exv4w1



 





Exhibit 4.1




DIGENE CORPORATION




AMENDED AND RESTATED 1999 INCENTIVE PLAN




Article I

Purpose




     The purpose of the 1999 Incentive Plan (the “Plan”) is to enable Digene
Corporation (the “Company”) to offer Employees of the Company and its
Subsidiaries equity interests in the Company and options to acquire equity
interests in the Company, thereby helping to attract, retain and reward such
persons and strengthen the mutuality of interests between such persons and the
Company’s stockholders.



Article II

Definitions




     For purposes of the Plan, the following terms shall have the following
meanings:



     2.1 “Award” shall mean an award under the Plan of a Stock Option,
Restricted Stock, Unrestricted Stock or Performance Shares.



     2.2 “Board” shall mean the Board of Directors of the Company.



     2.3 “Change of Control” shall mean (a) the reorganization, consolidation
or merger of the Company or any of its Subsidiaries holding or controlling a
majority of the assets relating to the business of the Company, with or into
any third party (other than a Subsidiary); (b) the assignment, sale, transfer,
lease or other disposition of all or substantially all of the assets of the
Company and its Subsidiaries taken as a whole; or (c) the acquisition by any
third party or group of third parties acting in concert, of beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission (“SEC”) under the Securities Exchange Act of 1934, as amended) of
shares of voting stock of the Company, the result of which in the case of any
transaction described in clauses (a), (b) and (c) above is that immediately
after the transaction the stockholders of the Company immediately before the
transaction, other than the acquiror, own less than fifty percent (50%) of the
combined voting power of the outstanding voting securities entitled to vote
generally in the election of directors of the surviving or resulting
corporation in a transaction specified in clause (a) above, the acquiror in a
transaction specified in clause (b) above, or the Company or the acquiror in a
transaction specified in clause (c) above.



     2.4 “Code” shall mean the Internal Revenue Code of 1986, as amended.



     2.5 “Committee” shall mean the Compensation Committee of the Board, or any
other committee of the Board designated by the Board to administer this Plan,
with any such Committee consisting of two or more members of the Board;
provided, that if the Compensation Committee or any other such committee does
not meet the applicable independence requirements of Rule 16b-3(d) promulgated
under the Securities Exchange Act of 1934, or NASDAQ, for



 









 




Awards to Reporting Persons the term “Committee” shall mean the Board and
for purposes of all Awards granted to the Chief Executive Officer of the
Company under this Plan the term “Committee” shall mean the independent members
of the Board.




     2.6 “Common Stock” shall mean the Common Stock, par value $0.01 per share,
of the Company.



     2.7 “Date of Grant” shall mean the date designated by the Committee as the
date as of which the Committee grants an Award, which shall not be earlier than
the date on which the Committee approves the granting of such Award.



     2.8 “Disability” shall mean a disability that results in a Participant’s
Termination of Employment with the Company or a Subsidiary, as determined
pursuant to standard Company procedures.



     2.9 “Effective Date” shall mean the date on which the Plan was originally
adopted by the Board.



     2.10 “Employee” shall mean any person engaged or proposed to be engaged as
an officer or employee of the Company or one of its Subsidiaries; provided,
however, that in the case of an Incentive Stock Option, the term “Employee”
shall mean any employee of the Company or of a “subsidiary corporation” (within
the meaning of Section 424(f) of the Code) of the Company.



     2.11 “Fair Market Value” for purposes of the Plan, unless otherwise
required by any applicable provision of the Code or any regulations issued
thereunder, shall mean with respect to the Common Stock on any day, (i) the
closing sales price (or other exchange-designated daily sales price) on the
immediately preceding business day of a share of Common Stock as reported on
the principal securities exchange on which shares of Common Stock are then
listed or admitted to trading, or (ii) if not so reported, the closing sales
price (or other Nasdaq-designated daily sales price) on the immediately
preceding business day of a share of Common Stock as published in the Nasdaq
National Market Issues report in the Eastern Edition of The Wall Street
Journal, or (iii) if not so reported, the average of the closing (or other
designated) bid and asked prices on the immediately preceding business day as
reported on the Nasdaq National Market System, or (iv) if not so reported, as
furnished by any member of the National Association of Securities Dealers, Inc.
selected by the Committee. In the event that the price of a share of Common
Stock shall not be so reported or furnished, the Fair Market Value of a share
of Common Stock shall be determined by the Committee in good faith. A
“business day” is any day, other than Saturday or Sunday, on which the relevant
market is open for trading.



     2.12 “Incentive Stock Option” shall mean any Stock Option awarded under
the Plan to an Employee that is intended to be and designated as an “Incentive
Stock Option” within the meaning of Section 422 of the Code.



     2.13 “Non-Qualified Stock Option” shall mean any Stock Option granted
under the Plan that is not an Incentive Stock Option.



     2.14 “Participant” shall mean an Employee to whom an Award has been
granted.



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     2.15 “Performance Goal” shall mean objective financial or operating goals
and measures established by the Committee in accordance with Section 162(m) of
the Code. Such Performance Goals for any Performance Shares Award must be
established in writing not later than ninety (90) days after the commencement
of a Performance Period; provided that the outcome of each Performance Goal is
substantially uncertain at the time the Performance Goal is established. Such
Performance Goals may relate to identified business units, or the Company or
any Subsidiary and be based upon such performance criteria or combination of
factors as the Committee may deem appropriate, including, but not limited to,
specified levels of earnings per share, return on investment, return on
stockholders’ equity, sales, costs or other objective measures related to the
Company’s performance.



     2.16 “Performance Period” shall mean the period of time selected by the
Committee during which the achievement of Performance Goals is measured for
purposes of determining the extent to which an applicable Performance Shares
Award has been earned or will vest.



     2.17 “Performance Shares” shall mean an Award, granted pursuant to Article
VII of this Plan, of the contingent right to receive a designated number of
shares of Common Stock, payable in Common Stock, cash, or a combination of both
(depending on the medium of payment selected by the Committee), at the end of a
specified Performance Period if specified Performance Goals are achieved. Such
rights are subject to forfeiture or reduction if the applicable Performance
Goals are not met within the applicable Performance Period.



     2.18 “Performance Shares Award” shall mean an Award of Performance Shares.



     2.19 “Performance Shares Award Commitment” shall mean the written
commitment delivered by the Company to the Participant evidencing a Performance
Shares Award and setting forth such terms and conditions of the Award as may be
deemed appropriate by the Committee. The Performance Shares Award Commitment
shall be in a form approved by the Committee, and once executed, shall be
deemed amended from time to time to include such additional terms and
conditions as the Committee may specify after the execution in the exercise of
its powers under the Plan.



     2.20 “Restricted Stock” shall mean an Award granted pursuant to Section
8.1 hereof, subject to such restrictions as the Committee may determine, as
evidenced in a Restricted Stock Agreement. Shares of Common Stock shall cease
to be Restricted Stock when, in accordance with the terms of the Restricted
Stock Agreement, they become transferable and free of risk of forfeiture.



     2.21 “Restricted Stock Agreement” shall mean the agreement evidencing the
grant of Restricted Stock to an Employee pursuant to this Plan.



     2.22 “Restriction Period” shall have the meaning set forth in Section
8.2(c).



     2.23 “Stock Option” or “Option” shall mean any option to purchase shares
of Common Stock granted pursuant to Article VI hereof.



     2.24 “Subsidiary” shall mean any subsidiary of the Company, 50% or more of
the voting stock of which is owned, directly or indirectly, by the Company,
that is currently existing



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as of the Effective Date or formed or acquired by the Company while any
Award is outstanding under the Plan.




     2.25 “Termination of Employment” shall mean a termination of employment
with the Company and all of its Subsidiaries for reasons other than a military
or personal leave of absence granted by the Company or any Subsidiary.



     2.26 “Unrestricted Stock” shall mean Common Stock granted under Section
8.3 hereof.



     2.27 “Unrestricted Stock Agreement” shall mean the agreement evidencing
the grant of Unrestricted Stock to an Employee pursuant to this Plan.



Article III

Administration




     3.1 The Committee. The Plan shall be administered and interpreted by the
Committee.



     3.2 Awards. The Committee shall have full authority to grant, pursuant to
the terms of the Plan, Stock Options, Restricted Stock, Unrestricted Stock or
Performance Shares to persons eligible under Article V. In particular, the
Committee shall have the authority:



          (a) to select the persons to whom Stock Options, Restricted Stock,
Unrestricted Stock or Performance Shares may from time to time be granted;



          (b) to determine whether and to what extent Incentive Stock Options,
Non-Qualified Stock Options, Restricted Stock, Unrestricted Stock or
Performance Shares, or any combination thereof, are to be granted to one or
more persons eligible to receive Awards under Article V;



          (c) to determine the number of shares of Common Stock to be covered by
each Award granted hereunder; and



          (d) to determine the terms and conditions, not inconsistent with the terms
of the Plan, of any Award granted hereunder (including, but not limited to, the
option price, the option term, and provisions relating to any restriction or
limitation, any vesting schedule or acceleration, any performance guidelines or
criteria or any forfeiture restrictions or waiver provisions of the Award),
and any conditions (in addition to those contained in this Plan) on the
exercisability of all or any part of an Option or on the transferability or
forfeitability of Restricted Stock. Notwithstanding any such conditions, the
Committee may, in its discretion at any time, accelerate the time at which any
Option may be exercised or the time at which Restricted Stock may become
transferable or nonforfeitable.



     3.3 Guidelines. Subject to Article IX hereof, the Committee shall have
the authority to adopt, alter and repeal such administrative rules, guidelines
and practices governing the Plan as it shall, from time to time, deem
advisable; to interpret the terms and provisions of the Plan and any Award
granted under the Plan (and any agreements relating thereto); and to otherwise
supervise the administration of the Plan. The express grant in the Plan of any
specific power to



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the Committee shall not be construed as limiting any other power or
authority of the Committee. The Committee may correct any defect, supply any
omission or reconcile any inconsistency in the Plan or in any Award in the
manner and to the extent it shall deem necessary or advisable to carry out the
purposes of the Plan. Notwithstanding the foregoing, no action of the
Committee under this Section 3.3 shall impair the rights of any Participant
without the Participant’s consent, unless otherwise required by law.




     A majority of the entire Committee shall constitute a quorum, and the
action of a majority of the members present at any meeting at which a quorum is
present shall be deemed the action of the Committee. In addition, any decision
or determination reduced to writing and signed by all of the members of the
Committee shall be fully as effective as if it had been made by a majority vote
at a meeting duly called and held. Subject to the provisions of this Plan and
the Company’s Bylaws, and to any terms and conditions prescribed by the Board,
the Committee may make such additional rules and regulations for the conduct of
its business as it shall deem advisable. The Committee shall hold meetings at
such times and places as it may determine.



     3.4 Decisions Final. Any decision, interpretation or other action made or
taken in good faith by the Committee arising out of or in connection with the
Plan shall be final, binding and conclusive on the Company, all Participants
and their respective heirs, executors, administrators, successors and assigns.



Article IV

Share Limitation




     4.1 Shares. The maximum aggregate number of shares of Common Stock that
may be issued under the Plan is 4,900,000 (subject to increase or decrease
pursuant to Section 4.3), which may be either authorized and unissued shares of
Common Stock or authorized and issued shares of Common Stock reacquired by the
Company. If any Option granted under the Plan shall expire, terminate or be
canceled for any reason without having been exercised in full, the number of
shares of Common Stock not purchased under such Option shall again be available
for the purposes of the Plan. Further, if any Performance Shares are unearned
or forfeited, or shares of Restricted Stock are forfeited, the shares subject
to the portion of such Award unearned or forfeited, as the case may be, shall
again be available under the Plan.



     4.2 Individual Limit. No Employee may be granted Awards covering more
than 500,000 shares of Common Stock (subject to increase or decrease pursuant
to Section 4.3) during any calendar year.



     4.3 Changes. In the event of any merger, reorganization, consolidation,
recapitalization, dividend (other than a regular cash dividend), stock split,
or other change in corporate structure affecting the Common Stock, such
substitution or adjustment shall be made in the maximum aggregate number of
shares which may be issued under the Plan, the maximum number of shares with
respect to which Awards may be granted to any individual during any year, the
number and option price of shares subject to outstanding Options, and the
number of shares subject to other outstanding Awards, as may be determined to
be appropriate by the Committee, in its sole discretion, provided that the
number of shares subject to any Award shall always be a whole number.



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Article V

Eligibility




     5.1 Awards to Employees. All officers and other Employees of the Company
and its Subsidiaries are eligible to be granted Incentive Stock Options,
Non-Qualified Stock Options, Restricted Stock, Unrestricted Stock or
Performance Shares under the Plan. A Director who is an Employee of the
Company or a Subsidiary shall be eligible to receive Awards pursuant to this
Article V.



Article VI

Stock Options




     6.1 Options. Each Stock Option granted under the Plan shall be either an
Incentive Stock Option or a Non-Qualified Stock Option.



     6.2 Grants. The Committee shall have the authority to grant to any person
eligible under Section 5.1 one or more Incentive Stock Options, Non-Qualified
Stock Options, or both types of Stock Options. To the extent that any Stock
Option does not qualify as an Incentive Stock Option (whether because of its
provisions or the time or manner of its exercise or otherwise), such Stock
Option or the portion thereof which does not qualify as an Incentive Stock
Option shall constitute a separate Non-Qualified Stock Option.



     6.3 Incentive Stock Options. Anything in the Plan to the contrary
notwithstanding, no term of the Plan relating to Incentive Stock Options shall
be interpreted, amended or altered, nor shall any discretion or authority
granted under the Plan be exercised, so as to disqualify the Plan under Section
422 of the Code, or, without the consent of the Participants affected, to
disqualify any Incentive Stock Option under such Section 422 of the Code.



     6.4 Terms of Options. Options granted under the Plan shall be subject to
the following terms and conditions and shall contain such additional terms and
conditions, not inconsistent with the terms of the Plan, as the Committee shall
deem desirable:



          (a) Stock Option Certificate. Each Stock Option shall be evidenced by,
and subject to the terms of, a Stock Option Certificate evidencing the Stock
Option grant. The Stock Option Certificate shall specify whether the Option is
an Incentive Stock Option or a Non-Qualified Stock Option, the number of shares
of Common Stock subject to the Stock Option, the option price, the option term,
and the other terms and conditions applicable to the Stock Option.



          (b) Option Price. Subject to subsection (m) below, the option price per
share of Common Stock purchasable upon exercise of a Stock Option shall be
determined by the Committee at the time of grant, but, if the Stock Option is
intended to be an Incentive Stock Option, shall be not less than 100% of the
Fair Market Value of the Common Stock on the Date of Grant.



          (c) Option Term. Subject to subsection (m) below, the term of each Stock
Option shall be fixed by the Committee at the time of grant, but no Stock
Option shall be exercisable more than ten years after the date it is granted.



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          (d) Exercisability. Stock Options shall be exercisable at such time or
times and subject to such terms and conditions as shall be determined by the
Committee at the time of grant; provided, however, that the Committee may waive
any installment exercise or waiting period provisions, in whole or in part, at
any time after the Date of Grant, based on such factors as the Committee shall
deem appropriate in its sole discretion.



          (e) Method of Exercise. Subject to such installment exercise and waiting
period provisions as may be imposed by the Committee, Stock Options may be
exercised in whole or in part at any time during the option term by delivering
to the Company written notice of exercise specifying the number of shares of
Common Stock to be purchased and the option price therefor. The notice of
exercise shall be accompanied by payment in full of the option price and, if
requested, by the representation described in Section 11.2. Payment of the
option price may be made (i) in cash or by check payable to the Company, (ii)
unless otherwise determined by the Committee on or after the Date of Grant, in
shares of Common Stock duly owned by the Participant (and for which the
Participant has good title free and clear of any liens and encumbrances) or
(iii) in the case of an Option that is not an Incentive Stock Option, unless
otherwise determined by the Committee on or after the Date of Grant, by
reduction in the number of shares of Common Stock issuable upon such exercise,
based, in each case, on the Fair Market Value of the Common Stock on the date
of exercise. Upon satisfaction of the conditions provided herein, a stock
certificate representing the number of shares of Common Stock to which the
Participant is entitled shall be issued and delivered to the Participant,
subject to Section 11.3. For the purpose of assisting a Participant to
exercise an Option, the Company may, in the discretion of the Board, make loans
to the Participant or guarantee loans made by third parties to the Participant,
in either case on such terms and conditions as the Board may authorize.
Nothing contained in this Plan shall prevent or prohibit a Participant from
exercising his or her Options under a broker-facilitated cashless exercise
transaction.



          (f) Death. Unless otherwise determined by the Committee on or after the
Date of Grant, in the event of a Participant’s Termination of Employment by
reason of death, any Stock Option held by such Participant which was
exercisable on the date of death may thereafter be exercised by the legal
representative of the Participant’s estate until the earlier of one year after
the date of death or the expiration of the stated term of such Stock Option,
and any Stock Option not exercisable on the date of death shall be forfeited.



          (g) Disability. Unless otherwise determined by the Committee on or after
the Date of Grant, in the event of a Participant’s Termination of Employment by
reason of Disability, any Stock Option held by such Participant which was
exercisable on the date of such Termination of Employment may thereafter be
exercised by the Participant until the earlier of one year after such date or
the expiration of the stated term of such Stock Option, and any Stock Option
not exercisable on the date of such Termination of Employment shall be
forfeited. If the Participant dies during such one-year period, any
unexercised Stock Options held by the Participant at the time of death may
thereafter be exercised by the legal representative of the Participant’s estate
until the earlier of one year after the date of the Participant’s death or the
expiration of the stated term of such Stock Option. If an Incentive Stock
Option is exercised after the expiration of the exercise period that applies
for purposes of Section 422 of the Code, such Stock Option will thereafter be
treated as a Non-Qualified Stock Option.



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          (h) Termination of Employment. Subject to Section 11.4, in the event of a
Participant’s Termination of Employment by reason of retirement or for any
reason other than death or Disability, all Stock Options held by such
Participant that were exercisable on the date of such Termination of Employment
may be exercised by the Participant at any time within three (3) months after
his or her Termination of Employment; provided, however, that if the Committee
shall determine that the Employee’s employment was terminated for conduct that
in the judgment of the Committee involves dishonesty or action by the Employee
that is detrimental to the best interest of the Company, all Stock Options held
by the Employee on the date of such Termination of Employment shall be
forfeited. Notwithstanding anything to the contrary in this Subsection, a
Stock Option shall not terminate upon a Participant’s Termination of Employment
if at the time thereof the Participant serves as a Director of the Company or
its successor, in which event the Stock Option shall terminate if the
Participant ceases to be a Director of the Company or its successor and the
Participant may at any time within three months after ceasing to be a Director
exercise his or her Stock Option, but only to the extent that the Stock Option
was exercisable by him or her on the date on which he or she ceased to be a
Director.



          (i) Change of Control. Notwithstanding the provisions of Section 4.3, in
the event of a Change of Control, all outstanding Stock Options shall
immediately become fully exercisable, and upon payment by the Participant of
the option price (and, if requested, delivery of the representation described
in Section 11.2), a stock certificate representing the Common Stock covered
thereby shall be issued and delivered to the Participant. This Section 6.4(i)
shall apply to any outstanding Stock Options which are Incentive Stock Options
to the extent permitted by Code Section 422(d), and any outstanding Incentive
Stock Options in excess thereof shall, immediately upon the occurrence of such
a Change of Control be treated for all purposes of the Plan as Non-Qualified
Stock Options and shall be immediately exercisable as set forth in this Section
6.4(i).



          (j) Merger and Other Fundamental Transactions. In the event the Company
is succeeded by another company in a reorganization, merger, consolidation,
acquisition of property or stock, separation or liquidation, the successor
company shall assume all of the outstanding Options granted under this Plan or
shall substitute new options for them, which shall provide that each
Participant, at the same cost, shall be entitled upon the exercise of each such
option to receive such securities as the Board of Directors (or equivalent
governing body) of the succeeding, resulting or other company shall determine
to be equivalent, as nearly as practicable, to the nearest whole number and
class of shares of stock or other securities to which the Participant would
have been entitled under the terms of the agreement governing the
reorganization, merger, consolidation, acquisition of property or stock,
separation or liquidation as if, immediately prior to such event, the
Participant had been the holder of record of the number of shares of Common
Stock which were then subject to the outstanding Option granted under this
Plan.



          (k) Non-Transferability of Options. No Stock Option shall be transferable
by the Participant otherwise than by will or by the laws of descent and
distribution, to the extent consistent with the terms of the Plan and the
Option, and all Stock Options shall be exercisable, during the Participant’s
lifetime, only by the Participant.



          (l) Incentive Stock Option Limitations. To the extent that the aggregate
Fair Market Value (determined as of the Date of Grant) of the Common Stock with
respect to which



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Incentive Stock Options are exercisable for the first time by the
Participant during any calendar year under the Plan and/or any other stock
option plan of the Company or any subsidiary or parent corporation (each within
the meaning of Section 424 of the Code) exceeds $100,000, such Options shall be
treated as Options which are not Incentive Stock Options.




          (m) Ten-Percent Stockholder Rule. Notwithstanding any other provision of
the Plan to the contrary, no Incentive Stock Option shall be granted to any
person who, immediately prior to the grant, owns stock possessing more than ten
percent of the total combined voting power of all classes of stock of the
Company or any subsidiary or parent corporation (each within the meaning of
Section 424 of the Code), unless the option price is at least 110% of the Fair
Market Value of the Common Stock on the Date of Grant and the Option, by its
terms, expires no later than five years after the Date of Grant.



     Should the foregoing provisions not be necessary in order for the Stock
Options to qualify as Incentive Stock Options, or should any additional
provisions be required, the Committee may amend the Plan accordingly, without
the necessity of obtaining the approval of the stockholders of the Company.



     6.5 Rights as Stockholder. A Participant shall not be deemed to be the
holder of Common Stock, or to have any of the rights of a holder of Common
Stock, with respect to shares subject to the Option, unless and until the
Option is exercised and a stock certificate representing such shares of Common
Stock is issued to the Participant.



Article VII

Performance Shares




     7.1 Award of Performance Shares. The Committee shall have the authority
to award Performance Shares to any person eligible under Section 5.1. The
Committee shall determine the eligible Employees to whom, and the time or times
at which, Performance Shares shall be awarded, the number of Performance Shares
to be awarded to any Employee, the duration of the Performance Period with
respect to each Performance Shares Award, the medium of payment upon vesting
and the other terms and conditions of the Performance Shares Award, including
those set forth in Section 7.2.



     7.2 Terms and Conditions. Performance Shares awarded pursuant to this
Article VII shall be subject to the following terms and conditions and such
other terms and conditions, not inconsistent with the terms of this Plan, as
the Committee shall deem desirable:



          (a) Performance Period. At the time of a Performance Shares Award, the
Committee, in its sole discretion, shall establish a Performance Period of not
less than (1) year nor more than five (5) years, commencing on the Date of
Grant of the Performance Shares Award.



          (b) Performance Goals. A Performance Shares Award will vest and be earned
based on the attainment of one or more identified Performance Goals determined
by the Committee. The Performance Goals (although their measurement, including
adjustments, if any, as permitted under Subsection 7.2(c), will not occur until
after the expiration of the applicable Performance Period) must be met during
the continuance of the Participant’s employment with



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the Company or any Subsidiary, prior to the expiration of the applicable
Performance Period. Performance Goals may vary among Participants and among
Performance Shares Awards to a Participant.




          (c) Revisions for Significant Events. When circumstances occur
(including, but not limited to, unusual or nonrecurring events, changes in tax
laws or accounting principles or practices) that cause any Performance Goal to
be inappropriate in the judgment of the Committee, the Committee may make such
changes as it deems equitable in recognition of any unforeseen events or
changes in circumstances or changed business or economic conditions, as long as
any such changes are consistent with Section 162(m) of the Code.



          (d) Performance Shares Award Commitment. Each Performance Shares Award
shall be evidenced by, and subject to the terms of, a Performance Shares Award
Commitment. The Performance Shares Award Commitment shall specify the number
of shares of Common Stock subject to the Performance Shares Award, the medium
of payment, the applicable Performance Period and the other terms and
conditions applicable to such Performance Shares Award.



          (e) Changes. If any change is made in the Common Stock by reason of any
merger, consolidation, reorganization, recapitalization, stock dividend, split
up, combination of shares, exchange of shares, change in corporate structure,
or otherwise, the Committee shall be entitled to determine the impact of such
event on outstanding Performance Shares Awards, and to make adjustments to each
Performance Shares Award to the extent necessary to provide that the
Participant receive, to the extent possible, equivalent rights under such
Performance Shares Award after consummation of such event.



          (f) Achievement of Performance Goals. Within a period of time determined
by the Committee, but not to exceed 90 days after the end of a Performance
Period, the Committee will determine if the applicable Performance Goals were
met with respect to applicable Performance Shares Awards. If the Committee
certifies in writing, after the expiration of the Performance Period, that the
Performance Goals specified in a Performance Shares Award Commitment and all
other material terms of the Award have been satisfied, the Performance Shares
Award shall be vested and earned in accordance with such Committee
certification.



          (g) Payment of Performance Shares Awards. Payment of a vested, earned
Performance Shares Award shall be made either in shares of Common Stock, or in
cash, or in some combination thereof, as determined by the Committee. The
medium of payment shall be set forth in the Committee’s resolution granting the
Performance Shares Award and in the Performance Shares Award Commitment with
the Participant. For an earned Performance Shares Award, or portion thereof,
to be settled through the issuance of shares of Common Stock, the number of
shares delivered shall be equal to the number of applicable Performance Shares
earned. The holder may elect to reduce this amount by the number of shares of
Common Stock which have, on the date the Performance Shares Award is settled, a
Fair Market Value equal to the applicable federal, state and local withholding
tax due on the receipt of the Common Stock, in lieu of making a cash payment
equal to the amount of such withholding tax due. For an earned Performance
Shares Award, or portion thereof, to be settled in cash, the amount of cash
paid shall be equal to the number of applicable Performance Shares earned
multiplied by the Fair



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Market Value of a share of Common Stock on such date following the lapse
of the Performance Period and the satisfaction of any other applicable
conditions established by the Committee at the time of grant, that the
Participant first becomes entitled to receive such payment. Such amount will
be reduced by applicable federal, state and local withholding tax due. For any
earned Performance Shares Award paid in cash, the shares of Common Stock
designated in the Performance Shares Award shall be deemed to have been issued
for purposes of Section 4.1 hereof.




     7.3 Death or Disability. Subject to the provisions of this Plan and the
Performance Shares Award Commitment, in the event of the death or Disability of
a Participant, the Participant or the Participant’s estate, as the case may be,
shall be entitled to receive, at the expiration of the Performance Period, a
percentage of Performance Shares that is equal to the percentage of the
Performance Period that had elapsed as of the date of death or date on which
such Disability commenced (as determined by the Committee in its sole
discretion); provided that the Committee, in its sole discretion, determines
that the conditions specified in the Performance Shares Awards Commitment have
been satisfied. Payment of such portion of the Performance Shares Award shall
be made to the Participant or the Participant’s estate, as the case may be, in
accordance with this Article VII.



     7.4 Change of Control. At the time a Performance Shares Award is made by
the Committee, the Committee shall be entitled, notwithstanding the provisions
of Section 4.3, to provide for different terms and provisions in the event of a
Change in Control, including, but not limited to, the authority to provide for
the settlement of a Performance Shares Award, regardless of whether the
applicable Performance Period has expired or whether the applicable Performance
Goals have been met.



     7.5 Termination of Employment. Subject to Sections 7.4 and 11.4, in the
event of a Participant’s Termination of Employment by reason of retirement or
for any reason other than death or Disability, all Performance Shares Awards
held by such Participant that were earned on the date of such Termination of
Employment will be paid to the Participant; provided, however, that if the
Committee shall determine that the Employee’s employment was terminated for
conduct that in the judgment of the Committee involves dishonesty or action by
the Employee that is detrimental to the best interest of the Company, all
earned but unpaid Performance Shares held by the Employee on the date of such
Termination of Employment shall be forfeited. Notwithstanding anything to the
contrary in this Subsection, a Performance Shares Award shall not terminate
upon a Participant’s Termination of Employment if at the time thereof the
Participant serves as a Director of the Company or its successor, in which
event the Performance Shares Awards shall terminate if the Participant ceases
to be a Director of the Company or its successor, and any earned Performance
Shares Award will be then paid in accordance with this Subsection.



Article VIII

Restricted and Unrestricted Stock




     8.1 Awards of Restricted Stock. The Committee shall have the authority to
grant to any person eligible under Section 5.1 one or more Restricted Stock
Awards. The Committee shall determine the eligible Employees to whom, and the
time or times at which, grants of



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Restricted Stock will be made, the number of shares to be awarded, the
time or times within which such Awards may be subject to forfeiture, the
vesting schedule and rights to acceleration thereof, and the other terms and
conditions of the Awards in addition to those set forth in Section 8.2.




     8.2 Terms and Conditions. Restricted Stock shall be subject to the
following terms and conditions and such other terms and conditions, not
inconsistent with the terms of the Plan, as the Committee shall deem desirable:



          (a) Restricted Stock Agreement. Each Restricted Stock Award shall be
evidenced by, and subject to the terms of, a Restricted Stock Agreement
executed by the Company and the Participant. The Restricted Stock Agreement
shall specify the number of shares of Common Stock subject to the Award, the
time or times within which such Restricted Stock is subject to forfeiture and
the other terms, conditions and restrictions applicable to such Award.



          (b) Stock Certificate. Subject to Section 11.3, when the restrictions
applicable to a Restricted Stock Award, or any portion thereof, lapse, a stock
certificate representing the number of shares of Common Stock covered by such
Restricted Stock Award, or portion thereof, shall be issued and delivered to
the Participant. A Participant shall not be deemed to be the holder of Common
Stock, or to have any of the rights of a holder of Common Stock, with respect
to shares of Restricted Stock subject to the Award, unless and until the
forfeiture restrictions lapse and a stock certificate representing such shares
of Common Stock is issued to the Participant.



          (c) Restriction Period. Subject to the provisions of the Plan and the
Restricted Stock Agreement, shares of Restricted Stock will be forfeited to the
Company in the event of a Participant’s Termination of Employment during a
period (not to exceed five years) set by the Committee commencing with the date
of such Award (the “Restriction Period”). Subject to the provisions of the
Plan, the Committee, in its sole discretion, may provide for the lapse of such
restrictions in installments and may waive such restrictions, in whole or in
part, at any time, based on such factors as the Committee shall deem
appropriate in its sole discretion.



          (d) Termination of Employment. Subject to Section 11.4, in the event of a
Participant’s Termination of Employment prior to the expiration of the
Restriction Period, then he or she shall forfeit all of his or her Restricted
Stock with respect to which the Restriction Period has not yet expired;
provided, however, that the terms of the Restricted Stock Agreement, in the
discretion of the Committee and pursuant to such terms and conditions as it may
impose, may provide: (i) that, if such Employee’s employment is terminated for
any reason other than conduct that in the judgment of the Committee involves
dishonesty or action by the Employee that is detrimental to the best interests
of the Company, then the Restricted Stock or any related compensation deferral
or a portion thereof shall not be forfeited; (ii) that, if such Employee’s
employment is terminated on account of Disability, then the Employee shall not
forfeit his or her Restricted Stock or any related compensation deferral or a
portion thereof; and (iii) that, if such Employee dies while employed by the
Company or any of its Subsidiaries, then his or her Restricted Stock or any
related compensation deferral or a portion thereof is not forfeited.



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          (e) Changes. If any change is made in the Common Stock by reason of any
merger, consolidation, reorganization, recapitalization, stock dividend, split
up, combination of shares, exchange of shares, change in corporate structure,
or otherwise, then any shares or other securities of the Company or succeeding,
resulting or other company to be received by the Employee under the Restricted
Stock Agreement shall be subject to the same restrictions applicable to the
Restricted Stock.



     8.3 Unrestricted Stock. The Committee shall have the authority to grant
to any person eligible under Section 5.1 one or more Unrestricted Stock Awards.
Each Employee who is awarded Unrestricted Stock shall receive an Unrestricted
Stock Agreement from the Company in a form specified by the Committee and
containing the terms and conditions of the award and such other matters,
consistent with this Plan, as the Committee, in its sole discretion, shall
determine at the time the Award is made. Such conditions may include, but
shall not be limited to, the deferral of a percentage of the Employee’s annual
cash compensation, not including dividends paid on the Unrestricted Stock, if
any, to be applied toward the purchase of Unrestricted Stock upon such terms
and conditions, including such discounts, as may be set forth in the
Unrestricted Stock Agreement. Upon the issuance of Unrestricted Stock to an
Employee hereunder, the Employee shall have the entire beneficial ownership and
all the rights and privileges of a stockholder with respect to the Unrestricted
Stock awarded to him or her, including the right to receive dividends and the
right to vote such Unrestricted Stock. Subject to Section 11.3, each Employee
who is awarded Unrestricted Stock may, but need not, be issued a stock
certificate in respect of such shares of Unrestricted Stock.



Article IX

Termination or Amendment




     9.1 Termination or Amendment of Plan. The Committee may at any time
amend, discontinue or terminate the Plan or any part thereof (including any
amendment deemed necessary to ensure that the Company may comply with any
regulatory requirement referred to in Article XI) or amend any Award previously
granted, prospectively or retroactively (subject to Article IV); provided,
however, that, unless otherwise required by law, the rights of a Participant
with respect to Awards granted prior to such amendment, discontinuance or
termination may not be impaired without the consent of such Participant and,
provided further that, the Company will seek the approval of the Company’s
stockholders for any amendment if such approval is necessary to comply with the
Code, Federal or state securities laws or any other applicable laws or
regulations, including the Marketplace Rules of the National Association of
Securities Dealers, Inc.



Article X

Unfunded Plan




     10.1 Unfunded Plan. The Plan is intended to constitute an “unfunded” plan
for incentive compensation. With respect to any payment not yet made to a
Participant by the Company, nothing contained herein shall give any such
Participant any rights that are greater than those of a general creditor of the
Company.



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Article XI

General Provisions




     11.1 Nonassignment. Except as otherwise provided in the Plan, any Award
granted hereunder and the rights and privileges conferred thereby shall not be
sold, transferred, assigned, pledged or hypothecated in any way (whether by
operation of law or otherwise), and shall not be subject to execution,
attachment or similar process. Upon any attempt to transfer, assign, pledge,
hypothecate or otherwise dispose of an Award, right or privilege contrary to
the provisions hereof, or upon the levy of any attachment or similar process
thereon, such Award and the rights and privileges conferred hereby shall
immediately terminate and the Award shall immediately be forfeited to the
Company.



     11.2 Legend. The Committee may require each person acquiring shares
pursuant to an Award to represent to the Company in writing that the
Participant is acquiring the shares without a view to distribution thereof.
The stock certificates representing such shares may include any legend which
the Committee deems appropriate to reflect any restrictions on transfer.



     All certificates representing shares of Common Stock delivered under the
Plan shall be subject to such stock transfer orders and other restrictions as
the Committee may deem advisable under the rules, regulations and other
requirements of the Securities and Exchange Commission, any stock exchange or
stock market upon which the Common Stock is then listed or traded, any
applicable Federal or state securities law, and any applicable corporate law,
and the Committee may cause a legend or legends to be put on any such
certificates to make appropriate reference to such restrictions.



     11.3 Uncertificated Shares. Each Employee who exercises an Option to
acquire Common Stock, is issued Common Stock upon the vesting of a Performance
Shares Award or is awarded Restricted Stock or Unrestricted Stock may, but need
not, be issued a stock certificate in respect of the Common Stock so acquired.
A “book entry” (i.e., a computerized or manual entry) shall be made in the
records of the Company to evidence the issuance of shares of Common Stock to an
Employee where no certificate is issued in the name of the Employee. Such
Company records, absent manifest error, shall be binding on Employees. In all
instances where the date of issuance of shares may be deemed significant but no
certificate is issued in accordance with this Section 11.3, the date of the
book entry shall be the relevant date for such purposes.



     11.4 Forfeiture for Competition. If a Participant in this Plan provides
services to a competitor of the Company or any of its subsidiaries, whether as
an employee, officer, director, independent contractor, consultant, agent or
otherwise, such services being of a nature that can reasonably be expected to
involve the skills and experience used or developed by the Participant while an
Employee, and the Committee determines, in its sole discretion, that the
provision of such services constitutes a breach of the Participant’s
non-compete agreement with the Company, then that Participant’s rights to any
Awards hereunder shall automatically be forfeited.



     11.5 Other Plans. Nothing contained in the Plan shall prevent the Board
from adopting other or additional compensation arrangements, subject to
stockholder approval if such approval is required; and such arrangements may be
either generally applicable or applicable only in specific cases.



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     11.6 No Right to Employment. Neither the Plan nor the grant of any Award
hereunder shall give any Participant or other Employee any right with respect
to continuance of employment by the Company or any Subsidiary, nor shall the
Plan impose any limitation on the right of the Company or any Subsidiary by
which a Participant is employed to terminate such Participant’s employment at
any time.



     11.7 Withholding of Taxes. The Company shall have the right to reduce the
number of shares of Common Stock otherwise deliverable pursuant to an Award
under this Plan by an amount that would have a Fair Market Value equal to the
minimum amount of all Federal, state and local taxes required to be withheld,
or to deduct the amount of such taxes from any cash payment otherwise to be
made to the Participant. In connection with such withholding, the Committee
may make such arrangements as are consistent with the Plan as it may deem
appropriate.



     11.8 Listing and Other Conditions.



          (a) If the Common Stock is listed on a national securities exchange or The
Nasdaq Stock Market, the issuance of any shares of Common Stock pursuant to an
Award shall be conditioned upon such shares being listed on such exchange or
The Nasdaq Stock Market. The Company shall have no obligation to issue any
shares of Common Stock unless and until such shares are so listed, and the
right to exercise any Option or vest in any Restricted Stock shall be suspended
until such listing has been effected.



          (b) If at any time counsel to the Company shall be of the opinion that any
sale or delivery of shares of Common Stock pursuant to an Award is or may in
the circumstances be unlawful or result in the imposition of excise taxes under
the statutes, rules or regulations of any applicable jurisdiction, the Company
shall have no obligation to make such sale or delivery, or to make any
application or to effect or to maintain any qualification or registration under
the Securities Act of 1933, as amended, or otherwise with respect to shares of
Common Stock or Awards, and the right to exercise any Option or vest in any
Restricted Stock shall be suspended until, in the opinion of such counsel, such
sale or delivery shall be lawful or shall not result in the imposition of
excise taxes.



          (c) Upon termination of any period of suspension under this Section 11.8,
any Award affected by such suspension which shall not then have expired or
terminated shall be reinstated as to all shares available before such
suspension and as to shares which would otherwise have become available during
the period of such suspension, but no such suspension shall extend the term of
any Option.



     11.9 Governing Law. The Plan and actions taken in connection herewith
shall be governed and construed in accordance with the laws of the State of
Delaware, without regard to the conflict of laws principles thereof.



     11.10 Construction. Wherever any words are used in the Plan in the
masculine gender they shall be construed as though they were also used in the
feminine gender in all cases where they would so apply, and wherever any words
are used herein in the singular form they shall be construed as though they
were also used in the plural form in all cases where they would so apply.



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     11.11 Liability of the Board and the Committee. No member of the Board or
the Committee nor any Employee of the Company or any of its subsidiaries shall
be liable for any act or action hereunder, whether of omission or commission,
by any other member or Employee or by any agent to whom duties in connection
with the administration of the Plan have been delegated or, except in
circumstances involving bad faith, gross negligence or fraud, for anything done
or omitted to be done by himself.



     11.12 Other Benefits. No payment pursuant to an Award shall be deemed
compensation for purposes of computing benefits under any retirement plan of
the Company or any Subsidiary nor affect any benefits under any other benefit
plan now or hereafter in effect under which the availability or amount of
benefits is related to the level of compensation.



     11.13 Costs. The Company shall bear all expenses incurred in
administering the Plan, including expenses related to the issuance of Common
Stock pursuant to Awards.



     11.14 Severability. If any part of the Plan shall be determined to be
invalid or void in any respect, such determination shall not affect, impair,
invalidate or nullify the remaining provisions of the Plan which shall continue
in full force and effect.



     11.15 Successors. The Plan shall be binding upon and inure to the benefit
of any successor or successors of the Company.



     11.16 Headings. Article and section headings contained in the Plan are
included for convenience only and are not to be used in construing or
interpreting the Plan.



Article XII

Term of Plan




     12.1 Effective Date. The Plan shall be effective as of the Effective
Date, but the grant of any Award hereunder is subject to the express condition
that the Plan be approved by the stockholders of the Company within 12 months
after the Effective Date.



     12.2 Termination Date. Unless sooner terminated, the Plan shall terminate
ten years after the Effective Date and no Awards may be granted thereafter.
Termination of the Plan shall not affect Awards granted before such date.


As originally adopted by the Board by unanimous written consent dated September
14, 1999 and approved by the stockholders at the Annual Meeting held on October
28, 1999.




As revised by the Board by unanimous written consent dated September 21, 2000
and approved by the stockholders at the Annual Meeting held on October 26, 2000
- the first sentence of Section 4.1 was amended to increase the maximum
aggregate number of shares of Common Stock that may be issued under the Plan
from 1,000,000 to 2,000,000.


As revised by the Board at its October 26, 2000 meeting to clarify the “Change
of Control” definition.



As revised by the Board by unanimous written consent dated September 5, 2001
and approved by the stockholders at the Annual Meeting held on October 25, 2001
- the first sentence of Section 4.1 was amended




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to increase the maximum aggregate number of shares of Common Stock that may be
issued under the Plan from 2,000,000 to 3,000,000.



As revised by the Board at its meeting held February 19, 2002 — sentence was
added to the end of Section 6.4(h), “Termination of Employment”, regarding
termination of options if optionee continues as a Director.



As revised by the Board at its meeting held September 12, 2002 and approved by
the stockholders at the Annual Meeting held on October 24, 2002 — the first
sentence of Section 4.1 was amended to increase the maximum aggregate number of
shares of Common Stock that may be issued under the Plan from 3,000,000 to
4,000,000.



As revised by the Board at its meeting held September 5, 2003 and approved by
the stockholders at the Annual Meeting held on October 30, 2003 — the first
sentence of Section 4.1 was amended to increase the maximum aggregate number of
shares of Common Stock that may be issued under the Plan from 4,000,000 to
4,900,000.



As revised by the Board at its meeting held October 30, 2003 to remove the
provisions vesting sole authority in the Board to grant Awards to Reporting
Persons and to amend the definition of Committee.



As revised by the Board at its meeting held September 9, 2004 and approved by
the stockholders at the Annual Meeting held on October 27, 2004 to include
provisions providing for the grant of Performance Shares under the Plan.





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