Exhibit 4.1








EXHIBIT 4.1




GLOBAL CASH ACCESS HOLDINGS, INC.




2005 STOCK INCENTIVE PLAN




(As Amended and Restated Effective April 30, 2009)




1. Purposes of the Plan. The purposes of this Plan are to attract and retain the
best available personnel, to provide additional incentives to Employees, Directors and
Consultants and to promote the success of the Company’s business.



2. Definitions. The following definitions shall apply as used herein and in the
individual Award Agreements except as defined otherwise in an individual Award Agreement. In the
event a term is separately defined in an individual Award Agreement, such definition shall
supercede the definition contained in this Section 2.



(a) “Administrator” means the Board or any of the Committees appointed to administer
the Plan.



(b) “Affiliate” and “Associate” shall have the respective meanings ascribed
to such terms in Rule 12b-2 promulgated under the Exchange Act.



(c) “Applicable Laws” means the legal requirements relating to the Plan and the
Awards under applicable provisions of federal securities laws, state corporate and securities
laws, the Code, the rules of any applicable stock exchange or national market system, and the
rules of any non-U.S. jurisdiction applicable to Awards granted to residents therein.



(d) “Assumed” means that pursuant to a Corporate Transaction either (i) the Award is
expressly affirmed by the Company or (ii) the contractual obligations represented by the Award
are expressly assumed (and not simply by operation of law) by the successor entity or its Parent
in connection with the Corporate Transaction with appropriate adjustments to the number and type
of securities of the successor entity or its Parent subject to the Award and the exercise or
purchase price thereof which at least preserves the compensation element of the Award existing at
the time of the Corporate Transaction as determined in accordance with the instruments evidencing
the agreement to assume the Award.



(e) “Award” means the grant of an Option, SAR, Dividend Equivalent Right, Restricted
Stock, Restricted Stock Unit or other right or benefit under the Plan.



(f) “Award Agreement” means the written agreement evidencing the grant of an Award
executed by the Company and the Grantee, including any amendments thereto.



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



(h) “Cause” means, with respect to the termination by the Company or a Related
Entity of the Grantee’s Continuous Service, that such termination is for “Cause” as such term is
expressly defined in a then-effective written agreement between the Grantee and the Company or
such Related Entity, or in the absence of such then-effective written agreement and definition,
is based on, in the determination of the Administrator, the Grantee’s: (i) performance of any act
or failure to perform any act in bad faith and to the detriment of the Company or a Related
Entity; (ii) dishonesty, intentional misconduct or material breach of any agreement with the
Company or a Related Entity; or (iii) commission of a crime involving dishonesty, breach of
trust, or physical or emotional harm to any person.







 


 









 







(i) “Change in Control” means a change in ownership or control of the Company after
the Registration Date effected through either of the following transactions:



(i) the direct or indirect acquisition by any person or related group of persons (other than
an acquisition from or by the Company or by a Company-sponsored employee benefit plan or by a
person that directly or indirectly controls, is controlled by, or is under common control with,
the Company) of beneficial ownership (within the meaning of Rule 13d-3 of the Exchange Act) of
securities possessing more than fifty percent (50%) of the total combined voting power of the
Company’s outstanding securities pursuant to a tender or exchange offer made directly to the
Company’s stockholders which a majority of the Continuing Directors who are not Affiliates or
Associates of the offeror do not recommend such stockholders accept, or



(ii) a change in the composition of the Board over a period of thirty-six (36) months or
less such that a majority of the Board members (rounded up to the next whole number) ceases, by
reason of one or more contested elections for Board membership, to be comprised of individuals
who are Continuing Directors.



(j) “Code” means the Internal Revenue Code of 1986, as amended.



(k) “Committee” means any committee composed of members of the Board appointed by
the Board to administer the Plan.



(l) “Common Stock” means the Class A Common Stock of the Company.



(m) “Company” means Global Cash Access Holdings, Inc., a Delaware corporation, or
any successor entity that adopts the Plan in connection with a Corporate Transaction.



(n) “Consultant” means any person (other than an Employee or a Director, solely with
respect to rendering services in such person’s capacity as a Director) who is engaged by the
Company or any Related Entity to render consulting or advisory services to the Company or such
Related Entity.



(o) “Continuing Directors” means members of the Board who either (i) have been Board
members continuously for a period of at least thirty-six (36) months or (ii) have been Board
members for less than thirty-six (36) months and were elected or nominated for election as Board
members by at least a majority of the Board members described in clause (i) who were still in
office at the time such election or nomination was approved by the Board.







 


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(p) “Continuous Service” means that the provision of services to the Company or a
Related Entity in any capacity of Employee, Director or Consultant is not interrupted or
terminated. In jurisdictions requiring notice in advance of an effective termination as an
Employee, Director or Consultant, Continuous Service shall be deemed terminated upon the actual
cessation of providing services to the Company or a Related Entity notwithstanding any required
notice period that must be fulfilled before a termination as an Employee, Director or Consultant
can be effective under Applicable Laws. A Grantee’s Continuous Service shall be deemed to have
terminated either upon an actual termination of Continuous Service or upon the entity for which
the Grantee provides services ceasing to be a Related Entity. Continuous Service shall not be
considered interrupted in the case of (i) any approved leave of absence, (ii) transfers among the
Company, any Related Entity, or any successor, in any capacity of Employee, Director or
Consultant, or (iii) any change in status as long as the individual remains in the service of the
Company or a Related Entity in any capacity of Employee, Director or Consultant (except as
otherwise provided in the Award Agreement). An approved leave of absence shall include sick
leave, military leave, or any other authorized personal leave. For purposes of each Incentive
Stock Option granted under the Plan, if such leave exceeds three (3) months, and reemployment
upon expiration of such leave is not guaranteed by statute or contract, then the Incentive Stock
Option shall be treated as a Non-Qualified Stock Option on the day three (3) months and one
(1) day following the expiration of such three (3) month period.



(q) “Corporate Transaction” means any of the following transactions, provided,
however, that the Administrator shall determine under parts (iv) and (v) whether multiple
transactions are related, and its determination shall be final, binding and conclusive:



(i) a merger or consolidation in which the Company is not the surviving entity, except for a
transaction the principal purpose of which is to change the state in which the Company is
incorporated;



(ii) the sale, transfer or other disposition of all or substantially all of the assets of
the Company;



(iii) the complete liquidation or dissolution of the Company;



(iv) any reverse merger or series of related transactions culminating in a reverse merger
(including, but not limited to, a tender offer followed by a reverse merger) in which the Company
is the surviving entity but (A) the shares of Common Stock outstanding immediately prior to such
merger are converted or exchanged by virtue of the merger into other property, whether in the
form of securities, cash or otherwise, or (B) in which securities possessing more than fifty
percent (50%) of the total combined voting power of the Company’s outstanding securities are
transferred to a person or persons different from those who held such securities immediately
prior to such merger or the initial transaction culminating in such merger, but excluding any
such transaction or series of related transactions that the Administrator determines shall not be
a Corporate Transaction; or



(v) acquisition in a single or series of related transactions by any person or related group
of persons (other than the Company or by a Company-sponsored employee benefit plan) of beneficial
ownership (within the meaning of Rule 13d-3 of the Exchange Act) of securities possessing more
than fifty percent (50%) of the total combined voting power of the Company’s outstanding
securities but excluding any such transaction or series of related transactions that the
Administrator determines shall not be a Corporate Transaction.







 


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(r) “Covered Employee” means an Employee who is a “covered employee” under
Section 162(m)(3) of the Code.



(s) “Director” means a member of the Board or the board of directors of any Related
Entity.



(t) “Disability” means as defined under the long-term disability policy of the
Company or the Related Entity to which the Grantee provides services regardless of whether the
Grantee is covered by such policy. If the Company or the Related Entity to which the Grantee
provides service does not have a long-term disability plan in place, “Disability” means that a
Grantee is unable to carry out the responsibilities and functions of the position held by the
Grantee by reason of any medically determinable physical or mental impairment for a period of not
less than ninety (90) consecutive days. A Grantee will not be considered to have incurred a
Disability unless he or she furnishes proof of such impairment sufficient to satisfy the
Administrator in its discretion.



(u) “Dividend Equivalent Right” means a right entitling the Grantee to compensation
measured by dividends paid with respect to Common Stock.



(v) “Employee” means any person, including an Officer or Director, who is in the
employ of the Company or any Related Entity, subject to the control and direction of the Company
or any Related Entity as to both the work to be performed and the manner and method of
performance. The payment of a director’s fee by the Company or a Related Entity shall not be
sufficient to constitute “employment” by the Company.



(w) “Exchange Act” means the Securities Exchange Act of 1934, as amended.



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



(i) If the Common Stock is listed on one or more established stock exchanges or national
market systems, including without limitation The Nasdaq National Market or The Nasdaq SmallCap
Market of The Nasdaq Stock Market, its Fair Market Value shall be the closing sales price for
such stock (or the closing bid, if no sales were reported) as quoted on the principal exchange or
system on which the Common Stock is listed (as determined by the Administrator) on the date of
determination (or, if no closing sales price or closing bid was reported on that date, as
applicable, on the last trading date such closing sales price or closing bid was reported), as
reported in The Wall Street Journal or such other source as the Administrator deems reliable;



(ii) If the Common Stock is regularly quoted on an automated quotation system (including the
OTC Bulletin Board) or by a recognized securities dealer, its Fair Market Value shall be the
closing sales price for such stock as quoted on such system or by such securities dealer on the
date of determination, but if selling prices are not reported, the Fair Market Value of a share
of Common Stock shall be the mean between the high bid and low asked prices for the Common Stock
on the date of determination (or, if no such prices were reported on that date, on the last date
such prices were reported), as reported in The Wall Street Journal or such other source as the
Administrator deems reliable; or



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







 


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(y) “Grantee” means an Employee, Director or Consultant who receives an Award under
the Plan.



(z) “Incentive Stock Option” means an Option intended to qualify as an incentive
stock option within the meaning of Section 422 of the Code.



(aa) “Non-Qualified Stock Option” means an Option not intended to qualify as an
Incentive Stock Option.



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



(cc) “Option” means an option to purchase Shares pursuant to an Award Agreement
granted under the Plan.



(dd) “Parent” means a “parent corporation”, whether now or hereafter existing, as
defined in Section 424(e) of the Code.



(ee) “Performance-Based Compensation” means compensation qualifying as
“performance-based compensation” under Section 162(m) of the Code.



(ff) “Plan” means this 2005 Stock Incentive Plan.



(gg) “Related Entity” means any Parent or Subsidiary of the Company and any
business, corporation, partnership, limited liability company or other entity in which the
Company or a Parent or a Subsidiary of the Company holds a substantial ownership interest,
directly or indirectly.



(hh) “Replaced” means that pursuant to a Corporate Transaction the Award is replaced
with a comparable stock award or a cash incentive program of the Company, the successor entity
(if applicable) or Parent of either of them which preserves the compensation element of such
Award existing at the time of the Corporate Transaction and provides for subsequent payout in
accordance with the same (or a more favorable) vesting schedule applicable to such Award. The
determination of Award comparability shall be made by the Administrator and its determination
shall be final, binding and conclusive.



(ii) “Restricted Stock” means Shares issued under the Plan to the Grantee for such
consideration, if any, and subject to such restrictions on transfer, rights of first refusal,
repurchase provisions, forfeiture provisions, and other terms and conditions as established by
the Administrator.







 


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(jj) “Restricted Stock Units” means an Award which may be earned in whole or in part
upon the passage of time or the attainment of performance criteria established by the
Administrator and which may be settled for cash, Shares or other securities or a combination of
cash, Shares or other securities as established by the Administrator.



(kk) “Rule 16b-3” means Rule 16b-3 promulgated under the Exchange Act or any
successor thereto.



(ll) “SAR” means a stock appreciation right entitling the Grantee to Shares or cash
compensation, as established by the Administrator, measured by appreciation in the value of
Common Stock.



(mm) “Share” means a share of the Class A Common Stock.



(nn) “Subsidiary” means a “subsidiary corporation”, whether now or hereafter
existing, as defined in Section 424(f) of the Code.



3. Stock Subject to the Plan.



(a) Subject to the provisions of Section 10, below, the maximum aggregate number of Shares
which may be issued pursuant to all Awards (including Incentive Stock Options) is 3,841,615
Shares, plus an annual increase to be added on the first business day of each fiscal year
beginning with the fiscal year commencing on January 1, 2006 equal to three percent (3%) of the
number of Shares outstanding as of such date or a lesser number of Shares determined by the
Administrator. Notwithstanding the foregoing, subject to the provisions of Section 10, below, of
the number of Shares specified above, the maximum aggregate number of Shares available for grant
of Incentive Stock Options shall be 3,800,000 Shares, plus an annual increase to be added on the
first day of each fiscal year beginning with the fiscal year commencing on January 1, 2006 equal
to the lesser of (x) 3,800,000 Shares, (y) three percent (3%) of the number of Shares outstanding
as of such date, or (z) a lesser number of Shares determined by the Administrator. The Shares to
be issued pursuant to Awards may be authorized, but unissued, or reacquired Common Stock.



(b) Any Shares covered by an Award (or portion of an Award) which is forfeited, canceled or
expires (whether voluntarily or involuntarily) shall be deemed not to have been issued for
purposes of determining the maximum aggregate number of Shares which may be issued under the
Plan. Shares that actually have been issued under the Plan pursuant to an Award shall not be
returned to the Plan and shall not become available for future issuance under the Plan, except
that if unvested Shares are forfeited or repurchased by the Company, such Shares shall become
available for future grant under the Plan. To the extent not prohibited by the listing
requirements of The Nasdaq National Market (or other established stock exchange or national
market system on which the Common Stock is traded) and Applicable Law, any Shares covered by an
Award which are surrendered (i) in payment of the Award exercise or purchase price or (ii) in
satisfaction of tax withholding obligations incident to the exercise of an Award shall be deemed
not to have been issued for purposes of determining the maximum number of Shares which may be
issued pursuant to all Awards under the Plan, unless otherwise determined by the Administrator.







 


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4. Administration of the Plan.



(a) Plan Administrator.



(i) Administration with Respect to Directors and Officers. With respect to grants of
Awards to Directors or Employees who are also Officers or Directors of the Company, the Plan
shall be administered by (A) the Board or (B) a Committee designated by the Board, which
Committee shall be constituted in such a manner as to satisfy the Applicable Laws and to permit
such grants and related transactions under the Plan to be exempt from Section 16(b) of the
Exchange Act in accordance with Rule 16b-3. Once appointed, such Committee shall continue to
serve in its designated capacity until otherwise directed by the Board.



(ii) Administration With Respect to Consultants and Other Employees. With respect to
grants of Awards to Employees or Consultants who are neither Directors nor Officers of the
Company, the Plan shall be administered by (A) the Board or (B) a Committee designated by the
Board, which Committee shall be constituted in such a manner as to satisfy the Applicable Laws.
Once appointed, such Committee shall continue to serve in its designated capacity until otherwise
directed by the Board.



(iii) Administration With Respect to Covered Employees. Notwithstanding the
foregoing, grants of Awards to any Covered Employee intended to qualify as Performance-Based
Compensation shall be made only by a Committee (or subcommittee of a Committee) which is
comprised solely of two or more Directors eligible to serve on a committee making Awards
qualifying as Performance-Based Compensation. In the case of such Awards granted to Covered
Employees, references to the “Administrator” or to a “Committee” shall be deemed to be references
to such Committee or subcommittee.



(iv) Officer Authorization to Grant Awards. The Board may authorize one or more
Officers to grant Awards subject to such limitations as the Board determines from time to time.



(b) Multiple Administrative Bodies. The Plan may be administered by different bodies
with respect to Directors, Officers, Consultants, and Employees who are neither Directors nor
Officers.



(c) Powers of the Administrator. Subject to Applicable Laws and the provisions of
the Plan (including any other powers given to the Administrator hereunder), and except as
otherwise provided by the Board, the Administrator shall have the authority, in its discretion:



(i) to select the Employees, Directors and Consultants to whom Awards may be granted from
time to time hereunder;



(ii) to determine whether and to what extent Awards are granted hereunder;






 


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



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



(v) to determine the terms and conditions of any Award granted hereunder;



(vi) to grant Awards to Employees, Directors and Consultants employed outside the United
States on such terms and conditions different from those specified in the Plan as may, in the
judgment of the Administrator, be necessary or desirable to further the purpose of the Plan;



(vii) to amend the terms of any outstanding Award granted under the Plan, provided that
(A) any amendment that would adversely affect the Grantee’s rights under an outstanding Award
shall not be made without the Grantee’s written consent, (B) the reduction of the exercise price
of any Option awarded under the Plan shall be subject to stockholder approval and (C) canceling
an Option at a time when its exercise price exceeds the Fair Market Value of the underlying
Shares, in exchange for another Option, Restricted Stock, or other Award shall be subject to
stockholder approval, unless the cancellation and exchange occurs in connection with a Corporate
Transaction.



(viii) to construe and interpret the terms of the Plan and Awards, including without
limitation, any notice of award or Award Agreement, granted pursuant to the Plan; and



(ix) to take such other action, not inconsistent with the terms of the Plan, as the
Administrator deems appropriate.



(d) Indemnification. In addition to such other rights of indemnification as they may
have as members of the Board or as Officers or Employees of the Company or a Related Entity,
members of the Board and any Officers or Employees of the Company or a Related Entity to whom
authority to act for the Board, the Administrator or the Company is delegated shall be defended
and indemnified by the Company to the extent permitted by law on an after-tax basis against all
reasonable expenses, including attorneys’ fees, actually and necessarily incurred in connection
with the defense of any claim, investigation, action, suit or proceeding, or in connection with
any appeal therein, to which they or any of them may be a party by reason of any action taken or
failure to act under or in connection with the Plan, or any Award granted hereunder, and against
all amounts paid by them in settlement thereof (provided such settlement is approved by the
Company) or paid by them in satisfaction of a judgment in any such claim, investigation, action,
suit or proceeding, except in relation to matters as to which it shall be adjudged in such claim,
investigation, action, suit or proceeding that such person is liable for gross negligence, bad
faith or intentional misconduct; provided, however, that within thirty (30) days after the
institution of such claim, investigation, action, suit or proceeding, such person shall offer to
the Company, in writing, the opportunity at the Company’s expense to defend the same.







 


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5. Eligibility. Awards other than Incentive Stock Options may be granted to
Employees, Directors and Consultants. Incentive Stock Options may be granted only to Employees of
the Company or a Parent or a Subsidiary of the Company. An Employee, Director or Consultant who
has been granted an Award may, if otherwise eligible, be granted additional Awards. Awards may be
granted to such Employees, Directors or Consultants who are residing in non-U.S. jurisdictions as
the Administrator may determine from time to time.



6. Terms and Conditions of Awards.



(a) Types of Awards. The Administrator is authorized under the Plan to award any
type of arrangement to an Employee, Director or Consultant that is not inconsistent with the
provisions of the Plan and that by its terms involves or might involve the issuance of
(i) Shares, (ii) cash or (iii) an Option, a SAR, or similar right with a fixed or variable price
related to the Fair Market Value of the Shares and with an exercise or conversion privilege
related to the passage of time, the occurrence of one or more events, or the satisfaction of
performance criteria or other conditions. Such awards include, without limitation, Options, SARs,
sales or bonuses of Restricted Stock, Restricted Stock Units or Dividend Equivalent Rights, and
an Award may consist of one such security or benefit, or two (2) or more of them in any
combination or alternative.



(b) Designation of Award. Each Award shall be designated in the Award Agreement. In
the case of an Option, the Option shall be designated as either an Incentive Stock Option or a
Non-Qualified Stock Option. However, notwithstanding such designation, an Option will qualify as
an Incentive Stock Option under the Code only to the extent the $100,000 dollar limitation of
Section 422(d) of the Code is not exceeded. The $100,000 limitation of Section 422(d) of the Code
is calculated based on the aggregate Fair Market Value of the Shares subject to Options
designated as Incentive Stock Options which become exercisable for the first time by a Grantee
during any calendar year (under all plans of the Company or any Parent or Subsidiary of the
Company). For purposes of this calculation, Incentive Stock Options shall be taken into account
in the order in which they were granted, and the Fair Market Value of the Shares shall be
determined as of the grant date of the relevant Option.



(c) Conditions of Award. Subject to the terms of the Plan, the Administrator shall
determine the provisions, terms, and conditions of each Award including, but not limited to, the
Award vesting schedule, repurchase provisions, rights of first refusal, forfeiture provisions,
form of payment (cash, Shares, or other consideration) upon settlement of the Award, payment
contingencies, and satisfaction of any performance criteria. The performance criteria established
by the Administrator may be based on any one of, or combination of, the following: (i) revenue,
(ii) gross margin, (iii) operating expense excluding depreciation and amortization and equity
expense as a percentage of revenue, (iv) earnings before interest, taxes, depreciation and
amortization, (v) earnings before interest and taxes, (vi) pre-tax income, (vii) net income from
continuing operations, (viii) earnings per share from continuing operations, (ix) cash earnings
per share from continuing operations, (x) return on assets, (xi) return on equity, (xii) return
on invested capital, (xiii) leverage ratio, (xiv) fixed charge ratio, (xv) ATM cost, (xvi) new
product introduction milestones, (xvii) trading price per share, (xviii) operating margin,
(xix) gross margin, (xx) cash flow, (xxi) market share and (xxii) EBITDA adjusted to add back the
impact of equity compensation expense. The performance







 


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criteria may be applicable to the Company,
Related Entities and/or any individual business units of the Company or any Related Entity. Partial achievement of the specified
criteria may result in a payment or vesting corresponding to the degree of achievement as
specified in the Award Agreement. In addition, the performance criteria shall be calculated in
accordance with generally accepted accounting principles, but excluding the effect (whether
positive or negative) of any change in accounting standards and any extraordinary, unusual or
nonrecurring item, as determined by the Administrator, occurring after the establishment of the
performance criteria applicable to the Award intended to be performance-based compensation. Each
such adjustment, if any, shall be made solely for the purpose of providing a consistent basis
from period to period for the calculation of performance criteria in order to prevent the
dilution or enlargement of the Grantee’s rights with respect to an Award intended to be
performance-based compensation.



(d) Acquisitions and Other Transactions. The Administrator may issue Awards under
the Plan in settlement, assumption or substitution for, outstanding awards or obligations to
grant future awards in connection with the Company or a Related Entity acquiring another entity,
an interest in another entity or an additional interest in a Related Entity whether by merger,
stock purchase, asset purchase or other form of transaction.



(e) Deferral of Award Payment. The Administrator may establish one or more programs
under the Plan to permit selected Grantees the opportunity to elect to defer receipt of
consideration upon exercise of an Award, satisfaction of performance criteria, or other event
that absent the election would entitle the Grantee to payment or receipt of Shares or other
consideration under an Award. The Administrator may establish the election procedures, the timing
of such elections, the mechanisms for payments of, and accrual of interest or other earnings, if
any, on amounts, Shares or other consideration so deferred, and such other terms, conditions,
rules and procedures that the Administrator deems advisable for the administration of any such
deferral program.



(f) Separate Programs. The Administrator may establish one or more separate programs
under the Plan for the purpose of issuing particular forms of Awards to one or more classes of
Grantees on such terms and conditions as determined by the Administrator from time to time.



(g) Individual Limitations on Awards.



(i) Individual Option and SAR Limit. The maximum number of Shares with respect to
which Options and SARs may be granted to any Grantee in any fiscal year of the Company shall be
2,000,000 Shares. In connection with a Grantee’s commencement of Continuous Service, a Grantee
may be granted Options and SARs for up to an additional 2,000,000 Shares which shall not count
against the limit set forth in the previous sentence. The foregoing limitations shall be adjusted
proportionately in connection with any change in the Company’s capitalization pursuant to
Section 10, below. To the extent required by Section 162(m) of the Code or the regulations
thereunder, in applying the foregoing limitations with respect to a Grantee, if any Option or SAR
is canceled, the canceled Option or SAR shall continue to count against the maximum number of
Shares with respect to which Options and SARs may be granted to the Grantee. For this purpose,
the repricing of an Option (or in the case of a SAR, the base amount on which the stock
appreciation is calculated is reduced to reflect a reduction in the Fair Market Value of the
Common Stock) shall be treated as the cancellation of the existing Option or SAR and the grant of
a new Option or SAR.







 


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(ii) Individual Limit for Restricted Stock and Restricted Stock Units. For awards of
Restricted Stock and Restricted Stock Units that are intended to be Performance-Based
Compensation, the maximum number of Shares with respect to which such Awards may be granted to
any Grantee in any fiscal year shall be one million (1,000,000) Shares. In connection with a
Grantee’s commencement of Continuous Service, a Grantee may be granted Awards of Restricted Stock
and Restricted Stock Units for up to an additional 1,000,000 Shares which shall not count against
the limit set forth in the previous sentence. The foregoing limitations shall be adjusted
proportionately in connection with any change in the Company’s capitalization pursuant to
Section 10, below.



(h) Early Exercise. The Award Agreement may, but need not, include a provision
whereby the Grantee may elect at any time while an Employee, Director or Consultant to exercise
any part or all of the Award prior to full vesting of the Award. Any unvested Shares received
pursuant to such exercise may be subject to a repurchase right in favor of the Company or a
Related Entity or to any other restriction the Administrator determines to be appropriate.



(i) Term of Award. The term of each Award shall be the term stated in the Award
Agreement, provided, however, that the term of an Incentive Stock Option shall be no more than
ten (10) years from the date of grant thereof. However, in the case of an Incentive Stock Option
granted to a Grantee who, at the time the Option is granted, owns stock representing more than
ten percent (10%) of the voting power of all classes of stock of the Company or any Parent or
Subsidiary of the Company, the term of the Incentive Stock Option shall be five (5) years from
the date of grant thereof or such shorter term as may be provided in the Award Agreement.
Notwithstanding the foregoing, the specified term of any Award shall not include any period for
which the Grantee has elected to defer the receipt of the Shares or cash issuable pursuant to the
Award.



(j) Transferability of Awards. Incentive Stock Options may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner other than by will or by the
laws of descent or distribution and may be exercised, during the lifetime of the Grantee, only by
the Grantee. Non-Qualified Stock Options and other Awards shall be transferable (i) by will or by
the laws of descent and distribution and (ii) during the lifetime of the Grantee, to the extent
and in the manner authorized by the Administrator. Notwithstanding the foregoing, the Grantee may
designate one or more beneficiaries of the Grantee’s Award in the event of the Grantee’s death on
a beneficiary designation form provided by the Administrator.



(k) Time of Granting Awards. The date of grant of an Award shall for all purposes be
the date on which the Administrator makes the determination to grant such Award, or such other
later date as is determined by the Administrator.







 


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7. Award Exercise or Purchase Price, Consideration and Taxes.



(a) Exercise or Purchase Price. The exercise or purchase price, if any, for an Award
shall be as follows:



(i) In the case of an Incentive Stock Option:



(A) granted to an Employee who, at the time of the grant of such Incentive Stock Option owns
stock representing more than ten percent (10%) of the voting power of all classes of stock of the
Company or any Parent or Subsidiary of the Company, the per Share exercise price shall be not
less than one hundred ten percent (110%) of the Fair Market Value per Share on the date of grant;
or



(B) granted to any Employee other than an Employee described in the preceding paragraph, the
per Share exercise price shall be not less than one hundred percent (100%) of the Fair Market
Value per Share on the date of grant.



(ii) In the case of a Non-Qualified Stock Option, the per Share exercise price shall be not
less than eighty-five percent (85%) of the Fair Market Value per Share on the date of grant
unless otherwise determined by the Administrator.



(iii) In the case of Awards intended to qualify as Performance-Based Compensation, the
exercise or purchase price, if any, shall be not less than one hundred percent (100%) of the Fair
Market Value per Share on the date of grant.



(iv) In the case of other Awards, such price as is determined by the Administrator.



(v) Notwithstanding the foregoing provisions of this Section 7(a), in the case of an Award
issued pursuant to
Section 6(d), above, the exercise or purchase price for the Award shall be
determined in accordance with the provisions of the relevant instrument evidencing the agreement
to issue such Award.



(b) Consideration. Subject to Applicable Laws, the consideration to be paid for the
Shares to be issued upon exercise or purchase of an Award including the method of payment, shall
be determined by the Administrator. In addition to any other types of consideration the
Administrator may determine, the Administrator is authorized to accept as consideration for
Shares issued under the Plan the following provided that the portion of the consideration equal
to the par value of the Shares must be paid in cash or other legal consideration permitted by the
Delaware General Corporation Law:



(i) cash;



(ii) check;



(iii) delivery of Grantee’s promissory note with such recourse, interest, security, and
redemption provisions as the Administrator determines as appropriate (but only to the extent that
the acceptance or terms of the promissory note would not violate an Applicable Law);







 


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(iv) surrender of Shares or delivery of a properly executed form of attestation of ownership
of Shares as the Administrator may require which have a Fair Market Value on the date of
surrender or attestation equal to the aggregate exercise price of the Shares as to which said
Award shall be exercised, provided, however, that Shares acquired under the Plan or any other
equity compensation plan or agreement of the Company must have been held by the Grantee for a
period of more than six (6) months (and not used for another Award exercise by attestation during
such period);



(v) with respect to Options, payment through a broker-dealer sale and remittance procedure
pursuant to which the Grantee (A) shall provide written instructions to a Company designated
brokerage firm to effect the immediate sale of some or all of the purchased Shares and remit to
the Company sufficient funds to cover the aggregate exercise price payable for the purchased
Shares and (B) shall provide written directives to the Company to deliver the certificates for
the purchased Shares directly to such brokerage firm in order to complete the sale transaction;
or



(vi) any combination of the foregoing methods of payment.



The Administrator may at any time or from time to time, by adoption of or by amendment to the
standard forms of Award Agreement described in Section 4(c)(iv), or by other means, grant Awards
which do not permit all of the foregoing forms of consideration to be used in payment for the
Shares or which otherwise restrict one or more forms of consideration.



(c) Taxes. No Shares shall be delivered under the Plan to any Grantee or other
person until such Grantee or other person has made arrangements acceptable to the Administrator
for the satisfaction of any non-U.S., federal, state, or local income and employment tax
withholding obligations, including, without limitation, obligations incident to the receipt of
Shares. Upon exercise or vesting of an Award the Company shall withhold or collect from Grantee
an amount sufficient to satisfy such tax obligations, including, but not limited too, by
surrender of the whole number of Shares covered by the Award sufficient to satisfy the minimum
applicable tax withholding obligations incident to the exercise or vesting of an Award.



8. Exercise of Award.




(a) Procedure for Exercise; Rights as a Stockholder



(i) Any Award granted hereunder shall be exercisable at such times and under such conditions
as determined by the Administrator under the terms of the Plan and specified in the Award
Agreement.



(ii) An Award shall be deemed to be exercised when written notice of such exercise has been
given to the Company in accordance with the terms of the Award by the person entitled to exercise
the Award and full payment for the Shares with respect to which the Award is exercised has been
made, including, to the extent selected, use of the broker-dealer sale and remittance procedure
to pay the purchase price as provided in Section 7(b)(v).







 


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(b) Exercise of Award Following Termination of Continuous Service.



(i) An Award may not be exercised after the termination date of such Award set forth in the
Award Agreement and may be exercised following the termination of a Grantee’s Continuous Service
only to the extent provided in the Award Agreement.



(ii) Where the Award Agreement permits a Grantee to exercise an Award following the
termination of the Grantee’s Continuous Service for a specified period, the Award shall terminate
to the extent not exercised on the last day of the specified period or the last day of the
original term of the Award, whichever occurs first.



(iii) Any Award designated as an Incentive Stock Option to the extent not exercised within
the time permitted by law for the exercise of Incentive Stock Options following the termination
of a Grantee’s Continuous Service shall convert automatically to a Non-Qualified Stock Option and
thereafter shall be exercisable as such to the extent exercisable by its terms for the period
specified in the Award Agreement.



9. Conditions Upon Issuance of Shares.



(a) Shares shall not be issued pursuant to the exercise of an Award unless the exercise of
such Award and the issuance and delivery of such Shares pursuant thereto shall comply with all
Applicable Laws, and shall be further subject to the approval of counsel for the Company with
respect to such compliance.



(b) As a condition to the exercise of an Award, the Company may require the person
exercising such Award to represent and warrant at the time of any such exercise that the Shares
are being purchased only for investment and without any present intention to sell or distribute
such Shares if, in the opinion of counsel for the Company, such a representation is required by
any Applicable Laws.



10. Adjustments Upon Changes in Capitalization. Subject to any required action by
the stockholders of the Company, the number of Shares covered by each outstanding Award, and the
number of Shares which have been authorized for issuance under the Plan but as to which no Awards
have yet been granted or which have been returned to the Plan, the exercise or purchase price of
each such outstanding Award, the maximum number of Shares with respect to which Options and SARs
may be granted to any Grantee in any fiscal year of the Company, as well as any other terms that
the Administrator determines require adjustment shall be proportionately adjusted for (i) any
increase or decrease in the number of issued Shares resulting from a stock split, reverse stock
split, stock dividend, combination or reclassification of the Shares, or similar transaction
affecting the Shares, (ii) any other increase or decrease in the number of issued Shares effected
without receipt of consideration by the Company, or (iii) as the Administrator may determine in
its discretion, any other transaction with respect to Common Stock including a corporate merger,
consolidation, acquisition of property or stock, separation (including a spin-off or other
distribution of stock or property), reorganization, liquidation (whether partial or complete) or
any similar transaction; provided, however that conversion of any convertible securities of the
Company shall not be deemed to have been “effected without receipt of consideration.” Such
adjustment shall be made by the Administrator and its determination shall be final, binding and
conclusive. Except as the Administrator determines, no issuance by the Company of shares of stock
of any class, or securities convertible into shares of stock of any class, shall affect, and no
adjustment by reason hereof shall be made with respect to, the number or price of Shares subject
to an Award.







 


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11. Corporate Transactions and Changes in Control.



(a) Termination of Award to Extent Not Assumed in Corporate Transaction. Effective
upon the consummation of a Corporate Transaction, all outstanding Awards under the Plan shall
terminate. However, all such Awards shall not terminate to the extent they are Assumed in
connection with the Corporate Transaction.



(b) No Acceleration of Award Upon Corporate Transaction or Change in Control. Except
as provided otherwise in an individual Award Agreement, in the event of any Corporate Transaction
or Change in Control, there will not be any acceleration of vesting or exercisability of any
Award.



12. Effective Date and Term of Plan. The Plan shall become effective upon the
earlier to occur of its adoption by the Board or its approval by the stockholders of the Company.
It shall continue in effect for a term of ten (10) years unless sooner terminated. Subject to
Section 17 below, and Applicable Laws, Awards may be granted under the Plan upon its becoming
effective.



13. Amendment, Suspension or Termination of the Plan.



(a) The Board may at any time amend, suspend or terminate the Plan; provided, however, that
no such amendment shall be made without the approval of the Company’s stockholders to the extent
such approval is required by Applicable Laws, or if such amendment would lessen the stockholder
approval requirements of Section 4(c)(vii) or this Section 13(a).



(b) No Award may be granted during any suspension of the Plan or after termination of the
Plan.



(c) No suspension or termination of the Plan (including termination of the Plan under
Section 12, above) shall adversely affect any rights under Awards already granted to a Grantee.



14. Reservation of Shares.



(a) The Company, during the term of the Plan, will at all times reserve and keep available
such number of Shares as shall be sufficient to satisfy the requirements of the Plan.



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







 


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15. No Effect on Terms of Employment/Consulting Relationship. The Plan shall not
confer upon any Grantee any right with respect to the Grantee’s Continuous Service, nor shall it
interfere in any way with his or her right or the right of the Company or any Related Entity to
terminate the Grantee’s Continuous Service at any time, with or without Cause, and with or
without notice. The ability of the Company or any Related Entity to terminate the employment of a
Grantee who is employed at will is in no way affected by its determination that the Grantee’s
Continuous Service has been terminated for Cause for the purposes of this Plan.



16. No Effect on Retirement and Other Benefit Plans. Except as specifically provided
in a retirement or other benefit plan of the Company or a Related Entity, Awards shall not be
deemed compensation for purposes of computing benefits or contributions under any retirement plan
of the Company or a Related Entity, and shall not affect any benefits under any other benefit
plan of any kind or any benefit plan subsequently instituted under which the availability or
amount of benefits is related to level of compensation. The Plan is not a “Retirement Plan” or
“Welfare Plan” under the Employee Retirement Income Security Act of 1974, as amended.



17. Stockholder Approval. The grant of Incentive Stock Options under the Plan,
excluding Incentive Stock Options issued in substitution for outstanding Incentive Stock Options
pursuant to Section 424(a) of the Code, shall be subject to approval of the Plan by the
stockholders of the Company within twelve (12) months before or after the date the Plan is
adopted. Such stockholder approval shall be obtained in the degree and manner required under
Applicable Laws. The Administrator may grant Incentive Stock Options under the Plan prior to
approval by the stockholders, but until such approval is obtained, no such Incentive Stock Option
shall be exercisable. In the event that stockholder approval is not obtained within the twelve
(12) month period provided above, all Incentive Stock Options previously granted under the Plan
shall be exercisable as Non-Qualified Stock Options.



18. Unfunded Obligation. Grantees shall have the status of general unsecured
creditors of the Company. Any amounts payable to Grantees pursuant to the Plan shall be unfunded
and unsecured obligations for all purposes, including, without limitation, Title I of the
Employee Retirement Income Security Act of 1974, as amended. Neither the Company nor any Related
Entity shall be required to segregate any monies from its general funds, or to create any trusts,
or establish any special accounts with respect to such obligations. The Company shall retain at
all times beneficial ownership of any investments, including trust investments, which the Company
may make to fulfill its payment obligations hereunder. Any investments or the creation or
maintenance of any trust or any Grantee account shall not create or constitute a trust or
fiduciary relationship between the Administrator, the Company or any Related Entity and a
Grantee, or otherwise create any vested or beneficial interest in any Grantee or the Grantee’s
creditors in any assets of the Company or a Related Entity. The Grantees shall have no claim
against the Company or any Related Entity for any changes in the value of any assets that may be
invested or reinvested by the Company with respect to the Plan.







 


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19. Construction. Captions and titles contained herein are for convenience only and
shall not affect the meaning or interpretation of any provision of the Plan. Except when
otherwise indicated by the context, the singular shall include the plural and the plural shall
include the singular. Use of the term “or” is not intended to be exclusive, unless the context
clearly requires otherwise.



20. Plan History. The Plan was originally adopted on January 8, 2005. The Plan is
amended and restated effective April 30, 2009, subject to stockholder approval, in order to
permit certain Awards to qualify as Performance-Based Compensation.






 


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