Exhibit 10.1

      


      


      


      


      


      


      


      
 

      


      E*TRADE
Financial Corporation

      


      


      


      


      


      2005
Equity Incentive Plan,

      


      


      As
Amended Through May 13, 2010

    

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      


       

      
        	 
      	 
      	
                TABLE
      OF CONTENTS

                 

              	 
      
	 
      	 
      	 
      	
                Page

              


      

       

      
        
          	1.   
       Establishment, Purpose And Term Of
      Plan	
                  1

                
	
                  1.1

                	
                  Establishment

                	
                  1

                
	
                  1.2

                	
                  Purpose

                	
                  1

                
	
                  1.3

                	
                  Term of
Plan

                	
                  1

                
	2.   
      Definitions And
      Construction	
                  1

                
	
                  2.1

                	
                  Definitions

                	
                  1

                
	
                  2.2

                	
                  Construction

                	
                  8

                
	3.   
      Administration	
                  8

                
	
                  3.1

                	
                  Administration by the
      Committee

                	
                  8

                
	
                  3.2

                	
                  Authority of Officers

                	
                  9

                
	
                  3.3

                	
                  Administration with Respect to
      Insiders

                	
                  9

                
	
                  3.4

                	
                  Committee Complying with
      Section 162(m)

                	
                  9

                
	
                  3.5

                	
                  Powers of the
      Committee

                	
                  9

                
	
                  3.6

                	
                  Option or SAR
      Repricing

                	
                  10

                
	
                  3.7

                	
                  Indemnification

                	
                  11

                
	4.   
      Shares Subject to
      Plan	
                  11

                
	
                  4.1

                	
                  Maximum Number of Shares
      Issuable

                	
                  11

                
	
                  4.2

                	
                  Share
      Accounting

                	
                  11

                
	
                  4.3

                	
                  Adjustment for Unissued or
      Forfeited Predecessor Plan Shares

                	
                  11

                
	
                  4.4

                	
                  Adjustments for Changes in
      Capital
      Structure

                	
                  12

                
	5.   
      Eligibility, Participation and
      Award Limitations	
                  13

                
	
                  5.1

                	
                  Persons Eligible for
      Awards

                	
                  13

                
	
                  5.2

                	
                  Participation in
      Plan

                	
                  13

                
	
                  5.3

                	
                  Award
      Limitations

                	
                  13

                
	6.   
      Stock Options	
                  15

                
	
                  6.1

                	
                  Exercise
    Price

                	
                  15

                
	
                  6.2

                	
                  Exercisability and Term of
      Options

                	
                  15

                
	
                  6.3

                	
                  Payment of Exercise
    Price

                	
                  15

                
	
                  6.4

                	
                  Effect of Termination of
      Service

                	
                  16

                
	
                  6.5

                	
                  Transferability of
      Options

                	
                  17

                
	7.   
      Stock Appreciation
      Rights	
                  18

                
	
                  7.1

                	
                  Types of SARs
      Authorized

                	
                  18

                
	
                  7.2

                	
                  Exercise
    Price

                	
                  18

                
	
                  7.3

                	
                  Exercisability and Term of
      SARs

                	
                  18

                


        

         

         

        
          
            
            

          

          
            i

            
              

            

          

          
            
            

          

        

         

         

        
          	
                  7.4

                	
                  Exercise of
      SARs

                	
                  18

                
	
                  7.5

                	
                  Deemed Exercise of
    SARs

                	
                  19

                
	
                  7.6

                	
                  Effect of Termination of
      Service

                	
                  19

                
	
                  7.7

                	
                  Nontransferability of
      SARs

                	
                  19

                
	8.   
      Stock Awards	
                  19

                
	
                  8.1

                	
                  Types of Stock Awards
      Authorized

                	
                  20

                
	
                  8.2

                	
                  Purchase
    Price

                	
                  20

                
	
                  8.3

                	
                  Purchase
    Period

                	
                  20

                
	
                  8.4

                	
                  Payment of Purchase
      Price

                	
                  20

                
	
                  8.5

                	
                  Vesting and
      Restrictions on
      Transfer

                	
                  20

                
	
                  8.6

                	
                  Voting Rights; Dividends and
      Distributions

                	
                  21

                
	
                  8.7

                	
                  Effect of Termination of
      Service

                	
                  21

                
	
                  8.8

                	
                  Nontransferability of Stock Award
      Rights

                	
                  21

                
	9.   
      Restricted Stock Unit
      Awards	
                  21

                
	
                  9.1

                	
                  Grant of Restricted Stock Unit
      Awards

                	
                  21

                
	
                  9.2

                	
                  Purchase
    Price

                	
                  22

                
	
                  9.3

                	
                  Vesting

                	
                  22

                
	
                  9.4

                	
                  Voting Rights, Dividend Equivalent
      Rights and Distributions

                	
                  22

                
	
                  9.5

                	
                  Effect of Termination of
      Service

                	
                  22

                
	
                  9.6

                	
                  Settlement of Restricted Stock Unit
      Awards

                	
                  23

                
	
                  9.7

                	
                  Nontransferability of Restricted
      Stock Unit Awards

                	
                  23

                
	10.  Performance
Awards	
                  23

                
	
                  10.1

                	
                  Types of Performance Awards
      Authorized

                	
                  23

                
	
                  10.2

                	
                  Initial Value of Performance
      Shares and Performance Units

                	
                  24

                
	
                  10.3

                	
                  Establishment of Performance
      Period, Performance Goals and Performance Award
    Formula

                	
                  24

                
	
                  10.4

                	
                  Measurement of Performance
      Goals

                	
                  24

                
	
                  10.5

                	
                  Settlement of Performance
      Awards

                	
                  26

                
	
                  10.6

                	
                  Voting Rights; Dividend Equivalent
      Rights and Distributions

                	
                  27

                
	
                  10.7

                	
                  Effect of Termination of
      Service

                	
                  28

                
	
                  10.8

                	
                  Nontransferability of Performance
      Awards

                	
                  28

                
	11.  Deferred Compensation
      Awards	
                  28

                
	
                  11.1

                	
                  Establishment of Deferred
      Compensation Award Programs

                	
                  28

                
	
                  11.2

                	
                  Terms and Conditions of
      Deferred Compensation
      Awards

                	
                  29

                
	12.  Nonemployee Director
      Awards	
                  30

                
	
                  12.1

                	
                  Terms and Conditions of
      Nonemployee Director Awards

                	
                  30

                
	
                  12.2

                	
                  Terms and Conditions of
      Nonemployee Director Options

                	
                  31

                
	13.  Cash-Based Awards And Other
      Stock-Based Awards	
                  32

                
	
                  13.1

                	
                  Grant of Cash-Based
      Awards

                	
                  32

                
	
                  13.2

                	
                  Grant of Other Stock-Based
      Awards

                	
                  32

                
	
                  13.3

                	
                  Value of Cash-Based and Other
      Stock-Based Awards

                	
                  32

                
	
                  13.4

                	
                  Payment or Settlement of
      Cash-Based Awards and Other Stock-Based Awards

                	
                  33

                
	
                  13.5

                	
                  Voting Rights; Dividend Equivalent
      Rights and Distributions

                	
                  33

                
	
                  13.6

                	 Effect
      of Termination of Service	
                  33

                


        

      

       

       

       

      
        
          
          

        

        
          ii

          
            

          

        

        
          
          

        

      

       

       

       

      
        
          	
                  13.7

                	
                  Nontransferability of Cash-Based Awards and
      Other Stock-Based Awards

                	

                  33

                
	
                  14.   Standard Forms Of Award
      Agreement

                	

                  34

                
	
                  14.1

                	
                  Award
      Agreements

                	

                  34

                
	
                  14.2

                	
                  Authority to Vary
      Terms 

                	

                  34

                
	15.   Change
      In Control 	

                  34

                
	
                  15.1

                	
                  Effect of Change in Control on
      Options and SARs 

                	

                  34

                
	
                  15.2 

                	
                  Effect
      of Change in Control on Stock Awards, Restricted Stock Unit Awards and
      Performance Awards

                	

                  35

                
	
                  15.3

                	
                  Effect
      of Change in Control on Deferred Compensation
      Awards

                	

                  35

                
	
                  15.4

                	
                  Effect
      of Change in Control on Nonemployee Director
      Awards 

                	

                  35

                
	
                  15.5

                	
                  Effect
      of Change in Control on Cash-Based Awards and Other Stock-Based
      Awards

                	

                  35

                
	16.   Compliance With Securities
      Law                 	

                  35

                
	17.   Tax
      Withholding                     	

                  36

                
	
                  17.1

                	
                  Tax
      Withholding in
      General                                             

                	

                  36

                
	
                  17.2

                	
                  Withholding in
      Shares                                     

                	

                  36

                
	18.   Amendment or Termination of
      Plan           	

                  36

                
	19.   Compliance with
      Section 409A            	

                  37

                
	
                  19.1

                	
                  Awards
      Subject to
      Section 409A              

                	

                  37

                
	
                  19.2

                	
                  Deferral and/or Distribution
      Elections     

                	

                  37

                
	
                  19.3

                	
                  Subsequent
      Elections             

                	

                  38

                
	
                  19.4

                	
                  Distributions Pursuant to Deferral
      Elections  

                	

                  38

                
	
                  19.5

                	
                  Unforeseeable
      Emergency            

                	

                  39

                
	
                  19.6

                	
                  Disabled               

                	

                  39

                
	
                  19.7

                	
                  Death         

                	

                  39

                
	
                  19.8

                	
                  No
      Acceleration of
      Distributions                

                	

                  40

                
	20.   Miscellaneous
      Provisions                   	

                  40

                
	
                  20.1

                	
                  Repurchase
      Rights                            

                	

                  40

                
	
                  20.2

                	
                  Forfeiture
      Events                              

                	

                  40

                
	
                  20.3

                	
                  Provision of
      Information                                

                	

                  40

                
	
                  20.4

                	
                  Rights
      as Employee, Consultant or
      Director                   

                	

                  40

                
	
                  20.5

                	
                  Rights as a
      Stockholder                              

                	

                  41

                
	
                  20.6 

                	
                  Delivery of Title to
      Shares                                     

                	

                  41

                
	
                  20.7

                	
                  Fractional
      Shares                                  

                	

                  41

                
	
                  20.8

                	
                  Retirement and Welfare
      Plans                             

                	

                  41

                
	
                  20.9

                	
                  Beneficiary
      Designation                                        

                	

                  41

                
	
                  20.10

                	
                  Severability                        

                	

                  41

                
	
                  20.11 

                	
                  No
      Constraint on Corporate
      Action      

                	

                  42

                
	
                  20.12

                	
                  Unfunded
      Obligation                                 

                	

                  42

                
	
                  20.13

                	
                  Choice
      of
      Law                       

                	

                  42

                


        

      

       

       

       

       

       

      
        
          
          

        

        
          iii

          
            

          

        

        
          
          

        

      

       

       

      E*TRADE Financial Corporation

      2005
Equity Incentive Plan, As Amended Through May 13, 2010

      


       

      
        


        1.           ESTABLISHMENT,
PURPOSE
AND
TERM
OF
PLAN.

        


        1.1 Establishment. The E* TRADE Financial Corporation
2005 Equity Incentive Plan (the “Plan”) is hereby established effective as of
May 26, 2005, the date of its approval by the stockholders of the Company (the
“Effective
Date”).

        


        1.2 Purpose. The purpose of the Plan is to advance
the interests of the Participating Company Group and its
stockholders by providing an incentive to attract, retain and reward persons
performing services for the Participating Company Group and by motivating such
persons to contribute to
the growth and profitability of the Participating Company Group. The Plan seeks
to achieve this purpose by providing for Awards in the form of Options, Stock
Appreciation Rights, Stock Purchase Rights, Stock Bonuses, Restricted Stock
Units, Performance Shares, Performance
Units, Deferred Compensation Awards, Nonemployee Director Awards, Cash-Based
Awards and Other Stock-Based Awards.

        


        1.3 Term of
Plan. The Plan shall
continue in effect until its termination by the Committee; provided, however, that all Awards shall be granted,
if at all, within ten (10) years from the Effective Date.

        


        2.           DEFINITIONS
AND
CONSTRUCTION.

        


        2.1 Definitions. Whenever used herein, the following
terms shall have their respective meanings set forth
below:

        


        (a) “Affiliate” means (i) an entity, other than a
Parent Corporation, that directly, or indirectly through one or more
intermediary entities, controls the Company or (ii) an entity, other than a
Subsidiary Corporation, that is controlled by the Company directly,
or indirectly through one
or more intermediary entities. For this purpose, the term “control” (including the term “controlled by”) means the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of the relevant entity, whether through the
ownership of voting securities, by contract or otherwise; or shall have such
other meaning assigned such term for the purposes of registration on Form S-8
under the Securities Act.

        


        (b) “Award” means any Option, Stock Appreciation Right, Stock Purchase Right,
Stock Bonus, Restricted Stock Unit, Performance Share, Performance Unit,
Deferred Compensation Award, Nonemployee Director Award, Cash-Based Award or
Other Stock-Based Award granted under the Plan.

        


        (c) “Award
Agreement” means a written or electronic agreement
between the Company and a Participant setting forth the terms, conditions and
restrictions of the Award granted to the Participant.

        


        


        
          
            
            

          

          
            1

            
              

            

          

          
            
            

          

        

        


         

        
          	
                  (d)  

                	
                  “Board” means the Board of Directors of the
      Company.

                


        

        


        
          	
                  (e)  

                	
                  “Cash-Based
      Award” means an Award denominated in
      cash and granted pursuant to Section
      13.

                


        

         

        (f) “ Cause” means, unless such term or an
equivalent term is otherwise defined with respect to an Award by the
Participant’s Award Agreement or by a written
contract of employment or service, any of the following: (i) the
Participant’s theft, dishonesty, willful misconduct,
breach of fiduciary duty for personal profit, or falsification of any
Participating Company documents or records; (ii) the
Participant’s material failure to abide by a
Participating Company’s code of conduct or other policies
(including, without limitation, policies relating to confidentiality and
reasonable workplace conduct); (iii) the Participant’s unauthorized use, misappropriation,
destruction or diversion of any tangible or intangible asset or corporate
opportunity of a Participating Company (including, without limitation, the
Participant’s improper use or disclosure of a
Participating Company’s confidential or proprietary information); (iv)
any intentional act by the Participant which has a material detrimental effect
on a Participating Company’s reputation or business; (v) the
Participant’s repeated failure or inability to
perform any reasonable assigned duties after written notice from a
Participating Company of, and a reasonable opportunity to cure, such failure or
inability; (vi) any material breach by the Participant of any employment,
service, non-disclosure, non-competition, non-solicitation or other similar agreement between the
Participant and a Participating Company, which breach is not cured pursuant to
the terms of such agreement; or (vii) the Participant’s conviction (including any plea of
guilty or nolo contendere) of any criminal act involving fraud, dishonesty, misappropriation
or moral turpitude, or which impairs the Participant’s ability to perform his or her duties
with a Participating Company.

        


        (g) “Change
in Control” means, unless such term or an
equivalent term is otherwise defined with respect to an Award by the
Participant’s Award Agreement or by a written
contract of employment or service, the occurrence of any of the
following:

        


        (i) any “person” (as such term is used in Sections 13(d)
and 14(d) of the Exchange Act), other than (1) a trustee or other fiduciary holding
stock of the Company under an employee benefit plan of a Participating Company
or (2) a corporation owned directly or indirectly by the stockholders of the
Company in substantially the same proportions as their ownership of the stock of the Company, becomes
the “beneficial
owner” (as defined in Rule
13d-3 promulgated under the Exchange Act), directly or indirectly, of stock of
the Company representing more than fifty percent (50%) of the total combined
voting power of the Company’s then-outstanding voting stock;
or

        


        (ii) a change in the composition of the
Board over a period of thirty six (36) consecutive months or less such that
individuals who, at the beginning of such period, constitute the Board cease, by
reason of one or more
contested elections for Board membership, to constitute at least a majority of
the Board, unless the election, or the nomination for election by the
stockholders of the Company, of each new Director was approved by a vote of at
least a majority of the Directors then still in office who
were Directors at the beginning of the period; or

        


        


        
          
            
            

          

          
            2

            
              

            

          

          
            
            

          

        

         

        


        (iii) an
Ownership Change Event or series of related Ownership Change Events
(collectively, a “Transaction”)
in which the stockholders of the Company immediately before the Transaction do
not retain immediately after the Transaction direct or indirect beneficial
ownership of more than fifty percent (50%) of the total combined voting power of
the outstanding voting
securities of the Company or, in the case of an Ownership Change Event described
in Section 2.1(ff)(iii), the entity to which the assets of the Company were
transferred (the “Transferee”),
as the case may be; or

        


        (iv) a liquidation or dissolution
of the
Company.

        


        For purposes of the preceding sentence,
indirect beneficial ownership shall include, without limitation, an interest
resulting from ownership of the voting securities of one or more corporations or
other business entities which own the Company or the Transferee, as the case may be,
either directly or through one or more subsidiary corporations or other business
entities. The Committee shall have the right to determine whether multiple sales
or exchanges of the voting securities of the Company or multiple Ownership Change Events are
related, and its determination shall be final, binding and
conclusive.

        


        (h) “ Code” means the Internal Revenue Code of
1986, as amended, and any applicable regulations promulgated
thereunder.

        


        (i) “Committee” means the Compensation Committee, the
Nominating and Corporate Governance Committee or other committee of the Board
duly appointed to administer the Plan and having such powers as shall be
specified by the Board. If no committee of the Board has been appointed
to administer the Plan, the Board shall
exercise all of the powers of the Committee granted herein, and, in any event,
the Board may in its discretion exercise any or all of such
powers.

        


        (j) “Company” means E*TRADE Financial Corporation, a
Delaware corporation, or any successor corporation thereto.

        


        (k) “Consultant” means a person engaged to provide
consulting or advisory services (other than as an Employee or a member of the
Board) to a Participating Company, provided that the identity of
such person, the nature of such services or the entity to which such services
are provided would not preclude the Company from offering or selling securities
to such person pursuant to the Plan in reliance on registration on a Form S-8 Registration
Statement under the Securities Act.

        


        (l) “Covered
Employee” means any Employee who is or may become
a “covered
employee” as defined in
Section 162(m), or any successor statute, and who is designated, either as an
individual Employee or a
member of a class of Employees, by the Committee no later than (i) the date
ninety (90) days after the beginning of the Performance Period, or (ii) the date
on which twenty-five percent (25%) of the Performance Period has elapsed, as a
“Covered Employee” under this Plan for such applicable
Performance Period.

        


        (m) “ Deferred
Compensation Award” means an award granted to a Participant
pursuant to Section 11.

        


        


        
          
            
            

          

          
            3

            
              

            

          

          
            
            

          

        

        


         

        
          	
                  (n)  

                	
                  “Director” means a member of the
      Board.

                


        

        


        
          	
                  (o)  

                	
                  “Disability” means the permanent and total
      disability of the Participant, within the meaning of
      Section 22(e)(3) of the
  Code.

                


        

         

        (p) “ Dividend
Equivalent” means a credit, made at the discretion
of the Committee or as otherwise provided by the Plan, to the
account of a Participant in an amount equal to the cash dividends paid on one
share of Stock for each share of Stock represented by an Award held by such
Participant.

        


        (q) “Employee” means any person treated as an employee
(including an Officer or a member of the Board who is also treated as an
employee) in the records of a Participating Company; provided, however, that
neither service as a member of the Board nor payment of a director’s fee shall be sufficient to constitute
employment for purposes of the Plan. The Company shall determine in good faith
and in the exercise of its discretion whether an individual has become or has
ceased to be an Employee and the effective date of such individual’s employment or termination of
employment, as the case may be. For purposes of an individual’s rights, if any, under the terms of the
Plan as of the time of the Company’s determination of whether or not the
individual is an Employee, all such determinations by the Company shall be
final, binding and conclusive as to such rights, if any, notwithstanding that
the Company or any court of law or governmental agency subsequently makes a
contrary determination as to such individual’s status as an Employee.

        


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

        


        (s) “Fair
Market Value” means, as of any date, the value of a
share of Stock or other property as determined by the Committee, in its
discretion, or by the Company, in its discretion, if such determination is
expressly allocated to the Company herein, subject to the
following:

        


        (i) Except as otherwise determined by
the Committee, if, on such date, the Stock is listed on a national or regional
securities exchange or market system, the Fair Market Value of a share of Stock
shall be the average of the high and low sale prices of a share of Stock (or the mean of the
closing bid and asked prices of a share of Stock if the Stock is so quoted
instead) as quoted on the New York Stock Exchange or such other national or
regional securities exchange or market system constituting the
primary market for the Stock, as reported in The
Wall Street Journal or such other source as the Company deems reliable. If the
relevant date does not fall on a day on which the Stock has traded on such
securities exchange or market system, the date on which the Fair Market Value shall be established
shall be the last day on which the Stock was so traded prior to the relevant
date, or such other appropriate day as shall be determined by the Committee, in
its discretion.

        


        (ii) Notwithstanding the foregoing, the
Committee may, in its
discretion, determine the Fair Market Value on the basis of the opening,
closing, high, low or average sale price of a share of Stock or the actual sale
price of a share of Stock received by a Participant, on such date, the preceding
trading day or the next succeeding trading
day or an average determined over a period of trading days. The Committee may
vary its method of

        


        


        
          
            
            

          

          
            4

            
              

            

          

          
            
            

          

        

         

        determination of the
Fair Market Value as provided in this Section for different purposes under the
Plan.

        


        (iii) If, on such date, the Stock is not
listed on a national or regional securities exchange or market system, the Fair
Market Value of a share of Stock shall be as determined by the
Committee in good faith without regard to any restriction other than a
restriction which, by its terms, will never lapse.

         

        
          (t) “Full
Value Award” means any Award settled in Stock, other
than (i) an Option, (ii) a Stock Appreciation Right, (iii) a Stock
Purchase Right or an Other Stock-Based Award under which the Company will
receive monetary consideration equal to the Fair Market Value of the shares
subject to such Award, (iv) a Deferred Compensation Award which is
an elective cash compensation reduction
award described in Section 11.1(a) or a stock issuance deferral award described
in Section 11.1(b), or (v) an Other Stock-Based award based on appreciation in
the Fair Market Value of the Stock.

        

        


        
          (u) “Incentive
Stock Option” means an Option intended to be (as set
forth in the Award Agreement) and which qualifies as an incentive
stock option within the meaning of Section 422(b) of the Code.

        

        


        (v) “Insider” means an Officer, Director or any other
person whose transactions
in Stock are subject to Section 16 of the Exchange Act.

        


        (w) “Insider
Trading Policy” means the written policy of the Company
pertaining to the purchase, sale, transfer or other disposition of the
Company’s equity securities by
Directors, Officers,
Employees or other service providers who may possess material, nonpublic
information regarding the Company or its securities.

        


        (x) “Net-Exercise” means a procedure by which the
Participant will be issued a number of shares of Stock determined in accordance with the following
formula:

        


        N   =   
X(A-B)/A, where

        “N” the number of shares of Stock to be
issued to the Participant upon exercise of the Option;


        “X” the total number of shares with respect
to which the Participant has elected to exercise the Option;

        “A” the Fair Market Value of one (1) share
of Stock determined on the exercise date; and

        “B” the exercise price per share (as
defined in the Participant’s Award Agreement)

        


        (y) “Nonemployee
Director” means a Director who is not an
Employee.

        


        (z) “ Nonemployee
Director Award” means a Nonemployee Director Option or
other Award granted to a Nonemployee Director pursuant to Section
12.

        


        


        
          
            
            

          

          
            5

            
              

            

          

          
            
            

          

        

        


        


        


         

        (aa) “Nonemployee
Director Option” means an Option granted to a
Nonemployee Director pursuant to Section 12.

        


        (bb) “Nonstatutory
Stock Option” means an Option not intended to be (as
set forth in the Award Agreement) an incentive stock option within the meaning of
Section 422(b) of the
Code.

        


        (cc)   “Officer” means any person designated by the
Board as an officer of the Company.

        


        (dd) “ Option” means an Incentive Stock Option or a
Nonstatutory Stock Option granted pursuant to Section 6 or Section
12.

        


        (ee) “Other
Stock-Based Award” means an Award denominated in shares of
Stock and granted pursuant to Section 13.

        


        (ff) “Ownership
Change Event” means the occurrence of any of the
following with respect to the Company: (i) the direct or indirect sale or
exchange in a single or series of related transactions by the stockholders of
the Company of more than fifty percent (50%) of the voting stock of
the Company; (ii) a merger or consolidation
in which the Company is a party; or (iii) the sale, exchange, or transfer of all
or substantially all of the assets of the Company (other than a sale, exchange
or transfer to one or more subsidiaries of the Company).

        


        (gg) “Parent
Corporation” means any present or future
“parent
corporation” of the
Company, as defined in Section 424(e) of the Code.

        


        (hh)   “Participant” means any eligible person who has been
granted one or more Awards.

        


        (ii) “Participating
Company” means the Company or any Parent
Corporation, Subsidiary Corporation or Affiliate.

        


        (jj) “Participating
Company Group” means, at any point in time, all
entities collectively which are then Participating
Companies.

        


        (kk)   “Performance
Award” means an Award of Performance Shares or
Performance Units.

        


        (ll) “Performance
Award Formula” means, for any Performance Award, a
formula or table established by the Committee pursuant to Section 10.3 which
provides the basis for computing the value of a Performance Award at one or more threshold levels of
attainment of the applicable Performance Goal(s) measured as of the end of the
applicable Performance Period.

        


        (mm) “Performance-Based
Compensation” means compensation under an Award that
satisfies the requirements of Section 162(m) for certain
performance-based compensation paid to Covered Employees.

        


        


        
          
            
            

          

          
            6

            
              

            

          

          
            
            

          

        

        


        


         

        (nn) “ Performance
Goal” means a performance goal established by
the Committee pursuant to Section 10.3.

        


        (oo) “ Performance
Period” means a period established by the
Committee pursuant to Section 10.3 at the end of which one or more Performance
Goals are to be measured.

        


        (pp) “Performance
Share” means a bookkeeping entry representing
a right granted to a Participant pursuant to Section 10 to receive a
payment equal to the value of a Performance Share, as determined by the
Committee, based on performance.

        


        (qq) “Performance
Unit” means a bookkeeping entry representing
a right granted to a Participant pursuant to Section 10 to receive a payment
equal to the value of a Performance Unit, as determined by the Committee, based
upon performance.

        


        (rr)   “Predecessor
Plan” means the Company’s 1996 Stock Incentive
Plan.

        


        (ss) “Restricted
Stock Unit” or “ Stock
Unit ” means a bookkeeping entry representing
a right granted to a Participant pursuant to Section 9 or Section 11,
respectively, to receive a share of Stock on a date determined in accordance with the provisions of
Section 9 or Section 11, as applicable, and the Participant’s Award Agreement.

        


        (tt) “Restriction
Period” means the period established in
accordance with Section 8.5 during which shares subject to a Stock Award are
subject to Vesting
Conditions.

        


        (uu) “ Rule
16b-3” means Rule 16b-3 under the Exchange
Act, as amended from time to time, or any successor rule or
regulation.

        


        (vv) “SAR” or “Stock
Appreciation Right” means a bookkeeping entry
representing, for each
share of Stock subject to such SAR, a right granted to a Participant pursuant to
Section 7 to receive payment of an amount equal to the excess, if any, of the
Fair Market Value of a share of Stock on the date of exercise of the SAR over
the exercise price.

        


        
          (ww)  “Section
162(m)” means Section 162(m) of the
Code.

        

        


        
          (xx)  “Section
409A” means Section 409A of the Code
(including regulations or administrative guidelines
thereunder).

        

        


        
          (yy)  “Securities
Act” means the Securities Act of 1933,
as
amended.

        

        


        
          (zz)  “Service” means a Participant’s employment or service with the
Participating Company Group, whether in
the capacity of an Employee, a Director or a Consultant. A
Participant’s Service shall not be deemed to have
terminated merely because of a change in the capacity in which the Participant
renders such Service or a change in the Participating Company for which the
Participant renders such Service, provided that there is no interruption or termination of the
Participant’s Service. Furthermore, a
Participant’s Service shall not be deemed to have
terminated if the Participant takes any military leave, sick leave, or other
bona fide leave of absence approved by the Company. However, if any such leave
taken

        

        


         

        
          
            
            

          

          
            7

            
              

            

          

          
            
            

          

        

         

         

        by
a Participant exceeds ninety (90) days, then on the ninety-first (91st) day
following the commencement of such leave the Participant’s
Service shall be deemed to have terminated
unless the Participant’s
right to return to Service is guaranteed by statute or
contract. Notwithstanding
the foregoing, unless otherwise designated by the Company, a leave of absence
shall be treated as Service for purposes of determining vesting under
the Participant’s
Award Agreement. A Participant’s
Service shall be deemed to have terminated either upon an actual termination of
Service or upon the entity for which the Participant performs Service ceasing to
be a Participating Company. Subject to the
foregoing, the Company, in its discretion, shall determine whether the
Participant’s
Service has terminated and the effective date of such
termination.

        


        (aaa) “Stock” means the common stock of the Company,
as adjusted from time to time in accordance with Section 4.4.

        


        (bbb)  “Stock
Award” means an Award of a Stock Bonus or a
Stock Purchase Right.

        


        (ccc)  “Stock
Bonus” means Stock granted to a Participant
pursuant to Section 8.

        


        (ddd) “Stock
Purchase Right” means a right to purchase Stock granted
to a Participant pursuant to Section 8.

        


        (eee) “Subsidiary
Corporation” means any present or future
“subsidiary
corporation” of the
Company, as defined in Section 424(f) of the Code.

        


        (fff) “Ten
Percent Owner” means a Participant who, at the time an
Option is granted to the Participant, owns stock possessing more than ten
percent (10%) of the total combined voting power of all classes of stock of a
Participating Company (other than an Affiliate) within the meaning of Section 422(b)(6) of the
Code.

        


        (ggg) “ Vesting
Conditions” mean those conditions established in
accordance with the Plan prior to the satisfaction of which shares subject to an
Award remain subject to forfeiture or a repurchase option in favor of the
Company exercisable for the Participant’s purchase price for such shares upon the
Participant’s termination of
Service.

        


        2.2 Construction. Captions and titles contained herein
are for convenience only and shall not affect the meaning or
interpretation of any provision of the Plan. Except when otherwise indicated by
the context, the singular shall include the plural and the plural shall include
the singular. Use of the term “or” is not intended to be exclusive, unless the context clearly
requires otherwise.

        


        3.           ADMINISTRATION.

        


        3.1 Administration by the
Committee. The Plan shall
be administered by the Committee. All questions of
interpretation of the Plan or of any Award shall be determined by the
Committee, and such
determinations shall be final and binding upon all persons having an interest in
the Plan or such Award.

        


        


        
          
            
            

          

          
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        3.2
Authority
of Officers.
Any Officer shall have the authority to act on behalf
of the Company with respect to any matter, right, obligation, determination or
election which is the responsibility of or which is allocated to the Company
herein, provided the Officer has apparent authority with respect to such matter,
right, obligation,
determination or election. The Board or Committee may, in its discretion,
delegate to a committee comprised of one or more Officers the authority to grant
one or more Awards, without further approval of the Board or the Committee, to
any Employee, other
than a person who, at the time of such grant, is an Insider; provided, however,
that (a) such Awards shall not be granted for shares in excess of the maximum
aggregate number of shares of Stock authorized for issuance pursuant to Section
4.1, (b)
each such
Award which is a Full Value Award shall be subject to minimum vesting provisions
described in Section 5.3(c), (c) each such Award shall be subject to the terms
and conditions of the appropriate standard form of Award Agreement approved by
the Board or the
Committee and shall conform to the provisions of the Plan, and (d) each such
Award shall conform to such limits and guidelines as shall be established from
time to time by resolution of the Board or the
Committee.

        


        3.3 Administration with
Respect to Insiders. With respect to
participation by Insiders in the Plan, at any time
that any class of equity security of the Company is registered pursuant to
Section 12 of the Exchange Act, the Plan shall be administered in compliance
with the requirements, if any, of Rule 16b-3.

        


        3.4 Committee Complying
with Section 162(m). If the
Company is a “publicly held corporation” within the meaning of Section 162(m),
the Board may establish a Committee of “outside directors” within the meaning of Section 162(m) to
approve the grant of any
Award intended to result in the payment of Performance-Based
Compensation.

        


        3.5 Powers of the
Committee. In addition to
any other powers set forth in the Plan and subject to the provisions
of the Plan, the Committee shall have the full and final power and authority, in its
discretion:

        


        (a) to determine the persons to whom,
and the time or times at which, Awards shall be granted and the number of shares
of Stock, units or monetary value to be subject to each
Award;

        


        
          (b)  to determine the type of Award
granted;

        

        


        
          (c)  to determine the Fair Market Value of
shares of Stock or other property;

        

        


        (d) to determine the terms, conditions
and restrictions applicable to each Award (which need not be identical) and any
shares acquired pursuant
thereto, including, without limitation, (i) the exercise or purchase price of
shares pursuant to any Award, (ii) the method of payment for shares purchased
pursuant to any Award, (iii) the method for satisfaction of any tax withholding
obligation arising in connection with Award,
including by the withholding or delivery of shares of Stock, (iv) the timing,
terms and conditions of the exercisability or vesting of any Award or any shares
acquired pursuant thereto, (v) the Performance Measures, Performance Period, Performance Award Formula
and Performance Goals applicable to any Award and the extent to which such
Performance Goals have been

         

        
 

        
          
            
            

          

          
            9

            
              

            

          

          
            
            

          

        

        


         

        attained, (vi) the
time of the expiration of any Award, (vii) the effect of the
Participant’s termination of Service on any of the
foregoing, and (viii) all other terms, conditions and restrictions applicable to
any Award or shares acquired pursuant thereto not inconsistent with the terms of
the Plan;

        


        (e) to determine whether an Award will
be settled in shares of Stock, cash, or in any combination
thereof;

        


        
          (f)  to approve one or more forms of Award
Agreement;

        

        


        
          (g)  to amend, modify, extend, cancel or
renew any Award or to waive any restrictions or conditions applicable to any Award or any
shares acquired pursuant thereto;

        

        


        (h) to accelerate, continue, extend or
defer the exercisability or vesting of any Award or any shares acquired pursuant
thereto, including with respect to the period following a Participant’s termination of
Service;

        


        (i) without the consent of the affected
Participant and notwithstanding the provisions of any Award Agreement to the
contrary, to unilaterally substitute at any time a Stock Appreciation Right
providing for settlement solely in shares of Stock in place of any
outstanding Option, provided that such Stock Appreciation Right covers the same
number of shares of Stock and provides for the same exercise price (subject in
each case to adjustment in accordance with Section 4.4) as the replaced Option and otherwise
provides substantially equivalent terms and conditions as the replaced Option,
as determined by the Committee;

        


        (j) to prescribe, amend or rescind
rules, guidelines and policies relating to the Plan, or to adopt sub- plans or
supplements to, or alternative versions of, the Plan, including, without
limitation, as the Committee deems necessary or desirable to comply with the laws or regulations of or to
accommodate the tax policy, accounting principles or custom of, foreign
jurisdictions whose citizens may be granted Awards; and

        


        (k) to correct any defect, supply any
omission or reconcile any inconsistency in the Plan or any Award Agreement and to make all
other determinations and take such other actions with respect to the Plan or any
Award as the Committee may deem advisable to the extent not inconsistent with
the provisions of the Plan or applicable law.

        


        3.6 Option or SAR
Repricing. Except in
connection with a corporate transaction involving the Company
(including, without limitation, any stock dividend, stock split, extraordinary
cash dividend, recapitalization, reorganization, merger, consolidation,
split-up, spin-off,
combination, or exchange of shares), the Company shall not amend the terms of
outstanding awards to reduce the exercise price of outstanding Options or SARs
or cancel outstanding Options or SARS in exchange for cash, other awards or
Options or SARs with an exercise price that is less than
the exercise price of the original Options or SARs without stockholder approval
This paragraph shall not be construed to apply to “issuing or assuming a stock option in a
transaction to which Section 424(a) applies,” within the meaning of Section 424 of the
Code.

        


        


        
          
            
            

          

          
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        3.7 Indemnification. In addition to such other rights of
indemnification as they may have as members of the Board or
the Committee or as officers or employees of the Participating Company
Group, members of the Board or the Committee and any officers or employees of
the Participating Company Group to whom authority to act for the Board, the
Committee or the Company is delegated shall be indemnified by the Company against all reasonable expenses,
including attorneys’ fees, actually and necessarily incurred
in connection with the defense of any action, suit or proceeding, or in
connection with any appeal therein, to which they or any of them may be a party
by reason of any action taken or failure
to act under or in connection with the Plan, or any right granted hereunder, and
against all amounts paid by them in settlement thereof (provided such settlement
is approved by independent legal counsel selected by the Company) or paid by them in
satisfaction of a judgment in any such action, suit or proceeding, except in
relation to matters as to which it shall be adjudged in such action, suit or
proceeding that such person is liable for gross negligence, bad faith
or intentional misconduct in duties;
provided, however, that within sixty (60) days after the institution of such
action, suit or proceeding, such person shall offer to the Company, in writing,
the opportunity at its own expense to handle and defend the same.

        


        4.           SHARES
SUBJECT
TO
PLAN.

        


        4.1 Maximum Number of
Shares Issuable. Subject to
adjustment as provided in Sections 4.2, 4.3 and 4.4,
the maximum aggregate number of shares of Stock that may be issued under the
Plan shall be equal to the lesser of (a) the number of shares of Stock available
for grant under the Predecessor Plan as of the Effective Date or (b) 42,000,000 shares, plus 30
million shares added effective May 28, 2009, plus 125 million shares added
effective May 13, 2010, and shall consist of authorized but unissued or
reacquired shares of Stock or any combination thereof.

        


        4.2 Share
Accounting. If an outstanding Award for any reason
expires or is terminated or canceled without having
been exercised or settled in full, or if shares of Stock acquired pursuant to an
Award subject to forfeiture or repurchase are forfeited or repurchased by the
Company for an amount not
greater than the Participant’s original purchase price, the shares of
Stock allocable to the terminated portion of such Award or such forfeited or
repurchased shares of Stock shall again be available for issuance under the
Plan. Shares of Stock shall not be deemed to
have been issued pursuant to the Plan with respect to any portion of an Award,
other than an Option or SAR, that is settled in cash. Shares withheld or
reacquired by the Company in satisfaction of tax withholding obligations pursuant to Section 17.2 shall
not again be available for issuance under the Plan. Upon payment in shares of
Stock pursuant to the exercise of an SAR, the number of shares available for
issuance under the Plan shall be reduced by the gross number of shares for which the SAR is exercised.
If the exercise price of an Option is paid by tender to the Company, or
attestation to the ownership, of shares of Stock owned by the Participant, or by
means of a Net-Exercise, the number of shares available for issuance under the Plan shall be reduced by
the gross number of shares for which the Option is
exercised.

        


        4.3 Adjustment for
Unissued or Forfeited Predecessor Plan Shares. The maximum aggregate number of shares of
Stock that may be issued under the Plan as set forth in Section 4.1 shall be
cumulatively increased from time to time by:

        


         

        
          
            
            

          

          
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        (a) the number of
shares of Stock subject to that portion of any award outstanding pursuant to the
Predecessor Plan as of the Effective Date which, on or after such date, expires
or is terminated or canceled for any reason without having been exercised
or settled; and

        


        (b) the number of shares of Stock
acquired pursuant to the Predecessor Plan subject to forfeiture or repurchase by
the Company which, on or after the Effective Date, are so forfeited or
repurchased for an amount not greater than the Participant’s original purchase
price;

        


        provided, however, that the aggregate
number of shares of Stock authorized for issuance under the Predecessor Plans
that may become authorized for issuance under the Plan pursuant to this Section
4.3 shall not exceed thirty-nine million (39,000,000), subject to
adjustment as provided in Section 4.4.

        


        4.4 Adjustments for
Changes in Capital Structure. Subject to any required action by the stockholders of the
Company, in the event of any change in the Stock effected without
receipt of consideration by
the Company, whether through merger, consolidation, reorganization,
reincorporation, recapitalization, reclassification, stock dividend, stock
split, reverse stock split, split-up, split-off, spin-off, combination of
shares, exchange of shares, or similar change in the
capital structure of the Company, or in the event of payment of a dividend or
distribution to the stockholders of the Company in a form other than Stock
(excepting normal cash dividends) that has a material effect on the Fair Market Value of shares of Stock,
appropriate adjustments shall be made in the number and kind of shares subject
to the Plan and to any outstanding Awards, in the maximum adjustment for
unissued or forfeited Predecessor Plan shares set forth in Section 4.3, in the Award limits set forth in
Section 5.3 and in the exercise or purchase price per share under any
outstanding Award in order to prevent dilution or enlargement of
Participants’ rights under the Plan. For purposes of
the foregoing, conversion of any convertible securities of the
Company shall not be treated as “effected without receipt of
consideration by the Company.” If a majority of the shares which are
of the same class as the shares that are subject to outstanding Awards are
exchanged for, converted into, or otherwise become
(whether or not pursuant to an Ownership Change Event) shares of another
corporation (the “New
Shares ”), the Committee may unilaterally amend
the outstanding Awards to provide that such Awards are for New Shares. In
the event of any such
amendment, the number of shares subject to, and the exercise or purchase price
per share of, the outstanding Awards shall be adjusted in a fair and equitable
manner as determined by the Committee, in its discretion. Any fractional
share resulting from an adjustment pursuant to
this Section 4.4 shall be rounded down to the nearest whole number, and in no
event may the exercise or purchase price under any Award be decreased to an
amount less than the par value, if any, of the stock subject to such Award. The Committee in its sole
discretion, may also make such adjustments in the terms of any Award to reflect,
or related to, such changes in the capital structure of the Company or
distributions as it deems appropriate, including modification of Performance Goals, Performance Award
Formulas and Performance Periods. The adjustments determined by the Committee
pursuant to this Section 4.4 shall be final, binding and
conclusive.

        


        The Committee may, without affecting the
number of Shares reserved or available hereunder, authorize the
issuance or assumption of benefits under this Plan in connection with any
merger, consolidation, acquisition of property or stock, or reorganization upon
such terms

        


        


        
          
            
            

          

          
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        and conditions as it
may deem appropriate, subject to compliance with Sections 409A and 422 and any
related guidance issued by the U.S. Treasury Department, where
applicable.

        


        5.           ELIGIBILITY,
PARTICIPATION
AND
AWARD
LIMITATIONS.

        


        5.1 Persons Eligible for
Awards. Awards may be granted only to
Employees, Consultants and Directors. A Nonemployee
Director Award may be granted only to a person who, at the time of grant, is a
Nonemployee Director.

        


        5.2 Participation in
Plan. Awards are granted
solely at the discretion of the Committee. Eligible persons may be
granted more than one Award. However, eligibility in accordance with this
Section shall not entitle any person to be granted an Award, or, having been
granted an Award, to be
granted an additional Award.

        


        
          5.3  Award
Limitations.

        

        


        
          	
                  (a)  

                	
                  Incentive
      Stock Option Limitations.

                


        

        


        (i) Maximum Number of
Shares Issuable Pursuant to Incentive Stock
Options. Subject to
adjustment as provided in Section 4.4, the maximum aggregate number of shares of Stock that
may be issued under the Plan pursuant to the exercise of Incentive Stock Options
shall not exceed forty two million (42,000,000) shares, plus any shares added to
the aggregate number of shares under the Plan pursuant to Section 4.1 as a result of
stockholder approval following the Effective Date. The maximum aggregate number
of shares of Stock that may be issued under the Plan pursuant to all Awards
other than Incentive Stock Options shall be the number of shares determined in accordance with Section 4.1,
subject to adjustment as provided in Section 4.2, 4.3 and Section
4.4.

        


        (ii) Persons
Eligible. An Incentive
Stock Option may be granted only to a person who, on the effective date of
grant, is an Employee of the Company, a Parent Corporation or a
Subsidiary Corporation (each being an “ISO-Qualifying
Corporation”). Any person who is not an Employee of
an ISO-Qualifying Corporation on the effective date of the grant of an Option to
such person may be granted only a Nonstatutory Stock Option. An Incentive
Stock Option granted to a prospective Employee upon the condition that such
person become an Employee of an ISO-Qualifying Corporation shall be deemed
granted effective on the date such person commences Service with an ISO-Qualifying Corporation, with an
exercise price determined as of such date in accordance with Section
8.2.

        


        (iii) Fair Market Value
Limitation. To the extent
that options designated as Incentive Stock Options (granted under all stock
option plans of the Participating Company Group, including the Plan) become
exercisable by a Participant for the first time during any calendar year for
stock having a Fair Market Value greater than One
Hundred Thousand Dollars ($100,000), the portion of such options which exceeds
such amount shall be treated as Nonstatutory Stock Options. For purposes of this
Section, options designated as Incentive Stock Options shall be taken 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 option with respect to such stock is granted. If
the Code is amended to provide for a limitation different from that set forth in this Section, such
different limitation shall be deemed incorporated herein effective as of
the

        


        


        
          
            
            

          

          
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        date and with respect
to such Options as required or permitted by such amendment to the
Code. If an Option is
treated as an Incentive Stock Option in part and as a Nonstatutory Stock Option
in part by reason of the limitation set forth in this Section, the Participant
may designate which portion of such Option the Participant is exercising. In
the absence of such designation, the
Participant shall be deemed to have exercised the Incentive Stock Option portion
of the Option first. Upon exercise, shares issued pursuant to each such portion
shall be separately identified.

        


        (b) Limit
on Full Value Awards
without Minimum Vesting.
Except with respect to a maximum of five percent (5%) of the maximum aggregate
number of shares of Stock that may be issued under the Plan, as provided in
Sections 4.1, 4.2, 4.3 and 4.4, any Full Value Award which vests on
the basis of the
Participant’s continued Service shall not provide
for vesting which is any more rapid than over a period of three (3) years, and
any Full Value Award which vests on the basis of the attainment of performance
goals shall not provide for a performance period of less than twelve (12)
months; provided, however, that such limitations shall not preclude the
acceleration of vesting of any such Award upon the death, disability, retirement
or involuntary termination of Service of the Participant or upon or following a Change in Control, as
determined by the Committee in its discretion.

        


        (c) Section 162(m)
Award Limits. The following
limits shall apply to the grant of any Award if, at the time of grant, the
Company is a “publicly held
corporation”
within the meaning of
Section 162(m).

        


        (i) Options and
SARs. Subject to adjustment
as provided in Section 4.4, no Employee shall be granted within any fiscal year
of the Company one or more Options or Freestanding SARs which in the aggregate
are for more than two million five hundred thousand (2,500,000)
shares.

        


        (ii) Stock Awards and
Restricted Stock Unit Awards. Subject to adjustment as provided in
Section 4.4, no Employee shall be granted within any fiscal year of the Company
one or more Stock Awards or Restricted Stock Unit Awards, the grant or vesting
of which is based on the
attainment of Performance Goals, for more than one million five hundred thousand
(1,500,000) shares.

        


        (iii)
Performance
Awards.
Subject to adjustment as provided in Section 4.4, no Employee shall be granted
(1) Performance Shares which could
result in such Employee receiving more than one million five hundred thousand
(1,500,000) shares for each full fiscal year of the Company contained in the
Performance Period for such Award, or (2)
Performance Units which could result in such Employee receiving
more than five million ($5,000,000) for each full fiscal year of the Company
contained in the Performance Period for such Award. No Participant may be
granted more than one Performance Award for the same Performance
Period.

        


        (iv) Cash-Based
Awards
and Other Stock-Based Awards. Subject to adjustment as provided in
Section 4.4, no Employee shall be granted (1) Cash-Based Awards in any fiscal
year of the Company, the grant or vesting of which is based on the attainment of
Performance Goals, which could result in such Employee receiving more
than five million ($5,000,000), or (2) Other Stock-Based Awards in any fiscal
year of the Company, the

        


        


        
          
            
            

          

          
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        grant or vesting of
which is based on the attainment of Performance Goals, which could result in
such Employee receiving more than one million five hundred thousand (1,500,000)
shares.

        


        6.           STOCK
OPTIONS.

        


        Options
shall be evidenced by Award Agreements specifying
the number of shares of Stock covered thereby, in such form as the Committee
shall from time to time establish. No Option or purported Option shall be a
valid and binding obligation of the Company unless evidenced by a fully executed
Award Agreement.
Award Agreements evidencing Options may incorporate all or any of the terms of
the Plan by reference, including the provisions of Section
19 with respect to Section 409A if applicable, and, except as otherwise set
forth in Section 12 with respect to Nonemployee
Director Options, shall comply with and be subject to the following terms and
conditions:

        


        6.1 Exercise
Price. The exercise price
for each Option shall be established in the discretion of the Committee;
provided, however, that (a) the exercise price per share shall be not less than the
Fair Market Value of a share of Stock on the effective date of grant of the
Option and (b) no Incentive Stock Option granted to a Ten Percent Owner shall
have an exercise price per share less than one hundred ten percent (110%) of the Fair Market Value of a
share of Stock on the effective date of grant of the Option. Notwithstanding the
foregoing, an Option (whether an Incentive Stock Option or a Nonstatutory Stock
Option) may be granted with an exercise price lower than the minimum exercise price set forth
above if such Option is granted pursuant to an assumption or substitution for
another option in a manner qualifying under the provisions of Section 424(a) of
the Code.

        


        6.2 Exercisability and
Term of Options. Options
shall be exercisable at such time or times, or upon such event
or events, and subject to such terms, conditions, performance criteria and
restrictions as shall be determined by the Committee and set forth in the Award
Agreement evidencing such Option; provided, however, that (a) no
Option shall be exercisable after the expiration of ten (10) years after the
effective date of grant of such Option and (b) no Incentive Stock Option granted
to a Ten Percent Owner shall be exercisable after the expiration of five (5) years after the
effective date of grant of such Option. Subject to the foregoing, unless
otherwise specified by the Committee in the grant of an Option, each Option
granted hereunder shall terminate ten (10) years after the effective date
of grant of the Option, unless earlier
terminated in accordance with its provisions.

        


        6.3  Payment of Exercise
Price.

        


        (a) Forms
of Consideration Authorized. Except as otherwise provided below,
payment of the exercise price for the number of shares of Stock being purchased pursuant to any
Option shall be made (i) in cash or by check or cash equivalent, (ii) by tender
to the Company, or attestation to the ownership, of shares of Stock owned by the
Participant having a Fair Market Value not less than the exercise price, (iii) by delivery of a
properly executed notice of exercise together with irrevocable instructions to a
broker providing for the assignment to the Company of the proceeds of a sale or
loan with respect to some or all of the shares being acquired upon the exercise of the Option
(including, without limitation, through an exercise complying with the
provisions of Regulation T as promulgated from time to time by the Board of
Governors of the Federal Reserve System) (a “Cashless
Exercise”), (iv) by delivery of a

         

        
 

        
          
            
            

          

          
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        properly executed
notice electing a Net-Exercise, (v) by such other consideration as may be
approved by the Committee from time to time to the extent permitted by
applicable law, provided,
however, that the Committee shall not permit payment by means of a
Participant’s promissory note, or (vi) by any
combination thereof. The Committee may at any time or from time to time grant
Options which do not permit all of the foregoing forms of consideration to be used in payment of the
exercise price or which otherwise restrict one or more forms of
consideration.

        


        (b)           Limitations
on Forms of Consideration.

        


        (i) Tender of
Stock. Notwithstanding the
foregoing, an Option may not be exercised by tender to the Company, or
attestation to the ownership, of shares of Stock to the extent such tender or
attestation would constitute a violation of the provisions of any law,
regulation or agreement restricting the redemption of
the Company’s stock. Unless otherwise provided by
the Committee, an Option may not be exercised by tender to the Company, or
attestation to the ownership, of shares of Stock unless such shares either have
been owned by the Participant for more than six (6)
months (or such other period, if any, as the Committee may permit) and not used
for another Option exercise by attestation during such period, or were not
acquired, directly or indirectly, from the Company.

        


        (ii) Cashless
Exercise. The Company
reserves, at any and all times, the right, in the Company’s sole and absolute discretion, to
establish, decline to approve or terminate any program or procedures for the
exercise of Options by means of a Cashless Exercise, including with respect to one or more
Participants specified by the Company notwithstanding that such program or
procedures may be available to other Participants.

        


        6.4  Effect of Termination
of Service.

        


        (a) Option
Exercisability. Subject to
earlier termination of the Option as otherwise provided herein and unless
otherwise provided by the Committee in the grant of an Option and set forth in
the Award Agreement, an Option shall terminate immediately upon the
Participant’s termination of Service to the extent that it is
then unvested and shall be exercisable after the Participant’s termination of Service to the extent
it is then vested only during the applicable time period determined in
accordance with this Section and thereafter shall terminate:

        


        


        (i) Disability. If the Participant’s Service terminates because of the
Disability of the Participant, the Option, to the extent unexercised and
exercisable on the date on which the Participant’s Service terminated, may be exercised
by the Participant (or the Participant’s guardian or legal representative) at
any time prior to the expiration of twelve (12) months after the date on which
the Participant’s Service terminated, but in any event
no later than the date of expiration of the
Option’s term as set forth in the Award
Agreement evidencing such Option (the “Option
Expiration Date”).

        


        (ii) Death. If the Participant’s Service terminates because of the
death of the Participant, any unexercisable or unvested portion of the Option shall
be immediately exercisable and vested in full on the date on which the
Participant’s Service terminated and may be
exercised by the Participant’s legal representative or other person
who

        


        


        
          
            
            

          

          
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        acquired the right to
exercise the Option by reason of the Participant’s death at any time prior to the
expiration of twelve (12) months after the date on which the
Participant’s Service terminated, but in any event
no later than the Option
Expiration Date. The Participant’s Service shall be deemed to have
terminated on account of death if the Participant dies within three (3) months
after the Participant’s termination of
Service.

        


        (iii) Termination for
Cause. Notwithstanding
any other provision of the
Plan to the contrary, if the Participant’s Service is terminated for Cause or if,
following the Participant’s termination of Service and during any
period in which the Option otherwise would remain exercisable, the Participant
engages in any act that would constitute
Cause for termination of Service, the Option shall terminate in its entirety and
cease to be exercisable immediately upon such termination of Service or
act.

        


        (iv) Other Termination of
Service. If the
Participant’s Service terminates for any reason,
except Disability, death or Cause, the Option, to the extent unexercised and
exercisable by the Participant on the date on which the Participant’s Service terminated, may be exercised
by the Participant (1) at any time prior to the expiration of six (6)
months after the date on which the Participant’s Service terminated if the Participant
remains subject to the Insider Trading Policy for a period of at least sixty
(60) days following the date on which the Participant’s Service terminated or (2) at any time
prior to the expiration of three (3) months after the date on which the
Participant’s Service terminated in the case of any
other Participant, but in any event no later than the Option Expiration
Date.

        


        (b) Extension
if
Exercise Prevented by Law.
Notwithstanding the foregoing, other than termination for Cause, if the exercise
of an Option within the applicable time periods set forth in Section 6.4(a) is
prevented by the provisions of Section 16 below, the Option shall remain exercisable until three (3) months
(or such longer period of time as determined by the Committee, in its
discretion) after the date the Participant is notified by the Company that the
Option is exercisable, but in any event no later than the Option Expiration Date.

        


        (c) Extension
if Participant Subject to
Section 16(b). Notwithstanding the foregoing, other
than termination for Cause, if a sale within the applicable time periods set
forth in Section 6.4(a) of shares acquired upon the exercise of the
Option would subject the
Participant to suit under Section 16(b) of the Exchange Act, the Option shall
remain exercisable until the earliest to occur of (i) the tenth (10th) day
following the date on which a sale of such shares by the Participant would no
longer be subject to such suit, (ii) the
one hundred and ninetieth (190th) day after the Participant’s termination of Service, or (iii) the
Option Expiration Date.

        


        6.5 Transferability of
Options. During the
lifetime of the Participant, an Option shall be exercisable only by the Participant or the
Participant’s guardian or legal representative. An
Option shall not be subject in any manner to anticipation, alienation, sale,
exchange, transfer, assignment, pledge, encumbrance, or garnishment by creditors
of the Participant or the
Participant’s beneficiary, except transfer by will
or by the laws of descent and distribution. Notwithstanding the foregoing, a
Nonstatutory Stock Option shall be assignable or transferable to the extent
permitted by the Committee, in its discretion, and set forth in the Award
Agreement evidencing such Option.

        


         

        
          
            
            

          

          
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        7.           STOCK
APPRECIATION
RIGHTS.

        


        Stock Appreciation Rights shall be
evidenced by Award Agreements specifying the number of shares of Stock subject
to the Award, in such form as the Committee shall from time to time establish.
No SAR or purported SAR shall be a valid and binding obligation of the Company unless evidenced by a
fully executed Award Agreement. Award Agreements evidencing SARs may incorporate
all or any of the terms of the Plan by reference, including provisions of
Section 19 with respect to Section 409A if applicable, and shall comply with and be subject to the
following terms and conditions:

        


        7.1 Types of SARs
Authorized. SARs may be
granted in tandem with all or any portion of a related Option (a
“Tandem
SAR”) or may be granted independently of any
Option (a “Freestanding
SAR”). A Tandem SAR may only be granted
concurrently with the grant of the related Option.

        


        7.2 Exercise
Price. The exercise price
for each SAR shall be established in the discretion of the Committee;
provided, however, that (a) the exercise price per share subject to a Tandem SAR shall be the
exercise price per share under the related Option and (b) the exercise price per
share subject to a Freestanding SAR shall be not less than the Fair Market Value
of a share of Stock on the effective date of grant of the SAR.

        


        7.3  Exercisability and
Term of SARs.

        


        (a) Tandem
SARs. Tandem SARs shall be
exercisable only at the time and to the extent, and only to the extent, that the
related Option is exercisable, subject to such provisions as the Committee may
specify where the Tandem
SAR is granted with respect to less than the full number of shares of Stock
subject to the related Option. The Committee may, in its discretion, provide in
any Award Agreement evidencing a Tandem SAR that such SAR may not be exercised
without the advance approval of the Company
and, if such approval is not given, then the Option shall nevertheless remain
exercisable in accordance with its terms. A Tandem SAR shall terminate and cease
to be exercisable no later than the date on which the related Option expires or is terminated or
canceled. Upon the exercise of a Tandem SAR with respect to some or all of the
shares subject to such SAR, the related Option shall be canceled automatically
as to the number of shares with respect to which the Tandem SAR was exercised. Upon the exercise of
an Option related to a Tandem SAR as to some or all of the shares subject to
such Option, the related Tandem SAR shall be canceled automatically as to the
number of shares with respect to which the related Option was exercised.

        


        (b) Freestanding
SARs. Freestanding SARs
shall be exercisable at such time or times, or upon such event or events, and
subject to such terms,
conditions, performance criteria and restrictions as shall be determined by the
Committee and set forth in the Award Agreement evidencing such SAR; provided,
however, that no Freestanding SAR shall be exercisable after the expiration of
ten (10) years after the effective date of
grant of such SAR.

        


        7.4 Exercise of
SARs. Upon the exercise (or
deemed exercise pursuant to Section 7.5) of an SAR, the Participant
(or the Participant’s legal representative or other person
who acquired the right to
exercise the SAR by reason of the Participant’s death) shall be entitled to receive
payment of an amount for each share with respect to which the SAR is exercised
equal

        


        


        
          
            
            

          

          
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        to the excess, if any,
of the Fair Market Value of
a share of Stock on the date of exercise of the SAR over the exercise price.
Payment of such amount shall be made (a) in the case of a Tandem SAR, solely in
shares of Stock in a lump sum as soon as practicable following the date of
exercise of the SAR and (b) in the case of a
Freestanding SAR, in cash, shares of Stock, or any combination thereof as
determined by the Committee in compliance with Section 409A. Unless otherwise
provided in the Award Agreement evidencing a Freestanding SAR, payment shall be made in a lump sum as
soon as practicable following the date of exercise of the SAR. The Award
Agreement evidencing any Freestanding SAR may provide for deferred payment in a
lump sum or in installments in compliance with Section 409A. When payment is to be made in shares of
Stock, the number of shares to be issued shall be determined on the basis of the
Fair Market Value of a share of Stock on the date of exercise of the SAR. For
purposes of Section 7, an SAR shall be deemed exercised on the date on which the Company receives
notice of exercise from the Participant or as otherwise provided in Section
7.5.

        


        7.5 Deemed Exercise of
SARs. If, on the date on
which an SAR would otherwise terminate or expire, the SAR
by its terms remains exercisable immediately prior to such termination
or expiration and, if so exercised, would result in a payment to the holder of
such SAR, then any portion of such SAR which has not previously been exercised
shall automatically be deemed to be exercised as of such date with respect to such
portion.

        


        7.6 Effect of Termination
of Service. Subject to
earlier termination of the SAR as otherwise provided herein and
unless otherwise provided by the Committee in the grant of an SAR and set forth
in the Award Agreement, an SAR shall be exercisable after a
Participant’s termination of Service only to the
extent and during the applicable time period determined in accordance with
Section 6.4 (treating the SAR as if it were an Option) and thereafter shall
terminate.

        


        7.7 Nontransferability of
SARs. During the lifetime
of the Participant, an SAR shall be exercisable only by the
Participant or the Participant’s guardian or legal representative. An
SAR shall not be subject in any manner to anticipation, alienation, sale,
exchange, transfer,
assignment, pledge, encumbrance, or garnishment by creditors of the Participant
or the Participant’s beneficiary, except transfer by will
or by the laws of descent and distribution. Notwithstanding the foregoing, a
Tandem SAR related to a Nonstatutory Stock Option or a
Freestanding SAR shall be assignable or transferable to the extent permitted by
the Committee, in its discretion, and set forth in the Award Agreement
evidencing such SAR.

        


        8.           STOCK
AWARDS.

        


        Stock Awards shall be evidenced
by Award Agreements
specifying whether the Award is a Stock Bonus or a Stock Purchase Right and the
number of shares of Stock subject to the Award, in such form as the Committee
shall from time to time establish. No Stock Award or purported Stock Award
shall be a valid and binding obligation of
the Company unless evidenced by a fully executed Award Agreement. Award
Agreements evidencing Stock Awards may incorporate all or any of the terms of
the Plan by reference, including the provisions of Section 19 with respect to Section 409A, if applicable,
and shall comply with and be subject to the following terms and
conditions:

        


        


        


        
          
            
            

          

          
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        8.1 Types of Stock Awards
Authorized. Stock Awards
may be granted in the form of either a Stock Bonus or a
Stock Purchase Right. Stock Awards may be granted upon such conditions as the
Committee shall determine, including, without limitation, upon the attainment of
one or more Performance Goals described in Section 10.4. If either the grant of a Stock Award or
the lapsing of the Restriction Period is to be contingent upon the attainment of
one or more Performance Goals, the Committee shall follow procedures
substantially equivalent to those set forth in Sections 10.3 through 10.5(a).

        


        8.2 Purchase
Price. The purchase price
for shares of Stock issuable under each Stock Purchase Right shall be
established by the Committee in its discretion. No monetary payment (other than
applicable tax withholding) shall be required as a condition of receiving shares
of Stock pursuant to a Stock Bonus, the consideration for which shall be services actually rendered
to a Participating Company or for its benefit. Notwithstanding the foregoing, if
required by applicable state corporate law, the Participant shall furnish
consideration in the form of cash or past services rendered to a Participating Company or for its
benefit having a value not less than the par value of the shares of Stock
subject to a Stock Award.

        


        8.3 Purchase
Period. A Stock Purchase
Right shall be exercisable within a period established by the Committee,
which shall in no event
exceed thirty (30) days from the effective date of the grant of the Stock
Purchase Right.

        


        8.4 Payment of Purchase
Price. Except as otherwise
provided below, payment of the purchase price for the
number of shares of Stock being purchased pursuant to any Stock Purchase Right
shall be made (i) in cash or by check or cash equivalent, (ii) by such other
consideration as may be approved by the Committee from time to time to the
extent permitted by applicable law, or (iii) by any combination thereof. The Committee may at any time or
from time to time grant Stock Purchase Rights which do not permit all of the
foregoing forms of consideration to be used in payment of the purchase price or
which otherwise restrict one or more forms of consideration.

        


        8.5 Vesting and
Restrictions on Transfer.
Subject to Section 5.3(b), Shares issued pursuant to any Stock Award may
(but need not) be made subject to Vesting Conditions based upon the satisfaction
of such Service requirements, conditions, restrictions or performance criteria, including, without
limitation, Performance Goals as described in Section 10.4, as shall be
established by the Committee and set forth in the Award Agreement evidencing
such Award. During any Restriction Period in which shares acquired pursuant to a Stock Award remain subject
to Vesting Conditions, such shares may not be sold, exchanged, transferred,
pledged, assigned or otherwise disposed of other than pursuant to an Ownership
Change Event or as provided in Section 8.8. The Committee, in its discretion, may provide in any
Award Agreement evidencing a Stock Award that, if the satisfaction of Vesting
Conditions with respect to any shares subject to such Stock Award would
otherwise occur on a day on which the sale of such shares would violate the Company’s Insider Trading Policy, then the
satisfaction of the Vesting Conditions automatically be deemed to occur on the
next day on which the sale of such shares would not violate the Insider Trading
Policy. Upon request by the Company, each Participant shall execute any agreement
evidencing such transfer restrictions prior to the receipt of shares of Stock
hereunder and shall promptly present to the Company any and all certificates
representing shares of Stock acquired hereunder for the placement on such certificates of appropriate
legends evidencing any such transfer restrictions.

        


         

        
          
            
            

          

          
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        8.6 Voting Rights;
Dividends and Distributions. Except as provided in this Section, Section 8.5 and any Award
Agreement; during any Restriction Period applicable to shares subject to a Stock
Award, the Participant shall have all of the rights of a stockholder of the
Company holding shares of Stock, including the right to vote such shares and to receive all dividends
and other distributions paid with respect to such shares. However, in the event
of a dividend or distribution paid in shares of Stock or other property or any
other adjustment made upon a change in the capital structure of the Company as described in Section
4.4, any and all new, substituted or additional securities or other property
(other than normal cash dividends) to which the Participant is entitled by
reason of the Participant’s Stock Award shall be immediately
subject to the same Vesting Conditions as
the shares subject to the Stock Award with respect to which such dividends or
distributions were paid or adjustments were made.

        


        8.7 Effect of Termination
of Service. Unless
otherwise provided by the Committee in the Award Agreement evidencing a Stock
Award, if a Participant’s Service terminates for any reason,
whether voluntary or involuntary (including the Participant’s death or disability), then (a) the
Company shall have the option to repurchase for the purchase price paid by the Participant any shares
acquired by the Participant pursuant to a Stock Purchase Right which remain
subject to Vesting Conditions as of the date of the Participant’s termination of Service and (b) the
Participant shall forfeit to the Company any shares acquired by the Participant
pursuant to a Stock Bonus which remain subject to Vesting Conditions as of the
date of the Participant’s termination of Service. The Company
shall have the right to assign at any time any repurchase right it may
have, whether or not such right is then
exercisable, to one or more persons as may be selected by the
Company.

        


        8.8 Nontransferability of
Stock Award Rights. Rights
to acquire shares of Stock pursuant to a Stock Award shall
not be subject in any manner to anticipation, alienation, sale, exchange,
transfer, assignment, pledge, encumbrance or garnishment by creditors of the
Participant or the Participant’s beneficiary, except transfer by will
or the laws of descent and distribution. All rights with respect to
a Stock Award granted to a Participant
hereunder shall be exercisable during his or her lifetime only by such
Participant or the Participant’s guardian or legal
representative.

        


        9.           RESTRICTED
STOCK
UNIT
AWARDS.

        


        Restricted Stock Unit Awards shall be
evidenced by Award
Agreements specifying the number of Restricted Stock Units subject to the Award,
in such form as the Committee shall from time to time establish. No Restricted
Stock Unit Award or purported Restricted Stock Unit Award shall be a valid and
binding obligation of the Company unless
evidenced by a fully executed Award Agreement. Award Agreements evidencing
Restricted Stock Units may incorporate all or any of the terms of the Plan by
reference, including the provisions of

        Section 19 with respect to
Section 409A, if
applicable, and shall comply with and be subject to the following terms and
conditions:

        


        9.1 Grant of Restricted
Stock Unit Awards.
Restricted Stock Unit Awards may be granted upon such conditions as
the Committee shall determine, including, without limitation, upon the
attainment of one or more Performance Goals described in Section 10.4. If either
the grant of a Restricted Stock Unit Award or the Vesting Conditions with respect to such Award is to be
contingent upon the attainment of one or more Performance Goals,
the

        


         

        
          
            
            

          

          
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        Committee shall follow
procedures substantially equivalent to those set forth in Sections
10.3 through
10.5(a).

        


        9.2 Purchase
Price. No monetary payment
(other than applicable tax withholding, if any) shall be required
as a condition of receiving a Restricted Stock Unit Award, the consideration for
which shall be services actually rendered to a Participating Company or for its benefit.
Notwithstanding the foregoing, if required by applicable state corporate law,
the Participant shall furnish consideration in the form of cash or past services
rendered to a Participating Company or for its benefit having a value not less than the par value
of the shares of Stock issued upon settlement of the Restricted Stock Unit
Award.

        


        9.3 Vesting. Subject to Section 5.3(b), Restricted
Stock Unit Awards may (but need not) be made subject to
Vesting Conditions based upon the satisfaction of such Service
requirements, conditions, restrictions or performance criteria, including,
without limitation, Performance Goals as described in Section 10.4, as shall be
established by the Committee and set forth in the Award Agreement evidencing such
Award.

        


        9.4 Voting Rights,
Dividend Equivalent Rights and Distributions. Participants shall have no voting rights
with respect to shares of Stock represented by Restricted Stock Units until the
date of the issuance of such shares (as evidenced by the appropriate entry on the
books of the Company or of a duly authorized transfer agent of the Company).
However, the Committee, in its discretion, may provide in the Award Agreement
evidencing any Restricted Stock Unit Award that the Participant shall be entitled to receive Dividend
Equivalents with respect to the payment of cash dividends on Stock during the
period beginning on the date such Award is granted and ending, with respect to
the particular shares subject to the Award, on the earlier of the date the Award is settled or the
date on which it is terminated. Such Dividend Equivalents, if any, shall be paid
by crediting the Participant with additional whole Restricted Stock Units as of
the date of payment of such cash dividends on Stock. The number of additional Restricted Stock
Units (rounded to the nearest whole number) to be so credited shall be
determined by dividing (a) the amount of cash dividends paid on such date with
respect to the number of shares of Stock represented by the Restricted Stock Units previously credited to
the Participant by (b) the Fair Market Value per share of Stock on such date.
Such additional Restricted Stock Units shall be subject to the same terms and
conditions and shall be settled in the same manner and at the same time (or as soon thereafter as
practicable) as the Restricted Stock Units originally subject to the Restricted
Stock Unit Award. In the event of a dividend or distribution paid in shares of
Stock or other property or any other adjustment made upon a change in the capital structure of the
Company as described in Section 4.4, appropriate adjustments shall be made in
the Participant’s Restricted Stock Unit Award so that it
represents the right to receive upon settlement any and all new, substituted or
additional securities or other property
(other than normal cash dividends) to which the Participant would be entitled by
reason of the shares of Stock issuable upon settlement of the Award, and all
such new, substituted or additional securities or other property shall be immediately subject to the
same Vesting Conditions as are applicable to the Award.

        


        9.5 Effect of Termination
of Service. Unless
otherwise provided by the Committee and set forth in the Award
Agreement evidencing a Restricted Stock Unit Award, if a Participant’s Service terminates for any reason,
whether voluntary or involuntary (including the Participant’s death or disability), then the
Participant shall forfeit to the Company any
Restricted

        


         

        
          
            
            

          

          
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        Stock Units pursuant
to the Award which remain subject to Vesting Conditions as of the date of the
Participant’s termination of
Service.

        


        9.6 Settlement of
Restricted Stock Unit
Awards. The Company shall
issue to a Participant on the date on which
Restricted Stock Units subject to the Participant’s Restricted Stock Unit Award vest or on
such other date determined by the Committee, in its discretion, and set forth in
the Award Agreement one (1)
share of Stock (and/or any other new, substituted or additional securities or
other property pursuant to an adjustment described in Section 9.4) for each
Restricted Stock Unit then becoming vested or otherwise to be settled on
such date, subject to the withholding of
applicable taxes. If permitted by the Committee, subject to the provisions of
Section 19 with respect to Section 409A, the Participant may elect in accordance
with terms specified in the Award Agreement to defer receipt of all or any portion of the shares of
Stock or other property otherwise issuable to the Participant pursuant to this
Section, and such deferred issuance date(s) elected by the Participant shall be
set forth in the Award Agreement. Notwithstanding the foregoing, the Committee, in its
discretion, may provide for settlement of any Restricted Stock Unit Award by
payment to the Participant in cash of an amount equal to the Fair Market Value
on the payment date of the shares of Stock or other property
otherwise issuable to the Participant pursuant to
this Section. The Committee, in its discretion, may provide in any Award
Agreement evidencing a Restricted Stock Unit Award that, if the settlement of
the Award with respect to any shares would otherwise occur on a day on which the sale of such shares
would violate the Company’s Insider Trading Policy, then the
settlement with respect to such shares shall occur on the next day on which the
sale of such shares would not violate the Insider Trading
Policy.

        


        9.7 Nontransferability of
Restricted Stock Unit Awards. The right to receive shares pursuant to a Restricted
Stock Unit Award shall not be subject in any manner to anticipation, alienation,
sale, exchange, transfer, assignment, pledge, encumbrance, or garnishment by
creditors of the
Participant or the Participant’s beneficiary, except transfer by will
or by the laws of descent and distribution. All rights with respect to a
Restricted Stock Unit Award granted to a Participant hereunder shall be
exercisable during his or her lifetime only by such Participant
or the Participant’s guardian or legal
representative.

        


        10.    PERFORMANCE AWARDS.

        


        Performance
Awards shall be evidenced by Award Agreements in such form as the Committee
shall from time to time establish. No Performance Award or purported Performance
Award shall be a valid and binding obligation of the Company unless evidenced by
a fully
executed Award Agreement. Award Agreements evidencing Performance Awards may
incorporate all or any of the terms of the Plan by reference, including the
provisions of Section
19 with respect to Section 409A, if applicable, and shall comply with and be
subject
to the following terms and conditions:

        


        10.1 Types of Performance
Awards Authorized.
Performance Awards may be granted in the form of either
Performance Shares or Performance Units. Each Award Agreement evidencing a
Performance Award shall specify the number of Performance Shares or
Performance Units subject thereto, the Performance Award Formula, the
Performance Goal(s) and Performance Period applicable to the Award, and the
other terms, conditions and restrictions of the Award.

        


         

        
          
            
            

          

          
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        10.2 Initial Value of
Performance Shares and Performance Units. Unless otherwise provided by the Committee in
granting a Performance Award, each Performance Share shall have an initial
monetary value equal to the Fair Market Value of one (1) share of Stock, subject
to adjustment as provided in Section 4.4, on the effective date of grant of the Performance Share,
and each Performance Unit shall have an initial monetary value established by
the Committee at the time of grant. The final value payable to the Participant
in settlement of a Performance Award determined on the basis of the applicable Performance Award
Formula will depend on the extent to which Performance Goals established by the
Committee are attained within the applicable Performance Period established by
the Committee.

        


        10.3 Establishment of
Performance Period, Performance Goals and Performance Award
Formula. In granting each
Performance Award, the Committee shall establish in writing the applicable
Performance Period, Performance Award Formula and one or more Performance
Goals which, when measured
at the end of the Performance Period, shall determine on the basis of the
Performance Award Formula the final value of the Performance Award to be paid to
the Participant. Unless otherwise permitted in compliance with the
requirements under Section 162(m) with respect to
each Performance Award intended to result in the payment of Performance-Based
Compensation, the Committee shall establish the Performance Goal(s) and
Performance Award Formula applicable to each Performance Award no later than the earlier of (a) the date
ninety (90) days after the commencement of the applicable Performance Period or
(b) the date on which 25% of the Performance Period has elapsed, and, in any
event, at a time when the outcome of the Performance Goals remains substantially uncertain. Once
established, the Performance Goals and Performance Award Formula applicable to a
Covered Employee shall not be changed during the Performance Period. The Company
shall notify each Participant granted a Performance Award of the terms of such Award, including
the Performance Period, Performance Goal(s) and Performance Award
Formula.

        


        10.4 Measurement of
Performance Goals.
Performance Goals shall be established by the Committee on the
basis of targets to be attained (“Performance
Targets”) with respect to one or more measures
of business or financial performance (each, a “Performance
Measure”), subject to the
following:

        


        (a) Performance
Measures. Performance
Measures shall have the same meanings as used in the Company’s financial statements, or, if such terms are
not used in the Company’s financial statements, they shall have
the meaning applied pursuant to generally accepted accounting principles, or as
used generally in the Company’s industry. Performance Measures shall
be calculated with respect to the Company
and each Subsidiary Corporation consolidated therewith for financial reporting
purposes or such division or other business unit as may be selected by the
Committee. For purposes of the Plan, the Performance Measures applicable to a Performance Award shall be
calculated in accordance with generally accepted accounting principles, but
prior to the accrual or payment of any Performance Award for the same
Performance Period and excluding the effect (whether positive or negative) of any change in accounting
standards or any extraordinary, unusual or nonrecurring item, as determined by
the Committee, occurring after the establishment of the Performance Goals
applicable to the Performance Award. Each such adjustment, if any, shall be made solely for the purpose of
providing a consistent basis from period to period for the calculation of
Performance Measures in order to prevent the dilution or enlargement of the
Participant’s rights with respect to
a

        


        


         

        
          
            
            

          

          
            24

            
              

            

          

          
            
            

          

        

         

         

        Performance Award.
Performance Measures may be one or more of the following, as determined by the
Committee:

        


        
          	
                  (i) 
        

                	
                  revenue;

                


        

        


        
          	
                  (ii) 
        

                	
                  sales;

                


        

        


        
          	
                  (iii) 
        

                	
                  expenses;

                


        

        


        
          	
                  (iv) 
        

                	
                  operating
      income;

                


        

        


        
          	
                  (v) 
        

                	
                  gross
    margin;

                


        

        


        
          	
                  (vi) 
        

                	
                  operating
      margin;

                


        

        


        
          	
                  (vii) 
        

                	
                  earnings
      before any one or more of: stock-based compensation
      expense, interest, taxes, depreciation and
      amortization;

                


        

        


        
          	
                  (viii) 
        

                	
                  pre-tax
    profit;

                


        

        


        
          	
                  (ix) 
        

                	
                  net operating
      income;

                


        

        


        
          	
                  (x) 
        

                	
                  net
  income;

                


        

        


        
          	
                  (xi) 
        

                	
                  economic value
      added;

                


        

        


        
          	
                  (xii) 
        

                	
                  free cash
    flow;

                


        

        


        
          	
                  (xiii) 
        

                	
                  operating cash
      flow;

                


        

        


        
          	
                  (xiv) 
        

                	
                  stock
  price;

                


        

        


        
          	
                  (xv) 
        

                	
                  earnings per
      share;

                


        

        


        
          	
                  (xvi) 
        

                	
                  return on stockholder
      equity;

                


        

        


        
          	
                  (xvii) 
        

                	
                  return on
      capital;

                


        

        


        
          	
                  (xviii) 
        

                	
                  return on
      assets;

                


        

        


        
          	
                  (xix) 
        

                	
                  return on
      investment;

                


        

        


        
          	
                  (xx) 
        

                	
                  employee satisfaction;

                


        

        


        
          	
                  (xxi) 
        

                	
                  employee
      retention;

                


        

        


        
          	
                  (xxii) 
        

                	
                  balance of cash, cash equivalents
      and marketable securities;

                


        

        


        
          	
                  (xxiii) 
        

                	
                  market
    share;

                


        

        


        


        
          
            
            

          

          
            25

            
              

            

          

          
            
            

          

        

        


         

        
          	
                  (xxiv) 
        

                	
                  daily average
      revenue trades;

                


        

        


        
          	
                  (xxv) 
        

                	
                  asset gathering
  metrics;

                


        

        


        
          	
                  (xxvi) 
        

                	
                  number of
      customers;

                
	 	 
	
                  (xxvii)  
       

                	
                  customer satisfaction;
      

                
	 	 
	
                  (xxviii)    
      

                	
                  product
      development;

                


        

         

        
          	
                  (xxix) 
        

                	
                  completion of a joint venture or
      other corporate transaction;

                


        

        


        
          	
                  (xxx) 
        

                	
                  completion of identified special
      project; and

                


        

        


        
          	
                  (xxxi) 
        

                	
                  overall effectiveness of
      management.

                


        

        


        (b) Performance
Targets. Performance
Targets may include a minimum, maximum, target level and intermediate levels of
performance, with the final value of a Performance Award determined under the
applicable Performance
Award Formula by the level attained during the applicable Performance Period. A
Performance Target may be stated as an absolute value or as a value determined
relative to an index, budget or other standard selected by the
Committee.

        


        10.5   Settlement of
Performance
Awards.

        


        (a) Determination
of Final Value. As soon as
practicable following the completion of the Performance Period applicable to a
Performance Award, the Committee shall certify in writing the extent to which
the applicable Performance Goals have been attained and the resulting final
value of the Award earned by the Participant and
to be paid upon its settlement in accordance with the applicable Performance
Award Formula.

        


        (b) Discretionary
Adjustment of Award Formula. In its discretion, the Committee may,
either at the time it grants a Performance Award or at any time thereafter,
provide for the positive or negative adjustment of the Performance Award Formula
applicable to a Performance Award granted to any Participant who is not a
Covered Employee to reflect such Participant’s individual performance in his or her position with the
Company or such other factors as the Committee may determine. If permitted under
a Covered Employee’s Award Agreement, the Committee shall
have the discretion, on the basis of such criteria as may be established by
the Committee, to reduce some or all of the
value of the Performance Award that would otherwise be paid to the Covered
Employee upon its settlement notwithstanding the attainment of any Performance
Goal and the resulting value of the Performance Award determined in accordance with the Performance
Award Formula. No such reduction may result in an increase in the amount payable
upon settlement of another Participant’s Performance Award that is intended to
result in Performance-Based Compensation.

        


        (c) Effect
of Leaves
of Absence. Unless otherwise required by law or a
Participant’s Award Agreement, payment of the final
value, if any, of a Performance Award held by a Participant who has taken in
excess of thirty (30) days in leaves of absence during a Performance
Period shall be prorated on
the basis of the number of days of the Participant’s

        


         

        
          
            
            

          

          
            26

            
              

            

          

          
            
            

          

        

         

         

        Service during the
Performance Period during which the Participant was not on a leave of
absence.

        


        (d) Notice
to Participants. As soon as practicable following the
Committee’s determination and certification in
accordance with Sections 10.5(a) and (b), the Company shall notify each
Participant of the determination of the Committee.

        


        (e) Payment
in Settlement of Performance Awards. Subject to the provisions of Section
19 with respect to Section 409A, as soon as practicable following the
Committee’s determination and certification in
accordance with Sections 10.5(a) and (b), payment shall be made to each eligible Participant (or
such Participant’s legal representative or other person
who acquired the right to receive such payment by reason of the
Participant’s death) of the final value of the
Participant’s Performance Award. Payment of
such amount shall be made in cash, shares of
Stock, or a combination thereof as determined by the Committee. Unless otherwise
provided in the Award Agreement evidencing a Performance Award, payment shall be
made in a lump sum. If permitted by the Committee, and subject to the provisions of Section 19
with respect to Section 409A, the Participant may elect to defer receipt of all
or any portion of the payment to be made to Participant pursuant to this
Section, and such deferred payment date(s) elected by the Participant shall be set forth in the Award
Agreement. If any payment is to be made on a deferred basis, the Committee may,
but shall not be obligated to, provide for the payment during the deferral
period of Dividend Equivalents or interest.

        


        (f) Provisions
Applicable
to Payment in Shares. If
payment is to be made in shares of Stock, the number of such shares shall be
determined by dividing the final value of the Performance Award by the value of
a share of Stock determined by the method specified in the Award Agreement. Such methods may include,
without limitation, the closing market price on a specified date (such as the
settlement date) or an average of market prices over a series of trading days.
Shares of Stock issued in payment of any Performance Award may be fully vested and freely
transferable shares or may be shares of Stock subject to Vesting Conditions as
provided in Section 8.5. Any shares subject to Vesting Conditions shall be
evidenced by an appropriate Award Agreement and shall be subject to
the provisions of Sections 8.5 through 8.8
above.

        


        10.6 Voting Rights;
Dividend Equivalent Rights and Distributions. Participants shall have no voting rights
with respect to shares of Stock represented by Performance Share Awards until
the date of the issuance of
such shares, if any (as evidenced by the appropriate entry on the books of the
Company or of a duly authorized transfer agent of the Company). However, the
Committee, in its discretion, may provide in the Award Agreement evidencing any
Performance Share Award that the Participant shall be
entitled to receive Dividend Equivalents with respect to the payment of cash
dividends on Stock during the period beginning on the date the Award is granted
and ending, with respect to the particular shares subject to the Award, on the earlier of the date on
which the Performance Shares are settled or the date on which they are
forfeited. Such Dividend Equivalents, if any, shall be credited to the
Participant in the form of additional whole Performance Shares as of
the date of payment of such cash dividends
on Stock. The number of additional Performance Shares (rounded to the nearest
whole number) to be so credited shall be determined by dividing (a) the amount
of cash dividends paid on the dividend payment date with respect to the number of shares of Stock
represented by the Performance Shares previously credited to the Participant by
(b) the Fair

        


         

        
          
            
            

          

          
            27

            
              

            

          

          
            
            

          

        

         

         

        Market Value per share
of Stock on such date. Dividend Equivalents may be paid currently or may be accumulated
and paid to the extent that Performance Shares become nonforfeitable, as
determined by the Committee. Settlement of Dividend Equivalents may be made in
cash, shares of Stock, or a combination thereof as determined by the Committee, and may be paid on the
same basis as settlement of the related Performance Share as provided in Section
10.5. Dividend Equivalents shall not be paid with respect to Performance Units.
In the event of a dividend or distribution paid in shares of Stock or other property or any other
adjustment made upon a change in the capital structure of the Company as
described in Section 4.4, appropriate adjustments shall be made in the
Participant’s Performance Share Award so that it
represents the right to receive upon settlement any and all
new, substituted or additional securities or other property (other than normal
cash dividends) to which the Participant would be entitled by reason of the
shares of Stock issuable upon settlement of the Performance Share Award, and all such new, substituted
or additional securities or other property shall be immediately subject to the
same Performance Goals as are applicable to the Award.

        


        10.7 Effect of Termination
of Service. Unless
otherwise provided by the Committee and set forth in the Award
Agreement evidencing a Performance Award, the effect of a
Participant’s termination of Service on the
Performance Award shall be as follows:

        


        (a) Death
or Disability. If the
Participant’s Service terminates because of
the death or Disability of
the Participant before the completion of the Performance Period applicable to
the Performance Award, the final value of the Participant’s Performance Award shall be determined
by the extent to which the applicable Performance Goals have been attained with respect to the
entire Performance Period and shall be prorated based on the number of days of
the Participant’s Service during the Performance Period.
Payment shall be made following the end of the Performance Period in any
manner permitted by Section
10.5.

        


        (b) Other
Termination of Service. If
the Participant’s Service terminates for any reason
except death or Disability before the completion of the Performance Period
applicable to the Performance Award, such Award shall be forfeited in its entirety.

        


        10.8 Nontransferability of
Performance Awards. Prior
to settlement in accordance with the provisions of the
Plan, no Performance Award shall be subject in any manner to anticipation,
alienation, sale, exchange, transfer, assignment, pledge, encumbrance, or garnishment by
creditors of the Participant or the Participant’s beneficiary, except transfer by will
or by the laws of descent and distribution. All rights with respect to a
Performance Award granted to a Participant hereunder shall be exercisable during his or her
lifetime only by such Participant or the Participant’s guardian or legal
representative.

        


        11.    DEFERRED COMPENSATION AWARDS.

        


        11.1 Establishment of
Deferred Compensation Award Programs. This Section 11 shall not be
effective unless and until
the Committee determines to establish a program pursuant to this Section. The
Committee, in its discretion and upon such terms and conditions as it may
determine, subject to the provisions of Section 19 with respect to Section 409A,
may establish one or more programs
pursuant to the Plan under which:

        


        


        
          
            
            

          

          
            28

            
              

            

          

          
            
            

          

        

        


        


         

        (a) Elective
Cash Compensation Reduction Awards. Participants designated by the
Committee who are Insiders or otherwise among a select group of highly
compensated Employees may irrevocably elect, prior to a date specified by the
Committee and complying with Section 409A, to reduce such
Participant’s compensation otherwise payable in cash
(subject to any minimum or maximum reductions imposed by the Committee) and to
be granted automatically at such time or times as specified by the Committee one
or more Stock Bonus Awards or Awards of Stock Units with respect to such numbers of shares of Stock
as determined in accordance with the rules of the program established by the
Committee and having such other terms and conditions as established by the
Committee.

        


        (b) Stock
Issuance Deferral Awards.
Participants designated by
the Committee who are Insiders or otherwise among a select group of highly
compensated Employees may irrevocably elect, prior to a date specified by the
Committee and complying with Section 409A, to be granted automatically an Award
of Stock Units with respect to such number of
shares of Stock and upon such other terms and conditions as established by the
Committee in lieu of:

        


        (i)  shares of Stock otherwise issuable to
such Participant upon the exercise of an
Option;

        


        (ii) cash or shares of Stock otherwise
issuable to such Participant upon the exercise of an SAR; or

        


        (iii) cash or shares of Stock otherwise
issuable to such Participant upon the settlement of a Performance
Award.

        


        11.2 Terms and Conditions
of Deferred Compensation
Awards.
Deferred Compensation Awards granted pursuant to
this Section 11 shall be evidenced by Award Agreements in such form as the
Committee shall from time to time establish. No such Deferred Compensation Award
or purported Deferred Compensation Award shall be a valid and binding
obligation of the Company unless evidenced by a fully executed Award Agreement.
Award Agreements evidencing Deferred Compensation Awards may incorporate all or
any of the terms of the Plan by reference, including the provisions of Section 19 with respect to
Section 409A.

        


        (a) Terms
and Conditions of Stock Bonus Awards. Stock Bonus Awards granted pursuant to
this Section 11 shall comply with and be subject to the terms and conditions of
Section 8.

        


        (b) Terms
and Conditions
of Stock Units. Except as
provided below, Stock Units granted pursuant to this Section 11 shall comply
with and be subject to the terms and conditions of Section
9.

        


        (i) Voting Rights;
Dividend Equivalent Rights and Distributions. Participants shall have no voting rights with respect to shares
of Stock represented by Stock Units until the
date of the issuance of such shares (as evidenced by the appropriate entry on
the books of the Company or of a duly authorized transfer agent of the Company).
However, a Participant
shall be entitled to receive Dividend Equivalents with respect to the payment of
cash dividends on Stock during the period beginning on the date the
Stock

        


        


        
          
            
            

          

          
            29

            
              

            

          

          
            
            

          

        

         

         

        Units
are granted automatically to the Participant and ending on the earlier of the
date on which such Stock Units are settled or the date on which they are
forfeited. Such Dividend Equivalents shall be paid by crediting the Participant
with additional whole
Stock Units as of the date of payment of such cash dividends on Stock. The
number of additional Stock Units (rounded to the nearest whole number) to be so
credited shall be determined by dividing (a) the amount of cash dividends paid
on the dividend payment
date with respect to the number of shares of Stock represented by the Stock
Units previously credited to the Participant by (b) the Fair Market Value per
share of Stock on such date. Such additional Stock Units shall be subject to the
same terms and conditions
and shall be settled in the same manner and at the same time (or as soon
thereafter as practicable) as the Stock Units originally subject to the Stock
Unit Award. In the event of a dividend or distribution paid in shares of Stock
or other property
or any other adjustment made upon a change in the capital structure of the
Company as described in Section
4.4, appropriate adjustments shall be made in the Participant’s
Stock Unit Award so that it represents the right to receive upon settlement any
and all
new, substituted or additional securities or other property (other than normal
cash dividends) to which the Participant would be entitled by reason of the
shares of Stock issuable upon settlement of the
Award.

        


        (ii) Settlement of Stock
Unit Awards. A Participant electing to receive an Award
of Stock Units pursuant to this Section 11 shall specify at the time of such
election a settlement date with respect to such Award which complies with
Section 409A. The Company shall issue to the Participant on the settlement date elected by the
Participant, or as soon thereafter as practicable, a number of whole shares of
Stock equal to the number of vested Stock Units subject to the Stock Unit Award.
Such shares of Stock shall be fully vested, and the Participant shall not be required to pay any
additional consideration (other than applicable tax withholding) to acquire such
shares.

        


        12.    NONEMPLOYEE DIRECTOR AWARDS.

        


        Nonemployee Director Awards shall be
evidenced by Award Agreements specifying the number of shares of Stock covered thereby, in such form
as the Committee shall from time to time establish. No Nonemployee Director
Award or purported Nonemployee Director Award shall be a valid and binding
obligation of the Company unless evidenced by a fully executed Award Agreement. Such Award Agreements
may incorporate all or any of the terms of the Plan by reference, including the
provisions of Section 19 with respect to Section 409A if applicable, and shall
comply with and be subject to the following terms and conditions.

        


        12.1 Terms and Conditions
of Nonemployee Director Awards. The Committee shall determine the forms and
amounts of the Nonemployee Director Awards from time to time, which
determination may include (but not be limited to) adopting policies with respect
to granting Awards when a person first becomes a Nonemployee Director, granting Awards on an annual basis
to Nonemployee Directors, and granting additional Awards on the basis of
membership on or chairmanship of Board committees. The Committee shall establish
the vesting and exercisability terms of all Nonemployee Director Awards, including Nonemployee Director
Options. Awards granted pursuant to this Section 12 may consist of any type of
Award authorized under the Plan, including Options, SARs, Stock Awards or
Restricted Stock Unit Awards, or any combination thereof.

        


        


        


        
          
            
            

          

          
            30

            
              

            

          

          
            
            

          

        

        


         

        12.2 Terms and Conditions
of Nonemployee Director Options. To the extent the Committee determinates that
Nonemployee Director Awards shall take the form of Nonemployee Director Options,
then except as provided by
this Section, Nonemployee Director Options shall comply with and be subject to
the terms and conditions of Section 6.

        


        (a) Exercise
Price. The exercise price
per share of Stock subject to a Nonemployee Director Option shall be the Fair
Market Value of a share of
Stock on the date of grant of the Nonemployee Director
Option.

        


        (b) Exercisability
and Term of Nonemployee Director Options. Except as otherwise provided in the
Plan or in the Award Agreement evidencing a Nonemployee Director Option and
provided that the Participant’s Service has not terminated prior to
the relevant date, each Nonemployee Director Option shall vest and
become exercisable as set forth in the Award
Agreement and shall terminate and cease to be exercisable on the tenth (10th)
anniversary of the date of grant of the Nonemployee Director Option, unless
earlier terminated in accordance with the terms of the Plan or the Award Agreement evidencing such
Option.

        


        (c)           Effect
of Termination of Service.

        


        (i) Option
Exercisability. Subject to
earlier termination of the Nonemployee Director Option as otherwise provided
herein, a Nonemployee Director Option shall be exercisable after the Participant’s termination of Service only during the
applicable time period determined in accordance with this Section and thereafter
shall terminate:

        


        (1) Disability. If the Participant’s Service terminates because of the
Disability of the Participant, any unexercisable or unvested
portion of the Nonemployee Director Option shall be immediately exercisable and
vested in full on the date on which the Participant’s Service terminated and may be
exercised by the Participant (or the Participant’s guardian or legal representative) at any
time prior to the expiration of twelve (12) months after the date on which the
Participant’s Service terminated, but in any event
no later than the Option Expiration Date.

        


        (2) Death. If the Participant’s Service terminates because of the death of the
Participant, any unexercisable or unvested portion of the Nonemployee Director
Option shall be immediately exercisable and vested in full on the date on which
the Participant’s Service terminated and may be
exercised by the Participant’s legal representative or other person
who acquired the right to exercise the Nonemployee Director Option by reason of
the Participant’s death at any time prior to the
expiration of twelve (12) months after the date on which the
Participant’s Service terminated, but in any event
no later than the Option Expiration Date. The Participant’s Service shall be deemed to have
terminated on account of death if the Participant dies within three (3) months
after the Participant’s termination of Service.

        


        (3) Other Termination of
Service. If the
Participant’s Service terminates for any reason,
except Disability or death, the Nonemployee Director Option, to the extent
unexercised and exercisable by the Participant on the date on which the
Participant’s Service terminated, may be exercised by
the Participant at any time prior to the

        


        


        
          
            
            

          

          
            31

            
              

            

          

          
            
            

          

        

        


         

        expiration of twelve
(12) months after the date on which the Participant’s Service terminated, but in any event
no later than the Option Expiration Date.

        


        (ii)
Extension
if Exercise Prevented by Law.
Notwithstanding the foregoing, if the exercise of a Nonemployee Director Option
within the applicable time periods set forth in Section
12.2(c)(i) is prevented by the provisions of Section 16 below, the Nonemployee
Director Option shall remain exercisable until three (3) months
after the date the Participant is notified by the Company that the Nonemployee
Director Option is exercisable,
but in any event no later than the Option Expiration
Date.

        


        (iii)
Extension
if Participant Subject to Section 16(b).
Notwithstanding the foregoing, if a sale within the applicable time periods set
forth in Section 12.2(c)(i) of shares acquired upon the
exercise of the Nonemployee Director Option would
subject the Participant to suit under Section 16(b) of the Exchange Act, the
Nonemployee Director Option shall remain exercisable until the earliest to occur
of (i) the tenth (10th) day following the date on which a sale of such shares by
the Participant
would no longer be subject to such suit, (ii) the one hundred and ninetieth
(190th) day after the Participant’s
termination of Service, or (iii) the Option Expiration
Date.

        


        13.    CASH-BASED AWARDS AND OTHER STOCK-BASED AWARDS.

        


        Cash-Based Awards and Other Stock-Based
Awards shall be evidenced by Award Agreements in such form as the Committee
shall from time to time establish. No such Award or purported Award shall be a
valid and binding obligation of the Company unless evidenced by a fully executed Award Agreement.
Award Agreements evidencing Cash-Based Awards and Other Stock-Based Awards may
incorporate all or any of the terms of the Plan by reference, including the
provisions of Section 19 with respect to Section 409A, if applicable, and shall comply with and be
subject to the following terms and conditions:

        


        13.1 Grant of Cash-Based
Awards. Subject to the
provisions of the Plan, the Committee, at any time and from time to
time, may grant Cash-Based Awards to Participants in such amounts and upon such terms and
conditions, including the achievement of performance criteria, as the Committee
may determine.

        


        13.2 Grant of Other
Stock-Based Awards. The
Committee may grant other types of equity-based or equity-related
Awards not otherwise
described by the terms of this Plan (including the grant or offer for sale of
unrestricted securities, stock-equivalent units, stock appreciation units,
securities or debentures convertible into common stock or other forms determined
by the Committee) in such amounts and subject to such
terms and conditions as the Committee shall determine. Such Awards may involve
the transfer of actual shares of Stock to Participants, or payment in cash or
otherwise of amounts based on the value of Stock and may include, without limitation, Awards designed
to comply with or take advantage of the applicable local laws of jurisdictions
other than the United States.

        


        13.3 Value of Cash-Based
and Other Stock-Based Awards. Each Cash-Based Award shall specify a monetary
payment amount or payment range as determined by the Committee. Each Other
Stock-Based Award shall be expressed in terms of shares of Stock or units based
on such shares of Stock, as determined by the Committee. The Committee may

        


        


        
          
            
            

          

          
            32

            
              

            

          

          
            
            

          

        

         

         

        require the
satisfaction of such Service requirements, conditions, restrictions or
performance criteria, including, without limitation, Performance Goals as
described in Section 10.4, as shall be established by the Committee and
set forth in the Award Agreement evidencing such Award. If the Committee
exercises its discretion to establish performance criteria, the final value of
Cash-Based Awards or Other Stock-Based Awards that will be paid to the Participant will depend on the
extent to which the performance criteria are met. The establishment of
performance criteria with respect to the grant or vesting of any Cash-Based
Award or Other Stock-Based Award intended to result in
Performance-Based Compensation shall follow procedures
substantially equivalent to those applicable to Performance Awards set forth in
Section 10.

        


        13.4
Payment
or Settlement of Cash-Based Awards and Other Stock-Based Awards.
Payment or settlement, if any, with respect to a Cash-
Based Award or an Other Stock-Based Award shall be made in accordance with the
terms of the Award, in cash, shares of Stock or other securities or any
combination thereof as the Committee determines. The determination and
certification of the final value
with respect to any Cash-Based Award or Other Stock-Based Award intended to
result in Performance-Based Compensation shall comply with the requirements
applicable to Performance Awards set forth in Section 10. To the extent
applicable, payment or settlement
with respect to each Cash-Based Award and Other Stock-Based Award shall be made
in compliance with the provisions of Section 19 with respect to Code
Section
409A.

        


        13.5 Voting Rights;
Dividend Equivalent Rights and Distributions. Participants shall have no voting rights with respect to
shares of Stock represented by Other Stock-Based Awards until the date of the
issuance of such shares of Stock (as evidenced by the appropriate entry on the
books of the Company or of a duly authorized transfer agent of the Company), if any, in settlement
of such Award. However, the Committee, in its discretion, may provide in the
Award Agreement evidencing any Other Stock-Based Award that the Participant
shall be entitled to receive Dividend Equivalents with respect to the payment of cash dividends on
Stock during the period beginning on the date such Award is granted and ending,
with respect to the particular shares subject to the Award, on the earlier of
the date the Award is settled or the date on which it is terminated. Such Dividend Equivalents, if
any, shall be paid in accordance with the provisions set forth in Section 9.4.
Dividend Equivalent rights shall not be granted with respect to Cash-Based
Awards.

        


        13.6 Effect of Termination
of Service. Each Award
Agreement evidencing a Cash-Based Award or Other Stock-Based
Award shall set forth the extent to which the Participant shall have the right
to retain such Award following termination of the Participant’s Service. Such provisions shall be
determined in the sole
discretion of the Committee, need not be uniform among all Cash-Based Awards or
Other Stock-Based Awards, and may reflect distinctions based on the reasons for
termination.

        


        13.7 Nontransferability of
Cash-Based Awards and Other Stock-Based Awards. Prior to the payment or settlement of
a Cash-Based Award or Other Stock-Based Award, the Award shall not be subject in
any manner to anticipation, alienation, sale, exchange, transfer, assignment,
pledge, encumbrance, or garnishment by creditors of the Participant or the
Participant’s beneficiary, except transfer by will
or by the laws of descent and distribution. The Committee may impose such
additional restrictions on any shares of Stock issued in
settlement

        


         

        
          
            
            

          

          
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        of Cash-Based Awards
and Other Stock-Based Awards as it may deem advisable, including, without
limitation, minimum holding period requirements, restrictions under applicable
federal securities laws, under the requirements of any stock exchange or market upon which
such shares of Stock are then listed and/or traded, or under any state
securities laws applicable to such shares of Stock.

        


        14.    STANDARD FORMS OF AWARD AGREEMENT.

        


        14.1 Award
Agreements. Each Award
shall comply with and be
subject to the terms and conditions set forth in the
appropriate form of Award Agreement approved by the Committee and as amended
from time to time. Any Award Agreement may consist of an appropriate form of
Notice of Grant and a form of Agreement incorporated therein by reference, or
such other form or forms as the Committee may approve from time to
time.

        


        14.2 Authority to Vary
Terms. The Committee shall
have the authority from time to time to vary the terms of any
standard form of Award Agreement either in connection with the grant or
amendment of an individual Award or in connection with the authorization of a
new standard form or forms; provided, however, that the terms and conditions of any such new, revised or
amended standard form or forms of Award Agreement are not inconsistent with the
terms of the Plan.

        


        15.    CHANGE IN CONTROL.

        


        15.1 Effect of Change in
Control on Options and SARs. Subject to the provisions of Section 19 with respect to Section 409A if
applicable, the Committee may provide for any one or more of the
following:

        


        (a) Accelerated
Vesting. The Committee may,
in its sole discretion, provide in any Award Agreement or, in the event of a
Change in Control, may take such actions as it deems appropriate to provide for
the acceleration of the exercisability and vesting in connection with such
Change in Control of any or all outstanding
Options and SARs and shares acquired upon the exercise of such Options and SARs
upon such conditions, including termination of the Participant’s Service prior to, upon, or following
such Change in Control, and to such extent as the Committee shall
determine.

        


        (b) Assumption
or Substitution. In the
event of a Change in Control, the surviving, continuing, successor, or
purchasing entity or parent thereof, as the case may be (the “Acquiror”), may, without the consent
of any Participant, either
assume or continue the Company’s rights and obligations under
outstanding Options and SARs or substitute for outstanding Options and SARs
substantially equivalent options and SARs (as the case may be) for the
Acquiror’s stock. Any Options or SARs which are neither
assumed or continued by the Acquiror in connection with the Change in Control
nor exercised as of the time of consummation of the Change in Control shall
terminate and cease to be outstanding effective as of the time of consummation of the Change in
Control.

        


        (c) Cash-Out. The Committee may, in its sole
discretion and without the consent of any Participant, determine that, upon the
occurrence of a Change in Control, each or any Option or SAR outstanding
immediately prior to the Change in Control shall be canceled

        


         

        
          
            
            

          

          
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        in
exchange for a payment with respect to each vested share (and each unvested
share, if so determined by the Committee) of Stock subject to such canceled
Option or SAR in (i) cash, (ii) stock of the Company
or of a corporation or other business entity a party to the Change in Control,
or (iii) other property which, in any such case, shall be in an amount having a
Fair Market Value equal to the excess of the Fair Market Value of the
consideration to be paid
per share of Stock in the Change in Control over the exercise price per share
under such Option or SAR (the “Spread”).
In the event such determination is made by the Committee, the Spread (reduced by
applicable withholding taxes, if any) shall be paid to
Participants in respect of the vested portion of their canceled Options and SARs
as soon as practicable following the date of the
Change in Control and in respect of the unvested portion of their canceled
Options and SARs in accordance with the vesting schedule
applicable to such Awards as in effect prior to the Change in
Control.

        


        15.2 Effect of Change in
Control on Stock Awards, Restricted Stock Unit Awards and
Performance Awards. Subject
to the provisions of Section 19 with respect to Section 409A if applicable, the Committee may, in its
discretion, provide in any Award Agreement evidencing a Stock Award, Restricted
Stock Unit Award or Performance Award for, or in the event of a Change in
control may take such actions as it deems appropriate to provide for, the lapsing of the Restriction
Period applicable to the shares subject to the Stock Award (and, in the case of
Restricted Stock Units and Performance Awards, acceleration of the vesting and
settlement of such Award) upon such conditions, including termination of the
Participant’s Service prior to, upon, or following
such Change in Control, and to such extent as the Committee shall
determine.

        


        15.3 Effect of Change in
Control on Deferred Compensation Awards. Subject to the provisions of Section 19
with respect to Section 409A if applicable, the Committee may, in its
discretion, provide in any Award Agreement evidencing a Deferred Compensation
Award that, in the event of a Change in Control, the Stock Awards or Stock Units pursuant to such Award
shall become vested and, in the case of Stock Units, shall be settled effective
as of the date of the Change in Control to such extent as specified in such
Award Agreement.

        


        15.4 Effect of Change in
Control on Nonemployee Director
Awards. Subject to the provisions of Section 19
with respect to Section 409A if applicable, any unexercisable or unvested
portion of each outstanding Nonemployee Director Award and any shares acquired
pursuant thereto shall be immediately exercisable and vested in full as of the date
of the Change in Control. Except as provided in the preceding sentence, each
Nonemployee Director Award shall be subject to the applicable provisions of this
Section 15.

        


        15.5 Effect of Change in
Control on Cash-Based Awards and
Other Stock-Based
Awards. Subject to the
provisions of Section 19 with respect to Section 409A if applicable, the Committee may, in its
discretion, provide in any Award Agreement evidencing a Cash-Based Award or
Other Stock-Based Award for, or in the event of a Change in control may
take such actions as it deems appropriate to provide for, acceleration of the
vesting and settlement of such Award upon such conditions, including termination
of the Participant’s Service prior to, upon, or
following such Change in Control, and to such
extent as the Committee shall determine.

        


        


        
          
            
            

          

          
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        16.    COMPLIANCE WITH SECURITIES LAW.

        


        The grant of Awards and the issuance of
shares of Stock pursuant to any Award shall be subject to compliance with all
applicable requirements of federal, state and foreign law with respect to such
securities and the requirements of any stock exchange or market system upon which the Stock may
then be listed. In addition, no Award may be exercised or shares issued pursuant
to an Award unless (a) a registration statement under the Securities Act shall
at the time of such exercise or issuance be in effect with respect to the shares issuable pursuant
to the Award or (b) in the opinion of legal counsel to the Company, the shares
issuable pursuant to the Award may be issued in accordance with the terms of an
applicable exemption from the registration requirements of the Securities Act. The inability of
the Company to obtain from any regulatory body having jurisdiction the
authority, if any, deemed by the Company’s legal counsel to be necessary to the
lawful issuance and sale of any shares hereunder shall relieve the Company of any liability in respect of
the failure to issue or sell such shares as to which such requisite authority
shall not have been obtained. As a condition to issuance of any Stock, the
Company may require the Participant to satisfy any qualifications that may be necessary or appropriate,
to evidence compliance with any applicable law or regulation and to make any
representation or warranty with respect thereto as may be requested by the
Company.

        


        17.    TAX WITHHOLDING.

        


        17.1 Tax Withholding in
General. The Company shall have the right
to deduct from any and all payments made
under the Plan, or to require the Participant, through payroll withholding, cash
payment or otherwise, to make adequate provision for, the federal, state, local
and foreign taxes, if any,
required by law to be withheld by the Participating Company Group with respect
to an Award or the shares acquired pursuant thereto. The Company shall have no
obligation to deliver shares of Stock, to release shares of Stock from an escrow
established pursuant to an Award Agreement, or
to make any payment in cash under the Plan until the Participating Company
Group’s tax withholding obligations have been
satisfied by the Participant.

        


        17.2 Withholding in
Shares. The Company shall
have the right, but not
the obligation, to deduct from the shares of
Stock issuable to a Participant upon the exercise or settlement of an Award, or
to accept from the Participant the tender of, a number of whole shares of Stock
having a Fair Market Value, as determined by the Company, equal to all or any part
of the tax withholding obligations of the Participating Company Group. The Fair
Market Value of any shares of Stock withheld or tendered to satisfy any such tax
withholding obligations shall not exceed the amount determined by the applicable minimum
statutory withholding rates.

        


        18.    AMENDMENT
OR TERMINATION
OF PLAN.

        


        The Committee may amend, suspend or
terminate the Plan at any time. However, without the approval of the
Company’s stockholders, there shall be (a) no
increase in the maximum
aggregate number of shares of Stock that may be issued under the Plan (except by
operation of the provisions of Section 4.4), (b) no change in the class of
persons eligible to receive Incentive Stock Options, and (c) no other
amendment of the Plan that would require
approval of the Company’s stockholders under any applicable law,
regulation or rule, including the rules of any stock exchange or market system
upon which the Stock may then be listed. No

        


        


        
          
            
            

          

          
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        amendment, suspension
or termination of the Plan shall affect any then outstanding Award unless
expressly provided by the Committee. Except as provided by the next sentence, no
amendment, suspension or termination of the Plan may adversely affect any then
outstanding Award without the consent of the Participant. Notwithstanding any
other provision of the Plan to the contrary, the Committee may, in its sole and
absolute discretion and without the consent of any Participant, amend the Plan or any Award Agreement, to
take effect retroactively or otherwise, as it deems necessary or advisable for
the purpose of conforming the Plan or such Award Agreement to any present or
future law, regulation or rule applicable to the Plan, including, but not limited to, Section
409A.

        


        19.    COMPLIANCE
WITH SECTION 409A.

        


        19.1 Awards Subject to
Section 409A. The
provisions of this Section 19 shall apply to any Award or portion thereof
that is or becomes subject to Section 409A, notwithstanding any provision to the
contrary contained in the Plan or the Award Agreement applicable to such Award.
Awards subject to Section 409A include, without limitation:

        


        
          	
                	
                  (a)

                	
                  Any Nonstatutory Stock Option that
      permits the deferral of compensation other than the deferral of
      recognition of income until the exercise of the
    Award.

                


        

        


        
          
            	
                  	
                    (b)

                  	
                    Each Deferred Compensation
      Award.

                  


          

        

        


        
          
            	
                  	
                    (c)

                  	
                    Any
      Restricted Stock Unit Award, Performance Award, Cash-Based
      Award or Other Stock-Based Award that either (i) provides by its terms for
      settlement of all or any portion of the Award on one or more dates
      following the Short-Term Deferral Period (as defined
      below) or (ii) permits or requires the Participant to elect one or more
      dates on which the Award will be
  settled.

                  


          

        

        


        Subject
to any applicable U.S. Treasury Regulations promulgated pursuant to
Section
409A or other applicable guidance, the term “Short-Term
Deferral Period” means
the period ending on the later of (i) the date that is two and one-half months
from the end of the Company’s
fiscal year in which the applicable portion of the Award is no longer subject to
a substantial risk of forfeiture or (ii) the
date that is two and one-half months from the end of the Participant’s
taxable year in which the applicable portion of the Award is no longer subject
to a substantial risk of forfeiture. For this purpose, the term “substantial
risk of forfeiture” shall
have the meaning set forth in any applicable U.S. Treasury Regulations
promulgated pursuant to Section 409A or other applicable
guidance.

        


        19.2 Deferral and/or
Distribution Elections.
Except as otherwise permitted or required by Section 409A or any
applicable U.S. Treasury
Regulations promulgated pursuant to Section 409A or other applicable guidance,
the following rules shall apply to any deferral and/or distribution elections
(each, an “Election”) that may be permitted or required by
the Committee pursuant to
an Award subject to Section 409A:

        


        (a) All Elections must be in writing and
specify the amount of the distribution in settlement of an Award being deferred,
as well as the time and form of distribution as permitted by this
Plan.

        


        


        
          
            
            

          

          
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        (b) All Elections
shall be made by the end of the Participant’s taxable year prior to the year in
which services commence for which an Award may be granted to such Participant;
provided, however, that if the Award qualifies as “performance-based
compensation” for purposes
of Section 409A and is based on services performed over a period of at least
twelve (12) months, then the Election may be made no later than six (6) months
prior to the end of such period.

        


        (c) Elections shall continue in effect until a written
election to revoke or change such Election is received by the Company, except
that a written election to revoke or change such Election must be made prior to
the last day for making an Election determined in accordance with paragraph (b) above or as
permitted by Section 19.3.

        


        19.3 Subsequent
Elections. Any Award
subject to Section 409A which permits a subsequent Election to delay
the distribution or change the form of distribution in settlement of such Award
shall comply with the
following requirements:

        


        (a) No subsequent Election may take
effect until at least twelve (12) months after the date on which the subsequent
Election is made;

        


        (b) Each subsequent Election related to
a distribution in settlement of an Award not described in
Section 19.4(b), 19.4(c), or 19.4(f) must result in a delay of the distribution
for a period of not less than five (5) years from the date such distribution
would otherwise have been made; and

        


        (c) No subsequent Election related to a distribution pursuant to
Section 19.4(d) shall be made less than twelve (12) months prior to the date of
the first scheduled payment under such distribution.

        


        19.4 Distributions
Pursuant to Deferral Elections. No distribution in settlement of an Award subject to Section 409A may
commence earlier than:

        


        (a) Separation from service (as
determined by the Secretary of the United States Treasury);

        


        
          (b)  The date the Participant becomes
Disabled (as defined below);

        

        


        
          (c)  Death;

        

        


        
          (d)  A specified time (or pursuant to a fixed
schedule) that is either (i) specified by the Committee upon the
grant of an Award and set forth in the Award Agreement evidencing such Award or
(ii) specified by the Participant in an Election complying with the requirements of Section 19.2 and/or
19.3, as applicable;

        

        


        
          (e)  To the extent provided by the Secretary
of the U.S. Treasury, a change in the ownership or effective
control or the Company or in the ownership of a substantial portion of the
assets of the Company;
or

        

        


        (f)  The occurrence of an Unforeseeable
Emergency (as defined below).

        


        


        
          
            
            

          

          
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        Notwithstanding
anything else herein to the contrary, to the extent that a Participant is a
“Specified
Employee” (as defined in
Section 409A(a)(2)(B)(i)) of the Company, no distribution pursuant to Section
19.4(a) in settlement of an Award subject to Section 409A may be made before the
date which is six (6) months after such Participant’s date of separation from service, or, if earlier, the date of the
Participant’s death.

        


        19.5 Unforeseeable
Emergency. The Committee
shall have the authority to provide in the Award Agreement
evidencing any Award subject to Section 409A for distribution in settlement of
all or a portion of such
Award in the event that a Participant establishes, to the satisfaction of the
Committee, the occurrence of an Unforeseeable Emergency. In such event, the
amount(s) distributed with respect to such Unforeseeable Emergency cannot exceed
the amounts necessary to satisfy such
Unforeseeable Emergency plus amounts necessary to pay taxes reasonably
anticipated as a result of such distribution(s), after taking into account the
extent to which such hardship is or may be relieved through reimbursement or
compensation by insurance or otherwise or
by liquidation of the Participant’s assets (to the extent the liquidation
of such assets would not itself cause severe financial hardship). All
distributions with respect to an Unforeseeable Emergency shall be
made in a lump sum as soon as practicable
following the Committee’s determination that an Unforeseeable
Emergency has occurred.

        


        The occurrence of an Unforeseeable
Emergency shall be judged and determined by the Committee. The
Committee’s decision with respect to whether an Unforeseeable Emergency
has occurred and the manner in which, if at all, the distribution in settlement
of an Award shall be altered or modified, shall be final, conclusive, and not
subject to approval or appeal.

        


        19.6 Disabled. The Committee shall have the authority to provide in
any Award subject to Section 409A for
distribution in settlement of such Award in the event that the Participant
becomes Disabled. A Participant shall be considered “Disabled” if either:

        


        (a) the Participant is unable to engage
in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or can be
expected to last for a continuous period of not less than twelve (12) months,
or

        


        (b) the Participant is, by reason of any
medically determinable physical or mental impairment which can be expected to
result in death or can be expected to last for a continuous period of not less
than twelve (12) months, receiving income replacement benefits for a period
of not less than three (3) months under an accident and health plan covering
employees of the Participant’s employer.

        


        All distributions payable by reason of a
Participant becoming Disabled shall be paid in a lump sum or in periodic installments as
established by the Participant’s Election, commencing as soon as
practicable following the date the Participant becomes Disabled. If the
Participant has made no Election with respect to distributions upon becoming
Disabled, all such distributions shall be paid
in a lump sum as soon as practicable following the date the Participant becomes
Disabled.

        


        19.7 Death. If a Participant dies before complete
distribution of amounts payable upon settlement of an Award
subject to Section 409A,
such undistributed amounts shall

        


         

        
          
            
            

          

          
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        be distributed to his
or her beneficiary under the distribution method for death established by the
Participant’s Election as soon as administratively
possible following receipt
by the Committee of satisfactory notice and confirmation of the
Participant’s death. If the Participant has made no
Election with respect to distributions upon death, all such distributions shall
be paid in a lump sum as soon as practicable following the date of the
Participant’s death.

        


        19.8  No Acceleration of
Distributions.
Notwithstanding anything to the contrary herein, this Plan does not
permit the acceleration of the time or schedule of any distribution under this
Plan, except as provided by Section 409A and/or the Secretary of the U.S.
Treasury.

        


        20.    MISCELLANEOUS PROVISIONS.

        


        20.1 Repurchase
Rights. Shares issued under
the Plan may be subject to one or more repurchase options, or other
conditions and restrictions as determined by the Committee in its discretion at
the time the Award is granted. The Company shall have the right to assign at any
time any repurchase right
it may have, whether or not such right is then exercisable, to one or more
persons as may be selected by the Company. Upon request by the Company, each
Participant shall execute any agreement evidencing such transfer restrictions
prior to the receipt of shares of Stock
hereunder and shall promptly present to the Company any and all certificates
representing shares of Stock acquired hereunder for the placement on such
certificates of appropriate legends evidencing any such transfer
restrictions.

        


        20.2   Forfeiture
Events.

        


        (a) The Committee may specify in an
Award Agreement that the Participant’s rights, payments, and benefits with
respect to an Award shall be subject to reduction, cancellation, forfeiture, or
recoupment upon the occurrence of specified events, in addition to
any otherwise applicable vesting or performance conditions of an Award. Such
events may include, but shall not be limited to, termination of Service for
Cause or any act by a Participant, whether before or after termination of Service, that would constitute
Cause for termination of Service.

        


        (b) If the Company is required to
prepare an accounting restatement due to the material noncompliance of the
Company, as a result of misconduct, with any financial reporting
requirement under the
securities laws, any Participant who knowingly or through gross negligence
engaged in the misconduct, or who knowingly or through gross negligence failed
to prevent the misconduct, and any Participant who is one of the individuals
subject to automatic forfeiture under Section 304
of the Sarbanes-Oxley Act of 2002, shall reimburse the Company the amount of any
payment in settlement of an Award earned or accrued during the twelve - (12-)
month period following the first public issuance or filing with the United States Securities and
Exchange Commission (whichever first occurred) of the financial document
embodying such financial reporting requirement.

        


        20.3 Provision of
Information. Each
Participant shall be given access to information concerning the Company
equivalent to that information generally made available to the
Company’s common
stockholders.

        


        


        
          
            
            

          

          
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        20.4 Rights as Employee,
Consultant or Director. No
person, even though eligible pursuant to Section 5, shall
have a right to be selected as a Participant, or, having been so selected, to be
selected again as a Participant. Nothing in the Plan or any Award granted under
the Plan shall confer on any Participant a right to remain an Employee, Consultant or Director or
interfere with or limit in any way any right of a Participating Company to
terminate the Participant’s Service at any time. To the extent
that an Employee of a Participating Company other than the Company receives
an Award under the Plan, that Award shall
in no event be understood or interpreted to mean that the Company is the
Employee’s employer or that the Employee has an
employment relationship with the Company.

        


        20.5 Rights as a
Stockholder. A Participant
shall have no rights as
a stockholder with respect to any shares
covered by an Award until the date of the issuance of such shares (as evidenced
by the appropriate entry on the books of the Company or of a duly authorized
transfer agent of the Company). No adjustment shall be made for dividends,
distributions or other rights for which the record date is prior to the date
such shares are issued, except as provided in Section 4.4 or another provision
of the Plan.

        


        20.6 Delivery of Title to
Shares. Subject to any
governing rules or regulations, the Company shall issue or cause to be
issued the shares of Stock acquired pursuant to an Award and shall deliver such
shares to or for the benefit of the Participant by means of one or more of the
following: (a) by
delivering to the Participant evidence of book entry shares of Stock credited to
the account of the Participant, (b) by depositing such shares of Stock for the
benefit of the Participant with any broker with which the Participant has an
account relationship, or (c) by delivering such
shares of Stock to the Participant in certificate form.

        


        20.7 Fractional
Shares. The Company shall
not be required to issue fractional shares upon the exercise or settlement
of any Award.

        


        20.8 Retirement and
Welfare Plans. Neither
Awards made under this Plan nor shares of Stock or cash paid
pursuant to such Awards may be included as “compensation” for purposes of computing the benefits
payable to any Participant under any Participating Company’s retirement plans (both qualified and
non-qualified) or welfare benefit plans unless such other plan expressly
provides that such compensation shall be taken into account in computing a
Participant’s benefit.

        


        20.9 Beneficiary
Designation. Subject to
local laws and procedures,
each Participant may file with the Company a
written designation of a beneficiary who is to receive any benefit under the
Plan to which the Participant is entitled in the event of such
Participant’s death before he or she receives
any or all of such benefit.
Each designation will revoke all prior designations by the same Participant,
shall be in a form prescribed by the Company, and will be effective only when
filed by the Participant in writing with the Company during the
Participant’s lifetime. If a married Participant
designates a beneficiary other than the Participant’s spouse, the effectiveness of such
designation may be subject to the consent of the Participant’s spouse. If a Participant dies without
an effective designation of a beneficiary who is living at the time of
the Participant’s death, the Company will pay any
remaining unpaid benefits to the Participant’s legal
representative.

        


        


        


        
          
            
            

          

          
            41

            
              

            

          

          
            
            

          

        

        


         

        20.10 Severability. If any one or more of the provisions
(or any part thereof) of this Plan shall be held invalid, illegal
or unenforceable in any respect, such provision shall be modified so as to make
it valid, legal and enforceable, and the validity, legality and
enforceability of the
remaining provisions (or any part thereof) of the Plan shall not in any way be
affected or impaired thereby.

        


        20.11 No Constraint on
Corporate Action. Nothing
in this Plan shall be construed to: (a) limit, impair, or
otherwise affect the Company’s or another Participating
Company’s right or power to make adjustments,
reclassifications, reorganizations, or changes of its capital or business
structure, or to merge or consolidate, or dissolve, liquidate, sell, or transfer
all or any part of its business or assets; or, (b) limit the
right or power of the Company or another Participating Company to take any
action which such entity deems to be necessary or
appropriate.

        


        20.12 Unfunded
Obligation. Participants
shall have the status of general unsecured creditors of the Company. Any
amounts payable to Participants pursuant to the Plan shall be unfunded and
unsecured obligations for all purposes, including, without limitation, Title I
of the Employee Retirement Income Security Act of 1974. No Participating Company shall be required to
segregate any monies from its general funds, or to create any trusts, or
establish any special accounts with respect to such obligations. The Company
shall retain at all times beneficial ownership of any investments,
including trust investments, which the
Company may make to fulfill its payment obligations hereunder. Any investments
or the creation or maintenance of any trust or any Participant account shall not
create or constitute a trust or fiduciary relationship between the Committee or any Participating
Company and a Participant, or otherwise create any vested or beneficial interest
in any Participant or the Participant’s creditors in any assets of any
Participating Company. The Participants shall have no claim against any Participating Company for any
changes in the value of any assets which may be invested or reinvested by the
Company with respect to the Plan.

        


        20.13 Choice of
Law. Except to the extent
governed by applicable federal law, the validity, interpretation,
construction and
performance of the Plan and each Award Agreement shall be governed by the laws
of the State of California, without regard to its conflict of law
rules.

        


         

        
          
            
            

          

          
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        PLAN HISTORY AND NOTES TO
COMPANY

         

        
          
            	
                    May 26,
2005

                  	 	
                    Board adopts Plan with a reserve
      of 37,690,976 shares, increased by up to 39,000,000 shares
      outstanding or subject to options outstanding under the Predecessor
      Plan which are forfeited or which terminate
      unexercised.

                  
	 
      	 	 
      
	
                    May 26,
2005

                  	 	
                    Stockholders approve
      Plan.

                  
	 
      	 	 
      
	
                    IMPORTANT
NOTE:

                    Implementation of Section 11—Deferred
      Compensation Awards or deferral of settlement of any Award

                  	 	
                    Upon establishment of a
      Deferred Compensation
      Award program pursuant to Section 11 or
      provision for
      deferral of settlement of any Award, determine
      whether such program
      will constitute a “top-hat” pension plan under
      ERISA. If so, file
      notice with Dept. of Labor under ERISA
      Reg. 2520.104-23
      within 120 days of adoption of resolutions by the Committee to
      establish the program to obtain exemption from reporting
      and disclosure requirements of ERISA. Include claims procedure
      in award agreements evidencing such
      awards.

                  
	 
      	 	 
      
	
                    IMPORTANT NOTE: 

                      IRC 162(m) 5 year reapproval
      of performance goals

                    

                  	 	
                    Because the Committee may change
      the targets under
      performance goals,
      Section 162(m)
      requires stockholder reapproval of the material
      terms of performance
      goals no later than
      the annual meeting in the 5th year following the year in which the public company
      stockholders initially approved such material terms. See Treas. Reg.
      1.162-27(e)(4)(vi).

                  
	 
      	 	 
      
	
                    May 2009

                  	 	
                    Board and stockholders approve
      increase in shares by 30 million.

                  
	 
      	 	 
      
	
                    May 2009

                  	 	
                    Stockholders re-approve Section
      162(m) performance criteria.

                  
	 
      	 	 
      
	
                    March 2009

                  	 	
                    Committee
      and Board approve increase in shares by 125 million, subject
      to stockholder approval.