Exhibit 10.14


 


HORIZON ORGANIC HOLDING CORPORATION


 


1998 EQUITY INCENTIVE PLAN


 


ADOPTED OCTOBER 25, 1995


AMENDED AND RESTATED APRIL 14, 1998


APPROVED BY STOCKHOLDERS APRIL 30, 1998


AMENDED AND RESTATED MARCH 31, 2000


APPROVED BY STOCKHOLDERS MAY 16, 2000


AMENDED AND RESTATED JANUARY 31, 2002


APPROVED BY STOCKHOLDERS MAY 14, 2002


AMENDED AND RESTATED JULY 31, 2002


PLAN TERMINATION DATE: APRIL 13, 2008


 


1.                                       PURPOSES.


 


(a)                     The purpose of the Plan is to provide a means by
which selected Employees and Directors of and Consultants to the Company and
its Affiliates, may be given an opportunity to benefit from increases in value
of the stock of the Company through the granting of (i) Incentive Stock
Options, (ii) Nonstatutory Stock Options, (iii) stock bonuses and (iv) rights
to acquire restricted stock.


 


(b)                    The Company, by means of the Plan, seeks to retain
the services of persons who are now Employees or Directors of or Consultants to
the Company or its Affiliates, to secure and retain
the services of new Employees, Directors and Consultants, and to provide
incentives for such persons to exert maximum efforts for the success of the
Company and its Affiliates.


 


2.                                       DEFINITIONS.


 


(a)                     “AFFILIATE” means any parent
corporation or subsidiary corporation of the Company, whether now or hereafter
existing, as those terms are defined in Sections 424(e) and (f) respectively,
of the Code.


 


(b)                    “BOARD” means the Board of
Directors of the Company.


 


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


 


(d)                    “COMMITTEE” means a Committee
appointed by the Board in accordance with subsection 3(c) of the Plan.


 


(e)                     “COMMON STOCK” means the common
stock of the Company:


 


(f)                       “COMPANY” means Horizon Organic
Holding Corporation, a Delaware corporation.


 


(g)                    “CONSULTANT” means any person, including an
advisor, (i) engaged by the Company or an Affiliate to render consulting
services and who is compensated for such services or (ii) who is a member of
the Board of Directors of an Affiliate. However, the term “Consultant” shall
not include Directors who are paid only a director’s fee by the Company or who
are not compensated by the Company for their services as Directors.








(h)                    “CONTINUOUS SERVICE” means the Stock Award
holder’s service with the Company or an Affiliate, whether as an Employee,
Director or Consultant is not interrupted or terminated. The Board or the chief
executive officer of the Company may determine, in that party’s sole
discretion, whether Continuous Service shall be considered interrupted in the
case of: (i) any leave of absence approved by the Board or the chief executive
officer of the Company, including sick leave, military leave, or any other
personal leave; or (ii) transfers between locations of the Company or between
the Company, Affiliates or their successors.


 


(i)                        “COVERED EMPLOYEE” means the chief executive
officer and the four (4) other highest compensated officers of the Company for
whom total compensation is required to be reported to stockholders under the
Exchange Act, as determined for purposes of Section 162(m) of the Code.


 


(j)                        “DIRECTOR” means a member of the Board of
Directors of the Company.


 


(k)                     “DISABILITY” means the inability of a person to
perform the normal duties of the person’s position with the Company or an
Affiliate of the Company, provided that such inability to perform must be
certified in writing (a “Physician’s Certificate”) by a medical doctor,
reasonably acceptable to the Company.


 


(l)                        “EMPLOYEE” means any person employed by the
Company or any Affiliate. Neither service as a Director nor payment of a
director’s fee by the Company or an Affiliate shall be sufficient to constitute
“employment” by the Company or an Affiliate.


 


(m)                  “EXCHANGE ACT” means the Securities Exchange Act of
1934, as amended.


 


(n)                    “FAIR MARKET VALUE” means, as of any date, the
value of the Common Stock of the Company determined as follows:


 


(1)                         If the Common Stock is
listed on any established stock exchange or traded on The Nasdaq National
Market or The Nasdaq SmallCap Market, the Fair Market Value of a share of
Common Stock shall be the closing sales price for such stock (or the closing
bid, if no sales were reported) as quoted on such exchange or market (or the
exchange or market with the greatest volume of trading in the Common Stock) on
the last market trading day prior to the day of determination, as reported in
The Wall Street Journal or such other source as the Board deems reliable; or


 


(2)                         In the absence of an
established market for the Common Stock, the Fair Market Value shall be
determined in good faith by the Board.


 


(o)                    “INCENTIVE STOCK OPTION” means an Option intended
to qualify as an incentive stock option within the meaning of Section 422 of
the Code and the regulations promulgated thereunder.


 


(p)                    “LISTING DATE” means the first date upon which any
security of the Company is listed (or approved for listing) upon notice of
issuance on any securities exchange, or designated (or approved for
designation) upon notice of issuance as a national market security on an
interdealer quotation system.








(q)                    “NON-EMPLOYEE DIRECTOR” means a Director who
either (i) is not a current Employee or Officer of the Company or its parent or
subsidiary, does not receive compensation (directly or indirectly) from the
Company or its parent or subsidiary for services rendered as a consultant or in
any capacity other than as a Director (except for an amount as to which
disclosure would not be required under Item 404(a) of Regulation S-K
promulgated pursuant to the Securities Act (“Regulation S-K”)), does not
possess an interest in any other transaction as to which disclosure would be
required under Item 404(a) of Regulation S-K, and is not engaged in a business
relationship as to which disclosure would be required under Item 404(b) of
Regulation S-K; or (ii) is otherwise considered a “non- employee director” for
purposes of Rule 16b-3.


 


(r)                       “NONSTATUTORY STOCK OPTION” means an Option not
intended to qualify as an Incentive Stock Option.


 


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


 


(t)                       “OPTION” means an Incentive Stock Option or a
Nonstatutory Stock Option granted pursuant to the Plan.


 


(u)                    “OPTION AGREEMENT” means a written agreement
between the Company and an Optionee evidencing the terms and conditions of an
individual Option grant. Each Option Agreement shall be subject to the terms
and conditions of the Plan.


 


(v)                    “OPTIONEE” means a person to whom an Option is
granted pursuant to the Plan, or if applicable, such other person who holds an
outstanding Option.


 


(w)                  “OUTSIDE DIRECTOR” means a Director who either (i) is
not a current employee of the Company or an “affiliated corporation” (within
the meaning of the Treasury regulations promulgated under Section 162(m) of the
Code), is not a former employee of the Company or an “affiliated corporation”
receiving compensation for prior services (other than benefits under a tax
qualified pension plan), was not an officer of the Company or an “affiliated
corporation” at any time, and is not currently receiving direct or indirect
remuneration from the Company or an “affiliated corporation” for services in
any capacity other than as a Director, or (ii) is otherwise considered an
“outside director” for purposes of Section 162(m) of the Code.


 


(y)                    “PLAN” means this 1998 Equity Incentive Plan.


 


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


 


(aa)               “SECURITIES ACT” means the Securities Act of 1933, as
amended.


 


(bb)             “STOCK AWARD” means any right granted under the Plan,
including any Option, a stock bonus and any right to acquire restricted stock.


 


(cc)               “STOCK AWARD AGREEMENT” means a written agreement
between the Company and a holder of a Stock Award evidencing the terms and
conditions of an individual Stock Award grant. Each Stock Award Agreement shall
be subject to the terms and conditions of the Plan.








3.                                       ADMINISTRATION.


 


(a)                     The Plan shall be administered by the Board unless
and until the Board delegates administration to a Committee, as provided in
subsection 3(c).


 


(b)                    The Board shall have the power, subject to, and
within the limitations of, the express provisions of the Plan:


 


(1)                         To determine from time
to time which of the persons eligible under the Plan shall be granted Stock
Awards; when and how each Stock Award shall be granted; what type of Stock
Award shall be granted; the provisions of each Stock Award granted (which need
not be identical), including the time or times when a person shall be permitted
to receive stock pursuant to a Stock Award; and the number of shares with
respect to which a Stock Award shall be granted to each such person.


 


(2)                         To construe and
interpret the Plan and Stock Awards granted under it, and to establish, amend
and revoke rules and regulations for its administration.The Board, in the
exercise of this power, may correct any defect, omission or inconsistency in
the Plan or in any Stock Award Agreement, in a manner and to the extent it
shall deem necessary or expedient to make the Plan fully effective.


 


(3)                         To amend the Plan or a
Stock Award as provided in Section 12.


 


(c)                     The Board may delegate administration of the Plan
to a committee composed of two (2) or more members (the “Committee”), all of
the members of which Committee may be Non-Employee Directors and/or Outside
Directors. If administration is delegated to a Committee, the Committee shall
have, in connection with the administration of the Plan, the powers theretofore
possessed by the Board including the power to delegate to a subcommittee of two
or more Directors (who may or may not be Outside Directors or Non-Employee
Directors) any of the administrative powers to the Committee is authorized to
exercise (and references in this Plan to the Board shall thereafter mean the
Committee or such a subcommittee), subject, however, to such resolutions, not
inconsistent with the provisions of the Plan, as may be adopted from time to
time by the Board. The Board may abolish the Committee at any time and revest
in the Board the administration of the Plan. Notwithstanding anything in this
Section 3 to the contrary, the Board or the Committee may delegate to a
committee of one or more members of the Board the authority to grant Stock
Awards to eligible persons who (x) are not then subject to Section 16 of the
Exchange Act and/or (y) are either (i) not then Covered Employees and are not
expected to be Covered Employees at the time of recognition of income resulting
from such Option, or (ii) not persons with respect to whom the Company wishes
to comply with Section 162(m) of the Code.


 


(d)                    All actions taken and all interpretations and
determinations made by the Board or Committee in good faith (including
determinations of Fair Market Value) shall be final and binding upon all
Optionees, the Company and all other interested persons. No member of the Board
or Committee shall be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan, and all members of
the Board and Committee shall, in addition to their right as directors, be
fully protected by the Company with respect to any such action, determination
or interpretation.








4.                                       SHARES SUBJECT TO THE
PLAN.


 


(a)                     Subject to the provisions of Section 11 relating to
adjustments upon changes in stock, the stock that may be issued pursuant to
Stock Awards shall not exceed in the aggregate Two Million Two-Hundred Fifty
Thousand (2,250,000) shares of the Common Stock.If any Stock Award shall for
any reason expire or otherwise terminate, in whole or in part, without having
been exercised in full, the stock not acquired under such Stock Award shall
revert to and again become available for issuance under the Plan. If any shares
of Common Stock acquired pursuant to the exercise of an Option shall for any
reason be repurchased by the Company under a repurchase option provided under
the Plan, the stock repurchased by the Company under such repurchase option
shall revert to and again become available for issuance under the Plan.


 


(b)                    The stock subject to the Plan may be unissued
shares or reacquired shares, bought on the market or otherwise.


 


5.                                       ELIGIBILITY.


 


(a)                     Incentive Stock Options may be granted only to
Employees. Stock Awards other than Incentive Stock Options may be granted only
to Employees, Directors or Consultants.


 


(b)                    No person shall be eligible for the grant of an
Incentive Stock Option if, at the time of grant, such person owns (or is deemed
to own pursuant to Section 424(d) of the Code) stock possessing more than ten
percent (10%) of the total combined voting power of all classes of stock of the
Company or of any of its Affiliates unless the exercise price of such Incentive
Stock Option is at least one hundred ten percent (110%) of the Fair Market
Value of such stock at the date of grant and the Incentive Stock Option is not
exercisable after the expiration of five (5) years from the date of grant.


 


(c)                     Subject to the provisions of Section 11 relating
to adjustments upon changes in stock, no person shall be eligible to be granted
Options covering more than two hundred fifty thousand (250,000) shares of
Common Stock in any calendar year.This subsection 5(c) shall not apply prior to
the Listing Date and, following the Listing Date, shall not apply until (i) the
earliest of:(A) the first material modification of the Plan (including any
increase to the number of shares reserved for issuance under the Plan in
accordance with Section 4); (B) the issuance of all of the shares of Common
Stock reserved for issuance under the Plan; (C) the expiration of the Plan; or
(D) the first meeting of stockholders at which directors are to be elected that
occurs after the close of the third calendar year following the calendar year
in which occurred the first registration of an equity security under section 12
of the Exchange Act; or (ii) such other date required by Section 162(m) of the
Code and the rules and regulations promulgated thereunder.


 


6.                                       OPTION PROVISIONS.


 


Each Option shall be in such
form and shall contain such terms and conditions as the Board shall deem
appropriate.All Options shall be separately designated Incentive Stock Options
or Nonstatutory Stock Options at the time of grant, and a separate certificate
or certificates will be issued for shares purchased on exercise of each type of
Option. The provisions of separate Options need not be identical, but each
Option shall include (through incorporation of provisions hereof by reference
in the Option or otherwise) the substance of each of the following provisions:








(a)                     TERM.No Option shall be exercisable after the
expiration of ten (10) years from the date it was granted.


 


(b)                    PRICE.The exercise price of each Incentive Stock
Option shall be not less than one hundred percent (100%) of the Fair Market
Value of the stock subject to the Incentive Stock Option on the date the
Incentive Stock Option is granted or such greater amount as required by Section
5(b).The exercise price of each Nonstatutory Stock Option shall be determined
by the Board. Notwithstanding the foregoing, an Option (whether an Incentive
Stock Option or a Nonstatutory Stock Option) may be granted with an exercise
price lower than that set forth in the preceding sentence if such Option is
granted pursuant to an assumption or substitution for another option in a manner
satisfying the provisions of Section 424(a) of the Code.


 


(c)                     CONSIDERATION.The purchase price of stock acquired
pursuant to an Option shall be paid at the time the Option is exercised, to the
extent permitted by applicable statutes and regulations, either (i) in cash or
by check or (ii) at the discretion of the Board, at the time of the grant of
the Option, under one of the following alternatives:


 


(1)                         Provided that at the
time of exercise the Common Stock is publicly traded and quoted regularly in
The Wall Street Journal, pursuant to a program developed under Regulation T as
promulgated by the Federal Reserve Board which, prior to the issuance of Common
Stock, results in either the receipt of cash (or check) by the Company or the
receipt of irrevocable instructions to pay the aggregate exercise price to the
Company from the sales proceeds;


 


(2)                         Provided that at the
time of exercise the Common Stock is publicly traded and quoted regularly in
The Wall Street Journal, by delivery of already-owned shares of Common Stock,
held for the period required to avoid a charge to the Company’s reported
earnings, and owned free and clear of any liens, claims, encumbrances or
security interests, which Common Stock shall be valued at its fair market value
on the date of exercise;


 


(3)                         Pursuant to a deferred
payment alternative as described in the Option Agreement, provided that, at any
time that the Company is incorporated in Delaware, payment of the Common
Stock’s “par value” (as defined in the Delaware General Corporation Law) shall
not be made by deferred payment;


 


(4)                         In any other form of
legal consideration that may be acceptable to the Board; or


 


(5)                         By any combination of
the above methods.








(d)                    TRANSFERABILITY.An Incentive Stock Option shall
not be transferable except by will or by the laws of descent and distribution,
and shall be exercisable during the lifetime of the person to whom the Option
is granted only by such person.A Nonstatutory Stock Option may be transferable
to the extent expressly provided in the Option Agreement; provided, however,
that if the Option Agreement does not specifically provide for transferability,
then such Nonstatutory Stock Option shall not be transferable except by will or
by the laws of descent and distribution or pursuant to a domestic relations
order, and shall be exercisable during the lifetime of the person to whom the
Nonstatutory Stock Option is granted only by such person or any transferee
pursuant to a domestic relations order. Notwithstanding the foregoing, the
person to whom the Option is granted may, by delivering written notice to the
Company, in a form satisfactory to the Company, designate a third party who, in
the event of the death of the Optionee, shall thereafter be entitled to
exercise the Option.


 


(e)                     VESTING. The total number of shares of stock
subject to an Option shall vest and become exercisable as provided in the
Option Agreement.


 


(f)                       TERMINATION OF CONTINUOUS SERVICE. In the event an
Optionee’s Continuous Service terminates (other than upon the Optionee’s death
or Disability), the Optionee may exercise his or her Option (to the extent that
the Optionee was entitled to exercise it at the date of termination) but only
within such period of time ending on the earlier of (i) the date three (3)
months after the termination of the Optionee’s Continuous Service (or such
longer or shorter period specified in the Option Agreement) or (ii) the
expiration of the term of the Option as set forth in the Option Agreement. If,
after termination, the Optionee does not exercise his or her Option within the
time specified in the Option Agreement, the Option shall terminate, and the
shares covered by such Option shall revert to and again become available for
issuance under the Plan.


 


An Optionee’s Option Agreement may also provide that if
the exercise of the Option following the termination of the Optionee’s
Continuous Service (other than upon the Optionee’s death or Disability) would
be prohibited at any time solely because the issuance of shares would violate
the registration requirements under the Securities Act or any material
regulatory requirements of any foreign jurisdiction, then the Option shall
terminate on the earlier of (i) the expiration of the term of the Option as set
forth in the Option Agreement, or (ii) the expiration of a period of three (3)
months after the termination of the Optionee’s Continuous Service during which
the exercise of the Option would not be in violation of such registration
requirements.


 


(g)                    DISABILITY OF OPTIONEE.In the event an Optionee’s
Continuous Service terminates as a result of the Optionee’s Disability, the
Optionee may exercise his or her Option, but only within such period of time
ending on the earlier of (i) the date twelve (12) months following such
termination (or such longer or shorter period specified in the Option
Agreement), or (ii) the expiration of the term of the Option as set forth in
the Option Agreement.If, at the date of termination, the Optionee is not
entitled to exercise the entire Option, the shares covered by the unexercisable
portion of the Option shall revert to and again become available for issuance
under the Plan no later than thirty (30) days following the date of
termination.If, after termination, the Optionee does not exercise his or her
Option within the time specified herein, the Option shall terminate, and the
shares covered by such Option shall revert to and again become available for
issuance under the Plan.








(h)                    DEATH OF OPTIONEE. In the event of the death of an
Optionee during, or within the three (3) month or twelve (12) month periods
referred to above after the termination of, the Optionee’s Continuous Service,
the Option may be exercised by the Optionee’s estate, by a person who acquired
the right to exercise the Option by bequest or inheritance or by a person designated
to exercise the option upon the Optionee’s death pursuant to subsection 6(d),
but only within the period ending on the earlier of (i) the date twelve (12)
months following the date of death (or such longer or shorter period specified
in the Option Agreement), or (ii) the expiration of the term of such Option as
set forth in the Option Agreement. If, at the time of death, the Optionee was
not entitled to exercise the entire Option, the shares covered by the
unexercisable portion of the Option shall revert to and again become available
for issuance under the Plan no later than thirty (30) days following the date
of termination. If, after death, the Option is not exercised within the time
specified herein, the Option shall terminate, and the shares covered by such
Option shall revert to and again become available for issuance under the Plan.


 


(i)                        QUALIFIED RETIREMENT OF OPTIONEE. In the event an
Optionee’s Continuous Service terminates as a result of the Optionee’s
Qualified Retirement (as determined by the Board of Directors or the
Committee), the Optionee may exercise his or her Option, but only within such
period of time ending on the expiration of the term of the Option as set forth
in the Option Agreement (or such shorter period specified in the Option
Agreement). If, at the date of such termination, the Optionee is not entitled
to exercise the entire Option, the shares covered by the unexercisable portion
of the Option shall revert to and again become available for issuance under the
Plan no later than thirty (30) days following the date of termination. If,
after such termination, the Optionee does not exercise his or her Option within
the time specified herein, the Option shall terminate, and the shares covered
by such Option shall revert to and again become available for issuance under
the Plan.


 


(j)                        EARLY EXERCISE.The Option may, but need not,
include a provision whereby the Optionee may elect at any time before the
Optionee’s Continuous Service terminates to exercise the Option as to any part
or all of the shares subject to the Option prior to the full vesting of the
Option.Any unvested shares so purchased shall be subject to a repurchase right
in favor of the Company or any other restriction the Board determines
appropriate.


 


7.                                       TERMS OF STOCK BONUSES
AND PURCHASES OF RESTRICTED STOCK.


 


(a)                     Each stock bonus or restricted stock purchase
agreement shall be in such form and shall contain such terms and conditions as
the Board shall deem appropriate. The terms and conditions of stock bonus or
restricted stock purchase agreements may change from time to time, and the
terms and conditions of separate agreements need not be identical, but each
stock bonus or restricted stock purchase agreement shall include (through
incorporation of provisions hereof by reference in the agreement or otherwise)
the substance of each of the following provisions as appropriate:


 


(1)                         PURCHASE PRICE.The
purchase price under each restricted stock purchase agreement shall be such
amount as the Board shall determine and designate in such agreement, but in no
event shall the purchase price be less than eighty-five percent (85%) of the
stock’s Fair Market Value on the date such award is made.Notwithstanding the
foregoing, the Board may determine that eligible participants in the Plan may
be awarded stock pursuant to a stock bonus agreement in consideration for past
services actually rendered to the Company for its benefit.








(2)        TRANSFERABILITY.A
stock bonus or restricted stock purchase agreement may be transferable to the
extent expressly provided in the Stock Award Agreement; provided, however, that
if the Stock Award Agreement does not specifically provide for transferability,
then such stock bonus or restricted stock purchase award shall not be
transferable except by will or the laws of descent and distribution or pursuant
to a domestic relations order, and shall be exercisable during the lifetime of
the person to whom the stock bonus or restricted stock purchase award is
granted only by such person or any transferee pursuant to a domestic relations
order, so long as stock awarded under such agreement remains subject to any
restrictions pursuant to the agreement.


 


(3)        CONSIDERATION.The
purchase price of stock acquired pursuant to a restricted stock purchase
agreement shall be paid either:(i) in cash at the time of purchase; (ii) at the
discretion of the Board, according to a deferred payment or other arrangement
with the person to whom the stock is sold; or (iii) in any other form of legal
consideration that may be acceptable to the Board in its
discretion.Notwithstanding the foregoing, the Board may award stock pursuant to
a stock bonus agreement in consideration for past services actually rendered to
the Company or for its benefit.


 


(4)                         VESTING.Shares of stock
sold or awarded under the Plan may, but need not, be subject to a repurchase
option or reacquisition right in favor of the Company in accordance with a
vesting schedule to be determined by the Board.


 


(5)                         TERMINATION OF
CONTINUOUS SERVICE.In the event a Participant’s Continuous Service terminates,
the Company may repurchase or otherwise reacquire any or all of the shares of
stock held by that person which have not vested as of the date of termination
under the terms of the stock bonus or restricted stock purchase agreement between
the Company and such person, subject to the provisions of Section 11.


 


8.                                       COVENANTS OF THE
COMPANY.


 


(a)                     During the terms of the Stock Awards, the Company
shall keep available at all times the number of shares of stock required to
satisfy such Stock Awards.


 


(b)                    The Company shall seek to obtain from each
regulatory commission or agency having jurisdiction over the Plan such
authority as may be required to grant Stock Awards and to issue and sell shares
of Common Stock upon exercise of the Stock Awards; provided, however, that this
undertaking shall not require the Company to register under the Securities Act
the Plan, any Stock Award or any stock issued or issuable pursuant to any such
Stock Award.If, after reasonable efforts, the Company is unable to obtain from
any such regulatory commission or agency the authority which counsel for the
Company deems necessary for the lawful issuance and sale of stock under the
Plan, the Company shall be relieved from any liability for failure to issue and
sell stock upon exercise of such Stock Awards unless and until such authority
is obtained.


 


9.                                       USE OF PROCEEDS FROM
STOCK.


 


Proceeds from the sale of stock pursuant to Stock Awards
shall constitute general funds of the Company.








10.                                 MISCELLANEOUS.


 


(a)                     The Board shall have the power to accelerate the
time at which a Stock Award may first be exercised or the time during which a
Stock Award or any part thereof will vest, notwithstanding the provisions in
the Stock Award stating the time at which it may first be exercised or the time
during which it will vest.


 


(b)                    No Optionee shall be deemed to be the holder of,
or to have any of the rights of a holder with respect to, any shares subject to
such Stock Award unless and until such person has satisfied all requirements
for exercise of the Stock Award pursuant to its terms.


 


(c)                     Nothing in the Plan or any instrument executed or
Stock Award granted pursuant thereto shall confer upon any Optionee any right
to continue in the employ of the Company or any Affiliate (or to continue acting
as a Director or Consultant) or shall affect the right of the Company or any
Affiliate to terminate the employment of any Employee with or without cause,
the right of the Company’s Board of Directors and/or the Company’s stockholders
to remove any Director pursuant to the terms of the Company’s Bylaws and the
provisions of applicable laws, or the right to terminate the relationship of
any Consultant pursuant to the terms of such Consultant’s agreement with the
Company or Affiliate to which such Consultant is providing services.


 


(d)                    To the extent that the aggregate Fair Market Value
(determined at the time of grant) of stock with respect to which Incentive
Stock Options are exercisable for the first time by any Optionee during any
calendar year under all plans of the Company and its Affiliates exceeds one
hundred thousand dollars ($100,000), the Options or portions thereof which
exceed such limit (according to the order in which they were granted) shall be
treated as Nonstatutory Stock Options.


 


(e)                     The Company may require any person to whom a Stock
Award is granted, or any person to whom a Stock Award is transferred pursuant
to subsection 6(d) or 7(a)(2), as a condition of exercising or acquiring stock
under any Stock Award, (1) to give written assurances satisfactory to the
Company as to such person’s knowledge and experience in financial and business
matters and/or to employ a purchaser representative reasonably satisfactory to
the Company who is knowledgeable and experienced in financial and business matters,
and that he or she is capable of evaluating, alone or together with the
purchaser representative, the merits and risks of exercising the Stock Award;
and (2) to give written assurances satisfactory to the Company stating that
such person is acquiring the stock subject to the Stock Award for such person’s
own account and not with any present intention of selling or otherwise
distributing the stock. The foregoing requirements, and any assurances given
pursuant to such requirements, shall be inoperative if (i) the issuance of the
shares upon the exercise or acquisition of stock under the Stock Award has been
registered under a then currently effective registration statement under the
Securities Act, or (ii) as to any particular requirement, a determination is
made by counsel for the Company that such requirement need not be met in the
circumstances under the then applicable securities laws.The Company may require
the Stock Award holder to provide such other representations, written
assurances or information which the Company shall determine is necessary,
desirable or appropriate to comply with applicable securities and other laws as
a condition of granting a Stock Award to such Stock Award holder or permitting
the Stock Award holder to exercise
such Stock Award. The Company may, upon advice of counsel to the Company, place
legends on stock certificates issued under the Plan as such counsel deems
necessary or appropriate in order to comply with applicable securities laws,
including, but not limited to, legends restricting the transfer of the stock.








(f)                       To the extent provided by the terms of a Stock
Award Agreement, the Stock Award holder may satisfy any federal, state or local
tax withholding obligation relating to the exercise or acquisition of stock
under a Stock Award by any of the following means or by a combination of such
means (in addition to the Company’s right to withhold from any compensation
paid to the Stock Award holder by the Company):(1) tendering a cash payment;
(2) authorizing the Company to withhold shares from the shares of the Common
Stock otherwise issuable to the Optionee as a result of the exercise or
acquisition of stock under the Stock Award; or (3) delivering to the Company
owned and unencumbered shares of the Common Stock of the Company.


 


11.                                 ADJUSTMENTS UPON CHANGES
IN STOCK.


 


(a)                     If any change
is made in the stock subject to the Plan, or subject to any Stock Award,
without the receipt of consideration by the Company (through merger,
consolidation, reorganization, recapitalization, reincorporation, stock
dividend, dividend in property other than cash, stock split, liquidating
dividend, combination of shares, exchange of shares, change in corporate
structure or other transaction not involving the receipt of consideration by
the Company), the Plan will be appropriately adjusted in the class(es) and
maximum number of shares subject to the Plan pursuant to subsection 4(a) and
the maximum number of shares subject to award to any person pursuant to
subsection 5(c), and the outstanding Stock Awards will be appropriately
adjusted in the class(es) and number of shares and price per share of stock
subject to such outstanding Stock Awards.Such adjustments shall be made by the Board, the
determination of which shall be final, binding and conclusive.(The conversion
of any convertible securities of the Company shall not be treated as a
“transaction not involving the receipt of consideration by the Company”.)


 


(b)                    In the event of a Change in Control (as defined herein), then:(i) with
respect to Stock Awards held by persons whose Continuous Service has not
terminated prior to such Change in Control, the vesting (and, if applicable,
the exercisability) of Stock Awards held by such persons shall be accelerated
immediately prior to such event, and the Stock Awards terminated if not
exercised at or prior to the later of the date of such event or thirty (30)
days after delivery to such person of notice of such event or the prospect of
such event, and (ii) any Company repurchase option or reacquisition right with
respect to shares acquired by such persons under a Stock Award shall lapse
immediately prior to such event and the shares held by such persons shall be
fully vested.In its discretion, the Board may require any surviving corporation
or acquiring corporation to assume any Stock Awards outstanding under the Plan
or to substitute similar stock awards (including an award to acquire the same consideration paid to the
stockholders in the transaction described in this subsection 11(b)) for those
outstanding under the Plan.In the event any surviving or acquiring corporation
does not assume such Stock Awards or substitute similar stock awards for those
outstanding under the Plan, such Stock Awards which are vested without regard
to such event shall terminate if not exercised prior to such event and such
Stock Awards which become vested by virtue of acceleration due to such event
shall terminate if not exercised within the period set forth above in this
subsection 11(b).


 


(c)                     In the event of a dissolution or liquidation of
the Company, any Stock Awards outstanding under the Plan shall terminate if not
exercised prior to such event.


 


12.                                 AMENDMENT OF THE PLAN
AND STOCK AWARDS.








(a)                     The Board at any time, and from time to time, may
amend the Plan. However, except as provided in Section 11 relating to
adjustments upon changes in stock, no amendment shall be effective unless
approved by the stockholders of the Company to the extent stockholder approval
is necessary for the Plan to satisfy the requirements of Section 422 of the
Code, Rule 16b-3 or any Nasdaq or securities exchange listing requirements.


 


(b)                    The Board may in its sole discretion submit any
other amendment to the Plan for stockholder approval, including, but not
limited to, amendments to the Plan intended to satisfy the requirements of
Section 162(m) of the Code and the regulations promulgated thereunder regarding
the exclusion of performance-based compensation from the limit on corporate
deductibility of compensation paid to certain executive officers.


 


(c)                     It is expressly contemplated that the Board may
amend the Plan in any respect the Board deems necessary or advisable to provide
Optionees with the maximum benefits provided or to be provided under the
provisions of the Code and the regulations promulgated thereunder relating to
Incentive Stock Options and/or to bring the Plan and/or Incentive Stock Options
granted under it into compliance therewith.


 


(d)                    Rights and obligations under any Stock Award
granted before amendment of the Plan shall not be impaired by any amendment
of the Plan unless (i) the Company requests the consent of the person to whom
the Stock Award was granted and (ii) such person consents in writing.








(e)                     The Board at any time, and from time to time, may
amend the terms of any one or more Stock Awards; provided, however, that the
rights under any Stock Award shall not be impaired by any such amendment unless
(i) the Company requests the consent of the person to whom the Stock Award was
granted and (ii) such person consents in writing.


 


13.                                 TERMINATION OR
SUSPENSION OF THE PLAN.


 


(a)       The Board
may suspend or terminate the Plan at any time.Unless sooner terminated, the
Plan shall terminate on the day before the tenth (10th) anniversary of the date
the Plan is adopted by the Board or approved by the stockholders of the
Company, whichever is earlier.No Stock Awards may be granted under the Plan
while the Plan is suspended or after it is terminated.


 


(b)       Rights
and obligations under any Stock Award granted while the Plan is in effect shall
not be impaired by suspension or termination of the Plan, except with the
consent of the person to whom the Stock Award was granted.


 


14.                                 EFFECTIVE DATE OF PLAN.


 


The Plan shall become effective as of the Listing Date,
but no Stock Awards granted under the Plan shall be exercised (or, in the case
of a stock bonus, shall be granted) unless and until the Plan has been approved
by the stockholders of the Company, which approval shall be within twelve (12)
months before or after the date the Plan is adopted by the Board.


 


15.                                 CHOICE OF LAW.


 


All questions concerning the construction, validity and
interpretation of this Plan shall be governed by the law of the State of
Delaware, without regard to such state’s conflict of laws rules.