Exhibit 10.1


 


CONCEPTUS, INC.


 


ELEVENTH AMENDED AND RESTATED


2001 EQUITY INCENTIVE PLAN


 


2001 Equity Incentive Plan


Adopted by the Board: March 21, 2001


Approved by Stockholders: May 16, 2001


 


Amended and Restated Equity Incentive Plan


Adopted by the Board: March 2002


Approved by Stockholders: May 30, 2002


 


Second Amended and Restated Equity Incentive Plan


Adopted by the Board: April 2003


Approved by Stockholders: June 10, 2003


 


Third Amended and Restated Equity Incentive Plan


Adopted by the Board: March 2004


Approved by Stockholders: June 1, 2004


 


Amendment to Third Amended and Restated Equity
Incentive Plan


Adopted by the Board: March 2004


Approved by Stockholders: June 1, 2004


 


Fourth Amended and Restated Equity Incentive Plan


Adopted by the Board: November 30, 2004


 


Fifth Amended and Restated Equity Incentive Plan


Adopted by the Board: January 5, 2005


 


Sixth Amended and Restated Equity Incentive Plan


Adopted by the Board: December 16, 2005


 


Seventh Amended and Restated Equity Incentive Plan


Adopted by the Board: February 10, 2006


 


Eighth Amended and Restated Equity Incentive Plan


Adopted by the Board: April 2006


Approved by Stockholders: June 7, 2006


 


Ninth Amended and Restated Equity Incentive Plan


Adopted by the Board: April 12, 2007


 


Tenth Amended and Restated Equity Incentive Plan


Adopted by the Board: April 28, 2008


Approved by Stockholders: June 4, 2008


 


Eleventh Amended and Restated Equity Incentive Plan


Adopted by the Board: October 1, 2008


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  1.

  	
  PURPOSES OF THE PLAN

  	
  1

  
	
   

  	
   

  	
   

  
	
  2.

  	
  DEFINITIONS

  	
  1

  
	
   

  	
   

  	
   

  
	
  3.

  	
  STOCK SUBJECT TO THE PLAN

  	
  4

  
	
   

  	
   

  	
   

  
	
  4.

  	
  ADMINISTRATION OF THE PLAN

  	
  5

  
	
   

  	
   

  	
   

  
	
  5.

  	
  ELIGIBILITY

  	
  6

  
	
   

  	
   

  	
   

  
	
  6.

  	
  LIMITATIONS

  	
  7

  
	
   

  	
   

  	
   

  
	
  7.

  	
  TERM OF PLAN

  	
  7

  
	
   

  	
   

  	
   

  
	
  8.

  	
  TERM OF AWARDS

  	
  7

  
	
   

  	
   

  	
   

  
	
  9.

  	
  OPTION EXERCISE PRICE AND CONSIDERATION

  	
  8

  
	
   

  	
   

  	
   

  
	
  10.

  	
  EXERCISE OF OPTION;

  	
  8

  
	
   

  	
   

  	
   

  
	
  11.

  	
  NON-TRANSFERABILITY OF OPTIONS AND STOCK PURCHASE RIGHTS

  	
  11

  
	
   

  	
   

  	
   

  
	
  12.

  	
  GRANTS OF AWARDS TO INDEPENDENT DIRECTORS

  	
  11

  
	
   

  	
   

  	
   

  
	
  13.

  	
  RESTRICTED STOCK; STOCK PURCHASE RIGHTS

  	
  11

  
	
   

  	
   

  	
   

  
	
  14.

  	
  RESTRICTED STOCK UNITS

  	
  12

  
	
   

  	
   

  	
   

  
	
  15.

  	
  STOCK APPRECIATION RIGHTS

  	
  13

  
	
   

  	
   

  	
   

  
	
  16.

  	
  OTHER AWARDS

  	
  14

  
	
   

  	
   

  	
   

  
	
  17.

  	
  ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, MERGER OR ASSET
  SALE

  	
  14

  
	
   

  	
   

  	
   

  
	
  18.

  	
  FULL VALUE AWARD VESTING LIMITATIONS

  	
  17

  
	
   

  	
   

  	
   

  
	
  19.

  	
  TIME OF GRANTING AWARDS

  	
  17

  
	
   

  	
   

  	
   

  
	
  20.

  	
  AMENDMENT AND TERMINATION OF THE PLAN

  	
  17

  
	
   

  	
   

  	
   

  
	
  21.

  	
  STOCKHOLDER APPROVAL

  	
  19

  
	
   

  	
   

  	
   

  
	
  22.

  	
  INABILITY TO OBTAIN AUTHORITY

  	
  19

  
	
   

  	
   

  	
   

  
	
  23.

  	
  RESERVATION OF SHARES

  	
  19

  
	
   

  	
   

  	
   

  
	
  24.

  	
  INVESTMENT INTENT

  	
  19

  
	
   

  	
   

  	
   

  
	
  25.

  	
  GOVERNING LAW

  	
  19

  



 


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CONCEPTUS, INC.


 


ELEVENTH AMENDED AND RESTATED 2001 EQUITY
INCENTIVE PLAN


 


1.             Purposes
of the Plan.  The purposes of the
Conceptus, Inc. Eleventh Amended and Restated 2001 Equity Incentive Plan
are to attract and retain the best available personnel for positions of
substantial responsibility, to provide additional incentive to Employees,
Directors and Consultants and to promote the success of the Company’s
business.  Options granted under the Plan
may be Incentive Stock Options or Non-Qualified Stock Options, as determined by
the Administrator at the time of grant. 
Other Awards may also be granted under the Plan.


 


2.             Definitions.  As used herein, the following definitions
shall apply:


 


(a)           “Acquisition”
means (i) any consolidation or merger of the Company with or into any
other corporation or other entity or person in which the stockholders of the
Company prior to such consolidation or merger own less than fifty percent (50%)
of the Company’s voting power immediately after such consolidation or merger,
excluding any consolidation or merger effected exclusively to change the
domicile of the Company; or (ii) a sale of all or substantially all of the
assets of the Company.


 


(b)           “Administrator”
means the Board or the Committee responsible for conducting the general
administration of the Plan, as applicable, in accordance with Section 4
hereof.


 


(c)           “Applicable
Laws” means the requirements relating to the administration of equity
compensation plans under U.S. state corporate laws, U.S. federal and state
securities laws, the Code, any stock exchange or quotation system on which the
Common Stock is listed or quoted and the applicable laws of any foreign country
or jurisdiction where Awards are granted under the Plan.


 


(d)           “Award”
shall mean an Option, a Restricted Stock award, a Stock Appreciation Right
award, a Performance Share award, a Dividend Equivalents award, a Stock Payment
award, a Stock Purchase Right or a Restricted Stock Unit award granted to an
eligible individual under the Plan.


 


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


 


(f)            “Board”
means the Board of Directors of the Company.


 


(g)           “Code”
means the Internal Revenue Code of 1986, as amended, or any successor statute
or statutes thereto.  Reference to any
particular Code section shall include any successor section.


 


(h)           “Committee”
means a committee appointed by the Board in accordance with Section 4
hereof.


 


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(i)            “Common
Stock” means the Common Stock of the Company, par value $0.003 per share.


 


(j)            “Company”
means Conceptus, Inc., a Delaware corporation.


 


(k)           “Consultant”
means any consultant or adviser if: (i) the consultant or adviser renders
bona fide services to the Company or any Parent or Subsidiary of the Company; (ii) the
services rendered by the consultant or adviser are not in connection with the
offer or sale of securities in a capital-raising transaction and do not
directly or indirectly promote or maintain a market for the Company’s
securities; and (iii) the consultant or adviser is a natural person who
has contracted directly with the Company or any Parent or Subsidiary of the
Company to render such services.


 


(l)            “Director”
means a member of the Board.


 


(m)          “Employee”
means any person, including an Officer or Director, who is an employee (as
defined in accordance with Section 3401(c) of the Code) of the
Company or any Parent or Subsidiary of the Company.  A Service Provider shall not cease to be an
Employee in the case of (i) any leave of absence approved by the Company
or (ii) transfers between locations of the Company or between the Company,
its Parent, any Subsidiary, or any successor. 
For purposes of Incentive Stock Options, no such leave may exceed ninety
(90) days, unless reemployment upon expiration of such leave is guaranteed by
statute or contract.  Neither service as
a Director nor payment of a director’s fee by the Company shall be sufficient,
by itself, to constitute “employment” by the Company.


 


(n)           “Equity
Restructuring” shall mean a non-reciprocal transaction between the Company
and its stockholders, such as a stock dividend, stock split, spin-off, rights
offering or recapitalization through a large, nonrecurring cash dividend, that
affects shares of Common Stock (or other securities of the Company) or the share
price of Common Stock (or of other securities) and causes a change in the per
share value of the Common Stock underlying outstanding Awards.


 


(o)           “Exchange
Act” means the Securities Exchange Act of 1934, as amended, or any
successor statute or statutes thereto. 
Reference to any particular Exchange Act section shall include any
successor section.


 


(p)           “Fair
Market Value” means, as of any date, the value of a share of Common Stock
determined as follows:


 


(i)            If
the Common Stock is listed on any established stock exchange or a national
market system, including, without limitation, the Nasdaq Global Select Market,
the Nasdaq Global Market or the Nasdaq Capital Market, its Fair Market Value
shall be the closing sales price for a share of such stock (or the closing bid,
if no sales were reported) as quoted on such exchange or system on the day of
determination (or the most recent day on which sales were reported if none were
reported on such date), as reported in The Wall Street Journal or such other
source as the Administrator deems reliable;


 


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(ii)           If
the Common Stock is regularly quoted by a recognized securities dealer but
selling prices are not reported, its Fair Market Value shall be the mean
between the high bid and low asked prices for a share of the Common Stock on
the day of determination (or the most recent day on which bid and asked prices
were reported if none were reported on such date); or


 


(iii)          In
the absence of an established market for the Common Stock, the Fair Market
Value thereof shall be determined in good faith by the Administrator.


 


(q)           “Full
Value Award” means any Award other than an Option or other Award for which
the Holder pays the intrinsic value (whether directly or by forgoing a right to
receive a payment from the Company).


 


(r)            “Holder”
means a person who has been granted or awarded an Award or who holds Shares
acquired pursuant to the exercise of an Award.


 


(s)           “Incentive
Stock Option” means an Option intended to qualify as an incentive stock
option within the meaning of Section 422 of the Code and which is
designated as an Incentive Stock Option by the Administrator.


 


(t)            “Independent
Director” means a Director who is not an Employee of the Company.


 


(u)           “Independent
Director Equity Compensation Policy” shall have the meaning set forth in Section 12.


 


(v)           “Non-Qualified
Stock Option” means an Option (or portion thereof) that is not designated
as an Incentive Stock Option by the Administrator, or which is designated as an
Incentive Stock Option by the Administrator but fails to qualify as an
incentive stock option within the meaning of Section 422 of the Code.


 


(w)          “Officer”
means a person who is an officer of the Company within the meaning of Section 16
of the Exchange Act and the rules and regulations promulgated thereunder.


 


(x)            “Option”
means a stock option granted pursuant to the Plan.


 


(y)           “Option
Agreement” means a written agreement between the Company and a Holder
evidencing the terms and conditions of an individual Option grant.  The Option Agreement is subject to the terms
and conditions of the Plan.


 


(z)            “Parent”
means any corporation, whether now or hereafter existing (other than the
Company), in an unbroken chain of corporations ending with the Company if each
of the corporations other than the last corporation in the unbroken chain owns
stock possessing more than fifty percent of the total combined voting power of
all classes of stock in one of the other corporations in such chain.


 


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(aa)         “Performance
Share” means a right granted to a Holder pursuant to Section 16, to
receive cash, Stock, or other Awards, the payment of which is contingent upon
achieving certain performance goals established by the Committee.


 


(bb)         “Plan”
means the Conceptus, Inc. Eleventh Amended and Restated 2001 Equity
Incentive Plan.


 


(cc)         “Restricted
Stock” means Shares (i) acquired pursuant to the exercise of an
unvested Option in accordance with Section 10(h) below or pursuant to
a Stock Purchase Right granted under Section 13 below or (ii) issued
pursuant to a Restricted Stock award under Section 13 below.


 


(dd)         “Restricted
Stock Unit” means a right to receive a specified number of shares of Common
Stock during specified time periods pursuant to Section 14.


 


(ee)         “Rule 16b-3”
means that certain Rule 16b-3 under the Exchange Act, as such Rule may
be amended from time to time.


 


(ff)           “Securities
Act” means the Securities Act of 1933, as amended, or any successor statute
or statutes thereto.  Reference to any
particular Securities Act section shall include any successor section.


 


(gg)         “Service
Provider” means an Employee, Director or Consultant.


 


(hh)         “Share”
means a share of Common Stock, as adjusted in accordance with Section 17
below.


 


(ii)           “Stock
Appreciation Right” or “SAR” means a right granted pursuant to Section 15
to receive a payment equal to the excess of the Fair Market Value of a
specified number of shares of Common Stock on the date the SAR is exercised
over the Fair Market Value on the date the SAR was granted as set forth in the
applicable Award Agreement.


 


(jj)           “Stock
Payment” means (a) a payment in the form of Shares, or (b) an
option or other right to purchase Shares, as part of any bonus, deferred
compensation or other arrangement, made in lieu of all or any portion of the
compensation, granted pursuant to Section 16.


 


(kk)         “Stock
Purchase Right” means a right to purchase Common Stock pursuant to Section 13
below.


 


(ll)           “Subsidiary”
means any corporation, whether now or hereafter existing (other than the
Company), in an unbroken chain of corporations beginning with the Company if
each of the corporations other than the last corporation in the unbroken chain
owns stock possessing more than fifty percent of the total combined voting
power of all classes of stock in one of the other corporations in such chain.


 


3.             Stock
Subject to the Plan.  Subject to the
provisions of Section 17 of the Plan, the shares of stock subject to
Awards shall be Common Stock, initially shares of the Company’s 


 


4

















 


Common Stock, par value $0.003 per share.  Subject to the provisions of Section 17
of the Plan, the maximum aggregate number of Shares which may be issued or
transferred pursuant to Awards under the Plan is 5,500,000 Shares.  Shares issued pursuant to an Award may be
authorized but unissued, or reacquired Common Stock.  To the extent that an Award terminates,
expires, or lapses for any reason, any Shares subject to the Award shall again
be available for the grant of an Award pursuant to the Plan.  If Shares of Restricted Stock are repurchased
by the Company at their original purchase price, if any, such Shares shall
become available for future grant under the Plan.  Notwithstanding the provisions of this Section 3,
no Shares may again be optioned, granted or awarded if such action would cause
an Incentive Stock Option to fail to qualify as an Incentive Stock Option under
Section 422 of the Code, and the following Shares shall not be added back
to the shares authorized for grant under this Section 3:  (i) Shares tendered by the Holder or
withheld by the Company in payment of the exercise price of an Option, (ii) Shares
tendered by the Holder or withheld by the Company to satisfy any tax
withholding obligation with respect to an Award, and (iii) Shares that
were subject to a stock-settled Stock Appreciation Right and were not issued
upon the net settlement or net exercise of such Stock Appreciation Right.  Notwithstanding anything herein to the
contrary, no more than fifty percent (50%) of the Shares available for issuance
hereunder immediately following the stockholder meeting held on June 4,
2008 may be issued in the form of Full Value Awards following such date.


 


4.             Administration
of the Plan.


 


(a)           Administrator.  Either the Board or a Committee of the Board
delegated administrative authority hereunder shall administer the Plan and, in
the case of a Committee, the Committee shall consist solely of two or more
Independent Directors each of whom is both an “outside director,” within the
meaning of Section 162(m) of the Code, and a “non-employee director”
within the meaning of Rule 16b-3. 
Within the scope of such authority, the Board or the Committee may (i) delegate
to a committee of one or more members of the Board who are not Independent
Directors the authority to grant awards under the Plan to eligible persons who
are either (1) not then “covered employees,” within the meaning of Section 162(m) of
the Code and are not expected to be “covered employees” at the time of recognition
of income resulting from such award or (2) not persons with respect to
whom the Company wishes to comply with Section 162(m) of the Code
and/or (ii) delegate to a committee of one or more members of the Board
who are not “non-employee directors,” within the meaning of Rule 16b-3,
the authority to grant awards under the Plan to eligible persons who are not
then subject to Section 16 of the Exchange Act.  The Board may abolish the Committee at any
time and revest in the Board the administration of the Plan.  Appointment of Committee members shall be
effective upon acceptance of appointment. Committee members may resign at any
time by delivering written notice to the Board. 
Vacancies in the Committee may be filled only by the Board.


 


(b)           Powers
of the Administrator.  Subject to the
provisions of the Plan and the specific duties delegated by the Board to such
Committee, and subject to the approval of any relevant authorities, the
Administrator shall have the authority in its sole discretion:


 


(i)            to
determine the Fair Market Value;


 


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(ii)           to
select the Service Providers to whom Awards may from time to time be granted
hereunder;


 


(iii)          to
determine the number of Shares to be covered by each such Award granted
hereunder;


 


(iv)          to
approve forms of agreement for use under the Plan;


 


(v)           subject
to Section 18 of the Plan, to determine the terms and conditions of any
Award granted hereunder (such terms and conditions include, but are not limited
to, the exercise price, the time or times when Awards may vest or be exercised
(which may be based on performance criteria), any vesting acceleration or
waiver of forfeiture restrictions, and any restriction or limitation regarding
any Award or the Common Stock relating thereto, based in each case on such
factors as the Administrator, in its sole discretion, shall determine);


 


(vi)          to
determine whether to offer to buyout a previously granted Option as provided in
subsection 10(i) and to determine the terms and conditions of such
offer and buyout (including whether payment is to be made in cash or Shares);


 


(vii)         to
prescribe, amend and rescind rules and regulations relating to the Plan,
including rules and regulations relating to sub-plans established for the
purpose of qualifying for preferred tax treatment under foreign tax laws;


 


(viii)        to
allow Holders to satisfy withholding tax obligations by electing to have the
Company withhold from the Shares to be issued pursuant to an Award that number
of Shares having a Fair Market Value equal to the minimum amount required to be
withheld based on the statutory withholding rates for federal and state tax
purposes that apply to supplemental taxable income.  The Fair Market Value of the Shares to be
withheld shall be determined on the date that the amount of tax to be withheld
is to be determined.  All elections by
Holders to have Shares withheld for this purpose shall be made in such form and
under such conditions as the Administrator may deem necessary or advisable;


 


(ix)           subject
to Section 18, to amend the Plan or any Award granted under the Plan as
provided in Section 21; and


 


(x)            to
construe and interpret the terms of the Plan and Awards granted pursuant to the
Plan and to exercise such powers and perform such acts as the Administrator
deems necessary or desirable to promote the best interests of the Company which
are not in conflict with the provisions of the Plan.


 


(c)           Effect
of Administrator’s Decision.  All
decisions, determinations and interpretations of the Administrator shall be
final and binding on all Holders.


 


5.             Eligibility.  Awards other than Incentive Stock Options may
be granted to Service Providers. 
Incentive Stock Options may be granted only to Employees.  If otherwise eligible, a Service Provider who
has been granted an Award may be granted additional Awards.  Each 


 


6

















 


Independent Director shall be eligible to be granted Awards pursuant to
the Independent Director Equity Compensation Policy described in Section 12.


 


6.             Limitations.


 


(a)           Each
Option shall be designated by the Administrator in the Option Agreement as
either an Incentive Stock Option or a Non-Qualified Stock Option.  However, notwithstanding such designations,
to the extent that the aggregate Fair Market Value of Shares subject to a
Holder’s Incentive Stock Options and other incentive stock options granted by
the Company, any Parent or Subsidiary, which become exercisable for the first
time during any calendar year (under all plans of the Company or any Parent or
Subsidiary) exceeds $100,000, such excess Options or other options shall be
treated as Non-Qualified Stock Options.


 


For purposes of this Section 6(a), Incentive Stock Options shall
be taken into account in the order in which they were granted, and the Fair
Market Value of the Shares shall be determined as of the time of grant.


 


(b)           Neither
the Plan nor any Award shall confer upon a Holder any right with respect to
continuing the Holder’s employment or consulting relationship with the Company,
nor shall they interfere in any way with the Holder’s right or the Company’s
right to terminate such employment or consulting relationship at any time, with
or without cause.


 


(c)           The
maximum number of shares of Common Stock with respect to one or more Awards that
may be granted to any one Service Provider during a calendar year shall be
800,000.  Notwithstanding the foregoing,
the maximum number of shares of Common Stock with respect to one or more Full
Value Awards that may be granted to any one Service Provider during a calendar
year shall be 300,000.  The limitations
in this Section 6(c) shall be adjusted proportionately in connection
with any change in the Company’s capitalization as described in Section 17.  For purposes of this Section 6(c), if an
Option is canceled in the same calendar year it was granted (other than in
connection with a transaction described in Section 17), the canceled
Option will be counted against the limit set forth in this Section 6(c).  For this purpose, if the exercise price of an
Option is reduced, the transaction shall be treated as a cancellation of the
Option and the grant of a new Option.


 


7.             Term
of Plan.  The Plan became effective
upon its initial adoption by the Board on March 21, 2001 and shall
continue in effect until it is terminated under Section 21 of the
Plan.  No Awards may be issued under the
Plan after March 21, 2011, the tenth (10th) anniversary of the date upon
which the Plan was initially adopted by the Board.


 


8.             Term
of Awards.  The term of each Award
shall be stated in the Award Agreement; provided,
however, that the term shall be no more than ten (10) years
from the date of grant thereof.  In the
case of an Incentive Stock Option granted to a Holder who, at the time the
Option is granted, owns (or is treated as owning under Code Section 424)
stock representing more than ten percent (10%) of the voting power of all
classes of stock of the Company or any Parent or Subsidiary, the term of the
Option shall be five (5) years from the date of grant or such shorter term
as may be provided in the Option Agreement.


 


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9.             Option
Exercise Price and Consideration.


 


(a)           The
per share exercise price for the Shares to be issued upon exercise of an Option
shall be such price as is determined by the Administrator, but shall be subject
to the following:


 


(i)            In
the case of an Incentive Stock Option


 


(A)          granted
to an Employee who, at the time of grant of such Option, owns (or is treated as
owning under Code Section 424) stock representing more than ten percent
(10%) of the voting power of all classes of stock of the Company or any Parent
or Subsidiary, the per Share exercise price shall be no less than one hundred
ten percent (110%) of the Fair Market Value per Share on the date of grant.


 


(B)           granted
to any other Employee, the per Share exercise price shall be no less than one
hundred percent (100%) of the Fair Market Value per Share on the date of grant.


 


(ii)           In
the case of a Non-Qualified Stock Option, the per Share exercise price shall be
no less than one hundred percent (100%) of the Fair Market Value per Share on
the date of grant.


 


(b)           The
consideration to be paid for the Shares to be issued upon exercise of an
Option, including the method of payment, shall be determined by the Administrator.  Such consideration may consist of (1) cash,
(2) check, (3) with the consent of the Administrator, other Shares
which (x) in the case of Shares acquired from the Company, have been owned
by the Holder for more than six (6) months on the date of surrender, and (y) have
a Fair Market Value on the date of surrender equal to the aggregate exercise
price of the Shares as to which such Option shall be exercised, (4) with
the consent of the Administrator, surrendered Shares then issuable upon exercise
of the Option having a Fair Market Value on the date of exercise equal to the
aggregate exercise price of the Option or exercised portion thereof, (5) property
of any kind which constitutes good and valuable consideration (6) with the
consent of the Administrator, delivery of a notice that the Holder has placed a
market sell order with a broker with respect to Shares then issuable upon
exercise of the Options and that the broker has been directed to pay a
sufficient portion of the net proceeds of the sale to the Company in
satisfaction of the Option exercise price, provided,
that payment of such proceeds is then made to the Company upon settlement of
such sale, or (7) with the consent of the Administrator, any combination
of the foregoing methods of payment.


 


10.           Exercise
of Option;  Vesting; Fractional Exercises.  Options granted hereunder shall be vested and
exercisable according to the terms hereof at such times and under such
conditions as determined by the Administrator and set forth in the Option Agreement.  An Option may not be exercised for a fraction
of a Share.


 


(a)           All
Options shall be subject to such additional terms and conditions as determined
by the Administrator and shall be evidenced by a written Option Agreement.  In the event that the exercise price of an
Option is intended to be below the Fair Market Value per Share on the date of
grant, such Option Agreement may also include limitations regarding the 


 


8

















 


exercise of such Option and may provide that such exercise is subject
to certain terms and restrictions, including but not limited to, an election,
by specified date, of the Holder, regarding such Option, to the extent such
terms and restrictions are required so as not cause the Option or the shares of
Common Stock issuable pursuant to the exercise of such Option to be includable
in the gross income of the Holder under Section 409A of the Code prior to
such times or occurrence of such events, as permitted by the Code and the
regulations and other guidance thereunder (including, without limitation, Section 409A
of the Code, and the regulations and other guidance issued by the Secretary of
the Treasury thereunder).


 


(b)           Deliveries
upon Exercise.  All or a portion of
an exercisable Option shall be deemed exercised upon delivery of all of the
following to the Secretary of the Company or his or her office:


 


(i)            A
written or electronic notice complying with the applicable rules established
by the Administrator stating that the Option, or a portion thereof, is
exercised.  The notice shall be signed by
the Holder or other person then entitled to exercise the Option or such portion
of the Option;


 


(ii)           Such
representations and documents as the Administrator, in its sole discretion,
deems necessary or advisable to effect compliance with Applicable Laws.  The Administrator may, in its sole
discretion, also take whatever additional actions it deems appropriate to
effect such compliance, including, without limitation, placing legends on share
certificates and issuing stop transfer notices to agents and registrars;


 


(iii)          Upon
the exercise of all or a portion of an unvested Option pursuant to Section 10(h),
a Restricted Stock purchase agreement in a form determined by the Administrator
and signed by the Holder or other person then entitled to exercise the Option
or such portion of the Option; and


 


(iv)          In
the event that the Option shall be exercised pursuant to Section 10(f) by
any person or persons other than the Holder, appropriate proof of the right of
such person or persons to exercise the Option.


 


(c)           Conditions
to Delivery of Share Certificates. 
The Company shall not be required to issue or deliver any certificate or
certificates for Shares purchased upon the exercise of any Option or portion
thereof prior to fulfillment of all of the following conditions:


 


(i)            The
admission of such Shares to listing on all stock exchanges on which such class
of stock is then listed;


 


(ii)           The
completion of any registration or other qualification of such Shares under any
state or federal law, or under the rulings or regulations of the Securities and
Exchange Commission or any other governmental regulatory body which the
Administrator shall, in its sole discretion, deem necessary or advisable;


 


(iii)          The
obtaining of any approval or other clearance from any state or federal
governmental agency which the Administrator shall, in its sole discretion,
determine to be necessary or advisable;


 


9
















 


(iv)          The
lapse of such reasonable period of time following the exercise of the Option as
the Administrator may establish from time to time for reasons of administrative
convenience; and


 


(v)           The
receipt by the Company of full payment for such Shares, including payment of
any applicable withholding tax, which in the sole discretion of the
Administrator may be in the form of consideration used by the Holder to pay for
such Shares under Section 9(b).


 


(d)           Termination
of Relationship as a Service Provider. 
If a Holder ceases to be a Service Provider other than by reason of the
Holder’s disability or death, such Holder may exercise his or her Option within
such period of time as is specified in the Option Agreement to the extent that
the Option is vested on the date of termination.  In the absence of a specified time in the
Option Agreement, the Option shall remain exercisable for three (3) months
following the Holder’s termination.  If,
on the date of termination, the Holder is not vested as to his or her entire
Option, the Shares covered by the unvested portion of the Option immediately
cease to be issuable under the Option and shall again become available for
issuance under the Plan.  If, after
termination, the Holder does not exercise his or her Option within the time
period specified herein, the Option shall terminate, and the Shares covered by
such Option shall again become available for issuance under the Plan.


 


(e)           Disability
of Holder.  If a Holder ceases to be
a Service Provider as a result of the Holder’s disability, the Holder may
exercise his or her Option within such period of time as is specified in the
Option Agreement to the extent the Option is vested on the date of
termination.  In the absence of a
specified time in the Option Agreement, the Option shall remain exercisable for
twelve (12) months following the Holder’s termination.  If such disability is not a “disability” as
such term is defined in Section 22(e)(3) of the Code, in the case of
an Incentive Stock Option such Incentive Stock Option shall automatically cease
to be treated as an Incentive Stock Option and shall be treated for tax
purposes as a Non-Qualified Stock Option from and after the day which is three (3) months
and one (1) day following such termination.  If, on the date of termination, the Holder is
not vested as to his or her entire Option, the Shares covered by the unvested
portion of the Option shall immediately cease to be issuable under the Option
and shall again become available for issuance under the Plan.  If, after termination, the Holder does not
exercise his or her Option within the time specified herein, the Option shall
terminate, and the Shares covered by such Option shall again become available
for issuance under the Plan.


 


(f)            Death
of Holder.  If a Holder dies while a
Service Provider, the Option may be exercised within such period of time as is
specified in the Option Agreement, by the Holder’s estate or by a person who
acquires the right to exercise the Option by bequest or inheritance, but only
to the extent that the Option is vested on the date of death.  In the absence of a specified time in the
Option Agreement, the Option shall remain exercisable for twelve (12) months
following the Holder’s termination.  If,
at the time of death, the Holder is not vested as to his or her entire Option,
the Shares covered by the unvested portion of the Option shall immediately
cease to be issuable under the Option and shall again become available for
issuance under the Plan.  The Option may
be exercised by the executor or administrator of the Holder’s estate or, if
none, by the person(s) entitled to exercise the Option under the Holder’s
will or the laws of descent or distribution. 
If the Option is not so exercised within the time specified herein, 


 


10

















 


the Option shall terminate, and the Shares covered by such Option shall
again become available for issuance under the Plan.


 


(g)           Regulatory
Extension.  A Holder’s Option
Agreement may provide that if the exercise of the Option following the
termination of the Holder’s status as a Service Provider (other than upon the
Holder’s death or Disability) would be prohibited at any time solely because
the issuance of shares would violate the registration requirements under the
Securities Act, then the Option shall terminate on the earlier of (i) the
expiration of the term of the Option set forth in Section 8 or (ii) the
expiration of a period of three (3) months after the termination of the
Holder’s status as a Service Provider during which the exercise of the Option
would not be in violation of such registration requirements.


 


(h)           Early
Exercisability.  The Administrator
may provide in the terms of a Holder’s Option Agreement that the Holder may, at
any time before the Holder’s status as a Service Provider terminates, exercise
the Option in whole or in part prior to the full vesting of the Option; provided, however, that Shares acquired
upon exercise of an Option which has not fully vested may be subject to any
forfeiture, transfer or other restrictions as the Administrator may determine
in its sole discretion.


 


(i)            Buyout
Provisions.  Absent the approval of
the stockholders of the Company, the Administrator shall not offer to buyout
for a payment in cash or Shares, an Option previously granted.


 


11.           Non-Transferability
of Awards.  Awards may not be sold,
pledged, assigned, hypothecated, transferred, or disposed of in any manner
other than by will or by the laws of descent or distribution and may be
exercised, during the lifetime of the Holder, only by the Holder.


 


12.           Grants
of Awards to Independent Directors. 
Notwithstanding anything herein to the contrary, the grant of any Award
to an Independent Director shall be made by the Board pursuant to a written
policy or program which may be recommended by a Committee of the Board and
approved by the Board (the “Independent Director Equity Compensation Policy”)
in its discretion.  The Independent
Director Equity Compensation Policy shall set forth the type of Award(s) to
be granted to Independent Directors, the number of Shares to be subject to
Independent Director Awards, the conditions on which such Awards shall be
granted, become exercisable and/or payable and expire, and such other terms and
conditions as may be set forth in the Independent Director Equity Compensation
Policy and determined by the Board in its discretion.


 


13.           Restricted
Stock; Stock Purchase Rights.


 


(a)           Restricted
Stock; Rights to Purchase. 
Restricted Stock and/or Stock Purchase Rights may be issued either
alone, in addition to, or in tandem with Options granted under the Plan and/or
cash awards made outside of the Plan. 
After the Administrator determines that it will offer Restricted Stock
or Stock Purchase Rights under the Plan, it shall advise the offeree in writing
of the terms, conditions and restrictions related to the offer, including the
number of Shares that such person shall be entitled to purchase, the price to
be paid, if any, and 


 


11

















 


the time within which such person must accept such offer.  The offer shall be accepted by execution of a
Restricted Stock purchase agreement in the form determined by the
Administrator.


 


(b)           Repurchase
Right; Forfeiture.  Unless the
Administrator determines otherwise, the Restricted Stock purchase agreement
shall grant the Company the right to repurchase Shares acquired upon exercise
of a Stock Purchase Right or provide for the forfeiture of Shares acquired
pursuant to a Restricted Stock award upon the termination of the purchaser’s status
as a Service Provider for any reason. 
The purchase price for Shares repurchased by the Company pursuant to
such repurchase right, if any, and, subject to Section 18, the rate at
which such repurchase right or any forfeiture provision shall lapse shall be
determined by the Administrator in its sole discretion, and shall be set forth
in the Restricted Stock purchase agreement.


 


(c)           Other
Provisions.  The Restricted Stock
purchase agreement shall contain such other terms, provisions and conditions
not inconsistent with the Plan as may be determined by the Administrator in its
sole discretion.


 


(d)           Rights
as a Shareholder.  Once the Stock
Purchase Right is exercised or the Restricted Stock is issued, the purchaser
shall have rights equivalent to those of a shareholder and shall be a
shareholder when his or her purchase or award is entered upon the records of
the duly authorized transfer agent of the Company.  No adjustment shall be made for a dividend or
other right for which the record date is prior to the date the Stock Purchase
Right is exercised or Restricted Stock is awarded, except as provided in Section 17
of the Plan.


 


14.           Restricted
Stock Units.


 


Any Service Provider selected by the Administrator may be granted an
award of Restricted Stock Units in the manner determined from time to time by
the Administrator.


 


(a)           Subject
to Section 18, the vesting of Restricted Stock Units shall be determined
by the Administrator and may be linked to specific performance criteria
determined to be appropriate by the Administrator, in each case on a specified
date or dates or over any period or periods determined by the
Administrator.  Common Stock underlying a
Restricted Stock Unit award will not be issued until the Restricted Stock Unit
award has vested, pursuant to a vesting schedule or performance criteria set by
the Administrator.


 


(b)           Unless
otherwise provided by the Administrator, a Holder awarded Restricted Stock
Units shall have no rights as a Company stockholder with respect to such
Restricted Stock Units until such time as the Restricted Stock Units have
vested and the Common Stock underlying the Restricted Stock Units has been
issued.


 


(c)           All
Restricted Stock Units shall be subject to such additional terms and conditions
as determined by the Administrator and shall be evidenced by a written Award
Agreement.  Such Award Agreement may also
include limitations regarding the distribution of payments due pursuant to such
Restricted Stock Units and may provide that such payments are subject to an
election, by a certain date, of the Holder to whom such payment is to be
awarded, to the extent such limitations and elections are required so as not
cause any Restricted Stock Unit Award or the shares of Common Stock or cash
issuable pursuant to any Restricted Stock Unit 


 


12

















 


Award (or other amounts issuable or distributable) to be includable in
the gross income of the Holder under Section 409A of the Code prior to
such times or occurrence of such events, as permitted by the Code and the
regulations and other guidance thereunder (including, without limitation, Section 409A
of the Code, and the regulations and other guidance issued by the Secretary of
the Treasury thereunder).


 


15.           Stock
Appreciation Rights.


 


A Stock Appreciation Right may be granted to any Service Provider
selected by the Administrator.  A Stock
Appreciation Right may be granted (a) in connection and simultaneously
with the grant of an Option, (b) with respect to a previously granted
Option, or (c) independent of an Option. 
The exercise price per share of Common Stock subject to each Stock
Appreciation Right shall be set by the Administrator, but shall not be less
than 100% of the per Share Fair Market Value on the date the Stock Appreciation
Right is granted.  The term of each Stock
Appreciation Right shall be no more than ten (10) years from the date of
grant thereof.  A Stock Appreciation
Right otherwise shall be subject to such terms and conditions not inconsistent
with the Plan as the Administrator shall impose and shall be evidenced by an
Award Agreement.


 


(a)           Coupled
Stock Appreciation Rights.  A Coupled
Stock Appreciation Right (“CSAR”) shall be related to a particular
Option and shall be exercisable only when and to the extent the related Option
is exercisable.


 


(i)            A
CSAR may be granted to a Holder for no more than the number of shares subject
to the simultaneously or previously granted Option to which it is coupled.


 


(ii)           A
CSAR shall entitle the Holder (or other person entitled to exercise the Option
pursuant to the Plan) to surrender to the Company unexercised a portion of the
Option to which the CSAR relates (to the extent then exercisable pursuant to
its terms) and to receive from the Company in exchange therefor an amount
determined by multiplying the difference obtained by subtracting the Option
exercise price from the Fair Market Value of a share of Common Stock on the
date of exercise of the CSAR by the number of shares of Common Stock with
respect to which the CSAR shall have been exercised, subject to any limitations
the Administrator may impose.


 


(b)           Independent
Stock Appreciation Rights.  An
Independent Stock Appreciation Right (“ISAR”) shall be unrelated to any
Option and shall have a term set by the Administrator.  An ISAR shall be exercisable in such
installments as the Administrator may determine.  An ISAR shall cover such number of shares of
Common Stock as the Administrator may determine.  The exercise price per share of Common Stock
subject to each ISAR shall be set by the Administrator; provided, however, that, the Administrator
in its sole and absolute discretion may provide that the ISAR may be exercised
subsequent to a termination of employment or service, as applicable, or
following an Acquisition of the Company, or because of the Holder’s retirement,
death or disability, or otherwise.  An
ISAR shall entitle the Holder (or other person entitled to exercise the ISAR
pursuant to the Plan) to exercise all or a specified portion of the ISAR (to
the extent then exercisable pursuant to its terms) and to receive from the
Company an amount determined by multiplying the difference obtained by
subtracting the


 


13

















 


exercise price per share of the ISAR from the Fair Market Value of a
share of Common Stock on the date of exercise of the ISAR by the number of
shares of Common Stock with respect to which the ISAR shall have been
exercised, subject to any limitations the Administrator may impose.


 


(c)           Payment
and Limitations on Exercise.


 


(i)            Subject
to Section 15(c)(ii), payment of the amounts determined under Sections 15(a) and
15(b) above shall be in cash, in Common Stock (based on its Fair Market
Value as of the date the Stock Appreciation Right is exercised) or a
combination of both, as determined by the Administrator.


 


(ii)           To
the extent any payment under this Section 15 is effected in Common Stock,
it shall be made subject to satisfaction of all provisions of Sections 9 and 10
above pertaining to Options.


 


16.           Other
Awards.


 


(a)           Performance
Share Awards.  Any Service Provider
selected by the Committee may be granted one or more Performance Share awards
which may be denominated in a number of Shares or in a dollar value of Shares
and which may be linked to any one or more specific performance criteria determined
appropriate by the Committee, in each case on a specified date or dates or over
any period or periods determined by the Committee.  In making such determinations, the Committee
shall consider (among such other factors as it deems relevant in light of the
specific type of award) the contributions, responsibilities and other
compensation of the particular Holder.


 


(b)           Dividend
Equivalents.  Any Service Provider
selected by the Committee may be granted Dividend Equivalents based on the
dividends declared on the Shares that are subject to any Award other than an
Option or Stock Appreciation Right, to be credited as of dividend payment
dates, during the period between the date the Award is granted and the date the
Award is exercised, vests or expires, as determined by the Committee.  Such Dividend Equivalents shall be converted
to cash or additional Shares by such formula and at such time and subject to
such limitations as may be determined by the Committee.  For the avoidance of doubt, Dividend Equivalents
shall not be granted with respect to Options or Stock Appreciation Rights.


 


(c)           Stock
Payments.  Any Service Provider
selected by the Committee may receive Stock Payments in the manner determined
from time to time by the Committee.  The
number of shares shall be determined by the Committee and may be based upon
specific performance criteria determined appropriate by the Committee,
determined on the date such Stock Payment is made or on any date thereafter.


 


17.           Adjustments
upon Changes in Capitalization, Merger or Asset Sale.


 


(a)           In
the event that the Administrator determines that other than an Equity
Restructuring any dividend or other distribution (whether in the form of cash,
Common Stock, other securities, or other property), reclassification, reorganization,
merger, consolidation, spin-off, combination, repurchase, liquidation,
dissolution, or sale, transfer, exchange or other 


 


14

















 


disposition of all or substantially all of the assets of the Company, or
exchange of Common Stock or other securities of the Company, issuance of
warrants or other rights to purchase Common Stock or other securities of the
Company, or other similar corporate transaction or event, in the
Administrator’s sole discretion, affects the Common Stock such that an
adjustment is determined by the Administrator to be appropriate in order to
prevent dilution or enlargement of the benefits or potential benefits intended
by the Company to be made available under the Plan or with respect to any
Award, then the Administrator shall, in such manner as it may deem equitable,
adjust any or all of:


 


(i)            the
number and kind of shares of Common Stock (or other securities or property)
with respect to which Awards may be granted or awarded (including, but not
limited to, adjustments of the limitations in Section 3 on the maximum
number and kind of shares which may be issued and adjustments of the maximum
number of Shares that may be purchased by any Holder in any calendar year
pursuant to Section 6(c));


 


(ii)           the
number and kind of shares of Common Stock (or other securities or property)
subject to outstanding Awards; and


 


(iii)          the
grant or exercise price with respect to any Award.


 


(b)           In
the event of any transaction or event described in Section 17(a), the
Administrator, in its sole discretion, and on such terms and conditions as it
deems appropriate, and to the extent allowed by Section 409A of the Code
and any applicable regulations thereunder, to the extent applicable, either by
the terms of the Award or by action taken prior to the occurrence of such
transaction or event and either automatically or upon the Holder’s request, is
hereby authorized to take any one or more of the following actions whenever the
Administrator determines that such action is appropriate in order to prevent
dilution or enlargement of the benefits or potential benefits intended by the
Company to be made available under the Plan or with respect to any Award
granted or issued under the Plan or to facilitate such transaction or event:


 


(i)            To
provide for either the purchase of any such Award for an amount of cash equal
to the amount that could have been obtained upon the exercise of such Award or
realization of the Holder’s rights had such Award been currently exercisable or
payable or fully vested or the replacement of such Award with other rights or
property selected by the Administrator in its sole discretion;


 


(ii)           To
provide that such Award shall be exercisable as to all shares covered thereby,
notwithstanding anything to the contrary in the Plan or the provisions of such
Award;


 


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


 


15

















 


(iv)          To
make adjustments in the number and type of shares of Common Stock (or other
securities or property) subject to outstanding Awards, and/or in the terms and
conditions of (including the grant or exercise price), and the criteria
included in, outstanding Awards or Awards which may be granted in the future;
and


 


(v)           To
provide that immediately upon the consummation of such event, such Award shall
not be exercisable and shall terminate; provided,
that for a specified period of time prior to such event, such Award shall be
exercisable as to all Shares covered thereby, and the restrictions imposed
under an Award Agreement upon some or all Shares may be terminated and, in the
case of Restricted Stock, some or all shares of such Restricted Stock may cease
to be subject to repurchase, notwithstanding anything to the contrary in the
Plan or the provisions of such Award Agreement.


 


(c)           In
connection with the occurrence of any Equity Restructuring, and notwithstanding
anything to the contrary in Sections 17(a) and 17(b):


 


(i)            The
number and type of securities subject to each outstanding Award and the
exercise price or grant price thereof, if applicable, will be proportionately
adjusted.  The adjustments provided under
this Section 17(c)(i) shall be nondiscretionary and shall be final
and binding on the affected Holder and the Company.


 


(ii)           The
Administrator shall make such proportionate adjustments, if any, as the
Administrator in its discretion may deem appropriate to reflect such Equity
Restructuring with respect to the aggregate number and kind of Shares that may
be issued under the Plan (including, but not limited to, adjustments of the
limitations in Section 3 and Section 6(c)).


 


(iii)          Notwithstanding
anything in this Section 17 to the contrary, this Section 17(c) shall
not apply to, and instead Section 17(a) of the Plan shall apply to,
any Award to which the application of this Section 17(c) would (A) result
in a penalty tax under Section 409A of the Code and the proposed and final
regulations and guidance issued by the Secretary of the Treasury thereunder or (B) cause
any Incentive Stock Option to fail to qualify as an “incentive stock option”
under Section 422 of the Code.


 


(d)           Subject
to Section 3, the Administrator may, in its sole discretion, include such
further provisions and limitations in any Award Agreement or Common Stock
certificate, as it may deem equitable and in the best interests of the Company.


 


(e)           If
the Company undergoes an Acquisition, then any surviving corporation or entity
or acquiring corporation or entity, or affiliate of such corporation or entity,
may assume any Awards outstanding under the Plan or may substitute similar
stock awards (including an award to acquire the same consideration paid to the
stockholders in the transaction described in this subsection 17(e)) for those outstanding
under the Plan.  In the event any
surviving corporation or entity or acquiring corporation or entity in an
Acquisition, or affiliate of such corporation or entity, does not assume such
Awards or does not substitute similar stock awards for those outstanding under
the Plan, then with respect to (i) Awards held by Holders in the Plan
whose status as a Service Provider has not terminated prior to such event, the
vesting of such 


 


16

















 


Awards (and, if applicable, the time during which such awards may be
exercised) shall be accelerated and made fully exercisable and all restrictions
thereon shall lapse at least ten (10) days prior to the closing of the
Acquisition (and the Awards terminated if not exercised prior to the closing of
such Acquisition), and (ii) any other Awards outstanding under the Plan,
such rights shall be terminated if not exercised prior to the closing of the
Acquisition.  Notwithstanding the
assumption or substitution of Options granted to Service Providers other than
Independent Directors pursuant to the foregoing provisions, any Award granted
to Independent Directors pursuant to the Independent Director Equity
Compensation Policy which is outstanding immediately prior to the closing of the
Acquisition shall not be assumed or substituted for, shall be accelerated and
made fully vested and/or exercisable, as applicable, at least ten (10) days
prior to the closing of the Acquisition and shall terminate if not exercised
prior to the closing of such Acquisition.


 


(f)            The
existence of the Plan or any Award Agreement and the Awards granted hereunder
shall not affect or restrict in any way the right or power of the Company or
the stockholders of the Company to make or authorize any adjustment, recapitalization,
reorganization or other change in the Company’s capital structure or its
business, any merger or consolidation of the Company, any issue of stock or of
options, warrants or rights to purchase stock or of bonds, debentures,
preferred or prior preference stocks whose rights are superior to or affect the
Common Stock or the rights thereof or which are convertible into or
exchangeable for Common Stock, or the dissolution or liquidation 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.


 


18.           Full
Value Award Vesting Limitations. 
Notwithstanding any other provision of this Plan to the contrary, Full
Value Awards made to Employees or Consultants shall become vested over a period
of not less than three years (or, in the case of vesting based upon the
attainment of performance-based objectives, over a period of not less than one
year) following the date the Award is made, and the vesting schedule for Full
Value Awards may only be amended in the event of a Change in Control or an
Employee or Consultant’s death, Disability or retirement; provided, however, that, notwithstanding
the foregoing, Full Value Awards that result in the issuance of an aggregate of
up to 5% of the Shares available pursuant to Section 3 may be granted to,
or amended with respect to, any one or more Holders without regard to such
minimum vesting or amendment provisions.


 


19.           Time
of Granting Awards.  The date of grant
of an Award shall, for all purposes, be the date on which the Administrator
makes the determination granting such Award, or such other date as is
determined by the Administrator.  Notice
of the determination shall be given to each Service Provider to whom an Award
is so granted within a reasonable time after the date of such grant.


 


20.           Amendment
and Termination of the Plan.


 


(a)           Amendment
and Termination.  The Board may at
any time wholly or partially amend, alter, suspend or terminate the Plan.  However, without approval of the Company’s
stockholders given within twelve (12) months before or after the action by the
Board, no action of the Board may, except as provided in Section 17,
increase the limits imposed 


 


17

















 


in Section 3 on the maximum number of Shares which may be issued
under the Plan or extend the term of the Plan under Section 7.


 


(b)           Savings
Clause.  Notwithstanding anything to
the contrary in the Plan or any Award Agreement relating to an outstanding
Award, if and to the extent the Administrator shall determine that the terms of
any Award may result in the failure of such Award to comply with the
requirements of Section 409A of the Code, or any applicable regulations or
guidance promulgated by the Secretary of the Treasury in connection therewith,
the Administrator shall have authority to take such action to amend, modify,
cancel or terminate the Plan or any Award as it deems necessary or advisable,
including without limitation:


 


(i)            Any
amendment or modification of the Plan or any Award to conform the Plan or such
Award to the requirements of Section 409A of the Code or any regulations
or other guidance thereunder (including, without limitation, any amendment or
modification of the terms of any Award regarding vesting, exercise, or the
timing or form of payment).


 


(ii)           Any
cancellation or termination of any unvested Award, or portion thereof, without
any payment to the Holder holding such Award.


 


(iii)          Any
cancellation or termination of any vested Award, or portion thereof, with
immediate payment to the Holder holding such Award of the amount otherwise
payable upon the immediate exercise of any such Award, or vested portion
thereof, by such Holder.


 


(iv)          Any
such amendment, modification, cancellation, or termination of the Plan or any
Award may adversely affect the rights of a Holder with respect to such Award
without the Holder’s consent.


 


(c)           Stockholder
Approval.  The Board shall obtain
stockholder approval of any Plan amendment to the extent necessary and
desirable to comply with Applicable Laws.


 


(d)           Effect
of Amendment or Termination.  Except
as provided in Section 17(b), above, no amendment, alteration, suspension
or termination of the Plan shall impair the rights of any Holder, unless mutually
agreed otherwise between the Holder and the Administrator, which agreement must
be in writing and signed by the Holder and the Company.  Termination of the Plan shall not affect the
Administrator’s ability to exercise the powers granted to it hereunder with
respect to Awards granted or awarded under the Plan prior to the date of such
termination.


 


(e)           Repricing
Prohibited.  Notwithstanding any
provision in this Plan to the contrary, absent approval of the stockholders of
the Company no Award may be amended to reduce the per Share exercise price of
the Shares subject to such Award below the per Share exercise price as of the
date the Award is granted.  In addition,
absent approval of the stockholders of the Company no Award may be granted in
exchange for, or in connection with, the cancellation or surrender of an Award
having a higher per Share exercise price.


 


18

















 


21.           Stockholder
Approval.  The Plan will be submitted
for the approval of the Company’s stockholders within twelve (12) months after
the date of the Board’s adoption of the Plan. 
Awards may be granted or awarded prior to such stockholder approval,
provided that Awards not previously authorized under the Plan shall not be
exercisable, shall not vest and the restrictions thereon shall not lapse prior
to the time when the Plan is approved by the stockholders, and provided further
that if such approval has not been obtained at the end of said twelve-month
period, any Award previously granted or awarded but not previously authorized
under the Plan shall thereupon be canceled and become null and void.


 


22.           Inability
to Obtain Authority.  The inability
of the Company to obtain authority from any regulatory body having
jurisdiction, which authority is deemed by the Company’s counsel to be
necessary to the lawful issuance and sale of any Shares hereunder, shall
relieve the Company of any liability in respect of the failure to issue or sell
such Shares as to which such requisite authority shall not have been obtained.


 


23.           Reservation
of Shares.  The Company, during the
term of this Plan, shall at all times reserve and keep available such number of
Shares as shall be sufficient to satisfy the requirements of the Plan.


 


24.           Investment
Intent.  The Company may require a
Plan Holder, as a condition of exercising or acquiring stock under any Award, (i) to
give written assurances satisfactory to the Company as to the Holder’s
knowledge and experience in financial and business matters and/or to employ a
purchaser representative reasonably satisfactory to the Company who is
knowledgeable and experienced in financial and business matters and that he or
she is capable of evaluating, alone or together with the purchaser
representative, the merits and risks of exercising rights under any Award; and (ii) to
give written assurances satisfactory to the Company stating that the Holder is
acquiring the stock subject to the Award for the Holder’s own account and not
with any present intention of selling or otherwise distributing the stock.  The foregoing requirements, and any
assurances given pursuant to such requirements, shall be inoperative if (A) the
issuance of the shares upon the exercise or acquisition of stock under the
applicable Award has been registered under a then currently effective
registration statement under the Securities Act or (B) as to any
particular requirement, a determination is made by counsel for the Company that
such requirement need not be met in the circumstances under the then applicable
securities laws.  The Company may, upon
advice of counsel to the Company, place legends on stock certificates issued
under the Plan as such counsel deems necessary or appropriate in order to
comply with applicable securities laws, including, but not limited to, legends
restricting the transfer of the stock.


 


25.           Governing
Law.  The validity and enforceability
of this Plan shall be governed by and construed in accordance with the laws of
the State of Delaware without regard to otherwise governing principles of
conflicts of law.


 


19