exv10w6






Exhibit 10.6




SPS COMMERCE, INC.

2010 EQUITY INCENTIVE PLAN



1. Purpose. The purpose of the SPS Commerce, Inc. 2010 Equity Incentive Plan (the “Plan”)
is to attract and retain the best available personnel for positions of responsibility with the
Company, to provide additional incentives to them and align their interests with those of the
Company’s stockholders, and to thereby promote the Company’s long-term business success.



2. Definitions. In this Plan, the following definitions will apply.




     (a) “Affiliate” means any corporation that is a Subsidiary or Parent of the Company.



     (b) “Agreement” means the written or electronic agreement containing the terms and conditions
applicable to each Award granted under the Plan. An Agreement is subject to the terms and
conditions of the Plan.



     (c) “Award” means a grant made under the Plan in the form of Options, Stock Appreciation
Rights, Restricted Stock, Stock Units, or Other Stock-Based Award.



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



     (e) “Cause” means what the term is expressly defined to mean in a then-effective written
agreement (including an Agreement) between a Participant and the Company or any Affiliate, or in
the absence of any such then-effective agreement or definition, a Participant’s (i) incompetence or
failure or refusal to perform satisfactorily the duties reasonably required of the Participant by
the Company (other than by reason of Disability); (ii) material violation of any law, rule,
regulation, court order or regulatory directive (other than traffic violations, misdemeanors or
other minor offenses); (iii) material breach of any fiduciary duty or nondisclosure,
non-solicitation, non-competition or similar obligation owed to the Company or any Affiliate; (iv)
engaging in any act or practice that involves personal dishonesty on the part of the Participant or
demonstrates a willful and continuing disregard for the best interests of the Company and its
Affiliates; or (v) engaging in dishonorable or disruptive behavior, practices or acts which would
be reasonably expected to harm or bring disrepute to the Company or any of its Affiliates, their
business or any of their customers, employees or vendors.



     (f) “Change in Control” means, unless otherwise provided in an Agreement, one of the
following:



          (1) Any individual, entity or Group (a “Person”), other than (i) one or more Subsidiaries, or
(ii) any employee benefit plan (or related trust) sponsored or maintained by the Company or any
Affiliate, becomes the beneficial owner (within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934) of equity securities of the Company representing more than 50% of the
combined voting power of the Company’s then outstanding securities entitled to vote generally in
the election of directors (“voting securities”), except that (A) any acquisition of Company equity
securities by a Person directly from the Company for the purpose of providing financing to the
Company, any formation of a Group consisting solely of beneficial owners of the Company’s voting
securities as of the effective date of this Plan, or any repurchase or other acquisition by the
Company of its equity securities that causes any Person to become the beneficial owner of more than
50% of the Company’s voting securities, will not be considered a Change in Control unless and
until, in either case, such Person acquires beneficial ownership of additional Company voting
securities after the Person initially became the beneficial owner of more than 50% of the Company’s
voting securities by one of the means described in this clause (A); and (B) a Change in Control
will occur if a Person becomes the beneficial owner of more than 50% of the Company’s voting
securities as the result of a Corporate Transaction only if the Corporate Transaction is itself a
Change in Control pursuant to subsection 2(f)(3);



          (2) Individuals who are Continuing Directors cease for any reason to constitute a majority of
the members of the Board; or





			
	2010 Equity Incentive Plan
	 	Page 1






 









 







          (3) The consummation of a Corporate Transaction unless, immediately following such
Corporate Transaction, all or substantially all of the Persons who were the beneficial owners of
Company voting securities immediately prior to such Corporate Transaction beneficially own,
directly or indirectly, more than 50% of the combined voting power of the then outstanding voting
securities (or comparable equity interests) of the surviving or acquiring entity (or its Parent)
resulting from such Corporate Transaction in substantially the same proportions as their ownership
of Company voting securities immediately prior to such Corporate Transaction.


Notwithstanding the foregoing, to the extent that any Award constitutes a deferral of compensation
subject to Code Section 409A, and if that Award provides for a change in the time or form of
payment upon a Change in Control, then no Change in Control shall be deemed to have occurred upon
an event described in Section 2(f) unless the event would also constitute a change in ownership or
effective control of, or a change in the ownership of a substantial portion of the assets of, the
Company under Code Section 409A.




     (g) “Code” means the Internal Revenue Code of 1986, as amended and in effect from time to
time, and the regulations promulgated thereunder.



     (h) “Committee” means two or more Non-Employee Directors designated by the Board to administer
the Plan under Section 3, each member of which shall be (i) an independent director within the
meaning of the rules and regulations of the Nasdaq Stock Market, (ii) a non-employee director
within the meaning of Exchange Act Rule 16b-3, and (iii) an outside director for purposes of Code
Section 162(m).



     (i) “Company” means SPS Commerce, Inc., a Delaware corporation, or any successor thereto.



     (j) “Continuing Director” means an individual (A) who is, as of the effective date of the
Plan, a director of the Company, (B) who is elected as a director of the Company subsequent to the
effective date hereof pursuant to a nomination or board representation right of preferred
stockholders of the Company, or (C) who becomes a director of the Company after the effective date
hereof and whose initial election, or nomination for election by the Company’s stockholders, was
approved by at least a majority of the then Continuing Directors.



     (k) “Corporate Transaction” means (i) a sale or other disposition of all or substantially all
of the assets of the Company, or (ii) a merger, consolidation, share exchange or similar
transaction involving the Company, regardless of whether the Company is the surviving corporation.



     (l) “Disability” means (A) any permanent and total disability under any long-term disability
plan or policy of the Company or its Affiliates that covers the Participant, or (B) if there is no
such long-term disability plan or policy, “total and permanent disability” within the meaning Code
Section 22(e)(3).



     (m) “Employee” means an employee of the Company or an Affiliate.



     (o) “Exchange Act” means the Securities Exchange Act of 1934, as amended and in effect from
time to time.



     (p) “Exchange Program” means a program under which (i) outstanding Options or SARs are
surrendered or cancelled in exchange for Options or SARs of the same type (which may have lower or
higher exercise prices and different terms), Awards of a different type and/or cash, and/or
(ii) the exercise price of an outstanding Option or SAR is reduced.



     (q) “Fair Market Value” means the fair market value of a Share determined as follows:



          (1) If the Shares are readily tradable on an established securities market (as determined
under Code Section 409A), then Fair Market Value will be the closing sales price for a Share on the
principal securities market on which it trades on the date for which it is being determined, or if
no




			
	2010 Equity Incentive Plan
	 	Page 2






 









 





sale of Shares occurred on that date, on the next preceding date on which a sale of Shares
occurred, as reported in The Wall Street Journal or such other source as the Committee deems
reliable; or




          (2) If the Shares are not then readily tradable on an established securities market (as
determined under Code Section 409A), then Fair Market Value will be determined by the Committee as
the result of a reasonable application of a reasonable valuation method that satisfies the
requirements of Code Section 409A.



     (r) “Full Value Award” means an Award other than an Option or Stock Appreciation Right.



     (s) “Grant Date” means the date on which the Committee approves the grant of an Award under
the Plan, or such later date as may be specified by the Committee on the date the Committee
approves the Award.



     (t) “Group” means two or more persons acting as a partnership, limited partnership, syndicate
or other group for the purpose of acquiring, holding or disposing of securities of the Company.



     (u) “Non-Employee Director” means a member of the Board who is not an Employee.



     (v) “Option” means a right granted under the Plan to purchase a specified number of Shares at
a specified price. An “Incentive Stock Option” or “ISO” means any Option designated as such and
granted in accordance with the requirements of Code Section 422. A “Non-Statutory Stock Option”
means an Option other than an Incentive Stock Option.



     (w) “Other Stock-Based Award” means an Award described in Section 11 of this Plan.



     (x) “Parent” means a “parent corporation,” as defined in Code Section 424(e).



     (y) “Participant” means a person to whom an Award is or has been made in accordance with the
Plan.



     (z) “Performance-Based Compensation” means an Award to a person who is, or is determined by
the Committee to likely become, a “covered employee” (as defined in Section 162(m)(3) of the Code)
and that is intended to constitute “performance-based compensation” within the meaning of Section
162(m)(4)(C) of the Code.



     (aa) “Plan” means this SPS Commerce, Inc. 2010 Equity Incentive Plan, as amended and in effect
from time to time.



     (bb) “Prior Plans” means the Company’s 1999 Equity Incentive Plan and 2001 Stock Option Plan.



     (cc) “Restricted Stock” means Shares issued to a Participant that are subject to such
restrictions on transfer, forfeiture conditions and other restrictions or limitations as may be set
forth in this Plan and the applicable Agreement.



     (dd) “Service” means the provision of services by a Participant to the Company or any
Affiliate in any Service Provider capacity. A Service Provider’s Service shall be deemed to have
terminated either upon an actual cessation of providing services or upon the entity for which the
Service Provider provides services ceasing to be an Affiliate. Except as otherwise provided in
this Plan or any Agreement, Service shall not be deemed terminated in the case of (i) any approved
leave of absence; (ii) transfers among the Company and any Affiliates in any Service Provider
capacity; or (iii) any change in status so long as the individual remains in the service of the
Company or any Affiliate in any Service Provider capacity.



     (ee) “Service Provider” means an Employee, a Non-Employee Director, or any consultant or
advisor who is a natural person and who provides services (other than in connection with (i) a
capital-raising transaction or (ii) promoting or maintaining a market in Company securities) to the
Company or any Affiliate.



     (ff) “Share” means a share of Stock.

 


			
	2010 Equity Incentive Plan
	 	Page 3






 









 






     (gg) “Stock” means the common stock, $0.001 par value, of the Company.



     (hh) “Stock Appreciation Right” or “SAR” means the right to receive, in cash and/or Shares as
determined by the Committee, an amount equal to the appreciation in value of a specified number of
Shares between the Grant Date of the SAR and its exercise date.



     (ii) “Stock Unit” means a right to receive, in cash and/or Shares as determined by the
Committee, the Fair Market Value of a Share, subject to such restrictions on transfer, forfeiture
conditions and other restrictions or limitations as may be set forth in this Plan and the
applicable Agreement.



     (jj) “Subsidiary” means a “subsidiary corporation,” as defined in Code Section 424(f), of the
Company.



     (kk) “Substitute Award” means an Award granted upon the assumption of, or in substitution or
exchange for, outstanding awards granted by a company or other entity acquired by the Company or
any Affiliate or with which the Company or any Affiliate combines.



3. Administration of the Plan.



     (a) Administration. The authority to control and manage the operations and
administration of the Plan shall be vested in the Committee in accordance with this Section 3.



     (b) Scope of Authority. Subject to the terms of the Plan, the Committee shall have
the authority, in its discretion, to take such actions as it deems necessary or advisable to
administer the Plan, including:



          (1) determining the Service Providers to whom Awards will be granted, the timing of each such
Award, the types of Awards and the number of Shares covered by each Award, the terms, conditions,
performance criteria, restrictions and other provisions of Awards, and the manner in which Awards
are paid or settled;



          (2) cancelling or suspending an Award, accelerating the vesting or extending the exercise
period of an Award, or otherwise amending the terms and conditions of any outstanding Award,
subject to the requirements of Section 15(d);



          (3) establishing, amending or rescinding rules to administer the Plan, interpreting the Plan
and any Award or Agreement made under the Plan, and making all other determinations necessary or
desirable for the administration of the Plan; and



          (4) instituting an Exchange Program.


The terms and conditions of any Exchange Program shall be determined by the Committee in its sole
discretion. Notwithstanding the foregoing provisions of this Section 3(b), the Board shall perform
the duties and have the responsibilities of the Committee with respect to Awards made to
Non-Employee Directors.




     (c) Acts of the Committee; Delegation. A majority of the members of the Committee
shall constitute a quorum for any meeting of the Committee, and any act of a majority of the
members present at any meeting at which a quorum is present or any act unanimously approved in
writing by all members of the Committee shall be the act of the Committee. To the extent not
inconsistent with applicable law or stock exchange rules, the Committee may delegate all or any
portion of its authority under the Plan to determine and administer Awards that are made to
Participants who are neither Non-Employee Directors nor executive officers of the Company to one or
more persons who are either Non-Employee Directors or executive officers of the Company.



     (d) Finality of Decisions. The Committee’s interpretation of the Plan and of any
Award or Agreement made under the Plan and all related decisions or resolutions of the Board or
Committee shall be final and binding on all parties with an interest therein.

 


			
	2010 Equity Incentive Plan
	 	Page 4






 









 






     (e) Indemnification. Each person who is or has been a member of the Committee or
of the Board, and any other person to whom the Committee delegates authority under the Plan, shall
be indemnified by the Company, to the maximum extent permitted by law, against liabilities and
expenses imposed upon or reasonably incurred by such person in connection with or resulting from
any claims against such person by reason of the performance of the individual’s duties under the
Plan. This right to indemnification is conditioned upon such person providing the Company an
opportunity, at the Company’s expense, to handle and defend the claims before such person
undertakes to handle and defend them on such person’s own behalf. The Company will not be required
to indemnify any person for any amount paid in settlement of a claim unless the Company has first
consented in writing to the settlement. The foregoing right of indemnification shall not be
exclusive of any other rights of indemnification to which such person or persons may be entitled
under the Company’s Certificate of Incorporation or Bylaws, as a matter of law, or otherwise.


4. Shares Available Under the Plan.




     (a) Shares Available. Subject to Sections 4(b) and (c) and to adjustment as provided
in Section 12(a), the number of Shares that may be the subject of Awards and issued under the Plan
will be 2,600,000, plus any Shares remaining available for future grants under the Prior Plans on
the effective date of this Plan. Shares issued under the Plan may come from authorized and
unissued shares or treasury shares. In determining the number of Shares to be counted against this
share reserve in connection with any Award, the following rules shall apply:



          (1) Where the number of Shares subject to an Award is variable on the Grant Date, the number
of Shares to be counted against the share reserve prior to the settlement of the Award shall be the
maximum number of Shares that could be received under that particular Award.



          (2) Where two or more types of Awards are granted to a Participant in tandem with each other,
such that the exercise of one type of Award with respect to a number of Shares cancels at least an
equal number of Shares of the other, the number of Shares to be counted against the share reserve
shall be the largest number of Shares that would be counted against the share reserve under either
of the Awards.



          (3) Substitute Awards shall not be counted against the share reserve, nor shall they reduce
the Shares authorized for grant to a Participant in any calendar year.



     (b) Automatic Share Reserve Increase. The share reserve specified in Section 4(a)
will be increased on January 1 of each year commencing in 2011 and ending on (and including)
January 1, 2020 in an amount equal to the lesser of: (i) 6% of the total number of Shares
outstanding as of December 31 of the immediately preceding calendar year or (ii) such number of
Shares determined by the Board.



     (c) Effect of Forfeitures and Other Actions. Any Shares subject to an Award, or to an
award granted under one of the Prior Plans that is outstanding on the effective date of this Plan
(a “Prior Plan Award”), that is forfeited, expires, is settled for cash, is surrendered pursuant to
an Exchange Program, or otherwise does not result in the issuance of all or a portion of the Shares
subject to such Award or Prior Plan Award (including a payment in Shares on the exercise of a Stock
Appreciation Right) shall, to the extent of such forfeiture, expiration, cash settlement, surrender
or non-issuance, again become available for Awards under this Plan and correspondingly increase the
total number of Shares available for grant and issuance under Section 4(a). In the event that (i)
any Award or Prior Plan Award is exercised through the tendering of Shares (either actually or by
attestation) or by the withholding of Shares by the Company in payment of the applicable exercise
price, or (ii) any tax withholding obligations arising from such Award or Prior Plan Award are
satisfied by the tendering of Shares (either actually or by attestation) or by the withholding of
Shares by the Company, then the Shares so tendered or withheld shall again become available for
Awards under this Plan and correspondingly increase the total number of Shares available for grant
and issuance under Section 4(a).




			
	2010 Equity Incentive Plan
	 	Page 5






 









 






     (d) Effect of Plans Operated by Acquired Companies. If a company acquired by the
Company or any Subsidiary or with which the Company or any Subsidiary combines has shares available
under a pre-existing plan approved by stockholders and not adopted in contemplation of such
acquisition or combination, the shares available for grant pursuant to the terms of such
pre-existing plan (as adjusted, to the extent appropriate, using the exchange ratio or other
adjustment or valuation ratio or formula used in such acquisition or combination to determine the
consideration payable to the holders of common stock of the entities party to such acquisition or
combination) may be used for Awards under the Plan and
shall not reduce the Shares authorized for grant under the Plan. Awards using such available
shares shall not be made after the date awards or grants could have been made under the terms of
the pre-existing plan, absent the acquisition or combination, and shall only be made to individuals
who were not Employees or Non-Employee Directors prior to such acquisition or combination.



     (e) No Fractional Shares. Unless otherwise determined by the Committee, the number of
Shares subject to an Award shall always be a whole number. No fractional Shares may be issued
under the Plan, but the Committee may, in its discretion, pay cash in lieu of any fractional Share
in settlement of an Award.



     (f) Individual Option and SAR Limit. Subject to adjustment as provided in Section
12(a), the aggregate number of Shares subject to Options and/or Stock Appreciation Rights granted
during any calendar year to any one Participant shall not exceed 1,500,000 Shares.


5. Eligibility. Participation in the Plan is limited to Service Providers. Incentive
Stock Options may only be granted to Employees.



6. General Terms of Awards.




     (a) Award Agreement. Each Award shall be evidenced by an Agreement setting forth the
number of Shares subject to the Award together with such other terms and conditions applicable to
the Award (and not inconsistent with the Plan) as determined by the Committee. An Award to a
Participant may be made singly or in combination with any form of Award. Two types of Awards may
be made in tandem with each other such that the exercise of one type of Award with respect to a
number of Shares reduces the number of Shares subject to the related Award by at least an equal
amount.



     (b) Vesting and Term. Each Agreement shall set forth the period until the applicable
Award is scheduled to expire (which shall not be more than ten years from the Grant Date), and any
applicable performance period.



     (c) Transferability. Except as provided in this Section 6(c), (i) during the lifetime
of a Participant, only the Participant or the Participant’s guardian or legal representative may
exercise an Option or SAR, or receive payment with respect to any other Award; and (ii) no Award
may be sold, assigned, transferred, exchanged or encumbered other than by will or the laws of
descent and distribution. Any attempted transfer in violation of this Section 6(c) shall be of no
effect. The Committee may, however, provide in an Agreement or otherwise that an Award (other than
an Incentive Stock Option) may be transferred pursuant to a qualified domestic relations order or
may be transferable by gift to any “family member” (as defined in General Instruction A(5) to Form
S-8 under the Securities Act of 1933) of the Participant. Any Award held by a transferee shall
continue to be subject to the same terms and conditions that were applicable to that Award
immediately before the transfer thereof. For purposes of any provision of the Plan relating to
notice to a Participant or to acceleration or termination of an Award upon the death or termination
of employment of a Participant, the references to “Participant” shall mean the original grantee of
an Award and not any transferee.



     (d) Designation of Beneficiary. Each Participant may designate a beneficiary or
beneficiaries to exercise any Award or receive a payment under any Award payable on or after the
Participant’s death. Any such designation shall be on a form approved by the Committee and shall
be effective upon its receipt by the Company.

 


			
	2010 Equity Incentive Plan
	 	Page 6






 









 






     (e) Termination of Service. Unless otherwise provided in an Agreement, and
subject to Section 12 of this Plan, if a Participant’s Service with the Company and all of its
Affiliates terminates, the following provisions shall apply (in all cases subject to the scheduled expiration of an
Option or Stock Appreciation Right, as applicable):



          (1) Upon termination of Service for Cause, all unexercised Options and SARs and all unvested
portions of any other outstanding Awards shall be immediately forfeited without consideration.



          (2) Upon termination of Service for any other reason, all unvested and unexercisable portions
of any outstanding Awards shall be immediately forfeited without consideration.



          (3) Upon termination of Service for any reason other than Cause, death or Disability, the
currently vested and exercisable portions of Options and SARs may be exercised for a period of
three months after the date of such termination. However, if a Participant thereafter dies during
such three-month period, the vested and exercisable portions of the Options and SARs may be
exercised for a period of one year after the date of such termination.



          (4) Upon termination of Service due to death or Disability, the currently vested and
exercisable portions of Options and SARs may be exercised for a period of one year after the date
of such termination.



     (f) Rights as Stockholder. No Participant shall have any rights as a stockholder with
respect to any securities covered by an Award unless and until the date the Participant becomes the
holder of record of the Shares, if any, to which the Award relates.



     (g) Performance-Based Awards. Any Award may be granted as a performance-based Award
if the Committee establishes one or more measures of corporate, business unit or individual
performance which must be attained, and the performance period over which the specified performance
is to be attained, as a condition to the vesting, exercisability, lapse of restrictions and/or
settlement in cash or Shares of such Award. In connection with any such Award, the Committee shall
determine the extent to which performance measures have been attained and other applicable terms
and conditions have been satisfied, and the degree to which vesting, exercisability, lapse of
restrictions and/or settlement in cash or Shares of such Award has been earned. Any
performance-based Award that is intended by the Committee to qualify as Performance-Based
Compensation shall additionally be subject to the requirements of Section 17 of this Plan. Except
as provided in Section 17 with respect to Performance-Based Compensation, the Committee shall also
have the authority to provide, in an Agreement or otherwise, for the modification of a performance
period and/or an adjustment or waiver of the achievement of performance measures upon the
occurrence of certain events, which may include a Change of Control, a Corporate Transaction, a
recapitalization, a change in the accounting practices of the Company, or the Participant’s death
or Disability.


7. Stock Option Awards.




     (a) Type and Exercise Price. The Agreement pursuant to which an Option is granted
shall specify whether the Option is an Incentive Stock Option or a Non-Statutory Stock Option. The
exercise price at which each Share subject to an Option may be purchased shall be determined by the
Committee and set forth in the Agreement, and shall not be less than the Fair Market Value of a
Share on the Grant Date, except in the case of Substitute Awards.



     (b) Payment of Exercise Price. The purchase price of the Shares with respect to which
an Option is exercised shall be payable in full at the time of exercise, which may include, to the
extent permitted by the Committee, payment under a broker-assisted sale and remittance program
acceptable to the Committee. The purchase price may be paid in cash or in such other manner as the
Committee may permit, including by withholding Shares otherwise issuable to the Participant upon
exercise of the Option or by delivery to the Company of Shares (by actual delivery or attestation)
already owned by the Participant (in

 


			
	2010 Equity Incentive Plan
	 	Page 7






 









 





each case, such Shares having a Fair Market Value as of the date the Option is exercised equal to the purchase price of the Shares being purchased).


     (c) Exercisability and Expiration. Each Option shall be exercisable in whole or in
part on the terms provided in the Agreement. No Option shall be exercisable at any time after its
scheduled expiration. When an Option is no longer exercisable, it shall be deemed to have
terminated.



     (d) Incentive Stock Options.



          (1) An Option will constitute an Incentive Stock Option only if the Participant receiving the
Option is an Employee, and only to the extent that (i) it is so designated in the applicable
Agreement and (ii) the aggregate Fair Market Value (determined as of the Option’s Grant Date) of
the Shares with respect to which Incentive Stock Options held by the Participant first become
exercisable in any calendar year (under the Plan and all other plans of the Company and its
Affiliates) does not exceed $100,000. To the extent an Option granted to a Participant exceeds
this limit, the Option shall be treated as a Non-Statutory Stock Option. The maximum number of
Shares that may be issued upon the exercise of Incentive Stock Options shall equal 4,500,000. No
Incentive Stock Option may be granted after the tenth anniversary of the effective date of the
Plan.



          (2) No Participant may receive an Incentive Stock Option under the Plan if, immediately after
the grant of such Award, the Participant would own (after application of the rules contained in
Code Section 424(d)) Shares possessing more than 10% of the total combined voting power of all
classes of stock of the Company or an Affiliate, unless (i) the option price for that Incentive
Stock Option is at least 110% of the Fair Market Value of the Shares subject to that Incentive
Stock Option on the Grant Date and (ii) that Option will expire no later than five years after its
Grant Date.



          (3) For purposes of continued Service by a Participant who has been granted an Incentive Stock
Option, no approved leave of absence may exceed three months unless reemployment upon expiration of
such leave is provided by statute or contract. If reemployment is not so provided, then on the
date six months following the first day of such leave, any Incentive Stock Option held by the
Participant shall cease to be treated as an Incentive Stock Option and shall be treated for tax
purposes as a Non-Statutory Stock Option.



          (4) If an Incentive Stock Option is exercised after the expiration of the exercise periods
that apply for purposes of Code Section 422, such Option shall thereafter be treated as a
Non-Statutory Stock Option.



          (5) The Agreement covering an Incentive Stock Option shall contain such other terms and
provisions that the Committee determines necessary to qualify the Option as an Incentive Stock
Option.


8. Stock Appreciation Rights.




     (a) Nature of Award. An Award of Stock Appreciation Rights shall be subject to such
terms and conditions determined by the Committee, to receive upon exercise of the Stock
Appreciation Right all or a portion of the excess of (i) the Fair Market Value of a specified
number of Shares as of the date of exercise of the Stock Appreciation Right over (ii) a specified
exercise price that shall not be less than 100% of the Fair Market Value of such Shares on the
Grant Date of the Stock Appreciation Right, except in the case of Substitute Awards.



     (b) Exercise of SAR. Each Stock Appreciation Right may be exercisable in whole or in
part at the times, on the terms and in the manner provided in the Agreement. No Stock Appreciation
Right shall be exercisable at any time after its scheduled expiration. When a Stock Appreciation
Right is no longer exercisable, it shall be deemed to have terminated. Upon exercise of a Stock
Appreciation Right, payment to the Participant shall be made at such time or times as shall be
provided in the Agreement in the form of cash, Shares or a combination of cash and Shares as
determined by the Committee. The

 


			
	2010 Equity Incentive Plan
	 	Page 8






 









 





Agreement may provide for a limitation upon the amount or percentage of the total appreciation
on which payment (whether in cash and/or Shares) may be made in the event of the exercise of a
Stock Appreciation Right.



9. Restricted Stock Awards.




     (a) Vesting and Consideration. Shares subject to a Restricted Stock Award shall be
subject to vesting conditions, and the corresponding lapse or waiver of forfeiture conditions and
other restrictions, based on such factors and occurring over such period of time as the Committee
may determine in its discretion. The Committee may provide whether any consideration other than
Services must be received by the Company or any Affiliate as a condition precedent to the grant of
a Restricted Stock Award.



     (b) Shares Subject to Restricted Stock Awards. Unvested Shares subject to a
Restricted Stock Award shall be evidenced by a book-entry in the name of the Participant with the
Company’s transfer agent or by one or more Stock certificates issued in the name of the
Participant. Any such Stock certificate shall be deposited with the Company or its designee,
together with an assignment separate from the certificate, in blank, signed by the Participant, and
bear an appropriate legend referring to the restricted nature of the Restricted Stock evidenced
thereby. Any book-entry shall be subject to transfer restrictions and accompanied by a similar
legend. Upon the vesting of Shares of Restricted Stock and the corresponding lapse of the
restrictions and forfeiture conditions, the corresponding transfer restrictions and restrictive
legend will be removed from the book-entry evidencing such Shares or the certificate evidencing
such Shares, and such certificate shall be delivered to the Participant. Such vested Shares may,
however, remain subject to additional restrictions as provided in Section 18(c).



     (c) Dividends and Distributions. Except as otherwise provided in this Plan and the
applicable Agreement, a Participant with a Restricted Stock Award shall have all the other rights
of a stockholder, including the right to receive dividends and the right to vote the Shares of
Restricted Stock. Except as otherwise provided in the applicable Agreement, any Shares or property
other than regular cash dividends distributed with respect to unvested Shares subject to a
Restricted Stock Award shall be subject to the same conditions and restrictions as the underlying
Shares.


10. Stock Unit Awards.




     (a) Vesting and Consideration. A Stock Unit Award shall be subject to vesting
conditions, and the corresponding lapse or waiver of forfeiture conditions and other restrictions,
based on such factors and occurring over such period of time as the Committee may determine in its
discretion. The Committee may provide whether any consideration other than Services must be
received by the Company or any Affiliate as a condition precedent to the settlement of a Stock Unit
Award.



     (b) Payment of Award. Following the vesting of a Stock Unit Award, settlement of the
Award and payment to the Participant shall be made at such time or times in the form of cash,
Shares (which may themselves be considered Restricted Stock under the Plan subject to restrictions on
transfer and forfeiture conditions) or a combination of cash and Shares as determined by the
Committee. If the Stock Unit Award is not by its terms exempt from the requirements of Code
Section 409A, then the applicable Agreement shall contain terms and conditions necessary to avoid
adverse tax consequences specified in Code Section 409A.



     (c) Dividend Equivalents. A Stock Unit Award may, if so determined by the Committee,
provide the Participant with the right to receive dividend equivalent payments with respect to
Shares subject to the Award (both before and after the Shares are earned or vested), which payments
may be either made currently, credited to an account for the Participant, or deemed to have been
reinvested in additional Shares which shall thereafter be deemed to be part of and subject to the
underlying Award, including the same vesting, performance and settlement conditions.

 


			
	2010 Equity Incentive Plan
	 	Page 9






 









 





11. Other Stock-Based Awards. The Committee may from time to time grant Stock and
other Awards that are valued by reference to and/or payable in whole or in part in Shares under the
Plan. The Committee, in its sole discretion, shall determine the terms and conditions of such
Awards, which shall be consistent with the terms and purposes of the Plan. The Committee may, in
its sole discretion, direct the Company to issue Shares subject to restrictive legends and/or stop
transfer instructions that are consistent with the terms and conditions of the Award to which the
Shares relate.



12. Changes in Capitalization, Corporate Transactions, Change in Control.




     (a) Adjustments for Changes in Capitalization. In the event of any equity
restructuring (within the meaning of FASB ASC Topic 718 — Stock Compensation) that causes the per
share value of Shares to change, such as a stock dividend, stock split, spinoff, rights offering or
recapitalization through an extraordinary dividend, the Committee shall make such adjustments as it
deems equitable and appropriate to (i) the aggregate number and kind of Shares or other securities
issued or reserved for issuance under the Plan, (ii) the number and kind of Shares or other
securities subject to outstanding Awards, (iii) the exercise price of outstanding Options and SARs,
and (iv) any maximum limitations prescribed by the Plan with respect to certain types of Awards or
the grants to individuals of certain types of Awards. In the event of any other change in
corporate capitalization, including a merger, consolidation, reorganization, or partial or complete
liquidation of the Company, such equitable adjustments described in the foregoing sentence may be
made as determined to be appropriate and equitable by the Committee to prevent dilution or
enlargement of rights of Participants. In either case, any such adjustment shall be conclusive and
binding for all purposes of the Plan. No adjustment shall be made pursuant to this Section 12(a)
in connection with the conversion of any convertible securities of the Company, or in a manner that
would cause Incentive Stock Options to violate Section 422(b) of the Code or cause an Award to be
subject to adverse tax consequences under Section 409A of the Code.



     (b) Corporate Transactions. Unless otherwise provided in an applicable Agreement, the
following provisions shall apply to outstanding Awards in the event of a Change in Control that
involves a Corporate Transaction.



          (1) Continuation, Assumption or Replacement of Awards. In the event of a Corporate
Transaction, then the surviving or successor entity (or its Parent) may continue, assume or replace
Awards outstanding as of the date of the Corporate Transaction (with such adjustments as may be
required or permitted by Section 12(a)), and such Awards or replacements therefor shall remain
outstanding and be governed by their respective terms. A surviving or successor entity may elect
to continue, assume or replace only some Awards or portions of Awards. For purposes of this
Section 12(b)(1), an Award shall be considered assumed or replaced if, in connection with the
Corporate Transaction and in a manner consistent with Code Sections 409A and 424, either (i) the
contractual obligations represented by the Award are expressly assumed by the surviving or
successor entity (or its Parent) with appropriate adjustments to the number and type of securities
subject to the Award and the exercise price thereof that preserves the intrinsic value of the Award
existing at the time of the Corporate Transaction, or (ii) the Participant has received a
comparable equity-based award that preserves the intrinsic value of the Award existing at the time
of the Corporate Transaction and provides for a vesting or exercisability schedule that is the same
as or more favorable to the Participant.



          (2) Acceleration. If and to the extent that outstanding Awards under the Plan are not
continued, assumed or replaced in connection with a Corporate Transaction, then the Committee may
provide that (i) some or all outstanding Options and SARs shall become fully exercisable for such
period of time prior to the effective time of the Corporate Transaction as is deemed fair and
equitable by the Committee, and shall terminate at the effective time of the Corporate Transaction,
and (ii) some or all outstanding Full Value Awards shall fully vest immediately prior to the
effective time of the Corporate Transaction. The Committee will not be required to treat all
Awards similarly for purposes of this Section 12(b)(2). The Committee shall provide written notice
of the period of accelerated exercisability of

 


			
	2010 Equity Incentive Plan
	 	Page 10







 











 




Options and SARs to all affected Participants. The exercise of any Option or SAR whose exercisability
is accelerated as provided in this Section
12(b)(2) shall be conditioned upon the consummation of the Corporate Transaction and shall be
effective only immediately before such consummation.




          (3) Payment for Awards. If and to the extent that outstanding Awards under the Plan
are not continued, assumed or replaced in connection with a Corporate Transaction, then the
Committee may provide that holders of some or all of such outstanding Awards must surrender the
Awards at or immediately prior to the effective time of the Corporate Transaction in exchange for
payments to the holders as provided in this Section 12(b)(3). The Committee will not be required
to treat all Awards similarly for purposes of this Section 12(b)(3). The payment for any Award
surrendered shall be in an amount equal to the difference, if any, between (i) the fair market
value (as determined in good faith by the Committee) of the consideration that would otherwise be
received in the Corporate Transaction for the number of Shares subject to the Award, and (ii) the
aggregate exercise price (if any) for the Shares subject to such Award. Payment shall be made in
such form, on such terms and subject to such conditions as the Committee determines in its
discretion, which may or may not be the same as the form, terms and conditions applicable to
payments to the Company’s stockholders in connection with the Corporate Transaction, and may
include subjecting such payments to vesting conditions comparable to those of the Award
surrendered, or to escrow or holdback terms comparable to those imposed upon the Company’s
stockholders under the Corporate Transaction.




     (c) Change in Control. In connection with a Change in Control that does not involve a
Corporate Transaction, the Committee may provide (in the applicable Agreement or otherwise) for one
or more of the following: (i) that any Award shall become vested and exercisable, in whole or in
part, upon the occurrence of the Change in Control or upon the involuntary termination of the
Participant without Cause within a specified period of time of the Change in Control, (ii) that any
Option or SAR shall remain exercisable during all or some specified portion of its remaining term,
or (iii) that Awards shall be surrendered in exchange for payments in a manner similar to that
provided in Section 12(b)(3). The Committee will not be required to treat all Awards similarly in
such circumstances.



     (d) Dissolution or Liquidation. Unless otherwise provided in an applicable Agreement,
in the event of a proposed dissolution or liquidation of the Company, the Committee will notify
each Participant as soon as practicable prior to the effective date of such proposed transaction.
An Award will terminate immediately prior to the consummation of such proposed action.


13. Plan Participation and Service Provider Status. Status as a Service Provider shall
not be construed as a commitment that any Award will be made under the Plan to that Service
Provider or to eligible Service Providers generally. Nothing in the Plan or in any Agreement or related documents
shall confer upon any Service Provider or Participant any right to continued Service with the
Company or any Affiliate, nor shall it interfere with or limit in any way any right of the Company
or any Affiliate to terminate the person’s Service at any time with or without Cause or change such
person’s compensation, other benefits, job responsibilities or title.



14. Tax Withholding. The Company or any Affiliate, as applicable, shall have the right to
(i) withhold from any cash payment under the Plan or any other compensation owed to a Participant
an amount sufficient to cover any required withholding taxes related to the grant, vesting,
exercise or settlement of an Award, and (ii) require a Participant or other person receiving Shares
under the Plan to pay a cash amount sufficient to cover any required withholding taxes before
actual receipt of those Shares. In lieu of all or any part of a cash payment from a person
receiving Shares under the Plan, the Committee (in its sole discretion) may permit the individual
to cover all or any part of the required withholdings (up to the Participant’s minimum required tax
withholding rate) through a reduction in the number of Shares delivered or a delivery or tender to
the Company of Shares held by the Participant or other person, in each case valued in the same
manner as used in computing the withholding taxes under applicable laws.




			
	 	 	 
	2010 Equity Incentive Plan
	 	Page 11






 









 





15. Effective Date, Duration, Amendment and Termination of the Plan.




     (a) Effective Date. The Plan shall become effective on the date it is approved by the
requisite vote of the Board, subject to approval by the Company’s stockholders. If the
stockholders fail to approve the Plan within 12 months of its adoption by the Board, any Awards
already made will be null and void and no additional Awards shall be made.



     (b) Duration of the Plan. The Plan shall remain in effect until all Shares subject to
it shall be distributed, all Awards have expired or terminated or the Plan is terminated pursuant
to Section 15(c), whichever occurs first (the “Termination Date”). Awards made before the
Termination Date may be exercised, vested or otherwise effectuated beyond the Termination Date
unless limited in the Agreement or otherwise.



     (c) Amendment and Termination of the Plan. The Board may at any time terminate,
suspend or amend the Plan. The Company shall submit any amendment of the Plan to its stockholders
for approval only to the extent required by applicable laws or regulations or the rules of any
securities exchange on which the Shares may then be listed. No termination, suspension, or
amendment of the Plan may materially impair the rights of any Participant under a previously
granted Award without the Participant’s consent, unless such action is necessary to comply with
applicable law, stock exchange rules or accounting rules.



     (d) Amendment of Awards. The Committee may unilaterally amend the terms of any
Agreement previously granted, except that no such amendment may materially impair the rights of any
Participant under the applicable Award without the Participant’s consent, unless such amendment is
necessary to comply with applicable law, stock exchange rules or accounting rules.


16. Substitute Awards. The Committee may also grant Awards under the Plan in substitution
for, or in connection with the assumption of, existing awards granted or issued by another
corporation and assumed or otherwise agreed to be provided for by the Company pursuant to or by
reason of a transaction involving a merger, consolidation, acquisition of property or stock,
separation, reorganization or liquidation to which the Company or an Affiliate is a party. The
terms and conditions of the Substitute Awards may vary from the terms and conditions set forth in
the Plan to the extent that the Board at the time of the grant may deem appropriate to conform, in
whole or in part, to the provisions of the awards in substitution for which they are granted.



17. Performance-Based Compensation.




     (a) Designation of Awards. If the Committee determines at the time a Full Value Award
is granted to a Participant that such Participant is, or is likely to be, a “covered employee” for
purposes of Code Section 162(m) as of the end of the tax year in which the Company would ordinarily
claim a tax deduction in connection with such Award, then the Committee may provide that this
Section 17 will be applicable to such Award, which shall be considered Performance-Based
Compensation.



     (b) Performance Measures. If an Award is subject to this Section 17, then the lapsing
of restrictions thereon and the distribution of cash, Shares or other property pursuant thereto, as
applicable, shall be subject to the achievement of one or more of the performance measures
specified in Section 17(d) over the applicable performance period. The Committee shall specify the
manner of calculating the performance measures it selects to use in any performance period, which
may include adjustments to such measures as otherwise defined under U.S. Generally Accepted
Accounting Principles. The Committee may also adjust performance measures for a performance period
to the extent permitted by Code Section 162(m) in connection with an event described in Section
12(a) to prevent the dilution or enlargement of a Participant’s rights with respect to
Performance-Based Compensation. The Committee will determine the applicable performance measures
for any performance period and any amount payable in connection with an Award subject to this
Section 17 within the time periods prescribed by and consistent with the other requirements of Code
Section 162(m). The Committee may adjust downward, but not upward, any



			
	 	 	 
	2010 Equity Incentive Plan
	 	Page 12






 









 





amount determined to be
otherwise payable in connection with such an Award. The Committee may also provide, in an
Agreement or otherwise, that the achievement of specified performance measures in connection with
an Award subject to this section 17 may be waived upon the death or Disability of the Participant
or under any other circumstance with respect to which the existence of such possible waiver will
not cause the Award to fail to qualify as “performance-based compensation” under Code Section
162(m).




     (c) Limitations. Subject to adjustment as provided in Section 12(a), the maximum
number of Shares that may be the subject of Full Value Awards of Performance-Based Compensation
granted to any Participant during any calendar year shall not exceed 1,500,000 Shares.



     (d) For purposes of any Full Value Award considered Performance-Based Compensation subject to
this Section 17, the performance measures to be utilized shall be limited to one or a combination
of two or more of the following performance criteria: revenues; gross profit; income from
operations; net income; earnings before income taxes; earnings before interest and taxes; earnings
before interest, taxes, depreciation and amortization; earnings before interest, taxes,
depreciation, amortization and share-based compensation expense; net income per share (basic or
diluted); profitability as measured by return ratios (including, but not limited to, return on
assets, return on equity, return on investment and return on revenues or gross profit) or by the
degree to which any of the foregoing earnings measures exceed a percentage of revenues or gross
profit; cash flow; market share; margins (including, but not limited to, one or more of gross,
operating and net earnings margins); stock price; total stockholder return; asset quality;
non-performing assets; revenue growth; cash flow per share; operating assets; balance of cash, cash
equivalents and marketable securities; improvement in or attainment of expense levels or cost
savings; economic value added; improvement in or attainment of working capital levels; employee
retention; customer satisfaction; and implementation or completion of critical projects. Any
performance measure utilized may be expressed in absolute amounts, on a per share basis, as a
growth rate or change from preceding periods, or as a comparison to the performance of specified
companies or other external measures, and may relate to one or any combination of corporate, group,
unit, division, Affiliate or individual performance.


18. Other Provisions.




     (a) Unfunded Plan. The Plan shall be unfunded and the Company shall not be required
to segregate any assets that may at any time be represented by Awards under the Plan. Neither the
Company, its Affiliates, the Committee, nor the Board shall be deemed to be a trustee of any
amounts to be paid under the Plan nor shall anything contained in the Plan or any action taken
pursuant to its provisions create or be construed to create a fiduciary relationship between the
Company and/or its Affiliates, and a Participant. To the extent any person has or acquires a
right to receive a payment in connection with an Award under the Plan, this right shall be no
greater than the right of an unsecured general creditor of the Company.



     (b) Limits of Liability. Except as may be required by law, neither the Company nor
any member of the Board or of the Committee, nor any other person participating (including
participation pursuant to a delegation of authority under Section 3(c) of the Plan) in any
determination of any question under the Plan, or in the interpretation, administration or
application of the Plan, shall have any liability to any party for any action taken, or not taken,
in good faith under the Plan.



     (c) Compliance with Applicable Legal Requirements. No Shares distributable pursuant
to the Plan shall be issued and delivered unless the issuance of the Shares complies with all
applicable legal requirements, including compliance with the provisions of applicable state and
federal securities laws, and the requirements of any securities exchanges on which the Company’s
Shares may, at the time, be listed. During any period in which the offering and issuance of Shares
under the Plan is not registered under federal or state securities laws, Participants shall
acknowledge that they are acquiring Shares under the Plan for investment purposes and not for
resale, and that Shares may not be transferred except



			
	 	 	 
	2010 Equity Incentive Plan
	 	Page 13






 









 





pursuant to an effective registration
statement under, or an exemption from the registration requirements of, such securities laws.
Stock certificates evidencing Shares issued under the Plan that are subject to such securities law
restrictions shall bear an appropriate restrictive legend.




     (d) Other Benefit and Compensation Programs. Payments and other benefits received by
a Participant under an Award made pursuant to the Plan shall not be deemed a part of a
Participant’s regular, recurring compensation for purposes of the termination, indemnity or
severance pay laws of any country and shall not be included in, nor have any effect on, the
determination of benefits under any other employee benefit plan, contract or similar arrangement
provided by the Company or an Affiliate unless expressly so provided by such other plan, contract
or arrangement, or unless the Committee expressly determines that an Award or portion of an Award
should be included to accurately reflect competitive compensation practices or to recognize that an
Award has been made in lieu of a portion of competitive cash compensation.



     (e) Requirements of Law.



          (1) To the extent that federal laws do not otherwise control, the Plan and all determinations
made and actions taken pursuant to the Plan shall be governed by the laws of the State of Delaware
without regard to its conflicts-of-law principles and shall be construed accordingly.




          (2) If any provision of the Plan shall be held illegal or invalid for any reason, the
illegality or invalidity shall not affect the remaining parts of the Plan, and the Plan shall be
construed and enforced as if the illegal or invalid provision had not been included.




          (3) It is intended that (i) all Awards of Options, SARs and Restricted Stock under the Plan
will not provide for the deferral of compensation within the meaning of Code Section 409A and
thereby be exempt from Code Section 409A, and (ii) all other Awards under the Plan will either not
provide for the deferral of compensation within the meaning of Code Section 409A, or will comply
with the requirements of Code Section 409A, and Awards shall be structured and the Plan
administered in accordance with this intent. The Plan and any Agreement may be unilaterally
amended by the Company in any manner deemed necessary or advisable by the Committee or Board in
order to maintain such exemption from or compliance with Code Section 409A, and any such amendment shall conclusively
be presumed to be necessary to comply with applicable law.







          (4) It is intended that the Plan and all Awards granted pursuant to it shall be administered
by the Committee so as to permit the Plan and Awards to comply with Exchange Act Rule 16b-3. If
any provision of the Plan or of any Award would otherwise frustrate or conflict with the intent
expressed in this Section 18(e)(4), that provision to the extent possible shall be interpreted and
deemed amended in the manner determined by the Committee so as to avoid the conflict. To the
extent of any remaining irreconcilable conflict with this intent, the provision shall be deemed
void as applied to Participants subject to Section 16 of the Exchange Act to the extent permitted
by law and in the manner deemed advisable by the Committee.




			
	 	 	 
	2010 Equity Incentive Plan
	 	Page 14