**Exhibit 10.1**

 

**MEDIVATION, INC.**

 

**2004 EQUITY INCENTIVE AWARD PLAN**

 

**ARTICLE 1**

**PURPOSE**

 

1.1 *General*. The purpose of the Medivation, Inc. 2004 Equity IncentiveAward Plan (the “***Plan***”) is to promote the success and enhance the value of Medivation, Inc. (the “***Company***”) by linking the personal interests of the members of the Board, employees, consultants,officers, and executives of the Company and any Subsidiary, to those of Company stockholders and by providing such individuals with an incentive for outstanding performance to generate superior returns to Company stockholders. The Plan is furtherintended to provide flexibility to the Company in its ability to motivate, attract, and retain the services of members of the Board, employees, consultants, officers, and executives of the Company upon whose judgment, interest, and special effortthe successful conduct of the Company’s operation is largely dependent. 

 

**ARTICLE 2**

**DEFINITIONS AND CONSTRUCTION**

 

2.1 *Definitions*. The following words and phrases shall have thefollowing meanings: 

 

(a)“***Award***” means an Option, a Restricted Stock award, a Stock Appreciation Right award, a Performance Share award, a Dividend Equivalents award, a Stock Payment award, a Restricted Stock Unit award, or a Performance-Based Awardgranted to a Participant pursuant to the Plan. 

 

(b) “***Award Agreement***” means any written or electronic agreement, contract, or other instrument or document evidencing an Award. 

 

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

 

(d) “***Change of Control***” means andincludes each of the following: 

 

(i) theacquisition, directly or indirectly, by any “person” or “group” (as those terms are defined in Sections 3(a)(9), 13(d) and 14(d) of the Exchange Act and the rules thereunder) of “beneficial ownership” (as determinedpursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors (“voting securities”) of the Company that represent 50% or more of the combined voting power of the Company’s thenoutstanding voting securities, other than: 

 

(A) anacquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust)sponsored or maintained by the Company or any person controlled by the Company, or 

 

(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of theCompany; 

 

Notwithstanding the foregoing, thefollowing event shall not constitute an “acquisition” by any person or group for purposes of this subsection (e): an acquisition of the Company’s securities by the Company that causes the Company’s voting securities beneficiallyowned by a person or group to represent 50% or more of the combined voting power of the Company’s then outstanding voting securities; *provided, however,* that if a person or group shall become the beneficial owner of 50% or 

more of the combined voting power of the Company’s then outstanding voting securities by reason of share acquisitions by the Company as described aboveand shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change of Control; or 

 

(ii) during any period of two consecutive years, individualswho, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or(iii) of this subsection (e)) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning ofthe two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or 

 

(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or moreintermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company’s assets or (z) the acquisition of assets or stock of another entity, in eachcase other than a transaction: 

 

(A) which results in theCompany’s voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction,controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company’s assets or otherwise succeeds to the business of the Company (the Company or such person, the “***SuccessorEntity***”)) directly or indirectly, at least a majority of the combined voting power of the Successor Entity’s outstanding voting securities immediately after the transaction, and 

 

(B) after which no person or group beneficially owns voting securitiesrepresenting 50% or more of the combined voting power of the Successor Entity; *provided, however,* that no person or group shall be treated for purposes of this clause (B) as beneficially owning 50% or more of combined voting power of theSuccessor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or 

 

(iv) the Company’s stockholders approve a liquidation or dissolution of the Company. 

 

Notwithstanding the foregoing, a transaction shall notconstitute a “***Change of Control***” if: (w) its sole purpose is to change the state of the Company’s incorporation; (x) its sole purpose is to create a holding company that will be owned in substantially the sameproportions by the persons who held the Company’s securities immediately before such transaction; (y) it constitutes the Company’s initial public offering of its securities; or (z) it is a transaction effected primarily for the purpose offinancing the Company with cash (as determined by the Committee in its discretion and without regard to whether such transaction is effectuated by a merger, equity financing or otherwise). 

 

The Committee shall have full and final authority, whichshall be exercised in its discretion, to determine conclusively whether a Change of Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change of Control and any incidental matters relatingthereto. 

 

(e) “***Code***”means the Internal Revenue Code of 1986, as amended. 

 

(f) “***Committee***” means the committee of the Board described in Article 12. 

 

(g) “***Covered Employee***” means an Employee who is, or could be, a “covered employee” within the meaning ofSection 162(m) of the Code. 

 

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(h) “***Disability***” means, for purposes of this Plan, that theParticipant qualifies to receive long-term disability payments under the Company’s long-term disability insurance program, as it may be amended from time to time. 

 

(i) “***Dividend Equivalents***” means a right granted to a Participant pursuant toArticle 8 to receive the equivalent value (in cash or Stock) of dividends paid on Stock. 

 

(j) “***Employee***” means any officer or other employee (as defined in accordance with Section 3401(c) of the Code) ofthe Company or any Subsidiary. A person shall not cease to be an Employee in the case of (i) any leave of absence approved by the Company or (ii) transfers between locations of the Company or between the Company, any Subsidiary, or anysuccessor. For purposes of Incentive Stock Options, no such leave may exceed ninety days, unless reemployment upon expiration of such leave is guaranteed by statute or contract. Neither service as a director nor payment of a director’s fee bythe Company shall be sufficient, by itself, to constitute “employment” by the Company. 

 

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

 

(l) “***Fair Market Value***” shall mean,as of any date, the value of Stock determined as follows: 

 

(i) If the Stock is listed on any established stock exchange or a national market system, including without limitation the Nasdaq National Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its FairMarket Value shall be the closing sales price for such stock (or the closing bid, if no sales were reported) as quoted on such exchange or system for the last market trading day prior to the date of determination, as reported in *The Wall StreetJournal* or such other source as the Committee deems reliable; 

 

(ii) If the Stock is regularly quoted by a recognized securities dealer but selling prices are not reported, its Fair Market Value shall be the mean of the closing bid and asked prices for the Stock on the date priorto the date of determination as reported in *The Wall Street Journal* or such other source as the Committee deems reliable; or 

 

(iii) In the absence of an established market for the Stock, the Fair Market Value thereof shall be determined in good faith by theCommittee. 

 

(m) “***Incentive StockOption***” means an Option that is intended to meet the requirements of Section 422 of the Code or any successor provision thereto.****

 

(n) “***Non-Employee Director***” means a member of the Board who qualifies as a “Non-Employee Director” asdefined in Rule 16b-3(b) (3) of the Exchange Act, or any successor definition adopted by the Board. 

 

(o) “***Non-Qualified Stock Option***” means an Option that is not intended to be an Incentive Stock Option. 

 

(p) “***Option***” means a rightgranted to a Participant pursuant to Article 5 of the Plan to purchase a specified number of shares of Stock at a specified price during specified time periods. An Option may be either an Incentive Stock Option or a Non-Qualified Stock Option.

 

(q) “***Participant***”means a person who, as a member of the Board, consultant to the Company or any Subsidiary or Employee, has been granted an Award pursuant to the Plan.****

 

(r) “***Performance-Based Award***” means an Award granted to selected Covered Employees pursuant to Articles 6 and8, but which is subject to the terms and conditions set forth in Article 9. All Performance-Based Awards are intended to qualify as Qualified Performance-Based Compensation. 

 

(s) “***Performance Criteria***” means the criteria that the Committee selects forpurposes of establishing the Performance Goal or Performance Goals for a Participant for a Performance Period. The Performance Criteria that will be used to establish Performance Goals are limited to the following: net earnings (either before orafter interest, taxes, depreciation and amortization), net losses, sales or revenue, operating 

 

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earnings, operating cash flow, return on net assets, return on stockholders’ equity, return on assets, return on capital, stockholder returns, gross ornet profit margin, earnings per share, price per share of Stock, and market share, any of which may be measured either in absolute terms or as compared to any incremental increase or as compared to results of a peer group. The Committee shall,within the time prescribed by Section 162(m) of the Code, define in an objective fashion the manner of calculating the Performance Criteria it selects to use for such Performance Period for such Participant.****

 

(t) “***Performance Goals***” means, for aPerformance Period, the goals established in writing by the Committee for the Performance Period based upon the Performance Criteria. Depending on the Performance Criteria used to establish such Performance Goals, the Performance Goals may beexpressed in terms of overall Company performance or the performance of a division, business unit, or an individual. The Committee, in its discretion, may, within the time prescribed by Section 162(m) of the Code, adjust or modify the calculation ofPerformance Goals for such Performance Period in order to prevent the dilution or enlargement of the rights of Participants (i) in the event of, or in anticipation of, any unusual or extraordinary corporate item, transaction, event, or development,or (ii) in recognition of, or in anticipation of, any other unusual or nonrecurring events affecting the Company, or the financial statements of the Company, or in response to, or in anticipation of, changes in applicable laws, regulations,accounting principles, or business conditions. 

 

(u) “***Performance Period***” means the one or more periods of time, which may be of varying and overlapping durations, as the Committee may select, over which the attainment of one or more Performance Goals will bemeasured for the purpose of determining a Participant’s right to, and the payment of, a Performance-Based Award. 

 

(v) “***Performance Share***” means a right granted to a Participant pursuant to Article 8, to receive cash, Stock, orother Awards, the payment of which is contingent upon achieving certain performance goals established by the Committee. 

 

(w) “***Plan***” means this Orion Acquisition Corp. II 2004 Equity Incentive Award Plan, as it may be amended from timeto time. 

 

(x) “***Public TradingDate***” means the first date upon which 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 aninterdealer quotation system. 

 

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

 

(z) “***Restricted Stock***” means Stockawarded to a Participant pursuant to Article 6 that is subject to certain restrictions and to risk of forfeiture. 

 

(aa) “***Restricted Stock Unit***” means a right to receive a share of Stock during specified time periods pursuant toArticle 8. 

 

(bb)“***Stock***” means the common stock of the Company and such other securities of the Company that may be substituted for Stock pursuant to Article 11. 

 

(cc) “***Stock Appreciation Right***” or “***SAR***” means a rightgranted pursuant to Article 7 to receive a payment equal to the excess of the Fair Market Value of a specified number of shares of Stock on the date the SAR is exercised over the Fair Market Value on the date the SAR was granted as set forth in theapplicable Award Agreement. 

 

(dd)“***Stock Payment***” means (a) a payment in the form of shares of Stock, or (b) an option or other right to purchase shares of Stock, as part of any bonus, deferred compensation or other arrangement, made in lieu of all or anyportion of the compensation, granted pursuant to Article 8. 

 

(ee) “***Subsidiary***” means any corporation or other entity of which a majority of the outstanding voting stock or voting power is beneficially owned directly or indirectly by the Company.

 

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**ARTICLE 3**

**SHARES SUBJECT TO THE PLAN**

 

3.1 *Number of Shares*. 

 

(a)Subject to Article 11, the aggregate number of shares of Stock which may be issued or transferred pursuant to Awards under the Plan shall be 3,000,000 shares.****The payment of Dividend Equivalents in conjunction with any outstanding Awardsshall not be counted against the shares available for issuance under the Plan. 

 

(b) To the extent that an Award terminates, expires, or lapses for any reason, any shares of Stock subject to the Award shall again beavailable for the grant of an Award pursuant to the Plan. Additionally, any shares of Stock tendered or withheld to satisfy the grant or exercise price or tax withholding obligation pursuant to any Award shall again be available for the grant of anAward pursuant to the Plan. To the extent permitted by applicable law or any exchange rule, shares of Stock issued in assumption of, or in substitution for, any outstanding awards of any entity acquired in any form of combination by the Company orany Subsidiary shall not be counted against shares of Stock available for grant pursuant to this Plan. If shares of Stock issued pursuant to Awards are repurchased by the Company at no less than their original purchase price, such shares of Stockshall become available for future grant under the Plan (unless the Plan has terminated). 

 

(c) Notwithstanding the provisions of this Section 3.1, no shares of Stock may again be optioned, granted or awarded if such action wouldcause an Incentive Stock Option to fail to qualify as an Incentive Stock Option under Code Section 422. 

 

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

 

3.3 *Limitationon Number of Shares Subject to Awards*. Notwithstanding any provision in the Plan to the contrary, and subject to Article 11, on and after the Public Trading Date, the maximum number of shares of Stock with respect to one or more Awards that maybe granted to any one Participant during a calendar year shall be 1,000,000. 

 

**ARTICLE 4**

**ELIGIBILITY AND PARTICIPATION**

 

4.1 *Eligibility*. 

 

(a) General. Persons eligible to participate in this Planinclude Employees, consultants to the Company or any Subsidiary and all members of the Board, as determined by the Committee. 

 

(b) Foreign Participants. In order to assure the viability of Awards granted to Participants employed in foreign countries, the Committeemay provide for such special terms as it may consider necessary or appropriate to accommodate differences in local law, tax policy, or custom. Moreover, the Committee may approve such supplements to, or amendments, restatements, or alternativeversions of, the Plan as it may consider necessary or appropriate for such purposes without thereby affecting the terms of the Plan as in effect for any other purpose; *provided, however*, that no such supplements, amendments, restatements, oralternative versions shall increase the share limitations contained in Sections 3.1 and 3.3 of the Plan. 

 

4.2 *Actual Participation*. Subject to the provisions of the Plan, the Committee may, from time to time, select from among all eligible individuals,those to whom Awards shall be granted and shall determine the nature and amount of each Award. No individual shall have any right to be granted an Award pursuant to this Plan. 

 

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**ARTICLE 5**

**STOCK OPTIONS**

 

5.1*General*. The Committee is authorized to grant Options to Participants on the following terms and conditions: 

 

(a) Exercise Price. The exercise price per share of Stock subject to an Option shall be determined by the Committee and set forth in theAward Agreement; *provided* that the exercise price for any Option shall not be less than par value of a share of Stock on the date of grant. 

 

(b) Time And Conditions Of Exercise. The Committee shall determine the time or times at which an Option may be exercised in whole or inpart, *provided* that the term of any Option granted under the Plan shall not exceed ten years, and *provided further,* that in the case of a Non-Qualified Stock Option, such Option shall be exercisable for one year after the date of theParticipant’s death. The Committee shall also determine the performance or other conditions, if any, that must be satisfied before all or part of an Option may be exercised. 

 

(c) Payment. The Committee shall determine the methods by which the exercise price of an Option may be paid,the form of payment, including, without limitation, cash, promissory note bearing interest at such rate as is a market rate of interest and which also precludes the imputation of interest under the Code, shares of Stock held for longer than sixmonths having a Fair Market Value on the date of delivery equal to the aggregate exercise price of the Option or exercised portion thereof, or other property acceptable to the Committee (including through the delivery of a notice that theParticipant has placed a market sell order with a broker with respect to shares of Stock then issuable upon exercise of the Option, and that the broker has been directed to pay a sufficient portion of the net proceeds of the sale to the Company insatisfaction of the Option exercise price, *provided* that payment of such proceeds is then made to the Company upon settlement of such sale), and the methods by which shares of Stock shall be delivered or deemed to be delivered toParticipants. Notwithstanding any other provision of the Plan to the contrary, no Participant who is a member of the Board or an “executive officer” of the Company within the meaning of Section 13(k) of the Exchange Act shall be permittedto pay the exercise price of an Option in any method which would violate Section 13(k). 

 

(d) Evidence Of Grant. All Options shall be evidenced by a written Award Agreement between the Company and the Participant. The AwardAgreement shall include such additional provisions as may be specified by the Committee. 

 

5.2 *Incentive Stock Options*. Incentive Stock Options shall be granted only to Employees and the terms of any Incentive Stock Options granted pursuant to the Plan must comply with the following additionalprovisions of this Section 5.2: 

 

(a) ExercisePrice. The exercise price per share of Stock shall be set by the Committee, *provided* that the exercise price for any Incentive Stock Option shall not be less than 100% of the Fair Market Value on the date of grant. 

 

(b) Expiration Of Option. An Incentive Stock Option may notbe exercised to any extent by anyone after the first to occur of the following events: 

 

(1) Ten years from the date it is granted, unless an earlier time is set in the Award Agreement. 

 

(2) One year after the date of the Participant’stermination of employment or service on account of Disability or death, unless in the case of death a shorter or longer period is designated in the Award Agreement. Upon the Participant’s Disability or death, any Incentive Stock Optionsexercisable at the Participant’s Disability or death may be exercised by the Participant’s legal representative or representatives, by the person or persons entitled to do so pursuant to the Participant’s last will and testament, or,if the Participant fails to make testamentary disposition of such Incentive Stock Option or dies intestate, by the person or persons entitled to receive the Incentive Stock Option pursuant to the applicable laws of descent and distribution.

 

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(c) Individual Dollar Limitation. The aggregate Fair Market Value (determined as of thetime the Option is granted) of all shares of Stock with respect to which Incentive Stock Options are first exercisable by a Participant in any calendar year may not exceed $100,000 or such other limitation as imposed by Section 422(d) of the Code,or any successor provision. To the extent that Incentive Stock Options are first exercisable by a Participant in excess of such limitation, the excess shall be considered Non-Qualified Stock Options. 

 

(d) Ten Percent Owners. An Incentive Stock Option shall begranted to any individual who, at the date of grant, owns stock possessing more than ten percent of the total combined voting power of all classes of Stock of the Company only if such Option is granted at a price that is not less than 110% of FairMarket Value on the date of grant and the Option is exercisable for no more than five years from the date of grant. 

 

(e) Transfer Restriction. The Participant shall give the Company prompt notice of any disposition of shares of Stock acquired by exerciseof an Incentive Stock Option within (1) two years from the date of grant of such Incentive Stock Option or (2) one year after the transfer of such shares of Stock to the Participant. 

 

(f) Expiration Of Incentive Stock Options. No Award of an Incentive Stock Option may be made pursuant tothis Plan after the tenth anniversary of the Effective Date. 

 

(g) Right To Exercise. During a Participant’s lifetime, an Incentive Stock Option may be exercised only by the Participant. 

 

5.3 *Early Exercisability*. The Committee may provide in the terms of a Participant’s Award Agreement that the Participant may, at any timebefore the Participant’s status as an Employee, member of the Board or consultant to the Company terminates, exercise the Option(s) granted to such Participant in whole or in part prior to the full vesting of the Option(s); *provided,however*, shares of Stock acquired upon exercise of an Option which has not fully vested may be subject to any forfeiture, transfer or other restrictions as the Committee may determine in its sole discretion. 

 

**ARTICLE 6**

**RESTRICTED STOCK AWARDS**

 

6.1 *Grant of Restricted Stock*. The Committee is authorized to make Awards of Restricted Stock to any Participant selected by the Committee in such amounts and subject to such terms and conditions as determinedby the Committee. All Awards of Restricted Stock shall be evidenced by a Restricted Stock Award Agreement. 

 

6.2 *Issuance and Restrictions*. Restricted Stock shall be subject to such restrictions on transferability and other restrictions as the Committeemay impose (including, without limitation, limitations on the right to vote Restricted Stock or the right to receive dividends on the Restricted Stock). These restrictions may lapse separately or in combination at such times, pursuant to suchcircumstances, in such installments, or otherwise, as the Committee determines at the time of the grant of the Award or thereafter. 

 

6.3 *Forfeiture*. Except as otherwise determined by the Committee at the time of the grant of the Award or thereafter, upon termination of employmentor service during the applicable restriction period, Restricted Stock that is at that time subject to restrictions shall be forfeited; *provided, however*, that the Committee may provide in any Restricted Stock Award Agreement that restrictionsor forfeiture conditions relating to Restricted Stock will be waived in whole or in part in the event of terminations resulting from specified causes, and the Committee may in other cases waive in whole or in part restrictions or forfeitureconditions relating to Restricted Stock.****

 

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6.4 *Certificates For Restricted Stock*. Restricted Stock granted pursuant to the Plan may beevidenced in such manner as the Committee shall determine. If certificates representing shares of Restricted Stock are registered in the name of the Participant, certificates must bear an appropriate legend referring to the terms, conditions, andrestrictions applicable to such Restricted Stock, and the Company may, at its discretion, retain physical possession of the certificate until such time as all applicable restrictions lapse. 

 

**ARTICLE 7**

**STOCK APPRECIATION RIGHTS**

 

7.1 *Grant of Stock Appreciation Rights*. A Stock Appreciation Right may be granted to any Participant selected by the Committee. A Stock Appreciation Right may be granted (a) in connection and simultaneouslywith the grant of an Option, (b) with respect to a previously granted Option, or (c) independent of an Option. A Stock Appreciation Right shall be subject to such terms and conditions not inconsistent with the Plan as the Committee shall impose andshall be evidenced by an Award Agreement. 

 

7.2 *Coupled StockAppreciation Rights.*

 

(a) A Coupled StockAppreciation Right (“***CSAR***”) shall be related to a particular Option and shall be exercisable only when and to the extent the related Option is exercisable. 

 

(b) A CSAR may be granted to a Participant for no more than the number of shares subject to thesimultaneously or previously granted Option to which it is coupled. 

 

(c) A CSAR shall entitle the Participant (or other person entitled to exercise the Option pursuant to the Plan) to surrender to the Company unexercised a portion of the Option to which the CSAR relates (to the extentthen exercisable pursuant to its terms) and to receive from the Company in exchange therefor an amount determined by multiplying the difference obtained by subtracting the Option exercise price from the Fair Market Value of a share of Stock on thedate of exercise of the CSAR by the number of shares of Stock with respect to which the CSAR shall have been exercised, subject to any limitations the Committee may impose. 

 

7.3 *Independent Stock Appreciation Rights.*

 

(a) An Independent Stock Appreciation Right (“***ISAR***”) shall be unrelated to anyOption and shall have a term set by the Committee. An ISAR shall be exercisable in such installments as the Committee may determine. An ISAR shall cover such number of shares of Stock as the Committee may determine. The exercise price per share ofStock subject to each ISAR shall be set by the Committee; *provided, however*, that, the Committee in its sole and absolute discretion may provide that the ISAR may be exercised subsequent to a termination of employment or service, asapplicable, or following a Change of Control of the Company, or because of the Participant’s retirement, death or disability, or otherwise.**

 

(b) An ISAR shall entitle the Participant (or other person entitled to exercise the ISAR pursuant to the Plan) to exercise all or aspecified portion of the ISAR (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 ISAR from the FairMarket Value of a share of Stock on the date of exercise of the ISAR by the number of shares of Stock with respect to which the ISAR shall have been exercised, subject to any limitations the Committee may impose. 

 

7.4 *Payment and Limitations on Exercise.*

 

(a) Payment of the amounts determined under Section 7.2(c)and 7.3(b) above shall be in cash, in Stock (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 Committee. 

 

(b) To the extent any payment under Section 7.2(c) or 7.3(b)is effected in Stock it shall be made subject to satisfaction of all provisions of Article 5 above pertaining to Options. 

 

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**ARTICLE 8**

**OTHER TYPES OF AWARDS**

 

8.1 *Performance Share Awards*. Any Participant selected by the Committee may be granted one or more Performance Share awards which may be denominated in a number of shares of Stock or in a dollar value of shares of Stock and which maybe linked to any one or more of the Performance Criteria or other specific performance criteria determined appropriate by the Committee, in each case on a specified date or dates or over any period or periods determined by the Committee. In makingsuch determinations, the Committee 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 Participant. 

 

8.2 *Dividend Equivalents.*

 

(a) Any Participant selected by the Committee may be grantedDividend Equivalents based on the dividends declared on the shares of Stock that are subject to any Award, to be credited as of dividend payment dates, during the period between the date the Award is granted and the date the Award is exercised,vests or expires, as determined by the Committee. Such Dividend Equivalents shall be converted to cash or additional shares of Stock by such formula and at such time and subject to such limitations as may be determined by the Committee. 

 

(b) Dividend Equivalents granted with respect to Optionsor SARs that are intended to be Qualified Performance-Based Compensation shall be payable, with respect to pre-exercise periods, regardless of whether such Option or SAR is subsequently exercised. 

 

8.3 *Stock Payments.* Any Participant selected by the Committee mayreceive Stock Payments in the manner determined from time to time by the Committee. The number of shares shall be determined by the Committee and may be based upon the Performance Criteria or other specific performance criteria determinedappropriate by the Committee, determined on the date such Stock Payment is made or on any date thereafter. 

 

8.4 *Restricted Stock Units.* Any Participant selected by the Committee may be granted an award of Restricted Stock Units in the manner determinedfrom time to time by the Committee. The number of Restricted Stock Units shall be determined by the Committee and may be linked to the Performance Criteria or other specific performance criteria determined to be appropriate by the Committee, in eachcase on a specified date or dates or over any period or periods determined by the Committee. Stock underlying a Restricted Stock Unit will not be issued until the Restricted Stock Unit has vested, pursuant to a vesting schedule or performancecriteria set by the Committee. Unless otherwise provided by the Committee, a Participant awarded Restricted Stock Units shall have no rights as a Company stockholder with respect to such Restricted Stock Units until such time as the Restricted StockUnits have vested and the Stock underlying the Restricted Stock Units has been issued. 

 

8.5 *Term*. The term of any Award of Performance Shares, Dividend Equivalents, Stock Payments or Restricted Stock Units shall be set by the Committee in its discretion. 

 

8.6 *Exercise or Purchase Price*. The Committee may establish theexercise or purchase price of any Award of Performance Shares, Restricted Stock Units or Stock Payments; *provided, however*, that such price shall not be less than the par value of a share of Stock, unless otherwise permitted by applicablestate law. 

 

8.7 *Exercise Upon Termination of Employment orService*. An Award of Performance Shares, Dividend Equivalents, Restricted Stock Units and Stock Payments shall only be exercisable or payable while the Participant is an Employee, consultant to the Company or a member of the Board, asapplicable; *provided, however*, that the Committee in its sole and absolute discretion may provide that an Award of Performance Shares, Dividend Equivalents, Stock Payments or Restricted Stock Units may be exercised or paid subsequent to atermination of employment or service, as applicable, upon or following a Change of Control of the Company, or because of the Participant’s retirement, death or disability, or otherwise; *provided, however*, that any such provision withrespect to Performance Shares shall be subject to the requirements of Section 162(m) of the Code that apply to Qualified Performance-Based Compensation. 

 

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8.8 *Form of Payment.* Payments with respect to any Awards granted under this Article 8 shall bemade in cash, in Stock or a combination of both, as determined by the Committee. 

 

8.9 *Award Agreement*. All Awards under this Article 8 shall be subject to such additional terms and conditions as determined by the Committee and shall be evidenced by a written Award Agreement. 

 

**ARTICLE 9**

**PERFORMANCE-BASED AWARDS**

 

9.1 *Purpose*. The purpose of this Article 9 is to provide the Committee the ability to qualify Awards other than Options and SARs and that are granted pursuant to Articles 6 and 8 as Qualified Performance-BasedCompensation. If the Committee, in its discretion, decides to grant a Performance-Based Award to a Covered Employee, the provisions of this Article 9 shall control over any contrary provision contained in Articles 6 or 8; *provided, however*,that the Committee may in its discretion grant Awards to Covered Employees that are based on Performance Criteria or Performance Goals but that do not satisfy the requirements of this Article 9. 

 

9.2 *Applicability*. This Article 9 shall apply only to those CoveredEmployees selected by the Committee to receive Performance-Based Awards. The designation of a Covered Employee as a Participant for a Performance Period shall not in any manner entitle the Participant to receive an Award for the period. Moreover,designation of a Covered Employee as a Participant for a particular Performance Period shall not require designation of such Covered Employee as a Participant in any subsequent Performance Period and designation of one Covered Employee as aParticipant shall not require designation of any other Covered Employees as a Participant in such period or in any other period. 

 

9.3 *Procedures With Respect to Performance-Based Awards*. To the extent necessary to comply with the Qualified Performance-Based Compensationrequirements of Section 162(m)(4)(C) of the Code, with respect to any Award granted under Articles 6 and 8 which may be granted to one or more Covered Employees, no later than ninety (90) days following the commencement of any fiscal year inquestion or any other designated fiscal period or period of service (or such other time as may be required or permitted by Section 162(m) of the Code), the Committee shall, in writing, (i) designate one or more Covered Employees, (ii) select thePerformance 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, and (iv) specify the relationship between PerformanceCriteria and the Performance Goals and the amounts of such Awards, as applicable, to be earned by each Covered Employee for such Performance Period. Following the completion of each Performance Period, the Committee shall certify in writing whetherthe applicable Performance Goals have been achieved for such Performance Period. In determining the amount earned by a Covered Employee, the Committee shall have the right to reduce or eliminate (but not to increase) the amount payable at a givenlevel 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. 

 

9.4 *Payment of Performance-Based Awards*. Unless otherwise provided in the applicable Award Agreement, a Participantmust be employed by the Company or a Subsidiary on the day a Performance-Based Award for such Performance Period is paid to the Participant. Furthermore, a Participant shall be eligible to receive payment pursuant to a Performance-Based Award for aPerformance Period only if the Performance Goals for such period are achieved. In determining the amount earned under a Performance-Based Award, the Committee may reduce or eliminate the amount of the Performance-Based Award earned for thePerformance Period, if in its sole and absolute discretion, such reduction or elimination is appropriate. 

 

9.5 *Additional Limitations*. Notwithstanding any other provision of the Plan, any Award which is granted to a Covered Employee and is intended toconstitute Qualified Performance-Based Compensation shall be subject to any additional limitations set forth in Section 162(m) of the Code (including any amendment to Section 162(m) of the Code) or any regulations or rulings issued thereunder thatare requirements for qualification as qualified performance-based compensation as described in Section 162(m)(4)(C) of the Code, and the Plan shall be deemed amended to the extent necessary to conform to such requirements. 

 

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**ARTICLE 10**

**PROVISIONS APPLICABLE TO AWARDS**

 

10.1 *Stand-Alone and Tandem Awards*. Awards granted pursuant to the Plan may, in the discretion of the Committee, be granted either alone, in addition to, or in tandem with, any other Award granted pursuant to the Plan. Awards grantedin 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. 

 

10.2 *Award Agreement*. Awards under the Plan shall be evidenced by Award Agreements that set forth the terms, conditions and limitations for eachAward which may include the term of an Award, the provisions applicable in the event the Participant’s employment or service terminates, and the Company’s authority to unilaterally or bilaterally amend, modify, suspend, cancel or rescindan Award. 

 

10.3 *Limits on Transfer*. No right or interestof a Participant in any Award may be pledged, encumbered, or hypothecated to or in favor of any party other than the Company or a Subsidiary, or shall be subject to any lien, obligation, or liability of such Participant to any other party other thanthe Company or a Subsidiary. Except as otherwise provided by the Committee, no Award shall be assigned, transferred, or otherwise disposed of by a Participant other than by will or the laws of descent and distribution. The Committee by expressprovision in the Award or an amendment thereto may permit an Award (other than an Incentive Stock Option) to be transferred to, exercised by and paid to certain persons or entities related to the Participant, including but not limited to members ofthe Participant’s family, charitable institutions, or trusts or other entities whose beneficiaries or beneficial owners are members of the Participant’s family and/or charitable institutions, or to such other persons or entities as may beexpressly approved by the Committee, pursuant to such conditions and procedures as the Committee may establish. Any permitted transfer may be subject to the condition that the Committee receive evidence satisfactory to it that the transfer is beingmade for estate and/or tax planning purposes (or to a “blind trust” in connection with the Participant’s termination of employment or service with the Company or a Subsidiary to assume a position with a governmental, charitable,educational or similar non-profit institution) and on a basis consistent with the Company’s lawful issue of securities. 

 

10.4 *Beneficiaries*. Notwithstanding Section 10.3, a Participant may, in the manner determined by the Committee, designate a beneficiary to exercisethe 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 toall 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 Committee. Ifthe Participant is married and resides in a community property state, a designation of a person other than the Participant’s spouse as his beneficiary with respect to more than 50% of the Participant’s interest in the Award shall not beeffective without the prior written consent of the Participant’s spouse. 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 lawsof 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 Committee. 

 

10.5 *Stock Certificates*. Notwithstanding anything herein to thecontrary, the Company shall not be required to issue or deliver any certificates evidencing shares of Stock pursuant to the exercise of any Award, unless and until the Board has determined, with advice of counsel, that the issuance and delivery ofsuch certificates is in compliance with all applicable laws, regulations of governmental authorities and, if applicable, the requirements of any exchange on which the shares of Stock are listed or traded. All Stock certificates delivered pursuant tothe Plan are subject to any stop-transfer orders and other restrictions as the Committee deems necessary or advisable to comply with federal, state, or foreign jurisdiction, securities or other laws, rules and regulations and the rules of anynational securities exchange or automated quotation system on which the Stock is listed, quoted, or traded. The Committee may place legends on any Stock certificate to reference restrictions applicable to the Stock. In 

 

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addition to the terms and conditions provided herein, the Board may require that a Participant make such reasonable covenants, agreements, andrepresentations as the Board, in its discretion, deems advisable in order to comply with any such laws, regulations, or requirements. The Committee shall have the right to require any Participant to comply with any timing or other restrictions withrespect to the settlement or exercise of any Award, including a window-period limitation, as may be imposed in the discretion of the Committee. 

 

**ARTICLE 11**

**CHANGES IN CAPITALSTRUCTURE**

 

11.1 *Adjustments*. In the event of anystock dividend, stock split, combination or exchange of shares, merger, consolidation, spin-off, recapitalization or other distribution (other than normal cash dividends) of Company assets to stockholders, or any other change affecting the shares ofStock or the share price of the Stock, the Committee shall make such proportionate adjustments, if any, as the Committee in its discretion may deem appropriate to reflect such change with respect to (i) the aggregate number and type of shares thatmay be issued under the Plan (including, but not limited to, adjustments of the limitations in Sections 3.1 and 3.3); (ii) the terms and conditions of any outstanding Awards (including, without limitation, any applicable performance targets orcriteria with respect thereto); and (iii) the grant or exercise price per share for any outstanding Awards under the Plan. Any adjustment affecting an Award intended as Qualified Performance-Based Compensation shall be made consistent with therequirements of Section 162(m) of the Code. 

 

11.2 *Effect ofa Change of Control*. In the event of a Change of Control, then all of a Participant’s unvested Awards shall become fully exercisable and/or payable as applicable, and all forfeiture restrictions on such Awards shall lapse, immediately priorto such Change of Control. Upon, or in anticipation of, a Change of Control, the Committee may cause any and all Awards outstanding hereunder to terminate at a specific time in the future and shall give each Participant the right to exercise suchAwards during a period of time as the Committee, in its sole and absolute discretion, shall determine. 

 

11.3 *Outstanding Awards—Certain Mergers*. Subject to any required action by the stockholders of the Company, in the event that the Companyshall be the surviving corporation in any merger or consolidation (except a merger or consolidation as a result of which the holders of shares of Stock receive securities of another corporation), each Award outstanding on the date of such merger orconsolidation shall pertain to and apply to the securities that a holder of the number of shares of Stock subject to such Award would have received in such merger or consolidation. 

 

11.4 *Outstanding Awards—Other Changes*. In the event of any other change in the capitalization of the Company orcorporate change other than those specifically referred to in this Article 11, the Committee may, in its absolute discretion, make such adjustments in the number and class of shares subject to Awards outstanding on the date on which such changeoccurs and in the per share grant or exercise price of each Award as the Committee may consider appropriate to prevent dilution or enlargement of rights. 

 

11.5 *No Other Rights*. Except as expressly provided in the Plan, no Participant shall have any rights by reason of any subdivision or consolidationof shares of stock of any class, the payment of any dividend, any increase or decrease in the number of shares of stock of any class or any dissolution, liquidation, merger, or consolidation of the Company or any other corporation. Except asexpressly provided in the Plan or pursuant to action of the Committee under the Plan, no issuance by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reasonthereof shall be made with respect to, the number of shares of Stock subject to an Award or the grant or exercise price of any Award. 

 

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**ARTICLE 12**

**ADMINISTRATION**

 

12.1*Committee*. Unless and until the Board delegates administration to a Committee as set forth below, the Plan shall be administered by the Board. The Board may delegate administration of the Plan to a Committee or Committees of one or moremembers of the Board, and the term “Committee” shall apply to any person or persons to whom such authority has been delegated. If administration is delegated to a Committee, the Committee shall have, in connection with the administrationof the Plan, the powers theretofore possessed by the Board, including the power to delegate to a subcommittee any of the administrative powers the Committee is authorized to exercise (and references in this Plan to the Board shall thereafter be tothe Committee or subcommittee), subject, however, to such resolutions, not inconsistent with the provisions of the Plan, as may be adopted from time to time by the Board. Notwithstanding the foregoing, however, from and after the Public TradingDate, a Committee of the Board shall administer the Plan and the Committee shall consist solely of two or more members of the Board each of whom is both an “outside director,” within the meaning of Section 162(m) of the Code, and aNon-Employee Director. Within the scope of such authority, the Board or the Committee may (i) delegate to a committee of one or more members of the Board who are not “outside directors,” within the meaning of Section 162(m) of the Code theauthority to grant awards under the Plan to eligible persons who are either (1) not then “covered employees,” within the meaning of Section 162(m) of the Code and are not expected to be “covered employees” at the time ofrecognition of income resulting from such award or (2) not persons with respect to whom the Company wishes to comply with Section 162(m) of the Code and/or (ii) delegate to a committee of one or more members of the Board who are not Non- EmployeeDirectors, the authority to grant awards under the Plan to eligible persons who are not then subject to Section 16 of the Exchange Act. The Board may abolish the Committee at any time and/or revest in the Board the administration of the Plan.Appointment of Committee members shall be effective upon acceptance of appointment. Committee members may resign at any time by delivering written notice to the Board. Vacancies in the Committee may only be filled by the Board. 

 

12.2 *Action by the Committee*. A majority of the Committee shallconstitute a quorum. The acts of a majority of the members present at any meeting at which a quorum is present, and acts approved in writing by a majority of the Committee in lieu of a meeting, shall be deemed the acts of the Committee. Each memberof the Committee is entitled to, in good faith, rely or act upon any report or other information furnished to that member by any officer or other employee of the Company or any Subsidiary, the Company’s independent certified public accountants,or any executive compensation consultant or other professional retained by the Company to assist in the administration of the Plan. 

 

12.3 *Authority of Committee*. Subject to any specific designation in the Plan, the Committee has the exclusive power, authority and discretion to:

 

(a) Designate Participants to receive Awards;

 

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

 

(c) Determinethe number of Awards to be granted and the number of shares of Stock 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, grantprice, or purchase price, any reload provision, any restrictions or limitations on the Award, any schedule for lapse of forfeiture restrictions or restrictions on the exercisability of an Award, and accelerations or waivers thereof, any provisionsrelated to non-competition and recapture of gain on an Award, based in each case on such considerations as the Committee in its sole discretion determines; *provided, however*, that the Committee shall not have the authority to accelerate thevesting or waive the forfeiture of any Performance-Based Awards; 

 

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(e) Determine whether, to what extent, and pursuant to what circumstances an Award may besettled in, or the exercise price of an Award may be paid in, cash, 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;

 

(g) Decide all other matters that must bedetermined 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 berequired pursuant to the Plan or as the Committee deems necessary or advisable to administer the Plan. 

 

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

 

**ARTICLE 13**

**EFFECTIVE AND EXPIRATIONDATE**

 

13.1 *Effective Date*. The Plan will beeffective as of the date of the Board’s initial adoption of the Plan (the “***Effective Date***”). The Plan will be submitted for the approval of the Company’s stockholders within twelve months after the Effective Date.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 prior to the time when the Plan is approved by the stockholders, andprovided further that if such approval has not been obtained at the end of said twelve-month period, all Awards previously granted or awarded under the Plan shall thereupon be canceled and become null and void. 

 

13.2 *Expiration Date*. The Plan will expire on, and no Award may begranted pursuant to the Plan after, the earlier of the tenth anniversary of (i) the Effective Date or (ii) the date this Plan is approved by the Company’s stockholders. Any Awards that are outstanding on the tenth anniversary of the EffectiveDate shall remain in force according to the terms of the Plan and the applicable Award Agreement. Each Award Agreement shall provide that it will expire on the tenth anniversary of the date of grant of the Award to which it relates. 

 

**ARTICLE 14**

**AMENDMENT, MODIFICATION, AND TERMINATION**

 

14.1 *Amendment, Modification, and Termination*. With the approval of the Board, at any time and from time to time, the Committee may terminate,amend or modify the Plan; *provided, however*, that to the extent necessary and desirable to comply with any applicable law, regulation, or stock exchange rule, the Company shall obtain stockholder approval of any Plan amendment in such amanner and to such a degree as required. 

 

14.2 *AwardsPreviously Granted*. No termination, amendment, or modification of the Plan shall adversely affect in any material way any Award previously granted pursuant to the Plan without the prior written consent of the Participant. 

 

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**ARTICLE 15**

**GENERAL PROVISIONS**

 

15.1*No Rights to Awards*. No Participant, employee, or other person shall have any claim to be granted any Award pursuant to the Plan, and neither the Company nor the Committee is obligated to treat Participants, employees, and other personsuniformly. 

 

15.2 *No Stockholders Rights*. No Award givesthe Participant any of the rights of a stockholder of the Company unless and until shares of Stock are in fact issued to such person in connection with such Award. 

 

15.3 *Withholding*. The Company or any Subsidiary shall have the authority and the right to deduct or withhold, orrequire a Participant to remit to the Company, an amount sufficient to satisfy federal, state, local and foreign taxes (including the Participant’s FICA obligation) required by law to be withheld with respect to any taxable event concerning aParticipant arising as a result of this Plan. The Committee may in its discretion and in satisfaction of the foregoing requirement allow a Participant to elect to have the Company withhold shares of Stock otherwise issuable under an Award (or allowthe return of shares of Stock) having a Fair Market Value equal to the sums required to be withheld. Notwithstanding any other provision of the Plan, the number of shares of Stock which may be withheld with respect to the issuance, vesting, exerciseor payment of any Award (or which may be repurchased from the Participant of such Award within six months after such shares of Stock were acquired by the Participant from the Company) in order to satisfy the Participant’s federal, state, localand foreign income and payroll tax liabilities with respect to the issuance, vesting, exercise or payment of the Award shall be limited to the number of shares which have a Fair Market Value on the date of withholding or repurchase equal to theaggregate 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. 

 

15.4 *No Right to Employment or Services*. Nothing in the Plan or anyAward Agreement shall interfere with or limit in any way the right of the Company or any Subsidiary to terminate any Participant’s employment or services at any time, nor confer upon any Participant any right to continue in the employ orservice of the Company or any Subsidiary. 

 

15.5 *UnfundedStatus 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 shallgive the Participant any rights that are greater than those of a general creditor of the Company or any Subsidiary. 

 

15.6 *Indemnification*. To the extent allowable pursuant to applicable law, each member of the Committee or of the Board shall be indemnified andheld 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 orin 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 exclusiveof 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 holdthem harmless. 

 

15.7 *Relationship to Other Benefits*. Nopayment pursuant to the Plan shall be taken into account in determining any benefits pursuant to any pension, retirement, savings, profit sharing, group insurance, welfare or other benefit plan of the Company or any Subsidiary except to the extentotherwise expressly provided in writing in such other plan or an agreement thereunder. 

 

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15.8 *Expenses*. The expenses of administering the Plan shall be borne by the Company and itsSubsidiaries. 

 

15.9 *Titles and Headings*. The titles andheadings 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. 

 

15.10 *Fractional Shares*. No fractional shares of Stock shall be issued and the Committee shall determine, in itsdiscretion, whether cash shall be given in lieu of fractional shares or whether such fractional shares shall be eliminated by rounding up or down as appropriate. 

 

15.11 *Limitations Applicable to Section 16 Persons*. Notwithstanding any other provision of the Plan, the Plan, andany Award granted or awarded to any Participant who is then subject to Section 16 of the Exchange Act, shall be subject to any additional limitations set forth in any applicable exemptive rule under Section 16 of the Exchange Act (including anyamendment to Rule 16b-3 of the Exchange Act) that are requirements for the application of such exemptive rule. To the extent permitted by applicable law, the Plan and Awards granted or awarded hereunder shall be deemed amended to the extentnecessary to conform to such applicable exemptive rule. 

 

15.12*Government And Other Regulations*. The obligation of the Company to make payment of awards in Stock or otherwise shall be subject to all applicable laws, rules, and regulations, and to such approvals by government agencies as may be required.The Company shall be under no obligation to register pursuant to the Securities Act of 1933, as amended, any of the shares of Stock paid pursuant to the Plan. If the shares paid pursuant to the Plan may in certain circumstances be exempt fromregistration pursuant to the Securities Act of 1933, as amended, the Company may restrict the transfer of such shares in such manner as it deems advisable to ensure the availability of any such exemption. 

 

15.13 *Governing Law*. The Plan and all Award Agreements shall beconstrued in accordance with and governed by the laws of the State of Delaware. 

 

15.14 *Compliance with California Securities Laws*. Prior to the Public Trading Date, this Plan is intended to comply with Section 25102(o) of the California Corporations Code and the regulations issuedthereunder. If any of the provisions contained in this Plan are inconsistent with such requirements, such provisions shall be deemed null and void. The invalidity of any provision of this Plan shall not affect the validity or enforceability of anyother provision of this Plan, which shall remain in full force and effect. 

 

15.15 *Appendices*. The Committee may approve such supplements to, or amendments, or appendices to, the Plan as it may consider necessary or appropriate for purposes of compliance with applicable laws orotherwise and such supplements, amendments or appendices shall be considered a part of the Plan; *provided, however*, that no such supplements, amendments or appendices shall increase the share limitations contained in Sections 3.1 and 3.3 ofthe Plan. 

 

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**APPENDIX I**

 

**TO**

**ORION ACQUISITION CORP. II**

**2004 EQUITY INCENTIVE AWARD PLAN**

 

**California State Securities Law Compliance**

 

Notwithstanding anything to the contrary contained in the Plan, theprovisions set forth in this Appendix shall apply to all Awards granted under the Orion Acquisition Corp. II 2004 Equity Incentive Award Plan (the “***Plan***”) prior to the Public Trading Date. This Appendix shall be of no furtherforce and effect on or after the Public Trading Date. Definitions as set out in Section 2 of the Plan are applicable to this Appendix. 

 

The purpose of this Appendix is to set forth those provisions of the Plan necessary to comply with Section 25102(o) of the California Corporations Codeand the regulations issued thereunder. If any of the provisions contained in this Appendix are inconsistent with such requirements, such provisions shall be deemed null and void. The invalidity of any provision of this Appendix shall not affect thevalidity or enforceability of any other provision of this Appendix, which shall remain in full force and effect. 

 

1.1 *Term of Awards*. The term of each Award shall be no more than ten years from the date of grant thereof. ****

 

2.1 *Award Exercise or Purchase Price*. Except as provided in Article11, the per share exercise or purchase price for the Stock to be issued upon exercise of an Award shall be such price as is determined by the Administrator, but shall be subject to the following: ****

 

In the case of an Award: 

 

(a) granted to a Participant who, at the time of grant ofsuch Award, owns stock representing more than 10% of the voting power of all classes of stock of the Company or any parent (as defined in Section 175 of the California Corporations Code) or Subsidiary, the per share exercise or purchase price shallbe no less than 110% of the Fair Market Value per share on the date of the grant (100% in the case of an Award other than an Option); and 

 

(b) granted to any other Participant, the per share exercise or purchase price shall be no less than 85% of the Fair Market Value pershare on the date of grant. 

 

Notwithstanding the foregoing,Awards may be granted with a per share exercise or purchase price other than as required above pursuant to a merger or other corporate transaction. 

 

3.1 *Exercisability*. Except with regard to Awards granted to officers, directors, managers or consultants, in no event shall an Award grantedhereunder become vested and exercisable at a rate of less than 20% per year over five years from the date the Award is granted, subject to reasonable conditions, such as continuing to be a service provider. **********

 

4.1 *Exercisability Following Termination of Relationship as a ServiceProvider*. 

 

(a) Termination Other ThanDeath or Disability. If a Participant’s employment or service terminates for any reason other than by reason of the Participant’s disability or death, such Participant may exercise his or her Award within such period of time as isspecified in the Award Agreement to the extent that the Award is vested on the date of termination; *provided*, *however*, that prior to the Public Trading Date, such period of time shall not be less than thirty days (but in no event laterthan the expiration of the term of the Award as set forth in the Award Agreement). In the absence of a specified time in the Award Agreement, the Option shall remain exercisable for three months following the Participant’s termination.

 

(b) Disability of Participant. If aParticipant’s employment or service terminates as a result of the Participant’s disability, the Participant may exercise his or her Award within such period of time as is specified in the Award Agreement to the extent the Award is vestedon the date of termination;*provided*, 

*however*, that prior to the Public Trading Date, such period of time shall not be less than six months (but in no event later than the expiration ofthe term of such Award as set forth in the Award Agreement). In the absence of a specified time in the Award Agreement, the Award shall remain exercisable for twelve months following the Holder’s termination. **********

 

(c) Death. If a Participant’s employment or serviceterminates as a result of the Participant’s death, the Award may be exercised within such period of time as is specified in the Award Agreement;*provided*, *however*, that prior to the Public Trading Date, such period of time shallnot be less than six months (but in no event later than the expiration of the term of such Award as set forth in the Notice of Grant), by the Participant’s estate or by a person who acquires the right to exercise the Award by bequest orinheritance, but only to the extent that the Award is vested on the date of death. In the absence of a specified time in the Award Agreement, the Award shall remain exercisable for twelve months following the Participant’s termination. **

 

5.1 *Repurchase Provisions*. In the event the Committeeprovides that the Company may repurchase Stock acquired upon exercise of an Award upon the occurrence of certain specified events, including, without limitation, termination of a Participant’s employment or service, divorce, bankruptcy orinsolvency, then any such repurchase right shall be set forth in the applicable Award Agreement or in another agreement referred to in such agreement and, to the extent required by Section 260.140.41 and Section 260.140.42 of Title 10 of theCalifornia Code of Regulations, any such repurchase right set forth in an Award granted prior to the Public Trading Date to a person who is not an officer, director, manager or consultant shall be upon the following terms: (i) if the repurchaseoption gives the Company the right to repurchase the shares upon the Participant’s termination of employment or service at not less than the Fair Market Value of the shares to be purchased on the date of termination of employment or service,then (A) the right to repurchase shall be exercised for cash or cancellation of purchase money indebtedness for the shares within ninety days of termination of employment or service (or in the case of shares issued upon exercise of Awards after suchdate of termination, within ninety days after the date of the exercise) or such longer period as may be agreed to by the Administrator and the Participant and (B) the right terminates on the Public Trading Date; and (ii) if the repurchase optiongives the Company the right to repurchase the Stock upon the Participant’s termination of employment or service at the original purchase price for such Stock, then (A) the right to repurchase at the original purchase price shall lapse at therate of at least 20% of the shares per year over five (5) years from the date the Award is granted (without respect to the date the Award was exercised or became exercisable) and (B) the right to repurchase shall be exercised for cash orcancellation of purchase money indebtedness for the shares within ninety days of termination of employment or service (or, in the case of shares issued upon exercise of Awards, after such date of termination, within ninety days after the date of theexercise) or such longer period as may be agreed to by the Company and the Participant. 

 

6.1 *Information Rights*. Prior to the Public Trading Date and to the extent required by Section 260.140.46 of Title 10 of the California Code of Regulations, the Company shall provide to each Participant and toeach individual who acquires Stock pursuant to the Plan, not less frequently than annually during the period such Participant has one or more Awards outstanding, and, in the case of an individual who acquires Stock pursuant to the Plan, during theperiod such individual owns such Stock, copies of annual financial statements. Notwithstanding the preceding sentence, the Company shall not be required to provide such statements to key employees whose duties in connection with the Company assuretheir access to equivalent information.**

 

7.1*Transferability*. Prior to the Public Trading Date, no Award shall be assigned, transferred, or otherwise disposed of by a Participant other than by will or the laws of descent and distribution or, with respect to Awards other than IncentiveStock Options, as permitted by Rule 701 of the Securities Act. 

 

8.1 *Limitation on Number of Shares*. Prior to the Public Trading Date, at no time shall the total number of shares of Stock issuable upon exercise of all outstanding Options under the Plan and any shares of Stock provided for underany bonus or similar plan or agreement of the Company exceed 30% of the then-outstanding shares of Stock of the Company, as calculated pursuant to Section 260.140.45 of Title 10 of the California Code of Regulations, unless a percentage higher than30% is approved by at least two-thirds of the outstanding securities of the Company entitled to vote. The number of shares of Stock which may be issued or transferred pursuant to Awards under the Plan shall be reduced to the extent necessary tocomply with this provision. 

 

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