Exhibit 10.1


 


CUBIC CORPORATION


 


2005 EQUITY INCENTIVE PLAN


 


APPROVED BY THE BOARD ON:  NOVEMBER 29, 2005


APPROVED BY THE STOCKHOLDERS:  [FEBRUARY 21, 2006]


TERMINATION DATE: 
NOVEMBER 29, 2015


 


1.             GENERAL.


 


(a)           Successor and Continuation of Prior Plan.  This Cubic Corporation 2005 Equity Incentive Plan
(the “Plan”) is intended as the
successor to and continuation of the Cubic Corporation 1998 Stock Option Plan (the “Prior
Plan”).  Following the
Effective Date of this Plan, no additional stock awards shall be granted under
the Prior Plan.  Any shares remaining
available for issuance pursuant to the exercise of options or settlement of
stock awards under the Prior Plan shall be added to the share reserve of this
Plan and available for issuance pursuant to Stock Awards granted
hereunder.  All outstanding stock awards
granted under the Prior Plan shall remain subject to the terms of the Prior
Plan, except that the Board may elect to extend one or more of the features of
the Plan to stock awards granted under the Prior Plan.  Any shares subject to outstanding stock
awards granted under the Prior Plan that expire or terminate for any reason
prior to exercise or settlement shall be added to the share reserve of this
Plan and become available for issuance pursuant to Stock Awards granted
hereunder.  All Stock Awards granted
subsequent to the Effective Date of this Plan shall be subject to the terms of
this Plan.


 


(b)           Eligible Stock Award Recipients.  The persons eligible to receive Awards are
Employees, Directors and Consultants.


 


(c)           Available Stock Awards.  The Plan provides for the grant of the
following Stock Awards: (i) Incentive Stock Options, (ii) Nonstatutory
Stock Options, (iii) Stock Purchase Awards, (iv) Restricted Stock
Awards, (v) Stock Appreciation Rights, (vi) Restricted Stock Unit
Awards, and (vii) Other Stock Awards.


 


(d)           General Purpose.  The Company, by means of the Plan, seeks to
secure and retain the services of the group of persons eligible to receive
Awards as set forth in Section 1(a), to provide incentives for such
persons to exert maximum efforts for the success of the Company and any
Affiliate and to provide a means by which such eligible recipients may be given
an opportunity to benefit from increases in value of the Common Stock through
the granting of Awards.


 


2.             DEFINITIONS.


 


As used in the Plan, the
following definitions shall apply to the capitalized terms indicated below:


 


(a)           “Affiliate” means, at the time of determination, any “parent”
or “subsidiary” as such terms are defined in Rule 405 of the Securities
Act.  The Board shall have the authority
to 


 





















 


determine the time or times at which “parent” or “subsidiary”
status is determined within the foregoing definition.


 


(b)           “Award” means a Stock Award or a Performance Cash Award.


 


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


 


(d)           “Capitalization Adjustment” has the meaning ascribed to
that term in Section 11(a).


 


(i)            “Cause” means
with respect to a Participant, the occurrence of any of the following:  (i) such Participant’s conviction (which
has become final) or entry of a plea of guilty or nolo
contendere regarding an act that would be deemed a felony under
California or Federal criminal statutes (or any comparable criminal laws of any
jurisdiction in which the Participant is permanently employed by the Company or
an Affiliate) and that is injurious to the Company; (ii) the Participant’s
gross negligence or breach of fiduciary duty to the Company involving personal
profit, personal dishonesty or recklessness, (iii) the Participant’s
material breach of any agreement with the Company, including a material
violation of Company policies and procedures or of any statutory duty owed to
the Company; (iv)  such Participant’s unauthorized use or disclosure
of the Company’s confidential information or trade secrets; or (v) such
Participant’s gross misconduct. The determination that a termination of the
Participant’s Continuous Service is either for Cause or without Cause shall be
made by the Company in its sole discretion. 
Any determination by the Company that the Continuous Service of a
Participant was terminated by reason of dismissal without Cause for the
purposes of outstanding Awards held by such Participant shall have no effect
upon any determination of the rights or obligations of the Company or such
Participant for any other purpose.


 


(e)           “Change in Control” means the occurrence, in a single
transaction or in a series of related transactions, of any one or more of the
following events:


 


(i)            any
Exchange Act Person becomes the Owner, directly or indirectly, of securities of
the Company representing more than 50%
of the combined voting power of the Company’s then outstanding securities other
than by virtue of a merger, consolidation or similar transaction.  Notwithstanding
the foregoing, a Change in Control shall not be deemed to occur (A) on
account of the acquisition of securities of the Company by an investor, any
affiliate thereof or any other Exchange Act Person from the Company in a
transaction or series of related transactions the primary purpose of which is
to obtain financing for the Company through the issuance of equity securities
or (B) solely because the level of Ownership held by any Exchange Act
Person (the “Subject
Person”) exceeds the
designated percentage threshold of the outstanding voting securities as a
result of a repurchase or other acquisition of voting securities by the Company
reducing the number of shares outstanding, provided that if a Change in Control
would occur (but for the operation of this sentence) as a result of the
acquisition of voting securities by the Company, and after such share
acquisition, the Subject Person becomes the Owner of any additional voting
securities that, assuming the repurchase or other acquisition had not occurred,
increases the percentage of the then outstanding voting securities Owned by the
Subject Person over the designated percentage threshold, then a Change in
Control shall be deemed to occur;


 


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(ii)           there
is consummated a merger, consolidation or similar transaction involving
(directly or indirectly) the Company and, immediately after the consummation of
such merger, consolidation or similar transaction, the stockholders of the
Company immediately prior thereto, as such, do not Own, directly or indirectly,
either (A) outstanding voting securities representing more than 50% of the combined outstanding voting
power of the surviving Entity in such merger, consolidation or similar
transaction or (B) more than 50%
of the combined outstanding voting power of the parent of the surviving Entity
in such merger, consolidation or similar transaction;


 


(iii)         the
stockholders of the Company approve or the Board approves a plan of complete
dissolution or liquidation of the Company, or a complete dissolution or
liquidation of the Company shall otherwise occur;


 


(iv)          there
is consummated a sale, lease, exclusive license or other disposition of all or
substantially all of the consolidated assets of the Company and its
Subsidiaries, other than a sale, lease, license or other disposition of all or
substantially all of the consolidated assets of the Company and its
Subsidiaries to an Entity, more than 50%
of the combined voting power of the voting securities of which are Owned by
stockholders of the Company in substantially the same proportions as their
Ownership of the outstanding voting securities of the Company immediately prior
to such sale, lease, license or other disposition; or


 


(v)            individuals
who, on the date this Plan is adopted by the Board, are members of the Board
(the “Incumbent Board”)
cease for any reason to constitute at least a majority of the members of the
Board; provided, however, that if the
appointment or election (or nomination for election) of any new Board member
was approved or recommended by a majority vote of the members of the Incumbent
Board then still in office, such new member shall, for purposes of this Plan,
be considered as a member of the Incumbent Board.


 


The term Change in
Control shall not include a sale of assets, merger or other transaction
effected exclusively for the purpose of changing the domicile of the Company.


 


Notwithstanding the
foregoing or any other provision of this Plan, the definition of Change in
Control (or any analogous term) in an individual written agreement between the
Company or any Affiliate and the Participant shall supersede the foregoing
definition with respect to Awards subject to such agreement; provided, however, that if no definition
of Change in Control or any analogous term is set forth in such an individual
written agreement, the foregoing definition shall apply.


 


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


 


(g)           “Committee” means a committee of one or more Directors
to whom authority has been delegated by the Board in accordance with Section 3(c).


 


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


 


(i)            “Company” means Cubic Corporation, a Delaware
corporation.


 


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(j)            “Consultant”
means any person, including an advisor, who is (i) engaged by the Company
or an Affiliate to render consulting or advisory services and is compensated
for such services, or (ii) serving as a member of the board of directors
of an Affiliate and is compensated for such services.  However, service solely as a Director, or
payment of a fee for such service, shall not cause a Director to be considered
a “Consultant” for purposes of the Plan.


 


(k)           “Continuous Service” means that the Participant’s
service with the Company or an Affiliate, whether as an Employee, Director or
Consultant, is not interrupted or terminated. 
A change in the capacity in which the Participant renders service to the
Company or an Affiliate as an Employee, Consultant or Director or a change in
the entity for which the Participant renders such service, provided that there
is no interruption or termination of the Participant’s service with the Company
or an Affiliate, shall not terminate a Participant’s Continuous Service.  For example, a change in status from an
employee of the Company to a consultant to an Affiliate or to a Director shall
not constitute an interruption of Continuous Service.  To the extent permitted by law, the Board or
the chief executive officer of the Company, in that party’s sole discretion,
may determine whether Continuous Service shall be considered interrupted in the
case of any leave of absence approved by that party, including sick leave,
military leave or any other personal leave. 
Notwithstanding the foregoing, a leave of absence shall be treated as
Continuous Service for purposes of vesting in a Stock Award only to such extent
as may be provided in the Company’s leave of absence policy, in the written
terms of any leave of absence agreement or policy applicable to the
Participant, or as otherwise required by law.


 


(l)            “Corporate Transaction” means the occurrence, in a
single transaction or in a series of related transactions, of any one or more
of the following events:


 


(i)            a
sale or other disposition of all or
substantially all, as determined by the Board in its sole discretion, of the
consolidated assets of the Company and its Subsidiaries;


 


(ii)           a
sale or other disposition of at least 90%
of the outstanding securities of the Company;


 


(iii)         the
consummation of a merger, consolidation or similar transaction following which
the Company is not the surviving corporation; or


 


(iv)          the
consummation of a merger, consolidation or similar transaction following which
the Company is the surviving corporation but the shares of Common Stock
outstanding immediately preceding the merger, consolidation or similar
transaction are converted or exchanged by virtue of the merger, consolidation
or similar transaction into other property, whether in the form of securities,
cash or otherwise.


 


(m)          “Covered Employee” shall have the meaning provided in Section 162(m)(3) of
the Code and the regulations promulgated thereunder.


 


(n)           “Director” means a member of the Board.


 


(o)           “Disability” means the permanent and total disability of
a person within the meaning of Section 22(e)(3) of the Code.


 


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(p)           “Effective Date” means
the effective date of this Plan document, which is the date that this Plan is
first approved by the Company’s stockholders.


 


(q)           “Employee”
means any person employed by the Company or an Affiliate.  However, service solely as a Director, or
payment of a fee for such services, shall not cause a Director to be considered
an “Employee” for purposes of the Plan.


 


(r)           “Entity” means a corporation, partnership, limited
liability company or other entity.


 


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


 


(t)            “Exchange Act Person” means any natural person, Entity
or “group” (within the meaning of Section 13(d) or 14(d) of the
Exchange Act), except that “Exchange Act Person” shall not include (i) the
Company or any Subsidiary of the Company, (ii) any employee benefit plan
of the Company or any Subsidiary of the Company or any trustee or other
fiduciary holding securities under an employee benefit plan of the Company or
any Subsidiary of the Company, (iii) an underwriter temporarily holding
securities pursuant to an offering of such securities, (iv) an Entity
Owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their Ownership of stock of the Company;
or (v) any natural person, Entity or “group” (within the meaning of Section 13(d) or
14(d) of the Exchange Act) that, as of the Effective Date of the Plan as
set forth in Section 13, is the Owner, directly or indirectly, of
securities of the Company representing more than 50% of the combined voting
power of the Company’s then outstanding securities.


 


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


 


(i)            If
the Common Stock is listed on any established stock exchange or traded on the
Nasdaq National Market or the Nasdaq SmallCap Market, the Fair Market Value of
a share of Common Stock shall be the closing sales price for such stock (or the
closing bid, if no sales were reported) as quoted on such exchange or market
(or the exchange or market with the greatest volume of trading in the Common
Stock) on the date of determination, as reported in The Wall
Street Journal or such other source
as the Board deems reliable.  Unless
otherwise provided by the Board, if there is no closing sales price (or closing
bid if no sales were reported) for the Common Stock on the date of
determination, then the Fair Market Value shall be the closing selling price
(or closing bid if no sales were reported) on the last preceding date for which
such quotation exists.


 


(ii)           In
the absence of such markets for the Common Stock, the Fair Market Value shall
be determined by the Board in good faith.


 


(v)            “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.


 


(w)           “Non-Employee Director”  means a Director who either (i) is
not a current employee or officer of the Company or an Affiliate, does not
receive compensation, either 


 


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directly or indirectly, from the Company or an
Affiliate for services rendered as a consultant or in any capacity other than
as a Director (except for an amount as to which disclosure would not be
required under Item 404(a) of Regulation S-K promulgated pursuant to the
Securities Act (“Regulation
S-K”)), does not possess an interest in any other transaction
for which disclosure would be required under Item 404(a) of Regulation
S-K, and is not engaged in a business relationship for which disclosure would
be required pursuant to Item 404(b) of Regulation S-K; or (ii) is
otherwise considered a “non-employee director” for purposes of Rule 16b-3.


 


(x)           “Nonstatutory Stock Option” means any Option other than
an Incentive Stock Option.


 


(y)           “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.


 


(z)           “Option” means an Incentive Stock Option or a
Nonstatutory Stock Option to purchase shares of Common Stock granted pursuant
to the Plan.


 


(aa)         “Option Agreement” means a written agreement between the
Company and an Optionholder evidencing the terms and conditions of an Option
grant.  Each Option Agreement shall be
subject to the terms and conditions of the Plan.


 


(bb)         “Optionholder” means a person to whom an Option is
granted pursuant to the Plan or, if permitted under the terms of this Plan,
such other person who holds an outstanding Option.


 


(cc)         “Other Stock Award”
means an award based in whole or in part by reference to the Common Stock which
is granted pursuant to the terms and conditions of Section 7(e).


 


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


 


(ee)         “Outside Director” means a Director who either (i) is
not a current employee of the Company or an “affiliated corporation” (within
the meaning of Treasury Regulations promulgated under Section 162(m) of
the Code), is not a former employee of the Company or an “affiliated
corporation” who receives compensation for prior services (other than benefits
under a tax-qualified retirement plan) during the taxable year, has not been an
officer of the Company or an “affiliated corporation,” and does not receive
remuneration from the Company or an “affiliated corporation,” either directly
or indirectly, in any capacity other than as a Director, or (ii) is
otherwise considered an “outside director” for purposes of Section 162(m)
of the Code.


 


(ff)           “Own,” “Owned,” “Owner,” “Ownership”  A person or Entity shall be deemed to “Own,”
to have “Owned,” to be the “Owner” of, or to have acquired “Ownership” of
securities if such person or Entity, directly or indirectly, through any
contract, arrangement, understanding, relationship or otherwise, has or shares
voting power, which includes the power to vote or to direct the voting, with
respect to such securities.


 


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(gg)         “Participant” means a person to whom an Award is granted
pursuant to the Plan or, if applicable, such other person who holds an
outstanding Stock Award.


 


(hh)         “Performance Cash Award” means an award of cash granted
pursuant to the terms and conditions of Section 7(e)(ii).


 


(ii)           “Performance Criteria”
means the one or more criteria that the Board shall select for purposes of
establishing the Performance Goals for a Performance Period.  The Performance Criteria that shall be used
to establish such Performance Goals may be based on any one of, or combination
of, the following: (i) earnings per share; (ii) earnings before
interest, taxes and depreciation; (iii) earnings before interest, taxes,
depreciation and amortization; (iv) total stockholder return; (v) return
on equity; (vi) return on assets, investment, or capital employed; (vii) operating
margin; (viii) gross margin; (ix) operating income; (x) net income
(before or after taxes); (xi) net operating income; (xii) net operating income
after tax; (xiii) pre-tax profit; (xiv) operating cash flow; (xv) sales or
revenue targets; (xvi) increases in revenue or product revenue; (xvii) expenses
and cost reduction goals; (xviii) improvement in or attainment of working
capital levels; (xix) economic value added (or an equivalent metric); (xx)
market share; (xxi) cash flow; (xxii) cash flow per share; (xxiii) share price
performance; (xxiv) debt reduction; (xxv) implementation or completion of
projects or processes; (xxvi) customer satisfaction; (xxvii); stockholders’
equity; and (xxviii) other measures of performance selected by the Board.  Partial achievement of the specified criteria
may result in the payment or vesting corresponding to the degree of achievement
as specified in the Stock Award Agreement or the written terms of a Performance
Cash Award.  The Board shall, in its sole
discretion, define the manner of calculating the Performance Criteria it
selects to use for such Performance Period.


 


(jj)           “Performance Goals”
means, for a Performance Period, the one or more goals established by the Board
for the Performance Period based upon the Performance Criteria.  Performance Goals may be based on a
Company-wide basis, with respect to one or more business units, divisions,
Affiliates, or business segments, and in either absolute terms or relative to
the performance of one or more comparable companies or a relevant index.  At the time of the grant of any Award, the
Board is authorized to determine whether, when calculating the attainment of
Performance Goals for a Performance Period: (i) to exclude restructuring
and/or other nonrecurring charges; (ii) to exclude exchange rate effects,
as applicable, for non-U.S. dollar denominated net sales and operating
earnings; (iii) to exclude the effects of changes to generally accepted
accounting standards required by the Financial Accounting Standards Board; (iv) to
exclude the effects of any statutory adjustments to corporate tax rates; and (v) to
exclude the effects of any “extraordinary items” as determined under generally
accepted accounting principles.  In
addition, the Board retains the discretion to reduce or eliminate the
compensation or economic benefit due upon attainment of Performance Goals.


 


(kk)        “Performance Period”
means the period of time selected by the Board over which the attainment of one
or more Performance Goals will be measured for the purpose of determining a
Participant’s right to and the payment of a Stock Award or a Performance Cash
Award.  Performance Periods may be of
varying and overlapping duration, at the sole discretion of the Board.


 


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(ll)           “Performance Stock Award” means a Stock Award granted
under the terms and conditions of Section 7(e)(i).


 


(mm)       “Restricted Stock Award”
means an award of shares of Common Stock which is granted pursuant to the terms
and conditions of Section 7(b).


 


(nn)         “Restricted Stock Award
Agreement” means a written agreement between the Company and a
holder of a Restricted Stock Award evidencing the terms and conditions of a
Restricted Stock Award grant.  Each
Restricted Stock Award Agreement shall be subject to the terms and conditions
of the Plan.


 


(oo)         “Restricted Stock Unit
Award” means a right to receive shares of Common Stock which is
granted pursuant to the terms and conditions of Section 7(c).


 


(pp)         “Restricted Stock Unit
Award Agreement” means a written agreement between the Company
and a holder of a Restricted Stock Unit Award evidencing the terms and
conditions of a Restricted Stock Unit Award grant.  Each Restricted Stock Unit Award Agreement
shall be subject to the terms and conditions of the Plan.


 


(qq)         “Retirement” means, with respect to a Participant, the
termination of the Participant’s employment (other than for Cause) at any time
following the Participant’s attainment of age 55 and completion of 5 years of
Continuous Service with the Company.


 


(rr)         “Rule 16b-3” means Rule 16b-3 promulgated
under the Exchange Act or any successor to Rule 16b-3, as in effect from
time to time.


 


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


 


(tt)           “Stock Appreciation Right”
means a right to receive the appreciation on Common Stock that is granted
pursuant to the terms and conditions of Section 7(d).


 


(uu)         “Stock Appreciation Right
Agreement” means a written agreement between the Company and a
holder of a Stock Appreciation Right evidencing the terms and conditions of a
Stock Appreciation Right grant.  Each
Stock Appreciation Right Agreement shall be subject to the terms and conditions
of the Plan.


 


(vv)          “Stock Award”
means any right granted under the Plan, including an Incentive Stock Option, a Nonstatutory
Stock Option, a Stock Purchase Award, a Restricted Stock Award, a Stock
Appreciation Right, a Restricted Stock Unit Award, a Performance Stock Award or
any Other Stock Award.


 


(ww)        “Stock Award Agreement”
means a written agreement between the Company and a Participant evidencing the
terms and conditions of a Stock Award grant. 
Each Stock Award Agreement shall be subject to the terms and conditions
of the Plan.


 


(xx)         “Stock Purchase Award”
means an award of shares of Common Stock which is granted pursuant to the terms
and conditions of Section 7(a).


 


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(yy)         “Stock Purchase Award
Agreement” means a written agreement between the Company and a
holder of a Stock Purchase Award evidencing the terms and conditions of a Stock
Purchase Award grant.  Each Stock
Purchase Award Agreement shall be subject to the terms and conditions of the
Plan.


 


(zz)         “Subsidiary” means, with respect to the Company, (i) any
corporation of which more than 50% of the outstanding capital stock having
ordinary voting power to elect a majority of the board of directors of such
corporation (irrespective of whether, at the time, stock of any other class or
classes of such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time, directly or indirectly, Owned by
the Company, and (ii) any partnership in which the Company has a direct or
indirect interest (whether in the form of voting or participation in profits or
capital contribution) of more than 50%.


 


(aaa)       “Ten Percent Stockholder” means a person who Owns (or is
deemed to Own pursuant to Section 424(d) of the Code) stock
possessing more than 10% of the total combined voting power of all classes of
stock of the Company or any Affiliate.


 


3.             ADMINISTRATION.


 


(a)           Administration
by Board.  The Board shall administer
the Plan unless and until the Board delegates administration of the Plan to a
Committee or Committees, as provided in Section 3(c).


 


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


 


(i)            To
determine from time to time (A) which of the persons eligible under the
Plan shall be granted Awards; (B) when and how each Award shall be
granted; (C) what type or combination of types of Award shall be granted; (D) the
provisions of each Award granted (which need not be identical), including the
time or times when a person shall be permitted to receive cash or Common Stock
pursuant to a Stock Award and the Performance Criteria upon which Performance
Goals will be based; and (E) the number of shares of Common Stock with
respect to which a Stock Award shall be granted to each such person.


 


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


 


(iii)         To
settle all controversies regarding the Plan and Awards granted under it.


 


(iv)          To
accelerate the time at which a Stock Award may first be exercised or the time
during which an Award or any part thereof will vest in accordance with the
Plan, notwithstanding the provisions in the Award stating the time at which it
may first be exercised or the time during which it will vest.


 


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(v)            To suspend or terminate the Plan at
any time.  Suspension or termination of
the Plan shall not impair rights and obligations under any Stock Award granted
while the Plan is in effect except with the written consent of the affected
Participant.


 


(vi)          To
amend the Plan, subject to the limitations, if any, of applicable law. However,
except as provided in Section 11(a) relating to Capitalization
Adjustments, no amendment shall be effective unless approved by the
stockholders of the Company to the extent stockholder approval is necessary to
satisfy applicable law or applicable exchange listing requirements.  Rights under any Award granted before
amendment of the Plan shall not be impaired by any amendment of the Plan unless
(i) the Company requests the consent of the affected Participant, and (ii) such
Participant consents in writing.


 


(vii)         To submit any amendment to the Plan
for stockholder approval, including, but not limited to, amendments to the Plan
intended to satisfy the requirements of Section 162(m) of the Code and the
regulations thereunder regarding the exclusion of performance-based
compensation from the limit on corporate deductibility of compensation paid to
Covered Employees.


 


(viii)        To amend
the Plan in any respect the Board deems necessary or advisable to provide
eligible Employees with the maximum benefits provided or to be provided under
the provisions of the Code and the regulations promulgated thereunder relating
to Incentive Stock Options or to bring the Plan or Incentive Stock Options
granted under it into compliance therewith.


 


(ix)          To
amend the terms of any one or more Awards or stock awards granted under the
Prior Plan, including, but not limited to, amendments to provide terms more favorable
than previously provided in the Award Agreement, subject to any specified
limits in the Plan that are not subject to Board discretion; provided, however, that the rights under any Award shall not
be impaired by any such amendment unless (i) the Company requests the
consent of the affected Participant, and (ii) such Participant consents in
writing.


 


(x)           Generally,
to exercise such powers and to perform such acts as the Board deems necessary
or expedient to promote the best interests of the Company and that are not in
conflict with the provisions of the Plan or Awards.


 


(xi)          To
adopt such procedures and sub-plans as are necessary or appropriate to permit
participation in the Plan by Employees, Directors or Consultants who are
foreign nationals or employed outside the United States.


 


(xii)         To
effect, at any time and from time to time, with the consent of any adversely affected
Optionholder, (1) the reduction of the exercise price of any outstanding
Option under the Plan, (2) the cancellation of any outstanding Option
under the Plan and the grant in substitution therefor of (A) a new Option
under the Plan or another equity plan of the Company covering the same or a
different number of shares of Common Stock, (B) a Restricted Stock Award
(including a stock bonus), (C) a Stock Appreciation Right, (D) Restricted
Stock Unit, (E) an Other Stock Award, (F) cash and/or (G) other
valuable consideration (as determined 


 


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by the Board, in its sole discretion), or (3) any
other action that is treated as a repricing under generally accepted accounting
principles.


 


(c)           Delegation
to Committee.


 


(i)            General.  The Board may delegate some or all of the
administration of the Plan to a Committee or Committees.  If administration of the Plan is delegated to
a Committee, the Committee shall have, in connection with the administration of
the Plan, the powers theretofore possessed by the Board that have been
delegated to the Committee, including the power to delegate to a subcommittee
of the Committee any of the administrative powers the Committee is authorized
to exercise (and references in this Plan to the Board shall thereafter be to
the Committee or subcommittee), subject, however, to such resolutions, not
inconsistent with the provisions of the Plan, as may be adopted from time to
time by the Board.  The Board may retain
the authority to concurrently administer the Plan with the Committee and may,
at any time, revest in the Board some or all of the powers previously
delegated.


 


(ii)           Section 162(m) and Rule 16b-3
Compliance.  In the sole
discretion of the Board, the Committee may consist solely of two or more
Outside Directors, in accordance with Section 162(m) of the Code, or
solely of two or more Non-Employee Directors, in accordance with Rule 16b-3.  In addition, the Board or the Committee, in
its sole discretion, may (A) delegate to a Committee of Directors who need
not be Outside Directors the authority to grant Awards to eligible persons who
are either (I) not then Covered Employees and are not expected to be Covered
Employees at the time of recognition of income resulting from such Stock Award,
or (II) not persons with respect to whom the Company wishes to comply with Section 162(m)
of the Code, or (B) delegate to a Committee of Directors who need not be
Non-Employee Directors the authority to grant Stock Awards to eligible persons
who are not then subject to Section 16 of the Exchange Act.


 


(d)           Effect of Board’s Decision. All
determinations, interpretations and constructions made by the Board in good
faith shall not be subject to review by any person and shall be final, binding
and conclusive on all persons.


 


(e)           Arbitration.   Any dispute or claim concerning any Awards granted (or not granted) pursuant to the
Plan or any disputes or claims relating to or arising out of the Plan shall be
fully, finally and exclusively resolved by binding and confidential arbitration
conducted by a single arbitrator who is a lawyer with at least 20 years
Business law experience, pursuant to the Commercial Arbitration Rules of
the American Arbitration Association in
San Diego, California. The Company shall pay all arbitration fees.  In addition to any other relief, the
arbitrator may award to the prevailing party recovery of its attorneys’ fees and
costs.  By accepting an Award,
Participants and the Company waive their respective rights to have any such
disputes or claims tried by a judge or jury.


 


4.             SHARES
SUBJECT TO THE PLAN.


 


(a)           Share
Reserve.  Subject to the provisions
of Section 11(a) relating to Capitalization Adjustments, the number
of shares of Common Stock that may be issued pursuant to Stock Awards shall not
exceed, in the aggregate, four million five hundred thousand 


 


11





















 


(4,500,000) shares of Common Stock.  Such number of shares reserved shall be
approved by the stockholders at a Special Meeting to be called by the Board of
Directors as part of the approval of this Plan. 
Shares may also be issued in connection with a merger or acquisition as
permitted by NASD Rule 4350(i)(1)(A)(iii) or, if applicable, NYSE
Listed Company Manual Section 303A.08, or AMEX Company Guide Section 711
and such issuance shall not reduce the number of shares available for issuance
under the Plan.


 


(b)           Reversion of Shares to the Share Reserve.  If any (i) Stock Award shall for any
reason expire or otherwise terminate, in whole or in part, without having been
exercised in full, (ii) shares of Common Stock issued to a Participant
pursuant to a Stock Award (including the Stock Awards transferred from the
Prior Plan on the Effective Date of this Plan) are forfeited to or repurchased
by the Company, including any repurchase or forfeiture caused by the failure to
meet a contingency or condition required for the vesting of such shares, or (iii) Stock
Award is settled in cash, then the shares of Common Stock not issued under such
Stock Award, or forfeited to or repurchased by the Company, shall revert to and
again become available for issuance under the Plan.  If any shares subject to a Stock Award are
not delivered to a Participant because the Stock Award is exercised through a
reduction of shares subject to the Stock Award (i.e., “net exercised”) or an appreciation distribution in
respect of a Stock Appreciation Right is paid in shares of Common Stock, the
number of subject to the Stock Award that are not delivered to the Participant
shall remain available for subsequent issuance under the Plan.  If any shares subject to a Stock Award are
not delivered to a Participant because such shares are withheld in satisfaction
of the withholding of taxes incurred in connection with the exercise of an
Option, Stock Appreciation Right, or the issuance of shares under a Stock
Purchase Award, Restricted Stock Award, Restricted Stock Unit Award, or Other
Stock Award, the number of shares that are not delivered to the Participant
shall remain available for subsequent issuance under the Plan.  If the exercise price of any Stock Award is
satisfied by tendering shares of Common Stock held by the Participant (either
by actual delivery or attestation), then the number of shares so tendered shall
remain available for subsequent issuance under the Plan.


 


(c)           Incentive Stock Option Limit.  Notwithstanding anything to the
contrary in this Section 4(b), subject to the provisions of Section 11(a) relating
to Capitalization Adjustments the aggregate maximum number of shares of Common
Stock that may be issued pursuant to the exercise of Incentive Stock Options
shall be four million five hundred thousand (4,500,000) shares of Common Stock.


 


(d)           Source of
Shares.  The stock issuable under the
Plan shall be shares of authorized but unissued or reacquired Common Stock,
including shares repurchased by the Company.


 


5.             ELIGIBILITY.


 


(a)           Eligibility
for Specific Stock Awards.  Incentive
Stock Options may be granted only to Employees. 
Stock Awards other than Incentive Stock Options may be granted to
Employees, Directors and Consultants.


 


(b)           Ten
Percent Stockholders.  A Ten Percent
Stockholder shall not be granted an Incentive Stock Option unless the exercise
price of such Option is at least 110% of the Fair 


 


12





















 


Market Value of the Common Stock on the date of grant
and the Option is not exercisable after the expiration of five years from the
date of grant.


 


(c)           Section 162(m) Limitation on Annual
Grants.  Subject to the
provisions of Section 11(a) relating to Capitalization Adjustments,
at such time as the Company may be subject to the applicable provisions of Section 162(m)
of the Code, no Employee shall be eligible to be granted during any calendar
year Stock Awards whose value is determined by reference to an increase over an
exercise or strike price of at least 100% of the Fair Market Value of the
Common Stock on the date the Stock Award is granted covering more than four
million (4,000,000) shares of Common Stock.


 


(d)           Consultants.  A Consultant shall not be eligible for the
grant of a Stock Award if, at the time of grant, a Form S-8 Registration
Statement under the Securities Act (“Form S-8”) is not available to register
either the offer or the sale of the Company’s securities to such Consultant
because of the nature of the services that the Consultant is providing to the
Company, because the Consultant is not a natural person, or because of any
other rule governing the use of Form S-8.


 


6.             OPTION
PROVISIONS.


 


Each Option shall be in such form and shall contain
such terms and conditions as the Board shall deem appropriate.  All Options shall be separately designated
Incentive Stock Options or Nonstatutory Stock Options at the time of grant,
and, if certificates are issued, a separate certificate or certificates shall
be issued for shares of Common Stock purchased on exercise of each type of
Option. If an Option is not specifically designated as an Incentive Stock
Option, then the Option shall be a Nonstatutory Stock Option. The provisions of
separate Options need not be identical; provided,
however, that each Option Agreement shall include (through
incorporation of provisions hereof by reference in the Option Agreement or
otherwise) the substance of each of the following provisions:


 


(a)           Term.  Subject to the provisions of Section 5(b),
no Option shall be exercisable after the expiration of 10 years from the date
of its grant or such shorter period specified in the Option Agreement.


 


(b)           Exercise
Price of an Incentive Stock Option. 
Subject to the provisions of Section 5(b) regarding Ten
Percent Stockholders, the exercise price of each Incentive Stock Option shall
be not less than 100% of the Fair Market Value of the Common Stock subject to
the Option on the date the Option is granted. 
Notwithstanding the foregoing, an Incentive Stock Option may be granted
with an exercise price lower than that set forth in the preceding sentence if
such Option is granted pursuant to an assumption or substitution for another
option in a manner consistent with the provisions of Section 424(a) of
the Code.


 


(c)           Exercise
Price of a Nonstatutory Stock Option. 
The exercise price of each Nonstatutory Stock Option shall be not less
than 100% of the Fair Market Value of the Common Stock subject to the Option on
the date the Option is granted. Notwithstanding the foregoing, a Nonstatutory
Stock Option may be granted with an exercise price lower than 100% of the Fair
Market Value of the Common Stock if such Option is granted pursuant to an
assumption or 


 


13





















 


substitution for another option in a manner consistent
with the provisions of Section 424(a) of the Code.


 


(d)           Consideration.  The purchase price of Common Stock acquired
pursuant to the exercise of an Option shall be paid, to the extent permitted by
applicable law and as determined by the Board in its sole discretion, by any
combination of the methods of payment set forth below.  The Board shall have the authority to grant
Options that do not permit all of the following methods of payment (or
otherwise restrict the ability to use certain methods) and to grant Options
that require the consent of the Company to utilize a particular method of
payment.  The methods of payment
permitted by this Section 6(d) are:


 


(i)            by
cash or check;


 


(ii)           bank
draft or money order payable to the Company;


 


(iii)         pursuant
to a program developed under Regulation T as promulgated by the Federal Reserve
Board that, prior to the issuance of Common Stock, results in either the
receipt of cash (or check) by the Company or the receipt of irrevocable
instructions to pay the aggregate exercise price to the Company from the sales proceeds;


 


(iv)          by
delivery to the Company (either by actual delivery or attestation) of shares of
Common Stock;


 


(v)            by a
“net exercise” arrangement pursuant to which the Company will reduce the number
of shares of Common Stock issued upon exercise by the largest whole number of
shares with a Fair Market Value that does not exceed the aggregate exercise
price; provided, however, that
the Company shall accept a cash or other payment from the Participant to the
extent of any remaining balance of the aggregate exercise price not satisfied
by such reduction in the number of whole shares to be issued; provided, further, that shares of Common
Stock will no longer be outstanding under an Option and will not be exercisable
thereafter to the extent that (A) shares are used to pay the exercise
price pursuant to the “net exercise,” (B) shares are delivered to the
Participant as a result of such exercise, and (C) shares are withheld to
satisfy tax withholding obligations;  or


 


(vi)          in any
other form of legal consideration that may be acceptable to the Board.


 


(e)           Transferability
of Options.  The Board may, in its
sole discretion, impose such limitations on the transferability of Options as
the Board shall determine.  In the
absence of such a determination by the Board to the contrary, the following
restrictions on the transferability of Options shall apply:


 


(i)            Restrictions
on Transfer.  An Option shall not be
transferable except by will or by the laws of descent and distribution and
shall be exercisable during the lifetime of the Optionholder only by the
Optionholder; provided, however, that the Board may, in its sole discretion,
permit transfer of the Option in a manner consistent with applicable tax and
securities laws upon the Optionholder’s request.


 


14





















 


(ii)           Domestic
Relations Orders.  Notwithstanding
the foregoing, an Option may be transferred pursuant to a domestic relations
order.


 


(iii)         Beneficiary
Designation.  Notwithstanding the
foregoing, the Optionholder may, by delivering written notice to the Company,
in a form provided by or otherwise satisfactory to the Company, designate a
third party who, in the event of the death of the Optionholder, shall
thereafter be entitled to exercise the Option.


 


(f)            Vesting
Generally.  The total number of
shares of Common Stock subject to an Option may vest and therefore become
exercisable in periodic installments that may or may not be equal.  The Option may be subject to such other terms
and conditions on the time or times when it may or may not be exercised (which
may be based on the satisfaction of Performance Goals or other criteria) as the
Board may deem appropriate.  The vesting
provisions of individual Options may vary. 
The provisions of this Section 6(f) are subject to any Option
provisions governing the minimum number of shares of Common Stock as to which
an Option may be exercised.


 


(g)           Termination of Continuous Service.  In the event that an Optionholder’s
Continuous Service terminates (other than for Cause or Retirement or upon the
Optionholder’s death or Disability), the Optionholder may exercise his or her
Option (to the extent that the Optionholder was entitled to exercise such
Option as of the date of termination of Continuous Service) but only within
such period of time ending on the earlier of (i) the date 3 months
following the termination of the Optionholder’s Continuous Service (or such
longer or shorter period specified in the Option Agreement), or (ii) the
expiration of the term of the Option as set forth in the Option Agreement.  If, after termination of Continuous Service,
the Optionholder does not exercise his or her Option within the time specified
herein or in the Option Agreement (as applicable), the Option shall terminate.


 


(h)           Extension of Termination Date.  An Optionholder’s Option Agreement may
provide that if the exercise of the Option following the termination of the
Optionholder’s Continuous Service (other than for Cause or Retirement or upon
the Optionholder’s death or Disability) would be prohibited at any time solely
because the issuance of shares of Common Stock would violate the registration
requirements under the Securities Act, then the Option shall terminate on the
earlier of (i) the expiration of a period of 3 months after the
termination of the Optionholder’s Continuous Service during which the exercise
of the Option would not be in violation of such registration requirements, or (ii) the
expiration of the term of the Option as set forth in the Option Agreement.


 


(i)            Disability of Optionholder.  In the event that an Optionholder’s
Continuous Service terminates as a result of the Optionholder’s Disability, the
Optionholder may exercise his or her Option (to the extent that the
Optionholder was entitled to exercise such Option as of the date of termination
of Continuous Service), but only within such period of time ending on the
earlier of (i) the date 12 months following such termination of Continuous
Service (or such longer or shorter period specified in the Option Agreement),
or (ii) the expiration of the term of the Option as set forth in the
Option Agreement.  If, after termination
of Continuous Service, the Optionholder does not exercise his or her Option
within the time specified herein or in the Option Agreement (as applicable),
the Option shall terminate.


 


15





















 


(j)            Death of Optionholder.  In the event that (i) an Optionholder’s
Continuous Service terminates as a result of the Optionholder’s death, or (ii) the
Optionholder dies within the period (if any) specified in the Option Agreement
after the termination of the Optionholder’s Continuous Service for a reason
other than death, then the Option may be exercised (to the extent the
Optionholder was entitled to exercise such Option as of the date of death) by
the Optionholder’s estate, by a person who acquired the right to exercise the
Option by bequest or inheritance or by a person designated to exercise the
option upon the Optionholder’s death, but only within the period ending on the
earlier of (i) the date 18 months following the date of death (or such
longer or shorter period specified in the Option Agreement), or (ii) the
expiration of the term of such Option as set forth in the Option
Agreement.  If, after the Optionholder’s
death, the Option is not exercised within the time specified herein or in the
Option Agreement (as applicable), the Option shall terminate.


 


(k)           Retirement
of Optionholder.  In the event that
an Optionholder’s Continuous Service terminates as a result of the Optionholder’s
Retirement, the Optionholder may exercise his or her Option (to the extent that
the Optionholder was entitled to exercise such Option as of the date of
termination of Continuous Service), but only within such period of time ending
on the earlier of (i) the date 12 months following such termination of
Continuous Service (or such longer or shorter period specified in the Option
Agreement), or (ii) the expiration of the term of the Option as set forth
in the Option Agreement.  If, after
termination of Continuous Service, the Optionholder does not exercise his or
her Option within the time specified herein or in the Option Agreement (as
applicable), the Option shall terminate.


 


(l)            Termination for Cause.  Except as explicitly provided otherwise in an
Optionholder’s Option Agreement, in the event that an Optionholder’s Continuous
Service is terminated for Cause, the Option shall terminate upon the
termination date of such Optionholder’s Continuous Service, and the
Optionholder shall be prohibited from exercising his or her Option from and
after the time of such termination of Continuous Service.


 


7.             PROVISIONS
OF STOCK AWARDS OTHER THAN OPTIONS.


 


(a)           Stock Purchase Awards.  Each Stock Purchase Award Agreement shall be
in such form and shall contain such terms and conditions as the Board shall
deem appropriate.  To the extent
consistent with the Company’s Bylaws, at the Board’s election, shares of Common
Stock may be (x) held in book entry form subject to the Company’s instructions
until any restrictions relating to the Stock Purchase Award lapse; or
(y) evidenced by a certificate, which certificate shall be held in such
form and manner as determined by the Board. 
The terms and conditions of Stock Purchase Award Agreements may change
from time to time, and the terms and conditions of separate Stock Purchase
Award Agreements need not be identical, provided,
however, that each Stock Purchase Award Agreement shall include
(through incorporation of the provisions hereof by reference in the Agreement
or otherwise) the substance of each of the following provisions:


 


(i)            Purchase Price.  At the time of the grant of a Stock Purchase
Award, the Board will determine the price to be paid by the Participant for
each share subject to the Stock Purchase Award. 
To the extent required by applicable law, the price to be paid by the
Participant 


 


16





















 


for each share of the Stock Purchase Award will not be
less than the par value of a share of Common Stock.


 


(ii)           Consideration.  At the time of the grant of a Stock Purchase
Award, the Board will determine the consideration permissible for the payment
of the purchase price of the Stock Purchase Award.  The purchase price of Common Stock acquired
pursuant to the Stock Purchase Award shall be paid either: (A) in cash or
by check at the time of purchase, (B) by past services actually rendered
to the Company or an Affiliate, or (C) in any other form of legal
consideration that may be acceptable to the Board in its sole discretion and
permissible under applicable law.


 


(iii)         Vesting. Shares of Common Stock
acquired under a Stock Purchase Award may be subject to a share repurchase
right or option in favor of the Company in accordance with a vesting schedule to
be determined by the Board.


 


(iv)          Termination of Participant’s Continuous
Service. In the event that a Participant’s Continuous Service
terminates, the Company shall have the right, but not the obligation, to
repurchase or otherwise reacquire, any or all of the shares of Common Stock
held by the Participant that have not vested as of the date of termination
under the terms of the Stock Purchase Award Agreement.  At the Board’s election, the price paid for
all shares of Common Stock so repurchased or reacquired by the Company may be
at the lesser of: (A) the Fair Market Value on the relevant date, or (B) the
Participant’s original cost for such shares. 
The Company shall not be required to exercise its repurchase or
reacquisition option until at least six (6) months (or such longer or
shorter period of time necessary to avoid a charge to earnings for financial
accounting purposes) have elapsed following the Participant’s purchase of the
shares of Common Stock acquired pursuant to the Stock Purchase Award unless
otherwise determined by the Board or provided in the Stock Purchase Award
Agreement.


 


(v)            Transferability. Rights to
purchase or receive shares of Common Stock granted under a Stock Purchase Award
shall be transferable by the Participant only upon such terms and conditions as
are set forth in the Stock Purchase Award Agreement, as the Board shall
determine in its sole discretion, and so long as Common Stock awarded under the
Stock Purchase Award remains subject to the terms of the Stock Purchase Award
Agreement.


 


(b)           Restricted
Stock Awards.  Each Restricted Stock
Award Agreement shall be in such form and shall contain such terms and
conditions as the Board shall deem appropriate. 
To the extent consistent with the Company’s Bylaws, at the Board’s
election, shares of Common Stock may be (x) held in book entry form subject to
the Company’s instructions until any restrictions relating to the Restricted
Stock Award lapse; or (y) evidenced by a certificate, which certificate
shall be held in such form and manner as determined by the Board.  The terms and conditions of Restricted Stock
Award Agreements may change from time to time, and the terms and conditions of
separate Restricted Stock Award Agreements need not be identical, provided, however, that each Restricted
Stock Award Agreement shall include (through incorporation of provisions hereof
by reference in the agreement or otherwise) the substance of each of the
following provisions:


 


17





















 


(i)            Consideration.  A Restricted Stock Award may be awarded in consideration
for (A) past services actually rendered to the Company or an Affiliate, or
(B) any other form of legal consideration that may be acceptable to the
Board in its sole discretion and permissible under applicable law.


 


(ii)           Vesting.  Shares of Common Stock awarded under the
Restricted Stock Award Agreement may be subject to forfeiture to the Company in
accordance with a vesting schedule to be determined by the Board.


 


(iii)         Termination
of Participant’s Continuous Service. 
In the event a Participant’s Continuous Service terminates, the Company
may receive via a forfeiture condition, any or all of the shares of Common
Stock held by the Participant which have not vested as of the date of
termination of Continuous Service under the terms of the Restricted Stock Award
Agreement.


 


(iv)          Transferability.  Rights to acquire shares of Common Stock
under the Restricted Stock Award Agreement shall be transferable by the
Participant only upon such terms and conditions as are set forth in the
Restricted Stock Award Agreement, as the Board shall determine in its sole
discretion, so long as Common Stock awarded under the Restricted Stock Award
Agreement remains subject to the terms of the Restricted Stock Award Agreement.


 


(c)           Restricted
Stock Unit Awards.  Each Restricted
Stock Unit Award Agreement shall be in such form and shall contain such terms
and conditions as the Board shall deem appropriate.  The terms and conditions of Restricted Stock
Unit Award Agreements may change from time to time, and the terms and conditions
of separate Restricted Stock Unit Award Agreements need not be identical, provided, however, that each Restricted
Stock Unit Award Agreement shall include (through incorporation of the
provisions hereof by reference in the Agreement or otherwise) the substance of
each of the following provisions:


 


(i)            Consideration.  At the time of grant of a Restricted Stock
Unit Award, the Board will determine the consideration, if any, to be paid by
the Participant upon delivery of each share of Common Stock subject to the
Restricted Stock Unit Award. The consideration to be paid (if any) by the
Participant for each share of Common Stock subject to a Restricted Stock Unit
Award may be paid in any form of legal consideration that may be acceptable to
the Board in its sole discretion and permissible under applicable law.


 


(ii)           Vesting. 
At the time of the grant of a Restricted Stock Unit Award,
the Board may impose such restrictions or conditions to the vesting of the
Restricted Stock Unit Award as it, in its sole discretion, deems appropriate.


 


(iii)         Payment.  A Restricted Stock Unit Award may be settled
by the delivery of shares of Common Stock, their cash equivalent, any
combination thereof or in any other form of consideration, as determined by the
Board and contained in the Restricted Stock Unit Award Agreement.


 


(iv)          Additional Restrictions.  At the time of the grant of a
Restricted Stock Unit Award, the Board, as it deems appropriate, may impose
such restrictions or conditions that 


 


18





















 


delay the delivery of the shares of Common Stock (or
their cash equivalent) subject to a Restricted Stock Unit Award to a time after
the vesting of such Restricted Stock Unit Award.


 


(v)            Dividend Equivalents.  Dividend equivalents may be
credited in respect of shares of Common Stock covered by a Restricted Stock
Unit Award, as determined by the Board and contained in the Restricted Stock
Unit Award Agreement.  At the sole
discretion of the Board, such dividend equivalents may be converted into
additional shares of Common Stock covered by the Restricted Stock Unit Award in
such manner as determined by the Board. 
Any additional shares covered by the Restricted Stock Unit Award
credited by reason of such dividend equivalents will be subject to all the
terms and conditions of the underlying Restricted Stock Unit Award Agreement to
which they relate.


 


(vi)          Termination of Participant’s Continuous
Service.  Except as otherwise
provided in the applicable Restricted Stock Unit Award Agreement, such portion
of the Restricted Stock Unit Award that has not vested will be forfeited upon
the Participant’s termination of Continuous Service.


 


(vii)         Compliance with Section 409A of the
Code.   Notwithstanding
anything to the contrary set forth herein, any Restricted Stock Unit Award
granted under the Plan that is not exempt from the requirements of Section 409A
of the Code shall contain such provisions so that such Restricted Stock Unit
Award will comply with the requirements of Section 409A of the Code.  Such restrictions, if any, shall be
determined by the Board and contained in the Restricted Stock Unit Award
Agreement evidencing such Restricted Stock Unit Award.  For example, such restrictions may include,
without limitation, a requirement that any Common Stock that is to be issued in
a year following the year in which the Restricted Stock Unit Award vests must
be issued in accordance with a fixed pre-determined schedule.


 


(d)           Stock
Appreciation Rights.  Each Stock
Appreciation Right Agreement shall be in such form and shall contain such terms
and conditions as the Board shall deem appropriate.  Stock Appreciation Rights may be granted as
stand-alone Stock Awards or in tandem with other Stock Awards.  The terms and conditions of Stock
Appreciation Right Agreements may change from time to time, and the terms and
conditions of separate Stock Appreciation Right Agreements need not be
identical; provided, however,
that each Stock Appreciation Right Agreement shall include (through
incorporation of the provisions hereof by reference in the Agreement or
otherwise) the substance of each of the following provisions:


 


(i)            Term.  No Stock Appreciation Right shall be
exercisable after the expiration of 10 years from the date of its grant or such
shorter period specified in the Stock Appreciation Right Agreement.


 


(ii)           Strike Price. Each Stock
Appreciation Right will be denominated in shares of Common Stock
equivalents.  The strike price of each
Stock Appreciation Right granted as a stand-alone or tandem Stock Award shall
not be less than 100% of the Fair Market Value of the Common Stock equivalents
subject to the Stock Appreciation Right on the date of grant.


 


(iii)         Calculation of Appreciation.  The appreciation distribution payable on the
exercise of a Stock Appreciation Right will be not greater than an amount equal
to the excess 


 


19





















 


of (A) the aggregate Fair Market Value (on the
date of the exercise of the Stock Appreciation Right) of a number of shares of
Common Stock equal to the number of share of Common Stock equivalents in which
the Participant is vested under such Stock Appreciation Right, and with respect
to which the Participant is exercising the Stock Appreciation Right on such
date, over (B) the strike price that will be determined by the Board at
the time of grant of the Stock Appreciation Right.


 


(iv)          Vesting. 
At the time of the grant of a Stock Appreciation Right, the
Board may impose such restrictions or conditions to the vesting of such Stock
Appreciation Right as it, in its sole discretion, deems appropriate.


 


(v)            Exercise.  To exercise any outstanding Stock
Appreciation Right, the Participant must provide written notice of exercise to
the Company in compliance with the provisions of the Stock Appreciation Right
Agreement evidencing such Stock Appreciation Right.


 


(vi)          Payment.  The appreciation distribution in respect to a
Stock Appreciation Right may be paid in Common Stock, in cash, in any
combination of the two or in any other form of consideration, as determined by
the Board and contained in the Stock Appreciation Right Agreement evidencing
such Stock Appreciation Right.


 


(vii)         Termination of Continuous Service.  In the event that a Participant’s Continuous
Service terminates (other than for Cause or Retirement), the Participant may
exercise his or her Stock Appreciation Right (to the extent that the
Participant was entitled to exercise such Stock Appreciation Right as of the
date of termination) but only within such period of time ending on the earlier
of (A) the date three (3) months following the termination of the
Participant’s Continuous Service (or such longer or shorter period specified in
the Stock Appreciation Right Agreement), or (B) the expiration of the term
of the Stock Appreciation Right as set forth in the Stock Appreciation Right
Agreement.  If, after termination, the
Participant does not exercise his or her Stock Appreciation Right within the
time specified herein or in the Stock Appreciation Right Agreement (as
applicable), the Stock Appreciation Right shall terminate.


 


(viii)        Disability.  In the event that a the Participant’s
Continuous Service terminates as a result of his or her Disability, such
Participant may exercise his or her Stock Appreciation Right (to the extent
that he or she was entitled to exercise such Stock Appreciation Right as of the
date of termination of Continuous Service), but only within such period of time
ending on the earlier of (i) the date 12 months following such termination
of Continuous Service (or such longer or shorter period specified in the Stock
Appreciation Right Agreement), or (ii) the expiration of the term of the
Stock Appreciation Right as set forth in the Stock Appreciation Right
Agreement.  If, after termination of
Continuous Service, the Stock Appreciation Right holder does not exercise his
or her Stock Appreciation Right within the time specified herein or in the
Stock Appreciation Right Agreement (as applicable), the Stock Appreciation
Right shall terminate.


 


(ix)          Death of Participant.  In the event that (i) a
Participant’s Continuous Service terminates as a result of his or her death, or
(ii) the Participant dies within the period (if 


 


20





















 


any) specified in the Stock Appreciation Right
Agreement after the termination of the Participant’s Continuous Service for a
reason other than death, then the Stock Appreciation Right may be exercised (to
the extent the Participant was entitled to exercise such Stock Appreciation
Right as of the date of death) by the Participant’s estate, by a person who
acquired the right to exercise the Stock Appreciation Right by bequest or
inheritance or by a person designated to exercise the Stock Appreciation Right
upon the Participant’s death, but only within the period ending on the earlier
of (i) the date 18 months following the date of death (or such longer or
shorter period specified in the Stock Appreciation Right Agreement), or (ii) the
expiration of the term of such Stock Appreciation Right as set forth in the
Stock Appreciation Right Agreement.  If,
after the Participant’s death, the Stock Appreciation Right is not exercised
within the time specified herein or in the Stock Appreciation Right Agreement
(as applicable), the Stock Appreciation Right shall terminate.


 


(x)           Retirement
of Participant.  In the event that an
Participant’s Continuous Service terminates as a result of his or her Retirement,
he or she may exercise his or her Stock Appreciation Right (to the extent that he
or she was entitled to exercise such Stock Appreciation Right as of the date of
termination of Continuous Service), but only within such period of time ending
on the earlier of (i) the date 12 months following such termination of
Continuous Service (or such longer or shorter period specified in the Stock
Appreciation Right Agreement), or (ii) the expiration of the term of the
Stock Appreciation Right as set forth in the Stock Appreciation Right
Agreement.  If, after termination of
Continuous Service, the Participant does not exercise his or her Stock
Appreciation Right within the time specified herein or in the Stock
Appreciation Right Agreement (as applicable), the Stock Appreciation Right
shall terminate.


 


(xi)          Termination for Cause.  Except as explicitly provided otherwise in an
Participant’s Stock Appreciation Right Agreement, in the event that a
Participant’s Continuous Service is terminated for Cause, the Stock
Appreciation Right shall terminate upon the termination date of such
Participant’s Continuous Service, and the Participant shall be prohibited from
exercising his or her Stock Appreciation Right from and after the time of such
termination of Continuous Service.


 


(xii)         Compliance with Section 409A of the
Code.   Notwithstanding anything to
the contrary set forth herein, any Stock Appreciation Rights granted under the
Plan that are not exempt from the requirements of Section 409A of the Code
shall contain such provisions so that such Stock Appreciation Rights will
comply with the requirements of Section 409A of the Code.  Such restrictions, if any, shall be
determined by the Board and contained in the Stock Appreciation Right Agreement
evidencing such Stock Appreciation Right. 
For example, such restrictions may include, without limitation, a
requirement that a Stock Appreciation Right that is to be paid wholly or partly
in cash must be exercised and paid in accordance with a fixed pre-determined
schedule.


 


(e)           Performance Awards.


 


(i)            Performance Stock Awards.  A Performance Stock Award is a Stock Award
that may be granted, may vest, or may be exercised based upon the attainment
during a Performance Period of certain Performance Goals.  A Performance Stock Award may, but need not,
require the completion of a specified period of Continuous Service. The length
of any 


 


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Performance Period, the Performance Goals to be
achieved during the Performance Period, and the measure of whether and to what
degree such Performance Goals have been attained shall be conclusively
determined by the Committee in its sole discretion.  The maximum benefit to be received by any
Participant in any calendar year attributable to Stock Awards described in this
Section 7(e) shall not exceed the value of four million (4,000,000) shares
of Common Stock.


 


(ii)           Performance Cash Awards.  A Performance Cash Award is a cash award that
may be granted upon the attainment during a Performance Period of certain
Performance Goals.  A Performance Cash
Award may also require the completion of a specified period of Continuous
Service.  The length of any Performance
Period, the Performance Goals to be achieved during the Performance Period, and
the measure of whether and to what degree such Performance Goals have been
attained shall be conclusively determined by the Committee in its sole discretion.  The maximum benefit to be received by any
Participant in any calendar year attributable to cash awards described in this Section 7(e) shall
not exceed one million six hundred thousand dollars ($1,600,000).


 


(f)            Other Stock Awards.  Other forms of Stock Awards valued in whole
or in part by reference to, or otherwise based on, Common Stock may be granted
either alone or in addition to Stock Awards provided for under Section 6
and the preceding provisions of this Section 7.  Subject to the provisions of the Plan, the
Board shall have sole and complete authority to determine the persons to whom
and the time or times at which such Other Stock Awards will be granted, the
number of shares of Common Stock (or the cash equivalent thereof) to be granted
pursuant to such Other Stock Awards and all other terms and conditions of such
Other Stock Awards.


 


8.             COVENANTS
OF THE COMPANY.


 


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


 


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


 


9.             USE
OF PROCEEDS FROM SALES OF COMMON STOCK.


 


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


 


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10.          MISCELLANEOUS.


 


(a)           Corporate Action Constituting Grant of Stock
Awards.  Corporate action
constituting an offer by the Company of Common Stock to any Participant under
the terms of a Stock Award shall only be deemed completed as of the date of
such corporate action, unless otherwise determined by the Board, regardless of
when the instrument, certificate, or letter evidencing the Stock Award is
actually received or accepted by the Participant.


 


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


 


(c)           No
Employment or Other Service Rights. 
Nothing in the Plan, any Award Agreement or other instrument executed
thereunder or in connection with any Award granted pursuant to the Plan shall
confer upon any Participant any right to continue to serve the Company or an
Affiliate in the capacity in effect at the time the Award was granted or shall
affect the right of the Company or an Affiliate to terminate (i) the
employment of an Employee with or without notice and with or without cause, (ii) the
service of a Consultant pursuant to the terms of such Consultant’s agreement
with the Company or an Affiliate, or (iii) the service of a Director of
the Company or an Affiliate.


 


(d)           Incentive
Stock Option $100,000 Limitation.  To
the extent that the aggregate Fair Market Value (determined at the time of
grant) of Common Stock with respect to which Incentive Stock Options are
exercisable for the first time by any Optionholder during any calendar year
(under all plans of the Company and any Affiliates) exceeds $100,000, the
Options or portions thereof that exceed such limit (according to the order in
which they were granted) shall be treated as Nonstatutory Stock Options,
notwithstanding any contrary provision of the applicable Option Agreement(s).


 


(e)           Investment
Assurances.  The Company may require
a Participant, as a condition of exercising or acquiring Common Stock under any
Stock Award, (i) to give written assurances satisfactory to the Company as
to the Participant’s knowledge and experience in financial and business matters
and/or to employ a purchaser representative reasonably satisfactory to the
Company who is knowledgeable and experienced in financial and business matters
and that he or she is capable of evaluating, alone or together with the
purchaser representative, the merits and risks of exercising the Stock Award;
and (ii) to give written assurances satisfactory to the Company stating
that the Participant is acquiring Common Stock subject to the Stock Award for
the Participant’s own account and not with any present intention of selling or
otherwise distributing the Common Stock. 
The foregoing requirements, and any assurances given pursuant to such
requirements, shall be inoperative if (x) the issuance of the shares upon the
exercise or acquisition of Common Stock under the Stock Award has been
registered under a then currently effective registration statement under the
Securities Act, or (y) as to any particular requirement, a determination is
made by counsel for the Company that such requirement need not be met in the
circumstances under the then applicable securities laws.  The Company may, upon advice of counsel to
the Company, place legends on stock certificates issued under the Plan as such 


 


23





















 


counsel deems necessary or appropriate in order to
comply with applicable securities laws, including, but not limited to, legends
restricting the transfer of the Common Stock.


 


(f)            Withholding
Obligations.  The Company may, in its
sole discretion, satisfy any federal, state or local tax withholding obligation
relating to an Award by any of the following means (in addition to the Company’s
right to withhold from any payment to the Participant by the Company) or by a
combination of such means: (i) causing the Participant to tender a cash
payment; (ii)  withholding shares of Common Stock from the shares of
Common Stock issued or otherwise issuable to the Participant in connection with
a Stock Award; or (iii) by such other method as may be set forth in the Award
Agreement.


 


(g)           Electronic
Delivery.  Any reference herein to a “written”
agreement or document shall include any agreement or document delivered
electronically or posted on the Company’s intranet.


 


11.          ADJUSTMENTS
UPON CHANGES IN COMMON STOCK; OTHER CORPORATE EVENTS.


 


(a)           Capitalization
Adjustments.  If any change is made
in, or other events occur with respect to, the Common Stock subject to the Plan
or subject to any Stock Award after the Effective Date without the receipt of
consideration by the Company (through merger, consolidation, reorganization,
recapitalization, reincorporation, stock dividend, dividend in property other
than cash, stock split, liquidating dividend, combination of shares, exchange
of shares, change in corporate structure or other transaction not involving the
receipt of consideration by the Company (each a “Capitalization Adjustment”)), the Board
shall appropriately adjust: (i) the class(es) and maximum number of
securities subject to the Plan pursuant to Section 4(a), (ii) the
class(es) and maximum number of securities that may be issued pursuant to the
exercise of Incentive Stock Options pursuant to Section 4(c), (iii) the
class(es) and maximum number of securities that may be awarded to any person
pursuant to Section 5(c) and 7(e)(i) , and (iv) the
class(es) and number of securities and price per share of stock subject to
outstanding Stock Awards.  The Board
shall make such adjustments, and its determination shall be final, binding and
conclusive.  (Notwithstanding the
foregoing, the conversion of any convertible securities of the Company shall
not be treated as a transaction “without receipt of consideration” by the
Company.)


 


(b)           Dissolution
or Liquidation.  In the event of a
dissolution or liquidation of the Company, all outstanding Stock Awards (other
than Stock Awards consisting of vested and outstanding shares of Common Stock
not subject to the Company’s right of repurchase) shall become fully vested,
exercisable and/or no longer subject to repurchase or forfeiture (to the extent
such Stock Awards have not previously expired or terminated) before the
dissolution or liquidation is completed but contingent on its completion.


 


(c)           Corporate Transaction.   The following provisions shall apply to
Awards in the event of a Corporate Transaction unless otherwise provided in the
instrument evidencing the Award or any other written agreement between the Company
or any Affiliate and the holder of the Award or unless otherwise expressly
provided by the Board at the time of grant of an Award.


 


24





















 


(i)            Awards May Be Assumed.  In the event of a Corporate Transaction, any
surviving corporation or acquiring corporation (or the surviving or acquiring
corporation’s parent company) may assume or continue any or all Awards
outstanding under the Plan or may substitute similar awards for Awards
outstanding under the Plan (including but not limited to, awards to acquire the
same consideration paid to the stockholders of the Company pursuant to the
Corporate Transaction), and any reacquisition or repurchase rights held by the
Company in respect of Common Stock issued pursuant to Awards may be assigned by
the Company to the successor of the Company (or the successor’s parent company,
if any), in connection with such Corporate Transaction.  A surviving corporation or acquiring
corporation (or its parent) may choose to assume or continue only a portion of
an Award or substitute a similar award for only a portion of an Award.  The terms of any assumption, continuation or
substitution shall be set by the Board in accordance with the provisions of Section 3.


 


(ii)           Awards Held by Current Participants.  In the event of a Corporate Transaction in
which the surviving corporation or acquiring corporation (or its parent
company) does not assume or continue such outstanding Awards or substitute
similar awards for such outstanding Awards, then with respect to Awards that
have not been assumed, continued or substituted and that are held by
Participants whose Continuous Service has not terminated prior to the effective
time of the Corporate Transaction (referred to as the “Current Participants”),
the vesting of such Awards (and, if applicable, the time at which Stock Awards
may be exercised) shall (contingent upon the effectiveness of the Corporate
Transaction) be accelerated in full to a date prior to the effective time of
such Corporate Transaction as the Board shall determine (or, if the Board shall
not determine such a date, to the date that is five days prior to the effective
time of the Corporate Transaction), and such Awards shall terminate if not
exercised (if applicable) at or prior to the effective time of the Corporate
Transaction, and any reacquisition or repurchase rights held by the Company
with respect to such Awards shall lapse (contingent upon the effectiveness of
the Corporate Transaction).


 


(iii)         Awards Held by Persons other than Current
Participants.  In the event of
a Corporate Transaction in which the surviving corporation or acquiring
corporation (or its parent company) does not assume or continue such
outstanding Awards or substitute similar awards for such outstanding Awards,
then with respect to Awards that have not been assumed, continued or
substituted and that are held by persons other than Current Participants, the
vesting of such Awards (and, if applicable, the time at which Stock Awards may
be exercised) shall not be accelerated and such Awards (other than a Stock
Award consisting of vested and outstanding shares of Common Stock not subject
to the Company’s right of repurchase) shall terminate if not exercised (if
applicable) prior to the effective time of the Corporate Transaction; provided, however, that any reacquisition
or repurchase rights held by the Company with respect to such Awards shall not
terminate and may continue to be exercised notwithstanding the Corporate
Transaction.


 


(iv)          Payment for Stock Awards in Lieu of Exercise.  Notwithstanding the foregoing, in the event
an Award will terminate if not exercised prior to the effective time of a
Corporate Transaction, the Board may provide, in its sole discretion, that the
holder of such Award may not exercise such Stock Award but will receive a
payment, in such form as may be determined by the Board, equal in value to the
excess, if any, of (A) the value of the property the 


 


25





















 


holder of the Stock Award would have received upon the
exercise of the Award, over (B) any exercise price payable by such holder
in connection with such exercise.


 


(d)           Change in
Control.  An Award may be subject to
additional acceleration of vesting and exercisability upon or after a Change in
Control as may be provided in the applicable Award agreement or as may be
provided in any other written agreement between the Company or any Affiliate
and the Participant, but in the absence of such provision, no such acceleration
shall occur.


 


(e)           Parachute
Payments.


 


(i)            Except
as otherwise provided in a written agreement between the Company and a
Participant, if the acceleration of the vesting and exercisability of Awards
provided for in Sections 11(c) and 11(d), together with payments and other
benefits of a Participant  (collectively,
the “Payment”)
(i) constitute a “parachute payment” within the meaning of Section 280G
of the Code, or any comparable successor provisions, and (ii) but for this
Section 11(e) would be subject to the excise tax imposed by Section 4999
of the Code, or any comparable successor provisions (the “Excise Tax”), then
such Payment shall be either (1) provided to such Participant in full, or (2) provided
to such Participant as to such lesser extent that would result in no portion of
such Payment being subject to the Excise Tax, whichever of the foregoing
amounts, when taking into account applicable federal, state, local and foreign
income and employment taxes, the Excise Tax, and any other applicable taxes,
results in the receipt by such Participant, on an after-tax basis, of the
greatest amount of the Payment, notwithstanding that all or some portion of the
Payment may be subject to the Excise Tax.


 


(ii)           The
Company shall appoint a nationally recognized independent accounting firm (the “Accountant”) to make
the determinations required hereunder, which accounting firm shall not then be
serving as accountant or auditor for the individual, entity or group that
effected the Change in Control.  The
Company shall bear all costs and expenses with respect to the determinations
the Accountant may reasonably incur in connection with any calculations
contemplated by this Section 11(e).


 


(iii)         Unless
the Company and such Participant otherwise agree in writing, any determination
required under this Section 11(e) shall be made in writing in good
faith by the Accountant.  If a reduction
in the Payment is to be made as provided above, reductions shall occur in the
following order unless the Participant elects in writing a different order (provided, however, that such election
shall be subject to Company approval if made on or after the date that triggers
the Payment or a portion thereof):(A) reduction of cash payments; (B) cancellation
of accelerated vesting of Options and other Awards; and (C) reduction of
other benefits paid to the Participant. 
If acceleration of vesting of Awards is to be reduced, such acceleration
of vesting shall be cancelled in the reverse order of date of grant of the
Awards (i.e., the earliest
granted Award cancelled last) unless the Participant elects in writing a
different order for cancellation.


 


(iv)          For
purposes of making the calculations required by this Section 11(e), the
Accountant may make reasonable assumptions and approximations concerning
applicable taxes and may rely on reasonable, good faith interpretations
concerning the application of the Code 


 


26





















 


and other applicable legal authority.  The Company and the Participant shall furnish
to the Accountant such information and documents as the Accountant may
reasonably request in order to make such a determination.  The Company shall bear all costs that the
Accountant may reasonably incur in connection with any calculations contemplated
by this Section 11(e).


 


(v)            If,
notwithstanding any reduction described above, the Internal Revenue Service
(the “IRS”)
determines that the Participant is liable for the Excise Tax as a result of the
Payment, then the Participant shall be obligated to pay back to the Company,
within thirty (30) days after a final IRS determination or, in the event that
the Participant challenges the final IRS determination, a final judicial
determination, a portion of the Payment (the “Repayment Amount”).  The Repayment Amount with respect to the
Payment shall be the smallest such amount, if any, as shall be required to be
paid to the Company so that the Participant’s net after-tax proceeds with
respect to the Payment (after taking into account the payment of the Excise Tax
and all other applicable taxes imposed on the Payment) shall be maximized.  The Repayment Amount with respect to the
Payment shall be zero if a Repayment Amount of more than zero would not result
in the Participant’s net after-tax proceeds with respect to the Payment being
maximized.  If the Excise Tax is not
eliminated pursuant to this paragraph, the Optionholder shall pay the Excise
Tax.


 


(vi)          Notwithstanding
any other provision of this Section 11(e), if (A) there is a
reduction in the Payment as described above, (B) the IRS later determines
that the Participant is liable for the Excise Tax, the payment of which would
result in the maximization of the Participant’s net after-tax proceeds of the
Payment (calculated as if the Payment had not previously been reduced), and (C) the
Participant the Excise Tax, then the Company shall pay or otherwise provide to
the Participant that portion of the Payment that was reduced pursuant to this Section 11(e) contemporaneously
or as soon as administratively possible after the Optionholder pays the Excise
Tax so that the Participant’s net after-tax proceeds with respect to the
Payment are maximized.


 


(vii)         If the
Participant either (A) brings any action to enforce rights pursuant to
this Section 11(e), or (B) defends any legal challenge to his or her
rights under this Section 11(e), the Participant shall be entitled to
recover attorneys’ fees and costs incurred in connection with such action,
regardless of the outcome of such action; provided,
however, that if such action is commenced by the Participant, the court
finds that the action was brought in good faith.


 


12.          TERMINATION
OR SUSPENSION OF THE PLAN.


 


(a)           Plan
Term.  Unless sooner terminated by
the Board pursuant to Section 3, the Plan shall automatically terminate on
the day before the 10th anniversary of the date the Plan is adopted by the
Board.  No Awards may be granted under
the Plan while the Plan is suspended or after it is terminated.


 


(b)           No
Impairment of Rights.  Termination of
the Plan shall not impair rights and obligations under any Award granted while
the Plan is in effect except with the written consent of the affected
Participant.


 


27





















 


13.                               EFFECTIVE
DATE OF PLAN.


 


This Plan shall become
effective on the Effective Date.


 


14.                               CHOICE
OF LAW.


 


The law of the State of
California shall govern all questions concerning the construction, validity and
interpretation of this Plan, without regard to such state’s conflict of laws
rules.


 


As Adopted By


 


The Board of Directors on November 29, 2005


 


The Shareholders on [February 21, 2006]


 


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