EXHIBIT 4.1


 


SUPERGEN, INC.


 


2003 STOCK PLAN


 


(as amended March 11, 2010)


 


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)                     “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.


 


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


 


(d)                     “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.


 


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


 


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


 


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


 


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(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.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(o)                                 “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
Stock Options, no such leave may exceed ninety days, unless


 


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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.


 


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


 


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


 


(i)                                     If the Common
Stock is listed on a stock exchange, the fair market value per Share shall be
the closing price on such exchange, as reported in the Wall Street Journal on
the date of determination or, if the date of determination is not a trading
day, the immediately preceding trading day;


 


(ii)                                  If there is a public market
for the Common Stock, the fair market value per Share shall be the mean of the
bid and asked prices, or closing price in the event quotations for the Common
Stock are reported on the National Market System, of the Common Stock on the
date of determination, as reported in the Wall Street Journal (or, if not so
reported, as otherwise reported by the National Association of Securities Dealers
Automated Quotation (NASDAQ) System); 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.


 


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


 


(s)                                   “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.


 


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


 


(u)                                 “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.


 


(v)                                 “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.


 


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


 


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(x)                                 “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.


 


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


 


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


 


(aa)                          “Performance Goals”
means any one or more of the following objective performance criteria, applied
to either the Company as a whole or, except with respect to stockholder return
metrics, to a region, business unit, affiliate or business segment, and
measured either on an absolute basis or relative to a pre-established target, to
a previous period’s results or to a designated comparison group, and, with
respect to financial metrics, which may be determined in accordance with United
States Generally Accepted Accounting Principles (“GAAP”), in accordance with
accounting principles established by the International Accounting Standards
Board (“IASB Principles”) or which may be adjusted when established to exclude
or include any items otherwise includable or excludable under GAAP or under
IASB Principles including (a) earnings per share, (b) operating cash
flow, (c) operating income, (d) profit (e) return on assets, (f) return
on equity, (g) return on sales, (h)  revenue, (i) stock price,
(j) growth in stockholder value relative to the moving average of the
S&P 500 Index or another index, (k) gross margin, (l) operating
expenses or operating expenses as a percentage of revenue, (m) earnings
(which may include earnings before interest and taxes, earnings before taxes
and net earnings), (n) return on capital, (o) return on assets or net
assets, (p) return on investment, (q) operating margin,
(r) market share, (s) contract awards or backlog, (t) overhead
or other expense reduction, (u) objective customer indicators,
(v) new product invention or innovation, (w) attainment of research
and development milestones, (x) total stockholder return, or (y) objective
employee metrics. Any criteria used may be measured, as applicable (i) in
absolute terms, (ii) against another company or companies, on a per-share
basis, and/or (iii) on a pre-tax or post-tax basis (if applicable).


 


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


 


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


 


(dd)                          “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.


 


(ee)                            “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.


 


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


 


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


 


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


 


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


 


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


 


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


 


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 11,500,000
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


 


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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.


 


(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 (but in no event later than the expiration of the original maximum
term of such Award);


 


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(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.


 


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,


 


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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). 
The Performance Goals may differ from participant to participant and from
Award to Award.


 


(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.


 


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.


 


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(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,
other Award or cash.


 


(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;


 


(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;


 


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(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 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


 


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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, other Award or cash.


 


(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.


 


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(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 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,


 


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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.


 


(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.


 


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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.


 


(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


 


15

















 


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


 


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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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