exv4w1









    EXHIBIT 4.1



 




    US
    AIRWAYS GROUP, INC.

    2011 INCENTIVE AWARD PLAN



 




    ARTICLE 1.

    



 




    PURPOSE
    



 



    The purpose of the US Airways Group, Inc. 2011 Incentive Award
    Plan (as it may be amended or restated from time to time, the
    “Plan”) is to promote the success and enhance
    the value of US Airways Group, Inc. (the
    “Company”) by linking the individual interests
    of the members of the Board, Employees, and Consultants to those
    of Company stockholders and by providing such individuals with
    an incentive for outstanding performance to generate superior
    returns to Company stockholders. The Plan is further intended to
    provide flexibility to the Company in its ability to motivate,
    attract, and retain the services of members of the Board,
    Employees, and Consultants upon whose judgment, interest, and
    special effort the successful conduct of the Company’s
    operation is largely dependent.



 




    ARTICLE 2.

    



 




    DEFINITIONS
    AND CONSTRUCTION
    



 



    Wherever the following terms are used in the Plan they shall
    have the meanings specified below, unless the context clearly
    indicates otherwise. The singular pronoun shall include the
    plural where the context so indicates.



 



    2.1 “Administrator” shall mean the
    entity that conducts the general administration of the Plan as
    provided in Article 13. With reference to the duties of the
    Committee under the Plan which have been delegated to one or
    more persons pursuant to Section 13.6, or as to which the
    Board has assumed, the term “Administrator” shall
    refer to such person(s) unless the Committee or the Board has
    revoked such delegation or the Board has terminated the
    assumption of such duties.



 



    2.2 “Affiliate” shall mean
    (a) any Subsidiary; and (b) any domestic eligible
    entity that is disregarded, under Treasury
    Regulation Section 301.7701-3,
    as an entity separate from either (i) the Company or
    (ii) any Subsidiary.



 



    2.3 “Applicable Accounting
    Standards” shall mean Generally Accepted Accounting
    Principles in the United States, International Financial
    Reporting Standards or such other accounting principles or
    standards as may apply to the Company’s financial
    statements under United States federal securities laws from time
    to time.



 



    2.4 “Award” shall mean an Option, a
    Restricted Stock award, a Restricted Stock Unit award, a
    Performance Award, a Dividend Equivalents award, a Deferred
    Stock award, a Deferred Stock Unit award, a Stock Payment award
    or a Stock Appreciation Right, which may be awarded or granted
    under the Plan (collectively, “Awards”).



 



    2.5 “Award Agreement” shall mean
    any written notice, agreement, terms and conditions, contract or
    other instrument or document evidencing an Award, including
    through electronic medium, which shall contain such terms and
    conditions with respect to an Award as the Administrator shall
    determine consistent with the Plan.



 



    2.6 “Award Limit” shall mean with
    respect to Awards that shall be payable in Shares or in cash, as
    the case may be, the respective limit set forth in
    Section 3.3.



 



    2.7 “Board” shall mean the Board of
    Directors of the Company.



 



    2.8 “Change in Control” shall mean
    the occurrence of any of the following:



 



    (a) within any
    12-month
    period, the individuals who constitute the Board at the
    beginning of such period (the “Incumbent
    Board”) cease for any reason to constitute at least a
    majority of the Board; provided, however, that any
    individual becoming a director subsequent to the Effective Date
    whose election, or nomination for election by the Company’s
    stockholders, was approved by a vote of at least two-thirds of
    the directors then comprising the Incumbent Board shall be
    considered as though such individual were a member of the
    Incumbent Board; or





    

     








 







    (b) any individual, entity or group (within the meaning of
    Section 13(d)(3) or 14(d)(2) of the Exchange Act, other
    than the Company, acquires (directly or indirectly) the
    beneficial ownership (within the meaning of
    Rule 13d-3
    promulgated under the Exchange Act) of more than 50% of the
    combined voting power of the then outstanding voting securities
    of the Company or US Airways entitled to vote generally in the
    election of directors (“Voting Power”); or



 



    (c) the Company or US Airways consummates a merger,
    consolidation or reorganization of the Company or US Airways or
    any other similar transaction or series of related transactions
    (collectively, a “Transaction”) other than
    (A) a Transaction in which the voting securities of the
    Company or US Airways outstanding immediately prior thereto
    become (by operation of law), or are converted into or exchanged
    for, voting securities of the surviving corporation or its
    parent corporation immediately after such Transaction that are
    owned by the same person or entity or persons or entities as
    immediately prior thereto and possess at least 50% of the Voting
    Power held by the voting securities of the surviving corporation
    or its parent corporation, or (B) a Transaction effected to
    implement a recapitalization of the Company or US Airways (or
    similar transaction) in which no person (excluding the Company
    or US Airways or any person who held more than 50% of the
    Voting Power immediately prior to such Transaction) acquires
    more than 50% of the Voting Power; or



 



    (d) the Company or US Airways sells or otherwise disposes
    of, or consummates a transaction or series of related
    transactions providing for the sale or other disposition of, all
    or substantially all of the stock or assets of US Airways, or
    enters into a plan for the complete liquidation of either the
    Company or US Airways.



 



    Notwithstanding the foregoing, if a Change in Control
    constitutes a payment event with respect to any Award which
    provides for the deferral of compensation and is subject to
    Section 409A of the Code, the transaction or event
    described in subsection (a), (b), (c) or (d) with
    respect to such Award must also constitute a “change in
    control event,” as defined in Treasury Regulation
    § 1.409A-3(i)(5) to the extent required by
    Section 409A.



 



    The Committee shall have full and final authority, which shall
    be exercised in its sole discretion, to determine conclusively
    whether a Change in Control has occurred pursuant to the above
    definition, and the date of the occurrence of such Change in
    Control and any incidental matters relating thereto.



 



    2.9 “Code” shall mean the Internal
    Revenue Code of 1986, as amended from time to time, together
    with the regulations and official guidance promulgated
    thereunder.



 



    2.10 “Committee” shall mean the
    Compensation and Human Resources Committee of the Board, another
    committee or subcommittee of the Board, appointed as provided in
    Section 13.1; provided, that if any member of the
    Compensation and Human Resources Committee does not qualify as
    (i) an outside director for purposes of Section 162(m)
    of the Code, (ii) a non-employee director for purposes of
    Rule 16b-3,
    and (iii) an independent director for purposes of the rules
    of the exchange on which the Shares are traded, the remaining
    members of the Compensation and Human Resources Committee (but
    not less than two members) shall be constituted as a
    subcommittee to act as the Committee for purposes of the Plan.



 



    2.11 “Common Stock” shall mean the
    common stock of the Company, par value $0.01 per share.



 



    2.12 “Company” shall have the
    meaning set forth in Article 1.



 



    2.13 “Consultant” shall mean any
    consultant or adviser engaged to provide services to the Company
    or any Affiliate that qualifies as a consultant under the
    applicable rules of the Securities and Exchange Commission for
    registration of shares on a
    Form S-8
    Registration Statement.



 



    2.14 “Covered Employee” shall mean
    any Employee who is, or could be, a “covered employee”
    within the meaning of Section 162(m) of the Code.



 



    2.15 “Deferred Stock” shall mean a
    right to receive Shares awarded under Section 10.4.



 



    2.16 “Deferred Stock Unit” shall
    mean a right to receive Shares awarded under Section 10.5.



 



    2.17 “Director” shall mean a member
    of the Board, as constituted from time to time.



 



    2.18 “Dividend Equivalent” shall
    mean a right to receive the equivalent value (in cash or Shares)
    of dividends paid on Shares, awarded under Section 10.2.





    

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    2.19 “DRO” shall mean a domestic
    relations order as defined by the Code or Title I of the
    Employee Retirement Income Security Act of 1974, as amended from
    time to time, or the rules thereunder.



 



    2.20 “Effective Date” shall mean
    the date the Plan is approved by the Company’s stockholders.



 



    2.21 “Eligible Individual” shall
    mean any person who is an Employee, a Consultant or a
    Non-Employee Director, as determined by the Committee.



 



    2.22 “Employee” shall mean any
    officer or other employee (as determined in accordance with
    Section 3401(c) of the Code and the Treasury Regulations
    thereunder) of the Company or of any Affiliate.



 



    2.23 “Equity Restructuring” shall
    mean a nonreciprocal transaction between the Company and its
    stockholders, such as a stock dividend, stock split, spin-off,
    rights offering or recapitalization through a large,
    nonrecurring cash dividend, that affects the number or kind of
    Shares (or other securities of the Company) or the share price
    of Common Stock (or other securities) and causes a change in the
    per share value of the Common Stock underlying outstanding
    Awards.



 



    2.24 “Exchange Act” shall mean the
    Securities Exchange Act of 1934, as amended from time to time.



 



    2.25 “Fair Market Value” shall
    mean, as of any given date, the value of a Share determined as
    follows:



 



    (a) If the Common Stock is listed on any
    (i) established securities exchange (such as the New York
    Stock Exchange, the NASDAQ Global Market and the NASDAQ Global
    Select Market), (ii) national market system or
    (iii) automated quotation system on which the Shares are
    listed, quoted or traded, its Fair Market Value shall be the
    closing sales price for a Share as quoted on such exchange or
    system for such date or, if there is no closing sales price for
    a Share on the date in question, the closing sales price for a
    Share on the last preceding date for which such quotation
    exists, as reported in The Wall Street Journal or such
    other source as the Administrator deems reliable;



 



    (b) If the Common Stock is not listed on an established
    securities exchange, national market system or automated
    quotation system, but the Common Stock is regularly quoted by a
    recognized securities dealer, its Fair Market Value shall be the
    mean of the high bid and low asked prices for such date or, if
    there are no high bid and low asked prices for a Share on such
    date, the high bid and low asked prices for a Share on the last
    preceding date for which such information exists, as reported in
    The Wall Street Journal or such other source as the
    Administrator deems reliable; or



 



    (c) If the Common Stock is neither listed on an established
    securities exchange, national market system or automated
    quotation system nor regularly quoted by a recognized securities
    dealer, its Fair Market Value shall be established by the
    Administrator in good faith.



 



    2.26 “Full Value Award” shall mean
    any Award other than (i) an Option, (ii) a Stock
    Appreciation Right or (iii) any other Award for which the
    Holder pays the intrinsic value existing as of the date of grant
    (whether directly or by forgoing a right to receive a payment
    from the Company or any Affiliate).



 



    2.27 “Greater Than 10% Stockholder”
    shall mean an individual then owning (within the meaning of
    Section 424(d) of the Code) more than 10% of the total
    combined voting power of all classes of stock of the Company or
    any subsidiary corporation (as defined in Section 424(f) of
    the Code) or parent corporation thereof (as defined in
    Section 424(e) of the Code).



 



    2.28 “Holder” shall mean a person
    who has been granted an Award.



 



    2.29 “Incentive Stock Option” shall
    mean an Option that is intended to qualify as an incentive stock
    option and conforms to the applicable provisions of
    Section 422 of the Code.



 



    2.30 “Non-Employee Director” shall
    mean a Director of the Company who is not an Employee.



 



    2.31 “Non-Employee Director Equity Compensation
    Policy” shall have the meaning set forth in
    Section 4.6.



 



    2.32 “Non-Qualified Stock Option”
    shall mean an Option that is not an Incentive Stock Option.





    

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    2.33 “Option” shall mean a right to
    purchase Shares at a specified exercise price, granted under
    Article 6. An Option shall be either a Non-Qualified Stock
    Option or an Incentive Stock Option; provided,
    however, that Options granted to Non-Employee Directors
    and Consultants shall only be Non-Qualified Stock Options.



 



    2.34 “Option Term” shall have the
    meaning set forth in Section 6.4.



 



    2.35 “Parent” shall mean any entity
    (other than the Company), whether domestic or foreign, in an
    unbroken chain of entities ending with the Company if each of
    the entities other than the Company beneficially owns, at the
    time of the determination, securities or interests representing
    at least 50% of the total combined voting power of all classes
    of securities or interests in one of the other entities in such
    chain.



 



    2.36 “Performance Award” shall mean
    a cash bonus award, stock bonus award, performance award or
    incentive award that is paid in cash, Shares or a combination of
    both, awarded under Section 10.1.



 



    2.37 “Performance-Based
    Compensation” shall mean any compensation that is
    intended to qualify as “performance-based
    compensation” as described in Section 162(m)(4)(C) of
    the Code.



 



    2.38 “Performance Criteria” shall
    mean the criteria (and adjustments) that the Committee selects
    for an Award for purposes of establishing the Performance Goal
    or Performance Goals for a Performance Period, determined as
    follows:



 



    (a) The Performance Criteria that shall be used to
    establish Performance Goals are limited to the following:
    (i) earnings before interest, taxes, depreciation, rent and
    amortization expenses (“EBITDAR”);
    (ii) earnings before interest, taxes, depreciation and
    amortization (“EBITDA”); (iii) earnings
    before interest and taxes (“EBIT”);
    (iv) EBITDAR, EBITDA, EBIT or earnings before taxes and
    unusual or nonrecurring items as measured either against the
    annual budget or as a ratio to revenue or return on total
    capital; (v) net earnings; (vi) earnings per share;
    (vii) net income (before or after taxes);
    (viii) profit margin; (ix) operating margin;
    (x) operating income; (xi) net operating income;
    (xii) net operating income after taxes; (xiii) growth;
    (xiv) net worth; (xv) cash flow; (xvi) cash flow
    per share; (xvii) total stockholder return;
    (xviii) return on capital, assets, equity or investment;
    (xix) stock price performance; (xx) revenues;
    (xxi) revenues per available seat mile; (xxii) costs;
    (xxiii) costs per available seat mile; (xxiv) working
    capital; (xxv) capital expenditures;
    (xxvi) improvements in capital structure;
    (xxvii) economic value added; (xxviii) industry
    indices; (xxix) regulatory ratings; (xxx) customer
    satisfaction ratings; (xxxi) expenses and expense ratio
    management; (xxxii) debt reduction;
    (xxxiii) profitability of an identifiable business unit or
    product; (xxxiv) levels of expense, cost or liability by
    category, operating unit or any other delineation;
    (xxxv) implementation or completion of projects or
    processes; (xxxvi) combination of airline operating
    certificates within a specified period; (xxxvii) measures
    of operational performance (including, without limitation,
    U.S. Department of Transportation performance rankings in
    operational areas), quality, safety, productivity or process
    improvement; (xxxviii) measures of employee satisfaction or
    employee engagement, any of which may be measured either in
    absolute terms or as compared to any incremental increase or
    decrease or as compared to results of a peer group or to market
    performance indicators or indices or, where applicable, on a
    per-share or per
    seat-mile
    basis.



 



    (b) The Administrator may, in its sole discretion, provide
    that one or more objectively determinable adjustments shall be
    made to one or more of the Performance Goals. Such adjustments
    may include one or more of the following: (i) items related
    to a change in accounting principle; (ii) items relating to
    financing activities; (iii) expenses for restructuring or
    productivity initiatives; (iv) other non-operating items;
    (v) items related to acquisitions; (vi) items
    attributable to the business operations of any entity acquired
    by the Company during the Performance Period; (vii) items
    related to the disposal of a business or segment of a business;
    (viii) items related to discontinued operations that do not
    qualify as a segment of a business under Applicable Accounting
    Standards; (ix) items attributable to any stock dividend,
    stock split, combination or exchange of stock occurring during
    the Performance Period; (x) any other items of significant
    income or expense which are determined to be appropriate
    adjustments; (xi) items relating to unusual or
    extraordinary corporate transactions, events or developments,
    (xii) items related to amortization of acquired intangible
    assets; (xiii) items that are outside the scope of the
    Company’s core, on-going business activities;
    (xiv) items related to acquired in-process research and
    development; (xv) items relating to changes in tax laws;
    (xvi) items






    

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    relating to major licensing or partnership arrangements;
    (xvii) items relating to asset impairment charges;
    (xviii) items relating to gains or losses for litigation,
    arbitration and contractual settlements; or (xix) items
    relating to any other unusual or nonrecurring events or changes
    in applicable laws, accounting principles or business
    conditions. For all Awards intended to qualify as
    Performance-Based Compensation, such determinations shall be
    made within the time prescribed by, and otherwise in compliance
    with, Section 162(m) of the Code.



 



    2.39 “Performance Goals” shall
    mean, for a Performance Period, one or more goals established in
    writing by the Administrator for the Performance Period based
    upon one or more Performance Criteria. Depending on the
    Performance Criteria used to establish such Performance Goals,
    the Performance Goals may be expressed in terms of overall
    Company performance or the performance of a Subsidiary,
    division, business unit, or an individual. The achievement of
    each Performance Goal shall be determined, to the extent
    applicable, with reference to Applicable Accounting Standards.



 



    2.40 “Performance Period” shall
    mean one or more periods of time, which may be of varying and
    overlapping durations, as the Administrator may select, over
    which the attainment of one or more Performance Goals will be
    measured for the purpose of determining a Holder’s right
    to, and the payment of, an Award.



 



    2.41 “Performance Stock Unit” shall
    mean a Performance Award awarded under Section 10.1 which
    is denominated in units of value including dollar value of
    Shares.



 



    2.42 “Permitted Transferee” shall
    mean, with respect to a Holder, any “family member” of
    the Holder, as defined under the instructions to use the
    Form S-8
    Registration Statement under the Securities Act, after taking
    into account any state, federal, local or foreign tax and
    securities laws applicable to transferable Awards.



 



    2.43 “Plan” shall have the meaning
    set forth in Article 1.



 



    2.44 “Prior Plans” shall mean the
    US Airways Group, Inc. 2008 Equity Incentive Plan and the
    US Airways Group, Inc. 2005 Equity Incentive Plan, as such
    plans may be amended from time to time.



 



    2.45 “Program” shall mean any
    program adopted by the Administrator pursuant to the Plan
    containing the terms and conditions intended to govern a
    specified type of Award granted under the Plan and pursuant to
    which such type of Award may be granted under the Plan.



 



    2.46 “Restricted Stock” shall mean
    Common Stock awarded under Article 8 that is subject to
    certain restrictions and may be subject to risk of forfeiture or
    repurchase.



 



    2.47 “Restricted Stock Units” shall
    mean the right to receive Shares awarded under Article 9.



 



    2.48 “Returned Awards” shall mean
    equity awards granted under the Prior Plans which are forfeited
    or lapse unexercised and which following June 10, 2011 are
    not issued under the Prior Plans.



 



    2.49 “Securities Act” shall mean
    the Securities Act of 1933, as amended.



 



    2.50 “Shares” shall mean shares of
    Common Stock.



 



    2.51 “Stock Appreciation Right”
    shall mean a stock appreciation right granted under
    Article 11.



 



    2.52 “Stock Appreciation Right
    Term” shall have the meaning set forth in
    Section 11.4.



 



    2.53 “Stock Payment” shall mean
    (a) a payment in the form of Shares, or (b) an option
    or other right to purchase Shares, as part of a bonus, deferred
    compensation or other arrangement, awarded under
    Section 10.3.



 



    2.54 “Subsidiary” shall mean any
    entity (other than the Company), whether domestic or foreign, in
    an unbroken chain of entities beginning with the Company if each
    of the entities other than the last entity in the unbroken chain
    beneficially owns, at the time of the determination, securities
    or interests representing at least 50% of the total combined
    voting power of all classes of securities or interests in one of
    the other entities in such chain.



 



    2.55 “Substitute Award” shall mean
    an Award granted under the Plan upon the assumption of, or in
    substitution for, outstanding equity awards previously granted
    by a company or other entity in connection with a corporate
    transaction, such as a merger, combination, consolidation or
    acquisition of property or stock; provided,






    

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    however, that in no event shall the term “Substitute
    Award” be construed to refer to an award made in connection
    with the cancellation and repricing of an Option or Stock
    Appreciation Right.



 



    2.56 “Termination of Service” shall
    mean:



 



    (a) As to a Consultant, the time when the engagement of a
    Holder as a Consultant to the Company or an Affiliate is
    terminated for any reason, with or without cause, including,
    without limitation, by resignation, discharge, death or
    retirement, but excluding terminations where the Consultant
    simultaneously commences or remains in employment or service
    with the Company or any Affiliate.



 



    (b) As to a Non-Employee Director, the time when a Holder
    who is a Non-Employee Director ceases to be a Director for any
    reason, including, without limitation, a termination by
    resignation, failure to be elected, death or retirement, but
    excluding terminations where the Holder simultaneously commences
    or remains in employment or service with the Company or any
    Affiliate.



 



    (c) As to an Employee, the time when the employee-employer
    relationship between a Holder and the Company or any Affiliate
    is terminated for any reason, including, without limitation, a
    termination by resignation, discharge, death, disability or
    retirement; but excluding terminations where the Holder
    simultaneously commences or remains in employment or service
    with the Company or any Affiliate.



 



    The Administrator, in its sole discretion, shall determine the
    effect of all matters and questions relating to any Termination
    of Service, including, without limitation, the question of
    whether a Termination of Service resulted from a discharge for
    cause and all questions of whether particular leaves of absence
    constitute a Termination of Service; provided,
    however, that, with respect to Incentive Stock Options,
    unless the Administrator otherwise provides in the terms of the
    Program, the Award Agreement or otherwise, a leave of absence,
    change in status from an employee to an independent contractor
    or other change in the employee-employer relationship shall
    constitute a Termination of Service only if, and to the extent
    that, such leave of absence, change in status or other change
    interrupts employment for the purposes of Section 422(a)(2)
    of the Code and the then applicable regulations and revenue
    rulings under said Section. For purposes of the Plan, a
    Holder’s employee-employer relationship or consultancy
    relations shall be deemed to be terminated in the event that the
    Affiliate employing or contracting with such Holder ceases to
    remain an Affiliate following any merger, sale of stock or other
    corporate transaction or event (including, without limitation, a
    spin-off).



 



    2.57 “US Airways” shall mean US
    Airways, Inc., a Delaware corporation.



 




    ARTICLE 3.

    



 




    SHARES SUBJECT
    TO THE PLAN
    



 



    3.1 Number of Shares.



 



    (a) Subject to adjustment as provided in
    Section 3.1(b) and Section 14.2, the aggregate number
    of Shares which may be issued or transferred pursuant to Awards
    under the Plan is (i) 15,000,000, plus (ii) any Shares
    which as of June 10, 2011 are available for issuance under
    the Prior Plans, plus (iii) any Shares that are subject to
    the Returned Awards; provided, however,
    that no more than a total of (y) 12,500,000 Shares
    plus (z) the number of Shares that are subject to Returned
    Awards that are full value awards shall be authorized for grant
    as Full Value Awards; provided, further, that, no
    more than a total of 15,000,000 Shares may be issued upon
    the exercise of Incentive Stock Options.



 



    (b) The following Shares shall not be added to the Shares
    authorized for grant under Section 3.1(a) and will not be
    available for future grants of Awards: (i) Shares tendered
    by a Holder or withheld by the Company in payment of the
    exercise price of an Option; (ii) Shares tendered by the
    Holder or withheld by the Company to satisfy any tax withholding
    obligation with respect to an Award; (iii) Shares subject
    to a Stock Appreciation Right that are not issued in connection
    with the stock settlement of the Stock Appreciation Right on
    exercise thereof; and (iv) Shares purchased on the open
    market with the cash proceeds from the exercise of Options.
    Notwithstanding anything to the contrary contained herein, if
    any Shares subject to an Award are forfeited or expire or an
    Award is settled for cash (in whole or in part) shall again be
    available for Awards under the Plan. Any Shares of Restricted
    Stock repurchased by






    

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    the Company under Section 8.4 at the same price paid by the
    Holder will again be available for Awards. The payment of
    Dividend Equivalents in cash in conjunction with any outstanding
    Awards shall not be counted against the Shares available for
    issuance under the Plan. Notwithstanding the provisions of this
    Section 3.1(b), no Shares may again be optioned, granted or
    awarded if such action would cause an Incentive Stock Option to
    fail to qualify as an incentive stock option under
    Section 422 of the Code.



 



    (c) Substitute Awards shall not reduce the Shares
    authorized for grant under the Plan. Additionally, in the event
    that a company acquired by the Company or any Affiliate or with
    which the Company or any Affiliate combines has shares available
    under a pre-existing plan approved by stockholders and not
    adopted in contemplation of such acquisition or combination, the
    shares available for grant pursuant to the terms of such
    pre-existing plan (as adjusted, to the extent appropriate, using
    the exchange ratio or other adjustment or valuation ratio or
    formula used in such acquisition or combination to determine the
    consideration payable to the holders of common stock of the
    entities party to such acquisition or combination) may be used
    for Awards under the Plan and shall not reduce the Shares
    authorized for grant under the Plan; provided, that
    Awards using such available Shares shall not be made after the
    date awards or grants could have been made under the terms of
    the pre-existing plan, absent the acquisition or combination,
    and shall only be made to individuals who were not employed by
    or providing services to the Company or its Affiliates
    immediately prior to such acquisition or combination.



 



    3.2 Stock Distributed.  Any Shares
    distributed pursuant to an Award may consist, in whole or in
    part, of authorized and unissued Common Stock, treasury Common
    Stock or Common Stock purchased on the open market.



 



    3.3 Limitation on Number of Shares Subject to
    Awards.  Notwithstanding any provision in the
    Plan to the contrary, and subject to Section 14.2, the
    maximum aggregate number of Shares with respect to one or more
    Awards that may be granted to any one person during any calendar
    year shall be 2,200,000 and the maximum aggregate amount of cash
    that may be paid in cash to any one person during any calendar
    year with respect to one or more Awards payable in cash shall be
    $5,000,000.



 



    3.4 Full Value Award Vesting
    Limitations.  Notwithstanding any other
    provision of the Plan to the contrary, Full Value Awards made to
    Eligible Individuals shall become vested in one or more
    installments over an aggregate period of not less than three
    years (or, in the case of vesting based upon the attainment of
    Performance Goals or other performance-based objectives, over a
    period of not less than one year measured from the commencement
    of the period over which performance is evaluated) following the
    date the Award is made; provided, however, that,
    notwithstanding the foregoing, (a) the Administrator may
    provide that such vesting restrictions may lapse or be waived
    upon the Holder’s death, disability, retirement, any other
    specified Termination of Service or the consummation of a Change
    in Control, (b) Full Value Awards may be granted as part of
    Non-Employee Director retainers without respect to such minimum
    vesting provisions and (c) Full Value Awards that result in
    the issuance of an aggregate of up to 10% of the Shares
    available pursuant to Section 3.1(a) may be granted to any
    one or more Holders without respect to such minimum vesting
    provisions.



 




    ARTICLE 4.

    



 




    GRANTING OF
    AWARDS
    



 



    4.1 Participation.  The
    Administrator may, from time to time, select from among all
    Eligible Individuals, those to whom an Award shall be granted
    and shall determine the nature and amount of each Award, which
    shall not be inconsistent with the requirements of the Plan.
    Except as provided in Section 4.6 regarding the grant of
    Awards pursuant to the Non-Employee Director Equity Compensation
    Policy, no Eligible Individual shall have any right to be
    granted an Award pursuant to the Plan.



 



    4.2 Award Agreement.  Each Award
    shall be evidenced by an Award Agreement that sets forth the
    terms, conditions and limitations for such Award, which may
    include the term of the Award, the provisions applicable in the
    event of the Holder’s Termination of Service, and the
    Company’s authority to unilaterally or bilaterally amend,
    modify, suspend, cancel or rescind an Award. Award Agreements
    evidencing Awards intended to qualify as Performance-Based
    Compensation shall contain such terms and conditions as may be
    necessary to meet the applicable provisions of
    Section 162(m) of the Code. Award Agreements evidencing
    Incentive Stock Options shall contain such terms and conditions
    as may be necessary to meet the applicable provisions of
    Section 422 of the Code.





    

    7








 







    4.3 Limitations Applicable to
    Section 16 Persons.  Notwithstanding
    any other provision of the Plan, the Plan, and any Award granted
    or awarded to any individual who is then subject to
    Section 16 of the Exchange Act, shall be subject to any
    additional limitations set forth in any applicable exemptive
    rule under Section 16 of the Exchange Act (including
    Rule 16b-3
    of the Exchange Act and any amendments thereto) that are
    requirements for the application of such exemptive rule. To the
    extent permitted by applicable law, the Plan and Awards granted
    or awarded hereunder shall be deemed amended to the extent
    necessary to conform to such applicable exemptive rule.



 



    4.4 At-Will Employment; Voluntary
    Participation.  Nothing in the Plan or in any
    Program or Award Agreement hereunder shall confer upon any
    Holder any right to continue in the employ of, or as a Director
    or Consultant for, the Company or any Affiliate, or shall
    interfere with or restrict in any way the rights of the Company
    and any Affiliate, which rights are hereby expressly reserved,
    to discharge any Holder at any time for any reason whatsoever,
    with or without cause, and with or without notice, or to
    terminate or change all other terms and conditions of employment
    or engagement, except to the extent expressly provided otherwise
    in a written agreement between the Holder and the Company or any
    Affiliate. Participation by each Holder in the Plan shall be
    voluntary and nothing in the Plan shall be construed as
    mandating that any Eligible Individual shall participate in the
    Plan.



 



    4.5 Foreign
    Holders.  Notwithstanding any provision of the
    Plan to the contrary, in order to comply with the laws in
    countries other than the United States in which the Company and
    its Affiliates operate or have Employees, Non-Employee Directors
    or Consultants, or in order to comply with the requirements of
    any foreign securities exchange, the Administrator, in its sole
    discretion, shall have the power and authority to:
    (a) determine which Affiliates shall be covered by the
    Plan; (b) determine which Eligible Individuals outside the
    United States are eligible to participate in the Plan;
    (c) modify the terms and conditions of any Award granted to
    Eligible Individuals outside the United States to comply with
    applicable foreign laws or listing requirements of any such
    foreign securities exchange; (d) establish subplans and
    modify exercise procedures and other terms and procedures, to
    the extent such actions may be necessary or advisable (any such
    subplans
    and/or
    modifications shall be attached to the Plan as appendices);
    provided, however, that no such subplans
    and/or
    modifications shall increase the Share limitations contained in
    Sections 3.1 and 3.3; and (e) take any action, before
    or after an Award is made, that it deems advisable to obtain
    approval or comply with any necessary local governmental
    regulatory exemptions or approvals or listing requirements of
    any such foreign securities exchange. Notwithstanding the
    foregoing, the Administrator may not take any actions hereunder,
    and no Awards shall be granted, that would violate the Code, the
    Exchange Act, the Securities Act, any other securities law or
    governing statute, the rules of the securities exchange or
    automated quotation system on which the Shares are listed,
    quoted or traded or any other applicable law. For purposes of
    the Plan, all references to foreign laws, rules, regulations or
    taxes shall be references to the laws, rules, regulations and
    taxes of any applicable jurisdiction other than the United
    States or a political subdivision thereof.



 



    4.6 Non-Employee Director
    Awards.  The Administrator may, in its sole
    discretion, provide that Awards granted to Non-Employee
    Directors shall be granted pursuant to a written
    non-discretionary formula established by the Administrator (the
    “Non-Employee Director Equity Compensation
    Policy”), subject to the limitations of the Plan. The
    Non-Employee Director Equity Compensation Policy shall set forth
    the type of Award(s) to be granted to Non-Employee Directors,
    the number of Shares to be subject to Non-Employee Director
    Awards, the conditions on which such Awards shall be granted,
    become exercisable
    and/or
    payable and expire, and such other terms and conditions as the
    Administrator shall determine in its sole discretion. The
    Non-Employee Director Equity Compensation Policy may be modified
    by the Administrator from time to time in its sole discretion.



 



    4.7 Stand-Alone and Tandem
    Awards.  Awards granted pursuant to the Plan
    may, in the sole discretion of the Administrator, be granted
    either alone, in addition to, or in tandem with, any other Award
    granted pursuant to the Plan. Awards granted in addition to or
    in tandem with other Awards may be granted either at the same
    time as or at a different time from the grant of such other
    Awards.





    

    8








 








    ARTICLE 5.

    



 




    PROVISIONS
    APPLICABLE TO AWARDS INTENDED TO QUALIFY AS 

    





    PERFORMANCE-BASED
    COMPENSATION.
    



 



    5.1 Purpose.  The Committee, in its
    sole discretion, may determine at the time an Award is granted
    or at any time thereafter whether such Award is intended to
    qualify as Performance-Based Compensation. If the Committee, in
    its sole discretion, decides to grant an Award to an Eligible
    Individual that is intended to qualify as Performance-Based
    Compensation, then the provisions of this Article 5 shall
    control over any contrary provision contained in the Plan. The
    Administrator may in its sole discretion grant Awards to
    Eligible Individuals that are based on Performance Criteria or
    Performance Goals but that do not satisfy the requirements of
    this Article 5 and that are not intended to qualify as
    Performance-Based Compensation. Unless otherwise specified by
    the Administrator at the time of grant, the Performance Criteria
    with respect to an Award intended to be Performance-Based
    Compensation payable to a Covered Employee shall be determined
    on the basis of Applicable Accounting Standards.



 



    5.2 Applicability.  The grant of an
    Award to an Eligible Individual for a particular Performance
    Period shall not require the grant of an Award to such
    Individual in any subsequent Performance Period and the grant of
    an Award to any one Eligible Individual shall not require the
    grant of an Award to any other Eligible Individual in such
    period or in any other period.



 



    5.3 Types of
    Awards.  Notwithstanding anything in the Plan
    to the contrary, the Committee may grant any Award to an
    Eligible Individual intended to qualify as Performance-Based
    Compensation, including, without limitation, Restricted Stock
    the restrictions with respect to which lapse upon the attainment
    of specified Performance Goals, Restricted Stock Units that vest
    and become payable upon the attainment of specified Performance
    Goals and any Performance Awards described in Article 10
    that vest or become exercisable or payable upon the attainment
    of one or more specified Performance Goals.



 



    5.4 Procedures with Respect to Performance-Based
    Awards.  To the extent necessary to comply
    with the requirements of Section 162(m)(4)(C) of the Code,
    with respect to any Award granted to one or more Eligible
    Individuals which is intended to qualify as Performance-Based
    Compensation, no later than 90 days following the
    commencement of any Performance Period or any designated fiscal
    period or period of service (or such earlier time as may be
    required under Section 162(m) of the Code), the Committee
    shall, in writing, (a) designate one or more Eligible
    Individuals, (b) select the Performance Criteria applicable
    to the Performance Period, (c) establish the Performance
    Goals, and amounts of such Awards, as applicable, which may be
    earned for such Performance Period based on the Performance
    Criteria, and (d) specify the relationship between
    Performance Criteria and the Performance Goals and the amounts
    of such Awards, as applicable, to be earned by each Covered
    Employee for such Performance Period. Following the completion
    of each Performance Period, the Committee shall certify in
    writing whether and the extent to which the applicable
    Performance Goals have been achieved for such Performance
    Period. In determining the amount earned under such Awards, the
    Committee shall have the right to reduce or eliminate (but not
    to increase) the amount payable at a given level of performance
    to take into account additional factors that the Committee may
    deem relevant, including the assessment of individual or
    corporate performance for the Performance Period.



 



    5.5 Payment of Performance-Based
    Awards.  Unless otherwise provided in the
    applicable Program or Award Agreement and only to the extent
    otherwise permitted by Section 162(m)(4)(C) of the Code, as
    to an Award that is intended to qualify as Performance-Based
    Compensation, the Holder must be employed by the Company or an
    Affiliate throughout the Performance Period. Unless otherwise
    provided in the applicable Performance Goals, Program or Award
    Agreement, a Holder shall be eligible to receive payment
    pursuant to such Awards for a Performance Period only if and to
    the extent the Performance Goals for such period are achieved.



 



    5.6 Additional
    Limitations.  Notwithstanding any other
    provision of the Plan and except as otherwise determined by the
    Administrator, any Award which is granted to an Eligible
    Individual and is intended to qualify as Performance-Based
    Compensation shall be subject to any additional limitations set
    forth in Section 162(m) of the Code or any regulations or
    rulings issued thereunder that are requirements for






    

    9








 







    qualification as Performance-Based Compensation, and the Plan,
    the applicable Program and Award Agreement shall be deemed
    amended to the extent necessary to conform to such requirements.



 




    ARTICLE 6.

    



 




    GRANTING OF
    OPTIONS
    



 



    6.1 Granting of Options to Eligible
    Individuals.  The Administrator is authorized
    to grant Options to Eligible Individuals from time to time, in
    its sole discretion, on such terms and conditions as it may
    determine which shall not be inconsistent with the Plan.



 



    6.2 Qualification of Incentive Stock
    Options.  No Incentive Stock Option shall be
    granted to any person who is not an Employee of the Company or
    any subsidiary corporation (as defined in Section 424(f) of
    the Code) of the Company. No person who qualifies as a Greater
    Than 10% Stockholder may be granted an Incentive Stock Option
    unless such Incentive Stock Option conforms to the applicable
    provisions of Section 422 of the Code. Any Incentive Stock
    Option granted under the Plan may be modified by the
    Administrator, with the consent of the Holder, to disqualify
    such Option from treatment as an “incentive stock
    option” under Section 422 of the Code. To the extent
    that the aggregate Fair Market Value of stock with respect to
    which “incentive stock options” (within the meaning of
    Section 422 of the Code, but without regard to
    Section 422(d) of the Code) are exercisable for the first
    time by a Holder during any calendar year under the Plan, and
    all other plans of the Company and any parent or subsidiary
    corporation thereof (each as defined in Section 424(e) and
    (f) of the Code, respectively), exceeds $100,000, the
    Options shall be treated as Non-Qualified Stock Options to the
    extent required by Section 422 of the Code. The rule set
    forth in the immediately preceding sentence shall be applied by
    taking Options and other “incentive stock options”
    into account in the order in which they were granted and the
    Fair Market Value of stock shall be determined as of the time
    the respective options were granted.



 



    6.3 Option Exercise Price.  The
    exercise price per Share subject to each Option shall be set by
    the Administrator, but shall not be less than 100% of the Fair
    Market Value of a Share on the date the Option is granted (or,
    as to Incentive Stock Options, on the date the Option is
    modified, extended or renewed for purposes of Section 424(h) of
    the Code). In addition, in the case of Incentive Stock Options
    granted to a Greater Than 10% Stockholder, such price shall not
    be less than 110% of the Fair Market Value of a Share on the
    date the Option is granted (or the date the Option is modified,
    extended or renewed for purposes of Section 424(h) of the
    Code).



 



    6.4 Option Term.  The term of each
    Option (the “Option Term”) shall be set by the
    Administrator in its sole discretion; provided,
    however, that the Option Term shall not be more than
    10 years from the date the Option is granted, or five years
    from the date an Incentive Stock Option is granted to a Greater
    Than 10% Stockholder. The Administrator shall determine the time
    period, including the time period following a Termination of
    Service, during which the Holder has the right to exercise the
    vested Options, which time period may not extend beyond the last
    day of the Option Term. Except as limited by the requirements of
    Section 409A or Section 422 of the Code and
    regulations and rulings thereunder, the Administrator may extend
    the Option Term of any outstanding Option, and may extend the
    time period during which vested Options may be exercised, in
    connection with any Termination of Service of the Holder, and
    may amend, subject to Section 14.1, any other term or
    condition of such Option relating to such a Termination of
    Service.



 



    6.5 Option Vesting.



 



    (a) The period during which the right to exercise, in whole
    or in part, an Option vests in the Holder shall be set by the
    Administrator and the Administrator may determine that an Option
    may not be exercised in whole or in part for a specified period
    after it is granted. Such vesting may be based on service with
    the Company or any Affiliate, any of the Performance Criteria,
    or any other criteria selected by the Administrator. Except as
    limited by the Plan, at any time after grant of an Option, the
    Administrator may, in its sole discretion and subject to
    whatever terms and conditions it selects, accelerate the period
    during which an Option vests.



 



    (b) No portion of an Option which is unexercisable at a
    Holder’s Termination of Service shall thereafter become
    exercisable, except as may be otherwise provided by the
    Administrator either in the applicable Program, the






    

    10








 







    Award Agreement evidencing the grant of an Option, or by action
    of the Administrator following the grant of the Option.



 



    6.6 Substitute
    Awards.  Notwithstanding the foregoing
    provisions of this Article 6 to the contrary, in the case
    of an Option that is a Substitute Award, the price per share of
    the Shares subject to such Option may be less than the Fair
    Market Value per share on the date of grant; provided
    that the excess of: (a) the aggregate Fair Market Value (as
    of the date such Substitute Award is granted) of the shares
    subject to the Substitute Award, over (b) the aggregate
    exercise price thereof does not exceed the excess of:
    (x) the aggregate fair market value (as of the time
    immediately preceding the transaction giving rise to the
    Substitute Award, such fair market value to be determined by the
    Administrator) of the shares of the predecessor entity that were
    subject to the grant assumed or substituted for by the Company,
    over (y) the aggregate exercise price of such shares.



 



    6.7 Substitution of Stock Appreciation
    Rights.  The Administrator may provide in the
    applicable Program or the Award Agreement evidencing the grant
    of an Option that the Administrator, in its sole discretion,
    shall have the right to substitute a Stock Appreciation Right
    for such Option at any time prior to or upon exercise of such
    Option; provided that such Stock Appreciation Right shall
    be exercisable with respect to the same number of Shares for
    which such substituted Option would have been exercisable, and
    shall also have the same exercise price, vesting schedule and
    remaining Option Term as the substituted Option.



 




    ARTICLE 7.

    



 




    EXERCISE OF
    OPTIONS
    



 



    7.1 Partial Exercise.  An
    exercisable Option may be exercised in whole or in part.
    However, an Option shall not be exercisable with respect to
    fractional Shares and the Administrator may require that, by the
    terms of the Option, a partial exercise must be with respect to
    a minimum number of Shares.



 



    7.2 Manner of Exercise.  All or a
    portion of an exercisable Option shall be deemed exercised upon
    delivery of all of the following to the Secretary of the
    Company, the stock administrator of the Company or such other
    person or entity designated by the Administrator, or his, her or
    its office, as applicable:



 



    (a) A written or electronic notice complying with the
    applicable rules established by the Administrator stating that
    the Option, or a portion thereof, is exercised. The notice shall
    be signed by the Holder or other person then entitled to
    exercise the Option or such portion of the Option;



 



    (b) Such representations and documents as the
    Administrator, in its sole discretion, deems necessary or
    advisable to effect compliance with all applicable provisions of
    the Securities Act and any other federal, state or foreign
    securities laws or regulations, the rules of any securities
    exchange or automated quotation system on which the Shares are
    listed, quoted or traded or any other applicable law. The
    Administrator may, in its sole discretion, also take whatever
    additional actions it deems appropriate to effect such
    compliance including, without limitation, placing legends on
    share certificates and issuing stop-transfer notices to agents
    and registrars;



 



    (c) In the event that the Option shall be exercised
    pursuant to Section 12.3 by any person or persons other
    than the Holder, appropriate proof of the right of such person
    or persons to exercise the Option, as determined in the sole
    discretion of the Administrator; and



 



    (d) Full payment of the exercise price and applicable
    withholding taxes to the stock administrator of the Company for
    the Shares with respect to which the Option, or portion thereof,
    is exercised, in a manner permitted by Section 12.1 and
    12.2.



 



    7.3 Notification Regarding
    Disposition.  The Holder shall give the
    Company prompt written or electronic notice of any disposition
    of Shares acquired by exercise of an Incentive Stock Option
    which occurs within (a) two years from the date of granting
    (including the date the Option is modified, extended or renewed
    for purposes of Section 424(h) of the Code) such Option to
    such Holder, or (b) one year after the transfer of such
    Shares to such Holder.





    

    11








 








    ARTICLE 8.

    



 




    AWARD OF
    RESTRICTED STOCK
    



 



    8.1 Award of Restricted Stock.



 



    (a) The Administrator is authorized to grant Restricted
    Stock to Eligible Individuals, and shall determine the terms and
    conditions, including the restrictions applicable to each award
    of Restricted Stock, which terms and conditions shall not be
    inconsistent with the Plan, and may impose such conditions on
    the issuance of such Restricted Stock as it deems appropriate.



 



    (b) The Administrator shall establish the purchase price,
    if any, and form of payment for Restricted Stock;
    provided, however, that if a purchase price is
    charged, such purchase price shall be no less than the par
    value, if any, of the Shares to be purchased, unless otherwise
    permitted by applicable law. In all cases, legal consideration
    shall be required for each issuance of Restricted Stock.



 



    8.2 Rights as
    Stockholders.  Subject to Section 8.4,
    upon issuance of Restricted Stock, the Holder shall have, unless
    otherwise provided by the Administrator, all the rights of a
    stockholder with respect to said Shares, subject to the
    restrictions in the applicable Program or in each individual
    Award Agreement, including the right to receive all dividends
    and other distributions paid or made with respect to the Shares;
    provided, however, that, in the sole discretion of
    the Administrator, any extraordinary distributions with respect
    to the Shares shall be subject to the restrictions set forth in
    Section 8.3. In addition, with respect to a share of
    Restricted Stock with performance-based vesting, dividends which
    are paid prior to vesting shall only be paid out to the Holder
    to the extent that the performance-based vesting conditions are
    subsequently satisfied and the share of Restricted Stock vests.



 



    8.3 Restrictions.  All shares of
    Restricted Stock (including any shares received by Holders
    thereof with respect to shares of Restricted Stock as a result
    of stock dividends, stock splits or any other form of
    recapitalization) shall, in the terms of the applicable Program
    or in each individual Award Agreement, be subject to such
    restrictions and vesting requirements as the Administrator shall
    provide. Such restrictions may include, without limitation,
    restrictions concerning voting rights and transferability and
    such restrictions may lapse separately or in combination at such
    times and pursuant to such circumstances or based on such
    criteria as selected by the Administrator, including, without
    limitation, criteria based on the Holder’s duration of
    employment, directorship or consultancy with the Company, the
    Performance Criteria, Company performance, individual
    performance or other criteria selected by the Administrator. By
    action taken after the Restricted Stock is issued, the
    Administrator may, on such terms and conditions as it may
    determine to be appropriate, accelerate the vesting of such
    Restricted Stock by removing any or all of the restrictions
    imposed by the terms of the applicable Program or Award
    Agreement. Restricted Stock may not be sold or encumbered until
    all restrictions are terminated or expire.



 



    8.4 Repurchase or Forfeiture of Restricted
    Stock.  Except as otherwise determined by the
    Administrator at the time of the grant of the Award or
    thereafter, if no price was paid by the Holder for the
    Restricted Stock, upon a Termination of Service during the
    applicable restriction period, the Holder’s rights in
    unvested Restricted Stock then subject to restrictions shall
    lapse, and such Restricted Stock shall be surrendered to the
    Company and cancelled without consideration. If a price was paid
    by the Holder for the Restricted Stock, upon a Termination of
    Service during the applicable restriction period, the Company
    shall have the right to repurchase from the Holder the unvested
    Restricted Stock then subject to restrictions at a cash price
    per share equal to the price paid by the Holder for such
    Restricted Stock or such other amount as may be specified in the
    applicable Program or Award Agreement. Notwithstanding the
    foregoing, except as otherwise provided by Section 3.4, the
    Administrator in its sole discretion may provide that upon
    certain events, including a Change in Control, the Holder’s
    death, retirement or disability or any other specified
    Termination of Service or any other event, the Holder’s
    rights in unvested Restricted Stock shall not lapse, such
    Restricted Stock shall vest and, if applicable, the Company
    shall not have a right of repurchase.



 



    8.5 Certificates for Restricted
    Stock.  Restricted Stock granted pursuant to
    the Plan may be evidenced in such manner as the Administrator
    shall determine. Certificates or book entries evidencing shares
    of Restricted Stock shall include an appropriate legend
    referring to the terms, conditions, and restrictions applicable
    to such Restricted Stock. The Company may, in its sole
    discretion, (a) retain physical possession of any stock
    certificate evidencing shares of Restricted Stock until the
    restrictions thereon shall have lapsed
    and/or
    (b) require that the stock certificates evidencing shares
    of Restricted Stock be held in custody by a designated escrow
    agent (which may but need not be






    

    12








 







    the Company) until the restrictions thereon shall have lapsed,
    and that the Holder deliver a stock power, endorsed in blank,
    relating to such Restricted Stock.



 



    8.6 Section 83(b)
    Election.  If a Holder makes an election under
    Section 83(b) of the Code to be taxed with respect to the
    Restricted Stock as of the date of transfer of the Restricted
    Stock rather than as of the date or dates upon which the Holder
    would otherwise be taxable under Section 83(a) of the Code,
    the Holder shall be required to deliver a copy of such election
    to the Company promptly after filing such election with the
    Internal Revenue Service along with proof of the timely filing
    thereof with the Internal Revenue Service.



 




    ARTICLE 9.

    



 




    AWARD OF
    RESTRICTED STOCK UNITS
    



 



    9.1 Grant of Restricted Stock
    Units.  The Administrator is authorized to
    grant Awards of Restricted Stock Units to any Eligible
    Individual selected by the Administrator in such amounts and
    subject to such terms and conditions as determined by the
    Administrator.



 



    9.2 Term.  Except as otherwise
    provided herein, the term of a Restricted Stock Unit award shall
    be set by the Administrator in its sole discretion.



 



    9.3 Purchase Price.  The
    Administrator shall specify the purchase price, if any, to be
    paid by the Holder to the Company with respect to any Restricted
    Stock Unit award; provided, however, that value of
    the consideration shall not be less than the par value of a
    Share, unless otherwise permitted by applicable law.



 



    9.4 Vesting of Restricted Stock
    Units.  At the time of grant, the
    Administrator shall specify the date or dates on which the
    Restricted Stock Units shall become fully vested and
    nonforfeitable, and may specify such conditions to vesting as it
    deems appropriate, including, without limitation, vesting based
    upon the Holder’s duration of service to the Company or any
    Affiliate, one or more Performance Criteria, Company
    performance, individual performance or other criteria, in each
    case on a specified date or dates or over any period or periods,
    as determined by the Administrator, subject to Section 3.4.



 



    9.5 Maturity and Payment.  At the
    time of grant, the Administrator shall specify the maturity date
    applicable to each grant of Restricted Stock Units which shall
    be no earlier than the vesting date or dates of the Award and
    may be determined at the election of the Holder (if permitted by
    the applicable Award Agreement); provided that, except as
    otherwise determined by the Administrator, set forth in any
    applicable Award Agreement, and subject to compliance with
    Section 409A of the Code, in no event shall the maturity
    date relating to each Restricted Stock Unit occur following the
    later of (a) the 15th day of the third month following the
    end of calendar year in which the Restricted Stock Unit vests;
    or (b) the 15th day of the third month following the end of
    the Company’s fiscal year in which the Restricted Stock
    Unit vests. On the maturity date, the Company shall, subject to
    Section 12.4(e), transfer to the Holder one unrestricted,
    fully transferable Share for each Restricted Stock Unit
    scheduled to be paid out on such date and not previously
    forfeited, or in the sole discretion of the Administrator, an
    amount in cash equal to the Fair Market Value of such Shares on
    the maturity date or a combination of cash and Common Stock as
    determined by the Administrator.



 



    9.6 Payment upon Termination of
    Service.  An Award of Restricted Stock Units
    shall only be payable while the Holder is an Employee, a
    Consultant or a member of the Board, as applicable;
    provided, however, that the Administrator, in its
    sole and absolute discretion may provide (in an Award Agreement
    or otherwise) that a Restricted Stock Unit award may be paid
    subsequent to a Termination of Service in certain events,
    including a Change in Control, the Holder’s death,
    retirement or disability or any other specified Termination of
    Service.



 



    9.7 No Rights as a
    Stockholder.  Unless otherwise determined by
    the Administrator, a Holder who is awarded Restricted Stock
    Units shall possess no incidents of ownership with respect to
    the Shares represented by such Restricted Stock Units, unless
    and until the same are transferred to the Holder pursuant to the
    terms of this Plan and the Award Agreement.



 



    9.8 Dividend Equivalents.  Subject
    to Section 10.2, the Administrator may, in its sole
    discretion, provide that Dividend Equivalents shall be earned by
    a Holder of Restricted Stock Units based on dividends declared
    on the






    

    13








 







    Common Stock, to be credited as of dividend payment dates during
    the period between the date an Award of Restricted Stock Units
    is granted to a Holder and the maturity date of such Award.



 




    ARTICLE 10.

    



 




    AWARD OF
    PERFORMANCE AWARDS, DIVIDEND EQUIVALENTS, STOCK PAYMENTS, 

    





    DEFERRED
    STOCK, DEFERRED STOCK UNITS
    



 



    10.1 Performance Awards.



 



    (a) The Administrator is authorized to grant Performance
    Awards, including Awards of Performance Stock Units, to any
    Eligible Individual and to determine whether such Performance
    Awards shall be Performance-Based Compensation. The value of
    Performance Awards, including Performance Stock Units, may be
    linked to any one or more of the Performance Criteria or other
    criteria determined by the Administrator, in each case on a
    specified date or dates or over any period or periods determined
    by the Administrator. Performance Awards, including Performance
    Stock Unit awards may be paid in cash, Shares, or a combination
    of cash and Shares, as determined by the Administrator.



 



    (b) Without limiting Section 10.1(a), the
    Administrator may grant Performance Awards to any Eligible
    Individual in the form of a cash bonus payable upon the
    attainment of objective Performance Goals, or such other
    criteria, whether or not objective, which are established by the
    Administrator, in each case on a specified date or dates or over
    any period or periods determined by the Administrator. Any such
    bonuses paid to a Holder which are intended to be
    Performance-Based Compensation shall be based upon objectively
    determinable bonus formulas established in accordance with the
    provisions of Article 5.



 



    10.2 Dividend Equivalents.



 



    (a) Dividend Equivalents may be granted by the
    Administrator based on dividends declared on the Common Stock,
    to be credited as of dividend payment dates during the period
    between the date an Award is granted to a Holder and the date
    such Award vests, is exercised, is distributed or expires, as
    determined by the Administrator. Such Dividend Equivalents shall
    be converted to cash or additional Shares by such formula and at
    such time and subject to such limitations as may be determined
    by the Administrator. In addition, Dividend Equivalents with
    respect to an Award with performance-based vesting that are
    based on dividends paid prior to the vesting of such Award shall
    only be paid out to the Holder to the extent that the
    performance-based vesting conditions are subsequently satisfied
    and the Award vests.



 



    (b) Notwithstanding the foregoing, no Dividend Equivalents
    shall be payable with respect to Options or Stock Appreciation
    Rights.



 



    10.3 Stock Payments.  The
    Administrator is authorized to make Stock Payments to any
    Eligible Individual. The number or value of shares of any Stock
    Payment shall be determined by the Administrator and may be
    based upon one or more Performance Criteria or any other
    criteria, including service to the Company or any Affiliate,
    determined by the Administrator. Shares underlying a Stock
    Payment which is subject to a vesting schedule or other
    conditions or criteria set by the Administrator shall not be
    issued until those conditions have been satisfied. Unless
    otherwise provided by the Administrator, a Holder of a Stock
    Payment shall have no rights as a Company stockholder with
    respect to such Stock Payment until such time as the Stock
    Payment has vested and the Shares underlying the Award have been
    issued to the Holder. Stock Payments may, but are not required
    to, be made in lieu of base salary, bonus, fees or other cash
    compensation otherwise payable to such Eligible Individual.



 



    10.4 Deferred Stock.  The
    Administrator is authorized to grant Deferred Stock to any
    Eligible Individual. The number of shares of Deferred Stock
    shall be determined by the Administrator and may (but is not
    required to) be based on one or more Performance Criteria or
    other criteria, including service to the Company or any
    Affiliate, as the Administrator determines, in each case on a
    specified date or dates or over any period or periods determined
    by the Administrator. Shares underlying a Deferred Stock award
    which is subject to a vesting schedule or other conditions or
    criteria set by the Administrator will be issued on the vesting
    date(s) or date(s) that those conditions and criteria have been
    satisfied, as applicable. Unless otherwise provided by the
    Administrator, a Holder of Deferred Stock shall have no rights
    as a Company stockholder with respect to such Deferred Stock
    until such time as






    

    14








 







    the Award has vested and any other applicable conditions
    and/or
    criteria have been satisfied and the Shares underlying the Award
    have been issued to the Holder.



 



    10.5 Deferred Stock Units.  The
    Administrator is authorized to grant Deferred Stock Units to any
    Eligible Individual. The number of Deferred Stock Units shall be
    determined by the Administrator and may (but is not required to)
    be based on one or more Performance Criteria or other criteria,
    including service to the Company or any Affiliate, as the
    Administrator determines, in each case on a specified date or
    dates or over any period or periods determined by the
    Administrator. Each Deferred Stock Unit shall entitle the Holder
    thereof to receive one Share on the date the Deferred Stock Unit
    becomes vested or upon a specified settlement date thereafter
    (which settlement date may (but is not required to) be the date
    of the Holder’s Termination of Service). Shares underlying
    a Deferred Stock Unit award which is subject to a vesting
    schedule or other conditions or criteria set by the
    Administrator will not be issued until on or following the date
    that those conditions and criteria have been satisfied. Unless
    otherwise provided by the Administrator, a Holder of Deferred
    Stock Units shall have no rights as a Company stockholder with
    respect to such Deferred Stock Units until such time as the
    Award has vested and any other applicable conditions
    and/or
    criteria have been satisfied and the Shares underlying the Award
    have been issued to the Holder.



 



    10.6 Term.  The term of a
    Performance Award, Dividend Equivalent award, Stock Payment
    award, Deferred Stock award
    and/or
    Deferred Stock Unit award shall be established by the
    Administrator in its sole discretion.



 



    10.7 Purchase Price.  The
    Administrator may establish the purchase price of a Performance
    Award, Shares distributed as a Stock Payment award, Shares of
    Deferred Stock or Shares distributed pursuant to a Deferred
    Stock Unit award; provided, however, that value of
    the consideration shall not be less than the par value of a
    Share, unless otherwise permitted by applicable law.



 



    10.8 Termination of Service.  A
    Performance Award, Stock Payment award, Dividend Equivalent
    award, Deferred Stock award
    and/or
    Deferred Stock Unit award is distributable only while the Holder
    is an Employee, Director or Consultant, as applicable. The
    Administrator, however, in its sole discretion may provide that
    the Performance Award, Dividend Equivalent award, Stock Payment
    award, Deferred Stock award
    and/or
    Deferred Stock Unit award may be distributed subsequent to a
    Termination of Service in certain events, including a Change in
    Control, the Holder’s death, retirement or disability or
    any other specified Termination of Service.



 




    ARTICLE 11.

    



 




    AWARD OF
    STOCK APPRECIATION RIGHTS
    



 



    11.1 Grant of Stock Appreciation Rights.



 



    (a) The Administrator is authorized to grant Stock
    Appreciation Rights to Eligible Individuals from time to time,
    in its sole discretion, on such terms and conditions as it may
    determine which shall not be inconsistent with the Plan.



 



    (b) A Stock Appreciation Right shall entitle the Holder (or
    other person entitled to exercise the Stock Appreciation Right
    pursuant to the Plan) to exercise all or a specified portion of
    the Stock Appreciation Right (to the extent then exercisable
    pursuant to its terms) and to receive from the Company an amount
    determined by multiplying the difference obtained by subtracting
    the exercise price per share of the Stock Appreciation Right
    from the fair market value at the time of exercise of the Stock
    Appreciation Right by the number of Shares with respect to which
    the Stock Appreciation Right shall have been exercised, subject
    to any limitations the Administrator may impose. Except as
    described in (c) below, the exercise price per Share
    subject to each Stock Appreciation Right shall be set by the
    Administrator, but shall not be less than 100% of the Fair
    Market Value on the date the Stock Appreciation Right is granted.



 



    (c) Notwithstanding the foregoing provisions of
    Section 11.1(b) to the contrary, in the case of an Stock
    Appreciation Right that is a Substitute Award, the price per
    share of the Shares subject to such Stock Appreciation Right may
    be less than the Fair Market Value per share on the date of
    grant; provided that the excess of: (i) the
    aggregate Fair Market Value (as of the date such Substitute
    Award is granted) of the shares subject to the Substitute Award,
    over (ii) the aggregate exercise price thereof does not
    exceed the excess of: (x) the aggregate fair market value
    (as of the time immediately preceding the transaction giving
    rise to the Substitute Award, such fair market






    

    15








 







    value to be determined by the Administrator) of the shares of
    the predecessor entity that were subject to the grant assumed or
    substituted for by the Company, over (y) the aggregate
    exercise price of such shares.



 



    11.2 Stock Appreciation Right Vesting.



 



    (a) The period during which the right to exercise, in whole
    or in part, a Stock Appreciation Right vests in the Holder shall
    be set by the Administrator and the Administrator may determine
    that a Stock Appreciation Right may not be exercised in whole or
    in part for a specified period after it is granted. Such vesting
    may be based on service with the Company or any Affiliate, any
    of the Performance Criteria, or any other criteria selected by
    the Administrator. Except as limited by the Plan, at any time
    after grant of a Stock Appreciation Right, the Administrator
    may, in its sole discretion and subject to whatever terms and
    conditions it selects, accelerate the period during which a
    Stock Appreciation Right vests.



 



    (b) No portion of a Stock Appreciation Right which is
    unexercisable at a Holder’s Termination of Service shall
    thereafter become exercisable, except as may be otherwise
    provided by the Administrator either in the applicable Program,
    the Award Agreement evidencing the grant of a Stock Appreciation
    Right, or by action of the Administrator following the grant of
    the Stock Appreciation Right.



 



    11.3 Manner of Exercise.  All or a
    portion of an exercisable Stock Appreciation Right shall be
    deemed exercised upon delivery of all of the following to the
    Secretary of the Company, the stock plan administrator of the
    Company, or such other person or entity designated by the
    Administrator, or his, her or its office, as applicable:



 



    (a) A written or electronic notice complying with the
    applicable rules established by the Administrator stating that
    the Stock Appreciation Right, or a portion thereof, is
    exercised. The notice shall be signed by the Holder or other
    person then entitled to exercise the Stock Appreciation Right or
    such portion of the Stock Appreciation Right;



 



    (b) Such representations and documents as the
    Administrator, in its sole discretion, deems necessary or
    advisable to effect compliance with all applicable provisions of
    the Securities Act and any other federal, state or foreign
    securities laws or regulations, the rules of any securities
    exchange or automated quotation system on which the Shares are
    listed, quoted or traded or any other applicable law. The
    Administrator may, in its sole discretion, also take whatever
    additional actions it deems appropriate to effect such
    compliance including, without limitation, placing legends on
    share certificates and issuing stop-transfer notices to agents
    and registrars;



 



    (c) In the event that the Stock Appreciation Right shall be
    exercised pursuant to this Section 11.3 by any person or
    persons other than the Holder, appropriate proof of the right of
    such person or persons to exercise the Stock Appreciation Right,
    as determined in the sole discretion of the
    Administrator; and



 



    (d) Full payment of the exercise price and applicable
    withholding taxes to the stock administrator of the Company for
    the Shares with respect to such the Stock Appreciation Rights,
    or portion thereof, is exercised, in a manner permitted by
    Section 12.1 and 12.2.



 



    11.4 Stock Appreciation Right
    Term.  The term of each Stock Appreciation
    Right (the ‘‘Stock Appreciation Right
    Term”) shall be set by the Administrator in its sole
    discretion; provided, however, that the Stock
    Appreciation Right Term shall not be more than 10 years
    from the date the Stock Appreciation Right is granted. The
    Administrator shall determine the time period, including the
    time period following a Termination of Service, during which the
    Holder has the right to exercise the vested Stock Appreciation
    Rights, which time period may not extend beyond the last day of
    the Stock Appreciation Right Term. Except as limited by the
    requirements of Section 409A of the Code and regulations
    and rulings thereunder, the Administrator may extend the Stock
    Appreciation Right Term of any outstanding Stock Appreciation
    Right, and may extend the time period during which vested Stock
    Appreciation Rights may be exercised, in connection with any
    Termination of Service of the Holder, and may amend, subject to
    Section 14.1, any other term or condition of such Stock
    Appreciation Right relating to such a Termination of Service.



 



    11.5 Payment.  Payment of the
    amounts payable with respect to Stock Appreciation Rights
    pursuant to this Article 11 shall be in cash, Shares (based
    on its fair market value as of the time the Stock Appreciation
    Right is exercised), or a combination of both, as determined by
    the Administrator.





    

    16








 








    ARTICLE 12.

    



 




    ADDITIONAL
    TERMS OF AWARDS
    



 



    12.1 Payment.  The Administrator
    shall determine the methods by which payments by any Holder with
    respect to any Awards granted under the Plan shall be made,
    including, without limitation: (a) cash or check,
    (b) Shares (including, in the case of payment of the
    exercise price of an Award, Shares issuable pursuant to the
    exercise of the Award) or Shares held for such period of time as
    may be required by the Administrator in order to avoid adverse
    accounting consequences, in each case, having a fair market
    value at the time of delivery equal to the aggregate payments
    required, (c) delivery of a written or electronic notice
    that the Holder has placed a market sell order with a broker
    with respect to Shares then issuable upon exercise or vesting of
    an Award, and that the broker has been directed to pay a
    sufficient portion of the net proceeds of the sale to the
    Company in satisfaction of the aggregate payments required;
    provided that payment of such proceeds is then made to
    the Company upon settlement of such sale, or (d) other form
    of legal consideration acceptable to the Administrator in its
    sole discretion. The Administrator shall also determine the
    methods by which Shares shall be delivered or deemed to be
    delivered to Holders. Notwithstanding any other provision of the
    Plan to the contrary, no Holder who is a Director or an
    “executive officer” of the Company within the meaning
    of Section 13(k) of the Exchange Act shall be permitted to
    make payment with respect to any Awards granted under the Plan,
    or continue any extension of credit with respect to such
    payment, with a loan from the Company or a loan arranged by the
    Company in violation of Section 13(k) of the Exchange Act.



 



    12.2 Tax Withholding.  The Company
    or any Affiliate shall have the authority and the right to
    deduct or withhold, or require a Holder to remit to the Company,
    an amount sufficient to satisfy federal, state, local and
    foreign taxes (including the Holder’s FICA, employment tax
    or other social security contribution obligation) required by
    law to be withheld with respect to any taxable event concerning
    a Holder arising as a result of the Plan. The Administrator may
    in its sole discretion and in satisfaction of the foregoing
    requirement allow a Holder to elect to have the Company withhold
    Shares otherwise issuable under an Award (or allow the surrender
    of Shares). The number of Shares which may be so withheld or
    surrendered shall be limited to the number of Shares which have
    a fair market value at the time of withholding or repurchase
    equal to the aggregate amount of such liabilities based on the
    minimum statutory withholding rates for federal, state, local
    and foreign income tax and payroll tax purposes that are
    applicable to such supplemental taxable income. The
    Administrator shall determine the fair market value of the
    Shares, consistent with applicable provisions of the Code, for
    tax withholding obligations due in connection with a
    broker-assisted cashless Option or Stock Appreciation Right
    exercise involving the sale of Shares to pay the Option or Stock
    Appreciation Right exercise price or any tax withholding
    obligation.



 



    12.3 Transferability of Awards.



 



    (a) Except as otherwise provided in Section 12.3(b):



 



    (i) No Award under the Plan may be sold, pledged, assigned
    or transferred in any manner other than by will or the laws of
    descent and distribution or, subject to the consent of the
    Administrator, pursuant to a DRO, unless and until such Award
    has been exercised, or the Shares underlying such Award have
    been issued, and all restrictions applicable to such Shares have
    lapsed;



 



    (ii) No Award or interest or right therein shall be liable
    for the debts, contracts or engagements of the Holder or his
    successors in interest or shall be subject to disposition by
    transfer, alienation, anticipation, pledge, hypothecation,
    encumbrance, assignment or any other means whether such
    disposition be voluntary or involuntary or by operation of law
    by judgment, levy, attachment, garnishment or any other legal or
    equitable proceedings (including bankruptcy), and any attempted
    disposition thereof shall be null and void and of no effect,
    except to the extent that such disposition is permitted by the
    preceding sentence; and



 



    (iii) During the lifetime of the Holder, only the Holder
    may exercise an Award (or any portion thereof) granted to him
    under the Plan, unless it has been disposed of pursuant to a
    DRO; after the death of the Holder, any exercisable portion of
    an Award may, prior to the time when such portion becomes
    unexercisable under the Plan or the applicable Program or Award
    Agreement, be exercised by his personal representative or by any
    person empowered to do so under the deceased Holder’s will
    or under the then applicable laws of descent and distribution.





    

    17








 







    (b) Notwithstanding Section 12.3(a), the
    Administrator, in its sole discretion, may determine to permit a
    Holder to transfer an Award other than an Incentive Stock Option
    to any one or more Permitted Transferees, subject to the
    following terms and conditions: (i) an Award transferred to
    a Permitted Transferee shall not be assignable or transferable
    by the Permitted Transferee other than by will or the laws of
    descent and distribution; (ii) an Award transferred to a
    Permitted Transferee shall continue to be subject to all the
    terms and conditions of the Award as applicable to the original
    Holder (other than the ability to further transfer the Award);
    (iii) any transfer of a Non-Qualified Stock Option to a
    Permitted Transferee shall be without consideration, except as
    required by applicable law and (iv) the Holder and the
    Permitted Transferee shall execute any and all documents
    requested by the Administrator, including, without limitation
    documents to (A) confirm the status of the transferee as a
    Permitted Transferee, (B) satisfy any requirements for an
    exemption for the transfer under applicable federal, state and
    foreign securities laws and (C) evidence the transfer.



 



    (c) Notwithstanding Section 12.3(a), a Holder may, in
    the manner determined by the Administrator, designate a
    beneficiary to exercise the rights of the Holder and to receive
    any distribution with respect to any Award upon the
    Holder’s death. A beneficiary, legal guardian, legal
    representative, or other person claiming any rights pursuant to
    the Plan is subject to all terms and conditions of the Plan and
    any Program or Award Agreement applicable to the Holder, except
    to the extent the Plan, the Program and the Award Agreement
    otherwise provide, and to any additional restrictions deemed
    necessary or appropriate by the Administrator. If the Holder is
    married and resides in a community property state, a designation
    of a person other than the Holder’s spouse as his or her
    beneficiary with respect to more than 50% of the Holder’s
    interest in the Award shall not be effective without the prior
    written or electronic consent of the Holder’s spouse. If no
    beneficiary has been designated or survives the Holder, payment
    shall be made to the person entitled thereto pursuant to the
    Holder’s will or the laws of descent and distribution.
    Subject to the foregoing, a beneficiary designation may be
    changed or revoked by a Holder at any time; provided that
    the change or revocation is filed with the Administrator prior
    to the Holder’s death.



 



    12.4 Conditions to Issuance of Shares.



 



    (a) Notwithstanding anything herein to the contrary, the
    Company shall not be required to issue or deliver any
    certificates or make any book entries evidencing Shares pursuant
    to the exercise of any Award, unless and until the Board or the
    Committee has determined, with advice of counsel, that the
    issuance of such Shares is in compliance with all applicable
    laws, regulations of governmental authorities and, if
    applicable, the requirements of any exchange on which the Shares
    are listed or traded, and the Shares are covered by an effective
    registration statement or applicable exemption from
    registration. In addition to the terms and conditions provided
    herein, the Board or the Committee may require that a Holder
    make such reasonable covenants, agreements, and representations
    as the Board or the Committee, in its discretion, deems
    advisable in order to comply with any such laws, regulations, or
    requirements.



 



    (b) All Share certificates delivered pursuant to the Plan
    and all Shares issued pursuant to book entry procedures are
    subject to any stop-transfer orders and other restrictions as
    the Administrator deems necessary or advisable to comply with
    federal, state, or foreign securities or other laws, rules and
    regulations and the rules of any securities exchange or
    automated quotation system on which the Shares are listed,
    quoted, or traded. The Administrator may place legends on any
    Share certificate or book entry to reference restrictions
    applicable to the Shares.



 



    (c) The Administrator shall have the right to require any
    Holder to comply with any timing or other restrictions with
    respect to the settlement, distribution or exercise of any
    Award, including a window-period limitation, as may be imposed
    in the sole discretion of the Administrator.



 



    (d) No fractional Shares shall be issued and the
    Administrator shall determine, in its sole discretion, whether
    cash shall be given in lieu of fractional Shares or whether such
    fractional Shares shall be eliminated by rounding down.



 



    (e) Notwithstanding any other provision of the Plan, unless
    otherwise determined by the Administrator or required by any
    applicable law, rule or regulation, the Company shall not
    deliver to any Holder certificates evidencing Shares issued in
    connection with any Award and instead such Shares shall be
    recorded in the books of the Company (or, as applicable, its
    transfer agent or stock plan administrator).





    

    18








 







    12.5 Forfeiture and Claw-Back
    Provisions.  Pursuant to its general authority
    to determine the terms and conditions applicable to Awards under
    the Plan, the Administrator shall have the right to provide, in
    an Award Agreement or otherwise, or to require a Holder to agree
    by separate written or electronic instrument, that:



 



    (a) (i) Any proceeds, gains or other economic benefit
    actually or constructively received by the Holder upon any
    receipt or exercise of the Award, or upon the receipt or resale
    of any Shares underlying the Award, must be paid to the Company,
    and (ii) the Award shall terminate and any unexercised
    portion of the Award (whether or not vested) shall be forfeited,
    if (x) a Termination of Service occurs prior to a specified
    date, or within a specified time period following receipt or
    exercise of the Award, or (y) the Holder at any time, or
    during a specified time period, engages in any activity in
    competition with the Company, or which is inimical, contrary or
    harmful to the interests of the Company, as further defined by
    the Administrator or (z) the Holder incurs a Termination of
    Service for “cause” (as such term is defined in the
    sole discretion of the Administrator, or as set forth in a
    written agreement relating to such Award between the Company and
    the Holder); and



 



    (b) All Awards (including any proceeds, gains or other
    economic benefit actually or constructively received by the
    Holder upon any receipt or exercise of any Award or upon the
    receipt or resale of any Shares underlying the Award) shall be
    subject to the provisions of any claw-back obligation imposed by
    applicable law or any policy implemented by the Company,
    including, without limitation, any claw-back policy adopted to
    comply with the requirements of the Dodd-Frank Wall Street
    Reform and Consumer Protection Act and any rules or regulations
    promulgated thereunder, to the extent set forth in such
    claw-back policy
    and/or in
    the applicable Award Agreement.



 



    12.6 Prohibition on
    Repricing.  Subject to Section 14.2, the
    Administrator shall not, without the approval of the
    stockholders of the Company, (i) authorize the amendment of
    any outstanding Option or Stock Appreciation Right to reduce its
    price per share, or (ii) cancel any Option or Stock
    Appreciation Right in exchange for cash or another Award when
    the Option or Stock Appreciation Right price per share exceeds
    the Fair Market Value of the underlying Shares. Subject to
    Section 14.2, the Administrator shall have the authority,
    without the approval of the stockholders of the Company, to
    amend any outstanding Award to increase the price per share or
    to cancel and replace an Award with the grant of an Award having
    a price per share that is greater than or equal to the price per
    share of the original Award.



 




    ARTICLE 13.

    



 




    ADMINISTRATION
    



 



    13.1 Administrator.  The Committee
    (or another committee or a subcommittee of the Board assuming
    the functions of the Committee under the Plan) shall administer
    the Plan (except as otherwise permitted herein) and, unless
    otherwise determined by the Board, shall consist solely of two
    or more Non-Employee Directors appointed by and holding office
    at the pleasure of the Board, each of whom is intended to
    qualify as both a “non-employee director” as defined
    by
    Rule 16b-3
    of the Exchange Act or any successor rule, an “outside
    director” for purposes of Section 162(m) of the Code
    and an “independent director” under the rules of any
    securities exchange or automated quotation system on which the
    Shares are listed, quoted or traded; provided that any
    action taken by the Committee shall be valid and effective,
    whether or not members of the Committee at the time of such
    action are later determined not to have satisfied the
    requirements for membership set forth in this Section 13.l
    or otherwise provided in any charter of the Committee. Except as
    may otherwise be provided in any charter of the Committee,
    appointment of Committee members shall be effective upon
    acceptance of appointment. Committee members may resign at any
    time by delivering written or electronic notice to the Board.
    Vacancies in the Committee may only be filled by the Board.
    Notwithstanding the foregoing, (a) the full Board, acting
    by a majority of its members in office, shall conduct the
    general administration of the Plan with respect to Awards
    granted to Non-Employee Directors and, with respect to such
    Awards, the terms “Administrator” and
    “Committee” as used in the Plan shall be deemed to
    refer to the Board and (b) the Board or Committee may
    delegate its authority hereunder to the extent permitted by
    Section 13.6.



 



    13.2 Duties and Powers of
    Committee.  It shall be the duty of the
    Committee to conduct the general administration of the Plan in
    accordance with its provisions. The Committee shall have the
    power to interpret the Plan, the Program and the Award
    Agreement, and to adopt such rules for the administration,
    interpretation and






    

    19








 







    application of the Plan as are not inconsistent therewith, to
    interpret, amend or revoke any such rules and to amend any
    Program or Award Agreement; provided that the rights or
    obligations of the Holder of the Award that is the subject of
    any such Program or Award Agreement are not affected adversely
    by such amendment, unless the consent of the Holder is obtained
    or such amendment is otherwise permitted under
    Section 14.10. Any such grant or award under the Plan need
    not be the same with respect to each Holder. Any such
    interpretations and rules with respect to Incentive Stock
    Options shall be consistent with the provisions of
    Section 422 of the Code. In its sole discretion, the Board
    may at any time and from time to time exercise any and all
    rights and duties of the Committee under the Plan except with
    respect to matters which under
    Rule 16b-3
    under the Exchange Act or any successor rule, or Section 162(m)
    of the Code, or any regulations or rules issued thereunder, or
    the rules of any securities exchange or automated quotation
    system on which the Shares are listed, quoted or traded are
    required to be determined in the sole discretion of the
    Committee.



 



    13.3 Action by the
    Committee.  Unless otherwise established by
    the Board or in any charter of the Committee, a majority of the
    Committee shall constitute a quorum and the acts of a majority
    of the members present at any meeting at which a quorum is
    present, and acts approved in writing by all members of the
    Committee in lieu of a meeting, shall be deemed the acts of the
    Committee. Each member of the Committee is entitled to, in good
    faith, rely or act upon any report or other information
    furnished to that member by any officer or other employee of the
    Company or any Affiliate, the Company’s independent
    certified public accountants, or any executive compensation
    consultant or other professional retained by the Company to
    assist in the administration of the Plan.



 



    13.4 Authority of
    Administrator.  Subject to the Company’s
    Bylaws, the Committee’s Charter and any specific
    designation in the Plan, the Administrator has the exclusive
    power, authority and sole discretion to:



 



    (a) Designate Eligible Individuals to receive Awards;



 



    (b) Determine the type or types of Awards to be granted to
    each Eligible Individual;



 



    (c) Determine the number of Awards to be granted and the
    number of Shares to which an Award will relate;



 



    (d) Determine the terms and conditions of any Award granted
    pursuant to the Plan, including, but not limited to, the
    exercise price, grant price, or purchase price, any performance
    criteria, any restrictions or limitations on the Award, any
    schedule for vesting, lapse of forfeiture restrictions or
    restrictions on the exercisability of an Award, and
    accelerations or waivers thereof, and any provisions related to
    non-competition and recapture of gain on an Award, based in each
    case on such considerations as the Administrator in its sole
    discretion determines;



 



    (e) Determine whether, to what extent, and pursuant to what
    circumstances an Award may be settled in, or the exercise price
    of an Award may be paid in cash, Shares, other Awards, or other
    property, or an Award may be canceled, forfeited, or surrendered;



 



    (f) Prescribe the form of each Award Agreement, which need
    not be identical for each Holder;



 



    (g) Decide all other matters that must be determined in
    connection with an Award;



 



    (h) Establish, adopt, or revise any rules and regulations
    as it may deem necessary or advisable to administer the Plan;



 



    (i) Interpret the terms of, and any matter arising pursuant
    to, the Plan, any Program or any Award Agreement;



 



    (j) Make all other decisions and determinations that may be
    required pursuant to the Plan or as the Administrator deems
    necessary or advisable to administer the Plan; and



 



    (k) Accelerate wholly or partially the vesting or lapse of
    restrictions of any Award or portion thereof at any time after
    the grant of an Award, subject to whatever terms and conditions
    it selects and Sections 3.4 and 14.2.





    

    20








 







    13.5 Decisions Binding.  The
    Administrator’s interpretation of the Plan, any Awards
    granted pursuant to the Plan, any Program, any Award Agreement
    and all decisions and determinations by the Administrator with
    respect to the Plan are final, binding, and conclusive on all
    parties.



 



    13.6 Delegation of Authority.  To
    the extent permitted by applicable law or the rules of any
    securities exchange or automated quotation system on which the
    Shares are listed, quoted or traded, the Board or Committee may
    from time to time delegate to a committee of one or more members
    of the Board or one or more officers of the Company the
    authority to grant or amend Awards or to take other
    administrative actions pursuant to Article 13;
    provided, however, that in no event shall an
    officer of the Company be delegated the authority to grant
    awards to, or amend awards held by, the following individuals:
    (a) individuals who are subject to Section 16 of the
    Exchange Act, (b) Covered Employees, or (c) officers
    of the Company (or Directors) to whom authority to grant or
    amend Awards has been delegated hereunder; provided,
    further, that any delegation of administrative authority
    shall only be permitted to the extent it is permissible under
    Section 162(m) of the Code and applicable securities laws
    or the rules of any securities exchange or automated quotation
    system on which the Shares are listed, quoted or traded. Any
    delegation hereunder shall be subject to the restrictions and
    limits that the Board or Committee specifies at the time of such
    delegation, and the Board may at any time rescind the authority
    so delegated or appoint a new delegatee. At all times, the
    delegatee appointed under this Section 13.6 shall serve in
    such capacity at the pleasure of the Board and the Committee.



 




    ARTICLE 14.

    



 




    MISCELLANEOUS
    PROVISIONS
    



 



    14.1 Amendment, Suspension or Termination of the
    Plan.  Except as otherwise provided in this
    Section 14.1, the Plan may be wholly or partially amended
    or otherwise modified, suspended or terminated at any time or
    from time to time by the Board or the Committee. However,
    without approval of the Company’s stockholders given within
    twelve (12) months before or after the action by the
    Administrator, no action of the Administrator may, except as
    provided in Section 14.2, (a) increase the limits
    imposed in Section 3.1 on the maximum number of Shares
    which may be issued under the Plan, or (b) reduce the price
    per Share of any outstanding Option or Stock Appreciation Right
    granted under the Plan or take any action prohibited under
    Section 12.6, or (c) cancel any Option or Stock
    Appreciation Right in exchange for cash or another Award when
    the Option or Stock Appreciation Right price per Share exceeds
    the Fair Market Value of the underlying Shares. Except as
    provided in Sections 12.5 and 14.10, no amendment,
    suspension or termination of the Plan shall, without the consent
    of the Holder, impair any rights or obligations under any Award
    theretofore granted or awarded, unless the Award itself
    otherwise expressly so provides. No Awards may be granted or
    awarded during any period of suspension or after termination of
    the Plan, and in no event may any Award be granted under the
    Plan after the tenth anniversary of the date the Plan was
    approved by the Board.



 



    14.2 Changes in Common Stock or Assets of the
    Company, Acquisition or Liquidation of the Company and Other
    Corporate Events.



 



    (a) In the event of any stock dividend, stock split,
    combination or exchange of shares, merger, consolidation or
    other distribution (other than normal cash dividends) of Company
    assets to stockholders, or any other change affecting the shares
    of the Company’s stock or the share price of the
    Company’s stock other than an Equity Restructuring, the
    Administrator shall make equitable adjustments, if any, to
    reflect such change with respect to (i) the aggregate
    number and kind of shares that may be issued under the Plan
    (including, but not limited to, adjustments of the limitations
    in Section 3.1 on the maximum number and kind of shares
    which may be issued under the Plan and adjustments of the Award
    Limit); (ii) the number and kind of Shares (or other
    securities or property) subject to outstanding Awards;
    (iii) the number and kind of Shares (or other securities or
    property) for which automatic grants are subsequently to be made
    to new and continuing Non-Employee Directors pursuant to
    Section 4.6 and the Non-Employee Director Equity
    Compensation Policy; (iv) the terms and conditions of any
    outstanding Awards (including, without limitation, any
    applicable performance targets or criteria with respect
    thereto); and (v) the grant or exercise price per Share for
    any outstanding Awards under the Plan. Any adjustment affecting
    an Award intended as Performance-Based Compensation shall be
    made consistent with the requirements of Section 162(m) of
    the Code.





    

    21








 







    (b) In the event of any transaction or event described in
    Section 14.2(a) or any unusual or nonrecurring transactions
    or events affecting the Company, any Affiliate of the Company,
    or the financial statements of the Company or any Affiliate, or
    of changes in applicable laws, regulations or accounting
    principles, the Administrator, in its sole discretion, and on
    such terms and conditions as it deems appropriate, either by the
    terms of the Award or by action taken prior to the occurrence of
    such transaction or event and either automatically or upon the
    Holder’s request, is hereby authorized to take any one or
    more of the following actions whenever the Administrator
    determines that such action is appropriate in order to prevent
    dilution or enlargement of the benefits or potential benefits
    intended to be made available under the Plan or with respect to
    any Award under the Plan, to facilitate such transactions or
    events or to give effect to such changes in laws, regulations or
    principles:



 



    (i) To provide for either (A) termination of any such
    Award in exchange for an amount of cash, if any, equal to the
    amount that would have been attained upon the exercise of such
    Award or realization of the Holder’s rights (and, for the
    avoidance of doubt, if as of the date of the occurrence of the
    transaction or event described in this Section 14.2 the
    Administrator determines in good faith that no amount would have
    been attained upon the exercise of such Award or realization of
    the Holder’s rights, then such Award may be terminated by
    the Company without payment) or (B) the replacement of such
    Award with other rights or property selected by the
    Administrator in its sole discretion having an aggregate value
    not exceeding the amount that could have been attained upon the
    exercise of such Award or realization of the Holder’s
    rights had such Award been currently exercisable or payable or
    fully vested;



 



    (ii) To provide that such Award be assumed by the successor
    or survivor corporation, or a parent or subsidiary thereof, or
    shall be substituted for by similar options, rights or awards
    covering the stock of the successor or survivor corporation, or
    a parent or subsidiary thereof, with appropriate adjustments as
    to the number and kind of shares and prices;



 



    (iii) To make adjustments in the number and type of shares
    of the Company’s stock (or other securities or property)
    subject to outstanding Awards, and in the number and kind of
    outstanding Restricted Stock or Deferred Stock
    and/or in
    the terms and conditions of (including the grant or exercise
    price), and the criteria included in, outstanding Awards and
    Awards which may be granted in the future;



 



    (iv) To provide that such Award shall be exercisable or
    payable or fully vested with respect to all Shares covered
    thereby, notwithstanding anything to the contrary in the Plan or
    the applicable Program or Award Agreement; and



 



    (v) To provide that the Award cannot vest, be exercised or
    become payable after such event.



 



    (c) In connection with the occurrence of any Equity
    Restructuring, and notwithstanding anything to the contrary in
    Sections 14.2(a) and 14.2(b):



 



    (i) The number and type of securities subject to each
    outstanding Award and the exercise price or grant price thereof,
    if applicable, shall be equitably adjusted; and/or



 



    (ii) The Administrator shall make such equitable
    adjustments, if any, as the Administrator in its sole discretion
    may deem appropriate to reflect such Equity Restructuring with
    respect to the aggregate number and kind of shares that may be
    issued under the Plan (including, but not limited to,
    adjustments of the limitations in Section 3.1 on the
    maximum number and kind of shares which may be issued under the
    Plan and adjustments of the Award Limit). The adjustments
    provided under this Section 14.2(c) shall be
    nondiscretionary and shall be final and binding on the affected
    Holder and the Company.



 



    (d) In the event of a Change in Control, or if the Company
    is otherwise a party to a consolidation or a merger in which the
    Company is not the surviving corporation, a transaction that
    results in the acquisition of substantially all of the
    Company’s outstanding stock by a single person or entity,
    or a sale or transfer of substantially all of the Company’s
    assets occurs (in any such case, a “Corporate
    Event”), then the Committee (or, with respect to an
    Award granted to a Non-Employee Director, the Board) may take
    any actions with respect to outstanding Awards as it deems
    appropriate, consistent with applicable provisions of the Code
    and any applicable federal or state securities laws.



 



    (e) Notwithstanding anything in the Plan to the contrary,
    the Committee (or, with respect to an Award granted to a
    Non-Employee Director, the Board) may take the foregoing actions
    without the consent of any Participant, and its determination
    shall be conclusive and binding on all persons and for all
    purposes.





    

    22








 







    (f) With respect to Awards which are granted to Covered
    Employees and are intended to qualify as Performance-Based
    Compensation, no adjustment or action described in this
    Section 14.2 or in any other provision of the Plan shall be
    authorized to the extent that such adjustment or action would
    cause such Award to fail to so qualify as Performance-Based
    Compensation, unless the Administrator determines that the Award
    should not so qualify. No adjustment or action described in this
    Section 14.2 or in any other provision of the Plan shall be
    authorized to the extent that such adjustment or action would
    cause the Plan to violate Section 422(b)(1) of the Code.
    Furthermore, no such adjustment or action shall be authorized to
    the extent such adjustment or action would result in short-swing
    profits liability under Section 16 or violate the exemptive
    conditions of
    Rule 16b-3
    unless the Administrator determines that the Award is not to
    comply with such exemptive conditions.



 



    (g) The existence of the Plan, the Program, the Award
    Agreement and the Awards granted hereunder shall not affect or
    restrict in any way the right or power of the Company or the
    stockholders of the Company to make or authorize any adjustment,
    recapitalization, reorganization or other change in the
    Company’s capital structure or its business, any merger or
    consolidation of the Company, any issue of stock or of options,
    warrants or rights to purchase stock or of bonds, debentures,
    preferred or prior preference stocks whose rights are superior
    to or affect the Common Stock or the rights thereof or which are
    convertible into or exchangeable for Common Stock, or the
    dissolution or liquidation of the Company, or any sale or
    transfer of all or any part of its assets or business, or any
    other corporate act or proceeding, whether of a similar
    character or otherwise.



 



    (h) No action shall be taken under this Section 14.2
    which shall cause an Award to fail to be exempt from or comply
    with Section 409A of the Code or the Treasury Regulations
    thereunder.



 



    (i) In the event of any pending stock dividend, stock
    split, combination or exchange of shares, merger, consolidation
    or other distribution (other than normal cash dividends) of
    Company assets to stockholders, or any other change affecting
    the shares of Common Stock or the share price of the Common
    Stock including any Equity Restructuring, for reasons of
    administrative convenience, the Administrator in its sole
    discretion may refuse to permit the exercise of any Award during
    a period of up to 30 days prior to the consummation of any
    such transaction.



 



    14.3 Approval of Plan by
    Stockholders.  The Plan will be submitted for
    the approval of the Company’s stockholders within
    12 months after the date of the Board’s initial
    adoption of the Plan.



 



    14.4 No Stockholder Rights.  Except
    as otherwise provided herein, a Holder shall have none of the
    rights of a stockholder with respect to Shares covered by any
    Award until the Holder becomes the record owner of such Shares.



 



    14.5 Paperless Administration.  In
    the event that the Company establishes, for itself or using the
    services of a third party, an automated system for the
    documentation, granting or exercise of Awards, such as a system
    using an internet website or interactive voice response, then
    the paperless documentation, granting or exercise of Awards by a
    Holder may be permitted through the use of such an automated
    system.



 



    14.6 Effect of Plan upon Other Compensation
    Plans.  The adoption of the Plan shall not
    affect any other compensation or incentive plans in effect for
    the Company or any Affiliate. Nothing in the Plan shall be
    construed to limit the right of the Company or any Affiliate:
    (a) to establish any other forms of incentives or
    compensation for Employees, Directors or Consultants of the
    Company or any Affiliate, or (b) to grant or assume options
    or other rights or awards otherwise than under the Plan in
    connection with any proper corporate purpose including without
    limitation, the grant or assumption of options in connection
    with the acquisition by purchase, lease, merger, consolidation
    or otherwise, of the business, stock or assets of any
    corporation, partnership, limited liability company, firm or
    association.



 



    14.7 Compliance with Laws.  The
    Plan, the granting and vesting of Awards under the Plan and the
    issuance and delivery of Shares and the payment of money under
    the Plan or under Awards granted or awarded hereunder are
    subject to compliance with all applicable federal, state, local
    and foreign laws, rules and regulations (including but not
    limited to state, federal and foreign securities law and margin
    requirements), the rules of any securities exchange or automated
    quotation system on which the Shares are listed, quoted or
    traded, and to such approvals by any listing, regulatory or
    governmental authority as may, in the opinion of counsel for the
    Company, be necessary or advisable in connection therewith. Any
    securities delivered under the Plan shall be subject to such
    restrictions, and the person acquiring such securities shall, if
    requested by the Company, provide such assurances and
    representations to the Company as the Company may deem necessary
    or desirable to assure compliance with all applicable legal






    

    23








 







    requirements. To the extent permitted by applicable law, the
    Plan and Awards granted or awarded hereunder shall be deemed
    amended to the extent necessary to conform to such laws, rules
    and regulations.



 



    14.8 Titles and Headings, References to Sections of
    the Code or Exchange Act.  The titles and
    headings of the Sections in the Plan are for convenience of
    reference only and, in the event of any conflict, the text of
    the Plan, rather than such titles or headings, shall control.
    References to sections of the Code or the Exchange Act shall
    include any amendment or successor thereto.



 



    14.9 Governing Law.  The Plan and
    any agreements hereunder shall be administered, interpreted and
    enforced under the internal laws of the State of Delaware
    without regard to conflicts of laws thereof or of any other
    jurisdiction.



 



    14.10 Section 409A.  To the
    extent that the Administrator determines that any Award granted
    under the Plan is subject to Section 409A of the Code, the
    Program pursuant to which such Award is granted and the Award
    Agreement evidencing such Award shall incorporate the terms and
    conditions required by Section 409A of the Code. To the
    extent applicable, the Plan, the Program and any Award
    Agreements shall be interpreted in accordance with
    Section 409A of the Code and Department of Treasury
    regulations and other interpretive guidance issued thereunder,
    including without limitation any such regulations or other
    guidance that may be issued after the Effective Date.
    Notwithstanding any provision of the Plan to the contrary, in
    the event that following the Effective Date the Administrator
    determines that any Award may be subject to Section 409A of
    the Code and related Department of Treasury guidance (including
    such Department of Treasury guidance as may be issued after the
    Effective Date), the Administrator may adopt such amendments to
    the Plan and the applicable Program and Award Agreement or adopt
    other policies and procedures (including amendments, policies
    and procedures with retroactive effect), or take any other
    actions, that the Administrator determines are necessary or
    appropriate to (a) exempt the Award from Section 409A
    of the Code
    and/or
    preserve the intended tax treatment of the benefits provided
    with respect to the Award, or (b) comply with the
    requirements of Section 409A of the Code and related
    Department of Treasury guidance and thereby avoid the
    application of any penalty taxes under such Section.



 



    14.11 No Rights to Awards.  No
    Eligible Individual or other person shall have any claim to be
    granted any Award pursuant to the Plan, and neither the Company
    nor the Administrator is obligated to treat Eligible
    Individuals, Holders or any other persons uniformly.



 



    14.12 Unfunded Status of
    Awards.  The Plan is intended to be an
    “unfunded” plan for incentive compensation. With
    respect to any payments not yet made to a Holder pursuant to an
    Award, nothing contained in the Plan or any Program or Award
    Agreement shall give the Holder any rights that are greater than
    those of a general creditor of the Company or any Affiliate.



 



    14.13 Indemnification.  To the
    extent allowable pursuant to applicable law, each member of the
    Committee or of the Board shall be indemnified and held harmless
    by the Company from any loss, cost, liability, or expense that
    may be imposed upon or reasonably incurred by such member in
    connection with or resulting from any claim, action, suit, or
    proceeding to which he or she may be a party or in which he or
    she may be involved by reason of any action or failure to act
    pursuant to the Plan and against and from any and all amounts
    paid by him or her in satisfaction of judgment in such action,
    suit, or proceeding against him or her; provided he or
    she gives the Company an opportunity, at its own expense, to
    handle and defend the same before he or she undertakes to handle
    and defend it on his or her own behalf. The foregoing right of
    indemnification shall not be exclusive of any other rights of
    indemnification to which such persons may be entitled pursuant
    to the Company’s Certificate of Incorporation or Bylaws, as
    a matter of law, or otherwise, or any power that the Company may
    have to indemnify them or hold them harmless.



 



    14.14 Relationship to other
    Benefits.  No payment pursuant to the Plan
    shall be taken into account in determining any benefits under
    any pension, retirement, savings, profit sharing, group
    insurance, welfare or other benefit plan of the Company or any
    Affiliate except to the extent otherwise expressly provided in
    writing in such other plan or an agreement thereunder.



 



    14.15 Expenses.  The expenses of
    administering the Plan shall be borne by the Company and its
    Affiliates.





    

    24