exv10w1






Exhibit 10.1




OCLARO, INC.

AMENDED AND RESTATED 2004 STOCK INCENTIVE PLAN




1. Purpose




     The purpose of this Amended and Restated 2004 Stock Incentive Plan (the “Plan”) of Oclaro,
Inc. a Delaware corporation (the “Company”), is to advance the interests of the Company’s
stockholders by enhancing the Company’s ability to attract, retain and motivate persons who are
expected to make important contributions to the Company and by providing such persons with equity
ownership opportunities and performance-based incentives that are intended to align their interests
with those of the Company’s stockholders. Except where the context otherwise requires, the term
“Company” shall include any of Oclaro, Inc.’s present or future parent or subsidiary corporations
as defined in Sections 424(e) or (f) of the Internal Revenue Code of 1986, as amended, and any
regulations promulgated thereunder (the “Code”) and any other business venture (including, without
limitation, joint venture or limited liability company) in which Oclaro, Inc. has a controlling
interest, as determined by the Board of Directors of the Company (the “Board”).



2. Eligibility




     All of the Company’s employees, officers, directors, consultants and advisors are eligible to
be granted options, stock appreciation rights, restricted stock and other stock-based awards (each,
an “Award”) under the Plan. Each person who receives an Award under the Plan is deemed a
“Participant”.



3. Administration and Delegation





     (a) Administration by Board of Directors. The Plan will be administered by the
Board. The Board shall have authority to grant Awards and to adopt, amend and repeal such
administrative rules, guidelines and practices relating to the Plan as it shall deem
advisable. The Board may construe and interpret the terms of the Plan and any Award
agreements entered into under the Plan. The Board may correct any defect, supply any
omission or reconcile any inconsistency in the Plan or any Award in the manner and to the
extent it shall deem expedient to carry the Plan into effect and it shall be the sole and
final judge of such expediency. All decisions by the Board shall be made in the Board’s sole
discretion and shall be final and binding on all persons having or claiming any interest in
the Plan or in any Award. No director or person acting pursuant to the authority delegated
by the Board shall be liable for any action or determination relating to or under the Plan
made in good faith.




     (b) Appointment of Committees. To the extent permitted by applicable law, the
Board may delegate any or all of its powers under the Plan to one or more committees or
subcommittees of the Board (a “Committee”). All references in the Plan to the “Board” shall
mean the Board or a Committee of the Board or the officers referred to in Section 3(c) to
the extent that the Board’s powers or authority under the Plan have been delegated to such
Committee or officers.




     (c) Delegation to Officers. To the extent permitted by applicable law, the
Board may delegate to one or more officers of the Company the power to grant Awards to
employees or officers of the Company or any of its present or future subsidiary corporations
and to exercise such other powers under the Plan as the Board may determine, provided that
the Board shall fix the terms of the Awards to be granted by such officers (including the
exercise price of such Awards, which may include a formula by which the exercise price will
be determined) and the maximum number of shares subject to Awards that the officers may
grant; provided further, however, that no officer shall be authorized to grant Awards to any
“executive officer” of the Company (as defined by Rule 3b-7 under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”)) or to any “officer” of the Company (as defined
by Rule 16a-1 under the Exchange Act).




     (d) Awards to Non-Employee Directors. Discretionary Awards to non-employee
directors will only be granted and administered by a Committee, all of the members of which
are independent as defined by Section 4200(a)(15) of the NASDAQ Marketplace Rules.



 









 





4. Stock Available for Awards





     (a) Number of Shares. Subject to adjustment under Section 10, Awards may be
made under the Plan for up to 7,800,000 shares of common stock, $.01 par value per share, of
the Company (the “Common Stock”). Full value awards granted under the Plan, after the
approval of this provision by the stockholders at the Company’s 2010 Annual Stockholders
Meeting, shall count as 1.25 share of Common Stock for purposes of the share limits under
the Plan. If any Award expires or is terminated, surrendered or canceled without having
been fully exercised or is forfeited in whole or in part (including as the result of shares
of Common Stock subject to such Award being repurchased by the Company at the original
issuance price pursuant to a contractual repurchase right) or results in any Common Stock
not being issued, the unused Common Stock covered by such Award shall again be available for
the grant of Awards under the Plan. Further, for the avoidance of doubt, shares of Common
Stock tendered to the Company by a Participant to exercise an Award or shares of Common
Stock withheld for taxes shall not be added to the number of shares of Common Stock
available for the grant of Awards under the Plan. However, in the case of Incentive Stock
Options (as hereinafter defined), the foregoing provisions shall be subject to any
limitations under the Code. Shares issued under the Plan may consist in whole or in part of
authorized but unissued shares or treasury shares.




     (b) Sub-limits. Subject to adjustment under Section 10, the following
sub-limits on the number of shares subject to Awards shall apply:




     (1) Section 162(m) Per-Participant Limit. The maximum number of shares of Common
Stock with respect to which Awards may be granted to any Participant under the Plan shall be
1,000,000 per calendar year. For purposes of the foregoing limit, the combination of an Option
in tandem with a SAR (as each is hereafter defined) shall be treated as a single Award. The
per-Participant limit described in this Section 4(b)(1) shall be construed and applied
consistently with Section 162(m) of the Code or any successor provision thereto, and the
regulations thereunder (“Section 162(m)”).




     (2) Limit on Awards other than Options and SARS. The maximum number of shares with
respect to which Awards other than Options and SARs may be granted shall be 7,800,000.



5. Stock Options





     (a) General. The Board may grant options to purchase Common Stock (each, an
“Option”) and determine the number of shares of Common Stock to be covered by each Option,
the exercise price of each Option and the conditions and limitations applicable to the
exercise of each Option, including conditions relating to applicable federal or state
securities laws, as it considers necessary or advisable. An Option which is not intended to
be an Incentive Stock Option (as hereinafter defined) shall be designated a “Nonstatutory
Stock Option”.




     (b) Incentive Stock Options. An Option that the Board intends to be an
“incentive stock option” as defined in Section 422 of the Code (an “Incentive Stock Option”)
shall only be granted to employees of Oclaro, Inc., any of Oclaro, Inc.’s present or future
parent or subsidiary corporations as defined in Sections 424(e) or (f) of the Code, and any
other entities the employees of which are eligible to receive Incentive Stock Options under
the Code, and shall be subject to and shall be construed consistently with the requirements
of Section 422 of the Code. The Company shall have no liability to a Participant, or any
other party, if an Option (or any part thereof) that is intended to be an Incentive Stock
Option is not an Incentive Stock Option or for any action taken by the Board pursuant to
Section 11(f), including without limitation the conversion of an Incentive Stock Option to a
Nonstatutory Stock Option.




     (c) Exercise Price. The Board shall establish the exercise price of each
Option and specify such exercise price in the applicable option agreement; provided,
however, that the exercise price shall not be less than 100% of the Fair Market Value (as
defined below) at the time that the Option is granted.



 









 






     (d) Duration of Options. Each Option shall be exercisable at such times and
subject to such terms and conditions as the Board may specify in the applicable option
agreement; provided, however, that no Option will be granted for a term in excess of
10 years.




     (e) Exercise of Option. Options may be exercised by delivery to the Company of
a written notice of exercise signed by the proper person or by any other form of notice
(including electronic notice) approved by the Board together with payment in full as
specified in Section 5(f) for the number of shares for which the Option is exercised. Shares
of Common Stock subject to the Option will be delivered by the Company following exercise
either as soon as practicable or, subject to such conditions as the Board shall specify, on
a deferred basis (with the Company’s obligation to be evidenced by an instrument providing
for future delivery of the deferred shares at the time or times specified by the Board).




     (f) Payment Upon Exercise. Common Stock purchased upon the exercise of an
Option granted under the Plan shall be paid for as follows:




     (1) in cash or by check, payable to the order of the Company;




     (2) except as the Board may otherwise provide in an option agreement, by (i) delivery of an
irrevocable and unconditional undertaking by a creditworthy broker to deliver promptly to the
Company sufficient funds to pay the exercise price and any required tax withholding or
(ii) delivery by the Participant to the Company of a copy of irrevocable and unconditional
instructions to a creditworthy broker to deliver promptly to the Company cash or a check
sufficient to pay the exercise price and any required tax withholding;




     (3) when the Common Stock is registered under the Securities Exchange Act of 1934 (the
“Exchange Act”), by delivery of shares of Common Stock owned by the Participant valued at their
fair market value as determined by (or in a manner approved by) the Board (“Fair Market Value”),
provided (i) such method of payment is then permitted under applicable law, (ii) such Common
Stock, if acquired directly from the Company, was owned by the Participant for such minimum
period of time, if any, as may be established by the Board in its discretion and (iii) such
Common Stock is not subject to any repurchase, forfeiture, unfulfilled vesting or other similar
requirements;




     (4) to the extent permitted by applicable law and by the Board, by (i) delivery of a
promissory note of the Participant to the Company on terms determined by the Board, or
(ii) payment of such other lawful consideration as the Board may determine; or




     (5) by any combination of the above permitted forms of payment.




     (g) Substitute Options. In connection with a merger or consolidation of an
entity with the Company or the acquisition by the Company of property or stock of an entity,
the Board may grant Options in substitution for any options or other stock or stock-based
awards granted by such entity or an affiliate thereof. Substitute Options may be granted on
such terms as the Board deems appropriate in the circumstances, notwithstanding any
limitations on Options contained in the other sections of this Section 5 or in Section 2.




     (h) Limitation on Repricing. Unless such action is approved by the Company’s
stockholders: (1) no outstanding Option granted under the Plan may be amended to provide an
exercise price per share that is lower than the exercise price per share of such outstanding
Option (other than adjustments pursuant to Section 10), (2) the Board may not cancel any
outstanding option (whether or not granted under the Plan) and grant in substitution
therefor new Awards under the Plan covering the same or a different number of shares of
Common Stock and having an exercise price per share lower than the exercise price per share
of the cancelled option, and (3) no outstanding Option granted under the Plan may be
cancelled in exchange for the payment of cash consideration by the Company, except as
provided for upon a Reorganization Event (as defined in Section 10) as contemplated by
Section 10(b) or in connection with a similar change in corporate structure or change of
control of the Company.



 









 





6. Director Options/Awards





     (a) Annual Grant. On the date of each annual meeting of stockholders of
the Company, the Company shall automatically grant to each member of the Board of Directors
of the Company who is both serving as a director of the Company immediately prior to and
immediately following such annual meeting and who is not then an employee of the Company or
any of its subsidiaries, one or more Nonstatutory Stock Options and/or Awards. The type(s)
and number(s) of Awards (subject to adjustment under Section 10) shall be as designated by
the Board from time to time.




     (b) Terms of Director Options/Awards. Options granted under this Section 6
shall (i) have an exercise price equal to the closing sale price (for the primary trading
session) of the Common Stock on the NASDAQ Stock Market or the national securities exchange
on which the Common Stock is then traded on the trading date immediately prior to the date
of grant (and if the Common Stock is not then traded on the NASDAQ Stock Market or a
national securities exchange, the fair market value of the Common Stock on such date as
determined by the Board), (ii) be immediately exercisable at the time of grant, (iii) expire
on the earlier of 10 years from the date of grant or one year following cessation of service
on the Board and (iv) contain such other terms and conditions as the Board shall determine.
Awards other than Options shall contain terms and conditions as the Board shall determine
pursuant to the terms of the Plan.




     (c) Board Discretion. Notwithstanding anything herein to the contrary, the
Board retains the specific authority to from time to time (i) to make additional grants of
Nonstatutory Stock Options or Awards to members of the Board who are not employees of the
Company or any subsidiary of the Company; and (ii) provide conditions or limitations (such
as vesting limitations) applicable to awards and the exercise of options granted under this
Section 6.



7. Stock Appreciation Rights





     (a) General. A Stock Appreciation Right, or SAR, is an Award entitling the
holder, upon exercise, to receive an amount in cash or Common Stock or a combination thereof
(such form to be determined by the Board) determined in whole or in part by reference to
appreciation, from and after the date of grant, in the fair market value of a share of
Common Stock. SARs may be based solely on appreciation in the fair market value of Common
Stock or on a comparison of such appreciation with some other measure of market growth such
as (but not limited to) appreciation in a recognized market index. The date as of which such
appreciation or other measure is determined shall be the exercise date unless another date
is specified by the Board in the SAR Award.




(b) Grants. SARs may be granted in tandem with, or independently of, Options
granted under the Plan.




          (1) Tandem Award. When SARs are expressly granted in tandem with Options,
(i) the SAR will be exercisable only at such time or times, and to the extent, that the
related Option is exercisable (except to the extent designated by the Board in connection
with a Reorganization Event) and will be exercisable in accordance with the procedure
required for exercise of the related Option; (ii) the SAR will terminate and no longer be
exercisable upon the termination or exercise of the related Option, except to the extent
designated by the Board in connection with a Reorganization Event and except that a SAR
granted with respect to less than the full number of shares covered by an Option will not be
reduced until the number of shares as to which the related Option has been exercised or has
terminated exceeds the number of shares not covered by the SAR; (iii) the Option will
terminate and no longer be exercisable upon the exercise of the related SAR; and (iv) the
SAR will be transferable only with the related Option.




          (2) Independent SARs. A SAR not expressly granted in tandem with an Option
will become exercisable at such time or times, and on such conditions, as the Board may
specify in the SAR Award.




     (c) Duration, Exercise Price and Exercise of SARs. Each SAR shall expire at
such time as the Committee shall determine at the time of grant; provided, however, that no
SAR shall be exercisable later than the 10th anniversary of its grant date. The exercise
price for each grant of an SAR shall not be less than the Fair Market Value of a share of
common stock on the date the SAR is granted.



 









 







     (d) Exercise. SARs may be exercised by delivery to the Company of a written
notice of exercise signed by the proper person or by any other form of notice (including
electronic notice) approved by the Board, together with any other documents required by the
Board.




     (e) Limitation on Repricing. Unless such action is approved by the Company’s
stockholders: (1) no outstanding SAR granted under the Plan may be amended to provide a
measurement price per share that is lower than the measurement price per share of such
outstanding SAR (other than adjustments pursuant to Section 10), (2) the Board may not
cancel any outstanding SAR (whether or not granted under the Plan) and grant in substitution
therefor new Awards under the Plan covering the same or a different number of shares of
Common Stock and having a measurement price per share lower than the measurement price per
share of the cancelled SAR, and (3) no outstanding SAR granted under the Plan may be
cancelled in exchange for the payment of cash consideration by the Company, except as
provided for upon a Reorganization Event (as defined in Section 10) as contemplated by
Section 10(b) or in connection with a similar change in corporate structure or change of
control of the Company.



8. Restricted Stock





     (a) General. The Board may grant Awards entitling recipients to acquire shares
of Common Stock, subject to the right of the Company to repurchase all or part of such
 shares at their issue price or other stated or formula price (or to require forfeiture of
such shares if issued at no cost) from the recipient in the event that conditions specified
by the Board in the applicable Award are not satisfied prior to the end of the applicable
restriction period or periods established by the Board for such Award (each, a “Restricted
Stock Award”).




     (b) Terms and Conditions. The Board shall determine the terms and conditions
of a Restricted Stock Award, including the conditions for repurchase (or forfeiture) and the
issue price, if any. Any Restricted Stock Awards granted after January 25, 2008 that vest
solely based on the passage of time shall be: (i) no more than one-third vested prior to the
first anniversary of the date of grant (or, in the case of Awards to non-employee directors,
if earlier, the date of the first annual meeting held after the date of grant), (ii) no more
than two-thirds vested prior to the second anniversary of the date of grant (or, in the case
of Awards to non-employee directors, if earlier, the date of the second annual meeting held
after the date of grant) and (iii) the balance shall vest at a rate no more than ratably
over the period from the second anniversary of the date of grant to the third anniversary of
the date of grant (or, in the case of Awards to non-employee directors, if the date of the
third annual meeting held after the date of grant is earlier than the third anniversary of
the date of grant, the period from the second anniversary of the date of grant to the third
annual meeting held after the date of grant). Any Restricted Stock Awards granted after
January 25, 2008 that do not vest solely based on the passage of time shall not vest prior
to the first anniversary of the date of grant (or, in the case of Awards to non-employee
directors, if earlier, the date of the first annual meeting held after the date of grant).




     (c) Stock Certificates. Any stock certificates issued in respect of a
Restricted Stock Award shall be registered in the name of the Participant and, unless
otherwise determined by the Board, deposited by the Participant, together with a stock power
endorsed in blank, with the Company (or its designee). At the expiration of the applicable
restriction periods, the Company (or such designee) shall deliver the certificates no longer
subject to such restrictions to the Participant or if the Participant has died, to the
beneficiary designated, in a manner determined by the Board, by a Participant to receive
amounts due or exercise rights of the Participant in the event of the Participant’s death
(the “Designated Beneficiary”). In the absence of an effective designation by a Participant,
“Designated Beneficiary” shall mean the Participant’s estate.




     (d) Deferred Delivery of Shares. The Board may, at the time any Restricted
Stock Award is granted, provide that, at the time Common Stock would otherwise be delivered
pursuant to the Award, the Participant shall instead receive an instrument evidencing the
right to future delivery of Common Stock at such time or times, and on such conditions, as
the Board shall specify. The Board may at any time accelerate the time at which delivery of
all or any part of the Common Stock shall take place. The Board may also permit an exchange
of unvested shares of Common Stock that have already been delivered to a



 









 






Participant for an instrument evidencing the right to future delivery of Common Stock
at such time or times, and on such conditions, as the Board shall specify.



9. Other Stock-Based Awards




     Other Awards of shares of Common Stock, and other Awards that are valued in whole or in part
by reference to, or are otherwise based on, shares of Common Stock or other property, may be
granted hereunder to Participants (“Other Stock-Based Awards”), including without limitation Awards
entitling recipients to receive shares of Common Stock to be delivered in the future. Such Other
Stock-Based Awards shall also be available as a form of payment in the settlement of other Awards
granted under the Plan or as payment in lieu of compensation to which a Participant is otherwise
entitled. Other Stock-Based Awards may be paid in shares of Common Stock or cash, as the Board
shall determine. Subject to the provisions of the Plan, the Board shall determine the conditions of
each Other Stock-Based Awards, including any purchase price applicable thereto. At the time any
Award is granted, the Board may provide that, at the time Common Stock would otherwise be delivered
pursuant to the Award, the Participant will instead receive an instrument evidencing the
Participant’s right to future delivery of the Common Stock.



10. Adjustments for Changes in Common Stock and Certain Other Events.





     (a) Changes in Capitalization. In the event of any stock split, reverse stock
split, stock dividend, recapitalization, combination of shares, reclassification of shares,
spin-off or other similar change in capitalization or event, or any distribution to holders
of Common Stock other than an ordinary cash dividend, (i) the number and class of securities
available under this Plan, (ii) the sub-limits set forth in Section 4(b), (iii) the number
and class of securities and exercise price per share of each outstanding Option and each
Option issuable under Section 6, (iv) the share- and per-share related provisions of each
Stock Appreciation Right, (v) the repurchase price per share subject to each outstanding
Restricted Stock Award and (vi) the share- and per-share-related provisions of each
outstanding Other Stock-Based Award, shall be appropriately adjusted by the Company (or
substituted Awards may be made, if applicable) to the extent determined by the Board.




(b) Reorganization Events.




     (1) Definition. A “Reorganization Event” shall mean: (a) any merger or
consolidation of the Company with or into another entity as a result of which all of the Common
Stock of the Company is converted into or exchanged for the right to receive cash, securities or
other property or is cancelled (b) any exchange of all of the Common Stock of the Company for
cash, securities or other property pursuant to a share exchange transaction or (c) any
liquidation or dissolution of the Company.




     (2) Consequences of a Reorganization Event on Awards Other than Restricted Stock
Awards. In connection with a Reorganization Event, the Board shall take any one or more of
the following actions as to all or any outstanding Awards (other than Restricted Stock Awards)
on such terms as the Board determines: (i) provide that Awards shall be assumed, or
substantially equivalent Awards shall be substituted, by the acquiring or succeeding corporation
(or an affiliate thereof), (ii) upon written notice to a Participant, provide that the
Participant’s unexercised Options or other unexercised Awards shall become exercisable in full
and will terminate immediately prior to the consummation of such Reorganization Event unless
exercised by the Participant within a specified period following the date of such notice,
(iii) provide that outstanding Awards shall become realizable or deliverable, or restrictions
applicable to an Award shall lapse, in whole or in part prior to or upon such Reorganization
Event, (iv) in the event of a Reorganization Event under the terms of which holders of Common
Stock will receive upon consummation thereof a cash payment for each share surrendered in the
Reorganization Event (the “Acquisition Price”), make or provide for a cash payment to a
Participant equal to (A) the Acquisition Price times the number of shares of Common Stock
subject to the Participant’s Options or other Awards (to the extent the exercise price does not
exceed the Acquisition Price) minus (B) the aggregate exercise price of all such outstanding
Options or other Awards, in exchange for the termination of such Options or other Awards,
(v) provide that, in connection with a liquidation or dissolution of the Company, Awards shall
convert into the right to receive liquidation proceeds (if applicable, net of the exercise price
thereof) and (vi) any combination of the foregoing.



 









 






     For purposes of clause (i) above, an Option shall be considered assumed if, following
consummation of the Reorganization Event, the Option confers the right to purchase, for each
share of Common Stock subject to the Option immediately prior to the consummation of the
Reorganization Event, the consideration (whether cash, securities or other property) received as
a result of the Reorganization Event by holders of Common Stock for each share of Common Stock
held immediately prior to the consummation of the Reorganization Event (and if holders were
offered a choice of consideration, the type of consideration chosen by the holders of a majority
of the outstanding shares of Common Stock); provided, however, that if the consideration
received as a result of the Reorganization Event is not solely common stock of the acquiring or
succeeding corporation (or an affiliate thereof), the Company may, with the consent of the
acquiring or succeeding corporation, provide for the consideration to be received upon the
exercise of Options to consist solely of common stock of the acquiring or succeeding corporation
(or an affiliate thereof) equivalent in fair market value to the per share consideration
received by holders of outstanding shares of Common Stock as a result of the Reorganization
Event.


To the extent all or any portion of an Option becomes exercisable solely as a result of
clause (ii) above, the Board may provide that upon exercise of such Option the Participant shall
receive shares subject to a right of repurchase by the Company or its successor at the Option
exercise price; such repurchase right (x) shall lapse at the same rate as the Option would have
become exercisable under its terms and (y) shall not apply to any shares subject to the Option
that were exercisable under its terms without regard to clause (ii) above.





     (3) Consequences of a Reorganization Event on Restricted Stock Awards. Upon the
occurrence of a Reorganization Event other than a liquidation or dissolution of the Company, the
repurchase and other rights of the Company under each outstanding Restricted Stock Award shall
inure to the benefit of the Company’s successor and shall apply to the cash, securities or other
property which the Common Stock was converted into or exchanged for pursuant to such
Reorganization Event in the same manner and to the same extent as they applied to the Common
Stock subject to such Restricted Stock Award. Upon the occurrence of a Reorganization Event
involving the liquidation or dissolution of the Company, except to the extent specifically
provided to the contrary in the instrument evidencing any Restricted Stock Award or any other
agreement between a Participant and the Company, all restrictions and conditions on all
Restricted Stock Awards then outstanding shall automatically be deemed terminated or satisfied.



11. General Provisions Applicable to Awards





     (a) Transferability of Awards. Except as the Board may otherwise determine or
provide in an Award, Awards shall not be sold, assigned, transferred, pledged or otherwise
encumbered by the person to whom they are granted, either voluntarily or by operation of
law, except by will or the laws of descent and distribution or, other than in the case of an
Incentive Stock Option, pursuant to a qualified domestic relations order, and, during the
life of the Participant, shall be exercisable only by the Participant. References to a
Participant, to the extent relevant in the context, shall include references to authorized
transferees. Notwithstanding anything to the contrary in this Section 11(a), no Award may be
transferred by a Participant to a third party for consideration.




     (b) Documentation. Each Award shall be evidenced in such form (written,
electronic or otherwise) as the Board shall determine. Each Award may contain terms and
conditions in addition to those set forth in the Plan.




     (c) Board Discretion. Except as otherwise provided by the Plan, each Award may
be made alone or in addition or in relation to any other Award. The terms of each Award need
not be identical, and the Board need not treat Participants uniformly.




     (d) Termination of Status. The Board shall determine the effect on an Award of
the disability, death, retirement, authorized leave of absence or other change in the
employment or other status of a Participant and the extent to which, and the period during
which, the Participant, or the Participant’s legal representative, conservator, guardian or
Designated Beneficiary, may exercise rights under the Award.




     (e) Withholding. Each Participant shall pay to the Company, or make provision
satisfactory to the Company for payment of, any taxes required by law to be withheld in
connection with an Award to such



 









 






Participant. Except as the Board may otherwise provide in an Award, for so long as the
Common Stock is registered under the Exchange Act, Participants may satisfy such tax
obligations in whole or in part by delivery of shares of Common Stock, including shares
retained from the Award creating the tax obligation, valued at their Fair Market Value;
provided, however, except as otherwise provided by the Board, that the total tax withholding
where stock is being used to satisfy such tax obligations cannot exceed the Company’s
minimum statutory withholding obligations (based on minimum statutory withholding rates for
federal and state tax purposes, including payroll taxes, that are applicable to such
supplemental taxable income). Shares surrendered to satisfy tax withholding requirements
cannot be subject to any repurchase, forfeiture, unfulfilled vesting or other similar
requirements. The Company may, to the extent permitted by law, deduct any such tax
obligations from any payment of any kind otherwise due to a Participant.




     (f) Amendment of Award. The Board may amend, modify or terminate any
outstanding Award, including but not limited to, substituting therefor another Award of the
same or a different type, changing the date of exercise or realization, and converting an
Incentive Stock Option to a Nonstatutory Stock Option, provided that the Participant’s
consent to such action shall be required unless the Board determines that the action, taking
into account any related action, would not materially and adversely affect the Participant.




     (g) Conditions on Delivery of Stock. The Company will not be obligated to
deliver any shares of Common Stock pursuant to the Plan or to remove restrictions from
 shares previously delivered under the Plan until (i) all conditions of the Award have been
met or removed to the satisfaction of the Company, (ii) in the opinion of the Company’s
counsel, all other legal matters in connection with the issuance and delivery of such shares
have been satisfied, including any applicable securities laws and any applicable stock
exchange or stock market rules and regulations, and (iii) the Participant has executed and
delivered to the Company such representations or agreements as the Company may consider
appropriate to satisfy the requirements of any applicable laws, rules or regulations.




     (h) Acceleration. The Board may at any time provide that any Award, including
any Option and any SAR, shall become immediately exercisable in full or in part, free of
some or all restrictions or conditions, or otherwise realizable in full or in part, as the
case may be. The foregoing sentence shall not apply to (1) Performance Awards granted
pursuant to Section 11(i) or (2) Restricted Stock Awards and Other Stock-Based Awards
granted, in the aggregate, in excess of 10% of the maximum number of authorized shares set
forth in Section 4(a). Notwithstanding any other provision of this Plan (other than
Section 11(i), if applicable), the Board may only waive its right to repurchase shares of
Common Stock (or waive the forfeiture thereof), remove or modify any part or all of the
restrictions or conditions applicable to any Restricted Stock Award or Other Stock-Based
Award or provide that such Award will become immediately exercisable or realizable, in full
or in part, in excess of 10% of the maximum number of authorized shares set forth in
Section 4(a) in extraordinary circumstances which shall include, without limitation, death,
disability or retirement of the Participant; or a merger, consolidation, sale,
reorganization, recapitalization, or change in control of the Company.




(i) Performance Awards.




     (1) Grants. Restricted Stock Awards and Other Stock-Based Awards under the Plan
may be made subject to the achievement of performance goals pursuant to this Section 11(i)
(“Performance Awards”), subject to the limit in Section 4(b)(1) on shares covered by such
grants. Subject to Section 11(i)(4), no Performance Awards shall vest prior to the first
anniversary of the date of grant.




     (2) Committee. Grants of Performance Awards to any Covered Employee intended to
qualify as “performance-based compensation” under Section 162(m) (“Performance-Based
Compensation”) shall be made only by a Committee (or subcommittee of a Committee) comprised
solely of two or more directors eligible to serve on a committee making Awards qualifying as
“performance-based compensation” under Section 162(m). In the case of such Awards granted to
Covered Employees, references to the Board or to a Committee shall be deemed to be references to
such Committee or subcommittee. “Covered Employee” shall mean any person who is, or whom the
Committee, in its discretion, determines may be, a “covered employee” under Section 162(m)(3) of
the Code.



 









 






     (3) Performance Measures. For any Award that is intended to qualify as
Performance-Based Compensation, the Committee shall specify that the degree of granting, vesting
and/or payout shall be subject to the achievement of one or more objective performance measures
established by the Committee, which shall be based on the relative or absolute attainment of
specified levels of one or any combination of the following: net income, earnings before or
after discontinued operations, interest, taxes, depreciation and/or amortization, earnings per
share (before or after discontinued operations, interest, taxes, depreciation and/or
amortization), operating profit before or after discontinued operations and/or taxes, sales,
sales growth, earnings growth, cash flow or cash position, gross margins, stock price, market
share, return on sales, assets, equity or investment, improvement of financial ratings,
achievement of balance sheet or income statement objectives or total stockholder return, and may
be absolute in their terms or measured against or in relationship to other companies comparably,
similarly or otherwise situated. The Committee may specify that such performance measures shall
be adjusted to exclude any one or more of (i) extraordinary items, (ii) gains or losses on the
dispositions of discontinued operations, (iii) the cumulative effects of changes in accounting
principles, (iv) the write-down of any asset, (v) charges for restructuring and rationalization
programs, (vi) non-cash compensation expense from stock compensation and (vii) one-time charges
or credits. Such performance measures: (i) may vary by Participant and may be different for
different Awards; (ii) may be particular to a Participant or the department, branch, line of
business, subsidiary or other unit in which the Participant works and may cover such period as
may be specified by the Committee; and (iii) shall be set by the Committee within the time
period prescribed by, and shall otherwise comply with the requirements of, Section 162(m).
Awards that are not intended to qualify as Performance-Based Compensation may be based on these
or such other performance measures as the Board may determine.




     (4) Adjustments. Notwithstanding any provision of the Plan, with respect to any
Performance Award that is intended to qualify as Performance-Based Compensation, the Committee
may adjust downwards, but not upwards, the cash or number of Shares payable pursuant to such
Award, and the Committee may not waive the achievement of the applicable performance measures
except in the case of the death or disability of the Participant or a change in control of the
Company.




     (5) Other. The Committee shall have the power to impose such other restrictions on
Performance Awards as it may deem necessary or appropriate to ensure that such Awards satisfy
all requirements for Performance-Based Compensation.



12. Miscellaneous





     (a) No Right to Employment or Other Status. No person shall have any claim or
right to be granted an Award, and the grant of an Award shall not be construed as giving a
Participant the right to continued employment or any other relationship with the Company.
The Company expressly reserves the right at any time to dismiss or otherwise terminate its
relationship with a Participant free from any liability or claim under the Plan, except as
expressly provided in the applicable Award.




     (b) No Rights as Stockholder. Subject to the provisions of the applicable
Award, no Participant or Designated Beneficiary shall have any rights as a stockholder with
respect to any shares of Common Stock to be distributed with respect to an Award until
becoming the record holder of such shares. Notwithstanding the foregoing, in the event the
Company effects a split of the Common Stock by means of a stock dividend and the exercise
price of and the number of shares subject to such Option are adjusted as of the date of the
distribution of the dividend (rather than as of the record date for such dividend), then an
optionee who exercises an Option between the record date and the distribution date for such
stock dividend shall be entitled to receive, on the distribution date, the stock dividend
with respect to the shares of Common Stock acquired upon such Option exercise,
notwithstanding the fact that such shares were not outstanding as of the close of business
on the record date for such stock dividend.




     (c) Effective Date and Term of Plan. The amended and restated Plan shall
become effective on the date on which it is approved by the stockholders at the Company’s
2010 Annual Stockholders Meeting, but no Award may be granted under the amended and restated
Plan such amended and restated Plan has been approved by the Company’s stockholders. No
Awards shall be granted under the Plan after the completion



 









 






of 10 years from the date the amended and restated Plan was approved by the Company’s
stockholders, but Awards previously granted may extend beyond that date.




     (d) Amendment of Plan. The Board may amend, suspend or terminate the Plan or
any portion thereof at any time; provided that, to the extent determined by the Board, no
amendment requiring stockholder approval under any applicable legal, regulatory or listing
requirement shall become effective until such stockholder approval is obtained. No Award
shall be made that is conditioned upon stockholder approval of any amendment to the Plan.




     (e) Provisions for Foreign Participants. The Board may modify Awards or
Options granted to Participants who are foreign nationals or employed outside the United
States or establish subplans or procedures under the Plan to recognize differences in laws,
rules, regulations or customs of such foreign jurisdictions with respect to tax, securities,
currency, employee benefits or other matters.




     (f) Governing Law. The provisions of the Plan and all Awards made hereunder
shall be governed by and interpreted in accordance with the laws of the State of Delaware,
without regard to any applicable conflicts of law.