Exhibit 10.3



 





Exhibit 10.3




TRANS1 INC.

2007 STOCK INCENTIVE PLAN




     The 2007 STOCK INCENTIVE PLAN (the “Plan”) is hereby established and adopted this 19th day of
July, 2007 (the “Effective Date”) by TranS1 Inc., a Delaware corporation (the “Company”).



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, directors, 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 that is tied to the
Company’s performance, thereby giving them 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:



          (a) with respect to Incentive Options, 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; and



          (b) with respect to Nonqualified Options, Stock Appreciation Rights and Restricted Stock
Awards, any entity described in paragraph (a) of this Section 2.2 above, plus any other
corporation, limited liability company (“LLC”), partnership or joint venture, whether now existing
or hereafter created or acquired, with respect to which the Company beneficially owns more than
fifty percent (50%) of: (1) the total combined voting power of all outstanding voting securities or
(2) the capital or profits interests of an LLC, partnership or joint venture.



     2.3 Base Value. “Base Value” shall have the meaning as set forth in Section 8.3 below.



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



     2.5 Change in Control. “Change in Control” means (i) the acquisition, directly or indirectly,
by any person or group (within the meaning of Section 13(d)(3) of the Exchange Act) 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.



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



     2.7 Committee. “Committee” means a committee of two or more members of the Board appointed to
administer the Plan, as set forth in Section 9.1 hereof.



     2.8 Common Stock. “Common Stock” means the Common Stock of the Company, subject to adjustment
pursuant to Section 4.2 hereof.



     2.9 Company. “Company” means TranS1 Inc., a Delaware corporation, or any entity that is a
successor to the Company.



     2.10 Covered Employee. “Covered Employee” means the Chief Executive Officer of the Company
(or the individual acting in a similar capacity) and the four (4) other individuals that are the
highest compensated executive officers of the Company for the relevant taxable year for whom total
compensation is required to be reported to stockholders under the Exchange Act.



     2.11 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.



     2.12 DRO. “DRO” means a domestic relations order as defined in the Code or Title I of the
Employee Retirement Income Security Act of 1974, as amended, or the regulations thereunder.



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



     2.14 Exchange Act. “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     2.15 Exercise Price. “Exercise Price” means the purchase price per share of Common Stock
payable by the Optionee to the Company upon exercise of an Option.



     2.16 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 stock exchange which
reports closing sale prices, the Fair Market Value shall be the closing sale price on the date of
valuation on such 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



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closing sale price of the Common Stock on such exchange on the next preceding day on which a
closing sale price is reported.



          (b) If the Common Stock is not then listed or admitted to trading on 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.



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



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



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



     2.20 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% Stockholder or because it exceeds the annual limit provided for in
Section 5.5 below, it shall to that extent constitute a Nonqualified Option.



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



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



     2.23 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.



     2.24 Optionee. “Optionee” means any Participant who holds an Option.



     2.25 Participant. “Participant” means an individual or entity that holds an Option, Stock
Appreciation Right, shares of Restricted Stock or Restricted Stock Units under the Plan.



     2.26 Performance Criteria. “Performance Criteria” means one or more of the following as
established by the Administrator, which may be stated as a target percentage or dollar amount, a
percentage increase over a base period percentage or dollar amount or the occurrence of a specific
event or events:



          (a) Sales;



          (b) Operating income;



          (c) Pre-tax income;



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          (d) Earnings before interest, taxes, depreciation and amortization;



          (e) Earnings per share of Common Stock on a fully-diluted basis;



          (f) Consolidated net income of the Company divided by the average consolidated common
stockholders equity;



          (g) Cash and cash equivalents derived from either (i) net cash flow from operations, or (ii)
net cash flow from operations, financings and investing activities;



          (h) Adjusted operating cash flow return on income;



          (i) Cost containment or reduction;



          (j) The percentage increase in the market price of the Common Stock over a stated period;



          (k) Return on assets;



          (l) New Company product introductions;



          (m) Obtaining regulatory approvals for new or existing products; and



          (n) Individual business objectives.



     2.27 Purchase Price. “Purchase Price” means the purchase price payable to purchase a share of
Restricted Stock, or a Restricted Stock Unit, which, in the sole discretion of the Administrator,
may be zero, subject to limitations under applicable law.



     2.28 Repurchase Right. “Repurchase Right” means the right of the Company to repurchase either
unvested shares of Restricted Stock pursuant to Section 6.6 or to cancel unvested Restricted Stock
Units pursuant to Section 7.6.



     2.29 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.



     2.30 Restricted Stock Award. “Restricted Stock Award” means either the issuance of Restricted
Stock or the grant of Restricted Stock Units under the Plan.



     2.31 Restricted Stock Award Agreement. “Restricted Stock Award Agreement” means the written
agreement entered into between the Company and a Participant evidencing the issuance of Restricted
Stock or the grant of Restricted Stock Units under the Plan.



     2.32 Restricted Stock Unit. “Restricted Stock Unit” means the right to receive one share of
Common Stock issued pursuant to Article 7 hereof, subject to any restrictions and conditions as are
established pursuant to such Article 7.



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     2.33 Service Provider. “Service Provider” means a consultant or other person or entity the
Administrator authorizes to become a Participant in the Plan and who provides services to (i) the
Company, (ii) an Affiliated Company, or (iii) any other business venture designated by the
Administrator in which the Company or an Affiliated Company has a significant ownership interest.



     2.34 Stock Appreciation Right. “Stock Appreciation Right” means a contractual right granted
to a Participant under Section 8 hereof the exercise of which entitles the Participant to receive
shares of the Company’s Common Stock having a Fair Market Value equal to the difference between the
Base Value per share, as set forth in Section 8.3 below, of the right and the Fair Market Value of
a share of Common Stock multiplied by the number of shares subject to the right at such time,
subject to such conditions, as are set forth in this Plan and the applicable Stock Appreciation
Rights Award Agreement.



     2.35 Stock Appreciation Right Agreement. “Stock Appreciation Right Agreement” means the
written agreement entered into between the Company and a Participant evidencing the issuance of
Stock Appreciation Rights under the Plan.



     2.36 Stock Appreciation Rights Holder. “Stock Appreciation Rights Holder” means any
Participant who holds a Stock Appreciation Right.



     2.37 10% Stockholder. “10% Stockholder” 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.



     2.38 Terminated Without Cause. “Terminated Without Cause” means the Participant’s Continuous
Service has been terminated by the Company (or its successor) for any reason other than (a) the
commission by Participant of a material breach of his or her duty of loyalty to the Company, (b)
the commission by Participant of any felony, or a misdemeanor if the misdemeanor involves moral
turpitude or is reasonably likely, in the judgment of the Company to have a material adverse effect
upon the business or reputation of the Company within its industry or among the Company’s suppliers
or among its prospective customers, or (c) Participant’s material failure or refusal to perform his
or her assigned duties. In addition to the foregoing, if the Participant’s Continuous Service is
terminated by the Company or by the Participant for any of the following reasons after a Change in
Control, such Participant shall be deemed to be “Terminated Without Cause”: (a) the relocation of
Participant more than 50 miles from his or her current place of Continuous Service, (b) a material
diminution of the Participant’s duties, responsibilities or title, (c) a material diminution in
Participant’s compensation or benefits; or (d) a material breach of the Company’s obligations to
pay compensation or provide benefits to Participant.



ARTICLE 3.



ELIGIBILITY



     3.1 Incentive Options. Only 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.



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     3.2 Nonqualified Options, Stock Appreciation Rights and Restricted Stock Awards. 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, Stock Appreciation Rights or Restricted Stock Awards under the Plan.



     3.3 Section 162(m) Limitation. In no event shall any Participant be granted Options or Stock
Appreciation Rights in any one calendar year pursuant to which the aggregate number of shares of
Common Stock that may be acquired thereunder exceeds Two Hundred Fifty Thousand (250,000) 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 Restricted Stock Awards in any one calendar year pursuant to
which the aggregate number of shares of Common Stock governed by such Restricted Stock Awards
exceeds Two Hundred Fifty Thousand (250,000), 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.




     The number of shares of Common Stock that may be issued under the Plan shall be One Million
Four Hundred Thousand (1,400,000) shares. For purposes of this limitation, in the event that (a)
all or any portion of any Option granted 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 Option
Agreement or Restricted Stock Award Agreement, the shares of Common Stock allocable to the
unexercised portion of such Option 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, reverse
stock split, reclassification, stock dividend, or other 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, the number and kind of shares and the price per share
subject to outstanding Option Agreements, Stock Appreciation Rights Agreements and Restricted Stock
Award Agreements and the limits on the number of shares under Sections 3.3 and 4.2 all in order to
preserve, as nearly as practical, but not to increase, the benefits to Participants.



ARTICLE 5.



OPTIONS



     5.1 Grant of Stock Options. The Administrator shall have the right to grant pursuant to this
Plan, Options 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 established by the Committee with
respect to one or more Performance Criteria.



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     5.2 Option Agreements. Each Option granted pursuant to this Plan shall be evidenced by an
Option Agreement which shall specify the number of shares subject thereto, vesting provisions
relating to such Option, 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.



     5.3 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% Stockholder on the date of grant, the Exercise Price shall not
be less than 110% of Fair Market Value on the date the Incentive Option is granted. However, an
Option may be granted with an exercise price lower than that set forth in the preceding sentence if
such Option is granted pursuant to an assumption or substitution for another option in a manner
satisfying the provisions of Section 424 of the Code.



     5.4 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 (provided that shares acquired pursuant to the exercise of options granted by the Company
must have been held by the Optionee for the requisite period necessary to avoid a charge to the
Company’s earnings for financial reporting purposes, if any), which surrendered shares shall be
valued at Fair Market Value as of the date of such exercise; (d) a “Net Exercise,”
which provides that, without the payment of cash, the Optionee receives that number of shares of
Common Stock otherwise issuable upon exercise of the Option less that number of shares having an
aggregate trading price on the trading day of exercise equal to the sum of the aggregate Exercise
Price that would have been paid by the Optionee to acquire such shares and the combined income tax
withholding and employment taxes payable by the Optionee, (e) the surrender and cancellation of
then vested options, which shall mean the simultaneous Net Exercise of this Option, as described in
(d) of this Section 5.4, and the surrender of the shares acquired thereby for the purpose of
exercising any additional vested Options that the Optionee holds in accordance with the method
described in (c) of this Section 5.4, to purchase shares of common stock, owned by the Optionee,
which surrendered and cancelled options shall be valued at the Common Stock’s Fair Market Value as
of the date of such exercise minus the exercise price of such option; (f) the cancellation of
indebtedness of the Company to the Optionee; (g) the waiver of compensation due or accrued to the
Optionee for services rendered; (h) 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; (i) 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



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Price directly to the Company; or (j) any combination of the foregoing methods of payment or
any other consideration or method of payment as shall be permitted by applicable law.



     5.5 Term and Termination of Options. Except for issuances of Incentive Options to 10%
Stockholders, 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. With respect to the issuance of Incentive Options to 10% Stockholders, the term and
provisions for termination of each such Incentive Option shall not exceed five (5) years after the
date it is granted.



     5.6 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 established with respect to
one or more Performance Criteria, as shall be determined by the Administrator.



     5.7 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 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 shall not exceed $100,000.



     5.8 Nontransferability of Options. Except as otherwise provided in this Section 5.8, Options
shall not be assignable or transferable except by will, the laws of descent and distribution or
pursuant to a DRO entered by a court in settlement of marital property rights, and during the life
of the Optionee, Options shall be exercisable only by the Optionee. At the discretion of the
Committee and in accordance with rules it establishes from time to time, Optionees may be permitted
to transfer some or all of their Nonqualified Options to one or more “family members,” which is not
a “prohibited transfer for value,” provided that (i) the Optionee (or such Optionee’s estate or
representative) shall remain obligated to satisfy all income or other tax withholding obligations
associated with the exercise of such Nonqualified Option; (ii) the Optionee shall notify the
Company in writing that such transfer has occurred and disclose to the Company the name and address
of the “family member” or “family members” and their relationship to the Optionee, and (iii) such
transfer shall be effected pursuant to transfer documents in a form approved by the Committee.
For purposes of the foregoing, the terms “family members” and “prohibited transfer for value” have
the meaning ascribed to them in the General Instructions to form S-8 (or any successor form)
promulgated under the Securities Act of 1933, as amended.



     5.9 Non-Employee Directors. Each non-employee director of the Company shall automatically be
granted a Nonqualified Option to purchase 30,000 shares of Common Stock (subject to vesting as
provided below) upon his or her commencement of service on the Board of Directors from and after
the date hereof and on the date of every annual meeting of stockholders thereafter shall
automatically be granted a Nonqualified Option to purchase 10,000 shares of the Common Stock
(provided, that on such date he or she is a non-employee of the Company and provided further that
he or she has been a director for at least six months). The exercise price of such Nonqualified
Options, in the case of the initial grant, shall be at the Fair Market Value of the Common Stock on
the date of commencement of such director’s service on the Board of Directors and, thereafter,
shall be at the Fair Market Value of the Common Stock on the date of grant. The Nonqualified
Options granted for the initial election to the board shall vest in four equal annual installments
on the anniversary date of such grant and all other such Nonqualified Options shall



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become exercisable immediately on the date of the grant. The term of such Nonqualified
Options shall be ten years.



     5.10 Rights as a Stockholder. An Optionee or permitted transferee of an Option shall have no
rights or privileges as a stockholder 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.



     5.11 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.



     5.11 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.



RESTRICTED STOCK



     6.1 Issuance of Restricted Stock. The Administrator shall have the right to issue pursuant to
this Plan, at 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 established by the Committee with respect to one or more
Performance Criteria, which require the Committee to certify in writing whether and the extent to
which such performance goals were achieved before such restrictions are considered to have lapsed.



     6.2 Restricted Stock Agreements. A Participant shall have no rights with respect to the
shares of Restricted Stock covered by a Restricted Stock Award Agreement until the Participant has
paid the full Purchase Price, if any, to the Company in the manner set forth in Section 6.3(b)
hereof and has executed and delivered to the Company the applicable Restricted Stock Award
Agreement. Each Restricted Stock Award Agreement shall be in such form, and shall set forth the
Purchase Price, if any, and such other terms, conditions and restrictions of the Restricted Stock
Award Agreement, not inconsistent with the provisions of this Plan, as the Administrator shall,
from time to time, deem desirable. Each such Restricted Stock Award Agreement may be different
from each other Restricted Stock Award Agreement.



6.3 Purchase Price.




          (a) Amount. Restricted Stock may be issued to Participants for such consideration as is
determined by the Administrator in its sole discretion, including no consideration or such minimum
consideration as may be required by applicable law.



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          (b) Payment. Payment of the Purchase Price, if any, 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 Participant (provided that shares acquired pursuant to the
exercise of options granted by the Company shall have been held by the Participant for the
requisite period necessary to avoid a charge to the Company’s earnings for financial reporting
purposes), which surrendered shares shall be valued at Fair Market Value as of the date of such
acceptance; (d) the cancellation of indebtedness of the Company to the Participant; (e) the waiver
of compensation due or accrued to the Participant for services rendered; or (f) any combination of
the foregoing methods of payment or any other consideration or method of payment as shall be
permitted by applicable law.



     6.4 Vesting of Restricted Stock. The Restricted Stock Award Agreement shall specify the date
or dates the performance goals, if any, established by the Committee with respect to one or more
Performance Criteria that must be achieved, and any other conditions on which the Restricted Stock
may vest.



     6.5 Rights as a Stockholder. Upon complying with the provisions of Section 6.2 hereof, a
Participant shall have the rights of a stockholder with respect to the Restricted Stock acquired
pursuant to a Restricted Stock Award Agreement, including voting and dividend rights, subject to
the terms, restrictions and conditions as are set forth in such Restricted Stock Award 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 Restricted Stock Award Agreement.



     6.6 Restrictions. Until vested, shares of Restricted Stock may not be sold, pledged or
otherwise encumbered or disposed of and shall not be assignable or transferable except by will, the
laws of descent and distribution or pursuant to a DRO entered by a court in settlement of marital
property rights, except as specifically provided in the Restricted Stock Award Agreement or as
authorized by the Administrator. 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 Restricted Stock Award Agreement may provide, in the
discretion of the Administrator, that the Company may, at the discretion of the Administrator,
exercise a Repurchase Right to repurchase at the original Purchase Price the shares of Restricted
Stock that have not vested as of the date of termination.



     6.7 Compliance with Code Section 409A. Notwithstanding anything in this Article 6 to the
contrary, all Restricted Stock Award Agreements must be structured to satisfy the requirements of
Code Section 409A, as determined by the Committee.



ARTICLE 7.



RESTRICTED STOCK UNITS



     7.1 Grants of Restricted Stock Units. The Administrator shall have the right to grant
Restricted Stock Units pursuant to this Plan, 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
established by the Committee with respect to one or more Performance Criteria, which require the



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Committee to certify in writing whether and the extent to which such performance goals were
achieved before such restrictions are considered to have lapsed.



     7.2 Restricted Stock Unit Agreements. A Participant shall have no rights with respect to the
Restricted Stock Units covered by a Restricted Stock Unit Award Agreement until the Participant has
executed and delivered to the Company the applicable Restricted Stock Unit Award Agreement. Each
Restricted Stock Unit Award Agreement shall be in such form, and shall set forth the Purchase
Price, if any, and such other terms, conditions and restrictions of the Restricted Stock Unit Award
Agreement, not inconsistent with the provisions of this Plan, as the Administrator shall, from time
to time, deem desirable. Each such Restricted Stock Unit Award Agreement may be different from
each other Restricted Stock Unit Award Agreement.



     7.3 Purchase Price.



          (a) Amount. Restricted Stock Units may be issued to Participants for such consideration as is
determined by the Administrator in its sole discretion, including no consideration or such minimum
consideration as may be required by applicable law.



          (b) Payment. Payment of the Purchase Price, if any, 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 Participant (provided that shares acquired pursuant to the
exercise of options granted by the Company shall have been held by the Participant for the
requisite period necessary to avoid a charge to the Company’s earnings for financial reporting
purposes), which surrendered shares shall be valued at Fair Market Value as of the date of such
acceptance; (d) the cancellation of indebtedness of the Company to the Participant; (e) the waiver
of compensation due or accrued to the Participant for services rendered; or (f) any combination of
the foregoing methods of payment or any other consideration or method of payment as shall be
permitted by applicable law.



     7.4 Vesting of Restricted Stock Units. The Restricted Stock Unity Award Agreement shall
specify the date or dates, the performance goals, if any, established by the Committee with respect
to one or more Performance Criteria that must be achieved, and any other conditions on which the
Restricted Stock Units and may vest.



     7.5 Rights as a Stockholder. Holders of Restricted Stock Units shall not be entitled to vote
or to receive dividends unless or until they become owners of the shares of Common Stock pursuant
to their Restricted Stock Unit Award Agreement and the terms and conditions of the Plan.



     7.6 Restrictions. Until vested, Restricted Stock Units may not be sold, pledged or otherwise
encumbered or disposed of and shall not be assignable or transferable except by will, the laws of
descent and distribution or pursuant to a DRO entered by a court in settlement of marital property
rights, except as specifically provided in the Restricted Stock Unit Award Agreement or as
authorized by the Administrator. 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 Restricted Stock Unit Award Agreement may provide that all
Restricted Stock Units that have not vested as of such date shall be automatically forfeited by the
Participant. However, if, with respect to such unvested Restricted Stock Units the Participant
paid a Purchase Price, the Administrator shall have the right, exercisable at the discretion of the
Administrator, to



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exercise a Repurchase Right to cancel such unvested Restricted Stock Units upon payment to the
Participant of the original Purchase Price. The Participant shall forfeit such unvested Restricted
Stock Units upon the Administrator’s exercise of such right.



     7.7 Compliance with Code Section 409A. Notwithstanding anything in this Article 7 to the
contrary, all Restricted Stock Award Agreements must be structured to satisfy the requirements of
Code Section 409A, as determined by the Committee.



ARTICLE 8.



STOCK APPRECIATION RIGHTS



     8.1 Grant of Stock Appreciation Rights. A Stock Appreciation Right may be granted to any
Participant selected by the Committee. Stock Appreciation Rights may be granted on a basis that
allows for the exercise of the right by the Participant or that provides for the automatic
settlement of the right upon a specified date or event. Stock Appreciation Rights shall be
exercisable or subject to settlement at such time or times and upon conditions as may be approved
by the Committee, provided that the Committee may accelerate the exercisability or settlement of a
Stock Appreciation Right at any time.



     8.2 Stock Appreciation Right Agreements. Each Stock Appreciation Right granted pursuant to
this Plan shall be evidenced by a Stock Appreciation Right Agreement, which shall specify the
number of shares subject thereto, vesting provisions relating to such Stock Appreciation Right and
the Base Value per share. As soon as is practicable following the grant of a Stock Appreciation
Right, a Stock Appreciation Right Agreement shall be duly executed and delivered by or on behalf of
the Company to the Participant to whom such Stock Appreciation Right was granted. Each Stock
Appreciation Right 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.



     8.3 Base Value. The Base Value per share of Common Stock covered by each Stock Appreciation
Right shall be determined by the Administrator, except that the Base Value of a Stock Appreciation
Right shall not be less than 100% of Fair Market Value of the Common Stock on the date the Stock
Appreciation Right is granted.



     8.4 Term and Termination of Stock Appreciation Rights. The term and provisions for
termination of each Stock Appreciation Right shall be fixed by the Administrator, but no Stock
Appreciation Right may be exercisable or subject to settlement more than ten (10) years after the
date it is granted.



     8.5 Vesting of Stock Appreciation Rights. Each Stock Appreciation Right 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
established with respect to one or more Performance Criteria, as shall be determined by the
Administrator. A Stock Appreciation Right will be exercisable or payable at such time or times as
determined by the Committee, provided that the maximum term of a Stock Appreciation Right shall be
ten (10) years from the Date of Grant.



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     8.6 Exercise or Settlement of Stock Appreciation Rights. A Stock Appreciation Right will
entitle the holder, upon exercise or other settlement of the Stock Appreciation Right, as
applicable, to receive an amount determined by multiplying: (i) the excess of the Fair Market Value
of a share of Common Stock on the date of exercise or settlement of the Stock Appreciation Right
over the Base Value of such Stock Appreciation Right, by (ii) the number of shares as to which such
Stock Appreciation Right is exercised or settled. Upon such exercise or settlement, the Company
shall issue to the holder of the Stock Appreciation Right a number of shares of Common Stock
determined by dividing the amount determined under the preceding sentence by the Fair Market Value
of such shares on the date of exercise or settlement, subject to applicable tax withholding
requirements and to such conditions, as are set forth in this Plan and the applicable Stock
Appreciation Rights Award Agreement.



     8.7 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 a Stock Appreciation Right Award that
would have the effect of reducing the base price of such a Stock Appreciation Right previously
granted under the Plan, or otherwise approve any modification to such a Stock Appreciation Right
Award that would be treated as a “repricing” under the then applicable rules, regulations or
listing requirements adopted by the Nasdaq Stock Market.



     8.8 Nontransferability of Stock Appreciation Rights. Except as otherwise provided in this
Section 8.8, Stock Appreciation Rights shall not be assignable or transferable except by will, the
laws of descent and distribution or pursuant to a DRO entered by a court in settlement of marital
property rights, and during the life of the holder of Stock Appreciation Rights, Stock Appreciation
Rights shall be exercisable only by such holder. At the discretion of the Committee and in
accordance with rules it establishes from time to time, holders of Stock Appreciation Rights may be
permitted to transfer some or all of their Stock Appreciation Rights to one or more “family
members,” which is not a “prohibited transfer for value,” provided that (i) the Stock Appreciation
Rights holder (or such holder’s estate or representative) shall remain obligated to satisfy all
income or other tax withholding obligations associated with the exercise of such Stock Appreciation
Right; (ii) the Stock Appreciation Rights holder shall notify the Company in writing that such
transfer has occurred and disclose to the Company the name and address of the “family member” or
“family members” and their relationship to the holder, and (iii) such transfer shall be effected
pursuant to transfer documents in a form approved by the Committee. For purposes of the
foregoing, the terms “family members” and “prohibited transfer for value” have the meaning ascribed
to them in the General Instructions to form S-8 (or any successor form) promulgated under the
Securities Act of 1933, as amended.



     8.9 Rights as a Stockholder. A Stock Appreciation Right holder or permitted transferee of a
Stock Appreciation Right holder shall have no rights or privileges as a stockholder with respect to
any shares covered by a Stock Appreciation Right until such Stock Appreciation Right has been duly
exercised or settled and certificates representing shares issued upon such exercise or settlement
have been issued to such person.



     8.10 Compliance with Code Section 409A. Notwithstanding anything in this Article 8 to the
contrary, all Stock Appreciation Rights Awards must be structured to satisfy the requirements of
Code Section 409A, as determined by the Committee.



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ARTICLE 9.



ADMINISTRATION OF THE PLAN



     9.1 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.
The Board may limit the composition of the Committee to those persons necessary to comply with the
requirements of Section 162(m) of the Code and Section 16 of the Exchange Act. 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.



     9.2 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, Nonqualified Options, Stock Appreciation Rights or Restricted Stock Awards shall be
granted, the number of shares to be represented by each Option or Stock Appreciation Right and the
number of shares of Common Stock to be subject to Restricted Stock Awards, and the consideration to
be received by the Company upon the exercise of such Options or sale of the Restricted Stock or the
Restricted Stock Units governed by such Restricted Stock Awards; (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, Stock Appreciation
Right Agreements and Restricted Stock Award Agreements; (e) to determine the identity or capacity
of any persons who may be entitled to exercise a Participant’s rights under any Option Agreement,
Stock Appreciation Right Agreement or Restricted Stock Award Agreement under the Plan; (f) to
correct any defect or supply any omission or reconcile any inconsistency in the Plan or in any
Option Agreement, Stock Appreciation Right Agreement or Restricted Stock Award Agreement; (g) to
accelerate the vesting of any Option or Stock Appreciation Right Agreement or waive any repurchase
rights of the Company with respect to Restricted Stock Awards; (h) to extend the expiration date of
any Option or Stock Appreciation Right Agreement; (i) to amend outstanding Option Agreements,
Stock Appreciation Right Agreements and Restricted Stock Award Agreements to provide for, among
other things, any change or modification which the Administrator could have included in the
original Agreement or in furtherance of the powers provided for herein; and (j) 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.



     9.3 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.



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ARTICLE 10.



CHANGE IN CONTROL



     10.1 Options and Stock Appreciation Rights. In order to preserve a Participant’s rights with
respect to any outstanding Options and Stock Appreciation Rights in the event of a Change in
Control of the Company:



          (a) Vesting of all outstanding Options and Stock Appreciation Rights shall accelerate
automatically effective as of immediately prior to the consummation of the Change in Control
unless the Options and Stock Appreciation Rights are to be assumed by the acquiring or
successor entity (or parent thereof) or new options or new stock appreciation rights under a new
stock incentive program (“New Incentives”) are to be issued in exchange therefor, as provided in
subsection (b) below.



          (b) Vesting of outstanding Options and Stock Appreciation Right Agreements shall not
accelerate if and to the extent that: (i) the Options and Stock Appreciation Rights (including the
unvested portion thereof) are to be assumed by the acquiring or successor entity (or parent
thereof) or new options and stock appreciation rights of comparable value are to be issued in
exchange therefor pursuant to the terms of the Change in Control transaction, or (ii) the Options
and Stock Appreciation Rights (including the unvested portions thereof) are to be replaced by the
acquiring or successor entity (or parent thereof) with New Incentives containing such terms and
provisions as the Administrator in its discretion may consider equitable. If outstanding Options
or Stock Appreciation Rights are assumed, or if New Incentives of comparable value are issued in
exchange therefor, then each such Option and Stock Appreciation Right or new stock option or new
stock appreciation right shall be appropriately adjusted, concurrently with the Change in Control,
to apply to the number and class of securities or other property that the Optionee or Stock
Appreciation Rights Holder would have received pursuant to the Change in Control transaction in
exchange for the shares issuable upon exercise of the Option or Stock Appreciation Right had the
Option or Stock Appreciation Right been exercised immediately prior to the Change in Control, and
appropriate adjustment also shall be made to the Exercise Price such that the aggregate Exercise
Price of each such Option or new option and the aggregate Base Value of each such Stock
Appreciation Right or new stock appreciation right shall remain the same as nearly as practicable.



          (c) If any Option or Stock Appreciation Right is assumed by an acquiring or successor entity
(or parent thereof) or a New Incentive is issued in exchange therefor pursuant to the terms of a
Change in Control transaction, the vesting of the Option, the Stock Appreciation Right or the New
Incentive shall accelerate if and at such time as the Optionee’s or Stock Appreciation Rights
Holder’s service as an employee, director, officer, consultant or other service provider to the
acquiring or successor entity (or a parent or subsidiary thereof) is Terminated Without Cause
within twelve (12) months following consummation of the Change in Control.



          (d) If vesting of outstanding Options will accelerate pursuant to subsection (a) above, the
Administrator in its discretion may provide, in connection with the Change in Control transaction,
for the purchase or exchange of each Option 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 Optionee would have received pursuant to the Change in Control transaction in exchange for the
shares issuable upon exercise of the Option had the Option been exercised immediately prior to the
Change in Control, and (y) the Exercise Price of the Option.



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          (e) The Administrator shall have the discretion to provide in each Option Agreement and Stock
Appreciation Rights Agreement other terms and conditions that relate to (i) vesting of such Option
or Stock Appreciation Right in the event of a Change in Control, and (ii) assumption of such
Options and Stock Appreciation Rights or issuance of comparable securities or New Incentives in the
event of a Change in Control. The aforementioned terms and conditions may vary in each Option
Agreement and Stock Appreciation Agreement, and may be different from and have precedence over the
provisions set forth in Sections 10.1(a) — 10.1(d) above.



          (f) Outstanding Options and Stock Appreciation Rights shall terminate and cease to be
exercisable upon consummation of a Change in Control except to the extent that the Options or Stock
Appreciation Rights are assumed by the successor entity (or parent thereof) pursuant to the terms
of the Change in Control transaction.



          (g) If outstanding Options or Stock Appreciation Rights will not be assumed by the acquiring
or successor entity (or parent thereof), the Administrator shall cause written notice of a proposed
Change in Control transaction to be given to Optionees and Stock Appreciation Rights Holders not
less than fifteen (15) days prior to the anticipated effective date of the proposed transaction.



     10.2 Restricted Stock Awards. In order to preserve a Participant’s rights with respect to any
outstanding Restricted Stock Awards in the event of a Change in Control of the Company:



          (a) All Repurchase Rights shall automatically terminate immediately prior to the consummation
of such Change in Control and any shares of Restricted Stock or Restricted Stock Units subject to
such terminated Repurchase Rights, or Restricted Stock Units, whether or not subject to such
terminated Repurchase Rights shall immediately vest in full, except to the extent that in
connection with such Change in Control, the acquiring or successor entity (or parent thereof)
provides for the continuance or assumption of Restricted Stock Award Agreements or the substitution
of new agreements of comparable value covering shares of a successor corporation, with appropriate
adjustments as to the number and kind of shares and purchase price.



          (b) If, upon a Change in Control, the acquiring or successor entity (or parent thereof)
assumes such Restricted Stock Award Agreement or substitutes new agreements of comparable value
covering shares of a successor corporation (with appropriate adjustments as to the number and kind
of shares and purchase price), then any Repurchase Right provided for in such Restricted Stock
Award Agreement shall terminate, and the shares of Common Stock subject to the terminated
Repurchase Right or any substituted shares shall immediately vest in full, if the Participant’s
service as an employee, director, officer, consultant or other service provider to the acquiring or
successor entity (or a parent or subsidiary thereof) is Terminated Without Cause within twelve (12)
months following consummation of a Change in Control.



ARTICLE 11.



AMENDMENT AND TERMINATION OF THE PLAN



     11.1 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 Restricted Stock Award Agreement without



16









 






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.



     11.2 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 Restricted Stock
Awards may be granted under the Plan thereafter, but Option Agreements and Restricted Stock Award
Agreements then outstanding shall continue in effect in accordance with their respective terms.



ARTICLE 12.



TAX WITHHOLDING



     12.1 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, with respect to the issuance of
Restricted Stock, the date that the shares are issued, if the Purchaser makes the election set
forth in Code Section 83(b), or, if the Purchaser does not make such election, then, then with
respect to the Restricted Stock Award, as of the date that the applicable restrictions set forth in
the Restricted Stock Award Agreement and the Plan lapse. 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 Awards 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 13



MISCELLANEOUS



     13.1 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.



     13.2 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 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



17









 






be retained as an employee of the Company or any Affiliated Company or to interfere with the
right of the Company or any Affiliated Company to discharge any Participant at any time.



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



     13.4 Annual Reports. During the term of this Plan, if required by applicable law or the rules
and regulations of a national securities exchange, the Company will furnish to each Participant who
does not otherwise receive such materials, copies of all reports, proxy statements and other
communications that the Company distributes generally to its stockholders.




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