**Exhibit 10.2**

 

**CREDENCE SYSTEMS CORPORATION**

 

**2005 STOCK INCENTIVE PLAN**

 

**(as amended and restated May 24, 2005)**

 

1. Purposes of the Plan. The purposes of this Plan are to attract and retain the best available personnel, to provide additional incentives toEmployees, Directors and Consultants and to promote the success of the Company’s business. 

 

2. Definitions. The following definitions shall apply as used herein and in the individual Award Agreements except as defined otherwise in anindividual Award Agreement. In the event a term is separately defined in an individual Award Agreement, such definition shall supercede the definition contained in this Section 2. 

 

(a) “Administrator” means the Board or any of the Committees appointed to administer the Plan. 

 

(b) “Affiliate” and “Associate” shallhave the respective meanings ascribed to such terms in Rule 12b-2 promulgated under the Exchange Act. 

 

(c) “Applicable Laws” means the legal requirements relating to the Plan and the Awards under applicable provisions of federal securitieslaws, state corporate and securities laws, the Code, the rules of any applicable stock exchange or national market system, and the rules of any non-U.S. jurisdiction applicable to Awards granted to residents therein. 

 

(d) “Assumed” means that pursuant to a Corporate Transactioneither (i) the Award is expressly affirmed by the Company or (ii) the contractual obligations represented by the Award are expressly assumed (and not simply by operation of law) by the successor entity or its Parent in connection with the CorporateTransaction with appropriate adjustments to the number and type of securities of the successor entity or its Parent subject to the Award and the exercise or purchase price thereof which at least preserves the compensation element of the Awardexisting at the time of the Corporate Transaction as determined in accordance with the instruments evidencing the agreement to assume the Award. 

 

(e) “Award” means the grant of an Option, SAR, Dividend Equivalent Right, Restricted Stock, Restricted Stock Unit or other right orbenefit under the Plan. 

 

(f) “Award Agreement”means the written agreement evidencing the grant of an Award executed by the Company and the Grantee, including any amendments thereto. 

 

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

 

(h) “Cause” means, with respect to the termination by the Company or a Related Entity of the Grantee’sContinuous Service, that such termination is for “Cause” as such term is expressly defined in a then-effective written agreement between the Grantee and the Company or such Related Entity, or in the absence of such then-effective writtenagreement and definition, is based on, in the determination of the Administrator, the Grantee’s: (i) performance of any act or 

 

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failure to perform any act in bad faith and to the detriment of the Company or a Related Entity; (ii) dishonesty,intentional misconduct or material breach of any agreement with the Company or a Related Entity; or (iii) commission of a crime involving dishonesty, breach of trust, or physical or emotional harm to any person. 

 

(i) “Change in Control” means a change in ownership orcontrol of the Company effected through either of the following transactions: 

 

(i) the direct or indirect acquisition by any person or related group of persons (other than an acquisition from or by the Company or by a Company-sponsored employee benefit plan or by a person that directly orindirectly controls, is controlled by, or is under common control with, the Company) of beneficial ownership (within the meaning of Rule 13d-3 of the Exchange Act) of securities possessing more than fifty percent (50%) of the total combined votingpower of the Company’s outstanding securities pursuant to a tender or exchange offer made directly to the Company’s stockholders which a majority of the Continuing Directors who are not Affiliates or Associates of the offeror do notrecommend such stockholders accept, or 

 

(ii) a change in thecomposition of the Board over a period of thirty-six (36) months or less such that a majority of the Board members (rounded up to the next whole number) ceases, by reason of one or more contested elections for Board membership, to be comprised ofindividuals who are Continuing Directors. 

 

(j)“Code” means the Internal Revenue Code of 1986, as amended. 

 

(k) “Committee” means any committee composed of members of the Board appointed by the Board to administer the Plan. 

 

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

 

(m) “Company” means Credence Systems Corporation, a Delawarecorporation, or any successor entity that adopts the Plan in connection with a Corporate Transaction. 

 

(n) “Consultant” means any person (other than an Employee or a Director, solely with respect to rendering services in such person’scapacity as a Director) who is engaged by the Company or any Related Entity to render consulting or advisory services to the Company or such Related Entity. 

 

(o) “Continuing Directors” means members of the Board who either (i) have been Board members continuously for a period of at leastthirty-six (36) months or (ii) have been Board members for less than thirty-six (36) months and were elected or nominated for election as Board members by at least a majority of the Board members described in clause (i) who were still in office atthe time such election or nomination was approved by the Board. 

 

(p) “Continuous Service” means that the provision of services to the Company or a Related Entity in any capacity of Employee, Director or Consultant is not interrupted or terminated. In jurisdictions requiring notice inadvance of an effective termination as an Employee, Director or Consultant, Continuous Service shall be deemed terminated upon the 

 

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actual cessation of providing services to the Company or a Related Entity notwithstanding any required notice period thatmust be fulfilled before a termination as an Employee, Director or Consultant can be effective under Applicable Laws. A Grantee’s Continuous Service shall be deemed to have terminated either upon an actual termination of Continuous Service orupon the entity for which the Grantee provides services ceasing to be a Related Entity. Continuous Service shall not be considered interrupted in the case of (i) any approved leave of absence, (ii) transfers among the Company, any Related Entity, orany successor, in any capacity of Employee, Director or Consultant, or (iii) any change in status as long as the individual remains in the service of the Company or a Related Entity in any capacity of Employee, Director or Consultant (except asotherwise provided in the Award Agreement). An approved leave of absence shall include sick leave, military leave, or any other authorized personal leave. For purposes of each Incentive Stock Option granted under the Plan, if such leave exceedsthree (3) months, and reemployment upon expiration of such leave is not guaranteed by statute or contract, then the Incentive Stock Option shall be treated as a Non-Qualified Stock Option on the day three (3) months and one (1) day following theexpiration of such three (3) month period. 

 

(q)“Corporate Transaction” means any of the following transactions, provided, however, that the Administrator shall determine under parts (iv) and (v) whether multiple transactions are related, and its determination shall be final,binding and conclusive: 

 

(i) a merger or consolidation inwhich the Company is not the surviving entity, except for a transaction the principal purpose of which is to change the state in which the Company is incorporated; 

 

(ii) the sale, transfer or other disposition of all or substantially all of the assets of the Company; 

 

(iii) the complete liquidation or dissolution of the Company; 

 

(iv) any reverse merger or series of related transactions culminating in areverse merger (including, but not limited to, a tender offer followed by a reverse merger) in which the Company is the surviving entity but (A) the shares of Common Stock outstanding immediately prior to such merger are converted or exchanged byvirtue of the merger into other property, whether in the form of securities, cash or otherwise, or (B) in which securities possessing more than forty percent (40%) of the total combined voting power of the Company’s outstanding securities aretransferred to a person or persons different from those who held such securities immediately prior to such merger or the initial transaction culminating in such merger, but excluding any such transaction or series of related transactions that theAdministrator determines shall not be a Corporate Transaction; or 

 

(v) acquisition in a single or series of related transactions by any person or related group of persons (other than the Company or by a Company-sponsored employee benefit plan) of beneficial ownership (within the meaning of Rule 13d-3 ofthe Exchange Act) of securities possessing more than fifty percent (50%) of the total combined voting power of the Company’s outstanding securities but excluding any such transaction or series of related transactions that the Administratordetermines shall not be a Corporate Transaction. 

 

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(r) “Covered Employee” means an Employee who is a “covered employee” underSection 162(m)(3) of the Code. 

 

(s) “Director”means a member of the Board or the board of directors of any Related Entity. 

 

(t) “Disability” means as defined under the long-term disability policy of the Company or the Related Entity to which the Grantee provides services regardless of whether the Grantee is covered by suchpolicy. If the Company or the Related Entity to which the Grantee provides service does not have a long-term disability plan in place, “Disability” means that a Grantee is unable to carry out the responsibilities and functions of theposition held by the Grantee by reason of any medically determinable physical or mental impairment for a period of not less than ninety (90) consecutive days. A Grantee will not be considered to have incurred a Disability unless he or she furnishesproof of such impairment sufficient to satisfy the Administrator in its discretion. 

 

(u) “Dividend Equivalent Right” means a right entitling the Grantee to compensation measured by dividends paid with respect to Common Stock. 

 

(v) “Employee” means any person, including an Officer orDirector, who is in the employ of the Company or any Related Entity, subject to the control and direction of the Company or any Related Entity as to both the work to be performed and the manner and method of performance. The payment of adirector’s fee by the Company or a Related Entity shall not be sufficient to constitute “employment” by the Company. 

 

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

 

(x) “Fair Market Value” means, as of any date, the value of Common Stock determined as follows: 

 

(i) If the Common Stock is listed on one or more established stockexchanges or national market systems, including without limitation The Nasdaq National Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its Fair Market Value shall be the closing sales price for such stock (or the closing bid, if nosales were reported) as quoted on the principal exchange or system on which the Common Stock is listed (as determined by the Administrator) on the date of determination (or, if no closing sales price or closing bid was reported on that date, asapplicable, on the last trading date such closing sales price or closing bid was reported), as reported in The Wall Street Journal or such other source as the Administrator deems reliable; 

 

(ii) If the Common Stock is regularly quoted on an automated quotationsystem (including the OTC Bulletin Board) or by a recognized securities dealer, its Fair Market Value shall be the closing sales price for such stock as quoted on such system or by such securities dealer on the date of determination, but if sellingprices are not reported, the Fair Market Value of a share of Common Stock shall be the mean between the high bid and low asked prices for the Common Stock on the date of determination (or, if no such prices were reported on that date, on the lastdate such prices were reported), as reported in The Wall Street Journal or such other source as the Administrator deems reliable; or 

 

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(iii) In the absence of an established market for the Common Stock of the type described in (i) and(ii), above, the Fair Market Value thereof shall be determined by the Administrator in good faith. 

 

(y) “Grantee” means an Employee, Director or Consultant who receives an Award under the Plan. 

 

(z) “Incentive Stock Option” means an Option intended toqualify as an incentive stock option within the meaning of Section 422 of the Code 

 

(aa) “Non-Qualified Stock Option” means an Option not intended to qualify as an Incentive Stock Option. 

 

(bb) “Officer” means a person who is an officer of the Company or a Related Entity within the meaning of Section 16 of the Exchange Actand the rules and regulations promulgated thereunder. 

 

(cc)“Option” means an option to purchase Shares pursuant to an Award Agreement granted under the Plan. 

 

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

 

(ee) “Performance-Based Compensation” meanscompensation qualifying as “performance-based compensation” under Section 162(m) of the Code. 

 

(ff) “Plan” means this 2005 Stock Incentive Plan, as amended. 

 

(gg) “Related Entity” means any Parent or Subsidiary of the Company and any business, corporation,partnership, limited liability company or other entity in which the Company or a Parent or a Subsidiary of the Company holds a substantial ownership interest, directly or indirectly. 

 

(hh) “Replaced” means that pursuant to a Corporate Transaction the Award is replaced with a comparablestock award or a cash incentive program of the Company, the successor entity (if applicable) or Parent of either of them which preserves the compensation element of such Award existing at the time of the Corporate Transaction and provides forsubsequent payout in accordance with the same (or a more favorable) vesting schedule applicable to such Award. The determination of Award comparability shall be made by the Administrator and its determination shall be final, binding and conclusive.

 

(ii) “Restricted Stock” means Shares issuedunder the Plan to the Grantee for such consideration, if any, and subject to such restrictions on transfer, rights of first refusal, repurchase provisions, forfeiture provisions, and other terms and conditions as established by the Administrator.

 

(jj) “Restricted Stock Units” means an Awardwhich may be earned in whole or in part upon the passage of time or the attainment of performance criteria established by the Administrator and which may be settled for cash, Shares or other securities or a combination of cash, Shares or othersecurities as established by the Administrator. 

 

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(kk) “Rule 16b-3” means Rule 16b-3 promulgated under the Exchange Act or any successorthereto. 

 

(ll) “SAR” means a stockappreciation right entitling the Grantee to Shares or cash compensation, as established by the Administrator, measured by appreciation in the value of Common Stock. 

 

(mm) “Share” means a share of the Common Stock. 

 

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

 

3. Stock Subject to the Plan. 

 

(a) Subject to the provisions of Section 10, below, the maximum aggregate number of Shares which may be issued pursuant to all Awards (including IncentiveStock Options) is 5,900,000 Shares. Any Shares issued in connection with the exercise of Options or SARs shall be counted against the limit set forth in this Section 3(a) as one (1) Share for every one (1) Share issued in connection with theexercise of Options or SARs. However, any Shares issued in connection with Awards other than Options and SARs shall be counted against the limit set forth in this Section 3(a) as 1.4 Shares for every one (1) Share issued in connection with Awardsother than Options and SARs (and shall be counted as 1.4 Shares for every one (1) Share returned or deemed not to have been issued from the Plan pursuant to Section 3(b) in connection with Awards other than Options and SARs).1 In addition, Dividend Equivalent Rights shall be payable solely in cash and therefore the issuance of Dividend EquivalentRights shall not be deemed to reduce the maximum aggregate number of Shares which may be issued under the Plan. The Shares to be issued pursuant to Awards may be authorized, but unissued, or reacquired Common Stock. 

 

(b) Any Shares covered by an Award (or portion of an Award) which isforfeited, canceled or expires (whether voluntarily or involuntarily) shall be deemed not to have been issued for purposes of determining the maximum aggregate number of Shares which may be issued under the Plan. Shares that actually have beenissued under the Plan pursuant to an Award shall not be returned to the Plan and shall not become available for future issuance under the Plan, except that if unvested Shares are forfeited, or repurchased by the Company at the lower of theiroriginal purchase price or their Fair Market Value at the time of repurchase, such Shares shall become available for future grant under the Plan. 
15,900,000 reflects the number of Shares available under the Plan if all grants are made in Options or SARs. If all grants are made in awards other than Options orSARs (also referred to as “whole value” shares), the number of shares available under the Plan is 4,214,285. 
 

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4. Administration of the Plan. 

 

(a) Plan Administrator. 

 

(i) Administration with Respect to Directors and Officers. With respect to grants of Awards to Directors or Employees who are also Officers orDirectors of the Company, the Plan shall be administered by (A) the Board or (B) a Committee designated by the Board, which Committee shall be constituted in such a manner as to satisfy the Applicable Laws and to permit such grants and relatedtransactions under the Plan to be exempt from Section 16(b) of the Exchange Act in accordance with Rule 16b-3. Once appointed, such Committee shall continue to serve in its designated capacity until otherwise directed by the Board. 

 

(ii) Administration With Respect to Consultants and Other Employees.With respect to grants of Awards to Employees or Consultants who are neither Directors nor Officers of the Company, the Plan shall be administered by (A) the Board or (B) a Committee designated by the Board, which Committee shall be constituted insuch a manner as to satisfy the Applicable Laws. Once appointed, such Committee shall continue to serve in its designated capacity until otherwise directed by the Board. The Board may authorize one or more Officers to grant such Awards and may limitsuch authority as the Board determines from time to time. 

 

(iii) Administration With Respect to Covered Employees. Notwithstanding the foregoing, grants of Awards to any Covered Employee intended to qualify as Performance-Based Compensation shall be made only by a Committee (or subcommitteeof a Committee) which is comprised solely of two or more Directors eligible to serve on a committee making Awards qualifying as Performance-Based Compensation. In the case of such Awards granted to Covered Employees, references to the“Administrator” or to a “Committee” shall be deemed to be references to such Committee or subcommittee. 

 

(iv) Administration Errors. In the event an Award is granted in a manner inconsistent with the provisions of this subsection (a), such Award shallbe presumptively valid as of its grant date to the extent permitted by the Applicable Laws. 

 

(b) Powers of the Administrator. Subject to Applicable Laws and the provisions of the Plan (including any other powers given to the Administrator hereunder), and except as otherwise provided by the Board, theAdministrator shall have the authority, in its discretion: 

 

(i) to select the Employees, Directors and Consultants to whom Awards may be granted from time to time hereunder; 

 

(ii) to determine whether and to what extent Awards are granted hereunder; 

 

(iii) to determine the number of Shares or the amount of other consideration to be covered by each Award granted hereunder;

 

(iv) to approve forms of Award Agreements for use under thePlan; 

 

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(v) to determine the terms and conditions of any Award granted hereunder; 

 

(vi) to amend the terms of any outstanding Award granted under the Plan,provided that (A) any amendment that would adversely affect the Grantee’s rights under an outstanding Award shall not be made without the Grantee’s written consent, (B) the reduction of the exercise price of any Option awarded under thePlan shall be subject to stockholder approval (C) canceling an Option at a time when its exercise price exceeds the Fair Market Value of the underlying Shares, in exchange for another Option, Restricted Stock, or other Award shall be subject tostockholder approval, unless the cancellation and exchange occurs in connection with a Corporate Transaction, and (D) the vesting schedule for Awards of Restricted Stock and Restricted Stock Units may only be amended in the event of a CorporateTransaction or a Change in Control or in the event of the Grantee’s death or Disability; 

 

(vii) to construe and interpret the terms of the Plan and Awards, including without limitation, any notice of award or Award Agreement, granted pursuant to the Plan; 

 

(viii) to grant Awards to Employees, Directors and Consultants employedoutside the United States on such terms and conditions different from those specified in the Plan as may, in the judgment of the Administrator, be necessary or desirable to further the purpose of the Plan; and 

 

(ix) to take such other action, not inconsistent with the terms of the Plan,as the Administrator deems appropriate. 

 

(c)Indemnification. In addition to such other rights of indemnification as they may have as members of the Board or as Officers or Employees of the Company or a Related Entity, members of the Board and any Officers or Employees of the Company ora Related Entity to whom authority to act for the Board, the Administrator or the Company is delegated shall be defended and indemnified by the Company to the extent permitted by law on an after-tax basis against all reasonable expenses, includingattorneys’ fees, actually and necessarily incurred in connection with the defense of any claim, investigation, action, suit or proceeding, or in connection with any appeal therein, to which they or any of them may be a party by reason of anyaction taken or failure to act under or in connection with the Plan, or any Award granted hereunder, and against all amounts paid by them in settlement thereof (provided such settlement is approved by the Company) or paid by them in satisfaction ofa judgment in any such claim, investigation, action, suit or proceeding, except in relation to matters as to which it shall be adjudged in such claim, investigation, action, suit or proceeding that such person is liable for gross negligence, badfaith or intentional misconduct; provided, however, that within thirty (30) days after the institution of such claim, investigation, action, suit or proceeding, such person shall offer to the Company, in writing, the opportunity at theCompany’s expense to defend the same. 

 

5.Eligibility. Awards other than Incentive Stock Options may be granted to Employees, Directors and Consultants. Incentive Stock Options may be granted only to Employees of the Company or a Parent or a Subsidiary of the Company. An Employee,Director 

 

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or Consultant who has been granted an Award may, if otherwise eligible, be granted additional Awards. Awards may begranted to such Employees, Directors or Consultants who are residing in non-U.S. jurisdictions as the Administrator may determine from time to time. 

 

6. Terms and Conditions of Awards. 

 

(a) Types of Awards. The Administrator is authorized under the Plan to award any type of arrangement to an Employee, Director or Consultant that isnot inconsistent with the provisions of the Plan and that by its terms involves or might involve the issuance of (i) Shares, (ii) cash or (iii) an Option, a SAR, or similar right with a fixed or variable price related to the Fair Market Value of theShares and with an exercise or conversion privilege related to the passage of time, the occurrence of one or more events, or the satisfaction of performance criteria or other conditions. Such awards include, without limitation, Options, SARs, salesor bonuses of Restricted Stock, Restricted Stock Units or Dividend Equivalent Rights, and an Award may consist of one such security or benefit, or two (2) or more of them in any combination or alternative. 

 

(b) Designation of Award. Each Award shall be designated in the AwardAgreement. In the case of an Option, the Option shall be designated as either an Incentive Stock Option or a Non-Qualified Stock Option. However, notwithstanding such designation, an Option will qualify as an Incentive Stock Option under the Codeonly to the extent the $100,000 dollar limitation of Section 422(d) of the Code is not exceeded. The $100,000 limitation of Section 422(d) of the Code is calculated based on the aggregate Fair Market Value of the Shares subject to Options designatedas Incentive Stock Options which become exercisable for the first time by a Grantee during any calendar year (under all plans of the Company or any Parent or Subsidiary of the Company). For purposes of this calculation, Incentive Stock Options shallbe taken into account in the order in which they were granted, and the Fair Market Value of the Shares shall be determined as of the grant date of the relevant Option. 

 

(c) Conditions of Award. Subject to the terms of the Plan, the Administrator shall determine the provisions, terms,and conditions of each Award including, but not limited to, the Award vesting schedule, repurchase provisions, rights of first refusal, forfeiture provisions, form of payment (cash, Shares, or other consideration) upon settlement of the Award,payment contingencies, and satisfaction of any performance criteria. The performance criteria established by the Administrator may be based on any one of, or combination of, the following: (i) increase in share price, (ii) earnings per share, (iii)total stockholder return, (iv) operating margin, (v) gross margin, (vi) return on equity, (vii) return on assets, (viii) return on investment, (ix) operating income, (x) net operating income, (xi) pre-tax profit, (xii) cash flow, (xiii) revenue,(xiv) expenses, (xv) earnings before interest, taxes and depreciation, (xvi) economic value added and (xvii) market share. The performance criteria may be applicable to the Company, Related Entities and/or any individual business units of theCompany or any Related Entity. Partial achievement of the specified criteria may result in a payment or vesting corresponding to the degree of achievement as specified in the Award Agreement. 

 

(d) Acquisitions and Other Transactions. The Administrator may issueAwards under the Plan in settlement, assumption or substitution for, outstanding awards or obligations to grant future awards in connection with the Company or a Related Entity acquiring another entity, an interest in another entity or an additionalinterest in a Related Entity whether by merger, stock purchase, asset purchase or other form of transaction. 

 

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(e) Deferral of Award Payment. The Administrator may establish one or more programs under the Planto permit selected Grantees the opportunity to elect to defer receipt of consideration upon exercise of an Award, satisfaction of performance criteria, or other event that absent the election would entitle the Grantee to payment or receipt of Sharesor other consideration under an Award. The Administrator may establish the election procedures, the timing of such elections, the mechanisms for payments of, and accrual of interest or other earnings, if any, on amounts, Shares or otherconsideration so deferred, and such other terms, conditions, rules and procedures that the Administrator deems advisable for the administration of any such deferral program. 

 

(f) Separate Programs. The Administrator may establish one or more separate programs under the Plan for the purposeof issuing particular forms of Awards to one or more classes of Grantees on such terms and conditions as determined by the Administrator from time to time.****

 

(g) Individual Limitations on Awards. 

 

(i) Individual Limit for Options and SARs. ****The maximum number of Shares with respect to which Options andSARs may be granted to any Grantee in any calendar year shall be 500,000 Shares. In connection with a Grantee’s commencement of Continuous Service, a Grantee may be granted Options and SARs for up to an additional 500,000 Shares which shall notcount against the limit set forth in the previous sentence. The foregoing limitation**s** shall be adjusted proportionately in connection with any change in the Company’s capitalization pursuant to Section 10, below. To the extent requiredby Section 162(m) of the Code or the regulations thereunder, in applying the foregoing limitations with respect to a Grantee, if any Option or SAR is canceled, the canceled Option or SAR shall continue to count against the maximum number of Shareswith respect to which Options and SARs may be granted to the Grantee. For this purpose, the repricing of an Option (or in the case of a SAR, the base amount on which the stock appreciation is calculated is reduced to reflect a reduction in the FairMarket Value of the Common Stock) shall be treated as the cancellation of the existing Option or SAR and the grant of a new Option or SAR. 

 

(ii) Individual Limit for Restricted Stock and Restricted Stock Units. For awards of Restricted Stock and Restricted Stock Units that are intendedto be Performance-Based Compensation, the maximum number of Shares with respect to which such Awards may be granted to any Grantee in any calendar year shall be 350,000 Shares. The foregoing limitation shall be adjusted proportionately in connectionwith any change in the Company’s capitalization pursuant to Section 10, below. 

 

(iii) Deferral. If the vesting or receipt of Shares under an Award is deferred to a later date, any amount (whether denominated in Shares or cash) paid in addition to the original number of Shares subject tosuch Award will not be treated as an increase in the number of Shares subject to the Award if the additional amount is based either on a reasonable rate of interest or on one or more predetermined actual investments such that the amount payable bythe Company at the later date will be based on the actual rate of return of a specific investment (including any decrease as well as any increase in the value of an investment). 

 

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(h) Early Exercise. The Award Agreement may, but need not, include a provision whereby the Granteemay elect at any time while an Employee, Director or Consultant to exercise any part or all of the Award prior to full vesting of the Award. Any unvested Shares received pursuant to such exercise may be subject to a repurchase right in favor of theCompany or a Related Entity or to any other restriction the Administrator determines to be appropriate. 

 

(i) Term of Award. The term of each Award shall be the term stated in the Award Agreement, provided, however, that the term of an Award shall be nomore than ten (10) years from the date of grant thereof. However, in the case of an Incentive Stock Option granted to a Grantee who, at the time the Option is granted, owns stock representing more than ten percent (10%) of the voting power of allclasses of stock of the Company or any Parent or Subsidiary of the Company, the term of the Incentive Stock Option shall be five (5) years from the date of grant thereof or such shorter term as may be provided in the Award Agreement. Notwithstandingthe foregoing, the specified term of any Award shall not include any period for which the Grantee has elected to defer the receipt of the Shares or cash issuable pursuant to the Award. 

 

(j) Transferability of Awards. Incentive Stock Options 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 Grantee, only by the Grantee. Other Awards shall be transferable (i) by will and by the laws of descent anddistribution and (ii) during the lifetime of the Grantee, to the extent and in the manner authorized by the Administrator. Notwithstanding the foregoing, the Grantee may designate one or more beneficiaries of the Grantee’s Award in the event ofthe Grantee’s death on a beneficiary designation form provided by the Administrator. 

 

(k) Time of Granting Awards. The date of grant of an Award shall for all purposes be the date on which the Administrator makes the determination to grant such Award, or such other later date as is determined bythe Administrator. 

 

(l) Vesting of Restricted Stock andRestricted Stock Units. Awards of Restricted Stock and Restricted Stock Units issued under the Plan shall vest and be released from the risk of forfeiture over a period of no less than three (3) years measured from the date of issuance of theAward. Notwithstanding the foregoing, Awards of Restricted Stock and Restricted Stock Units subject to performance-based vesting may vest and be released from the risk of forfeiture over a period of no less than one (1) year measured from the dateof issuance of the Award. As provided in Section 4(b)(vi), the vesting schedule for Awards of Restricted Stock and Restricted Stock Units may only be amended in the event of a Corporate Transaction or a Change in Control or in the event of theGrantee’s death or Disability. 

 

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7. Award Exercise or Purchase Price, Consideration and Taxes. 

 

(a) Exercise or Purchase Price. The exercise or purchase price, ifany, for an Award shall be as follows: 

 

(i) In the case of anIncentive Stock Option: 

 

(A) granted to an Employee who, atthe time of the grant of such Incentive Stock Option owns stock representing more than ten percent (10%) of the voting power of all classes of stock of the Company or any Parent or Subsidiary of the Company, the per Share exercise price shall be notless than one hundred ten percent (110%) of the Fair Market Value per Share on the date of grant; or 

 

(B) granted to any Employee other than an Employee described in the preceding paragraph, the per Share exercise price shall be not less than one hundredpercent (100%) of the Fair Market Value per Share on the date of grant. 

 

(ii) In the case of a Non-Qualified Stock Option, the per Share exercise price shall be not less than one hundred percent (100%) of the Fair Market Value per Share on the date of grant. 

 

(iii) In the case of SARs, the base appreciation amount shall be not lessthan one hundred percent (100%) of the Fair Market Value per Share on the date of grant. 

 

(iv) In the case of Awards intended to qualify as Performance-Based Compensation, the exercise or purchase price, if any, shall be not less than one hundred percent (100%) of the Fair Market Value per Share on thedate of grant. 

 

(v) In the case of other Awards, such price asis determined by the Administrator. 

 

(vi) Notwithstanding theforegoing provisions of this Section 7(a), in the case of an Award issued pursuant to Section 6(d), above, the exercise or purchase price for the Award shall be determined in accordance with the provisions of the relevant instrument evidencing theagreement to issue such Award. 

 

(b) Consideration.Subject to Applicable Laws, the consideration to be paid for the Shares to be issued upon exercise or purchase of an Award including the method of payment, shall be determined by the Administrator. In addition to any other types of consideration theAdministrator may determine, the Administrator is authorized to accept as consideration for Shares issued under the Plan the following, provided that the portion of the consideration equal to the par value of the Shares must be paid in cash or otherlegal consideration permitted by the Delaware General Corporation Law: 

 

(i) cash; 

 

(ii) check;

 

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(iii) surrender of Shares or delivery of a properly executed form of attestation of ownership of Sharesas the Administrator may require which have a Fair Market Value on the date of surrender or attestation equal to the aggregate exercise price of the Shares as to which said Award shall be exercised, provided, however, that Shares acquired under thePlan or any other equity compensation plan or agreement of the Company must have been held by the Grantee for a period of more than six (6) months (and not used for another Award exercise by attestation during such period); 

 

(iv) with respect to Options, payment through a broker-dealer sale andremittance procedure pursuant to which the Grantee (A) shall provide written instructions to a Company designated brokerage firm to effect the immediate sale of some or all of the purchased Shares and remit to the Company sufficient funds to coverthe aggregate exercise price payable for the purchased Shares and (B) shall provide written directives to the Company to deliver the certificates for the purchased Shares directly to such brokerage firm in order to complete the sale transaction; or

 

(v) any combination of the foregoing methods of payment.

 

The Administrator may at any time or from time to time, by adoption of or byamendment to the standard forms of Award Agreement described in Section 4(b)(iv), or by other means, grant Awards which do not permit all of the foregoing forms of consideration to be used in payment for the Shares or which otherwise restrict one ormore forms of consideration. 

 

(c) Taxes. No Shares shallbe delivered under the Plan to any Grantee or other person until such Grantee or other person has made arrangements acceptable to the Administrator for the satisfaction of any non-U.S., federal, state, or local income and employment tax withholdingobligations, including, without limitation, obligations incident to the receipt of Shares. Upon exercise or vesting of an Award the Company shall withhold or collect from Grantee an amount sufficient to satisfy such tax obligations, including, butnot limited too, by surrender of the whole number of Shares covered by the Award sufficient to satisfy the minimum applicable tax withholding obligations incident to the exercise or vesting of an Award. 

 

8. Exercise of Award. 

 

(a) Procedure for Exercise; Rights as a Stockholder. 

 

(i) Any Award granted hereunder shall be exercisable at such times andunder such conditions as determined by the Administrator under the terms of the Plan and specified in the Award Agreement. 

 

(ii) An Award shall be deemed to be exercised when written notice of such exercise has been given to the Company in accordance with the terms of theAward by the person entitled to exercise the Award and full payment for the Shares with respect to which the Award is exercised has been made, including, to the extent selected, use of the broker-dealer sale and remittance procedure to pay thepurchase price as provided in Section 7(b)(iv). 

 

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(b) Exercise of Award Following Termination of Continuous Service. 

 

(i) An Award may not be exercised after the termination date of such Awardset forth in the Award Agreement and may be exercised following the termination of a Grantee’s Continuous Service only to the extent provided in the Award Agreement. 

 

(ii) Where the Award Agreement permits a Grantee to exercise an Award following the termination of the Grantee’sContinuous Service for a specified period, the Award shall terminate to the extent not exercised on the last day of the specified period or the last day of the original term of the Award, whichever occurs first. 

 

(iii) Any Award designated as an Incentive Stock Option to the extent notexercised within the time permitted by law for the exercise of Incentive Stock Options following the termination of a Grantee’s Continuous Service shall convert automatically to a Non-Qualified Stock Option and thereafter shall be exercisableas such to the extent exercisable by its terms for the period specified in the Award Agreement. 

 

9. Conditions Upon Issuance of Shares. 

 

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

 

(b) 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 anysuch 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 by any Applicable Laws.

 

10. Adjustments Upon Changes in Capitalization. Subjectto any required action by the stockholders of the Company, the number of Shares covered by each outstanding Award, and the number of Shares which have been authorized for issuance under the Plan but as to which no Awards have yet been granted orwhich have been returned to the Plan, the exercise or purchase price of each such outstanding Award, the maximum number of Shares with respect to which Awards may be granted to any Grantee in any calendar year, as well as any other terms that theAdministrator determines require adjustment shall be proportionately adjusted for (i) any increase or decrease in the number of issued Shares resulting from a stock split, reverse stock split, stock dividend, combination or reclassification of theShares, or similar transaction affecting the Shares, (ii) any other increase or decrease in the number of issued Shares effected without receipt of consideration by the Company, or (iii) as the Administrator may determine in its discretion, anyother transaction with respect to Common Stock including a corporate merger, consolidation, acquisition of property or stock, separation (including a spin-off or other distribution of stock or property), reorganization, liquidation (whether partialor complete) or any similar transaction; provided, however that conversion of any convertible securities of the Company shall not be deemed to have been “effected without receipt of consideration.” In the event of any distribution of cashor other assets to stockholders other than a normal cash 

 

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dividend, the Administrator may also, in its discretion, make adjustments described in (i)-(iii) of this Section 10 orsubstitute, exchange or grant Awards with respect to the shares of a Related Entity (collectively “adjustments”). In determining adjustments to be made under this Section 10, the Administrator may take into account such factors as it deemsappropriate, including (x) the restrictions of Applicable Law, (y) the potential tax, accounting or other consequences of an adjustment and (z) the possibility that some Grantees might receive an adjustment and a distribution or other unintendedbenefit, and in light of such factors or circumstances may make adjustments that are not uniform or proportionate among outstanding Awards, modify vesting dates, defer the delivery of stock certificates or make other equitable adjustments. Any suchadjustments to outstanding Awards will be effected in a manner that precludes the material enlargement of rights and benefits under such Awards. Adjustments, if any, and any determinations or interpretations, including any determination of whether adistribution is other than a normal cash dividend, shall be made by the Administrator and its determination shall be final, binding and conclusive. In connection with the foregoing adjustments, the Administrator may, in its discretion, prohibit theexercise of Awards during certain periods of time. Except as the Administrator determines, no issuance by the Company of shares of any class, or securities convertible into shares of any class, shall affect, and no adjustment by reason hereof shallbe made with respect to, the number or price of Shares subject to an Award. 

 

11. Corporate Transactions and Changes in Control.****

 

(a) Termination of Award to Extent Not Assumed in Corporate Transaction. Effective upon the consummation of a Corporate Transaction, alloutstanding Awards under the Plan shall terminate. However, all such Awards shall not terminate to the extent they are Assumed in connection with the Corporate Transaction. 

 

(b) Acceleration of Award Upon Corporate Transaction or Change in Control. 

 

(i) Corporate Transaction. Except as provided otherwise in anindividual Award Agreement, in the event of a Corporate Transaction, for the portion of each Award that is neither Assumed nor Replaced, such portion of the Award shall automatically become fully vested and exercisable and be released from anyrepurchase or forfeiture rights (other than repurchase rights exercisable at Fair Market Value) for all of the Shares at the time represented by such portion of the Award, immediately prior to the specified effective date of such CorporateTransaction, provided that the Grantee’s Continuous Service has not terminated prior to such date. 

 

(ii) Change in Control. The Administrator shall have the authority, exercisable either in advance of any actual or anticipated Change in Controlor at the time of an actual Change in Control and exercisable at the time of the grant of an Award under the Plan or any time while an Award remains outstanding, to provide for the full or partial automatic vesting and exercisability of one or moreoutstanding unvested Awards under the Plan and the release from restrictions on transfer and repurchase or forfeiture rights of such Awards in connection with a Change in Control, on such terms and conditions as the Administrator may specify. TheAdministrator also shall have the authority to condition any such Award vesting and exercisability or release from such limitations upon the subsequent termination of the Continuous 

 

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Service of the Grantee within a specified period following the effective date of the Change in Control. The Administratormay provide that any Awards so vested or released from such limitations in connection with a Change in Control, shall remain fully exercisable until the expiration or sooner termination of the Award. 

 

(c) Effect of Acceleration on Incentive Stock Options. Any IncentiveStock Option accelerated under this Section 11 in connection with a Corporate Transaction or Change in Control shall remain exercisable as an Incentive Stock Option under the Code only to the extent the $100,000 dollar limitation of Section 422(d)of the Code is not exceeded. To the extent such dollar limitation is exceeded, the excess Options shall be treated as Non-Qualified Stock Options. 

 

12. Effective Date and Term of Plan. The Plan shall become effective upon its approval by the stockholders of the Company. It shall continue ineffect for a term of ten (10) years unless sooner terminated. 

 

13. Amendment, Suspension or Termination of the Plan. 

 

(a) The Board may at any time amend, suspend or terminate the Plan; provided, however, that no such amendment shall be made without the approval of the Company’s stockholders to the extent such approval is required by Applicable Laws,or if such amendment would lessen the stockholder approval requirements of Section 4(b)(vi) or this Section 13(a); provided, further, that the Board may not amend Section 3(a) of the Plan to increase the number of Shares to be issued under the Planwithout the approval of the Company’s stockholders. 

 

(b)No Award may be granted during any suspension of the Plan or after termination of the Plan. 

 

(c) No suspension or termination of the Plan (including termination of the Plan under Section 11, above) shall adversely affect any rights under Awards already granted to a Grantee. 

 

14. Reservation of Shares. 

 

(a) The Company, during the term of the Plan, will at all times reserve andkeep available such number of Shares as shall be sufficient to satisfy the requirements of the Plan. 

 

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

 

15. No Effect on Terms of Employment/Consulting Relationship. ThePlan shall not confer upon any Grantee any right with respect to the Grantee’s Continuous Service, nor shall it interfere in any way with his or her right or the right of the Company or any Related Entity to terminate the Grantee’sContinuous Service at any time, with or without Cause, and with or without notice. The ability of the Company or any Related Entity to terminate the employment of a Grantee who is employed at will is in no way affected by its determination that theGrantee’s Continuous Service has been terminated for Cause for the purposes of this Plan. 

 

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16. No Effect on Retirement and Other Benefit Plans. Except as specifically provided in aretirement or other benefit plan of the Company or a Related Entity, Awards shall not be deemed compensation for purposes of computing benefits or contributions under any retirement plan of the Company or a Related Entity, and shall not affect anybenefits under any other benefit plan of any kind or any benefit plan subsequently instituted under which the availability or amount of benefits is related to level of compensation. The Plan is not a “Retirement Plan” or “WelfarePlan” under the Employee Retirement Income Security Act of 1974, as amended. 

 

17. Unfunded Obligation. Grantees shall have the status of general unsecured creditors of the Company. Any amounts payable to Grantees pursuant to the Plan shall be unfunded and unsecured obligations for allpurposes, including, without limitation, Title I of the Employee Retirement Income Security Act of 1974, as amended. Neither the Company nor any Related Entity shall be required to segregate any monies from its general funds, or to create anytrusts, or establish any special accounts with respect to such obligations. The Company shall retain at all times beneficial ownership of any investments, including trust investments, which the Company may make to fulfill its payment obligationshereunder. Any investments or the creation or maintenance of any trust or any Grantee account shall not create or constitute a trust or fiduciary relationship between the Administrator, the Company or any Related Entity and a Grantee, or otherwisecreate any vested or beneficial interest in any Grantee or the Grantee’s creditors in any assets of the Company or a Related Entity. The Grantees shall have no claim against the Company or any Related Entity for any changes in the value of anyassets that may be invested or reinvested by the Company with respect to the Plan. 

 

18. Plan Approval. The Plan was originally adopted by the Board in February 2005 and approved by the Company’s stockholders on March 23, 2005. On May 24, 2005, the Board adopted and approved an amendmentand restatement of the Plan to impose certain restrictions on the vesting schedule and ability of the Administrator to amend the vesting schedule of awards of Restricted Stock and Restricted Stock Units, which amendment and restatement is notsubject to stockholder approval. 

 

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

 

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