exv10w1





 


Exhibit 10.1

ATMEL CORPORATION


 


2005 STOCK PLAN


 


(AS
AMENDED AND RESTATED MAY 20, 2009)


 


1.  Background.  The Plan permits the grant of Nonstatutory Stock Options, Incentive Stock Options, Stock Purchase Rights, Stock Appreciation Rights, and Restricted Stock Units.


 


2.  Purposes of the Plan.  The purposes of this 2005 Stock Plan are:


 


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

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

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




 


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


 


(a)  “Administrator” means the Board or any of its Committees as shall be administering the Plan, in accordance with Section 5 of the Plan.


 


(b)  “Affiliate” means any corporation or any other entity (including, but not limited to, partnerships and joint ventures) controlling, controlled by, or under common control with the Company.


 


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


 


(d)  “Annual Revenue” means the Company’s or a business unit’s net sales for the Fiscal Year, determined in accordance with generally accepted accounting principles; provided, however, that prior to the Fiscal Year, the Committee shall determine whether any significant item(s) shall be excluded or included from the calculation of Annual Revenue with respect to one or more Participants.


 


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


 


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


 


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


 


(h)  “Cash Flow from Operations” means as to any Fiscal Year, the Company’s cash generated from operating activities, or a business unit’s cash generated from operating activities, determined in accordance with generally acceptable accounting principles.


 


(i)  “Code” means the Internal Revenue Code of 1986, as amended. Reference to a specific section of the Code or regulation thereunder shall include such section or regulation, any valid regulation promulgated under such section, and any comparable provision of any future legislation or regulation amending, supplementing or superseding such section or regulation.


 


(j)  “Committee” means a committee of Directors appointed by the Board in accordance with Section 5 of the Plan.


 


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



1







 





    (l)  “Company” means Atmel
    Corporation, a Delaware corporation.



 



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



 



    (n)  “Director” means a member of the
    Board, either as an Employee or an Outside Director.



 



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



 



    (p)  “Earnings Per Share” means as to
    any Fiscal Year, the Company’s Net Income or a business
    unit’s Pro Forma Net Income, divided by a weighted average
    number of common shares outstanding and dilutive common
    equivalent shares deemed outstanding.



 



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



 



    (r)  “Exercise Price” means the price
    at which a Share may be purchased by a Participant pursuant to
    the exercise of an Option.



 



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



 



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



 



    (i) If the Common Stock is listed on any established stock
    exchange or a national market system, including without
    limitation the Nasdaq Global Select Market, Nasdaq Global
    Market, or Nasdaq Capital Market, its Fair Market Value shall be
    the closing sales price for such stock (or the closing bid, if
    no sales were reported) as quoted on such exchange or system on
    the day of determination, as reported in The Wall Street Journal
    or such other source as the Administrator deems reliable, or, if
    the day of determination is not a trading day, the average of
    the closing sales prices (or the closing bids, if no sales were
    reported) on the immediately following and preceding trading
    dates, in either case as reported by The Wall Street Journal or
    such other source as the Administrator deems reliable;



 



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



 



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



 



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



 



    (v)  “Grant Date” means, with respect
    to an Award, the date that the Award was granted.



 



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



 



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




    

    2








 





    Fiscal Year, the Committee shall determine whether any
    significant item(s) shall be included or excluded from the
    calculation of Net Income with respect to one or more
    Participants.



 



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



 



    (z)  “Notice of Grant” means a
    written or electronic notice evidencing certain terms and
    conditions of an individual Award grant. The Notice of Grant is
    part of the Award Agreement.



 



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



 



    (bb) “Operating Profit” means the
    Company’s or a business unit’s profit from operations
    but excluding any unusual items, determined in accordance with
    generally accepted accounting principles.



 



    (cc) “Option” means an Incentive Stock
    Option or a Nonstatutory Stock Option granted pursuant to the
    Plan.



 



    (dd) “Optionee” means the holder of an
    outstanding Option or Stock Purchase Right granted under the
    Plan.



 



    (ee) “Option Exchange Program” means a
    program whereby outstanding Options are surrendered or cancelled
    in exchange for the right to receive options of the same type,
    of a different type
    and/or cash
    pursuant to such terms as the Administrator may determine.



 



    (ff) “Optioned Stock” means the Common
    Stock subject to an Award.



 



    (gg) “Outside Director” means a Director
    who is not an Employee.



 



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



 



    (ii) “Participant” means the holder of an
    outstanding Award, which shall include an Optionee.



 



    (jj) “Performance Goals” means the goal(s)
    (or combined goal(s)) determined by the Committee (in its
    discretion) to be applicable to a Participant with respect to an
    Award. As determined by the Committee, the Performance Goals
    applicable to an Award may provide for a targeted level or
    levels of achievement using one or more of the following
    measures: (a) Annual Revenue, (b) Operating Profit,
    (c) Cash Flow from Operations, (d) Net Income,
    (e) Pro Forma Net Income, (f) Earnings Per Share, and
    (g) Return on Sales. The Performance Goals may differ from
    Participant to Participant and from Award to Award. Any criteria
    used may be (i) measured in absolute terms,
    (ii) measured in relative terms (including, but not limited
    to compared to another company or companies),
    (iii) measured against the performance of the Company as a
    whole or a segment of the Company
    and/or
    (iv) measured on a pre-tax or post-tax basis (if
    applicable).



 



    (kk) “Plan” means this 2005 Stock Plan, as
    amended.



 



    (ll) “Pro Forma Net Income” means as to
    any business unit for any Fiscal Year, the Controllable Profits
    of such business unit, minus allocations of designated corporate
    expenses.



 



    (mm) “Reload Option” means an Option that
    automatically is granted if a Participant pays the exercise
    price of an Option by tendering Shares.



 



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



 



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




    

    3








 





    (pp) “Restricted Stock Unit” means an
    Award granted to a Participant pursuant to Section 14.



 



    (qq) “Retirement” means, in the case of an
    Employee or Director: (a) a Termination of Service
    occurring on or after age sixty-five (65), or (b) a
    Termination of Service occurring on or after age sixty
    (60) with at least ten (10) Years of Service. With
    respect to a Consultant, no Termination of Service shall be
    deemed to be on account of “Retirement.”



 



    (rr) “Return on Sales” means as to any
    Fiscal Year, the percentage equal to the Company’s Net
    Income or the business unit’s Pro Forma Net Income, divided
    by the Company’s or the business unit’s Annual
    Revenue, as applicable.



 



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



 



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



 



    (uu) “Section 409A” means
    Section 409A of the Code and any proposed, temporary or
    final Treasury Regulations and Internal Revenue Service guidance
    thereunder, as each may be amended from time to time.



 



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



 



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



 



    (xx) “Stock Appreciation Right” or
    “SAR” means an Award, granted alone or in
    connection with a related Option (either affiliated or tandem)
    that pursuant to Section 13 is designated as an SAR.



 



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



 



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



 



    (aaa) “Termination of Service” means
    (a) in the case of an Employee, a cessation of the
    employee-employer relationship between the Employee and the
    Company or an Affiliate for any reason, including, but not by
    way of limitation, a termination by resignation, discharge,
    death, Disability, Retirement, or the disaffiliation of an
    Affiliate, but excluding any such termination where there is a
    simultaneous re-employment or engagement as a consultant by the
    Company or an Affiliate; (b) in the case of a Consultant, a
    cessation of the service relationship between the Consultant and
    the Company or an Affiliate for any reason, including, but not
    by way of limitation, a termination by resignation, discharge,
    death, Disability, or the disaffiliation of an Affiliate, but
    excluding any such termination where there is a simultaneous
    employment as an Employee or re-engagement of the Consultant by
    the Company or an Affiliate; and (c) in the case of a
    Director, a cessation of the Director’s service on the
    Board for any reason, including, but not by way of limitation, a
    termination by resignation, death, Disability, Retirement or
    non-reelection to the Board, but excluding any such termination
    where there is a simultaneous employment as an Employee or
    engagement as a Consultant by the Company or an Affiliate.



 



    4.  Stock Subject to the Plan.



 



    (a)  Subject to the provisions of Section 16 of
    the Plan, the maximum aggregate number of Shares that may be
    optioned and sold under the Plan is
    114,000,000 Shares.1

    The Shares may be authorized, but unissued, or reacquired Common
    Stock.



 



    If an Award expires or becomes unexercisable without having been
    exercised in full, or is surrendered pursuant to an Option
    Exchange Program, the unpurchased Shares which were subject
    thereto shall become available for future grant or sale under
    the Plan (unless the Plan has terminated); provided,
    however, that Shares that have actually been issued under
    the Plan, whether upon exercise of an Option or Right, shall not
    be


 

 


    1 Includes

    58,000,000 Shares approved by the Company’s
    stockholders on May 14, 2008.




    

    4








 





    returned to the Plan and shall not become available for future
    distribution under the Plan, except that if Shares of Restricted
    Stock are repurchased by the Company at their original purchase
    price, such Shares shall become available for future grant under
    the Plan.



 



    (b)  Full Value Awards.  Any Shares
    subject to Restricted Stock, Restricted Stock Units, and Stock
    Purchase Rights granted on or after May 14, 2008 will be
    counted against the numerical limits of this Section 4 as
    one and
    78/100
    (1.78) Shares for every one (1) Share subject thereto.
    Further, if Shares acquired pursuant to any Restricted Stock,
    Restricted Stock Units, and Stock Purchase Rights granted on or
    after May 14, 2008 are forfeited or repurchased by the
    Company and would otherwise return to the Plan pursuant to this
    Section 4, one and 78/100 (1.78) times the number of Shares
    so forfeited or repurchased will return to the Plan and will
    again become available for issuance.



 



    5.  Administration of the Plan.



 



    (a)  Procedure.



 



    (i) Multiple Administrative Bodies.  The
    Plan may be administered by different Committees with respect to
    different groups of Service Providers.



 



    (ii) Section 162(m).  To the extent
    that the Administrator determines it to be desirable to qualify
    Awards granted hereunder as “performance-based
    compensation” within the meaning of Section 162(m) of
    the Code, the Plan shall be administered by a Committee of two
    or more “outside directors” within the meaning of
    Section 162(m) of the Code. For purposes of qualifying
    grants of Awards as “performance-based compensation”
    under Section 162(m) of the Code, the Committee, in its
    discretion, may set restrictions based upon the achievement of
    Performance Goals. The Performance Goals shall be set by the
    Committee on or before the latest date permissible to enable the
    Awards to qualify as “performance-based compensation”
    under Section 162(m) of the Code. In granting Awards that
    are intended to qualify under Section 162(m) of the Code,
    the Committee shall follow any procedures determined by it from
    time to time to be necessary or appropriate to ensure
    qualification of the Awards under Section 162(m) of the
    Code (e.g., in determining the Performance Goals).



 



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



 



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



 



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



 



    (i)  to determine the Fair Market Value;



 



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



 



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



 



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



 



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



 



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




    

    5








 





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



 



    (viii) to determine the form and manner in which
    Participants may designate beneficiaries of Awards in the event
    of the Participant’s death, including determining the
    Participants or classes of Participants who may designate
    beneficiaries with respect to any Award or type of Award;



 



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



 



    (x)  to allow Optionees to satisfy withholding tax
    obligations by electing to have the Company withhold from the
    Shares to be issued upon exercise of an Award that number of
    Shares having a Fair Market Value equal to the minimum amount
    required to be withheld. The Fair Market Value of the Shares to
    be withheld shall be determined on the date that the amount of
    tax to be withheld is to be determined. All elections by an
    Optionee to have Shares withheld for this purpose shall be made
    in such form and under such conditions as the Administrator may
    deem necessary or advisable;



 



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



 



    (xii) to commence a Section 409A Exchange Offer in
    connection with each Option that had a per share exercise price
    that was less than the fair market value of a share of the
    Company’s common stock, as determined for purposes of
    Section 409A, on the Option’s grant date and that was
    unvested, in whole or in part, as of December 31, 2004
    (notwithstanding Section 18(b) of the Plan), as described
    by Section 23 of the Plan;



 



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



 



    (c)  Additional Power of Administrator Requiring
    Stockholder Approval.  The Administrator shall
    have authority to take the following actions, but only if not
    otherwise prohibited by the provisions of the Plan and only if
    approval by the Company’s stockholders is obtained:



 



    (i)  reduce the exercise price of any Award to the
    then current Fair Market Value if the Fair Market Value of the
    Common Stock covered by such Award shall have declined since the
    date the Award was granted; provided, however, that the
    Administrator shall have the power to make adjustments in the
    exercise price of any Award pursuant to Section 16 without
    the necessity of obtaining stockholder approval;



 



    (ii) institute an Option Exchange Program to allow for the
    cancellation of an outstanding Option followed by its immediate
    replacement with a new Option with a lower exercise price, or
    with a different type of Award, cash or a combination thereof;
    provided, however, that the Administrator shall have the power
    to make adjustments in the exercise price of any Award pursuant
    to Section 16 without the necessity of obtaining
    stockholder approval; and



 



    (iii) institute any other program that would constitute a
    revaluation or repricing of Options; provided, however, that the
    Administrator shall have the power to make adjustments in the
    exercise price of any Award pursuant to Section 16 without
    the necessity of obtaining stockholder approval.



 



    (d) Effect of Administrator’s
    Decision.  The Administrator’s decisions,
    determinations and interpretations shall be final and binding on
    all Optionees and any other holders of Options or Stock Purchase
    Rights.



 



    6.  Eligibility.  Nonstatutory Stock
    Options, Stock Purchase Rights, Stock Appreciation Rights and
    Restricted Stock Units may be granted to Service Providers.
    Incentive Stock Options may be granted only to Employees.




    

    6








 





    7.  Limitations.



 



    (a)  Each Option shall be designated in the Award
    Agreement as either an Incentive Stock Option or a Nonstatutory
    Stock Option. However, notwithstanding such designation, to the
    extent that the aggregate Fair Market Value of the Shares with
    respect to which Incentive Stock Options are exercisable for the
    first time by the Optionee during any calendar year (under all
    plans of the Company and any Parent or Subsidiary) exceeds
    $100,000, such Options shall be treated as Nonstatutory Stock
    Options. For purposes of this Section 7(a), Incentive Stock
    Options shall be taken into account in the order in which they
    were granted. The Fair Market Value of the Shares shall be
    determined as of the time the Option with respect to such Shares
    is granted.



 



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



 



    (c)  The following limitations shall apply to grants
    of Options, Stock Purchase Rights, Stock Appreciation Rights and
    Restricted Stock Units:



 



    (i)  No Service Provider shall be granted, in any
    fiscal year of the Company, Options, Stock Purchase Rights,
    Stock Appreciation Rights or Restricted Stock Units to purchase
    more than 5,000,000 Shares.



 



    (ii) In connection with his or her initial service, a
    Service Provider may be granted Options, Stock Purchase Rights,
    Stock Appreciation Rights or Restricted Stock Units to purchase
    up to an additional 5,000,000 Shares which shall not count
    against the limit set forth in subsection (i) above.



 



    (iii) The foregoing limitations shall be adjusted
    proportionately in connection with any change in the
    Company’s capitalization as described in Section 16.



 



    (iv) If an Option, Stock Purchase Rights, Stock
    Appreciation Rights or Restricted Stock Unit is cancelled in the
    same fiscal year of the Company in which it was granted (other
    than in connection with a transaction described in
    Section 16), the cancelled Option, Stock Purchase Rights,
    Stock Appreciation Rights or Restricted Stock Units will be
    counted against the limits set forth in subsections (i) and
    (ii) above. For this purpose, if the exercise price of an
    Option, Stock Purchase Rights, Stock Appreciation Rights or
    Restricted Stock Unit is reduced, the transaction will be
    treated as a cancellation of the Option, Stock Purchase Rights,
    Stock Appreciation Rights or Restricted Stock Units and the
    grant of a new Option, Stock Purchase Rights, Stock Appreciation
    Rights or Restricted Stock Units.



 



    8.  Term of Plan.  Subject to
    Section 22 of the Plan, the Plan shall become effective
    upon adoption by the Board and obtaining stockholder approval.
    The Plan amends and restates the previous 1996 Stock Plan. It
    shall continue in effect for a term of ten (10) years
    unless terminated earlier under Section 18 of the Plan.



 



    9.  Term of Option.  The term of each
    Option shall be stated in the Award Agreement; however, the term
    of an Option granted on or after April 9, 2008 shall be no
    longer than ten (10) years from the Grant Date or such
    shorter term as may be provided in the Award Agreement.
    Moreover, in the case of an Incentive Stock Option granted to an
    Optionee who, at the time the Incentive Stock Option is granted,
    owns stock representing more than ten percent (10%) of the total
    combined voting power of all classes of stock of the Company or
    any Parent or Subsidiary, the term of the Incentive Stock Option
    shall be five (5) years from the Grant Date or such shorter
    term as may be provided in the Award Agreement.



 



    10. Option Exercise Price and Consideration.



 



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



 



    (i)  In the case of an Incentive Stock Option



 



    (A)  granted to an Employee who, at the time the
    Incentive Stock Option is granted, owns stock representing more
    than ten percent (10%) of the voting power of all classes of
    stock of the




    

    7








 





    Company or any Parent or Subsidiary, the per Share exercise
    price shall be no less than 110% of the Fair Market Value per
    Share on the Grant Date.



 



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



 



    (ii) In the case of a Nonstatutory Stock Option granted on
    or after April 9, 2008, except as may be required by law to
    ensure favorable tax treatment in a
    non-U.S. jurisdiction,
    the per Share exercise price shall be no less than 100% of the
    Fair Market Value per share on the Grant Date . In the case of a
    Nonstatutory Stock Option intended to qualify as
    “performance-based compensation” within the meaning of
    Section 162(m) of the Code, the per Share exercise price
    shall be no less than 100% of the Fair Market Value per Share on
    the Grant Date.



 



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



 



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



 



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



 



    (i)  cash;



 



    (ii) check;



 



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



 



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



 



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



 



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



 



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



 



    11. Exercise of Option.



 



    (a)  Procedure for Exercise; Rights as a
    Shareholder.  Any Option granted hereunder shall
    be exercisable according to the terms of the Plan and at such
    times and under such conditions as determined by the
    Administrator and set forth in the Award Agreement. Except for
    options granted prior to October 11, 1996, or unless the
    Administrator provides otherwise, vesting of Options granted
    hereunder shall be suspended during any unpaid leave of absence.
    An Option may not be exercised for a fraction of a Share.



 



    An Option shall be deemed exercised when the Company receives:
    (i) written or electronic notice of exercise (in accordance
    with the Award Agreement) from the person entitled to exercise
    the Option, and (ii) full payment for the Shares with
    respect to which the Option is exercised. Full payment may
    consist of any consideration and method of payment authorized by
    the Administrator and permitted by the Award




    

    8








 





    Agreement and the Plan. Shares issued upon exercise of an Option
    shall be issued in the name of the Optionee or, if requested by
    the Optionee, in the name of the Optionee and his or her spouse.
    Until the Shares are issued (as evidenced by the appropriate
    entry on the books of the Company or of a duly authorized
    transfer agent of the Company), no right to vote or receive
    dividends or any other rights as a shareholder shall exist with
    respect to the Optioned Stock, notwithstanding the exercise of
    the Option. The Company shall issue (or cause to be issued) such
    Shares promptly after the Option is exercised. No adjustment
    will be made for a dividend or other right for which the record
    date is prior to the date the Shares are issued, except as
    provided in Section 16 of the Plan.



 



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



 



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



 



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



 



    (d)  Death of Optionee.  If an
    Optionee dies while a Service Provider, the Option may be
    exercised following the Optionee’s death within such period
    of time as is specified in the Award Agreement to the extent the
    Option is vested on the date of death (but in no event later
    than the expiration of the term of such Option as set forth in
    the Award Agreement), by the Optionee’s designated
    beneficiary, provided such beneficiary has been designated prior
    to Optionee’s death in a form and manner acceptable to the
    Administrator, pursuant to Section 5(b)(viii). If no
    beneficiary has been designated by the Optionee in a form and
    manner acceptable to the Administrator, then such Option may be
    exercised by the personal representative of the Optionee’s
    estate or in the event no administration of the Optionee’s
    estate is required, then by the
    successor-in-interest
    to whom the Option is transferred pursuant to the
    Optionee’s will or in accordance with the laws of descent
    and distribution, as the case may be. In the absence of a
    specified time in the Award Agreement, the Option shall remain
    exercisable for twelve (12) months following the
    Optionee’s death. If, at the time of death, the Optionee is
    not vested as to his or her entire Option, the Shares covered by
    the unvested portion of the Option shall immediately revert to
    the Plan. If the Option is not so exercised within the time
    specified herein, the Option shall terminate, and the Shares
    covered by such Option shall revert to the Plan.



 



    12. Stock Purchase Rights.



 



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




    

    9








 





    (b)  Number of Shares.  The
    Administrator shall have complete discretion to determine the
    number of Stock Purchase Rights granted to any Participant,
    provided that during any Fiscal Year, no Participant shall be
    granted Stock Purchase Rights covering more than
    5,000,000 Shares, unless in connection with his or her
    initial service as described in Section 7(c)(ii).



 



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



 



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



 



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



 



    (f)  Death of Participant.  



 



    (i)  Exercise of Stock Purchase
    Right.  If a Participant dies while a Service
    Provider, the Stock Purchase Right may be exercised following
    the Participant’s death within such period of time as is
    specified in the Award Agreement to the extent the Stock
    Purchase Right is vested on the date of death (but in no event
    later than the expiration date set forth in the Award
    Agreement), by the Participant’s designated beneficiary,
    provided such beneficiary has been designated prior to
    Participant’s death in a form and manner acceptable to the
    Administrator, pursuant to Section 5(b)(viii). If no
    beneficiary has been designated by the Participant in a form and
    manner acceptable to the Administrator, then such Stock Purchase
    Right may be exercised by the personal representative of the
    Participant’s estate or in the event no administration of
    the Participant’s estate is required, then by the
    successor-in-interest
    to whom the Stock Purchase Right is transferred pursuant to the
    Participant’s will or in accordance with the laws of
    descent and distribution, as the case may be. If, at the time of
    death, the Participant is not vested as to his or her entire
    Stock Purchase Right, the Shares covered by the unvested portion
    of the Stock Purchase Right shall immediately revert to the
    Plan. If the Stock Purchase Right is not so exercised within the
    time as specified in the Award Agreement, the Stock Purchase
    Right shall terminate, and the Shares covered by such Stock
    Purchase Right shall revert to the Plan.



 



    (ii) Release from Escrow.  If a
    Participant dies while a Service Provider, any Shares subject to
    a Stock Purchase Right (A) that have been released from the
    Company’s repurchase option or for which the Company’s
    repurchase option expires or has expired unexercised, and
    (B) that are not yet released from escrow, shall be issued,
    and certificates evidencing such released Shares shall be
    delivered, to the Participant’s designated beneficiary,
    provided such beneficiary has been designated prior to
    Participant’s death in a form and manner acceptable to the
    Administrator, pursuant to Section 5(b)(viii). If no
    beneficiary has been designated by the Participant in a form and
    manner acceptable to the Administrator, then such Shares shall
    be transferred to the personal representative of the
    Participant’s estate or in the event no administration of
    the Participant’s estate is required, then to the
    successor-in-interest
    pursuant to the Participant’s will or in accordance with
    the laws of descent and distribution, as the case may be.



 



    13. Stock Appreciation Rights.



 



    (a)  Grant of SARs.  Subject to the
    terms and conditions of the Plan, a SAR may be granted to
    Employees and Consultants at any time and from time to time as
    shall be determined by the Administrator, in its




    

    10








 





    sole discretion. The Administrator may grant affiliated SARs,
    freestanding SARs, tandem SARs, or any combination thereof.



 



    (i)  Number of Shares.  The
    Administrator shall have complete discretion to determine the
    number of SARs granted to any Participant, provided that during
    any Fiscal Year, no Participant shall be granted SARs covering
    more than 5,000,000 Shares, unless in connection with his
    or her initial service as described in Section 7(c)(ii).



 



    (ii) Exercise Price and Other Terms.  The
    Administrator, subject to the provisions of the Plan, shall have
    complete discretion to determine the terms and conditions of
    SARs granted under the Plan. However, except as may be required
    by law to ensure favorable tax treatment in a
    non-U.S. jurisdiction,
    the exercise price of a freestanding SAR shall be not less than
    one hundred percent (100%) of the Fair Market Value of a Share
    on the Grant Date. The exercise price of tandem or affiliated
    SARs shall equal the Exercise Price of the related Option.



 



    (b)  Exercise of Tandem SARs.  Tandem
    SARs may be exercised for all or part of the Shares subject to
    the related Option upon the surrender of the right to exercise
    the equivalent portion of the related Option. A tandem SAR may
    be exercised only with respect to the Shares for which its
    related Option is then exercisable. With respect to a tandem SAR
    granted in connection with an Incentive Stock Option:
    (a) the tandem SAR shall expire no later than the
    expiration of the underlying Incentive Stock Option;
    (b) the value of the payout with respect to the tandem SAR
    shall be for no more than one hundred percent (100%) of the
    difference between the Exercise Price of the underlying
    Incentive Stock Option and the Fair Market Value of the Shares
    subject to the underlying Incentive Stock Option at the time the
    tandem SAR is exercised; and (c) the tandem SAR shall be
    exercisable only when the Fair Market Value of the Shares
    subject to the Incentive Stock Option exceeds the Exercise Price
    of the Incentive Stock Option.



 



    (c)  Exercise of Affiliated SARs.  An
    affiliated SAR shall be deemed to be exercised upon the exercise
    of the related Option. The deemed exercise of an affiliated SAR
    shall not necessitate a reduction in the number of Shares
    subject to the related Option.



 



    (d)  Exercise of Freestanding
    SARs.  Freestanding SARs shall be exercisable on
    such terms and conditions as the Administrator, in its sole
    discretion, shall determine.



 



    (e)  SAR Agreement.  Each SAR grant
    shall be evidenced by an Award Agreement that shall specify the
    exercise price, the term of the SAR, the conditions of exercise,
    and such other terms and conditions as the Administrator, in its
    sole discretion, shall determine.



 



    (f)  Expiration of SARs.  An SAR
    granted under the Plan shall expire upon the date determined by
    the Administrator, in its sole discretion, and set forth in the
    Award Agreement; however, an SAR granted on or after
    April 9, 2008 shall expire no later than ten
    (10) years from the Grant Date. Notwithstanding the
    foregoing, the rules of Section 11 also shall apply to SARs.



 



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



 



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



 



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



 



    At the discretion of the Administrator, the payment upon SAR
    exercise may be in cash, in Shares of equivalent value, or in
    some combination thereof. For purposes of Section 4 of the
    Plan, the reduction in Shares available for future issuance upon
    the grant of the SAR will be determined at the Grant Date based
    on the full number of Shares subject to the SAR. Upon settlement
    of the SAR, there will be no further reduction in Shares
    available for future issuance under Section 4 of the Plan.
    Upon the forfeiture of all or a portion of the SAR, the
    forfeited Shares shall be returned to the Shares available for
    future issuance under Section 4 of the Plan. For avoidance
    of doubt, upon settlement of an SAR, Shares will not be returned
    to the Shares available for future issuance under Section 4
    of the Plan, notwithstanding the fact that if Shares are issued
    in settlement of an SAR they will be issued only based on the
    difference between the Fair Market Value of a Share on the date
    of exercise over the exercise price.




    

    11








 





    14. Restricted Stock Units.



 



    (a)  Grant of Restricted Stock
    Units.  Restricted Stock Units may be granted to
    Service Providers at any time and from time to time, as will be
    determined by the Administrator, in its sole discretion.



 



    (b)  Number of Shares.  The
    Administrator will have complete discretion in determining the
    number of Restricted Stock Units granted to each Participant,
    provided that during any Fiscal Year, no Participant shall be
    granted Restricted Stock Units covering more than
    5,000,000 Shares, unless in connection with his or her
    initial service as described in Section 7(c)(ii).



 



    (c)  Value of Restricted Stock
    Units.  Each Restricted Stock Unit will have an
    initial value that is established by the Administrator on or
    before the Grant Date.



 



    (d)  Performance Goals and Other
    Terms.  The Administrator will set Performance
    Goals or other vesting provisions (including, without
    limitation, continued status as a Service Provider) in its
    discretion which, depending on the extent to which they are met,
    will determine the number or value of Restricted Stock Units
    that will be paid out to the Service Providers. The time period
    during which the Performance Goals or other vesting provisions
    must be met will be called the “Performance Period.”
    Each award of Restricted Stock Units will be evidenced by an
    Award Agreement that will specify the Performance Period, and
    such other terms and conditions as the Administrator, in its
    sole discretion, will determine. The Administrator may set
    Performance Goals based upon the achievement of Company-wide,
    divisional, or individual goals, applicable federal or state
    securities laws, or any other basis determined by the
    Administrator in its discretion.



 



    (e)  Duration of Performance
    Periods.  The Administrator will set the length of
    time for a Performance Period, subject to the following limits:



 



    (i)  The Performance Period related to Restricted
    Stock Units with Performance Goals shall not be less than one
    (1) year; and



 



    (ii) The Performance Period related to Restricted Stock
    Units with time-based vesting provisions shall not be less than
    three (3) years;



 



    provided, however, that up to five percent (5%) of the shares
    currently authorized for grant under the Plan may be subject to
    Restricted Stock Units without such limits on the length of the
    Performance Period.



 



    (f)  Earning of Restricted Stock
    Units.  After the applicable Performance Period
    has ended, the holder of Restricted Stock Units will be entitled
    to receive a payout of the number of Restricted Stock Units
    earned by the Participant over the Performance Period, to be
    determined as a function of the extent to which the
    corresponding Performance Goals or other vesting provisions have
    been achieved. After the grant of a Restricted Stock Units, the
    Administrator shall not reduce or waive any Performance Goals or
    other vesting provisions for such Restricted Stock Unit;
    provided, however, that the Administrator, in its sole
    discretion, may reduce or waive any Performance Goals or other
    vesting provisions for such Restricted Stock Unit in the event
    of a Participant’s death, Disability, or Retirement, or in
    the event of the sale of substantially all of the assets of the
    Company, or a merger of the Company with or into another entity
    pursuant to which the stockholders of the Company before such
    transaction do not retain, directly or indirectly, at least a
    majority of the beneficial interest in the voting stock of the
    Company after such transaction.



 



    (g)  Form and Timing of Payment of Restricted Stock
    Units.  Payment of earned Restricted Stock Units
    will be made as soon as practicable after the expiration of the
    applicable Performance Period. The Administrator, in its sole
    discretion, may pay earned Restricted Stock Units in the form of
    cash, in Shares (which have an aggregate Fair Market Value equal
    to the value of the earned Restricted Stock Units at the close
    of the applicable Performance Period) or in a combination
    thereof.



 



    (h)  Cancellation of Restricted Stock
    Units.  On the date set forth in the Award
    Agreement, all unearned or unvested Restricted Stock Units will
    be forfeited to the Company, and again will be available for
    grant under the Plan.



 



    (i)  Death of Participant.  If a
    Participant dies while a Service Provider, any earned Restricted
    Stock Units that have not yet been paid shall be paid to the
    Participant’s designated beneficiary, provided such
    beneficiary has been designated prior to the Participant’s
    death in a form and manner acceptable to the




    

    12








 





    Administrator, pursuant to Section 5(b)(viii). If no
    beneficiary has been designated by the Participant in a form and
    manner acceptable to the Administrator, then such earned
    Restricted Stock Units shall be paid to the personal
    representative of the Participant’s estate or in the event
    no administration of the Participant’s estate is required,
    then to the
    successor-in-interest
    pursuant to the Participant’s will or in accordance with
    the laws of descent and distribution, as the case may be. If, at
    the time of death, the Participant holds any Restricted Stock
    Units that are not yet earned, the unearned Restricted Stock
    Units shall be forfeited to the Company, and again shall be
    available for grant under the Plan.



 



    15. Non-Transferability of Awards.  Unless
    determined otherwise by the Administrator and except as set
    forth in Sections 11(d), 12(f), 13(f) and 14(i), an Award
    may not be sold, pledged, assigned, hypothecated, transferred,
    or disposed of in any manner other than by will or by the laws
    of descent or distribution and may be exercised, during the
    lifetime of the Optionee, only by the Optionee. If the
    Administrator makes an Award transferable, such Award shall
    contain such additional terms and conditions as the
    Administrator deems appropriate.



 



    16. Adjustments Upon Changes in Capitalization,
    Dissolution or Liquidation, Merger or Asset Sale.



 



    (a)  Changes in
    Capitalization.  Subject to any required action by
    the stockholders of the Company, the number and class of Shares
    that may be delivered under the Plan
    and/or the
    number, class, and price of Shares covered by each outstanding
    Award, and the numerical Share limits in Sections 4, 7, 13
    and 14 of the Plan, shall be proportionately adjusted for any
    increase or decrease in the number of issued Shares resulting
    from a stock split, reverse stock split, stock dividend,
    combination or reclassification of the Shares, or any other
    increase or decrease in the number of issued Shares effected
    without receipt of consideration by the Company; provided,
    however, that conversion of any convertible securities of the
    Company shall not be deemed to have been “effected without
    receipt of consideration.” Such adjustment shall be made by
    the Board, whose determination in that respect shall be final,
    binding and conclusive. Except as expressly provided herein, no
    issuance by the Company of shares of stock of any class, or
    securities convertible into shares of stock of any class, shall
    affect, and no adjustment by reason thereof shall be made with
    respect to, the number or price of Shares subject to an Award.



 



    (b)  Dissolution or Liquidation.  In
    the event of the proposed dissolution or liquidation of the
    Company, the Administrator shall notify each Participant as soon
    as practicable prior to the effective date of such proposed
    transaction. The Administrator in its discretion may provide for
    a Participant to have the right to exercise his or her Award
    until ten (10) days prior to such transaction as to all of
    the Optioned Stock covered thereby, including Shares as to which
    the Award would not otherwise be exercisable. In addition, the
    Administrator may provide that any Company repurchase option
    applicable to any Shares purchased upon exercise of an Award
    shall lapse as to all such Shares, provided the proposed
    dissolution or liquidation takes place at the time and in the
    manner contemplated. To the extent it has not been previously
    exercised, an Award will terminate immediately prior to the
    consummation of such proposed action. Notwithstanding anything
    in this Section 16(b) to the contrary, for Awards granted
    on or after August 14, 2008, that may be considered
    “deferred compensation” within the meaning of Section
    409A, the payment of any Awards that accelerate in accordance
    with this Section 16(b) nevertheless will be made at the
    same time or times as if such Awards had vested in accordance
    with the vesting provisions applicable to such Awards unless
    otherwise determined by the Administrator.



 



    (c)  Merger or Asset Sale.  For
    Awards granted prior to August 14, 2008, in the event of a
    merger of the Company with or into another corporation, or the
    sale of substantially all of the assets of the Company, each
    outstanding Award shall be assumed or an equivalent option or
    right substituted by the successor corporation or a Parent or
    Subsidiary of the successor corporation. For Awards granted on
    or after August 14, 2008, in the event of (i) a merger
    of the Company with or into another corporation, other than a
    merger which would result in the voting securities of the
    Company outstanding immediately prior thereto continuing to
    represent (either by remaining outstanding or by being converted
    into voting securities of the surviving entity or its Parent) at
    least fifty percent (50%) of the total voting power represented
    by the voting securities of the Company or such surviving entity
    or its Parent outstanding immediately after such merger or
    (ii) the sale of substantially all of the assets of the
    Company, each outstanding Award shall be assumed or an
    equivalent option or right substituted by the successor
    corporation or a Parent or Subsidiary of the successor
    corporation. In the event that the successor corporation refuses
    to assume or substitute for the Award (whether granted prior to,
    on or after August 14, 2008), the Participant will fully
    vest in and have the right to exercise all of his or her
    outstanding Options and Stock Appreciation Rights, including
    Shares as to which such Awards would not otherwise be vested or
    exercisable, all restrictions on Restricted Stock will lapse,
    and,




    

    13








 





    with respect to Restricted Stock Units, all Performance Goals or
    other vesting criteria will be deemed achieved at target levels
    and all other terms and conditions met. In addition, if an
    Option or Stock Appreciation Right becomes fully vested and
    exercisable in lieu of assumption or substitution in the event
    of a merger or sale of assets, the Administrator will notify the
    Participant in writing or electronically that the Option or
    Stock Appreciation Right will be fully vested and exercisable
    for a period of 15 days from the date of such notice, and
    the Option or Stock Appreciation Right will terminate upon the
    expiration of such period.



 



    For the purposes of this paragraph, the Award shall be
    considered assumed if, following the merger or sale of assets,
    the Award confers the right to purchase or receive, for each
    Share subject to the Award immediately prior to the merger or
    sale of assets, the consideration (whether stock, cash, or other
    securities or property) or, in the case of a Stock Appreciation
    Right upon the exercise of which the Administrator determines to
    pay cash or a Restricted Stock Unit which the Administrator can
    determine to pay in cash, the fair market value of the
    consideration received in the merger or sale of assets by
    holders of Common Stock for each Share held on the effective
    date of the transaction (and if holders were offered a choice of
    consideration, the type of consideration chosen by the holders
    of a majority of the outstanding Shares); provided, however,
    that if such consideration received in the merger or sale of
    assets is not solely common stock of the successor corporation
    or its Parent, the Administrator may, with the consent of the
    successor corporation, provide for the consideration to be
    received upon the exercise of an Option or Stock Appreciation
    Right or upon the payout of a Restricted Stock Unit, for each
    Share subject to such Award (or in the case of Restricted Stock
    Units, the number of implied shares determined by dividing the
    value of the Restricted Stock Units by the per Share
    consideration received by holders of Common Stock in the merger
    or sale of assets), to be solely common stock of the successor
    corporation or its Parent equal in fair market value to the per
    Share consideration received by holders of Common Stock in the
    merger or sale of assets.



 



    Notwithstanding anything in this Section 16(c) to the
    contrary, an Award that vests, is earned or paid-out upon the
    satisfaction of one or more Performance Goals will not be
    considered assumed if the Company or its successor modifies any
    of such Performance Goals without the Participant’s
    consent; provided, however, a modification to such Performance
    Goals only to reflect the successor corporation’s corporate
    structure post-merger or post-sale of assets will not be deemed
    to invalidate an otherwise valid Award assumption.



 



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



 



    18. Amendment and Termination of the Plan.



 



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



 



    (b)  Shareholder Approval.  The
    Company shall obtain shareholder approval of any Plan amendment
    to the extent necessary and desirable to comply with Applicable
    Laws, and to adopt material Plan amendments, including:



 



    (i)  A material increase in benefits accrued to
    Participants under the Plan;



 



    (ii) An increase in the number of shares that may be
    optioned or sold under the Plan;



 



    (iii) A material modification (expansion or reduction) of
    the class of participants in the Plan; or



 



    (iv) A provision permitting the Administrator to lapse or
    waive restrictions on Awards at its discretion.



 



    (c)  Effect of Amendment or
    Termination.  No amendment, alteration, suspension
    or termination of the Plan shall impair the rights of any
    Optionee, unless mutually agreed otherwise between the Optionee
    and the Administrator, which agreement must be in writing and
    signed by the Optionee and the Company.




    

    14








 





    Termination of the Plan shall not affect the
    Administrator’s ability to exercise the powers granted to
    it hereunder with respect to Options granted under the Plan
    prior to the date of such termination.



 



    19. Conditions Upon Issuance of Shares.



 



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



 



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



 



    20. Inability to Obtain Authority.  The
    inability of the Company to obtain authority from any regulatory
    body having jurisdiction, which authority is deemed by the
    Company’s counsel to be necessary to the lawful issuance
    and sale of any Shares hereunder, shall relieve the Company of
    any liability in respect of the failure to issue or sell such
    Shares as to which such requisite authority shall not have been
    obtained.



 



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



 



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



 



    23. Section 409A Exchange Offer.  The
    Administrator, may in its sole discretion, offer to each
    Optionee who holds an Option with an original Grant Date
    Exercise Price that was less than the original Grant Date fair
    market value, as determined for purposes of Section 409A,
    (each a “Discount Option”) one or more of the
    following choices with respect to the portion of such Discount
    Option that was unvested on December 31, 2004 (such portion
    is referred to as the “Eligible Discount Option”):



 



    (a)  If Optionee exercised any Eligible Discount
    Option (or portion thereof) in 2006, then Optionee may elect to
    amend the eligible portion of each Eligible Discount Option such
    that the Exercise Price of the Option will be increased to the
    fair market value, as determined for purposes of
    Section 409A, of a share of the Company’s Common Stock
    on the Option’s grant date.



 



    (b)  If Optionee was granted an Eligible Discount
    Option, but did not exercise any Eligible Discount Option in
    2006, then Optionee may be given one or more of the following
    choices:



 



    (i)  Optionee may elect to amend each Eligible
    Discount Option to change the option expiration date identified
    in the original grant agreement to a date that is expected to
    constitute a fixed calendar year election for purposes of
    Section 409A (the Administrator will have the discretion to
    choose to allow Optionees to pick different calendar years for
    different portions of each Eligible Discount Option); and/or



 



    (ii) Optionee may elect to amend the eligible portion of
    each Eligible Discount Option such that the Exercise Price of
    the Option will be increased to the fair market value, as
    determined for purposes of Section 409A, of a share of the
    Company’s Common Stock on the Option’s grant date.



 



    24. Underwater Option Exchange Offer.  The
    Administrator, in its sole discretion, may institute a one-time
    Option Exchange Program, commencing within 12 months
    following approval of such Option Exchange Program by the
    Company’s stockholders, that permits each eligible Optionee
    who holds an Option with an Exercise Price per Share greater
    than the trailing 52-week high price of the Common Stock as of
    the commencement of the Option Exchange Program to elect to
    cancel such Option in exchange for a new Award issued under the
    Plan, as described in the proxy statement with respect to the
    Company’s 2009 Annual Meeting of Stockholders.




    

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