exv10w1






Exhibit 10.1




BIODEL INC.



2010 STOCK INCENTIVE PLAN


1.       Purpose




          The purpose of this 2010 Stock Incentive Plan (the “Plan”) of Biodel Inc., a Delaware
corporation (the “Company”), is to advance the interests of the Company’s stockholders by enhancing
the Company’s ability to attract, retain and motivate persons who are expected to make important
contributions to the Company and by providing such persons with equity ownership opportunities and
performance-based incentives that are intended to better align the interests of such persons with
those of the Company’s stockholders. Except where the context otherwise requires, the term
“Company” shall include any of the Company’s present or future parent or subsidiary corporations as
defined in Sections 424(e) or (f) of the Internal Revenue Code of 1986, as amended, and any
regulations thereunder (the “Code”) and any other business venture (including, without limitation,
joint venture or limited liability company) in which the Company has a controlling interest, as
determined by the Board of Directors of the Company (the “Board”).



2.       Eligibility




          All of the Company’s employees, officers and directors, as well as consultants and advisors to
the Company (as such terms are defined and interpreted for purposes of Form S-8 under the
Securities Act of 1933, as amended (the “Securities Act”), or any successor form) are eligible to
be granted Awards under the Plan. Each person who is granted an Award under the Plan is deemed a
“Participant.” “Award” means Options (as defined in Section 5), SARs (as defined in Section 6),
Restricted Stock (as defined in Section 7), Restricted Stock Units (as defined in Section 7), Other
Stock-Based Awards (as defined in Section 8), and Cash-Based Awards (as defined in Section 8).



3.       Administration and Delegation




          (a)          Administration by Board of Directors. The Plan will be administered by the Board.
The Board shall have authority to grant Awards and to adopt, amend and repeal such administrative
rules, guidelines and practices relating to the Plan as it shall deem advisable. The Board may
construe and interpret the terms of the Plan and any Award agreements entered into under the Plan.
The Board may correct any defect, supply any omission or reconcile any inconsistency in the Plan or
any Award in the manner and to the extent it shall deem expedient and it shall be the sole and
final judge of such expediency. All decisions by the Board shall be made in the Board’s sole
discretion and shall be final and binding on all persons having or claiming any interest in the
Plan or in any Award.




          (b)          Appointment of Committees. To the extent permitted by applicable law, the Board
may delegate any or all of its powers under the Plan to one or more committees or subcommittees of
the Board (a “Committee”). All references in the Plan to the “Board” shall mean the Board or a
Committee of the Board or the officers referred to in Section 3(c) to the extent that the Board’s
powers or authority under the Plan have been delegated to such Committee or officers.




          (c)          Delegation to Officers. To the extent permitted by applicable law, the Board may
delegate to one or more officers of the Company the power to grant Options and other Awards that
constitute rights under Delaware law (subject to any limitations under the Plan) to employees or
officers of the Company or any of its present or future subsidiary corporations and to exercise
such other powers under the Plan as the Board may determine, provided that the Board shall fix the
terms of such Awards to be granted by such officers (including the exercise price of such Awards,
which may include a formula by which the exercise price will be determined) and the maximum number
of shares subject to such Awards that the officers may grant; provided further, however, that no
officer shall be authorized to grant such Awards to any “executive officer” of the Company (as
defined by Rule 3b-7 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) or
to any “officer” of the Company (as defined by Rule 16a-1 under the Exchange Act). The Board may
not delegate authority under this Section 3(c) to grant Restricted Stock, unless Delaware law then
permits such delegation.




          (d)          Awards to Non-Employee Directors. Discretionary Awards to non-employee directors
may be granted and administered only by a Committee, all of the members of which are independent
directors as defined by Section 5605(a)(2) of the NASDAQ Marketplace Rules.






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4.       Stock Available for Awards




          (a)          Number of Shares; Share Counting.




                         (1)          Authorized Number of Shares. Subject to adjustment under Section 10, Awards may
be made under the Plan for up to 5,400,000 shares of common stock, $0.01 par value per share, of
the Company (the “Common Stock”), any or all of which Awards may be in the form of Incentive Stock
Options (as defined in Section 5(b)). Shares issued under the Plan may consist in whole or in part
of authorized but unissued shares or treasury shares. The Company shall not make any new Awards
under any prior equity plans after the date the Plan is approved by the Company’s stockholders (the
“Effective Date”).



                         (2)          Fungible Share Pool. Subject to adjustment under Section 10, any Award that is
not a Full-Value Award shall be counted against the share limit specified in Section 4(a)(1) as one
share for each share of Common Stock subject to such Award and any Award that is a Full-Value Award
shall be counted against the share limit specified in Sections 4(a)(1) as 1.6 shares for each one
share of Common Stock subject to such Full-Value Award. “Full-Value Award” means any Restricted
Stock Award or other Stock-Based Award, including Performance Awards (as defined below) designed to
be settled in stock, with a per share price or per unit purchase price lower than 100% of Fair
Market Value (as defined below) on the date of grant. To the extent a share that was subject to an
Award that counted as one share is returned to the Plan pursuant to Section 4(a)(3), the share
reserve will be credited with one share. To the extent that a share that was subject to an Award
that counts as 1.6 shares is returned to the Plan pursuant to Section 4(a)(3), the share reserve
will be credited with 1.6 shares.



                         (3)          Share Counting. For purposes of counting the number of shares available for the
grant of Awards under the Plan:



                                        (A)          all shares of Common Stock covered by SARs shall be counted against the number of shares
available for the grant of Awards under the Plan; however, if the Company makes a tandem award of
an Option and a SAR for the same number of shares of Common Stock and provides that only one may be
exercised, the Common Stock counted against the limit shall be the number that could be issued
under either but not both, and the expiration of one in connection with the other’s exercise will
not restore shares to the Plan.



                                        (B)          if any Award granted under this or any predecessor plan of the Company (i) expires or is
terminated, surrendered or canceled without having been fully exercised or is forfeited in whole or
in part (including as the result of shares of Common Stock subject to such Award being repurchased
by the Company at the original issuance price pursuant to a contractual repurchase right) or (ii)
results in any Common Stock not being issued (including as a result of an SAR that was settleable
either in cash or in stock actually being settled in cash), the unused Common Stock covered by such
Award shall again be available for the grant of Awards using the fungible share principles set
forth in Section 4(a)(2); provided, however, in the case of Incentive Stock Options, the foregoing
shall be subject to any limitations under the Code; and provided further, in the case of the
exercise of an SAR, the number of shares counted against the shares available under the Plan shall
be the full number of shares subject to the SAR multiplied by the percentage of the SAR actually
exercised, regardless of the number of shares actually used to settle such SAR upon exercise;



                                        (C)          shares of Common Stock delivered by actual delivery, attestation, or net exercise) to the
Company by a Participant to (i) purchase shares of Common Stock upon the exercise of an Award or
(ii) satisfy tax withholding obligations (including shares retained from the Award creating the tax
obligation) shall not be added back to the number of shares available for the future grant of
Awards;



                                        (D)          shares of Common Stock repurchased by the Company on the open market using the proceeds
from the exercise of an Award shall not increase the number of shares available for future grant of
Awards; and



                                        (E)          any Awards granted under any stockholder approved plan between October 1, 2009 and the
Effective Date will be counted against the shares available in Section 4(a)(1) using the fungible
share principles set out in Section 4(a)(2).



          (b)          Section 162(m) Per-Participant Limit. Subject to adjustment under Section 10, the
maximum number of shares of Common Stock with respect to which Awards may be granted to any
Participant under the Plan shall be 1,400,000 per calendar year. For purposes of the foregoing
limit, the combination of an Option in tandem




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with an SAR shall be treated as a single Award. The
per Participant limit described in this Section 4(b) shall be construed and applied consistently
with Section 162(m) of the Code or any successor provision thereto, and the regulations thereunder
(“Section 162(m)”).




          (c)          Substitute Awards. In connection with a merger or consolidation of an entity with
the Company or the acquisition by the Company of property or stock of an entity, the Board may
grant Awards in substitution for any options or other stock or stock-based awards granted by such
entity or an affiliate thereof. Substitute Awards may be granted on such terms as the Board deems
appropriate in the circumstances, notwithstanding any limitations on Awards contained in the Plan.
Substitute Awards shall not count against the overall share limit set forth in Section 4(a)(1) or
the limit in Section 4(b), except as may be required by reason of Section 422 and related
provisions of the Code.



5.       Stock Options




          (a)          General. The Board may grant options to purchase Common Stock (each, an “Option”)
and determine the number of shares of Common Stock to be covered by each Option, the exercise price
of each Option and the conditions and limitations applicable to the exercise of each Option,
including conditions relating to applicable federal or state securities laws, as it considers
necessary or advisable.




          (b)          Incentive Stock Options. An Option that the Board intends to be an “incentive
stock option” as defined in Section 422 of the Code (an “Incentive Stock Option”) shall only be
granted to employees of Biodel Inc., any of Biodel Inc.’s present or future parent or subsidiary
corporations as defined in Sections 424(e) or (f) of the Code, and any other entities the employees
of which are eligible to receive Incentive Stock Options under the Code, and shall be subject to
and shall be construed consistently with the requirements of Section 422 of the Code. An Option
that is not intended to be an Incentive Stock Option shall be designated a “Nonstatutory Stock
Option.” The Company shall have no liability to a Participant, or any other party, if an Option
(or any part thereof) that is intended to be an Incentive Stock Option is not an Incentive Stock
Option or if the Company converts an Incentive Stock Option to a Nonstatutory Stock Option.




          (c)          Exercise Price. The Board shall establish the exercise price of each Option and
specify the exercise price in the applicable Option agreement. The exercise price shall be not less
than 100% of the fair market value (“Fair Market Value”) on the date the Option is granted (which
shall be the closing sales price for such stock (or the closing bid, if no sales were reported) as
quoted on the Nasdaq Global Market, the Nasdaq Capital Market or the Nasdaq Global Select Market
(or the exchange or market with the greatest volume of trading in the Common Stock), as reported in
The Wall Street Journal or such other source as the Board deems reliable, on the date of grant or
as of such other date as satisfies applicable tax requirements); provided that if the Board
approves the grant of an Option with an exercise price to be determined on a future date, the
exercise price shall be not less than 100% of the Fair Market Value on such future date. If the
Common Stock is not publicly traded, the Board will determine the Fair Market Value for purposes of
the Plan using any measure of value it determines to be appropriate (including, as it considers
appropriate, relying on appraisals) in a manner consistent with the valuation principles under Code
Section 409A, except as the Board may expressly determine otherwise. For any date that is not a
trading day, the Fair Market Value of a share of Common Stock for such date will be determined by
using the closing sale price or average of the bid and asked prices, as appropriate, for the
immediately preceding trading day. The Board can substitute a particular time of day or other
measure of “closing sale price” or “bid and asked prices” if appropriate because of exchange or
market procedures or can, in its sole discretion, use weighted averages either on a daily basis or
such longer period as complies with Code Section 409A.




          (d)          Duration of Options. Each Option shall be exercisable at such times and subject
to such terms and conditions as the Board may specify in the applicable option agreement; provided,
however, that no Option will be granted with a term in excess of seven years.




          (e)          Exercise of Options. Options may be exercised by delivery to the Company of a
notice of exercise in a form (which may be in electronic form) approved by the Company, together
with payment in full (in the manner specified in Section 5(g)) of the exercise price for the number
of shares for which the Option is exercised. Shares of Common Stock subject to the Option will be
delivered by the Company as soon as practicable following exercise.




          (f)          Payment Upon Exercise. Common Stock purchased upon the exercise of an Option
granted under the Plan shall be paid for as follows:




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                         (1)          in cash or by check, payable to the order of the Company;



                         (2)          except as may otherwise be provided in the applicable Option agreement or approved by the
Board, in its sole discretion, by (i) delivery of an irrevocable and unconditional undertaking by a
creditworthy broker to deliver promptly to the Company sufficient funds to pay the exercise price
and any required tax withholding or (ii) delivery by the Participant to the Company of a copy of
irrevocable and unconditional instructions to a creditworthy broker to deliver promptly to the
Company cash or a check sufficient to pay the exercise price and any required tax withholding;



                         (3)          to the extent provided for in the applicable Option agreement or approved by the Board, in
its sole discretion, by delivery (either by actual delivery or attestation) of shares of Common
Stock owned by the Participant valued at their Fair Market Value, provided (i) such method of
payment is then permitted under applicable law, (ii) such Common Stock, if acquired directly from
the Company, was owned by the Participant for such minimum period of time, if any, as may be
established by the Board in its discretion and (iii) such Common Stock is not subject to any
repurchase, forfeiture, unfulfilled vesting or other similar requirements;



                         (4) to the extent provided for in the applicable Nonstatutory Stock Option agreement or
approved by the Board in its sole discretion, by delivery of a notice of “net exercise” to the
Company, as a result of which the Participant would receive the number of shares of Common Stock
underlying the portion of the Option being exercised reduced by the number of shares of Common
Stock equal to the aggregate exercise price of the portion of the Option being exercised divided by
the Fair Market Value on the date of exercise;



                         (5)          to the extent permitted by applicable law and provided for in the applicable Option
agreement or approved by the Board, in its sole discretion, by payment of such other lawful
consideration as the Board may determine; or



                         (6)          by any combination of the above permitted forms of payment.



          (g)          No Reload Options. No Option granted under the Plan shall contain any provision
entitling the Participant to the automatic grant of additional Options in connection with any
exercise of the original Option.




          (h)          No Dividend Equivalents. No Option shall provide for the payment or accrual of
dividend equivalents.




          (i)          Limitation on Repricing. Unless such action is approved by the Company’s
stockholders, the Company may not (except as provided for under Section 10): (1) amend any
outstanding Option granted under the Plan to provide an exercise price per share that is lower than
the then-current exercise price per share of such outstanding Option, (2) cancel any outstanding
option (whether or not granted under the Plan) and grant in substitution therefor new Awards under
the Plan (other than Awards granted pursuant to Section 4(c)) covering the same or a different
number of shares of Common Stock and having an exercise price per share lower than the then-current
exercise price per share of the cancelled option, (3) cancel for cash any Options that then have
exercise prices per share below the Fair Market Value, other than under Section 10, or (4) take any
other action that that constitutes a “repricing” within the meaning of the rules of the NASDAQ
Stock Market (“NASDAQ”).



6.       Stock Appreciation Rights




          (a)          General. The Board may grant Awards consisting of stock appreciation rights
(“SARs”) entitling the holder, upon exercise, to receive an amount of Common Stock determined by
reference to appreciation, from and after the date of grant, in the Fair Market Value of a share of
Common Stock over the measurement price established pursuant to Section 6(b). The date as of which
such appreciation is determined shall be the exercise date.




          (b)          Measurement Price. The Board shall establish the measurement price of each SAR
and specify it in the applicable SAR agreement. The measurement price shall not be less than 100%
of the Fair Market Value on the date the SAR is granted; provided that if the Board approves the
grant of a SAR effective as of a future date, the measurement price shall be not less than 100% of
the Fair Market Value on such future date.




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          (c)          Duration of SARs. Each SAR shall be exercisable at such times and subject to such
terms and conditions as the Board may specify in the applicable SAR agreement; provided, however,
that no SAR will be granted with a term in excess of seven years.




          (d)          Exercise of SARs. SARs may be exercised by delivery to the Company of a notice of
exercise in a form (which may be in electronic form) approved by the Company, together with any
other documents required by the Board.




          (e)          Dividend Equivalents. No SAR shall provide for the payment or accrual of dividend
equivalents.




          (f)          Limitation on Repricing. Unless such action is approved by the Company’s
stockholders, the Company may not (except as provided for under Section 10): (1) amend any
outstanding SAR granted under the Plan to provide a measurement price per share that is lower than
the then-current measurement price per share of such outstanding SAR, (2) cancel any outstanding
SAR (whether or not granted under the Plan) and grant in substitution therefor new Awards under the
Plan (other than Awards granted pursuant to Section 4(c)) covering the
same or a different number of shares of Common Stock and having an exercise or measurement
price per share lower than the then-current measurement price per share of the cancelled SAR,
(3) cancel for cash any SARs that then have measurement prices per share below the Fair Market
Value, other than under Section 10, or (4) take any other action that that constitutes a
“repricing” within the meaning of the rules of NASDAQ.



7.       Restricted Stock; Restricted Stock Units




          (a)          General. The Board may grant Awards entitling recipients to acquire shares of
Common Stock (“Restricted Stock”), subject to the right of the Company to repurchase all or part of
such shares at their issue price or other stated or formula price (or to require forfeiture of such
shares if issued at no cost) from the recipient in the event that conditions specified by the Board
in the applicable Award are not satisfied prior to the end of the applicable restriction period or
periods established by the Board for such Award. The Board may also grant Awards entitling the
recipient to receive shares of Common Stock or cash to be delivered at the time such Award vests
(“Restricted Stock Units”) (Restricted Stock and Restricted Stock Units are each referred to
herein as a “Restricted Stock Award”).




          (b)          Terms and Conditions for All Restricted Stock Awards.




                         (1)          The Board shall determine the terms and conditions of a Restricted Stock Award, including
the conditions for vesting and repurchase (or forfeiture) and the issue price, if any.



                         (2)          Notwithstanding any other provision of the Plan (other than Section 9, if applicable), the
Board may, either at the time a Restricted Stock Award is made or at any time thereafter, waive its
right to repurchase shares of Common Stock (or waive the forfeiture thereof) or remove or modify
the restrictions applicable to the Restricted Stock Award, in whole or in part.



          (c)          Additional Provisions Relating to Restricted Stock.




                         (1)          Dividends. Restricted Stock will accrue ordinary cash dividends, unless the Board
determines otherwise and applicable law permits such nonaccrual. Participants holding shares of
Restricted Stock will only be entitled to such cash dividends if specifically provided in the
Restricted Stock agreement, will only receive the dividends if and when the Restricted Stock vests,
and will then receive dividends only prospectively unless the Board or the Restricted Stock
agreement provides for the payment of prior dividends upon or after vesting. Any dividend payment
will be made no later than the latest of the end of the calendar year in which the dividends are
paid to stockholders of that class of stock, the 15th day of the third month following the date the
dividends are paid to stockholders of that class of stock, or the 15th day of the third month
following the date on which the Restricted Stock to which the dividends pertain vests. Unless
otherwise provided in the Restricted Stock agreement, if any dividends or distributions are paid in
shares, or consist of a dividend or distribution to holders of Common Stock other than an ordinary
cash dividend, the shares, cash or other property will be subject to the same restrictions on
transferability and forfeitability as the shares of Restricted Stock with respect to which they
were paid.



                         (2)          Stock Certificates. The Company may require that any stock certificates issued in
respect of shares of Restricted Stock, as well as dividends or distributions paid on such
Restricted Stock, shall be deposited



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in escrow by the Participant, together with a stock power
endorsed in blank, with the Company (or its designee). At the expiration of the applicable
restriction periods, the Company (or such designee) shall deliver the certificates no longer
subject to such restrictions to the Participant or if the Participant has died, to his or her
Designated Beneficiary. “Designated Beneficiary” means (i) the beneficiary designated, in a manner
determined by the Board, by a Participant to receive amounts due or exercise rights of the
Participant in the event of the Participant’s death or (ii) in the absence of an effective
designation by a Participant, the Participant’s estate.




          (d)          Additional Provisions Relating to Restricted Stock Units.




                         (1)          Settlement. Upon the vesting of and/or lapsing of any other restrictions (i.e.,
settlement) with respect to each Restricted Stock Unit, the Participant shall be entitled to
receive from the Company one share of Common Stock, unless the Board provides in the applicable
Award agreement that the Restricted Stock Unit will be settled in cash (either automatically or at
the Board’s discretion on payment). The Board may, in its discretion, provide that settlement of
Restricted Stock Units shall be deferred, on a mandatory basis or at the election of the
Participant in a manner that complies with Section 409A of the Code.



                         (2)          Voting Rights. A Participant shall have no voting rights with respect to any
Restricted Stock Units.



                         (3)          Dividend Equivalents. To the extent provided by the Board, in its sole
discretion, a grant of Restricted Stock Units may provide Participants with the right to receive an
amount equal to any dividends or other distributions declared and paid on an equal number of
outstanding shares of Common Stock (“Dividend Equivalents”). Dividend Equivalents may be settled
in cash and/or shares of Common Stock and will be subject to the same restrictions on transfer and
forfeitability as the Restricted Stock Units with respect to which paid, as determined by the Board
in its sole discretion, subject in each case to such terms and conditions as the Board shall
establish, in each case to be set forth in the applicable Award agreement. Any Dividend Equivalent
payments will be made no later than the latest of the end of the calendar year in which the
dividends are paid to stockholders of the class of stock underlying the Restricted Stock Units, the
15th day of the third month following the date the dividends are paid to stockholders of that class
of stock, or the 15th day of the third month following the date on which the Restricted Stock Unit
to which the dividends pertain vests, absent a further deferral that complies with Section 409A of
the Code.


8.       Other Stock-Based and Cash-Based Awards




          (a)          General. Other Awards of shares of Common Stock, and other Awards that are valued
in whole or in part by reference to, or are otherwise based on, shares of Common Stock or other
property, may be granted hereunder to Participants (“Other Stock-Based-Awards”), including without
limitation Awards entitling recipients to receive shares of Common Stock to be delivered in the
future. Such Other Stock-Based Awards shall also be available as a form of payment in the
settlement of other Awards granted under the Plan or as payment in lieu of compensation to which a
Participant is otherwise entitled. Other Stock-Based Awards may be paid in shares of Common Stock
or cash, as the Board shall determine. The Company may also grant Performance Awards or other
Awards denominated in cash rather than shares of Common Stock (“Cash-Based Awards”).




          (b)          Terms and Conditions.




                         (1)          Subject to the provisions of the Plan, the Board shall determine the terms and conditions
of each Other Stock-Based Award or Cash-Based Award, including any purchase price applicable
thereto.



                         (2)          Notwithstanding any other provision of the Plan (other than Section 9, if applicable), the
Board may, either at the time an Other Stock-Based Award is made or at any time thereafter, waive
its right to repurchase shares of Common Stock (or waive the forfeiture thereof) or remove or
modify the restrictions applicable to the Other Stock-Based Award, in whole or in part.


9.       Performance Awards.




          (a)          Grants. Restricted Stock Awards and Other Stock-Based Awards under the Plan may
be made subject to the achievement of performance goals pursuant to this Section 9 (“Performance
Awards”). Performance Awards can also provide for cash payments of up to $1,000,000 per calendar
year per individual.




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          (b)          Committee. Grants of Performance Awards to any Covered Employee (as defined
below) intended to qualify as “performance-based compensation” under Section 162(m)
(“Performance-Based Compensation”) shall be made only by a Committee (or a subcommittee of a
Committee) comprised solely of two or more directors eligible to serve on a committee making Awards
qualifying as “performance-based compensation” under Section 162(m). In the case of such Awards
granted to Covered Employees, references to the Board or to a Committee shall be treated as
referring to such Committee (or subcommittee). “Covered Employee” shall mean any person who is, or
whom the Committee, in its discretion, determines may be, a “covered employee” under Section
162(m)(3) of the Code.




          (c)          Performance Measures. For any Award that is intended to qualify as
Performance-Based Compensation, the Committee shall specify that the degree of granting, vesting
and/or payout shall be subject to the achievement of one or more objective performance measures
established by the Committee, which shall be based on the relative or absolute attainment of
specified levels of one or any combination of the following: reductions in net loss, approval of
product candidates by regulatory authorities, increase in cost savings, earnings before or after
discontinued operations, interest, taxes, depreciation and/or amortization, operating profit before
or after discontinued operations and/or taxes, sales, sales growth, earnings growth, cash flow or
cash position, gross margins, stock price, market share, return on sales, assets, equity or
investment, improvement of financial ratings, achievement of balance sheet or income statement
objectives or total stockholder return. Such goals may reflect absolute entity or business unit
performance or a relative comparison to the performance of a peer group of entities or other
external measure of the selected performance criteria and may be absolute in their terms or
measured against or in relationship to other companies comparably, similarly or otherwise situated.
The Committee may specify that such performance measures shall be adjusted to exclude any one or
more of (i) extraordinary items, (ii) gains or losses on the dispositions of discontinued
operations, (iii) the cumulative effects of changes in accounting
principles, (iv) the writedown of any asset, and (v) charges for restructuring and
rationalization programs. Such performance measures: (i) may vary by Participant and may be
different for different Awards; (ii) may be particular to a Participant or the department, branch,
line of business, subsidiary or other unit in which the Participant works and may cover such period
as may be specified by the Committee; and (iii) shall be set by the Committee within the time
period prescribed by, and shall otherwise comply with the requirements of, Section 162(m). Awards
that are not intended to qualify as Performance-Based Compensation may be based on these or such
other performance measures as the Board may determine.




          (d)          Adjustments. Notwithstanding any provision of the Plan, with respect to any
Performance Award that is intended to qualify as Performance-Based Compensation, the Committee may
adjust downwards, but not upwards, the cash or number of shares payable pursuant to such Award, and
the Committee may not waive the achievement of the applicable performance measures except in the
case of the death or disability of the Participant or a change in control of the Company.




          (e)          Other. The Committee shall have the power to impose such other restrictions on
Performance Awards as it may deem necessary or appropriate to ensure that such Awards satisfy all
requirements for Performance-Based Compensation.



10.     Adjustments for Changes in Common Stock and Certain Other Events




          (a)          Changes in Capitalization. In the event of any stock split, reverse stock split,
stock dividend, recapitalization, combination of shares, reclassification of shares, spin-off or
other similar change in capitalization or event, or any dividend or distribution to holders of
Common Stock other than an ordinary cash dividend, (i) the number and class of securities available
under the Plan, (ii) the share counting rules and sublimit set forth in Sections 4(a) and 4(b),
(iii) the share and per-share provisions and the measurement price of each outstanding SAR, (iv)
the number of shares subject to and the repurchase price per share subject to each outstanding
Restricted Stock Award and (v) the share and per-share-related provisions and the purchase price,
if any, of each outstanding Other Stock-Based Award, shall be equitably adjusted by the Company (or
substitute Awards may be made, if applicable) in the manner determined by the Board. Without
limiting the generality of the foregoing, in the event the Company effects a split of the Common
Stock by means of a stock dividend and the exercise price of and the number of shares subject to an
outstanding Option are adjusted as of the date of the distribution of the dividend (rather than as
of the record date for such dividend), then an optionee who exercises an Option between the record
date and the distribution date for such stock dividend shall be entitled to receive, on the
distribution date, the stock dividend with respect to the shares of Common Stock acquired upon such
Option exercise, notwithstanding the fact that such shares were not outstanding as of the close of
business on the record date for such stock dividend.




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          (b)          Reorganization Events.




                         (1)          Definition. A “Reorganization Event” shall mean: (a) any merger or consolidation
of the Company with or into another entity as a result of which all of the Common Stock of the
Company is converted into or exchanged for the right to receive cash, securities or other property
or is cancelled, (b) any transfer or disposition of all of the Common Stock of the Company for
cash, securities or other property pursuant to a share exchange or other transaction or (c) any
liquidation or dissolution of the Company.



                         (2)          Consequences of a Reorganization Event on Awards Other than Restricted Stock. In
connection with a Reorganization Event, the Board may take any one or more of the following actions
as to all or any (or any portion of) outstanding Awards other than Restricted Stock on such terms
as the Board determines: (i) provide that Awards shall be assumed, or substantially equivalent
Awards shall be substituted, by the acquiring or succeeding corporation (or an affiliate thereof),
(ii) upon written notice to a Participant, provide that all of the Participant’s unexercised Awards
will terminate immediately prior to the consummation of such Reorganization Event unless exercised
by the Participant within a specified period following the date of such notice and that all
unexercisable Awards shall become exercisable for such purpose, (iii) provide that outstanding
Awards shall become exercisable, realizable, or deliverable, or restrictions applicable to an Award
shall lapse, in whole or in part prior to or upon such Reorganization Event, (iv) in the event of a
Reorganization Event under the terms of which holders of Common Stock will receive upon
consummation thereof a cash payment for each share surrendered in the Reorganization Event (the
“Acquisition Price”), make or provide for a cash payment to Participants with respect to each Award
held by a Participant equal to (A) the number of shares of Common Stock subject to the vested
portion of the Award (after giving effect to any acceleration of vesting that occurs upon or
immediately prior to such Reorganization Event) multiplied by (B) the excess, if any, of (I) the
Acquisition Price over (II) the exercise, measurement or purchase price of such Award and any
applicable tax withholdings, in exchange for the termination of such Award, (v) provide that, in
connection with a liquidation or dissolution of the Company, Awards shall convert into the right to
receive liquidation proceeds (if applicable, net of the exercise, measurement or purchase price
thereof and any applicable tax withholdings) and (vi) any combination of the foregoing. In taking
any of the
actions permitted under this Section 10(b), the Board shall not be obligated by the Plan to
treat all Awards, all Awards held by a Participant, or all Awards of the same type, identically.



                         For purposes of clause (i) above, an Award (other than Restricted Stock) shall be considered
assumed if, following consummation of the Reorganization Event, such Award confers the right to
purchase or receive, for each share of Common Stock subject to the Award immediately prior to the
consummation of the Reorganization Event, the consideration (whether cash, securities or other
property) received as a result of the Reorganization Event by holders of Common Stock for each
share of Common Stock held immediately prior to the consummation of the Reorganization Event (and
if holders were offered a choice of consideration, the type of consideration chosen by the holders
of a majority of the outstanding shares of Common Stock) less any applicable exercise or
measurement price; provided, however, that if the consideration received as a result of the
Reorganization Event is not solely common stock of the acquiring or succeeding corporation (or an
affiliate thereof), the Company may, with the consent of the acquiring or succeeding corporation,
provide for the consideration to be received upon the exercise of Awards or settlement of
Restricted Stock Units to consist solely of such number of shares of common stock of the acquiring
or succeeding corporation (or an affiliate thereof) that the Board determined to be equivalent in
value (as of the date of such determination or another date specified by the Board) to the per
share consideration received by holders of outstanding shares of Common Stock as a result of the
Reorganization Event.



                         (3)          Consequences of a Reorganization Event on Restricted Stock. Upon the occurrence
of a Reorganization Event other than a liquidation or dissolution of the Company, the repurchase
and other rights of the Company with respect to outstanding Restricted Stock shall inure to the
benefit of the Company’s successor and shall, unless the Board determines otherwise, apply to the
cash, securities or other property which the Common Stock was converted into or exchanged for
pursuant to such Reorganization Event in the same manner and to the same extent as they applied to
such Restricted Stock; provided, however, that the Board may provide for termination or deemed
satisfaction of such repurchase or other rights under the instrument evidencing any Restricted
Stock or any other agreement between a Participant and the Company, either initially or by
amendment. Upon the occurrence of a Reorganization Event involving the liquidation or dissolution
of the Company, except to the extent specifically provided to the contrary in the instrument
evidencing any Restricted Stock or any other agreement between a Participant and the Company, all
restrictions and conditions on all Restricted Stock then outstanding shall automatically be deemed
terminated or satisfied.



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          (c)          Change in Control Events.




                         (1)          Definition. A “Change in Control Event” shall mean:



                                        (A)          the acquisition by an individual, entity or group (within the meaning of Section 13(d)(3)
or 14(d)(2) of the Exchange Act) (a “Person”) of beneficial ownership of any capital stock of the
Company if, after such acquisition, such Person beneficially owns (within the meaning of Rule 13d-3
under the Exchange Act) 50% or more of either (x) the then-outstanding shares of common stock of
the Company (the “Outstanding Company Common Stock”) or (y) the combined voting power of the
then-outstanding securities of the Company entitled to vote generally in the election of directors
(the “Outstanding Company Voting Securities”); provided, however, that for purposes of this
subsection (A), the following acquisitions shall not constitute a Change in Control Event: (1) any
acquisition directly from the Company (excluding an acquisition pursuant to the exercise,
conversion or exchange of any security exercisable for, convertible into or exchangeable for common
stock or voting securities of the Company, unless the Person exercising, converting or exchanging
such security acquired such security directly from the Company or an underwriter or agent of the
Company), (2) any acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company, or (3) any acquisition by
any corporation pursuant to a Business Combination (as defined below) that complies with clauses
(x) and (y) of subsection (C) of this definition; or



                                        (B)          a change in the composition of the Board that results in the Continuing Directors (as
defined below) no longer constituting a majority of the Board (or, if applicable, the Board of
Directors of a successor corporation to the Company), where the term “Continuing Director” means at
any date a member of the Board (x) who was a member of the Board on the date of the initial
adoption of the Plan by the Board or (y) who was nominated or elected subsequent to such date by at
least a majority of the directors who were Continuing Directors at the time of such nomination or
election or whose election to the Board was recommended or endorsed by at least a majority of the
directors who were Continuing Directors at the time of such nomination or election; provided,
however, that there shall be excluded from this clause (y) any individual whose initial assumption
of office occurred as a result of an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened solicitation of proxies or consents,
by or on behalf of a person other than the Board; or



                                        (C)          the consummation of a merger, consolidation, reorganization, recapitalization or share
exchange involving the Company or a sale or other disposition of all or substantially all of the
assets of the Company (a “Business Combination”), unless, immediately following such Business
Combination, each of the following two conditions is satisfied: (x) all or substantially all of the
individuals and entities who were the beneficial owners of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such Business Combination beneficially
own, directly or indirectly, more than 50% of the then-outstanding shares of common stock and the
combined voting power of the then-outstanding securities entitled to vote generally in the election
of directors, respectively, of the resulting or acquiring corporation in such Business Combination
(which shall include, without limitation, a corporation which as a result of such transaction owns
the Company or substantially all of the Company’s assets either directly or through one or more
subsidiaries) (such resulting or acquiring corporation is referred to herein as the “Acquiring
Corporation”) in substantially the same proportions as their ownership of the Outstanding Company
Common Stock and Outstanding Company Voting Securities, respectively, immediately prior to such
Business Combination and (y) no Person (excluding any employee benefit plan (or related trust)
maintained or sponsored by the Company or by the Acquiring Corporation) beneficially owns, directly
or indirectly, 50% or more of the then-outstanding shares of common stock of the Acquiring
Corporation, or of the combined voting power of the then-outstanding securities of such corporation
entitled to vote generally in the election of directors (except to the extent that such ownership
existed prior to the Business Combination); or



                                        (D)          the liquidation or dissolution of the Company.



                         (2)          Effect on Options. Notwithstanding the provisions of Section 10(b), effective
immediately prior to a Change in Control Event, except to the extent specifically provided to the
contrary in the instrument evidencing any Option or any other agreement between a Participant and
the Company, all Options then outstanding shall automatically become immediately exercisable in
full.



                         (3)          Effect on Restricted Stock Awards. Notwithstanding the provisions of Section
10(b), effective immediately prior to a Change in Control Event, except to the extent specifically
provided to the contrary in the instrument evidencing any Restricted Stock Award or any other
agreement between a Participant and the



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Company, all restrictions and conditions on all Restricted
Stock Awards then-outstanding shall automatically be deemed terminated or satisfied.




                         (4)          Effect on SARs and Other Stock-Based Awards. The Board may specify in an Award at
the time of the grant the effect of a Change in Control Event on any SAR and Other Stock-Based
Award.



          (d)          Effect of Section 409A on Award Acceleration. Unless the Board provides otherwise
in the Award Agreement, if an Award is subject to, rather than exempt from, Code Section 409A, a
Reorganization Event or Change in Control may vest the Award but shall only accelerate payment to
the Participant if the Reorganization Event or Change in Control also comports with the description
of “Change in Control Events” in Treasury Regulation section 1.409A-3(i)(5), or in subsequent IRS
guidance describing what constitutes a change in control event for purposes of Code Section 409A.



11.     General Provisions Applicable to Awards




          (a)          Transferability of Awards. Awards shall not be sold, assigned, transferred,
pledged or otherwise encumbered by the person to whom they are granted, either voluntarily or by
operation of law, except by will or the laws of descent and distribution or, other than in the case
of an Incentive Stock Option, pursuant to a qualified domestic relations order, and, during the
life of the Participant, shall be exercisable only by the Participant; provided, however, that the
Board may permit or provide in an Award for the gratuitous transfer of the Award by the Participant
to or for the benefit of any immediate family member, family trust or other entity established for
the benefit of the Participant and/or an immediate family member thereof if the Company would be
eligible to use a Form S-8 under the Securities Act for the registration of the sale of the Common
Stock subject to such Award to such proposed transferee; provided further, that the Company shall
not be required to recognize any such permitted transfer until such time as such permitted
transferee shall, as a condition to such transfer, deliver to the Company a written instrument in
form and substance satisfactory to the Company confirming that such transferee shall be bound by
all of the terms and conditions of the Award. References to a Participant, to the extent relevant
in the context, shall include references to authorized transferees. For the avoidance of doubt,
nothing contained in this Section 11(a) shall be deemed to restrict a transfer to the Company.




          (b)          Documentation. Each Award shall be evidenced in such form (written, electronic or
otherwise) as the Board shall determine. Each Award may contain terms and conditions in addition
to those set forth in the Plan.




          (c)          Board Discretion. Except as otherwise provided by the Plan, each Award may be
made alone or in addition or in relation to any other Award. The terms of each Award need not be
identical, and the Board need not treat Participants uniformly.




          (d)          Termination of Status. The Board shall determine the effect on an Award of the
disability, death, termination or other cessation of employment, authorized leave of absence or
other change in the employment or other status of a Participant and the extent to which, and the
period during which, the Participant, or the Participant’s legal representative, conservator,
guardian or Designated Beneficiary, may exercise rights under the Award.




          (e)          Withholding. The Participant must satisfy all applicable federal, state, and
local or other income and employment tax withholding obligations before the Company will deliver
stock certificates or otherwise recognize ownership of Common Stock under an Award. The Company
may decide to satisfy the withholding obligations through additional withholding on salary or
wages. If the Company elects not to or cannot withhold from other compensation, the Participant
must pay the Company the full amount, if any, required for withholding or have a broker tender to
the Company cash equal to the withholding obligations. Payment of withholding obligations is due
before the Company will issue any shares on exercise, vesting or release from forfeiture of an
Award or, if the Company so requires, at the same time as payment of the exercise or purchase
price, unless the Company determines otherwise. If provided for in an Award or approved by the
Board in its sole discretion, a Participant may satisfy such tax obligations in whole or in part by
delivery (either by actual delivery or attestation) of shares of Common Stock, including shares
retained from the Award creating the tax obligation, valued at their Fair Market Value; provided,
however, except as otherwise provided by the Board, that the total tax withholding where stock is
being used to satisfy such tax obligations cannot exceed the Company’s minimum statutory
withholding obligations (based on minimum statutory withholding rates for federal and state tax
purposes, including payroll taxes, that are applicable to such supplemental taxable income).
Shares used to satisfy tax withholding requirements cannot be subject to any repurchase,
forfeiture, unfulfilled vesting or other similar requirements.




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          (f)          Amendment of Award. Except as otherwise provided in Sections 5(i) and 6(f) with
respect to repricings, Section 9 with respect to Performance Awards, or Section 12(d) with respect
to actions requiring stockholder approval, the Board may amend, modify or terminate any outstanding
Award, including but not limited to, substituting therefore another Award of the same or a
different type, changing the date of exercise or realization, and converting an Incentive Stock
Option to a Nonstatutory Stock Option. The Participant’s consent to such action shall be required
unless (i) the Board determines that the action, taking into account any related action, does not
materially and adversely affect the Participant’s rights under the Plan or (ii) the change is
permitted under Section 10.




          (g)          Conditions on Delivery of Stock. The Company will not be obligated to deliver any
shares of Common Stock pursuant to the Plan or to remove restrictions from shares previously issued
or delivered under the Plan until (i) all conditions of the Award have been met or removed to the
satisfaction of the Company, (ii) in the opinion of the Company’s counsel, all other legal matters
in connection with the issuance and delivery of such shares have been satisfied, including any
applicable securities laws and regulations and any applicable stock exchange or stock market rules
and regulations, and (iii) the Participant has executed and delivered to the Company such
representations or agreements as the Company may consider appropriate to satisfy the requirements
of any applicable laws, rules or regulations.




          (h)          Acceleration. The Board may at any time provide that any Award shall become
immediately exercisable in whole or in part, free of some or all restrictions or conditions, or
otherwise realizable in whole or in part, as the case may be.



12.     Miscellaneous




          (a)          No Right To Employment or Other Status. No person shall have any claim or right
to be granted an Award by virtue of the adoption of the Plan, and the grant of an Award shall not
be construed as giving a Participant the right to continued employment or any other relationship
with the Company. The Company expressly reserves the right at any time to dismiss or otherwise
terminate its relationship with a Participant free from any liability or claim under the Plan,
except as expressly provided in the applicable Award.




          (b)          No Rights As Stockholder. Subject to the provisions of the applicable Award, no
Participant or Designated Beneficiary shall have any rights as a stockholder with respect to any
shares of Common Stock to be distributed with respect to an Award until becoming the record holder
of such shares.




          (c)          Term of Plan. No Awards shall be granted under the Plan after the expiration of
10 years from the Effective Date, but Awards previously granted may extend beyond that date.




          (d)          Amendment of Plan. The Board may amend, suspend or terminate the Plan or any
portion thereof at any time provided that (i) to the extent required by Section 162(m), no Award
granted to a Participant that is intended to comply with Section 162(m) after the date of such
amendment shall become exercisable, realizable or vested, as applicable to such Award, unless and
until the Company’s stockholders approve such amendment in the manner required by Section 162(m);
(ii) no amendment that would require stockholder approval under the rules of NASDAQ may be made
effective unless and until the Company’s stockholders approve such amendment; and (iii) if NASDAQ
amends its corporate governance rules so that such rules no longer require stockholder approval of
material amendments to equity compensation plans, then, from and after the effective date of such
amendment to the NASDAQ rules, no amendment to the Plan (A) materially increasing the number of
shares authorized under the Plan (other than pursuant to Section 4(c) or 10), (B) expanding the
types of Awards that may be granted under the Plan, or (C) materially expanding the class of
participants eligible to participate in the Plan shall be effective unless and until the Company’s
stockholders approve such amendment. In addition, if at any time the approval of the Company’s
stockholders is required as to any other modification or amendment under Section 422 of the Code or
any successor provision with respect to Incentive Stock Options, the Board may not effect such
modification or amendment without such approval. Unless otherwise specified in the amendment, any
amendment to the Plan adopted in accordance with this Section 12(d) shall apply to, and be binding
on the holders of, all Awards outstanding under the Plan at the time the amendment is adopted,
provided the Board determines that such amendment, taking into account any related action, does not
materially and adversely affect the rights of Participants under the Plan.




          (e)          Authorization of Sub-Plans for Grants to non-U.S. Employees. The Board may from
time to time establish one or more sub-plans under the Plan for purposes of satisfying applicable
securities, tax or other laws of




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various jurisdictions. The Board shall establish such sub-plans
by adopting supplements to the Plan containing (i) such limitations on the Board’s discretion under
the Plan as the Board deems necessary or desirable or (ii) such additional terms and conditions not
otherwise inconsistent with the Plan as the Board shall deem necessary or desirable. All
supplements adopted by the Board shall be deemed to be part of the Plan, but each supplement shall
apply only to Participants within the affected jurisdiction and the Company shall not be required
to provide copies of any supplement to Participants in any jurisdiction which is not the subject of
such supplement.




          (f)          Compliance with Section 409A of the Code. Except as provided in individual Award
agreements initially or by amendment, if and to the extent any portion of any payment, compensation
or other benefit provided to a Participant in connection with his or her employment termination is
determined to constitute “nonqualified deferred compensation” within the meaning of Section 409A of
the Code and the Participant is a specified employee as defined in Section 409A(a)(2)(B)(i) of the
Code, as determined by the Company in accordance with its procedures, by which determination the
Participant (through accepting the Award) agrees that he or she is bound, such portion of the
payment, compensation or other benefit shall not be paid before the day that is six months plus one
day after the date of “separation from service” (as determined under Section 409A of the Code) (the
“New Payment Date”), except as Section 409A of the Code may then permit. The aggregate of any
payments that otherwise would have been paid to the Participant during the period between the date
of separation from service and the New Payment Date shall be paid to the Participant in a lump sum
on such New Payment Date, and any remaining payments will be paid on their original schedule. The
Company makes no representations or warranty and shall have no liability to the Participant or any
other person if any provisions of or payments, compensation or other benefits under the Plan are
determined to constitute nonqualified deferred compensation subject to Section 409A of the Code but
do not to satisfy the conditions of that section.




          (g)          Limitations on Liability. Notwithstanding any other provisions of the Plan, no
individual acting as a director, officer, employee or agent of the Company will be liable to any
Participant, former Participant, spouse, beneficiary, or any other person for any claim, loss,
liability, or expense incurred in connection with the Plan, nor will such individual be personally
liable with respect to the Plan because of any contract or other instrument he or she executes in
his or her capacity as a director, officer, employee or agent of the Company. The Company will
indemnify and hold harmless each director, officer, employee or agent of the Company to whom any
duty or power relating to the administration or interpretation of the Plan has been or will be
delegated, against any cost or expense (including attorneys’ fees) or liability (including any sum
paid in settlement of a claim with the Board’s approval) arising out of any act or omission to act
concerning the Plan unless arising out of such person’s own fraud or bad faith.




          (h)          Governing Law. The provisions of the Plan and all Awards made hereunder shall be
governed by and interpreted in accordance with the laws of the State of Delaware, excluding
choice-of-law principles of the law of such state that would require the application of the laws of
a jurisdiction other than the State of Delaware.





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