualified Stock Option. An Incentive Stock Option shall not be granted to any person who is not an Employee of the Company.

  
 SECTION 6 Stock Awards 
  
 The Committee may issue or transfer shares of Company Stock to an Employee,
Non-Employee Director or Key Advisor under a Stock Award, upon such terms as the Committee deems appropriate. The following provisions are applicable to Stock Awards: 
  
 (a) General Requirements. Shares of Company Stock issued or transferred pursuant to Stock Awards may be issued or
transferred for cash consideration or for no cash consideration, and subject to restrictions or no restrictions, as determined by the Committee. The Committee may, but shall not be required to, establish conditions under which restrictions on Stock
Awards shall lapse over a period of time or according to such other criteria as the Committee deems appropriate, including, without limitation, restrictions based upon the achievement of specific performance goals. The period of time during which
the Stock Awards will remain subject to restrictions will be designated in the Grant Instrument as the “Restriction Period.” 
  
 (b) Number of Shares. The Committee shall determine the number of shares of Company Stock to be issued or transferred pursuant to a Stock Award and
the restrictions applicable to such shares. 
  
 (c) Requirement
of Employment or Service. Unless the Committee determines otherwise, if the Grantee ceases to be employed by, or provide service to, the Employer during a period designated in the Grant Instrument as the Restriction Period, or if other specified
conditions are not met, the Stock Award shall terminate as to all shares covered by the Grant as to which the restrictions have not lapsed, and those shares of Company Stock must be immediately returned to the Company. The Committee may, however,
provide for complete or partial exceptions to this requirement as it deems appropriate. 
  

 7 








 (d) Restrictions on Transfer and Legend on Stock Certificate. During the Restriction Period, a
Grantee may not sell, assign, transfer, pledge or otherwise dispose of the shares of a Stock Award except to a successor under Section 13(a). Each certificate for a share of a Stock Award shall contain a legend giving appropriate notice of the
restrictions in the Grant. The Grantee shall be entitled to have the legend removed from the stock certificate covering the shares subject to restrictions when all restrictions on such shares have lapsed. The Committee may determine that the Company
will not issue certificates for Stock Awards until all restrictions on such shares have lapsed, or that the Company will retain possession of certificates for shares of Stock Awards until all restrictions on such shares have lapsed. 
  
 (e) Right to Vote and to Receive Dividends. Unless the Committee
determines otherwise, during the Restriction Period, the Grantee shall have the right to vote shares of Stock Awards and to receive any dividends or other distributions paid on such shares, subject to any restrictions deemed appropriate by the
Committee, including, without limitation, the achievement of specific performance goals. 
  
 (f) Lapse of Restrictions. All restrictions imposed on Stock Awards shall lapse upon the expiration of the applicable Restriction Period and the satisfaction of all conditions imposed by the Committee. The
Committee may determine, as to any or all Stock Awards, that the restrictions shall lapse without regard to any Restriction Period. 
  
 SECTION 7 Stock Units 
  
 The Committee may grant phantom units representing one or more shares of Company Stock to an Employee, Non-Employee Director or Key Advisor, upon such
terms and conditions as the Committee deems appropriate. The following provisions are applicable to Stock Units: 
  
 (a) Crediting of Units. Each Stock Unit shall represent the right of the Grantee to receive an amount based on the value of a share of Company
Stock, if specified conditions are met. All Stock Units shall be credited to bookkeeping accounts established on the Company’s records for purposes of the Plan. 
  
 (b) Terms of Stock Units. The Committee may grant Stock Units that are payable if specified performance goals or
other conditions are met, or under other circumstances. Stock Units may be paid at the end of a specified performance period or other period, or payment may be deferred to a date authorized by the Committee. The Committee shall determine the number
of Stock Units to be granted and the requirements applicable to such Stock Units. 
  
 (c) Requirement of Employment or Service. Unless the Committee determines otherwise, if the Grantee ceases to be employed by, or provide service to, the Employer during a specified period, or if other
conditions established by the Committee are not met, the Grantee’s Stock Units shall be forfeited. The Committee may, however, provide for complete or partial exceptions to this requirement as it deems appropriate. 
  

 8 








 (d) Payment With Respect to Stock Units. Payments with respect to Stock Units may be made in cash,
in Company Stock, or in a combination of the two, as determined by the Committee. 
  
 SECTION 8 Other Equity Awards 
  
 The Committee
may grant Other Equity Awards, which are awards (other than those described in Sections 5, 6, 7 and 9 of the Plan) that are based on, measured by or payable in Company Stock, including, without limitation, stock appreciation rights, to any Employee,
Non-Employee Director or Key Advisor, on such terms and conditions as the Committee shall determine. Other Equity Awards may be awarded subject to the achievement of performance goals or other conditions and may be payable in cash, Company Stock or
any combination of the foregoing, as the Committee shall determine. 
  
 SECTION
9 Dividend Equivalents 
  
 The Committee may include in a
Grant Instrument with respect to any Grant Dividend Equivalents entitling the Grantee to receive amounts equal to the ordinary dividends that would be paid, during the time the Grant is outstanding, on the shares of Company Stock covered by the
Grant as if such shares were then outstanding. The Committee shall determine whether Dividend Equivalents shall be paid currently or credited to a bookkeeping account as a dollar amount or in the form of Stock Units. The Committee shall determine
whether Dividend Equivalents shall be paid in cash, in shares of Company Stock or in a combination, whether they shall be conditioned upon the exercise, vesting or payment of the Grant to which they relate, and such other terms and conditions as the
Committee deems appropriate. 
  
 SECTION 10 Qualified Performance-Based
Compensation 
  
 (a) Designation as Qualified
Performance-Based Compensation. The Committee may determine that Stock Awards, Stock Units, Dividend Equivalents or Other Equity Awards granted to an Employee shall be considered “qualified performance-based compensation” under section
162(m) of the Code. The provisions of this Section 10 shall apply to Grants of Stock Awards, Stock Units, Dividend Equivalents and Other Equity Awards that are to be considered “qualified performance-based compensation” under section
162(m) of the Code, unless another exemption from the section 162(m) limitations shall apply. 
  
 (b) Performance Goals. When Stock Awards, Stock Units, Dividend Equivalents or Other Equity Awards that are to be considered “qualified performance-based compensation” are granted, the Committee shall
establish in writing (i) the objective performance goals that must be met, (ii) the performance period during which the performance goals must be met, (iii) the threshold, target and maximum amounts that may be paid if the performance goals are met,
and (iv) any other conditions that the Committee deems appropriate and consistent with the Plan and section 162(m) of the Code, including the employment requirements and payment terms. The performance goals may relate to the Employee’s business
unit or the performance of the Company and its subsidiaries as a whole, or any combination of the foregoing. The Committee shall use objectively determinable performance goals based on one or more of the following criteria: total stockholder return;
total stockholder return as compared to total stockholder return 
  

 9 








 of comparable companies or a publicly available index; net income; pretax earnings; earnings before interest expense and
taxes (EBIT); earnings before interest expense, taxes, depreciation and amortization (EBITDA); earnings per share; return on equity; return on assets; revenues; asset growth; operating ratios; access to and availability of funding; asset quality;
regulatory filings; regulatory approvals; or other operational, regulatory or departmental objectives. 
  
 (c) Establishment of Goals. The Committee shall establish the performance goals in writing either before the beginning of the performance period or
during a period ending no later than the earlier of (i) 90 days after the beginning of the performance period or (ii) the date on which 25% of the performance period has been completed, or such other date as may be required or permitted under
applicable regulations under section 162(m) of the Code. The performance goals shall satisfy the requirements for “qualified performance-based compensation,” including the requirement that the achievement of the goals be substantially
uncertain at the time they are established and that the goals be established in such a way that a third party with knowledge of the relevant facts could determine whether and to what extent the performance goals have been met. The Committee shall
not have discretion to increase the amount of compensation that is payable upon achievement of the designated performance goals. 
  
 (d) Announcement of Grants. The Committee shall certify and announce the results for each performance period to all Grantees immediately following
the announcement of the Company’s financial results for the performance period. If and to the extent that the Committee does not certify that the performance goals have been met, the grants of Stock Awards, Stock Units, Dividend Equivalents or
Other Equity Awards for the performance period shall be forfeited or shall not be made, as applicable. Any Grants that are to be paid as a result of achievement of performance goals shall be paid as specified in the Grant Instrument. 
  
 (e) Death, Disability or Other Circumstances. The Committee may
provide that Stock Awards, Stock Units, Dividend Equivalents or Other Equity Awards shall be payable or restrictions on Stock Awards shall lapse, in whole or in part, in the event of the Grantee’s death or Disability during the Performance
Period, or under other circumstances consistent with the Treasury regulations and rulings under section 162(m) of the Code. 
  
 SECTION 11 Deferrals 
  
 The Committee may permit or require a Grantee to defer receipt of the payment of cash or the delivery of shares that would otherwise be due to such
Grantee in connection with any Grant. If any such deferral election is permitted or required, the Committee shall establish rules and procedures for such deferrals. 
  
 SECTION 12 Withholding of Taxes 
  
 (a) Required Withholding. All Grants under the Plan shall be subject to applicable federal (including FICA), state and local tax withholding
requirements. The Employer may require that the Grantee or other person receiving or exercising Grants pay to the Employer the amount of any federal, state or local taxes that the Employer is required to withhold with respect to such Grants, or the
Employer may deduct from other wages paid by the Employer the amount of any withholding taxes due with respect to such Grants. 
  

 10 








 (b) Election to Withhold Shares. If the Committee so permits, a Grantee may elect to satisfy the
Employer’s tax withholding obligation with respect to Grants paid in Company Stock by having shares withheld up to an amount that does not exceed the minimum applicable withholding tax rate for federal (including FICA), state and local tax
liabilities. The election must be in a form and manner prescribed by the Committee and may be subject to the prior approval of the Committee. 
  
 SECTION 13 Transferability of Grants 
  
 (a) Nontransferability of Grants. Except as provided below, only the Grantee may exercise rights under a Grant during the Grantee’s lifetime.
A Grantee may not transfer those rights except (i) by will or by the laws of descent and distribution or (ii) with respect to Grants other than Incentive Stock Options, if permitted in any specific case by the Committee, pursuant to a domestic
relations order or otherwise as permitted by the Committee. When a Grantee dies, the personal representative or other person entitled to succeed to the rights of the Grantee may exercise such rights. Any such successor must furnish proof
satisfactory to the Company of his or her right to receive the Grant under the Grantee’s will or under the applicable laws of descent and distribution. 
  
 (b) Transfer of Nonqualified Stock Options. Notwithstanding the foregoing, the Committee may provide, in a Grant Instrument, that a Grantee may
transfer Nonqualified Stock Options to family members, or one or more trusts or other entities for the benefit of or owned by family members, consistent with the applicable securities laws, according to such terms as the Committee may determine;
provided that the Grantee receives no consideration for the transfer of an Option and the transferred Option shall continue to be subject to the same terms and conditions as were applicable to the Option immediately before the transfer. 

 
 SECTION 14 Change of Control of the Company 
  
 As used herein, a “Change of Control” shall be deemed to have
occurred if: 
  
 (a) Any “person” (as such term is used
in sections 13(d) and 14(d) of the Exchange Act) becomes a “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than 50% of the voting power of the
then outstanding securities of the Company; provided that a Change of Control shall not be deemed to occur as a result of a transaction in which the Company becomes a subsidiary of another corporation and in which the stockholders of the Company,
immediately prior to the transaction, will beneficially own, immediately after the transaction, shares entitling such stockholders to more than 50% of all votes to which all stockholders of the parent corporation would be entitled in the election of
directors; 
  
 (b) The consummation of (i) a merger or
consolidation of the Company with another corporation where the stockholders of the Company, immediately prior to the merger or consolidation, will not beneficially own, immediately after the merger or consolidation, shares entitling such
stockholders to more than 50% of all votes to which all stockholders of the surviving corporation would be entitled in the election of directors, (ii) a sale or other disposition of all or substantially all of the assets of the Company, or (iii) a
liquidation or dissolution of the Company; or 
  

 11 








 (c) After the date on which this Plan is approved by the stockholders of the Company, directors are
elected such that a majority of the members of the Board shall have been members of the Board for less than two years, unless the election or nomination for election of each new director who was not a director at the beginning of such two-year
period was approved by a vote of at least two-thirds of the directors then still in office who were directors at the beginning of such period. 
  
 SECTION 15 Consequences of a Change of Control 
  
 (a) Assumption of Grants. Upon a Change of Control where the Company is not the surviving corporation (or survives only as a subsidiary of another
corporation), unless the Committee determines otherwise, all outstanding Options that are not exercised shall be assumed by, or replaced with comparable options or rights by the surviving corporation (or a parent or subsidiary of the surviving
corporation), and other outstanding Grants that remain in effect after the Change of Control shall be converted to similar grants of the surviving corporation (or a parent or subsidiary of the surviving corporation). 
  
 (b) Other Alternatives. Notwithstanding the foregoing, in the event of
a Change of Control, the Committee may take any of the following actions with respect to any or all outstanding Grants: the Committee may (i) determine that outstanding Options shall accelerate and become exercisable, in whole or in part, upon the
Change of Control or upon such other event as the Board determines, (ii) determine that the restrictions and conditions on outstanding Stock Awards shall lapse, in whole or in part, upon the Change of Control upon such other event as the Board
determines, (iii) determine that Grantees holding Stock Units, Dividend Equivalents and Other Equity Awards shall receive a payment or payments in settlement of such Stock Units, Dividend Equivalents and Other Equity Awards in an amount and on terms
determined by the Committee, (iv) require that Grantees surrender their outstanding Options in exchange for a payment or payments by the Company, in cash or Company Stock as determined by the Committee, in an amount equal to the amount by which the
then Fair Market Value of the shares of Company Stock subject to the Grantee’s unexercised Options exceeds the Exercise Price of the Options, if any, and on such terms as the Committee determines or (v) after giving Grantees an opportunity to
exercise their outstanding Options, terminate any or all unexercised Options at such time as the Committee deems appropriate. Such surrender, termination or settlement shall take place as of the date of the Change of Control or such other date as
the Committee may specify. The Committee shall have no obligation to take any of the foregoing actions, and, in the absence of any such actions, outstanding Grants shall continue in effect according to their terms (subject to any assumption pursuant
to subsection (a)). 
  
 SECTION 16 Limitations On Issuance Or Transfer Of
Shares 
  
 No Company Stock shall be issued or transferred in
connection with any Grant hereunder unless and until all legal requirements applicable to the issuance or transfer of such Company Stock have been complied with to the satisfaction of the Committee. The Committee shall have the right to condition
any Grant made to any Grantee hereunder on such Grantee’s undertaking in 
  

 12 








 writing to comply with such restrictions on his or her subsequent disposition of such shares of Company Stock as the
Committee shall deem necessary or advisable, and certificates representing such shares may be legended to reflect any such restrictions. Certificates representing shares of Company Stock issued or transferred under the Plan will be subject to such
stop-transfer orders and other restrictions as may be required by applicable laws, regulations and interpretations, including any requirement that a legend be placed thereon. 
  
 SECTION 17 Amendment and Termination of the Plan 
  
 (a) Amendment. The Board may amend or terminate the Plan at any time; provided, however, that the Board shall not
amend the Plan without stockholder approval if such approval is required in order to comply with the Code or applicable laws or to comply with applicable stock exchange requirements. 
  
 (b) Stockholder Approval for “Qualified Performance-Based Compensation”. 
  
 (i) If Stock Awards, Stock Units, Dividend Equivalents or Other Equity
Awards are granted as “qualified performance-based compensation” under Section 10 above, the Plan must be reapproved by the stockholders no later than the first stockholders meeting that occurs in the fifth year following the year in which
the stockholders previously approved the provisions of Section 10, if required by the regulations under section 162(m) of the Code or the regulations thereunder. 
  
 (ii) If and to the extent required by section 162(m), the Plan must be submitted to the stockholders for approval in the
fourth year following the year in which the initial public offering of Company Stock occurs, to assure that subsequent Grants will qualify as “qualified performance-based compensation” for purposes of section 162(m). 
  
 (c) Termination of Plan. The Plan shall terminate on the day
immediately preceding the tenth anniversary of its effective date, unless the Plan is terminated earlier by the Board or is extended by the Board with the approval of the stockholders. 
  
 (d) Termination and Amendment of Outstanding Grants. A termination or amendment of the Plan that occurs after a Grant
is made shall not materially impair the rights of a Grantee unless the Grantee consents or unless the Committee acts under Section 23(b). The termination of the Plan shall not impair the power and authority of the Committee with respect to an
outstanding Grant. Whether or not the Plan has terminated, an outstanding Grant may be terminated or amended under Section 23(b) or may be amended by agreement of the Company and the Grantee consistent with the Plan. However, no previously granted
Option may be repriced, replaced or regranted through cancellation or by lowering the Exercise Price, unless the stockholders of the Company provide prior approval. 
  
 (e) Governing Document. The Plan shall be the controlling document. No other statements, representations, explanatory
materials or examples, oral or written, may amend the Plan in any manner. The Plan shall be binding upon and enforceable against the Company and its successors and assigns. 
  

 13 








 SECTION 18 Funding of the Plan 
  
 This Plan shall be unfunded. The Company shall not be required to establish any special or separate fund or to make any
other segregation of assets to assure the payment of any Grants under this Plan. 
  
 SECTION 19 Rights of Participants 
  
 Nothing in
this Plan shall entitle any Employee, Key Advisor, Non-Employee Director or other person to any claim or right to be granted a Grant under this Plan. Neither this Plan nor any action taken hereunder shall be construed as giving any individual any
rights to be retained by or in the employ of the Employer or any other employment rights. 
  
 SECTION 20 No Fractional Shares 
  
 No fractional shares of Company Stock shall be issued or delivered pursuant to the Plan or any Grant. The Committee shall determine whether cash, other awards or other property shall be issued or paid in lieu of such fractional shares or
whether such fractional shares or any rights thereto shall be forfeited or otherwise eliminated. 
  
 SECTION 21 Headings 
  
 Section headings are for reference only. In the event of a conflict between a title and the content of a Section, the content of the Section shall control. 
  
 SECTION 22 Effective Date of the Plan 
  
 The Plan shall be effective as of June 9, 2004, subject to stockholder approval of the Plan. 
  
 SECTION 23 Miscellaneous 
  
 (a) Grants in Connection with Corporate Transactions and Otherwise. Nothing contained in this Plan shall be construed to (i) limit the right of the
Committee to make Grants under this Plan in connection with the acquisition, by purchase, lease, merger, consolidation or otherwise, of the business or assets of any corporation, firm or association, including Grants to employees thereof who become
Employees, or for other proper corporate purposes, or (ii) limit the right of the Company to grant stock options or make other awards outside of this Plan. Without limiting the foregoing, the Committee may make a Grant to an employee, director or
advisor of another corporation who becomes an Employee, Non-Employee Director or Key Advisor by reason of a corporate merger, consolidation, acquisition of stock or property, reorganization or liquidation involving the Company, the parent or any of
their subsidiaries in substitution for a stock option or stock awards grant made by such corporation. The terms and conditions of the substitute grants may vary from the terms and conditions required by the Plan and from those of the substituted
stock incentives. The Committee shall prescribe the provisions of the substitute grants. 
  

 14 








 (b) Compliance with Law. The Plan, the exercise of Options and the obligations of the Company to
issue or transfer shares of Company Stock under Grants shall be subject to all applicable laws and to approvals by any governmental or regulatory agency as may be required. After a public offering of the Company’s Stock, with respect to persons
subject to section 16 of the Exchange Act, it is the intent of the Company that the Plan and all transactions under the Plan comply with all applicable provisions of Rule 16b-3 or its successors under the Exchange Act. In addition, it is the intent
of the Company that the Plan and applicable Grants under the Plan comply with the applicable provisions of section 162(m) and section 422 of the Code. To the extent that any legal requirement of section 16 of the Exchange Act or section 162(m) or
422 of the Code as set forth in the Plan ceases to be required under section 16 of the Exchange Act or section 162(m) or 422 of the Code, that Plan provision shall cease to apply. The Committee may revoke any Grant if it is contrary to law or modify
a Grant to bring it into compliance with any valid and mandatory government regulation. The Committee may agree to limit its authority under this Section. 
  
 (c) Employees Subject to Taxation Outside the United States. With respect to Grantees who are subject to taxation in countries other than the
United States, the Committee may make Grants on such terms and conditions as the Committee deems appropriate to comply with the laws of the applicable countries, and the Committee may create such procedures, addenda and subplans and make such
modifications as may be necessary or advisable to comply with such laws. 
  
 (d) Governing Law. The validity, construction, interpretation and effect of the Plan and Grant Instruments issued under the Plan shall be governed and construed by and determined in accordance with the laws of
the State of Delaware, without giving effect to the conflict of laws provisions thereof. 
  

 15