exv10w1



 






Exhibit 10.1




This copy of Eclipsys Corporation’s Amended and Restated 2000 Stock Incentive Plan is being

filed again to correct a typographical error in the version originally filed as an exhibit to the

Quarterly Report on Form 10-Q for the quarter ended June 30, 2002.




 









 








ECLIPSYS CORPORATION




AMENDED AND RESTATED 2000 STOCK INCENTIVE PLAN





	1.  	Purpose





     The purpose of this Amended and Restated 2000 Stock Incentive Plan (the “Plan”) of Eclipsys
Corporation, a Delaware corporation (the “Company”), is to advance the interests of the Company’s
stockholders by enhancing the Company’s ability to attract, retain and motivate persons who make
(or are expected to make) important contributions to the Company by providing such persons with
equity ownership opportunities and performance-based incentives and thereby better aligning the
interests of such persons with those of the Company’s stockholders. Except where the context
otherwise requires, the term “Company” shall include any of the Company’s present or future
subsidiary corporations as defined in Section 424(f) of the Internal Revenue Code of 1986, as
amended, and any regulations promulgated thereunder (the “Code”) and any other business venture
(including, without limitation, a joint venture or limited liability company) in which the Company
has a significant interest, as determined by the Board of Directors of the Company (the “Board”).




	2.  	Eligibility





     All of the Company’s employees, officers, directors, consultants and advisors ( and any
individuals who have accepted an offer for employment) are eligible to be granted options,
restricted stock, or other stock-based awards (each, an “Award”) under the Plan. Any person who
has been granted an Award under the Plan shall be deemed a “Participant.”




	3.  	Administration, Delegation





     (a) Administration by Board of Directors. The Plan will be administered by the Board. The
Board shall have authority to grant Awards and to adopt, amend and repeal such administrative
rules, guidelines and practices relating to the Plan as it shall deem advisable. The Board may
correct any defect, supply any omission or reconcile any inconsistency in the Plan or any Award in
the manner and to the extent it shall deem expedient to carry the Plan into effect and it shall be
the sole and final judge of such expediency. All decisions by the Board shall be made in the
Board’s sole discretion and shall be final and binding on all persons having or claiming any
interest in the Plan or in any Award. No director or person acting pursuant to the authority
delegated by the Board shall be liable for any action or determination relating to or under the
Plan made in good faith.



     (b) Appointment of Committees. To the extent permitted by applicable law, the Board may
delegate any or all of its powers under the Plan to one or more committees or subcommittees of the
Board (a “Committee”). All references in the Plan to the “Board” shall mean the Board or a
Committee of the Board to the extent that the Board’s powers or authority under the Plan have been
delegated to such Committee.



2









 






	4.  	Stock Available for Awards





     (a) Number of Shares. Subject to adjustment under Section 4(c), Awards may be made under the
Plan for up to an aggregate number of shares of Common Stock equal to (i) 15,000,000 less (ii) the
sum of (W) the number of shares as to which “Awards” have previously been made or shares issued
under the Company’s Amended and Restated 1999 Stock Incentive Plan, as amended (the “1999 Plan”),
as such number shall be reduced to the extent shares become reavailable for issuance under the 1999
Plan pursuant to Section 4(a) thereof, (X) the number of shares as to which options are then
outstanding under the Company’s Second Amended and Restated 1998 Employee Stock Purchase Plan, as
amended (the “Purchase Plan”) and the number of shares previously sold under the Purchase Plan, (Y)
the number of shares as to which options are then outstanding under the Company’s 1996 Stock Plan,
as amended (the “1996 Plan”), and the number of shares previously issued upon the exercise of
options granted under the 1996 Plan and the number of shares of restricted or unrestricted stock
granted under the 1996 Plan then outstanding and (Z) the number of shares as to which “Awards” have
previously been made or shares issued under the Company’s Amended and Restated 1998 Stock Incentive
Plan, as amended (the “1998 Plan”), as such number shall be reduced to the extent shares become
reavailable for issuance under the 1998 Plan pursuant to Section 4(a) thereof. If any Award
expires or is terminated, surrendered or canceled without having been fully exercised or is
forfeited in whole or in part or results in any Common Stock not being issued, the unused Common
Stock covered by such Award shall again be available for the grant of Awards under the Plan,
subject, however, in the case of Incentive Stock Options (as hereinafter defined), to any
limitation required under the Code. Shares issued under the Plan may consist in whole or in part
of authorized but unissued shares or treasury shares.



     (b) Per-Participant Limit. Subject to adjustment under Section 4(c), for Awards granted after
the Common Stock is registered under the Securities Exchange Act of 1934 (the “Exchange Act”), the
maximum number of shares of Common Stock with respect to which an Award may be granted to any
Participant under the Plan shall be 2,000,000 per calendar year. The per-Participant limit
described in this Section 4(b) shall be construed and applied consistently with Section 162(m) of
the Code.



     (c) Adjustment to Common Stock. In the event of any stock split, stock dividend,
recapitalization, reorganization, merger, consolidation, combination, exchange of shares,
liquidation, spin-off or other similar change in capitalization or event, or any distribution to
holders of Common Stock other than a normal cash dividend, (i) the number and class of securities
available under this Plan, (ii) the per-participant limit set forth in Section 4(b), (iii) the
number and class of security and exercise price per share subject to each outstanding Option, (iv)
the repurchase price per security subject to each outstanding Restricted Stock Award, and (v) the
terms of each other outstanding stock-based Award shall be appropriately adjusted by the Company
(or substituted Awards may be made, if applicable) to the extent the Board shall determine, in good
faith, that such an adjustment (or substitution) is necessary and appropriate. If this Section
4(c) applies and Section 8(c) also applies to any event, Section 8(c) shall be applicable to such
event, and this Section 4(c) shall not be applicable.



3









 






	5.  	Stock Options





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



     (b) Incentive Stock Options. An Option that the Board intends to be an “incentive stock
option” as defined in Section 422 of the Code (an “Incentive Stock Option”) shall only be granted
to employees of the Company and shall be subject to and shall be construed consistently with the
requirements of Section 422 of the Code. The Company shall have no liability to a Participant, or
any other party, if an Option (or any part thereof) which is intended to be an Incentive Stock
Option is not an Incentive Stock Option.



     (c) Exercise Price. The Board shall establish the exercise price at the time each Option is
granted and specify it in the applicable option agreement; provided, however, that the exercise
price of Incentive Stock Options shall not be less than 100% of the fair market value of the Common
Stock, as determined by the Board, at the time the Option is granted.



     (d) Duration of Options. Each Option shall be exercisable at such times and subject to such
terms and conditions as the Board may specify in the applicable option agreement; provided,
however, that no Option will be granted for a term in excess of 10 years.



     (e) Exercise of Option. Options may be exercised only by delivery to the Company of a written
notice of exercise signed by the proper person or by any other form of notice (including electronic
notice) approved by the Board together with payment in full as specified in Section 5(f) for the
number of shares for which the Option is exercised.



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



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



          (2) except as the Board may, in its sole discretion, otherwise provide in an option agreement,
by (i) delivery of an irrevocable and unconditional undertaking by a creditworthy broker to deliver
promptly to the Company sufficient funds to pay the exercise price or (ii) delivery by the
Participant to the Company of a copy of irrevocable and unconditional instructions to a
creditworthy broker to deliver promptly to the Company cash or a check sufficient to pay the
exercise price;



          (3) to the extent permitted by the Board and explicitly provided in an option agreement (i) by
delivery of shares of Common Stock owned by the Participant valued at their fair market value as
determined by (or in a manner approved by) the Board in good faith (“Fair Market Value”), provided
(i) such method of payment is then permitted under applicable law and



4









 





(ii) such Common Stock was owned by the Participant at least six months prior to such
delivery, or (iii) by payment of such other lawful consideration as the Board may determine; or




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




	6.  	Restricted Stock





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



     (b) Terms and Conditions. The Board shall determine the terms and conditions of any such
Restricted Stock Award, including the conditions for repurchase (or forfeiture) and the issue
price, if any. Any stock certificates issued in respect of a Restricted Stock Award shall be
registered in the name of the Participant and, unless otherwise determined by the Board, deposited
by the Participant, together with a stock power endorsed in blank, with the Company (or its
designee). At the expiration of the applicable restriction periods, the Company (or such designee)
shall deliver the certificates no longer subject to such restrictions to the Participant or if the
Participant has died, to the beneficiary designated, in a manner determined by the Board, by a
Participant to receive amounts due or exercise rights of the Participant in the event of the
Participant’s death (the “Designated Beneficiary”). In the absence of an effective designation by
a Participant, Designated Beneficiary shall mean the Participant’s estate.




	7.  	Other Stock-Based Awards





     The Board shall have the right to grant other Awards based upon the Common Stock having such
terms and conditions as the Board may determine, including the grant of shares based upon certain
conditions, the grant of securities convertible into Common Stock and the grant of stock
appreciation rights.




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





     (a) Changes in Capitalization. In the event of any stock split, reverse stock split, stock
dividend, recapitalization, combination of shares, reclassification of shares, spin-off or other
similar change in capitalization or event, or any distribution to holders of Common Stock, other
than a normal cash dividend, (i) the number and class of securities available under this Plan, (ii)
the per-participant limit set forth in Section 4(b), (iii) the number and class of security and
exercise price per share subject to each outstanding Option, (iv) the repurchase price per security
subject to each outstanding Restricted Stock Award, and (v) the terms of each other outstanding
stock-based Award shall be appropriately adjusted by the Company (or substituted Awards may be
made, if applicable) to the extent the Board shall determine, in good faith, that such an
adjustment (or substitution) is necessary and appropriate. If this Section 8(a) applies and



5









 





Section 8(c) also applies to any event, Section 8(c) shall be applicable to such event, and
this Section 8(a) shall not be applicable.




     (b) Liquidation or Dissolution. In the event of a proposed liquidation or dissolution of the
Company, the Board shall upon written notice to the Participants provide that all then unexercised
Options will (i) become exercisable in full as of a specified time at least 10 business days prior
to the effective date of such liquidation or dissolution and (ii) terminate effective upon such
liquidation or dissolution, except to the extent exercised before such effective date. The Board
may specify the effect of a liquidation or dissolution on any Restricted Stock Award or other Award
granted under the Plan at the time of the grant of such Award.



     (c) Acquisition and Change in Control Events



          (1) Definitions



               a. An “Acquisition Event” shall mean:




	 	(i)  	any merger or consolidation of
the Company with or into another entity as a result of which the
Common Stock is converted into or exchanged for the right to
receive cash, securities or other property; or
	 
	 	(ii)  	any exchange of shares of the
Company for cash, securities or other property pursuant to a
statutory share exchange transaction.





               b. A “Change in Control Event” shall mean:




	 	(i)  	the acquisition by an individual,
entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)) (a “Person”) of beneficial ownership of any
capital stock of the Company if, after such acquisition, such
Person beneficially owns (within the meaning of Rule 13d-3
promulgated under the Exchange Act) more than 30% of either (x)
the then-outstanding shares of Common Stock of the Company (the
“Outstanding Company Common Stock”) or (y) the combined voting
power of the then-outstanding securities of the Company entitled
to vote generally in the election of directors (the “Outstanding
Company Voting Securities”); provided, however, that for
purposes of this subsection (i), the following acquisitions
shall not constitute a Change in Control Event: (A) any
acquisition directly from the Company (excluding an acquisition
pursuant to the exercise, conversion or exchange of any security
exercisable for, convertible into




6









 






	 	  	or exchangeable for Common Stock or voting securities of the
Company, unless the Person exercising, converting or
exchanging such security acquired such security directly from
the Company or an underwriter or agent of the Company), (B)
any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any
corporation controlled by the Company, (C) any acquisition by
any corporation pursuant to a Business combination (as
defined below) which complies with clauses (x) and (y) of
subsection (iii) of this definition or (D) any acquisition by
General Atlantic Partners 28, L.P., General Atlantic Partners
38, L.P., General Atlantic Partners 47, L.P., GAP
Coinvestment Partners, L.P. and any other entities
controlled by or under common control with any of the
foregoing entities, within the meaning of the Exchange Act
(each such party is referred to herein as an “Exempt
Person”);
	 
	 	(ii)  	such time as the Continuing
Directors (as defined below) do not constitute a majority of the
Board (or, if applicable, the Board of Directors of a successor
corporation to the Company), where the term “Continuing
Director” means at any date a member of the Board (x) who was a
member of the Board on the date of the initial adoption of this
Plan by the Board or (y) who was nominated or elected subsequent
to such date by at least a majority of the directors who were
Continuing Directors at the time of such nomination or election
or whose election to the Board was recommended or endorsed by at
least a majority of the directors who were Continuing Directors
at the time of such nomination or election; provided, however,
that there shall be excluded from this clause (y) any individual
whose initial assumption of office occurred as a result of an
actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened
solicitation of proxies or consents, by or on behalf of a person
other than the Board; or
	 
	 	(iii)  	the consummation of a merger,
consolidation, reorganization, recapitalization or statutory
share exchange involving the Company or a sale or other
disposition of all or substantially all of the assets of the
Company (a “Business Combination”), unless, immediately
following such Business Combination, each of the following two
conditions is satisfied: (x) all or substantially all of the
individuals and entities who were the beneficial owners of




7









 






	 	   	the Outstanding Company Common Stock and Outstanding Company
Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more
than 50% of the then-outstanding shares of common stock and
the combined voting power of the then-outstanding securities
entitled to vote generally in the election of directors,
respectively, of the resulting or acquiring corporation in
such Business Combination (which shall include, without
limitation, a corporation which as a result of such
transaction owns the Company or substantially all of the
Company’s assets either directly or through one or more
subsidiaries) (such resulting or acquiring corporation is
referred to herein as the “Acquiring Corporation”) in
substantially the same proportions as their ownership of the
Outstanding Company Common Stock and Outstanding Company
Voting Securities, respectively, immediately prior to such
Business Combination and (y) no Person (excluding Exempt
Persons, the Acquiring Corporation or any employee benefit
plan (or related trust) maintained or sponsored by the
Company or by the Acquiring Corporation) beneficially owns,
directly or indirectly, 30% or more of the then-outstanding shares of common stock of the Acquiring Corporation, or of
the combined voting power of the then-outstanding securities
of such corporation entitled to vote generally in the
election of directors (except to the extent that such
ownership existed prior to the Business Combination).





               c. “Good Reason” shall mean any significant diminution in the Participant’s title, authority,
or responsibilities from and after such Acquisition Event or Change in Control Event, as the case
may be, or any reduction in the annual cash compensation payable to the Participant from and after
such Acquisition Event or Change in Control Event, as the case may be, or the relocation of the
place of business at which the Participant is principally located to a location that is greater
than 50 miles from the current site.



               d. “Cause” shall mean any (i) willful failure by the Participant, which failure is not cured
within 30 days of written notice to the Participant from the Company, to perform his or her
material responsibilities to the Company or (ii) willful misconduct by the Participant which
affects the business reputation of the Company. The Participant shall be considered to have been
discharged for “Cause” if the Company determines, within 30 days after the Participant’s
resignation, that discharge for Cause was warranted.



8









 





          (2) Effect on Options



               (a) Acquisition Event. Upon the occurrence of an Acquisition Event (regardless of whether
such event also constitutes a Change in Control Event), or the execution by the Company of any
agreement with respect to an Acquisition Event (regardless of whether such event will result in a
Change in Control Event), the Board shall provide that all outstanding Options shall be assumed, or
equivalent options shall be substituted for, by the acquiring or succeeding corporation (or an
affiliate thereof); provided that if such Acquisition Event also constitutes a Change in Control
Event, except to the extent specifically provided to the contrary in the instrument evidencing any
Option or any other agreement between a Participant and the Company, such assumed or substituted
options shall become immediately exercisable in full if, on or prior to the first anniversary of
the date of the consummation of the Acquisition Event, the Participant’s employment with the
Company or the acquiring or succeeding corporation is terminated for Good Reason by the Participant
or is terminated without Cause by the Company or the acquiring or succeeding corporation. For
purposes hereof, an Option shall be considered to be assumed if, following consummation of the
Acquisition Event, the Option confers the right to purchase, for each share of Common Stock subject
to the Option immediately prior to the consummation of the Acquisition Event, the consideration
(whether cash, securities or other property) received as a result of the Acquisition Event by
holders of Common Stock for each share of Common Stock held immediately prior to the consummation
of the Acquisition Event (and if holders were offered a choice of consideration, the type of
consideration chosen by the holders of a majority of the outstanding shares of Common Stock);
provided, however, that if the consideration received as a result of the Acquisition Event is not
solely common stock of the acquiring or succeeding corporation (or an affiliate thereof), the
Company may, with the consent of the acquiring or succeeding corporation, provide for the
consideration to be received upon the exercise of Options to consist solely of common stock of the
acquiring or succeeding corporation (or an affiliate thereof) equivalent in fair market value to
the per share consideration received by holders of outstanding shares of Common Stock as a result
of the Acquisition Event. Notwithstanding the foregoing, if the acquiring or succeeding
corporation (or an affiliate thereof) does not agree to assume, or substitute for, such Options,
then the Board shall, upon written notice to the Participants, provide that all then unexercised
Options will become exercisable in full as of a specified time prior to the Acquisition Event and
will terminate immediately prior to the consummation of such Acquisition Event, except to the
extent exercised by the Participants before the consummation of such Acquisition Event; provided,
however, that in the event of an Acquisition Event under the terms of which holders of Common Stock
will receive upon consummation thereof a cash payment for each share of Common Stock surrendered
pursuant to such Acquisition Event (the “Acquisition Price”), then the Board may instead provide
that all outstanding Options shall terminate upon consummation of such Acquisition Event and that
each Participant shall receive, in exchange therefor, a cash payment equal to the amount (if any)
by which (A) the Acquisition Price multiplied by the number of shares of Common Stock subject to
such outstanding Options (whether or not then exercisable) exceeds (B) the aggregate exercise price
of such Options.



               (b) Change in Control Event that is not an Acquisition Event. Following the occurrence of a
Change in Control Event that does not also constitute an Acquisition Event, except to the extent
specifically provided to the contrary in the instrument



9









 





evidencing any Option or any other agreement between a Participant and the Company, each such
Option shall be immediately exercisable in full if, on or prior to the first anniversary of the
date of the consummation of the Change in Control Event, the Participant’s employment with the
Company or the acquiring or succeeding corporation is terminated for Good Reason by the Participant
or is terminated without Cause by the Company or the acquiring or succeeding corporation.




          (3) Effect on Restricted Stock Awards



               (a) Acquisition Event that is not a Change in Control Event. Upon the occurrence of an
Acquisition Event that is not a Change in Control Event, the repurchase and other rights of the
Company under each outstanding Restricted Stock Award shall inure to the benefit of the Company’s
successor and shall apply to the cash, securities or other property which the Common Stock was
converted into or exchanged for pursuant to such Acquisition Event in the same manner and to the
same extent as they applied to the Common Stock subject to such Restricted Stock Award.



               (b) Change in Control Event. Following the occurrence of a Change in Control Event
(regardless of whether such event also constitutes an Acquisition Event), except to the extent
specifically provided to the contrary in the instrument evidencing any Restricted Stock Award or
any other agreement between a Participant and the Company, each such Restricted Stock Award shall
immediately become free from all conditions or restrictions if, on or prior to the first
anniversary of the date of the consummation of the Change in Control Event, the Participant’s
employment with the Company or the acquiring or succeeding corporation is terminated for Good
Reason by the Participant or is terminated without Cause by the Company or the acquiring or
succeeding corporation.



          (4) Effect on Other Awards



               (a) Acquisition Event that is not a Change in Control Event. The Board shall specify the
effect of an Acquisition Event that is not a Change in Control Event on any other Award granted
under the Plan at the time of the grant of such Award.



               (b) Change in Control Event. Following the occurrence of a Change in Control Event
(regardless of whether such event also constitutes an Acquisition Event), except to the extent
specifically provided to the contrary in the instrument evidencing any Award or any other agreement
between a Participant and the Company, each such Award shall immediately become fully exercisable,
realizable, vested or free from conditions or restrictions if, on or prior to the first anniversary
of the date of the consummation of the Change in Control Event, the Participant’s employment with
the Company or the acquiring or succeeding corporation is terminated for Good Reason by the
Participant or is terminated without Cause by the Company or the acquiring or succeeding
corporation.



          (5) Limitations. Notwithstanding the foregoing provisions of this Section 8(c), if the Change
in Control Event is intended to be accounted for as a “pooling of interests” for financial
accounting purposes, and if the acceleration to be effected by the foregoing



10









 





provisions of this Section 8(c) would preclude accounting for the Change in Control Event as a
“pooling of interests” for financial accounting purposes, then no such acceleration shall occur
upon the Change in Control Event.





	9.  	General Provisions Applicable to Awards





     (a) Transferability of Awards. Except as the Board may otherwise determine or provide in an
Award, Awards shall not be sold, assigned, transferred, pledged or otherwise encumbered by the
person to whom they are granted, either voluntarily or by operation of law, except by will or the
laws of descent and distribution, and, during the life of the Participant, shall be exercisable
only by the Participant. References to a Participant, to the extent relevant in the context, shall
include references to authorized transferees.



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



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



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



     (e) Withholding. Each Participant shall pay to the Company, or make provision satisfactory to
the Board for payment of, any taxes required by law to be withheld in connection with Awards to
such Participant no later than the date of the event creating the tax liability. Except as the
Board may otherwise provide in an Award, when the Common Stock is registered under the Exchange
Act, Participants may, to the extent then permitted under applicable law, satisfy such tax
obligations in whole or in part by delivery of shares of Common Stock, including shares retained
from the Award creating the tax obligation, valued at their Fair Market Value. The Company may, to
the extent permitted by law, deduct any such tax obligations from any payment of any kind otherwise
due to a Participant.



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



     (g) Conditions on Delivery of Stock. The Company will not be obligated to deliver any shares
of Common Stock pursuant to the Plan or to remove restrictions from shares



11









 





previously delivered under the Plan until (i) all conditions of the Award have been met or
removed to the satisfaction of the Company, (ii) in the opinion of the Company’s counsel, all other
legal matters in connection with the issuance and delivery of such shares have been satisfied,
including any applicable securities laws and any applicable stock exchange or stock market rules
and regulations, and (iii) the Participant has executed and delivered to the Company such
representations or agreements as the Company may consider appropriate to satisfy the requirements
of any applicable laws, rules or regulations.




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




	10.  	Miscellaneous





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



     (b) No Rights As Stockholder. Subject to the provisions of the applicable Award, no
Participant or Designated Beneficiary shall have any rights as a stockholder with respect to any
shares of Common Stock to be distributed with respect to an Award until becoming the record holder
of such shares. Notwithstanding the foregoing, in the event the Company effects a split of the
Common Stock by means of a stock dividend and the exercise price of and the number of shares
subject to such Option are adjusted as of the date of the distribution of the dividend (rather than
as of the record date for such dividend), then an optionee who exercises an Option between the
record date and the distribution date for such stock dividend shall be entitled to receive, on the
distribution date, the stock dividend with respect to the shares of Common Stock acquired upon such
Option exercise, notwithstanding the fact that such shares were not outstanding as of the close of
business on the record date for such stock dividend.



     (c) Effective Date and Term of Plan. The Plan shall become effective on the date on which it
is adopted by the Board, but no Award granted to a Participant designated by the Board as subject
to Section 162(m) of the Code by the Board shall become exercisable, vested or realizable, as
applicable to such Award, unless and until the Plan has been approved by the Company’s stockholders
to the extent stockholder approval is required by Section 162(m) in the manner required under
Section 162(m) (including the vote required under Section 162(m)). No Awards shall be granted
under the Plan after the completion of ten years from the earlier of (i) the date on which the Plan
was adopted by the Board or (ii) the date the Plan was approved by the Company’s stockholders, but
Awards previously granted may extend beyond that date.



12









 





     (d) Amendment of Plan. The Board may amend, suspend or terminate the Plan or any portion
thereof at any time, provided that to the extent required by Section 162(m) of the Code, no Award
granted to a Participant designated as subject to Section 162(m) by the Board after the date of
such amendment shall become exercisable, realizable or vested, as applicable to such Award (to the
extent that such amendment to the Plan was required to grant such Award to a particular
Participant), unless and until such amendment shall have been approved by the Company’s
stockholders as required by Section 162(m) (including the vote required under Section 162(m)).



     (e) Governing Law. The provisions of the Plan and all Awards made hereunder shall be governed
by and interpreted in accordance with the laws of the State of Delaware, without regard to any
applicable conflicts of law.



Adopted by the Board of Directors

on May 22, 2000




Approved by the Stockholders

on July 12, 2000




Amended by the Board of Directors

on March 29, 2002




Approved by the Stockholders

on May 8, 2002





13