exv10w1








 




    Exhibit 10.1
    




 




    LOGMEIN,
    INC.

    



 




   AMENDED
    AND RESTATED
    2009
    STOCK INCENTIVE PLAN



 



    1. Purpose



 



    The purpose of this
    Amended
    and Restated 2009 Stock Incentive Plan (the
    “Plan”) of LogMeIn, Inc., a Delaware corporation (the
    “Company”), is to advance the interests of the
    Company’s stockholders by enhancing the Company’s
    ability to attract, retain and motivate persons who are expected
    to make important contributions to the Company and by providing
    such persons with equity ownership opportunities and
    performance-based incentives that are intended to better align
    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 are eligible to be granted options,
    stock appreciation rights (“SARs”), restricted stock,
    restricted stock units and other stock-based awards (each, an
    “Award”) under the Plan. Each person who receives an
    Award under the Plan is deemed a “Participant”.



 



    3. Administration and Delegation



 



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



 



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



 



    (c) Delegation to Officers.  To the
    extent permitted by applicable law, the Board may delegate to
    one or more officers of the Company the power to grant Awards
    (subject to any limitations under the Plan) 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).





    

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    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,
    $0.01 par value per share, of the Company (the “Common
    Stock”) that is equal to the sum of:



 



    (1) 3,323,996
    shares of Common Stock; plus



 



    (2) such additional number of shares of Common Stock as is
    equal to the  number of shares of Common Stock subject
    to awards granted under the
    Company’s
    2007
    Stock Incentive Plan or the Company’s 2004
    Equity Incentive Plan which awards expire, terminate or are
    otherwise surrendered, canceled, forfeited or repurchased by the
    Company at their original issuance price pursuant to a
    contractual repurchase right.



 



    If any Award expires or is terminated, surrendered or canceled
    without having been fully exercised, 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), is
    settled in cash or otherwise results in any Common Stock not
    being issued, the unused Common Stock covered by such Award
    shall again be available for the grant of Awards under the Plan.
    Further, shares of Common Stock delivered (either by actual
    delivery or attestation) to the Company by a Participant to
    exercise an Award or to satisfy any applicable tax withholding
    obligation (including shares retained from the Award creating
    the tax obligation) shall be added to the number of shares of
    Common Stock available for the grant of Awards under the
    Plan. Shares issued under
    the Plan may consist in whole or in part of authorized but
    unissued shares or treasury shares.



 



    (b)
    Section 162(m)
    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 1,000,000 per
    calendar year. For purposes of the foregoing limit, the
    combination of an Option in tandem with an SAR shall be treated
    as a single Award. The per Participant limit described in this
    Section 4(b) shall be construed and applied consistently
    with Section 162(m) of the Code or any successor provision
    thereto, and the regulations thereunder
    (“Section 162(m)”).



 



    (c)
     Substitute
    Awards.  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 Awards in substitution for any options or other stock or
    stock-based awards granted by such entity or an affiliate
    thereof. Substitute Awards may be granted on such terms as the
    Board deems appropriate in the circumstances, notwithstanding
    any limitations on Awards contained in the Plan. Substitute
    Awards shall not count against the overall share limit set forth
    in Section 4(a).



 



    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






    

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    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. Options
    may only be granted as non-statutory stock options and
    may not be granted as “incentive stock options”, as defined in
    Section 422 of the Code.



 



    (b) Exercise Price.  The Board
    shall establish the exercise price of each Option and specify
    the exercise price in the applicable option agreement. The
    exercise price shall be not less than 100% of the Fair Market
    Value (as defined below) on the date the Option is granted;
    provided that if the Board approves the grant of an Option with
    an exercise price to be determined on a future date, the
    exercise price shall be not less than 100% of the Fair Market
    Value on such future date.



 



    (c) 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.



 



    (d) 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 e)
    for the number of shares for which the Option is exercised.
    Shares of Common Stock subject to the Option will be delivered
    by the Company as soon as practicable following exercise.



 



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



 



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



 



    (4) to the extent permitted by applicable law and provided
    for in the applicable option agreement or approved by the Board,
    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





    

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



 



    6. Director Options.



 



    (a) Initial Grant.  Upon the
    commencement of service on the Board by any individual who is
    not then an employee of the Company or any subsidiary of the
    Company, the Company shall grant to such person an Option to purchase 150,000 shares of Common Stock (subject
    to adjustment under Section 10).



 



    (b) Biennial Grant.  On the date of
    each annual meeting of stockholders of the Company, the Company
    shall grant to each member of the Board of Directors of the
    Company (i) who is both serving as a director of the
    Company immediately prior to and immediately following such
    annual meeting, (ii) who is not then an employee of the
    Company or any of its subsidiaries and (iii) who did not
    receive an Option under this Section 6(b) in connection
    with the prior years’ annual meeting, an Option to purchase 75,000 shares of Common Stock (subject
    to adjustment under Section 10); provided, however, that a
    director shall not be eligible to receive an option grant under
    this Section 6(b) until such director has served
    continuously on the Board for at least eighteen (18) months.



 



    (c) Terms of Director
    Options.  Options granted under this
    Section 6 shall (i) have an exercise price equal to
    the closing sale price (for the primary trading session) of the
    Common Stock on the national securities exchange on which the
    Common Stock is then traded on the day of grant (or if the date
    of grant is not a trading day on such exchange, the trading day
    immediately prior to the date of grant) or if the Common Stock
    is not then traded on a national securities exchange, the fair
    market value of the Common Stock on such date as determined by
    the Board, (ii) vest in equal quarterly increments over two
    years from the date of grant provided that the individual
    continues serving on the Board, provided that no additional
    vesting shall take place after the Participant ceases to serve
    as a director and further provided that the Board may provide
    for accelerated vesting in the case of death, disability, change
    in control, attainment of mandatory retirement age or retirement
    following at least 10 years of service, (iii) expire
    on the earlier of 10 years from the date of grant or three
    months following cessation of service on the Board and
    (iv) contain such other terms and conditions as the Board
    shall determine.



 



    (d) Board Discretion.  The Board
    retains the specific authority to from time to time increase or
    decrease the number of shares subject to Options granted under
    this Section 6 and to issue SARs, Restricted Stock Awards,
    or Other Stock-Based Awards in lieu of some or all of the
    Options otherwise issuable under this Section 6.



 



    7. Stock Appreciation Rights.



 



    (a) General.  The Board may grant
    Awards consisting of SARs entitling the holder, upon exercise,
    to receive an amount of Common Stock or cash 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 over the exercise price established pursuant to
    Section 7(c). The date as of which such appreciation is
    determined shall be the exercise date.



 



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



 



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





    

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



 



    (c) Exercise Price.  The Board
    shall establish the exercise price of each SAR and specify it in
    the applicable SAR agreement. The exercise price shall not be
    less than 100% of the Fair Market Value on the date the SAR is
    granted; provided that if the Board approves the grant of a SAR
    with an exercise price to be determined on a future date, the
    exercise price shall be not less than 100% of the Fair Market
    Value on such future date.



 



    (d) Duration of SARs.  Each SAR
    shall be exercisable at such times and subject to such terms and
    conditions as the Board may specify in the applicable SAR
    agreement.



 



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



 



    8. Restricted Stock; Restricted Stock Units.



 



    (a) General.  The Board may grant
    Awards entitling recipients to acquire shares of Common Stock
    (“Restricted 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. Instead of granting Awards for Restricted Stock, the
    Board may grant Awards entitling the recipient to receive shares
    of Common Stock or cash to be delivered at the time such Award
    vests (“Restricted Stock Units”) (Restricted Stock and
    Restricted Stock Units are each referred to herein as a
    “Restricted Stock Award”).



 



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



 



    (c) Additional Provisions Relating to Restricted
    Stock.



 



    (1) Dividends.  Unless otherwise
    provided
    in the
    applicable
    Award agreement, any dividends (whether paid
    in
    cash,
    stock
    or property)
    declared and paid by the Company with respect to shares of
    Restricted Stock (“Accrued Dividends”) shall be paid
    to the Participant only if and when such shares become free from
    the restrictions on transferability and
    forfeitability that
    apply to such shares. Each payment
    of
    Accrued Dividends will be made no later than the end
    of the calendar year in which the dividends are paid to
    tockholders
    of that class of stock or, if later, the 15th day of the
    third month following the lapsing
    of the restrictions on transferability and the forfeitability
    provisions applicable to the underlying shares of Restricted
    Stock.



 



    (2) Stock Certificates.  The
    Company may require that any stock certificates issued in
    respect of shares of Restricted Stock shall be deposited in
    escrow 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.





    

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    (d) Additional Provisions Relating to Restricted
    Stock Units.



 



    (1) Settlement.  Upon the vesting
    of and/or
    lapsing of any other restrictions (i.e., settlement) with
    respect to each Restricted Stock Unit, the Participant shall be
    entitled to receive from the Company one share of Common Stock
    or an amount of cash equal to the Fair Market Value of one share
    of Common Stock, as provided in the applicable Award agreement.
    The Board may, in its discretion, provide that settlement of
    Restricted Stock Units shall be deferred, on a mandatory basis
    or at the election of the Participant.



 



    (2) Voting Rights.  A Participant
    shall have no voting rights with respect to any Restricted Stock
    Units.



 



    (3) Dividend Equivalents.  To the
    extent provided by the Board, in its sole discretion, a grant of
    Restricted Stock Units may provide Participants with the right
    to receive an amount equal to any dividends or other
    distributions declared and paid on an equal number of
    outstanding shares of Common Stock (“Dividend
    Equivalents”). Dividend Equivalents may be paid currently
    or credited to an account for the Participants, may be settled
    in cash
    and/or
    shares of Common Stock and may be subject to the same
    restrictions on transfer and forfeitability as the Restricted
    Stock Units with respect to which paid, as determined by the
    Board in its sole discretion, subject in each case to such terms
    and conditions as the Board shall establish, in each case to be
    set forth in the applicable Award agreement.



 



    9. Other Stock-Based Awards



 



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



 



    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 dividend or 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 number and class of securities and exercise
    price per share of each outstanding Option and each Option
    issuable under Section 6, (iv) the share- and
    per-share provisions and the exercise price of each SAR,
    (v) the number of shares subject to and the repurchase
    price per share subject to each outstanding Restricted Stock
    Award, and (vi) the share- and per-share-related provisions
    and the purchase price, if any, of each outstanding Other
    Stock-Based Award, shall be equitably adjusted by the Company
    (or substituted Awards may be made, if applicable) in the manner
    determined by the Board. Without limiting the generality of 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 an outstanding 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.



 



    (b) Reorganization Events.



 



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






    

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    the Common Stock of the Company for cash, securities or other
    property pursuant to a share exchange transaction or
    (c) any liquidation or dissolution of the Company.



 



    (2) Consequences of a Reorganization Event on Awards
    Other than Restricted Stock Awards.  In
    connection with a Reorganization Event, the Board may take any
    one or more of the following actions as to all or any (or any
    portion of) outstanding Awards other than Restricted Stock
    Awards on such terms as the Board determines: (i) provide
    that Awards shall be assumed, or substantially equivalent Awards
    shall be substituted, by the acquiring or succeeding corporation
    (or an affiliate thereof), (ii) upon written notice to a
    Participant, provide that the Participant’s unexercised
    Awards will terminate immediately prior to the consummation of
    such Reorganization Event unless exercised by the Participant
    within a specified period following the date of such notice,
    (iii) provide that outstanding Awards shall become
    exercisable, realizable, or deliverable, or restrictions
    applicable to an Award shall lapse, in whole or in part prior to
    or upon such Reorganization Event, (iv) in the event of a
    Reorganization Event under the terms of which holders of Common
    Stock will receive upon consummation thereof a cash payment for
    each share surrendered in the Reorganization Event (the
    “Acquisition Price”), make or provide for a cash
    payment to a Participant equal to the excess, if any, of
    (A) the Acquisition Price times the number of shares of
    Common Stock subject to the Participant’s Awards (to the
    extent the exercise price does not exceed the Acquisition Price)
    over (B) the aggregate exercise price of all such
    outstanding Awards and any applicable tax withholdings, in
    exchange for the termination of such Awards, (v) provide
    that, in connection with a liquidation or dissolution of the
    Company, Awards shall convert into the right to receive
    liquidation proceeds (if applicable, net of the exercise price
    thereof and any applicable tax withholdings) and (vi) any
    combination of the foregoing. In taking any of the actions
    permitted under this Section 10(b), the Board shall not be
    obligated by the Plan to treat all Awards, all Awards held by a
    Participant, or all Awards of the same type, identically.



 



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



 



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



 



    11. General Provisions Applicable to Awards



 



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






    

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    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, termination or other cessation of employment, 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.  The Participant
    must satisfy all applicable federal, state, and local or other
    income and employment tax withholding obligations before the
    Company will deliver stock certificates or otherwise recognize
    ownership of Common Stock under an Award. The Company may decide
    to satisfy the withholding obligations through additional
    withholding on salary or wages. If the Company elects not to or
    cannot withhold from other compensation, the Participant must
    pay the Company the full amount, if any, required for
    withholding or have a broker tender to the Company cash equal to
    the withholding obligations. Payment of withholding obligations
    is due before the Company will issue any shares on exercise or
    release from forfeiture of an Award or, if the Company so
    requires, at the same time as is payment of the exercise price
    unless the Company determines otherwise. If provided for in an
    Award or approved by the Board in its sole discretion, a
    Participant may satisfy such tax obligations in whole or in part
    by delivery (either by actual delivery or attestation) of shares
    of Common Stock, including shares retained from the Award
    creating the tax obligation, valued at their Fair Market Value;
    provided, however, except as otherwise provided by the Board,
    that the total tax withholding where stock is being used to
    satisfy such tax obligations cannot exceed the Company’s
    minimum statutory withholding obligations (based on minimum
    statutory withholding rates for federal and state tax purposes,
    including payroll taxes, that are applicable to such
    supplemental taxable income). Shares used to satisfy tax
    withholding requirements cannot be subject to any repurchase,
    forfeiture, unfulfilled vesting or other similar requirements.



 



    (f) Amendment of Award.



 



    (1) 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,
    and
    changing the date of exercise or realization. The Participant’s
    consent to such action shall be required unless (i) the
    Board determines that the action, taking into account any
    related action, would not materially and adversely affect the
    Participant’s rights under the Plan or (ii) the change
    is permitted under Section 10 hereof.



 



    (2) The Board may, without stockholder approval, amend any
    outstanding Award granted under the Plan to provide an exercise
    price per share that is lower than the then-current exercise
    price per share of such outstanding Award. The Board may also,
    without stockholder approval, cancel any outstanding award
    (whether or not granted under the Plan) and grant in
    substitution therefor new Awards under the Plan covering the
    same or a different number of shares of Common Stock and having
    an exercise price per share lower than the then-current exercise
    price per share of the cancelled award.



 



    (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.





    

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    (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)
    Performance
    Awards.



 



    (1)
    Grants.  Restricted
    Stock Awards and Other Stock-Based Awards under the Plan may be
    made subject to the achievement of performance goals pursuant to
    this Section 11(i) (“Performance Awards”).



 



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



 



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



 



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



 



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



 



    12. Miscellaneous



 



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






    

    A-9








 







    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.



 



    (c) Effective Date and Term of
    Plan.  The Plan shall become effective on the
    date on which it is adopted by the Board. No Awards shall be
    granted under the Plan after the expiration 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 (i) to the extent required by
    Section 162(m), no Award granted to a Participant that is
    intended to comply with Section 162(m) after the date of
    such amendment shall become exercisable, realizable or vested,
    as applicable to such Award, unless and until such amendment
    shall have been approved by the Company’s stockholders if
    required by Section 162(m) (including the vote required
    under Section 162(m)); and (ii) no amendment that
    would require stockholder approval under the rules of the NASDAQ
    Stock Market may be made effective unless and until such
    amendment shall have been approved by the Company’s
    stockholders.  Unless otherwise specified in the
    amendment, any amendment to the Plan adopted in accordance with
    this Section 12(d) shall apply to, and be binding on the
    holders of, all Awards outstanding under the Plan at the time
    the amendment is adopted, provided the Board determines that
    such amendment does not materially and adversely affect the
    rights of Participants under the Plan.



 



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



 



    (f) Compliance with Code
    Section 409A.  Except
    as provided in individual Award agreements initially or by
    amendment, if and to the extent (i) any portion of any
    payment, compensation or other benefit provided to a Participant
    pursuant to the Plan in connection with his or her employment
    termination constitutes “nonqualified deferred
    compensation” within the meaning of Section 409A of
    the Code and (ii) the Participant is a specified employee
    as defined in Section 409A(a)(2)(B)(i) of the Code, in each
    case as determined by the Company in accordance with its
    procedures, by which determinations the Participant (through
    accepting the Award) agrees that he or she is bound, such
    portion of the payment, compensation or other benefit shall not
    be paid before the day that is six months plus one day after the
    date of “separation from service” (as determined under
    Section 409A of the Code) (the “New Payment
    Date”), except as Section 409A of the Code may then
    permit. The aggregate of any payments that otherwise would have
    been paid to the Participant during the period between the date
    of separation from service and the New Payment Date shall be
    paid to the Participant in a lump sum on such New Payment Date,
    and any remaining payments will be paid on their original
    schedule. The Company makes no representations or warranty and
    shall have no liability to the Participant or any other person
    if any provisions of or payments, compensation or other benefits
    under the Plan are determined to constitute nonqualified
    deferred compensation subject to Section 409A of the Code
    but do not to satisfy the conditions of that section.



 



    (g) 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, excluding choice-of-law principles of the law of such
    state that would require the application of the laws of a
    jurisdiction other than such state.





    

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