exv10w1









    Exhibit
    10.1



 




    CORNERSTONE
    THERAPEUTICS INC.

    2004 STOCK INCENTIVE PLAN

    (as Amended and Restated May 20, 2010)



 


		
	
    1.  
	
    Purpose




 



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



 


		
	
    2.  
	
    Eligibility




 



    All of the Company’s employees, officers, directors,
    consultants and advisors (including persons who have entered
    into an agreement with the Company under which they will be
    employed by the Company in the future) are eligible to be
    granted options, restricted stock awards, stock appreciation
    rights or other stock-based awards (each, an “Award”)
    under the Plan. Each person who has been granted an Award under
    the Plan shall be deemed a “Participant.”



 


		
	
    3.  
	
    Administration
    and Delegation




 



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



 



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



 



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





    

    1








 






		
	
    4.  
	
    Stock
    Available for Awards




 



    (a) Number of Shares.  Subject to
    adjustment under Section 10, Awards may be made under the
    Plan for up to the number of shares of common stock,
    $0.001 par value per share, of the Company (the
    “Common Stock”) that is equal to the sum of:



 



    (1) 2,954,000 shares of Common Stock; plus



 



    (2) 13,256 shares representing the shares of Common
    Stock reserved for issuance under the Critical Therapeutics,
    Inc. 2000 Equity Incentive Plan, as amended, and the Critical
    Therapeutics, Inc. 2003 Stock Incentive Plan, as amended (the
    “Existing Plans”), that remained available for grant
    under the Existing Plans immediately prior to the closing of
    Critical Therapeutics, Inc.’s initial public offering; plus



 



    (3) an annual increase to be added on the first day of each
    of the Company’s fiscal years beginning January 1,
    2006 and ending on the second day of fiscal year 2014, which
    increase shall be determined by the Board for each fiscal year
    prior to the first day of such fiscal year (by vote of a
    majority of the independent directors, following a
    recommendation by the Compensation Committee of the Board or any
    other Committee designated by the Board); provided, however,
    that the amount determined by the Board may not exceed the
    lesser of (i) 133,333 shares of Common Stock and
    (ii) 4% of the outstanding shares of Common Stock on the
    first day of such fiscal year.



 



    Notwithstanding the foregoing, no more than 80,000 shares
    of Common Stock (subject to adjustment under
    Section 10) or such other number of shares of Common
    Stock as may be determined by vote of a majority of the
    independent directors, following a recommendation by the
    Compensation Committee of the Board or any other Committee
    designated by the Board, may be issued pursuant to all Awards
    other than Options and SARs (each as hereinafter defined).
    Furthermore, notwithstanding clause (3) above, in no event
    may the number of shares available under this Plan be increased
    as set forth in clause (3) to the extent such increase, in
    addition to any other increases proposed by the Board in the
    number of shares available for issuance under all other employee
    or director stock plans, would result in the total number of
    shares then available for issuance under all employee and
    director stock plans exceeding 30% of the outstanding shares of
    the Company on the first day of the applicable fiscal year.



 



    If any Award expires or is terminated, surrendered or canceled
    without having been fully exercised or is forfeited in whole or
    in part (including as the result of shares of Common Stock
    subject to such Award being repurchased by the Company at the
    original issuance price pursuant to a contractual repurchase
    right) or results in any Common Stock not being issued, the
    unused Common Stock covered by such Award shall again be
    available for the grant of Awards under the Plan, subject,
    however, in the case of Incentive Stock Options (as hereinafter
    defined), to any limitations under the Code. Shares issued under
    the Plan may consist in whole or in part of authorized but
    unissued shares or treasury shares.



 



    (b) Per-Participant Limit.  Subject to
    adjustment under Section 10, the maximum number of shares
    of Common Stock with respect to which Awards may be granted to
    any Participant under the Plan shall be 500,000 per calendar
    year. The per-Participant limit described in this
    Section 4(b) shall be construed and applied consistently
    with Section 162(m) of the Code
    (“Section 162(m)”).



 


		
	
    5.  
	
    Stock
    Options




 



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



 



    (b) Incentive Stock Options.  An Option
    that the Board intends to be an “incentive stock
    option” as defined in Section 422 of the Code (an
    “Incentive Stock Option”) shall only be granted to
    employees of Cornerstone Therapeutics Inc., any of Cornerstone
    Therapeutics Inc.’s present or future parent or subsidiary
    corporations as defined in Sections 424(e) or (f) of
    the Code, and any other entities the employees of which are
    eligible to receive Incentive Stock Options under the Code, and
    shall be subject to and shall be construed consistently with the






    

    2








 







    requirements of Section 422 of the Code. The Company shall
    have no liability to a Participant, or any other party, if an
    Option (or any part thereof) that is intended to be an Incentive
    Stock Option is not an Incentive Stock Option.



 



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



 



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



 



    (e) Exercise of Option.  Options may be
    exercised by delivery to the Company of a written notice of
    exercise signed by the proper person or by any other form of
    notice (including electronic notice) approved by the Board
    together with payment in full as specified in Section 5(f)
    for the number of shares for which the Option is exercised.



 



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



 



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



 



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



 



    (3) if provided for in the option agreement or approved by
    the Company in its sole discretion, by delivery of shares of
    Common Stock owned by the Participant valued at their fair
    market value as determined by (or in a manner approved by) the
    Board (“Fair Market Value”), provided (i) such
    method of payment is then permitted under applicable law,
    (ii) such Common Stock, if acquired directly from the
    Company, was owned by the Participant at least six months prior
    to such delivery and (iii) such Common Stock is not subject
    to any repurchase, forfeiture, unfulfilled vesting or other
    similar requirements;



 



    (4) if provided for in the option agreement or approved by
    the Company in its sole discretion, by (i) delivery of a
    promissory note of the Participant to the Company on terms
    determined by the Board, or (ii) payment of such other
    lawful consideration as the Board may determine; or



 



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



 



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



 



    (h) Repricing of Options.  The Board (by
    vote of a majority of the independent directors, following a
    recommendation by the Compensation Committee of the Board or any
    other committee designated by the Board) shall have the
    authority, at any time and from time to time, with the consent
    of the affected Participants, to amend any or all outstanding
    Options granted under the Plan to provide an Option exercise
    price per share which may be lower or higher than the original
    Option exercise price,
    and/or
    cancel any such Options and grant in substitution therefor other
    Awards, including new Options, covering the same or different
    numbers of shares of Common Stock having an Option exercise
    price per share which may be lower or higher than the exercise
    price of the canceled Options; provided, however, that the Board
    may not engage in any such repricing of Options with respect to
    Options then held by officers or directors of the Company.





    

    3








 






		
	
    6.  
	
    Reserved.





 


		
	
    7.  
	
    Stock
    Appreciation Rights.




 



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



 



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



 



    (1) Rules Applicable to Tandem
    Awards.  When Stock Appreciation Rights are
    expressly granted in tandem with Options, the Stock Appreciation
    Right and the related Options will be exercisable only at such
    time or times and on such conditions as the Board may specify in
    the SAR Award or the related Option.



 



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



 



    (c) Exercise.  Any exercise of a Stock
    Appreciation Right must be in writing, signed by the proper
    person and delivered or mailed to the Company, accompanied by
    any other documents required by the Board.



 


		
	
    8.  
	
    Restricted
    Stock




 



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



 



    (b) Terms and Conditions.  The Board shall
    determine the terms and conditions of a Restricted Stock Award,
    including the conditions for repurchase (or forfeiture) and the
    issue price, if any.



 



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



 


		
	
    9.  
	
    Other
    Stock-Based Awards.




 



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






    

    4








 







    that, at the time Common Stock would otherwise be delivered
    pursuant to the Award, the Participant will instead receive an
    instrument evidencing the Participant’s right to future
    delivery of the Common Stock.



 


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




 



    (a) Changes in Capitalization.  In the
    event of any stock split, reverse stock split, stock dividend,
    recapitalization, combination of shares, reclassification of
    shares, spin-off or other similar change in capitalization or
    event, or any distribution to holders of Common Stock other than
    an ordinary cash dividend, (i) the number and class of
    securities available under this Plan, (ii) the amount of
    the annual increase in the number of securities available under
    this Plan set forth in Section 4(a)(3)(i), (iii) the
    limit on the number of securities available under this Plan for
    Awards other than Options and SARs set forth in
    Section 4(a), (iv) the per-Participant limit set forth
    in Section 4(b), (v) the number and class of
    securities and exercise price per share subject to each
    outstanding Option, (vi) the repurchase price per share
    subject to each outstanding Restricted Stock Award, and
    (vii) the share- and per-share-related provisions of each
    outstanding Stock Appreciation Right and Other Stock Unit Award,
    shall be appropriately adjusted by the Company (or substituted
    Awards may be made, if applicable) to the extent determined by
    the Board.



 



    (b) Reorganization and Change in Control Events.



 



    (1) Definitions:



 



    (A) A “Reorganization Event” shall mean:



 



    (i) any merger or consolidation of the Company with or into
    another entity as a result of which all of the Common Stock of
    the Company is converted into or exchanged for the right to
    receive cash, securities or other property;



 



    (ii) any exchange of all of the Common Stock of the Company
    for cash, securities or other property pursuant to a share
    exchange transaction; or



 



    (iii) any liquidation or dissolution of the Company.



 



    (B) A “Change in Control Event” shall mean:



 



    (i) the acquisition by an individual, entity or group
    (within the meaning of Section 13(d)(3) or 14(d)(2) of the
    Exchange Act) (a “Person”) of beneficial ownership of
    any capital stock of the Company if, after such acquisition,
    such Person beneficially owns (within the meaning of
    Rule 13d-3
    promulgated under the Exchange Act) 50% or more of the combined
    voting power of the then-outstanding securities of the Company
    entitled to vote generally in the election of directors (the
    “Outstanding Company Voting Securities”); provided,
    however, that for purposes of this subsection (i), the following
    acquisitions shall not constitute a Change in Control Event:
    (A) any acquisition directly from the Company; or
    (B) any acquisition by any corporation pursuant to a
    Business Combination (as defined below) which complies with
    clauses (x) and (y) of subsection (iii) of this
    definition;



 



    (ii) such time as the Continuing Directors (as defined
    below) do not constitute a majority of the Board (or, if
    applicable, the Board of Directors of a successor corporation to
    the Company), where the term “Continuing Director”
    means at any date a member of the Board (x) who was a
    member of the Board on the date of the initial adoption of this
    Plan by the Board or (y) who was nominated or elected
    subsequent to such date by at least a majority of the directors
    who were Continuing Directors at the time of such nomination or
    election or whose election to the Board was recommended or
    endorsed by at least a majority of the directors who were
    Continuing Directors at the time of such nomination or election;
    provided, however, that there shall be excluded from this
    clause (y) any individual whose initial assumption of
    office occurred as a result of an actual or threatened election
    contest with respect to the election or removal of directors or
    other actual or threatened solicitation of proxies or consents,
    by or on behalf of a person other than the Board;



 



    (iii) the consummation of a merger, consolidation,
    reorganization, recapitalization or share exchange involving the
    Company or a sale or other disposition of all or substantially
    all of the assets of the Company (a “Business
    Combination”), unless, immediately following such Business
    Combination,






    

    5








 







    each of the following two conditions is satisfied: (x) all
    or substantially all of the individuals and entities who were
    the beneficial owners of the Outstanding Company Voting
    Securities immediately prior to such Business Combination
    beneficially own, directly or indirectly, more than 50% of the
    combined voting power of the then-outstanding securities
    entitled to vote generally in the election of directors,
    respectively, of the resulting or acquiring corporation in such
    Business Combination (which shall include, without limitation, a
    corporation which as a result of such transaction owns the
    Company or substantially all of the Company’s assets either
    directly or through one or more subsidiaries) (such resulting or
    acquiring corporation is referred to herein as the
    “Acquiring Corporation”) in substantially the same
    proportions as their ownership of the Outstanding Company Voting
    Securities immediately prior to such Business Combination and
    (y) no Person (excluding any employee benefit plan (or
    related trust) maintained or sponsored by the Company or by the
    Acquiring Corporation) beneficially owns, directly or
    indirectly, 50% or more of the combined voting power of the
    then-outstanding securities of such corporation entitled to vote
    generally in the election of directors (except to the extent
    that such ownership existed prior to the Business
    Combination); or



 



    (iv) the liquidation or dissolution of the Company.



 



    (C) “Good Reason” shall mean any material
    reduction in the annual cash compensation payable to the
    Participant from and after such Reorganization Event or Change
    in Control Event, or the relocation of the place of business at
    which the Participant is principally located to a location that
    is greater than 30 miles from its location immediately
    prior to such Reorganization Event or Change in Control Event.



 



    (D) “Cause” shall mean any (i) willful
    failure by the Participant, which failure is not cured within
    30 days of written notice to the Participant from the
    Company, to perform his or her material responsibilities to the
    Company, or (ii) willful misconduct by the Participant
    which affects the business reputation of the Company. The
    Participant shall be considered to have been discharged for
    “Cause” if the Company determines, within 30 days
    after the Participant’s resignation, that discharge for
    Cause was warranted.



 



    (2) Effect on Options.



 



    (A) Reorganization Event.  Upon the
    occurrence of a Reorganization Event (regardless of whether such
    event also constitutes a Change in Control Event), or the
    execution by the Company of any agreement with respect to a
    Reorganization Event (regardless of whether such event will
    result in a Change in Control Event), the Board shall provide
    that all outstanding Options shall be assumed, or equivalent
    options shall be substituted, by the acquiring or succeeding
    corporation (or an affiliate thereof); provided that, except to
    the extent specifically provided to the contrary in the
    instrument evidencing any Option or any other agreement between
    a Participant and the Company, if (i) such Reorganization
    Event also constitutes a Change in Control Event, and
    (ii) if, on or prior to the first anniversary of the date
    of the consummation of the Reorganization Event, the
    Participant’s employment with the Company or the acquiring
    or succeeding corporation is terminated for Good Reason by the
    Participant or is terminated without Cause by the Company or the
    acquiring or succeeding corporation (the date of such
    termination being referred to as, the “Participant
    Termination Date”), then the vesting of all Options then
    held by a Participant shall automatically be accelerated by two
    years so that such Options shall immediately become vested and
    exercisable with respect to the number of shares of Common Stock
    covered by such Options that would otherwise have been vested as
    of the second anniversary of the Participant Termination Date if
    the Participant continued to be employed by the Company for such
    period. For purposes hereof, an Option shall be considered to be
    assumed if, following consummation of the Reorganization Event,
    the Option confers the right to purchase, for each share of
    Common Stock subject to the Option immediately prior to the
    consummation of the Reorganization Event, the consideration
    (whether cash, securities or other property) received as a
    result of the Reorganization Event by holders of Common Stock
    for each share of Common Stock held immediately prior to the
    consummation of the Reorganization Event (and if holders were
    offered a choice of consideration, the type of consideration
    chosen by the holders of a majority of the outstanding shares of
    Common Stock); provided, however, that if the consideration
    received as a result of the Reorganization Event is not solely
    common stock of the acquiring or succeeding corporation (or an
    affiliate thereof), the Company may, with the consent of the
    acquiring or succeeding corporation, provide for the
    consideration to be received upon the exercise of Options to
    consist solely of common stock of the






    

    6








 







    acquiring or succeeding corporation (or an affiliate thereof)
    equivalent in fair market value to the per share consideration
    received by holders of outstanding shares of Common Stock as a
    result of the Reorganization Event.



 



    Notwithstanding the foregoing, if the acquiring or succeeding
    corporation (or an affiliate thereof) does not agree to assume,
    or substitute for, such Options, or in the event of a
    liquidation or dissolution of the Company, the Board shall, upon
    written notice to the Participants, provide that all then
    unexercised Options will become exercisable in full as of a
    specified time prior to the Reorganization Event and will
    terminate immediately prior to the consummation of such
    Reorganization Event, except to the extent exercised by the
    Participants before the consummation of such Reorganization
    Event; provided, however, that in the event of a Reorganization
    Event under the terms of which holders of Common Stock will
    receive upon consummation thereof a cash payment for each share
    of Common Stock surrendered pursuant to such Reorganization
    Event (the “Acquisition Price”), then the Board may
    instead provide that all outstanding Options shall terminate
    upon consummation of such Reorganization Event and that each
    Participant shall receive, in exchange therefor, a cash payment
    equal to the amount (if any) by which (A) the Acquisition
    Price multiplied by the number of shares of Common Stock subject
    to such outstanding Options (whether or not then exercisable),
    exceeds (B) the aggregate exercise price of such Options.



 



    (B) Change in Control Event that is not a Reorganization
    Event.  Upon the occurrence of a Change in Control
    Event that does not also constitute a Reorganization Event,
    except to the extent specifically provided to the contrary in
    the instrument evidencing any Option or any other agreement
    between a Participant and the Company, if, on or prior to the
    first anniversary of the date of the consummation of the Change
    in Control Event, the Participant’s Participant Termination
    Date occurs, then the vesting of all Options then held by a
    Participant shall automatically be accelerated by two years so
    that such Options shall immediately become vested and
    exercisable with respect to the number of shares of Common Stock
    covered by such Options that would otherwise have been vested as
    of the second anniversary of the Participant Termination Date if
    the Participant continued to be employed by the Company for such
    period.



 



    (3) Effect on Restricted Stock Awards.



 



    (A) Reorganization Event that is not a Change in Control
    Event.  Upon the occurrence of a Reorganization
    Event that is not a Change in Control Event, the repurchase and
    other rights of the Company under each outstanding Restricted
    Stock Award shall inure to the benefit of the Company’s
    successor and shall apply to the cash, securities or other
    property which the Common Stock was converted into or exchanged
    for pursuant to such Reorganization Event in the same manner and
    to the same extent as they applied to the Common Stock subject
    to such Restricted Stock Award.



 



    (B) Change in Control Event.  Upon the
    occurrence of a Change in Control Event (regardless of whether
    such event also constitutes a Reorganization Event), except to
    the extent specifically provided to the contrary in the
    instrument evidencing any Restricted Stock Award or any other
    agreement between a Participant and the Company, if, on or prior
    to the first anniversary of the date of the consummation of the
    Change in Control Event, the Participant’s Participant
    Termination Date occurs, then the vesting schedule of any such
    Restricted Stock Award shall automatically be accelerated by two
    years so that the number of shares that would otherwise have
    vested and become free from conditions or restrictions on or
    prior to the second anniversary of the Participant Termination
    Date if the Participant had continued to be employed by the
    Company for such period shall immediately become free from
    conditions or restrictions as of the Participant Termination
    Date.



 



    (4) Effect on Stock Appreciation Rights and Other Stock
    Unit Awards.  The Board may specify in an Award at
    the time of the grant the effect of a Reorganization Event and
    Change in Control Event on any SAR and Other Stock Unit Award.



 


		
	
    11.  
	
    General
    Provisions Applicable to Awards




 



    (a) Transferability of Awards.  Except as
    the Board may otherwise determine or provide in an Award, Awards
    shall not be sold, assigned, transferred, pledged or otherwise
    encumbered by the person to whom they are granted, either
    voluntarily or by operation of law, except by will or the laws
    of descent and distribution or, other than in the case of an
    Option intended to be an Incentive Stock Option, pursuant to a
    qualified domestic relations order, and,






    

    7








 







    during the life of the Participant, shall be exercisable only by
    the Participant. References to a Participant, to the extent
    relevant in the context, shall include references to authorized
    transferees.



 



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



 



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



 



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



 



    (e) Withholding.  Each Participant shall
    pay to the Company, or make provision satisfactory to the
    Company for payment of, any taxes required by law to be withheld
    in connection with an Award to such Participant. If provided for
    in an Award or approved by the Company in its sole discretion, a
    Participant may satisfy such tax obligations in whole or in part
    by delivery of shares of Common Stock, including shares retained
    from the Award creating the tax obligation, valued at their Fair
    Market Value; provided, however, that the total tax withholding
    where stock is being used to satisfy such tax obligations cannot
    exceed the Company’s minimum statutory withholding
    obligations (based on minimum statutory withholding rates for
    federal and state tax purposes, including payroll taxes, that
    are applicable to such supplemental taxable income). Shares
    surrendered to satisfy tax withholding requirements cannot be
    subject to any repurchase, forfeiture, unfulfilled vesting or
    other similar requirements. The Company may, to the extent
    permitted by law, deduct any such tax obligations from any
    payment of any kind otherwise due to a Participant.



 



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



 



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



 



    (h) Acceleration.  The Board may at any
    time provide that any Award shall become immediately exercisable
    in full or in part, free of some or all restrictions or
    conditions, or otherwise realizable in full or in part, as the
    case may be.



 



    (i) Deferrals.  The Board may permit
    Participants to defer receipt of any Common Stock issuable upon
    exercise of an Option or upon the lapse of any restriction
    applicable to any Restricted Stock Award, subject to such rules
    and procedures as it may establish.



 



    (j) Share Issuance.  To the extent that
    the Plan provides for issuance of stock certificates to reflect
    the issuance of shares of Common Stock or Restricted Stock, the
    Board may provide for the issuance of such shares on a
    non-certificated basis, to the extent not prohibited by
    applicable law or the rules of any stock exchange on which the
    Common Stock is traded.



 


		
	
    12.  
	
    Miscellaneous




 



    (a) No Right To Employment or Other
    Status.  No person shall have any claim or right
    to be granted an Award, and the grant of an Award shall not be
    construed as giving a Participant the right to continued
    employment or






    

    8








 







    any other relationship with the Company. The Company expressly
    reserves the right at any time to dismiss or otherwise terminate
    its relationship with a Participant free from any liability or
    claim under the Plan, except as expressly provided in the
    applicable Award.



 



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



 



    (c) Effective Date and Term of Plan.  The
    Plan shall become effective on the date on which it is adopted
    by the Board, but no Award may be granted unless and until the
    Plan has been approved by the Company’s stockholders. No
    Awards shall be granted under the Plan after the completion of
    10 years from the earlier of (i) the date on which the
    Plan was adopted by the Board or (ii) the date the Plan was
    approved by the Company’s stockholders, but Awards
    previously granted may extend beyond that date.



 



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



 



    (e) Provisions for Foreign
    Participants.  The Board may, without amending the
    Plan, modify Awards or Options granted to Participants who are
    foreign nationals or employed outside the United States or
    establish subplans under the Plan to recognize differences in
    laws, rules, regulations or customs of such foreign
    jurisdictions with respect to tax, securities, currency,
    employee benefit or other matters.



 



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



 



    * * *




    Approved by the Board of Directors on March 31, 2010



 



    Approved by the Stockholders on May 20, 2010





    

    9