exhibit10-1.htm


    NATIONAL
INSTRUMENTS CORPORATION

     

    2010
INCENTIVE PLAN

     

    1. Purposes of the
Plan.  The purposes of this Plan are:

     

    
      	
              ·  

            	
              to
      attract and retain the best available personnel for positions of
      substantial responsibility,

            


    

     

    
      	
              ·  

            	
              to
      provide incentives to individuals who perform services to the Company,
      and

            


    

     

    
      	
              ·  

            	
              to
      promote the success of the Company’s
business.

            


    

     

    The Plan
permits the grant of Restricted Stock and Restricted Stock Units.

     

    2. Definitions.  As
used herein, the following definitions will apply:

     

    (a) “Administrator” means
the Board or any of its Committees as will be administering the Plan, in
accordance with Section 4 of the Plan.

     

    (b) “Applicable Laws”
means the requirements relating to the administration of equity-based awards
under U.S. state corporate laws, U.S. federal and state securities laws, the
Code, any stock exchange or quotation system on which the Common Stock is listed
or quoted and the applicable laws of any foreign country or jurisdiction where
Awards are, or will be, granted under the Plan.

     

    (c) “Award” means,
individually or collectively, a grant under the Plan of Restricted Stock or
Restricted Stock Units.

     

    (d) “Award Agreement”
means the written or electronic agreement setting forth the terms and provisions
applicable to each Award granted under the Plan.  The Award Agreement
is subject to the terms and conditions of the Plan.

     

    (e) “Board” means the
Board of Directors of the Company.

     

    (f) “Cash Position” means
as to any Performance Period, the Company’ s level of cash and cash equivalents,
including, without limitation, amounts classified for financial reporting
purposes as short-term investments and restricted investments.

     

    (g) “Change in Control”
means the occurrence of any of the following events:

     

    (i) Any
“person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act)
becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act),
directly or indirectly, of securities of the Company representing fifty percent
(50%) or more of the total voting power represented by the Company’s then
outstanding voting securities; or

     

    (ii) Members
of the Incumbent Board cease for any reason to constitute at least a majority of
the Board; or

     

    (iii) A public
announcement is made of a tender or exchange offer for fifty percent (50%) or
more of the outstanding Voting Securities of the Company, and the Board approves
or fails to oppose that tender or exchange offer in its statements in Schedule
14D-9 under the Exchange Act; or

     

    (iv) The
stockholders of the Company approve a merger or consolidation of the Company
with any other corporation or partnership (or, if no such approval is required,
the consummation of such a merger or consolidation of the Company), other than a
merger or consolidation that would result in the ownership of voting securities
of the Company outstanding immediately before the consummation thereof
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity or of a parent of the surviving
entity) a majority of the combined voting power of the Voting Securities of the
surviving entity (or its parent) outstanding immediately after that merger or
consolidation; or

     

    (v) The
stockholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of all or
substantially all the Company’s assets (or, if no such approval is required, the
consummation of such a liquidation, sale, or disposition in one transaction or
series of related transactions) other than a liquidation, sale, or disposition
of all or substantially all the Company’s assets in one transaction or a series
of related transactions to a corporation owned directly or indirectly by the
stockholders of the Company in substantially the same proportions as their
ownership of Shares of the Company.

     

    (h) “Code” means the
Internal Revenue Code of 1986, as amended.  Any reference to a section
of the Code herein will be a reference to any successor or amended section of
the Code.

     

    (i) “Committee” means a
committee of Directors or of other individuals satisfying Applicable Laws
appointed by the Board in accordance with Section 4 hereof.

     

    (j) “Common Stock” means
the common stock of the Company.

     

    (k) “Company” means
National Instruments Corporation, a Delaware corporation, or any successor
thereto.

     

    (l) “Consultant” means any
person, including an advisor, engaged by the Company or a Parent or Subsidiary
to render services to such entity.

     

    (m) “Determination Date”
means the latest possible date that will not jeopardize the qualification of an
Award granted under the Plan as “performance-based compensation” under Section
162(m) of the Code.

     

    (n) “Director” means a
member of the Board.

     

    (o) “Disability” shall
have the meaning given it in the employment agreement of the Participant; provided, however, that if that
Participant has no employment agreement, “Disability” shall mean, as determined
by the Administrator in the sole discretion exercised in good faith of the
Board, a physical or mental impairment of sufficient severity that either the
Participant is unable to continue performing the duties he or she performed
before such impairment or the Participant’s condition entitles him or her to
disability benefits under any insurance or employee benefit plan of the Company
or its Subsidiaries and that impairment or condition is cited by the Company as
the reason for termination if the Participant ceases to be a Service
Provider.

     

    (p) “Earnings” for any
Fiscal Year shall mean the operating income of the Company on a consolidated
basis before taxes, interest, foreign currency exchange gains or losses, other
gains or losses and other extraordinary items for such Fiscal Year.

     

    (q) “Earnings Attainment”
for any Fiscal Year means a fraction, the numerator of which shall be the
percentage which Earnings constitutes of Net Sales for such Fiscal Year, and the
denominator of which shall be 18%.  In the event that there shall be
no Earnings for such Fiscal Year, the Earnings Attainment for such Fiscal Year
shall be zero.  Notwithstanding the foregoing, the Earnings Attainment
for any Fiscal Year shall not exceed one.

     

    (r) “Earnings Per Share”
means as to any Performance Period, the Company’s or a business unit’s Net
Income, divided by a weighted average number of Shares outstanding and dilutive
equivalent Shares deemed outstanding, determined in accordance with U.S. GAAP;
provided, however, that if Net Income as to any such Performance Period is a
negative amount, then Earnings Per Share means the Company’s or business unit’s
Net Income, divided by a weighted average number of Shares outstanding,
determined in accordance with U.S. GAAP.

     

    (s) “Effective Date” means
the date on which this Plan will take effect.

     

    (t) “Employee” means any
person, including Officers and Directors, employed by the Company or any Parent
or Subsidiary of the Company.  Neither service as a Director nor
payment of a director’s fee by the Company will be sufficient to constitute
“employment” by the Company.

     

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

     

    (v) “Exchange Program”
means a program under which outstanding Awards are surrendered or cancelled in
exchange for Awards of the same type, a different type of award, and/or
cash.  The Administrator will determine the terms and conditions of
any Exchange Program in its sole discretion.

     

    (w) “Excluded Items”
includes, without limitation, (i) incentive compensation, (ii) in-process
research and development expenses, (iii) acquisition costs,
(iv) compensation expense from equity compensation, (v) operating expenses
from acquired businesses, (vi) amortization of acquired intangible assets, and
(vii) such other unusual or one-time items as may be identified by the
Administrator.

     

    (x) “Fair Market Value”
means, as of any date, the value of Common Stock as the Administrator may
determine in good faith.

     

    (y) “Fiscal Year” means
the fiscal year of the Company.

     

    (z) “Incumbent Board”
means the individuals who, as of the Effective Date, constitute the Board and
any other individual who becomes a Director of the Company after that date and
whose election or appointment by the Board or nomination for election by the
Company’s stockholders was approved by a vote of at least a majority of the
Directors then comprising the Incumbent Board.

     

    (aa) “Inside Director”
means a Director who is an Employee.

     

    (bb) “Net Income” means as
to any Performance Period, the Company’s or a business unit’s income after taxes
determined in accordance with U.S. GAAP, adjusted for any Excluded Items
approved for exclusion by the Administrator.

     

    (cc) “Net Sales” for any
Fiscal Year shall mean the net sales of the Company on a consolidated basis for
such Fiscal Year.

     

    (dd) “Non-Surviving Event”
means an event of Restructuring as described in either Sections 2(qq)(ii) or
2(qq)(iii).

     

    (ee) “Officer” means a
person who is an officer of the Company within the meaning of Section 16 of
the Exchange Act and the rules and regulations promulgated
thereunder.

     

    (ff) “Operating Cash Flow”
means as to any Performance Period, the Company’s or a business unit’s cash flow
generated from operating activities, as reported in the Company’s cash flow
statements and calculated in accordance with U.S. GAAP, adjusted for any
Excluded Items approved for exclusion by the Administrator.

     

    (gg) “Operating Income”
means as to any Performance Period, the Company’s or a business unit’s income
from operations determined in accordance with U.S. GAAP, adjusted for any
Excluded Items approved for exclusion by the Administrator.

     

    (hh) “Outside Director”
means a Director who is not an Employee.

     

    (ii) “Parent” means a
“parent corporation,” whether now or hereafter existing, as defined in
Section 424(e) of the Code.

     

    (jj) “Participant” means
the holder of an outstanding Award.

     

    (kk) “Performance Goals”
means the goal(s) (or combined goal(s)) determined by the Administrator (in its
discretion) to be applicable to a Participant with respect to an Award granted
under the Plan.  As determined by the Administrator, the Performance
Goals applicable to an Award may provide for a targeted level or levels of
achievement using one or more of the following measures: (a) Cash Position,
(b) Earnings, (c) Earnings Attainment, (d) Earnings Per Share, (e) Net
Income, (f) Net Sales, (g) Operating Cash Flow, (h) Operating Income,
(i) Return on Assets, (j) Return on Equity, (k) Return on Sales,
(l) Revenue, (m) Sales Attainment, and (n) Total Shareholder
Return.  The Performance Goals may differ from Participant to
Participant and from Award to Award.  Prior to the Determination Date,
the Administrator will determine whether any significant element(s) will be
included in or excluded from the calculation of any Performance Goal with
respect to any Participant.

     

    (ll) “Performance Period”
means any Fiscal Year of the Company or such other period as determined by the
Administrator in its sole discretion.

     

    (mm) “Period of
Restriction” means the period during which the transfer of Shares of
Restricted Stock are subject to restrictions and therefore, the Shares are
subject to a substantial risk of forfeiture.  Such restrictions may be
based on the passage of time, the achievement of target levels of performance,
or the occurrence of other events as determined by the
Administrator.

     

    (nn) “Plan” means this 2010
Incentive Plan.

     

    (oo) “Restricted Stock”
means Shares issued pursuant to a Restricted Stock award under Section 6 of
the Plan.

     

    (pp) “Restricted Stock
Unit” means a bookkeeping entry representing an amount equal to the Fair
Market Value of one Share, granted pursuant to Section 7.  Each
Restricted Stock Unit represents an unfunded and unsecured obligation of the
Company.

     

    (qq) “Restructuring” means
the occurrence of any one or more of the following:

     

    (i) The
merger or consolidation of the Company with any person, whether effected as a
single transaction or a series of related transactions, with the Company
remaining the continuing or surviving entity of that merger or consolidation and
the Shares remaining outstanding and not changed into or exchanged for stock or
other securities of any other person or of the Company, cash, or other
property;

     

    (ii) The
merger or consolidation of the Company with any person, whether effected as a
single transaction or a series of related transactions, with (i) the Company not
being the continuing or surviving entity of that merger or consolidation or (ii)
the Company remaining the continuing or surviving entity of that merger or
consolidation but all or a part of the outstanding Shares are changed into or
exchanged for stock or other securities of any other person or the Company,
cash, or other property; or

     

    (iii) The
transfer, directly or indirectly, of all or substantially all of the assets of
the Company (whether by sale, merger, consolidation, liquidation, or otherwise)
to any person, whether effected as a single transaction or a series of related
transactions.

     

    (rr) “Return on Assets”
means as to any Performance Period, the percentage equal to the Company’s or a
business unit’s Operating Income divided by average net Company or business
unit, as applicable, assets, determined in accordance with U.S.
GAAP.

     

    (ss) “Return on Equity”
means as to any Performance Period, the percentage equal to the Company’s Net
Income divided by average stockholder’s equity, determined in accordance with
U.S. GAAP.

     

    (tt) “Return on Sales”
means as to any Performance Period, the percentage equal to the Company’s or a
business unit’s Operating Income divided by the Company’s or the business
unit’s, as applicable, Revenue.

     

    (uu) “Revenue” means as to
any Performance Period, the Company’s or business unit’s net sales, determined
in accordance with U.S. GAAP.

     

    (vv) “Rule 16b-3” means
Rule 16b-3 of the Exchange Act or any successor to Rule 16b-3, as in effect when
discretion is being exercised with respect to the Plan.

     

    (ww) “Sales Attainment” for
any Fiscal Year means a fraction, the numerator of which shall equal the
percentage increase in Net Sales for such Fiscal Year over the Net Sales for the
immediately preceding Fiscal Year, and the denominator of which shall be
40%.  In the event that there shall be no increase in the Net Sales
for such Fiscal Year from that of the immediately preceding Fiscal Year, the
Sales Attainment for such Fiscal Year shall be zero.  Notwithstanding
the foregoing, in no event shall the Sales Attainment for any Fiscal Year exceed
one.

     

    (xx) “Section 16(b)”  means
Section 16(b) of the Exchange Act.

     

    (yy) “Service Provider”
means an Employee, Director or Consultant.

     

    (zz) “Share” means a share
of the Common Stock, as adjusted in accordance with Section 10 of the
Plan.

     

    (aaa) “Subsidiary” means a
“subsidiary corporation,” whether now or hereafter existing, as defined in
Section 424(f) of the Code.

     

    (bbb) “Total Shareholder
Return” means as to any Performance Period, the total return (change in
share price plus reinvestment of any dividends) of a Share.

     

    (ccc) “U.S. GAAP” means
generally accepted accounting principles in the United States.

     

    (ddd) “Voting Securities”
means any securities that are entitled to vote generally in the election of
Directors, in the admission of general partners or in the selection of any other
similar governing body.

     

    3. Stock Subject to the Plan.

     

    (a) Stock Subject to the
Plan.  Subject to the provisions of Section 10 of the
Plan, the maximum aggregate number of Shares that may be awarded and sold under
the Plan is 2,000,000 plus (a) such number of Shares which have been reserved
but not issued under the Company’s 2005 Incentive Plan (the “2005 Plan”) as of
the date stockholders approve the Plan, and (b) any Shares returned to the
Company’s 1994 Incentive Stock Option Plan or the Company’s 2005 Plan as a
result of termination of options or repurchase of Shares issued under such
plan.  Shares shall not be deemed to have been issued pursuant to the
Plan with respect to any portion of an Award that is settled in
cash.  The Shares may be authorized, but unissued, or reacquired
Common Stock.

     

    (b) Lapsed
Awards.  If an Award expires, is surrendered pursuant to an
Exchange Program, or is forfeited to or repurchased by the Company, the
forfeited or repurchased Shares which were subject thereto will become available
for future grant or sale under the Plan (unless the Plan has
terminated).  However, Shares that have actually been issued under the
Plan under any Award will not be returned to the Plan and will not become
available for future distribution under the Plan; provided, however, that if
unvested Shares of Restricted Stock are repurchased by the Company or are
forfeited to the Company, such Shares will become available for future grant
under the Plan.  Shares used to pay the tax and exercise price of an
Award will become available for future grant or sale under the
Plan.  To the extent an Award under the Plan is paid out in cash
rather than Shares, such cash payment will not result in reducing the number of
Shares available for issuance under the Plan.

     

    (c) Share
Reserve.  The Company, during the term of this Plan, will at
all times reserve and keep available such number of Shares as will be sufficient
to satisfy the requirements of the Plan.

     

    4. Administration of the
Plan.

     

    (a) Procedure.

     

    (i) Multiple Administrative
Bodies.  Different Committees with respect to different groups
of Service Providers may administer the Plan.

     

    (ii) Section 162(m).  To
the extent that the Administrator determines it to be desirable to qualify
Awards granted hereunder as “performance-based compensation” within the meaning
of Section 162(m) of the Code, the Plan will be administered by a Committee
of two or more “outside directors” within the meaning of Section 162(m) of
the Code.

     

    (iii) Rule
16b-3.  To the extent desirable to qualify transactions
hereunder as exempt under Rule 16b-3, the transactions contemplated hereunder
will be structured to satisfy the requirements for exemption under Rule
16b-3.

     

    (iv) Other
Administration.  Other than as provided above, the Plan will be
administered by (A) the Board or (B) a Committee, which committee will
be constituted to satisfy Applicable Laws.

     

    (b) Powers of the
Administrator.  Subject to the provisions of the Plan, and in
the case of a Committee, subject to the specific duties delegated by the Board
to such Committee, the Administrator will have the authority, in its
discretion:

     

    (i) to
determine the Fair Market Value;

     

    (ii) to select
the Service Providers to whom Awards may be granted hereunder;

     

    (iii) to
determine the terms and conditions, not inconsistent with the terms of the Plan,
of any Award granted hereunder;

     

    (iv) to
approve forms of agreement for use under the Plan;

     

    (v) to
institute an Exchange Program;

     

    (vi) to
construe and interpret the terms of the Plan and Awards granted pursuant to the
Plan;

     

    (vii) to
prescribe, amend and rescind rules and regulations relating to the Plan,
including rules and regulations relating to sub-plans established for the
purpose of satisfying applicable foreign laws;

     

    (viii) to modify
or amend each Award (subject to Section 15(c) of the Plan);

     

    (ix) to
authorize any person to execute on behalf of the Company any instrument required
to effect the grant of an Award previously granted by the
Administrator;

     

    (x) to allow
a Participant to defer the receipt of the payment of cash or the delivery of
Shares that would otherwise be due to such Participant under an Award pursuant
to such procedures as the Administrator may determine; and

     

    (xi) to make
all other determinations deemed necessary or advisable for administering the
Plan.

     

    (c) Effect of
Administrator’s Decision.  The Administrator’s decisions,
determinations and interpretations will be final and binding on all Participants
and any other holders of Awards.

     

    5. Eligibility.  Restricted
Stock and Restricted Stock Units may be granted to Service
Providers.

     

    6. Restricted
Stock.

     

    (a) Grant of Restricted
Stock.  Subject to the terms and provisions of the Plan, the
Administrator, at any time and from time to time, may grant Shares of Restricted
Stock to Service Providers in such amounts as the Administrator, in its sole
discretion, will determine.

     

    (b) Restricted Stock
Agreement.  Each Award of Restricted Stock will be evidenced by
an Award Agreement that will specify the Period of Restriction, the number of
Shares granted, and such other terms and conditions as the Administrator, in its
sole discretion, will determine.  Notwithstanding the foregoing,
during any Fiscal Year no Participant will receive more than an aggregate of
50,000 Shares of Restricted Stock; provided, however, that in connection with a
Participant’s initial service as an Employee, an Employee may be granted an
aggregate of up to an additional 100,000 Shares of Restricted
Stock.  Unless the Administrator determines otherwise, Shares of
Restricted Stock will be held by the Company as escrow agent until the
restrictions on such Shares have lapsed.

     

    (c) Transferability.  Except
as provided in this Section 6, Shares of Restricted Stock may not be sold,
transferred, pledged, assigned, or otherwise alienated or hypothecated until the
end of the applicable Period of Restriction.

     

    (d) Other
Restrictions.  The Administrator, in its sole discretion, may
impose such other restrictions on Shares of Restricted Stock as it may deem
advisable or appropriate.

     

    (e) Removal of
Restrictions.  Except as otherwise provided in this Section 6,
Shares of Restricted Stock covered by each Restricted Stock grant made under the
Plan will be released from escrow as soon as practicable after the last day of
the Period of Restriction.  Except as otherwise provided in this
Section 6, the Administrator, in its discretion, may accelerate the time at
which any restrictions will lapse or be removed.

     

    (f) Voting
Rights.  During the Period of Restriction, Service Providers
holding Shares of Restricted Stock granted hereunder may not exercise any voting
rights with respect to those Shares, unless the Administrator determines
otherwise.

     

    (g) Dividends and Other
Distributions.  During the Period of Restriction, Service
Providers holding Shares of Restricted Stock will not be entitled to receive any
cash dividends paid with respect to such Shares, unless otherwise the
Administrator determines otherwise.  During the Period of Restriction,
if dividends or distributions are paid in Shares, Service Providers holding
Shares of Restricted Stock will be entitled to such dividends or
distributions.  The Shares received pursuant to any such dividend or
distribution will be subject to the same restrictions on transferability and
forfeitability as the Shares of Restricted Stock with respect to which they were
issued.

     

    (h) Return of Restricted Stock
to Company.  On the date set forth in the Award Agreement, the
Restricted Stock for which restrictions have not lapsed will revert to the
Company and again will become available for grant under the Plan.

     

    (i) Section 162(m) Performance
Restrictions.  For purposes of qualifying grants of Restricted
Stock as “performance-based compensation” under Section 162(m) of the Code,
the Administrator (which, for these purposes, will be a Committee established as
set forth in Section 4(a)(ii)), in its discretion, may set restrictions
based upon the achievement of Performance Goals.  The Performance
Goals will be set by the Administrator on or before the Determination
Date.  In granting Restricted Stock which is intended to qualify under
Section 162(m) of the Code, the Administrator will follow any procedures
determined by it from time to time to be necessary or appropriate to ensure
qualification of the Award under Section 162(m) of the Code (e.g., in
determining the Performance Goals).

     

    7. Restricted Stock
Units.

     

    (a) Grant.  Restricted
Stock Units may be granted at any time and from time to time as determined by
the Administrator.  Notwithstanding the foregoing, during any Fiscal
Year no Participant will receive more than an aggregate of 50,000 Restricted
Stock Units; provided, however, that in connection with a Participant’s initial
service as an Employee, an Employee may be granted an aggregate of up to an
additional 100,000 Restricted Stock Units.  After the Administrator
determines that it will grant Restricted Stock Units under the Plan, it will
advise the Participant in writing or electronically of the terms, conditions,
and restrictions related to the grant, including the number of Restricted Stock
Units and the form of payout, which, subject to Section 7(d), may be left
to the discretion of the Administrator.

     

    (b) Vesting Criteria and Other
Terms.  The Administrator will set vesting criteria in its
discretion, which, depending on the extent to which the criteria are met, will
determine the number of Restricted Stock Units that will be paid out to the
Participant.  The Administrator may set vesting criteria based upon
the achievement of Company-wide, business unit, or individual goals (including,
but not limited to, continued employment), or any other basis determined by the
Administrator in its discretion.

     

    (c) Earning Restricted Stock
Units.  Upon meeting the applicable vesting criteria, the
Participant will be entitled to receive a payout as specified in the Restricted
Stock Unit Award Agreement.  Notwithstanding the foregoing, at any
time after the grant of Restricted Stock Units, the Administrator, in its sole
discretion, may reduce or waive any vesting criteria that must be met to receive
a payout.

     

    (d) Form and Timing of
Payment.  Payment of earned Restricted Stock Units will be made
as soon as practicable after the date(s) set forth in the Award
Agreement.  The Administrator, in its sole discretion, may pay earned
Restricted Stock Units in cash, Shares, or a combination
thereof.  Shares represented by Restricted Stock Units that are fully
paid in cash again will be available for grant under the Plan.

     

    (e) Cancellation.  On
the date set forth in the Restricted Stock Unit Award Agreement, all unearned
Restricted Stock Units will be forfeited to the Company.

     

    (f) Section 162(m) Performance
Restrictions.  For purposes of qualifying grants of Restricted
Stock Units as “performance-based compensation” under Section 162(m) of the
Code, the Administrator (which, for these purposes, will be a Committee
established as set forth in Section 4(a)(ii)), in its discretion, may set
restrictions based upon the achievement of Performance Goals.  The
Performance Goals will be set by the Administrator on or before the
Determination Date.  In granting Restricted Stock which is intended to
qualify under Section 162(m) of the Code, the Administrator will follow any
procedures determined by it from time to time to be necessary or appropriate to
ensure qualification of the Award under Section 162(m) of the Code (e.g.,
in determining the Performance Goals).

     

    8. Leaves of
Absence.  Unless the Administrator provides otherwise, vesting
of Awards granted hereunder will be suspended during any unpaid leave of
absence.  A Service Provider will not cease to be an Employee in the
case of (i) any leave of absence approved by the Company or
(ii) transfers between locations of the Company or between the Company, its
Parent, or any Subsidiary.

     

    9. Transferability of
Awards.  Unless determined otherwise by the Administrator, an
Award may not be sold, pledged, assigned, hypothecated, transferred, or disposed
of in any manner other than by will or by the laws of descent or distribution
and may be exercised, during the lifetime of the Participant, only by the
Participant.  If the Administrator makes an Award transferable, such
Award will contain such additional terms and conditions as the Administrator
deems appropriate.

     

    10. Adjustments; Dissolution or
Liquidation; Merger or Change in Control.

     

    (a) Adjustment of Awards and
Authorized Shares.  The terms of an Award and the number of
Shares authorized pursuant to Section 3 for issuance under the Plan and the
numerical Share limits set forth in Sections 6 and 7 shall be subject to
adjustment from time to time, in accordance with the following
provisions:

     

    (i) If at any
time, or from time to time, the Company shall subdivide as a whole (by
reclassification, by a stock split, by the issuance of a distribution on Shares
payable in Shares, or otherwise) the number of Shares then outstanding into a
greater number of Shares, then (i) the maximum number of Shares available
for the Plan as provided in Section 3 and the numerical Share limits set forth
in Sections 6 and 7 shall be increased proportionately, and the kind of shares
or other securities available for the Plan shall be appropriately adjusted,
(ii) the number of Shares (or other kind of shares or securities) that may
be acquired under any Award shall be increased proportionately, and
(iii) the price, if any, for each Share (or other kind of shares or
securities) subject to then outstanding Awards shall be reduced proportionately,
without changing the aggregate purchase price or value as to which outstanding
Awards remain exercisable or subject to restrictions.

     

    (ii) If at any
time, or from time to time, the Company shall consolidate as a whole (by
reclassification, reverse stock split, or otherwise) the number of Shares then
outstanding into a lesser number of Shares, then (i) the maximum number of
Shares available for the Plan as provided in Section 3 and the numerical Share
limits set forth in Sections 6 and 7 shall be decreased proportionately, and the
kind of shares or other securities available for the Plan shall be appropriately
adjusted, (ii) the number of Shares (or other kind of shares or securities)
that may be acquired under any Award shall be decreased proportionately, and
(iii) the price, if any, for each Share (or other kind of shares or
securities) subject to then outstanding Awards shall be increased
proportionately, without changing the aggregate purchase price, if any, or value
as to which outstanding Awards remain exercisable or subject to
restrictions.

     

    (iii) Whenever
the number of Shares subject to outstanding Awards and the price, if any, for
each Share subject to outstanding Awards are required to be adjusted as provided
in this Section 10(a), the Administrator shall promptly prepare a notice setting
forth, in reasonable detail, the event requiring adjustment, the amount of the
adjustment, the method by which such adjustment was calculated, and the change
in price and the number of Shares, other securities, cash, or property
purchasable subject to each Award after giving effect to the
adjustments.  The Administrator shall promptly give each Participant
such a notice.

     

    (iv) Adjustments
under Sections 10(a)(i) and 10(a)(ii) shall be made by the Administrator, and
its determination as to what adjustments shall be made and the extent thereof
shall be final, binding, and conclusive.  No fractional interest shall
be issued under the Plan on account of any such adjustments.

     

    (v) Except as
set forth in Sections 10(a)(i) and 10(a)(ii), in the event that any dividend or
other distribution (whether in the form of Shares, other securities, or other
property), recapitalization, reorganization, merger, consolidation, split-up,
spin-off, combination, repurchase, or exchange of Shares or other securities of
the Company, or other change in the corporate structure of the Company affecting
the Shares occurs, the Administrator, in order to prevent diminution or
enlargement of the benefits or potential benefits intended to be made available
under the Plan, may (in its sole discretion) adjust the number and class of
Shares that may be delivered under the Plan and/or the number, class, and price
of Shares covered by each outstanding Award, and the numerical Share limits set
forth in Sections 6 and 7.

     

    (b) Dissolution or
Liquidation.  In the event of the proposed dissolution or
liquidation of the Company, the Administrator will notify each Participant as
soon as practicable prior to the effective date of such proposed
transaction.

     

    (c) Change in
Control.  Upon the occurrence of a Change in Control the
restriction period of any Award of Restricted Stock or Restricted Stock Units
shall immediately be accelerated and the restrictions shall
expire.  If a Change in Control involves a Restructuring or occurs in
connection with a series of related transactions involving a Restructuring and
if such Restructuring is in the form of a Non-Surviving Event and as a part of
such Restructuring Shares, other securities, cash, or property shall be issuable
or deliverable in exchange for Shares, then the Participant shall be entitled to
purchase or receive (in lieu of the Total Shares that the Participant would
otherwise be entitled to purchase or receive), as appropriate for the form of
Award, the number of Shares, other securities, cash, or property to which that
number of Total Shares would have been entitled in connection with such
Restructuring.  Nothing in this Section 10(c) shall impose on
Participant the obligation to exercise any Award immediately before or upon the
Change of Control, or cause Participant to forfeit the right to exercise the
Award during the remainder of the original term of the Award because of a Change
in Control.

     

    (d) Restructuring Without a
Change in Control.  In the event a Restructuring shall occur at
any time while there is any outstanding Award hereunder and that Restructuring
does not occur in connection with a Change in Control or a series of related
transactions involving a Change in Control, then:

     

    (i) the
restriction period of any Award of Restricted Stock or Restricted Stock Units
shall not immediately be accelerated and the restrictions expire merely because
of the occurrence of the Restructuring; and

     

    (ii) at the
option of the Administrator, the Administrator may (but shall not be required
to) cause the Company to take any one or more of the following
actions:

     

    (1) accelerate
in whole or in part the expiration of some or all of the restrictions on any
Restricted Stock Award;

     

    (2) if the
Restructuring is in the form of a Non-Surviving Event, cause the surviving
entity to assume in whole or in part any one or more of the outstanding Awards
upon such terms and provisions as the Administrator deems desirable;
or

     

    (3) redeem in
whole or in part any one or more of the outstanding Awards (whether or not then
exercisable) in consideration of a cash payment, as such payment may be reduced
for tax withholding obligations in an amount equal to the Fair Market Value,
determined as of the date immediately preceding the consummation of the
Restructuring, of the aggregate number of Shares subject to the Award and as to
which the Award is being redeemed.

     

    The
Company shall promptly notify each Participant of any election or action taken
by the Company under this Section 10(d).  In the event of any election
or action taken by the Company pursuant to this Section 10(d) that requires the
amendment or cancellation of any Award Agreement as may be specified in any
notice to the Participant thereof, that Participant shall promptly deliver that
Award Agreement to the Company in order for that amendment or cancellation to be
implemented by the Company and the Administrator.  The failure of the
Participant to deliver any such Award Agreement to the Company as provided in
the preceding sentence shall not in any manner affect the validity or
enforceability of any action taken by the Company and the Administrator under
this Section 10(d), including without limitation any redemption of an Award as
of the consummation of a Restructuring.  Any cash payment to be made
by the Company pursuant to this Section 10(d) in connection with the redemption
of any outstanding Awards shall be paid to the Participant thereof currently
with the delivery to the Company of the Award Agreement evidencing that Award;
provided, however, that any
such redemption shall be effective upon the consummation of the Restructuring
notwithstanding that the payment of the redemption price may occur subsequent to
the consummation.  If all or any portion of an outstanding Award is to
be exercised or accelerated upon or after the consummation of a Restructuring
that does not occur in connection with a Change in Control and is in the form of
a Non-Surviving Event, and as a part of that Restructuring shares of stock,
other securities, cash, or property shall be issuable or deliverable in exchange
for Shares, then the Participant shall thereafter be entitled to purchase or
receive (in lieu of the number of Shares that the Participant would otherwise be
entitled to purchase or receive) the number of Shares, other securities, cash,
or property to which such number of Shares would have been entitled in
connection with the Restructuring and such Award shall be subject to adjustments
that shall be as nearly equivalent as may be practical to the adjustments
provided for in this Section 10.

     

    (e) Notice of
Restructuring.  The Company shall attempt to keep all
Participants informed with respect to any Restructuring or of any potential
Restructuring to the same extent that the Company’s stockholders are informed by
the Company of any such event or potential event.

     

    11. Tax
Withholding

     

    (a) Withholding
Requirements.  Prior to the delivery of any Shares or cash
pursuant to an Award (or exercise thereof), the Company will have the power and
the right to deduct or withhold, or require a Participant to remit to the
Company, an amount sufficient to satisfy federal, state, local, foreign or other
taxes (including the Participant’s FICA obligation) required to be withheld with
respect to such Award (or exercise thereof).

     

    (b) Withholding
Arrangements.  The Administrator, in its sole discretion and
pursuant to such procedures as it may specify from time to time, may permit a
Participant to satisfy such tax withholding obligation, in whole or in part by
(without limitation) (a) paying cash, (b) electing to have the Company
withhold otherwise deliverable cash or Shares having a Fair Market Value equal
to the amount required to be withheld, (c) delivering to the Company
already-owned Shares having a Fair Market Value equal to the amount required to
be withheld, or (d) selling a sufficient number of Shares otherwise deliverable
to the Participant through such means as the Administrator may determine in its
sole discretion (whether through a broker or otherwise) equal to the amount
required to be withheld.  The amount of the withholding requirement
will be deemed to include any amount which the Administrator agrees may be
withheld at the time the election is made, not to exceed the amount determined
by using the maximum federal, state or local marginal income tax rates
applicable to the Participant with respect to the Award on the date that the
amount of tax to be withheld is to be determined.  The Fair Market
Value of the Shares to be withheld or delivered will be determined as of the
date that the taxes are required to be withheld.

     

    12. No Effect on Employment or
Service.  Neither the Plan nor any Award will confer upon a
Participant any right with respect to continuing the Participant’s relationship
as a Service Provider with the Company, nor will they interfere in any way with
the Participant’s right or the Company’s right to terminate such relationship at
any time, with or without cause, to the extent permitted by Applicable
Laws.

     

    13. Date of
Grant.  The date of grant of an Award will be, for all
purposes, the date on which the Administrator makes the determination granting
such Award, or such other later date as is determined by the
Administrator.  Notice of the determination will be provided to each
Participant within a reasonable time after the date of such grant.

     

    14. Term of
Plan.  Subject to Section 18 of the Plan, the Plan will
become effective upon its adoption by the Board.  It will continue in
effect until the Company’s stockholder meeting in 2015, but in no event beyond
December 31, 2015, unless terminated earlier under Section 15 of the
Plan.

     

    15. Amendment and Termination of
the Plan.

     

    (a) Amendment and
Termination.  The Administrator may at any time amend, alter,
suspend or terminate the Plan.

     

    (b) Stockholder
Approval.  The Company will obtain stockholder approval of any
Plan amendment to the extent necessary and desirable to comply with Applicable
Laws.

     

    (c) Effect of Amendment or
Termination.  No amendment, alteration, suspension or
termination of the Plan will impair the rights of any Participant, unless
mutually agreed otherwise between the Participant and the Administrator, which
agreement must be in writing and signed by the Participant and the
Company.  Termination of the Plan will not affect the Administrator’s
ability to exercise the powers granted to it hereunder with respect to Awards
granted under the Plan prior to the date of such termination.

     

    16. Conditions Upon Issuance of
Shares.

     

    (a) Legal
Compliance.  Shares will not be issued pursuant to the exercise
of an Award unless the exercise of such Award and the issuance and delivery of
such Shares will comply with Applicable Laws and will be further subject to the
approval of counsel for the Company with respect to such
compliance.

     

    (b) Investment
Representations.  As a condition to the exercise of an Award,
the Company may require the person exercising such Award to represent and
warrant at the time of any such exercise that the Shares are being purchased
only for investment and without any present intention to sell or distribute such
Shares if, in the opinion of counsel for the Company, such a representation is
required.

     

    17. Inability to Obtain
Authority.  The inability of the Company to obtain authority
from any regulatory body having jurisdiction, which authority is deemed by the
Company’s counsel to be necessary to the lawful issuance and sale of any Shares
hereunder, will relieve the Company of any liability in respect of the failure
to issue or sell such Shares as to which such requisite authority will not have
been obtained.

     

    18. Stockholder
Approval.  The Plan will be subject to approval by the
stockholders of the Company after the date the Plan is adopted.  Such
stockholder approval will be obtained in the manner and to the degree required
under Applicable Laws.