*******EXHIBIT 10.1*******

 

POZEN INC. 

2000EQUITY COMPENSATION PLAN, 

AS AMENDED AND RESTATED

 

The purpose of the POZEN Inc. 2000 Equity Compensation Plan, as amended and restated (the “Plan”), is to provide(i) designated employees of POZEN Inc. (the “Company”) and its subsidiaries, (ii) certain consultants and advisors who perform services for the Company or its subsidiaries, and (iii) non-employee members of the Board of Directors of theCompany (the “Board”) with the opportunity to receive grants of incentive stock options, nonqualified stock options, stock awards, performance units and other stock-based awards. The Company believes that the Plan will encourage theparticipants to contribute materially to the growth of the Company, thereby benefitting the Company’s stockholders, and will align the economic interests of the participants with those of the stockholders. 

 

1. Administration

 

(a) Committee. The Plan shall be administered by a committeeappointed by the Board (the “Committee”), which may consist of two or more persons who are “outside directors” as defined under section 162(m) of the Internal Revenue Code of 1986, as amended (the “Code”), and relatedTreasury regulations and “non-employee directors” as defined under Rule 16b-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). However, the Board may ratify or approve any grants as it deemsappropriate. The Committee may delegate authority to one or more subcommittees, as it deems appropriate. To the extent that the Board or a subcommittee administers the Plan, references in the Plan to the “Committee” shall be deemed torefer to such Board or such subcommittee. 

 

(b) CommitteeAuthority. The Committee shall have the sole authority to (i) determine the individuals to whom grants shall be made under the Plan, (ii) determine the type, size and terms of the grants to be made to each such individual, (iii) determine thetime when the grants will be made and the duration of any applicable exercise or restriction period, including the criteria for exercisability and the acceleration of exercisability, (iv) amend the terms of any previously issued grant, and (v) dealwith any other matters arising under the Plan. 

 

(c)Committee Determinations. The Committee shall have full power and authority to administer and interpret the Plan, to make factual determinations and to adopt or amend such rules, regulations, agreements and instruments for implementing thePlan and for the conduct of its business as it deems necessary or advisable, in its sole discretion. The Committee’s interpretations of the Plan and all determinations made by the Committee pursuant to the powers vested in it hereunder shall beconclusive and binding on all persons having any interest in the Plan or in any awards granted hereunder. All powers of the Committee shall be executed in its sole discretion, in the best interest of the Company, not as a fiduciary, and in keepingwith the objectives of the Plan and need not be uniform as to similarly situated individuals. 

(d) Delegation of Authority. In addition to the delegation described in subsection (a) and subjectto applicable law, the Board or the Committee may delegate to one or more officers of the Company the authority to designate Employees who shall receive grants under the Plan and to determine the number of grants to be received by such Employees. Inthat event, the Board or Committee shall specify the maximum number of grants that the officers may award and the prices (or a formula by which such prices shall be determined) at which the grants may be made. The Board or Committee may notauthorize an officer to designate himself or herself as a recipient of a grant. To the extent that one or more officers administers the Plan, references in the Plan to the “Committee” shall be deemed to refer to such officers. 

 

2. Grants

 

Awards under the Plan may consist of grants of incentive stock options asdescribed in Section 5 (“Incentive Stock Options”), nonqualified stock options as described in Section 5 (“Nonqualified Stock Options”) (Incentive Stock Options and Nonqualified Stock Options are collectively referred to as“Options”), stock awards as described in Section 6 (“Stock Awards”), performance units as described in Section 7 (“Performance Units”) and other stock-based awards as described in Section 7 (hereinafter collectivelyreferred to as “Grants”). All Grants shall be subject to the terms and conditions set forth herein and to such other terms and conditions consistent with this Plan as the Committee deems appropriate and as are specified in writing by theCommittee to the individual in a grant instrument or an amendment to the grant instrument (the “Grant Instrument”). The Committee shall approve the form and provisions of each Grant Instrument. Grants under a particular Section of the Planneed not be uniform as among the grantees. 

 

3. SharesSubject to the Plan

 

(a) Shares Authorized. Subjectto adjustment as described below, the aggregate number of shares of common stock of the Company (“Company Stock”) that may be issued or transferred under the Plan pursuant to all Grants is 5,500,000 shares, and of that number, the maximumaggregate number of shares of Company Stock that may be issued or transferred under the Plan pursuant to Grants other than Options is 2,000,000 shares. The maximum aggregate number of shares of Company Stock that shall be subject to Grants madeunder the Plan to any individual during any calendar year shall be 1,000,000 shares, subject to adjustment as described below. The shares may be authorized but unissued shares of Company Stock or reacquired shares of Company Stock, including sharespurchased by the Company on the open market for purposes of the Plan. If and to the extent Options granted under the Plan terminate, expire, or are canceled, forfeited, exchanged or surrendered without having been exercised or if any Stock Awards,Performance Units or other stock-based awards are forfeited or otherwise terminate, the shares subject to such Grants shall again be available for purposes of the Plan. 

 

-2- 

(b) Adjustments. If there is any change in the number or kind of shares of Company Stockoutstanding (i) by reason of a stock dividend, spinoff, recapitalization, stock split, or combination or exchange of shares, (ii) by reason of a merger, reorganization or consolidation in which the Company is the surviving corporation, (iii) byreason of a reclassification or change in par value, or (iv) by reason of any other extraordinary or unusual event affecting the outstanding Company Stock as a class without the Company’s receipt of consideration, or if the value of outstandingshares of Company Stock is substantially reduced as a result of a spinoff or the Company’s payment of an extraordinary dividend or distribution, the maximum number of shares of Company Stock available for Grants, the maximum number of shares ofCompany Stock that any individual participating in the Plan may be granted in any year, the number of shares covered by outstanding Grants, the kind of shares issued under the Plan, and the price per share or the applicable market value of suchGrants may be appropriately adjusted by the Committee to reflect any increase or decrease in the number of, or change in the kind or value of, issued shares of Company Stock to preclude, to the extent practicable, the enlargement or dilution ofrights and benefits under such Grants; provided, however, that any fractional shares resulting from such adjustment shall be eliminated. Any adjustments determined by the Committee shall be final, binding and conclusive. 

 

4. Eligibility for Participation

 

(a) Eligible Persons. All employees of the Company and itssubsidiaries (“Employees”), including Employees who are officers or members of the Board, and members of the Board who are not Employees (“Non-Employee Directors”) shall be eligible to participate in the Plan. Consultants andadvisors who perform services for the Company or any of its subsidiaries (“Key Advisors”) shall be eligible to participate in the Plan if the Key Advisors render bona fide services to the Company or its subsidiaries, the services are notin connection with the offer and sale of securities in a capital-raising transaction, and the Key Advisors do not directly or indirectly promote or maintain a market for the Company’s securities. 

 

(b) Selection of Grantees. The Committee shall select the Employees,Non-Employee Directors and Key Advisors to receive Grants and shall determine the number of shares of Company Stock subject to a particular Grant in such manner as the Committee determines. Employees, Key Advisors and Non-Employee Directors whoreceive Grants under this Plan shall hereinafter be referred to as “Grantees”. 

 

5. Granting of Options

(a) Number of Shares. The Committee shall determine the number ofshares of Company Stock that will be subject to each Grant of Options to Employees, Non-Employee Directors and Key Advisors. 

 

-3- 

(b) Type of Option and Price. 

 

(i) The Committee may grant Incentive Stock Options that are intended to qualify as “incentive stock options”within the meaning of section 422 of the Code or Nonqualified Stock Options that are not intended so to qualify or any combination of Incentive Stock Options and Nonqualified Stock Options, all in accordance with the terms and conditions set forthherein. Incentive Stock Options may be granted only to Employees. Nonqualified Stock Options may be granted to Employees, Non-Employee Directors and Key Advisors. 

 

(ii) The purchase price (the “Exercise Price”) of Company Stock subject to an Option shall be determined by theCommittee and may be equal to or greater than the Fair Market Value (as defined below) of a share of Company Stock on the date the Option is granted; provided, however, that an Incentive Stock Option may not be granted to an Employee who, at thetime of grant, owns stock possessing more than 10 percent of the total combined voting power of all classes of stock of the Company or any parent or subsidiary of the Company, unless the Exercise Price per share is not less than 110% of the FairMarket Value of Company Stock on the date of grant. 

 

(iii) Ifthe Company Stock is publicly traded, then the Fair Market Value per share shall be determined as follows: (x) if the principal trading market for the Company Stock is a national securities exchange or the Nasdaq National Market, the last reportedsale price thereof on the relevant date or (if there were no trades on that date) the latest preceding date upon which a sale was reported, or (y) if the Company Stock is not principally traded on such exchange or market, the mean between the lastreported “bid” and “asked” prices of Company Stock on the relevant date, as reported on Nasdaq or, if not so reported, as reported by the National Daily Quotation Bureau, Inc. or as reported in a customary financial reportingservice, as applicable and as the Committee determines. If the Company Stock is not publicly traded or, if publicly traded, is not subject to reported transactions or “bid” or “asked” quotations as set forth above, the FairMarket Value per share shall be as determined by the Committee. 

 

(c) Option Term. The Committee shall determine the term of each Option. The term of any Option shall not exceed ten years from the date of grant. However, an Incentive Stock Option that is granted to an Employee who, at the time ofgrant, owns stock possessing more than 10 percent of the total combined voting power of all classes of stock of the Company, or any parent or subsidiary of the Company, may not have a term that exceeds five years from the date of grant. 

 

(d) Exercisability of Options. 

 

(i) Options shall become exercisable in accordance with such terms andconditions, consistent with the Plan, as may be determined by the Committee and specified in the Grant Instrument. The Committee may accelerate the exercisability of any or all outstanding Options at any time for any reason. 

 

-4- 

(ii) The Committee may provide in a Grant Instrument that the Grantee may elect to exercise part or allof an Option before it otherwise has become exercisable. Any shares so purchased shall be restricted shares and shall be subject to a repurchase right in favor of the Company during a specified restriction period, with the repurchase price equal tothe lesser of the Exercise Price or the Fair Market Value per share of Company Stock at the time of repurchase, or such other restrictions as the Committee deems appropriate. 

 

(e) Termination of Employment, Disability or Death. 

 

(i) Except as provided below, an Option may only be exercised while the Grantee is employed by, or providing service to, theCompany as an Employee, Key Advisor or member of the Board. In the event that a Grantee ceases to be employed by, or provide service to, the Company for any reason other than Disability (as defined below), death, or termination for Cause (as definedbelow), any Option which is otherwise exercisable by the Grantee shall terminate unless exercised within 90 days after the date on which the Grantee ceases to be employed by, or provide service to, the Company (or within such other period of time asmay be specified by the Committee), but in any event no later than the date of expiration of the Option term. Except as otherwise provided by the Committee, any of the Grantee’s Options that are not otherwise exercisable as of the date on whichthe Grantee ceases to be employed by, or provide service to, the Company shall terminate as of such date. 

 

(ii) In the event the Grantee ceases to be employed by, or provide service to, the Company on account of a termination for Cause by the Company, anyOption held by the Grantee shall terminate as of the date the Grantee ceases to be employed by, or provide service to, the Company. In addition, notwithstanding any other provisions of this Section 5, if the Committee determines that the Grantee hasengaged in conduct that constitutes Cause at any time while the Grantee is employed by, or providing service to, the Company or after the Grantee’s termination of employment or service, any Option held by the Grantee shall immediately terminateand the Grantee shall automatically forfeit all shares underlying any exercised portion of an Option for which the Company has not yet delivered the share certificates, upon refund by the Company of the Exercise Price paid by the Grantee for suchshares. Upon any exercise of an Option, the Company may withhold delivery of share certificates pending resolution of an inquiry that could lead to a finding resulting in a forfeiture. 

 

(iii) In the event the Grantee ceases to be employed by, or provide service to, the Company because the Grantee is Disabled,any Option which is otherwise exercisable by the Grantee shall terminate unless exercised within one year after the date on which the Grantee ceases to be employed by, or provide service to, the Company (or within such other period of time as may bespecified by the Committee), but in any event no later than the date of expiration of the Option term. Except as otherwise provided by the Committee, any of the Grantee’s Options which are not otherwise exercisable as of the date on which theGrantee ceases to be employed by, or provide service to, the Company shall terminate as of such date. 

 

-5- 

(iv) If the Grantee dies while employed by, or providing service to, the Company or within 90 days afterthe date on which the Grantee ceases to be employed or provide service on account of a termination specified in Section 5(e)(i) above (or within such other period of time as may be specified by the Committee), any Option that is otherwiseexercisable by the Grantee shall terminate unless exercised within one year after the date on which the Grantee ceases to be employed by, or provide service to, the Company (or within such other period of time as may be specified by the Committee),but in any event no later than the date of expiration of the Option term. Except as otherwise provided by the Committee, any of the Grantee’s Options that are not otherwise exercisable as of the date on which the Grantee ceases to be employedby, or provide service to, the Company shall terminate as of such date. 

 

(v) For purposes of this Section 5(e), and Sections 6 and 7: 

 

(A) The term “Company” shall mean the Company and its parent and subsidiary corporations or other entities, as determined by the Committee. 

 

(B) “Employed by, or provide service to, the Company” shall mean employment or service as anEmployee, Key Advisor or member of the Board (so that, for purposes of exercising Options and satisfying conditions with respect to Stock Awards, Performance Units and other stock-based grants, a Grantee shall not be considered to have terminatedemployment or service until the Grantee ceases to be an Employee, Key Advisor and member of the Board), unless the Committee determines otherwise. 

 

(C) “Disability” shall mean a Grantee’s becoming disabled within the meaning of section 22(e)(3) of the Code or the Granteebecomes entitled to receive long-term disability benefits under the Company’s long-term disability plan. 

 

(D) “Cause” shall mean, except to the extent specified otherwise by the Committee, a finding by the Committee that the Grantee(i) has breached his or her employment or service contract with the Company, (ii) has engaged in disloyalty to the Company, including, without limitation, fraud, embezzlement, theft, commission of a felony or proven dishonesty in the course of hisor her employment or service, (iii) has disclosed trade secrets or confidential information of the Company to persons not entitled to receive such information, (iv) has breached any written confidentiality, non-competition or non-solicitationagreement with the Company, or (v) has engaged in such other behavior detrimental to the interests of the Company as the Committee determines. 

 

(f) Exercise of Options. A Grantee may exercise an Option that has become exercisable, in whole or in part, by delivering an irrevocable notice ofexercise to the Company. The Grantee shall pay the Exercise Price for an Option as specified by the Committee (w) in cash, (x) with the approval of the Committee, by delivering shares of Company Stock owned by the Grantee (including Company Stockacquired in connection with the exercise of an Option, subject to such restrictions as the Committee deems appropriate) and having a Fair Market Value 

 

-6- 

on the date of exercise equal to the Exercise Price or by attestation (on a form prescribed by the Committee) toownership of shares of Company Stock having a Fair Market Value on the date of exercise equal to the Exercise Price, or (y) by such other method as the Committee may approve. Shares of Company Stock used to exercise an Option shall have been held bythe Grantee for the requisite period of time to avoid adverse accounting consequences to the Company with respect to the Option. The Grantee shall pay the Exercise Price and the amount of any withholding tax due prior to the issuance of the sharesof Company Stock issuable upon such exercise. 

 

(g) Limits onIncentive Stock Options. Each Incentive Stock Option shall provide that, if the aggregate Fair Market Value of the stock on the date of the grant with respect to which Incentive Stock Options are exercisable for the first time by a Granteeduring any calendar year, under the Plan or any other stock option plan of the Company or a parent or subsidiary, exceeds $100,000, then the Option, as to the excess, shall be treated as a Nonqualified Stock Option. An Incentive Stock Option shallnot be granted to any person who is not an Employee of the Company or a parent or subsidiary (within the meaning of section 424(f) of the Code). 

 

6. Stock Awards

 

The Committee may issue or transfer shares of Company Stock to an Employee, Non-Employee Director or Key Advisor under a Stock Award, upon such terms asthe Committee deems appropriate. The following provisions are applicable to Stock Awards: 

 

(a) General Requirements. Shares of Company Stock issued or transferred pursuant to Stock Awards may be issued or transferred for consideration or for no consideration, and subject to restrictions or norestrictions, as determined by the Committee. The Committee may, but shall not be required to, establish conditions under which restrictions on Stock Awards shall lapse over a period of time or according to such other criteria as the Committee deemsappropriate, including, without limitation, restrictions based upon the achievement of specific performance goals. The period of time during which the Stock Awards will remain subject to restrictions will be designated in the Grant Instrument as the“Restriction Period.” 

 

(b) Number of Shares.The Committee shall determine the number of shares of Company Stock to be issued or transferred pursuant to a Stock Award and the restrictions applicable to such shares. 

 

(c) Requirement of Employment or Service. If the Grantee ceases to be employed by, or provide service to, the Company(as defined in Section 5(e)) during a period designated in the Grant Instrument as the Restriction Period, or if other specified conditions are not met, the Stock Award shall terminate as to all shares covered by the Grant as to which therestrictions have not lapsed, and those shares of Company Stock must be immediately returned to the Company. The Committee may, however, provide for complete or partial exceptions to this requirement as it deems appropriate. 

 

-7- 

(d) Restrictions on Transfer and Legend on Stock Certificate. During the Restriction Period, aGrantee may not sell, assign, transfer, pledge or otherwise dispose of the shares of a Stock Award except to a Successor Grantee under Section 11(a). Each certificate for a share of a Stock Award shall contain a legend giving appropriate notice ofthe restrictions in the Grant. The Grantee shall be entitled to have the legend removed from the stock certificate covering the shares subject to restrictions when all restrictions on such shares have lapsed. The Committee may determine that theCompany will not issue certificates for Stock Awards until all restrictions on such shares have lapsed, or that the Company will retain possession of certificates for shares of Stock Awards until all restrictions on such shares have lapsed.

 

(e) Right to Vote and to Receive Dividends. Unless theCommittee determines otherwise, during the Restriction Period, the Grantee shall have the right to vote shares of Stock Awards and to receive any dividends or other distributions paid on such shares, subject to any restrictions deemed appropriate bythe Committee, including, without limitation, the achievement of specific performance goals. 

 

(f) Lapse of Restrictions. All restrictions imposed on Stock Awards shall lapse upon the expiration of the applicable Restriction Period and the satisfaction of all conditions imposed by the Committee. TheCommittee may determine, as to any or all Stock Awards, that the restrictions shall lapse without regard to any Restriction Period. 

 

7. Performance Units and Other Stock-Based Awards

 

(a) Performance Units. The Committee may grant performance units (“Performance Units”) to an Employee, Non-Employee Director or KeyAdvisor. Each Performance Unit shall represent the right of the Grantee to receive an amount based on the value of the Performance Unit, if performance goals established by the Committee are met. The value of a Performance Unit shall equal the FairMarket Value of a share of Company Stock. The Committee shall determine the number of Performance Units to be granted and the requirements applicable to such Units. 

 

(b) Performance Period and Performance Goals. When Performance Units are granted, the Committee shall establish theperformance period during which performance shall be measured (the “Performance Period”), performance goals applicable to the Units (“Performance Goals”) and such other conditions of the Grant as the Committee deems appropriate.Performance Goals may relate to the financial performance of the Company or its operating units, the performance of Company Stock, individual performance, or such other criteria as the Committee deems appropriate. 

 

(c) Payment with respect to Performance Units. At the end of eachPerformance Period, the Committee shall determine to what extent the Performance Goals and other conditions of the Performance Units are met, the value of the Performance Units (if applicable), and the amount, if any, to be paid with respect to thePerformance Units. Payments with respect to 

 

-8- 

Performance Units shall be made partly in cash, in Company Stock, or in a combination of the two, as determined by theCommittee, provided that the cash portion does not exceed 50% of the amount to be distributed. 

 

(d) Requirement of Employment or Service. If the Grantee ceases to be employed by, or provide service to, the Company (as defined in Section 5(e)) during a Performance Period, or if other conditions establishedby the Committee are not met, the Grantee’s Performance Units shall be forfeited. The Committee may, however, provide for complete or partial exceptions to this requirement as it deems appropriate. 

 

(e) Other Stock-Based Awards. The Committee may grant otherstock-based awards to an Employee, Non-Employee Director or Key Advisor, with such terms and conditions and in such amounts as the Committee determines. 

 

8. Qualified Performance-Based Compensation. 

 

(a) Designation as Qualified Performance-Based Compensation. The Committee may determine that Performance Units, Stock Awards or other stock-basedawards granted to an Employee shall be considered “qualified performance-based compensation” under Section 162(m) of the Code. The provisions of this Section 8 shall apply to Grants of Performance Units, Stock Awards and other stock-basedawards that are to be considered “qualified performance-based compensation” under section 162(m) of the Code. 

 

(b) Performance Goals. When Performance Units, Stock Awards or other stock-based awards that are to be considered “qualified performance-basedcompensation” are granted, the Committee shall establish in writing (i) the objective performance goals that must be met, (ii) the Performance Period during which the performance goals must be met, (iii) the threshold, target and maximumamounts that may be paid if the performance goals are met, and (iv) any other conditions that the Committee deems appropriate and consistent with the Plan and section 162(m) of the Code. The performance goals may relate to the Employee’sbusiness unit or the performance of the Company and its subsidiaries as a whole, or any combination of the foregoing. The Committee shall use objectively determinable performance goals based on one or more of the following criteria: stock price,earnings per share, net earnings, operating earnings, return on assets, stockholder return, return on equity, growth in assets, unit volume, sales, market share, scientific goals, pre-clinical or clinical goals, regulatory approvals, or strategicbusiness criteria consisting of one or more objectives based on meeting specified revenue goals, market penetration goals, geographic business expansion goals, cost targets, goals relating to acquisitions or divestitures, or strategic partnerships.

 

(c) Establishment of Goals. The Committee shallestablish the performance goals in writing either before the beginning of the Performance Period or during a period ending no later than the earlier of (i) 90 days after the beginning of the Performance Period or (ii) the date on which 25% of thePerformance Period has been completed, or such other date as may be required 

 

-9- 

or permitted under applicable regulations under section 162(m) of the Code. The performance goals shall satisfy therequirements for “qualified performance-based compensation,” including the requirement that the achievement of the goals be substantially uncertain at the time they are established and that the goals be established in such a way that athird party with knowledge of the relevant facts could determine whether and to what extent the performance goals have been met. The Committee shall not have discretion to increase the amount of compensation that is payable upon achievement of thedesignated performance goals. 

 

(d) Maximum Payment.Performance Units, Stock Awards and other stock-based awards under this Section 8 may be granted to an Employee with respect to not more than 1,000,000 shares of Company Stock for each year during a Performance Period. 

 

(e) Announcement of Grants. The Committee shall certify and announcethe results for each Performance Period to all Grantees immediately following the announcement of the Company’s financial results for the Performance Period. If and to the extent that the Committee does not certify that the performance goalshave been met, the grants of Stock Awards, Performance Units or other stock-based awards for the Performance Period shall be forfeited or shall not be made, as applicable. 

 

(f) Death, Disability or Other Circumstances. The Committee may provide that Performance Units or other stock-basedawards shall be payable or restrictions on Stock Awards shall lapse, in whole or in part, in the event of the Grantee’s death or Disability (as defined in Section 5(e) above) during the Performance Period, or under other circumstancesconsistent with the regulations and rulings under section 162(m). 

 

9. Deferrals

 

The Committee may permit orrequire a Grantee to defer receipt of the payment of cash or the delivery of shares that would otherwise be due to such Grantee in connection with any Option, the lapse or waiver of restrictions applicable to Stock Awards, or the satisfaction of anyrequirements or objectives with respect to Performance Units or other stock-based awards. If any such deferral election is permitted or required, the Committee shall, in its sole discretion, establish rules and procedures for such deferrals.

 

10. Withholding of Taxes

 

(a) Required Withholding. All Grants under the Plan shall be subjectto applicable federal (including FICA), state and local tax withholding requirements. The Company shall have the right to deduct from all Grants paid in cash, or from other wages paid to the Grantee, any federal, state or local taxes required by lawto be withheld with respect to such Grants. In the case of Grants paid in Company Stock, the Company may require that the Grantee or other person receiving or exercising Grants pay to the Company the amount of any federal, state or local taxes thatthe Company is required to withhold with respect to such Grants, or the Company may deduct from other wages paid by the Company the amount of any withholding taxes due with respect to such Grants. 

 

-10- 

(b) Election to Withhold Shares. If the Committee so permits, a Grantee may elect to satisfy theCompany’s income tax withholding obligation with respect to Grants paid in Company Stock by having shares withheld up to an amount that does not exceed the Grantee’s minimum applicable withholding tax rate for federal (including FICA),state and local tax liabilities. The election must be in a form and manner prescribed by the Committee and may be subject to the prior approval of the Committee. 

 

11. Transferability of Grants

 

(a) Nontransferability of Grants. Except as provided below, only the Grantee may exercise rights under a Grant duringthe Grantee’s lifetime. A Grantee may not transfer those rights except by will or by the laws of descent and distribution or, with respect to Grants other than Incentive Stock Options, if permitted in any specific case by the Committee,pursuant to a domestic relations order. When a Grantee dies, the personal representative or other person entitled to succeed to the rights of the Grantee (“Successor Grantee”) may exercise such rights. A Successor Grantee must furnishproof satisfactory to the Company of his or her right to receive the Grant under the Grantee’s will or under the applicable laws of descent and distribution. 

 

(b) Transfer of Nonqualified Stock Options. Notwithstanding the foregoing, the Committee may provide, in a GrantInstrument, that a Grantee may transfer Nonqualified Stock Options to family members, or one or more trusts or other entities for the benefit of or owned by family members, consistent with the applicable securities laws, according to such terms asthe Committee may determine; provided that the Grantee receives no consideration for the transfer of an Option and the transferred Option shall continue to be subject to the same terms and conditions as were applicable to the Option immediatelybefore the transfer. 

 

12. Change of Control of theCompany

 

As used herein, a “Change of Control”shall be deemed to have occurred if: 

 

(a) Any“person” (as such term is used in sections 13(d) and 14(d) of the Exchange Act) (other than the Company or any trustee or fiduciary holding securities under an employee benefit plan of the Company) becomes a “beneficial owner”(as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 50% or more of the voting power of the then outstanding securities of the Company; provided that a Change of Control shall not bedeemed to occur as a result of a transaction in which the Company becomes a subsidiary of another corporation and in which the stockholders of the Company, immediately prior to the transaction, will beneficially own, immediately after thetransaction, shares entitling such stockholders to more than 50% of all votes to which all stockholders of the parent corporation would be entitled in the election of directors (without consideration of the rights of any class of stock to electdirectors by a separate class vote); or 

 

-11- 

(b) Consummation of (i) a merger or consolidation of the Company with another corporation where thestockholders of the Company, immediately prior to the merger or consolidation, will not beneficially own, immediately after the merger or consolidation, shares entitling such stockholders to more than 50% of all votes to which all stockholders ofthe surviving corporation would be entitled in the election of directors (without consideration of the rights of any class of stock to elect directors by a separate class vote), (ii) a sale or other disposition of all or substantially all of theassets of the Company, or (iii) a liquidation or dissolution of the Company. 

 

13. Consequences of a Change of Control

 

(a) Notice and Acceleration. Upon a Change of Control, unless the Committee determines otherwise, (i) the Company shall provide each Grantee with outstanding Grants written notice of such Change of Control,(ii) all outstanding Options shall automatically accelerate and become fully exercisable, (iii) restrictions and conditions on all outstanding Stock Awards shall immediately lapse, (iv) all Performance Units shall be paid at their target value, orin such other amounts as the Committee may determine, and (v) all other stock-based awards shall become fully exercisable, vested or payable in full, as the case may be. 

 

(b) Assumption of Grants. Upon a Change of Control where the Company is not the surviving corporation (or survivesonly as a subsidiary of another corporation), unless the Committee determines otherwise, all outstanding Options that are not exercised shall be assumed by, or replaced with comparable options or rights by, the surviving corporation (or a parent ofthe surviving corporation), and other outstanding Grants shall be converted to similar grants of the surviving corporation (or a parent of the surviving corporation). 

 

(c) Other Alternatives. Notwithstanding the foregoing, in the event of a Change of Control, the Committee may takeone or both of the following actions with respect to any or all outstanding Options: the Committee may, (i) under such terms as the Compensation Committee may determine, require that Grantees surrender their outstanding Options in exchange for apayment or payments by the Company, in cash or Company Stock, as determined by the Committee, in an amount equal to the amount by which the then Fair Market Value of the shares of Company Stock subject to the Grantee’s unexercised Optionsexceeds the Exercise Price of the Options, or (ii) after giving Grantees an opportunity to exercise their outstanding Options, terminate any or all unexercised Options at such time as the Committee deems appropriate. With respect to Grantees holdingPerformance Units and other stock-based awards, the Committee may determine that such Grantees shall receive a payment or payments in settlement of such Grants, in such form and amount and under such terms as shall be determined by the Committee.Such surrender, termination or settlement shall take place as of the date of the Change of Control or such other date as the Committee may specify. 

 

-12- 

14. Requirements for Issuance or Transfer of Shares

 

(a) Limitations on Issuance or Transfer of Shares. No Company Stockshall be issued or transferred in connection with any Grant hereunder unless and until all legal requirements applicable to the issuance or transfer of such Company Stock have been complied with to the satisfaction of the Committee. The Committeeshall have the right to condition any Grant made to any Grantee hereunder on such Grantee’s undertaking in writing to comply with such restrictions on his or her subsequent disposition of such shares of Company Stock as the Committee shall deemnecessary or advisable, and certificates representing such shares may be legended to reflect any such restrictions. Certificates representing shares of Company Stock issued or transferred under the Plan will be subject to such stop-transfer ordersand other restrictions as may be required by applicable laws, regulations and interpretations, including any requirement that a legend be placed thereon. 

 

(b) Lock-Up Period. If so requested by the Company or any representative of the underwriters (the “Managing Underwriter”) in connectionwith any underwritten offering of securities of the Company under the Securities Act of 1933, as amended (the “Securities Act”), a Grantee (including any successors or assigns) shall not sell or otherwise transfer any shares or othersecurities of the Company during the 30-day period preceding and the 180-day period following the effective date of a registration statement of the Company filed under the Securities Act for such underwriting (or such shorter period as may berequested by the Managing Underwriter and agreed to by the Company) (the “Market Standoff Period”). The Company may impose stop-transfer instructions with respect to securities subject to the foregoing restrictions until the end of suchMarket Standoff Period. 

 

15. Amendment and Termination ofthe Plan

 

(a) Amendment. The Board may amend orterminate the Plan at any time; provided, however, that the Board shall not amend the Plan without stockholder approval if (i) such approval is required in order for Incentive Stock Options granted or to be granted under the Plan to meet therequirements of section 422 of the Code, (ii) such approval is required in order to exempt compensation under the Plan from the deduction limit under section 162(m) of the Code, or (iii) such approval is required by applicable stock exchangerequirements. 

 

(b) Stockholder Approval for “QualifiedPerformance-Based Compensation.” If Performance Units, Stock Awards or other stock-based awards are granted as “qualified performance-based compensation” under Section 8 above, the Plan must be reapproved by the stockholders nolater than the first stockholders meeting that occurs in the fifth year following the year in which the stockholders previously approved the provisions of Section 8, if required by section 162(m) of the Code or the regulations thereunder.

 

-13- 

(c) Termination of Plan. The Plan shall terminate on the day immediately preceding the tenthanniversary of its effective date, unless the Plan is terminated earlier by the Board or is extended by the Board with the approval of the stockholders. 

 

(d) Termination and Amendment of Outstanding Grants. A termination or amendment of the Plan that occurs after a Grant is made shall not materiallyimpair the rights of a Grantee unless the Grantee consents or unless the Committee acts under Section 21(c). The termination of the Plan shall not impair the power and authority of the Committee with respect to an outstanding Grant. Whether or notthe Plan has terminated, an outstanding Grant may be terminated or amended under Section 21(c) or may be amended by agreement of the Company and the Grantee consistent with the Plan. 

 

(e) No Repricing Without Stockholder Approval. Notwithstanding anything in the Plan to the contrary, the Committeemay not reprice Options, nor may the Board amend the Plan to permit repricing of Options, unless the stockholders of the Company provide prior approval for such repricing. The term “repricing” shall have the meaning given that term forpurposes of the Nasdaq (or other applicable stock exchange) rules applicable to stockholder approval of equity compensation plans. 

 

(f) Governing Document. The Plan shall be the controlling document. No other statements, representations, explanatory materials or examples, oralor written, may amend the Plan in any manner. The Plan shall be binding upon and enforceable against the Company and its successors and assigns. 

 

16. Funding of the Plan

This Planshall be unfunded. The Company shall not be required to establish any special or separate fund or to make any other segregation of assets to assure the payment of any Grants under this Plan. In no event shall interest be paid or accrued on anyGrant, including unpaid installments of Grants. 

 

17. Rightsof Participants

 

Nothing in this Plan shall entitle anyEmployee, Key Advisor, Non-Employee Director or other person to any claim or right to be granted a Grant under this Plan. Neither this Plan nor any action taken hereunder shall be construed as giving any individual any rights to be retained by or inthe employ of the Company or any other employment rights. 

 

18.No Fractional Shares

 

No fractional shares of CompanyStock shall be issued or delivered pursuant to the Plan or any Grant. The Committee shall determine whether cash, other awards or other property shall be issued or paid in lieu of such fractional shares or whether such fractional shares or anyrights thereto shall be forfeited or otherwise eliminated. 

 

-14- 

19. Headings

 

Section headings are for reference only. In the event of a conflict between a title and the content of a Section, thecontent of the Section shall control. 

 

20. Effective Date ofthe Plan.

 

The Plan (as amended and restated herein) shallbe effective as of the date on which it is approved by the stockholders of the Company. 

 

21. Miscellaneous

 

(a)Grants in Connection with Corporate Transactions and Otherwise. Nothing contained in this Plan shall be construed to (i) limit the right of the Committee to make Grants under this Plan in connection with the acquisition, by purchase, lease,merger, consolidation or otherwise, of the business or assets of any corporation, firm or association, including Grants to employees thereof who become Employees of the Company, or for other proper corporate purposes, or (ii) limit the right of theCompany to grant stock options or make other awards outside of this Plan. Without limiting the foregoing, the Committee may make a Grant to an employee of another corporation who becomes an Employee by reason of a corporate merger, consolidation,acquisition of stock or property, reorganization or liquidation involving the Company or any of its subsidiaries in substitution for a stock option or stock awards grant made by such corporation. The terms and conditions of the substitute grants mayvary from the terms and conditions required by the Plan and from those of the substituted stock incentives. The Committee shall prescribe the provisions of the substitute grants. 

 

(b) Employees Subject to Taxation Outside the United States. With respect to Grantees who are subject to taxation incountries other than the United States, the Committee may make Grants on such terms and conditions as the Committee deems appropriate to comply with the laws of the applicable countries, and the Committee may create such procedures, addenda andsubplans and make such modifications as may be necessary or advisable to comply with such laws. 

 

(c) Compliance with Law. The Plan, the exercise of Options and the obligations of the Company to issue or transfer shares of Company Stock underGrants shall be subject to all applicable laws and to approvals by any governmental or regulatory agency as may be required. With respect to persons subject to section 16 of the Exchange Act, it is the intent of the Company that the Plan and alltransactions under the Plan comply with all applicable provisions of Rule 16b-3 or its successors under the Exchange Act. In addition, it is the intent of the Company that the Plan and applicable Grants under the Plan comply with the applicableprovisions of section 162(m) of the Code and section 422 of the Code. To the extent that any legal requirement of section 16 of the Exchange Act or section 162(m) or 422 of the Code as set forth in the Plan 

 

-15- 

ceases to be required under section 16 of the Exchange Act or section 162(m) or 422 of the Code, that Plan provisionshall cease to apply. The Committee may revoke any Grant if it is contrary to law or modify a Grant to bring it into compliance with any valid and mandatory government regulation. The Committee may also adopt rules regarding the withholding of taxeson payments to Grantees. The Committee may, in its sole discretion, agree to limit its authority under this Section. 

 

(d) Governing Law. The validity, construction, interpretation and effect of the Plan and Grant Instruments issued under the Plan shall be governedand construed by and determined in accordance with the laws of the State of Delaware, without giving effect to the conflict of laws provisions thereof. 

 

-16-