exv10w1



 




EXHIBIT 10.1



VISX, INCORPORATED



2000 STOCK PLAN



Amended and Restated Effective as of the Date of
the 2004 Annual Meeting of Stockholders



     
1.     Purposes of
the Plan. The purposes of this 2000 Stock Plan are:




			
	 	• 	
    to attract and retain the best available
    personnel for positions of substantial responsibility,
    
	 
	 	• 	
    to provide additional incentive to such
    personnel, and
    
	 
	 	• 	
    to promote the success of the Company’s
    business.
    




     
Options granted under the Plan may be Incentive
Stock Options or Nonstatutory Stock Options, as determined by
the Administrator at the time of grant. The Plan also provides
for the grant of Restricted Stock Awards and Stock Appreciation
Rights; provided, however, that (i) in no event shall more
than 10% of the Shares issuable under the Plan be granted
pursuant to SARS with an exercise price that is less than 100%
of Fair Market Value, and (ii) in no event shall more than
10% of the Shares issuable under the Plan be granted as
Restricted Stock Awards.



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




		
	 	     
    (a) “Administrator” means
    the Board or any of its Committees as shall be administering the
    Plan, in accordance with Section 4 of the Plan.
    
	 
	 	     
    (b) “Applicable Laws” means
    the requirements relating to the administration of stock option
    plans under U.S. state corporate laws, U.S. federal
    and state securities laws, the Code, any stock exchange or
    quotation system on which the Common Stock is listed or quoted
    and the applicable laws of any foreign country or jurisdiction
    where Options, Stock Awards or Stock Appreciation Rights are, or
    will be, granted under the Plan.
    
	 
	 	     
    (c) “Board” means the Board
    of Directors of the Company.
    
	 
	 	     
    (d) “Change of Control”
    means the occurrence of any of the following events:
    





		
	 	     
    (i) any “person,” as such term is
    used in Sections 13(d) and 14(d) of the Exchange Act, other
    than the Company, a subsidiary of the Company or a Company
    employee benefit plan, including any trustee of such plan acting
    as trustee, is or becomes the “beneficial owner” (as
    defined in Rule 13d-3 under the Exchange Act), directly or
    indirectly, of securities of the Company representing twenty
    percent (20%) or more of the combined voting power of the
    Company’s then outstanding securities entitled to vote
    generally in the election of directors; or
    
	 
	 	     
    (ii) a merger or consolidation of the
    Company or any direct or indirect subsidiary of the Company with
    any other corporation, other than a merger or consolidation
    which would result in the voting securities of the Company
    outstanding immediately prior thereto continuing to represent
    (either by remaining outstanding or by being converted into
    voting securities of the surviving entity) at least fifty
    percent (50%) of the total voting power represented by the
    voting securities of the
    




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    Company or such surviving entity outstanding
    immediately after such merger or consolidation, or the
    stockholders of the Company approve an agreement for the sale or
    disposition by the Company of all or substantially all the
    Company’s assets; or
    
	 
	 	     
    (iii) a change in the composition of the
    Board, as a result of which fewer than a majority of the
    directors are Incumbent Directors. “Incumbent
    Directors” shall mean directors who either (A) are
    Directors as of the date this Plan is approved by the Board, or
    (B) are elected, or nominated for election, to the Board
    with the affirmative votes of at least a majority of the
    Incumbent Directors and whose election or nomination was not in
    connection with any transaction described in (i) or
    (ii) above or in connection with an actual or threatened
    proxy contest relating to the election of directors of the
    Company.
    





		
	 	     
    (e) “Code” means the
    Internal Revenue Code of 1986, as amended.
    
	 
	 	     
    (f) “Committee” means a
    committee of Directors appointed by the Board in accordance with
    Section 4 of the Plan.
    
	 
	 	     
    (g) “Common Stock” means
    the common stock of the Company.
    
	 
	 	     
    (h) “Company” means
    VISX, Incorporated, a Delaware corporation.
    
	 
	 	     
    (i) “Consultant” means any
    person, including an advisor, engaged by the Company or a Parent
    or Subsidiary to render services to such entity.
    
	 
	 	     
    (j) “Director” means a
    member of the Board.
    
	 
	 	     
    (k) “Disability” means
    total and permanent disability as defined in
    Section 22(e)(3) of the Code.
    
	 
	 	     
    (l) “Employee” means any
    person, including Officers and Directors, employed by the
    Company or any Parent or Subsidiary of the Company. A Service
    Provider shall not cease to be an Employee in the case of
    (i) any leave of absence approved by the Company or
    (ii) transfers between locations of the Company or between
    the Company, its Parent, any Subsidiary, or any successor. For
    purposes of Incentive Stock Options, no such leave may exceed
    ninety (90) days, unless reemployment upon expiration of
    such leave is guaranteed by statute or contract. If reemployment
    upon expiration of a leave of absence approved by the Company is
    not so guaranteed, then three (3) months following the
    ninety-first (91st) day of such leave, any Incentive Stock
    Option held by the Optionee shall cease to be treated as an
    Incentive Stock Option and shall be treated for tax purposes as
    a Nonstatutory Stock Option. Neither service as a Director nor
    payment of a director’s fee by the Company shall be
    sufficient to constitute “employment” by the Company.
    
	 
	 	     
    (m) “Exchange Act” means
    the Securities Exchange Act of 1934, as amended.
    
	 
	 	     
    (n) “Fair Market Value”
    means, as of any date, the value of Common Stock determined as
    follows:
    





		
	 	     
    (i) If the Common Stock is listed on any
    established stock exchange or a national market system,
    including without limitation the New York Stock Exchange,
    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 system or exchange (or
    the exchange with the greatest volume of
    




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    trading in Common Stock) on the day of
    determination, as reported in The Wall Street Journal or
    such other source as the Board deems reliable;
    
	 
	 	     
    (ii) If the Common Stock is quoted on any
    established stock exchange or regularly quoted by a recognized
    securities dealer but selling prices 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 day of determination, as reported in The Wall Street
    Journal or such other source as the Board deems
    reliable, or;
    
	 
	 	     
    (iii) In the absence of an established
    market for the Common Stock, the Fair Market Value thereof 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) “Nonstatutory Stock
    Option” means an Option not intended to qualify as an
    Incentive Stock Option.
    
	 
	 	     
    (q) “Notice of Grant” means
    a written or electronic notice evidencing certain terms and
    conditions of an individual Option grant. The Notice of Grant is
    part of the Option Agreement.
    
	 
	 	     
    (r) “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
    
	 
	 	     
    (s) “Option” means a stock
    option granted pursuant to the Plan.
    
	 
	 	     
    (t) “Option Agreement”
    means an agreement between the Company and an Optionee
    evidencing the terms and conditions of an individual Option
    grant. The Option Agreement is subject to the terms and
    conditions of the Plan.
    
	 
	 	     
    (u) “Optioned Stock” means
    the Common Stock subject to an Option, SAR or Restricted Stock
    Award.
    
	 
	 	     
    (v) “Optionee” means the
    holder of an outstanding Option, SAR or Restricted Stock Award
    granted under the Plan.
    
	 
	 	     
    (w) “Parent” means a
    “parent corporation,” whether now or hereafter
    existing, as defined in Section 424(e) of the Code.
    
	 
	 	     
    (x) “Plan” means this 2000
    Stock Plan.
    
	 
	 	     
    (y) “Restricted Stock”
    means Shares acquired pursuant to the grant of a Restricted
    Stock Award under Section 11 below.
    
	 
	 	     
    (z) “Restricted Stock
    Award” means an award of Restricted Stock issued
    pursuant to Section 11 below.
    
	 
	 	     
    (aa) “Restricted Stock Award
    Agreement” means a written agreement between the
    Company and the Employee evidencing the terms and restrictions
    applying to stock granted under this Plan. The Restricted Stock
    Award Agreement is subject to the terms and conditions of the
    Plan.
    




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    (bb) “Stock Appreciation Right or
    SAR” means an award issued pursuant to Section 12
    below.
    
	 
	 	     
    (cc) “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.
    
	 
	 	     
    (dd) “Section 16(b)”
    means Section 16(b) of the Exchange Act.
    
	 
	 	     
    (ee) “Service Provider”
    means an Employee, Director or Consultant.
    
	 
	 	     
    (ff) “Share” means a share
    of the Common Stock, as adjusted in accordance with
    Section 14 of the Plan.
    
	 
	 	     
    (gg) “Subsidiary” means a
    “subsidiary corporation”, whether now or hereafter
    existing, as defined in Section 424(f) of the Code.
    




     
3.     Stock Subject
to the Plan. Subject to the provisions of Section 14 of
the Plan, the maximum aggregate number of Shares that may be
optioned and sold under the Plan is six million three
hundred thousand (6,300,000) Shares; provided, however, that
(i) in no event shall more than 10% of the Shares issuable
under the Plan as of May 23, 2003 (the date of the
Company’s 2003 Annual Meeting of Stockholders) plus 10% of
the Shares approved for addition to the plan on May 13,
2004 (the date of the Company’s 2004 Annual Meeting of
Stockholders), a total of 330,684 Shares, be granted
pursuant to SARS with an exercise price that is less than 100%
of Fair Market Value, and (ii) in no event shall more than
10% of the Shares issuable under the Plan as of May 23,
2003 plus 10% of the Shares approved for addition to the plan on
May 13, 2004, a total of 330,684 Shares, be granted as
Restricted Stock Awards. The Shares may be authorized, but
unissued, or reacquired Common Stock.



     
If an Option, SAR or Restricted Stock Award
expires or becomes unexercisable without having been exercised
in full, or, with respect to a Restricted Stock Award, is
forfeited back to or repurchased by the Company, the unpurchased
Shares (or for Restricted Stock Awards, the forfeited or
repurchased Shares) which were subject thereto shall become
available for future grant or sale under the Plan (unless the
Plan has terminated). With respect to SARs, only Shares actually
issued pursuant to an SAR (or in the event of a cash payout, the
share equivalent) shall cease to be available under the Plan;
all remaining Shares under SARs shall remain available for
future grant or sale under the Plan (unless the Plan has
terminated). However, Shares that have actually been issued
under the Plan, upon exercise of either an Option, SAR or
Restricted Stock Award shall not be returned to the Plan and
shall not become available for future distribution under the
Plan, except that if Shares of Restricted Stock are repurchased
by the Company at their original purchase price or forfeited to
the Company, such Shares shall become available for future grant
under the Plan.



     
4.     Administration
of the Plan.



     
(a) Procedure.




		
	 	     
    (i) Multiple Administrative Bodies.
    Different Committees may administer the Plan with respect to
    different groups of Service Providers.
    
	 
	 	     
    (ii) Section 162(m). To the
    extent that the Administrator determines it to be desirable to
    qualify Options granted hereunder as “performance-based
    compensation” within the meaning of Section 162(m)
    




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    of the Code, the Plan shall be administered by a
    Committee of two or more “outside directors” within
    the meaning of Section 162(m) of the Code.
    
	 
	 	     
    (iii) Rule 16b-3. To the extent
    desirable to qualify transactions hereunder as exempt under
    Rule 16b-3, the transactions contemplated hereunder shall
    be structured to satisfy the requirements for exemption under
    Rule 16b-3.
    
	 
	 	     
    (iv) Other Administration. Other than
    as provided above, the Plan shall be administered by
    (A) the Board or (B) a Committee, which committee
    shall be constituted to satisfy Applicable Laws.
    




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




		
	 	     
    (i) to determine the Fair Market Value in
    accordance with Section 2(n) of the Plan;
    
	 
	 	     
    (ii) to select the Service Providers to whom
    Options, SARs and Restricted Stock Awards may from time to time
    be granted hereunder;
    
	 
	 	     
    (iii) to determine the number of Shares to
    be covered by each Option, SAR or Restricted Stock Award granted
    hereunder;
    
	 
	 	     
    (iv) to approve forms of agreement for use
    under the Plan;
    
	 
	 	     
    (v) to determine the terms and conditions of
    any Option, SAR or Restricted Stock Award granted hereunder.
    Such terms and conditions include, but are not limited to, the
    exercise price, the time or times when Options, SARs or
    Restricted Stock Awards may be exercised or granted (which may
    be based on performance criteria), any vesting acceleration or
    waiver of forfeiture restrictions, and any other restriction or
    limitation regarding any Option, SAR or Restricted Stock Award
    or the Common Stock relating thereto, based in each case on such
    factors as the Administrator, in its sole discretion, shall
    determine, provided that the Administrator may not accelerate
    vesting of any Restricted Stock Award except in circumstances it
    determines to be extraordinary or non-recurring;
    
	 
	 	     
    (vi) to construe and interpret the terms of
    the Plan and awards granted pursuant to the Plan;
    
	 
	 	     
    (vii) to prescribe, amend and rescind rules
    and regulations relating to the Plan, including rules and
    regulations relating to sub-plans established for the purpose of
    qualifying for preferred tax treatment under foreign tax laws;
    
	 
	 	     
    (viii) to allow Optionees to satisfy
    withholding tax obligations by electing to have the Company
    withhold from the Shares to be issued upon exercise of an Option
    or SAR or the Shares of Restricted Stock that vest that number
    of Shares having a Fair Market Value equal to the minimum amount
    required to be withheld, and no more in any event. The Fair
    Market Value of the Shares to be withheld shall be determined on
    the date that the amount of tax to be withheld is to be
    determined. All elections by Optionees to have Shares withheld
    for this purpose shall be made in such form and under such
    conditions as the Administrator may deem necessary or advisable;
    
	 
	 	     
    (ix) to modify or amend each Option (subject
    to Section 17(c) of the Plan), including the discretionary
    authority to extend the post-termination exercisability period
    of Options longer than is
    




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    otherwise provided for in the Plan, provided that
    the Board may not amend any Option to reduce the exercise price
    of the option below 100% of the Fair Market Value per Share on
    the date of grant;
    
	 
	 	     
    (x) to authorize any person to execute on
    behalf of the Company any instrument required to effect the
    grant of an Option, SAR or Restricted Stock Award previously
    granted by the Administrator;
    
	 
	 	     
    (xi) to make all other determinations deemed
    necessary or advisable for administering the Plan.
    




     
(c) Effect of Administrator’s
Decision. The Administrator’s decisions, determinations
and interpretations shall be final and binding on all Optionees.



     
5.     Eligibility.
Nonstatutory Stock Options, SARs and Restricted Stock Awards may
be granted to Service Providers. Incentive Stock Options may be
granted only to Employees.



     
6.     Limitations.



     
(a) Each Option shall be designated in the
Option Agreement as either an Incentive Stock Option or a
Nonstatutory Stock Option. However, notwithstanding such
designation, to the extent that the aggregate Fair Market Value
of the Shares with respect to which Incentive Stock Options are
exercisable for the first time by the Optionee during any
calendar year (under all plans of the Company and any Parent or
Subsidiary) exceeds $100,000, such Options shall be treated as
Nonstatutory Stock Options. For purposes of this
Section 6(a), Incentive Stock Options shall be taken
into account in the order in which they were granted. The Fair
Market Value of the Shares shall be determined as of the time
the Option with respect to such Shares is granted.



     
(b) Neither the Plan nor any Option, SAR or
Restricted Stock Award shall confer upon any Optionee any right
with respect to continuing the Optionee’s relationship as a
Service Provider with the Company, nor shall it interfere in any
way with his or her right or the Company’s right to
terminate such relationship at any time, with or without cause.



     
(c) The following limitations shall apply to
grants of Options and SARs with an exercise price equal to a
minimum of 100% of Fair Market Value on the date of grant:




		
	 	     
    (i) No Service Provider shall be granted, in
    any fiscal year of the Company, Options or SARs to purchase more
    than 500,000 Shares.
    
	 
	 	     
    (ii) In connection with his or her initial
    service, a Service Provider may be granted Options or SARs to
    purchase up to an additional 500,000 Shares, which shall
    not count against the limit set forth in
    subsection (i) above.
    
	 
	 	     
    (iii) The foregoing limitations shall be
    adjusted proportionately in connection with any change in the
    Company’s capitalization as described in Section 14.
    
	 
	 	     
    (iv) If an Option or SAR is cancelled in the
    same fiscal year of the Company in which it was granted (other
    than in connection with a transaction described in
    Section 14), the cancelled Option or SAR will be counted
    against the limits set forth in subsections (i) and
    (ii) above. For this purpose, if the exercise price of an
    Option is reduced, the transaction will be treated as a
    cancellation of the Option and the grant of a new Option.
    




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7.     Term of
Plan. The Plan shall become effective upon its adoption by
the Board. It shall continue in effect for a term of ten
(10) years unless terminated earlier under Section 17
of the Plan.



     
8.     Term of
Option. The term of each Option shall be stated in the
Option Agreement. The term of each Option shall be ten
(10) years from the date of grant or such shorter term as
may be provided in the Option Agreement. Moreover, in the case
of an Incentive Stock Option granted to an Optionee who, at the
time the Incentive Stock Option is granted, owns stock
representing more than ten percent (10%) of the total combined
voting power of all classes of stock of the Company or any
Parent or Subsidiary, the term of the Incentive Stock Option
shall be five (5) years from the date of grant or such
shorter term as may be provided in the Option Agreement.



     
9.     Option
Exercise Price and Consideration.



     
(a) Exercise Price. The per share
exercise price for the Shares to be issued pursuant to exercise
of an Option shall be determined by the Administrator provided
that such exercise price shall be no less than 100% of the Fair
Market Value per Share on the date of grant of such Option. In
the case of an Incentive Stock Option granted to an Employee
who, at the time the Incentive Stock Option is granted, 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, the per Share exercise price shall be no less than
110% of the Fair Market Value per Share on the date of grant.



     
(b) Waiting Period and Exercise
Dates. At the time an Option is granted, the Administrator
shall fix the period within which the Option may be exercised
and shall determine any conditions that must be satisfied before
the Option may be exercised.



     
(c) Form of Consideration. The
Administrator shall determine the acceptable form of
consideration for exercising an Option, including the method of
payment. In the case of an Incentive Stock Option, the
Administrator shall determine the acceptable form of
consideration at the time of grant. Such consideration may
consist (but only to the extent permitted by Applicable Law)
entirely of:




		
	 	     
    (i) cash;
    
	 
	 	     
    (ii) check;
    
	 
	 	     
    (iii) promissory note;
    
	 
	 	     
    (iv) other Shares which (A) in the case
    of Shares acquired upon exercise of an option, have been owned
    by the Optionee for more than six months on the date of
    surrender, and (B) have a Fair Market Value on the date of
    surrender equal to the aggregate exercise price of the Shares as
    to which said Option shall be exercised;
    
	 
	 	     
    (v) consideration received by the Company
    under a cashless exercise program implemented by the Company in
    connection with the Plan;
    
	 
	 	     
    (vi) a reduction in the amount of any
    Company liability to the Optionee, including any liability
    attributable to the Optionee’s participation in any
    Company-sponsored deferred compensation program or arrangement;
    
	 
	 	     
    (vii) any combination of the foregoing
    methods of payment; or
    




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    (viii) such other consideration and method
    of payment for the issuance of Shares to the extent permitted by
    Applicable Laws.
    




     
10.     Exercise of
Option.



     
(a) Procedure for Exercise; Rights as a
Stockholder. Any Option granted hereunder shall be
exercisable according to the terms of the Plan and at such times
and under such conditions as determined by the Administrator and
set forth in the Option Agreement. An Option may not be
exercised for a fraction of a Share.



     
An Option shall be deemed exercised when the
Company receives: (i) written or electronic notice of
exercise (in accordance with the Option Agreement) from the
person entitled to exercise the Option, and (ii) full
payment for the Shares with respect to which the Option is
exercised. Full payment may consist of any consideration and
method of payment authorized by the Administrator and permitted
by the Option Agreement and the Plan. Shares issued upon
exercise of an Option shall be issued in the name of the
Optionee or, if requested by the Optionee, in the name of the
Optionee and his or her spouse or a trust for the benefit
therefore (so long as such trust may hold the option under
Applicable Laws). Until the Shares are issued (as evidenced by
the appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company), no right to vote or
receive dividends or any other rights as a stockholder shall
exist with respect to the Optioned Stock, notwithstanding the
exercise of the Option. The Company shall issue (or cause to be
issued) such Shares promptly after the Option is exercised. No
adjustment will be made for a dividend or other right for which
the record date is prior to the date the Shares are issued,
except as provided in Section 14 of the Plan.



     
Exercising an Option in any manner shall decrease
the number of Shares thereafter available, both for purposes of
the Plan and for sale under the Option, by the number of Shares
as to which the Option is exercised.



     
(b) Termination of Relationship as a
Service Provider. If an Optionee ceases to be a Service
Provider, other than upon the Optionee’s death or
Disability, the Optionee may exercise his or her Option within
such period of time as is specified in the Option Agreement to
the extent that the Option is vested on the date of termination
(but in no event later than the expiration of the term of such
Option as set forth in the Option Agreement). In the absence of
a specified time in the Option Agreement, the Option shall
remain exercisable for three (3) months following the
Optionee’s termination. If, on the date of termination, the
Optionee is not vested as to his or her entire Option, the
Shares covered by the unvested portion of the Option shall
revert to the Plan. If, after termination, the Optionee does not
exercise his or her Option within the time specified by the
Administrator, the Option shall terminate, and the Shares
covered by such Option shall revert to the Plan.



     
(c) Disability of Optionee. If an
Optionee ceases to be a Service Provider as a result of the
Optionee’s Disability, the Optionee may exercise his or her
Option within such period of time as is specified in the Option
Agreement to the extent the Option is vested on the date of
termination (but in no event later than the expiration of the
term of such Option as set forth in the Option Agreement). In
the absence of a specified time in the Option Agreement, the
Option shall remain exercisable for twelve (12) months
following the Optionee’s termination. If, on the date of
termination, the Optionee is not vested as to his or her entire
Option, the Shares covered by the unvested portion of the Option
shall revert to the Plan. If, after termination, the



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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 the Plan.




     
(d) Death of Optionee. If an Optionee
dies while a Service Provider, the Option may be exercised
within such period of time as is specified in the Option
Agreement (but in no event later than the expiration of the term
of such Option as set forth in the Notice of Grant), by the
Optionee’s estate or by a person who acquires the right to
exercise the Option by bequest or inheritance, but only to the
extent that the Option is vested on the date of death. In the
absence of a specified time in the Option Agreement, the Option
shall remain exercisable for twelve (12) months following
the Optionee’s death. If, at the time of death, the
Optionee is not vested as to his or her entire Option, the
Shares covered by the unvested portion of the Option shall
immediately revert to the Plan. The Option may be exercised by
the executor or administrator of the Optionee’s estate or,
if none, by the person(s) entitled to exercise the Option under
the Optionee’s will or the laws of descent or distribution.
If the Option is not so exercised within the time specified
herein, the Option shall terminate, and the Shares covered by
such Option shall revert to the Plan.



     
11.     Restricted
Stock Awards.



     
(a) Grant of Restricted Stock Awards.
Subject to the terms and conditions of the Plan, Restricted
Stock Awards may be granted to Service Providers at any time and
from time to time as shall be determined by the Administrator,
in its sole discretion. The Administrator shall have complete
discretion to determine (i) the number of Shares subject to
a Restricted Stock Award granted to any Service Provider, and
(ii) the conditions that must be satisfied, including
performance-based milestones, upon which is conditioned the
grant or vesting of a Restricted Stock Award.



     
(b) Terms. The Administrator, subject
to the provisions of the Plan, shall have complete discretion to
determine the terms and conditions of Restricted Stock Awards
granted under the Plan. Restricted Stock Awards shall be subject
to the terms, conditions, and restrictions determined by the
Administrator at the time the stock is awarded, which may
include such performance-based milestones as are determined
appropriate by the Administrator. Unless otherwise determined by
the Administrator and subject to the terms of the Plan
(i) any Restricted Stock Award that is subject to
performance-based milestones shall not vest sooner than the
first anniversary of the date of grant and (ii) any
Restricted Stock Award that is not subject to performance-based
milestones shall vest over a minimum of three years. The
Administrator may require the recipient to sign a Restricted
Stock Award Agreement as a condition of the award. The
certificates representing the Shares awarded shall bear such
legends as shall be determined by the Administrator.



     
(c) Restricted Stock Award Agreement.
Each Restricted Stock Award grant shall be evidenced by an award
agreement that shall specify the purchase price (if any) and
such other terms and conditions as the Administrator, in its
sole discretion, shall determine.



     
12.     Stock
Appreciation Rights.



     
(a) Grant of SARS. Subject to the
terms and conditions of the Plan, SARs may be granted to Service
Providers at any time and from time to time as shall be
determined by the Administrator, in its sole discretion. The
Administrator shall have complete discretion to determine the
number of SARs granted to any Service Provider.



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(b) Exercise Price and Other Terms.
The Administrator, subject to the provisions of the Plan, shall
have complete discretion to determine the terms and conditions
of SARs granted under the Plan.



     
(c) Payment of SAR Amount. Upon
exercise of a SAR, an Optionee shall be entitled to receive
payment from the Company in an amount determined by multiplying:




		
	 	     
    (i) The difference between the Fair Market
    Value of a Share on the date of exercise over the exercise
    price; times
    
	 
	 	     
    (ii) The number of Shares with respect to
    which the SAR is exercised.
    




     
(d) Payment Upon Exercise of SAR. At
the discretion of the Administrator, payment for a SAR may be in
cash, Shares or a combination thereof.



     
(e) Cash Settlements and Plan Share
Allocation. Cash payments of Stock Appreciation Rights as
well as Common Stock issued upon exercise of Stock Appreciation
Rights shall be applied against the maximum number of Shares
that may be issued pursuant to the Plan. The number of Shares to
be applied against such maximum number of Shares in such
circumstances shall be the number of Shares equal to the amount
of the cash payment divided by the Fair Market Value of a Share
on the date the Stock Appreciation Right is granted.



     
(f) SAR Agreement. Each SAR grant
shall be evidenced by an award agreement that shall specify the
exercise price, the term of the SAR, the conditions of exercise,
and such other terms and conditions as the Administrator, in its
sole discretion, shall determine.



     
(g) Expiration of SARS. A SAR granted
under the Plan shall expire upon the date determined by the
Administrator, in its sole discretion, and set forth in the
Award Agreement.



     
13.     Non-Transferability
of Options, SARS and Restricted Stock Awards. Except as
determined otherwise by the Administrator in its discretion,
Options, SARs and Restricted Stock Awards 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
Optionee, only by the Optionee. If the Administrator makes an
Option, SAR or Restricted Stock Award transferable, such Option,
SAR or Restricted Stock Award shall contain such additional
terms and conditions as the Administrator deems appropriate.



     
14.     Adjustments
Upon Changes in Capitalization, Dissolution, Merger, Asset Sale
or Change of Control.



     
(a) Changes in Capitalization.
Subject to any required action by the stockholders of the
Company, the number of Shares covered by each outstanding
Option, SAR or Restricted Stock Award, and the number of Shares
which have been authorized for issuance under the Plan but as to
which no Option, SARs or Restricted Stock Awards have yet been
granted or which have been returned to the Plan upon
cancellation or expiration of an Option, SAR or Restricted Stock
Award, as well as the price per share of Stock covered by each
such outstanding Option, SAR or Restricted Stock Award, shall be
proportionately adjusted for any increase or decrease in the
number of issued Shares resulting from a stock split, reverse
stock split, stock dividend, combination or reclassification of
the Common Stock, or any other increase or decrease in the
number of issued Shares effected without receipt of
consideration by the Company. The conversion of any convertible
securities of the Company shall not be deemed to have been
“effected without receipt of consideration.” Such



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adjustment shall be made by the Board, whose
determination in that respect shall be final, binding and
conclusive. Except as expressly provided herein, no issuance by
the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and
no adjustment by reason thereof shall be made with respect to,
the number or price of Shares subject to an Option, SAR or
Restricted Stock Award.




     
(b) Dissolution or Liquidation. In
the event of the proposed dissolution or liquidation of the
Company, the Administrator shall notify each Optionee as soon as
practicable prior to the effective date of such proposed
transaction. The Administrator in its discretion may provide for
an Optionee to have the right to exercise his or her Option or
SAR until ten (10) days prior to such transaction as to all
of the Optioned Stock covered thereby, including Shares as to
which the Option or SAR would not otherwise be exercisable. In
addition, the Administrator may provide that any Company
repurchase option applicable to any Shares purchased upon
exercise of an Option, SAR or Restricted Stock Award or
forfeiture rights with respect to Restricted Stock shall lapse
as to all such Shares, provided the proposed dissolution or
liquidation takes place at the time and in the manner
contemplated. To the extent it has not been previously
exercised, an Option or SAR will terminate immediately prior to
the consummation of such proposed action.



     
(c) Merger or Asset Sale. In the
event of a merger of the Company with or into another
corporation, or the sale of substantially all of the assets of
the Company, each outstanding Option, SAR, and Restricted Stock
Award shall be assumed or an equivalent option, right or
agreement substituted by the successor corporation or a Parent
or Subsidiary of the successor corporation. In the event that a
Restricted Stock Award Agreement is not assumed or substituted
by the successor corporation or a Parent or Subsidiary thereof,
the Company’s right to return or repurchase of forfeited
Shares, including as to performance-based vesting, shall
terminate as of the date of the closing of the merger or asset
sale and any performance-based grant requirements shall be
deemed to have been completely satisfied immediately prior to
such date. In the event that the successor corporation or a
Parent or Subsidiary thereof refuses to assume or substitute for
an Option or SAR, the Optionee shall fully vest in and have the
right to exercise the Option or SAR as to all of the Optioned
Stock, including Shares as to which it would not otherwise be
vested or exercisable and including any performance-based
vesting limitations. If an Option or SAR becomes fully vested
and exercisable in lieu of assumption or substitution in the
event of a merger or sale of assets, the Administrator shall
notify the Optionee in writing or electronically that the Option
or SAR shall be fully exercisable for a period of fifteen
(15) days from the date of such notice, and the Option or
SAR shall terminate upon the expiration of such period. For the
purposes of this paragraph, the Option, SAR or Restricted Stock
Award shall be considered assumed if, following the merger or
sale of assets, the option or right confers the right to
purchase or receive, for each Share of Optioned Stock subject to
the Option, SAR or Restricted Stock Award immediately prior to
the merger or sale of assets, the consideration (whether stock,
cash, or other securities or property) received in the merger or
sale of assets by holders of Stock for each Share held on the
effective date of the transaction (and if holders were offered a
choice of consideration, the type of consideration chosen by the
holders of a majority of the outstanding Shares); provided,
however, that if such consideration received in the merger or
sale of assets is not solely stock of the successor corporation
or its Parent, the Administrator may, with the consent of the
successor corporation, provide for the consideration to be
received upon the exercise of the Option, SAR or Restricted
Stock Award, for each Share of Optioned Stock subject to the
Option, SAR or Restricted Stock Award, to be solely Stock of the
successor corporation or its Parent equal in fair market value
to the per share consideration received by holders of Shares in
the merger or sale of assets.



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(d) Change of Control.
Notwithstanding Section 14(c), in the event of a Change of
Control, the Optionee shall fully vest in and have the right to
exercise his or her Option or SAR as to all of the Optioned
Stock, including Shares as to which it would not otherwise be
vested or exercisable, and any Shares subject to a Restricted
Stock Award shall vest 100%, including as to any
performance-based vesting or grant limitations. If an award
hereunder becomes fully vested and/or exercisable in the event
of a Change of Control, the Administrator shall notify the
Optionee in writing or electronically that the award is fully
vested and/or exercisable.



     
15.     Leaves of
Absence. In the event of a Service Provider’s leave of
absence that is approved by the Company, vesting of Options,
SARs and Restricted Stock Awards shall continue during the first
90 days of such leave, but shall cease thereafter until
such time, as any, if such Service Provider resumes his or her
active duties with the Company or its Parent or Subsidiaries,
unless otherwise determined by the Administrator or as required
by Applicable Laws. In the event of a Service Provider’s
leave of absence that is not approved by the Company, vesting of
Options, SARs and Restricted Stock Awards shall cease
immediately upon the commencement of such leave until such time,
as any, if such Service Provider resumes his or her active
duties with the Company or its Parent or Subsidiaries, unless
otherwise determined by the Administrator or as required by
Applicable Laws.



     
16.     Time of
Granting Options, SARS and Restricted Stock Awards. The date
of grant of an Option, SAR or Restricted Stock Award shall, for
all purposes, be the date on which the Administrator makes the
determination granting such Option, SAR or Restricted Stock
Award, or such other subsequent date as is determined by the
Administrator. Notice of the determination shall be given to
each Service Provider to whom an Option, SAR or Restricted Stock
Award is so granted within a reasonable time after the date of
such grant.



     
17.     Amendment and
Termination of the Plan.



     
(a) Amendment and Termination. The
Board may at any time amend, alter, suspend or terminate the
Plan, provided that the Board may not, without stockholder
approval, (i) amend the Plan to permit the repricing,
including by way of exchange, of any Option, SAR or Restricted
Stock Award, (ii) materially increase the benefits accruing
to any Optionee under the Plan, (iii) materially increase
the number of securities which may be issued under the Plan, or
(iv) materially modify the requirements for participation
in the Plan.



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



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



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18.     Conditions
Upon Issuance of Shares.



     
(a) Legal Compliance. Shares shall
not be issued pursuant to the exercise of an Option or SAR or
the purchase or receipt of Restricted Stock unless the exercise
of such Option or SAR or the purchase or receipt of Restricted
Stock and the issuance and delivery of such Shares shall comply
with Applicable Laws and shall be further subject to the
approval of counsel for the Company with respect to such
compliance.



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



     
19.     Inability to
Obtain Authority. The inability of the Company to obtain
authority from any regulatory body having jurisdiction, which
authority is deemed by the Company’s counsel to be
necessary to the lawful issuance and sale of any Shares
hereunder, 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.



     
20.     Reservation
of Shares. The Company, during the term of this Plan, will
at all times reserve and keep available such number of Shares as
shall be sufficient to satisfy the requirements of the Plan.



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