Exhibit 10.13


 


AMENDED AND RESTATED


NETSPEND HOLDINGS, INC.


2004 EQUITY INCENTIVE PLAN


 


1.             Purpose
of the Plan.  The purpose
of the Amended and Restated NetSpend Holdings, Inc. 2004 Equity Incentive
Plan is (i) to further the growth and success of NetSpend Holdings, Inc.,
a Delaware corporation (the “Company”), by enabling Employees (as
defined below) and Consultants (as defined below) of the Company and its
Affiliates to acquire shares of Common Stock, thereby increasing their personal
interest in such growth and success, and (ii) to provide a means of
rewarding outstanding service by such persons to the Company and/or its
Affiliates.


 


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


 


(a)           An “Affiliate” of any Person means a Person that directly or
indirectly, through one or more intermediaries, controls, is controlled by or
is under common control with the first mentioned Person.  A Person shall be deemed to control another
Person if such first Person possesses directly or indirectly the power to
direct, or cause the direction of, the management and policies of the second
Person, whether through the ownership of voting securities, by contract or
otherwise.


 


(b)           “Award” means an award of an Option, Stock Appreciation Right,
Restricted Stock, Performance Unit or other stock-based award.


 


(c)           “Award Agreement” means the written agreement evidencing an
Award.


 


(d)           “Award Cycle” means a period of consecutive fiscal years or
portions thereof designated by the Committee over which Performance Units are
to be earned.


 


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


 


(f)            “Cause” means (i) “Cause” as defined in any individual
agreement between the Company or an Affiliate and the Participant or (ii) if
the Participant is not a party to such an individual agreement or if such
agreement does not define “Cause”: (A) the refusal or neglect of such
Participant to perform substantially his or her employment or service-related
duties, following written notice from the Committee describing such refusal or
neglect and an opportunity for 30 days to cure the condition to the
satisfaction of the Committee, (B) such Participant’s willful misconduct
or breach of fiduciary duty, (C) such Participant’s conviction of or
entering a plea of guilty or nolo contendere to a crime constituting a felony
or (D) the breach by such Participant of any covenant, agreement or
obligation with the Company or any of its Affiliates not to disclose any
material information pertaining to the Company or such Affiliate or not to compete
or interfere with the Company or such Affiliate.


 


(g)           “Change in Control” has the meaning set forth in Section 10(d).


 

















 


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


 


(i)            “Committee” means the committee appointed by the Board in
accordance with Section 4 or, where no such committee is appointed, the
Board.


 


(j)            “Common Stock” means the common stock, $0.001 par value per
share, of the Company.


 


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


 


(l)            “Consultant” means any person who is engaged by the Company or
any Affiliate to render consulting or advisory services, whether or not
compensated for such services, and any director of the Company or any Affiliate
who is not an Employee, whether or not compensated for such services.


 


(m)          “Corporate Transaction” has the meaning set forth in Section 10(d).


 


(n)           “Covered Employee” means a Participant designated prior to the
grant of Restricted Stock or Performance Units by the Committee who is or may
be a “covered employee” within the meaning of Section 162(m)(3) of
the Code in the year in which the Restricted Stock or Performance Units are
expected to be taxable to such Participant.


 


(o)           “Disability” means a permanent disability as set forth in the
long-term disability policy of the Company or its Affiliates as may be in
effect from time to time or, if no such policy is in effect, “Disability” shall
have the meaning determined in good faith by the Committee.


 


(p)           “Disqualifying Disposition” has the meaning set forth in Section 19.


 


(q)           “Employee” means any person, including officers and directors,
employed (within the meaning of Section 422 of the Code and the
regulations and interpretive guidance issued thereunder) by the Company or any
Affiliate.  The payment of a director’s
fee by the Company or any Affiliate shall not in itself be sufficient to
constitute “employment” by the Company or such Affiliate.


 


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


 


(s)           “Expiration Date” has the meaning set forth in Section 14.


 


(t)            “Fair Market Value”  If
there is a regular public trading market for the Common Stock, the “Fair Market
Value” of a share of Common Stock shall mean, as of any given date, (1) the
price of the Common Stock on the composite transaction tape of the Nasdaq Stock
Market as of the close of the regular business hours of the Nasdaq Stock
Market, without regard to after-hours trading, on the most recent date for
which such closing price is available, or (2) if the Common Stock is not
listed on the Nasdaq Stock Market, the analogous closing price on any other
national securities exchange on which the Common Stock is listed, or (3) such
other method, as determined by the Committee in good faith, to the extent
permitted under Section 422(c)(1) of the Code and the regulations
thereunder.  If there is no regular
public trading market 


 


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for the Common Stock, the
“Fair Market Value” of a share of Common Stock shall be determined by the
Committee in good faith after taking into consideration all factors which it
deems appropriate, including, without limitation, recent sale and offer prices
of the Common Stock in private transactions negotiated at arm’s length.  The Fair Market Value of any property other
than Common Stock shall be the fair market value of such property determined by
such methods and procedures as shall be established from time to time by the
Committee.


 


(u)           “Freestanding Stock Appreciation Right” has the meaning set
forth in Section 6(a).


 


(v)           “Grant Date” means, with respect to any Award, the date on which
such Award is granted pursuant to the Plan.


 


(w)          “Initial Public Offering” means the first firm commitment
underwritten public offering for shares of Common Stock pursuant to an effective
registration statement under the Securities Act with aggregate gross proceeds
of at least $25,000,000.


 


(x)            “ISO” means an Option intended to qualify as an “incentive stock
option” within the meaning of Section 422 of the Code.


 


(y)           “NSO” means an Option not intended to qualify as an ISO.


 


(z)            “Option” means an option to purchase shares of Common Stock
granted pursuant to Section 5.


 


(aa)         “Option Agreement” means a written agreement evidencing an Award
of an Option.


 


(bb)         “Optioned Shares” means the number of shares of Common Stock
with respect to which an Option is being exercised.


 


(cc)         “Option Price” shall have the meaning set forth in Section 5(c).


 


(dd)         “Participant” means any Employee or Consultant designated by the
Committee to participate in the Plan.


 


(ee)         “Performance Goals” means the performance goals established by
the Committee in connection with the grant of Restricted Stock or Performance
Units.  In the case of Qualified
Performance-Based Awards, (x) such goals shall be based on the attainment
of specified levels of one or more or a combination of any of the following
measures:  (1) revenue, (2) gross
margin, (3) operating expense excluding depreciation and amortization and
equity expense as a percentage of revenue, (4) earnings before interest
and taxes, (5) earnings before interest, taxes depreciation and
amortization, (6) pre-tax income, (7) net income from continuing
operations, (8) earnings per share from continuing operations, (9) cash
earnings per share from continuing operations, (10) return on assets, (11)
return on equity, (12) return on invested capital, (12) leverage ratio, (14)
fixed charge ratio, (15) new product introduction milestones, (16) trading
price per share, (17) operating margin, (18) gross margin, (19) cash flow, (20)
operating expense, excluding depreciation and amortization and equity expense,
and (21) market share.


 


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(ff)           “Performance Unit” means an Award granted under Section 8.


 


(gg)         “Person” means an individual or group of individuals, a
corporation, an association, a partnership, a limited or general limited
liability company, an estate, a trust, and any other entity or organization,
governmental or otherwise.


 


(hh)         “Plan” means this Amended and Restated NetSpend Holdings, Inc.
2004 Equity Incentive Plan.


 


(ii)           “Qualified Performance-Based Award” means an Award of Restricted
Stock or Performance Units designated as such by the Committee at the time of
grant, based upon a determination that (i) the Participant is a Covered
Employee and (ii) the Committee wishes such Award to qualify for the Section 162(m) Exemption.


 


(jj)           “Restricted Stock” means an Award of shares of Common Stock
granted pursuant to Section 7.


 


(kk)         “Restricted Stock Agreement” means a written agreement
evidencing an Award of Restricted Stock.


 


(ll)           “Roll-Over Option” has the meaning set forth in the Contribution
Agreement, dated as of March 30, 2004, by and among NetSpend Corporation,
a Delaware corporation, and the stockholders and holders of options listed
therein.


 


(mm)       “Rule 16b-3”
means Rule 16b-3 promulgated under Section 16(b) of the Exchange
Act.


 


(nn)         “Securities Act” means the Securities Act of 1933, as amended.


 


(oo)         “Stock Appreciation Right” or “SAR” means an Award
granted under Section 6.


 


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


 


(qq)         “Tandem Stock Appreciation Right” has the meaning set forth in Section 6(a).


 


(rr)           “Termination of Service” means the termination of a Participant’s
employment with, or performance of services for, the Company and/or any of its
Affiliates for any reason, whether voluntary or involuntary.  A temporary absence because of illness,
vacation or approved leave of absence and/or a transfer between the Company and
its Affiliates shall not be considered a Termination of Service.  Unless the Committee specifies otherwise, (1) a
Termination of Service shall not include a Participant’s transfer (at the
Company’s request) to provide services to any partnership, joint venture or
corporation not meeting the requirements of an Affiliate in which the Company
or any Affiliate is a party and which is designated by the Committee as subject
to this provision and such service shall be considered employment and/or
service for purposes of this Plan and (2) a Participant employed by, or
performing services for, 


 


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an Affiliate shall also
be deemed to incur a Termination of Service if the Affiliate ceases to be an
Affiliate and the Participant does not immediately thereafter become an
employee of, or service-provider for, the Company or an Affiliate.  Any question as to whether and when there has
been a Termination of Service for the purposes of an Award and the cause of
such Termination of Service shall be determined by the Committee and such
determination shall be final.


 


Except
when otherwise indicated by the context, words in the masculine gender used in
the Plan shall include the feminine gender, the singular shall include the
plural, and the plural shall include the singular.


 


3.             Shares
of Common Stock Subject to the Plan.


 


(a)           Subject to the provisions of Section 10 (relating to adjustments
upon changes in capital structure and other corporate transactions), the number
of shares of Common Stock that may be issued and delivered to Participants and
their beneficiaries under the Plan shall be 22,459,980, which amount shall be
increased, on the first business day of each fiscal year, by the lesser of (1) 3%
of the issued and outstanding shares of Common Stock, measured immediately
prior to such annual increase, (2) 3,000,000 shares of Common Stock, or (3) such
lesser amount as determined by the Board. 
If and to the extent any Award or portion of an Award granted under the
Plan is forfeited, shares of Restricted Stock granted under the Plan are
repurchased by the Company at the Participant’s cost, or Options or SARs
granted under the Plan terminate, expire or are canceled or forfeited, without
having been fully exercised, new Awards may be granted under the Plan with
respect to the shares of Common Stock covered by such terminated, repurchased,
expired, canceled or forfeited Awards. 
If the Option Price of any Option granted under the Plan is satisfied by
delivering shares of Common Stock to the Company, only the number of shares of
Common Stock issued net of the shares of Common Stock delivered shall be deemed
delivered for purposes of determining the maximum number of shares of Common
Stock available for delivery under the Plan. 
To the extent any shares of Common Stock subject to an Award are not
delivered to a Participant because such shares are used to satisfy an
applicable tax withholding obligation, such shares shall not be deemed to have
been delivered for purposes of determining the maximum number of shares of
Common Stock available for delivery under the Plan.


 


(b)           Character of Shares.  The shares of Common Stock issuable in
connection with Awards granted under the Plan shall be (i) authorized but
unissued shares of Common Stock, (ii) shares of Common Stock held in the
Company’s treasury or (iii) a combination of the foregoing.


 


(c)           Award Limits.  Notwithstanding any provision of the Plan
other than Section 10(a), (i) no Participant may be granted (A) Options
or Stock Appreciation Rights during any three-year period with respect to more
than 5,000,000 shares of Common Stock, or (B) Restricted Stock or
Performance Units that are denominated in shares of Common Stock, in any
three-year period with respect to more than 3,000,000 shares of Common Stock,
and (ii) the maximum dollar value payable with respect to Performance
Units and/or other stock-based Awards that are valued with reference to
property other than shares of Common Stock and granted to any Participant in
any performance period is $3,000,000 times the number of years in such
performance period.  For purposes of
clarification, with respect to any award that is first 


 


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measured in dollars and
then converted into a number of shares of Common Stock, the limitation
described in clause (ii) above shall apply.  The limitations set forth in this Section 3(c) shall
be applied in a manner that will permit compensation generated under the Plan
to constitute “performance-based” compensation for purposes of the Section 162(m) Exemption.  The provisions of this
Section 3(c) shall not apply in any circumstance with respect to
which the Committee in its sole discretion determines that compliance with the Section 162(m) Exemption
is not necessary.


 


(d)           Dividends.  Reinvestment of dividends in additional
Restricted Stock at the time of any dividend payment shall only be permissible
if sufficient shares of Common Stock are available under this Section 3
for such reinvestment (taking into account then outstanding Options and other
Awards).


 


4.             Administration
of the Plan.


 


(a)           Committee.


 


(i)            Initial Plan Procedure.  If the Plan is not intended to comply with Rule 16b-3,
the Plan shall be administered by the Board or by a committee consisting of two
or more directors appointed to such Committee from time to time by the Board.


 


(ii)           Plan Procedure in Relation to Rule 16b-3.  So long as the Plan is intended
to comply with Rule 16b-3, in order to permit transactions pursuant to the
Plan by officers and directors of the Company to be exempt from the provisions
of Section 16(b) of the Exchange Act, the Plan shall be administered
by the Committee, which shall consist of two or more directors appointed to
such Committee from time to time by the Board; provided that each member of the
Committee, at the effective date of his or her appointment to the Committee and
for so long as such person serves on the Committee, shall be a non-employee
director within the meaning of Rule 16b-3.


 


(b)           Procedures.  The Committee shall adopt (and shall have the
authority to amend and rescind) such rules and regulations as it shall
deem appropriate concerning the holding of meetings and the administration of
the Plan.  A majority of the entire Committee
shall constitute a quorum and the actions of a majority of the members of the
Committee present at a meeting at which a quorum is present, or actions
approved in writing by all of the members of the Committee, shall be the
actions of the Committee; provided, however, that if the
Committee consists of only two members, both shall be required to constitute a
quorum and to act at a meeting or to approve actions in writing.  The Committee may delegate to one or more
officers of the Company or any Affiliate the authority to act on behalf of the
Committee with respect to any matter, right, obligation, or election that is
the responsibility of or that is allocated to the Committee herein, and that
may be so delegated as a matter of law, except for grants of Awards to persons
(i) subject to Section 16 of the Exchange Act or (ii) who are,
or who are reasonably expected to be, “covered employees” for purposes of
Section 162(m) of the Code. 
Any authority granted to the Committee may also be exercised by the full
Board, except to the extent that the grant or exercise of such authority would
violate any applicable law or the applicable rules of a stock exchange or
that would cause any Award or transaction to become subject to (or lose an
exemption under) the short-swing profit recovery provisions of Section 16
of the Exchange Act.


 


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(c)           Awards.  Subject to the provisions of the Plan, the
Committee shall have plenary authority, in its discretion, to determine all matters
and issues relating to the granting of Awards under the Plan, including,
without limitation,


 


(i)            the Employees and Consultants to whom Awards shall be granted;


 


(ii)           whether and to what extent Restricted Stock, Performance Units, Stock
Appreciation Rights, ISOs and NSOs, or other stock-based awards, or any
combination thereof are to be granted hereunder;


 


(iii)          those Employees of the Company and/or its Subsidiaries who are eligible
to receive ISOs;


 


(iv)          the time or times at which Awards shall be granted;


 


(v)           the number of shares subject to each Award;


 


(vi)          whether an Award Agreement must be executed by a Participant’s spouse in
community property states;


 


(vii)         to
prescribe, amend and rescind rules and regulations relating to the Plan,
including rules governing its own operations,


 


(viii)        to
correct any defect, supply any omission and reconcile any inconsistency in the
Plan; and


 


(ix)           the terms and conditions of any Award, including the Option Price, the
purchase price per share, any vesting condition (including performance-based
goals), restriction or limitation (which may be related to the performance of
the Participant, the Company or any Affiliate) and any vesting acceleration
(whether upon a Change in Control or otherwise) or forfeiture waiver regarding
any Award and the shares of Common Stock relating thereto, based on such
factors as the Committee shall determine; and


 


(x)            subject to Section 15 or any similar provision in any applicable
Award Agreement, whether to modify, amend or adjust the terms and conditions of
any Award; provided, however, that the Committee may not
adjust upwards the amount payable with respect to a Qualified Performance-Based
Award or waive or alter the Performance Goals associated therewith.


 


(d)           Interpretation.  Except as otherwise expressly provided in the
Plan, the Committee shall have all powers with respect to the administration of
the Plan, including, without limitation, full power and authority to interpret
the provisions of the Plan and any Award Agreement, and to resolve all
questions arising under the Plan.  All
decisions of the Committee shall be conclusive and binding on all persons.


 


(e)           Participants’ Rights.  No Participant or other person shall have any
claim to be granted any Award.  There is
no obligation for uniformity of treatment of Participants, or 


 


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holders or beneficiaries
of Awards and the terms and conditions of Awards need not be the same with
respect to each Participant or holder or beneficiary.


 


5.             Options.


 


(a)           General.  Options may be granted by the Committee under
the Plan only to persons who are Employees or Consultants.  Options granted under the Plan shall be, in
the discretion of the Committee, either ISOs or NSOs.


 


(i)            ISOs may be granted only to Employees of the Company or a
Subsidiary.  To the extent that any
Option is not designated as an ISO or even if so designated does not qualify as
an ISO at or subsequent to its Grant Date, it shall constitute an NSO.


 


(ii)           Notwithstanding subsection (a) to the contrary, Options may be
conditionally granted to persons who are prospective Employees or Consultants; provided, however,
that any such conditional grant of an ISO to a prospective Employee shall, by
its terms, become effective no earlier than the date on which such person
actually becomes an Employee.


 


(b)           Option Agreements.  Each Option granted under the Plan shall be
designated as an ISO or an NSO and shall be subject to the terms and conditions
applicable to ISOs and/or NSOs (as the case may be) set forth in the Plan.  In addition, each Option shall be evidenced
by an Option Agreement, containing such terms and conditions and in such form,
not inconsistent with the Plan, as the Committee shall, in its discretion,
provide.  Such terms and conditions may
include, but are not limited to, the Option Price, the time or times when
Options may be exercised, any vesting, acceleration or waiver of forfeiture
restrictions, and any restriction or limitation regarding any Option or the
shares relating thereto.


 


(c)           Option Price.  Subject to Section 10, the price (the “Option
Price”) at which each share of Common Stock subject to an Option granted
under the Plan may be purchased shall be determined by the Committee at the
time the Option is granted; provided, however, that in the
case of an ISO (other than a substitute Option), such Option Price shall in no
event be less than (1) 100% of the Fair Market Value, or (2) in the
case of an Employee who owns, directly or indirectly (within the meaning of
Sections 422(b)(6) and 424(d) of the Code), stock possessing more
than 10% of the total combined voting power of all classes of stock of the
Company, the Option Price shall be not less than 110% of the Fair Market
Value.  With respect to ISOs granted to a
prospective Employee under Section 5(b) above, the Option Price shall
be the Fair Market Value on the date the prospective Employee becomes an
Employee of the Company or a Subsidiary.


 


(d)           ISO Status.  The Company shall have no liability to a
Participant, or any other party, if an Option (or any part thereof) which is
intended to be an ISO is not an ISO.


 


(e)           Exercisability of Options.


 


(i)            Committee Determination.  Each Option granted under the Plan shall be
exercisable at such time or times, or upon the occurrence of such event or
events, 


 


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and
for such number of shares subject to the Option, as shall be determined by the
Committee and set forth in the Option Agreement evidencing such Option.  If an Option is not at the time of grant
immediately exercisable, the Committee may (i) in the Option Agreement
evidencing such Option, provide for the acceleration of the exercise date or
dates of the subject Option upon the occurrence of specified events and/or (ii) at
any time prior to the complete termination of such Option, accelerate the
exercise date or dates of such Option.


 


(ii)           Non-Exempt Employees.  Unless otherwise determined by the Committee,
no Option granted to an Employee that is a non-exempt employee for purposes of
the Fair Labor Standards Act of 1938, as amended (“FLSA”), shall be
first vested for any shares of Common Stock until at least six months following
the Grant Date of the Option.  The
foregoing provision is intended to operate so that any income derived by a
non-exempt employee in connection with the exercise of an Option will not be
included as a portion of his or her regular rate of pay for purposes of the
FLSA.


 


(iii)          Termination of Options.


 


(A)          General.  With respect to any Option, unless the Committee
determines that a shorter term shall apply and such shorter term is set forth
in the Option Agreement evidencing such Option, an Option shall terminate and
shall no longer be exercisable ten years from the date on which such Option is
granted or, in the case of an ISO granted to an Employee who owns, directly or
indirectly (within the meaning of Sections 422(b)(6) and 424(d) of
the Code), stock possessing more than 10% of the total combined voting power of
all classes of stock of the Company, five years from the date on which such ISO
is granted.


 


(B)           Death or Disability.  With respect to any Option, unless otherwise
determined by the Committee and set forth in the Option Agreement evidencing
such Option, in the event of a Participant’s death or Termination of Service by
reason of Disability, any Option held by such Participant may thereafter be
exercised by the Participant (or his or her beneficiary designated in
accordance with Section 21 or estate), to the extent it was exercisable at
the time of termination, until the earlier of (1) one year from the date
of such death or Termination of Service and (2) the expiration of the
stated term of such Option.


 


(C)           Termination for Cause.  With respect to any Option, unless otherwise
determined by the Committee and set forth in the Option Agreement evidencing
such Option, in the event of a Participant’s Termination of Service by the
Company or an Affiliate for Cause, any Option held by such Participant, whether
or not exercisable, shall terminate and shall no longer be exercisable as of
the date of such Termination of Service.


 


(D)          Other Termination of Service.  Unless otherwise determined by the Committee
and set forth in the applicable Award Agreement, in the event of a Participant’s
Termination of Service for any reason other than death, Disability or Cause,
any Option held by such Participant may thereafter be exercised by the 


 


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Participant,
to the extent it was exercisable at the time of termination, until the earlier
of (1) 90 days from the date of such Termination of Service (provided, however,
that if the Participant shall die during such ninety-day period, the time of
termination of the unexercised portion of the Option shall be one year from the
date of the Participant’s death); and (2) the expiration of the stated
term of such Option.


 


(E)           Unauthorized Transfer of Option.  Except to the extent permitted by Section 5(e)(v),
an Option shall terminate and shall no longer be exercisable on the date on
which such Option or any part thereof or right or privilege relating thereto is
transferred (otherwise than by will or the laws of descent and distribution),
assigned, pledged, hypothecated, attached or otherwise disposed of by the
Participant.


 


(F)           Roll-Over Option.  Notwithstanding anything to the contrary in
this Section 5(e)(iii), a Roll-Over Option shall terminate only at the
time set forth in the Option Agreement evidencing the grant of such Roll-Over
Option.


 


(iv)          Unvested Options.  Unless otherwise determined by the Committee
or as set forth in any applicable Option Agreement, any Option that is unvested
as of the date of a Participant’s Termination of Service shall terminate and
shall be forfeited as of the date of such Termination of Service.


 


(v)           Nonassignability of Option Rights.  No Option granted under the Plan shall be
assignable or otherwise transferable by the Participant except by will or by
the laws of descent and distribution, except that an Option which is not
intended to be an ISO may, if the Option Agreement so provides, also be
transferable to a “Family Member” (as that term is defined in Rule 701
promulgated under the Securities Act) for the sole benefit thereof.  An ISO may be exercised during the lifetime
of the Participant only by the Participant, unless otherwise permitted under Section 422
of the Code and the regulations promulgated thereunder.  A NSO may be exercised during the lifetime of
the Participant only by the Participant, unless otherwise determined by the
Committee.  If a Participant dies, his or
her Option shall thereafter be exercisable, during the period specified in the
Option Agreement (or, if not so specified, during the period specified in Section 5(e)(iii),
by his or her executors, administrators or beneficiary (designated in
accordance with Section 21) to the full extent to which such Option was
exercisable by the Participant at the time of his or her death.


 


(f)            Procedure for Exercise.


 


(i)            Payment.  At the time an Option is granted under the
Plan, the Committee shall, in its discretion, specify one or more of the
following forms of payment which may be used by a Participant upon exercise of
the Option: (A) cash or personal or certified check payable to the Company
in an amount equal to the aggregate Option Price of the Optioned Shares; (B) if
authorized by the Committee, tendering (either actually or by attestation)
owned and unencumbered shares of Common Stock acceptable to the Committee and
having a Fair Market Value on the date of exercise of the Option equal to or less
than the aggregate Option Price of the Optioned Shares; (C) in compliance
with any cashless exercise program or broker-assisted cashless exercise program
authorized by 


 


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the
Committee for use in connection with the Plan at the time of such exercise; or (D) a
combination of the methods set forth in clauses (A), (B) and (C) and/or
any other method expressly approved by the Committee.


 


(ii)           Notice.  An Option shall be exercised by the filing of
a written notice with the Company or the Company’s designated exchange agent
(the “exchange agent”), on such form and in such manner as the Committee shall
in its sole discretion prescribe.


 


(iii)          Exercise Date.  The exercise date of an Option shall be the
later of (1) the date specified in the option exercise notice and (2) the
date on which the Participant has complied with the requirements set forth in
the Plan and by the Committee (pursuant to the Plan) with respect to exercising
an Option.


 


(iv)          Stockholder Rights.  A Participant shall have all of the rights of
a shareholder of the Company holding Common Stock that is subject to such
Option when the Participant has given written notice of exercise in accordance
with this Section 5(f), has paid in full for such shares and, if
requested, has given the representation described in Section 11, if
applicable.


 


6.             Stock
Appreciation Rights.


 


(a)           Grant and Exercise.  Stock Appreciation Rights may be granted to
eligible Participants without relationship to an Option (each, a “Freestanding
Stock Appreciation Right”) or in conjunction with all or part of any Option
granted under the Plan (each, a “Tandem Stock Appreciation Right”).  In the case of an NSO, Tandem Stock
Appreciation Rights may be granted either at or after the time of grant of such
Option.  In the case of an ISO, Tandem
Stock Appreciation Rights may be granted only at the time of grant of such
Option.  A Tandem Stock Appreciation
Right shall terminate and no longer be exercisable upon the termination or
exercise of the related Option.


 


(b)           Terms of Freestanding Stock Appreciation Rights.  Freestanding Stock
Appreciation Rights shall be subject to such terms and conditions as shall be
determined by the Committee, including the following: (i) a Freestanding
Stock Appreciation Right shall be exercisable as determined by the Committee,
but in no event after ten years from the Grant Date; (ii) the base price
of a Freestanding Stock Appreciation Right shall be the Fair Market Value of a
share of Common Stock on the Grant Date. 
A Freestanding Stock Appreciation Right shall entitle the holder, upon
exercise of such right, to an amount in cash, shares of Common Stock or both
(as determined by the Committee), with a value equal to the product of (A) the
excess of the Fair Market Value of a share of Common Stock on the date of
exercise of the Stock Appreciation Right over the base price of the Stock
Appreciation Right and (B) the number of shares of Common Stock as to
which such Stock Appreciation Right shall have been exercised, with the
Committee having the right to determine the form of payment; (iii) a
Freestanding Stock Appreciation Right shall be exercised by giving written
notice of exercise to the Company or its designated agent specifying the number
of shares of Common Stock as to which such Stock Appreciation Right is being
exercised; and (iv) a Freestanding Stock Appreciation Right shall not be
transferable other than by will or laws of descent and distribution.


 


11














 


(c)           Terms of Tandem Stock Appreciation Rights.  Tandem Stock Appreciation
Rights shall be subject to such terms and conditions as shall be determined by
the Committee, including the following:  (i) Tandem
Stock Appreciation Rights shall be exercisable only at such time or times and
to the extent that the Options to which they relate are exercisable in
accordance with the provisions of Section 5; (ii) upon the exercise
of a Tandem Stock Appreciation Right, a Participant shall be entitled to
receive an amount in cash, shares of Common Stock or both, in value equal to
the excess of the Fair Market Value of one share of Common Stock over the
option price per share specified in the related Option multiplied by the number
of shares in respect of which the Stock Appreciation Right shall have been
exercised, with the Committee having the right to determine the form of
payment; (iii) a Tandem Stock Appreciation Right may be exercised by a
Participant in accordance with this Section 6(c) by surrendering the
applicable portion of the related Option in accordance with procedures
established by the Committee, and, upon such exercise and surrender, the
Participant shall be entitled to receive an amount determined in the manner
prescribed in this Section 6(c) and Options which have been so
surrendered shall no longer be exercisable to the extent the related Tandem
Stock Appreciation Rights have been exercised; (iv) upon the exercise of a
Tandem Stock Appreciation Right, the Option or part thereof to which such
Tandem Stock Appreciation Right is related shall be deemed to have been
exercised for the purpose of the limitation set forth in Section 3 on the
number of shares of Common Stock to be issued under the Plan, but only to the
extent that the number of shares covered by the Tandem Stock Appreciation Right
at the time of exercise is based on the value of the Tandem Stock Appreciation
Right at such time; and (v) Tandem Stock Appreciation Rights shall be
transferable only to permitted transferees of the underlying Option in accordance
with Section 5(e)(v).


 


7.             Restricted
Stock.


 


(a)           General.  Restricted Stock may be granted to
Participants at such time or times upon or following the effective date of the
Plan as shall be determined by the Committee. 
Each Award of Restricted Stock shall be evidenced by a Restricted Stock
Agreement that shall specify the consideration paid, if any, for the Restricted
Stock, the vesting provisions of such Restricted Stock and such other terms
consistent with the Plan as the Committee shall determine, including customary
representations, warranties and covenants with respect to securities law
matters.


 


(b)           Terms and Conditions.  Restricted Stock shall be subject to the
terms and conditions set forth below:


 


(i)            The Committee may, prior to or at the time of grant, designate an Award
of Restricted Stock as a Qualified Performance-Based Award, in which event it
shall condition the grant or vesting, as applicable, of such Restricted Stock
upon the attainment of Performance Goals. 
If the Committee does not designate an Award of Restricted Stock as a
Qualified Performance-Based Award, it may also condition the grant or vesting
thereof upon the attainment of Performance Goals.  Regardless of whether an Award of Restricted
Stock is a Qualified Performance-Based Award, the Committee may also condition
the grant or vesting thereof upon the continued service of the Participant or
provide that such Award is fully vested on the Grant Date.  The conditions for grant or vesting and the
other provisions of Restricted Stock Awards 


 


12

















 


(including,
without limitation. any applicable performance goals) need not be the same with
respect to each Participant.  The
Committee may at any time, in its sole discretion, accelerate or waive, in
whole or in part, any of the foregoing restrictions; provided, however, that
(except as otherwise provided in Section 7(b)(iii) or 10(b)) in the
case of Restricted Stock that is a Qualified Performance-Based Award, the
applicable Performance Goals have been satisfied.


 


(ii)           Subject to the provisions of the Plan and the Restricted Stock Agreement,
during the period, if any, set by the Committee, commencing with the date of
such Award for which such continued service is required (the “Restriction
Period”), and until either, as determined by the Committee, the later of (i) the
expiration of the Restriction Period and (ii) the date the applicable
performance goals (if any) are satisfied, the Participant shall not be
permitted to sell, assign, transfer, pledge or otherwise encumber Restricted
Stock.


 


(iii)          Except to the extent otherwise provided in the applicable Restricted
Stock Agreement or Section 7(b)(i), this Section 7(b)(iii), 7(b)(v) or
Section 10(b), upon a Participant’s Termination of Service for any reason
during the Restriction Period or before the applicable Performance Goals are
satisfied, all shares still subject to restriction shall be forfeited by the
Participant; provided, however, that the Committee shall have the
discretion to waive, in whole or in part, any or all remaining restrictions
(other than, in the case of Restricted Stock which is a Qualified
Performance-Based Award, satisfaction of the applicable Performance Goals
unless the Participant’s employment is terminated by reason of death or
Disability) with respect to any or all of such Participant’s shares of
Restricted Stock.


 


(iv)          If and when any applicable Performance Goals are satisfied and the
Restriction Period expires without a prior forfeiture of the Restricted Stock,
if stock certificates have been issued with respect to such Award, unlegended
certificates for such shares shall be delivered to the Participant upon
surrender of the legended certificates.


 


(v)           Except as provided in this subsection (v) and Sections 7(b)(i) and
7(b)(ii) and in the Award Agreement and except as otherwise determined by
the Committee, the Participant shall have, with respect to the shares of
Restricted Stock, all of the rights of a stockholder of the Company holding
Common Stock, including, if applicable, the right to vote the shares and the
right to receive any cash dividends.  If
so determined by the Committee in the applicable Restricted Stock Agreement and
subject to Section 3(d) of the Plan, (A) cash dividends or
distributions of property (other than Common Stock) made with respect to
outstanding shares of Common Stock shall be automatically deferred and
reinvested in additional shares of Restricted Stock, held subject to the
vesting of the underlying Restricted Stock, or held subject to meeting
Performance Goals applicable only to dividends, and (B) dividends payable
in Common Stock shall be paid in the form of additional shares of Restricted
Stock, held subject to the vesting of the underlying Restricted Stock, or held
subject to meeting Performance Goals applicable only to dividends.


 


13

















 


(c)           Unrestricted Shares.  The Committee may grant (or sell at a
purchase price at least equal to par value) shares of Common Stock free of
vesting restrictions under the Plan, to such eligible Participants and in such
amounts and subject to such forfeiture provisions as the Committee shall
determine in its sole discretion.  Shares
of Common Stock may be thus granted or sold in respect of past services, the achievement
of Performance Goals or other performance criteria for awards that are not
intended to qualify for the Section 162(m) Exemption.


 


(d)           Awards and Certificates.  Restricted Stock shall be evidenced in such
manner as the Committee may deem appropriate, including book-entry registration
or issuance of one or more stock certificates with such legends as set forth in
Section 11(b), in addition to such other legends as counsel to the Company
may require.  The Committee may require
that any certificate evidencing Restricted Stock be held in custody by the
Company until the restrictions thereon shall have lapsed and that, as a
condition of any Restricted Stock Award, the Participant shall have delivered a
stock power permitting the Company, or any person or entity designated by the
Company, to transfer legally the title of ownership in the Restricted Stock
covered by such Award to a third party.


 


(e)           83(b) Election.  Each Participant shall deliver to the Company
a copy of any election filed by the Participant with the Internal Revenue
Service under Section 83(b) of the Code within 30 days of the date of
a grant of Restricted Stock.


 


(f)            Transferability.  No unvested shares of Restricted Stock
granted under the Plan may be sold, transferred, pledged, assigned, encumbered
or otherwise alienated or hypothecated, other than (1) pursuant to
Sections 7(g) or 10 of the Plan, (2) as permitted under the terms of
the Restricted Stock Agreement underlying an Award, or (3) by will or by
the laws of descent and distribution and provided that the deceased Participant’s
beneficiary or the representative of his estate acknowledges and agrees in
writing, in a form reasonably acceptable to the Company, to be bound by the
provisions of the Plan and the Restricted Stock Agreement covering such
Restricted Stock as if such beneficiary or estate were the Participant.  No vested shares of Restricted Stock may be
sold, transferred, pledged, assigned, encumbered or otherwise alienated or
hypothecated, other than as set forth above or as may be permitted pursuant to
the terms of the Restricted Stock Agreement underlying such Award.


 


(g)           Repurchase of Unvested Shares; Forfeiture.  The Company (and/or any entity
or person designated by the Company) shall have the right, but not the obligation,
following a Participant’s Termination of Service (whether such termination is
voluntary or involuntary, with Cause or without Cause, without regard to the
reason therefor, if any) in such cases as determined by the Board, to
repurchase any and all shares of Restricted Stock acquired by the Participant
under the Plan that are unvested as of the date of the Participant’s
Termination of Service.  This repurchase
right shall continue indefinitely following the Participant’s Termination of
Service.  The purchase price for each
share of Restricted Stock acquired under this Section 7(g) shall be
the price for which the Participant paid for such share of Restricted Stock, if
any.  For purposes of clarification, if
no consideration was paid for the Participant’s Restricted Stock, the purchase
price under this subsection (i) shall be zero and the Restricted Stock
shall be forfeited effective as of the date of the Participant’s Termination of
Service without any action by the Participant or any other person.


 


14

















 


8.             Performance
Units.


 


(a)           Administration.  Performance
Units may be awarded either alone or in addition to other Awards granted under
the Plan.  The Committee shall determine
the eligible Participants to whom and the time or times at which Performance
Units shall be awarded, the number of Performance Units to be awarded to any
eligible Participant, the duration of any Award Cycle and any other terms and
conditions of the Award, in addition to those contained in Section 8(b).


 


(b)           Terms and Conditions.  Performance Units Awards shall be subject to
the following terms and conditions:


 


(i)            the Committee may, prior to or at the time of the grant, designate
Performance Units as Qualified Performance-Based Awards, in which event it
shall condition the settlement thereof upon the attainment of Performance
Goals, except as otherwise provided in Section 8(b)(ii) or
10(b).  If the Committee does not
designate Performance Units as Qualified Performance-Based Awards, it may also
condition the settlement thereof upon the attainment of Performance Goals.  Regardless of whether Performance Units are
Qualified Performance-Based Awards, the Committee may also condition the
settlement thereof upon the continued service of the Participant.  The provisions of such Awards (including
without limitation any applicable Performance Goals) need not be the same with
respect to each Participant.  Subject to
the provisions of the Plan and the Award Agreement referred to in Section 8(b)(v),
Performance Units may not be sold, assigned, transferred, pledged or otherwise
encumbered during the Award Cycle;


 


(ii)           except to the extent otherwise provided in the applicable Award Agreement
or Section 8(b)(iii) or 10(b), upon a Participant’s Termination of
Employment for any reason during the Award Cycle or before any applicable
Performance Goals are satisfied, all rights to receive cash or stock in
settlement of the Performance Units shall be forfeited by the Participant; provided,
however, that the Committee shall have the discretion to waive, in whole
or in part, any or all remaining payment limitations (other than, in the case
of Performance Units that are Qualified Performance-Based Awards, satisfaction
of the applicable Performance Goals unless the Participant’s employment is
terminated by reason of death or Disability) with respect to any or all of such
Participant’s Performance Units;


 


(iii)          a Participant may elect to further defer receipt of cash or shares in
settlement of Performance Units for a specified period or until a specified
event, subject in each case to the Committee’s approval and to such terms as
are determined by the Committee.  Subject
to any exceptions adopted by the Committee, such election must generally be
made prior to commencement of the Award Cycle for the Performance Units in
question;


 


(iv)          at the expiration of the Award Cycle, the Committee shall evaluate and
certify the Company’s performance in light of any Performance Goals for such
Award, and shall determine the number of Performance Units granted to the
Participant 


 


15

















 


which
have been earned, and the Committee shall then cause to be delivered (A) a
number of shares of Common Stock equal to the number of Performance Units determined
by the Committee to have been earned, or (B) cash equal to the Fair Market
Value (measured as of the expiration of the Award Cycle) of such number of
shares of Common Stock to the Participant, or any combination of the payment
forms in (A) and (B), with the Committee having the right to determine the
form of payment (subject to any deferral pursuant to Section 8(b)(iii));
and


 


(v)           each Award of Performance Units shall be confirmed by, and be subject to,
the terms of an Award Agreement.


 


9.             Other
Stock-Based Awards.


 


Other
Awards of Common Stock and other Awards that are valued in whole or in part by
reference to, or are otherwise based upon, Common Stock, including (without
limitation) dividend equivalents and convertible debentures, may be granted either
alone or in conjunction with other Awards granted under the Plan.  Each Award of other stock-based Awards shall
be confirmed by, and be subject to, the terms of an Award Agreement.


 


10.          Adjustments; Change in Control.


 


(a)           Changes in Capital Structure.  Subject to Section 10(b), if the Common
Stock is changed by reason of a change in corporate capitalization, such as a
stock split, reverse stock split, stock dividend or recapitalization, or
converted into or exchanged for other securities as a result of a merger,
consolidation or reorganization, the Committee shall make such adjustments in
the maximum limitations upon number and class of shares of stock with respect
to which Awards may be granted under the Plan and shall make such adjustments
as shall be equitable and appropriate in order to make any outstanding Awards,
as nearly as may be practicable, equivalent to such Awards outstanding as of
the effective date of such transaction. 
Anything contained in the Plan to the contrary notwithstanding, in the
case of ISOs, no adjustment under this Section 10(a) shall be
appropriate if such adjustment (i) would constitute a modification,
extension or renewal of such ISOs within the meaning of Sections 422 and 424 of
the Code, and the regulations promulgated by the Treasury Department
thereunder, or (ii) would, under Section 422 of the Code and the
regulations promulgated by the Treasury Department thereunder, be considered
the adoption of a new plan requiring stockholder approval.


 


(b)           Change in Control.


 


(i)            Unless the treatment of a Participant’s Award upon a Change in Control is
specifically addressed in the Participant’s Award Agreement (including any
notice of grant attached thereto) the following provision shall apply.  With respect to any Option that vests based
solely on a Participant’s continued employment or service with the Company
(i.e., excluding performance-based options), vesting of 25% of the Option shall
be accelerated upon a Change in Control, subject to the Participant’s continued
employment or service with the Company through the date of the Change in
Control, such that an additional 25% of the Option becomes vested upon the
Change in Control, and the remainder of the Option, if not terminated in
connection with the Change in 


 


16

















 


Control,
shall continue to vest pursuant to the original vesting schedule set forth in
the Option Agreement (including the Notice of Grant).  For example, if 25% of a Participant’s Option
will vest based on continued service on April 1, 2009 and on each of the
next three anniversaries thereof, a Change in Control occurs on May 1,
2009, and the Option is assumed in connection with the transaction, 25% of the
Option will have vested prior to the Change in Control, 25% will vest upon the
Change in Control, 25% will vest on April 1, 2011 and 25% will vest on April 1,
2012 (subject to the Participant’s continued employment or service).  If the Option is not assumed or substituted
in connection with the Change in Control, 50% of the Option will have vested as
of the closing of the Change in Control and the remainder will be terminated
without any payment therefor.


 


(ii)           In addition, notwithstanding any provision of the Plan to the contrary,
in the event of a Change in Control, the Committee may, in its sole discretion,
further accelerate the vesting of any or all of the Awards at the time of a
Change in Control.  The Committee may
also make additional adjustments and/or settlements of outstanding Awards as it
deems appropriate and consistent with the Plan’s purposes, including, without
limitation, canceling any Option or SAR if the Option Price or base price of
such Option or SAR exceeds the price paid for a share of Common Stock or
Preferred Stock, as applicable, in connection with a Change in Control; provided,
however, that in the event of the assumption of outstanding Awards by,
or the substitution for such Awards of new awards covering the stock of, the
surviving, successor or purchasing corporation, or a parent or subsidiary thereof,
with appropriate adjustments as to the number, kind and option prices of shares
subject to such awards, the Committee shall, in the case of ISOs, to the extent
not inconsistent with the best interests of the Company or its Affiliates (such
best interests to be determined in good faith by the Committee in its sole
discretion), use its best efforts to ensure that any such assumption or
substitution will not constitute a modification, extension or renewal of the
ISOs within the meaning of Section 424(h) of the Code and the
regulations promulgated by the Treasury Department thereunder.


 


(iii)          Notwithstanding any provision of the Plan to the contrary, in the event
of a Change in Control, the unvested and/or unexercised portion of any Option
or SAR, to the extent not assumed by, or substituted for new options or stock
appreciation rights covering the stock of, the surviving, successor or
purchasing corporation, or a parent or subsidiary thereof, in connection with
such Change in Control, shall terminate and shall no longer be exercisable as
of the later of (1) consummation of such Change in Control and (2) twenty
(20) days following the date on which the Participant is notified by the
Company that the Option will terminate in connection with such Change in Control.


 


(c)           Any adjustments referred to in Section 10(a) or (b) shall
be made by the Committee in its sole discretion and shall be conclusive and
binding on all persons.


 


(d)           “Change in Control” shall mean the first to occur of the
following events: (i) the consummation of a merger, reorganization,
consolidation or sale or other transfer of all or substantially all of the
assets of the Company or of all or substantially all of the combined voting 


 


17

















 


power of the Company’s
then outstanding voting securities (“Outstanding Voting Securities”) (a “Corporate
Transaction”), excluding, however, such a Corporate Transaction pursuant to
which all or substantially all of the persons who are the beneficial owners of the
Outstanding Voting Securities immediately prior to such Corporate Transaction
will beneficially own, directly or indirectly, more than 50% of the Outstanding
Voting Securities of the corporation or other entity resulting from such
Corporate Transaction; and (ii) approval by the holders of a majority of
the Outstanding Voting Securities of a liquidation or dissolution of the
Company.


 


11.          Restrictions on Restricted Stock,
Options and Optioned Shares.


 


(a)           Compliance With Securities Laws.  No Awards shall be granted under the Plan,
and no shares of Common Stock shall be issued and delivered upon the exercise
of Options or SARs granted under the Plan, unless and until the Company and/or
the Participant shall have complied with all applicable federal or state
registration, listing and/or qualification requirements and all other
requirements of law or of any regulatory agencies having jurisdiction.


 


(b)           Representations; Legends.  The Committee in its discretion may, as a
condition to the grant or exercise of any Award or exercise of any Option
granted under the Plan, require a Participant (i) to represent in writing
that the shares of Common Stock received in connection with such Award are
being acquired for investment and not with a view to distribution and (ii) to
make such other representations and warranties as are deemed appropriate by
counsel to the Company.  Stock
certificates representing shares of Common Stock acquired upon the grant or
vesting of an Award or the exercise of Options or SARs that have not been
registered under the Securities Act shall, if required by the Committee, bear
the following legend (together with any legend required under the Participant’s
Award Agreement):


 


THE
SALE AND ISSUANCE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR
UNDER THE SECURITIES LAW OF ANY STATE OR OTHER JURISDICTION. THESE SECURITIES
HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION
WITH, THE DISTRIBUTION THEREOF.  THESE
SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED, OR TRANSFERRED UNLESS (I) A
REGISTRATION STATEMENT UNDER THE ACT IS IN EFFECT AS TO THESE SECURITIES AND
SUCH OFFER, SALE, PLEDGE, OR TRANSFER IS IN COMPLIANCE WITH APPLICABLE
SECURITIES LAW OF ANY STATE OR OTHER JURISDICTION OR (II) THERE IS AN
OPINION OF COUNSEL OR OTHER EVIDENCE, IN EITHER CASE, SATISFACTORY TO THE
CORPORATION, THAT AN EXEMPTION THEREFROM IS AVAILABLE AND THAT SUCH OFFER,
SALE, PLEDGE, OR TRANSFER IS IN COMPLIANCE WITH THE ACT AND APPLICABLE
SECURITIES LAW OF ANY STATE OR OTHER JURISDICTION.


 


18

















 


TRANSFER
OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE CONDITIONS
SPECIFIED IN AN AWARD AGREEMENT BETWEEN THE ISSUER AND A PARTICIPANT IN THE
ISSUER’S AMENDED AND RESTATED 2004 EQUITY INCENTIVE PLAN, AS AMENDED AND/OR
RESTATED FROM TIME TO TIME.  NO TRANSFER
OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE SHALL BE VALID OR EFFECTIVE
UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED. 
SUCH AGREEMENTS MAY BE INSPECTED AT THE PRINCIPAL EXECUTIVE OFFICES
OF THE ISSUER.


 


12.          Public Offering.


 


(a)           In the event that the Company files a registration statement under the
Securities Act with respect to an underwritten public offering of any Common
Stock, each Participant shall be prohibited from effecting any public sale or
distribution of any Common Stock (other than as part of such underwritten
public offering), including, but not limited to, pursuant to Rule 144 or Rule 144A
under the Securities Act, during the “lock-up” period established by the
Committee, which lock-up period shall be no shorter than that required by the
underwriters of such public offering.


 


(b)           Without limiting the foregoing clause (a), if (1) during the last
17 days of the “lock up” period the Company issues an earnings release or
material news or a material event relating to the Company occurs; or (2) prior
to the expiration of the “lock up” period, the Company announces that it will
release earnings results during the 16-day period beginning on the last day of
the “lock up” period, the restrictions imposed by this Section 12 shall
continue to apply until no earlier than the expiration of the 18-day period
beginning on the issuance of the earnings release or the occurrence of the
material news or material event (or no earlier than the 16th day, if the Company does not
issue the earnings release).


 


13.          Effective Date of Plan.  The effective date of the Company’s 2004
Stock Option Plan was May 4, 2004. 
The effective date of this Amended and Restated 2004 Equity Incentive
Plan, which amends, restates and renames the Company’s 2004 Stock Option Plan
(as amended) is [               ,
2010].(1)


 


14.          Expiration and Termination of the
Plan.  Except with
respect to Awards then outstanding, the Plan shall expire on the date (the “Expiration
Date”) which is the first to occur of (i) the tenth anniversary of the
date on which this Amended and Restated 2004 Equity Incentive Plan is approved
by the stockholders of the Company or adopted by the Board, whichever is
earlier, and (ii) the date as of which the Board, in its sole discretion,
determines that the Plan shall terminate. Any Awards outstanding as of the
Expiration Date shall remain in effect until they have been exercised or
terminated or have expired by their respective terms.


 






(1) 
The date of the closing the Initial Public Offering.


 


19

















 


15.          Amendment of Plan.  The Board may at any time prior to the
Expiration Date modify and amend the Plan in any respect; provided, however,
that stockholder approval shall be obtained prior to any such amendment
becoming effective if such approval is required by law or is necessary to
comply with regulations promulgated by the Securities and Exchange Commission
under Section 16(b) of the Exchange Act or with Section 422 of
the Code or the regulations promulgated by the Treasury Department thereunder
and, provided, further that, no amendment, modification,
termination or suspension of the Plan shall in any manner adversely affect any
Award theretofore granted under the Plan, without the consent of the
Participant holding such Award, except that no such consent shall be required
if the Committee determines in its sole discretion that such amendment,
modification or termination either (i) is required or advisable in order
for the Company, the Plan or the Award to satisfy any applicable law or
regulation, stock exchange rule, over-the-counter market rule, or to meet the
requirements of any intended accounting treatment, (ii) is not reasonably
likely to significantly diminish the benefits provided under such Award, unless
such diminishment has been or will be adequately compensated, or (iii) is
permitted under other provisions of the Plan or the Award.


 


16.          No Evidence of Employment or
Service Relationship. 
Nothing contained in the Plan or in any Award Agreement shall confer
upon any Participant any right with respect to the continuation of his or her
employment by, or service relationship with, the Company or any Affiliate or
interfere in any way with the right of the Company or any Affiliate (subject to
the terms of any separate agreement to the contrary), at any time to terminate
such employment or service relationship or to increase or decrease the
compensation of the Participant from the rate in existence at the time of the
grant of an Award.  For purposes of
clarification, Awards granted under the Plan shall not guarantee employment for
the length of all, or any portion, of the vesting schedule of any Award.


 


17.          No Effect on Retirement and Other
Benefit Plans.  Except as
specifically provided in a retirement or other benefit plan of the Company or
an Affiliate, Awards shall not be deemed compensation for purposes of computing
benefits or contributions under any retirement plan of the Company or an
Affiliate, and shall not affect any benefits under any other benefit plan of
any kind or any benefit plan subsequently instituted under which the
availability or amount of benefits is related to level of compensation.  The Plan is not intended to be a plan that is
subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”).  The Plan will be interpreted, construed and
administered consistent with its status as a plan that is not subject to ERISA.


 


18.          Captions.  The use of captions in the Plan is for
convenience.  The captions are not
intended to provide substantive rights.


 


19.          Disqualifying Dispositions.  If Optioned Shares acquired by exercise of an
ISO granted under the Plan are disposed of either within two years following
the Grant Date of the ISO or one year following the transfer of the Optioned
Shares to the Participant (a “Disqualifying Disposition”), the holder of
the Optioned Shares shall, immediately prior to such Disqualifying Disposition,
notify the Company in writing of the date and terms of such Disqualifying
Disposition and provide such other information regarding the Disqualifying
Disposition as the Committee may reasonably require.


 


20

















 


20.          Withholding Taxes.  Whenever under the Plan shares of Common
Stock are to be delivered to a Participant, the Company shall be entitled to
require as a condition of delivery that the Participant remit or, in
appropriate cases, agree to remit when due, an amount sufficient to satisfy all
current or estimated future federal, state and local withholding tax and
employment tax requirements relating thereto. The Committee may in its
discretion permit the minimum statutorily required withholding obligations be
satisfied by having the Company withhold a portion of the shares that would
otherwise be issued to a Participant upon grant or vesting of an Award or the
exercise of an Option or SAR.  At the
time of a Disqualifying Disposition, the Participant shall remit to the Company
in cash the amount of any applicable federal, state and local withholding taxes
and employment taxes or shall make other arrangements, subject to the approval
of the Committee, to satisfy such Participant’s withholding obligations, if
any.


 


21.          Beneficiary Designation.  Each Participant under the Plan may from time
to time name any beneficiary or beneficiaries (who may be named contingently or
successively) by whom any right under the Plan is to be exercised in case of
such Participant’s death.  Each
designation will revoke all prior designations by the same Participant, shall
be in a form reasonably prescribed by the Committee, and shall be effective
only when filed by the Participant in writing with the Committee during his or
her lifetime.


 


22.          Governing Law.  The validity and construction of the Plan and
the instruments evidencing the Awards granted hereunder shall be governed by
the substantive laws of the State of Delaware.


 


21