EXHIBIT 10.1


 


SUPERGEN,
INC.


 


2003
STOCK PLAN


 


(as
amended March 10, 2005)


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(q)           “Employee”
means any person, including Officers and Directors, employed by the Company or
any Parent or Subsidiary of the Company. 
A Service Provider shall not cease to be an Employee in the case of (i) any
leave of absence approved by the Company or (ii) transfers between
locations of the Company or between the Company, its Parent, any Subsidiary, or
any successor.  For purposes of Incentive
Stock Options, no such leave may exceed ninety days, unless reemployment upon
expiration of such leave is guaranteed by statute or contract.  If reemployment upon expiration of a leave of
absence approved by the Company is not so guaranteed, then three (3) months
following the 91st day of such leave any Incentive Stock Option held
by the Participant shall cease to be treated as an Incentive Stock Option and
shall be treated for tax purposes as a Nonstatutory Stock Option.  Neither service as a Director nor payment of
a director’s fee by the Company shall be sufficient to constitute “employment”
by the Company.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


3.             Stock Subject to the Plan.  Subject
to the provisions of Section 16 of
the Plan, the maximum aggregate number of Shares that may be optioned and sold
under the Plan is 5,500,000 Shares plus
(a) any Shares which have been reserved but not issued under the Company’s
1993 Stock Option Plan (the “1993 Plan”) as of the expiration of the 1993 Plan
on December 3, 2003 and (b) following the expiration of the 1993
Plan, any Shares which would otherwise have been returned to the 1993 Plan as a
result of termination of options or repurchase of Shares issued under the 1993
Plan.  The Shares may be
authorized, but unissued, or reacquired Common Stock.


 


Any Shares subject to Awards shall be counted against
the numerical limits of this Section 3 as one Share for every Share
subject thereto.  If an Award expires or
becomes unexercisable without having been exercised in full, or, with respect
to Restricted Stock or Restricted Stock Units, is


 


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forfeited to or repurchased by the Company, the unpurchased Shares (or
for Awards other than Options and SARs, the forfeited or repurchased shares)
which were subject thereto shall become available for future grant or sale
under the Plan (unless the Plan has terminated).  With respect to SARs, only Shares actually
issued pursuant to an SAR shall cease to be available under the Plan.  Shares that have actually been issued under
the Plan under any Award shall not be returned to the Plan and shall not become
available for future distribution under the Plan; provided, however, that if
Shares of Restricted Stock or Restricted Stock Units are repurchased by the
Company at their original purchase price or are forfeited to the Company, such
Shares shall become available for future grant under the Plan.  Shares used to pay the exercise price of an
Option shall become available for future grant or sale under the Plan.  Shares used to satisfy tax withholding
obligations shall become available for future grant or sale under the Plan.


 


4.             Administration of the Plan.


 


(a)           Procedure.


 


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


 


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


 


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


 


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


 


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


 


(i)            to
determine the Fair Market Value;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


6.             Limitations.


 


(a)           Each
Option shall be designated in the Option Agreement as either an Incentive Stock
Option or a Nonstatutory Stock Option. 
However, notwithstanding such designation, to the extent that the
aggregate Fair Market Value of the Shares with respect to which Incentive Stock
Options are


 


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


 


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


 


7.             Code Section 162(m) Provisions.


 


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


 


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


 


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


 


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


 


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


 


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


 


10.           Option Exercise Price and Consideration.


 


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


 


(i)            In
the case of an Incentive Stock Option


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(i)            cash;


 


(ii)           check;


 


(iii)          promissory
note;


 


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


 


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


 


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


 


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


 


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


 


11.           Exercise of Option.


 


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


 


An Option shall be deemed exercised when the Company
receives: (i) written or electronic notice of exercise (in accordance with
the Option Agreement) from the person entitled to exercise the Option, and (ii) full
payment for the Shares with respect to which the Option is exercised.  Full payment may consist of any consideration
and method of payment authorized by the Administrator and permitted by the
Option Agreement and the Plan.  Shares
issued upon exercise of an Option shall be issued in the name of the
Participant or, if requested by the Participant, in the name of the Participant
and his or her spouse.  Until the Shares
are issued (as evidenced by the appropriate entry on the books of the Company
or of a duly authorized transfer agent of the Company), no right to vote


 


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or receive dividends or any other rights as a stockholder shall exist
with respect to the Optioned Stock, notwithstanding the exercise of the
Option.  The Company shall issue (or
cause to be issued) such Shares promptly after the Option is exercised.  No adjustment will be made for a dividend or
other right for which the record date is prior to the date the Shares are
issued, except as provided in Section 16 of the Plan.


 


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


 


(b)           Termination
of Relationship as a Service Provider. 
If an Participant ceases to be a Service Provider, other than upon the
Participant’s death or Disability, the Participant may exercise his or her
Option within such period of time as is specified in the Option Agreement to
the extent that the Option is vested on the date of termination (but in no
event later than the expiration of the term of such Option as set forth in the
Option Agreement).  In the absence of a
specified time in the Option Agreement, the Option shall remain exercisable for
three (3) months following the Participant’s termination.  If, on the date of termination, the
Participant is not vested as to his or her entire Option, the Shares covered by
the unvested portion of the Option shall revert to the Plan.  If, after termination, the Participant does
not exercise his or her Option within the time specified by the Administrator,
the Option shall terminate, and the Shares covered by such Option shall revert
to the Plan.


 


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


 


(d)           Death
of Participant.  If an Participant
dies while a Service Provider, the Option may be exercised following the
Participant’s death within such period of time as is specified in the Option
Agreement to the extent that the Option is vested on the date of death (but in
no event may the option be exercised later than the expiration of the term of
such Option as set forth in the Option Agreement), by the Participant’s
designated beneficiary, provided such beneficiary has been designated prior to
Participant’s death in a form acceptable to the Administrator.  If no such beneficiary has been designated by
the Participant, then such Option may be exercised by the personal
representative of the Participant’s estate or by the person(s) to whom the
Option is transferred pursuant to the Participant’s will or in accordance with
the laws of descent and distribution.  In
the absence of a specified time in the Option Agreement, the Option shall
remain


 


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exercisable
for twelve (12) months following Participant’s death.  If, at the time of death, Participant is not
vested as to his or her entire Option, the Shares covered by the unvested
portion of the Option shall immediately revert to the Plan.  If the Option is not so exercised within the
time specified herein, the Option shall terminate, and the Shares covered by
such Option shall revert to the Plan.


 


12.           Stock Purchase Rights.


 


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


 


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


 


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


 


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


 


13.           Stock Appreciation Rights.


 


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


 


(b)           Exercise
Price and other Terms.  The per share
exercise price for the Shares to be issued pursuant to exercise of an SAR shall
be determined by the Administrator and shall be no less than 100% of the Fair
Market Value per share on the date of grant. 
Otherwise, subject to Section


 


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7(a) of
the Plan, the Administrator, subject to the provisions of the Plan, shall have
complete discretion to determine the terms and conditions of SARs granted under
the Plan; provided, however, that no SAR may have a term of more than ten (10) years
from the date of grant.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(i)            Disability.  If a Participant ceases to be a Service
Provider as a result of the Participant’s Disability, the Participant may
exercise his or her SAR within such period of time as is specified in the SAR
Agreement to the extent the SAR is vested on the date of termination (but in no
event later than the expiration of the term of such SAR as set forth in the SAR
Agreement).  In the absence of a
specified time in the SAR Agreement, the SAR shall remain exercisable for
twelve (12)


 


13





















 


months
following the Participant’s termination. 
If, on the date of termination, the Participant is not vested as to his
or her entire SAR, the Shares covered by the unvested portion of the SAR shall
revert to the Plan.  If, after
termination, the Participant does not exercise his or her SAR within the time
specified herein, the SAR shall terminate, and the Shares covered by such SAR
shall revert to the Plan.


 


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


 


14.           Restricted Stock Units.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


15





















 


respect
to Options and SARs) or vested (with respect to other Awards), an Award will
terminate immediately prior to the consummation of such proposed action.


 


(c)           Merger
or Change in Control.


 


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


 


(ii)           Restricted
Stock and Restricted Stock Units.  In
the event of a Change of Control, each outstanding Restricted Stock and
Restricted Stock Unit award shall be assumed or an equivalent Restricted Stock
or Restricted Stock Unit award substituted by the successor corporation or a
Parent or Subsidiary of the successor corporation.  In the event that the successor corporation
refuses to assume or substitute for the Restricted Stock or Restricted Stock
Unit award, the Participant shall fully vest in the Restricted Stock or
Restricted Stock Unit award including as to Shares which would not otherwise be
vested.  For the purposes of this
paragraph, a Restricted Stock, or Restricted Stock Units award shall be
considered assumed if, following the Change of Control, the award confers the
right to purchase or receive, for each Share subject to the Award immediately
prior to the Change of Control, the consideration (whether stock, cash, or
other securities or property) received in the Change of Control by holders of
Common Stock for each Share held on the effective


 


16





















 


date of
the transaction (and if holders were offered a choice of consideration, the
type of consideration chosen by the holders of a majority of the outstanding
Shares); provided, however, that if such consideration received in the Change
of Control is not solely common stock of the successor corporation or its
Parent, the Administrator may, with the consent of the successor corporation,
provide for the consideration to be received, for each Share and each
unit/right to acquire a Share subject to the Award, to be solely common stock
of the successor corporation or its Parent equal in fair market value to the
per share consideration received by holders of Common Stock in the Change of
Control.


 


17.           Date of Grant.  The date of grant of an Award
shall be, for all purposes, the date on which the Administrator makes the
determination granting such Award, or such other later date as is determined by
the Administrator.  Notice of the
determination shall be provided to each Participant within a reasonable time
after the date of such grant.


 


18.           Amendment and Termination of the Plan.


 


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


 


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


 


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


 


19.           Conditions Upon Issuance of Shares.


 


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


 


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


 


20.           Inability to Obtain Authority.  The
inability of the Company to obtain authority from any regulatory body having
jurisdiction, which authority is deemed by the Company’s counsel to be


 


17





















 


necessary to the lawful issuance
and sale of any Shares hereunder, shall relieve the Company of any liability in
respect of the failure to issue or sell such Shares as to which such requisite
authority shall not have been obtained.


 


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


 


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


 


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