**Exhibit10.1**

 

**NETLIST, INC.,**

 

**AMENDED AND RESTATED 2006 EQUITYINCENTIVE PLAN**

 

**Amended by the Stockholders onJune 2, 2010**

 

**1.****                                     ****Purpose**

 

ThisPlan is intended to encourage ownership of Stock by employees, consultants,advisors and directors of the Company and its Affiliates and to provideadditional incentive for them to promote the success of the Company’s businessthrough the grant of Awards of, or pertaining to, shares of the Company’sStock. This Plan is intended to be an incentive stock option plan within themeaning of Section 422 of the Code, but not all Awards are required to beIncentive Options. This Plan shall not become effective until the EffectiveDate.

 

**2.****                                     ****Definitions**

 

Asused in this Plan, the following terms shall have the following meanings:

 

2.1           *Accelerate*, *Accelerated*, and *Acceleration*, means: (a) when usedwith respect to an Option or Stock Appreciation Right, that as of the time ofreference the Option or Stock Appreciation Right will become exercisable withrespect to some or all of the shares of Stock for which it was not thenotherwise exercisable by its terms; (b) when used with respect toRestricted Stock or Restricted Stock Units, that the Risk of Forfeitureotherwise applicable to the Stock or Units shall expire with respect to some orall of the shares of Restricted Stock or Units then still otherwise subject tothe Risk of Forfeiture; and (c) when used with respect to PerformanceUnits, that the applicable Performance Goals shall be deemed to have been metas to some or all of the Units.

 

2.2           *Acquisition* means(i) a merger or consolidation of the Company with or into another person,(ii) the sale, transfer, or other disposition of all or substantially allof the Company’s assets to one or more other persons in a single transaction orseries of related transactions, or (iii) the acquisition of beneficialownership (determined pursuant to Securities and Exchange CommissionRule 13d-3 promulgated under the Securities Exchange Act of 1934, asamended and in effect from time to time) by any person of more than 50% of theCompany’s outstanding common stock pursuant to a tender or exchange offer madedirectly to the Company’s stockholders, other than an underwriter temporarilyholding common stock pursuant to an offering of such common stock.Notwithstanding the foregoing, a transaction shall not constitute an “Acquisition”if its sole purpose is to change the state of the Company’s incorporation or tocreate a holding company that will be owned in substantially the sameproportions by the persons who held the Company’s securities immediately priorto such transaction.

 

2.3           *Affiliate* means anycorporation, partnership, limited liability company, business trust, or otherentity controlling, controlled by or under common control with the Company.

 

2.4           *Award* means anygrant or sale pursuant to the Plan of Options, Stock Appreciation Rights,Performance Units, Restricted Stock, Restricted Stock Units or Stock Grants.

 

2.5           *AwardAgreement* means an agreement between the Company and therecipient of an Award, setting forth the terms and conditions of the Award.

 

2.6           *Board* means theCompany’s Board of Directors.

 

2.7           *Code* means theInternal Revenue Code of 1986, as amended from time to time, or any successorstatute thereto, and any regulations issued from time to time thereunder.

 

2.8           *Committee* means theCompensation Committee of the Board, which in general is responsible for theadministration of the Plan, as provided in Section 5 of the Plan. For anyperiod during which no such committee is in existence “Committee” shall meanthe Board and all authority and responsibility assigned to the Committee underthe Plan shall be exercised, if at all, by the Board.

 

2.9           *Company* meansNetlist, Inc., a corporation organized under the laws of the State ofDelaware.

 

----

 

2.10         *CoveredEmployee* means an employee who is a “covered employee”within the meaning of Section 162(m) of the Code.

 

2.11         *EffectiveDate* means the date on which the Company’s registration statement onForm S-1, initially filed with the Securities and Exchange Commission onAugust 18, 2006 in connection with the initial public offering of itscommon stock in a firm commitment underwriting, as amended, is declaredeffective by the Securities and Exchange Commission.

 

2.12         *Grant Date* means the dateas of which an Option is granted, as determined under Section 7.1(a).

 

2.13         *IncentiveOption* means an Option which by its terms is to be treated as an “incentivestock option” within the meaning of Section 422 of the Code.

 

2.14         *MarketValue* means the value of a share of Stock on a particular date determined bysuch methods or procedures as may be established by the Committee. Unlessotherwise determined by the Committee, the Market Value of Stock as of any dateis the closing price for the Stock as quoted on the NGM (or on any othernational securities exchange on which the Stock is then listed) for that dateor, if no closing price is reported for that date, the closing price on thenext preceding date for which a closing price was reported. For purposes of Awardseffective as of the effective date of the Company’s initial public offering,Market Value of Stock shall be the price at which the Company’s Stock isoffered to the public in its initial public offering.

 

2.15         *NGM* means theNASDAQ Global Market.

 

2.16         *NonstatutoryOption* means any Option that is not an Incentive Option.

 

2.17         *Option* means anoption to purchase shares of Stock.

 

2.18         *Optionee* means aParticipant to whom an Option shall have been granted under the Plan.

 

2.19         *Participant* means anyholder of an outstanding Award under the Plan.

 

2.20         *PerformanceCriteria* means the criteria that the Committee selects forpurposes of establishing the Performance Goal or Performance Goals for aParticipant for a Performance Period. The Performance Criteria used toestablish Performance Goals are limited to: (i) cash flow (before or afterdividends), (ii) earnings per share (including, without limitation,earnings before interest, taxes, depreciation and amortization),(iii) stock price, (iv) return on equity, (v) stockholder returnor total stockholder return, (vi) return on capital (including, withoutlimitation, return on total capital or return on invested capital),(vii) return on investment, (viii) return on assets or net assets,(ix) market capitalization, (x) economic value added, (xi) debtleverage (debt to capital), (xii) revenue, (xiii) sales or net sales,(xiv) backlog, (xv) income, pre-tax income or net income,(xvi) operating income or pre-tax profit, (xvii) operating profit,net operating profit or economic profit, (xviii) gross margin, operatingmargin or profit margin, (xix) return on operating revenue or return onoperating assets, (xx) cash from operations, (xxi) operating ratio,(xxii) operating revenue, (xxiii) market share improvement, (xxiv) generaland administrative expenses or (xxv) customer service.

 

2.21         *PerformanceGoals* means, for a Performance Period, the written goal or goals establishedby the Committee for the Performance Period based upon the PerformanceCriteria. The Performance Goals may be expressed in terms of overall Companyperformance or the performance of a division, business unit, subsidiary, or anindividual. either individually, alternatively or in any combination, appliedto either the Company as a whole or to a business unit or Affiliate, eitherindividually, alternatively or in any combination, and measured eitherquarterly, annually or cumulatively over a period of years, on an absolutebasis or relative to a pre-established target, to previous years’ results or toa designated comparison group, in each case as specified by the Committee. TheCommittee will, in the manner and within the time prescribed bySection 162(m) of the Code in the case of Qualified Performance-BasedAwards, objectively define the manner of calculating the Performance Goal orGoals it selects to use for such Performance Period for such Participant. Tothe extent consistent with Section 162(m) of the Code, the Committeemay appropriately adjust any evaluation of performance against a Performance Goalto exclude any of the following events that occurs during a performance period:(i) asset write-downs, (ii) litigation, 

 

----

 

claims, judgments orsettlements, (iii) the effect of changes in tax law, accounting principlesor other such laws or provisions affecting reported results, (iv) accrualsfor reorganization and restructuring programs and (v) any extraordinary,unusual, non-recurring or non-comparable items (A) as described inAccounting Principles Board Opinion No. 30, (B) as described inmanagement’s discussion and analysis of financial condition and results ofoperations appearing in the Company’s Annual Report to stockholders for theapplicable year, or (C) publicly announced by the Company in a pressrelease or conference call relating to the Company’s results of operations orfinancial condition for a completed quarterly or annual fiscal period.

 

2.22         *PerformancePeriod* means the one or more periods of time, which may be of varying andoverlapping durations, selected by the Committee, over which the attainment ofone or more Performance Goals will be measured for purposes of determining aParticipant’s right to, and the payment of, a Performance Unit.

 

2.23         *PerformanceUnit* means a right granted to a Participant under Section 7.5, toreceive cash, Stock or other Awards, the payment of which is contingent onachieving Performance Goals established by the Committee.

 

2.24         *Plan* means this2006 Equity Incentive Plan of the Company, as amended from time to time, andincluding any attachments or addenda hereto.

 

2.25         *QualifiedPerformance-Based Awards* means Awards intended to qualify as “performance-basedcompensation” under Section 162(m) of the Code.

 

2.26         *RestrictedStock* means a grant or sale of shares of Stock to a Participant subject to aRisk of Forfeiture.

 

2.27         *RestrictionPeriod* means the period of time, established by the Committee in connectionwith an Award of Restricted Stock or Restricted Stock Units, during which theshares of Restricted Stock or Restricted Stock Units are subject to a Risk ofForfeiture described in the applicable Award Agreement.

 

2.28         *Risk ofForfeiture* means a limitation on the right of the Participantto retain Restricted Stock or Restricted Stock Units, including a right in theCompany to reacquire shares of Restricted Stock at less than their then MarketValue, arising because of the occurrence or non-occurrence of specified eventsor conditions.

 

2.29         *RestrictedStock Units* means rights to receive shares of Stock at theclose of a Restriction Period, subject to a Risk of Forfeiture.

 

2.30         *Stock* means commonstock, par value $0.001 per share, of the Company, and such other securities asmay be substituted for Stock pursuant to Section 8.

 

2.31         *StockAppreciation Right* means a right to receive any excess in the MarketValue of shares of Stock (except as otherwise provided in Section 7.2(c))over a specified exercise price.

 

2.32         *StockGrant* means the grant of shares of Stock not subject to restrictions orother forfeiture conditions.

 

2.33         *TenPercent Owner* means a person who owns, or is deemed within themeaning of Section 422(b)(6) of the Code to own, stock possessingmore than 10% of the total combined voting power of all classes of stock of theCompany (or any parent or subsidiary corporations of the Company, as defined inSections 424(e) and (f), respectively, of the Code). Whether a personis a Ten Percent Owner shall be determined with respect to an Option based onthe facts existing immediately prior to the Grant Date of the Option.

 

**3.****                                     ****Term of the Plan**

 

Unlessthe Plan shall have been earlier terminated by the Board, Awards may be grantedunder this Plan at any time in the period commencing on the date of approval ofthe Plan by the Board and ending immediately prior to the tenth anniversary ofthe earlier of the adoption of the Plan by the Board or approval of the Plan bythe 

 

----

 

Company’s stockholders.Awards granted pursuant to the Plan within that period shall not expire solelyby reason of the termination of the Plan. Awards of Incentive Options grantedprior to stockholder approval of the Plan are expressly conditioned upon suchapproval, but in the event of the failure of the stockholders to approve thePlan shall thereafter and for all purposes be deemed to constitute NonstatutoryOptions.

 

**4.****                                     ****Stock Subject to the Plan**

 

Atno time shall the number of shares of Stock issued pursuant to or subject tooutstanding Awards granted under the Plan (including, without limitation,pursuant to Incentive Options), nor the number of shares of Common Stock issuedpursuant to Incentive Options, exceed the sum of (a) 500,000 shares ofStock plus (b) an annual increase to be added on the first day of eachcalendar year beginning on or after January 1, 2007 equal to the lesser of(i) 500,000 shares of Stock, and (ii) such lesser number as the Boardmay approve for the fiscal year, provided, however, that beginning onJanuary 1, 2010, the annual increase to the number of shares of Stock thatmay be issued pursuant to the Plan shall be equal to the lesser of(x) 5.0% of the number of shares of Stock that are issued and outstandingas of the first day of the calendar year, and (y) 1,200,000 shares ofStock; *subject, however*, to theprovisions of Section 8 of the Plan. For purposes of applying theforegoing limitation, (a) if any Option or Stock Appreciation Rightexpires, terminates, or is cancelled for any reason without having beenexercised in full, or if any other Award is forfeited by the recipient orrepurchased at less than its Market Value, the shares not purchased by the Optioneeor which are forfeited by the recipient or repurchased shall again be availablefor Awards to be granted under the Plan and (b) if any Option is exercisedby delivering previously-owned shares in payment of the exercise pricetherefor, only the net number of shares, that is, the number of shares issuedminus the number received by the Company in payment of the exercise price,shall be considered to have been issued pursuant to an Award granted under thePlan. In addition, settlement of any Award shall not count against theforegoing limitations except to the extent settled in the form of Stock. Sharesof Stock issued pursuant to the Plan may be either authorized but unissuedshares or shares held by the Company in its treasury.

 

**5.****                                     ****Administration**

 

ThePlan shall be administered by the Committee; *provided,however*, that at any time and on any one or more occasions the Boardmay itself exercise any of the powers and responsibilities assigned theCommittee under the Plan and when so acting shall have the benefit of all ofthe provisions of the Plan pertaining to the Committee’s exercise of itsauthorities hereunder; and *provided further,however,* that the Committee may delegate to an executive officer orofficers the authority to grant Awards hereunder to employees who are notofficers, and to consultants and advisors, in accordance with such guidelinesas the Committee shall set forth at any time or from time to time. Subject tothe provisions of the Plan, the Committee shall have complete authority, in itsdiscretion, to make or to select the manner of making all determinations withrespect to each Award to be granted by the Company under the Plan including theemployee, consultant, advisor or director to receive the Award and the form ofAward. In making such determinations, the Committee may take into account thenature of the services rendered by the respective employees, consultants,advisors and directors, their present and potential contributions to thesuccess of the Company and its Affiliates, and such other factors as theCommittee in its discretion shall deem relevant. Subject to the provisions ofthe Plan, the Committee shall also have complete authority to interpret thePlan, to prescribe, amend and rescind rules and regulations relating toit, to determine the terms and provisions of the respective Award Agreements(which need not be identical), and to make all other determinations necessaryor advisable for the administration of the Plan, including, but not limited to,the cancellation, amendment, repricing, reclassification or exchange ofoutstanding Options and other Awards, subject to the provisions ofSection 14. The Committee’s determinations made in good faith on mattersreferred to in the Plan shall be final, binding and conclusive on all personshaving or claiming any interest under the Plan or an Award made pursuanthereto.

 

**6.****                                     ****Authorization of Grants**

 

6.1*  Eligibility.*  The Committee may grant from time to time andat any time prior to the termination of the Plan one or more Awards, eitheralone or in combination with any other Awards, to any employee of, orconsultant or advisor to, one or more of the Company and its Affiliates or toany non-employee member of the Board or of any board of directors (or similargoverning authority) of any Affiliate. However, only employees of the Company,and of any parent or subsidiary corporations of the Company, as defined inSections 424(e) and (f), respectively, of the Code, shall be eligiblefor the grant of an Incentive Option. Further, in no event shall the number ofshares of Stock covered by Options or other Awards granted to any one person inany one calendar year exceed 25% of the aggregate number of shares of Stocksubject to the Plan.

 

----

 

6.2*  General Termsof Awards.*  Each grant of anAward shall be subject to all applicable terms and conditions of the Plan(including but not limited to any specific terms and conditions applicable tothat type of Award set out in the following Section), and such other terms andconditions, not inconsistent with the terms of the Plan, as the Committee mayprescribe. No prospective Participant shall have any rights with respect to anAward, unless and until such Participant shall have complied with theapplicable terms and conditions of such Award (including, if applicable,delivering a fully-executed copy of any agreement evidencing an Award to theCompany).

 

6.3*  Effect ofTermination of Employment, Etc.* Unless the Committee shall provide otherwise with respect to any Award,if the Participant’s employment or other association with the Company and itsAffiliates ends for any reason, including because of the Participant’s employerceasing to be an Affiliate, (a) any outstanding Option or StockAppreciation Right of the Participant shall cease to be exercisable in anyrespect not later than 90 days following that event and, for the period itremains exercisable following that event, shall be exercisable only to theextent exercisable at the date of that event, and (b) any otheroutstanding Award of the Participant shall be forfeited or otherwise subject toreturn to, or repurchase by, the Company on the terms specified in theapplicable Award Agreement. Military or sick leave or other bona fide leaveshall not be deemed a termination of employment or other association, *provided* that it does not exceed thelonger of 90 days or the period during which the absent Participant’sreemployment rights, if any, are guaranteed by statute or by contract.

 

6.4* Transferability of Awards.* Except as otherwise provided in this Section 6.4, Awards shall notbe transferable, and no Award or interest therein may be sold, transferred,pledged, assigned, or otherwise alienated or hypothecated, other than by willor by the laws of descent and distribution. The foregoing sentence shall notlimit the transferability of Stock Grants or of Restricted Stock that is nolonger subject to a Risk of Forfeiture. All of a Participant’s rights in anyAward may be exercised during the life of the Participant only by theParticipant or the Participant’s legal representative. However, the Committeemay, at or after the grant of an Award of a Nonstatutory Option, or shares ofRestricted Stock, provide that such Award may be transferred by the recipientto a family member; *provided, however*,that any such transfer is without payment of any consideration whatsoever andthat no transfer shall be valid unless first approved by the Committee, actingin its sole discretion. For this purpose, “family member” means any child,stepchild, grandchild, parent, stepparent, spouse, former spouse, sibling,niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law,brother-in-law, or sister-in-law, including adoptive relationships, any personsharing the employee’s household (other than a tenant or employee), a trust inwhich the foregoing persons have more than 50% of the beneficial interests, afoundation in which the foregoing persons (or the Participant) control themanagement of assets, and any other entity in which these persons (or theParticipant) own more than 50% of the voting interests.

 

**7.****                                     ****Specific Terms of Awards**

 

7.1*          **Options.*

 

(a) *Date of Grant.*  The granting of an Option shall take place atthe time specified in the Award Agreement. Only if expressly so provided in theapplicable Award Agreement shall the Grant Date be the date on which the AwardAgreement shall have been duly executed and delivered by the Company and theOptionee.

 

(b) *Exercise Price.*  The price at which shares of Stock may beacquired under each Incentive Option shall be not less than 100% of the MarketValue of Stock on the Grant Date, or not less than 110% of the Market Value ofStock on the Grant Date if the Optionee is a Ten Percent Owner. The price atwhich shares may be acquired under each Nonstatutory Option shall not be solimited solely by reason of this Section.

 

(c) *Option Period.*  No Incentive Option may be exercised on orafter the tenth anniversary of the Grant Date, or on or after the fifthanniversary of the Grant Date if the Optionee is a Ten Percent Owner. TheOption period under each Nonstatutory Option shall not be so limited solely byreason of this Section.

 

----

 

(d) *Exercisability.*  An Option may be immediately exercisable orbecome exercisable in such installments, cumulative or non-cumulative, as theCommittee may determine. In the case of an Option not otherwise immediatelyexercisable in full, the Committee may Accelerate such Option in whole or inpart at any time; *provided, however,*that in the case of an Incentive Option, any such Acceleration of the Optionwould not cause the Option to fail to comply with the provisions ofSection 422 of the Code or the Optionee consents to the Acceleration.

 

(e) *Method of Exercise.*  An Option may be exercised by the Optioneegiving written notice, in the manner provided in Section 16, specifyingthe number of shares with respect to which the Option is then being exercised.The notice shall be accompanied by payment in the form of cash or check payableto the order of the Company in an amount equal to the exercise price of theshares to be purchased or, subject in each instance to the Committee’sapproval, acting in its sole discretion, and to such conditions, if any, as theCommittee may deem necessary to avoid adverse accounting effects to theCompany) by delivery to the Company of

 

(i)                                     shares of Stockhaving a Market Value equal to the exercise price of the shares to bepurchased, or

 

(ii)                                  unlessprohibited by applicable law, the Optionee’s executed promissory note in theprincipal amount equal to the exercise price of the shares to be purchased andotherwise in such form as the Committee shall have approved.

 

If the Stock is traded on anestablished market, payment of any exercise price may also be made through andunder the terms and conditions of any formal cashless exercise programauthorized by the Company entailing the sale of the Stock subject to an Optionin a brokered transaction (other than to the Company). Receipt by the Companyof such notice and payment in any authorized, or combination of authorized, meansshall constitute the exercise of the Option. Within thirty (30) daysthereafter but subject to the remaining provisions of the Plan, the Companyshall deliver, or cause to be delivered, to the Optionee or his agent acertificate or certificates for the number of shares then being purchased. Suchshares shall be fully paid and nonassessable.

 

(f) *Limit on Incentive Option Characterization.*  An Incentive Option shall be considered to bean Incentive Option only to the extent that the number of shares of Stock forwhich the Option first becomes exercisable in a calendar year do not have anaggregate Market Value (as of the date of the grant of the Option) in excess ofthe “current limit”. The current limit for any Optionee for any calendar yearshall be $100,000 *minus* theaggregate Market Value at the date of grant of the number of shares of Stockavailable for purchase for the first time in the same year under each otherIncentive Option previously granted to the Optionee under the Plan, and undereach other incentive stock option previously granted to the Optionee under anyother incentive stock option plan of the Company and its Affiliates, afterDecember 31, 1986. Any shares of Stock which would cause the foregoinglimit to be violated shall be deemed to have been granted under a separateNonstatutory Option, otherwise identical in its terms to those of the IncentiveOption.

 

(g) *Notification of Disposition.*  Each person exercising any Incentive Optiongranted under the Plan shall be deemed to have covenanted with the Company toreport to the Company any disposition of such shares prior to the expiration ofthe holding periods specified by Section 422(a)(1) of the Code(currently the later of two years from the Grant Date and one year from thedate of exercise of the Incentive Option) and, if and to the extent that therealization of income in such a disposition imposes upon the Company federal,state, local or other withholding tax requirements, or any such withholding isrequired to secure for the Company an otherwise available tax deduction, toremit to the Company an amount in cash sufficient to satisfy thoserequirements.

 

7.2*          **StockAppreciation Rights.*

 

(a) *Tandem or Stand-Alone.*  Stock Appreciation Rights may be granted intandem with an Option (at or, in the case of a Nonstatutory Option, after theaward of the Option), or alone and unrelated to an Option. Stock AppreciationRights in tandem with an Option shall terminate to the extent that the relatedOption is exercised, and the related Option shall terminate to the extent thatthe tandem Stock Appreciation Rights are exercised.

 

----

 

(b) *Exercise Price.*  Stock Appreciation Rights shall have suchexercise price as the Committee may determine, except that in the case of StockAppreciation Rights in tandem with Options, the exercise price of the StockAppreciation Rights shall equal the exercise price of the related Option.

 

(c) *Other Terms.*  Except as the Committee may deeminappropriate or inapplicable in the circumstances, Stock Appreciation Rightsshall be subject to terms and conditions substantially similar to thoseapplicable to a Nonstatutory Option. In addition, a Stock Appreciation Rightrelated to an Option which can only be exercised during limited periodsfollowing a Change in Control may entitle the Participant to receive an amountbased upon the highest price paid or offered for Stock in any transactionrelating to the Change in Control or paid during the thirty (30) dayperiod immediately preceding the occurrence of the Change in Control in anytransaction reported in the stock market in which the Stock is normally traded.

 

7.3*          **RestrictedStock.*

 

(a) *Purchase Price.*  Shares of Restricted Stock shall be issuedunder the Plan for such consideration, in cash, other property or services, or anycombination thereof, as is determined by the Committee.

 

(b) *Issuance of Certificates.*  Each Participant receiving a Restricted StockAward, subject to subsection (c) below, shall be issued a stockcertificate in respect of such shares of Restricted Stock. Such certificateshall be registered in the name of such Participant, and, if applicable, shallbear an appropriate legend referring to the terms, conditions, and restrictionsapplicable to such Award substantially in the following form:

 

Thetransferability of this certificate and the shares represented by thiscertificate are subject to the terms and conditions of the Netlist, Inc.2006 Equity Incentive Plan and an Award Agreement entered into by theregistered owner and Netlist, Inc. Copies of such Plan and Agreement areon file in the offices of Netlist, Inc.

 

(c) *Escrow of Shares.*  The Committee may require that the stockcertificates evidencing shares of Restricted Stock be held in custody by adesignated escrow agent (which may but need not be the Company) until therestrictions thereon shall have lapsed, and that the Participant deliver astock power, endorsed in blank, relating to the Stock covered by such Award.

 

(d) *Restrictions and Restriction Period.*  During the Restriction Period applicable toshares of Restricted Stock, such shares shall be subject to limitations ontransferability and a Risk of Forfeiture arising on the basis of suchconditions related to the performance of services, Company or Affiliateperformance or otherwise as the Committee may determine and provide for in theapplicable Award Agreement. Any such Risk of Forfeiture may be waived orterminated, or the Restriction Period shortened, at any time by the Committeeon such basis as it deems appropriate.

 

(e) *Rights Pending Lapse of Risk of Forfeiture orForfeiture of Award.*  Exceptas otherwise provided in the Plan or the applicable Award Agreement, at alltimes prior to lapse of any Risk of Forfeiture applicable to, or forfeiture of,an Award of Restricted Stock, the Participant shall have all of the rights of astockholder of the Company, including the right to vote, and the right toreceive any dividends with respect to, the shares of Restricted Stock. TheCommittee, as determined at the time of Award, may permit or require thepayment of cash dividends to be deferred and, if the Committee so determines,reinvested in additional Restricted Stock to the extent shares are availableunder Section 4.

 

(f) *Lapse of Restrictions.*  If and when the Restriction Period expireswithout a prior forfeiture of the Restricted Stock, the certificates for suchshares shall be delivered to the Participant promptly if not previouslydelivered.

 

7.4*          **RestrictedStock Units.*

 

(a) *Character.*  Each Restricted Stock Unit shall entitle therecipient to a share of Stock at a close of such Restriction Period as theCommittee may establish and be subject to a Risk of Forfeiture arising on thebasis of such conditions relating to the performance of services, Company orAffiliate performance or otherwise as the Committee may determine and providefor in the applicable Award Agreement. Any such Risk of Forfeiture may bewaived or terminated, or the Restriction Period shortened, at any time by theCommittee on such basis as it deems appropriate.

 

----

 

(b) *Form and Timing of Payment.*  Payment of earned Restricted Stock Unitsshall be made in a single lump sum following the close of the applicableRestriction Period. At the discretion of the Committee, Participants may beentitled to receive payments equivalent to any dividends declared with respectto Stock referenced in grants of Restricted Stock Units but only following theclose of the applicable Restriction Period and then only if the underlyingStock shall have been earned. Unless the Committee shall provide otherwise, anysuch dividend equivalents shall be paid, if at all, without interest or otherearnings.

 

7.5*          **PerformanceUnits.*

 

(a) *Character.*  Each Performance Unit shall entitle therecipient to the value of a specified number of shares of Stock, over theinitial value for such number of shares, if any, established by the Committeeat the time of grant, at the close of a specified Performance Period to theextent specified Performance Goals shall have been achieved.

 

(b) *Earning of Performance Units.*  The Committee shall set Performance Goals inits discretion which, depending on the extent to which they are met within theapplicable Performance Period, will determine the number and value ofPerformance Units that will be paid out to the Participant. After theapplicable Performance Period has ended, the holder of Performance Units shallbe entitled to receive payout on the number and value of Performance Unitsearned by the Participant over the Performance Period, to be determined as afunction of the extent to which the corresponding Performance Goals have beenachieved.

 

(c) *Form and Timing of Payment.*  Payment of earned Performance Units shall bemade in a single lump sum following the close of the applicable PerformancePeriod. At the discretion of the Committee, Participants may be entitled toreceive any dividends declared with respect to Stock which have been earned inconnection with grants of Performance Units which have been earned, but not yetdistributed to Participants. The Committee may permit or, if it so provides atgrant, require a Participant to defer such Participant’s receipt of the paymentof cash or the delivery of Stock that would otherwise be due to suchParticipant by virtue of the satisfaction of any requirements or goals withrespect to Performance Units. If any such deferral election is permitted orrequired, the Committee shall establish rules and procedures for suchpayment deferrals.

 

7.6*  Stock Grants.*  Stock Grants shall be awarded solely inrecognition of significant contributions to the success of the Company or itsAffiliates, in lieu of compensation otherwise already due and in such otherlimited circumstances as the Committee deems appropriate. Stock Grants shall bemade without forfeiture conditions of any kind.

 

7.7*          **QualifiedPerformance-Based Awards.*

 

(a) *Purpose.* The purpose of this Section 7.7 is to provide the Committee theability to qualify Awards as “performance-based compensation” underSection 162(m) of the Code. If the Committee, in its discretion, decidesto grant an Award as a Qualified Performance-Based Award, the provisions ofthis Section 7.7 will control over any contrary provision contained in thePlan. In the course of granting any Award, the Committee may specificallydesignate the Award as intended to qualify as a Qualified Performance-BasedAward. However, no Award shall be considered to have failed to qualify as aQualified Performance-Based Award solely because the Award is not expresslydesignated as a Qualified Performance-Based Award if the Award otherwisesatisfies the provisions of this Section 7.7 and the requirements ofSection 162(m) of the Code and the regulations thereunder applicableto “performance-based compensation.”

 

(b) *Authority.*  All grants of Awards intended to qualify as QualifiedPerformance-Based Awards and determination of terms applicable thereto shall bemade by the Committee or, if not all of the members thereof qualify as “outsidedirectors” within the meaning of applicable IRS regulations underSection 162 of the Code, a subcommittee of the Committee consisting ofsuch of the members of the Committee as do so qualify. Any action by such asubcommittee shall be considered the action of the Committee for purposes ofthe Plan.

 

----

 

 

(c) *Applicability.*  This Section 7.7 will apply only tothose Covered Employees, or to those persons who the Committee determines arereasonably likely to become Covered Employees in the period covered by anAward, selected by the Committee to receive Qualified Performance-Based Awards.The Committee may, in its discretion, grant Awards to Covered Employees that donot satisfy the requirements of this Section 7.7.

 

(d) *Discretion of Committee with Respect to QualifiedPerformance-Based Awards.* Options may be granted as Qualified Performance-Based Awards inaccordance with Section 7.1, except that the exercise price of any Optionintended to qualify as a Qualified Performance-Based Award shall in no event beless that the Market Value of the Stock on the date of grant. With regard toother Awards intended to qualify as Qualified Performance-Based Awards, such asRestricted Stock, Restricted Stock Units, or Performance Units, the Committeewill have full discretion to select the length of any applicable RestrictionPeriod or Performance Period, the kind and/or level of the applicablePerformance Goal, and whether the Performance Goal is to apply to the Company,a Subsidiary or any division or business unit or to the individual. AnyPerformance Goal or Goals applicable to Qualified Performance-Based Awardsshall be objective, shall be established not later than ninety (90) daysafter the beginning of any applicable Performance Period (or at such other dateas may be required or permitted for “performance-based compensation” underSection 162(m) of the Code) and shall otherwise meet the requirementsof Section 162(m) of the Code, including the requirement that theoutcome of the Performance Goal or Goals be substantially uncertain (as definedin the regulations under Section 162(m) of the Code) at the timeestablished.

 

(e) *Payment of Qualified Performance-Based Awards.*  A Participant will be eligible to receivepayment under a Qualified Performance-Based Award which is subject toachievement of a Performance Goal or Goals only if the applicable PerformanceGoal or Goals period are achieved within the applicable Performance Period, asdetermined by the Committee. In determining the actual size of an individualQualified Performance-Based Award, the Committee may reduce or eliminate theamount of the Qualified Performance-Based Award earned for the PerformancePeriod, if in its sole and absolute discretion, such reduction or eliminationis appropriate.

 

(f) *Maximum Award Payable.*  The maximum Qualified Performance-Based Awardpayment to any one Participant under the Plan for a Performance Period is 25%of the number of shares of Stock set forth in Section 4 above, or if theQualified Performance-Based Award is paid in cash, that number of sharesmultiplied by the Market Value of the Stock as of the date the QualifiedPerformance-Based Award is granted.

 

(g) *Limitation on Adjustments for Certain Events.*  No adjustment of any QualifiedPerformance-Based Award pursuant to Section 8 shall be made except on suchbasis, if any, as will not cause such Award to provide other than “performance-basedcompensation” within the meaning of Section 162(m) of the Code.

 

7.8*  Awards toParticipants Outside the United States.*  The Committee may modify the terms of anyAward under the Plan granted to a Participant who is, at the time of grant orduring the term of the Award, resident or primarily employed outside of theUnited States in any manner deemed by the Committee to be necessary orappropriate to conform that Award to laws, regulations, and customs of thecountry in which the Participant is then resident or primarily employed, or sothat the value and other benefits of the Award to the Participant, as affectedby foreign tax laws and other restrictions applicable as a result of theParticipant’s residence or employment abroad, shall be comparable to the valueof such an Award to a Participant who is resident or primarily employed in theUnited States. The Committee may establish supplements to, or amendments,restatements, or alternative versions of, the Plan for the purpose of grantingand administrating any such modified Award. No such modification, supplement,amendment, restatement or alternative version may increase the share limit ofSection 4.

 

**8.****                                     ****Adjustment Provisions**

 

8.1*  Adjustmentfor Corporate Actions.*  All ofthe share numbers set forth in the Plan reflect the capital structure of theCompany as of the Effective Date. Subject to Section 8.2, if subsequent tothat date the outstanding shares of Stock (or any other securities covered bythe Plan by reason of the prior application of this Section) are increased,decreased, or exchanged for a different number or kind of shares or othersecurities, or if additional shares or new or different shares or othersecurities are distributed with respect to shares of Stock, through a merger,consolidation, sale of all or substantially all the property of the Company,reorganization, recapitalization, reclassification, stock dividend, stocksplit, reverse stock split, or other similar distribution with respect to suchshares of Stock, an appropriate and proportionate adjustment will be made in(i) the maximum numbers and kinds of shares provided in Section 4,(ii) the numbers and kinds of shares or other securities subject to thethen outstanding Awards, (iii) the exercise price for each share or otherunit of any other securities subject to then outstanding Options and StockAppreciation Rights (without change in the aggregate purchase price as to whichsuch Options or Rights remain exercisable), and (iv) the repurchase priceof each share of Restricted Stock then subject to a Risk of Forfeiture in theform of a Company repurchase right.

 

----

 

8.2*          **Treatmentin Certain Acquisitions.*

 

(a)           Subject to any provisions ofthen outstanding Awards granting greater rights to the holders thereof, in theevent of an Acquisition, the Committee may, either in advance of theAcquisition or at the time thereof and upon such terms as it may deemappropriate, provide for the Acceleration of any then outstanding Awards infull if, and only if, such Awards are not assumed or replaced by comparableAwards referencing shares of the capital stock of the successor or acquiringentity or parent thereof, and after a reasonable period following suchAcceleration, as determined by the Committee, such Accelerated Awards and allother then outstanding Awards not assumed or replaced by comparable Awardsshall terminate. As to any one or more outstanding Awards which are nototherwise Accelerated in full by reason of such Acquisition, the Committee mayalso, either in advance of an Acquisition or at the time thereof and upon suchterms as it may deem appropriate, provide for the Acceleration of suchoutstanding Awards in the event that the employment of the Participants shouldsubsequently terminate following the Acquisition. Each outstanding Award thatis assumed in connection with an Acquisition, or is otherwise to continue ineffect subsequent to the Acquisition, will be appropriately adjusted,immediately after the Acquisition, as to the number and class of securities andother relevant terms in accordance with Section 8.1.

 

(b)           For the purposes of thisSection 8.2, an Award shall be considered assumed or replaced by acomparable Award if, following the Acquisition, the Award confers the right topurchase, for each share of Stock subject to the Award immediately prior to theAcquisition, the consideration (whether stock, cash or other securities orproperty) received in the Acquisition by holders of Stock on the effective dateof the Acquisition (and if holders were offered a choice of consideration, thetype of consideration chosen by the holders of a majority of the outstandingshares of Stock); *provided, however*,that if such consideration received in the Acquisition was not solely commonstock of the successor corporation or its parent or subsidiary, the Committeemay, with the consent of the successor corporation, provide for theconsideration to be received upon the exercise of the Award for each share ofStock subject to the Award to be solely common stock of the successorcorporation or its parent or subsidiary equal in fair market value to the pershare consideration received by holders of Stock in the Acquisition, or anycombination of cash and common stock, (including the payment of cash equal tothe net of Market Value over the exercise price of the shares of Stock subjectto the Award) so approved by the Committee with the consent of the successorcorporation; and provided further that such Award may continue to be subject tothe same vesting requirements or Risks of Forfeiture after the Acquisition.

 

8.3*  Dissolutionor Liquidation.*  Upon thedissolution or liquidation of the Company, other than as part of an Acquisitionor similar transaction, each outstanding Option and Stock Appreciation Rightshall terminate, but the Optionee or Stock Appreciation Right holder shall havethe right, immediately prior to the dissolution or liquidation, to exercise theOption or Stock Appreciation Right to the extent exercisable on the date of thedissolution or liquidation.

 

8.4*  Adjustment ofAwards Upon the Occurrence of Certain Unusual or Nonrecurring Events.*  In the event of any corporate action notspecifically covered by the preceding Sections, including but not limited to anextraordinary cash distribution on Stock, a corporate separation or otherreorganization or liquidation, the Committee may make such adjustment ofoutstanding Awards and their terms, if any, as it, in its sole discretion, maydeem equitable and appropriate in the circumstances. The Committee may makeadjustments in the terms and conditions of, and the criteria included in,Awards in recognition of unusual or nonrecurring events (including, withoutlimitation, the events described in this Section) affecting the Company or thefinancial statements of the Company or of changes in applicable laws,regulations, or accounting principles, whenever the Committee determines thatsuch adjustments are appropriate in order to prevent the dilution orenlargement of the benefits or potential benefits intended to be made availableunder the Plan.

 

8.5*  RelatedMatters.*  Any adjustment inAwards made pursuant to this Section 8 shall be determined and made, if atall, by the Committee and shall include any correlative modification of terms,including of Option exercise prices, rates of vesting or exercisability, Risksof Forfeiture, applicable repurchase prices for Restricted Stock, andPerformance Goals and other financial objectives which the Committee may deemnecessary or 

 

----

 

appropriate so as to ensurethe rights of the Participants in their respective Awards are not substantiallydiminished nor enlarged as a result of the adjustment and corporate actionother than as expressly contemplated in this Section 8. No fraction of ashare shall be purchasable or deliverable upon exercise, but in the event anyadjustment hereunder of the number of shares covered by an Award shall causesuch number to include a fraction of a share, such number of shares shall beadjusted to the nearest smaller whole number of shares. No adjustment of anOption exercise price per share pursuant to this Section 8 shall result inan exercise price which is less than the par value of the Stock.

 

**9.****                                     ****Settlement of Awards**

 

9.1*  In General.*  Options and Restricted Stock shall be settledin accordance with their terms. All other Awards may be settled in cash, Stock,or other Awards, or a combination thereof, as determined by the Committee at orafter grant and subject to any contrary Award Agreement. The Committee may notrequire settlement of any Award in Stock pursuant to the immediately precedingsentence to the extent issuance of such Stock would be prohibited orunreasonably delayed by reason of any other provision of the Plan.

 

9.2*  Violation ofLaw.*  Notwithstanding anyother provision of the Plan or the relevant Award Agreement, if, at any time,in the reasonable opinion of the Company, the issuance of shares of Stockcovered by an Award may constitute a violation of law, then the Company maydelay such issuance and the delivery of a certificate for such shares until(i) approval shall have been obtained from such governmental agencies,other than the Securities and Exchange Commission, as may be required under anyapplicable law, rule, or regulation and (ii) in the case where suchissuance would constitute a violation of a law administered by, or a regulationof, the Securities and Exchange Commission, one of the following conditionsshall have been satisfied:

 

(a)           the shares are at the timeof the issue of such shares effectively registered under the Securities Act of1933, as amended; or

 

(b)           the Company shall havedetermined, on such basis as it deems appropriate (including an opinion ofcounsel in form and substance satisfactory to the Company) that the sale,transfer, assignment, pledge, encumbrance or other disposition of such sharesor such beneficial interest, as the case may be, does not require registrationunder the Securities Act of 1933, as amended, or any applicable Statesecurities laws.

 

TheCompany shall make all reasonable efforts to bring about the occurrence of saidevents.

 

9.3*  CorporateRestrictions on Rights in Stock.* Any Stock to be issued pursuant to Awards granted under the Plan shallbe subject to all restrictions upon the transfer thereof which may be now orhereafter imposed by the certificate of incorporation and by-laws (or similarcharter documents) of the Company.

 

9.4*  InvestmentRepresentations.*  The Companyshall be under no obligation to issue any shares covered by any Award unlessthe shares to be issued pursuant to Awards granted under the Plan have beeneffectively registered under the Securities Act of 1933, as amended, or theParticipant shall have made such written representations to the Company (uponwhich the Company believes it may reasonably rely) as the Company may deemnecessary or appropriate for purposes of confirming that the issuance of suchshares will be exempt from the registration requirements of that Act and anyapplicable state securities laws and otherwise in compliance with allapplicable laws, rules and regulations, including but not limited to thatthe Participant is acquiring the shares for his or her own account for thepurpose of investment and not with a view to, or for sale in connection with,the distribution of any such shares.

 

9.5*  Registration.*  If the Company shall deem it necessary ordesirable to register under the Securities Act of 1933, as amended or otherapplicable statutes any shares of Stock issued or to be issued pursuant to Awardsgranted under the Plan, or to qualify any such shares of Stock for exemptionfrom the Securities Act of 1933, as amended, or other applicable statutes, thenthe Company shall take such action at its own expense. The Company may requirefrom each recipient of an Award, or each holder of shares of Stock acquiredpursuant to the Plan, such information in writing for use in any registrationstatement, prospectus, preliminary prospectus or offering circular as isreasonably necessary for that purpose and may require reasonable indemnity tothe Company and its officers and directors from that holder against all losses,claims, damage and liabilities arising from use of the information so furnishedand caused by any untrue statement of any material fact therein or caused bythe omission to state a material fact required to be stated therein ornecessary to make the statements therein not misleading in the light of 

 

----

 

the circumstances underwhich they were made. In addition, the Company may require of any such personthat he or she agree that, without the prior written consent of the Company orthe managing underwriter in any public offering of shares of Stock, he or shewill not sell, make any short sale of, loan, grant any option for the purchaseof, pledge or otherwise encumber, or otherwise dispose of, any shares of Stockduring the 180 day period commencing on the effective date of theregistration statement relating to the underwritten public offering ofsecurities. Without limiting the generality of the foregoing provisions of thisSection 9.5, if in connection with any underwritten public offering ofsecurities of the Company the managing underwriter of such offering requiresthat the Company’s directors and officers enter into a lock-up agreement containingprovisions that are more restrictive than the provisions set forth in thepreceding sentence, then (a) each holder of shares of Stock acquiredpursuant to the Plan (regardless of whether such person has complied orcomplies with the provisions of clause (b) below) shall be bound by,and shall be deemed to have agreed to, the same lock-up terms as those to whichthe Company’s directors and officers are required to adhere; and (b) atthe request of the Company or such managing underwriter, each such person shallexecute and deliver a lock-up agreement in form and substance equivalent tothat which is required to be executed by the Company’s directors and officers.

 

9.6*  Placement ofLegends; Stop Orders; etc.* Each share of Stock to be issued pursuant to Awards granted under thePlan may bear a reference to the investment representation made in accordancewith Section 9.4 in addition to any other applicable restriction under thePlan, the terms of the Award and if applicable under the Stockholders’ Agreementand to the fact that no registration statement has been filed with theSecurities and Exchange Commission in respect to such shares of Stock. Allcertificates for shares of Stock or other securities delivered under the Planshall be subject to such stock transfer orders and other restrictions as theCommittee may deem advisable under the rules, regulations, and otherrequirements of any stock exchange upon which the Stock is then listed, and anyapplicable federal or state securities law, and the Committee may cause alegend or legends to be put on any such certificates to make appropriatereference to such restrictions.

 

9.7*  TaxWithholding.*  Whenever sharesof Stock are issued or to be issued pursuant to Awards granted under the Plan,the Company shall have the right to require the recipient to remit to theCompany an amount sufficient to satisfy federal, state, local or otherwithholding tax requirements if, when, and to the extent required by law(whether so required to secure for the Company an otherwise available taxdeduction or otherwise) prior to the delivery of any certificate orcertificates for such shares. The obligations of the Company under the Planshall be conditional on satisfaction of all such withholding obligations andthe Company shall, to the extent permitted by law, have the right to deduct anysuch taxes from any payment of any kind otherwise due to the recipient of anAward. However, in such cases Participants may elect, subject to the approvalof the Committee, to satisfy an applicable withholding requirement, in whole orin part, by having the Company withhold shares to satisfy their taxobligations. Participants may only elect to have Shares withheld having aMarket Value on the date the tax is to be determined equal to the minimumstatutory total tax which could be imposed on the transaction. All electionsshall be irrevocable, made in writing, signed by the Participant, and shall besubject to any restrictions or limitations that the Committee deemsappropriate.

 

**10.****                              ****Reservation of Stock**

 

TheCompany shall at all times during the term of the Plan and any outstandingAwards granted hereunder reserve or otherwise keep available such number ofshares of Stock as will be sufficient to satisfy the requirements of the Plan(if then in effect) and the Awards and shall pay all fees and expensesnecessarily incurred by the Company in connection therewith.

 

**11.****                              ****Limitation of Rights in Stock; No Special Service Rights**

 

AParticipant shall not be deemed for any purpose to be a stockholder of theCompany with respect to any of the shares of Stock subject to an Award, unlessand until a certificate shall have been issued therefor and delivered to theParticipant or his agent. Nothing contained in the Plan or in any AwardAgreement shall confer upon any recipient of an Award any right with respect tothe continuation of his or her employment or other association with the Company(or any Affiliate), or interfere in any way with the right of the Company (orany Affiliate), subject to the terms of any separate employment or consultingagreement or provision of law or corporate articles, by-laws or similar charterdocuments to the contrary, at any time to terminate such employment orconsulting agreement or to increase or decrease, or otherwise adjust, the otherterms and conditions of the recipient’s employment or other association withthe Company and its Affiliates.

 

----

 

**12.****                              ****Unfunded Status of Plan**

 

ThePlan is intended to constitute an “unfunded” plan for incentive compensation,and the Plan is not intended to constitute a plan subject to the provisions ofthe Employee Retirement Income Security Act of 1974, as amended. With respectto any payments not yet made to a Participant by the Company, nothing containedherein shall give any such Participant any rights that are greater than thoseof a general creditor of the Company. In its sole discretion, the Committee mayauthorize the creation of trusts or other arrangements to meet the obligationscreated under the Plan to deliver Stock or payments with respect to Options,Stock Appreciation Rights and other Awards hereunder, *provided, however*, that the existence ofsuch trusts or other arrangements is consistent with the unfunded status of thePlan.

 

**13.****                              ****Nonexclusivity of the Plan**

 

Neitherthe adoption of the Plan by the Board nor the submission of the Plan to thestockholders of the Company shall be construed as creating any limitations onthe power of the Board to adopt such other incentive arrangements as it maydeem desirable, including without limitation, the granting of stock options andrestricted stock other than under the Plan, and such arrangements may be eitherapplicable generally or only in specific cases.

 

**14.****                              ****Termination and Amendment of the Plan**

 

TheBoard may at any time terminate the Plan or make such modifications of the Planas it shall deem advisable. Unless the Board otherwise expressly provides, noamendment of the Plan shall affect the terms of any Award outstanding on thedate of such amendment.

 

TheCommittee may amend the terms of any Award theretofore granted, prospectivelyor retroactively, provided that the Award as amended is consistent with theterms of the Plan. Also within the limitations of the Plan, the Committee maymodify, extend or assume outstanding Awards or may accept the cancellation ofoutstanding Awards or of outstanding stock options or other equity-basedcompensation awards granted by another issuer in return for the grant of newAwards for the same or a different number of shares and on the same ordifferent terms and conditions (including but not limited to the exercise priceof any Option). Furthermore, the Committee may at any time (a) offer tobuy out for a payment in cash or cash equivalents an Award previously grantedor (b) authorize the recipient of an Award to elect to cash out an Awardpreviously granted, in either case at such time and based upon such terms andconditions as the Committee shall establish.

 

Noamendment or modification of the Plan by the Board, or of an outstanding Awardby the Committee, shall impair the rights of the recipient of any Awardoutstanding on the date of such amendment or modification or such Award, as thecase may be, without the Participant’s consent; *provided, however,* that no such consent shall be required if(i) the Board or Committee, as the case may be, determines in its solediscretion and prior to the date of any Acquisition that such amendment oralteration either is required or advisable in order for the Company, the Planor the Award to satisfy any law or regulation, including without limitation theprovisions of Section 409A of the Code or to meet the requirements of oravoid adverse financial accounting consequences under any accounting standard,or (ii) the Board or Committee, as the case may be, determines in its solediscretion that such amendment or alteration is not reasonably likely tosignificantly diminish the benefits provided under the Award, or that any suchdiminution has been adequately compensated.

 

**15.****                              ****Notices and Other Communications**

 

Anynotice, demand, request or other communication hereunder to any party shall bedeemed to be sufficient if contained in a written instrument delivered inperson or duly sent by first class registered, certified or overnight mail,postage prepaid, or telecopied with a confirmation copy by regular, certifiedor overnight mail, addressed or telecopied, as the case may be, (i) if tothe recipient of an Award, at his or her residence address last filed with theCompany and (ii) if to the Company, at its principal place of business,addressed to the attention of its 

 

----

 

Treasurer, or to such otheraddress or telecopier number, as the case may be, as the addressee may havedesignated by notice to the addressor. All such notices, requests, demands andother communications shall be deemed to have been received: (i) in thecase of personal delivery, on the date of such delivery; (ii) in the caseof mailing, when received by the addressee; and (iii) in the case offacsimile transmission, when confirmed by facsimile machine report.

 

**16.****                              ****Governing Law**

 

ThePlan and all Award Agreements and actions taken thereunder shall be governed,interpreted and enforced in accordance with the laws of the State of Delaware,without regard to the conflict of laws principles thereof.

 

----