1.4. “Board” shall mean the Board of Directors of the Company.          1.5. “Change in Control” shall mean the occurrence of any of the following events, ifsuch event occurs on or after the Effective Date:               (a) the occurrence of clauses (I) and (II), where clause (I) is: the acquisition, directly orindirectly, by any “person” or “group” (as those terms are defined in Sections 3(a)(9), 13(d), and14(d) of the Exchange Act and the rules thereunder) of “beneficial ownership” (as determinedpursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in theelection of directors (“voting securities”) of the Company that represent thirty-five percent (35%)or more of the combined voting power of the Company’s then outstanding voting securities, otherthan          (i) an acquisition by a trustee or other fiduciary holding securities under anyemployee benefit plan (or related trust) sponsored or maintained by the Company orany person controlled by the Company or by any employee benefit plan (or relatedtrust) sponsored or maintained by the Company or any person controlled by theCompany, or          (ii) an acquisition of voting securities, directly or indirectly by theCompany, or          (iii) an acquisition of voting securities pursuant to a transaction describedin subsection (c) below that would not be a Change in Control under subsection (c),or          (iv) an acquisition of voting securities, directly or indirectly, by a personwho or group which beneficially owns, as of the Effective Date, voting securities ofthe Company that represent five percent (5%) or more of the combined voting power ofthe Company’s outstanding voting securities on such Effective Date;*provided, however*, that, notwithstanding the foregoing, an acquisition of the Company’s securitiesby the Company which causes the Company’s voting securities beneficially owned by a person or groupto represent thirty-five percent (35%) or more of the combined voting power of the Company’s thenoutstanding voting securities shall not constitute an “acquisition” by any person or group forpurposes of this clause (I); *provided further*, that if a person or group shall become thebeneficial owner of thirty-five percent (35%) or more of the combined voting power of the Company’sthen outstanding voting securities by reason of share acquisitions by the Company as describedabove and shall, after such share acquisitions by the Company, become the beneficial owner of anyadditional voting securities of the Company, then such acquisition shall constitute an acquisitionfor purposes of clause (I); andclause (II) is the circumstance of individuals who, as of the Effective Date, constitute the Board(the “Incumbent Board”) ceasing for any reason to constitute at least a majority of the Board;*provided, however,*that any individual becoming a Director subsequent to the Effective Date whoseappointment, election, or nomination for election by the Company’s shareholders was
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approved by a vote of at least a majority of the Directors then comprising the Incumbent Boardshall be considered as though such individual were a member of the Incumbent Board, but excluding,for this purpose, any such individual whose initial assumption of office as a Director occurs as aresult of an actual or threatened election contest with respect to the election or removal ofDirectors or other actual or threatened solicitation of proxies or consents by or on behalf of aperson other than the Board.Notwithstanding the foregoing, clause (II) shall not apply, and the occurrence of clause (I) shallbe sufficient to constitute a Change in Control if the acquisition described in clause (I) is by aStrategic Investor; *provided, however,*that clause (II) shall nonetheless apply if the StrategicInvestor enters into a standstill agreement with the Company (for the duration of such agreement).For purposes of this subsection (a),“Strategic Investor” shall mean any buyer of or investor in ofvoting securities of the Company whose primary business is not financial investing;               (b) the consummation by the Company (whether directly involving the Company or indirectlyinvolving the Company through one or more subsidiaries or intermediaries) of: (i) a merger,consolidation, reorganization, or business combination or (ii) a sale or other disposition of allor substantially all of the Company’s assets, other than a transaction          (I) which results in the Company’s voting securities outstanding immediatelybefore the transaction continuing to represent (either by remaining outstanding orby being converted into voting securities of the Company or the person that, as aresult of the transaction, controls, directly or indirectly, the Company or owns,directly or indirectly, all or substantially all of the Company’s assets orotherwise succeeds to the business of the Company (the Company or such person, the“Company Successor Entity”)), directly or indirectly, more than fifty percent (50%)of the combined voting power of the Company Successor Entity’s outstanding votingsecurities immediately after the transaction, and          (II) after which more than fifty percent (50%) of the members of the board ofdirectors of the Company Successor Entity were members of the Incumbent Board at thetime of the Board’s approval of the agreement providing for the transaction or otheraction of the Board approving the transaction, and          (III) after which no person or group beneficially owns voting securitiesrepresenting thirty-five percent (35%) or more of the combined voting power of theCompany Successor Entity; provided, however, that no person or group shall betreated for purposes of this clause (III) as beneficially owning thirty-five percent(35%) or more of the combined voting power of the Company Successor Entity solely asa result of the voting power held in the Company by such person or group prior tothe consummation of the transaction;               (c) a liquidation or dissolution of the Company;
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               (d) the acquisition, directly or indirectly, by any “person” or “group” (as those terms aredefined in Sections 3(a)(9), 13(d), and 14(d) of the Exchange Act and the rules thereunder) of“beneficial ownership” (as determined pursuant to Rule l3d-3 under the Exchange Act) of securitiesentitled to vote generally in the election of directors (“voting securities”) of CricketCommunications, Inc. (“Cricket”)that represent fifty percent (50%) or more of the combined votingpower of Cricket’s then outstanding voting securities, other than          (i) an acquisition of Cricket’s voting securities, directly or indirectly, bythe Company or any person controlled by the Company, or          (ii) an acquisition of Cricket’s voting securities pursuant to a transactiondescribed in subsection (e) below that would not be a Change in Control undersubsection (e); or               (e) the consummation by Cricket (whether directly involving Cricket or indirectly involvingCricket through one or more subsidiaries or intermediaries) of (i) a merger, consolidation,reorganization, or business combination or (ii) a sale or other disposition of all or substantiallyall of Cricket’s assets, other than a transaction which results in Cricket’s voting securitiesoutstanding immediately before the transaction continuing to represent (either by remainingoutstanding or by being converted into voting securities of Cricket or the person that, as a resultof the transaction, controls, directly or indirectly, Cricket or owns, directly or indirectly, allor substantially all of Cricket’s assets or otherwise succeeds to the business of Cricket (Cricketor such person, the “Cricket Successor Entity “)),directly or indirectly, more than fifty percent(50%) of the combined voting power of the Cricket Successor Entity’s outstanding voting securitiesimmediately after the transaction.For purposes of subsection (a) above, the calculation of voting power shall be made as if the dateof the acquisition were a record date for a vote of the Company’s shareholders, and for purposes ofsubsection (b) above, the calculation of voting power shall be made as if the date of theconsummation of the transaction were a record date for a vote of the Company’s shareholders. Forpurposes of subsection (d) above, the calculation of voting power shall be made as if the date ofthe acquisition were a record date for a vote of Cricket’s shareholders, and for purposes ofsubsection (e) above, the calculation of voting power shall be made as if the date of theconsummation of the transaction were a record date for a vote of Cricket’s shareholders.          1.6. “Code” shall mean the Internal Revenue Code of 1986, as amended.          1.7. “Committee” shall mean the Compensation Committee of the Board, or anothercommittee or subcommittee of the Board, appointed as provided in Section 9.1 or 9.5.          1.8. “Common Stock” shall mean the common stock of the Company, par value $.0001 pershare.          1.9. “Company” shall mean Leap Wireless International, Inc., a Delaware corporation.          1.10. “Consultant” shall mean any consultant or adviser if (a) the consultant oradviser renders bona fide services to the Company or a Subsidiary, (b) the services rendered by
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the consultant or adviser are not in connection with the offer or sale of securities in acapital raising transaction and do not directly or indirectly promote or maintain a market for theCompany’s securities, and (c) the consultant or adviser is a natural person who has contracteddirectly with the Company or a Subsidiary to render such services.          1.11. “Deferred Stock Unit” shall mean a deferred stock unit award awarded underArticle VIII of the Plan.          1.12. “Director” shall mean a member of the Board.          1.13. “DRO” shall mean a domestic relations order as defined by the Code or Title I ofthe Employee Retirement Income Security Act of 1974, as amended, or the rules thereunder.          1.14. “Eligible Individual” means any Employee who has not previously been an Employeeor member of the Board or an Employee or member of the board of directors of any Parent orSubsidiary, or following a bona fide period of non-employment by the Company or a Parent orSubsidiary, if he or she is granted an Award in connection with his or her commencement ofemployment with the Company or a Subsidiary and such grant is an inducement material to his or herentering into employment with the Company or a Subsidiary. The Administrator may, in itsdiscretion, adopt procedures from time to time to ensure that an Employee is eligible toparticipate in the Plan prior to the granting of any Awards to such Employee under the Plan          1.15. “Employee” shall mean any officer or other employee (as defined in accordancewith Section 3401(c) of the Code) of the Company, or of any corporation which is a Subsidiary.          1.16. “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.          1.17. “Fair Market Value” of a share of Common Stock as of a given date shall be: (a)the closing price of a share of Common Stock on the principal exchange on which shares of CommonStock are then trading, if any (or as reported on any composite index which includes such principalexchange), on such date, or if shares were not traded on such date, then on the next preceding dateon which a trade occurred, or (b) if the Common Stock is not publicly traded on an exchange but isquoted on an automated quotation system, the mean between the closing representative bid and askedprices for the Common Stock on such date as reported by such automated quotation system, or (c) ifCommon Stock is not publicly traded on an exchange, and not quoted on an automated quotationsystem, the fair market value of a share of Common Stock as established by the Administrator actingin good faith.          1.18. “Holder” shall mean a person who has been granted an Award.          1.19. “Incentive Stock Option” shall mean an option which conforms to the applicableprovisions of Section 422 of the Code and which is designated as an Incentive Stock Option by theAdministrator.
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          1.20. “Independent Director” shall mean a Director of the Company who is not anEmployee and who qualifies as “independent” within the meaning of Nasdaq Stock Market Rule4200(a)(14), if the Company’s securities are traded on the Nasdaq Global Market, or therequirements of any other established stock exchange on which the Company’s securities are traded,as such rules or requirements may be amended from time to time.          1.21. “Non-Qualified Stock Option” shall mean an Option which is not an IncentiveStock Option.          1.22. “Option” shall mean a stock option granted under Article IV of the Plan. AnOption granted under the Plan shall be a Non-Qualified Stock Option.          1.23. “Parent” shall mean any corporation in an unbroken chain of corporations endingwith the Company if each of the corporations other than the last corporation in the unbroken chainthen owns stock possessing fifty percent (50%) or more of the total combined voting power of allclasses of stock in one of the other corporations in such chain or any other entity whichbeneficially owns directly or indirectly a majority of the outstanding voting stock or voting powerof the Company.          1.24. “Plan” shall mean the 2009 Employment Inducement Equity Incentive Plan of LeapWireless International, Inc.          1.25. “Restricted Stock” shall mean shares of Common Stock awarded under Article VIIof the Plan.          1.26. “Rule 16b-3” shall mean Rule 16b-3 promulgated under the Exchange Act, as suchRule may be amended from time to time.          1.27. “Securities Act” shall mean the Securities Act of 1933, as amended.          1.28. “Subsidiary” shall mean any corporation in an unbroken chain of corporationsbeginning with the Company if each of the corporations other than the last corporation in theunbroken chain then owns stock possessing fifty percent (50%) or more of the total combined votingpower of all classes of stock in one of the other corporations in such chain or any other entity ofwhich a majority of the outstanding voting stock or voting power is beneficially owned directly orindirectly by the Company.          1.29. “Substitute Award” shall mean an Option granted under this Plan upon theassumption of, or in substitution for, outstanding equity awards previously granted by a company orother entity in connection with a corporate transaction, such as a merger, combination,consolidation or acquisition of property or stock; *provided, however,*that in no event shall theterm “Substitute Award” be construed to refer to an award made in connection with the cancellationand repricing of an Option.          1.30. “Termination of Consultancy” shall mean the time when the engagement of a Holderas a Consultant to the Company or a Subsidiary is terminated for any reason, with or without cause,including, but not by way of limitation, by resignation, discharge, death, disability orretirement, but excluding terminations where there is a simultaneous commencement of
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employment with the Company or any Subsidiary. The Administrator, in its absolute discretion,shall determine the effect of all matters and questions relating to Termination of Consultancy,including, but not by way of limitation, the question of whether a Termination of Consultancyresulted from a termination for cause, and all questions of whether a particular leave of absenceconstitutes a Termination of Consultancy.          1.31. “Termination of Directorship” shall mean the time when a Holder who is aDirector ceases to be a Director for any reason, including, but not by way of limitation, atermination by resignation, removal, failure to be elected or reelected, death, disability orretirement. The Administrator, in its absolute discretion, shall determine the effect of allmatters and questions relating to Termination of Directorship, including, but not by way oflimitation, the question of whether a Termination of Directorship resulted from a termination forcause, and all questions of whether a particular leave of absence constitutes a Termination ofDirectorship.          1.32. “Termination of Employment” shall mean the time when the employee-employerrelationship between a Holder and the Company or any Subsidiary is terminated for any reason, withor without cause, including, but not by way of limitation, a termination by resignation, discharge,death, disability or retirement; but excluding (a) terminations where there is a simultaneousreemployment or continuing employment of a Holder by the Company or any Subsidiary, (b) at thediscretion of the Administrator, terminations which result in a temporary severance of theemployee-employer relationship, and (c) at the discretion of the Administrator, terminations whichare followed by the simultaneous establishment of a consulting or directorship relationship by theCompany or a Subsidiary with the former employee. The Administrator, in its absolute discretion,shall determine the effect of all matters and questions relating to Termination of Employment,including, but not by way of limitation, the question of whether a Termination of Employmentresulted from a discharge for cause, and all questions of whether a particular leave of absenceconstitutes a Termination of Employment.**ARTICLE II.****SHARES SUBJECT TO PLAN**          2.1. Shares Subject to Plan. The shares of stock subject to Awards shall be CommonStock, subject to adjustment as provided in Section 10.3. Subject to adjustment as provided inSection 10.3, the aggregate number of such shares which may be issued with respect to Awardsgranted under the Plan shall not exceed 300,000. The shares of Common Stock issuable with respectto such Awards may be either previously authorized but unissued shares or treasury shares.          2.2. Add-Back of Options and Other Rights. If any Award expires, terminates or iscanceled without having been fully exercised, the number of shares subject to such Award but as towhich such Award was not exercised prior to its expiration, termination or cancellation may againbe optioned hereunder, subject to the limitations of Section 2.1. If any shares of RestrictedStock are surrendered by the Holder or repurchased by the Company pursuant to Section 7.4 or 7.5hereof, such shares may again be granted or awarded hereunder, subject to the limitations ofSection 2.1. Furthermore, any shares subject to Awards which are adjusted pursuant to Section 10.3and become exercisable with respect to shares of stock of another
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corporation shall be considered cancelled for purposes of this Section 2.2 and may again begranted or awarded hereunder, subject to the limitations of Section 2.1. Shares of Common Stockwhich are delivered by the Holder or withheld by the Company upon the exercise of any Award underthe Plan, in payment of the exercise or purchase price thereof, or tax withholding thereon, mayagain be granted or awarded hereunder, subject to the limitations of Section 2.1.**ARTICLE III.****GRANTING OF AWARDS**          3.1. Award Agreement. Each Award shall be evidenced by an Award Agreement. TheAdministrator may, in its discretion, include such further provisions and limitations in any AwardAgreement at the time of the grant of such Award which are not inconsistent with the terms of thePlan.          3.2. Limitations Applicable to Section 16 Persons. Notwithstanding any otherprovision of the Plan, the Plan, and any Award granted to any individual who is then subject toSection 16 of the Exchange Act, shall be subject to any additional limitations set forth in anyapplicable exemptive rule under Section 16 of the Exchange Act (including any amendment to Rule16b-3 of the Exchange Act) that are requirements for the application of such exemptive rule. Tothe extent permitted by applicable law, the Plan and Awards granted hereunder shall be deemedamended to the extent necessary to conform to such applicable exemptive rule.          3.3. At-Will Employment. Nothing in the Plan or in any Award Agreement hereundershall confer upon any Holder any right to continue in the employ of the Company or any Subsidiaryor shall interfere with or restrict in any way the rights of the Company and any Subsidiary, whichare hereby expressly reserved, to discharge any Holder at any time for any reason whatsoever or noreason, with or without cause, except to the extent expressly provided otherwise in a writtenemployment agreement between the Holder and the Company or any Subsidiary.**ARTICLE IV.****GRANTING OF OPTIONS**          4.1. Eligibility. Any Eligible Individual selected by the Administrator pursuant toSection 4.2(a)(i) shall be eligible to be granted an Option.          4.2. Granting of Options to Eligible Individuals.               (a) The Administrator shall from time to time, in its absolute discretion, and subject toapplicable limitations of the Plan:          (i) Select from among the Eligible Individuals such of them as in its opinionshould be granted Options;          (ii) Determine the number of shares to be subject to such Options granted tothe selected Eligible Individuals;
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          (iii) Subject to Articles V and VI, determine the terms and conditions of suchOptions, consistent with the Plan (including, without limitation, the exercise priceper share, vesting, exercisability and term of the Option, the manner in which theexercise price shall be paid, the terms and conditions under which the Option may beexercised prior to vesting for restricted shares of Common Stock, the transfer,escrow, repurchase and other restrictions applicable to such restricted shares ofCommon Stock, and the extent to which an election under Section 83(b) of the Codemay be made with respect to such restricted shares of Common Stock).               (b) Upon the selection of an Eligible Individual to be granted an Option, the Administratorshall instruct the Secretary of the Company to issue the Option and may impose such conditions onthe grant of the Option as it deems appropriate.**ARTICLE V.****TERMS OF OPTIONS**          5.1. Option Price. The price per share of the shares subject to each Option grantedto Eligible Individuals shall be set by the Administrator; *provided, however,*that such price shallbe no less than the par value of a share of Common Stock, unless otherwise permitted by applicablestate law.          5.2. Option Term. The term of an Option granted to an Eligible Individual shall beset by the Administrator in its discretion.          5.3. Option Vesting.               (a) The period during which the right to exercise, in whole or in part, an Option granted toan Eligible Individual vests in the Holder shall be set by the Administrator and the Administratormay determine that an Option may not be exercised in whole or in part for a specified period afterit is granted. At any time after grant of an Option, the Administrator may, in its sole andabsolute discretion and subject to whatever terms and conditions it selects, accelerate the periodduring which an Option granted to an Eligible Individual vests.               (b) No portion of an Option granted to an Eligible Individual which is unexercisable atTermination of Employment, Termination of Consultancy or Termination of Directorship, asapplicable, shall thereafter become exercisable, except as may be otherwise provided by theAdministrator either in the Award Agreement or by action of the Administrator following the grantof the Option.          5.4. Substitute Awards. Notwithstanding any of the foregoing provisions of thisArticle V to the contrary, in the case of an Option that is a Substitute Award, the price per shareof the shares subject to such Option may be less than the Fair Market Value per share on the dateof grant, *provided,*that the excess of: (a) the aggregate Fair Market Value (as of the date suchSubstitute Award is granted) of the shares subject to the Substitute Award; over (b) the aggregateexercise price thereof, does not exceed the excess of: (c) the aggregate fair market value (as ofthe time immediately preceding the transaction giving rise to the Substitute Award,
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such fair market value to be determined by the Administrator) of the shares of the predecessorentity that were subject to the grant assumed or substituted for by the Company; over (d) theaggregate exercise price of such shares.**ARTICLE VI.****EXERCISE OF OPTIONS**          6.1. Partial Exercise. An exercisable Option may be exercised in whole or in part.However, an Option shall not be exercisable with respect to fractional shares and the Administratormay require that, by the terms of the Option, a partial exercise be with respect to a minimumnumber of shares.          6.2. Manner of Exercise. All or a portion of an exercisable Option shall be deemedexercised upon delivery of all of the following to the Secretary of the Company (or the Companyoffice designated by the Secretary of the Company):               (a) A written notice complying with the applicable rules established by the Administratorstating that the Option, or a portion thereof, is exercised. The notice shall be signed by theHolder or other person then entitled to exercise the Option or such portion of the Option;               (b) Such representations and documents as the Administrator, in its absolute discretion, deemsnecessary or advisable to effect compliance with all applicable provisions of the Securities Actand any other federal or state securities laws or regulations. The Administrator may, in itsabsolute discretion, also take whatever additional actions it deems appropriate to effect suchcompliance including, without limitation, placing legends on share certificates and issuingstop-transfer notices to agents and registrars;               (c) In the event that the Option shall be exercised pursuant to Section 9.1 by any person orpersons other than the Holder, appropriate proof of the right of such person or persons to exercisethe Option; and               (d) Full cash payment to the Secretary of the Company for the shares with respect to which theOption, or portion thereof, is exercised. However, the Administrator may, in its discretion, (i)allow payment, in whole or in part, through the delivery of shares of Common Stock which have beenowned by the Holder for at least six months, duly endorsed for transfer to the Company with a FairMarket Value on the date of delivery equal to the aggregate exercise price of the Option orexercised portion thereof; (ii) allow payment, in whole or in part, through the surrender of sharesof Common Stock then issuable upon exercise of the Option having a Fair Market Value on the date ofOption exercise equal to the aggregate exercise price of the Option or exercised portion thereof;(iii) allow payment, in whole or in part, through the delivery of a notice that the Holder hasplaced a market sell order with a broker with respect to shares of Common Stock then issuable uponexercise of the Option, and that the broker has been directed to pay a sufficient portion of thenet proceeds of the sale to the Company in satisfaction of the Option exercise price, *provided*thatpayment of such proceeds is then made to the Company upon settlement of such sale; or (iv) allowpayment through any combination of the
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consideration provided in the foregoing subparagraphs (i), (ii) and (iii). Payment in themanner prescribed by the preceding sentences shall not be permitted to the extent that theAdministrator determines that payment in such manner may result in an extension or maintenance ofcredit, an arrangement for the extension of credit, or a renewal of an extension of credit in theform of a personal loan to or for any Director or executive officer of the Company that isprohibited by Section 13(k) of the Exchange Act or other applicable law.          6.3. Conditions to Issuance of Stock Certificates. The Company shall not be requiredto issue or deliver any certificate or certificates for shares of stock purchased upon the exerciseof any Option or portion thereof prior to fulfillment of all of the following conditions:               (a) The admission of such shares to listing on all stock exchanges on which such class ofstock is then listed;               (b) The completion of any registration or other qualification of such shares under any stateor federal law, or under the rulings or regulations of the Securities and Exchange Commission orany other governmental regulatory body which the Administrator shall, in its absolute discretion,deem necessary or advisable;               (c) The obtaining of any approval or other clearance from any state or federal governmentalagency which the Administrator shall, in its absolute discretion, determine to be necessary oradvisable;               (d) The lapse of such reasonable period of time following the exercise of the Option as theAdministrator may establish from time to time for reasons of administrative convenience; and               (e) The receipt by the Company of full payment for such shares, including payment of anyapplicable withholding tax, which in the discretion of the Administrator may be in the form ofconsideration used by the Holder to pay for such shares under Section 6.2(d), subject to Section10.4.          6.4. Rights as Stockholders. Holders shall not be, nor have any of the rights orprivileges of, stockholders of the Company in respect of any shares purchasable upon the exerciseof any part of an Option unless and until certificates representing such shares have been issued bythe Company to such Holders.          6.5. Exercise Ownership and Transfer Restrictions. The Administrator, in its absolutediscretion, may impose such restrictions on the exercise of an Option and the ownership andtransferability of the shares purchasable upon the exercise of an Option as it deems appropriate.Any such restriction shall be set forth in the respective Award Agreement and may be referred to onthe certificates evidencing such shares.          6.6. Limitations on Exercise of Options Granted to Employees and Consultants. Unlessotherwise provided by the Administrator in the Award Agreement, no Option granted to an EligibleIndividual may be exercised to any extent by anyone after the first to occur of the followingevents:
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               (a) The expiration of twelve (12) months from the date of the Holder’s death;               (b) The expiration of twelve (12) months from the date of the Holder’s Termination ofEmployment, Termination of Consultancy or Termination of Directorship, as applicable, asapplicable, by reason of his or her permanent and total disability (within the meaning of Section22(e)(3) of the Code);               (c) The expiration of three months from the date of the Holder’s Termination of Employment,Termination of Consultancy or Termination of Directorship, as applicable, for any reason other thansuch Holder’s termination by the Company or a Subsidiary for “Cause” (as defined in the Holder’semployment or consulting agreement with the Company in effect on the grant date of the Option, or,if the Holder does not have an employment or consulting agreement with the Company or the Holder’semployment or consulting agreement does not include a definition of “Cause”, as defined in theAward Agreement), death or permanent and total disability, unless the Holder dies within saidthree-month period;               (d) The Holder’s termination by the Company or a Subsidiary for “Cause” (as defined in theHolder’s employment or consulting agreement with the Company in effect on the grant date of theOption, or, if the Holder does not have an employment or consulting agreement with the Company orthe Holder’s employment or consulting agreement does not include a definition of “Cause”, asdefined in the Award Agreement); or               (e) The expiration of ten (10) years from the date the Option was granted.          6.7. Additional Limitations on Exercise of Options. Holders may be required to complywith any timing or other restrictions with respect to the settlement or exercise of an Option,including a window-period limitation, as may be imposed in the discretion of the Administrator.**ARTICLE VII.****AWARDING OF RESTRICTED STOCK**          7.1. Eligibility. Shares of Restricted Stock may be awarded to any EligibleIndividual whom the Administrator determines determines should receive such an Award.          7.2. Award of Restricted Stock.               (a) The Administrator may from time to time, in its absolute discretion:          (i) Select from among the Eligible Individuals such of them as in its opinionshould be awarded Restricted Stock; and          (ii) Determine the terms and conditions applicable to such Restricted Stock,consistent with the Plan.
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               (b) The Administrator shall establish the purchase price, if any, and form of payment forRestricted Stock; *provided, however,*that such purchase price shall be no less than the par valueof the Common Stock to be purchased, unless otherwise permitted by applicable state law. In allcases, legal consideration shall be required for each issuance of Restricted Stock.               (c) Upon the selection of an Eligible Individual to be awarded Restricted Stock, theAdministrator shall instruct the Secretary of the Company to issue such Restricted Stock and mayimpose such conditions on the issuance of such Restricted Stock, as it deems appropriate.          7.3. Rights as Stockholders. Subject to Section 7.4, upon delivery of the shares ofRestricted Stock to the escrow holder pursuant to Section 7.6, the Holder shall have, unlessotherwise provided by the Administrator, all the rights of a stockholder with respect to saidshares, subject to the restrictions in his or her Award Agreement, including the right to receiveall dividends and other distributions paid or made with respect to the shares; *provided, however,*that, in the discretion of the Administrator, any extraordinary distributions with respect to theCommon Stock shall be subject to the restrictions set forth in Section 7.4.          7.4. Restriction. All shares of Restricted Stock issued under the Plan (including anyshares received by Holders thereof with respect to shares of Restricted Stock as a result of stockdividends, stock splits or any other form of recapitalization) shall, in the terms of eachindividual Award Agreement, be subject to such restrictions as the Administrator shall provide,which restrictions may include, without limitation, restrictions concerning voting rights andtransferability and restrictions based on duration of employment or consultancy with the Company,Company performance and individual performance; *provided, however,*by action taken after the sharesof Restricted Stock are issued, the Administrator may, in its sole and absolute discretion andsubject to whatever terms and conditions it determines, remove any or all of the restrictionsimposed by the terms of the Award Agreement. Shares of Restricted Stock may not be sold orencumbered until all restrictions are terminated or expire. Except as otherwise provided in theAward Agreement, if no consideration was paid by the Holder upon issuance, a Holder’s rights inunvested Shares of Restricted Stock shall lapse, and such shares of Restricted Stock shall besurrendered to the Company without consideration, upon Termination of Employment, Termination ofConsultancy or Termination of Directorship, as applicable.          7.5. Repurchase of Restricted Stock. The Administrator may provide in the terms ofeach individual Award Agreement that the Company shall have the right to repurchase from the Holderthe shares of Restricted Stock then subject to restrictions under the Award Agreement immediatelyupon a Termination of Employment, Termination of Consultancy or Termination of Directorship, asapplicable, at a cash price per share equal to the price paid by the Holder for such RestrictedStock.          7.6. Escrow. The Secretary of the Company or such other escrow holder as theAdministrator may appoint shall retain physical custody of each certificate representing shares ofRestricted Stock until all of the restrictions imposed under the Award Agreement with respect tothe shares evidenced by such certificate expire or shall have been removed.
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          7.7. Legend. In order to enforce the restrictions imposed upon shares of RestrictedStock hereunder, the Administrator shall cause a legend or legends to be placed on certificatesrepresenting all shares of Restricted Stock that are still subject to restrictions under AwardAgreements, which legend or legends shall make appropriate reference to the conditions imposedthereby.          7.8. Code Section 83(b) Election. If a Holder makes an election under Section 83(b)of the Code, or any successor section thereto, to be taxed with respect to the Restricted Stock asof the date of transfer of the shares of Restricted Stock rather than as of the date or dates uponwhich the Holder would otherwise be taxable under Section 83(a) of the Code, the Holder shalldeliver a copy of such election to the Company immediately after filing such election with theInternal Revenue Service.          7.9. Conditions to Issuance of Shares of Common Stock. The Company shall not berequired to issue or deliver any certificate or certificates for shares of Restricted Stock priorto fulfillment of all of the conditions set forth in Section 6.3.**ARTICLE VIII.****AWARDING OF DEFERRED STOCK UNITS**          8.1. Eligibility. Deferred Stock Unit awards may be awarded to any EligibleIndividual whom the Administrator who the Administrator determines should receive such an Award. ADeferred Stock Unit shall represent the right to receive shares of Common Stock in accordance withthis Article VIII.          8.2. Awards of Deferred Stock Units.               (a) The Administrator may from time to time, in its absolute discretion:          (i) Select from among the Eligible Individuals such of them as in its opinionshould be awarded Deferred Stock Unit awards;          (ii) Determine the number of Deferred Stock Units to be awarded; and          (iii) Determine the terms and conditions applicable to such Deferred Stock Unitaward, consistent with the Plan.               (b) The Administrator shall establish the purchase price, if any, and form of payment forDeferred Stock Unit awards; *provided, however,*that such purchase price shall be no less than thepar value of the Common Stock to be purchased, unless otherwise permitted by applicable state law.In all cases, legal consideration shall be required for each issuance of shares of Common Stockpursuant to Deferred Stock Units.               (c) The Administrator shall determine the terms regarding the issuance of shares of CommonStock issuable pursuant to a Deferred Stock Unit award and may provide
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that such terms are subject to an election by the Eligible Individual to whom such Award is tobe or has been awarded in accordance with Section 8.5. The Administrator may provide for thedeferral of the issuance of the shares of Common Stock issuable pursuant to a Deferred Stock Unitaward at the election of the Employee, Director or Consultant to whom the Award is to be or hasbeen awarded.          8.3. Issuance of Common Stock; Rights as Stockholder. Shares of Common Stockunderlying a Deferred Stock Unit award will not be issued until the Deferred Stock Unit award hasvested, pursuant to a vesting schedule or performance goals set by the Administrator, and suchshares of Common Stock become issuable pursuant to the terms of the Deferred Stock Unit award.Unless otherwise provided by the Administrator, a Holder of a Deferred Stock Unit award shall haveno rights as a Company stockholder with respect to the shares of Common Stock underlying suchDeferred Stock Unit award until such time as the Award has vested and the Shares of Common Stockunderlying the Award have been issued pursuant to the Deferred Stock Unit award.          8.4. Form of Payment. Payment of the amount determined under Section 8.2(b) aboveshall be in cash, in Common Stock or a combination of both, as determined by the Administrator.          8.5. Conditions to Issuance of Shares of Common Stock. The Company shall not berequired to issue or deliver any certificate or certificates for shares of Common Stock issuablepursuant to the terms of a Deferred Stock Unit award prior to fulfillment of all of the conditionsset forth in Section 6.3.**ARTICLE IX.****ADMINISTRATION**          9.1. Administrator. The Plan will be administered by a Committee of two or moreIndependent Directors, and the term “Administrator” will apply to any person or persons to whomsuch authority has been delegated. As of the Effective Date, the Plan will be administered by theCompensation Committee of the Board. The Board may at any time re-vest in the Board theadministration of the Plan and thereafter for purposes of the Plan the term “Administrator” as usedin this Plan will be deemed to refer to the Board; *provided*, *however*, that any action taken by theBoard in connection with the administration of the Plan shall not be deemed approved by the Boardunless such action is approved by a majority of the Independent Directors. Appointment ofCommittee members shall be effective upon acceptance of appointment. Committee members may resignat any time by delivering written notice to the Board. Vacancies in the Committee may be filled bythe Board. To the extent desirable to qualify transactions hereunder as exempt under Rule 16b-3promulgated under the Exchange Act, Awards under the Plan may be made by the entire Board(*provided*, *however*, that any action taken by the Board in connection with the administration of thePlan shall not be deemed approved by the Board unless such action is approved by a majority of theIndependent Directors) or a Committee meeting the requirements set forth above and such otherrequirements as may be established from time to time by the Securities and Exchange Commission forAwards intended to qualify for exemption under Rule 16b-3 promulgated under the Exchange Act.
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          9.2. Duties and Powers of Committee. It shall be the duty of the Committee to conductthe general administration of the Plan in accordance with its provisions. The Committee shall havethe power to interpret the Plan and the Award Agreements, and to adopt such rules for theadministration, interpretation and application of the Plan as are consistent therewith, and tointerpret, amend or revoke any such rules. The Committee shall also have the power to amend anyAward Agreement provided that the rights or obligations of the Holder of the Award that is thesubject of any such Award Agreement are not affected adversely; *provided, however,*that without theapproval of the stockholders of the Company, neither the Committee nor the Board shall authorizethe amendment of any outstanding Option to reduce its exercise price. Notwithstanding anythingcontained herein, no Option shall be canceled and replaced with the grant of an Option having alesser exercise price without the approval of the stockholders of the Company. Grants of Optionsunder the Plan need not be the same with respect to each Holder. In its absolute discretion, theBoard may at any time and from time to time exercise any and all rights and duties of the Committeeunder the Plan.          9.3. Majority Rule; Unanimous Written Consent. The Committee shall act by a majorityof its members in attendance at a meeting at which a quorum is present or by a memorandum or otherwritten instrument signed by all members of the Committee.          9.4. Compensation; Professional Assistance; Good Faith Actions. Members of theCommittee shall receive such compensation, if any, for their services as members as may bedetermined by the Board. All expenses and liabilities which members of the Committee incur inconnection with the administration of the Plan shall be borne by the Company. The Committee may,with the approval of the Board, employ attorneys, consultants, accountants, appraisers, brokers orother persons. The Committee, the Company and the Company’s officers and Directors shall beentitled to rely upon the advice, opinions or valuations of any such persons. All actions takenand all interpretations and determinations made by the Committee or the Board in good faith shallbe final and binding upon all Holders, the Company and all other interested persons. No members ofthe Committee or Board shall be personally liable for any action, determination or interpretationmade in good faith with respect to the Plan or Awards, and all members of the Committee and theBoard shall be fully protected by the Company in respect of any such action, determination orinterpretation.**ARTICLE X.****MISCELLANEOUS PROVISIONS**          10.1. Transferability of Awards.               (a) Except as otherwise provided in Section 10.1(b):          (i) No Award or interest or right therein may be sold, pledged, assigned ortransferred in any manner other than by will or the laws of descent and distributionor, subject to the consent of the Administrator, pursuant to a DRO; *provided,however,*after the shares underlying an Award have been issued, and all restrictionsapplicable to such shares have terminated or lapsed, then such shares may be sold,pledged, assigned or transferred;
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          (ii) The interest or rights of a Holder, or his or her successors in interest,in an Award shall not be subject to any liability for the debts, contracts orengagements of the Holder or his or her successors in interest, and no Award orinterest or right therein shall be subject to disposition by transfer, alienation,anticipation, pledge, encumbrance, assignment or any other means whether suchdisposition be voluntary or involuntary or by operation of law by judgment, levy,attachment, garnishment or any other legal or equitable proceedings (includingbankruptcy), and any attempted disposition thereof shall be null and void and of noeffect, except to the extent that such disposition is permitted by paragraph (i);and          (iii) During the lifetime of the Holder, only he or she may exercise an Option(or any portion thereof) granted to him or her under the Plan, unless it has beendisposed of pursuant to a DRO or to a Permitted Transferee. After the death of theHolder, any exercisable portion of an Option may, prior to the time when suchportion becomes unexercisable under the Plan or the applicable Award Agreement, beexercised by his personal representative or by any person empowered to do so underthe deceased Holder’s will or under the then applicable laws of descent anddistribution.               (b) Notwithstanding Section 10.1(a), the Administrator, in its sole discretion, may determineto permit a Holder to transfer a Non-Qualified Stock Option to any one or more PermittedTransferees (as defined below), subject to the following terms and conditions: (i) a Non-QualifiedStock Option transferred to a Permitted Transferee shall not be assignable or transferable by thePermitted Transferee other than by will or the laws of descent and distribution; (ii) anyNon-Qualified Stock Option which is transferred to a Permitted Transferee shall continue to besubject to all the terms and conditions of the Non-Qualified Stock Option as applicable to theoriginal Holder (other than the ability to further transfer the Non-Qualified Stock Option); and(iii) the Holder and the Permitted Transferee shall execute any and all documents requested by theAdministrator, including, without limitation documents to (A) confirm the status of the transfereeas a Permitted Transferee, (B) satisfy any requirements for an exemption for the transfer underapplicable federal and state securities laws and (C) evidence the transfer. For purposes of thisSection 10.1(b), “Permitted Transferee” shall mean, with respect to a Holder, any child, stepchild,grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew,mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law,including adoptive relationships, any person sharing the Holder’s household (other than a tenant oremployee), a trust in which these persons (or the Holder) control the management of assets, and anyother entity in which these persons (or the Holder) own more than fifty percent (50%) of the votinginterests, or any other transferee specifically approved by the Administrator after taking intoaccount any state or federal tax or securities laws applicable to transferable Non-Qualified StockOptions.     10.2. Amendment Suspension or Termination of the Plan. Except as otherwise providedin this Section 10.2, the Plan may be wholly or partially amended or otherwise modified, suspendedor terminated at any time or from time to time by the Board. No amendment, suspension ortermination of the Plan shall, without the consent of the Holder, alter or impair any rights orobligations under any Award theretofore granted or awarded, unless the
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Award itself otherwise expressly so provides. No Awards may be granted or awarded during anyperiod of suspension or after termination of the Plan, and in no event may any Award be grantedunder the Plan after the expiration of ten (10) years from the date the Plan is adopted by theBoard.          10.3. Changes in Common Stock or Assets of the Company, Acquisition or Liquidation of theCompany and Other Corporate Events.               (a) Subject to Section 10.3(d), in the event that any dividend or other distribution (whetherin the form of cash, Common Stock, other securities or other property), recapitalization,reclassification, stock split, reverse stock split, reorganization, merger, consolidation,split-up, spin-off, combination, repurchase, liquidation, dissolution, or sale, transfer, exchangeor other disposition of all or substantially all of the assets of the Company, or exchange ofCommon Stock or other securities of the Company, issuance of warrants or other rights to purchaseCommon Stock or other securities of the Company, or other similar corporate transaction or eventaffects the Common Stock, then the Administrator shall equitably adjust any or all of the followingin order to prevent dilution or enlargement of the benefits or potential benefits intended to bemade available under the Plan or with respect to an Award:          (i) The number and kind of shares of Common Stock (or other securitiesor property) with respect to which Awards may be granted or awarded(including, but not limited to, adjustments of the limitations in Section2.1 on the maximum number and kind of shares which may be issued);          (ii) The number and kind of shares of Common Stock (or other securitiesor property) subject to outstanding Awards; and          (iii) The grant or exercise price with respect to any Award;*provided, however,*that no such adjustment shall be made in the event of ordinary cash dividendswith respect to the Common Stock.               (b) Subject to Section 10.3(d), in the event of a Change in Control, or any transaction orevent described in Section 10.3(a), or any unusual or nonrecurring transactions or events affectingthe Company, any affiliate of the Company, or the financial statements of the Company or anyaffiliate, or of changes in applicable laws, regulations or accounting principles, theAdministrator, in its sole and absolute discretion, and on such terms and conditions as it deemsappropriate, either by the terms of the Award or by action taken prior to the occurrence of suchtransaction or event and either automatically or upon the Holder’s request, is hereby authorized totake any one or more of the following actions whenever the Administrator determines that suchaction is appropriate and equitable in order to prevent dilution or enlargement of the benefits orpotential benefits intended to be made available under the Plan or with respect to any Award underthe Plan, to facilitate such transactions or events or to give effect to such changes in laws,regulations or principles:          (i) To provide for either the purchase of such Award for an amount of cashequal to the amount that could have been obtained upon the
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exercise, vesting or distribution of such Award, or realization of the Holder’s rights under such Award,had such Award been currently and fully exercisable or distributable for all of theshares subject thereto and had all of the shares subject to such Award beencurrently and fully vested or distributable and had any and all restrictions on suchshares currently and fully terminated and lapsed;          (ii) To provide that such Award cannot be exercised on or after such Change inControl, transaction or event; *provided, however,*that, immediately prior to suchChange in Control, transaction or event, (A) any such Award shall automaticallybecome fully vested and exercisable for any and all of the shares at the timesubject to such Award and shall be exercisable for any or all of those shares asfully-vested shares, and (B) any and all of the restricted shares granted orpurchased pursuant to any Award shall automatically cease to be subject to any andall restrictions on such shares and such restrictions shall terminate and lapse;          (iii) To provide that such Award shall be exercisable, vested and/ordistributable as to any and all shares covered thereby, notwithstanding anything tothe contrary in Section 5.3 or the provisions of such Award;          (iv) To provide that such Award shall be assumed by the successor or survivorcorporation (or a parent thereof), or shall be substituted for by comparable rightswith respect to the capital stock of the successor or survivor corporation (or aparent thereof), with appropriate and equitable adjustments as to the number andkind of shares and prices;          (v) To make adjustments in the number and type of shares of Common Stock (orother securities or property) subject to such Award; and          (vi) To provide that such restrictions imposed under such Award upon any andall shares purchased upon exercise of the Award, and any and all of shares grantedor awarded pursuant to the Award, shall terminate and lapse.               (c) The Company shall provide all Holders, in the event of any Change in Control (other than aChange in Control described in Section 1.5(a) or (b)) or any other transaction or event describedin Section 10.3(b), with:          (i) twenty (20) days’ prior written notice (or such lesser prior written noticeas the Administrator determines, in its discretion, is appropriate oradministratively practicable under the circumstances) of:               (A) any such Change in Control; and               (B) in the event of any such Change in Control or any other such transaction orevent, the action, if any, which the Administrator intends to take under Section 10.3(b); *provided*that no notice shall be required under this
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subparagraph (B) if the Administrator does not intend to take any action underSection 10.3(b); and          (ii) an opportunity to exercise each outstanding Award held by such Holder, tothe extent such Award is exercisable pursuant to the terms hereof or thereof, whichexercise may be conditioned on the consummation of such Change in Control,transaction or event.               (d) No such adjustment or action shall be authorized to the extent such adjustment or actionwould result in short-swing profits liability under Section 16 or violate the exemptive conditionsof Rule 16b-3 unless the Administrator determines that the Award is not to comply with suchexemptive conditions. The number of shares of Common Stock subject to any Award shall always berounded to the next whole number.               (e) The existence of the Plan, the Award Agreement and the Awards granted hereunder shall notaffect or restrict in any way the right or power of the Company or the stockholders of the Companyto make or authorize any adjustment, recapitalization, reorganization or other change in theCompany’s capital structure or its business, any merger or consolidation of the Company, any issueof stock or of options, warrants or rights to purchase stock or of bonds, debentures, preferred orprior preference stocks whose rights are superior to or affect the Common Stock or the rightsthereof or which are convertible into or exchangeable for Common Stock, or the dissolution orliquidation of the Company, or any sale or transfer of all or any part of its assets or business,or any other corporate act or proceeding, whether of a similar character or otherwise.               (f) In the event of any Change in Control or any other transaction described in Section10.3(b), for reasons of administrative convenience, the Company in its sole discretion may refuseto permit the exercise of any Award during a period of thirty (30) days prior to the consummationof any such transaction.          10.4. Tax Withholding. The Company shall be entitled to require payment in cash ordeduction from other compensation payable to each Holder of any sums required by federal, state orlocal tax law to be withheld with respect to the issuance, vesting, exercise or payment of anyAward. The Administrator may in its discretion and in satisfaction of the foregoing requirementallow such Holder to elect to have the Company withhold shares of Common Stock otherwise issuableunder such Award (or allow the return of shares of Common Stock) having a Fair Market Value equalto the sums required to be withheld or, to the extent allowed by applicable laws, elect to pay suchsums through the delivery of a notice that Holder has placed a market sell order with a broker withrespect to shares of Common Stock subject to issuance, vesting, or payment under such Award andthat the broker has been directed to pay a sufficient portion of the net proceeds of the sale tothe Company in satisfaction of such tax withholding. Notwithstanding any other provision of thePlan, the number of shares of Common Stock which may be withheld with respect to the issuance,vesting, exercise or payment of any Award (or which may be repurchased from the Holder of suchAward within six months after such shares of Common Stock were acquired by the Holder from theCompany) in order to satisfy the Holder’s federal and state income and payroll tax liabilities withrespect to the issuance, vesting, exercise or payment of the Award shall be limited to the number of shares
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which have a Fair Market Value on the date of withholding or repurchase equal to the aggregateamount of such liabilities based on the minimum statutory withholding rates for federal and statetax income and payroll tax purposes that are applicable to such supplemental taxable income.          10.5. Loans. The Administrator may, in its discretion, extend one or more loans toEligible Individuals in connection with the exercise of an Award granted under the Plan, or theissuance of restricted Common Stock upon the exercise of an Option. The terms and conditions ofany such loan shall be set by the Administrator. Notwithstanding the foregoing, no loan shall bemade to an Eligible Individual under this Section 10.5 to the extent such loan shall result in anextension or maintenance of credit, an arrangement for the extension of credit, or a renewal of anextension of credit in the form of a personal loan to or for any Director or executive officer ofthe Company that is prohibited by Section 13(k) of the Exchange Act or other applicable law. Inthe event that the Administrator determines in its discretion that any loan under this Section 10.5may be or will become prohibited by Section 13(k) of the Exchange Act or other applicable law, theAdministrator may provide that such loan shall be immediately due and payable in full and may takeany other action in connection with such loan as the Administrator determines in its discretion tobe necessary or appropriate for the repayment, cancellation or extinguishment of such loan.          10.6. Effect of Plan upon Compensation Plans. The adoption of the Plan shall notaffect any other compensation or incentive plans in effect for the Company or any Subsidiary.Nothing in the Plan shall be construed to limit the right of the Company (a) to establish any otherforms of incentives or compensation for Employees, Consultants or Directors of the Company or anySubsidiary, or (b) to grant or assume options or other rights or awards otherwise than under thePlan in connection with any proper corporate purpose including but not by way of limitation, thegrant or assumption of options in connection with the acquisition by purchase, lease, merger,consolidation or otherwise, of the business, stock or assets of any corporation, partnership,limited liability company, firm or association.          10.7. Compliance with Laws. The Plan, the granting and vesting of Awards under thePlan and the issuance and delivery of shares of Common Stock and the payment of money under thePlan or under Awards granted or awarded hereunder are subject to compliance with all applicablefederal and state laws, rules and regulations (including but not limited to state and federalsecurities law and federal margin requirements) and to such approvals by any listing, regulatory orgovernmental authority as may, in the opinion of counsel for the Company, be necessary or advisablein connection therewith. Any securities delivered under the Plan shall be subject to suchrestrictions, and the person acquiring such securities shall, if requested by the Company, providesuch assurances and representations to the Company as the Company may deem necessary or desirableto assure compliance with all applicable legal requirements. To the extent permitted by applicablelaw, the Plan and Awards granted or awarded hereunder shall be deemed amended to the extentnecessary to conform to such laws, rules and regulations.          10.8. Stockholder Approval Not Required. It is expressly intended that approval ofthe Company’s stockholders not be required as a condition of the effectiveness of the Plan, and thePlan’s provisions shall be interpreted in a manner consistent with such intent for all purposes.Specifically, Rule 4350(i) promulgated by The Nasdaq Stock Market generally requires stockholder approval for stock option plans or other equity compensation arrangements
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adopted by companies whose securities are listed on the Nasdaq Global Market pursuant to whichstock awards or stock may be acquired by officers, directors, employees, or consultants of suchcompanies. Nasdaq Stock Market Rule 4350(i)(1)(A)(iv) provides an exception to this requirementfor issuances of securities to a person not previously an employee or director of the issuer, orfollowing a bona fide period of non-employment, as an inducement material to the individual’sentering into employment with the issuer, provided such issuances are approved by either theissuer’s independent compensation committee or a majority of the issuer’s independent directors.Notwithstanding anything to the contrary herein, Awards under this Plan may only be made toEmployees who have not previously been an Employee or member of the Board of the Company or anEmployee or director of a Parent or Subsidiary, or following a bona fide period of non-employmentby the Company or a Parent or Subsidiary, as an inducement material to the Employee’s entering intoemployment with the Company or a Subsidiary. Awards under the Plan will be approved as set forthin Section 9.1 above by (i) the Committee, provided it is comprised solely of two or moreIndependent Directors or (ii) a majority of the Company’s Independent Directors. Accordingly,pursuant to Nasdaq Stock Market Rule 4350(i)(1)(A)(iv), the issuance of Awards and the shares ofCommon Stock issuable upon exercise or vesting of such Awards pursuant to this Plan are not subjectto the approval of the Company’s stockholders.          10.9. Section 409A. To the extent that the Administrator determines that any Awardgranted under the Plan is subject to Section 409A of the Code, the Award Agreement evidencing suchAward shall incorporate the terms and conditions required by Section 409A of the Code. To theextent applicable, the Plan and Award Agreements shall be interpreted in accordance with Section409A of the Code and Department of Treasury regulations and other interpretive guidance issuedthereunder, including without limitation any such regulations or other guidance that may be issuedafter the adoption of the Plan. Notwithstanding any provision of the Plan to the contrary, in theevent that following the adoption of the Plan the Administrator determines that any Award may besubject to Section 409A of the Code and related Department of Treasury guidance (including suchDepartment of Treasury guidance as may be issued after the adoption of the Plan), the Administratormay adopt such amendments to the Plan and the applicable Award Agreement or adopt other policiesand procedures (including amendments, policies and procedures with retroactive effect), or take anyother actions, that the Administrator determines are necessary or appropriate to (a) exempt theAward from Section 409A of the Code and/or preserve the intended tax treatment of the benefitsprovided with respect to the Award, or (b) comply with the requirements of Section 409A of the Codeand related Department of Treasury guidance.          10.10. Unfunded Status of Awards. The Plan is intended to be an “unfunded” plan forincentive compensation. With respect to any payments not yet made to a Holder pursuant to anAward, nothing contained in the Plan or any Award Agreement shall give the Holder any rights thatare greater than those of a general creditor of the Company or any Parent or Subsidiary.          10.11. Titles. Titles are provided herein for convenience only and are not to serveas a basis for interpretation or construction of the Plan.
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          10.12. Governing Law. The Plan and any agreements hereunder shall be administered,interpreted and enforced under the internal laws of the State of Delaware without regard toconflicts of laws thereof.
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