EXHIBIT 10.1


 


SUPERGEN, INC.


 


2003 STOCK PLAN


 


(as amended March 13, 2008)


 


1.                Purposes of the Plan.  The purposes of this 2003 Stock Plan are:


 


·                                to attract and retain the best available personnel for positions of
substantial responsibility,


 


·                                to provide additional incentive to Employees, Directors and
Consultants, and


 


·                                to promote the success of the Company’s business.


 


Options granted under the
Plan may be Incentive Stock Options or Nonstatutory Stock Options, as
determined by the Administrator at the time of grant.  Stock Appreciation Rights, Restricted Stock
Units or Stock Purchase Rights may also be granted under the Plan.


 


2.                Definitions.  As used herein, the following definitions
shall apply:


 


(a)           “Administrator” means the
Board or any of its Committees as shall be administering the Plan, in
accordance with Section 4 of the Plan.


 


(b)                   “Annual Revenue” means
the Company’s or a business unit’s net sales for the Fiscal Year, determined in
accordance with generally accepted accounting principles.


 


(c)           “Applicable Laws” means the
requirements relating to the administration of stock option plans under U.S.
state corporate laws, U.S. federal and state securities laws, the Code, any
stock exchange or quotation system on which the Common Stock is listed or
quoted and the applicable laws of any foreign country or jurisdiction where
Options or Stock Purchase Rights are, or will be, granted under the Plan.


 


(d)           “Award” means, individually or
collectively, a grant under the Plan of Options, Stock Purchase Rights,
Restricted Stock Units or Stock Appreciation Rights.


 


(e)           “Award Agreement” means the
written or electronic agreement setting forth the terms and provisions
applicable to each Award granted under the Plan.  The Award Agreement is subject to the terms
and conditions of the Plan.


 


(f)                    “Awarded Stock” means
the Common Stock subject to an Award.


 


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


 

















 


(h)                   “Change in Control”
means the occurrence of any of the following events:


 


(i)      Any “person” (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act) becomes the “beneficial
owner” (as defined in Rule 13d-3 of the Exchange Act), directly or
indirectly, of securities of the Company representing fifty percent (50%) or
more of the total voting power represented by the Company’s then outstanding
voting securities; or


 


(ii)     The consummation of the sale or disposition
by the Company of all or substantially all of the Company’s assets;


 


(iii)    A change in the composition of the Board
occurring within a two-year period, as a result of which fewer than a majority
of the directors are Incumbent Directors. 
“Incumbent Directors” means directors who either (A) are Directors
as of the effective date of the Plan, or (B) are elected, or nominated for
election, to the Board with the affirmative votes of at least a majority of the
Incumbent Directors at the time of such election or nomination (but will not
include an individual whose election or nomination is in connection with an
actual or threatened proxy contest relating to the election of directors to the
Company); or


 


(iv)    The consummation of a merger or
consolidation of the Company with any other corporation, other than a merger or
consolidation which would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity or its parent) at least fifty percent (50%) of the total voting power
represented by the voting securities of the Company or such surviving entity or
its parent outstanding immediately after such merger or consolidation.


 


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


 


(j)                    “Committee” means a
committee of Directors appointed by the Board in accordance with Section 4
of the Plan.


 


(k)                   “Common Stock” means
the common stock of the Company.


 


(l)                    “Company” means SuperGen, Inc., a Delaware corporation.


 


(m)                  “Consultant” means any
natural person, including an advisor, engaged by the Company or a Parent or
Subsidiary to render services to such entity.


 


(n)                   “Director” means a
member of the Board.


 


(o)           “Disability” means total and
permanent disability as defined in Section 22(e)(3) of the Code.


 


(p)                   “Earnings Per Share”
means as to any Fiscal Year, the Company’s or a business unit’s Net Income,
divided by a weighted average number of common shares outstanding and dilutive
common equivalent shares deemed outstanding, determined in accordance with
generally accepted accounting principles.


 


(q)                   “Employee” means any
person, including Officers and Directors, employed by the Company or any Parent
or Subsidiary of the Company.  A Service
Provider shall not cease to be an Employee in the case of (i) any leave of
absence approved by the Company or (ii) transfers between locations of the
Company or between the Company, its Parent, any Subsidiary, or any
successor.  For purposes of Incentive


 


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Stock Options, no such leave
may exceed ninety days, unless reemployment upon expiration of such leave is
guaranteed by statute or contract.  If
reemployment upon expiration of a leave of absence approved by the Company is
not so guaranteed, then three (3) months following the 91st day of such leave any Incentive Stock Option
held by the Participant shall cease to be treated as an Incentive Stock Option
and shall be treated for tax purposes as a Nonstatutory Stock Option.  Neither service as a Director nor payment of
a director’s fee by the Company shall be sufficient to constitute “employment”
by the Company.


 


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


 


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


 


(i)            If the Common Stock is listed on any
established stock exchange or a national market system, including without
limitation the Nasdaq National Market or The Nasdaq SmallCap Market of The
Nasdaq Stock Market, its Fair Market Value shall be the closing sales price for
such stock (or the closing bid, if no sales were reported) as quoted on such
exchange or system on the day of determination, as reported in The Wall Street Journal or such other source as the
Administrator deems reliable;


 


(ii)           If the Common Stock is regularly
quoted by a recognized securities dealer but selling prices are not reported,
the Fair Market Value of a Share of Common Stock shall be the mean between the
high bid and low asked prices for the Common Stock on the day of determination,
as reported in The Wall Street Journal or such
other source as the Administrator deems reliable; or


 


(iii)          In the absence of an established
market for the Common Stock, the Fair Market Value shall be determined in good
faith by the Administrator.


 


(t)                    “Fiscal Year” means a
fiscal year of the Company.


 


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


 


(v)                   “Net Income” means as
to any Fiscal Year, the income after taxes of the Company for the Fiscal Year
determined in accordance with generally accepted accounting principles.


 


(w)                  “Nonstatutory Stock Option”
means an Option not intended to qualify as an Incentive Stock Option.


 


(x)                    “Notice of Grant”
means a written or electronic notice evidencing certain terms and conditions of
an individual Option or Stock Purchase Right grant.  The Notice of Grant is part of the Option
Agreement.


 


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


 


(z)                    “Option” means a
stock option granted pursuant to the Plan.


 


(aa)                 “Option Agreement” means
an agreement between the Company and an Participant evidencing the terms and
conditions of an individual Option grant. 
The Option Agreement is subject to the terms and conditions of the Plan.


 


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


 


(cc)         “Participant” means the holder
of an outstanding Award granted under the Plan.


 


(dd)                 “Performance Goals”
means the goal(s) (or combined goal(s)) determined by the Administrator
(in its discretion) to be applicable to a Participant with respect to an
Award.  As determined by the
Administrator, the Performance Goals applicable to an Award may provide for a
targeted level or levels of achievement using one or more of the following
measures: (a) Annual Revenue, (b) Cash Position, (c) Earnings
Per Share, (d) Net Income, (e) Operating Cash Flow, (f) Operating
Income, (g) Return on Assets, (h) Return on Equity, (i) Return
on Sales, and (j) Total Stockholder Return.  The Performance Goals may differ from
Participant to Participant and from Award to Award.  The Administrator shall appropriately adjust
any evaluation of performance under a Performance Goal to exclude (i) any
extraordinary non-recurring items as described in Accounting Principles Board
Opinion No. 30 and/or in management’s discussion and analysis of financial
conditions and results of operations appearing in the Company’s annual report
to stockholders for the applicable year, or (ii) the effect of any changes
in accounting principles affecting the Company’s or a business units’ reported
results.


 


(ee)                 “Plan” means this 2003
Stock Plan.


 


(ff)                   “Restricted Stock”
means shares of Common Stock acquired pursuant to a grant of Stock Purchase
Rights under Section 12 of the Plan.


 


(gg)         “Restricted Stock
Purchase Agreement” means a written agreement between the Company and the
Participant evidencing the terms and restrictions applying to stock purchased
under a Stock Purchase Right.  The
Restricted Stock Purchase Agreement is subject to the terms and conditions of
the Plan and the Notice of Grant.


 


(hh)         “Return on Assets”
means the percentage equal to the Company’s or a business unit’s Operating
Income before incentive compensation, divided by average net Company or
business unit, as applicable, assets, determined in accordance with generally
accepted accounting principles.


 


(ii)           “Return on
Equity” means the percentage equal to the Company’s Net Income divided by
average stockholder’s equity, determined in accordance with generally accepted
accounting principles.


 


(jj)                   “Return on Sales”
means the percentage equal to the Company’s or a business unit’s Operating
Income before incentive compensation, divided by the Company’s or the business
unit’s, as applicable, revenue, determined in accordance with generally
accepted accounting principles.


 


(kk)                 “Rule 16b-3” means Rule 16b-3
of the Exchange Act or any successor to Rule 16b-3, as in effect when
discretion is being exercised with respect to the Plan.


 


(ll)                   “Section 16(b) “
means Section 16(b) of the Exchange Act.


 


(mm)               “Service Provider” means
an Employee, Director or Consultant.


 


(nn)         “Share” means a share of the
Common Stock, as adjusted in accordance with Section 16 of the Plan.


 


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(oo)                 “Stock Appreciation Right”
or “SAR” means an Award granted pursuant to Section 13 hereof.


 


(pp)                 “Stock Purchase Right”
means the right to purchase Common Stock pursuant to Section  12 of
the Plan, as evidenced by a Notice of Grant.


 


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


 


(rr)                   “Total Stockholder Return”
means the total return (change in share price plus reinvestment of any
dividends) of a Share.


 


3.                     Stock Subject to the Plan.  Subject to the provisions of Section 16 of the Plan, the maximum aggregate
number of Shares that may be optioned and sold under the Plan is 7,500,000
Shares plus (a) any Shares which
have been reserved but not issued under the Company’s 1993 Stock Option Plan
(the “1993 Plan”) as of the expiration of the 1993 Plan on December 3,
2003 and (b) following the expiration of the 1993 Plan, any Shares which
would otherwise have been returned to the 1993 Plan as a result of termination
of options or repurchase of Shares issued under the 1993 Plan.  The Shares may be authorized, but
unissued, or reacquired Common Stock.


 


Any Shares subject to Awards
shall be counted against the numerical limits of this Section 3 as one
Share for every Share subject thereto. 
If an Award expires or becomes unexercisable without having been
exercised in full, or, with respect to Restricted Stock or Restricted Stock
Units, is forfeited to or repurchased by the Company, the unpurchased Shares
(or for Awards other than Options and SARs, the forfeited or repurchased
shares) which were subject thereto shall become available for future grant or
sale under the Plan (unless the Plan has terminated).  With respect to SARs, only Shares actually
issued pursuant to an SAR shall cease to be available under the Plan.  Shares that have actually been issued under
the Plan under any Award shall not be returned to the Plan and shall not become
available for future distribution under the Plan; provided, however, that if
Shares of Restricted Stock or Restricted Stock Units are repurchased by the
Company at their original purchase price or are forfeited to the Company, such
Shares shall become available for future grant under the Plan.  Shares used to pay the exercise price of an
Option shall become available for future grant or sale under the Plan.  Shares used to satisfy tax withholding
obligations shall become available for future grant or sale under the Plan.


 


4.                     Administration
of the Plan.


 


(a)                   Procedure.


 


(i)            Multiple Administrative Bodies.  Different Committees with respect to
different groups of Service Providers may administer the Plan.


 


(ii)           Section 162(m).  To the extent that the Administrator
determines it to be desirable to qualify Options granted hereunder as “performance-based
compensation” within the meaning of Section 162(m) of the Code, the
Plan shall be administered by a Committee of two or more “outside directors”
within the meaning of Section 162(m) of the Code.


 


(iii)          Rule 16b-3.  To the extent desirable to qualify
transactions hereunder as exempt under Rule 16b-3, the transactions
contemplated hereunder shall be structured to satisfy the requirements for
exemption under Rule 16b-3.


 


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(iv)          Other Administration.  Other than as provided above, the Plan shall
be administered by (A) the Board or (B) a Committee, which committee
shall be constituted to satisfy Applicable Laws.


 


(b)                   Powers of the
Administrator.  Subject to the
provisions of the Plan, and in the case of a Committee, subject to the specific
duties delegated by the Board to such Committee, the Administrator shall have
the authority, in its discretion:


 


(i)            to determine the Fair Market Value;


 


(ii)           to select the Service Providers to
whom Awards may be granted hereunder;


 


(iii)          to determine the number of shares of
Common Stock to be covered by each Award granted hereunder;


 


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


 


(v)            to determine the terms and conditions, not
inconsistent with the terms of the Plan, of any Award granted hereunder.  Such terms and conditions include, but are
not limited to, the exercise price, the time or times when Options, Stock
Purchase Rights or Stock Appreciation Rights may be exercised (which may be
based on performance criteria), any vesting acceleration or waiver of
forfeiture restrictions, and any restriction or limitation regarding any Award
or the shares of Common Stock relating thereto, based in each case on such
factors as the Administrator, in its sole discretion, shall determine;


 


(vi)          to construe and interpret the terms of
the Plan and Awards granted pursuant to the Plan;


 


(vii)         to prescribe, amend and rescind rules and
regulations relating to the Plan, including rules and regulations relating
to sub-plans established for the purpose of satisfying applicable foreign laws;


 


(viii)        to modify or amend each Award (subject
to Section 18(c) of
the Plan), including the discretionary authority to extend the post-termination
exercisability period of Options and SARs longer than is otherwise provided for
in the Plan;


 


(ix)           to allow Participants to satisfy
withholding tax obligations by electing to have the Company withhold from the
Shares to be issued upon exercise or vesting of an Award that number of Shares
having a Fair Market Value equal to the minimum amount required to be withheld (but
no more).  The Fair Market Value of any
Shares to be withheld shall be determined on the date that the amount of tax to
be withheld is to be determined.  All
elections by a Participant to have Shares withheld for this purpose shall be
made in such form and under such conditions as the Administrator may deem
necessary or advisable;


 


(x)            to authorize any person to execute
on behalf of the Company any instrument required to effect the grant of an
Award previously granted by the Administrator;


 


(xi)           to make all other determinations
deemed necessary or advisable for administering the Plan.


 


(c)                   Effect of Administrator’s Decision.  The Administrator’s decisions, determinations
and interpretations shall be final and binding on all Participants and any
other holders of Awards.


 


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5.                     Eligibility.  Awards may be granted to Service Providers;
provided, however, that Incentive Stock Options may be granted only to
Employees.


 


6.                     Limitations.


 


(a)                   Each Option shall be designated
in the Option Agreement as either an Incentive Stock Option or a Nonstatutory
Stock Option.  However, notwithstanding
such designation, to the extent that the aggregate Fair Market Value of the
Shares with respect to which Incentive Stock Options are exercisable for the
first time by the Participant during any calendar year (under all plans of the
Company and any Parent or Subsidiary) exceeds $100,000, such Options shall be
treated as Nonstatutory Stock Options. 
For purposes of this Section 6(a), Incentive Stock Options shall be
taken into account in the order in which they were granted.  The Fair Market Value of the Shares shall be
determined as of the time the Option with respect to such Shares is granted.


 


(i)        Neither the Plan nor any Award shall
confer upon an Participant any right with respect to continuing the Participant’s
relationship as a Service Provider with the Company, nor shall they interfere
in any way with the Participant’s right or the Company’s right to terminate
such relationship at any time, with or without cause.


 


7.             Code Section 162(m) Provisions.


 


(a)           Option and SAR
Annual Share Limit.  No Participant
shall be granted, in any Fiscal Year, Options and Stock Appreciation Rights to
purchase more than 1,000,000  Shares;
provided, however, that such limit shall be 2,000,000  Shares
in connection with the Participant’s initial service.


 


(b)           Restricted Stock, Restricted Stock
Units and Performance Share Annual Limit. 
No Participant shall be granted, in any Fiscal Year, more than 500,000 Shares
of Restricted Stock, subject to Stock Purchase Rights or Restricted Stock
Units; provided, however, that such limit shall be 1,000,000  Shares in connection with the Participant’s initial
service.


 


(c)           Section 162(m) Performance
Restrictions.  For purposes of
qualifying grants of Restricted Stock subject to Stock Purchase Rights or
Restricted Stock Units as “performance-based compensation” under Section 162(m) of
the Code, the Administrator, in its discretion, may set restrictions based upon
the achievement of Performance Goals. 
The Performance Goals shall be set by the Administrator on or before the
latest date permissible to enable the Restricted Stock subject to Stock
Purchase Rights or Restricted Stock Units to qualify as “performance-based
compensation” under Section 162(m) of the Code.  In granting Restricted Stock subject to Stock
Purchase Rights or Restricted Stock Units which are intended to qualify under Section 162(m) of
the Code, the Administrator shall follow any procedures determined by it from
time to time to be necessary or appropriate to ensure qualification of the
Award under Section 162(m) of the Code (e.g., in determining the
Performance Goals).


 


(d)           Changes in
Capitalization.  The numerical
limitations in Sections 7(a) and (b) shall be adjusted
proportionately in connection with any change in the Company’s capitalization
as described in Section 16(a).


 


8.                     Term of Plan.  Subject to Section 22 of the Plan, the
Plan shall become effective upon its adoption by the Board.  It shall continue in effect for a term of ten
(10) years unless terminated earlier under Section 18 of the Plan.


 


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9.                     Term of Option.  The term of each Option shall be stated in
the Option Agreement.  In the case of an
Incentive Stock Option, the term shall be ten (10) years from the date of
grant or such shorter term as may be provided in the Option Agreement.  Moreover, in the case of an Incentive Stock
Option granted to an Participant who, at the time the Incentive Stock Option is
granted, owns stock representing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company or any Parent or
Subsidiary, the term of the Incentive Stock Option shall be five (5) years
from the date of grant or such shorter term as may be provided in the Option
Agreement.


 


10.                   Option
Exercise Price and Consideration.


 


(a)                   Exercise Price.  The per share exercise price for the Shares
to be issued pursuant to exercise of an Option shall be determined by the
Administrator, subject to the following:


 


(i)      In the case of an Incentive Stock Option


 


(A)  granted to an Employee who, at the time the
Incentive Stock Option is granted, owns stock representing more than ten
percent (10%) of the voting power of all classes of stock of the Company or any
Parent or Subsidiary, the per Share exercise price shall be no less than 110%
of the Fair Market Value per Share on the date of grant.


 


(B)   granted to any Employee other than an
Employee described in paragraph (A) immediately above, the per Share
exercise price shall be no less than 100% of the Fair Market Value per Share on
the date of grant.


 


(ii)     In the case of a Nonstatutory Stock Option,
the per Share exercise price shall be determined by the Administrator.  In the case of a Nonstatutory Stock Option
intended to qualify as “performance-based compensation” within the meaning of Section 162(m) of
the Code, the per Share exercise price shall  be
no less than 100% of the Fair Market Value per Share on the date of grant.


 


(b)           Notwithstanding the
foregoing, Options may be granted with a per Share exercise price of less than
100% of the Fair Market Value per Share on the date of grant pursuant to a
merger or other corporate transaction.


 


(c)           No Repricing.  The exercise price for an Option may not be
reduced without the consent of the Company’s stockholders.  This shall include, without limitation, a
repricing of the Option as well as an Option exchange program whereby the
Participant agrees to cancel an existing Option in exchange for an Option, SAR
or other Award.


 


(d)                   Waiting Period and
Exercise Dates.  At the time an
Option is granted, the Administrator shall fix the period within which the
Option may be exercised and shall determine any conditions that must be
satisfied before the Option may be exercised.


 


(e)                   Form of Consideration.  The Administrator shall determine the
acceptable form of consideration for exercising an Option, including the method
of payment.  In the case of an Incentive
Stock Option, the Administrator shall determine the acceptable form of
consideration at the time of grant.  Such
consideration may consist entirely of:


 


(i)      cash;


 


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(ii)     check;


 


(iii)    promissory note;


 


(iv)    other Shares which, in the case of Shares
acquired directly or indirectly from the Company, (A) have been owned by
the Participant for more than six (6) months on the date of surrender,
and (B) have a Fair Market Value on the date of surrender equal to the
aggregate exercise price of the Shares as to which said Option shall be
exercised;


 


(v)     consideration received by the Company under
a cashless exercise program implemented by the Company in connection with the
Plan;


 


(vi)    a reduction in the amount of any Company
liability to the Participant, including any liability attributable to the
Participant’s participation in any Company-sponsored deferred compensation
program or arrangement;


 


(vii)   any combination of the foregoing methods of
payment; or


 


(viii)  such other consideration and method of payment
for the issuance of Shares to the extent permitted by Applicable Laws.


 


11.                   Exercise
of Option.


 


(a)                   Procedure for Exercise;
Rights as a Stockholder.  Any Option
granted hereunder shall be exercisable according to the terms of the Plan and
at such times and under such conditions as determined by the Administrator and
set forth in the Option Agreement. 
Unless the Administrator provides otherwise, vesting of Options granted
hereunder shall be suspended during any unpaid leave of absence.  An Option may not be exercised for a fraction
of a Share.


 


An Option shall be deemed
exercised when the Company receives: (i) written or electronic notice of exercise
(in accordance with the Option Agreement) from the person entitled to exercise
the Option, and (ii) full payment for the Shares with respect to which the
Option is exercised.  Full payment may
consist of any consideration and method of payment authorized by the
Administrator and permitted by the Option Agreement and the Plan.  Shares issued upon exercise of an Option
shall be issued in the name of the Participant or, if requested by the
Participant, in the name of the Participant and his or her spouse.  Until the Shares are issued (as evidenced by
the appropriate entry on the books of the Company or of a duly authorized
transfer agent of the Company), no right to vote or receive dividends or any
other rights as a stockholder shall exist with respect to the Optioned Stock,
notwithstanding the exercise of the Option. 
The Company shall issue (or cause to be issued) such Shares promptly
after the Option is exercised.  No adjustment
will be made for a dividend or other right for which the record date is prior
to the date the Shares are issued, except as provided in Section 16 of the
Plan.


 


Exercising an Option in any
manner shall decrease the number of Shares thereafter available, both for
purposes of the Plan and for sale under the Option, by the number of Shares as
to which the Option is exercised.


 


(b)                   Termination of
Relationship as a Service Provider. 
If an Participant ceases to be a Service Provider, other than upon the
Participant’s death or Disability, the Participant may exercise his or her
Option within such period of time as is specified in the Option Agreement to
the extent that the Option is 


 


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vested on the date of
termination (but in no event later than the expiration of the term of such
Option as set forth in the Option Agreement). 
In the absence of a specified time in the Option Agreement, the Option
shall remain exercisable for three (3) months following the Participant’s
termination.  If, on the date of
termination, the Participant is not vested as to his or her entire Option, the
Shares covered by the unvested portion of the Option shall revert to the
Plan.  If, after termination, the
Participant does not exercise his or her Option within the time specified by
the Administrator, the Option shall terminate, and the Shares covered by such
Option shall revert to the Plan.


 


(c)                   Disability of Participant.  If an Participant ceases to be a Service
Provider as a result of the Participant’s Disability, the Participant may
exercise his or her Option within such period of time as is specified in the
Option Agreement to the extent the Option is vested on the date of termination
(but in no event later than the expiration of the term of such Option as set
forth in the Option Agreement).  In the
absence of a specified time in the Option Agreement, the Option shall remain
exercisable for twelve (12) months following the Participant’s
termination.  If, on the date of
termination, the Participant is not vested as to his or her entire Option, the
Shares covered by the unvested portion of the Option shall revert to the
Plan.  If, after termination, the
Participant does not exercise his or her Option within the time specified
herein, the Option shall terminate, and the Shares covered by such Option shall
revert to the Plan.


 


(d)                   Death of Participant.  If an Participant dies while a Service
Provider, the Option may be exercised following the Participant’s death within
such period of time as is specified in the Option Agreement to the extent that
the Option is vested on the date of death (but in no event may the option be
exercised later than the expiration of the term of such Option as set forth in
the Option Agreement), by the Participant’s designated beneficiary, provided
such beneficiary has been designated prior to Participant’s death in a form
acceptable to the Administrator.  If no
such beneficiary has been designated by the Participant, then such Option may
be exercised by the personal representative of the Participant’s estate or by
the person(s) to whom the Option is transferred pursuant to the
Participant’s will or in accordance with the laws of descent and
distribution.  In the absence of a
specified time in the Option Agreement, the Option shall remain exercisable for
twelve (12) months following Participant’s death.  If, at the time of death, Participant is not
vested as to his or her entire Option, the Shares covered by the unvested
portion of the Option shall immediately revert to the Plan.  If the Option is not so exercised within the
time specified herein, the Option shall terminate, and the Shares covered by
such Option shall revert to the Plan.


 


12.                   Stock
Purchase Rights.


 


(a)                   Rights to Purchase.  Stock Purchase Rights may be issued either
alone, in addition to, or in tandem with other awards granted under the Plan
and/or cash awards made outside of the Plan. 
After the Administrator determines that it will offer Stock Purchase
Rights under the Plan, it shall advise the offeree in writing or
electronically, by means of a Notice of Grant, of the terms, conditions and
restrictions related to the offer, including the number of Shares that the
offeree shall be entitled to purchase, the price to be paid, and the time
within which the offeree must accept such offer.  The offer shall be accepted by execution of a
Restricted Stock Purchase Agreement in the form determined by the
Administrator.


 


(b)                   Repurchase Option.  Unless the Administrator determines
otherwise, the Restricted Stock Purchase Agreement shall grant the Company a
repurchase option exercisable upon the voluntary or involuntary termination of
the purchaser’s service with the Company for any reason (including death or
Disability).  The purchase price for
Shares repurchased pursuant to the Restricted Stock Purchase Agreement shall be
the original price paid by the purchaser and may be paid by cancellation of any
indebtedness of the purchaser to the Company. 
The repurchase option shall lapse at a rate determined by the
Administrator.


 


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(c)                   Other Provisions.  The Restricted Stock Purchase Agreement shall
contain such other terms, provisions and conditions not inconsistent with the
Plan as may be determined by the Administrator in its sole discretion.


 


(d)                   Rights as a Stockholder.  Once the Stock Purchase Right is exercised,
the purchaser shall have the rights equivalent to those of a stockholder, and
shall be a stockholder when his or her purchase is entered upon the records of
the duly authorized transfer agent of the Company.  No adjustment will be made for a dividend or
other right for which the record date is prior to the date the Stock Purchase
Right is exercised, except as provided in Section 16 of the Plan.


 


13.           Stock Appreciation Rights.


 


(a)           Grant of SARs.  Subject to the terms and conditions of the
Plan, SARs may be granted to Participants at any time and from time to time as
shall be determined by the Administrator, in its sole discretion.  Subject to the provisions of Section 7(a),
the Administrator shall have complete discretion to determine the number of
SARs granted to any Participant.


 


(b)           Exercise Price
and other Terms.  The per share
exercise price for the Shares to be issued pursuant to exercise of an SAR shall
be determined by the Administrator and shall be no less than 100% of the Fair
Market Value per share on the date of grant. 
Otherwise, subject to Section 7(a) of the Plan, the
Administrator, subject to the provisions of the Plan, shall have complete
discretion to determine the terms and conditions of SARs granted under the
Plan; provided, however, that no SAR may have a term of more than ten (10) years
from the date of grant.


 


(c)           No Repricing.  The exercise price for the Shares or cash to
be issued pursuant to an already granted SAR may not be changed without the
consent of the Company’s stockholders. 
This shall include, without limitation, a repricing of the SAR as well
as an SAR exchange program whereby the Participant agrees to cancel an existing
SAR in exchange for an Option, SAR or other Award.


 


(d)           Payment of SAR
Amount.  Upon exercise of a SAR, a
Participant shall be entitled to receive payment from the Company in an amount
determined by multiplying:


 


(i)      The difference between the Fair Market
Value of a Share on the date of exercise over the exercise price; times


 


(ii)     The number of Shares with respect to which
the SAR is exercised.


 


(e)           Payment upon
Exercise of SAR.  Payment for a SAR
shall only be made in Shares.


 


(f)            SAR Agreement.  Each SAR grant shall be evidenced by an Award
Agreement that shall specify the exercise price, the term of the SAR, the
conditions of exercise, whether it may be settled in cash, Shares or a
combination thereof, and such other terms and conditions as the Administrator,
in its sole discretion, shall determine.


 


(g)           Expiration of
SARs.  A SAR granted under the Plan
shall expire upon the date determined by the Administrator, in its sole
discretion, and set forth in the Award Agreement.


 


(h)           Termination of
Relationship as a Service Provider. 
If a Participant ceases to be a Service Provider, other than upon the
Participant’s death or Disability termination, the Participant may exercise his
or 


 


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her SAR within such period
of time as is specified in the SAR Agreement to the extent that the SAR is
vested on the date of termination (but in no event later than the expiration of
the term of such SAR as set forth in the SAR Agreement).  In the absence of a specified time in the SAR
Agreement, the SAR shall remain exercisable for three months following the
Participant’s termination.  If, on the
date of termination, the Participant is not vested as to his or her entire SAR,
the Shares covered by the unvested portion of the SAR shall revert to the Plan.  If, after termination, the Participant does
not exercise his or her SAR within the time specified by the Administrator, the
SAR shall terminate, and the Shares covered by such SAR shall revert to the
Plan.


 


(i)            Disability.  If a Participant ceases to be a Service
Provider as a result of the Participant’s Disability, the Participant may
exercise his or her SAR within such period of time as is specified in the SAR
Agreement to the extent the SAR is vested on the date of termination (but in no
event later than the expiration of the term of such SAR as set forth in the SAR
Agreement).  In the absence of a
specified time in the SAR Agreement, the SAR shall remain exercisable for
twelve (12) months following the Participant’s termination.  If, on the date of termination, the
Participant is not vested as to his or her entire SAR, the Shares covered by
the unvested portion of the SAR shall revert to the Plan.  If, after termination, the Participant does
not exercise his or her SAR within the time specified herein, the SAR shall
terminate, and the Shares covered by such SAR shall revert to the Plan.


 


(j)            Death of
Participant.  If a Participant dies
while a Service Provider, the SAR may be exercised following the Participant’s
death within such period of time as is specified in the SAR Agreement (but in
no event may the SAR be exercised later than the expiration of the term of such
SAR as set forth in the SAR Agreement), by the Participant’s designated
beneficiary, provided such beneficiary has been designated prior to Participant’s
death in a form acceptable to the Administrator.  If no such beneficiary has been designated by
the Participant, then such SAR may be exercised by the personal representative
of the Participant’s estate or by the person(s) to whom the SAR is
transferred pursuant to the Participant’s will or in accordance with the laws
of descent and distribution.  In the
absence of a specified time in the SAR Agreement, the SAR shall remain
exercisable for twelve (12) months following Participant’s death.  If the SAR is not so exercised within the
time specified herein, the SAR shall terminate, and the Shares covered by such
SAR shall revert to the Plan.


 


14.           Restricted Stock Units.


 


(a)           Grant.  Restricted Stock Units may be granted at any
time and from time to time as determined by the Administrator.  Subject to Section 7(b) hereof, the
Administrator shall have complete discretion to determine (i) the number
of Shares subject to a Restricted Stock Unit award granted to any Participant,
and (ii) the conditions that must be satisfied, which typically will be
based principally or solely on continued service but may include a
performance-based component, upon which is conditioned the grant or vesting of
Restricted Stock Units.  Restricted Stock
Units shall be granted in the form of units to acquire Shares.  Each such unit shall be the equivalent of one
Share for purposes of determining the number of Shares subject to an
Award.  Until the Shares are issued, no
right to vote or receive dividends or any other rights as a stockholder shall
exist with respect to the units to acquire Shares.


 


(b)           Vesting Criteria and Other Terms.  The Administrator shall set vesting criteria
in its discretion, which, depending on the extent to which the criteria are
met, will determine the number of Restricted Stock Units that will be paid out
to the Participant.  The Administrator
may set vesting criteria based upon the achievement of Company-wide, business
unit, or individual goals (including, but not limited to, continued
employment), or any other basis determined by the Administrator in its discretion.


 


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(c)           Earning Restricted Stock Units.  Upon meeting the applicable vesting criteria,
the Participant shall be entitled to receive a payout as specified in the
Restricted Stock Unit Award Agreement.  Notwithstanding
the foregoing, at any time after the grant of Restricted Stock Units, the
Administrator, in its sole discretion, may reduce or waive any vesting criteria
that must be met to receive a payout.


 


(d)           Form and
Timing of Payment.  Payment of earned
Restricted Stock Units shall be made as soon as practicable after the date(s) set
forth in the Restricted Stock Unit Award Agreement.  The Administrator shall pay earned Restricted
Stock Units in Shares.


 


(e)                   Cancellation.  On the date set forth in the Restricted Stock
Unit Award Agreement, all unearned Restricted Stock Units shall be forfeited to
the Company.


 


15.                   Non-Transferability of
Awards.  Unless determined otherwise
by the Administrator, an Award may not be sold, pledged, assigned,
hypothecated, transferred, or disposed of in any manner other than by will or
by the laws of descent or distribution and may be exercised, during the
lifetime of the recipient, only by the recipient.  If the Administrator makes an Award
transferable, it may only be transferable for no consideration to transferees
permitted pursuant to the Securities & Exchange Commission’s General
Instructions to the Form S-8 Registration Statement and such Award shall
contain such additional terms and conditions as the Administrator deems
appropriate.


 


16.                   Adjustments Upon Changes
in Capitalization, Merger or Change in Control.


 


(a)                   Changes in Capitalization.  Subject to any required action by the
stockholders of the Company, the number of shares of Common Stock covered by
each outstanding Award, the number of shares of Common Stock which have been
authorized for issuance under the Plan but as to which no Awards have yet been
granted or which have been returned to the Plan upon cancellation or expiration
of an Award, as well as the price per share of Common Stock covered by each
such outstanding Award and the 162(m) fiscal year share issuance limits
under Sections 7(a) and (b) hereof shall be proportionately adjusted
for any increase or decrease in the number of issued shares of Common Stock
resulting from a stock split, reverse stock split, stock dividend, combination
or reclassification of the Common Stock, or any other increase or decrease in
the number of issued shares of Common Stock effected without receipt of
consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been “effected
without receipt of consideration.”  Such
adjustment shall be made by the Compensation Committee, whose determination in
that respect shall be final, binding and conclusive.  Except as expressly provided herein, no
issuance by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no adjustment
by reason thereof shall be made with respect to, the number or price of shares
of Common Stock subject to an Award.


 


(b)                   Dissolution or Liquidation.  In the event of the proposed dissolution or
liquidation of the Company, the Administrator shall notify each Participant as
soon as practicable prior to the effective date of such proposed
transaction.  The Administrator in its
discretion may provide for a Participant to have the right to exercise his or
her Option or SAR until ten (10) days prior to such transaction as to all
of the Awarded Stock covered thereby, including Shares as to which the Award
would not otherwise be exercisable.  In
addition, the Administrator may provide that any Company repurchase option or
forfeiture rights applicable to any Award shall lapse 100%, and that any Award
vesting shall accelerate 100%, provided the proposed dissolution or liquidation
takes place at the time and in the manner contemplated.  To the extent it has not been previously
exercised (with respect to Options and SARs) or vested (with respect to other
Awards), an Award will terminate immediately prior to the consummation of such
proposed action.


 


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(c)                   Merger or Change in
Control.


 


(i)      Stock Options, Stock Purchase Rights
and SARs.  In the event of a merger
of the Company with or into another corporation, or a Change in Control, each
outstanding Option, Stock Purchase Right and SAR shall be assumed or an
equivalent option, right or SAR substituted by the successor corporation or a
Parent or Subsidiary of the successor corporation.  In the event that the successor corporation
refuses to assume or substitute for the Option, Stock Purchase Right or SAR,
the Participant shall fully vest in and have the right to exercise the Option,
Stock Purchase Right or SAR as to all of the Awarded Stock, including Shares as
to which it would not otherwise be vested or exercisable.  If an Option, Stock Purchase Right or SAR
becomes fully vested and exercisable in lieu of assumption or substitution in
the event of a merger or Change of Control, the Administrator shall notify the
Participant in writing or electronically that the Option, Stock Purchase Right
or SAR shall be fully vested and exercisable for a period of fifteen (15) days
from the date of such notice, and the Option, Stock Purchase Right or SAR shall
terminate upon the expiration of such period. 
For the purposes of this paragraph, the Option, Stock Purchase Right or
SAR shall be considered assumed if, following the merger or Change of Control,
the option, right or stock appreciation right confers the right to purchase or
receive, for each Share of Awarded Stock subject to the Option, Stock Purchase
Right or SAR immediately prior to the merger or Change of Control, the
consideration (whether stock, cash, or other securities or property) received
in the merger or Change of Control by holders of Common Stock for each Share
held on the effective date of the transaction (and if holders were offered a
choice of consideration, the type of consideration chosen by the holders of a
majority of the outstanding Shares); provided, however, that if such
consideration received in the merger or Change of Control is not solely common
stock of the successor corporation or its Parent, the Administrator may, with
the consent of the successor corporation, provide for the consideration to be
received upon the exercise of the Option, Stock Purchase Right or SAR, for each
Share of Awarded Stock subject to the Option, Stock Purchase Right or SAR, to
be solely common stock of the successor corporation or its Parent equal in fair
market value to the per share consideration received by holders of Common Stock
in the merger or Change of Control.


 


(ii)     Restricted Stock and Restricted Stock
Units.  In the event of a Change of
Control, each outstanding Restricted Stock and Restricted Stock Unit award
shall be assumed or an equivalent Restricted Stock or Restricted Stock Unit
award substituted by the successor corporation or a Parent or Subsidiary of the
successor corporation.  In the event that
the successor corporation refuses to assume or substitute for the Restricted
Stock or Restricted Stock Unit award, the Participant shall fully vest in the
Restricted Stock or Restricted Stock Unit award including as to Shares which
would not otherwise be vested. For the purposes of this paragraph, a Restricted
Stock, or Restricted Stock Units award shall be considered assumed if,
following the Change of Control, the award confers the right to purchase or
receive, for each Share subject to the Award immediately prior to the Change of
Control, the consideration (whether stock, cash, or other securities or
property) received in the Change of Control by holders of Common Stock for each
Share held on the effective date of the transaction (and if holders were
offered a choice of consideration, the type of consideration chosen by the
holders of a majority of the outstanding Shares); provided, however, that if
such consideration received in the Change of Control is not solely common stock
of the successor corporation or its Parent, the Administrator may, with the
consent of the successor corporation, provide for the consideration to be
received, for each Share and each unit/right to acquire a Share subject to the
Award, to be solely common stock of the successor corporation or its Parent
equal in fair market value to the per share consideration received by holders
of Common Stock in the Change of Control.


 


17.                   Date of Grant.  The date of grant of an Award shall be, for
all purposes, the date on which the Administrator makes the determination
granting such Award, or such other later date as is determined by the 


 


14

















 


Administrator.  Notice of the determination shall be provided
to each Participant within a reasonable time after the date of such grant.


 


18.                   Amendment
and Termination of the Plan.


 


(a)                   Amendment and Termination.  The Board may at any time amend, alter,
suspend or terminate the Plan.


 


(b)                   Stockholder Approval.  The Company shall obtain stockholder approval
of any Plan amendment to the extent necessary and desirable to comply with
Applicable Laws.


 


(c)                   Effect of Amendment or
Termination.  No amendment,
alteration, suspension or termination of the Plan shall impair the rights of
any Participant, unless mutually agreed otherwise between the Participant and
the Administrator, which agreement must be in writing and signed by the
Participant and the Company.  Termination
of the Plan shall not affect the Administrator’s ability to exercise the powers
granted to it hereunder with respect to Awards granted under the Plan prior to
the date of such termination.


 


19.                   Conditions
Upon Issuance of Shares.


 


(a)           Legal Compliance.  Shares shall not be issued pursuant to the
exercise of an Award unless the exercise of the Award or the issuance and
delivery of such Shares (or with respect to Performance Units, the cash
equivalent thereof) shall comply with Applicable Laws and shall be further
subject to the approval of counsel for the Company with respect to such
compliance.


 


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


 


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


 


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


 


22.                   Stockholder Approval.  The Plan shall be subject to approval by the
stockholders of the Company within twelve (12) months after the date the Plan
is adopted.  Such stockholder approval
shall be obtained in the manner and to the degree required under Applicable
Laws.


 


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