Exhibit 10.1



 



Exhibit 10.1



TranS1 Inc.




AMENDED AND RESTATED




2000 STOCK INCENTIVE PLAN




     This AMENDED AND RESTATED 2000 STOCK INCENTIVE PLAN (the “Plan”), established by TranS1
Inc., a Delaware corporation (the “Company”), as adopted by its Board of Directors as of June 14,
2000 (the “Effective Date”), and approved by its sole stockholder on June 14, 2000, as amended
effective March 7, 2002, and approved by the stockholders on March 8, 2002, and effective June 14,
2002, as further amended March 5, 2003 by the Board of Directors and approved by its stockholders
on April 14, 2003 as further amended September 14, 2005 by the Board of Directors and approved by
the stockholders on September 14, 2005 and as further amended June 18, 2007 by the Board of
Directors and approved by the stockholders on June 26, 2007.



ARTICLE 1.




PURPOSES OF THE PLAN




     1.1 Purposes. The purposes of the Plan are (a) to enhance the Company’s ability to
attract and retain the services of qualified employees, officers and directors (including
non-employee officers and directors), and consultants and other service providers upon whose
judgment, initiative and efforts the successful conduct and development of the Company’s business
largely depends, and (b) to provide additional incentives to such persons or entities to devote
their utmost effort and skill to the advancement and betterment of the Company, by providing them
an opportunity to participate in the ownership of the Company and thereby have an interest in the
success and increased value of the Company.



ARTICLE 2.




DEFINITIONS




     For purposes of this Plan, the following terms shall have the meanings indicated:



     2.1 Administrator. “Administrator” means the Board or, if the Board delegates
responsibility for any matter to the Committee, the term Administrator shall mean the Committee.



     2.2 Affiliated Company. “Affiliated Company” means any “parent corporation” or
“subsidiary corporation” of the Company, whether now existing or hereafter created or acquired, as
those terms are defined in Sections 424(e) and 424(f) of the Code, respectively.



     2.3 Board. “Board” means the Board of Directors of the Company.



     2.4 Change in Control. “Change in Control” shall mean (i) the acquisition, directly
or indirectly, by any person or group (within the meaning of Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended) of the beneficial ownership of securities of the Company



 









 







possessing more than fifty percent (50%) of the total combined voting power of all outstanding
securities of the Company; (ii) 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; (iii) a reverse merger in which the Company is the surviving entity but in
which securities possessing more than fifty percent (50%) of the total combined voting power of the
Company’s outstanding securities are transferred to or acquired by a person or persons different
from the persons holding those securities immediately prior to such merger; (iv) the sale, transfer
or other disposition of all or substantially all of the assets of the Company; or (v) a complete
liquidation or dissolution of the Company.



     2.5 Code. “Code” means the Internal Revenue Code of 1986, as amended from time to
time.



     2.6 Committee. “Committee” means a committee of two or more members of the Board
appointed to administer the Plan, as set forth in Section 7.1 hereof.



     2.7 Common Stock. “Common Stock” means the Common Stock, $0.0001 par value per share,
of the Company, subject to adjustment pursuant to Section 4.2 hereof.



     2.8 Disability. “Disability” means permanent and total disability as defined in
Section 22(e)(3) of the Code. The Administrator’s determination of a Disability or the absence
thereof shall be conclusive and binding on all interested parties.



     2.9 Effective Date. “Effective Date” means the date on which the Plan is adopted by
the Board, as set forth on the first page hereof.



     2.10 Exercise Price. “Exercise Price” means the purchase price per share of Common
Stock payable upon exercise of an Option.



     2.11 Fair Market Value. “Fair Market Value” on any given date means the value of one
share of Common Stock, determined as follows:



          (a) If the Common Stock is then listed or admitted to trading on a NASDAQ market system or a
stock exchange which reports closing sale prices, the Fair Market Value shall be the closing sale
price on the date of valuation on such NASDAQ market system or principal stock exchange on which
the Common Stock is then listed or admitted to trading, or, if no closing sale price is quoted on
such day, then the Fair Market Value shall be the closing sale price of the Common Stock on such
NASDAQ market system or such exchange on the next preceding day for which a closing sale price is
reported.



          (b) If the Common Stock is not then listed or admitted to trading on a NASDAQ market system or
a stock exchange which reports closing sale prices, the Fair Market Value shall be the average of
the closing bid and asked prices of the Common Stock in the over-the-counter market on the date of
valuation.



          (c) If neither (a) nor (b) is applicable as of the date of valuation, then the Fair Market
Value shall be determined by the Administrator in good faith using any reasonable method of
evaluation, which determination shall be conclusive and binding on all interested parties.



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     2.12 Incentive Option. “Incentive Option” means any Option designated and qualified
as an “incentive stock option” as defined in Section 422 of the Code.



     2.13 Incentive Option Agreement. “Incentive Option Agreement” means an Option
Agreement with respect to an Incentive Option.



     2.14 NASD Dealer. “NASD Dealer” means a broker-dealer that is a member of the
National Association of Securities Dealers, Inc.



     2.15 Nonqualified Option. “Nonqualified Option” means any Option that is not an
Incentive Option. To the extent that any Option designated as an Incentive Option fails in whole
or in part to qualify as an Incentive Option, including, without limitation, for failure to meet
the limitations applicable to a 10% Shareholder or because it exceeds the annual limit provided for
in Section 5.6 below, it shall to that extent constitute a Nonqualified Option.



     2.16 Nonqualified Option Agreement. “Nonqualified Option Agreement” means an Option
Agreement with respect to a Nonqualified Option.



     2.17 Offeree. “Offeree” means a Participant to whom a Right to Purchase has been
offered or who has acquired Restricted Stock under the Plan.



     2.18 Option. “Option” means any option to purchase Common Stock granted pursuant to
the Plan.



     2.19 Option Agreement. “Option Agreement” means the written agreement entered into
between the Company and the Optionee with respect to an Option granted under the Plan.



     2.20 Optionee. “Optionee” means a Participant who holds an Option.



     2.21 Participant. “Participant” means an individual or entity who holds an Option, a
Right to Purchase or Restricted Stock under the Plan.



     2.22 Purchase Price. “Purchase Price” means the purchase price per share of
Restricted Stock payable upon acceptance of a Right to Purchase.



     2.23 Restricted Stock. “Restricted Stock” means shares of Common Stock issued
pursuant to Article 6 hereof, subject to any restrictions and conditions as are established
pursuant to such Article 6.



     2.24 Right to Purchase. “Right to Purchase” means a right to purchase Restricted
Stock granted to an Offeree pursuant to Article 6 hereof.



     2.25 Service Provider. “Service Provider” means a consultant or other person or
entity who provides services to the Company or an Affiliated Company and who the Administrator
authorizes to become a Participant in the Plan.



     2.26 Stock Purchase Agreement. “Stock Purchase Agreement” means the written agreement
entered into between the Company and the Offeree with respect to a Right to Purchase offered under
the Plan.



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     2.27 10% Shareholder. “10% Shareholder” means a person who, as of a relevant date,
owns or is deemed to own (by reason of the attribution rules applicable under Section 424(d) of the
Code) stock possessing more than 10% of the total combined voting power of all classes of stock of
the Company or of an Affiliated Company.



ARTICLE 3.




ELIGIBILITY




     3.1 Incentive Options. Officers and other key employees of the Company or of an
Affiliated Company (including members of the Board if they are employees of the Company or of an
Affiliated Company) are eligible to receive Incentive Options under the Plan.



     3.2 Nonqualified Options and Rights to Purchase. Officers and other key employees of
the Company or of an Affiliated Company, members of the Board (whether or not employed by the
Company or an Affiliated Company), and Service Providers are eligible to receive Nonqualified
Options or Rights to Purchase under the Plan.



     3.3 Section 162(m) Limitation. In no event shall any Participant be granted Options
in any one calendar year pursuant to which the aggregate number of shares of Common Stock that may
be acquired thereunder exceeds 500,000 shares, subject to adjustment as to the number and kind of
shares pursuant to Section 4.2 hereof. In no event shall any Participant be granted Rights to
Purchase in any one calendar year pursuant to which the aggregate number of shares of Common Stock
governed by such Right to Purchase exceeds 500,000 shares, subject to adjustment as to the number
and kind of shares pursuant to Section 4.2 hereof.



ARTICLE 4.




PLAN SHARES




     4.1
Shares Subject to the Plan. A total of
2,550,876 shares of Common Stock may be
issued under the Plan, subject to adjustment as to the number and kind of shares pursuant to
Section 4.2 hereof. For purposes of this limitation, in the event that (a) all or any portion of
any Option or Right to Purchase granted or offered under the Plan can no longer under any
circumstances be exercised, or (b) any shares of Common Stock are reacquired by the Company
pursuant to an Incentive Option Agreement, Nonqualified Option Agreement or Stock Purchase
Agreement, the shares of Common Stock allocable to the unexercised portion of such Option or such
Right to Purchase, or the shares so reacquired, shall again be available for grant or issuance
under the Plan.



     4.2 Changes in Capital Structure. In the event that the outstanding shares of Common
Stock are hereafter increased or decreased or changed into or exchanged for a different number or
kind of shares or other securities of the Company by reason of a recapitalization, stock split,
combination of shares, reclassification, stock dividend, or other similar change in the capital
structure of the Company, then appropriate adjustments shall be made by the Administrator to the
aggregate number and kind of shares subject to this Plan, and the number and kind of shares and the
price per share subject to outstanding Option Agreements, Rights to Purchase and Stock Purchase
Agreements in order to preserve, as nearly as practical, but not to increase, the benefits to
Participants.



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ARTICLE 5.




OPTIONS




     5.1 Option Agreement. Each Option granted pursuant to this Plan shall be evidenced by
an Option Agreement which shall specify the number of shares subject thereto, the Exercise Price
per share, and whether the Option is an Incentive Option or Nonqualified Option. As soon as is
practical following the grant of an Option, an Option Agreement shall be duly executed and
delivered by or on behalf of the Company to the Optionee to whom such Option was granted. Each
Option Agreement shall be in such form and contain such additional terms and conditions, not
inconsistent with the provisions of this Plan, as the Administrator shall, from time to time, deem
desirable, including, without limitation, the imposition of any rights of first refusal and resale
obligations upon any shares of Common Stock acquired pursuant to an Option Agreement. Each Option
Agreement may be different from each other Option Agreement.



     5.2 Exercise Price. The Exercise Price per share of Common Stock covered by each
Option shall be determined by the Administrator, subject to the following: (a) the Exercise Price
of an Incentive Option shall not be less than 100% of Fair Market Value on the date the Incentive
Option is granted, (b) the Exercise Price of a Nonqualified Option shall not be less than 100% of
Fair Market Value on the date the Nonqualified Option is granted, and (c) if the person to whom an
Incentive Option is granted is a 10% Shareholder on the date of grant, the Exercise Price shall not
be less than 110% of Fair Market Value on the date the Option is granted.



     5.3 Payment of Exercise Price. Payment of the Exercise Price shall be made upon
exercise of an Option and may be made, in the discretion of the Administrator, subject to any legal
restrictions, by: (a) cash; (b) check; (c) the surrender of shares of Common Stock owned by the
Optionee that have been held by the Optionee for at least six (6) months, which surrendered shares
shall be valued at Fair Market Value as of the date of such exercise; (d) the Optionee’s promissory
note in a form and on terms acceptable to the Administrator; (e) the cancellation of indebtedness
of the Company to the Optionee; (f) the waiver of compensation due or accrued to the Optionee for
services rendered; (g) provided that a public market for the Common Stock exists, a “same day sale”
commitment from the Optionee and an NASD Dealer whereby the Optionee irrevocably elects to exercise
the Option and to sell a portion of the shares so purchased to pay for the Exercise Price and
whereby the NASD Dealer irrevocably commits upon receipt of such shares to forward the Exercise
Price directly to the Company; (h) provided that a public market for the Common Stock exists, a
“margin” commitment from the Optionee and an NASD Dealer whereby the Optionee irrevocably elects to
exercise the Option and to pledge the shares so purchased to the NASD Dealer in a margin account as
security for a loan from the NASD Dealer in the amount of the Exercise Price, and whereby the NASD
Dealer irrevocably commits upon receipt of such shares to forward the Exercise Price directly to
the Company; or (i) any combination of the foregoing methods of payment or any other consideration
or method of payment as shall be permitted by applicable corporate law.



     5.4 Term and Termination of Options. The term and provisions for termination of each
Option shall be as fixed by the Administrator, but no Option may be exercisable more than ten (10)
years after the date it is granted. An Incentive Option granted to a person who is a 10%
Shareholder on the date of grant shall not be exercisable more than five (5) years after the date
it is granted.



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     5.5 Vesting and Exercise of Options. Each Option shall vest and become exercisable in
one or more installments at such time or times and subject to such conditions, including without
limitation the achievement of specified performance goals or objectives, as shall be determined by
the Administrator.



     5.6 Annual Limit on Incentive Options. To the extent required for “incentive stock
option” treatment under Section 422 of the Code, the aggregate Fair Market Value (determined as of
the time of grant) of the Common Stock shall not, with respect to which Incentive Options granted
under this Plan and any other plan of the Company or any Affiliated Company become exercisable for
the first time by an Optionee during any calendar year, exceed $100,000.



     5.7 Nontransferability of Options. No Option shall be assignable or transferable
except by will or the laws of descent and distribution, and during the life of the Optionee shall
be exercisable only by such Optionee; provided, however, that, in the discretion of the
Administrator, any Option may be assigned or transferred in any manner which an “incentive stock
option” is permitted to be assigned or transferred under the Code.



     5.8 Rights as Shareholder. An Optionee or permitted transferee of an Option shall
have no rights or privileges as a shareholder with respect to any shares covered by an Option until
such Option has been duly exercised and certificates representing shares purchased upon such
exercise have been issued to such person.



     5.9 Company’s Repurchase Right. In the event of termination of a Participant’s
employment or service as a director of the Company for any reason whatsoever (including death or
disability), the Option Agreement may provide, in the discretion of the Administrator, that the
Company, or its assignee, shall have the right, exercisable at the discretion of the Administrator,
to repurchase shares of Common Stock acquired pursuant to the exercise of an Option at any time
prior to the consummation of the Company’s initial public offering of securities in an offering
registered under the Securities Act of 1933, as amended, and at the price equal to the Fair Market
Value per share of Common Stock (determined in accordance with Section 2.11 hereof) as of the date
of termination of Optionee’s employment. The repurchase right provided in this Section 5.9 shall
terminate and be of no further force or effect following the consummation of an underwritten public
offering of the Company’s Common Stock.



     In any event, the right to repurchase must be exercised within one-hundred twenty (120) days
of the termination of Participant’s employment and may be paid by the Company, or its assignee, by
cash, check, or cancellation of indebtedness.



     5.10 Restrictions on Underlying Shares of Common Stock. Shares of Common Stock issued
pursuant to the exercise of an Option may not be sold, assigned, transferred, pledged or otherwise
encumbered or disposed of except as specifically provided in the Option Agreement.



     5.11 Repricing Prohibited. Subject to Section 4.2 hereof, without the prior approval
of the Company’s stockholders, evidenced by a majority of votes cast, neither the Committee nor the
Board shall cause the cancellation, substitution or amendment of an Option Agreement that would
have the effect of reducing the exercise price of such an Option previously granted under the Plan,
or otherwise approve any modification to such an Option that would be treated as a “repricing”
under the then applicable rules, regulations or listing requirements adopted by the Nasdaq Stock
Market.



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     5.12 Compliance with Code Section 409A. Notwithstanding anything in this Article 5 to
the contrary, all Option Agreements must be structured to satisfy the requirements of Code Section
409A, as determined by the Committee.



ARTICLE 6.




RIGHTS TO PURCHASE




     6.1 Nature of Right to Purchase. A Right to Purchase granted to an Offeree entitles
the Offeree to purchase, for a Purchase Price determined by the Administrator, shares of Common
Stock subject to such terms, restrictions and conditions as the Administrator may determine at the
time of grant. Such conditions may include, but are not limited to, continued employment or the
achievement of specified performance goals or objectives.



     6.2 Acceptance of Right to Purchase. An Offeree shall have no rights with respect to
the Restricted Stock subject to a Right to Purchase unless the Offeree shall have accepted the
Right to Purchase within ten (10) days (or such longer or shorter period as the Administrator may
specify) following the grant of the Right to Purchase by making payment of the full Purchase Price
to the Company in the manner set forth in Section 6.3 hereof and by executing and delivering to the
Company a Stock Purchase Agreement. Each Stock Purchase Agreement shall be in such form, and shall
set forth the Purchase Price and such other terms, conditions and restrictions of the Restricted
Stock, not inconsistent with the provisions of this Plan, as the Administrator shall, from time to
time, deem desirable. Each Stock Purchase Agreement may be different from each other Stock
Purchase Agreement.



     6.3 Payment of Purchase Price. Subject to any legal restrictions, payment of the
Purchase Price upon acceptance of a Right to Purchase Restricted Stock may be made, in the
discretion of the Administrator, by: (a) cash; (b) check; (c) the surrender of shares of Common
Stock owned by the Offeree that have been held by the Offeree for at least six (6) months, which
surrendered shares shall be valued at Fair Market Value as of the date of such exercise; (d) the
Offeree’s promissory note in a form and on terms acceptable to the Administrator; (e) the
cancellation of indebtedness of the Company to the Offeree; (f) the waiver of compensation due or
accrued to the Offeree for services rendered; or (g) any combination of the foregoing methods of
payment or any other consideration or method of payment as shall be permitted by applicable
corporate law.



     6.4 Rights as a Shareholder. Upon complying with the provisions of Section 6.2
hereof, an Offeree shall have the rights of a shareholder with respect to the Restricted Stock
purchased pursuant to the Right to Purchase, including voting and dividend rights, subject to the
terms, restrictions and conditions as are set forth in the Stock Purchase Agreement. Unless the
Administrator shall determine otherwise, certificates evidencing shares of Restricted Stock shall
remain in the possession of the Company until such shares have vested in accordance with the terms
of the Stock Purchase Agreement.



     6.5 Restrictions. Shares of Restricted Stock may not be sold, assigned, transferred,
pledged or otherwise encumbered or disposed of except as specifically provided in the Stock
Purchase Agreement. In the event of termination of a Participant’s employment, service as a
director of the Company or Service Provider status for any reason whatsoever (including death or
disability), the Stock Purchase Agreement may provide, in the discretion of the Administrator, that
the Company



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shall have the right, exercisable at the discretion of the Administrator, to repurchase (i) at
the original Purchase Price, any shares of Restricted Stock which have not vested as of the date of
termination, and (ii) at Fair Market Value, any shares of Restricted Stock which have vested as of
such date, on such terms as may be provided in the Stock Purchase Agreement.



     6.6 Vesting of Restricted Stock. The Stock Purchase Agreement shall specify the date
or dates, the performance goals or objectives which must be achieved, and any other conditions on
which the Restricted Stock may vest.



     6.7 Dividends. If payment for shares of Restricted Stock is made by promissory note,
any cash dividends paid with respect to the Restricted Stock may be applied, in the discretion of
the Administrator, to repayment of such note.



     6.8 Nonassignability of Rights. No Right to Purchase shall be assignable or
transferable except by will or the laws of descent and distribution or as otherwise provided by the
Administrator.



     6.9 Compliance with Code Section 409A. Notwithstanding anything in this Article 5 to
the contrary, all Stock Purchase Agreements must be structured to satisfy the requirements of Code
Section 409A, as determined by the Committee.



ARTICLE 7.




ADMINISTRATION OF THE PLAN




     7.1 Administrator. Authority to control and manage the operation and administration
of the Plan shall be vested in the Board, which may delegate such responsibilities in whole or in
part to a committee consisting of two (2) or more members of the Board (the “Committee”). Members
of the Committee may be appointed from time to time by, and shall serve at the pleasure of, the
Board. As used herein, the term “Administrator” means the Board or, with respect to any matter as
to which responsibility has been delegated to the Committee, the term Administrator shall mean the
Committee.



     7.2 Powers of the Administrator. In addition to any other powers or authority
conferred upon the Administrator elsewhere in the Plan or by law, the Administrator shall have full
power and authority: (a) to determine the persons to whom, and the time or times at which,
Incentive Options or Nonqualified Options shall be granted and Rights to Purchase shall be offered,
the number of shares to be represented by each Option and Right to Purchase and the consideration
to be received by the Company upon the exercise thereof; (b) to interpret the Plan; (c) to create,
amend or rescind rules and regulations relating to the Plan; (d) to determine the terms, conditions
and restrictions contained in, and the form of, Option Agreements and Stock Purchase Agreements;
(e) to determine the identity or capacity of any persons who may be entitled to exercise a
Participant’s rights under any Option or Right to Purchase under the Plan; (f) to correct any
defect or supply any omission or reconcile any inconsistency in the Plan or in any Option Agreement
or Stock Purchase Agreement; (g) to accelerate the vesting of any Option or release or waive any
repurchase rights of the Company with respect to Restricted Stock; (h) to extend the exercise date
of any Option or acceptance date of any Right to Purchase; (i) to provide for rights of first
refusal and/or repurchase rights; (j) to amend outstanding Option Agreements and Stock Purchase
Agreements to provide for, among other things, any change or modification which the Administrator
could have provided for upon the grant of an Option or Right to Purchase or in furtherance of the
powers provided for herein;



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and (k) to make all other determinations necessary or advisable for the administration of the
Plan, but only to the extent not contrary to the express provisions of the Plan. Any action,
decision, interpretation or determination made in good faith by the Administrator in the exercise
of its authority conferred upon it under the Plan shall be final and binding on the Company and all
Participants.



     7.3 Limitation on Liability. No employee of the Company or member of the Board or
Committee shall be subject to any liability with respect to duties under the Plan unless the person
acts fraudulently or in bad faith. To the extent permitted by law, the Company shall indemnify
each member of the Board or Committee, and any employee of the Company with duties under the Plan,
who was or is a party, or is threatened to be made a party, to any threatened, pending or completed
proceeding, whether civil, criminal, administrative or investigative, by reason of such person’s
conduct in the performance of duties under the Plan.



ARTICLE 8.




CHANGE IN CONTROL




     8.1 Change in Control. In order to preserve a Participant’s rights in the event of a
Change in Control of the Company, (i) the time period relating to the exercise or realization of
all outstanding Options, Rights to Purchase and Restricted Stock shall automatically accelerate
immediately prior to the consummation of such Change in Control, and (ii) with respect to Options
and Rights to Purchase, the Administrator in its discretion may, at any time an Option or Right to
Purchase is granted, or at any time thereafter, take one or more of the following actions: (A)
provide for the purchase or exchange of each Option or Right to Purchase for an amount of cash or
other property having a value equal to the difference, or spread, between (x) the value of the cash
or other property that the Participant would have received pursuant to such Change in Control
transaction in exchange for the shares issuable upon exercise of the Option or Right to Purchase
had the Option or Right to Purchase been exercised immediately prior to such Change in Control
transaction and (y) the Exercise Price of such Option or the Purchase Price under such Right to
Purchase, (B) adjust the terms of the Options and Rights to Purchase in a manner determined by the
Administrator to reflect the Change in Control, (C) cause the Options and Rights to Purchase to be
assumed, or new rights substituted therefor, by another entity, through the continuance of the Plan
and the assumption of outstanding Options and Rights to Purchase, or the substitution for such
Options and Rights to Purchase of new options and new rights to purchase of comparable value
covering shares of a successor corporation, with appropriate adjustments as to the number and kind
of shares and Exercise Prices, in which event the Plan and such Options and Rights to Purchase, or
the new options and rights to purchase substituted therefor, shall continue in the manner and under
the terms so provided, or (D) make such other provision as the Administrator may consider
equitable. If the Administrator does not take any of the forgoing actions, all Options and Rights
to Purchase shall terminate upon the consummation of the Change in Control and the Administrator
shall cause written notice of the proposed transaction to be given to all Participants not less
than fifteen (15) days prior to the anticipated effective date of the proposed transaction.



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ARTICLE 9.




AMENDMENT AND TERMINATION OF THE PLAN




     9.1 Amendments. The Board may from time to time alter, amend, suspend or terminate
the Plan in such respects as the Board may deem advisable. No such alteration, amendment,
suspension or termination shall be made which shall substantially affect or impair the rights of
any Participant under an outstanding Option Agreement or Stock Purchase Agreement without such
Participant’s consent. The Board may alter or amend the Plan to comply with requirements under the
Code relating to Incentive Options or other types of options which give Optionees more favorable
tax treatment than that applicable to Options granted under this Plan as of the date of its
adoption. Upon any such alteration or amendment, any outstanding Option granted hereunder may, if
the Administrator so determines and if permitted by applicable law, be subject to the more
favorable tax treatment afforded to an Optionee pursuant to such terms and conditions.



     9.2 Plan Termination. Unless the Plan shall theretofore have been terminated, the
Plan shall terminate on the tenth (10th) anniversary of the Effective Date and no Options or Rights
to Purchase may be granted under the Plan thereafter, but Option Agreements, Stock Purchase
Agreements and Rights to Purchase then outstanding shall continue in effect in accordance with
their respective terms.



ARTICLE 10.




TAX WITHHOLDING




     10.1 Withholding. The Company shall have the power to withhold, or require a
Participant to remit to the Company, an amount sufficient to satisfy any applicable Federal, state,
and local tax withholding requirements with respect to any Options exercised or Restricted Stock
issued under the Plan. To the extent permissible under applicable tax, securities and other laws,
the Administrator may, in its sole discretion and upon such terms and conditions as it may deem
appropriate, permit a Participant to satisfy his or her obligation to pay any such tax, in whole or
in part, up to an amount determined on the basis of the highest marginal tax rate applicable to
such Participant, by (a) directing the Company to apply shares of Common Stock to which the
Participant is entitled as a result of the exercise of an Option or as a result of the purchase of
or lapse of restrictions on Restricted Stock or (b) delivering to the Company shares of Common
Stock owned by the Participant. The shares of Common Stock so applied or delivered in satisfaction
of the Participant’s tax withholding obligation shall be valued at their Fair Market Value as of
the date of measurement of the amount of income subject to withholding.



ARTICLE 11.




MISCELLANEOUS




     11.1 Benefits Not Alienable. Other than as provided above, benefits under the Plan
may not be assigned or alienated, whether voluntarily or involuntarily. Any unauthorized attempt
at assignment, transfer, pledge or other disposition shall be without effect.



     11.2 No Enlargement of Employee Rights. This Plan is strictly a voluntary undertaking
on the part of the Company and shall not be deemed to constitute a contract between the Company



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and any Participant to be consideration for, or an inducement to, or a condition of, the
employment of any Participant. Nothing contained in the Plan shall be deemed to give the right to
any Participant to be retained as an employee of the Company or any Affiliated Company or to limit
the right of the Company or any Affiliated Company to discharge any Participant at any time.



     11.3 Application of Funds. The proceeds received by the Company from the sale of
Common Stock pursuant to Option Agreements and Stock Purchase Agreements, except as otherwise
provided herein, will be used for general corporate purposes.




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