exv10w4



 




Exhibit 10.4






ROGER E. DAVIDSON



WILD OATS MARKETS, INC.



EQUITY INCENTIVE PLAN




ROGER E. DAVIDSON — WILD OATS MARKETS, INC.



EQUITY INCENTIVE PLAN




1. Purpose. The purpose of this Roger E. Davidson — Wild Oats Markets, Inc. Equity Incentive Plan
(the “Plan”) is to induce Roger E. Davidson to enter employment with, and to aid Wild Oats Markets,
Inc., a Delaware corporation (together with its successors and assigns, the “Company”), in
retaining, motivating and rewarding Roger E. Davidson, to provide for equitable and competitive
compensation opportunities, and promote the creation of long-term value for stockholders by closely
aligning the interests of Roger E. Davidson with those of stockholders.



2. Definitions. In addition to the terms defined in Section 1 above and elsewhere in the Plan, the
following capitalized terms used in the Plan have the respective meanings set forth in this
Section:




(a) “Annual Limit” shall have the meanings specified in Section 5(b).




(b) “Award” means any Option granted to Participant under the Plan.



(c) “Beneficiary” means the legal representatives of the Participant’s estate entitled
by will or the laws of descent and distribution to receive the benefits under a Participant’s Award
upon a Participant’s death, provided that, if and to the extent authorized by the Committee, a
Participant may be permitted to designate a Beneficiary, in which case the “Beneficiary” instead
will be the person, persons, trust or trusts (if any are then surviving) which have been designated
by the Participant in his or her most recent written and duly filed beneficiary designation to
receive the benefits specified under the Participant’s Award upon such Participant’s death. Unless
otherwise determined by the Committee, any designation of a Beneficiary other than a Participant’s
spouse shall be subject to such spouse’s written consent.



(d) “Board” means the Company’s Board of Directors.



(e) “Change in Control” has the meanings specified in Section 9.



(f) “Code” means the Internal Revenue Code of 1986, as amended. References to any
provision of the Code or regulation thereunder shall include any successor provisions and
regulations, and reference to regulations includes any applicable guidance or pronouncement of the
Department of the Treasury and Internal Revenue Service.



(g) “Committee” means the Compensation Committee of the Board, which shall consist
solely of two or more “Outside Directors” in accordance with Code Section 162(m), or solely of two
or more “Non-Employee Directors”, in accordance with Rule 16(b)-3 of the Exchange Act. No action
of the Committee shall be void or deemed to be without authority due to the failure of any member,
at the time the action was taken, to meet any qualification standard set forth in the Committee
Charter or the Plan. The full Board may perform any function of the Committee hereunder, in which
case the term “Committee” shall refer to the Board.



(h) “Covered Employee” means an Eligible Person who is a Covered Employee as specified
in Section 11(j).


 


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(i) “Dividend Equivalent” means a right, granted under this Plan, to receive cash,
Stock, other Awards or other property equal in value to all or a specified portion of the dividends
paid with respect to a specified number of shares of Stock.




(j) “Effective Date” means the effective date specified in Section 11(q).




(k) “Eligible Person” has the meaning specified in Section 5.



(l) “Exchange Act” means the Securities Exchange Act of 1934, as amended. References
to any provision of the Exchange Act or rule (including a proposed rule) thereunder shall include
any successor provisions and rules.



(m) “Fair Market Value” means the fair market value of Stock, Awards or other property
as determined in good faith by the Committee or under procedures established by the Committee.
Unless otherwise determined by the Committee, the Fair Market Value of Stock shall be the closing
sales price for such Stock (or the closing bid, if no sales were reported) as quoted on the NASDAQ
National Market or the NASDAQ SmallCap Market or any other established stock exchange, as
applicable, on the last market trading day prior to the day of determination or grant, as reported
in the Wall Street Journal or such other source as the Board deems reliable. Fair Market Value
relating to the determination of the exercise price or base price of any Non-409A Option or SAR
(that does not provide for a deferral of compensation) shall be made consistent with the
requirements under Code Section 409A.



(n) “409A Awards” means Awards that constitute a deferral of compensation under Code
Section 409A and regulations thereunder. “Non-409A Awards” means Awards other than 409A
Awards. Although the Committee retains authority under the Plan to grant Options, SARs and
Restricted Stock on terms that will qualify those Awards as 409A Awards, Options, SARs exercisable
for Stock, and Restricted Stock are intended to be Non-409A Awards unless otherwise expressly
specified by the Committee.



(o) “Incentive Stock Option” or “ISO” means any Option designated as an
incentive stock option within the meaning of Code Section 422 and qualifying thereunder.




(p) “Option” means a right, granted under this Plan, to purchase Stock.



(q) “Other Stock-Based Awards” means Awards granted to a Participant under Section
6(h).



(r) “Participant” means Roger E. Davidson, after he has been granted an Award under
the Plan which remains outstanding, even if no longer an Eligible Person.



(s) “Performance Award” means a conditional right, granted to a Participant under
Sections 6(i) and 7, to receive cash, Stock or other Awards or payments.




(t) “Preexisting Plan” — INTENTIONALLY DELETED.



(u) “Restricted Stock” means Stock granted under this Plan which is subject to certain
restrictions and to a risk of forfeiture.



(v) “Restricted Stock Unit” or “RSU” means a right, granted under this Plan,
to receive Stock or other Awards or a combination thereof at the end of a specified deferral
period.



(w) “Rule 16b-3” means Rule 16b-3, as from time to time in effect and applicable to
Participants, promulgated by the Securities and Exchange Commission under Section 16 of the
Exchange Act.


 


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(x) “Stock” means the Company’s Common Stock, par value $0.001 per share, and any
other equity securities of the Company that may be substituted or resubstituted for Stock pursuant
to Section 11(c).



(y) “Stock Appreciation Rights” or “SAR” means a right granted to a
Participant under Section 6(c).



3. Administration.



(a) Authority of the Committee. The Plan shall be administered by the Committee,
which shall have full and final authority, in each case subject to and consistent with the
provisions of the Plan, to select Eligible Persons to participate; to grant Awards; to determine
the type and number of Awards, the dates on which Awards may be exercised and on which the risk of
forfeiture or deferral period relating to Awards shall lapse or terminate, the acceleration of any
such dates, the expiration date of any Award, whether, to what extent, and under what circumstances
an Award may be settled, or the exercise price of an Award may be paid, in cash, Stock, other
Awards, or other property, and other terms and conditions of, and all other matters relating to,
Awards; to prescribe documents evidencing or setting terms of Awards (such Award documents need not
be identical for each Participant), amendments thereto, and rules and regulations for the
administration of the Plan and amendments thereto (including outstanding Awards); to construe and
interpret the Plan and Award documents and correct defects, supply omissions or reconcile
inconsistencies therein; and to make all other decisions and determinations as the Committee may
deem necessary or advisable for the administration of the Plan. Decisions of the Committee with
respect to the administration and interpretation of the Plan shall be final, conclusive, and
binding upon all persons interested in the Plan, including Participants, Beneficiaries, transferees
under Section 11(b) and other persons claiming rights from or through a Participant, and
stockholders. The foregoing notwithstanding, the Board shall perform the functions of the
Committee for purposes of granting Awards under the Plan to members of the Committee.



(b) Manner of Exercise of Committee Authority. The express grant of any specific
power to the Committee, and the taking of any action by the Committee, shall not be construed as
limiting any power or authority of the Committee. The Committee may act through subcommittees,
including for purposes of perfecting exemptions under Rule 16b-3 or qualifying Awards under Code
Section 162(m) as performance-based compensation, in which case the subcommittee shall be subject
to and have authority under the charter applicable to the Committee, and the acts of the
subcommittee shall be deemed to be acts of the Committee hereunder. The Committee may delegate to
officers or managers of the Company or any subsidiary, or committees thereof, the authority,
subject to such terms as the Committee shall determine, to perform such functions, including
administrative functions, as the Committee may determine, to the extent (i) that such delegation
will not result in the loss of an exemption under Rule 16b-3 for Awards granted to Participants
subject to Section 16 of the Exchange Act in respect of the Company and will not cause Awards
intended to qualify as “performance-based compensation” under Code Section 162(m) to fail to so
qualify, and (ii) permitted under Section 157 and other applicable provisions of the Delaware
General Corporation Law.



(c) Limitation of Liability. The Committee and each member thereof, and any person
acting pursuant to authority delegated by the Committee, shall be entitled, in good faith, to rely
or act upon any report or other information furnished by any executive officer, other officer or
employee of the Company or a subsidiary, the Company’s independent auditors, consultants or any
other agents assisting in the administration of the Plan. Members of the Committee, any person
acting pursuant to authority delegated by the Committee, and any officer or employee of the Company
or a subsidiary acting at the direction or on behalf of the Committee or a delegee shall not be
personally liable for any action or determination taken or made in good faith with respect to the
Plan, and shall, to the extent permitted by law, be fully indemnified and protected by the Company
with respect to any such action or determination.


 


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4. Stock Subject To Plan.



(a) Overall Number of Shares Available for Delivery. Subject to adjustments pursuant
to the provisions of Section 11(c) below, the total number of shares of Stock reserved and
available for delivery in connection with Awards under the Plan shall be the sum of 100,000 shares.
Any shares of Stock delivered under the Plan shall consist of authorized and unissued shares or
treasury shares.



(b) Share Counting Rules. The Committee may adopt reasonable counting procedures to
ensure appropriate counting, avoid double counting (as, for example, in the case of tandem or
substitute awards) and make adjustments in accordance with this Section  4(b). Shares that are
potentially deliverable under an Award under the Plan that are canceled, expired, forfeited,
settled in cash or otherwise terminated without a delivery of such shares to the Participant will
not be counted as delivered under the Plan.



5. Eligibility; Per-Person Award Limitations.



(a) Eligibility. Awards may be granted under the Plan only to Eligible Persons. For
purposes of the Plan, an “Eligible Person” means Roger E. Davidson, who has been offered employment
by the Company or a parent or subsidiary, provided that Roger E. Davidson may not receive any
payment or exercise any right relating to an Award until such person has commenced employment with
the Company or a subsidiary. An employee on “leave of absence” (as such term is defined in the
Company’s employee handbook or, if no such definition exists, as otherwise defined by the Committee
in its discretion) may be considered as still in the employ of the Company or a parent or
subsidiary for purposes of eligibility for participation in the Plan, if so determined by the
Committee.



(b) Per-Person Award Limitations. In each calendar year during any part of which the
Plan is in effect, an Eligible Person may be granted Awards under each of Section 6(b), 6(c), 6(d),
6(e), 6(f), 6(g) or 6(h) relating to up to his or her Annual Limit (such Annual Limit to apply
separately to the type of Award authorized under each specified subsection, except that the
limitation applies to Dividend Equivalents under Section 6(g) only if such Dividend Equivalents are
granted separately from and not as a feature of another Award). A Participant’s Annual Limit, in
any year during any part of which the Participant is then eligible under the Plan, shall equal
500,000 shares plus the amount of the Participant’s unused Annual Limit relating to the same type
of Award as of the close of the previous year, subject to adjustment as provided in Section 11(c).
In the case of an Award which is not valued in a way in which the limitation set forth in the
preceding sentence would operate as an effective limitation satisfying applicable law (including
Treasury Regulation 1.162-27(e)(4)), an Eligible Person may not be granted Awards authorizing the
earning during any calendar year of an amount that exceeds the Eligible Person’s Annual Limit,
which for this purpose shall equal $1 million plus the amount of the Eligible Person’s unused cash
Annual Limit as of the close of the previous year (this limitation is separate and not affected by
the number of Awards granted during such calendar year subject to the limitation in the preceding
sentence). For this purpose, (i) “earning” means satisfying performance conditions so that an
amount becomes payable, without regard to whether it is to be paid currently or on a deferred basis
or continues to be subject to any service requirement or other non-performance condition, and (ii)
a Participant’s Annual Limit is used to the extent an amount or number of shares may be potentially
earned or paid under an Award, regardless of whether such amount or shares are in fact earned or
paid.



6. Specific Terms of Awards.




(a) General. Awards may be granted on the terms and conditions set forth in this
Section 6. In addition, the Committee may impose on any Award or the exercise thereof, at the date
of grant or thereafter (subject to Sections 11(e) and 11(k)), such additional terms and conditions,
not inconsistent with the provisions of the Plan, as the Committee shall determine, including terms
requiring forfeiture of Awards in the event of termination of employment or service by the
Participant and terms permitting a Participant to make elections relating to his or her Award. The
Committee shall retain full power and discretion with respect to any term or condition of an Award
that is not mandatory under the Plan, subject



 


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to Section 11(k). The Committee shall require the payment of lawful consideration for an Award to
the extent necessary to satisfy the requirements of the Delaware General Corporation Law, and may
otherwise require payment of consideration for an Award except as limited by the Plan.



(b) Options. The Committee is authorized to grant Options to Participant on the
following terms and conditions:




	 	(i)	 	Exercise Price. The exercise price per share of Stock purchasable under an
Option (including both ISOs and non-qualified Options) shall be determined by the
Committee, provided that, notwithstanding anything contained herein to the contrary
such exercise price shall be (A) fixed as of the grant date, and (B) not less than the
Fair Market Value of a share of Stock on the date of grant of such Option.
Notwithstanding the foregoing, any substitute award granted in assumption of or in
substitution for an outstanding award granted by a company or business acquired by the
Company or a subsidiary, or with which the Company or a subsidiary combines may be
granted with an exercise price per share of Stock other than as required above.

	 
	 	(ii)	 	Option Term; Time and Method of Exercise. The Committee shall determine the
term of each Option, provided that in no event shall the term of any Option exceed a
period of ten years from the date of grant. The Committee shall determine the time or
times at which or the circumstances under which an Option may be exercised in whole or
in part. The basis for determining the vesting and exercisability of an option will
be the passage of a specific period of time or the occurrence or non-occurrence of
certain specific events (which may include, but is not limited to, the achievement of
performance goals or future service requirements) or a combination thereof. In
addition, the Committee shall determine the methods by which such exercise price may
be paid or deemed to be paid and the form of such payment (subject to Sections 11(k)
and 11(l)), including, without limitation, cash, Stock (including by delivery of Stock
or withholding Stock deliverable upon exercise, if such payment feature will not
result in additional accounting expense to the Company), other Awards or awards
granted under other plans of the Company or any subsidiary, or other property
(including through broker-assisted “cashless exercise” arrangements, to the extent
permitted by applicable law), and the methods by or forms in which Stock will be
delivered or deemed to be delivered in satisfaction of Options to Participants
(including, in the case of 409A Awards, deferred delivery of shares subject to the
Option, as mandated by the Committee, with such deferred shares subject to any
vesting, forfeiture or other terms as the Committee may specify). Stock delivered
hereunder shall be valued at Fair Market Value on the day prior to remittance of the
Stock.

	 
	 	(iii)	 	ISOs. The terms of any ISO granted under the Plan shall comply in all
respects with the provisions of Code Section 422, including but not limited to that to
the extent that the aggregate Fair Market Value (determined at the time of grant) of
ISOs granted are exercisable for the first time by any Participant during any calendar
year under all plans of the Company and its parent and subsidiaries exceeds the dollar
limit stated in Code Section 422, the ISO or portion thereof which exceed the limit
(according to the order in which they were granted) shall be treated as nonqualified
stock options.

	 
	 	(iv)	 	Repricing. Notwithstanding anything in this Plan to the contrary, without
the approval of stockholders, the Committee will not amend or replace previously
granted Options in a transaction that constitutes a “repricing,” as such term is used
in Section 303A.08 of the Listed Company Manual of the New York Stock Exchange or
Nasdaq National Market (as then applicable) or Item 402(i)(1) of Regulation S-K of the
Exchange Act.

	 
	 	(v)	 	Termination of Employment or Relationship. In the event a Participant’s
continuous status as an employee, director, advisor or consultant terminates (other
than upon the Participant’s death or Disability), the Participant may exercise his/her
Options to the





 


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	 	 	 	extent then exercisable on the date of termination, but only within such period of
time ending on the earlier of: (A) the date 90 days after the termination of the
Participant’s current continuous service, or (B) or such longer or shorter period
specified in the Award agreement, or (C) the expiration of the Award as specified
in the Award agreement.







	 	(vi)	 	Death or Disability. In the event a Participant’s continuous status as an
employee, director, advisor or consultant terminates upon the Participant’s death or
Disability, the Participant may exercise his/her Options to the extent then
exercisable on the date of termination, but only within such period of time ending on
the earlier of: (A) the date 180 days after the termination of the Participant’s
current continuous service for Disability, and one year after termination for death,
or (B) or such longer or shorter period specified in the Award agreement, or (C) the
expiration of the Award as specified in the Award agreement. Unless otherwise defined
in an Award agreement, “Disability” means the Participant is actually receiving
benefits under a separate disability plan maintained by the Company or its subsidiary.

	 
	 	(vii)	 	Earlier Forfeiture. A Participant’s right to exercise Options may terminate
earlier as provided under Section 10 below.

	 
	 	(viii)	 	Section 16. A Participant’s Award agreement may provide that if the exercise of the
Option following the termination of the Participant’s continuous status as an
employee, director, or consultant (other than upon the Participant’s death or
Disability) would result in liability under Section 16(b) of the Exchange Act, then
the Option shall terminate on the earlier of (i) the expiration of the term of the
Option set forth in the Award agreement, or (ii) the tenth (10th) day after the last
date on which such exercise would result in such liability under Section 16(b) of the
Exchange Act.






7. Performance Awards. INTENTIONALLY DELETED.



8. Certain Provisions Applicable To Awards.



(a) Stand-Alone, Additional, and Tandem Awards. Awards granted under the Plan may, in
the Committee’s discretion, be granted either alone or in addition to, in tandem with, or in
substitution or exchange for, any other Award or any award granted under another plan of the
Company, any subsidiary, or any business entity acquired by the Company or a subsidiary, or any
other right of a Participant to receive payment from the Company or any subsidiary; provided,
however, that a 409A Award may not be granted in tandem with a Non-409A Award. Awards granted in
addition to or in tandem with other Awards or awards may be granted either as of the same time as
or a different time from the grant of such other Awards or awards. Notwithstanding anything in
this Section 8(a) to the contrary, in no event may Options or SARs be exchanged for Awards of the
same or different type in a manner that would violate the provisions of Section 303A.08 of the
Listed Company Manual of the New York Stock Exchange or Nasdaq National Market (as then applicable)
or Item 402(i)(1) of Regulation S-K of the Exchange Act.



(b) Term of Awards. The term of each Award shall be for such period as may be
determined by the Committee, subject to the express limitations set forth in Sections 6(b)(ii),
6(c)(ii) and 8 or elsewhere in the Plan.



(c) Form and Timing of Payment under Awards; Deferrals. Subject to the terms of the
Plan (including Sections 11(k) and (l)) and any applicable Award document, payments to be made by
the Company or a subsidiary upon the exercise of an Option or other Award or settlement of an Award
may be made in such forms as the Committee shall determine, including, without limitation, cash,
Stock, other Awards or other property, and may be made in a single payment or transfer, in
installments, or on a deferred basis. The settlement of any Award may be accelerated, and cash
paid in lieu of Stock in



 


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connection with such settlement, in the Committee’s discretion or upon occurrence of one or more
specified events, subject to Sections 6(b)(ii), 11(k) and 11(l). Subject to Section 11(k),
installment or deferred payments may be required by the Committee (subject to Section 11(e)) or
permitted at Participant’s election on terms and conditions established by the Committee. Payments
may include, without limitation, provisions for the payment or crediting of reasonable interest on
installment or deferred payments or the grant or crediting of Dividend Equivalents or other amounts
in respect of installment or deferred payments denominated in Stock. In the case of any 409A Award
that is vested and no longer subject to a risk of forfeiture (within the meaning of Code Section
83), such Award will be distributed to the Participant, upon application of the Participant, if the
Participant has had an unforeseeable emergency within the meaning of Code Sections
409A(a)(2)(A)(vi) and 409A(a)(2)(B)(ii), in accordance with Section 409A(a)(2)(B)(ii).



9. Change in Control.




(a) The Committee shall have the discretion to provide that in the event of a Change in
Control (as defined in Section 9(b) below), the following provisions will apply:




	 	(i)	 	Each outstanding Option or SAR (or such lesser portion of each Option or SAR
as is set forth in an applicable Award agreement) will immediately become exercisable
in full.

	 
	 	(ii)	 	Each outstanding share of Restricted Stock (or such lesser number of shares
as is set forth in an applicable Award agreement) will immediately become free of the
restrictions.

	 
	 	(iii)	 	To the extent provided in an applicable Award agreement, each outstanding
other Award shall be deemed free of restriction and any performance goals shall be
determined to be satisfied to the extent set forth in the Award agreement.

	 
	 	(iv)	 	In the event of a Change in Control that is a merger or consolidation in
which the Company is not the surviving corporation or which results in the acquisition
of substantially all of the Company’s outstanding Stock by a single person or entity
or by a group of persons or entities acting in concert, or in the event of a sale or
transfer of all or substantially all of the Company’s assets (a “Covered
Transaction”), the Committee shall have the discretion to provide for the termination
of all outstanding Options and SARs as of the effective date of the Covered
Transaction; provided, that, if the Covered Transaction follows a Change in Control or
would give rise to a Change in Control, no Option or SAR will be so terminated
(without the consent of the Participant) prior to the expiration of 20 days following
the later of (A) the date on which the Award became fully exercisable and (B) the date
on which the Participant received written notice of the consummation of a Covered
Transaction.






(b) Except as provided in Section 9(c), a “Change in Control” shall be deemed to have occurred
if the event set forth in any one of the following paragraphs shall have occurred:




	 	(i)	 	any person is or becomes the beneficial owner (as determined under Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the Company (not
including in the securities beneficially owned by such person any securities acquired
directly from the Company or its affiliates (as determined under Rule 12b-2 under the
Exchange Act) representing 31 percent (31%) or more of the combined voting power of
the Company’s then outstanding securities, excluding any person who becomes such a
beneficial owner in connection with a Non-Control Merger (as defined in paragraph
(iii) below); or





 


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	 	(ii)	 	the following individuals cease for any reason to constitute a majority of
the number of directors then serving: individuals who, on the date hereof, constitute
the Board and any new director (other than a director whose initial assumption of
office is in connection with an actual or threatened election contest, including but
not limited to a consent solicitation, relating to the election of directors of the
Company) whose appointment or election by the Board or nomination for election by the
Company’s stockholders was approved or recommended by a vote of at least two-thirds
(2/3) of the directors then still in office who either were directors on the date
hereof or whose appointment, election or nomination for election was previously so
approved or recommended; or;

	 
	 	(iii)	 	there is consummated a merger or consolidation of the Company or any direct
or indirect subsidiary of the Company with any other corporation, other than a merger
or consolidation (a “Non-Control Merger”) immediately following which the individuals
who comprise the Board immediately prior thereto constitute at least a majority of the
board of directors of the Company, the entity surviving such merger or consolidation
or any parent thereof; or

	 
	 	(iv)	 	the stockholders of the Company approve a plan of complete liquidation or
dissolution of the Company or there is consummated an agreement for the sale or
disposition by the Company of all or substantially all of the Company’s assets, other
than a sale or disposition by the Company of all or substantially all of the Company’s
assets immediately following which the individuals who comprise the Board immediately
prior thereto constitute at least a majority of the board of directors of the entity
to which such assets are sold or disposed or any parent thereof.






Notwithstanding the foregoing, a “Change in Control” shall not be deemed to have occurred by virtue
of the consummation of any transaction or series of integrated transactions immediately following
which the record holders of the common stock of the Company immediately prior to such transaction
or series of transactions continue to have substantially the same proportionate ownership in an
entity which owns all or substantially all of the assets of the Company immediately following such
transaction or series of transactions.



(c) To the extent required for purposes of compliance with Section 409A, the following
definition of a “Change in Control” shall apply to Awards subject to Section 409A. A “Change in
Control” shall be deemed to have occurred if the event set forth in any one of the following
paragraphs shall have occurred:




	 	(i)	 	Change in Ownership. Any one person, or more than one person acting as a
group (“Person”), acquires ownership of stock of the Company that, together with stock
held by the Person, constitutes more than 50 percent (50%) of the total fair market
value or total voting power of the stock of the Company. However, if any Person is
considered to own more than 50 percent (50%) of the total fair market value or total
voting power of the stock of the Company, the acquisition of additional stock by the
Person is not considered to cause a change in the ownership of the Company (or to
cause a change in the effective control of the Company (within the meaning of
paragraph (ii)).

	 
	 	(ii)	 	Change in Effective Control. A change in effective control of the Company
occurs only on the date that either:







	 	(A)	 	Any Person acquires (or has acquired during the 12-month
period ending on the date of the most recent acquisition by the Person)
ownership of stock of the Company possessing 35 percent (35%) or more of the
total voting power of the stock of the Company; or





 


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	 	(B)	 	A majority of the members of the Board is replaced during any
12-month period by directors whose appointment or election is not endorsed by
a majority of the members of the Board prior to the date of the appointment or
election.







	 	(iii)	 	Change in Ownership of a Substantial Portion of the Company’s Assets. The
date that any Person acquires (or has acquired during the 12-month period ending on
the date of the most recent acquisition by the Person) assets from the Company that
have a total gross fair market value of all of the assets of the Company immediately
prior to the acquisition or acquisitions. For this purpose, gross fair market value
means the value of the assets of the Company, or the value of the assets being
disposed of, determined without regard to any liabilities associated with the assets.






The determination of whether a “Change in Control” has occurred and the date consummated, shall be
made by the Board, in good faith, consistent with the requirements of Code Section 409A.



10. Additional Award Forfeiture Provisions.



(a) Forfeiture of Options and Other Awards and Gains Realized Upon Prior Option Exercises
or Award Settlements. Unless otherwise determined by the Company, each Award granted
hereunder, shall be subject to the following additional forfeiture conditions, to which the
Participant, by accepting an Award hereunder, agrees. If any of the events specified in Section
10(b)(i), (ii), (iii), (iv) occurs (a “Forfeiture Event”), all of the following forfeitures will
result:




	 	(i)	 	The unexercised portion of the Option, whether or not vested, and any other
Award not then settled will be immediately forfeited and canceled upon the occurrence
of the Forfeiture Event; and

	 
	 	(ii)	 	The Participant will be obligated to repay to the Company, in cash, within
five business days after demand is made therefor by the Company, the total amount of
Award Gain (as defined herein) realized by the Participant upon each exercise of an
Option or settlement of an Award that occurred on or after (A) the date that is six
months prior to the occurrence of the Forfeiture Event, if the Forfeiture Event
occurred while the Participant was employed by, or providing services to, the Company
or a subsidiary, or (B) the date that is six months prior to the date the
Participant’s employment by, or service with, the Company or a subsidiary terminated,
if the Forfeiture Event occurred after the Participant ceased to be so employed or
ceased service. For purposes of this Section, the term “Award Gain” shall mean (i),
in respect of a given Option exercise, the product of (X) the Fair Market Value per
share of Stock at the date of such exercise (without regard to any subsequent change
in the market price of shares) minus the exercise price times (Y) the number of shares
as to which the Option was exercised at that date, and (ii), in respect of any other
settlement of an Award granted to the Participant, the Fair Market Value of the cash
or Stock paid or payable to Participant (regardless of any elective deferral) less any
cash or the Fair Market Value of any Stock or property (other than an Award or award
which would have itself then been forfeitable hereunder and excluding any payment of
tax withholding) paid by the Participant to the Company as a condition of or in
connection such settlement.






(b) Events Triggering Forfeiture. The forfeitures specified in Section 10(a) will be
triggered upon the occurrence of any one of the following Forfeiture Events at any time during
Participant’s employment by, or service with, the Company or a subsidiary, or during the one-year
period following termination of service or employment:


 


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	 	(i)	 	Participant, acting alone or with others, directly or indirectly, (A)
engages, either as employee, employer, consultant, advisor, or director, or as an
owner, investor, partner, stockholder, licensee or licensor unless Participant’s
interest is insubstantial, in any business in an area or region in which the Company
conducts business at the date the event occurs, which is directly in competition with
a business then conducted by the Company or a subsidiary; (B) induces any customer,
supplier, licensee or licensor of the Company or a subsidiary, with which the Company
or a subsidiary has a business relationship, to curtail, cancel, not renew, or not
continue his or her or its business with the Company or any subsidiary; or (C)
induces, or attempts to influence, any employee, service provider, licensee or
licensor to the Company or a subsidiary to terminate such employment or service. The
Committee shall, in its discretion, determine which lines of business the Company
conducts on any particular date and which third parties may reasonably be deemed to be
in competition with the Company. For purposes of this Section 10(b)(i), a
Participant’s interest as a stockholder is insubstantial if it represents beneficial
ownership of less than five percent of the outstanding class of stock, and a
Participant’s interest as an owner, investor, or partner is insubstantial if it
represents ownership, as determined by the Committee in its discretion, of less than
five percent of the outstanding equity of the entity;

	 
	 	(ii)	 	Participant discloses, uses, sells, or otherwise transfers, except in the
course of employment with or other service to the Company or any subsidiary, any
confidential or proprietary information of the Company or any subsidiary, including
but not limited to information regarding the Company’s current and potential
customers, organization, employees, finances, and methods of operations and
investments, so long as such information has not otherwise been disclosed to the
public or is not otherwise in the public domain (other than by Participant’s breach of
this provision), except as required by law or pursuant to legal process, or
Participant makes statements or representations, or otherwise communicates, directly
or indirectly, in writing, orally, or otherwise, or takes any other action which may,
directly or indirectly, disparage or be damaging to the Company or any of its
subsidiaries or their respective officers, directors, employees, advisors, businesses
or reputations, except as required by law or pursuant to legal process;

	 
	 	(iii)	 	Participant fails to cooperate with the Company or any subsidiary in any
way, including, without limitation, by making himself or herself available to testify
on behalf of the Company or such subsidiary in any action, suit, or proceeding,
whether civil, criminal, administrative, or investigative, or otherwise fails to
assist the Company or any subsidiary in any way, including, without limitation, in
connection with any such action, suit, or proceeding by providing information and
meeting and consulting with members of management of, other representatives of, or
counsel to, the Company or such subsidiary, as reasonably requested; or

	 
	 	(iv)	 	Participant is terminated for cause, as determined by the Company. “Cause”
shall include but not be limited to negligence in the performance of duties and
misconduct, including acts of moral turpitude.






(c) Agreement Does Not Prohibit Competition or Other Participant Activities. Although
the conditions set forth in this Section 10 shall be deemed to be incorporated into an Award, a
Participant is not, solely by reason of such incorporation, thereby prohibited from engaging in any
activity, including but not limited to competition with the Company and its subsidiaries. Rather,
the non-occurrence of the Forfeiture Events set forth in Section 10(b) is a condition to the
Participant’s right to realize and retain value from his or her compensatory Options and Awards,
and the consequence under the Plan if the Participant engages in an activity giving rise to any
such Forfeiture Event are the forfeitures specified herein. The Company and Participant shall not
be precluded by this provision or otherwise from entering into other agreements concerning the
subject matter of Sections 10(a) and 10(b).


 


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11. General Provisions.




(a) Compliance with Legal and Other Requirements. The Company may, to the extent
deemed necessary or advisable by the Committee and subject to Section 11(k), postpone the issuance
or delivery of Stock or payment of other benefits under any Award until completion of such
registration or qualification of such Stock or other required action under any federal or state
law, rule or regulation, listing or other required action with respect to any stock exchange or
automated quotation system upon which the Stock or other securities of the Company are listed or
quoted, or compliance with any other obligation of the Company, as the Committee may consider
appropriate, and may require any Participant to make such representations, furnish such information
and comply with or be subject to such other conditions as it may consider appropriate in connection
with the issuance or delivery of Stock or payment of other benefits in compliance with applicable
laws, rules, and regulations, listing requirements, or other obligations. The foregoing
notwithstanding, in connection with a Change in Control, except as provided in Section 9 or as
required for compliance under Code Section 409A, the Company shall take or cause to be taken no
action, and shall undertake or permit to arise no legal or contractual obligation, that results or
would result in any postponement of the issuance or delivery of Stock or payment of benefits under
any Award or the imposition of any other conditions on such issuance, delivery or payment, to the
extent that such postponement or other condition would represent a greater burden on a Participant
than existed on the 90th day preceding the Change in Control.



(b) Limits on Transferability; Beneficiaries. No Award or other right or interest of
a Participant under the Plan shall be pledged, hypothecated or otherwise encumbered or subject to
any lien, obligation or liability of such Participant to any party (other than the Company or a
subsidiary thereof), or assigned or transferred by such Participant otherwise than by will or the
laws of descent and distribution or to a Beneficiary upon the death of a Participant, and such
Awards or rights that may be exercisable shall be exercised during the lifetime of the Participant
only by the Participant or his or her guardian or legal representative, except that Awards and
other rights (other than ISOs and SARs in tandem therewith) may be transferred to one or more
transferees during the lifetime of the Participant, and may be exercised by such transferees in
accordance with the terms of such Award, but only if and to the extent such transfers are permitted
by the Committee, subject to any terms and conditions which the Committee may impose thereon (which
may include limitations the Committee may deem appropriate in order that offers and sales under the
Plan will meet applicable requirements of registration forms under the Securities Act of 1933
specified by the Securities and Exchange Commission), provided, however, that no
such transfer may occur for consideration. A Beneficiary, transferee, or other person claiming any
rights under the Plan from or through any Participant shall be subject to all terms and conditions
of the Plan and any Award document applicable to such Participant, except as otherwise determined
by the Committee, and to any additional terms and conditions deemed necessary or appropriate by the
Committee. 



(c) Adjustments. In the event that any large, special and non-recurring dividend or
other distribution (whether in the form of cash or property other than Stock), recapitalization,
forward or reverse split, Stock dividend, reorganization, merger, consolidation, spin-off,
combination, repurchase, share exchange, liquidation, dissolution or other similar corporate
transaction or event affects the Stock such that an adjustment is determined by the Committee to be
appropriate and, in the case of any outstanding Award, necessary to prevent dilution or enlargement
of Participant’s rights, then the Committee shall, in an equitable manner as determined by the
Committee, adjust any or all of (i) the number and kind of shares of Stock which may be delivered
in connection with Awards granted thereafter, (ii) the number and kind of shares of Stock by which
annual per-person Award limitations are measured under Section 5, (iii) the number and kind of
shares of Stock subject to or deliverable in respect of outstanding Awards and (iv) the exercise
price, grant price or purchase price relating to any Award or, if deemed appropriate, the Committee
may make provision for a payment of cash or property to the holder of an outstanding Option
(subject to Section 11(l)) or other Award. In addition, the Committee is authorized to make
adjustments in the terms and conditions of, and the criteria included in, Awards (including
Performance Awards and performance goals and any hypothetical funding pool relating thereto) in
recognition of unusual or nonrecurring events (including, without limitation, events described in
the preceding sentence, as well as acquisitions and dispositions of businesses and assets)
affecting the Company, any subsidiary or other business unit, or the financial statements of the
Company or any subsidiary, or in response to changes in



 


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applicable laws, regulations, accounting principles, tax rates and regulations or business
conditions or in view of the Committee’s assessment of the business strategy of the Company, any
subsidiary or business unit thereof, performance of comparable organizations, economic and business
conditions, personal performance of a Participant, and any other circumstances deemed relevant;
provided that no such adjustment shall be authorized or made if and to the extent that the
existence of such authority (i) would cause Options, SARs, or Performance Awards granted under the
Plan to Participants designated by the Committee as Covered Employees and intended to qualify as
“performance-based compensation” under Code Section 162(m) and regulations thereunder to otherwise
fail to qualify as “performance-based compensation” under Code Section 162(m) and regulations
thereunder, or (ii) would cause the Committee to be deemed to have authority to change the targets,
within the meaning of Treasury Regulation 1.162-27(e)(4)(vi), under the performance goals relating
to Options or SARs granted to Covered Employees and intended to qualify as “performance-based
compensation” under Code Section 162(m) and regulations thereunder.



(d) Tax Provisions.




	 	(i)	 	Withholding. The Company and any subsidiary is authorized to withhold from
any Award granted, any payment relating to an Award under the Plan, including from a
distribution of Stock, or any payroll or other payment to a Participant, amounts of
withholding and other taxes due or potentially payable in connection with any
transaction involving an Award, and to take such other action as the Committee may
deem advisable to enable the Company and Participants to satisfy obligations for the
payment of withholding taxes and other tax obligations relating to any Award. This
authority shall include authority to withhold or receive Stock or other property and
to make cash payments in respect thereof in satisfaction of a Participant’s
withholding obligations, either on a mandatory or elective basis in the discretion of
the Committee, or in satisfaction of other tax obligations. Other provisions of the
Plan notwithstanding, only the minimum amount of Stock deliverable in connection with
an Award necessary to satisfy statutory withholding requirements will be withheld,
unless withholding of any additional amount of Stock will not result in additional
accounting expense to the Company. Stock deliverable or withheld hereunder shall be
valued at the Fair Market Value thereof on the day prior to remittance or
withholding. 

	 
	 	(ii)	 	Required Consent to and Notification of Code Section 83(b) Election. No
election under Section 83(b) of the Code (to include in gross income in the year of
transfer the amounts specified in Code Section 83(b)) or under a similar provision of
the laws of a jurisdiction outside the United States may be made unless expressly
permitted by the terms of the Award document or by action of the Committee in writing
prior to the making of such election. In any case in which a Participant is permitted
to make such an election in connection with an Award, the Participant shall notify the
Company of such election within ten days of filing notice of the election with the
Internal Revenue Service or other governmental authority, in addition to any filing
and notification required pursuant to regulations issued under Code Section 83(b) or
other applicable provision.

	 
	 	(iii)	 	Requirement of Notification Upon Disqualifying Disposition Under Code
Section 421(b). If any Participant shall make any disposition of shares of Stock
delivered pursuant to the exercise of an ISO under the circumstances described in Code
Section 421(b) (i.e., a disqualifying disposition), such Participant shall notify the
Company of such disposition within ten days thereof.











 


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(e) Plan Amendment, Termination or Other Changes. Except as provided in Section 11(q)
of the Plan, the Board may amend, suspend or terminate the Plan or the Committee’s authority to
grant Awards under the Plan without the consent of stockholders or Participants; provided, however,
that:




	 	(i)	 	Any amendment to the Plan shall be submitted to the Company’s stockholders
for approval not later than the earliest annual meeting for which the record date is
at or after the date of such Board action if such stockholder approval is required by
any federal or state law or regulation or the rules of the New York Stock Exchange or
Nasdaq National Market (as then applicable) or any other stock exchange or automated
quotation system on which the Stock may then be listed or quoted, or if such amendment
would materially increase the number of shares reserved for issuance and delivery
under the Plan, and the Board may otherwise, in its discretion, determine to submit
other amendments to the Plan to stockholders for approval.

	 
	 	(ii)	 	Without the consent of an affected Participant, no such Board action may
materially and adversely affect the rights of such Participant under any outstanding
Award (for this purpose, actions that alter the timing of federal income taxation of a
Participant will not be deemed material unless such action results in an income tax
penalty on the Participant).

	 
	 	(iii)	 	Without the approval of stockholders, the Committee will not amend or
replace previously granted Options or SARs in a transaction that constitutes a
“repricing,” as such term is used in Section 303A.08 of the Listed Company Manual of
the New York Stock Exchange or Nasdaq National Market (as then applicable) or Item
402(i)(1) of Regulation S-K of the Exchange Act.






With regard to other terms of Awards, the Committee shall have no authority to waive or modify any
such Award term after the Award has been granted to the extent the waived or modified term would be
mandatory under the Plan for any Award newly granted at the date of the waiver or modification.



(f) Right of Setoff. The Company or any subsidiary may, to the extent permitted by
applicable law, deduct from and set off against any amounts the Company or a subsidiary may owe to
the Participant from time to time (including amounts payable in connection with any Award, owed as
wages, fringe benefits, amounts related to Awards which should have, but have not previously been,
withheld by the Company for tax purposes, or other compensation owed to the Participant), such
amounts as may be owed by the Participant to the Company, including but not limited to amounts owed
under Section 10(a), although the Participant shall remain liable for any part of the Participant’s
payment obligation not satisfied through such deduction and setoff. By accepting any Award granted
hereunder, the Participant agrees to any deduction or setoff under this Section 11(f).



(g) Unfunded Status of Awards; Creation of Trusts. The Plan is intended to constitute
an “unfunded” plan for incentive and deferred compensation. With respect to any payments not yet
made to a Participant or obligation to deliver Stock pursuant to an Award, nothing contained in the
Plan or any Award shall give any such Participant any rights that are greater than those of a
general creditor of the Company; provided that the Committee may authorize the creation of trusts
and deposit therein cash, Stock, other Awards or other property, or make other arrangements to meet
the Company’s obligations under the Plan. Such trusts or other arrangements shall be consistent
with the “unfunded” status of the Plan unless the Committee otherwise determines with the consent
of each affected Participant.



(h) Nonexclusivity of the Plan. The creation of the Plan by the Board, or Committee
shall not be construed as creating any limitations on the power of the Board or a committee
thereof to adopt such other incentive arrangements, apart from the Plan, as it may deem desirable,
including incentive arrangements and awards which do not qualify under Code Section 162(m), and
such other arrangements may be either applicable generally or only in specific cases.


 


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(i) Payments in the Event of Forfeitures; Fractional Shares. Unless otherwise
determined by the Committee, in the event of a forfeiture of an Award with respect to which a
Participant paid cash consideration, the Participant shall be repaid the amount of such cash
consideration. No fractional shares of Stock shall be issued or delivered pursuant to the Plan or
any Award. The Committee shall determine whether cash, other Awards or other property shall be
issued or paid in lieu of such fractional shares or whether such fractional shares or any rights
thereto shall be forfeited or otherwise eliminated.



(j) Compliance with Code Section 162(m). It is the intent of the Company that Options
and SARs granted to Covered Employees and other Awards designated as Awards to Covered Employees
subject to Section 7 shall constitute qualified “performance-based compensation” within the meaning
of Code Section 162(m) and regulations thereunder, unless otherwise determined by the Committee at
the time of allocation of an Award. Accordingly, the terms of Sections 7(b) and (c), including the
definitions of Covered Employee and other terms used therein, shall be interpreted in a manner
consistent with Code Section 162(m) and regulations thereunder. The foregoing notwithstanding,
because the Committee cannot determine with certainty whether a given Participant will be a Covered
Employee with respect to a fiscal year that has not yet been completed, the term Covered Employee
as used herein shall mean only a person designated by the Committee as likely to be a Covered
Employee with respect to a specified fiscal year. If any provision of the Plan or any Award
document relating to a Performance Award that is designated as intended to comply with Code Section
162(m) does not comply or is inconsistent with the requirements of Code Section 162(m) or
regulations thereunder, such provision shall be construed or deemed amended to the extent necessary
to conform to such requirements, and no provision shall be deemed to confer upon the Committee or
any other person discretion to increase the amount of compensation otherwise payable in connection
with any such Award upon attainment of the applicable performance objectives.



(k) Certain Limitations on Awards to Ensure Compliance with Code Section 409A. For
purposes of this Plan, references to an award term or event (including any authority or right of
the Company or a Participant) being “permitted” under Code Section 409A mean, for a 409A Award,
that the term or event is not intended to cause the Participant to be liable for payment of
interest or a tax penalty under Code Section 409A and, for a Non-409A Award, that the term or event
is not intended to cause the Award to be treated as subject to Code Section 409A. Other provisions
of the Plan notwithstanding, the terms of any 409A Award and any Non-409A Award, including any
authority of the Company and rights of the Participant with respect to the Award, shall be limited
to those terms permitted under Code Section 409A, and any terms not permitted under Code Section
409A shall be automatically modified and limited to the extent necessary to conform with Code
Section 409A, as determined by the Company in good faith. For this purpose, other provisions of
the Plan notwithstanding, the Company shall have no authority to accelerate distributions relating
to 409A Awards in excess of the authority permitted under Code Section 409A, and any distribution
subject to Code Section 409A(a)(2)(A)(i) (separation from service) to a “key employee” as defined
under Code Section 409A(a)(2)(B)(i), shall not occur earlier than the earliest time permitted under
Code Section 409A(a)(2)(B)(i).



(l) Certain Limitations Relating to Accounting Treatment of Awards. Other provisions
of the Plan notwithstanding, the Committee’s discretionary authority under the Plan (including
under Sections 8(c), 11(c) and 11(d)) is limited to the extent necessary to ensure that any Option
or other Award of a type that the Committee has intended to be subject to fixed accounting with a
measurement date at the date of grant or the date performance conditions are satisfied under APB 25
(or other applicable accounting requirements) shall not become subject to “variable” accounting
solely due to the existence of such authority, unless the Committee specifically determines that
the Award shall remain outstanding despite such “variable” accounting.



(m) Governing Law. The validity, construction, and effect of the Plan, any rules and
regulations relating to the Plan and any Award document shall be determined in accordance with the
laws of the State of Delaware, without giving effect to principles of conflicts of laws, and
applicable provisions of federal law.



(n) Awards to Participants Outside the United States. INTENTIONALLY DELETED.


 


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(o) Limitation on Rights Conferred under Plan. Neither the Plan nor any action taken
hereunder shall be construed as (i) giving any Eligible Person or Participant the right to continue
as an Eligible Person or Participant or in the employ or service of the Company or a subsidiary,
(ii) interfering in any way with the right of the Company or a subsidiary to terminate any Eligible
Person’s or Participant’s employment or service at any time (subject to the terms and provisions of
any separate written agreements), (iii) giving an Eligible Person or Participant any claim to be
granted any Award under the Plan or to be treated uniformly with other Participants and employees,
or (iv) conferring on a Participant any of the rights of a stockholder of the Company unless and
until the Participant is duly issued or transferred shares of Stock in accordance with the terms of
an Award or an Option is duly exercised. Except as expressly provided in the Plan and an Award
document, neither the Plan nor any Award document shall confer on any person other than the Company
and the Participant any rights or remedies thereunder.



(p) Severability; Entire Agreement. If any of the provisions of this Plan or any
Award document is finally held to be invalid, illegal or unenforceable (whether in whole or in
part), such provision shall be deemed modified to the extent, but only to the extent, of such
invalidity, illegality or unenforceability, and the remaining provisions shall not be affected
thereby; provided, that, if any of such provisions is finally held to be invalid, illegal, or
unenforceable because it exceeds the maximum scope determined to be acceptable to permit such
provision to be enforceable, such provision shall be deemed to be modified to the minimum extent
necessary to modify such scope in order to make such provision enforceable hereunder. The Plan and
any Award documents contain the entire agreement of the parties with respect to the subject matter
thereof and supersede all prior agreements, promises, covenants, arrangements, communications,
representations and warranties between them, whether written or oral with respect to the subject
matter thereof.



(q) Plan Effective Date and Termination. The Plan shall become effective the business
day immediately prior to the date on which Roger E. Davidson commences employment with the Company.
Unless earlier terminated by action of the Board of Directors as permitted under Section 11(e) of
the Plan, the authority of the Committee to make grants under the Plan shall terminate on the date
that is ten years after the Plan creation, and the Plan will remain in effect until such time as no
Stock remains available for delivery under the Plan or as set forth above and the Company has no
further rights or obligations under the Plan with respect to outstanding Awards under the Plan.




 


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