**Exhibit 10.9****RENEGY HOLDINGS, INC.****2007 EQUITY INCENTIVE PLAN**     1. Purposes of the Plan. The purposes of this Plan are: **•** to attract and retain the best available personnel for positions ofsubstantial responsibility,  **•** to provide additional incentive to Employees, Directors and Consultants, and  **•** to promote the success of the Company’s business.          The Plan permits the grant of Incentive Stock Options, Nonstatutory Stock Options, RestrictedStock, Restricted Stock Units, Stock Appreciation Rights, Performance Units and Performance Shares.     2. Definitions. As used herein, the following definitions will apply:          (a) “Administrator” means the Board or any of its Committees as will be administeringthe Plan, in accordance with Section 4 of the Plan.          (b) “Affiliate” means any employer with which the Company would be considered a singleemployer, within the meaning of Section 414(b) and 414(c) of the Code, applied using 80% as thepercentage of ownership required under such Code sections.          (c) “Applicable Laws” means the requirements relating to the administration ofequity-based awards under U.S. state corporate laws, U.S. federal and state securities laws, theCode, any stock exchange or quotation system on which the Common Stock is listed or quoted and theapplicable laws of any foreign country or jurisdiction where Awards are, or will be, granted underthe Plan.          (d) “Award” means, individually or collectively, a grant under the Plan of Options,Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Performance Units orPerformance Shares.          (e) “Award Agreement” means the written or electronic agreement setting forth theterms and provisions applicable to each Award granted under the Plan. The Award Agreement issubject to the terms and conditions of the Plan.          (f) “Award Transfer Program” means any program instituted by the Committee which wouldpermit Participants the opportunity to transfer any outstanding Awards to a financial institutionor other person or entity approved by the Committee.          (g) “Board” means the Board of Directors of the Company.
 

 
          (h) “Change in Control” means the occurrence of any of the following events:               (i) Any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act)becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly orindirectly, of securities of the Company representing fifty percent (50%) or more of the totalvoting power represented by the Company’s then outstanding voting securities;               (ii) The consummation of the sale or disposition by the Company of all or substantially all(80% percent) of the Company’s assets;               (iii) A change in the composition of the Board occurring within a one (1)-year period, as aresult of which fewer than a majority of the directors are Incumbent Directors. “IncumbentDirectors” means directors who either (A) are Directors as of the effective date of the Plan, or(B) are elected, or nominated for election, to the Board with the affirmative votes of at least amajority of the Incumbent Directors at the time of such election or nomination (but will notinclude an individual whose election or nomination is in connection with an actual or threatenedproxy contest relating to the election of directors to the Company); or               (iv) The consummation of a merger or consolidation of the Company with any other corporation,other than a merger or consolidation which would result in the voting securities of the Companyoutstanding immediately prior thereto continuing to represent (either by remaining outstanding orby being converted into voting securities of the surviving entity or its parent) at least fiftypercent (50%) of the total voting power represented by the voting securities of the Company or suchsurviving entity or its parent outstanding immediately after such merger or consolidation.          (i) “Code” means the Internal Revenue Code of 1986, as amended. Any reference to asection of the Code herein will be a reference to any successor or amended section of the Code.          (j) “Committee” means a committee of Directors or of other individuals satisfyingApplicable Laws appointed by the Board in accordance with Section 4 hereof.          (k) “Common Stock” means the common stock of the Company.          (l) “Company” means Renegy Holdings, Inc., a Delaware corporation, or any successorthereto.          (m) “Consultant” means any person, including an advisor, engaged by the Company or aParent or Subsidiary to render services to such entity.          (n) “Director” means a member of the Board.          (o) “Disability” means total and permanent disability as defined in Section 22(e)(3)of the Code, and except in the case of Incentive Stock Options, as defined in Section 409A.
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          (p) “Employee” means any person, including Officers and Directors, employed by theCompany or any Parent or Subsidiary of the Company. Neither service as a Director nor payment of adirector’s fee by the Company will be sufficient to constitute “employment” by the Company.          (q) “Exchange Act” means the Securities Exchange Act of 1934, as amended.          (r) “Exchange Program” means a program under which (i) outstanding Awards aresurrendered or cancelled in exchange for Awards of the same type (which may have higher or lowerexercise prices and different terms), Awards of a different type, and/or cash, and/or (ii) theexercise price of an outstanding Award is reduced. The Administrator will determine the terms andconditions of any Exchange Program in its sole discretion.          (s) “Fair Market Value” means, as of any date, the value of Common Stock determined asfollows:               (i) If the Common Stock is listed on any established stock exchange or a national marketsystem, including without limitation the Nasdaq Global Select Market, the Nasdaq Global Market orthe Nasdaq Capital Market of The Nasdaq Stock Market, its Fair Market Value will be the closingsales price for such stock (or the closing bid, if no sales were reported) as quoted on suchexchange or system on the day of determination, as reported in *The Wall Street Journal*or suchother source as the Administrator deems reliable;               (ii) If the Common Stock is regularly quoted by a recognized securities dealer but sellingprices are not reported, the Fair Market Value of a Share will be the mean between the high bid andlow asked prices for the Common Stock on the day of determination, as reported in *The Wall StreetJournal*or such other source as the Administrator deems reliable;               (iii) In the absence of an established market for the Common Stock, the Fair Market Value willbe determined in good faith by the Administrator consistent with Section 409A.          (t) “Fiscal Year” means the fiscal year of the Company.          (u) “Incentive Stock Option” means an Option intended to qualify as an incentive stockoption within the meaning of Section 422 of the Code and the regulations promulgated thereunder.          (v) “Inside Director” means a Director who is an Employee.          (w) “Nonstatutory Stock Option” means an Option that by its terms does not qualify oris not intended to qualify as an Incentive Stock Option.          (x) “Officer” means a person who is an officer of the Company within the meaning ofSection 16 of the Exchange Act and the rules and regulations promulgated thereunder.          (y) “Option” means a stock option granted pursuant to the Plan.
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          (z) “Outside Director” means a Director who is not an Employee.          (aa) “Parent” means a “parent corporation” of the Company, whether now or hereafterexisting, as defined in Section 424(e) of the Code.          (bb) “Participant” means the holder of an outstanding Award.          (cc) “Performance Share” means an Award denominated in Shares which may be earned inwhole or in part upon attainment of performance goals or other vesting criteria as theAdministrator may determine pursuant to Section 10.          (dd) “Performance Unit” means an Award which may be earned in whole or in part uponattainment of performance goals or other vesting criteria as the Administrator may determine andwhich may be settled for cash, Shares or other securities or a combination of the foregoingpursuant to Section 10.          (ee) “Period of Restriction” means the period during which the transfer of Shares ofRestricted Stock are subject to restrictions and therefore, the Shares are subject to a substantialrisk of forfeiture. Such restrictions may be based on the passage of time, the achievement oftarget levels of performance, or the occurrence of other events as determined by the Administrator.          (ff) “Plan” means this 2007 Equity Incentive Plan.          (gg) “Restricted Stock” means Shares issued pursuant to a Restricted Stock Award underSection 7 of the Plan, or issued pursuant to the early exercise of an Option.          (hh) “Restricted Stock Unit” means a bookkeeping entry representing an amount equal tothe Fair Market Value of one Share, granted pursuant to Section 8. Each Restricted Stock Unitrepresents an unfunded and unsecured obligation of the Company.          (ii) “Rule 16b-3” means Rule 16b-3 of the Exchange Act or any successor to Rule 16b-3,as in effect when discretion is being exercised with respect to the Plan.          (jj) “Section 409A” means Section 409A of the Code and the guidance issued by theUnited States Department of the Treasury or Internal Revenue Service.          (kk) “Section 16(b)” means Section 16(b) of the Exchange Act.          (ll) “Separation from Service” means a termination of employment with the Company andall Affiliates that is a “separation from service” within the meaning of Section 409A.          (mm) “Service Provider” means an Employee, Director or Consultant.          (nn) “Share” means a share of the Common Stock, as adjusted in accordance withSection 13 of the Plan.          (oo) “Specified Employee” means a “specified employee” within the meaning of Section409A and the Company’s specified employee identification policy, if any.
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          (pp) “Stock Appreciation Right” means an Award, granted alone or in connection with anOption, that pursuant to Section 9 is designated as a Stock Appreciation Right.          (qq) “Subsidiary” means a “subsidiary corporation” of the Company, whether now orhereafter existing, as defined in Section 424(f) of the Code.     3. Stock Subject to the Plan.          (a) Stock Subject to the Plan. Subject to the provisions of Section 13 of the Plan,the maximum aggregate number of Shares that may be issued under the Plan is 1,000,000 Shares. TheShares may be authorized, but unissued, or reacquired Common Stock.          (b) Automatic Share Reserve Increase. The number of Shares available for issuanceunder the Plan will be increased on the first day of each Fiscal Year beginning with the 2009Fiscal Year, in an amount equal to the least of (A) 500,000 Shares, (B) four percent (4%) of theoutstanding Shares on the last day of the immediately preceding Fiscal Year or (C) such number ofShares determined by the Board; provided, however, that the maximum aggregate number of Shares thatmay be issued under the Plan as Incentive Stock Options shall remain 1,000,000 Shares.          (c) Lapsed Awards. If an Award expires or becomes unexercisable without having beenexercised in full, is surrendered pursuant to an Exchange Program, or, with respect to RestrictedStock, Restricted Stock Units, Performance Units or Performance Shares, is forfeited to orrepurchased by the Company due to failure to vest, the unpurchased Shares (or for Awards other thanOptions or Stock Appreciation Rights the forfeited or repurchased Shares) which were subjectthereto will become available for future grant or sale under the Plan (unless the Plan hasterminated). With respect to Stock Appreciation Rights, only Shares actually issued pursuant to aStock Appreciation Right will cease to be available under the Plan; all remaining Shares underStock Appreciation Rights will remain available for future grant or sale under the Plan (unless thePlan has terminated). Shares that have actually been issued under the Plan under any Award willnot be returned to the Plan and will not become available for future distribution under the Plan;provided, however, that if Shares issued pursuant to Awards of Restricted Stock, Restricted StockUnits, Performance Shares or Performance Units are repurchased by the Company or are forfeited tothe Company, such Shares will become available for future grant under the Plan. Shares used to paythe exercise price of an Award or to satisfy the tax withholding obligations related to an Awardwill become available for future grant or sale under the Plan. To the extent an Award under thePlan is paid out in cash rather than Shares, such cash payment will not result in reducing thenumber of Shares available for issuance under the Plan. Notwithstanding the foregoing and, subjectto adjustment as provided in Section 13, the maximum number of Shares that may be issued upon theexercise of Incentive Stock Options will equal the aggregate Share number stated in Section 3(a),plus, to the extent allowable under Section 422 of the Code and the Treasury Regulationspromulgated thereunder, any Shares that become available for issuance under the Plan pursuant tothis Section 3(c).          (d) Share Reserve. The Company, during the term of this Plan, will at all timesreserve and keep available such number of Shares as will be sufficient to satisfy the requirementsof the Plan.
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     4. Administration of the Plan.          (a) Procedure.               (i) Multiple Administrative Bodies. Different Committees with respect to differentgroups of Service Providers may administer the Plan.               (ii) Section 162(m). To the extent that the Administrator determines it to bedesirable to qualify Awards granted hereunder as “performance-based compensation” within themeaning of Section 162(m) of the Code, the Plan will be administered by a Committee of two (2) ormore “outside directors” within the meaning of Section 162(m) of the Code.               (iii) Rule 16b-3. To the extent desirable to qualify transactions hereunder as exemptunder Rule 16b-3, the transactions contemplated hereunder will be structured to satisfy therequirements for exemption under Rule 16b-3.               (iv) Other Administration. Other than as provided above, the Plan will beadministered by (A) the Board or (B) a Committee, which committee will be constituted to satisfyApplicable Laws.          (b) Powers of the Administrator. Subject to the provisions of the Plan, and in thecase of a Committee, subject to the specific duties delegated by the Board to such Committee, theAdministrator will have the authority, in its discretion:               (i) to determine the Fair Market Value;               (ii) to select the Service Providers to whom Awards may be granted hereunder;               (iii) to determine the number of Shares to be covered by each Award granted hereunder;               (iv) to approve forms of Award Agreements for use under the Plan;               (v) to determine the terms and conditions, not inconsistent with the terms of the Plan, of anyAward granted hereunder. Such terms and conditions include, but are not limited to, the exerciseprice, the time or times when Awards may be exercised (which may be based on performance criteria),any vesting acceleration or waiver of forfeiture restrictions, and any restriction or limitationregarding any Award or the Shares relating thereto, based in each case on such factors as theAdministrator will determine;               (vi) to determine the terms and conditions of any, and to institute, any Exchange Program inaccordance with Applicable Laws;               (vii) to determine the terms and conditions of any, and to institute any Award TransferProgram in accordance with Section 12(b) and Applicable Laws;
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               (viii) to construe and interpret the terms of the Plan and Awards (except Incentive StockOptions that qualify as such) granted pursuant to the Plan in accordance with Section 409A;               (ix) to prescribe, amend and rescind rules and regulations relating to the Plan, includingrules and regulations relating to sub-plans established for the purpose of satisfying applicableforeign laws;               (x) to modify or amend each Award (subject to Section 18(c) of the Plan) in accordance withSection 409A, including but not limited to the discretionary authority to extend thepost-termination exercisability period of Awards and to extend the maximum term of an Option(subject to Section 6(b) regarding Incentive Stock Options);               (xi) to allow Participants to satisfy withholding tax obligations in such manner as prescribedin Section 14;               (xii) to authorize any person to execute on behalf of the Company any instrument required toeffect the grant of an Award previously granted by the Administrator;               (xiii) to allow a Participant to defer the receipt of the payment of cash or the delivery ofShares that would otherwise be due to such Participant under an Award pursuant to such proceduresas the Administrator may determine in accordance with Section 409A; and               (xiv) to make all other determinations deemed necessary or advisable for administering thePlan.          (c) Effect of Administrator’s Decision. The Administrator’s decisions, determinationsand interpretations will be final and binding on all Participants and any other holders of Awards.     5. Eligibility. Nonstatutory Stock Options, Stock Appreciation Rights, RestrictedStock, Restricted Stock Units, Performance Shares and Performance Units may be granted to ServiceProviders. Incentive Stock Options may be granted only to Employees.     6. Stock Options.          (a) Limitations. Each Option will be designated in the Award Agreement as either anIncentive Stock Option or a Nonstatutory Stock Option. However, notwithstanding such designation,to the extent that the aggregate Fair Market Value of the Shares with respect to which IncentiveStock Options are exercisable for the first time by the Participant during any calendar year (underall plans of the Company and any Parent or Subsidiary) exceeds one hundred thousand dollars($100,000), such Options will be treated as Nonstatutory Stock Options. For purposes of thisSection 6(a), Incentive Stock Options will be taken into account in the order in which they weregranted. The Fair Market Value of the Shares will be determined as of the date of grant of theOption. The number of Shares subject to the Option shall also be fixed on the date of grant.          (b) Term of Option. The term of each Option will be stated in the Award Agreement.In the case of an Incentive Stock Option, the term will be ten (10) years from the date of
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grant orsuch shorter term as may be provided in the Award Agreement. Moreover, in the case of an IncentiveStock Option granted to a Participant who, at the time the Incentive Stock Option is granted, ownsstock representing more than ten percent (10%) of the total combined voting power of all classes ofstock of the Company or any Parent or Subsidiary, the term of the Incentive Stock Option will befive (5) years from the date of grant or such shorter term as may be provided in the AwardAgreement.          (c) Option Exercise Price and Consideration.               (i) Exercise Price. The per share exercise price for the Shares to be issued pursuantto exercise of an Option will be determined by the Administrator, subject to the following:                    (1) In the case of an Incentive Stock Option                         a) granted to an Employee who, at the time the Incentive Stock Option is granted, owns stockrepresenting more than ten percent (10%) of the voting power of all classes of stock of the Companyor any Parent or Subsidiary, the per Share exercise price will be no less than one hundred tenpercent (110%) of the Fair Market Value per Share on the date of grant.                         b) granted to any Employee other than an Employee described in subparagraph (a) immediatelyabove, the per Share exercise price will be no less than one hundred percent (100%) of the FairMarket Value per Share on the date of grant.                    (2) In the case of a Nonstatutory Stock Option, the per Share exercise price will be no lessthan one hundred percent (100%) of the Fair Market Value per Share on the date of grant.                    (3) Notwithstanding the foregoing, Options may be granted with a per Share exercise price ofless than one hundred percent (100%) of the Fair Market Value per Share on the date of grantpursuant to a transaction described in, and in a manner consistent with, Section 424(a) of the Codeand Section 409A.               (ii) Waiting Period and Exercise Dates. At the time an Option is granted, theAdministrator will fix the period within which the Option may be exercised and will determine anyconditions that must be satisfied before the Option may be exercised.               (iii) Form of Consideration. The Administrator will determine the acceptable form ofconsideration for exercising an Option, including the method of payment. In the case of anIncentive Stock Option, the Administrator will determine the acceptable form of consideration atthe time of grant, and the Administrator will consider specifying the form of payment at the timeof grant for all Options. Such consideration may consist entirely of: (1) cash; (2) check; (3)promissory note, (4) other Shares, provided that such Shares have a Fair Market Value on the dateof surrender equal to the aggregate exercise price of the Shares as to which such Option will beexercised and provided that accepting such Shares, in the sole discretion of the Administrator,will not result in any adverse accounting consequences to the Company; (5)consideration received by the Company under a broker-assisted (or other) cashless exerciseprogram implemented by the Company in connection with the Plan; (6) such other consideration andmethod
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of payment for the issuance of Shares to the extent permitted by Applicable Laws; or (7) anycombination of the foregoing methods of payment.          (d) Exercise of Option.               (i) Procedure for Exercise; Rights as a Stockholder. Any Option granted hereunderwill be exercisable according to the terms of the Plan and at such times and under such conditionsas determined by the Administrator and set forth in the Award Agreement. An Option may not beexercised for a fraction of a Share.                    An Option will be deemed exercised when the Company receives: (i) notice of exercise (in suchform as the Administrator may specify from time to time) from the person entitled to exercise theOption, and (ii) full payment for the Shares with respect to which the Option is exercised(together with applicable withholding taxes). Full payment may consist of any consideration andmethod of payment authorized by the Administrator and permitted by the Award Agreement and thePlan. Shares issued upon exercise of an Option will be issued in the name of the Participant or,if requested by the Participant, in the name of the Participant and his or her spouse. Until theShares are issued (as evidenced by the appropriate entry on the books of the Company or of a dulyauthorized transfer agent of the Company), no right to vote or receive dividends or any otherrights as a stockholder will exist with respect to the Shares subject to an Option, notwithstandingthe exercise of the Option. The Company will issue (or cause to be issued) such Shares promptlyafter the Option is exercised. No adjustment will be made for a dividend or other right for whichthe record date is prior to the date the Shares are issued, except as provided in Section 13 of thePlan.               Exercising an Option in any manner will decrease the number of Shares thereafter available,both for purposes of the Plan and for sale under the Option, by the number of Shares as to whichthe Option is exercised.               (ii) Termination of Relationship as a Service Provider. If a Participant ceases to bea Service Provider, other than upon the Participant’s termination as the result of theParticipant’s death or Disability, the Participant may exercise his or her Option within suchperiod of time as is specified in the Award Agreement to the extent that the Option is vested onthe date of termination (but in no event later than the expiration of the term of such Option asset forth in the Award Agreement). In the absence of a specified time in the Award Agreement, theOption will remain exercisable for three (3) months following the Participant’s termination.Unless otherwise provided by the Administrator, if on the date of termination the Participant isnot vested as to his or her entire Option, the Shares covered by the unvested portion of the Optionwill revert to the Plan. If after termination the Participant does not exercise his or her Optionwithin the time specified by the Administrator, the Option will terminate, and the Shares coveredby such Option will revert to the Plan.               (iii) Disability of Participant. If a Participant ceases to be a Service Provider asa result of the Participant’s Disability, the Participant may exercise his or her Option withinsuch period of time as is specified in the Award Agreement to the extent the Option is vested onthe date of termination (but in no event later than the expiration of the term of such Option assetforth in the Award Agreement). In the absence of a specified time in the Award Agreement, theOption will remain exercisable for twelve (12) months following the Participant’s termination.
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Unless otherwise provided by the Administrator, if on the date of termination the Participant isnot vested as to his or her entire Option, the Shares covered by the unvested portion of the Optionwill revert to the Plan. If after termination the Participant does not exercise his or her Optionwithin the time specified herein, the Option will terminate, and the Shares covered by such Optionwill revert to the Plan.               (iv) Death of Participant. If a Participant dies while a Service Provider, the Optionmay be exercised following the Participant’s death within such period of time as is specified inthe Award Agreement to the extent that the Option is vested on the date of death (but in no eventmay the option be exercised later than the expiration of the term of such Option as set forth inthe Award Agreement), by the Participant’s designated beneficiary, provided such beneficiary hasbeen designated prior to Participant’s death in a form acceptable to the Administrator. If no suchbeneficiary has been designated by the Participant, then such Option may be exercised by thepersonal representative of the Participant’s estate or by the person(s) to whom the Option istransferred pursuant to the Participant’s will or in accordance with the laws of descent anddistribution. In the absence of a specified time in the Award Agreement, the Option will remainexercisable for twelve (12) months following Participant’s death. Unless otherwise provided by theAdministrator, if at the time of death Participant is not vested as to his or her entire Option,the Shares covered by the unvested portion of the Option will immediately revert to the Plan. Ifthe Option is not so exercised within the time specified herein, the Option will terminate, and theShares covered by such Option will revert to the Plan.          (e) No Deferral Feature. No Option may have any feature that would allow for thedeferral of compensation (within the meaning of Section 409A) other than the deferral ofrecognition of income until the later of the exercise of disposition of the Option or the timeshares acquired subject to the exercise of the Option first become substantially vested (as definedin Treasury Regulation Section 1.83-3(b)).     7. Restricted Stock.          (a) Grant of Restricted Stock. Subject to the terms and provisions of the Plan, theAdministrator, at any time and from time to time, may grant Shares of Restricted Stock to ServiceProviders in such amounts as the Administrator, in its sole discretion, will determine.          (b) Restricted Stock Agreement. Each Award of Restricted Stock will be evidenced byan Award Agreement that will specify the Period of Restriction, the number of Shares granted, andsuch other terms and conditions as the Administrator, in its sole discretion, will determine.Unless the Administrator determines otherwise, the Company as escrow agent will hold Shares ofRestricted Stock until the restrictions on such Shares have lapsed.          (c) Transferability. Except as provided in this Section 7, Shares of Restricted Stockmay not be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated until theend of the applicable Period of Restriction.          (d) Other Restrictions. The Administrator, in its sole discretion, may impose suchother restrictions on Shares of Restricted Stock as it may deem advisable or appropriate.
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          (e) Removal of Restrictions. Except as otherwise provided in this Section 7, Sharesof Restricted Stock covered by each Restricted Stock grant made under the Plan will be releasedfrom escrow as soon as practicable after the last day of the Period of Restriction or at such othertime as the Administrator may determine. The Administrator, in its discretion, may accelerate thetime at which any restrictions will lapse or be removed.          (f) Voting Rights. During the Period of Restriction, Service Providers holding Sharesof Restricted Stock granted hereunder may exercise full voting rights with respect to those Shares,unless the Administrator determines otherwise.          (g) Dividends and Other Distributions. During the Period of Restriction, ServiceProviders holding Shares of Restricted Stock will be entitled to receive all dividends and otherdistributions paid with respect to such Shares, unless the Administrator provides otherwise. Ifany such dividends or distributions are paid in Shares, the Shares will be subject to the samerestrictions on transferability and forfeitability as the Shares of Restricted Stock with respectto which they were paid.          (h) Return of Restricted Stock to Company. On the date set forth in the AwardAgreement, the Restricted Stock for which restrictions have not lapsed will revert to the Companyand again will become available for grant under the Plan.     8. Restricted Stock Units.          (a) Grant. Restricted Stock Units may be granted at any time and from time to time asdetermined by the Administrator. After the Administrator determines that it will grant RestrictedStock Units under the Plan, it will advise the Participant in an Award Agreement of the terms,conditions, and restrictions related to the grant, including the number of Restricted Stock Units.          (b) Vesting Criteria and Other Terms. The Administrator will set vesting criteria inits discretion, which, depending on the extent to which the criteria are met, will determine thenumber of Restricted Stock Units that will be paid out to the Participant. The Administrator mayset vesting criteria based upon the achievement of Company-wide, business unit, or individual goals(including, but not limited to, continued employment), or any other basis determined by theAdministrator in its discretion.          (c) Earning Restricted Stock Units. Upon meeting the applicable vesting criteria, theParticipant will be entitled to receive a payout as determined by the Administrator.Notwithstanding the foregoing, at any time after the grant of Restricted Stock Units, theAdministrator, in its sole discretion, may reduce or waive in accordance with Section 409A anyvesting criteria that must be met to receive a payout.          (d) Form and Timing of Payment. Subject to Section 8(e), payments of earnedRestricted Stock Units will be made as soon as practicable after the date(s) determined by theAdministrator and set forth in the Award Agreement. The Administrator, in its solediscretion, may only settle earned Restricted Stock Units in cash, Shares, or a combination ofboth.
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          (e) Payments to Specified Employees. Notwithstanding anything to the contrary inSection 8(d), Restricted Stock Units payable upon a Separation from Service of a SpecifiedEmployee, to the extent they constitute nonqualified deferred compensation subject to Section 409A,shall not be paid or issued until within the 30-day period commencing with the first day of theseventh month following the month of the Specified Employee’s Separation from Service; providedthat if such 30-day period begins in one calendar year and ends in another calendar year, theParticipant shall have no right to designate the calendar year of payment.          (f) Cancellation. On the date set forth in the Award Agreement, all unearnedRestricted Stock Units will be forfeited to the Company.          (g) No Acceleration. Except as would not cause taxation under Section 409A(a)(1)(B),no acceleration of the time or form of payment of a Restricted Stock Unit may be permitted underthe Plan or any Award.     9. Stock Appreciation Rights.          (a) Grant of Stock Appreciation Rights. Subject to the terms and conditions of thePlan, a Stock Appreciation Right may be granted to Service Providers at any time and from time totime as will be determined by the Administrator, in its sole discretion.          (b) Number of Shares. The Administrator will have complete discretion to determinethe number of Stock Appreciation Rights granted to any Service Provider, which number shall befixed on the date of grant.          (c) Exercise Price and Other Terms. The per share exercise price for the Shares to beissued pursuant to exercise of a Stock Appreciation Right will be determined by the Administratorand will be no less than one hundred percent (100%) of the Fair Market Value per Share on the dateof grant. Otherwise, subject to Section 6(a) of the Plan, the Administrator, subject to theprovisions of the Plan and except as would cause taxation under Section 409A(a)(1)(B), will havecomplete discretion to determine the terms and conditions of Stock Appreciation Rights grantedunder the Plan.          (d) Stock Appreciation Right Agreement. Each Stock Appreciation Right grant will beevidenced by an Award Agreement that will specify the exercise price, the term of the StockAppreciation Right, the conditions of exercise, and such other terms and conditions as theAdministrator, in its sole discretion and which would not cause taxation under Section409A(a)(1)(B), will determine.          (e) Expiration of Stock Appreciation Rights. A Stock Appreciation Right granted underthe Plan will expire upon the date determined by the Administrator, in its sole discretion, and setforth in the Award Agreement. Notwithstanding the foregoing, the rules of Section 6(d) also willapply to Stock Appreciation Rights.          (f) Payment of Stock Appreciation Right Amount. Upon exercise of a Stock AppreciationRight, a Participant will be entitled to receive payment from the Company in an amount determinedby multiplying:
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               (i) The difference between the Fair Market Value of a Share on the date of exercise over theexercise price; times               (ii) The number of Shares with respect to which the Stock Appreciation Right is exercised.     At the discretion of the Administrator, the payment upon Stock Appreciation Right exercise maybe in cash, in Shares of equivalent value, or in some combination thereof.          (g) No Acceleration. Except as would not cause taxation under Section 409A(a)(1)(B),no acceleration of the time or form of payment of a Stock Appreciation Right may be permitted underthe Plan or any Award.     10. Performance Units and Performance Shares.          (a) Grant of Performance Units/Shares. Performance Units and Performance Shares maybe granted to Service Providers at any time and from time to time, as will be determined by theAdministrator, in its sole discretion. The Administrator will have complete discretion indetermining the number of Performance Units and Performance Shares granted to each Participant.          (b) Value of Performance Units/Shares. Each Performance Unit will have an initialvalue that is established by the Administrator on or before the date of grant. Each PerformanceShare will have an initial value equal to the Fair Market Value of a Share on the date of grant.          (c) Performance Objectives and Other Terms. The Administrator will, subject to 409A,set performance objectives or other vesting provisions (including, without limitation, continuedstatus as a Service Provider) in its discretion which, depending on the extent to which they aremet, will determine the number or value of Performance Units/Shares that will be paid out to theService Providers. The time period during which the performance objectives or other vestingprovisions must be met will be called the “Performance Period.” Each Award of PerformanceUnits/Shares will be evidenced by an Award Agreement that will specify the Performance Period, andsuch other terms and conditions as the Administrator, in its sole discretion and except as wouldcause taxation under Section 409A(a)(1)(B), will determine. The Administrator may set performanceobjectives based upon the achievement of Company-wide, divisional, or individual goals, applicablefederal or state securities laws, or any other basis determined by the Administrator in itsdiscretion.          (d) Earning of Performance Units/Shares. After the applicable Performance Period hasended, the holder of Performance Units/Shares will be entitled to receive a payout of the number ofPerformance Units/Shares earned by the Participant over the Performance Period, to be determined asa function of the extent to which the corresponding performance objectives or other vestingprovisions have been achieved. After the grant of a Performance Unit/Share, the Administrator, inits sole discretion, may, except as would cause taxation under Section409A(a)(1)(B), reduce or waive any performance objectives or other vesting provisions for suchPerformance Unit/Share.
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          (e) Form and Timing of Payment of Performance Units/Shares. Subject to Section 10(f),payment of earned Performance Units/Shares will be made as soon as practicable after the expirationof the applicable Performance Period. The Administrator, in its sole discretion, may pay earnedPerformance Units/Shares in the form of cash, in Shares (which have an aggregate Fair Market Valueequal to the value of the earned Performance Units/Shares at the close of the applicablePerformance Period) or in a combination thereof.          (f) Payments to Specified Employees. Notwithstanding anything to the contrary inSection 10(e) and except as would not cause taxation under Section 409A(a)(1)(B), PerformanceUnits/Shares payable upon a Separation from Service of a Specified Employee, to the extent theyconstitute nonqualified deferred compensation subject to Section 409A, shall not be paid or issueduntil within the 30-day period commencing with the first day of the seventh month following themonth of the Specified Employee’s Separation from Service; provided that if such 30-day periodbegins in one calendar year and ends in another calendar year, the Participant shall have no rightto designate the calendar year of payment.          (g) Cancellation of Performance Units/Shares. On the date set forth in the AwardAgreement, all unearned or unvested Performance Units/Shares will be forfeited to the Company, andagain will be available for grant under the Plan.          (h) No Acceleration. Except as would not cause taxation under Section 409A(a)(1)(B),no acceleration of the time or form of payment of a Performance Units/Shares Unit may be permittedunder the Plan or any Award.     11. Leaves of Absence/Transfer Between Locations. Unless the Administrator providesotherwise or except as required by Applicable Laws, vesting of Awards granted hereunder will besuspended during any unpaid leave of absence. A Service Provider will not cease to be an Employeein the case of (i) any leave of absence approved by the Company or (ii) transfers between locationsof the Company or between the Company, its Parent, or any Subsidiary. For purposes of IncentiveStock Options, no such leave may exceed ninety (90) days, unless reemployment upon expiration ofsuch leave is guaranteed by statute or contract. If reemployment upon expiration of a leave ofabsence approved by the Company is not so guaranteed, then three (3) months following theninety-first (91st) day of such leave any Incentive Stock Option held by the Participantwill cease to be treated as an Incentive Stock Option and will be treated for tax purposes as aNonstatutory Stock Option.     12. Transferability of Awards.          (a) General. Unless determined otherwise by the Administrator, an Award may not besold, pledged, assigned, hypothecated, transferred, or disposed of in any manner other than by willor by the laws of descent or distribution and may be exercised, during the lifetime of theParticipant, only by the Participant. If the Administrator makes an Award transferable, such Awardwill contain such additional terms and conditions as the Administrator deems appropriate.          (b) Award Transfer Program. Notwithstanding any contrary provision of the Plan, otherthan the last sentence of this Section 12(b), the Committee shall have all discretion and authorityto determine and implement the terms and conditions of any Award Transfer Program
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institutedpursuant to this Section 12(b) and shall have the authority to amend the terms of any Awardparticipating, or otherwise eligible to participate in, the Award Transfer Program pursuant to itsoriginal terms, including (but not limited to) the authority to (i) amend (including to extend) theexpiration date, post-termination exercise period and/or forfeiture conditions of any such Award,(ii) amend or remove any provisions of the Award relating to the Award holder’s continued serviceto the Company, (iii) amend the permissible payment methods with respect to the exercise orpurchase of any such Award, (iv) amend the adjustments to be implemented in the event of changes inthe capitalization and other similar events with respect to such Award, and (v) make such otherchanges to the terms of such Award as the Committee deems necessary or appropriate in its solediscretion. The other provisions of this Section 12(b) notwithstanding, (i) the Award TransferProgram shall not amend an Award or this Plan so as not to comply with Applicable Laws, includingwithout limitation Section 409A, and (ii) the Committee shall not, without the written consent ofthe Participant, amend any Incentive Stock Option in a way that would cause such Option to cease tobe treated as an incentive stock option under Section 422 of the Code.     13. Adjustments; Dissolution or Liquidation; Merger or Change in Control.          (a) Adjustments. In the event that any dividend or other distribution (whether in theform of cash, Shares, other securities, or other property), recapitalization, stock split, reversestock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase, orexchange of Shares or other securities of the Company, or other change in the corporate structureof the Company affecting the Shares occurs, the Administrator, in order to prevent diminution orenlargement of the benefits or potential benefits intended to be made available under the Plan,will adjust the number and class of Shares that may be delivered under the Plan and/or the number,class, and price of Shares covered by each outstanding Award and the numerical Share limits inSection 3 of the Plan.          (b) Dissolution or Liquidation. In the event of the proposed dissolution orliquidation of the Company, the Administrator will notify each Participant as soon as practicableprior to the effective date of such proposed transaction. To the extent it has not been previouslyexercised, an Award will terminate immediately prior to the consummation of such proposed action.          (c) Merger or Change in Control. In the event of a merger or Change in Control, eachoutstanding Award will be treated as the Administrator determines, including, without limitation,that each Award be assumed or an equivalent option or right substituted by the successorcorporation or a Parent or Subsidiary of the successor corporation. The Administrator will not berequired to treat all Awards similarly in the transaction.          In the event that the successor corporation does not assume or substitute for the Award, theParticipant will fully vest in and have the right to exercise all of his or her outstanding Optionsand Stock Appreciation Rights, including Shares as to which such Awards would not otherwise bevested or exercisable, all restrictions on Restricted Stock and Restricted Stock Units will lapse,and, with respect to Awards with performance-based vesting, all performance goals or other vestingcriteria will be deemed achieved at one hundred percent (100%) of target levels and allother terms and conditions met. In addition, if an Option or Stock Appreciation Right is notassumed or substituted in the event of a Change in Control, the Administrator will notify theParticipant in writing or electronically that the Option or Stock Appreciation Right will be fully
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vested and exercisable for a period of time determined by the Administrator in its sole discretion,and the Option or Stock Appreciation Right will terminate upon the expiration of such period.          For the purposes of this subsection (c), an Award will be considered assumed if, following theChange in Control, the Award confers the right to purchase or receive, for each Share subject tothe Award immediately prior to the Change in Control, the consideration (whether stock, cash, orother securities or property) received in the Change in Control by holders of Common Stock for eachShare held on the effective date of the transaction (and if holders were offered a choice ofconsideration, the type of consideration chosen by the holders of a majority of the outstandingShares); provided, however, that if such consideration received in the Change in Control is notsolely common stock of the successor corporation or its Parent, the Administrator may, with theconsent of the successor corporation, provide for the consideration to be received upon theexercise of an Option or Stock Appreciation Right or upon the payout of a Restricted Stock Unit,Performance Unit or Performance Share, for each Share subject to such Award, to be solely commonstock of the successor corporation or its Parent equal in fair market value to the per shareconsideration received by holders of Common Stock in the Change in Control.          Notwithstanding anything in this Section 13(c) to the contrary, an Award that vests, is earnedor paid-out upon the satisfaction of one or more performance goals will not be considered assumedif the Company or its successor modifies any of such performance goals without the Participant’sconsent; provided, however, a modification to such performance goals only to reflect the successorcorporation’s post-Change in Control corporate structure will not be deemed to invalidate anotherwise valid Award assumption.     14. Tax Withholding.          (a) Withholding Requirements. Prior to the delivery of any Shares or cash pursuant toan Award (or exercise thereof), the Company will have the power and the right to deduct orwithhold, or require a Participant to remit to the Company, an amount sufficient to satisfyfederal, state, local, foreign or other taxes (including the Participant’s FICA obligation)required to be withheld with respect to such Award (or exercise thereof).          (b) Withholding Arrangements. The Administrator, in its sole discretion and pursuantto such procedures as it may specify from time to time, may permit a Participant to satisfy suchtax withholding obligation, in whole or in part by (without limitation) (a) paying cash,(b) electing to have the Company withhold otherwise deliverable cash or Shares having a Fair MarketValue equal to the minimum statutory amount required to be withheld, or (c) delivering to theCompany already-owned Shares having a Fair Market Value equal to the minimum statutory amountrequired to be withheld. The Fair Market Value of the Shares to be withheld or delivered will bedetermined as of the date that the taxes are required to be withheld.     15. No Effect on Employment or Service. Neither the Plan nor any Award will conferupon a Participant any right with respect to continuing the Participant’s relationship as a ServiceProvider with the Company, nor will they interfere in any way with the Participant’s right or theCompany’s right to terminate such relationship at any time, with or without cause, to theextent permitted by Applicable Laws.
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     16. Date of Grant. The date of grant of an Award will be, for all purposes, the dateon which the Administrator makes the determination granting such Award, or such other later date asis determined by the Administrator, but in each case the Administrator shall have fixed, for eachAward to be granted, the identity of the Participant, the maximum number of Shares subject to theAward, and the Fair Market Value/grant price of the Award. Notice of the determination will beprovided to each Participant within a reasonable time after the date of such grant.     17. Term of Plan. Subject to Section 21 of the Plan, the Plan will become effectiveupon its adoption by the Board. It will continue in effect for a term of ten (10) years from thedate adopted by the Board, unless terminated earlier under Section 18 of the Plan.     18. Amendment and Termination of the Plan.          (a) Amendment and Termination. The Board may at any time amend, alter, suspend orterminate the Plan.          (b) Stockholder Approval. The Company will obtain stockholder approval of any Planamendment to the extent necessary and desirable to comply with Applicable Laws.          (c) Effect of Amendment or Termination. No amendment, alteration, suspension ortermination of the Plan will impair the rights of any Participant, unless mutually agreed otherwisebetween the Participant and the Administrator, which agreement must be in writing (which mayinclude e-mail) and signed by the Participant and the Company. Termination of the Plan will notaffect the Administrator’s ability to exercise the powers granted to it hereunder with respect toAwards granted under the Plan prior to the date of such termination.     19. Conditions Upon Issuance of Shares.          (a) Legal Compliance. Shares will not be issued pursuant to the exercise of an Awardunless the exercise of such Award and the issuance and delivery of such Shares will comply withApplicable Laws and will be further subject to the approval of counsel for the Company with respectto such compliance.          (b) Investment Representations. As a condition to the exercise of an Award, theCompany may require the person exercising such Award to represent and warrant at the time of anysuch exercise that the Shares are being purchased only for investment and without any presentintention to sell or distribute such Shares if, in the opinion of counsel for the Company, such arepresentation is required.     20. Inability to Obtain Authority. The inability of the Company to obtain authorityfrom any regulatory body having jurisdiction, which authority is deemed by the Company’s counsel tobe necessary to the lawful issuance and sale of any Shares hereunder, will relieve the Company ofany liability in respect of the failure to issue or sell such Shares as to which such requisiteauthority will not have been obtained.     21. Stockholder Approval. The Plan will be subject to approval by the stockholders ofthe Company within twelve (12) months after the date the Plan is adopted by the Board. Suchstockholder approval will be obtained in the manner and to the degree required under ApplicableLaws.
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