EXHIBIT 10.2


 


SJW
CORP.


 


RESTRICTED
STOCK UNIT ISSUANCE AGREEMENT


 


AMENDED AND RESTATED EFFECTIVE AS OF JULY 1, 2008


 


RECITALS


 


A.            The
Board has adopted the Plan for the purpose of retaining the services of
selected Employees of the Corporation (or any Parent or Subsidiary).


 


B.            Participant
is to render valuable services to the Corporation (or a Parent or Subsidiary),
and this Agreement is executed pursuant to, and is intended to carry out the
purposes of, the Plan in connection with the Corporation’s issuance of an
equity incentive award under the Plan designed to retain Participant’s
continued service.


 


C.            The
Board previously made an Award of Restricted Stock Units to Participant on _________,
________, and that Award is evidenced by a Restricted Stock Unit Issuance
Agreement between the Corporation and Participant dated that same date.


 


D.            The Corporation and
Participant wish to execute this Amended and Restated Agreement solely for the
purpose of bringing the Restricted Stock Unit Issuance Agreement into
documentary compliance with the final Treasury Regulations under Section 409A
of the Code, effective July 1, 2008.


 


E.             All capitalized terms in this Agreement shall
have the meaning assigned to them in the attached Appendix A.


 


NOW, THEREFORE, it is hereby agreed as
follows:


 


1.             Grant of Restricted Stock Units.  The
Corporation hereby awards to Participant, as of the Award Date, Restricted
Stock Units under the Plan.  Each
Restricted Stock Unit which vests during Participant’s period of Service shall
entitle Participant to receive one share of Common Stock on the applicable
vesting date.  The number of shares of
Common Stock subject to the awarded Restricted Stock Units, the applicable
vesting schedule for those shares, the applicable date or dates on which those
vested shares shall become issuable to Participant and the remaining terms and
conditions governing the award (the “Award”) shall be as set forth in this
Agreement.


 


	
  Participant

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Award Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Number of Shares Subject to Award:

  	
   

  	
                 
  shares of Common Stock (the “Shares”)

  
				



 

















 


	
  Vesting Schedule:

  	
   

  	
  The Shares shall vest in a series of four (4) successive equal
  annual installments upon Participant’s completion of each year of Service
  over the four (4)-year period measured from the Award Date (the “Normal
  Vesting Schedule”). However, the Shares may be subject to accelerated vesting
  in accordance with the provisions of Paragraphs 4 and 6 below.

  
	
   

  	
   

  	
   

  
	
  Issuance Schedule:

  	
   

  	
  The Shares in which the Participant vests on an annual basis in accordance
  with the Normal Vesting Schedule shall be issued, subject to the
  Corporation’s collection of all applicable Withholding Taxes, on the
  applicable annual vesting date or as soon thereafter as administratively
  practicable (the “Issuance Date”), but in no event later than the close of
  the calendar year in which such annual vesting date occurs or (if later) the
  fifteenth day of the third calendar month following such vesting date. The
  Shares which vest pursuant to Paragraph 4 or Paragraph 6 of this Agreement
  shall be issued in accordance with the provisions of the applicable
  Paragraph. The applicable Withholding Taxes are to be collected pursuant to
  the procedure set forth in Paragraph 8 of this Agreement.

  



 


2.             Limited Transferability. 
Prior to actual receipt of the Shares which vest and become issuable
hereunder, Participant may not transfer any interest in the Award or the
underlying Shares. Any Shares which vest hereunder but which otherwise remain
unissued at the time of Participant’s death may be transferred pursuant to the
provisions of Participant’s will or the laws of inheritance or to Participant’s
designated beneficiary or beneficiaries of this Award.  Participant may also direct the Corporation
to re-issue the stock certificates for any Shares which in fact vest and become
issuable under the Award during his or her lifetime to one or more designated
family members or a trust established for Participant and/or his or her family
members.  Participant may make such a
beneficiary designation or certificate directive at any time by filing the
appropriate form with the Plan Administrator or its designee.


 


3.             Cessation
of Service.  Except as
otherwise provided in Paragraph 4 or Paragraph 6 below, should Participant
cease Service for any reason prior to vesting in one or more Shares subject to
this Award, then the Award shall be immediately cancelled with respect to those
unvested Shares, and the number of Restricted Stock Units will be reduced
accordingly.  Participant shall thereupon
cease to have any right or entitlement to receive any Shares under those
cancelled units.


 


4.             Accelerated
Vesting.  Should Participant
cease Employee status by reason of death or Disability, then all of the Shares
at the time subject to this Award shall immediately vest and shall be issued on
the date of the Participant’s Separation from Service or as soon as
administratively practicable thereafter, subject to the Corporation’s
collection of the applicable Withholding Taxes, but in no event later than the
close of the calendar year in which such Separation from Service occurs or (if
later) the fifteenth (15th) day of the third (3rd) calendar month following the
date of such Separation from  Service.


 


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5.             Stockholder Rights.  Participant
shall not have any stockholder rights, including voting rights or dividend
rights, with respect to the Shares subject to the Award until the Shares vest
and Participant becomes the record holder of those Shares upon their actual
issuance following the Company’s collection of the applicable Withholding
Taxes.


 


6.             Change in Control.


 


A.            Any Restricted Stock
Units subject to this Award at the time of a Change in Control may be assumed
by the successor entity or otherwise continued in full force and effect or may
be replaced with a cash retention program of the successor entity which
preserves the Fair Market Value of the underlying Shares at the time of the
Change in Control and provides for the subsequent vesting and payout of that
value in accordance with the same vesting and payout provisions that would be
applicable to those Shares in the absence of such Change in Control. In the
event of such assumption or continuation of the Award or such replacement of
the Award with a cash retention program, no accelerated vesting of the
Restricted Stock Units shall occur at the time of the Change in Control.


 


B.            In the event the Award
is assumed or otherwise continued in effect, the Restricted Stock Units subject
to the Award will be adjusted immediately after the consummation of the Change
in Control so as to apply to the number and class of securities into which the
Shares subject to those units immediately prior to the Change in Control would
have been converted in consummation of that Change in Control had those Shares
actually been issued and outstanding at that time.  To the extent the actual holders of the
outstanding Common Stock receive cash consideration for the Common Stock in
consummation of the Change in Control, the successor corporation may, in connection
with the assumption or continuation of the Restricted Stock Units subject to
the Award at that time, substitute one or more shares of its own common stock
with a fair market value equivalent to the cash consideration paid per share of
Common Stock in the Change in Control transaction, provided such shares are
registered under the federal securities laws and readily tradable on an
established securities exchange.


 


C.            Should either of the
following events occur during the period commencing with the earlier of (i) the execution date
of any definitive agreement for a Change in Control transaction or (ii) the
actual occurrence of a Change in Control and ending with the earlier of (x) the expiration
of the twenty-four (24)-month period measured from the effective date of the
Change in Control or, to the extent applicable, (y) the date the
definitive agreement for the Change in Control transaction is terminated or
cancelled without the consummation of the contemplated Change in Control
transaction:


 


(i)            Participant’s
Employee status is terminated other than for Good Cause, or


 


(ii)           Participant
resigns from Employee status for Good Reason,


 


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then all of the Shares at
the time subject to this Award shall immediately vest and shall be issued on
the date of the Participant’s Separation from Service or as soon as
administratively practicable thereafter, subject to the Corporation’s
collection of the applicable Withholding Taxes, but in no event later than the
close of the calendar year in which such Separation from Service occurs or (if
later) the fifteenth (15th) day of the third (3rd) calendar month following the
date of such Separation from Service, unless a further deferral is required
pursuant to Paragraph 9.


 


D.            If the Restricted
Stock Units subject to this Award at the time of the Change in Control are not
assumed or otherwise continued in effect or replaced with a cash retention
program in accordance with Paragraph 6.A above, then those units shall vest
immediately prior to the closing of the Change in Control. The Shares subject
to those vested units shall be converted into the right to receive the same
consideration per share of Common Stock payable to the other stockholders of
the Corporation in consummation of that Change in Control, and such
consideration per Share shall be distributed to Participant upon the tenth
(10th) business day following the earliest to
occur of (i) the Issuance Date determined for that Share in accordance
with the Normal Vesting Schedule, (ii) the date of Participant’s
Separation from Service or (iii) the first date following the Change in Control
on which the distribution can be made without contravention of any applicable
provisions of Code Section 409A. Such distribution shall be subject to the
Corporation’s collection of the applicable Withholding Taxes pursuant to the
provisions of Paragraph 8.


 


E.             This Agreement shall
not in any way affect the right of the Corporation to adjust, reorganize or
otherwise change its capital or business structure or to merge, consolidate,
dissolve, liquidate or sell or transfer all or any part of its business or
assets.


 


7.             Adjustment in Shares.  Should
any change be made to the Common Stock by reason of any stock split, stock
dividend, recapitalization, combination of shares, exchange of shares, spin-off
transaction, extraordinary dividend or distribution or other change affecting
the outstanding Common Stock as a class without the Corporation’s receipt of
consideration, or should the value of outstanding shares of Common Stock be
substantially reduced as a result of a spin-off transaction or an extraordinary
dividend or distribution, or should there occur any merger, consolidation or
other reorganization, then equitable adjustments shall be made by the Plan
Administrator to the total number and/or class of securities issuable pursuant
to this Award in order to reflect such change and thereby prevent a dilution or
enlargement of benefits hereunder. The determination of the Plan Administrator
shall be final, binding and conclusive. 
In the event of a Change in
Control, the adjustments (if any) shall be made in accordance with the
provisions of Paragraph 6.


 


8.             Issuance of
Shares/Collection of Withholding Taxes.


 


A.            On each applicable
Issuance Date (or any earlier date on which the Shares are to be issued in
accordance with the terms of this Agreement), the Corporation shall issue to or
on behalf of the Participant a certificate (which may be in electronic form)
for the applicable number of shares of Common Stock, subject, however, to the
Corporation’s collection of the applicable Withholding Taxes.


 


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B.            The Corporation shall
collect the applicable Withholding Taxes with respect to the Shares which vest
and become issuable hereunder through an automatic share withholding procedure
pursuant to which the Corporation will withhold, at the time of such vesting, a
portion of the Shares with a Fair Market Value (measured as of the applicable
vesting date) equal to the amount of those taxes; provided,
however, that the amount of any Shares so withheld shall not
exceed the amount necessary to satisfy the Corporation’s required tax
withholding obligations using the minimum statutory withholding rates for
federal and state tax purposes that are applicable to supplemental taxable
income.


 


C.            Notwithstanding the
foregoing provisions of Paragraph 8.B, the employee portion of the federal,
state and local employment taxes required to be withheld by the Corporation in
connection with the vesting of the Shares or any other amounts hereunder (the “Employment
Taxes”) shall in all events be collected from the Participant no later than the
last business day of the calendar year in which the Shares or other amounts
vest hereunder.  Accordingly, to the
extent the Issuance Date for one or more vested Shares or the distribution date
for such other amounts is to occur in a year subsequent to the calendar year in
which those Shares or other amounts vest, the Participant shall, on or before
the last business day of the calendar year in which the Shares or other amounts
vest, deliver to the Corporation a check payable to its order in the dollar
amount equal to the Employment Taxes required to be withheld with respect to
those Shares or other amounts.  The
provisions of this Paragraph 8.C shall be applicable only to the extent
necessary to comply with the applicable tax withholding requirements of Code Section 3121(v).


 


D.            Except as otherwise
provided in Paragraph 6 and Paragraph 8.B, the settlement of all Restricted
Stock Units which vest under the Award shall be made solely in shares of Common
Stock.  In no event, however, shall any fractional
shares be issued.  Accordingly, the total
number of shares of Common Stock to be issued pursuant to this Award shall, to
the extent necessary, be rounded down to the next whole share in order to avoid
the issuance of a fractional share.


 


9.             Deferred
Issuance Date. Notwithstanding any provision to the contrary in
this Agreement, no Shares or other amounts which become issuable or
distributable by reason of Participant’s Separation from Service shall actually
be issued or distributed to Participant prior to the earlier
of (i) the first day of the seventh (7th) month following the date of such
Separation from Service or (ii) the date of Participant’s death, if
Participant is deemed at the time of such Separation from Service to be a
specified employee under Section 1.409A-1(i) of the Treasury
Regulations issued under Code Section 409A, as determined by the Plan
Administrator in accordance with consistent and uniform standards applied to
all other Code Section 409A arrangements of the Corporation, and such
delayed commencement is otherwise required in order to avoid a prohibited
distribution under Code Section 409A(a)(2).  The deferred Shares or other distributable
amount shall be issued or distributed in a lump sum on the first day of the
seventh (7th) month following the date of Participant’s Separation from Service
or, if earlier, the first day of the month immediately following the date the
Corporation receives proof of Participant’s death.


 


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10.           Benefit Limit.  In the event the vesting and
issuance of the Shares subject to this Award would otherwise constitute a
parachute payment under Code Section 280G, then the vesting and issuance
of those Shares shall be subject to reduction to the extent necessary  to assure that the number of Shares which
vest and are issued under this Award will be limited to the greater of (i)  the number
of Shares which can vest and be issued without triggering a parachute payment
under Code Section 280G or (ii)  the maximum number of Shares
which can vest and be issued under this Award so as to provide the Participant
with the greatest after-tax amount of such vested and issued Shares after
taking into account any excise tax the Participant may incur under Code Section 4999
with respect to those Shares and any other benefits or payments to which the
Participant may be entitled in connection with any change in control or
ownership of the Corporation or the subsequent termination of the Participant’s
Service.  The foregoing benefit
limitation of this Paragraph 10 shall only apply in the event Participant is
not otherwise entitled to a Code Section 4999 tax gross-up under the terms
of the Corporation’s Executive Severance Plan.


 


11.           Compliance with Laws and Regulations.  The
issuance of shares of Common Stock pursuant to the Award shall be subject to
compliance by the Corporation and Participant with all applicable requirements
of law relating thereto and with all applicable regulations of any Stock Exchange
on which the Common Stock may be listed for trading at the time of such
issuance.


 


12.           Notices.  Any notice required to be given or delivered
to the Corporation under the terms of this Agreement shall be in writing and
addressed to the Corporation at its principal corporate offices.  Any notice required to be given or delivered
to Participant shall be in writing and addressed to Participant at the address
indicated below Participant’s signature line on this Agreement.  All notices shall be deemed effective upon
personal delivery or upon deposit in the U.S. mail, postage prepaid and
properly addressed to the party to be notified.


 


13.           Successors and Assigns.  Except to the extent otherwise
provided in this Agreement, the provisions of this Agreement shall inure to the
benefit of, and be binding upon, the Corporation and its successors and assigns
and Participant, Participant’s assigns, the legal representatives, heirs and
legatees of Participant’s estate and any beneficiaries of the Award designated
by Participant.


 


14.           Construction.  This Agreement and the Award evidenced hereby
are made and granted pursuant to the Plan and are in all respects limited by
and subject to the terms of the Plan. 
All decisions of the Plan Administrator with respect to any question or
issue arising under the Plan or this Agreement shall be conclusive and binding
on all persons having an interest in the Award.


 


15.           Governing Law.  The interpretation, performance and
enforcement of this Agreement shall be governed by the laws of the State of
California without resort to that State’s conflict-of-laws rules.


 


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16.           Employment at Will.  Nothing in this Agreement or in the Plan
shall confer upon Participant any right to continue in Service for any period
of specific duration or interfere with or otherwise restrict in any way the
rights of the Corporation (or any Parent or Subsidiary employing or retaining
Participant) or of Participant, which rights are hereby expressly reserved by
each, to terminate Participant’s Service at any time for any reason, with or
without cause.


 


IN WITNESS WHEREOF, the parties have executed
this Amended and Restated Agreement on the respective dates indicated below.


 


	
   

  	
  SJW CORP.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [PARTICIPANT]

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  
						



 


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APPENDIX A


 


DEFINITIONS


 


The following definitions shall be in effect under the Agreement:


 


A.            Agreement
shall mean this Restricted Stock Unit Issuance Agreement.


 


B.            Award
shall mean the award of Restricted Stock Units made to Participant pursuant to
the terms of the Agreement.


 


C.            Award
Date shall mean the date the Restricted Stock Units are awarded
to Participant pursuant to the Agreement and shall be the date indicated in
Paragraph 1 of the Agreement.


 


D.            Board
shall mean the Corporation’s Board of Directors.


 


E.             Change in
Control shall mean any change in control or ownership of the
Corporation which occurs by reason of one or more of the following events:


 


(i)            the acquisition,
directly or indirectly by any person or related group of persons (as such term
is used in Sections 13(d) and 14(d) of the Exchange Act), other than
the Corporation or a person that directly or indirectly controls, is controlled
by, or is under control with, the Corporation or an employee benefit plan
maintained by any such entity, of beneficial ownership (as defined in Rule 13d-3
of the Exchange Act) of securities of the Corporation that results in such
person or related group beneficially owning securities representing thirty percent
(30%) or more of the total combined voting power of the Corporation’s
then-outstanding securities;


 


(ii)           a merger, recapitalization, consolidation,
or other similar transaction to which the Corporation is a party, unless
securities representing at least 50% of the combined voting power of the then-outstanding
securities of the surviving entity or a parent thereof are immediately
thereafter beneficially owned, directly or indirectly and in substantially the
same proportion, by the persons who beneficially owned the Corporation’s
outstanding voting securities immediately before the transaction;


 


(iii)          a sale, transfer or disposition of all or
substantially all of the Corporation’s assets, unless securities representing
at least 50% of the combined voting power of the then-outstanding securities of
the entity acquiring the Corporation’s assets or parent thereof are immediately
thereafter beneficially owned, directly or indirectly and in substantially the
same proportion, by the persons who beneficially owned the Corporation’s
outstanding voting securities immediately before the transaction,


 

















 


(iv)          a merger, recapitalization, consolidation, or
other transaction to which the Corporation is a party or the sale, transfer, or
other disposition of all or substantially all of the Corporation’s assets if,
in either case, the members of the Board immediately prior to consummation of
the transaction do not, upon consummation of the transaction, constitute at
least a majority of the board of directors of the surviving entity or the
entity acquiring the Corporation’s assets, as the case may be, or a parent
thereof (for this purpose, any change in the composition of the board of
directors that is anticipated or pursuant to an understanding or agreement in
connection with a transaction will be deemed to have occurred at the time of
the transaction, provided such change occurs within twelve (12) months after
the effective date of the transaction); or


 


(v)           a change in the composition of the Board
over a period of thirty-six (36) consecutive months or less such that a majority
of the Board members ceases by reason of one or more contested elections for
Board membership, to be comprised of individuals who either (a) have been
Board members since the beginning of such period or (b) have been elected
or nominated for election as Board members during such period by at least a
majority of the Board members who were described in clause (a) or who were
previously so elected or approved and who were still in office at the time the
Board approved such election or nomination; provided, however, that solely for
purposes of determining whether a permissible Section 409A distribution
can be made under Paragraph 6.D in connection with such Change in Control
event, the period for measuring a change in the composition of the Board shall
be limited to a period of twelve (12) consecutive months or less;


 


provided that no Change in Control shall occur if the result of the
transaction is to give more ownership or control of the Corporation to any
person or related group of persons who held securities representing more than
thirty percent (30%) of the combined voting power of the Corporation’s
outstanding securities as of March 3, 2003.


 


F.             Code
shall mean the Internal Revenue Code of 1986, as amended.


 


G.            Common
Stock shall mean the shares of the Corporation’s common stock.


 


H.            Corporation
shall mean SJW Corp., a California corporation, and any successor corporation
to all or substantially all of the assets or voting stock of SJW Corp. which
shall by appropriate action adopt the Plan and/or assume the Award.


 


I.              Disability
shall mean the Participant’s permanent and total disability as determined
pursuant to Section 22(e)(3) of the Code.


 


J.             Employee
shall mean an individual who is in the employ of the Corporation (or any Parent
or Subsidiary), subject to the control and direction of the employer entity as
to both the work to be performed and the manner and method of performance; provided, however, that 


 

















 


solely for purposes of
determining whether Employee has incurred a Separation from Service, the term “Employee”
shall have the meaning assigned to such term in the Separation from Service
definition set forth in this Appendix.


 


K.            Fair
Market Value per share of Common Stock on any relevant date
shall be the closing selling price per share on the date in question on the
Stock Exchange on which the Common Stock is at that time primarily traded, as
such price is officially quoted in the composite tape of transactions on such
exchange.  If there is no reported sale
of Common Stock on such Stock Exchange on the date in question, then the Fair
Market Value shall be the closing selling price on the exchange on the last
preceding date for which such quotation exists.


 


L.             Good
Cause shall mean:


 


(i)            Any
act or omission by the Participant that results in substantial harm to the
business or property of the Corporation (or any Parent or Subsidiary) and that
constitute dishonesty, intentional breach of fiduciary obligation or
intentional wrongdoing, or


 


(ii)           Participant’s
conviction of a criminal violation involving fraud or dishonesty.


 


The foregoing definition shall not in any way
preclude or restrict the right of the Corporation (or any Parent or Subsidiary)
to discharge or dismiss Participant or any other person in the Service of the
Corporation (or any Parent or Subsidiary) for any other acts or omissions, but
such other acts or omissions shall not be deemed, for purposes of the Plan or
this Agreement, to constitute grounds for termination for Good Cause.


 


M.           Good
Reason  shall be deemed to exist with respect to Participant if and only if,
without Participant’s express written consent:


 


(i)            there
is a significant change in the nature or the scope of Participant’s authority
or in his or her overall working environment;


 


(ii)           Participant
is assigned duties materially inconsistent with his or her present duties,
responsibilities and status;


 


(iii)          there is a reduction in the sum of Participant’s
rate of base salary and target bonus; or


 


(iv)          the
Corporation changes by fifty-five (55) miles or more the principal location in
which Participant  is required to perform
services;


 


provided that, in the case of each such reason, that
the Corporation has not cured such condition within thirty (30) days after written
notice by Participant to the Corporation that such condition exists and
constitutes Good Reason.


 


N.            1934 Act
shall mean the Securities Exchange Act of 1934, as amended.


 

















 


O.            Participant
shall mean the person to whom the Award is made pursuant to the Agreement.


 


P.             Parent
shall mean any corporation (other than the Corporation) in an unbroken
chain of corporations ending with the Corporation, provided each corporation in
the unbroken chain (other than the Corporation) owns, at the time of the
determination, stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.


 


Q.            Plan
shall mean the Corporation’s Long Term Incentive Plan.


 


R.            Plan
Administrator shall mean either the Board or a committee of the
Board acting in its capacity as administrator of the Plan.


 


S.             Restricted
Stock Unit  shall mean each unit subject to the Award which shall
entitle Participant to receive one (1) share of Common Stock upon the
vesting of that unit.


 


T.            Separation
from Service  shall mean the Participant’s cessation of Employee
status by reason of his or her death, retirement or termination of
employment.  The Participant shall be
deemed to have terminated employment for such purpose at such time as the level
of his or her bona fide services to be performed as an Employee (or as a
consultant or independent contractor) permanently decreases to a level that is
not more than twenty percent (20%) of the average level of services he or she rendered
as an Employee during the immediately preceding thirty-six (36) months.  Solely for purposes of determining when a
Separation from Service occurs, Participant will be deemed to continue in “Employee”
status for so long as he or she remains in the employ of one or more members of
the Employer Group, subject to the control and direction of the employer entity
as to both the work to be performed and the manner and method of performance. “Employer
Group” means the Corporation and any Parent or Subsidiary and any other
corporation or business controlled by, controlling or under common control
with, the Corporation, as determined in accordance with Sections 414(b) and
(c) of the Code and the Treasury Regulations thereunder, except that in
applying Sections 1563(1), (2) and (3) for purposes of determining
the controlled group of corporations under Section 414(b), the phrase “at
least 50 percent” shall be used instead of “at least 80 percent” each place the
latter phrase appears in such sections and in applying Section 1.414(c)-2
of the Treasury Regulations for purposes of determining trades or businesses
that are under common control for purposes of Section 414(c), the phrase “at
least 50 percent” shall be used instead of “at least 80 percent” each place the
latter phrase appears in Section  1.4.14(c)-2 of the Treasury Regulations.  Any such determination as to Separation from
Service, however, shall be made in accordance with the applicable standards of
the Treasury Regulations issued under Section 409A of the Code.


 

















 


U.            Service
shall mean Participant’s performance of services for the Corporation (or any
Parent or Subsidiary) in the capacity of an Employee, a non-employee member of
the Board or a consultant or independent advisor.  Participant shall be deemed to cease Service
immediately upon the occurrence of either of the following events:  (i) Participant no longer performs
services in any of the foregoing capacities for the Corporation (or any Parent
or Subsidiary) or (ii) the entity for which Participant performs such
services ceases to remain a Parent or Subsidiary of the Corporation, even
though Participant may subsequently continue to perform services for that
entity.  Service as an Employee shall not
be deemed to cease during a period of military leave, sick leave or other personal
leave approved by the Corporation; provided, however,
that the following special provisions shall be in effect for any such leave:


 


(i)            Should
the period of such leave (other than a disability leave) exceed six (6) months,
then Participant shall be deemed to cease Service and to incur a Separation
from Service upon the expiration of the initial six (6)- month period of that
leave, unless Participant retains a right to re-employment under applicable law
or by contract with the Corporation (or any Parent or Subsidiary).


 


(ii)           Should
the period of a disability leave exceed twenty-nine (29) months, then
Participant shall be deemed to cease Service and to incur a Separation from
Service upon the expiration of the initial twenty-nine (29)-month period of
that leave, unless Participant retains a right to re-employment under
applicable law or by contract with the Corporation (or any Parent or
Subsidiary).   For such purpose, a
disability leave shall be a leave of absence due to any medically determinable
physical or mental impairment that can be expected to result in death or to
last for a continuous period of not less than six (6) months and causes
Participant to be unable to perform the duties of his or her position of
employment with the Corporation (or any Parent or Subsidiary) or any
substantially similar position of employment.


 


(iii)          Except
to the extent otherwise required by law or expressly authorized by the Plan
Administrator or by the Corporation’s written policy on leaves of absence, no
Service credit shall be given for vesting purposes for any period Participant
is on a leave of absence.


 


V.            Stock Exchange
shall mean the American Stock Exchange, the Nasdaq Global or Global Select
Market or the New York Stock Exchange.


 


W.           Subsidiary
shall mean any corporation (other than the Corporation) in an unbroken chain of
corporations beginning with the Corporation, provided each corporation (other
than the last corporation) in the unbroken chain owns, at the time of the
determination, stock possessing fifty percent (50%) or more of the total combined
voting power of all classes of stock in one of the other corporations in such
chain.


 


X.            Withholding
Taxes  shall mean the federal, state and local income and employment
taxes required to be withheld by the Corporation in connection with the vesting
and issuance of the shares of Common Stock (or any other property) under the
Award.