exv10w1












Exhibit 10.1




AMENDED AND RESTATED

QLOGIC CORPORATION

2005 PERFORMANCE INCENTIVE PLAN

(Amended and Restated Effective July 16, 2009)




1. PURPOSE OF PLAN





The purpose of this QLogic Corporation 2005 Performance Incentive Plan (this “Plan”) of QLogic
Corporation, a Delaware corporation (the “Corporation”), is to promote the success of the
Corporation and to increase stockholder value by providing an additional means through the grant
of awards to attract, motivate, retain and reward selected employees and other eligible persons.



2. ELIGIBILITY





The Administrator (as such term is defined in Section 3.1) may grant awards under this Plan only
to those persons that the Administrator determines to be Eligible Persons. An “Eligible Person”
is any person who is either: (a) an officer (whether or not a director) or employee of the
Corporation or one of its Subsidiaries; (b) a director of the Corporation or one of its
Subsidiaries; or (c) an individual consultant or advisor who renders or has rendered bona fide
services (other than services in connection with the offering or sale of securities of the
Corporation or one of its Subsidiaries in a capital-raising transaction or as a market maker or
promoter of securities of the Corporation or one of its Subsidiaries) to the Corporation or one
of its Subsidiaries and who is selected to participate in this Plan by the Administrator;
provided, however, that a person who is otherwise an Eligible Person under clause (c) above may
participate in this Plan only if such participation would not adversely affect either the
Corporation’s eligibility to use Form S-8 to register under the Securities Act of 1933, as
amended (the “Securities Act”), the offering and sale of shares issuable under this Plan by the
Corporation or the Corporation’s compliance with any other applicable laws. An Eligible Person
who has been granted an award (a “participant”) may, if otherwise eligible, be granted
additional awards if the Administrator shall so determine. As used herein, “Subsidiary” means
any corporation or other entity a majority of whose outstanding voting stock or voting power is
beneficially owned directly or indirectly by the Corporation; and “Board” means the Board of
Directors of the Corporation.



3. PLAN ADMINISTRATION





	 	3.1	 	The Administrator. This Plan shall be administered by and all awards under this Plan
shall be authorized by the Administrator. The “Administrator” means the Board or one or
more committees appointed by the Board or another committee (within its delegated
authority) to administer all or certain aspects of this Plan. Any such committee shall be
comprised solely of one or more directors or such number of directors as may be required
under applicable law. A committee may delegate some or all of its authority to another
committee so constituted. The Board or a committee comprised solely of directors may also
delegate, to the extent permitted by Section 157(c) of the Delaware General Corporation Law
and any other applicable law, to one or more officers of the Corporation, its powers under
this Plan (a) to designate the officers and employees of the Corporation and its
Subsidiaries who will receive grants of awards under this Plan, and (b) to determine the
number of shares subject to, and the other terms and conditions of, such awards. The Board
may delegate different levels of authority to different committees with administrative and
grant authority under this Plan. Unless otherwise provided in the Bylaws of the Corporation
or the applicable charter of any Administrator: (a) a majority of the members of the acting
Administrator shall constitute a quorum, and (b) the vote of a majority of the members
present assuming the presence of a quorum or the unanimous written consent of the members
of the Administrator shall constitute action by the acting Administrator.
	 
	 	 	 	With respect to awards intended to satisfy the requirements for performance-based
compensation under Section 162(m) of the Internal Revenue Code of 1986, as amended (the
“Code”), this Plan
shall be administered by a committee consisting solely of two or more outside directors (as
this requirement is applied under Section 162(m) of the Code); provided, however, that the
failure to satisfy such requirement shall not affect the validity of the action of any
committee otherwise duly authorized and acting in the




 









 












matter. Award grants, and
transactions in or involving awards, intended to be exempt under Rule 16b-3 under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), must be duly and timely
authorized by the Board or a committee consisting solely of two or more non-employee
directors (as this requirement is applied under Rule 16b-3 promulgated under the Exchange
Act). To the extent required by any applicable listing agency, this Plan shall be
administered by a committee composed entirely of independent directors (within the meaning
of the applicable listing agency).




	 	3.2	 	Powers of the Administrator. Subject to the express provisions of this Plan, the
Administrator is authorized and empowered to do all things necessary or desirable in
connection with the authorization of awards and the administration of this Plan (in the
case of a committee or delegation to one or more officers, within the authority delegated
to that committee or person(s)), including, without limitation, the authority to:






	 	(a)	 	determine eligibility and, from among those persons determined to be
eligible, the particular Eligible Persons who will receive an award under this Plan;
	 
	 	(b)	 	grant awards to Eligible Persons, determine the price at which securities
will be offered or awarded and the number of securities to be offered or awarded to
any of such persons, determine the other specific terms and conditions of such awards
consistent with the express limits of this Plan, establish the installments (if any)
in which such awards shall become exercisable or shall vest (which may include,
without limitation, performance and/or time-based schedules), or determine that no
delayed exercisability or vesting is required, establish any applicable performance
targets, and establish the events of termination or reversion of such awards;
	 
	 	(c)	 	approve the forms of award agreements (which need not be identical either as
to type of award or among participants);
	 
	 	(d)	 	construe and interpret this Plan and any agreements defining the rights and
obligations of the Corporation, its Subsidiaries, and participants under this Plan,
further define the terms used in this Plan, and prescribe, amend and rescind rules and
regulations relating to the administration of this Plan or the awards granted under
this Plan;
	 
	 	(e)	 	cancel, modify, or waive the Corporation’s rights with respect to, or modify,
discontinue, suspend, or terminate any or all outstanding awards, subject to any
required consent under Section 8.6.5;
	 
	 	(f)	 	accelerate or extend the vesting or exercisability or extend the term of any
or all outstanding awards (in the case of options or stock appreciation rights, within
the maximum ten-year term of such awards) in such circumstances as the Administrator
may deem appropriate (including, without limitation, in connection with a termination
of employment or services or other events of a personal nature) subject to any
required consent under Section 8.6.5 (for purposes of clarity and without limiting the
generality of this provision, the Administrator’s authority hereunder shall extend to
any awards granted to non-employee directors of the Corporation under Appendix A of
this Plan prior to August 28, 2008);
	 
	 	(g)	 	adjust the number of shares of Common Stock subject to any award, adjust the
price of any or all outstanding awards or otherwise change previously imposed terms
and conditions, in such circumstances as the Administrator may deem appropriate, in
each case subject to Sections 4 and 8.6, and provided that in no case (except due to
an adjustment contemplated by Section 7 or any repricing that may be approved by
stockholders) shall such an adjustment constitute a
repricing (by amendment, cancellation and regrant, exchange or other means) of the per
share exercise or base price of any option or stock appreciation right;
	 
	 	(h)	 	determine the date of grant of an award, which may be a designated date after
but not before the date of the Administrator’s action (unless otherwise designated by
the Administrator, the date of grant of an award shall be the date upon which the
Administrator took the action granting an award);




 









 






	 	(i)	 	determine whether, and the extent to which, adjustments are required pursuant
to Section 7 hereof and authorize the termination, conversion, substitution or
succession of awards upon the occurrence of an event of the type described in Section
7;
	 
	 	(j)	 	acquire or settle (subject to Sections 7 and 8.6) rights under awards in
cash, stock of equivalent value, or other consideration; and
	 
	 	(k)	 	determine the fair market value of the Common Stock or awards under this Plan
from time to time and/or the manner in which such value will be determined.






	 	3.3	 	Binding Determinations. Any action taken by, or inaction of, the Corporation, any
Subsidiary, or the Administrator relating or pursuant to this Plan and within its authority
hereunder or under applicable law shall be within the absolute discretion of that entity or
body and shall be conclusive and binding upon all persons. Neither the Board nor any Board
committee, nor any member thereof or person acting at the direction thereof, shall be
liable for any act, omission, interpretation, construction or determination made in good
faith in connection with this Plan (or any award made under this Plan), and all such
persons shall be entitled to indemnification and reimbursement by the Corporation in
respect of any claim, loss, damage or expense (including, without limitation, attorneys’
fees) arising or resulting therefrom to the fullest extent permitted by law and/or under
any directors and officers liability insurance coverage that may be in effect from time to
time.
	 
	 	3.4	 	Reliance on Experts. In making any determination or in taking or not taking any action
under this Plan, the Board or a committee, as the case may be, may obtain and may rely upon
the advice of experts, including employees and professional advisors to the Corporation. No
director, officer or agent of the Corporation or any of its Subsidiaries shall be liable
for any such action or determination taken or made or omitted in good faith.
	 
	 	3.5	 	Delegation. The Administrator may delegate ministerial, non-discretionary functions to
individuals who are officers or employees of the Corporation or any of its Subsidiaries or
to third parties.





4. SHARES OF COMMON STOCK SUBJECT TO THE PLAN; SHARE LIMITS





	 	4.1	 	Shares Available. Subject to the provisions of Section 7.1, the capital stock that may
be delivered under this Plan shall be shares of the Corporation’s authorized but unissued
Common Stock and any shares of its Common Stock held as treasury shares. For purposes of
this Plan, “Common Stock” means the common stock of the Corporation and such other
securities or property as may become the subject of awards under this Plan, or may become
subject to such awards, pursuant to an adjustment made under Section 7.1.
	 
	 	4.2	 	Share Limits. The maximum number of shares of Common Stock that may be delivered
pursuant to awards granted to Eligible Persons under this Plan (the “Share Limit”) is equal
to the sum of: (i) 25,100,000 shares of Common Stock, plus (ii) the number of any shares
subject to stock options granted under the Corporation’s Stock Awards Plan (the “Prior
Plan”) and outstanding as of the date of stockholder approval of this Plan (the
“Stockholder Approval Date”) which expire, or for any reason are cancelled or terminated,
after the Stockholder Approval Date without being exercised; provided, that in no event
shall the Share Limit exceed 45,401,584 shares (which is the sum of the 25,100,000 shares
set forth above, plus the aggregate number of shares subject to options previously granted
and outstanding under the Prior Plan as of the Effective Date).
	 
	 	 	 	Shares issued on or after August 28, 2008 in respect of any “Full-Value Award” granted
under this Plan shall be counted against the foregoing Share Limit as 1.75 shares for every
one share issued in connection with such award. (For example, if a stock bonus of 100
shares of Common Stock is granted under this Plan, 175 shares shall be charged against the
Share Limit in connection with that award.) For this purpose, a “Full-Value Award” means
any award under this Plan that is not a stock option grant or a stock appreciation right
grant.
	 
	 	 	 	The following limits also apply with respect to awards granted under this Plan:




 









 












	 	(a)	 	The maximum number of shares of Common Stock that may be delivered pursuant
to options qualified as incentive stock options granted under this Plan is 40,000,000
shares.
	 
	 	(b)	 	The maximum number of shares of Common Stock subject to those options and
stock appreciation rights that are granted during any calendar year to any individual
under this Plan is 4,000,000 shares.
	 
	 	(c)	 	Additional limits with respect to Performance-Based Awards are set forth in
Section 5.2.3.






	 	 	 	Each of the foregoing numerical limits is subject to adjustment as contemplated by Section
4.3, Section 7.1, and Section 8.10.
	 
	 	4.3	 	Awards Settled in Cash, Reissue of Awards and Shares. To the extent that an award is
settled in cash or a form other than shares of Common Stock, the shares that would have
been delivered had there been no such cash or other settlement shall not be counted against
the shares available for issuance under this Plan. In the event that shares of Common Stock
are delivered in respect of a dividend equivalent right, only the number of shares
delivered with respect to the award shall be counted against the share limits of this Plan.
To the extent that shares of Common Stock are delivered pursuant to the exercise of a stock
appreciation right or stock option, the number of underlying shares as to which the
exercise related shall be counted against the applicable share limits under Section 4.2, as
opposed to only counting the shares actually issued. (For purposes of clarity, if a stock
appreciation right relates to 100,000 shares and is exercised at a time when the payment
due to the participant is 15,000 shares, 100,000 shares shall be charged against the
applicable share limits under Section 4.2 with respect to such exercise.) Shares that are
subject to or underlie awards which expire or for any reason are cancelled or terminated,
are forfeited, fail to vest, or for any other reason are not paid or delivered under this
Plan shall again be available for subsequent awards under this Plan. Shares that are
exchanged by a participant or withheld by the Corporation as full or partial payment in
connection with any award under this Plan, as well as any shares exchanged by a participant
or withheld by the Corporation or one of its Subsidiaries to satisfy the tax withholding
obligations related to any award, shall not be available for subsequent awards under this
Plan. Refer to Section 8.10 for application of the foregoing share limits with respect to
assumed awards. The foregoing adjustments to the share limits of this Plan are subject to
any applicable limitations under Section 162(m) of the Code with respect to awards intended
as performance-based compensation thereunder.
	 
	 	4.4	 	Reservation of Shares; No Fractional Shares; Minimum Issue. The Corporation shall at
all times reserve a number of shares of Common Stock sufficient to cover the Corporation’s
obligations and contingent obligations to deliver shares with respect to awards then
outstanding under this Plan (exclusive of any dividend equivalent obligations to the extent
the Corporation has the right to settle such rights in cash). No fractional shares shall be
delivered under this Plan. The Administrator may pay cash in lieu of any fractional shares
in settlements of awards under this Plan. No fewer than 100 shares may be purchased on
exercise of any award (or, in the case of stock appreciation or purchase rights, no fewer
than 100 rights may be exercised at any one time) unless the total number purchased or
exercised is the total number at the time available for purchase or exercise under the
award.










 









 











5. AWARDS





	 	5.1	 	Type and Form of Awards. The Administrator shall determine the type or types of
award(s) to be made to each selected Eligible Person. Awards may be granted singly, in
combination or in tandem. Awards also may be made in combination or in tandem with, in
replacement of, as alternatives to, or as the payment form for grants or rights under any
other employee or compensation plan of the Corporation or one of its Subsidiaries. The
types of awards that may be granted under this Plan are:






5.1.1 Stock Options. A stock option is the grant of a right to purchase a specified number
of shares of Common Stock during a specified period as determined by the Administrator. An
option may be intended as an incentive stock option within the meaning of Section 422 of
the Code (an “ISO”) or a nonqualified stock option (an option not intended to be an ISO).
The award agreement for an option will indicate if the option is intended as an ISO;
otherwise it will be deemed to be a nonqualified stock option. The maximum term of each
option (ISO or nonqualified) shall be ten (10) years. The per share exercise price for each
option shall be not less than 100% of the fair market value of a share of Common Stock on
the date of grant of the option. When an option is exercised, the exercise price for the
shares to be purchased shall be paid in full in cash or such other method permitted by the
Administrator consistent with Section 5.5.




5.1.2 Additional Rules Applicable to ISOs. To the extent that the aggregate fair market
value (determined at the time of grant of the applicable option) of stock with respect to
which ISOs first become exercisable by a participant in any calendar year exceeds $100,000,
taking into account both Common Stock subject to ISOs under this Plan and stock subject to
ISOs under all other plans of the Corporation or one of its Subsidiaries (or any parent or
predecessor corporation to the extent required by and within the meaning of Section 422 of
the Code and the regulations promulgated thereunder), such options shall be treated as
nonqualified stock options. In reducing the number of options treated as ISOs to meet the
$100,000 limit, the most recently granted options shall be reduced first. To the extent a
reduction of simultaneously granted options is necessary to meet the $100,000 limit, the
Administrator may, in the manner and to the extent permitted by law, designate which shares
of Common Stock are to be treated as shares acquired pursuant to the exercise of an ISO.
ISOs may only be granted to employees of the Corporation or one of its subsidiaries (for
this purpose, the term “subsidiary” is used as defined in Section 424(f) of the Code, which
generally requires an unbroken chain of ownership of at least 50% of the total combined
voting power of all classes of stock of each subsidiary in the chain beginning with the
Corporation and ending with the subsidiary in question). There shall be imposed in any
award agreement relating to ISOs such other terms and conditions as from time to time are
required in order that the option be an “incentive stock option” as that term is defined in
Section 422 of the Code. No ISO may be granted to any person who, at the time the option is
granted, owns (or is deemed to own under Section 424(d) of the Code) shares of outstanding
Common Stock possessing more than 10% of the total combined voting power of all classes of
stock of the Corporation, unless the exercise price of such option is at least 110% of the
fair market value of the stock subject to the option and such option by its terms is not
exercisable after the expiration of five years from the date such option is granted.




5.1.3 Stock Appreciation Rights. A stock appreciation right or “SAR” is a right to receive
a payment, in cash and/or Common Stock, equal to the excess of the fair market value of a
specified number of shares of Common Stock on the date the SAR is exercised over the fair
market value of a share of Common Stock on the date the SAR was granted (the “base price”)
as set forth in the applicable award agreement. The maximum term of an SAR shall be ten
(10) years.



 









 






5.1.4 Other Awards. The other types of awards that may be granted under this Plan include:
(a) stock bonuses, restricted stock, performance stock, stock units, phantom stock,
dividend equivalents, or similar rights to purchase or acquire shares, whether at a fixed
or variable price or ratio related to the Common Stock, upon the passage of time, the
occurrence of one or more events, or the satisfaction of performance criteria or other
conditions, or any combination thereof; (b) any similar securities with a value derived
from the value of or related to the Common Stock and/or returns thereon; or (c) cash awards
granted consistent with Section 5.2 below.




	 	5.2	 	Section 162(m) Performance-Based Awards. Without limiting the generality of the
foregoing, any of the types of awards listed in Section 5.1.4 above may be granted as
awards intended to satisfy the requirements for “performance-based compensation” within the
meaning of Section 162(m) of the Code (“Performance-Based Awards”). The grant, vesting,
exercisability or payment of Performance-Based Awards may depend (or, in the case of stock
options and SARs, may also depend) on the degree of achievement of one or more performance
goals relative to a pre-established targeted level or level using one or more of the
Business Criteria set forth below (on an absolute or relative basis) for the Corporation on
a consolidated basis or for one or more of the Corporation’s subsidiaries, segments,
divisions or business units, or any combination of the foregoing. Any stock option or SAR
intended as a Performance-Based Award shall be subject only to the requirements of Section
5.2.1 and 5.2.3 in order for such award to satisfy the requirements for “performance-based
compensation” under Section 162(m) of the Code. Any other Performance-Based Award shall be
subject to all of the following provisions of this Section 5.2.






5.2.1 Class; Administrator. The eligible class of persons for Performance-Based Awards
under this Section 5.2 shall be officers and employees of the Corporation or one of its
Subsidiaries. The Administrator approving Performance-Based Awards or making any
certification required pursuant to Section 5.2.4 must be constituted as provided in Section
3.1 for awards that are intended as performance-based compensation under Section 162(m) of
the Code.




5.2.2 Performance Goals. The specific performance goals for Performance-Based Awards (other
than stock options or SARs intended as a Performance-Based Award) shall be, on an absolute
or relative basis, established based on one or more of the following business criteria
(“Business Criteria”) as selected by the Administrator in its sole discretion: earnings per
share, cash flow (which means cash and cash equivalents derived from either net cash flow
from operations or net cash flow from operations, financing and investing activities),
total stockholder return, gross revenue, revenue growth, operating income (before or after
taxes), net earnings (before or after interest, taxes, depreciation and/or amortization),
return on equity or on assets or on net investment, cost containment or reduction, the fair
market value of a share of Common Stock, or any combination thereof. These terms are used
as applied under generally accepted accounting principles or in the financial reporting of
the Corporation or of its Subsidiaries. To qualify awards as performance-based under
Section 162(m), the applicable Business Criterion (or Business Criteria, as the case may
be) and specific performance goal or goals (“targets”) must be established and approved by
the Administrator during the first 90 days of the performance period (and, in the case of
performance periods of less than one year, in no event after 25% or more of the performance
period has elapsed) and while performance relating to such target(s) remains substantially
uncertain within the meaning of Section 162(m) of the Code. Performance targets shall be
adjusted to mitigate the unbudgeted impact of material, unusual or nonrecurring gains and
losses, accounting changes or other extraordinary events not foreseen at the time the
targets were set unless the Administrator provides otherwise at the time of establishing
the targets. The applicable performance measurement period may not be less than three
months nor more than 10 years.




5.2.3 Form of Payment; Maximum Performance-Based Award. Grants or awards under this Section
5.2 may be paid in cash or shares of Common Stock or any combination thereof. The maximum
aggregate payment which may be made pursuant to Performance-Based Awards that are payable
or relate to shares of Common Stock (including, without limitation, stock options and SARs,
whether payable in cash or stock) and that are granted to any one participant in any one
calendar year is 4,000,000 shares of Common Stock (or cash of equivalent value at the time
of payment), either individually or in the aggregate, subject to adjustment as provided in
Section 7.1.
The aggregate amount of compensation that may be paid to any one participant in respect of
all Performance-Based Awards payable only in cash and not related to shares of Common Stock
and granted to that participant in any one calendar year shall not exceed $5,000,000.
Awards that are cancelled during the year shall be counted against these limits to the
extent permitted by Section 162(m) of the Code.



 









 






5.2.4 Certification of Payment. Before any Performance-Based Award under this Section 5.2
(other than stock options and SARs) is paid and to the extent required to qualify the award
as performance-based compensation within the meaning of Section 162(m) of the Code, the
Administrator must certify in writing that the performance target(s) and any other material
terms of the Performance-Based Award were in fact timely satisfied.




5.2.5 Reservation of Discretion. The Administrator will have the discretion to determine
the restrictions or other limitations of the individual awards granted under this Section
5.2 including the authority to reduce awards, payouts or vesting or to pay no awards, in
its sole discretion, if the Administrator preserves such authority at the time of grant by
language to this effect in its authorizing resolutions or otherwise.




5.2.6 Expiration of Grant Authority. As required pursuant to Section 162(m) of the Code and
the regulations promulgated thereunder, the Administrator’s authority to grant new awards
that are intended to qualify as performance-based compensation within the meaning of
Section 162(m) of the Code (other than stock options and SARs) shall terminate upon the
first meeting of the Corporation’s stockholders that occurs in the fifth year following the
year in which the Corporation’s stockholders first approve this Plan, subject to any
subsequent extension that may be approved by stockholders.




	 	5.3	 	Award Agreements. Each award shall be evidenced by a written award agreement in the
form approved by the Administrator and executed on behalf of the Corporation and, if
required by the Administrator, executed by the recipient of the award. The Administrator
may authorize any officer of the Corporation (other than the particular award recipient) to
execute any or all award agreements on behalf of the Corporation. The award agreement shall
set forth the material terms and conditions of the award as established by the
Administrator consistent with the express limitations of this Plan.
	 
	 	5.4	 	Deferrals and Settlements. Payment of awards may be in the form of cash, Common Stock,
other awards or combinations thereof as the Administrator shall determine, and with such
restrictions as it may impose. The Administrator may also permit participants to elect to
defer the issuance of shares or the settlement of awards in cash under such rules and
procedures as it may establish under this Plan. The Administrator may also provide that
deferred settlements include the payment or crediting of interest or other earnings on the
deferral amounts, or the payment or crediting of dividend equivalents where the deferred
amounts are denominated in shares.
	 
	 	5.5	 	Consideration for Common Stock or Awards. The purchase price for any award granted
under this Plan or the Common Stock to be delivered pursuant to an award, as applicable,
may be paid by means of any lawful consideration as determined by the Administrator,
including, without limitation, one or a combination of the following methods:






	 	•	 	services rendered by the recipient of such award;
	 
	 	•	 	cash, check payable to the order of the Corporation, or electronic funds
transfer;
	 
	 	•	 	notice and third party payment in such manner as may be authorized by the
Administrator;
	 
	 	•	 	the delivery of previously owned shares of Common Stock;
	 
	 	•	 	by a reduction in the number of shares otherwise deliverable pursuant to the
award; or
	 
	 	•	 	subject to such procedures as the Administrator may adopt, pursuant to a
“cashless exercise” with a third party who provides financing for the purposes of (or
who otherwise facilitates) the purchase or exercise of awards.




 









 












	 	 	 	In no event shall any shares newly-issued by the Corporation be issued for less than the
minimum lawful consideration for such shares or for consideration other than consideration
permitted by applicable state law. In the event that the Administrator allows a participant
to exercise an award by delivering shares of Common Stock previously owned by such
participant and unless otherwise expressly provided by the Administrator, any shares
delivered which were initially acquired by the participant from the Corporation (upon
exercise of a stock option or otherwise) must have been owned by the participant at least
six months as of the date of delivery. Shares of Common Stock used to satisfy the exercise
price of an option shall be valued at their fair market value on the date of exercise. The
Corporation will not be obligated to deliver any shares unless and until it receives full
payment of the exercise or purchase price therefor and any related withholding obligations
under Section 8.5 and any other conditions to exercise or purchase have been satisfied.
Unless otherwise expressly provided in the applicable award agreement, the Administrator
may at any time eliminate or limit a participant’s ability to pay the purchase or exercise
price of any award or shares by any method other than cash payment to the Corporation.
	 
	 	5.6	 	Definition of Fair Market Value. For purposes of this Plan, “fair market value” shall
mean, unless otherwise determined or provided by the Administrator in the circumstances,
the last price (in regular trading) for a share of Common Stock as furnished by the
National Association of Securities Dealers, Inc. (the “NASD”) through the NASDAQ Global
Market Reporting System (the “Global Market”) for the date in question or, if no sales of
Common Stock were reported by the NASD on the Global Market on that date, the last price
(in regular trading) for a share of Common Stock as furnished by the NASD through the
Global Market for the next preceding day on which sales of Common Stock were reported by
the NASD. The Administrator may, however, provide with respect to one or more awards that
the fair market value shall equal the last price (in regular trading) for a share of Common
Stock as furnished by the NASD through the Global Market on the last trading day preceding
the date in question or the average of the high and low trading prices of a share of Common
Stock as furnished by the NASD through the Global Market for the date in question or the
most recent trading day. If the Common Stock is no longer listed or is no longer actively
traded on the Global Market as of the applicable date, the fair market value of the Common
Stock shall be the value as reasonably determined by the Administrator for purposes of the
award in the circumstances. The Administrator also may adopt a different methodology for
determining fair market value with respect to one or more awards if a different methodology
is necessary or advisable to secure any intended favorable tax, legal or other treatment
for the particular award(s) (for example, and without limitation, the Administrator may
provide that fair market value for purposes of one or more awards will be based on an
average of closing prices (or the average of high and low daily trading prices) for a
specified period preceding the relevant date).
	 
	 	5.7	 	Transfer Restrictions.






5.7.1 Limitations on Exercise and Transfer. Unless otherwise expressly provided in (or
pursuant to) this Section 5.7, by applicable law and by the award agreement, as the same
may be amended, (a) all awards are non-transferable and shall not be subject in any manner
to sale, transfer, anticipation, alienation, assignment, pledge, encumbrance or charge; (b)
awards shall be exercised only by the participant; and (c) amounts payable or shares
issuable pursuant to any award shall be delivered only to (or for the account of) the
participant.




5.7.2 Exceptions. The Administrator may permit awards to be exercised by and paid to, or
otherwise transferred to, other persons or entities pursuant to such conditions and
procedures, including limitations on subsequent transfers, as the Administrator may, in its
sole discretion, establish in writing. Any permitted transfer shall be subject to
compliance with applicable federal and state securities laws.




5.7.3 Further Exceptions to Limits on Transfer. The exercise and transfer restrictions in
Section 5.7.1 shall not apply to:




	 	(a)	 	transfers to the Corporation,
	 
	 	(b)	 	the designation of a beneficiary to receive benefits in the event of the
participant’s death or, if the participant has died, transfers to or exercise by the
participant’s beneficiary, or, in the absence of a validly designated beneficiary,
transfers by will or the laws of descent and distribution,




 









 






	 	(c)	 	subject to any applicable limitations on ISOs and subject to such rules as
the Administrator may adopt, transfers to a family member (or former family member)
pursuant to a domestic relations order,
	 
	 	(d)	 	if the participant has suffered a disability, permitted transfers or
exercises on behalf of the participant by his or her legal representative, or
	 
	 	(e)	 	the authorization by the Administrator of “cashless exercise” procedures with
third parties who provide financing for the purpose of (or who otherwise facilitate)
the exercise of awards consistent with applicable laws and the express authorization
of the Administrator.






	 	5.8	 	International Awards. One or more awards may be granted to Eligible Persons who provide
services to the Corporation or one of its Subsidiaries outside of the United States. Any
awards granted to such persons may be granted pursuant to the terms and conditions of any
applicable sub-plans, if any, appended to this Plan and approved by the Administrator.





6. EFFECT OF TERMINATION OF SERVICE ON AWARDS





	 	6.1	 	General. The Administrator shall establish the effect of a termination of employment or
service on the rights and benefits under each award under this Plan and in so doing may
make distinctions based upon, inter alia, the cause of termination and type of award. If
the participant is not an employee of the Corporation or one of its Subsidiaries and
provides other services to the Corporation or one of its Subsidiaries, the Administrator
shall be the sole judge for purposes of this Plan (unless a contract or the award otherwise
provides) of whether the participant continues to render services to the Corporation or one
of its Subsidiaries and the date, if any, upon which such services shall be deemed to have
terminated.
	 
	 	6.2	 	Events Not Deemed Terminations of Service. Unless the express policy of the Corporation
or one of its Subsidiaries, or the Administrator, otherwise provides, the employment
relationship shall not be considered terminated in the case of (a) sick leave, (b) military
leave, or (c) any other leave of absence authorized by the Corporation or one of its
Subsidiaries, or the Administrator. In the case of any employee of the Corporation or one
of its Subsidiaries on an approved leave of absence, continued vesting of the award while
on leave from the employ of the Corporation or one of its Subsidiaries may be suspended
until the employee returns to service, unless the Administrator otherwise provides or
applicable law otherwise requires. In no event shall an award be exercised after the
expiration of the term set forth in the award agreement.
	 
	 	6.3	 	Effect of Change of Subsidiary Status. For purposes of this Plan and any award, if an
entity ceases to be a Subsidiary of the Corporation a termination of employment or service
shall be deemed to have occurred with respect to each Eligible Person in respect of such
Subsidiary who does not continue as an Eligible Person in respect of another entity within
the Corporation or another Subsidiary that continues as such after giving effect to the
transaction or other event giving rise to the change in status.





7. ADJUSTMENTS; ACCELERATION





	 	7.1	 	Adjustments. Upon or in contemplation of: any reclassification, recapitalization, stock
split (including a stock split in the form of a stock dividend) or reverse stock split
(“stock split”); any merger, combination, consolidation, or other reorganization; any
spin-off, split-up, or similar extraordinary dividend distribution in respect of the Common
Stock (whether in the form of securities or property); any exchange of Common Stock or
other securities of the Corporation, or any similar, unusual or extraordinary corporate
transaction in respect of the Common Stock; or a
sale of all or substantially all the business or assets of the Corporation as an entirety;
then the Administrator shall, in such manner, to such extent (if any) and at such time as
it deems appropriate and equitable in the circumstances:






	 	(a)	 	proportionately adjust any or all of (1) the number and type of shares of
Common Stock (or other securities) that thereafter may be made the subject of awards
(including the specific share limits, maximums and numbers of shares set forth
elsewhere in this Plan), (2) the number, amount and type of shares of Common Stock (or
other securities or property) subject to any or all outstanding awards, (3) the grant,
purchase, or exercise price (which term includes the base price of any SAR or similar
right) of any or all outstanding awards, (4) the securities, cash or other property
deliverable upon exercise or payment of any outstanding awards, or (5) (subject to
Section 8.8.3(a)) the performance standards applicable to any outstanding awards, or




 









 






	 	(b)	 	make provision for a cash payment or for the assumption, substitution or
exchange of any or all outstanding share-based awards or the cash, securities or
property deliverable to the holder of any or all outstanding share-based awards, based
upon the distribution or consideration payable to holders of the Common Stock upon or
in respect of such event.






	 	 	 	The Administrator may adopt such valuation methodologies for outstanding awards as it deems
reasonable in the event of a cash or property settlement and, in the case of options, SARs
or similar rights, but without limitation on other methodologies, may base such settlement
solely upon the excess if any of the per share amount payable upon or in respect of such
event over the exercise or base price of the award. With respect to any award of an ISO,
the Administrator may make such an adjustment that causes the option to cease to qualify as
an ISO without the consent of the affected participant.
	 
	 	 	 	In any of such events, the Administrator may take such action prior to such event to the
extent that the Administrator deems the action necessary to permit the participant to
realize the benefits intended to be conveyed with respect to the underlying shares in the
same manner as is or will be available to stockholders generally. In the case of any stock
split or reverse stock split, if no action is taken by the Administrator, the proportionate
adjustments contemplated by clause (a) above shall nevertheless be made.
	 
	 	7.2	 	Automatic Acceleration of Awards. Upon a dissolution of the Corporation or other event
described in Section 7.1 that the Corporation does not survive (or does not survive as a
public company in respect of its Common Stock), then each then-outstanding option and SAR
shall become fully vested, all shares of restricted stock then outstanding shall fully vest
free of restrictions, and each other award granted under this Plan that is then outstanding
shall become payable to the holder of such award; provided that such acceleration provision
shall not apply, unless otherwise expressly provided by the Administrator, with respect to
any award to the extent that the Administrator has made a provision for the substitution,
assumption, exchange or other continuation or settlement of the award, or the award would
otherwise continue in accordance with its terms, in the circumstances.
	 
	 	7.3	 	Possible Acceleration of Awards. Without limiting Section 7.2, in the event of a Change
in Control Event (as defined below), the Administrator may, in its discretion, provide that
any outstanding option or SAR shall become fully vested, that any share of restricted stock
then outstanding shall fully vest free of restrictions, and that any other award granted
under this Plan that is then outstanding shall be payable to the holder of such award. The
Administrator may take such action with respect to all awards then outstanding or only with
respect to certain specific awards identified by the Administrator in the circumstances.
For purposes of this Plan, “Change in Control Event” means any of the following:






	 	(a)	 	The acquisition by any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act (a “Person”)) of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than 30%
of either (1) the then-outstanding shares of common stock of the Corporation (the
“Outstanding Company
Common Stock”) or (2) the combined voting power of the then-outstanding voting
securities of the Corporation entitled to vote generally in the election of directors
(the “Outstanding Company Voting Securities”); provided, however, that, for purposes
of this clause (a), the following acquisitions shall not constitute a Change in
Control Event; (A) any acquisition directly from the Corporation, (B) any acquisition
by the Corporation, (C) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Corporation or any affiliate of the Corporation
or a successor, or (D) any acquisition by any entity pursuant to a transaction that
complies with Sections (c)(1), (2) and (3) below;
	 
	 	(b)	 	Individuals who, as of the Effective Date, constitute the Board (the
“Incumbent Board”) cease for any reason to constitute at least a majority of the
Board; provided, however, that any individual becoming a director subsequent to the
Effective Date whose election, or nomination for election by the Corporation’s
stockholders, was approved by a vote of at least two-thirds of the directors then
comprising the Incumbent Board (including for these purposes, the new members whose
election or nomination was so approved, without counting the member and his
predecessor twice) shall be considered as though such individual were a member of the
Incumbent Board, but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened election contest
with respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the Board;




 









 






	 	(c)	 	Consummation of a reorganization, merger, statutory share exchange or
consolidation or similar corporate transaction involving the Corporation or any of its
Subsidiaries, a sale or other disposition of all or substantially all of the assets of
the Corporation, or the acquisition of assets or stock of another entity by the
Corporation or any of its Subsidiaries (each, a “Business Combination”), in each case
unless, following such Business Combination, (1) all or substantially all of the
individuals and entities that were the beneficial owners of the Outstanding Company
Common Stock and the Outstanding Company Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more than 50% of the
then-outstanding shares of common stock and the combined voting power of the
then-outstanding voting securities entitled to vote generally in the election of
directors, as the case may be, of the entity resulting from such Business Combination
(including, without limitation, an entity that, as a result of such transaction, owns
the Corporation or all or substantially all of the Corporation’s assets directly or
through one or more subsidiaries (a “Parent”)) in substantially the same proportions
as their ownership immediately prior to such Business Combination of the Outstanding
Company Common Stock and the Outstanding Company Voting Securities, as the case may
be, (2) no Person (excluding any entity resulting from such Business Combination or a
Parent or any employee benefit plan (or related trust) of the Corporation or such
entity resulting from such Business Combination or Parent) beneficially owns, directly
or indirectly, more than 30% of, respectively, the then-outstanding shares of common
stock of the entity resulting from such Business Combination or the combined voting
power of the then-outstanding voting securities of such entity, except to the extent
that the ownership in excess of 30% existed prior to the Business Combination, and (3)
at least a majority of the members of the board of directors or trustees of the entity
resulting from such Business Combination or a Parent were members of the Incumbent
Board at the time of the execution of the initial agreement or of the action of the
Board providing for such Business Combination; or
	 
	 	(d)	 	Approval by the stockholders of the Corporation of a complete liquidation or
dissolution of the Corporation other than in the context of a transaction that does
not constitute a Change in Control Event under clause (c) above.






	 	7.4	 	Early Termination of Awards. Any award that has been accelerated as required or
contemplated by Section 7.2 or 7.3 (or would have been so accelerated but for Section 7.5,
7.6 or 7.7) shall terminate upon the related event referred to in Section 7.2 or 7.3, as
applicable, subject to any provision that has been expressly made by the Administrator,
through a plan of reorganization or otherwise, for the survival, substitution, assumption,
exchange or other continuation or settlement
of such award and provided that, in the case of options and SARs that will not survive, be
substituted for, assumed, exchanged, or otherwise continued or settled in the transaction,
the holder of such award shall be given reasonable advance notice of the impending
termination and a reasonable opportunity to exercise his or her outstanding options and
SARs in accordance with their terms before the termination of such awards (except that in
no case shall more than ten days’ notice of accelerated vesting and the impending
termination be required and any acceleration may be made contingent upon the actual
occurrence of the event).
	 
	 	7.5	 	Other Acceleration Rules. Any acceleration of awards pursuant to this Section 7 shall
comply with applicable legal requirements and, if necessary to accomplish the purposes of
the acceleration or if the circumstances require, may be deemed by the Administrator to
occur a limited period of time not greater than 30 days before the event. Without limiting
the generality of the foregoing, the Administrator may deem an acceleration to occur
immediately prior to the applicable event and/or reinstate the original terms of an award
if an event giving rise to an acceleration does not occur. The Administrator may override
the provisions of Section 7.2, 7.3, 7.4 and/or 7.6 by express provision in the award
agreement and may accord any Eligible Person a right to refuse any acceleration, whether
pursuant to the award agreement or otherwise, in such circumstances as the Administrator
may approve. The portion of any ISO accelerated in connection with a Change in Control
Event or any other action permitted hereunder shall remain exercisable as an ISO only to
the extent the applicable $100,000 limitation on ISOs is not exceeded. To the extent
exceeded, the accelerated portion of the option shall be exercisable as a nonqualified
stock option under the Code.




 









 






	 	7.6	 	Possible Rescission of Acceleration. If the vesting of an award has been accelerated
expressly in anticipation of an event or upon stockholder approval of an event and the
Administrator later determines that the event will not occur, the Administrator may rescind
the effect of the acceleration as to any then outstanding and unexercised or otherwise
unvested awards.
	 
	 	7.7	 	Golden Parachute Limitation. Notwithstanding anything else contained in this Section 7
to the contrary, in no event shall an award be accelerated under this Plan to an extent or
in a manner which would not be fully deductible by the Corporation or one of its
Subsidiaries for federal income tax purposes because of Section 280G of the Code, nor shall
any payment hereunder be accelerated to the extent any portion of such accelerated payment
would not be deductible by the Corporation or one of its Subsidiaries because of Section
280G of the Code. If a participant would be entitled to benefits or payments hereunder and
under any other plan or program that would constitute “parachute payments” as defined in
Section 280G of the Code, then the participant may by written notice to the Corporation
designate the order in which such parachute payments will be reduced or modified so that
the Corporation or one of its Subsidiaries is not denied federal income tax deductions for
any “parachute payments” because of Section 280G of the Code. Notwithstanding the
foregoing, if a participant is a party to an employment or other agreement with the
Corporation or one of its Subsidiaries, or is a participant in a severance program
sponsored by the Corporation or one of its Subsidiaries, that contains express provisions
regarding Section 280G and/or Section 4999 of the Code (or any similar successor
provision), the Section 280G and/or Section 4999 provisions of such employment or other
agreement or plan, as applicable, shall control as to any awards held by that participant
(for example, and without limitation, a participant may be a party to an employment
agreement with the Corporation or one of its Subsidiaries that provides for a “gross-up” as
opposed to a “cut-back” in the event that the Section 280G thresholds are reached or
exceeded in connection with a change in control and, in such event, the Section 280G and/or
Section 4999 provisions of such employment agreement shall control as to any awards held by
that participant).





8. OTHER PROVISIONS





	 	8.1	 	Compliance with Laws. This Plan, the granting and vesting of awards under this Plan,
the offer, issuance and delivery of shares of Common Stock, the acceptance of promissory
notes and/or the payment of money under this Plan or under awards are subject to compliance
with all applicable federal and state laws, rules and regulations (including but not
limited to state and federal securities law, federal margin requirements) and to such
approvals by any listing, regulatory or
governmental authority as may, in the opinion of counsel for the Corporation, be necessary
or advisable in connection therewith. The person acquiring any securities under this Plan
will, if requested by the Corporation or one of its Subsidiaries, provide such assurances
and representations to the Corporation or one of its Subsidiaries as the Administrator may
deem necessary or desirable to assure compliance with all applicable legal and accounting
requirements.
	 
	 	8.2	 	No Rights to Award. No person shall have any claim or rights to be granted an award (or
additional awards, as the case may be) under this Plan, subject to any express contractual
rights (set forth in a document other than this Plan) to the contrary.
	 
	 	8.3	 	No Employment/Service Contract. Nothing contained in this Plan (or in any other
documents under this Plan or in any award) shall confer upon any Eligible Person or other
participant any right to continue in the employ or other service of the Corporation or one
of its Subsidiaries, constitute any contract or agreement of employment or other service or
affect an employee’s status as an employee at will, nor shall interfere in any way with the
right of the Corporation or one of its Subsidiaries to change a person’s compensation or
other benefits, or to terminate his or her employment or other service, with or without
cause. Nothing in this Section 8.3, however, is intended to adversely affect any express
independent right of such person under a separate employment or service contract other than
an award agreement.
	 
	 	8.4	 	Plan Not Funded. Awards payable under this Plan shall be payable in shares or from the
general assets of the Corporation, and no special or separate reserve, fund or deposit
shall be made to assure payment of such awards. No participant, beneficiary or other person
shall have any right, title or interest in any fund or in any specific asset (including
shares of Common Stock, except as expressly otherwise provided) of the Corporation or one
of its Subsidiaries by reason of any award hereunder. Neither the provisions of this Plan
(or of any related documents), nor the creation or adoption of this Plan, nor any action
taken pursuant to the provisions of this Plan shall create, or be construed to create, a
trust of any kind or a fiduciary relationship between the Corporation or one of its
Subsidiaries and any participant, beneficiary or other person. To the extent that a
participant, beneficiary or other person acquires a right to receive payment pursuant to
any award hereunder, such right shall be no greater than the right of any unsecured general
creditor of the Corporation.




 









 






	 	8.5	 	Tax Withholding. Upon any exercise, vesting, or payment of any award or upon the
disposition of shares of Common Stock acquired pursuant to the exercise of an ISO prior to
satisfaction of the holding period requirements of Section 422 of the Code, the Corporation
or one of its Subsidiaries shall have the right at its option to:






	 	(a)	 	require the participant (or the participant’s personal representative or
beneficiary, as the case may be) to pay or provide for payment of at least the minimum
amount of any taxes which the Corporation or one of its Subsidiaries may be required
to withhold with respect to such award event or payment; or
	 
	 	(b)	 	deduct from any amount otherwise payable in cash to the participant (or the
participant’s personal representative or beneficiary, as the case may be) the minimum
amount of any taxes which the Corporation or one of its Subsidiaries may be required
to withhold with respect to such cash payment.






	 	 	 	In any case where a tax is required to be withheld in connection with the delivery of
shares of Common Stock under this Plan, the Administrator may in its sole discretion
(subject to Section 8.1) grant (either at the time of the award or thereafter) to the
participant the right to elect, pursuant to such rules and subject to such conditions as
the Administrator may establish, to have the Corporation reduce the number of shares to be
delivered by (or otherwise reacquire) the appropriate number of shares, valued in a
consistent manner at their fair market value or at the sales price in accordance with
authorized procedures for cashless exercises, necessary to satisfy the minimum applicable
withholding obligation on exercise, vesting or payment. In no event shall the shares
withheld exceed the minimum whole number of shares required for tax withholding under
applicable law. The Corporation may, with the Administrator’s approval, accept one or more
promissory notes from any Eligible Person in connection with taxes required to be withheld
upon
the exercise, vesting or payment of any award under this Plan; provided that any such note
shall be subject to terms and conditions established by the Administrator and the
requirements of applicable law.
	 
	 	8.6	 	Effective Date, Termination and Suspension, Amendments.






8.6.1 Effective Date. This Plan is effective as of June 9, 2005, the date of its approval
by the Board (the “Effective Date”). This Plan shall be submitted for and subject to
stockholder approval no later than twelve months after the Effective Date. Unless earlier
terminated by the Board, this Plan shall terminate at the close of business on the day
before the tenth anniversary of the Effective Date. After the termination of this Plan
either upon such stated expiration date or its earlier termination by the Board, no
additional awards may be granted under this Plan, but previously granted awards (and the
authority of the Administrator with respect thereto, including the authority to amend such
awards) shall remain outstanding in accordance with their applicable terms and conditions
and the terms and conditions of this Plan.




8.6.2 Board Authorization. The Board may, at any time, terminate or, from time to time,
amend, modify or suspend this Plan, in whole or in part. No awards may be granted during
any period that the Board suspends this Plan.




8.6.3 Stockholder Approval. To the extent then required by applicable law or any applicable
listing agency or required under Sections 162, 422 or 424 of the Code to preserve the
intended tax consequences of this Plan, or deemed necessary or advisable by the Board, any
amendment to this Plan shall be subject to stockholder approval.




8.6.4 Amendments to Awards. Without limiting any other express authority of the
Administrator under (but subject to) the express limits of this Plan, the Administrator by
agreement or resolution may waive conditions of or limitations on awards to participants
that the Administrator in the prior exercise of its discretion has imposed, without the
consent of a participant, and (subject to the requirements of Sections 3.2 and 8.6.5) may
make other changes to the terms and conditions of awards. Any amendment or other action
that would constitute a repricing of an award is subject to the limitations set forth in
Section 3.2(g).



 









 






8.6.5 Limitations on Amendments to Plan and Awards. No amendment, suspension or termination
of this Plan or amendment of any outstanding award agreement shall, without written consent
of the participant, affect in any manner materially adverse to the participant any rights
or benefits of the participant or obligations of the Corporation under any award granted
under this Plan prior to the effective date of such change. Changes, settlements and other
actions contemplated by Section 7 shall not be deemed to constitute changes or amendments
for purposes of this Section 8.6.




	 	8.7	 	Privileges of Stock Ownership. Except as otherwise expressly authorized by the
Administrator or this Plan, a participant shall not be entitled to any privilege of stock
ownership as to any shares of Common Stock not actually delivered to and held of record by
the participant. No adjustment will be made for dividends or other rights as a stockholder
for which a record date is prior to such date of delivery.
	 
	 	8.8	 	Governing Law; Construction; Severability.






8.8.1 Choice of Law. This Plan, the awards, all documents evidencing awards and all other
related documents shall be governed by, and construed in accordance with the laws of the
State of Delaware.




8.8.2 Severability. If a court of competent jurisdiction holds any provision invalid and
unenforceable, the remaining provisions of this Plan shall continue in effect.




8.8.3 Plan Construction.




	 	(a)	 	Rule 16b-3. It is the intent of the Corporation that the awards and
transactions permitted by awards be interpreted in a manner that, in the case of
participants who are or may be subject to Section 16 of the Exchange Act, qualify, to
the maximum extent compatible with the express terms of the award, for exemption from
matching liability under Rule 16b-3 promulgated under the Exchange Act.
Notwithstanding the foregoing, the Corporation shall have no liability to any
participant for Section 16 consequences of awards or events under awards if an award
or event does not so qualify.
	 
	 	(b)	 	Section 162(m). Awards under Section 5.1.4 to persons described in
Section 5.2 that are either granted or become vested, exercisable or payable based on
attainment of one or more performance goals related to the Business Criteria, as well
as stock options and SARs intended as Performance-Based Awards granted to persons
described in Section 5.2, that are approved by a committee composed solely of two or
more outside directors (as this requirement is applied under Section 162(m) of the
Code) shall be deemed to be intended as performance-based compensation within the
meaning of Section 162(m) of the Code unless such committee provides otherwise at the
time of grant of the award. It is the further intent of the Corporation that (to the
extent the Corporation or one of its Subsidiaries or awards under this Plan may be or
become subject to limitations on deductibility under Section 162(m) of the Code) any
such awards and any other Performance-Based Awards under Section 5.2 that are granted
to or held by a person subject to Section 162(m) will qualify as performance-based
compensation or otherwise be exempt from deductibility limitations under Section
162(m).






	 	8.9	 	Captions. Captions and headings are given to the sections and subsections of this Plan
solely as a convenience to facilitate reference. Such headings shall not be deemed in any
way material or relevant to the construction or interpretation of this Plan or any
provision thereof.




 









 






	 	8.10	 	Stock-Based Awards in Substitution for Stock Options or Awards Granted by Other
Corporation. Awards may be granted to Eligible Persons in substitution for or in connection
with an assumption of employee stock options, SARs, restricted stock or other stock-based
awards granted by other entities to persons who are or who will become Eligible Persons in
respect of the Corporation or one of its Subsidiaries, in connection with a distribution,
merger or other reorganization by or with the granting entity or an affiliated entity, or
the acquisition by the Corporation or one of its Subsidiaries, directly or indirectly, of
all or a substantial part of the stock or assets of the employing entity. The awards so
granted need not comply with other specific terms of this Plan, provided the awards reflect
only adjustments giving effect to the assumption or substitution consistent with the
conversion applicable to the Common Stock in the transaction and any change in the issuer
of the security. Any shares that are delivered and any awards that are granted by, or
become obligations of, the Corporation, as a result of the assumption by the Corporation
of, or in substitution for, outstanding awards previously granted by an acquired company
(or previously granted by a predecessor employer (or direct or indirect parent thereof) in
the case of persons that become employed by the Corporation or one of its Subsidiaries in
connection with a business or asset acquisition or similar transaction) shall not be
counted against the Share Limit or other limits on the number of shares available for
issuance under this Plan.
	 
	 	8.11	 	Non-Exclusivity of Plan. Nothing in this Plan shall limit or be deemed to limit the
authority of the Board or the Administrator to grant awards or authorize any other
compensation, with or without reference to the Common Stock, under any other plan or
authority.
	 
	 	8.12	 	No Corporate Action Restriction. The existence of this Plan, the award agreements and
the awards granted hereunder shall not limit, affect or restrict in any way the right or
power of the Board or the stockholders of the Corporation to make or authorize: (a) any
adjustment, recapitalization, reorganization or other change in the capital structure or
business of the Corporation or any Subsidiary, (b) any merger, amalgamation, consolidation
or change in the ownership of the Corporation or any Subsidiary, (c) any issue of bonds,
debentures, capital, preferred or prior preference stock ahead of or affecting the capital
stock (or the rights thereof) of the Corporation or any Subsidiary, (d) any dissolution or
liquidation of the Corporation or any Subsidiary, (e) any sale or transfer of all or any
part of the assets or business of the Corporation or any Subsidiary, or (f) any other
corporate act or proceeding by the Corporation or any Subsidiary. No participant,
beneficiary or any other person shall have any claim under any award or award agreement
against any member of the Board or the Administrator, or the Corporation or any employees,
officers or agents of the Corporation or any Subsidiary, as a result of any such action.
	 
	 	8.13	 	Other Company Benefit and Compensation Programs. Payments and other benefits received
by a participant under an award made pursuant to this Plan shall not be deemed a part of a
participant’s compensation for purposes of the determination of benefits under any other
employee welfare or benefit plans or arrangements, if any, provided by the Corporation or
any Subsidiary, except where the Administrator expressly otherwise provides or authorizes
in writing. Awards under this Plan may be made in addition to, in combination with, as
alternatives to or in payment of grants, awards or commitments under any other plans or
arrangements of the Corporation or its Subsidiaries.