exv10w25






Exhibit 10.25




ZiLOG, INC.

2002 OMNIBUS STOCK INCENTIVE PLAN




Section 1. Purpose of Plan.




          The name of this plan is the ZiLOG, Inc. 2002 Omnibus Stock
Incentive Plan (the “Plan”). The Plan was authorized in accordance with
Section 303 of the Delaware General Corporation Law and thereby made
effective on the Effective Date (as hereinafter defined). The purpose of
the Plan is to enable the Company and its Related Companies (as hereinafter
defined) to attract, retain and reward employees, directors, advisors and
consultants and to strengthen the existing mutuality of interests between
such persons and the Company’s stockholders. To accomplish the foregoing,
the Plan provides that the Company may grant Incentive Stock Options,
Nonqualified Stock Options and Restricted Stock (each as hereinafter
defined). At any time from and following the Effective Date, the Board (as
hereinafter defined) may determine that the Plan is intended, to the extent
applicable, to satisfy the requirements of Section 162(m) of the Code (as
hereinafter defined) and shall be interpreted in a manner consistent with
the requirements thereof.



Section 2. Definitions.




          For purposes of the Plan, the following terms shall be defined as
set forth below:




          (a) “Award” means an award of Incentive Stock Options,
Nonqualified Stock Options or Restricted Stock under the Plan.




          (b) “Award Agreement” means, with respect to each Award, the
written agreement between the Company and the Participant setting forth the
terms and conditions of the Award.




          (c) “Board” means the board of directors of the Company.




          (d) “Cause” means, unless otherwise provided in an Award
Agreement, (1) the failure by the Participant to substantially perform his
or her duties and obligations to the Company as the same may, from time to
time, be assigned to the Participant, including without limitation repeated
refusal to follow the reasonable directions of the employer or supervisor,
knowing violation of law in the course of performance of the duties of
Participant’s employment or service with the Company, repeated or excessive
absences from work without a reasonable excuse; (2) fraud, material
dishonesty or moral turpitude affecting the Company; or (3) the commission
of acts constituting, the indictment or conviction of, or plea of guilty or
nolo contendere for, the commission of a felony or a crime involving
material dishonesty or moral turpitude. Determination of Cause shall be
made by the Committee in its sole discretion.




          (e) “Change in Capitalization” means any increase, reduction, or
change or exchange of Shares for a different number or kind of shares or
other securities or property by reason of a reclassification,
recapitalization, merger, consolidation, reorganization, issuance of





 









 







warrants or rights, stock dividend, stock split or reverse stock split,
combination or exchange of shares, repurchase of shares, change in
corporate structure or otherwise; or any other corporate action, such as
declaration of a special dividend, that affects the capitalization of the
Company.




          (f) “Change in Control” means: (i) a dissolution, liquidation or
sale of all or substantially all of the assets of the Company; (ii) the
consummation of a merger or consolidation of the Company or any direct or
indirect subsidiary of the Company with any other corporation or other
entity, other than a merger or consolidation that results in the voting
securities of the Company outstanding immediately prior to such merger or
consolidation continuing to represent (either by remaining outstanding or
by being converted into voting securities of the surviving entity or any
parent thereof), in combination with the ownership of any trustee or other
fiduciary holding securities under an employee benefit plan of the Company
or any subsidiary of the Company, at least 50% of the combined voting power
of the securities of the Company or such surviving entity or any parent
thereof outstanding immediately after such merger or consolidation; (iii)
from and after the Listing Date, the acquisition by any person, entity or
group within the meaning of Section 13(d) or 14(d) of the Exchange Act, or
any comparable successor provisions (excluding any employee benefit plan,
or related trust, sponsored or maintained by the Company or any affiliate
of the Company) of the beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act, or comparable successor rule) of
securities of the Company representing at least fifty percent (50%) of the
combined voting power entitled to vote in the election of directors.




          (g) “Code” means the Internal Revenue Code of 1986, as amended
from time to time, or any successor thereto.




          (h) “Committee” means the committee established by the Board to
administer the Plan. Prior to the consummation of an Initial Public
Offering, the Committee may be the entire Board. From and after the
consummation of an Initial Public Offering, unless otherwise determined by
the Board, the composition of the Committee shall at all times consist
solely of persons who are (i) “Nonemployee Directors” as defined in Rule
16b-3 issued under the Exchange Act, and (ii) “outside directors” as
defined in Section 162(m) of the Code.




          (i) “Common Stock” means the common stock, par value $0.01 per
share, of the Company.




          (j) “Company” means ZiLOG, Inc., a Delaware corporation (or any
successor corporation).




          (k) “Comparable Companies” means Cypress Semiconductor
Corporation, Fairchild Semiconductor International, Inc., Microchip
Technology Incorporated, National Semiconductor Corporation and ON
Semiconductor Corporation; provided that if any of such companies shall
cease to exist or cease to have a class of equity securities listed on a
national securities exchange or quoted on a national market quotation
system, then such company shall no longer be considered a Comparable
Company and the Committee shall have the power and authority to select an
entity to replace such Comparable Company, as set forth in Section
3(a)(viii).






 









 








          (l) “Disability” means: (1) any physical or mental condition that
would qualify a Participant for a disability benefit under any long-term
disability plan maintained by the Company; (2) when used in connection with
the exercise of an Incentive Stock Option following termination of
employment, disability within the meaning of Section 22(e)(3) of the Code;
or (3) such other condition as may be determined in the sole discretion of
the Committee to constitute Disability.




          (m) “EBITDA” represents: (1) with respect to the Company, earnings
(losses) before interest, income taxes, depreciation, amortization of
intangible assets, non-cash stock compensation expenses, equity in loss of
Qualcore, Inc., cumulative effect of change in accounting principle and
special charges; and (2) with respect to the Comparable Companies, the
definition of EBITDA published in such company’s periodic reports under the
Exchange Act.




          (n) “EBITDA-Linked Options” means the Options granted on the
Effective Date pursuant to Section 8 hereof.




          (o) “Eligible Recipient” means an officer, director, employee,
consultant or advisor of the Company or of any Parent or Related Company.




          (p) “Enterprise Value” means the Fair Market Value of a company’s
outstanding common stock plus the face amount of any debt and preferred
stock, less cash and cash equivalents as listed on the company’s balance
sheet contained in the company’s latest available publicly filed financial
statements.




          (q) “Exchange Act” shall mean the Securities Exchange Act of 1934,
as amended from time to time.




          (r) “Exercise Price” means the per share price at which a holder
of an Option may purchase the Shares issuable upon exercise of the Option.




          (s) “Fair Market Value” as of a particular date shall mean the
fair market value of a Share as determined by the Committee in its sole
discretion; provided that (i) if the Shares are admitted to trading on a
national securities exchange, fair market value of a Share on any date
shall be the closing sale price reported for such Share on such exchange on
the last date preceding such date on which a sale was reported, (ii) if the
Shares are admitted to quotation on the National Association of Securities
Dealers Automated Quotation (“Nasdaq”) System or other comparable quotation
system and has been designated as a National Market System (“NMS”)
security, fair market value of a Share on any date shall be the closing
sale price reported for such Share on such system on the last date
preceding such date on which a sale was reported, or (iii) if the Shares
are admitted to quotation on the Nasdaq System but have not been designated
as an NMS security, fair market value of a Share on any date shall be the
average of the highest bid and lowest asked prices of such Share on such
system on the last date preceding such date on which both bid and ask
prices were reported.




          (t) “Immediate Family” shall mean any child, stepchild,
grandchild, parent, stepparent, grandparent, spouse, sibling,
mother-in-law, father-in-law, daughter-in-law, son-in-law, brother-in-law,
or sister-in-law, including adoptive relationships and any person sharing
the employee’s household (other than a tenant or employee).





 









 








          (u) “Incentive Stock Option” shall mean an Option that is an
“incentive stock option” within the meaning of Section 422 of the Code, or
any successor provision, and that is designated by the Committee as an
Incentive Stock Option.




          (v) “Informal Committee Designee” shall mean the member of the
Board appointed by the informal committee of the holders of the Company’s 9
1/2% Senior Secured Notes due 2005 pursuant to the Company’s Certificate of
Incorporation, as amended.




          (w) “Initial Public Offering” means the first underwritten public
offering of Shares of the Company after the Effective Date.




          (x) “Listing Date” means the first date upon which any security of
the Company is listed (or approved for listing) upon notice of issuance on
any securities exchange, or designated (or approved for designation) upon
notice of issuance as a national market security on an interdealer
quotation system if such securities exchange or interdealer quotation
system has been certified in accordance with the provisions of Section
25100(o) of the California Corporate Securities Law of 1968.




          (y) “Non-EBITDA-Linked Options” means all Options other than
EBITDA-Linked Options.




          (z) “Nonqualified Stock Option” means any Option that is not an
Incentive Stock Option, including any Option that provides (as of the time
such Option is granted) that it will not be treated as an Incentive Stock
Option.




          (aa) “Option” means an Incentive Stock Option, a Nonqualified
Stock Option, whether an EBITDA-Linked Option or a Non-EBITDA-Linked
Option, or any of them, as the context requires.




          (bb) “Option Shares” means Shares issued upon the exercise of
Options.




          (cc) “Parent” means any corporation (other than the Company) in an
unbroken chain of corporations ending with the Company, if each of the
corporations in the chain (other than the Company) owns stock possessing
50% or more of the combined voting power of all classes of stock in one of
the other corporations in the chain.




          (dd) “Participant” means any Eligible Recipient selected by the
Committee, pursuant to the Committee’s authority in Section 3 hereof, to
receive Awards. A Participant who receives the grant of an Option is
sometimes referred to herein as an “Optionee.”




          (ee) “Person” shall have the meaning given in Section 3(a)(9) of
the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof,
except that such term shall not include (i) the Company or any of its
Subsidiaries, (ii) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any of its affiliates, (iii) an
underwriter temporarily holding securities pursuant to an offering of such
securities, or (iv) a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company.





 









 








          (ff) “Plan Shares” means (i) Option Shares and (ii) shares of
Restricted Stock granted pursuant to Section 9 of the Plan, whether or not
the applicable restrictions remain effective or have lapsed.




          (gg) “Related Company” means any corporation, partnership, joint
venture or other entity in which the Company owns, directly or indirectly,
at least a 20% beneficial ownership interest.




          (hh) “Restricted Stock” means Shares subject to certain
restrictions granted pursuant to Section 9 hereof, including Option Shares
subject to certain restrictions granted to a Participant upon such
Participant’s early exercise of an Option pursuant to Section 9(h).




          (ii) “Securities Act” means the Securities Act of 1933, as amended
from time to time.




          (jj) “Shares” means shares of Common Stock.




          (kk) “Subsidiary” means any corporation (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 50% or more of the total combined voting power of all
classes of stock in one of the other corporations in the chain.




          (ll) “Ten Percent Owner” means an Eligible Recipient who owns
stock possessing more than ten percent of the total combined voting power
of all classes of stock of the Company or its Parent or Subsidiary
corporations.



Section 3. Administration.




          (a) The Plan shall be administered by the Committee, which shall
serve at the pleasure of the Board. Pursuant to the terms of the Plan, the
Committee shall have the power and authority, without limitation:





          (i) to select those Eligible Recipients who shall be
Participants;




          (ii) to determine whether and to what extent Options or
awards of Restricted Stock are to be granted hereunder to
Participants;




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




          (iv) to determine the terms and conditions, not inconsistent
with the terms of the Plan, of each Award granted hereunder;




          (v) to determine the terms and conditions, not inconsistent
with the terms of the Plan, which shall govern all written
instruments evidencing Options or awards of Restricted Stock granted
hereunder;




          (vi) to adopt, alter and repeal such administrative rules,
guidelines and practices governing the Plan as it shall from time to
time deem advisable;



 









 






          (vii) to interpret the terms and provisions of the Plan and
any Award issued under the Plan (and any Award Agreement relating
thereto) in its sole discretion and to otherwise supervise the
administration of the Plan; and




          (viii) to select one or more corporations to replace one or
more of the Comparable Companies on the terms set forth in Section
2(k).



          (b) All decisions made by the Committee pursuant to the provisions
of the Plan shall be final, conclusive and binding on all persons,
including the Company and the Participants. No member of the Board or the
Committee, nor any officer or employee of the Company acting on behalf of
the Board or the Committee, shall be personally liable for any action,
determination, or interpretation taken or made in good faith with respect
to the Plan, and all members of the Board or the Committee and each and any
officer or employee of the Company acting on their behalf shall, to the
extent permitted by law, be fully indemnified and protected by the Company
in respect of any such action, determination or interpretation.



Section 4. Shares Reserved for Issuance Under the Plan.




          (a) The total number of Shares reserved and available for issuance
under the Plan shall be 4,558,140 of which 2,116,279 shall be reserved for
issuance of Options and 2,441,861 shall be reserved for issuance of grants
as Restricted Stock. Such Shares may consist, in whole or in part, of
authorized and unissued Shares or treasury Shares.




          (b) To the extent that (i) an Option expires or is otherwise
cancelled or terminated without being exercised, or (ii) any Shares subject
to any award of Restricted Stock are forfeited, such Shares shall again be
available for issuance in connection with future Awards granted under the
Plan. If any Shares have been pledged as collateral for indebtedness
incurred by a Participant in connection with the exercise of an Option and
such Shares are returned to the Company in satisfaction of such
indebtedness, such Shares shall again be available for issuance in
connection with future Awards granted under the Plan.




          (c) From and after the date that the Plan is intended to comply
with the requirements of Section 162(m) of the Code, the aggregate number
of Shares with respect to which Awards may be granted to any individual
Optionee during any fiscal year shall not exceed 4,000,000.



Section 5. Equitable Adjustments; Change in Control




          (a) In the event of any Change in Capitalization, an equitable
substitution or adjustment may be made in (i) the aggregate number and/or
kind of Shares reserved for issuance under the Plan (including the
aggregate number and/or kind of Shares reserved for issuance as Options and
as Restricted Stock and the maximum aggregate number of Shares with respect
to Awards that may be granted to any individual Optionee during any fiscal
year), (ii) the kind, number and/or Exercise Price of Shares or other
property subject to outstanding Options granted under the Plan, and (iii)
the kind, number and/or purchase price of Shares or other property subject
to outstanding awards of Restricted Stock granted under the Plan, in each
case as may be determined by the Committee, in its sole discretion. Such





 









 







other equitable substitutions or adjustments shall be made as may be
determined by the Committee, in its sole discretion. Without limiting the
generality of the foregoing, in connection with a Change in Capitalization,
the Committee may provide, in its sole discretion, for the cancellation of
any outstanding Awards in exchange for payment in cash or other property of
the Fair Market Value of the Shares covered by such Awards, reduced, in the
case of Options, by the exercise price thereof.




          (b) Unless otherwise determined by the Committee, in the event of
a Change in Control:





          (i) with respect to the Non-EBITDA-Linked Options, unless such
Options are assumed or equivalent awards or rights are substituted
therefor, the unvested Non-EBITDA-Linked Options shall become fully vested
and exercisable and all restrictions on the vesting or exercisability of
such Non-EBITDA-Linked Options shall lapse as of the date of the Change in
Control; and with respect to Restricted Stock Awards acquired upon early
exercise of Non-EBITDA-Linked Options, unless such Awards are assumed and
the Company’s repurchase rights are assigned to the successor (or parent
thereof), or equivalent awards or rights are substituted therefor, all
restrictions on such Awards shall lapse as of the date of the Change in
Control;




          (ii)
with respect to the EBITDA-Linked Options:




          (1) if the aggregate sale price realized upon
the Change in Control divided by the median Enterprise
Value to EBITDA ratio of the Comparable Companies
exceeds $17.2 million, one-third of the unvested
EBITDA-Linked Options shall become fully vested and
exercisable and all restrictions on the vesting or
exercisability of such EBITDA-Linked Options shall
lapse as of the date of such Change in Control;




          (2) if the aggregate sale price realized upon
the Change in Control divided by the median Enterprise
Value to EBITDA ratio of the Comparable Companies
exceeds $25.7 million, two-thirds of the unvested
EBITDA-Linked Options shall become fully vested and
exercisable and all restrictions on the vesting or
exercisability of such EBITDA-Linked Options shall
lapse as of the date of such Change in Control;




          (3) if the aggregate sale price realized upon
the Change in Control divided by the median Enterprise
Value to EBITDA ratio of the Comparable Companies
exceeds $30.0 million, all of the unvested
EBITDA-Linked Options shall become fully vested and
exercisable and all restrictions on the vesting or
exercisability of such EBITDA-Linked Options shall
lapse as of the date of such Change in Control;




	 	(iii)	 	with respect to Restricted Stock, if such Change in Control
occurs prior to the third anniversary of the Effective
Date, then all restrictions under Section 9(d) hereof on
the Restricted Stock granted under Section 9(a) of this
Plan shall lapse; and




 









 






	 	(iv)	 	with respect to Options other than Options that are
continued or assumed, or have equivalent awards or rights
substituted therefor, such Options that are not exercised
as of the occurrence of the Change in Control shall expire
and be of no force or effect immediately upon the
occurrence of the Change in Control.




Section 6. Eligibility.




          The Participants under the Plan shall be selected from time to
time by the Committee, in its sole discretion, from among Eligible Recipients.
The Committee shall have the authority to grant to any Eligible Recipient
Incentive Stock Options, Nonqualified Stock Options or Restricted Stock;
provided that directors of the Company or any Parent or Related Company who
are not employees of the Company or of any Parent or Related Company, and
consultants or advisors to the Company or to any Parent or Related Company
may not be granted Incentive Stock Options; provided further that Incentive
Stock Options may not be granted to an employee of a Related Company if
such Related Company is not a Subsidiary.



Section 7. Non-EBITDA-Linked Options.




          (a) Use of Term. As used in this Section 7, “Options” shall
mean Non-EBITDA-Linked Options.




          (b) General. Options may be granted alone or in addition to
other Awards granted under the Plan. Any Option granted under the Plan shall be
evidenced by an Award Agreement in such form as the Committee may from time
to time approve. The provisions of each Option need not be the same with
respect to each Participant. Participants who are granted Options shall
enter into an Award Agreement with the Company, in such form as the
Committee shall determine, which Award Agreement shall set forth, among
other things, the Exercise Price of the Option, the term of the Option and
provisions regarding exercisability and vesting of the Option granted
thereunder. The Options granted under the Plan may be of two types: (i)
Incentive Stock Options and (ii) Nonqualified Stock Options. To the extent
that any Option does not qualify as an Incentive Stock Option, it shall
constitute a separate Nonqualified Stock Option. More than one Option may
be granted to the same Participant and be outstanding concurrently
hereunder. Options granted under the Plan shall be subject to the terms and
conditions set forth in paragraphs (b)-(k) of this Section 7 and the Award
Agreement shall contain such additional terms and conditions, not
inconsistent with the terms of the Plan, as the Committee shall deem
desirable.




          (c) Exercise Price. The per share Exercise Price of Shares
purchasable under an Option shall be determined by the Committee at the time of
grant, but shall not, (i) in the case of Incentive Stock Options, be less than
100% of the Fair Market Value per Share on such date (110% of the Fair
Market Value per Share on such date if, on such date, the Eligible
Recipient is a Ten Percent Owner), and (ii) in the case of Nonqualified
Stock Options (to the extent required at the time of grant by California
“blue sky” laws), be less than 85% of the Fair Market Value per Share on
such date. Notwithstanding the foregoing, to the extent required at the
time of grant, by California “blue sky” laws, the Exercise Price of an
Option granted to a Ten Percent Owner shall not be less than 110% of the





 









 







Fair Market Value per Share on the date of grant of such Option.




          (d) Option Term. The term of each Option shall be fixed by the
Committee, but no Option shall be exercisable more than ten years after the
date such Option is granted. If the Eligible Recipient is a Ten Percent Owner,
an Incentive Stock Option may not be exercisable after the expiration of five
years from the date such Incentive Stock Option is granted.




          (e) Vesting and Exercisability. Options shall vest and be
exercisable at such time or times and subject to such terms and conditions,
including the attainment of pre-established corporate performance goals,
as shall be determined by the Committee in the Award Agreement or after the
time of grant; provided that no action under this Section 7(e) following the
time of grant shall adversely affect any outstanding Option without the consent
of the holder thereof; provided further, that, to the extent required by
California “blue sky” laws, Options granted to Eligible Recipients other
than officers, directors or consultants of the Company shall be exercisable
at the rate of at least 20% per year over five years from the date of
grant. The Committee may also provide that any Option shall be exercisable
only in installments, and the Committee may waive such installment exercise
provisions at any time, in whole or in part, based on such factors as the
Committee may determine in its sole discretion.




          The Committee may provide at the time of grant or anytime
thereafter, in its sole discretion, that any Option shall be exercisable with
respect to Shares that are not vested, subject to such other terms and
conditions as the Committee determines, including the requirement that the
Optionee execute a Restricted Stock Award Agreement.




          (f) Method of Exercise. Options may be exercised in whole or
in part by giving written notice of exercise to the Company specifying the
number of Shares to be purchased, accompanied by payment in full of the
aggregate Exercise Price of the Shares so purchased in cash or its equivalent,
and any taxes due thereon in accordance with Section 12 hereof, as determined
by the Committee. As determined by the Committee, in its sole discretion,
payment in whole or in part may also be made (i) by means of any cashless
exercise procedure approved by the Committee, (ii) in the form of
unrestricted Shares or Restricted Stock already owned by the Optionee
which, (x) in the case of unrestricted Shares acquired upon exercise of an
Option, have been owned by the Optionee for more than six months on the
date of surrender, and (y) has 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, (iii) any other form of consideration approved by the
Committee and permitted by applicable law or (iv) any combination of the
foregoing.




          (g) Rights as Stockholder. An Optionee shall have no right to
receive Shares or rights to dividends or any other rights of a stockholder with
respect to the Shares subject to the Option until the Optionee has given
written notice of exercise, has paid in full for such Shares, has satisfied
the requirements of Section 12 hereof and, if requested, has given the
representation described in paragraph (b) of Section 15 hereof.




          (h) Nontransferability of Options. The Optionee shall not be
permitted to sell, transfer, pledge or assign any Option other than by will
or the laws of descent and distribution (including, with respect to a
Nonqualified Stock Option only, by instrument to an inter vivos or testamentary





 









 







trust in which the Options are to be passed to beneficiaries upon the death
of the Participant) and all Options shall be exercisable during the
Participant’s lifetime only by the Participant, in each case, except as set
forth in the following two sentences. During an Optionee’s lifetime, the
Committee may, in its discretion, permit the transfer, assignment or other
encumbrance of an outstanding Option if such Option is a Nonqualified Stock
Option or an Incentive Stock Option that the Committee and the Participant
intend to change to a Nonqualified Stock Option. Subject to the approval of the
Committee and to any conditions that the Committee may prescribe, an
Optionee may, upon providing written notice to the Company, elect to
transfer any or all Options described in the preceding sentence to members
of his or her Immediate Family or to a trust, all of the beneficiaries of
which are members of the Optionee’s Immediate Family; provided that no such
transfer by any Participant may be made in exchange for consideration.




          (i) Termination of Employment or Service. Unless otherwise
determined by the Committee, if an Optionee’s employment with, or service as a
director, consultant or advisor to, the Company or to any Parent or Related
Company terminates for any reason other than Cause, (i) Options granted to such
Participant, to the extent that they are vested and exercisable at the time
of such termination, shall remain exercisable until the date set forth in
the Award Agreement, or such later date as is otherwise determined by the
Committee, but in no event shall such exercise period be less than 30 days
after such termination (six months in the case of termination by reason of
death or Disability), on which date they shall expire, and (ii) Options
granted to such Optionee, to the extent that they were not vested and
exercisable at the time of such termination, shall expire on the date of
such termination. The 30-day period described in the preceding sentence (i)
shall be extended to six months from the date of such termination in the
event of the Optionee’s death or Disability prior to or during such 30-day
period. Notwithstanding the foregoing, no Option shall be exercisable after
the expiration of its term. Unless provided in an Award Agreement or in the
Committee’s discretion any time thereafter, in the event of the termination
of an Optionee’s employment for Cause, all outstanding Options granted to
such Participant shall expire on the date of such termination.




          (j) Limitation on Incentive Stock Options. To the extent that
the aggregate Fair Market Value of Shares with respect to which Incentive Stock
Options are exercisable for the first time by an Optionee during any calendar
year under the Plan and any other stock option plan of the Company shall exceed
$100,000, such Options shall be treated as Nonqualified Stock Options. Such
Fair Market Value shall be determined as of the date on which each such
Incentive Stock Option is granted.




          (k) Stockholders’ Agreement. The Committee may require, as a
condition to exercise of an Option prior to an Initial Public Offering, that
the Optionee sign a stockholder agreement.



Section 8. EBITDA-Linked Options.




          (a) Use of Terms. As used in this Section 8, “Options” shall
mean EBITDA-Linked Options.




          (b) General. Options granted under this Section 8 may be
granted alone or in addition to other Awards granted under the Plan.
Participants who are granted Options shall enter into an Award Agreement with
the Company, in such form as the Committee shall determine, consistent with





 









 







this Section 8. The Options granted under the Plan may be of two types:
(i) Incentive Stock Options and (ii) Nonqualified Stock Options. To the extent
that any Option does not qualify as an Incentive Stock Option, it shall
constitute a separate Nonqualified Stock Option. More than one Option may be
granted to the same Participant and be outstanding concurrently hereunder.
Options granted under the Plan shall be subject to the terms and conditions set
forth in paragraphs (b)-(k) of this Section 8 and the Award Agreement shall
contain such additional terms and conditions, not inconsistent with the
terms of the Plan, as the Committee shall deem desirable.




          (c) Exercise Price. The per share Exercise Price of Shares
purchasable under an Option shall be equal to $2.76.




          (d) Option Term. Each Option shall be exercisable for ten
years after the date such Option is granted, subject to paragraph (i) of this
Section 8 and paragraph (b)(iv) of Section 5 hereof.




          (e) Vesting and Exercisability. Each Option shall be
immediately exercisable as of the date such Option is granted, but shall vest
based on the EBITDA reported by the Company for the immediately preceding 12
months (the “Twelve-Month EBITDA”) as follows: (i) one-third if the Company
reports Twelve-Month EBITDA in excess of $17.2 million; (ii) two-thirds if
the Company reports Twelve-Month EBITDA in excess of $25.7 million; and
(iii) 100% if the Company reports Twelve-Month EBITDA in excess of $30.0
million; provided however, that all Options will vest no later than the
date that is six years after the Effective Date, even if the above EBITDA
thresholds have not been satisfied.




          (f) Method of Exercise. Options may be exercised in whole
or in part by giving written notice of exercise to the Company specifying the
number of Shares to be purchased, accompanied by payment in full of the
aggregate Exercise Price of the Shares so purchased in cash or its equivalent,
and any taxes due thereon in accordance with Section 12 hereof, as determined
by the Committee. As determined by the Committee, in its sole discretion,
payment in whole or in part may also be made (i) by means of any cashless
exercise procedure approved by the Committee, (ii) in the form of
unrestricted Shares already owned by the Optionee which, (x) in the case of
unrestricted Shares acquired upon exercise of an Option, have been owned by
the Optionee for more than six months on the date of surrender, and (y) has
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,
(iii) any other form of consideration approved by the Committee and
permitted by applicable law or (iv) any combination of the foregoing.




          (g) Rights as Stockholder. An Optionee shall have no right to
receive Shares or rights to dividends or any other rights of a stockholder with
respect to the Shares subject to the Option until the Optionee has given
written notice of exercise, has paid in full for such Shares, has satisfied
the requirements of Section 12 hereof and, if requested, has given the
representation described in paragraph (b) of Section 15 hereof.




          (h) Nontransferability of Options. The Optionee shall not be
permitted to sell, transfer, pledge or assign any Option other than by will or
the laws of descent and distribution (including, with respect to a Nonqualified
Stock Option only, by instrument to an inter vivos or testamentary trust in
which the Options are to be passed to beneficiaries upon the death of the
Participant) and all Options shall be exercisable during the Participant’s





 









 







lifetime only by the Participant, in each case, except as set forth in the
following two sentences. During an Optionee’s lifetime, the Committee may,
in its discretion, permit the transfer, assignment or other encumbrance of
an outstanding Option if such Option is a Nonqualified Stock Option or an
Incentive Stock Option that the Committee and the Participant intend to
change to a Nonqualified Stock Option. Subject to the approval of the
Committee and to any conditions that the Committee may prescribe, an
Optionee may, upon providing written notice to the Company, elect to
transfer any or all Options described in the preceding sentence to members
of his or her Immediate Family or to a trust, all of the beneficiaries of
which are members of the Optionee’s Immediate Family; provided that no such
transfer by any Participant may be made in exchange for consideration.




          (i) Termination of Employment or Service. Unless otherwise
determined by the Committee, if an Optionee’s employment with, or service as a
director, consultant or advisor to, the Company or to any Parent or Related
Company terminates for any reason other than Cause, (i) Options granted to such
Participant, to the extent that they are vested and exercisable at the time
of such termination, shall remain exercisable until the date set forth in
the Award Agreement, or such later date as is otherwise determined by the
Committee, but in no event shall such exercise period be less than 30 days
after such termination (six months in the case of termination by reason of
death or Disability), on which date they shall expire, and (ii) Options
granted to such Optionee, to the extent that they were not vested and
exercisable at the time of such termination, shall expire on the date of
such termination. The 30-day period described in the preceding sentence (i)
shall be extended to six months from the date of such termination in the
event of the Optionee’s death or Disability prior to or during such 30-day
period. Notwithstanding the foregoing, no Option shall be exercisable after
the expiration of its term. Unless provided in an Award Agreement or in the
Committee’s discretion any time thereafter, in the event of the termination
of an Optionee’s employment for Cause, all outstanding Options granted to
such Participant shall expire on the date of such termination.




          (j) Limitation on Incentive Stock Options. To the extent that
the aggregate Fair Market Value of Shares with respect to which Incentive Stock
Options are exercisable for the first time by an Optionee during any calendar
year under the Plan and any other stock option plan of the Company shall exceed
$100,000, such Options shall be treated as Nonqualified Stock Options. Such
Fair Market Value shall be determined as of the date on which each such
Incentive Stock Option is granted.




          (k) Stockholders’ Agreement. The Committee may require, as a
condition to exercise of an Option prior to a Public Offering, that the
Optionee sign a stockholder agreement.



Section 9. Restricted Stock.




          (a) General. Awards of Restricted Stock may be issued either
alone or in addition to other Awards granted under the Plan and shall be
evidenced by an Award Agreement. The Committee shall determine the Eligible
Recipients to whom, and the time or times at which, Awards of Restricted Stock
shall be made and the number of Shares to be awarded.




          (b) Purchase Price. The price per Share that a Participant
must pay for Shares purchasable under an award of Restricted Stock shall
equal $0.01.





 









 








          (c) Awards and Certificates. The prospective recipient of an
Award of Restricted Stock shall not have any rights with respect to any such
Award, unless and until such recipient has executed an Award Agreement
evidencing the Award and delivered a fully executed copy thereof to the
Company, within such period as the Committee may specify after the award date.
Each Participant who is granted an Award of Restricted Stock shall be issued a
stock certificate in respect of such Shares of Restricted Stock, which
certificate shall be registered in the name of the Participant and shall
bear an appropriate legend referring to the terms, conditions, and
restrictions applicable to any such Award; provided that the Company may
require that the stock certificates evidencing Restricted Stock granted
hereunder be held in the custody of the Company until the restrictions
thereon shall have lapsed, and that, as a condition of any Award of
Restricted Stock, the Participant shall have delivered a stock power,
endorsed in blank, relating to the Shares covered by such Award.




          (d) Nontransferability. The Awards of Restricted Stock granted
pursuant to this Section 9(a) shall vest and no longer be subject to the
restrictions on transferability set forth in this paragraph (d). During such
period as may be set by the Committee in the Award Agreement, or as otherwise
set forth in this paragraph (d) (the “Restricted Period”), the Participant
shall not be permitted to sell, transfer, pledge, hypothecate or assign
Shares of Restricted Stock awarded under the Plan except by will or the
laws of descent and distribution. The restrictions with respect to 25% of
the Restricted Stock shall lapse on the Effective Date and on each of the
first, second and third anniversaries of such Effective Date; provided that
in no event shall the Restricted Period end with respect to a Restricted
Stock Award prior to the satisfaction by the Participant of any liability
arising under Section 12 hereof. Any attempt to dispose of any Shares of
Restricted Stock in contravention of any such restrictions shall be null
and void and without effect.




          (e) Rights as a Stockholder. Except as provided in Section 9(c)
or as otherwise provided in an Award Agreement, the Participant shall possess
all incidents of ownership with respect to Shares of Restricted Stock during
the Restricted Period, including the right to receive or reinvest dividends
with respect to such Shares and to vote such Shares. Certificates for
unrestricted Shares shall be delivered to the Participant promptly after,
and only after, the Restricted Period shall expire without forfeiture in
respect of such Awards of Restricted Stock except as the Committee, in its
sole discretion, shall otherwise determine.




          (f) Loans. The Company or any Parent or Related Company may
make loans available to Participants with respect to a Restricted Stock Award
granted as of the Effective Date, other than a Restricted Stock Award granted
upon early exercise of an Option, for the payment of any Federal or state
income tax attributable to the Restricted Stock subject to such Award. Such
loans may be made available at such time or times as the Company or any Parent
or Related Company deems appropriate, including at such time as any portion of
the Restricted Stock Award vests and/or when a Participant makes an
election pursuant to Section 83(b) of the Code with respect to such
Participant’s Restricted Stock Award (“Section 83(b) Election”). Such loans
shall (i) be evidenced by promissory notes entered into by the Participants
in favor of the Company or any Parent or Related Company, (ii) bear
interest at a fair interest rate as determined by the Committee (but not
less than the applicable Federal rate), which interest shall be paid no





 









 







less frequently than annually, (iii) have a term of no more than five
years, (iv) to the extent applicable and required by the Committee, be
conditioned on the receipt, by the Committee, of a copy of the
Participant’s timely filed Section 83(b) Election with respect to such
Restricted Stock Award (whether vested or unvested), (v) be subject to such
other terms and conditions, not inconsistent with the Plan, as the
Committee shall determine, and (vi) be subject to Committee approval.
Unless the Committee determines otherwise, when a loan is made, all Shares
subject to that Restricted Stock Award shall be pledged by the Participant
to the Company as security for payment of the unpaid balance of the loan,
and such pledge shall be evidenced by a pledge agreement, the terms of
which shall be determined by the Committee, in its sole discretion;
provided that each loan shall comply with all applicable laws, regulations
and rules of the Board of Governors of the Federal Reserve System and any
other governmental agency having jurisdiction.




          (g) Termination of Employment.




          (i) Upon termination of a Participant’s employment or
service as a director, consultant or advisor to the Company or
to any Parent or Related Company during the Restricted Period,
for any reason, such Participant’s Restricted Stock may be
repurchased by the Company upon the terms set forth in
Section 13(d).




          (ii)Upon termination of a Participant’s employment or
service as a director, consultant or advisor to the Company or to
any Parent or Related Company during the Restricted Period, by
the Company for any reason other than for Cause, any outstanding
loans made to such Participant pursuant to Section 9(f)that
relate to unvested Shares shall be forgiven.




(h) Early Exercise Options. The Committee shall award
Restricted Stock to a Participant upon the Participant’s early
exercise of an Option. Unless otherwise determined by the
Committee, the lapse of restrictions with respect to such
Restricted Stock shall occur on the same schedule as the Option
for which the Restricted Stock was exercised.


Section 10. Amendment and Termination.




          The Board, with the approval of the Informal Committee Designee,
may amend, alter or discontinue the Plan, but no amendment, alteration, or
discontinuation shall be made that would impair the rights of a Participant
under any Award previously granted without such Participant’s consent;
provided, however, that the total number of Shares reserved and available
for issuance as set forth in Section 4(a) of the Plan shall not be
increased without the prior approval by two-thirds vote of the Board, and,
to the extent described below, approval of the Company’s stockholders.
Unless the Board determines otherwise, the Board shall obtain approval of
the Company’s stockholders for any amendment that would require such
approval in order to satisfy the requirements of Sections 162(m) and 422 of
the Code, stock exchange rules or other applicable law. The Committee may
amend the terms of any Award theretofore granted, prospectively or
retroactively, with the approval of the Informal Committee Designee, but,
subject to Section 5 of the Plan, no such amendment shall impair the rights
of any Participant without his or her consent.





 









 







Section 11. Unfunded Status of Plan.




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



Section 12. Withholding Taxes.




          Whenever the Company has a withholding
obligation with respect to an Award, the Company shall have the right to
deduct therefrom an amount sufficient to satisfy any federal, state, local and
other withholding tax requirements related thereto to the extent sufficient
cash is paid pursuant to the Award, or to require the Participant to remit to
the Company in cash an amount sufficient to satisfy any federal, state, local
or other withholding tax requirements related thereto. With the approval of the
Committee, a Participant may satisfy the foregoing requirement by electing
to have the Company withhold from delivery Shares or by delivering already
owned unrestricted Shares, in each case, having a value equal to the
minimum amount of tax required to be withheld. Such Shares shall be valued
at their Fair Market Value on the date as of which the amount of tax to be
withheld is determined. Fractional share amounts shall be settled in cash.
Such an election may be made with respect to all or any portion of the
Shares to be delivered pursuant to an Award.



Section 13. Additional Provisions.




          (a) Market Stand-Off.





          (i) In connection with any underwritten public offering by
the Company or its stockholders of its or their equity
securities pursuant to an effective registration statement
filed under the Securities Act, including an Initial Public
Offering, Participant shall not sell, make any short sale
of, loan, hypothecate, pledge, grant any option for the
purchase of, or otherwise dispose or transfer for value or
otherwise agree to engage in any of the foregoing
transactions with respect to any Plan Shares without the
prior written consent of the Company or its underwriters,
for such period of time from and after the effective date of
such registration statement as may be requested by the
Company or such underwriters.




          (ii) In the event of any stock dividend, stock split,
recapitalization, or other change affecting the Company’s
outstanding Common Stock effected without receipt of
consideration, then any new, substituted, or additional
securities distributed with respect to the Plan Shares shall
be immediately subject to the provisions of this Section
13(a), to the same extent the Plan Shares are at such time
covered by such provisions.




          (iii) In order to enforce the provisions of Section
13(a), the Company may impose stop-transfer instructions with
respect to the Plan Shares until the end of the applicable



 









 






stand-off period.



          (b) Drag-Along Rights.





          (i) Until the earliest of a Change in Control, an Initial
Public Offering or the third anniversary of the Effective Date,
if the holders representing at least a majority of the
outstanding Common Stock execute a binding agreement to transfer
all of their shares of Common Stock to a Person making an
irrevocable and unconditional bona fide offer (a“Bona Fide
Offer”), then the Participant shall transfer all of the
Participant’s Plan Shares to such Person, subject to the terms
and conditions set forth below, at the sole election of a
majority of such holders, which election shall be exercisable by
delivery to the Participant of a written notice that shall
include a copy of such binding agreement, at least 20 days prior
to the closing date specified in such notice; provided that (A)
the Participant shall receive from such Person the highest per
Share consideration to be paid to any holder of Common Stock in
such transaction; and (B) the closing of any transaction effected
pursuant to this Section 13(b) shall be conditioned on the
simultaneous purchase of not less than a majority of outstanding
shares of Common Stock.



          (c) Option Share Repurchase Rights.





          (i) Until the earliest of a Change in Control, an Initial
Public ing or the third anniversary of the Effective Date, the
Company shall have a repurchase right with respect to Option
Shares that may be exercised upon the voluntary or involuntary
termination of the Participant’s employment or service with the
Company, the Parent or a Related Company for any reason.




          (ii) The repurchase right must be exercised, if at all, by
the Company within 90 days following the termination of a
Participant’s employment or service with the Company, except in
the case of termination due to the death or Disability which
exercise period will then be extended to 210 days after the date
of such termination.




          (iii) The purchase price of any Option Shares to be
repurchased by the Company pursuant to subsections (i) and (ii)
above shall be the Fair Market Value of the Option Shares as of
the date on which the Participant’s employment terminated;
provided that that such price shall be no less than the price
paid by the Participant; provided further, that, at the Company’s
discretion, the purchase price may be paid by cancellation
of an equal amount of indebtedness of the Participant to the
Company.




          (iv) The closing of a purchase and sale of Option Shares
pursuant to this Section 13(c) shall take place at the principal
office of the Company at such time and date as shall be mutually
agreed between the Company and the Participant; provided that if
the parties cannot reach such agreement, settlement shall be
ninety (90) days (which may be extended in the event such
termination was due to death or Disability) after the date of



 









 




termination of the Participant’s employment with the Company
(or if such day is a holiday, the first business day thereafter).
At the closing, the Participant shall deliver to the Company (A)
the certificate or certificates representing the Option Shares
held by such Participant, duly endorsed for transfer, or (B) if
such certificate or certificates are already in the Company’s
possession, such duly endorsed stock powers as the Company may
request to permit it to record the repurchase by the Company on
the records of the Company.




          (d) Restricted Stock Repurchase Rights.





          (i) Until the earliest of a Change in Control, an Initial
Public Offering or the third anniversary of the Effective Date, the
Company shall have a repurchase right with respect to Restricted
Stock that may be exercised during the Restricted Period upon the
voluntary or involuntary termination of the Participant’s employment
or service with the Company, the Parent or a Related Company for any
reason (subject to the lapse of such repurchase rights as described
in clause (ii) below); provided that with respect to unvested Shares
of Restricted Stock acquired upon early exercise of an Option, the
Company’s repurchase rights shall expire no earlier than the date
such Shares vest pursuant to the terms of the applicable Restricted
Stock Agreement and Stock Option Agreement; and provided further that
in the event that the restrictions on Shares of Restricted Stock
acquired upon early exercise of an EBITDA-Linked Option do not lapse
prior to the expiration, termination or forfeiture of such Award,
then the Company may repurchase such Shares as of such expiration,
termination or forfeiture date and to the extent not so repurchased,
the restrictions on such Shares shall lapse as of that date.




          (ii) The repurchase price of any Restricted Stock to be
repurchased by the Company pursuant to subsection (i) above shall be
(a) with respect to unvested Shares of Restricted Stock as of the
date of the repurchase, $0.01 per share, and (b) with respect to
vested Shares of Restricted Stock as of the date of the repurchase,
the Fair Market Value of the Shares, as determined by the Committee;
provided that the repurchase price with respect to unvested Shares of
Restricted Stock acquired upon early exercise of an Option shall be
equal to the per Share exercise price of the Option Shares for each
repurchased unvested Share subject to the Restricted Stock Award;
provided further that, (I) with respect to Shares of Restricted Stock
other than Shares acquired upon early exercise of an Option, the
purchase price shall not be less than the amount of indebtedness of
the Participant to the Company with respect to the tax attributable
to such Shares, and (II) at the Company’s sole discretion, the
purchase price may be paid by cancellation of an equal amount of
indebtedness of the Participant to the Company, or if applicable and
greater, the amount determined under clause (I) above, which
cancellation shall first be applied against indebtedness referred
to in clause (I) above and thereafter against other indebtedness of
the Participant to the Company.




          (iii)The repurchase right must be exercised, if at all, by
the Company within 90 days following the termination of a
Participant’s employment or service with the Company, except in the
case of termination due to the death or Disability which exercise



 









 






period will then be extended to 210 days after the date of such
termination.




               (iv) The closing of a purchase and sale of Restricted Stock
pursuant to this Section 13(d) shall take place at the principal
office of the Company at such time and date as shall be mutually
agreed between the Company and the Participant; provided that if the
parties cannot reach such agreement, settlement shall be ninety (90)
days (which may be extended in the even such termination was due to
death or Disability) after the date of termination of the
Participant’s employment with the Company (or if such day is a
holiday, the first business day thereafter). At the closing, the
Participant shall deliver to the Company (A) the certificate or
certificates representing the Restricted Stock held by such
Participant, duly endorsed for transfer, or (B) if such certificate
or certificates are already in the Company’s possession, such duly
endorsed stock powers as the Company may request to permit it to
record the repurchase by the Company on the records of the Company.



          (e) First Refusal Rights.





          (i) Until the earliest of a Change in Control, an Initial
Public Offering or the third anniversary of the Effective Date,
except as otherwise provided herein, if the Participant or the
Participant’s successor in interest desires to sell all or any part
of the Plan Shares, and an offeror (the “Offeror”) has made an offer
therefor, which offer the Participant desires to accept, the
Participant shall: (i) obtain in writing a Bona Fide Offer for the
purchase thereof from the Offeror; and (ii) give written notice (the
“Option Notice”) to an officer of the Company setting forth the
Participant’s desire to sell such Plan Shares, which Option Notice
shall be accompanied by a photocopy of the original executed Bona
Fide Offer and shall set forth at least the name and address of the
Offeror and the price and terms of the Bona Fide Offer. Upon receipt
of the Option Notice, the Company shall have an option to purchase
any or all of the Shares specified in the Option Notice, such option
to be exercisable by giving, within thirty (30) days after receipt of
the Option Notice, a written counter-notice to the Participant. If
the Company elects to purchase, the Participant shall be obligated to
sell to the Company such shares at the price and terms indicated in
the Bona Fide Offer within sixty (60) days from the date of receipt
by the Company of the Option Notice. The Company’s purchase rights
under this Section 13(e) are assignable by the Company.




          (ii) Subject to Section 13(a) above, the Participant may
sell, pursuant to the terms of the Bona Fide Offer, any or all of
such Plan Shares not purchased by the Company or which the Company
does not elect to purchase in the manner set forth hereinabove after
the expiration of the 30-day period during which the Company may give
the aforesaid counter-notice. All Plan Shares shall remain subject to
the terms of the Plan, whether or not they are not sold pursuant to
a Bona Fide Offer.


Section 14. Rule 12g Consideration.




          Notwithstanding anything in the Plan to the contrary, during such
time as the Company is not subject to the periodic reporting requirements of





 









 







the Exchange Act by virtue of having a class of equity securities held of
record by 500 or more persons or a securities registered on a national
security exchange, the Committee shall have the option to prohibit the
exercise of any Options to the extent that such exercise would be
reasonably likely to subject the Company to such periodic reporting
requirements.



Section 15. General Provisions.




          (a) Shares shall not be issued pursuant to the exercise of any
Award granted hereunder unless the exercise of such Award and the issuance and
delivery of such Shares pursuant thereto shall comply with all relevant
provisions of law, including, without limitation, the Securities Act, the
Exchange Act and the requirements of any stock exchange upon which the
Common Stock may then be listed, and shall be further subject to the
approval of counsel for the Company with respect to such compliance.




          (b) The Committee may require each person acquiring Shares to
represent to and agree with the Company in writing that such person is
acquiring the Shares without a view to distribution thereof. The certificates
for such Shares may include any legend that the Committee deems appropriate to
reflect any restrictions on transfer.




          (c) All certificates for Shares delivered under the Plan shall
be subject to such stock-transfer orders and other restrictions as the
Committee may deem advisable under the rules, regulations, and other
requirements of the Securities and Exchange Commission, any stock exchange
upon which the Common Stock may then be listed, and any applicable federal or
state securities law. The Committee may cause a legend or legends to be placed
on any such certificates to make appropriate reference to such restrictions.




          (d) Nothing contained in the Plan shall prevent the Board from
adopting other or additional compensation arrangements, subject to stockholder
approval, if such approval is required; and such arrangements may be either
generally applicable or applicable only in specific cases. Neither the
adoption of the Plan nor the granting of any Award to an Eligible Recipient
shall confer upon any Eligible Recipient any right to continued employment
or service with the Company or any Parent or Related Company, as the case
may be, nor shall it interfere in any way with the right of the Company or
any Parent or Related Company to terminate the employment or service of any
of its Eligible Recipients at any time. The granting of one Award to an
Eligible Recipient shall not entitle the Eligible Recipient to any
additional grants of Awards thereafter.




          (e) To the extent applicable, pursuant to the provisions of
Section 260.140.46 of Title 10 of the California Code of Regulations, the
Company shall provide to each Participant and to each individual who acquires
Shares pursuant to the Plan, not less frequently than annually during the
period such Participant or purchaser has one or more awards granted under
the Plan outstanding, and, in the case of an individual who acquires Shares
pursuant to the Plan, during the period such individual owns such Shares,
copies of the Company’s annual financial statements. The Company shall not
be required to provide such statements to key employees of the Company
whose duties in connection with the Company assure their access to
equivalent information.




          (f) To the extent applicable, the provisions of Sections





 









 







260.160.41, 260.140.42 and 260.140.45 of Title 10 of the California Code of
Regulations are incorporated herein by reference.




          (g) The definitions set forth in this Plan are solely for the
purposes of the operation of this Plan, and such definitions including, without
limitation, the definition of “Cause” shall not be used for any other
purposes including, without limitation, whether or not an Eligible
Recipient is terminated with or without cause for purposes unrelated to
this Plan.



Section 16. Approval; Effective Date of Plan.




          This Plan was authorized in accordance with Section 303 of the
Delaware General Corporation Law and thereby made effective on May ___, 2002
(the “Effective Date”).



Section 17. Term of Plan.




          No Award shall be granted pursuant to the Plan on or after the
tenth anniversary of the Effective Date, but Awards theretofore granted may
extend beyond that date.



Section 18. Governing Law.




          The Plan and all determinations made and actions taken pursuant
hereto shall be governed by the laws of the State of Delaware, without giving
effect to the conflict of laws principles thereof.