**Exhibit 10.1**

 

**CAPTIVA SOFTWARE CORPORATION**

 

**2003 RECRUITMENT EQUITY INCENTIVE PLAN**

**(AMENDINGAND RESTATINGTHE 2003 NEW EXECUTIVERECRUITMENT STOCK OPTION PLAN**

 

**ADOPTED: OCTOBER 23, 2003**

**AMENDEDANDRESTATED: JULY 29, 2004**

 

**1.    PURPOSES.**

 

**(a) General Purpose.**    The Company, by means of the Plan, seeks to retain the services of persons not previously an employee or director of the Company, or following a *bona fide* period of non-employment,as an inducement material to the individual’s entering into employment with the Company within the meaning of Rule 4350(i)(1)(A) of the NASD Marketplace Rules, and to provide incentives for such persons to exert maximum efforts for thesuccess of the Company and its Affiliates. 

 

**(b) EligibleStock Award Recipients.**    The persons eligible to receive Stock Awards are the Employees of the Company and its Affiliates hired as employees of the Company. 

 

**(c) Available Stock Awards.**    The purpose of the Plan is to provide a means by which eligiblerecipients of Stock Awards may be given an opportunity to benefit from increases in value of the Common Stock through the granting of the following Stock Awards: (i) Options, (ii) Restricted Stock Awards, (iii) Stock Appreciation Rights (iv) PhantomStock Awards and (v) Other Stock Awards. 

 

**2.    DEFINITIONS.**

 

**(a)*****“Affiliate”******* means any parent corporation or subsidiary corporation of the Company, whether now or hereafter existing, as those terms are defined in Sections 424(e) and (f), respectively, of theCode. 

 

**(b)*****“Board”******* meansthe Board of Directors of the Company. 

 

**(c)*****“Capitalization Adjustment”******* has the meaning ascribed to that term in Section 11(a). 

 

**(d)*****“Cause”******* means, with respect to a particular Participant (i) a felony conviction of such Participant;(ii) the commission by such Participant of an act of fraud or embezzlement against the Company or an Affiliate; (iii) such Participant’s willful misconduct or gross negligence materially detrimental to the Company or an Affiliate; (iv)such Participant’s continued failure to implement reasonable requests or directions received in the course of his service as an Employee; (v) such Participant’s wrongful dissemination or use of confidential or proprietary information; or(vi) the intentional and habitual neglect by such Participant of his or her duties to the Company or an Affiliate.****

 

**(e)*****“Change in Control”******* means or occurs upon (i) a sale or other disposition of all or substantially all of theassets of the Company; (ii) a merger or consolidation in which the Company is not the surviving entity and in which the stockholders of the Company immediately prior to such consolidation or merger Own less than 50% of the surviving entity’svoting power immediately after the transaction; (iii) a reverse merger in which the Company is the surviving entity but the shares of Common Stock outstanding immediately preceding the merger are converted by virtue of the merger into otherproperty, whether in the form of securities, cash or otherwise, and in which the stockholders of the Company immediately prior to such reverse merger Own less than 50% of the Company’s voting power immediately after the transaction; and (iv)any Exchange Act Person becoming the Owner, directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the combined voting power of the Company’s then outstanding securities other than by virtue of amerger, consolidation or similar transaction. 

 

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

**(g)*****“Committee”******* means a committee of one or more members of theBoard appointed by the Board in accordance with Section 3(c). 

 

**(h)*****“Common Stock”******* means the common stock of the Company, or any security of the Company issued in substitution, exchange or lieu thereof. 

 

**(i)*****“Company”******* means Captiva Software Corporation, a Delaware corporation, or anysuccessor corporation. 

 

**(j)*********“Consultant”******* means any person, including an advisor, (i) engaged by the Company or an Affiliate to render consulting or advisory services and who is compensated for such services or (ii) serving as a member ofthe Board of Directors of an Affiliate and who is compensated for such services. However, the term “Consultant” shall not include Directors who are not compensated by the Company for their services as Directors, and the payment of adirector’s fee by the Company for services as a Director shall not cause a Director to be considered a “Consultant” for purposes of the Plan. 

 

**(k)*****“Continuous Service”******* means that the Participant’s service with the Company or an Affiliate, whether as anEmployee, Director or Consultant, is not interrupted or terminated. A change in the capacity in which the Participant renders service to the Company or an Affiliate as an Employee, Consultant or Director or a change in the entity for which theParticipant renders such service, provided that there is no interruption or termination of the Participant’s service with the Company or an Affiliate, shall not terminate a Participant’s Continuous Service. For example, a change in statusfrom an Employee of the Company to a Consultant of an Affiliate or a Director shall not constitute an interruption of Continuous Service. The Board or the chief executive officer of the Company, in that party’s sole discretion, may determinewhether Continuous Service shall be considered interrupted in the case of any leave of absence approved by that party, including sick leave, military leave or any other personal leave. Notwithstanding the foregoing, an approved leave of absenceshall be treated as Continuous Service for purposes of vesting in a Stock Award only to such extent as may be provided in the Company’s leave of absence policy or in the written terms of the Participant’s leave of absence. 

 

**(l)*****“Corporate Transaction”******* means theoccurrence, in a single transaction or in a series of related transactions, of any one or more of the following events: 

 

**(i)**a sale or other disposition of all or substantially all, as determined by the Board in its discretion, of the consolidatedassets of the Company and its Subsidiaries; 

 

**(ii)**a sale or other disposition of at least ninety percent (90%) of the outstanding securities of the Company; 

 

**(iii)**a merger, consolidation or similar transaction following which the Company is not the surviving corporation; or 

 

**(iv)**a merger, consolidation or similartransaction following which the Company is the surviving corporation but the shares of Common Stock outstanding immediately preceding the merger, consolidation or similar transaction are converted or exchanged by virtue of the merger, consolidationor similar transaction into other property, whether in the form of securities, cash or otherwise. 

 

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

 

**(n)*****“Disability”*** means, with respect to aParticipant, such Participant’s permanent and total disability within the meaning of the Company’s long-term disability plan, as it may be amended from time to time, or, if there is no such plan, as determined by the Committee. 

 

**(o)*****“Employee”*** means any person employed bythe Company or an Affiliate. Service as a Director or payment of a director’s fee by the Company or an Affiliate shall not be sufficient to constitute “employment” by the Company or an Affiliate. Subject to the exclusions set forthbelow, the term “Employee” shall include only 

 

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an individual who was hired (and advised that he or she was being hired) directly by the Company or an Affiliate as a regular employee and who performsregular employment services directly for the Company or an Affiliate. Exclusions: The term “Employee” as used in the Plan shall *not* include an individual who works, or who was hired to work, or who was advised that he or she works:(1) as an independent contractor or an employee of an independent contractor; or (2) as a temporary employee, regardless of the length of time that he or she works at the Company or an Affiliate; or (3) through a temporary employment agency, jobplacement agency, or other third party; or (4) as part of an employee leasing arrangement between the Company or an Affiliate and any third party. For the purposes of the Plan, the exclusions described above shall remain in effect even if thedescribed individual could otherwise be construed as an employee under any applicable common law or is subsequently determined under applicable laws to be an employee. 

 

**(p)*****“Entity”*** means a corporation, partnership or other entity. 

 

**(q)*****“Exchange Act”*** means the SecuritiesExchange Act of 1934, as amended. 

 

**(r)****“ExchangeAct Person”** means any natural person, Entity or “group” (within the meaning of Section 13(d) or 14(d) of the Exchange Act), except that “Exchange Act Person” shall not include (A) the Company or any Subsidiary ofthe Company, (B) any employee benefit plan of the Company or any Subsidiary of the Company or any trustee or other fiduciary holding securities under an employee benefit plan of the Company or any Subsidiary of the Company, (C) an underwritertemporarily holding securities pursuant to an offering of such securities, or (D) an Entity Owned, directly or indirectly, by the shareowners of the Company in substantially the same proportions as their Ownership of stock of the Company.

 

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

 

**(i)**If the Common Stock is listed on any established stock exchange or traded on the Nasdaq National Market or the Nasdaq SmallCap Market, the Fair Market Value of a share of Common Stock shall be the closingsales price for such stock (or the closing bid, if no sales were reported) as quoted on such exchange or market (or the exchange or market with the greatest volume of trading in the Common Stock) on the relevant date or, if no shares are traded onsuch date, then on the last market trading day prior to the relevant date. 

 

**(ii)**In the absence of such markets for the Common Stock, the Fair Market Value shall be determined in good faith by the Board. 

 

**(t)*****“Non-Employee Director”*** means a Director who either (i) is not a current Employee orOfficer of the Company or its parent or a subsidiary, does not receive compensation (directly or indirectly) from the Company or its parent or a subsidiary for services rendered as a consultant or in any capacity other than as a Director (except foran amount as to which disclosure would not be required under Item 404(a) of Regulation S-K promulgated pursuant to the Securities Act (“Regulation S-K”)), does not possess an interest in any other transaction as to which disclosure wouldbe required under Item 404(a) of Regulation S-K and is not engaged in a business relationship as to which disclosure would be required under Item 404(b) of Regulation S-K; or (ii) is otherwise considered a “non-employee director” forpurposes of Rule 16b-3. 

 

**(u)*****“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. 

 

**(v)*****“Option”*** means a nonstatutory stock optiongranted pursuant to the Plan that is not intended to qualify as an incentive stock option under Section 422 of the Code and the regulations promulgated thereunder. 

 

**(w)*****“Option Agreement”*** means an agreement between the Company and an Optionholder evidencingthe terms and conditions of an individual Option grant. Each Option Agreement shall be subject to the terms and conditions of the Plan. 

 

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**(x)*****“Optionholder”*** means a person to whom an Option is granted pursuant tothe Plan or, if applicable, such other person who holds an outstanding Option. 

 

**(y)*****“Other Stock Award”*** means an award based in whole or in part by reference to the Common Stock which is granted pursuant to the terms and conditions of Section 7(d). 

 

**(z)*****“Other Stock Award Agreement”*** means anagreement between the Company and a holder of an Other Stock Award evidencing the terms and conditions of an individual Other Stock Award grant. Each Other Stock Award Agreement shall be subject to the terms and conditions of the Plan. 

 

**(aa)*****“Own,” “Owned,” “Owner,”“Ownership”*** A person or Entity shall be deemed to “Own,” to have “Owned,” to be the “Owner” of, or to have acquired “Ownership” of securities if such person or Entity, directly or indirectly,through any contract, arrangement, understanding, relationship or otherwise, has or shares voting power, which includes the power to vote or to direct the voting, with respect to such securities. 

 

**(bb)*****“Participant”*** means a person to whom aStock Award is granted pursuant to the Plan or, if applicable, such other person who holds an outstanding Stock Award. 

 

**(cc)*****“Phantom Stock Award”*** means a right to receive shares of Common Stock which is granted pursuant to the terms andconditions of Section 7(b). 

 

**(dd)*****“PhantomStock Award Agreement”*** means an agreement between the Company and a holder of a Phantom Stock Award evidencing the terms and conditions of an individual Phantom Stock Award grant. Each Phantom Stock Award Agreement shall be subject tothe terms and conditions of the Plan. 

 

**(ee)*****“Restricted Stock Award”*** means an award of shares of Common Stock which is granted pursuant to the terms and conditions of Section 7(a). 

 

**(ff)*****“Restricted Stock Award Agreement”*** means an agreement between the Company and a holder of a Restricted Stock Awardevidencing the terms and conditions of an individual Restricted Stock Award grant. Each Restricted Stock Award Agreement shall be subject to the terms and conditions of the Plan. 

 

**(gg)*****“Plan”*** means this Captiva Software Corporation 2003 Recruitment Equity Incentive Plan.

 

**(hh)*****“Rule 16b-3”*** means Rule16b-3 promulgated under the Exchange Act or any successor to Rule 16b-3, as in effect from time to time. 

 

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

 

**(jj)*****“Stock Appreciation Right”*** means a rightto receive the appreciation of Common Stock which is granted pursuant to the terms and conditions of Section 7(c). 

 

**(kk)*****“Stock Appreciation Right Agreement”*** means an agreement between the Company and a holder of a Stock Appreciation Rightevidencing the terms and conditions of an individual Stock Appreciation Right grant. Each Stock Appreciation Right Agreement shall be subject to the terms and conditions of the Plan. 

 

**(ll)*****“Stock Award”*** means any right granted under the Plan, including an Option, a RestrictedStock Award, Phantom Stock, a Stock Appreciation Right and an Other Stock Award. 

 

**(mm)*****“Stock Award Agreement”*** means an agreement between the Company and a holder of a Stock Award evidencing the terms and conditions of an individual Stock Award grant. Each Stock AwardAgreement shall be subject to the terms and conditions of the Plan. 

 

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**(nn)*****“Subsidiary”*** means, with respect to the Company, (i) any corporationof which more than fifty percent (50%) of the outstanding capital stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether, at the time, stock of any other class or classes of suchcorporation shall have or might have voting power by reason of the happening of any contingency) is at the time, directly or indirectly, Owned by the Company, and (ii) any partnership in which the Company has a direct or indirect interest (whetherin the form of voting or participation in profits or capital contribution) of more than fifty percent (50%). 

 

**3.    ADMINISTRATION.**

 

**(a) Administration by Board.**    The Board shall administer the Plan unless and until the Board delegates administration to acommittee, as provided in Section 3(c). 

 

**(b) Powers ofBoard.**    The Board shall have the power, subject to, and within the limitations of, the express provisions of the Plan: 

 

**(i)**Subject to Section 5 herein, to determine from time to time which of the persons eligible under the Plan shall be granted StockAwards; when and how each Stock Award shall be granted; what type or combination of types of Stock Award shall be granted; the provisions of each Stock Award granted (which need not be identical), including the time or times when a person shall bepermitted to receive Common Stock pursuant to a Stock Award; and the number of shares of Common Stock with respect to which a Stock Award shall be granted to each such person. 

 

**(ii)**To construe and interpret the Plan and Stock Awards granted under it, and to establish, amendand revoke rules and regulations for its administration. The Board, in the exercise of this power, may correct any defect, omission or inconsistency in the Plan or in any Stock Award Agreement, in a manner and to the extent it shall deem necessaryor expedient to make the Plan fully effective. 

 

**(iii)**To amend the Plan or a Stock Award as provided in Section 12. 

 

**(iv)**To terminate or suspend the Plan as provided in Section 13. 

 

**(v)**Generally, to exercise such powers and to perform such acts as the Board deems necessary orexpedient to promote the best interests of the Company and that are not in conflict with the provisions of the Plan. 

 

**(vi)**To adopt such procedures and sub-plans as are necessary or appropriate to permit participation in the Plan by employees whoare foreign nationals or employed outside the United States. 

 

**(c) DELEGATIONTO COMMITTEE.**

 

**(i) General.**    The Board may delegate administration of the Plan to a Committee or Committees of one or moremembers of the Board, and the term ***“Committee”*** shall apply to any person or persons to whom such authority has been delegated. If administration is delegated to a Committee, the Committee shall have, in connection with theadministration of the Plan, the powers theretofore possessed by the Board, including the power to delegate to a subcommittee any of the administrative powers the Committee is authorized to exercise (and references in this Plan to the Board shallthereafter be to the Committee or subcommittee), subject, however, to such resolutions, not inconsistent with the provisions of the Plan, as may be adopted from time to time by the Board. The Board may abolish the Committee at any time and revest inthe Board the administration of the Plan. 

 

**(ii) Rule 16b-3 Compliance.**    In the discretion of the Board, the Committee may consist solely of two or more Non-Employee Directors, in accordance with Rule 16b-3. 

 

**(d) Effect of Board’s Decision.**    Alldeterminations, interpretations and constructions made by the Board in good faith shall not be subject to review by any person and shall be final, binding and conclusive on all persons. 

 

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**4.    SHARES SUBJECTTOTHEPLAN.**

 

**(a) ShareReserve.**    Subject to the provisions of Section 11(a) relating to Capitalization Adjustments, the shares of Common Stock that may be issued pursuant to Stock Awards shall not exceed in the aggregate five hundred thousand(500,000) shares of Common Stock. 

 

**(b) Reversion of Sharesto the Share Reserve**. If any Stock Award shall for any reason expire or otherwise terminate, in whole or in part, without having been exercised in full, or if any shares of Common Stock issued to a Participant pursuant to a Stock Award areforfeited back to or repurchased by the Company, including, but not limited to, any repurchase or forfeiture caused by the failure to meet a contingency or condition required for the vesting of such shares, then the shares of Common Stock notacquired under such Stock Award, or forfeited back to or repurchased by the Company, shall revert to and again become available for issuance under the Plan. If any shares subject to a Stock Award are not delivered to a Participant because suchshares are withheld for taxes or the Stock Award is exercised through a reduction of shares subject to the Stock Award (i.e., “net exercised”), then the shares that are not delivered to the Participant as a result thereof shall revert toand again become available for issuance under the Plan. If the exercise price of any Stock Award is satisfied by tendering shares of Common Stock held by the Participant (either by actual delivery or attestation), then the number of shares sotendered shall revert to and again become available for issuance under the Plan. 

 

**(c) Source of Shares.** The shares of Common Stock subject to the Plan may be unissued shares or reacquired shares, bought on the market or otherwise. 

 

**5.    ELIGIBILITY.**

 

Persons eligible for Stock Awards shall consist of Employees whose potential contribution, in the judgment of the Committee,will benefit the future success of the Company and/or an Affiliate. Stock Awards may be granted only to persons not previously an Employee or Director of the Company, or following a *bona fide* period of non-employment, as an inducementmaterial to the individual’s entering into employment with the Company within the meaning of Rule 4350(i)(1)(A) of the NASD Marketplace Rules. In addition, notwithstanding any other provision of the Plan to the contrary, all Stock Awards mustbe granted either by a majority of the Company’s independent directors or a committee comprised of a majority of independent directors. 

 

**6.    OPTION PROVISIONS.**

 

Each Option shall be in such form and shall contain such terms and conditions as the Board shall deem appropriate. AllOptions shall be designated as nonstatutory stock options at the time of grant. The provisions of separate Options need not be identical, but each Option shall include (through incorporation of provisions hereof by reference in the Option orotherwise) the substance of each of the following provisions: 

 

**(a) Term.**    The Board shall determine the term of an Option. 

 

**(b) Exercise Price of an Option.**    The Board, in its discretion, shall determine the exercise price of each Option.

 

**(c) Consideration.**    The purchaseprice of Common Stock acquired pursuant to an Option shall be paid, to the extent permitted by applicable law, either (i) in cash at the time the Option is exercised or (ii) at the discretion of the Board (1) by delivery to the Company of otherCommon Stock, (2) by a “net exercise” of the Option (as further described below) or (3) in any other form of legal consideration that may be acceptable to the Board. Unless otherwise specifically provided in the Option, the purchase priceof Common Stock acquired pursuant to an Option that is paid by delivery to the Company of other Common Stock acquired, directly or indirectly from the Company, shall be paid only by shares of the Common Stock of the Company that have been held formore than six (6) months (or such longer or shorter period of time required to avoid a charge to earnings for financial accounting purposes). 

 

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In the case of a “net exercise” of an Option, the Company will not require a payment of theexercise price of the Option from the Participant but will reduce the number of shares of Common Stock issued upon the exercise by the largest number of whole shares that has a Fair Market Value that does not exceed the aggregate exercise price.With respect to any remaining balance of the aggregate exercise price, the Company shall accept a cash payment from the Participant. The shares of Common Stock so used to pay the exercise price of an Option under a “net exercise” will beconsidered to have resulted from the exercise of the Option, and accordingly, the Option will not again be exercisable with respect to such shares, the shares actually delivered to the Participant, and any shares withheld for purposes of taxwithholding. 

 

**(d) Transferability of anOption.**    An Option shall be transferable to the extent provided in the Option Agreement. If the Option does not provide for transferability, then the Option shall not be transferable except by (a) will, (b) the laws ofdescent and distribution, or (c) upon dissolution of the Optionholder’s marriage pursuant to a domestic relations order. Also, during the Optionholder’s lifetime, only the Optionholder is entitled to exercise his or her Option.Notwithstanding the foregoing, by delivering written notice to the Company, in a form satisfactory to the Company, an Optionholder may designate a third party who, in the event of such Optionholder’s death, shall thereafter be entitled toexercise the Option. 

 

**(e) VestingGenerally.**    The total number of shares of Common Stock subject to an Option may, but need not, vest and therefore become exercisable in periodic installments that may, but need not, be equal. The Option may be subject tosuch other terms and conditions on the time or times when it may be exercised (which may be based on performance or other criteria) as the Board may deem appropriate. The vesting provisions of individual Options may vary. The provisions of thisSection 6(d) are subject to any Option provisions governing the minimum number of shares of Common Stock as to which an Option may be exercised. 

 

**(f) Termination of Continuous Service.**    In the event that an Optionholder’s Continuous Service terminates (other thanfor Cause or upon the Optionholder’s death or Disability), the Optionholder may exercise his or her Option (to the extent that the Optionholder was entitled to exercise such Option as of the date of termination) but only within such period oftime ending on the earlier of (i) the date three (3) months following the termination of the Optionholder’s Continuous Service (or such longer or shorter period specified in the Option Agreement) or (ii) the expiration of the term of the Optionas set forth in the Option Agreement. If, after termination, the Optionholder does not exercise his or her Option within the time specified in the Option Agreement, the Option shall terminate. 

 

**(g) Extension of Termination Date.**    AnOptionholder’s Option Agreement may also provide that if the exercise of the Option following the termination of the Optionholder’s Continuous Service (other than for Cause or upon the Optionholder’s death or Disability) would beprohibited at any time solely because the issuance of shares of Common Stock would violate the registration requirements under the Securities Act, then the Option shall terminate on the earlier of (i) the expiration of the term of the Option setforth in the Option Agreement or (ii) the expiration of a period of three (3) months after the termination of the Optionholder’s Continuous Service during which the exercise of the Option would not be in violation of such registrationrequirements. 

 

**(h) Disability ofOptionholder.**    In the event that an Optionholder’s Continuous Service terminates as a result of the Optionholder’s Disability, the Optionholder may exercise his or her Option (to the extent that the Optionholderwas entitled to exercise such Option as of the date of termination), but only within such period of time ending on the earlier of (i) the date twelve (12) months following such termination (or such longer or shorter period specified in the OptionAgreement) or (ii) the expiration of the term of the Option as set forth in the Option Agreement. If, after termination, the Optionholder does not exercise his or her Option within the time specified herein, the Option shall terminate. 

 

**(i) Death of Optionholder.**    In the event that(i) an Optionholder’s Continuous Service terminates as a result of the Optionholder’s death or (ii) the Optionholder dies within the period (if any) specified in the Option Agreement after the termination of the Optionholder’sContinuous Service for a reason other than death, then the 

 

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Option may be exercised (to the extent the Optionholder was entitled to exercise such Option as of the date of death) by the Optionholder’s estate, by aperson who acquired the right to exercise the Option by bequest or inheritance or by a person designated to exercise the option upon the Optionholder’s death pursuant to Section 6(c), but only within the period ending on the earlier of (1) thedate thirty-six (36) months following the date of death (or such longer or shorter period specified in the Option Agreement) or (2) the expiration of the term of such Option as set forth in the Option Agreement. If, after death, the Option is notexercised within the time specified herein, the Option shall terminate. 

 

**(j) Termination for Cause.**    In the event an Optionholder’s Continuous Service is terminated for Cause, the Option shall terminate upon the termination date of such Optionholder’s Continuous Service andthe Optionholder is prohibited from exercising his or her Option from and after the time of such termination. 

 

**(k) Early Exercise.**    The Option may, but need not, include a provision whereby the Optionholder may elect at any time beforethe Optionholder’s Continuous Service terminates to exercise the Option as to any part or all of the shares of Common Stock subject to the Option prior to the full vesting of the Option. Any unvested shares of Common Stock so purchased may besubject to a repurchase option in favor of the Company or to any other restriction the Board determines to be appropriate. The Company will not exercise its repurchase option until at least six (6) months (or such longer or shorter period of timerequired to avoid a charge to earnings for financial accounting purposes) have elapsed following exercise of the Option unless the Board otherwise specifically provides in the Option. 

 

**7.    PROVISIONSOF STOCK AWARDSOTHERTHAN OPTIONS.**

 

**(a)Restricted Stock Awards.**    Each Restricted Stock Award agreement shall be in such form and shall contain such terms and conditions as the Board shall deem appropriate. At the Board’s election, shares of Common Stock maybe (i) held in book entry form subject to the Company’s instructions until any restrictions relating to the Restricted Stock Award lapse; or (ii) evidenced by a certificate, which certificate shall be held in such form and manner as determinedby the Board. The terms and conditions of Restricted Stock Award Agreements may change from time to time, and the terms and conditions of separate Restricted Stock Award Agreements need not be identical, *provided, however,*that eachRestricted Stock Award Agreement shall include (through incorporation of the provisions hereof by reference in the agreement or otherwise) the substance of each of the following provisions: 

 

**(i) Purchase Price.**    At thetime of the grant of a Restricted Stock Award, the Board will determine the price to be paid by the Participant for each share subject to the Restricted Stock Award. To the extent required by applicable law, the price to be paid by the Participantfor each share of the Restricted Stock Award will not be less than the par value of a share of Common Stock. A Restricted Stock Award may be awarded as a stock bonus (*i.e.,*with no cash purchase price to be paid) to the extent permissibleunder applicable law. 

 

**(ii)Consideration.**    At the time of the grant of a Restricted Stock Award, the Board will determine the consideration permissible for the payment of the purchase price of the Restricted Stock Award. The purchase price of CommonStock acquired pursuant to the Restricted Stock Award shall be paid either: (i) in cash at the time of purchase; (ii) by services rendered or to be rendered to the Company; or (iii) in any other form of legal consideration that may be acceptable tothe Board in its discretion. 

 

**(iii)Vesting.**    Shares of Common Stock acquired under a Restricted Stock Award may, but need not, be subject to a share repurchase option in favor of the Company in accordance with a vesting schedule to be determined by theBoard. 

 

**(iv) Termination ofParticipant’s Continuous Service.**    In the event that a Participant’s Continuous Service terminates, the Company shall have the right, but not the obligation, to repurchase or otherwise reacquire for noconsideration any or all of the shares of Common Stock held by the Participant that have not vested as of the date of termination under the terms of the Restricted Stock Award Agreement. At the 

 

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Board’s election, the repurchase right may be at the lower of: (i) the Fair Market Value on the relevant date; or (ii) the Participant’s originalcost. The Company will not exercise its repurchase option until at least six (6) months (or such longer or shorter period of time required to avoid a charge to earnings for financial accounting purposes) have elapsed following the purchase of therestricted stock unless otherwise determined by the Board or provided in the Restricted Stock Award Agreement. 

 

**(v) Transferability.**    Rights to purchase or receive shares of Common Stock granted under a Restricted StockAward shall be transferable by the Participant only upon such terms and conditions as are set forth in the Restricted Stock Award Agreement, as the Board shall determine in its discretion, and so long as Common Stock awarded under the RestrictedStock Award remains subject to the terms of the Restricted Stock Award Agreement. 

 

**(b) Phantom Stock.**    Each Phantom Stock Award Agreement shall be in such form and shall contain such terms and conditions as the Board shall deem appropriate. The terms and conditions ofthe Phantom Stock agreements may change from time to time, and the terms and conditions of separate Phantom Stock agreements need not be identical, *provided, however,*that each Phantom Stock agreement shall include (through incorporation ofthe provisions hereof by reference in the agreement or otherwise) the substance of each of the following provisions:****

 

**(i) Consideration.**    At the time of grant of a Phantom Stock Award, the Board will determine theconsideration, if any, to be paid by the Participant upon delivery of each share of Common Stock subject to the Phantom Stock Award. To the extent required by applicable law, the consideration to be paid by the Participant for each share of CommonStock subject to a Phantom Stock Award will not be less than the par value of a share of Common Stock. The consideration may be paid in any form permitted under applicable law. 

 

**(ii) Vesting.**    At the time of the grant of a Phantom Stock Award, the Board mayimpose such restrictions or conditions to the vesting of the Phantom Stock Award as it, in its absolute discretion, deems appropriate. 

 

**(iii) Additional Restrictions.**    At the time of the grant of Phantom Stock, the Board may impose suchrestrictions or conditions that delay the delivery of the consideration after its vesting as the Board, in its absolute discretion, deems appropriate, with such terms to be contained in the Phantom Stock agreement. 

 

**(iv) Payment**.    Phantom StockAwards may be settled in Common Stock or in cash or any combination of the two, or in any other form of consideration as determined by the Board and contained in the Phantom Stock Award Agreement. 

 

**(v) DividendEquivalents.    **Dividend equivalents may be credited in respect of shares covered by a Phantom Stock Award, as determined by the Board and contained in the Phantom Stock Award Agreement. At the discretion of the Board, suchdividend equivalents may be converted into additional shares covered by the Phantom Stock Award in such manner as determined by the Board. Any additional shares covered by the Phantom Stock Award credited by reason of such dividend equivalents willbe subject to all the terms and conditions of the underlying Phantom Stock Award Agreement to which they relate. 

 

**(vi) Termination of Participant’s Continuous Service.    **Except as otherwise provided in the applicablePhantom Stock Award Agreement, such portion of the Phantom Stock Award that has not vested will be forfeited upon the Participant’s termination of service for any reason. 

 

**(c) Stock Appreciation Rights.    **Each Stock Appreciation Right Agreement shall be in such formand shall contain such terms and conditions as the Board shall deem appropriate. The terms and conditions of Stock Appreciation Right Agreements may change from time to time, and the terms and conditions of separate Stock Appreciation RightAgreements need not be identical, but each Stock Appreciation Right Agreement shall include (through incorporation of provisions hereof by reference in the agreement or otherwise) the substance of each of the following provisions: ****

 

**(i) Strike Price and Calculation ofAppreciation.**    Each Stock Appreciation Right will be denominated in share of Common Stock equivalents. The appreciation distribution payable on the exercise 

 

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of a Stock Appreciation Right will be not greater than an amount equal to the excess of (A) the aggregate Fair Market Value (on the date of the exercise ofthe Stock Appreciation Right) of a number of shares of Common Stock equal to the number of share of Common Stock equivalents in which the Participant is vested under such Stock Appreciation Right and with respect to which the Participant isexercising the Stock Appreciation Right on such date, over (B) an amount that will be determined by the Committee at the time of grant of the Stock Appreciation Right. 

 

**(ii) Vesting.    **At the time of the grant of a Stock Appreciation Right, theBoard may impose such restrictions or conditions to the vesting of such Stock Appreciate Right as it, in its absolute discretion, deems appropriate. 

 

**(iii) Exercise.**    To exercise any outstanding Stock Appreciation Right, the Participant must provide notice ofexercise to the Company in compliance with the provisions of the Stock Appreciation Right Agreement evidencing such Stock Appreciation Right. 

 

**(iv) Payment**.    A Stock Appreciation Right may be paid in Common Stock or in cash or any combination of thetwo, or in any other form of consideration as determined by the Board and contained in the Stock Appreciation Right Agreement evidencing such Stock Appreciation Right. 

 

**(v) Termination of Continuous Service.**    In the event that a Participant’sContinuous Service terminates, the Participant may exercise his or her Stock Appreciation Right (to the extent that the Participant was entitled to exercise such Stock Appreciation Right as of the date of termination) but only within such period oftime ending on the earlier of (i) the date three (3) months following the termination of the Participant’s Continuous Service (or such longer or shorter period specified in the Stock Appreciation Right Agreement) or (ii) the expiration of theterm of the Stock Appreciation Right as set forth in the Stock Appreciation Right Agreement. If, after termination, the Participant does not exercise his or her Stock Appreciation Right within the time specified in the Stock Appreciation RightAgreement, the Stock Appreciation Right shall terminate. 

 

**(d) Other Stock Awards**.    Other forms of Stock Awards valued in whole or in part by reference to, or otherwise based on, Common Stock may be granted either alone or in addition to Stock Awards provided for underSection 6 and the preceding provisions of this Section 7. Subject to the provisions of the Plan, the Board shall have sole and complete authority to determine the persons to whom and the time or times at which such Other Stock Awards will begranted, the number of shares of Common Stock (or the cash equivalent thereof) to be granted pursuant to such Awards and all other terms and conditions of such Awards. 

 

**8.    SECURITIES LAW COMPLIANCE.**

 

The Company shall seek to obtain from each regulatory commission or agencyhaving jurisdiction over the Plan such authority as may be required to grant Stock Awards and to issue and sell shares of Common Stock upon exercise of the Stock Awards; *provided, however,* that this undertaking shall not require the Companyto register under the Securities Act the Plan, any Stock Award or any Common Stock issued or issuable pursuant to any such Stock Award. If, after reasonable efforts, the Company is unable to obtain from any such regulatory commission or agency theauthority which counsel for the Company deems necessary for the lawful issuance and sale of Common Stock under the Plan, the Company shall be relieved from any liability for failure to issue and sell Common Stock upon exercise of such Stock Awardsunless and until such authority is obtained. 

 

**9.    USEOF PROCEEDSFROM STOCK.**

 

Proceeds from the sale of Common Stock pursuant to Stock Awards shall constitute general funds of the Company. 

 

**10.    MISCELLANEOUS.**

 

**(a) Acceleration of Exercisability andVesting.**    The Board shall have the power to accelerate the time at which a Stock Award may first be exercised or the time during which a Stock Award or any part thereof will vest 

 

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in accordance with the Plan, notwithstanding the provisions in the Stock Award stating the time at which it may first be exercised or the time during whichit will vest. 

 

**(b) ShareownerRights.**    No Participant shall be deemed to be the holder of, or to have any of the rights of a holder with respect to, any shares of Common Stock subject to such Stock Award unless and until such Participant has satisfiedall requirements for exercise of the Stock Award pursuant to its terms. 

 

**(c) No Employment or other Service Rights.**    Nothing in the Plan or any instrument executed or Stock Award granted pursuant thereto shall confer upon any Participant any right to continue to serve the Company oran Affiliate in the capacity in effect at the time the Stock Award was granted or shall affect the right of the Company or an Affiliate to terminate (i) the employment of an Employee with or without notice and with or without cause, (ii) the serviceof a Consultant pursuant to the terms of such Consultant’s agreement with the Company or an Affiliate or (iii) the service of a Director pursuant to the Bylaws of the Company or an Affiliate, and any applicable provisions of the corporate lawof the state in which the Company or the Affiliate is incorporated, as the case may be. 

 

**(d) Investment Assurances.**    The Company may require a Participant, as a condition of exercising or acquiring Common Stock under any Stock Award, (i) to give written assurances satisfactoryto the Company as to the Participant’s knowledge and experience in financial and business matters and/or to employ a purchaser representative reasonably satisfactory to the Company who is knowledgeable and experienced in financial and businessmatters and that he or she is capable of evaluating, alone or together with the purchaser representative, the merits and risks of exercising the Stock Award; and (ii) to give written assurances satisfactory to the Company stating that theParticipant is acquiring Common Stock subject to the Stock Award for the Participant’s own account and not with any present intention of selling or otherwise distributing the Common Stock. The foregoing requirements, and any assurances givenpursuant to such requirements, shall be inoperative if (1) the issuance of the shares of Common Stock upon the exercise or acquisition of Common Stock under the Stock Award has been registered under a then currently effective registration statementunder the Securities Act or (2) as to any particular requirement, a determination is made by counsel for the Company that such requirement need not be met in the circumstances under the then applicable securities laws. The Company may, upon adviceof counsel to the Company, place legends on stock certificates issued under the Plan as such counsel deems necessary or appropriate in order to comply with applicable securities laws, including, but not limited to, legends restricting the transferof the Common Stock. 

 

**(e) WithholdingObligations.**    To the extent provided by the terms of a Stock Award Agreement, the Participant may, with the approval of the Committee, satisfy any federal, state or local tax withholding obligation relating to the exerciseor acquisition of Common Stock under a Stock Award by any of the following means (in addition to the Company’s right to withhold from any compensation paid to the Participant by the Company) or by a combination of such means: (i) tendering acash payment; (ii) authorizing the Company to withhold shares of Common Stock from the shares of Common Stock otherwise issuable to the Participant as a result of the exercise or acquisition of Common Stock under the Stock Award; *provided,however,* that no shares of Common Stock are withheld with a value exceeding the minimum amount of tax required to be withheld by law (or such lesser amount as may be necessary to avoid variable award accounting); or (iii) delivering to theCompany owned and unencumbered shares of Common Stock. 

 

**11.    ADJUSTMENTSUPON CHANGESIN STOCK.**

 

**(a) Capitalization Adjustments**.    If any change is made in, or other event occurs with respect to, the Common Stock subject tothe Plan or subject to any Stock Award without the receipt of consideration by the Company (through merger, consolidation, reorganization, recapitalization, reincorporation, stock dividend, dividend in property other than cash, stock split,liquidating dividend, combination of shares, exchange of shares, change in corporate structure or other transaction not involving the receipt of consideration by the Company (each a “Capitalization Adjustment”), the Plan will beappropriately adjusted in the class(es) and maximum 

 

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number of securities subject to the Plan pursuant to Sections 4(a) and 4(b) and the maximum number of securities subject to award to any person pursuant toSection 5(c), and the outstanding Stock Awards will be appropriately adjusted in the class(es) and number of securities and price per share of Common Stock subject to such outstanding Stock Awards. The Board shall make such adjustments, and itsdetermination shall be final, binding and conclusive. (The conversion of any convertible securities of the Company shall not be treated as a transaction “without receipt of consideration” by the Company.) 

 

**(b) Dissolution or Liquidation**.    In the event ofa dissolution or liquidation of the Company, then all outstanding Stock Awards shall terminate immediately prior to the completion of such dissolution or liquidation. 

 

**(c) Corporate Transaction**.    In the event of a Corporate Transaction, any surviving corporationor acquiring corporation may assume or continue any or all Stock Awards outstanding under the Plan or may substitute similar stock awards for Stock Awards outstanding under the Plan (it being understood that similar stock awards include, but are notlimited to, awards to acquire the same consideration paid to the shareowners or the Company, as the case may be, pursuant to the Corporate Transaction), and any reacquisition or repurchase rights held by the Company in respect of Common Stock issuedpursuant to Stock Awards may be assigned by the Company to the successor of the Company (or the successor’s parent company), if any, in connection with such Corporate Transaction. In the event that any surviving corporation or acquiringcorporation does not assume or continue all such outstanding Stock Awards or substitute similar stock awards for all such outstanding Stock Awards, then with respect to Stock Awards that have been not assumed, continued or substituted and that areheld by Participants whose Continuous Service has not terminated prior to the effective time of the Corporate Transaction, the vesting of such Stock Awards (and, if applicable, the time at which such Stock Awards may be exercised) shall (contingentupon the effectiveness of the Corporate Transaction) be accelerated in full to a date prior to the effective time of such Corporate Transaction as the Board shall determine (or, if the Board shall not determine such a date, to the date that is five(5) days prior to the effective time of the Corporate Transaction), such Stock Awards shall terminate if not exercised (if applicable) at or prior to such effective time, and any reacquisition or repurchase rights held by the Company with respect tosuch Stock Awards shall (contingent upon the effectiveness of the Corporate Transaction) lapse. With respect to any other Stock Awards outstanding under the Plan that have not been assumed, continued or substituted, the vesting of such Stock Awards(and, if applicable, the time at which such Stock Award may be exercised) shall not be accelerated, unless otherwise provided in a written agreement between the Company or any Affiliate and the holder of such Stock Award, and such Stock Awards shallterminate if not exercised (if applicable) prior to the effective time of the Corporate Transaction. 

 

**(d) Change in Control.**    A Stock Award held by any Participant whose Continuous Service has not terminated prior to theeffective time of a Change in Control may be subject to additional acceleration of vesting and exercisability upon or after such event as may be provided in the Stock Award Agreement for such Stock Award or as may be provided in any other writtenagreement between the Company or any Affiliate and the Participant, but in the absence of such provision, no such acceleration shall occur. 

 

**12.    AMENDMENTOFTHE PLANAND STOCKAWARDS.**

 

**(a) Amendment ofPlan.**    The Board at any time, and from time to time, may amend the Plan. However, except as provided in Section 11(a) relating to Capitalization Adjustments, no amendment shall be effective unless approved by theshareowners of the Company to the extent shareowner approval is necessary to satisfy applicable law. 

 

**(b) No Impairment of Rights.**    Rights under any Stock Award granted before amendment of the Plan shall not be impaired by anyamendment of the Plan unless (i) the Company requests the consent of the Participant and (ii) the Participant consents in writing. 

 

**(c) Amendment of Stock Awards.**    The Board at any time, and from time to time, may amend the terms of any one or more StockAwards to provide terms more favorable than previously provided in the Stock Award 

 

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Agreement, subject to any specified limits in the Plan that are not subject to Board discretion; *provided, however,* that the rights under any StockAward shall not be impaired by any such amendment unless (i) the Company requests the consent of the Participant and (ii) the Participant consents in writing. 

 

**(d) Repricings.**    Notwithstanding the foregoing, the Board may not effect at any time (1) the reduction of the exerciseprice of any outstanding Option under the Plan, (2) the cancellation of any outstanding Option under the Plan and the grant in substitution therefor of (A) a new Option under the Plan or another equity plan of the Company covering the same or adifferent number of shares of Common Stock, (B) a Restricted Stock Award, (C) a Stock Appreciation Right, (D) a Phantom Stock Award, (E) an Other Stock Award, (F) cash and/or (G) other valuable consideration (as determined by the Board, in itssole discretion), or (3) any other action that is treated as a repricing under generally accepted accounting principles without first obtaining shareholder approval for such action.****

 

**13.    TERMINATIONORSUSPENSIONOFTHE PLAN.**

 

**(a) Plan Term.**    The Board may suspend or terminate the Plan at any time. No Stock Awards may be granted under the Plan while the Plan is suspended or after it is terminated. 

 

**(b) No Impairment of Rights.**    Suspension ortermination of the Plan shall not impair rights and obligations under any Stock Award granted while the Plan is in effect except with the consent of the Participant. 

 

**14.    EFFECTIVE DATEOF PLAN.**

 

The Plan shall become effective as determined by the Board. 

 

**15.    CHOICEOF LAW.**

 

The law of the State of Delaware shall govern allquestions concerning the construction, validity and interpretation of this Plan, without regard to such state’s conflict of laws rules. 

 

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