Exhibit
10.6


 


POORE BROTHERS, INC.


RESTRICTED STOCK AGREEMENT


 


Poore Brothers, Inc. (the “Company”) hereby grants you, STEVEN SKLAR (“Employee”), a grant of restricted stock. The date of this Agreement is August 1, 2005. Subject to the provisions set forth in this Agreement and the provisions of the Company’s 2005 Equity Incentive Plan, a copy of which is attached hereto as Exhibit A (the “Plan”), the principal features of this grant are as follows:
 


	
  NUMBER
  OF SHARES OF RESTRICTED STOCK:

  	
   

  	
  35,353

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  PURCHASE PRICE PER
  SHARE:

  	
   

  	
  $

  	
  0.01

  	
   

  
					



 


	
  SCHEDULED VESTING DATES

  	
   

  	
  NUMBER OF SHARES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  August 1, 2006

  	
   

  	
  11,784

  	
   

  
	
  August 1, 2007

  	
   

  	
  11,784

  	
   

  
	
  August 1, 2008

  	
   

  	
  11,785

  	
   

  



 


Employee
understands that under Section 83 of the Internal Revenue Code of 1986, as
amended (the “Code”), as the Shares vest, the fair value of such Shares will be
reportable as ordinary income at that time. 
Employee further understands that instead of being taxed when and as the
Shares vest, Employee may elect to be taxed as of the purchase date of the
Shares with respect to the fair value of all Shares on such date less the
purchase price paid for the Shares.  Such
election may only be made under Section 83(b) of the Code with the I.R.S.
within thirty (30) days after the Grant Date. 
The form for making this election may be provided by the Company for
Employee’s convenience only.  Employee
understands that failure to make this filing within the thirty (30) day period
will result in the recognition of ordinary income as the Shares vest.  EMPLOYEE ACKNOWLEDGES THAT IT IS EMPLOYEE’S
SOLE RESPONSIBILITY, AND NOT THE COMPANY’S, TO FILE A TIMELY ELECTION UNDER
SECTION 83(b), EVEN IF EMPLOYEE REQUESTS THE COMPANY OR ITS REPRESENTATIVES TO
MAKE THIS FILING ON EMPLOYEE’S BEHALF. 
EMPLOYEE IS RELYING SOLELY ON EMPLOYEE’S ADVISORS WITH RESPECT TO THE
DECISION AS TO WHETHER OR NOT TO FILE AN 83(b) ELECTION.


 


Your
signature below indicates your agreement and understanding that this grant is
subject to all of the terms and conditions contained in this Agreement and the
Plan attached hereto as Exhibit A, including without limitation provisions
relating to vesting and forfeiture of shares covered by this grant.  PLEASE BE SURE TO READ THIS AGREEMENT AND THE
PLAN IN THEIR ENTIRETY.


 


	POORE BROTHERS, INC.
	EMPLOYEE

	 
	 

	By:
	/s/ Rick Finkbeiner
	 
	/s/ Steven Sklar
	 

	Print Name:
	Rick Finkbeiner
	 
	Print Name:
	Steven Sklar
	 

	Print Title:
	SVP and CFO
	 
	Date:
	8/30/05
	 

	Date:
	8/30/05
	 
	 

										



 















 


TERMS AND CONDITIONS


 


1.             Incorporation of the Plan.  The
Plan attached hereto is incorporated by reference into this Agreement, and any
capitalized term not defined in this Agreement shall have the meaning ascribed
to such term under the Plan.  To the
extent that any provisions of this Agreement violates or is inconsistent with
the Plan, the Plan shall govern and any inconsistent provision in this
Agreement shall be of no force or effect.


 


2.             Grant.  The Company hereby grants to
the Employee the right to purchase 35,353 shares (the “Shares”) of the Company’s
Common Stock, $0.01 par value per share (the “Common Stock”) at a purchase
price of $0.01 per Share, subject to all of the terms and conditions in this
Agreement. The Employee has until August 31, 2005 to make such purchase after
which date he will have no further right to purchase the Shares under this
Agreement.


 


3.             Shares Held in Escrow. Unless and until the Shares have vested in
the manner set forth in paragraphs 4 or 5, such Shares will be issued in the
name of the Employee and held by the Secretary of the Company as escrow agent
(the “Escrow Agent”), and cannot be sold, transferred or otherwise disposed of,
nor pledged or otherwise hypothecated. The Company may instruct the transfer
agent for its Common Stock to place a legend on the certificates representing
the Shares or otherwise note its records as to the restrictions on transfer set
forth in this Agreement. The certificate or certificates representing such
Shares will not be delivered by the Escrow Agent to the Employee unless and
until the Shares have vested and all other terms and conditions in this
Agreement have been satisfied.


 


4.             Vesting Schedule. Except as provided in Section 5, and
subject to Section 6, 11,784 Shares subject to this grant will vest on August 1,
2006, 11,784 Shares subject to this grant will vest on August 1, 2007 and 11,785
Shares subject to this grant will vest on August 1, 2008; provided, however,
that vesting will occur only if the Company employs the Employee through the
applicable vesting date.


 


5.             Board Discretion. The Board, in its discretion, may accelerate
the vesting of the balance, or some lesser portion of the balance, of the
unvested Shares at any time. If so accelerated, such Shares will be considered
as having vested as of the date specified by the Board.


 


6.             Forfeiture.  Notwithstanding any contrary
provision of this Agreement, the balance of the Shares that have not vested
pursuant to paragraphs 4 or 5 will thereupon be forfeited and automatically
transferred to and reacquired by the Company at no cost to the Company upon the
date the Employee’s employment with the Company terminates for any reason. The
Employee will not be entitled to a refund of the price paid for any Shares
returned to the Company pursuant to this paragraph 6. The Employee hereby
appoints the Escrow Agent with full power of substitution, as the Employee’s
true and lawful attorney-in-fact with irrevocable power and authority in the
name and on behalf of the Employee to take any action and execute all documents
and instruments, including, without limitation, stock powers which may be
necessary to transfer the certificate or certificates evidencing such unvested
Shares to the Company upon such termination.


 


7.             Death of Employee. Any distribution or delivery to be made to the
Employee under this Agreement will, if the Employee is then deceased, be made
to the Employee’s designated beneficiary, or if no beneficiary survives the Employee,
to the administrator or executor of the Employee’s estate. Any such transferee
must furnish the Company with (a) written notice of his or her status as
transferee, and (b) evidence satisfactory to the Company to establish the validity
of the transfer and compliance with any laws or regulations pertaining to said
transfer.


 


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8.             Withholding.  Notwithstanding any contrary
provision of this Agreement, no certificate representing the Shares may be
released from the escrow established pursuant to paragraph 3 unless and until
satisfactory arrangements (as determined by the Board) will have been made by
the Employee with respect to the payment of income and employment taxes which
the Company determines must be withheld with respect to such Shares.


 


9.             Rights as Shareholder.  Employee shall have all rights of a
shareholder prior to the vesting of the Shares, including the right to vote the
Shares and receive all dividends and other distributions paid or made with
respect thereto.


 


10.           No Effect on Employment.  Only
the terms of any written employment agreement between the Company and Employee’s
(and not this Agreement) shall govern the terms of Employee’s employment, and
nothing in this Agreement shall constitute any assurance of employment of
Employee by the Company for any period, including any period necessary for the
Shares to vest.  The Company or the
Affiliate will have the right, which is hereby expressly reserved, to terminate
or change the terms of the employment of the Employee at any time for any
reason whatsoever, with or without good cause, subject to the terms of any such
written employment agreement..


 


11.           Entire Agreement; Amendment.  This Agreement
embodies the entire understanding and agreement of the parties in relation to
the subject matter hereof, and no promise, condition, representation or
warranty, expressed or implied, not herein stated, shall bind either party
hereto.  This Agreement may be amended
only by a writing executed by the Company and Employee that specifically states
that it is amending this Agreement.  Notwithstanding the foregoing, this
Agreement may be amended solely by the Board by a writing which specifically
states that it is amending this Agreement, so long as a copy of such amendment
is delivered to Employee, and provided that no such amendment adversely affects
the rights of Employee hereunder without Employee’s written consent. 
Without limiting the foregoing, the Board reserves the right to change, by
written notice to Employee, the provisions of the Shares or this Agreement in
any way it may deem necessary or advisable to carry out the purpose of the
grant as a result of any change in applicable laws or regulations or any future
law, regulation, ruling or judicial decisions, provided that any such change
shall be applicable only to the Shares which are than subject to restrictions
as provided herein.


 


12.           Severability.  If all or any part of this Agreement
is declared by any court or government authority to be unlawful or invalid,
such unlawfulness or invalidity shall not invalidate any portion of this
Agreement not declared to be unlawful or invalid.  Any Section of this Agreement
so declared to be unlawful or invalid shall, if possible, be construed in a
manner that will give effect to the terms of such Section to the fullest extent
possible while remaining lawful and valid.


 


13.           Binding Effect and Benefit.  This Agreement shall be binding upon
and, subject to the conditions hereof, inure to the benefit of the Company, its
successors and assigns, and Employee and Employee’s successors and assigns.


 


14.           Governing Law.  This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Arizona without
regard to principles of conflicts of law.


 


3





















 


Form of 83(b) Election


 


Election to Include Value of Restricted Property in Gross Income

in Year of Transfer under Code § 83(b)


 


The
undersigned hereby makes an election pursuant to § 83(b) of the Internal
Revenue Code (the “Code”) with respect to the property described below and
supplies the following information in accordance with the regulations
promulgated thereunder:


 


1.             The name, address and taxpayer
identification number of the undersigned are:








Social Security No.                                   


 


2.             Description of property with
respect to which the election is being made:


 


                            
(                )
restricted shares of                           
Stock (the “Property”), $          
par value, of Poore Brothers, Inc. (the “Company”).


 


3.             The date on which property was
transferred is                                     .


 


The
taxable year to which this election relates is calendar year 20    .


 


4.             The nature of the restriction(s)
to which the property is subject is:


 


The
Property is subject to certain restrictions set forth in that certain
Restricted Stock Award Agreement dated as of                     .


 


5.             Fair market value:


 


The
fair market value at time of transfer (determined without regard to any
restrictions other than restrictions which by their terms will never lapse) of
the property with respect to which this election is being made is $                
($             per
share).


 


6.             Amount paid for property:


 


Taxpayer
paid a total of $                  
($0.01 per share) for the Property.


 


7.             Furnishing statement to employer:


 


A
copy of this statement has been furnished to the Company.


 


	
  DATED:

  	
   

  	
   

  	
  Signature:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Print Name:

  



 


4





















 


Exhibit A


 


POORE BROTHERS, INC.

2005 EQUITY INCENTIVE PLAN


 


ARTICLE
1:  PURPOSE


 


1.1           General.  The purpose of the Poore Brothers, Inc. 2005 Equity Incentive Plan (the “Plan”) is to promote the
interests of Poore Brothers, Inc. (the “Company”), by enabling the Company to
motivate, attract, and retain the services of persons upon whose judgment,
efforts, and contributions the success of the Company’s business depends.  The plan is further intended to align the
personal interests of such persons with the interests of stockholders of the
Company through equity participation in the Company’s growth and success.  Capitalized terms not otherwise defined in
the text are defined in Article 16.


 


ARTICLE
2: EFFECTIVE DATE; TERM


 


2.1           Effective
Date.  The effective date of the Plan
is May 17, 2005 (the “Effective Date”), which is the date as of which the Plan
was approved by the stockholders of the Company.


 


2.2           Term.  This Plan shall continue in effect until
terminated in accordance with Article 14, except that no Awards shall be
granted after the tenth (10th) anniversary of the Effective Date.


 


ARTICLE
3: SHARES SUBJECT TO THE PLAN


 


3.1           Number
of Shares.  The aggregate number of
shares of Stock (the “Shares”) reserved and available for Awards or which may
be used to provide a basis of measurement or valuation of an Award (such as an
SAR, Restricted Stock Award or Performance Unit Award) shall be (a) 410,518,
which is the number of shares of Stock reserved under the Company’s 1995 Stock
Option Plan (the “Prior Plan”) that were not subject to outstanding awards
under the Prior Plan on the Effective Date and (b) the number of shares of
Stock that prior to issuance are released from, or reacquired by the Company
pursuant to, the terms of awards outstanding under the Prior Plan.


 


3.2           Re-use
of Shares.  Shares that: (a) are
subject to issuance upon exercise of an Option but cease to be subject to such
Option for any reason other than exercise of such Option; (b) are subject to an
Award granted hereunder but prior to issuance are released from, or reacquired
by the Company pursuant to, the terms of such Award; or (c) are subject to an
Award that otherwise terminates without Shares being issued; will again be
available for grant and issuance in connection with future Awards under this
Plan.  In addition, Shares that are
withheld by the Company and not issued in order to pay for Shares purchased
pursuant to an Award or any withholding taxes due upon issuance of an Award or
Shares thereunder shall not be deemed to have been delivered for purposes of
determining the maximum number of Shares available for


 


5





















 


delivery under the Plan and such shares shall again be available for
the grant of Awards under the Plan, other than an Award that includes Incentive
Stock Options.


 


3.3           Maximum
Number of Shares for Certain Awards. 
No more than 100% of the Shares shall be issued pursuant to Incentive
Stock Options, and no more than 100% of the Shares shall be issued pursuant to
Non-Qualified Stock Options, Restricted Stock Awards, SARs, Performance Units
and Stock Reference Awards.  A person may
be granted more than one Award under this Plan.


 


3.4           Stock
Distributed.  Any Stock distributed
pursuant to an Award may consist, in whole or in part, of authorized and
unissued Stock, treasury Stock, or Stock purchased on the open market.  At all times the Company shall reserve and
keep available a sufficient number of Shares as shall be required to satisfy
the requirements of all outstanding Awards granted under this Plan.


 


ARTICLE
4: ELIGIBILITY


 


4.1           General.  Awards may be granted only to an individual
who is an employee (including an employee who also is a director or officer),
officer, director, consultant, independent contractor, or adviser of the
Company or a Subsidiary, as determined by the Board; provided
such consultants, contractors and advisors render bona fide services not
in connection with the offer and sale of securities in a capital-raising
transaction.


 


4.2           Individual
Award Limits.  In no event shall any
Participant receive an Award or Awards during any calendar year covering an
aggregate of more than 250,000 Shares.


 


4.3           Description
of Criteria for Performance-Based Awards to Named Executive Officers.  In determining performance goals applicable
to any Award granted to a Named Executive Officer, one or more of the following
business criteria shall be used: (a) cash
flow; (b) earnings per share, including earnings per share as adjusted (i) to
exclude the impact of any (1) significant acquisitions or dispositions of
businesses by the Company, (2) one-time, non-operating charges and (3)
accounting changes (including but not limited to any accounting changes that
require the expensing of stock options and any accounting changes the Company
adopts early); and (ii) for any stock split, stock dividend or other
recapitalization; (c) earnings before interest, taxes, and amortization; (d)
return on equity; (e) total shareholder return; (f) share price performance;
(g) return on capital; (h) return on assets or net assets; (i) revenue; (j)
income; (k) operating income; (l) operating profit; (m) profit margin; (n)
return on operating revenue; (o) return on invested capital; (p) market price;
(q) brand recognition/acceptance; (r) customer satisfaction; (s) productivity;
or (t) sales growth and volume.


 


ARTICLE
5: ADMINISTRATION


 


5.1           Board.  The Plan shall be administered by the Board
or a Committee appointed by the Board to administer the Plan at any time or
from time to time.  To the extent
required for Awards to qualify for the exemptions available under Rule 16b-3
under the Exchange Act, or successor legislation, members of the Committee
shall be “non-employee” directors within the meaning of Rule 16b-3.  To the extent required for compensation
realized from Awards to be deductible by the Company pursuant to
Section 162(m) of the Code, members of the Committee


 


6





















 


shall be “outside directors” within the meaning of such Section.  Once appointed, the Committee shall continue
to serve until otherwise directed by the Board. 
From time to time, the Board may increase the size of the Committee and
appoint additional members thereof, remove members (with or without cause),
appoint new members in substitution therefor, and fill vacancies however
caused.


 


5.2           Authority
of Board.  The Board has the
exclusive power, authority, and discretion to:


 


(a)           Designate
Participants;


 


(b)           Determine
the type or types of Awards to be granted to each Participant;


 


(c)           Determine
the number of Awards to be granted and the number of shares of Stock subject to
an Award;


 


(d)           Prescribe
the form of each Award Agreement, which need not be identical for each
Participant;


 


(e)           Determine
the terms and conditions of any Award granted under the Plan, including but not
limited to, the exercise price, grant price, or purchase price, any
restrictions or limitations on the Award, any schedule for lapse of forfeiture
restrictions or restrictions on the exercisability of an Award and
accelerations or waivers thereof, any performance criteria, and any
modification or amendment of any Award previously granted, based in each case
on such considerations as the Board in its sole discretion determines;


 


(f)            Determine
whether, to what extent, and under what circumstances an Award may be settled
in, or the exercise price of an Award may be paid in, cash, Stock, other
Awards, or other property, or an Award may be canceled, forfeited, or
surrendered;


 


(g)           Determine
whether, to what extent, and under what circumstances cash, Stock, other
Awards, other property, and other amounts payable with respect to an Award
shall be deferred either automatically or at the election of the holder thereof
or of the Board;


 


(h)           Decide
all other matters that must be determined in connection with an Award;


 


(i)            Establish,
adopt, or revise any rules and regulations as it may deem necessary or
advisable to administer the Plan;


 


(j)            Interpret
the Plan, any Award, and any Award Agreement in its discretion; and


 


(k)           Make
all other decisions and determinations that may be required under the Plan or
as the Board deems necessary or advisable to administer the Plan.


 


7





















 


5.3           Decisions Binding.  All
decisions, interpretations, and determinations by the Board with respect to the
Plan, any Award, and any Award Agreement are final, binding, and conclusive on
all parties.


 


5.4           Repricing of Stock Options and SARs.  In
no event shall any outstanding Option or SAR be repriced to a lower exercise or
grant price per Share at any time during the term of such Option or SAR without
the prior affirmative vote of holders of a majority of the shares of Common
Stock of the Company present at a stockholders meeting in person or represented
by proxy and entitled to vote thereon.


 


ARTICLE
6: STOCK OPTIONS


 


6.1           General.  The Board is authorized to grant Options to
Participants on the following terms and conditions:


 


(a)           Exercise
Price.  The exercise price per share
of Stock under an Option other than an Incentive Stock Option shall be
determined by the Board, provided that the exercise price for any such Option
may not be less than 85% of the Fair Market Value as of the date of the grant.


 


(b)           Payment.  Payment for Stock issued upon exercise of an
Option shall be made in accordance with Article 11 of the Plan.


 


(c)           Time
and Conditions of Exercise. The Board shall determine the time or times at
which an Option may be exercised in whole or in part, provided that no Option
may be exercisable prior to six months following the date of the grant of such
Option if and to the extent such limitation is necessary or required under
Rule 16b-3 or successor legislation under the Exchange Act.


 


(d)           Evidence
of Option.  All Options shall be
evidenced by a written Award Agreement between the Company and the
Participant.  The Award Agreement shall
include such provisions as may be specified by the Board.


 


6.2           Incentive
Stock Options.  The terms of any
Incentive Stock Options granted under the Plan must comply with the following
additional rules, and, to the extent that an Incentive Stock Option fails to
comply with such rules, it will be treated as a Non Qualified Stock Option:


 


(a)           Employees
Only.  Incentive Stock Options may
only be granted to employees (including officers and directors who are also
employees) of the Company or a Subsidiary.


 


(b)           Exercise
Price.  The exercise price per share
of Stock shall be set by the Board, provided that the exercise price for any
Incentive Stock Option may not be less than the Fair Market Value as of the
date of the grant.


 


(c)           Exercise.  In no event may any Incentive Stock Option be
exercisable for more than ten years from the date of its grant.


 


8





















 


(d)           Individual
Dollar Limitation.  The aggregate
Fair Market Value (determined as of the time an Award is made) of all shares of
Stock with respect to which Incentive Stock Options are first exercisable by a
Participant in any calendar year may not exceed $100,000.00.


 


(e)           Ten
Percent Owners.  An Incentive Stock
Option may be granted to a Ten Percent Owner, provided that at the time such
option is granted the exercise price per share of Stock shall not be less than
110% of the Fair Market Value and such option by its terms is not exercisable
after the expiration of five (5) years from the date of its grant.


 


(f)            Expiration
of Incentive Stock Options.  No Award
of an Incentive Stock Option may be made pursuant to this Plan after the
expiration of ten (10) years from the Effective Date.


 


(g)           Right
to Exercise.  During a Participant’s
lifetime, an Incentive Stock Option may be exercised only by the Participant.


 


(h)           Tax-Qualified
ISOP Options.  All provisions of the
Plan relating to Incentive Stock Options shall be administered and interpreted
in accordance, and so as to comply, with the provisions of Section 422 of the
Code.


 


6.3           Termination
of Participant.  Notwithstanding the
exercise periods set forth in any Award Agreement, Options shall be subject to
the following:


 


(a)           An
Option shall lapse ten years after it is granted, unless an earlier time is set
in the Award Agreement.


 


(b)           If
a Participant’s employment is terminated due to Retirement or for any other
reason other than for Cause, such Participant may exercise his or her Incentive
Stock Options only to the extent that such Incentive Stock Options would have
been exercisable on the Termination Date; provided, that such exercise is made
prior to the earlier of the date sixty (60) days after the Termination Date and
the expiration date of the Option set forth in the Award Agreement.  If a Participant’s employment is terminated
due to Cause, the Participant’s Incentive Stock Options shall automatically
lapse and not be exercisable by the Participant, whether or not such Options
were vested.


 


(c)           If
a Participant’s employment, contractual or other relationship with the Company
is terminated due to Retirement or for any other reason other than for Cause,
such Participant may exercise his or her Non-Qualified Stock Options, only to
the extent that such Options would have been exercisable on the Termination
Date; provided, that such exercise is made prior to the earlier of the date
sixty (60) days after the Termination Date (or such other time period as set
forth in the Award Agreement) and the expiration date of the Option set forth
in the Award Agreement.  If a Participant’s
employment, contractual or other relationship is terminated due to Cause, the
Participant’s Non-Qualified Stock Options shall automatically lapse and not be
exercisable by the Participant, whether or not such Options were vested.


 


(d)           If
a Participant dies or is terminated due to Disability, then the Participant’s
Options may be exercised, only to the extent that such Options would have been


 


9





















 


exercisable on the date of the Participant’s death or termination due
to Disability; provided that such exercise is made prior to the earlier of
(i) the six-month anniversary of such Participant’s death or termination
due to Disability, as the case may be or (ii) the expiration date of the
Option set forth in the Award Agreement. 
Upon the Participant’s death or termination due to Disability, any
exercisable Options may be exercised by the Participant’s legal representative
or representatives.


 


ARTICLE
7: STOCK APPRECIATION RIGHTS


 


7.1           Grant
of SARs.  The Board is authorized to
grant SARs to Participants on the following terms and conditions:


 


(a)           Right
to Payment.  Upon the exercise of a
Stock Appreciation Right, the Participant to whom it is granted has the right
to receive the excess, if any, of:


 


(1)           The
Fair Market Value of one share of Stock on the date of exercise; over


 


(2)           The
grant price of the SAR as determined by the Board, which shall not be less than
85% of the Fair Market Value of one share of Stock on the date of grant in the
case of any SAR.


 


(b)           Other
Terms.  All awards of Stock
Appreciation Rights shall be evidenced by an Award Agreement.  The terms, methods of exercise, methods of
settlement, form of consideration payable in settlement, and any other terms
and conditions of any Stock Appreciation Right shall be determined by the Board
at the time of the grant of the Award and shall be reflected in the Award Agreement.  A Stock Appreciation Right may be granted in
combination with, in addition to, or completely independent of an Option or any
other Award under the Plan.


 


ARTICLE
8: PERFORMANCE UNITS


 


8.1           Grant
of Performance Units.  The Board is
authorized to grant Performance Units to Participants on such terms and
conditions as may be selected by the Board. 
The Board shall have the complete discretion to determine the number of
Performance Units granted to each Participant. 
All Awards of Performance Units shall be evidenced by an Award
Agreement.


 


8.2           Right
Under Performance Units.  A grant of
Performance Units gives the Participant rights, valued as determined by the
Board, and payable to, or exercisable by, the Participant to whom the
Performance Units are granted, in whole or in part, as the Board shall
establish at grant or thereafter.  The
Board shall set performance goals and other terms or conditions to payment of
the Performance Units in its discretion which, depending on the extent to which
they are met, will determine the amount and value of cash, Stock, Awards,
and/or other property that will be paid to the Participant.


 


8.3           Other
Terms.  Performance Units may be
payable in cash, Stock, or other Awards or property, or any combination
thereof, and have such other terms and conditions as determined by the Board
and reflected in the Award Agreement.


 


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ARTICLE
9: RESTRICTED STOCK AWARDS


 


9.1           Restricted
Stock Awards.  The Board is
authorized to make Awards of Restricted Stock to Participants either in the
form of a grant of Stock or an offer to sell Stock to a Participant, in such
amounts and subject to such terms, conditions and restrictions as may be
selected by the Board.  All Awards of
Restricted Stock shall be evidenced by an Award Agreement.


 


9.2           Issuance
and Restrictions.  Restricted Stock
shall be subject to such restrictions on transferability and other
restrictions, including without limitation “vesting” or forfeiture
restrictions, as the Board may impose. 
These restrictions may lapse separately or in combination at such times,
under such circumstances, in such installments, or otherwise, as the Board
determines at the time of the grant of the Award or thereafter.


 


9.3           Forfeiture.  Except as otherwise determined by the Board
at the time of the grant of the Award or thereafter, upon termination of
employment during the applicable restriction period, Restricted Stock that is
at that time subject to restrictions shall be forfeited and reacquired by the
Company; provided, however, that the Board may provide in any Award Agreement
that restrictions or forfeiture conditions relating to Restricted Stock will be
waived in whole or in part in specified circumstances, and the Board may in
other cases waive in whole or in part restrictions or forfeiture conditions
relating to Restricted Stock.


 


9.4           Payment
and Certificates for Restricted Stock. 
If a Restricted Stock Award provides for the purchase of Stock by a
Participant, payment shall be made pursuant to Article 11 of the
Plan.  Restricted Stock granted under the
Plan may be evidenced in such manner as the Board shall determine.  To the extent that an Award is granted in the
form of newly issued Restricted Stock, the Award recipient, as a condition to
the grant of such an Award, shall be required to pay to the Company in cash,
cash equivalents or other legal consideration an amount equal to the par value
of such Restricted Stock.  To the extent
that an Award is granted in the form of Restricted Stock from the Company’s
treasury, no such cash consideration shall be required of the Award
recipients.  If certificates representing
shares of Restricted Stock are registered in the name of the Participant,
certificates must bear an appropriate legend referring to the terms,
conditions, and restrictions applicable to such Restricted Stock, and the
Company shall retain physical possession of the certificate until such time as
all applicable restrictions lapse.


 


9.5           Restricted
Stock Units.  Restricted Stock Awards
may be granted as Awards of Restricted Stock Units.


 


(a)           A
Restricted Stock Unit means a contractual right granted to a Participant under
this Plan to receive a Share (or cash equivalent) which is subject to
restrictions of this Plan and the applicable Award Agreement.  A Restricted Stock Unit shall entitle the
Participant to receive one Share at such future time and upon such terms as
specified by the Board in the Award Agreement evidencing such Award. Restricted
Stock Units issued under the Plan may have restrictions which lapse based upon
the service of a Participant, or based upon other criteria that the Board may
determine appropriate. The Board may require a cash payment from the
Participant in exchange for the grant of Restricted Stock Units or may grant Restricted
Stock Units without the requirement of a cash payment. The Board may grant
Restricted Stock Units


 


11





















 


that vest on the attainment of performance goals determined by the
Board based upon one or more of the performance criteria listed in Section 4.3,
and must have the attainment of such performance goals certified in writing by
the Board.


 


(b)           The
Board shall establish the vesting schedule applicable to Restricted Stock Units
and shall specify the times, vesting and performance goal requirements. Until
the end of the period(s) of time specified in the vesting schedule and/or the
satisfaction of any performance criteria set forth in the Award Agreement, the
Restricted Stock Units subject to such Award Agreement shall remain subject to
forfeiture.


 


(c)           If the Participant’s employment (or in the
case of a non-employee, such Participant’s service) with the Company terminates
before the Restricted Stock Awards vest, the Participant shall forfeit all
unvested Restricted Stock Awards, unless the termination is a result of such
Participant’s death, Disability or Retirement (a “Qualifying Event”) or the
Board determines that the Participant’s unvested Restricted Stock Awards shall
vest as of the Termination Date; provided, however, the Board may grant
Restricted Stock Awards precluding such accelerated vesting in order to qualify
the Restricted Stock Awards for the performance-based exception from the tax
deductibility limitations of Code Section162(m).


 


(d)           In
the event a Qualifying Event occurs before the date or dates on which
Restricted Stock Units vest, the expiration of the applicable restrictions
(other than restrictions based on performance criteria listed in Section 4.3)
shall be accelerated and the Participant shall be entitled to receive the
Shares free of all such restrictions.  In
the case of Restricted Stock Units which are based on performance criteria set
forth in Section 4.3, then as of the date on which such Qualifying Event
occurs, the Participant shall be entitled to receive a number of Shares that is
determined by measuring the selected performance criteria from the Company’s
most recent publicly available quarterly results that are available as of the
date the Qualifying Event occurs; provided, however, the Board may grant
Restricted Stock Units precluding such partial awards when a Qualifying Event
occurs in order to qualify the Restricted Stock Units for the performance-based exception from the tax
deductibility limitations of Code Section162(m). All other Shares
subject to such Restricted Stock Units shall be forfeited and returned to the
Company as of the date on which such Qualifying Event occurs.


 


(e)           Notwithstanding
anything to the contrary in this Plan, the Board shall have the power to permit,
in its sole discretion, an acceleration of the applicable restrictions or the
applicable period of such restrictions with respect to any part or all of the
Restricted Stock Units awarded to a Participant; provided, however, the Board
may grant Restricted Stock Units precluding such accelerated vesting on order
to qualify the Restricted Stock Units for the performance-based exception from the tax deductibility limitations of
Code Section162(m).


 


(f)            Each
grant of Restricted Stock Unit(s) shall be evidenced by an Award Agreement that
shall specify the terms, conditions and restrictions regarding the Participant’s
right to receive Share(s) in the future, and shall incorporate such other terms
and conditions as the Board, acting in its sole discretion, deems consistent
with the terms of this Plan. The Board shall have sole discretion to modify the
terms and provisions of Restricted Stock Unit(s) in accordance with Article 14
of this Plan.


 


12





















 


(g)           Except
as otherwise provided in a Participant’s Award Agreement, no Restricted Stock
Unit granted under the Plan may be sold, transferred, pledged, assigned or
otherwise alienated or hypothecated by the Participant, except upon the death
of the Participant by will or by the laws of descent and distribution.


 


(h)           Except
as otherwise provided in a Participant’s Award Agreement, holders of Restricted
Stock Units shall not be entitled to vote or to receive dividends until they
become owners of the Shares pursuant to their Restricted Stock Units.


 


ARTICLE
10: STOCK-REFERENCE AWARDS


 


10.1         Grant
of Stock-Reference Awards.  The Board
is authorized, subject to limitations under applicable law, to grant to
Participants such other Awards that are payable in, valued in whole or in part
by reference to, or otherwise based on or related to shares of Stock, as deemed
by the Board to be consistent with the purposes of the Plan, including without
limitation shares of Stock awarded purely as a “bonus” and not subject to any
restrictions or conditions, other rights convertible or exchangeable into
shares of Stock, and awards valued by reference to book value of shares of
Stock or the value of securities of or the performance of specified divisions
or Subsidiaries of the Company.  The
Board shall determine the terms and conditions of such Awards.


 


ARTICLE
11: PAYMENT FOR STOCK PURCHASES;

WITHHOLDING TAXES; RELOAD OPTIONS


 


11.1         Payment.  Payment for Stock purchased pursuant to the
Plan may be made in cash (by check) or, where expressly approved for the
Participant by the Board in an Award Agreement or otherwise in writing and
where permitted by law:


 


(a)           by
cancellation of indebtedness of the Company to the Participant;


 


(b)           by
surrender of (or attestation to the ownership of) Stock valued at Fair Market
Value on the date new Stock is purchased under the Plan; provided, however,
that such surrender or attestation shall not be permitted if such action would
cause the Company to recognize compensation expense (or additional compensation
expense) with respect to the Award for financial reporting purposes;


 


(c)           by
waiver of compensation due or accrued to Participant for services rendered;


 


(d)           by
tender of property acceptable to the Board;


 


(e)           with
respect only to purchases upon exercise of an Option, and provided that a
public market for the Company’s stock then exists:


 


(1)           through
a “same day sale” commitment from Participant and a broker-dealer that is a
member of the National Association of Securities Dealers (a “NASD Dealer”)
whereby Participant irrevocably elects to exercise the Option and to sell a
portion of the Stock so purchased to pay for the exercise price, and


 


13





















 


whereby the NASD Dealer
irrevocably commits upon receipt of such Stock to forward the exercise price
directly to the Company;


 


(2)           through
a “margin” commitment from Participant and a NASD Dealer whereby Participant
irrevocably elects to exercise the Option and to pledge the Stock so purchased
to the NASD Dealer in a margin account as security for a loan from the NASD
Dealer in the amount of the exercise price, and whereby the NASD Dealer
irrevocably commits upon receipt of such Stock to forward the exercise price
directly to the Company; or


 


(3)           through
any other “cashless exercise” procedure approved by the Board; or


 


(f)            by
any combination of the foregoing, or any other method of payment acceptable to
the Board in its sole discretion.


 


11.2         Loans.  To the extent permitted under applicable law
and the rules and regulations of any listing organization for the Stock, the
Board may, in its discretion, help the Participant pay for Shares purchased
under the Plan by authorizing (a) a guarantee by the Company of a third-party
loan to the Participant, or (b) payment of the purchase price of part or all of
the Shares by tender of a full recourse promissory note having such terms as
may be approved by the Board and bearing interest at a rate at least sufficient
to avoid imputation of income under Section 183 and 1274 of the Code; provided, however, that Participants who are not employees
or directors of the Company will not be entitled to purchase Shares with a
promissory note unless the note is adequately secured by collateral other than
the Shares; provided, further, that the portion of
the purchase price equal to the par value of the Shares, if any, must be paid
in cash.


 


11.3         Tax
Withholding.  The Company or any
Subsidiary shall have the authority and the right to deduct or withhold, or
require a Participant to remit to the Company, an amount sufficient to satisfy
federal, state, and local taxes (including the Participant’s FICA obligation)
required by law to be withheld with respect to any taxable event arising as a
result of this Plan.  Whenever, under the
Plan, payments in satisfaction of Awards are to be made in cash, such payment
shall be net of an amount sufficient to satisfy federal, state, and local
withholding tax requirements.  With
respect to withholding required upon any taxable event relating to the issuance
of Stock under the Plan, Participants may elect (the “Election”), on or prior
to the date of such taxable event, to satisfy the withholding requirement, in
whole or in part, by having the Company or any Subsidiary withhold shares of
Stock having a Fair Market Value on the date of withholding equal to the amount
to be withheld for tax purposes.  The
Board may disapprove any Election or may suspend or terminate the right to make
Elections.  An Election is
irrevocable.  The Board may, at the time
any Award is granted, require that any and all applicable tax withholding
requirements be satisfied by the withholding of shares of Stock as set forth
above.


 


11.4         Reload
Options.  Award Agreements may
contain a provision pursuant to which a Participant who pays all or a portion
of the exercise price of an Option or the tax required to be withheld pursuant
to an exercise of an Option by surrendering shares of Stock pursuant to
Sections 11.1 or 11.3, respectively, shall be automatically granted an
Option for the purchase of Stock equal to the number of shares surrendered (a “Reload
Option”).  The grant of the Reload


 


14





















 


Option shall be effective on the date the Participant surrenders the
shares of Stock in respect of which the Reload Option is granted (the “Reload
Date”).  The Reload Option shall have an
exercise price equal to the Fair Market Value of the Stock on the Reload Date,
and shall have a term which is no longer, and which shall lapse no later, than
the original term of the underlying option. 
If stock otherwise available under an Incentive Stock Option is withheld
pursuant to Section 11.3, any Reload Option granted in connection with the
withholding shall be treated as a new Incentive Stock Option, subject to the
rules set forth in Section 6.2.


 


ARTICLE
12: PROVISIONS APPLICABLE TO AWARDS


 


12.1         Stand-Alone,
Tandem, and Substitute Awards. 
Awards granted under the Plan may, in the discretion of the Board, be
granted either alone or in addition to, in tandem with, or in substitution for,
any other Award granted under the Plan. 
Awards granted in addition to or in tandem with other Awards may be
granted either at the same time as or at a different time from the grant of
such other Awards.


 


12.2         Modification
or Assumption of Awards.  Within the
limitations of the Plan, the Board may modify, extend or assume outstanding
Awards or may accept the cancellation of outstanding Awards (whether granted by
the Company or by another issuer) in return for the grant of new Awards for the
same or a different number of shares and at the same or a different exercise
price.  The foregoing notwithstanding, no
modification of an Award shall, without the consent of the Participant, alter
or impair his or her rights or obligations under such Award.


 


12.3         Exchange
Provisions.  The Board may at any
time offer to exchange or buy out any previously granted Award for a payment in
cash, Stock, or another Award, based on the terms and conditions the Board
determines and communicates to the Participant at the time the offer is made.


 


12.4         Escrow;
Pledge of Shares.  To enforce any
restrictions on a Participant’s Shares, the Board may require the Participant
to deposit all certificates representing Shares, together with stock powers or
other instruments of transfer approved by the Board, appropriately endorsed in
blank, with the Company or an agent designated by the Company to hold in escrow
until such restrictions have lapsed or terminated, and the Board may cause a
legend or legends referencing such restrictions to be placed on the
certificates.  Any Participant who is
permitted to execute a promissory note as partial or full consideration for the
purchase of Shares under this Plan will be required to pledge and deposit with
the Company all or part of the Shares so purchased as collateral to secure the
payment of Participant’s obligation to the Company under the promissory note; provided, however, that the Board may require or accept
other or additional forms of collateral to secure the payment of such
obligation and, in any event, the Company will have full recourse against the
Participant under the promissory note notwithstanding any pledge of the
Participant’s Shares or other collateral. 
In connection with any pledge of the Shares, Participant will be
required to execute and deliver a written pledge agreement in such form as the
Board will from time to time approve. 
The Shares purchased with the promissory note may be released from the
pledge on a pro rata basis as the promissory
note is paid.


 


12.5         Form
of Payment for Awards.  Subject to
the terms of the Plan and any applicable law or Award Agreement, payments or
transfers to be made by the Company or a Subsidiary on


 


15





















 


the grant or exercise of an Award may be made in such forms as the
Board determines at or after the time of grant, including without limitation,
cash, Stock, other Awards, or other property, or any combination, and may be
made in a single payment or transfer, in installments, or on a deferred basis,
in each case determined in accordance with rules adopted by, and at the
discretion of, the Board.


 


12.6         Limits
on Transfer.  No right or interest of
a Participant in any Award may be pledged, encumbered, or hypothecated to or in
favor of any party other than the Company or a Subsidiary, or shall be subject
to any lien, obligation, or liability of such Participant to any other party
other than the Company or a Subsidiary. 
Except as otherwise provided below, no Award shall be assignable or
transferable by a Participant other than by will or the laws of descent and
distribution or, except in the case of an Incentive Stock Option, pursuant to a
“domestic relations order” as defined in the Code or Title I of the
Employee Retirement Income Security Act, or the rules thereunder.  In the Award Agreement for any Award other
than an Award that includes an Incentive Stock Option, the Board may allow a
Participant to assign or otherwise transfer all or a portion of the rights
represented by the Award to specified individuals or classes of individuals, or
to a trust or other entity benefiting such individuals or classes of
individuals, subject to such restrictions, limitations, or conditions as the
Board deems appropriate.  At the
discretion of the Board, the Company may reserve to itself or its assignees in
any Award (a) a right of first refusal to purchase any Stock which a
Participant may propose to transfer to a third party and/or (b) a right to
repurchase any and all Stock held by a Participant upon the Participant’s
termination of employment or other relationship with the Company or its Parent
or Subsidiary for any reason, including Death or Disability, at a price for
such Stock as determined by the Board.


 


12.7         Market
Standoff.  In connection with any
underwritten public offering by the Company of its equity securities pursuant
to an effective registration statement filed under the Securities Act, a
Participant shall not sell, make any short sale of, loan, hypothecate, pledge,
grant any option for the purchase of, or otherwise dispose or transfer for
value or otherwise agree to engage in any of the foregoing transactions with
respect to, any Stock issued pursuant to an Award granted under the Plan
without the prior written consent of the Company or its underwriters.  Such limitations shall be in effect for a
period of 180 days, or such period of time as may be requested in writing by
the Company and such underwriters.  The
limitations of this subsection shall apply only to the Company’s initial
underwritten public offering registered under the Securities Act that results
in the Stock being traded, or quoted, as applicable, on a national securities
exchange, over the counter on NASDAQ, or through the NASD’s National Market
System.


 


In the event of any stock split, stock dividend, recapitalization,
combination of shares, exchange of shares or other change affecting the Company’s
outstanding Stock effected as a class without the Company’s receipt of
consideration, then any new, substituted or additional securities distributed
with respect to the purchased Stock shall be immediately subject to the
provisions of this subsection, to the same extent the purchased Stock is at
such time covered by such provisions.


 


In order to enforce the
limitations of this subsection, the Company may impose stop-transfer
instructions with respect to the purchased Stock until the end of the
applicable standoff period.


 


16





















 


12.8         Stock
Certificates.  All Stock certificates
delivered under the Plan are subject to any stop-transfer orders and other
restrictions as the Board deems necessary or advisable to comply with federal
or state securities laws, rules, and regulations and the rules of any national
securities exchange or automated quotation system on which the Stock is listed,
quoted, or traded.  The Board may place
legends on any Stock certificate to reference restrictions applicable to the
Stock.


 


ARTICLE
13: CHANGES IN CAPITAL STRUCTURE


 


13.1         General;
Adjustments.  In the event of a
subdivision of the outstanding Stock, a declaration of a dividend payable in
Stock, a declaration of a dividend payable in a form other than Stock in an
amount that has a material effect on the price of the Stock, a combination or
consolidation of the outstanding Stock (by classification or otherwise) into a
lesser number of shares of Stock, a recapitalization, a spin-off or a similar
occurrence, or the assumption and conversion of outstanding grants of a company
acquired by the Company or its Subsidiary, the Board shall make such adjustments
as it, in its sole discretion, deems appropriate in one or more of (a) the
number of shares of Stock available for future Awards under Article 3, (b) the
limitations set forth in Article 3, (c) the number and kind of shares of Stock
covered by each outstanding Award or (d) the exercise price under each
outstanding Option and other Award in the nature of rights that may be
exercised.  Except as provided in this
Article 13, a Participant shall have no rights by reason of any issue by the
Company of stock of any class or securities convertible into stock of any
class, any subdivision or consolidation of shares of stock of any class, the
payment of any stock dividend or any other increase or decrease in the number
of shares of stock of any class.


 


13.2         Dissolution
or Liquidation.  To the extent not
previously exercised, Awards shall terminate immediately prior to the
dissolution or liquidation of the Company.


 


13.3         Reorganizations.  In the event that the Company is a party to a
merger, consolidation or other reorganization, outstanding Awards shall be
subject to the agreement of merger, consolidation or reorganization (“Reorganization
Agreement”), which shall be binding on all Participants.  The Board may cause such Reorganization
Agreement to provide, without limitation and without any Participant’s consent,
for any one or combination of the following:


 


(a)           for
the continuation of outstanding Awards by the Company (if the Company is a
surviving corporation);


 


(b)           for
assumption of outstanding Awards by the surviving corporation or its parent or
subsidiary;


 


(c)           for
the substitution by the surviving corporation or its parent or subsidiary of
its own awards for outstanding Awards;


 


(d)           for
accelerated vesting and/or lapse of restrictions on outstanding Awards;


 


(e)           for
termination in its entirety, without payment of any consideration, of any Award
that is not exercised in accordance with its terms upon or prior to
consummation of


 


17





















 


the transactions contemplated by the Reorganization Agreement within a
time specified by the Board for such exercise, whether or not such Award is
then fully exercisable;


 


(f)            for
termination of any Award consisting of an Option or any other exercisable right
after payment to the Participant of an amount in cash or cash equivalents equal
to (1) the per share Fair Market Value immediately prior to consummation of the
transactions contemplated by the Reorganization Agreement of the Stock subject
to such Award (to the extent then vested), minus (2) the exercise price per
share pursuant to such Award; or


 


(g)           for
termination, without payment of any consideration, of any Award consisting of
an Option or other exercisable right, if the exercise price per share pursuant
to such Award exceeds the Fair Market Value of the Stock immediately prior to
consummation of the transactions contemplated by the Reorganization Agreement,
as determined by the Board in good faith.


 


The Board shall have the
discretion to cause any such Reorganization Agreement to provide for different
terms and conditions for different Awards and shall have no obligation to treat
Awards or classes of Awards in an identical fashion under any such
Reorganization Agreement.


 


13.4         Effect
of Change of Control.  The Board may
determine and specify in any Award Agreement, at the time of granting an Award
or thereafter, that any or all outstanding rights that may be exercised under
Awards shall become fully exercisable and/or that any or all restrictions on
Awards shall lapse, upon the effectiveness of a change of control of the
Company as defined in such Award Agreement, or upon termination of a
Participant’s employment, contractual or other relationship with the Company or
its successor following a specified period after such change of control;
provided that, in the case of an Incentive Stock Option, the acceleration of
exercisability shall not occur without the Participant’s written consent.


 


ARTICLE
14: AMENDMENT, MODIFICATION, AND TERMINATION


 


14.1         Amendment,
Modification, and Termination.  With
the approval of the Board, at any time and from time to time, the Board may
terminate, amend, or modify the Plan.  An
amendment or modification of the Plan shall be subject to the approval of the
stockholders of the Company only to the extent required by applicable laws,
regulations and rules.


 


14.2         Awards
Previously Granted.  No termination,
amendment, or modification of the Plan shall adversely affect in any material
way any Award previously granted under the Plan, without the written consent of
the Participant.


 


ARTICLE
15: GENERAL PROVISIONS


 


15.1         No
Rights to Awards.  No Participant or
employee shall have any claim to be granted any Award under the Plan, and
neither the Company nor the Board is obligated to treat Participants and
employees uniformly.


 


15.2         No
Stockholders Rights.  No Award gives
the Participant any of the rights of a stockholder of the Company unless and
until shares of Stock are in fact issued to such person in connection with such
Award.


 


18





















 


15.3         No
Right to Employment.  Nothing in the
Plan or any Award Agreement shall interfere with or limit in any way the “at-will”
nature of any Participant’s employment or other relationship with the Company
or any Subsidiary, nor confer upon any Participant any right to continue in the
employment or any other relationship of the Company or any Subsidiary, and the
Company and each Subsidiary reserve the right to terminate any Participant’s
employment or other relationship with the Company or any Subsidiary at any time
and for any reason or no reason, with or without Cause.


 


15.4         Unfunded
Status of Awards.  The Plan is
intended to be an “unfunded” plan for incentive and deferred compensation.  With respect to any payments not yet made to
a Participant pursuant to an Award, nothing contained in the Plan or any Award
Agreement shall give the Participant any rights that are greater than those of
a general creditor of the Company or any Subsidiary.


 


15.5         Relationship
to Other Benefits.  No payment under
the Plan shall be taken into account in determining any benefits under any
pension, retirement, savings, profit sharing, group insurance, welfare or other
benefit plan of the Company or any Subsidiary.


 


15.6         Expenses.  The expenses of administering the Plan shall
be borne by the Company and its Subsidiaries.


 


15.7         Titles
and Headings.  The titles and
headings of the Articles and Sections in the Plan are for convenience of
reference only, and in the event of any conflict, the text of the Plan, rather
than such titles or headings, shall control.


 


15.8         Fractional
Shares.  No fractional shares of
stock shall be issued and the Board shall determine, in its discretion, whether
cash shall be given in lieu of fractional shares or whether such fractional
shares shall be eliminated by rounding up.


 


15.9         Securities
Law Compliance.  With respect to any
person who is, on the relevant date, obligated to file reports under
Section 16 of the Exchange Act, transactions under this Plan are intended
to comply with all applicable conditions of Section 16 or its successors under
the Exchange Act.  To the extent any
provision of the Plan or any Award Agreement or any action by the Board fails
to so comply, it shall be void to the extent permitted by law and voidable as
deemed advisable by the Board.


 


15.10       Government
and Other Regulations.  The
obligation of the Company to make payment of awards in Stock or otherwise shall
be subject to all applicable laws, rules, and regulations, and to such
approvals by government agencies as may be required.  The Company shall be under no obligation to
register under the Securities Act, any of the shares of Stock paid under the
Plan.  If the shares of Stock paid under
the Plan may in certain circumstances be exempt from registration under the
Securities Act, the Company may restrict the transfer of such shares in such
manner as it deems advisable to ensure the availability of any such
exemption.  As a condition to the
exercise of an Option or any other receipt of Stock pursuant to an Award under
the Plan, the Company may require the Participant to represent and warrant at
the time of any such exercise or receipt that such Stock is being purchased or
received only for the Participant’s own account and without any present
intention to sell or distribute such Stock if, in the opinion


 


19





















 


of counsel for the Company, such a representation is required by any
relevant provision of the aforementioned laws. 
At the option of the company, a stop-transfer order against any such
Stock may be placed on the official stock books and records of the Company, and
a legend indicating that such Stock may not be pledged, sold or otherwise
transferred, unless an opinion of counsel is provided (concurred in by counsel
for the Company) stating that such transfer is not in violation of any
applicable law or regulation, may be stamped on stock certificates to ensure
exemption from registration.  The Board
may also require such other action or agreement by the Participant as may from
time to time be necessary to comply with federal and state securities laws.


 


15.11       Governing
Law.  The Plan and all Award
Agreements shall be construed in accordance with and governed by the laws of
the State of Arizona without regard to its conflicts of laws provisions.


 


15.12       Nonexclusivity
of the Plan.  Neither the adoption of
the Plan nor the submission of the Plan to the stockholders of the Company for
approval shall be construed as creating any limitations upon the right and
authority of the Board to adopt such other incentive compensation arrangements
(which arrangements may be applicable either generally to a class or classes of
individuals or specifically to a particular individual or individuals) as the
Board in its discretion determines desirable, including, without limitation,
the granting of stock options or other rights otherwise than under the Plan.


 


ARTICLE
16: DEFINITIONS


 


16.1         Definitions.  The following words and phrases shall have
the following meanings for purposes of this Plan:


 


(a)           “Award”
means any Option, Stock Appreciation Right, Restricted Stock Award, Performance
Unit, Stock-Reference Award or any other right or interest relating to Stock,
cash or property, granted to a Participant under the Plan.


 


(b)           “Award
Agreement” means any written agreement, contract, or other instrument or
document evidencing an Award.


 


(c)           “Board”
means the Board of Directors of the Company or, if the context so requires, a
Committee thereof appointed pursuant to Article 5.


 


(d)           Unless
otherwise defined in the applicable Award Agreement, “Cause” means (i) an act
of fraud, intentional dishonesty or theft adversely affecting the Company by a
Participant, (ii) noncompliance by a Participant with the reasonable directives
of the Board or its designees (except by reason of death or Disability), (iii)
an allegation against a Participant of discrimination by such Participant based
on race, sex, national origin, religion, handicap or age which is prohibited by
applicable law if the Company has reason to believe any material portion of the
allegations after an investigation conducted in accordance with any applicable
Company policy, (iv) material violation by a Participant of previously
published Company policies and procedures or the Plan or any applicable Award
Agreement, or (v) a Participant’s conviction of a felony; provided, however, in
the case of (ii) or (iv) above, the Participant shall be provided with thirty
(30) days written notice of such event, and the Participant shall have ten (10)
days to respond and/or propose a cure in writing.  If such noncompliance or material violations
are not


 


20





















 


capable of cure, or if such noncompliance or material violations have
not been cured within fifteen (15) days after the date of such written proposal
by Participant, Cause shall be deemed to exist.


 


(e)           “Code”
means the Internal Revenue Code of 1986, as amended from time to time.


 


(f)            “Committee”
means the committee of the Board described in Article 5.


 


(g)           “Disability”
means the following:  A Participant shall
be disabled if he or she is unable to perform the duties of his customary
position of employment by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which can be
expected to last for a continuous period of not less than 12 months.  The Board may require such medical or other
evidence as it deems necessary to judge the nature and permanency of the
Participant’s condition.


 


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


 


(i)            “Fair
Market Value” means with respect to Stock or any other property, the fair
market value of such Stock or other property determined by the Board in good
faith using such methods or procedures as may be established from time to time
by the Board.  Unless otherwise
determined by the Board, the Fair Market Value of Stock as of any date shall be
the mean between the bid and asked quotations for the Stock on that date as
reported by the National Association of Securities Dealers Automated Quotation
System (NASDAQ) or, if there are no bid or asked quotations on such date, the
mean between the bid and asked quotations on the next preceding date for which
quotations are available.  If the Stock
is subsequently listed and traded upon a recognized securities exchange or
shall be quoted on a recognized national market system, the Fair Market Value
shall be the closing price on such date or, if no closing price is so reported
for that date, the closing price on the next preceding date for which a closing
price was reported.


 


(j)            “Incentive
Stock Option” means an Option that is intended to meet the requirements of
Section 422 of the Code or any successor provision thereto.


 


(k)           “Non-Qualified
Stock Option” means an Option that is not intended to be an Incentive Stock
Option.


 


(l)            “Option”
means a right granted to a Participant under Article 6 of the Plan to
purchase Stock at a specified price during specified time periods.  An Option may be either an Incentive Stock Option
or a Non-Qualified Stock Option.


 


(m)          “Participant”
means a person who, as an officer, employee, consultant, independent
contractor, or adviser of the Company or any Subsidiary, has been granted an
Award under the Plan.


 


(n)           “Performance
Unit” means a right granted to a Participant under Article 8 to receive
cash, Stock, or other Awards.


 


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(o)           “Plan”
means the Poore Brothers, Inc. 2005 Equity Incentive Plan, as amended from time
to time.


 


(p)           “Restricted
Stock Award” means Stock granted to a Participant or offered for sale to a
Participant under Article 9.


 


(q)           “Retirement”
means a Participant’s termination of employment with the Company after
attaining any normal or early retirement age specified in any pension, profit
sharing, or other retirement program sponsored by the Company, if any.


 


(r)            “Securities
Act” means the Securities Act of 1933, as amended.


 


(s)           “Stock”
means Common Stock ($.01 par value) of the Company and such other securities of
the Company that may be substituted for Stock pursuant to Article 13.


 


(t)            “Stock
Appreciation Right” or “SAR” means a right granted to a Participant under
Article 7 to receive a payment equal to the difference between the Fair
Market Value of a share of Stock as of the date of exercise of the SAR over the
grant price of the SAR, all as determined pursuant to Article 7.


 


(u)           “Stock-Reference
Award” means a right, granted to a Participant under Article 10.


 


(v)           “Subsidiary”
means any entity of which a majority of the outstanding voting stock or voting
power is beneficially owned directly or indirectly by the Company.


 


(w)          “Ten
Percent Owner” means any individual who, at the date of grant of an Incentive
Stock Option, owns stock possessing more than ten percent of the total combined
voting power of all classes of Stock of the Company or a Subsidiary.  For purposes of determining such percentage,
the following rules shall apply:


 


(1)           The
individual with respect to whom such percentage is being determined shall be
considered as owning the Stock owned, directly or indirectly, by or for his
brothers and sisters (whether by the whole or half blood), spouse, ancestors,
and lineal descendants; and


 


(2)           Stock
owned, directly or indirectly, by or for a corporation, partnership, estate, or
trust, shall be considered as being owned proportionately by or for its
stockholders, partners, or beneficiaries.


 


(x)            “Termination
Date” means the date on which the employment (or other service or relationship
in the case of a Participant who is not an employee of the Company) of a
Participant terminates for any reason or no reason.


 


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