Exhibit 4.5


 


FTD GROUP, INC.


2005 EQUITY INCENTIVE AWARD PLAN


 


AMENDED AND RESTATED AS OF OCTOBER 29, 2008


 


AND AS


 


ASSUMED AND ADMINISTERED BY UNITED ONLINE,
INC.


 


ARTICLE 1


 


PURPOSE


 


The purpose of the FTD Group, Inc. 2005 Equity Incentive Award
Plan, As Amended and Restated as of October 29, 2008 and Assumed by United
Online, Inc. (the “Plan”),
is to promote the success and enhance the value of United Online, Inc.
(the “Company” by linking the personal interests of the members of the Board,
Employees, and Consultants to those of Company stockholders and by providing
such individuals with an incentive for outstanding performance to generate
superior returns to Company stockholders. The Plan is further intended to
provide flexibility to the Company in its ability to motivate, attract, and
retain the services of members of the Board, Employees, and Consultants upon
whose judgment, interest, and special effort the successful conduct of the
Company’s operation is largely dependent.


 


The
Plan was originally implemented by FTD Group, Inc. as an amendment and
restatement of the Stock Option Plan of Mercury Man Holdings Corporation,
adopted as of September 30, 2004 (the “Original Plan”).  The unallocated share reserve existing under
the Plan immediately prior to the Company’s acquisition of FTD Group, Inc.
pursuant to that certain Agreement and Plan of Merger by and among the Company,
UNOLA Corp. and FTD Group, Inc. dated April 30, 2008 (the “Merger
Agreement”) was assumed by the Company in connection with such acquisition.
However, such share reserve has been adjusted to reflect the exchange ratio
established by the Board on August 25, 2008 (the “Exchange Ratio”) in
accordance with Nasdaq rules.


 


ARTICLE 2


 


DEFINITIONS
AND CONSTRUCTION


 


Wherever the following terms are used in the Plan they shall have the
meanings specified below, unless the context clearly indicates otherwise. The
singular pronoun shall include the plural where the context so indicates.


 


2.1   “Award”
means an Option, a Restricted Stock award, a Stock Appreciation Right award, a
Performance Share award, a Performance Stock Unit award, a Dividend Equivalents
award, a Stock Payment award, a Deferred Stock award, a Restricted Stock Unit
award, an Other Stock-Based Award, or a Performance-Based Award granted to a
Participant pursuant to the Plan.


 


2.2   “Award
Agreement” means any written agreement, contract, or other
instrument or document evidencing an Award.


 


2.3   “Board”
means the Board of Directors of the Company.


 


2.4   Change in Control”  means a change in ownership or control of the
Company effected through either of the following transactions:


 


(a)  the acquisition, directly or indirectly by any person or
related group of persons (other than the Company or a person that directly or
indirectly controls, is controlled by, or is under common control with, the 


 


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Company),
of beneficial ownership (within the meaning of Rule 13d-3 of the 1934 Act)
of securities possessing more than fifty percent (50%) of the total combined
voting power of the Company’s outstanding securities pursuant to a tender or
exchange offer made directly to the Company’s stockholders, or


 


(b) 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 continuously 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 described in clause (A) who were
still in office at the time the Board approved such election or nomination.


 


2.5   “Code”
means the Internal Revenue Code of 1986, as amended.


 


2.6   “Committee”
means the committee of the Board described in Article 12.


 


2.7  “Consultant”
means any consultant or adviser if:


 


(a)   The consultant or adviser
renders bona fide services to the Company;


 


(b)   The services rendered by the
consultant or adviser are not in connection with the offer or sale of
securities in a capital-raising transaction and do not directly or indirectly
promote or maintain a market for the Company’s securities; and


 


(c)   The consultant or adviser is a
natural person who has contracted directly with the Company to render such
services.


 


2.8   “Corporate
Event” means, as determined by the Committee (or by the Board, in
the case of Options granted to Independent Directors) in its sole discretion,
any transaction or event described in Section 11.1(a) or any unusual
or nonrecurring transaction or event affecting the Company, any affiliate of
the Company, or the financial statements of the Company or any affiliate of the
Company.


 


2.9   “Corporate Transaction”
means either of the following stockholder approved transactions to which the
Company is a party:


 


(a) a merger, consolidation or reorganization
approved by the Company’s stockholders, unless securities representing
more than fifty percent (50%) of the total combined voting power of the voting
securities of the successor corporation are immediately thereafter beneficially
owned, directly or indirectly and in substantially the same proportion, by the
persons who beneficially owned the Company’s outstanding voting securities
immediately prior to such transaction, or


 


(b) any stockholder-approved transfer or other
disposition of all or substantially all of the Company’s assets.


 


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


 


2.11  “Deferred Stock”
means a right to receive a specified number of shares of Stock during specified
time periods pursuant to Article 8.


 


2.12  “Disability”
means that the Participant 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.


 


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


 


2.14  “Effective Date”
shall have the meaning set forth in Section 13.1.


 


2.15  “Eligible Individual” means any person who
is an Employee, a Consultant or a member of the Board, as determined by the
Committee, subject, however, to the limitations of Section 4.1.


 


2.16  “Employee”
means any officer or other employee (as defined in accordance with Section 3401(c) of
the Code) of the Company or any Subsidiary.


 


2.17  “Exchange Act” means the Securities
Exchange Act of 1934, as amended.


 


2.18  “Fair Market Value”
per share of the Company’s common stock on any relevant date shall be the
closing selling price per share of the Company’s common stock at the close of
regular hours trading (i.e., before after-hours trading begins) on the date in
question on the Stock Exchange serving as the primary market for the Company’s
common stock, as such price is reported by the National Association of Securities
Dealers (if primarily traded on the Nasdaq Global or Global Select Market) or
as officially quoted in the composite tape of transactions on any other Stock
Exchange on which the Company’s common stock is then primarily traded.  If there is no closing selling price for the
Company’s common stock on the date in question, then the Fair Market Value
shall be the closing selling price on the last preceding date for which such
quotation exists.


 


2.19  “Hostile Take-Over”
means the acquisition, directly or indirectly, by any person or related group
of persons (other than the Company or a person that directly or indirectly
controls, is controlled by, or is under common control with, the Company) of
beneficial ownership (within the meaning of Rule 13d-3 of the 1934 Act) of
securities possessing more than fifty percent (50%) of the total combined
voting power of the Company’s outstanding securities pursuant to a tender or
exchange offer made directly to the Company’s stockholders which the Board does
not recommend such stockholders to accept.


 


2.20  “Incentive Stock
Option” means an Option that is intended to meet the requirements of
Section 422 of the Code or any successor provision thereto.


 


2.21  “Independent
Director” means a member of the Board who is not an Employee of the
Company.


 


2.22 “1934 Act” means
the Securities Exchange Act of 1934, as amended.


 


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


 


2.24  “Non-Qualified Stock
Option” means an Option that is not intended to be an Incentive
Stock Option.


 


2.25  “Option”
means a right granted 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. Options granted prior to August 26, 2008 may be
either Incentive Stock Options or a Non-Qualified Stock Options. No Incentive
Stock Options shall be granted under the Plan on or after August 26, 2008.


 


2.26  “Other Stock-Based
Award” means an Award granted or denominated in Stock or units of
Stock pursuant to Section 8.7 of the Plan.


 


2.27  “Participant”
means any Eligible Individual who, as a member of the Board, Consultant or
Employee, has been granted an Award pursuant to the Plan.


 


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2.28  “Performance-Based
Award” means an Award granted to a selected Eligible Employee
pursuant to Articles 6 and 8, 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.


 


2.29  “Performance
Criteria” means the criteria that the Committee selects for purposes
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 or
after interest, taxes, depreciation and amortization), economic value-added (as
determined by the Committee), sales or revenue, net income (either before or
after taxes), operating earnings, cash flow (including, but not limited to,
operating cash flow and free cash flow), cash flow return on capital, return on
net assets, return on stockholders’ equity, return on assets, return on
capital, stockholder returns, return on sales, gross or net profit margin,
productivity, expense, margins, operating efficiency, customer satisfaction,
working capital, 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.


 


2.30  “Performance Goals”
means, for a Performance 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 be expressed 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 of Performance Goals for such
Performance Period in order to prevent the dilution or enlargement of the
rights of Participants (a) in the event of, or in anticipation of, any
unusual or extraordinary corporate item, transaction, event, or development, or
(b) 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.


 


2.31  “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 be measured for the purpose of determining a
Participant’s right to, and the payment of, a Performance-Based Award.


 


2.32  “Performance Share”
means a right granted to a Participant pursuant to Article 8, to receive
Stock, the payment of which is contingent upon achieving certain Performance
Goals or other performance-based targets established by the Committee.


 


2.33  “Performance Stock
Unit” means a right granted to a Participant pursuant to Article 8,
to receive Stock, the payment of which is contingent upon achieving certain
Performance Goals or other performance-based targets established by the
Committee.


 


2.34  “Plan”
means this 2005 Equity Incentive Award Plan, Amended and Restated as of October 29,
2008, and Assumed and Administered by the Company, as it may be amended from
time to time.


 


2.35  “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.


 


2.36  “Restricted Stock”
means Stock awarded to a Participant pursuant to Article 6 that is subject
to certain restrictions and may be subject to risk of forfeiture.


 


2.37  “Restricted Stock
Unit” means an Award granted pursuant to Section 8.6.


 


2.38  “Securities Act”
shall mean the Securities Act of 1933, as amended.


 


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2.39  “Stock”
means the common stock of the Company, par value $0.0001 per share, and such
other securities of the Company that may be substituted for Stock pursuant to Article 11.


 


2.40  “Stock Appreciation
Right” or “SAR” means
a right granted 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 the applicable Award Agreement.


 


2.41  “Stock Exchange” means the American Stock Exchange, the
Nasdaq Global or Global Select Market or the New York Stock Exchange.


 


2.42  “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 any portion of the
compensation, granted pursuant to Article 8.


 


2.43  “Subsidiary”
means any “subsidiary corporation” as defined in Section 424(f) of
the Code and any applicable regulations promulgated thereunder or any other
entity of which a majority of the outstanding voting stock or voting power is
beneficially owned directly or indirectly by the Company.


 


ARTICLE 3


 


SHARES
SUBJECT TO THE PLAN


 


3.1   Number of
Shares.


 


(a)   Subject
to Article 11 and Section 3.1(b), the aggregate number of shares of
Stock which may be issued or transferred pursuant to Awards under the Plan
shall be 1,462,338 shares (as adjusted for the Exchange Ratio and subject to
further adjustment pursuant to Section 11.1(a) below). In order that
the applicable regulations under the Code relating to Incentive Stock Options
be satisfied, the maximum number of shares of Stock that may be delivered upon
exercise of Incentive Stock Options shall be the number specified in this Section 3.1(a),
and, if necessary to satisfy such regulations, such maximum limit shall apply
to the number of shares of Stock that may be delivered in connection with each
other type of Award under the Plan (applicable separately to each type of
Award); provided, however, that (i) no further Incentive Stock Options
shall be granted under the Plan on or after August 26, 2008 and (ii) not
more than 1,462,338 shares (subject to further adjustment pursuant to Section 11.1(a) below)
may be issued in the aggregate under the Plan from and after August 26,
2008.


 


(b)   To
the extent that an Award terminates, expires, or lapses for any reason, any
shares of Stock subject to the Award shall again be available 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 an Award 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 or any Subsidiary shall not be counted against shares of Stock
available for grant pursuant to this Plan. Cash settlements of Dividend
Equivalents in conjunction with any outstanding Awards shall not be counted
against the shares available for issuance under the Plan.


 


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


 


3.3   Limitation on
Number of Shares Subject to Awards.   Notwithstanding
any provision in the Plan to the contrary, and subject to Article 11, the
maximum number of shares of Stock with respect to one or more Awards that may
be granted to any one Participant during a one-year period (measured from the
date of any grant made to the


 


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Participant)
shall be 1,912,767 shares (as adjusted for the Exchange Ratio and subject to
further adjustment pursuant to Section 11.1(a) below).


 


ARTICLE 4


 


ELIGIBILITY
AND PARTICIPATION


 


4.1   Eligibility.   Each
Eligible Individual shall be eligible to be granted one or more Awards pursuant
to the Plan.  In no event will any Awards
be granted to (i) any individuals who were employed on or before August 26,
2008 by the Company or any Subsidiary (other than FTD Group, Inc. or any
then-existing subsidiary of FTD Group, Inc.) or (ii) any individuals
who were serving on August 26, 2008 as non-employee members of the board
of directors of the Company or any Subsidiary (other than FTD Group, Inc.
or any then-existing subsidiary of FTD Group, Inc.).


 


4.2   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 Eligible Individual
shall have any right to be granted an Award pursuant to this Plan.


 


4.3   Foreign
Participants.   In order to assure the viability of
Awards granted to Participants employed in foreign countries, the Committee may
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
alternative versions 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, or alternative versions shall
increase the share limitations contained in Sections 3.1 and 3.3 of the Plan.


 


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 the Award Agreement; provided that the exercise price for any Option shall not be
less than 100% of the Fair Market 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 in part; provided
that the term of any Option granted under the Plan shall not exceed ten years.
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: (i) cash,
(ii) promissory note bearing interest at a market rate or such higher rate
as may be required to preclude the imputation of interest under the Code, (iii) shares
of Stock held for such period of time as may be required by the Committee in
order to avoid adverse accounting consequences and having a Fair Market Value
on the date of delivery equal to the aggregate exercise price of the Option or
exercised portion thereof, or (iv) other property acceptable to the
Committee (including through the delivery of a notice that the Participant 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 in
satisfaction 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


 


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delivered to Participants.
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 permitted
to pay the exercise price of an Option in any method which would violate Section 13(k) of
the Exchange Act.


 


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


 


5.2   Incentive Stock
Options.   The terms of any Incentive Stock Options
granted pursuant to the Plan must comply with the conditions and limitations
contained Section 13.2 and this Section 5.2.


 


(a)   Eligibility.   Incentive
Stock Options may be granted only to employees of FTD Group, Inc. or any “subsidiary
corporation” thereof (within the meaning of Section 424(f) of the
Code and the applicable regulations promulgated thereunder). Notwithstanding
the foregoing, no Incentive Stock Options will be granted under the Plan on or
after August 26, 2008.


 


(b)   Exercise Price.   The
exercise price per share of Stock shall be set by the Committee; provided that subject to Section 5.2(e) the
exercise price for any Incentive Stock Option shall not be less than 100% of
the Fair Market Value on the date of grant.


 


(c)   Expiration.   Subject
to Section 5.2(e), an Incentive Stock Option may not be exercised to any
extent by anyone after the tenth anniversary of the date it is granted, unless
an earlier time is set in the Award Agreement.


 


(d)   Individual Dollar Limitation.   The
aggregate Fair Market Value (determined as of the time 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.


 


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(e)   Ten Percent Owners.   An
Incentive Stock Option shall be granted 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 Fair Market Value on the date of grant
and the Option is exercisable for no more than five years from the date of
grant.


 


(f)   Notice of Disposition.   The
Participant shall give the Company prompt notice of any disposition of shares
of Stock acquired by exercise of an Incentive Stock Option within (i) two
years from the date of grant of such Incentive Stock Option or (ii) one
year after the transfer of such shares of Stock to the Participant.


 


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


 


5.3   Substitution of
Stock Appreciation Rights.   The Committee may
provide in the Award Agreement evidencing the grant of an Option that the
Committee, in its sole discretion, shall have the right to substitute a Stock
Appreciation Right for such Option at any time prior to or upon exercise of
such Option, subject to the provisions of Section 7.2 hereof; provided
that such Stock Appreciation Right shall be exercisable with respect to the
same number of shares of Stock for which such substituted Option would have
been exercisable and shall have the same exercise price per share as the
exercise price per share in effect for the Option at the time of such
substitution.


 


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


 


5.5   Granting of
Options to Independent Directors.   The Board may
from time to time, in its sole discretion, and subject to the limitations of
the Plan, including (without limitation) the eligibility provisions of Section 4.1:


 


(a)   Select
from among the Independent Directors (including Independent Directors who have
previously been granted Options under the Plan) such of them as in its opinion
should be granted Options;


 


(b)   Subject
to Section 3.3, determine the number of shares of Stock that may be
purchased upon exercise of the Options granted to such selected Independent
Directors; and


 


(c)   Subject
to the provisions of this Article 5, determine the terms and conditions of
such Options, consistent with the Plan.


 


Options
granted to Independent Directors shall be Non-Qualified Stock Options.


 


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 determined by the
Committee. All Awards of Restricted Stock shall be evidenced by a written
Restricted Stock Award Agreement.


 


6.2   Issuance and
Restrictions.   Restricted Stock shall be subject to
such restrictions on transferability and other restrictions as the Committee
may 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 such circumstances, in such installments, or otherwise, as the
Committee determines at the time of the grant of the Award or thereafter.


 


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6.3   Forfeiture.   Except
as otherwise determined by the Committee at the time of the grant of the Award
or thereafter, upon termination of employment or 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 (a) provide in any Restricted
Stock Award Agreement that restrictions or forfeiture conditions relating to
Restricted Stock will be waived in whole or in part in the event of
terminations resulting from specified causes, and (b) in other cases waive
in whole or in part restrictions or forfeiture conditions relating to Restricted
Stock; and provided, further, that any such waiver
with respect to Restricted Stock intended to be Qualified Performance-Based
Compensation shall be subject to the limitations and restrictions of Article 9.


 


6.4   Certificates
for Restricted Stock.   Restricted Stock granted
pursuant to the Plan may be evidenced 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, and restrictions
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 simultaneously with 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 and
shall be evidenced by an Award Agreement.


 


7.2   Coupled Stock
Appreciation Rights.


 


(a)   A
Coupled Stock Appreciation Right (“CSAR”)
shall be related to a particular Option and shall be exercisable only when and
to the extent the related Option is exercisable, provided, however,
that the exercise price for any CSAR shall not be less than 100% of the Fair
Market Value on the date of grant, if granted simultaneously with such Option,
or not less than the Option exercise price per share for the coupled Option if
granted subsequently; and provided,
further, that, the Committee in
its sole and absolute discretion may provide that the CSAR may be exercised
subsequent to a termination of employment or service, as applicable, or
following a Corporate Event, or because of the Participant’s retirement, death
or disability, or otherwise.


 


(b)   A
CSAR may be granted to a Participant for no more than the number of shares
subject to the simultaneously 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 the unexercised
portion of the Option to which the CSAR relates (to the extent then 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 the
date 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 any Option 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 of Stock subject to each ISAR shall be
set by the Committee; provided, however,


 


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that the exercise price for
any ISAR shall not be less than 100% of the Fair Market Value on the date of
grant; and provided, further,
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, as
applicable, or following a Corporate Event, 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 a specified 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 Fair Market 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 Sections 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.


 


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 shall be
denominated in a number of shares of Stock and which may be 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 making such
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   Performance
Stock Units.   Any Participant selected by the
Committee may be granted one or more Performance Stock Unit awards which shall
be denominated in units of value, including dollar value of shares of Stock,
and which may be 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 making such 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.


 


8.3   Dividend
Equivalents.   Any Participant selected by the Committee may be granted Dividend
Equivalents based on the dividends (other than in shares of Stock) 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.


 


8.4   Stock Payments.   Any
Participant selected by the Committee may receive 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 determined appropriate by the Committee,
determined on the date such Stock Payment is made or on any date thereafter.


 


10
















 


8.5   Deferred Stock.   Any
Participant selected by the Committee may be granted an award of Deferred Stock
in the manner determined from time to time by the Committee. The number of
shares of Deferred Stock 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 each case on a specified date or dates
or over any period or periods determined by the Committee. Stock underlying a
Deferred Stock award will not be issued until the Deferred Stock award has
vested, pursuant to a vesting schedule or performance criteria set by the
Committee. Unless otherwise provided by the Committee, a Participant awarded
Deferred Stock shall have no rights as a Company stockholder with respect to
such Deferred Stock until such time as the Deferred Stock Award has vested and
the Stock underlying the Deferred Stock Award has been issued.


 


8.6   Restricted
Stock Units.   The Committee is authorized to make
Awards of Restricted Stock Units to any Participant selected by the Committee
in such amounts and subject to such terms and conditions as determined by the
Committee. At the time of grant, the Committee shall specify the date or dates
on which the Restricted Stock Units shall become fully vested and
nonforfeitable, and may specify such conditions to vesting as it deems
appropriate. At the time of grant, the Committee shall specify the maturity
date applicable to each grant of Restricted Stock Units which shall be no earlier
than the vesting date or dates of the Award and may be determined at the
election of the grantee, subject to compliance with the applicable deferral
election requirements of Code Section 409A. On the maturity date, the
Company shall, subject to Section 10.5(b), transfer to the Participant one
unrestricted, fully transferable share of Stock for each Restricted Stock Unit
scheduled to be paid out on such date and not previously forfeited. The
Committee shall specify the purchase price, if any, to be paid by the grantee
to the Company for such shares of Stock.


 


8.7   Other
Stock-Based Awards.   Any Participant selected by the
Committee may be granted one or more Awards that provide Participants with
shares of Stock or the right to purchase shares of Stock or that have a value
derived from the value of, or an exercise or conversion privilege at a price
related to, or that are otherwise payable in shares of Stock and which may be
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
making such 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.


 


8.8   Term.   Except
as otherwise provided herein, the term of any Award of Performance Shares,
Performance Stock Units, Dividend Equivalents, Stock Payments, Deferred Stock,
Restricted Stock Units or Other Stock-Based Award shall be set by the Committee
in its discretion.


 


8.9   Exercise or
Purchase Price.   The Committee may establish the
exercise or purchase price, if any, of any Award of Performance Shares,
Performance Stock Units, Deferred Stock, Stock Payments, Restricted Stock Units
or Other Stock-Based Award; provided,
however, that such price shall not be less than the par value of a
share of Stock on the date of grant, unless otherwise permitted by applicable
state law.


 


8.10   Exercise Upon
Termination of Employment or Service.   An Award of
Performance Shares, Performance Stock Units, Dividend Equivalents, Deferred
Stock, Stock Payments, Restricted Stock Units and Other Stock-Based Award shall
only be exercisable or payable while the Participant is an Employee, Consultant
or a member of the Board, as applicable; provided,
however, that the Committee in its sole and absolute discretion may
provide that an Award of Performance Shares, Performance Stock Units, Dividend
Equivalents, Stock Payments, Deferred Stock, Restricted Stock Units or Other
Stock-Based Award may be exercised or paid subsequent to a termination of
employment or service, as applicable, or following a Corporate Event, or
because of the Participant’s retirement, death or disability, or otherwise; provided, however, that any such provision
with respect to Awards intended to be Qualified Performance-Based Compensation
shall be subject to the requirements of Section 162(m) of the Code
that apply to such Qualified Performance-Based Compensation.


 


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


 


11

















 


8.12   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-Based Compensation. If the Committee,
in its discretion, decides to grant a Performance-Based Award to an Eligible
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
Eligible 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 Eligible Employees selected by the
Committee to receive Performance-Based Awards. The designation of an Eligible
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 an Eligible Employee as a Participant for a particular
Performance Period shall not require designation of such Eligible Employee as a
Participant in any subsequent Performance Period and designation of one
Eligible Employee as a Participant shall not require designation of any other
Eligible 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 Compensation
requirements 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
Eligible Employees. no later than ninety (90) days following the
commencement of any fiscal year in question 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, (a) designate
one or more Eligible Employees as recipients of the Performance-Based Awards, (b) select
the Performance Criteria applicable to the Performance Period, (c) establish
the Performance Goals, and amounts of such Awards, as applicable, which may be
earned for such Performance Period, and (d) specify the relationship
between Performance Criteria and the Performance Goals and the amounts of such
Awards, as applicable, to be earned by each Award recipient for such
Performance Period. Following the completion of each Performance Period, the
Committee shall certify in writing whether the applicable Performance Goals
have been achieved for such Performance Period. In determining the amount
earned by each Participant, the Committee shall have the right to reduce or
eliminate (but not to increase) the amount payable at a given level of
performance to take into account additional factors that the Committee may deem
relevant to the assessment of individual or corporate performance for the
Performance Period.


 


9.4   Payment of
Performance-Based Awards.   Unless otherwise provided
in the applicable Award Agreement, a Participant must 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 a
Performance Period only if the Performance Goals for such period are achieved.


 


9.5   Additional
Limitations.   Notwithstanding any other provision of
the Plan, any Award which is granted to an Eligible Employee and is intended to
constitute 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 that are 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.


 


12

















 


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 granted in addition to or in tandem with other Awards may be granted
either at the same time as or at a different time from the grant of such other
Awards.


 


10.2   Award
Agreement.   Awards under the Plan shall be evidenced
by Award Agreements that set forth the terms, conditions and limitations for
each Award 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
rescind an Award.


 


10.3   Limits on
Transfer.   No right or interest of 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 than the
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
express provision 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 of the 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 be expressly approved by the Committee, pursuant to
such conditions and procedures as the Committee may establish. Any permitted
transfer shall be subject to the condition that the Committee receive evidence
satisfactory to it that the transfer is being made 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 exercise the rights of the Participant
and to receive any distribution with respect to any Award upon the Participant’s
death. A beneficiary, legal guardian, legal representative, or other person
claiming any rights pursuant to the Plan is subject to all terms and conditions
of the Plan and any Award Agreement applicable to the Participant, except to
the extent the Plan and Award Agreement otherwise provide, and to any additional
restrictions deemed necessary or appropriate by the Committee. If the
Participant is married and resides in a community property state, a designation
of a person other than the Participant’s spouse as his or her beneficiary with
respect to more than 50% of the Participant’s interest in the Award shall not
be effective 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 laws of descent and distribution. Subject to the foregoing, a beneficiary
designation may be changed or revoked by a Participant at any time provided the
change or revocation is filed with the Committee.


 


10.5   Stock Certificates;
Book Entry Procedures.


 


(a)   Notwithstanding
anything herein to the contrary, 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 of such 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 to the 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 any
national securities exchange or automated quotation system on which the Stock
is listed, quoted, or traded. The Committee may place legends on any Stock 


 


13

















 


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


 


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


 


ARTICLE 11


 


CHANGES IN
CAPITAL STRUCTURE


 


11.1   Adjustments.


 


(a)   Should
any change be made to the Stock by reason of any stock split, stock dividend,
recapitalization, combination of shares, exchange of shares, or other change
affecting the outstanding Stock as a class without the Company’s receipt of
consideration, then appropriate adjustments shall be made by the Plan
Administrator to (i)  the maximum number and/or class of securities
issuable under the Plan, (ii) the maximum number and/or class of
securities for which any one person may be granted Awards during any rolling
one-year period under Section 3.3, (iii) the number and class of
securities subject to each outstanding Award under the Plan and (iv) the
exercise price or cash consideration payable per share under each such
outstanding Award.  Any adjustment
affecting an Award intended as Qualified Performance-Based Compensation shall
be made consistent with the requirements of Section 162(m) of the
Code.


 


(b)   In
the event of any transaction or event described in Section 11.1(a) 
or in the event of a Change in Control, Corporate Transaction or Hostile
Take-Over, the Committee, in its sole discretion and on such terms and
conditions as it deems appropriate, either by amendment of the terms of any
outstanding Awards or by action taken prior to the occurrence of such
transaction or event and either automatically or upon the Participant’s
request, is hereby authorized to take any one or more of the following actions,
as it deems appropriate:


 


(i)  To
provide for either (A) termination of any such Award in exchange for an
amount of cash and/or other property, if any, equal to the amount that would
have been attained upon the exercise of such Award or realization of the
Participant’s rights (and, for the avoidance of doubt, if as of the date of the
occurrence of the transaction or event described in this Section 11.1(b) the
Committee determines in good faith that no amount would have been attained upon
the exercise of such Award or realization of the Participant’s rights, then
such Award may be terminated by the Company without payment) or (B) the
replacement of such Award with other rights or property selected by the
Committee in its sole discretion;


 


(ii)  To
provide that such Award be assumed by the successor or survivor corporation, or
a parent or subsidiary thereof, or shall be substituted for by similar options,
rights or awards covering the stock of the successor or survivor corporation,
or a parent or subsidiary thereof, with appropriate adjustments as to the
number and kind of shares and prices; and


 


(iii)  To
make adjustments in the number and type of shares of Stock (or other securities
or property) subject to outstanding Awards, and in the number and kind of
outstanding Restricted Stock or Deferred Stock and/or in the terms and
conditions of (including the grant or exercise 


 


14

















 


price), and the criteria
included in, outstanding options, rights and awards and options, rights and
awards which may be granted in the future;


 


(iv)  To
provide that such Award shall be exercisable or payable or fully vested with
respect to all shares covered thereby, notwithstanding anything to the contrary
in the Plan or the applicable Award Agreement; and


 


(v)  To
provide that the Award cannot vest, be exercised or become payable after such
event.


 


(c)   The
Committee (or the Board, in the case of Options granted to Independent
Directors) may, in its sole discretion, include such further provisions and
limitations in any Award Agreement as it may deem equitable and in the best
interests of the Company and its Affiliates.


 


11.2   Outstanding
Awards—Other Changes.   In the event of any other
change in the capitalization of the Company or corporate 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 kind of shares
or other securities subject to Awards outstanding on the date on which such
change occurs 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.


 


11.3   No Other
Rights.   Except as expressly provided in the Plan,
no Participant shall have any rights by reason of any subdivision or
consolidation of 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 as expressly 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 reason thereof 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.


 


ARTICLE 12


 


ADMINISTRATION


 


12.1   Committee.   Unless
and until the Board delegates administration of the Plan to a Committee as set
forth below, the Plan shall be administered by the full Board, and for such
purposes the term “Committee” as used in this Plan shall be deemed to refer to
the Board. The Board, at its discretion or as otherwise necessary to comply with
the requirements of Section 162(m) of the Code, Rule 16b-3
promulgated under the Exchange Act or to the extent required by any other
applicable rule or regulation, shall delegate administration of the Plan
to a Committee. 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 a Non-Employee Director. Notwithstanding the foregoing: (a) the
full Board, acting by a majority of its members in office, shall conduct the
general administration of the Plan with respect to all Awards granted to
Independent Directors and for purposes of such Awards the term “Committee” as
used in this Plan shall be deemed to refer to the Board and (b) the
Committee may delegate its authority hereunder to the extent permitted by Section 12.5.
Appointment of Committee members shall be effective upon acceptance of
appointment. The Board may abolish the Committee at any time and revest in the
Board the administration of the Plan. 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 shall
constitute 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 member of 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.


 


15

















 


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 to be granted to each Participant;


 


(c)   Determine
the 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, grant price, 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 provisions related 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 the vesting or waive the forfeiture
of any Performance-Based Awards;


 


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


 


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


 


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


 


(j)    Make
all other decisions and determinations that may be required pursuant to the
Plan or as the 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 all
decisions and determinations by the Committee with respect to the Plan are
final, binding, and conclusive on all parties.


 


12.5   Delegation of
Authority.   To the extent permitted by applicable
law, the Committee may from time to time delegate to a committee of one or more
members of the Board or one or more officers of the Company the authority to
grant or amend Awards to Participants other than (a) senior executives of
the Company who are subject to Section 16 of the Exchange Act, (b) Covered
Employees, (c) non-employee Board members or (d) officers of the
Company (or members of the Board) to whom authority to grant or amend Awards
has been delegated hereunder. Any delegation hereunder shall be subject to the
restrictions and limits that the Committee specifies at the time of such
delegation, and the Committee may at any time rescind the authority so delegated
or appoint a new delegatee.  At all
times, the delegatee appointed under this Section 12.5 shall serve in such
capacity at the pleasure of the Committee.


 


ARTICLE 13


 


EFFECTIVE
AND EXPIRATION DATE


 


13.1   Effective
Date.   The Plan became effective on February 7,
2005 (the “Effective Date”).


 


16

















 


13.2   Expiration
Date.   The Plan will expire on, and no Award may be
granted pursuant to the Plan after September 29, 2014. Any Awards that are
outstanding on the expiration date shall remain in force according to the terms
of the Plan and the applicable Award Agreement.


 


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 (a) 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 a manner and to such a
degree as required, and (b) stockholder approval is required for any
amendment to the Plan that (i) increases the number of shares available
under the Plan (other than any adjustment as provided by Article 11), (ii) permits
the Committee to grant Options with an exercise price that is below Fair Market
Value on the date of grant, or (iii) permits the Committee to extend the
exercise period for an Option beyond ten years from the date of grant or (iv) results
in a material increase in benefits or a change in eligibility requirements.
Notwithstanding any provision in this Plan to the contrary, absent approval of
the stockholders of the Company, no Option may be amended to reduce the per
share exercise price of the shares subject to such Option below the per share
exercise price as of the date the Option is granted and, except as permitted by
Article 11, no Option may be granted in exchange for, or in connection
with, the cancellation or surrender of an Option having a higher per share
exercise price.


 


14.2   Awards
Previously 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.


 


ARTICLE 15


 


GENERAL
PROVISIONS


 


15.1   No Rights to
Awards.   No Eligible Individual 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 Eligible Individuals,
Participants or any other persons uniformly.


 


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


 


15.3   Withholding.   The
Company or any Subsidiary shall have the authority and the right to deduct or
withhold, or require a Participant to remit to the Company, an amount
sufficient to satisfy federal, state, local and foreign taxes (including the
Participant’s FICA obligation) required by law to be withheld with respect to
any taxable event concerning a Participant 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 allow the 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, exercise or
payment of any Award (or which may be repurchased from the Participant of such
Award within six months (or such other period as may be determined by the
Committee) after such shares of Stock were acquired by the Participant from the
Company) in order to satisfy the Participant’s federal, state, local and
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 the aggregate amount of such liabilities based on the minimum
statutory withholding rates for federal, state, local and foreign income tax
and payroll tax purposes that are applicable to such supplemental taxable
income.


 


17

















 


15.4   No Right to
Employment or Services.   Nothing in the Plan or any
Award 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 or service of the Company or any Subsidiary.


 


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


 


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


 


15.7   Relationship
to other Benefits.   No payment 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 extent otherwise
expressly provided in writing in such other plan or an agreement thereunder.


 


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


 


15.9   Titles and
Headings.   The titles and headings of the Sections
in the Plan are for convenience of reference only and, in the event of any
conflict, the text of the Plan, rather than such titles or headings, shall
control.


 


15.10   Fractional
Shares.   No fractional shares of Stock shall be
issued and the Committee shall determine, in its discretion, 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, and any 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 any
amendment 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
extent necessary 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 from registration 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 be
construed in accordance with and governed by the laws of the State of Delaware.


 


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