exv10w4






Exhibit 10.4




[Conditional Performance Vesting Option]




THE SPECTRANETICS CORPORATION

2006 INCENTIVE AWARD PLAN




STOCK OPTION GRANT NOTICE AND 

STOCK OPTION AGREEMENT 




     The Spectranetics Corporation, a Delaware corporation (the “Company”), pursuant to its 2006
Incentive Award Plan (the “Plan”), hereby grants to the holder listed below (“Participant”), an
option to purchase the number of shares of the Company’s common stock, par value $0.001 per share
(“Stock”), set forth below (the “Option”). This Option is subject to all of the terms and
conditions set forth herein and in the Stock Option Agreement attached hereto as Exhibit A
(the “Stock Option Agreement”) and the Plan, which are incorporated herein by reference. Unless
otherwise defined herein, the terms defined in the Plan shall have the same defined meanings in
this Grant Notice and the Stock Option Agreement.



	 	 	 	 	 	 	 
	Participant:

	 	Emile Geisenheimer
	 	 
	Grant Date:

	 	November 21, 2008	 	 
	Vesting Commencement Date: 



	 	October 21, 2008

	 	 
	
Exercise Price per Share:

	 	$

	 	 
	 

	 	 	 	 	 
	Total Exercise Price:

	 	$	 	 	 	 
	 

	 	 	 	 	 
	Total Number of Shares
	 	 	 	 	 	 
	Subject to the Option:

	 	400,000 shares
	 	 
	Expiration Date:

	 	November 20, 2018
	 	 






	 	 	 
	Type of Option:

	 	o
   Incentive Stock Option   
x    Non-Qualified Stock Option
	 
	 	 
	Vesting Schedule:

	 	The shares subject to the Option shall vest and become exercisable as set forth in Article III of the Stock
Option Agreement; provided, however, that notwithstanding anything contained in this Grant Notice or the
Stock Option Agreement, the Option shall not be exercisable to any extent by anyone prior to the time that
the Plan Amendment (as defined in the Stock Option Agreement) is approved by the Company’s stockholders.






     By his or her signature, the Participant agrees to be bound by the terms and conditions of the
Plan, the Stock Option Agreement and this Grant Notice. The Participant has reviewed the Stock
Option Agreement, the Plan and this Grant Notice in their entirety, has had an opportunity to
obtain the advice of counsel prior to executing this Grant Notice and fully understands all
provisions of this Grant Notice, the Stock Option Agreement and the Plan. Participant hereby
agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee
upon any questions arising under the Plan or relating to the Option.




	 	 	 	 	 	 	 	 	 
	THE SPECTRANETICS CORPORATION	 	PARTICIPANT
	 
	 	 	 	 	 	 	 	 
	By:

	 	 	 	By:	 	 	 	 
	 

	 	 
	 	 	 	 	 	 
	Print Name:

	 	 	 	Print Name:
	 	Emile Geisenheimer	 	 
	 

	 	 	 	 	 	 	 	 
	Title:
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	Address:

	 	 	 	Address:	 	 	 	 
	 

	 	 
	 	 	 	 	 	 
	 
	 

	 	 
	 	 	 	 	 	 





 









 








EXHIBIT A




TO STOCK OPTION GRANT NOTICE




THE SPECTRANETICS CORPORATION STOCK OPTION AGREEMENT




     Pursuant to the Stock Option Grant Notice (the “Grant Notice”) to which this Stock Option
Agreement (this “Agreement”) is attached, The Spectranetics Corporation, a Delaware corporation
(the “Company”), has granted to the Participant an option under the Company’s 2006 Incentive Award
Plan (as amended from time to time, the “Plan”) to purchase the number of shares of Stock indicated
in the Grant Notice.



ARTICLE I.




GENERAL




     1.1 Defined Terms. Wherever the following terms are used in this Agreement they shall
have the meanings specified below, unless the context clearly indicates otherwise. Capitalized
terms not specifically defined herein shall have the meanings specified in the Plan and the Grant
Notice.



          (a) “Administrator” shall mean the Board or the Committee responsible for conducting the
general administration of the Plan in accordance with Article 12 of the Plan; provided that if the
Participant is an Independent Director, “Administrator” shall mean the Board.




          (b) The “Performance Target” shall be deemed to have been achieved if and when, prior to the
expiration, cancellation or other termination of the Option, (i) the average of the closing trading
prices (on the principal stock exchange on which the Stock is then listed) of a share of Stock for
a period of ten (10) consecutive trading days equals or exceeds $9.00 per share, or (ii) the
highest price per share of Stock paid in a transaction that results in a Change in Control equals
or exceeds $9.00.




          (c) “Plan Amendment” shall mean that certain Sixth Amendment to The Spectranetics Corporation
2006 Incentive Award Plan which was adopted by the Board as of November 19, 2008, subject to
approval thereof by the Company’s stockholders.




          (d) “Service” shall mean the Participant’s service with the Company as an officer, employee or
consultant of the Company, or member of the Board. For purposes of this Agreement, the Participant
shall be deemed to remain in continuous Service with the Company so long as he remains either an
employee, consultant or member of the Board, and in the event that Participant is both an employee
of the Company and a member of the Board, Participant shall not be deemed to have incurred a
Termination of Service (as defined below) with the Company unless and until his status as both an
employee and a member of the Board has terminated.




          (e) “Termination of Service” shall mean a termination of the Participant’s Service for any
reason, with or without cause, including, without limitation, a termination by resignation,
discharge, death, disability or retirement, but excluding: (a) a termination where there is a
simultaneous reemployment or continuing employment of the Participant by the Company or any
Subsidiary, and (b) a termination where there is a simultaneous establishment of a consulting
relationship or continuing consulting relationship between the Participant and the Company or any
Subsidiary. The Administrator, in its absolute discretion, shall determine the effect of all
matters and questions relating to a Termination of Service, including, without limitation, the
question of whether a particular leave of absence constitutes a Termination of Service.




A-1









 





     1.2 Incorporation of Terms of Plan. The Option is subject to the terms and conditions
of the Plan which are incorporated herein by reference. In the event of any inconsistency between
the Plan and this Agreement, the terms of the Plan shall control.



ARTICLE II.




GRANT OF OPTION




     2.1 Grant of Option. In consideration of the Participant’s past and/or continued
employment with or service to the Company or a Subsidiary and for other good and valuable
consideration, effective as of the Grant Date set forth in the Grant Notice (the “Grant Date”), the
Company irrevocably grants to the Participant the Option to purchase any part or all of an
aggregate of the number of shares of Stock set forth in the Grant Notice, upon the terms and
conditions set forth in the Plan and this Agreement. Unless designated as a Non-Qualified Stock
Option in the Grant Notice, the Option shall be an Incentive Stock Option to the maximum extent
permitted by law.



     2.2 Exercise Price. The exercise price of the shares of Stock subject to the Option
shall be as set forth in the Grant Notice, without commission or other charge; provided, however,
that the price per share of the shares of Stock subject to the Option shall not be less than 100%
of the Fair Market Value of a share of Stock on the Grant Date. Notwithstanding the foregoing, if
this Option is designated as an Incentive Stock Option and the Participant owns (within the meaning
of Section 424(d) of the Code) more than 10% of the total combined voting power of all classes of
stock of the Company or any “subsidiary corporation” of the Company or any “parent corporation” of
the Company (each within the meaning of Section 424 of the Code), the price per share of the shares
of Stock subject to the Option shall not be less than 110% of the Fair Market Value of a share of
Stock on the Grant Date.



     2.3 Consideration to the Company. In consideration of the grant of the Option by the
Company, the Participant agrees to render faithful and efficient services to the Company or any
Subsidiary. Nothing in the Plan or this Agreement shall confer upon the Participant any right to
continue in the employ or service of the Company or any Subsidiary or shall interfere with or
restrict in any way the rights of the Company and its Subsidiaries, which rights are hereby
expressly reserved, to discharge or terminate the services of the Participant at any time for any
reason whatsoever, with or without Cause, except to the extent expressly provided otherwise in a
written agreement between the Company or a Subsidiary and the Participant.



ARTICLE III.




PERIOD OF EXERCISABILITY




     3.1 Commencement of Exercisability.



          (a) Subject to Sections 3.2, 3.3, 3.4 and 3.5, the Option shall vest and become exercisable as
follows:




               (i) In the event that the Performance Target is achieved, the Option shall thereupon
vest with respect to that number of shares that would have been vested as of such date had
the Option been subject to the Time Vesting Schedule (as defined below), and the remaining
unvested portion (if any) of the Option shall thereafter vest in accordance with the Time
Vesting Schedule as if the Option had been subject to the Time Vesting Schedule since the
Grant Date.



A-2









 





               (ii) For purposes of this Agreement, “Time Vesting Schedule” shall mean a vesting
schedule providing for vesting of the Option with respect to 1/36th of the shares
subject thereto on the first monthly anniversary of the Vesting Commencement Date set forth
above (the “Vesting Commencement Date”) and with respect to an additional 1/36th
of the shares subject thereto on each monthly anniversary of the Vesting Commencement Date
thereafter up to and including the monthly anniversary of the Vesting Commencement Date
occurring on the three year anniversary of the Vesting Commencement Date.



          (b) Except as expressly provided in Section 3.2 below, in no event shall the Option vest or
become exercisable to any extent if the Performance Target is not achieved.




          (c) No portion of the Option which has not become vested and exercisable at the date of the
Participant’s Termination of Service shall thereafter become vested and exercisable, except as may
be otherwise provided by the Administrator or as set forth in a written agreement between the
Company and the Participant.




     3.2 Acceleration of Exercisability. Notwithstanding Section 3.1(a) above, but subject
to Section 3.5, the Option shall, to the extent not theretofore expired, cancelled or terminated,
become fully vested and exercisable in the event of (i) the achievement of the Performance Target
upon a Change in Control that occurs on or prior to the second anniversary of the Grant Date, (ii)
a Change in Control that occurs after the second anniversary of the Grant Date (irrespective of
whether the Performance Target is achieved), or (iii) a termination of the Participant’s employment
by the Company without Cause or by the Participant for Good Reason (each as defined in that certain
Employment Agreement, effective as of October 21, 2008, between the Company and the Participant),
in each case, that occurs after the second anniversary of the Grant Date (irrespective of whether
the Performance Target is achieved).



     3.3 Duration of Exercisability. The installments provided for in the vesting schedule
set forth in Section 3.1 are cumulative. Each such installment which becomes vested and
exercisable pursuant to the vesting schedule set forth in Section 3.1 shall remain vested and
exercisable until it becomes unexercisable under Section 3.4.



     3.4 Expiration of Option. The Option may not be exercised to any extent by anyone
after the first to occur of the following events:



          (a) The expiration of ten years from the Grant Date;




          (b) If this Option is designated as an Incentive Stock Option and the Participant owned
(within the meaning of Section 424(d) of the Code), at the time the Option was granted, more than
10% of the total combined voting power of all classes of stock of the Company or any “subsidiary
corporation” of the Company or any “parent corporation” of the Company (each within the meaning of
Section 424 of the Code), the expiration of five years from the Grant Date;




          (c) The expiration of one year from the date of the Participant’s Termination of Service,
unless such termination occurs by reason of the Participant’s death or Disability; or




          (d) The expiration of one year from the date of the Participant’s Termination of Service by
reason of the Participant’s death or Disability.




     The Participant acknowledges that an Incentive Stock Option exercised more that three months
after the Participant’s termination of employment, other than by reason of death or total and
permanent



A-3









 







disability (within the meaning of Section 22(e)(3) of the Code), will be taxed as a
Non-Qualified Stock Option.



     3.5 Stockholder Approval. The Participant acknowledges that the Option is being
granted prior to approval of the Plan Amendment by the Company’s stockholders and that the Option
is subject to approval of the Plan Amendment by the Company’s stockholders within twelve (12)
months after the date on which the Board adopted the Plan Amendment. Notwithstanding anything
contained in this Agreement, this Option may not be exercised to any extent by anyone prior to the
time when the Plan Amendment is approved by the stockholders, and if such approval is not obtained
at the next annual meeting of the Company’s stockholders following the Grant Date (or by the end of
the twelve month period immediately following the date on which the Board adopted the Plan
Amendment, if earlier), this Option shall thereupon automatically be cancelled and become null and
void.



     3.6 Special Tax Consequences. The Participant acknowledges that, to the extent that
the aggregate Fair Market Value (determined as of the time the Option is granted) of all shares of
Stock with respect to which Incentive Stock Options, including the Option (if applicable), are
exercisable for the first time by the Participant in any calendar year exceeds $100,000, the Option
and such other options shall be Non-Qualified Stock Options to the extent necessary to comply with
the limitations imposed by Section 422(d) of the Code. The Participant further acknowledges that
the rule set forth in the preceding sentence shall be applied by taking the Option and other
“incentive stock options” into account in the order in which they were granted, as determined under
Section 422(d) of the Code and the Treasury Regulations thereunder.



ARTICLE IV.




EXERCISE OF OPTION




     4.1 Person Eligible to Exercise. Except as provided in Section 5.2(b), during the
lifetime of the Participant, only the Participant may exercise the Option or any portion thereof.
After the death of the Participant, any exercisable portion of the Option may, prior to the time
when the Option becomes unexercisable under Section 3.4, be exercised by the Participant’s personal
representative or by any person empowered to do so under the deceased Participant’s will or under
the then applicable laws of descent and distribution.



     4.2 Partial Exercise. Any exercisable portion of the Option or the entire Option, if
then wholly exercisable, may be exercised in whole or in part at any time prior to the time when
the Option or portion thereof becomes unexercisable under Section 3.4.



     4.3 Manner of Exercise. The Option, or any exercisable portion thereof, may be
exercised solely by delivery to the Secretary of the Company (or any third party administrator or
other person or entity designated by the Company) of all of the following prior to the time when
the Option or such portion thereof becomes unexercisable under Section 3.4:



          (a) An Exercise Notice in a form specified by the Administrator, stating that the Option or
portion thereof is thereby exercised, such notice complying with all applicable rules established
by the Administrator;




          (b) The receipt by the Company of full payment for the shares of Stock with respect to which
the Option or portion thereof is exercised, including payment of any applicable withholding tax,
which may be in one or more of the forms of consideration permitted under Section 4.4;




A-4









 








          (c) Any other written representations as may be required in the Administrator’s reasonable
discretion to evidence compliance with the Securities Act or any other applicable law rule, or
regulation; and




          (d) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by
any person or persons other than the Participant, appropriate proof of the right of such person or
persons to exercise the Option.



Notwithstanding any of the foregoing, the Company shall have the right to specify all conditions of
the manner of exercise, which conditions may vary by country and which may be subject to change
from time to time.




     4.4 Method of Payment. Payment of the exercise price shall be by any of the
following, or a combination thereof, at the election of the Participant:



          (a) Cash;




          (b) Check;




          (c) With the consent of the Administrator, delivery of a notice that the Participant has
placed a market sell order with a broker with respect to shares of Stock then issuable upon
exercise of the Option, and that the broker has been directed to pay a sufficient portion of the
net proceeds of the sale to the Company in satisfaction of the aggregate exercise price; provided,
that payment of such proceeds is then made to the Company at such time as may be required by the
Company, but in any event not later than the settlement of such sale;




          (d) With the consent of the Administrator, surrender of other shares of Stock which have a
fair market value on the date of surrender equal to the aggregate exercise price of the shares of
Stock with respect to which the Option or portion thereof is being exercised;




          (e) With the consent of the Administrator, surrendered shares of Stock issuable or
transferable upon the exercise of the Option having a fair market value on the date of exercise
equal to the aggregate exercise price of the shares of Stock with respect to which the Option or
portion thereof is being exercised; or




          (f) With the consent of the Administrator, property of any kind which constitutes good and
valuable consideration.




     4.5 Conditions to Issuance of Stock Certificates. The shares of Stock deliverable
upon the exercise of the Option, or any portion thereof, may be either previously authorized but
unissued shares of Stock or issued shares of Stock which have then been reacquired by the Company.
Such shares of Stock shall be fully paid and nonassessable. The Company shall not be required to
issue or deliver any shares of Stock purchased upon the exercise of the Option or portion thereof
prior to fulfillment of all of the following conditions:



          (a) The admission of such shares of Stock to listing on all stock exchanges on which such
Stock is then listed;




          (b) The completion of any registration or other qualification of such shares of Stock under
any state or federal law or under rulings or regulations of the Securities and Exchange Commission



A-5









 






or of any other governmental regulatory body, which the Administrator shall, in its absolute
discretion, deem necessary or advisable;




          (c) The obtaining of any approval or other clearance from any state or federal governmental
agency which the Administrator shall, in its absolute discretion, determine to be necessary or
advisable;




          (d) The receipt by the Company of full payment for such shares of Stock, including payment of
any applicable withholding tax, which may be in one or more of the forms of consideration permitted
under Section 4.4; and




          (e) The lapse of such reasonable period of time following the exercise of the Option as the
Administrator may from time to time establish for reasons of administrative convenience.




     4.6 Rights as Stockholder. The holder of the Option shall not be, nor have any of the
rights or privileges of, a stockholder of the Company in respect of any shares of Stock purchasable
upon the exercise of any part of the Option unless and until such shares of Stock shall have been
issued by the Company to such holder (as evidenced by the appropriate entry on the books of the
Company or of a 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 shares of Stock are
issued, except as provided in Section 11.1 of the Plan.



ARTICLE V.




OTHER PROVISIONS




     5.1 Administration. The Administrator shall have the power to interpret the Plan and
this Agreement and to adopt such rules for the administration, interpretation and application of
the Plan as are consistent therewith and to interpret, amend or revoke any such rules. All actions
taken and all interpretations and determinations made by the Administrator in good faith shall be
final and binding upon Participant, the Company and all other interested persons. No member of the
Committee or the Board shall be personally liable for any action, determination or interpretation
made in good faith with respect to the Plan, this Agreement or the Option.



     5.2 Option Not Transferable.



          (a) Subject to Section 5.2(b), the Option may not be sold, pledged, assigned or
transferred in any manner other than by will or the laws of descent and distribution, unless and
until the shares of Stock underlying the Option have been issued, and all restrictions applicable
to such shares of Stock have lapsed. Neither the Option nor any interest or right therein shall be
liable for the debts, contracts or engagements of Participant or his or her successors in interest
or shall be subject to disposition by transfer, alienation, anticipation, pledge, encumbrance,
assignment or any other means whether such disposition be voluntary or involuntary or by operation
of law by judgment, levy, attachment, garnishment or any other legal or equitable proceedings
(including bankruptcy), and any attempted disposition thereof shall be null and void and of no
effect, except to the extent that such disposition is permitted by the preceding sentence.




          (b) Notwithstanding any other provision in this Agreement, with the consent of the
Administrator, the Participant may transfer the Option (or any portion thereof) to any one or more
Permitted Transferees (as defined below), subject to the following terms and conditions: (i) any
portion of the Option transferred to a Permitted Transferee shall not be assignable or transferable
by the Permitted




A-6









 




Transferee other than by will or the laws of descent and distribution; (ii) any portion of the
Option which is transferred to a Permitted Transferee shall continue to be subject to all the terms
and conditions of the Option as applicable to the Participant (other than the ability to further
transfer the Option); and (iii) the Participant and the Permitted Transferee shall execute any and
all documents requested by the Administrator, including, without limitation documents to (A)
confirm the status of the transferee as a Permitted Transferee, (B) satisfy any requirements for an
exemption for the transfer under applicable federal and state securities laws and (C) evidence the
transfer. For purposes of this Section 5.2(b), “Permitted Transferee” shall mean, with respect to
a Participant, any child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former
spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law,
brother-in-law, or sister-in-law, including adoptive relationships, any person sharing the
Participant’s household (other than a tenant or employee), a trust in which these persons (or the
Participant) control the management of assets, charitable institutions, or trusts or other entities
whose beneficiaries or beneficial owners are these persons (or the Participant) and/or charitable
institutions, and any other entity in which these persons (or the Participant) own more than fifty
percent of the voting interests, or any other transferee specifically approved by the Administrator
after taking into account any state or federal tax or securities laws applicable to transferable
Options. Notwithstanding the foregoing, (i) in no event shall the Option be transferable by the
Participant to a third party (other than the Company) for consideration, and (ii) no transfer of an
Incentive Stock Option will be permitted to the extent that such transfer would cause the Incentive
Stock Option to fail to qualify as an “incentive stock option” under Section 422 of the Code.




     5.3 Adjustments. The Participant acknowledges that the Option is subject to
adjustment, modification and termination in certain events as provided in this Agreement and
Article 11 of the Plan.



     5.4 Notices. Any notice to be given under the terms of this Agreement to the Company
shall be addressed to the Company in care of the Secretary of the Company at the address given
beneath the signature of the Company’s authorized officer on the Grant Notice, and any notice to be
given to Participant shall be addressed to Participant at the address given beneath Participant’s
signature on the Grant Notice. By a notice given pursuant to this Section 5.4, either party may
hereafter designate a different address for notices to be given to that party. Any notice which is
required to be given to Participant shall, if Participant is then deceased, be given to the person
entitled to exercise his or her Option pursuant to Section 4.1 by written notice under this Section
5.4. Any notice shall be deemed duly given when sent via email or when sent by certified mail
(return receipt requested) and deposited (with postage prepaid) in a post office or branch post
office regularly maintained by the United States Postal Service.



     5.5 Titles. Titles are provided herein for convenience only and are not to serve as a
basis for interpretation or construction of this Agreement.



     5.6 Governing Law; Severability. The laws of the State of Delaware shall govern the
interpretation, validity, administration, enforcement and performance of the terms of this
Agreement regardless of the law that might be applied under principles of conflicts of laws.



     5.7 Conformity to Securities Laws. The Participant acknowledges that the Plan and
this Agreement are intended to conform to the extent necessary with all provisions of the
Securities Act and the Exchange Act and any and all regulations and rules promulgated by the
Securities and Exchange Commission thereunder, and state securities laws and regulations.
Notwithstanding anything herein to the contrary, the Plan shall be administered, and the Option is
granted and may be exercised, only in such a manner as to conform to such laws, rules and
regulations. To the extent permitted by applicable law, the Plan and this Agreement shall be
deemed amended to the extent necessary to conform to such laws, rules and regulations.



A-7









 





     5.8 Amendments, Suspension and Termination. To the extent permitted by the Plan, this
Agreement may be wholly or partially amended or otherwise modified, suspended or terminated at any
time or from time to time by the Committee or the Board, provided, that, except as may otherwise be
provided by the Plan, no amendment, modification, suspension or termination of this Agreement shall
adversely effect the Option in any material way without the prior written consent of the
Participant.



     5.9 Successors and Assigns. The Company may assign any of its rights under this
Agreement to single or multiple assignees, and this Agreement shall inure to the benefit of the
successors and assigns of the Company. Subject to the restrictions on transfer herein set forth in
Section 5.2, this Agreement shall be binding upon Participant and his or her heirs, executors,
administrators, successors and assigns.



     5.10 Notification of Disposition. If this Option is designated as an Incentive Stock
Option, Participant shall give prompt notice to the Company of any disposition or other transfer of
any shares of Stock acquired under this Agreement if such disposition or transfer is made (a)
within two years from the Grant Date with respect to such shares of Stock or (b) within one year
after the transfer of such shares of Stock to Participant. Such notice shall specify the date of
such disposition or other transfer and the amount realized, in cash, other property, assumption of
indebtedness or other consideration, by Participant in such disposition or other transfer.



     5.11 Limitations Applicable to Section 16 Persons. Notwithstanding any other
provision of the Plan or this Agreement, if Participant is subject to Section 16 of the Exchange
Act, the Plan, the Option and this Agreement shall be subject to any additional limitations set
forth in any applicable exemptive rule under Section 16 of the Exchange Act (including any
amendment to Rule 16b-3 of the Exchange Act) that are requirements for the application of such
exemptive rule. To the extent permitted by applicable law, this Agreement shall be deemed amended
to the extent necessary to conform to such applicable exemptive rule



     5.12 Not a Contract of Employment. Nothing in this Agreement or in the Plan shall
confer upon the Participant any right to continue to serve as an employee or other service provider
of the Company or any of its Subsidiaries.



     5.13 Entire Agreement. The Plan, the Grant Notice and this Agreement (including all
Exhibits thereto) constitute the entire agreement of the parties and supersede in their entirety
all prior undertakings and agreements of the Company and Participant with respect to the subject
matter hereof.



     5.14 Section 409A. This Option is not intended to constitute “nonqualified deferred
compensation” within the meaning of Section 409A of the Code (“Section 409A”). However,
notwithstanding any other provision of the Plan, this Agreement or the Grant Notice, if at any time
the Committee determines that the Option (or any portion thereof) may be subject to Section 409A,
the Committee shall have the right, in its sole discretion, to adopt such amendments to the Plan,
this Agreement or the Grant Notice or adopt other policies and procedures (including amendments,
policies and procedures with retroactive effect), or take any other actions, as the Committee
determines are necessary or appropriate either for the Option to be exempt from the application of
Section 409A or to comply with the requirements of Section 409A.




A-8