exv10w4






EXHIBIT 10.4




Amendments
to
the 1997 Stock Incentive Plan, 2000 Stock Incentive Plan and 2007
Stock Incentive Plan




     NOW THEREFORE, BE IT RESOLVED, that Section 5.2(b) of the 1997 Plan is amended to read as
follows:




“(b) If (1) a tender offer to purchase for cash all the outstanding shares of common stock
of the Company shall be commenced, (2) the Company shall be a party to any reorganization in
which it does not survive, including a merger, consolidation, or acquisition of the stock or
substantially all the assets of the Company, or (3) the Company shall be party to any
reorganization in which it does survive, including a merger, consolidation or acquisition of
the stock or substantially all the assets, but in which the outstanding shares of the
Company are converted into cash as a result of the transaction (in the case of clause (1),
(2) or (3), the “Transaction”), the Board, in its sole discretion, may:




(i) notwithstanding any other provisions hereof, declare that all Options granted
under the Plan shall become exercisable immediately notwithstanding the provisions
of the respective Option Agreements regarding exercisability, that all such Options
shall terminate a specified period of time after the Committee gives written notice
of the immediate right to exercise such Options and of the decision to terminate all
Options not exercised within such period, and that all then-remaining restrictions
pertaining to Awards under the Plan shall immediately lapse; or




(ii) notify all Grantees that all Options or Awards granted under the Plan shall be
assumed by the successor corporation or substituted on an equitable basis with
options or restricted stock issued by such successor corporation; or




(iii) declare that all Options granted under the Plan that are outstanding as of the
date of such declaration, shall, upon the commencement of a tender offer to purchase
for cash all the outstanding shares of common stock of the Company (the “Offer”)
(provided that the time of the acceptance for payment of such shares pursuant to the
Offer (the “Acceptance Time”) occurs), (1) in accordance with the terms of the award
agreements relating thereto, (x) become 100% vested and (y) be exercisable at any
time prior to the Acceptance Time (such period, the “Option Exercise Period”), and
(2) to the extent not exercised within the Option Exercise Period, at the effective
time of the Transaction (the “Effective Time”), be terminated and converted into the
right to receive a cash payment equal to the product of (A) the number of shares of
Stock subject to such Option, multiplied by (B) the value of the consideration being
paid for each share of Stock in connection with the Transaction minus the per share
exercise price of such Option; provided that if the per share exercise price of an
Option exceeds the value of the consideration being paid for each share of Stock,
then such “out-of-the-money” Option shall be cancelled without payment of any
consideration with respect thereto. For purposes hereof, all determinations of
value by the Board shall conclusively be deemed valid.”



 









 





     FURTHER RESOLVED, that Section 5.2(b) of the 2000 Plan is amended to read as follows:




“(b) If (1) a tender offer to purchase for cash all the outstanding shares of common stock
of the Company shall be commenced, (2) the Company shall be a party to any reorganization in
which it does not survive, including a merger, consolidation, or acquisition of the stock or
substantially all the assets of the Company, or (3) the Company shall be party to any
reorganization in which it does survive, including a merger, consolidation or acquisition of
the stock or substantially all the assets, but in which the outstanding shares of the
Company are converted into cash as a result of the transaction (in the case of clause (1),
(2) or (3), the “Transaction”), the Board, in its sole discretion, may:




(i) notwithstanding any other provisions hereof, declare that all Options granted
under the Plan shall become exercisable immediately notwithstanding the provisions
of the respective Option Agreements regarding exercisability, that all such Options
shall terminate a specified period of time after the Committee gives written notice
of the immediate right to exercise such Options and of the decision to terminate all
Options not exercised within such period, and that all then-remaining restrictions
pertaining to Awards under the Plan shall immediately lapse; or




(ii) notify all Grantees that all Options or Awards granted under the Plan shall be
assumed by the successor corporation or substituted on an equitable basis with
options or restricted stock issued by such successor corporation; or




(iii) declare that all Options granted under the Plan that are outstanding as of the
date of such declaration, shall, upon the commencement of a tender offer to purchase
for cash all the outstanding shares of common stock of the Company (the “Offer”)
(provided that the time of the acceptance for payment of such shares pursuant to the
Offer (the “Acceptance Time”) occurs), (1) in accordance with the terms of the award
agreements relating thereto (x) become 100% vested and (y) be exercisable at any
time prior to the Acceptance Time (such period, the “Option Exercise Period”), and
(2) to the extent not exercised within the Option Exercise Period, at the effective
time of the Transaction (the “Effective Time”), be terminated and converted into the
right to receive a cash payment equal to the product of (A) the number of shares of
Stock subject to such Option, multiplied by (B) the value of the consideration being
paid for each share of Stock in connection with the Transaction minus the per share
exercise price of such Option; provided that if the per share exercise price of an
Option exceeds the value of the consideration being paid for each share of Stock,
then such “out-of-the-money” Option shall be cancelled without payment of any
consideration with respect thereto. For purposes hereof, all determinations of
value by the Board shall conclusively be deemed valid.”



     FURTHER RESOLVED, that Section 5.2(b) of the 2007 Plan is amended to read as follows:



 









 






“(b) If (1) a tender offer to purchase for cash all the outstanding shares of common stock
of the Company shall be commenced, (2) the Company shall be a party to any reorganization in
which it does not survive, including a merger, consolidation, or acquisition of the stock or
substantially all the assets of the Company, or (3) the Company shall be party to any
reorganization in which it does survive, including a merger, consolidation or acquisition of
the stock or substantially all the assets, but in which the outstanding shares of the
Company are converted into cash as a result of the transaction (in the case of clause (1),
(2) or (3), the “Transaction”), the Board, in its sole discretion, may:




(i) notwithstanding any other provisions hereof, declare that all Options granted
under the Plan shall become exercisable immediately notwithstanding the provisions
of the respective Option Agreements regarding exercisability, that all such Options
shall terminate a specified period of time after the Committee gives written notice
of the immediate right to exercise such Options and of the decision to terminate all
Options not exercised within such period, and that all then-remaining restrictions
pertaining to Awards under the Plan shall immediately lapse; or




(ii) notify all Grantees that all Options or Awards granted under the Plan shall be
assumed by the successor corporation or substituted on an equitable basis with
options or restricted stock issued by such successor corporation; or




(iii) declare that all Options granted under the Plan that are outstanding as of the
date of such declaration, shall, upon the commencement of a tender offer to purchase
for cash all the outstanding shares of common stock of the Company (the “Offer”)
(provided that the time of the acceptance for payment of such shares pursuant to the
Offer (the “Acceptance Time”) occurs), (1) in accordance with the terms of the award
agreements relating thereto (x) become 100% vested and (y) be exercisable at any
time prior to the Acceptance Time (such period, the “Option Exercise Period”), and
(2) to the extent not exercised within the Option Exercise Period, at the effective
time of the Transaction (the “Effective Time”), be terminated and converted into the
right to receive a cash payment equal to the product of (A) the number of shares of
Stock subject to such Option, multiplied by (B) the value of the consideration being
paid for each share of Stock in connection with the Transaction minus the per share
exercise price of such Option; provided that if the per share exercise price of an
Option exceeds the value of the consideration being paid for each share of Stock,
then such “out-of-the-money” Option shall be cancelled without payment of any
consideration with respect thereto. For purposes hereof, all determinations of
value by the Board shall conclusively be deemed valid.”