exv10w47






EXHIBIT 10.47




ALSERES PHARMACEUTICALS, INC.




AMENDED AND RESTATED 2005 STOCK INCENTIVE PLAN





	1.	 	Purpose





     The purpose of this Amended and Restated 2005 Stock Incentive Plan (the “Plan”) of Alseres
Pharmaceuticals, Inc., a Delaware corporation (the “Company”), is to advance the interests of the
Company’s stockholders by enhancing its ability to attract, retain and motivate persons who make or
are expected to make important contributions to the Company. The Plan is intended to provide such
persons with equity ownership opportunities and performance-based incentives, thereby better
aligning their interests 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, advisors, and other service
providers (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, restricted stock units, 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 himself or herself.




	4.	 	Stock Available for Awards





     (a) Number of Shares. Subject to adjustment under Section 9, Awards may be
made under the Plan for up to the number of shares of the Company’s common stock, par value $0.01
per share (the “Common Stock”), that is equal to the sum of:



          (1) 3,050,000 shares of Common Stock; plus




          (2) an annual increase to be added on the first day of each of the Company’s fiscal years
during the period beginning in fiscal year 2006 and ending on the second day of fiscal year 2014
equal to the lowest of (i) 400,000 shares of Common Stock, (ii) 4% of the outstanding shares on
such date and (iii) an amount determined by the Board.



If any Award expires, 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), or results in any Common Stock not being issued (including without limitation,
when an Award is settled for cash), then in each such case 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 tendered to the Company by a Participant to exercise an Award (either by actual delivery or
by attestation) shall be added to the number of shares of Common Stock available for the grant of
Awards under the Plan. However, in the case of Incentive Stock Options (as hereinafter defined),
the foregoing provisions shall be subject to any limitations under the Code. Stock Appreciation
Rights to be settled in shares of Common Stock shall be counted in full against the number of
shares available for award under the Plan, regardless of the number of shares of Common Stock
issued upon settlement of the Stock Appreciation Right; provided, however, that Stock Appreciation
Rights to be settled only in cash shall not be so counted.




     (b) Per-Participant Limit. Subject to adjustment under Section 9, the maximum
number of shares of Common Stock with respect to which Awards may be granted to any Participant
under the Plan shall be 400,000 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 Alseres Pharmaceuticals, Inc., any of Alseres Pharmaceuticals,
Inc.’s present or future parent or subsidiary corporations as defined in Sections 424(e) or (f) of
the Code, and any other entities the employees of which are eligible to receive Incentive Stock
Options under the Code, and shall be subject to and shall be construed consistently with the
requirements of Section 422 of the Code. The Company shall have no liability to a Participant, or
any other party, if an Option (or any part thereof) that is intended to be an Incentive Stock
Option is not an Incentive Stock Option.



     (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 (the “Fair Market Value”)
of the Common Stock, as determined by the Board, at the time the Option is granted.



     (d) No Reload Rights. Options granted under this Plan shall not contain any
provision entitling the optionee to the automatic grant of additional Options in connection with
any exercise of the original Option.



     (e) 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.



     (f) 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 Company, together with payment in full as specified in Section
5(g) for the number of shares for which the Option is exercised. Shares of Common Stock subject to
the Option will be delivered by the Company following exercise either as soon as practicable or, to
the extent permitted by the Company in its sole discretion, on a deferred basis (with the Company’s
obligation to be evidenced by an instrument providing for future delivery of the deferred shares at
the time or times specified by the Board).



     (g) 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, in its sole discretion, 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 promptly pay 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 (either by actual delivery or attestation) of shares of Common Stock owned
by the Participant valued at their 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) 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 (other than Participants who
are directors or executive officers (or equivalent thereof)) 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.




     (h) 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 pursuant to this
Section 5(h) 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.



     (i) Amendment of Options. Subject to the provisions of Section 10(f), the
Board may amend an Option to convert it into a Stock Appreciation Right.




	6.	 	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.



     (b) Grant of Stock Appreciation Rights. 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
granted in tandem with Options, (i) the Stock Appreciation Right 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 Stock
Appreciation Right 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 Stock Appreciation Right 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 Stock Appreciation Right; (iii) the Option will terminate and no longer be
exercisable upon the exercise of the related Stock Appreciation Right; and (iv) the Stock
Appreciation Right will be transferable only with the related Option.




          (2)
Exercise of Independent Stock Appreciation Rights. A Stock Appreciation
Right not granted in tandem with an Option will become exercisable at such time or times, and on
such conditions, as the Board may specify. The Board may at any time accelerate the time at which
all or any part of the Right may be exercised.




     (c) Exercise of Stock Appreciation Rights. Stock Appreciation Rights 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 Company.




	7.	 	Restricted Stock; Restricted Stock Units





     (a) Grants. 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 to be delivered in the future (“Restricted Stock Units”) subject to such terms and conditions
on the delivery of the shares of Common Stock as the Board shall determine (each Award for
Restricted Stock or Restricted Stock Units, a “Restricted Stock Award”). The Board may also permit
an exchange of unvested shares of Common Stock that have already been delivered to a Participant
for an instrument evidencing the right to future delivery of Common Stock at such time or times,
and on such conditions, as the Board shall specify.



 









 





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




	8.	 	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, including
without limitation rights to purchase shares of Common Stock (“Other Stock Unit Awards”), may be
granted hereunder to Participants. 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.




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





     (a) Changes in Capitalization. In the event of any stock split, reverse stock
split, stock dividend, recapitalization, combination of shares, reclassification of shares,
spin-off or other similar change in capitalization or event, or any distribution to holders of
Common Stock other than an ordinary cash dividend, (i) the number and class of securities available
under this Plan, (ii) the sub-limit set forth in Section 4(b), (iii) the number and class of
securities and exercise price per share subject to each outstanding Option, (iv) the repurchase
price per share subject to each outstanding Restricted Stock Award and (v) the terms of each other
outstanding 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. If this Section 9(a) applies and
Section 9(c) also applies to any event, Section 9(c) shall be applicable to such event, and this
Section 9(a) shall not be applicable.



     (b) Liquidation or Dissolution. In the event of a proposed liquidation or
dissolution of the Company, the Board shall upon written notice to the Participants provide that
all then unexercised Options will (i) become exercisable in full as of a specified time at least 10
business days prior to the effective date of such liquidation or dissolution and (ii) terminate
effective upon such liquidation or dissolution, except to the extent exercised before such
effective date. The Board may specify the effect of a liquidation or dissolution on any Restricted
Stock Award granted under the Plan at the time of the grant.



     (c) Reorganization Events.



          (1) Definition. 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
outstanding shares of Common Stock are converted into or exchanged for the right to receive cash,
securities or other property or (ii) any exchange of all of the Common Stock for cash, securities
or other property pursuant to a share exchange transaction.




          (2) Consequences of a Reorganization Event on Awards. In connection with a
Reorganization Event, the Board shall take any one or more of the following actions as to all or
any outstanding Awards on such terms as the Board determines: (i) provide that Awards shall be
assumed, or substantially equivalent Awards shall be substituted, by the acquiring or succeeding
corporation (or an affiliate thereof), (ii) upon written notice to a Participant, provide that the
Participant’s unexercised Options or other unexercised Awards shall become exercisable in full and
will terminate immediately prior to the consummation of such Reorganization Event unless exercised
by the Participant within a specified period following the date of such notice, (iii) in the event
of a Reorganization
Event under the terms of which holders of Common Stock will receive upon consummation thereof
a cash payment for each share surrendered in the Reorganization Event (the “Acquisition Price”),
make or provide for a cash payment to a Participant equal to (A) the Acquisition Price times the
number of shares of Common Stock subject to the Participant’s Options or other Awards (to the
extent the exercise price does not exceed the Acquisition Price) minus (B) the aggregate exercise
price of all such outstanding Options or other Awards, in exchange for the termination of such
Options or other Awards, (iv) provide that outstanding Awards shall become exercisable or
realizable, or restrictions applicable to a Restricted Stock Award or other Award shall lapse, in
whole or in part, prior to or upon such Reorganization Event, (v) provide that, in connection with
a liquidation or dissolution of the Company, Awards shall convert into the right to receive
liquidation proceeds (if applicable, net of the exercise price thereof) and (vi) any combination of
the foregoing. To the extent all or any portion of an Award becomes exercisable solely as a result
of clause (ii) above, the Board may provide that upon exercise of such Award the Participant shall
receive shares subject to a right of repurchase by the Company or its successor at the Award
exercise price; such repurchase right (A) shall lapse at the same rate as the Award would have
become exercisable under its terms and (B) shall not apply to any shares subject to the Award that
were exercisable under its terms without regard to clause (ii) above.





	10.	 	General Provisions Applicable to Awards




 









 











     (a) Transferability of Awards. Except as the Board may otherwise determine or
may 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, and, during the life of the Participant,
shall be exercisable only by the Participant. References to a Participant, to the extent relevant
in the context, shall include references to authorized transferees.



     (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, the Participant’s legal representative, conservator or guardian may exercise rights
under the Award.



     (e) Withholding. The Company may require each Participant to pay to the
Company, or make provision satisfactory to the Company for payment of, an amount sufficient to pay
any taxes, social security contributions, or other similar amounts 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 except as otherwise provided
by the Board, 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. Except as prohibited by Section 5(e), 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, converting an Incentive Stock Option to a Nonstatutory Stock Option and converting an
Option into a SAR, provided that, in each such case, 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 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; provided, however, that this
sentence shall apply to a Restricted Stock Award only to the extent consistent with Section 10(j).



     (i) Compliance With Code Section 409A. No Award shall provide for deferral of
compensation that does not comply with Section 409A of the Code, unless the Board, at the time of
grant, specifically provides that the Award is not intended to comply with Section 409A of the
Code.



     (j) Performance Conditions.



          (1) Notwithstanding any other provision of the Plan, if the Committee determines at the
time a Restricted Stock Award or an Other Stock-Based Award is granted to a Participant who is then
an officer, that such Participant is, or is likely to be as of the end of the tax year in which the
Company would claim a tax deduction in connection with such Award, a Covered Employee (as defined
in Section 162(m) of the Code), then the Committee may provide that this Section 10(j) is
applicable to such Award.




          (2) If a Restricted Stock Award or an Other Stock-Based Award is subject to this Section
10(j), then the lapsing of restrictions thereon and the distribution of Shares pursuant thereto, as
applicable, shall be subject to the achievement of one or more objective performance goals
established by the Committee, which shall be based on one or more of the following measures: (a)
earnings per share, (b) return on average equity or average assets with respect to a pre-determined
peer group, (c) earnings, (d) earnings growth, (e) revenues, (f) expenses, (g) stock price, (h)
market share, (i) return on sales, assets, equity or investment, (j)




 









 






regulatory compliance, (k)
improvement of financial ratings, (l) achievement of balance sheet or income statement objectives,
(m) total shareholder return, (n) net operating profit after tax, (o) pre-tax or after-tax income,
(p) cash flow, (q) development milestones, (r) third-party collaborations, or (s) new product
approval/launches, and may be absolute in their terms or measured against or in relationship to
other companies comparably, similarly or otherwise situated. The Committee may determine that
special one-time or extraordinary gains and/or losses or other one-time or extraordinary events
should or should not be included or considered in the calculation of such measures. Such
performance goals may vary by Participant and may be different for different Awards. Such
performance goals shall be set by the Committee within the time period prescribed by, and shall
otherwise comply with the requirements of, Section 162(m) of the Code, or any successor provision
thereto, and the regulations thereunder.




          (3) The Committee shall have the power to impose such other restrictions on Awards subject
to this Section 10(j) as it may deem necessary or appropriate to ensure that such Awards satisfy
all requirements for “performance-based compensation” within the meaning of Section 162(m)(4)(C) of
the Code, or any successor provision thereto.





	11.	 	Repricing





     The Board may, without prior approval by the Company’s stockholders, effect a repricing of any
Award issued under the Plan, whether by (a) amending the terms of any outstanding Award granted
under the Plan to provide an exercise or purchase price per share that is lower than the
then-current exercise or purchase price per share of such outstanding Award, (b) canceling,
replacing or exchanging any outstanding award (whether or not granted under the Plan) and granting
in substitution therefore a new Award or Awards under the Plan covering the same or a different
number of shares of Common Stock and, if deemed appropriate, having an exercise or purchase price
per share lower than the then-current exercise or purchase price per share of the cancelled,
replaced or exchanged award, or (c) such other mechanism as the Board shall deem necessary or
advisable.




	12.	 	Miscellaneous





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



     (b) No Rights As Stockholder. Subject to the provisions of the applicable
Award, no Participant 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 approved by stockholders of the Company and shall remain in full force and
effect until terminated by the Board. No Awards shall be granted under the Plan after the
completion of ten years from the date on which the Plan is adopted or was approved by the Company’s
stockholders, whichever is earlier, 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 no amendment requiring the approval of the Company’s
stockholders under any applicable tax requirement, including without limitation Sections 162(m) and
422 of the Code, shall become effective until such approval of the Company’s stockholders is
obtained and provided further that without approval of the Company’s stockholders, no amendment may
(i) increase the number of shares authorized under the Plan (other than pursuant to Section 9),
(ii) materially increase the benefits provided under the Plan, (iii) materially expand the class of
participants eligible to participate in the Plan, (iv) expand the types of Awards provided under
the Plan or (v) make any other changes which require stockholder approval under the rules of the
Nasdaq National Market, Inc. No Award shall be made that is conditioned on the approval of the
Company’s stockholders of any amendment to the Plan.



     (e) Provisions for Foreign Participants. The Board may modify the terms and
conditions of Awards granted to Participants who are foreign nationals or employed outside the
United States, establish subplans under the Plan, or adopt such modifications or procedures as the
Board may determine to be necessary or advisable to recognize differences in laws, rules,
regulations or customs of such foreign jurisdictions with respect to tax, securities, currency,
employee benefit, accounting 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.