exv10w5



 





Exhibit 10.5




NOVINT TECHNOLOGIES, INC.




AMENDED AND RESTATED




2004 STOCK INCENTIVE PLAN




ARTICLE ONE




GENERAL PROVISIONS




I. PURPOSE OF THE PLAN




      This Amended and Restated 2004 Stock Incentive Plan (the “Plan”) is intended to promote the
interests of Novint Technologies, Inc., a Delaware corporation (the “Corporation”) by providing
eligible persons with the opportunity to acquire a proprietary interest, or otherwise increase
their proprietary interest, in the Corporation as an incentive for them to remain in the Service of
the Corporation. Capitalized terms not defined herein, shall have the meanings assigned to them in
the attached Appendix.



II. STRUCTURE OF THE PLAN




      A. The Plan shall have a Discretionary Option Grant Program under which eligible persons may,
at the discretion of the Plan Administrator, be granted options to purchase shares of Common Stock.



      B. The provisions of Articles One and Three shall apply to all equity programs under the Plan
and shall govern the interests of all persons under the Plan.



III. ADMINISTRATION OF THE PLAN




      A. The Plan shall be administered by the Board or one or more committees appointed by the
Board, provided that (1) beginning with the Section 12 Registration Date, the Primary Committee
shall have sole and exclusive authority to administer the Plan with respect to Section 16 Insiders,
and (2) administration of the Plan may otherwise, at the Board’s discretion, be vested in the
Primary Committee or a Secondary Committee. Beginning with the Section 12 Registration Date, any
discretionary option grants or stock issuances to members of the Primary Committee must be
authorized and approved by a disinterested majority of the Board.



      B. Members of the Primary Committee or any Secondary Committee shall serve for such period of
time as the Board may determine and may be removed by the Board at any time. The Board may also at
any time terminate the functions of any Secondary Committee and reassume all powers and authority
previously delegated to such committee.



      C. Each Plan Administrator shall, within the scope of its administrative functions under the
Plan, have full power and authority (subject to the provisions of the Plan) to establish such rules
and regulations as it may deem appropriate for proper administration of the Discretionary Option
Grant to make such determinations under, and issue such interpretations of, the provisions of such
programs and any outstanding options or stock issuances thereunder as it may deem necessary or
advisable. Decisions of the Plan Administrator within the scope of its administrative functions
under the Plan shall be final and
binding on all parties who have an interest in the Discretionary Option Grant under its
jurisdiction or any option or stock issuance thereunder.



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      D. Service on the Primary Committee or the Secondary Committee shall constitute service as a
Board member, and members of each such committee shall accordingly be entitled to full
indemnification and reimbursement as Board members for their service on such committee. No member
of the Primary Committee or the Secondary Committee shall be liable for any act or omission made in
good faith with respect to the Plan or any option grants or stock issuances under the Plan.



IV. ELIGIBILITY




      A. The persons eligible to participate in the Discretionary Option Grant are as follows:




          (i) Employees,




          (ii) non-employee members of the Board or the board of directors of any Subsidiary, and




          (iii) consultants and other independent advisors who provide services to the
Corporation (or any Subsidiary).



      B. Each Plan Administrator shall, within the scope of its administrative jurisdiction under
the Plan, have full authority to determine with respect to the option grants under the
Discretionary Option Grant Program, which eligible persons are to receive grants, the time or times
when such grants are to be made, the number of shares to be covered by each such grant, the status
of a granted option as either an Incentive Option or a Non-Statutory Option, the time or times when
each option is to become exercisable, the vesting schedule (if any) applicable to the option shares
and the maximum term for which the option is to remain outstanding.



      C. The Plan Administrator shall have the absolute discretion to grant options in accordance
with the Discretionary Option Grant Program.



V. STOCK SUBJECT TO THE PLAN




      A. The stock issuable under the Plan shall be shares of authorized but unissued or reacquired
Common Stock, including shares repurchased by the Corporation on the open market. The maximum
number of shares of Common Stock initially reserved for issuance over the term of the Plan shall
not exceed 7,500,000 shares.



      B. Shares of Common Stock subject to outstanding options shall be available for subsequent
issuance under the Plan to the extent (i) those options expire or terminate for any reason prior to
exercise in full or (ii) the options are cancelled in accordance with the cancellation-regrant
provisions of Article Two. Unvested shares issued under the Plan and subsequently cancelled by the
Corporation shall be added back to the number of shares of Common Stock reserved for issuance under
the Plan and shall accordingly be available for reissuance through one or more subsequent option
grants under the Plan. In addition, should the exercise price of an option under the Plan be paid
with shares of Common Stock or should shares of Common Stock otherwise issuable under the Plan be
withheld by the Corporation in satisfaction of the withholding taxes incurred in connection with
the exercise of an option or the vesting of a stock issuance under the Plan, then the number of
shares of Common Stock available for issuance under the Plan shall be reduced only by the net
number of shares of Common Stock issued to the holder
of such option or stock issuance, and not by the gross number of shares for which the option
is exercised or which vest under the stock issuance.



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      C. If any change is made to the Common Stock by reason of any stock split, stock dividend,
recapitalization, combination of shares, exchange of shares or other change affecting the
outstanding Common Stock as a class without the Corporation’s receipt of consideration, appropriate
adjustments shall be made to: (i) the maximum number and/or class of securities issuable under the
Plan; (ii) the number and/or class of securities for which any one person may be granted stock
options under this Plan per calendar year; and (iii) the number and/or class of securities and the
exercise price per share in effect under each outstanding option under the Plan. Such adjustments
to the outstanding options are to be effected in a manner which shall preclude the enlargement or
dilution of rights and benefits under such options. The adjustments determined by the Plan
Administrator shall be final, binding and conclusive.



ARTICLE TWO




DISCRETIONARY OPTION GRANT PROGRAM




I. OPTION TERMS




      Each option shall be evidenced by one or more documents in the form approved by the Plan
Administrator; provided, however, that each such document shall comply with the terms specified
below. Each document evidencing an Incentive Option shall, in addition, be subject to the
provisions of the Plan applicable to such option.



      A. EXERCISE PRICE.



           1. The exercise price per share shall be fixed by the Plan Administrator but shall not be less
than eighty-five percent (85%) of the Fair Market Value per share of Common Stock on the option
grant date, except that the exercise price shall not be less than one hundred ten percent (110%) of
the Fair Market Value per share of Common Stock on the option grant date in the case of any person
who owns stock possessing more than ten percent (10%) of the total combined voting power of all
classes of stock of the Corporation or its subsidiary corporations.



           2. The exercise price shall become immediately due upon exercise of the option and may,
subject to the provisions of Section I of Article Three, be payable by cash or check made payable
to the Corporation; provided however, the Plan Administrator may, at its sole discretion, provide
grantees with the ability to exercise their options using the cashless exercise method, as set
forth in their Option Agreements. Payment of the exercise price for the purchased shares must be
made on the Exercise Date, except as otherwise provided by the Plan Administrator.



      B. EXERCISE AND TERM OF OPTIONS. Each option shall be exercisable at such time or times,
during such period and for such number of shares as shall be determined by the Plan Administrator
and set forth in the documents evidencing the option. However, no option shall have a term in
excess of ten (10) years measured from the option grant date.



      C. EFFECT OF TERMINATION OF SERVICE.



           1. The following provisions shall govern the exercise of any options held by the Optionee at
the time of cessation of Service or death:



                (i) Any option outstanding at the time of the Optionee’s cessation of Service for
any
reason shall remain exercisable for such period of time thereafter as shall be determined by
the Plan Administrator and set forth in the documents evidencing the option.



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                (ii) Any option held by the Optionee at the time of death and exercisable in whole or
in part at that time may be subsequently exercised by the personal representative of the
Optionee’s estate or by the person or persons to whom the option is transferred pursuant to
the Optionee’s will or in accordance with the laws of descent and distribution of by the
Optionee’s designated beneficiary or beneficiaries of that option.



                (iii) Should the Optionee’s Service be terminated for Misconduct or should the
Optionee
otherwise engage in Misconduct while holding one or more outstanding options under this
Article Two, then all those options shall terminate immediately and cease to be outstanding.



                (iv) During the applicable post-Service exercise period, the option may not be
exercised in the aggregate for more than the number of vested shares for which the option is
exercisable on the date of the Optionee’s cessation of Service. Upon the expiration of the
applicable exercise period or (if earlier) upon the expiration of the option term, the
option shall terminate and cease to be outstanding for any vested shares for which the
option has not been exercised. However, the option shall, immediately upon the Optionee’s
cessation of Service, terminate and cease to be outstanding to the extent the option is not
otherwise at that time exercisable for vested shares.



           2. The Plan Administrator shall have complete discretion, either at the time an option is
granted or at any time while the option remains outstanding, to:



                (i) extend the period of time for which the option is to remain exercisable following
the Optionee’s cessation of Service from the limited exercise period otherwise in effect for
that option to such greater period of time as the Plan Administrator shall deem appropriate,
but in no event beyond the expiration of the option term, and/or



                (ii) permit the option to be exercised, during the applicable post-Service exercise
period, not only with respect to the number of vested shares of Common Stock for which such
option is exercisable at the time of the Optionee’s cessation of Service but also with
respect to one or more additional installments in which the Optionee would have vested had
the Optionee continued in Service.



      D. NO STOCKHOLDER RIGHTS. The holder of an option shall have no stockholder rights with
respect to the shares subject to the option until such person shall have exercised the option, paid
the exercise price and become a holder of record of the purchased shares.



      E. LIMITED TRANSFERABILITY OF OPTIONS. During the lifetime of the Optionee, Incentive Options
shall be exercisable only by the Optionee and shall not be assignable or transferable other than by
will or by the laws of descent and distribution following the Optionee’s death. Non-Statutory
Options shall be subject to the same limitation, except that a Non-Statutory Option may be assigned
in whole or in part during Optionee’s lifetime to one or more members of the Optionee’s Immediate
Family or to a trust established for the exclusive benefit of one or more family members or the
Optionee’s former spouse, to the extent such assignment is in connection with Optionee’s estate
plan or pursuant to a domestic relations order. The assigned portion shall be exercisable only by
the person or persons who acquire a proprietary interest in the option pursuant to such assignment.
The terms applicable to the assigned portion shall be the same as those in effect for this option
immediately prior to such assignment and shall be set forth in such documents issued to the
assignee as the Plan Administrator may deem appropriate. Notwithstanding the foregoing, the
Optionee may also designate one or more persons as the beneficiary or beneficiaries of his or her
outstanding options under this Article Two, and



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those options shall, in accordance with such
designation, automatically be transferred to such beneficiary or beneficiaries upon the Optionee’s
death while holding those options. Such beneficiary or beneficiaries shall take the transferred
option subject to all the terms and conditions of this Agreement, including (without limitation)
the limited time period during which the option may be exercised following the Optionee’s death.



      F. REGISTRATION RIGHTS. The Plan Administrator may also, at its sole discretion, grant piggy
back registration rights with respect to shares issuable upon exercise of the Options granted
hereunder.



II. INCENTIVE OPTIONS




      The terms specified below shall be applicable to all Incentive Options. Except as modified by
the provisions of this Section II, all the provisions of Articles One, Two and Three shall be
applicable to Incentive Options. Options which are specifically designated as Non-Statutory
Options when issued under the Plan shall NOT be subject to the terms of this Section II.



      A. ELIGIBILITY. Incentive Options may only be granted to Employees.



      B. EXERCISE PRICE. The exercise price per share shall not be less than one hundred percent
(100%) of the Fair Market Value per share of Common Stock on the option grant date.



      C. DOLLAR LIMITATION. The aggregate Fair Market Value of the shares of Common Stock
(determined as of the respective date or dates of grant) for which one or more options granted to
any Employee under the Plan (or any other option plan of the Corporation or any Subsidiary) may for
the first time become exercisable as Incentive Options during any one calendar year shall not
exceed the sum of One Hundred Thousand Dollars ($100,000). To the extent the Employee holds two
(2) or more such options which become exercisable for the first time in the same calendar year, the
foregoing limitation on the exercisability of such options as Incentive Options shall be applied on
the basis of the order in which such options are granted.



      D. FAILURE TO QUALIFY AS INCENTIVE OPTION. To the extent that any option governed by this
Plan does not qualify as an Incentive Option by reason of the dollar limitation described in
Section II.C of Article Two or for any other reason, such option shall be exercisable as a
Non-Statutory Option under the Federal tax laws.



      E. 10% STOCKHOLDER. If any Employee to whom an Incentive Option is granted is a 10%
Stockholder, then the exercise price per share shall not be less than one hundred ten percent
(110%) of the Fair Market Value per share of Common Stock on the option grant date, and the option
term shall not exceed five (5) years measured from the option grant date.



III. CANCELLATION AND REGRANT OF OPTIONS




      The Plan Administrator shall have the authority to effect, at any time and from time to time,
with the consent of the affected option holders, the cancellation of any or all outstanding options
under the Discretionary Option Grant Program and to grant in substitution new options covering the
same or different number of shares of Common Stock but with an exercise price per share based on the
Fair Market Value per share of Common Stock on the new grant date.



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IV. CHANGE IN CONTROL/HOSTILE TAKE-OVER




      A. No option outstanding at the time of a Change in Control shall become exercisable on an
accelerated basis if and to the extent: (i) that option is, in connection with the Change in
Control, assumed by the successor corporation (or Parent thereof) or otherwise continued in full
force and effect pursuant to the terms of the Change in Control transaction, (ii) such option is
replaced with a cash incentive program of the successor corporation which preserves the spread
existing at the time of the Change in Control on the shares of Common Stock for which the option is
not otherwise at that time exercisable and provides for subsequent payout in accordance with the
same exercise/vesting schedule applicable to those option shares or (iii) the acceleration of such
option is subject to other limitations imposed by the Plan Administrator at the time of the option
grant. However, if none of the foregoing conditions are satisfied, then each option outstanding at
the time of the Change in Control but not otherwise exercisable for all the shares of Common Stock
at that time subject to such option shall automatically accelerate so that each such option shall,
immediately prior to the effective date of the Change in Control, become exercisable for all the
shares of Common Stock at the time subject to such option and may be exercised for any or all of
those shares as fully vested shares of Common Stock.



      B. Immediately following the consummation of the Change in Control, all outstanding options
shall terminate and cease to be outstanding, except to the extent assumed by the successor
corporation (or Parent thereof) or otherwise expressly continued in full force and effect pursuant
to the terms of the Change in Control transaction.



      C. Each option which is assumed in connection with a Change in Control or otherwise continued
in effect shall be appropriately adjusted, immediately after such Change in Control, to apply to
the number and class of securities which would have been issuable to the Optionee in consummation
of such Change in Control had the option been exercised immediately prior to such Change in
Control. Appropriate adjustments to reflect such Change in Control shall also be made to: (i) the
exercise price payable per share under each outstanding option, provided the aggregate exercise
price payable for such securities shall remain the same; (ii) the maximum number and/or class of
securities available for issuance over the remaining term of the Plan; and (iii) the maximum number
and/or class of securities for which any one person may be granted options under the Plan per
calendar year. To the extent the actual holders of the Corporation’s outstanding Common Stock
receive cash consideration for their Common Stock in consummation of the Change in Control
transaction, the successor corporation may, in connection with the assumption of the outstanding
options under the Discretionary Option Grant Program, substitute one or more shares of its own
common stock with a fair market value equivalent to the cash consideration paid per share of Common
Stock in such Change in Control transaction.



      D. The Plan Administrator shall have the discretionary authority to structure one or more
outstanding options under the Discretionary Option Grant Program so that those options shall,
immediately prior to the effective date of a Change in Control, become exercisable for all the
shares of Common Stock at that time subject to such options on an accelerated basis and may be
exercised for any or all of such shares as fully vested shares of Common Stock, whether or not
those options are to be assumed or otherwise continued in full force and effect pursuant to the
express terms of the Change in Control transaction.



      E. The Plan Administrator shall have full power and authority to structure one or more
outstanding options under the Discretionary Option Grant Program so that those options shall vest
and become exercisable for all the shares of Common Stock at that time subject to such options on
an accelerated basis in the event the Optionee’s Service is subsequently terminated by reason of
an Involuntary Termination within a designated period (not to exceed eighteen (18) months)
following the effective date of any Change in Control in which those options do not otherwise
accelerate. Any options so accelerated shall remain exercisable for fully vested shares of Common
Stock until the expiration or sooner termination of the option term.



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      F. The Plan Administrator shall have the discretionary authority to structure one or more
outstanding options under the Discretionary Option Grant Program so that those options shall,
immediately prior to the effective date of a Hostile Take-Over, vest and become exercisable for all
the shares of Common Stock at that time subject to such options on an accelerated basis and may be
exercised for any or all of such shares as fully vested shares of Common Stock.



      G. The portion of any Incentive Option accelerated in connection with a Change in Control or
Hostile Take-Over shall remain exercisable as an Incentive Option only to the extent the applicable
One Hundred Thousand Dollar ($100,000) limitation is not exceeded. To the extent such dollar
limitation is exceeded, the accelerated portion of such option shall be exercisable as a
Non-Statutory Option under the Federal tax laws.



      H. The grant of options under the Discretionary Option Grant Program shall in no way affect
the right of the Corporation to adjust, reclassify, reorganize or otherwise change its capital or
business structure or to merge, consolidate, dissolve, liquidate or sell or transfer all or any
part of its business or assets.



ARTICLE THREE




MISCELLANEOUS




I. FINANCING




      The Plan Administrator may permit any Optionee to pay the option exercise price under the
Discretionary Option Grant Program by delivering a full-recourse, interest bearing promissory note
payable in one or more installments. The terms of any such promissory note (including the interest
rate and the terms of repayment) shall be established by the Plan Administrator in its sole
discretion. In no event may the maximum credit available to the Optionee exceed the sum of (i) the
aggregate option exercise price or purchase price payable for the purchased shares plus (ii) any
Federal, state and local income and employment tax liability incurred by the Optionee in connection
with the option exercise or share purchase.



II. TAX WITHHOLDING




      The Corporation’s obligation to deliver shares of Common Stock upon the exercise of options or
the issuance or vesting of such shares under the Plan shall be subject to the satisfaction of all
applicable Federal, state and local income and employment tax withholding requirements.



III. EFFECTIVE DATE AND TERM OF THE PLAN




      A. The Plan shall become effective immediately upon the Plan Effective Date. Options may
be granted under the Discretionary Option Grant at any time on or after the Plan Effective Date.
However, no options granted under the Plan may be exercised, and no shares shall be issued under
the Plan, until the Plan is approved by the Corporation’s stockholders. If such stockholder
approval is not obtained within twelve (12) months after the Plan Effective Date, then all options
previously granted
under this Plan shall terminate and cease to be outstanding, and no further options shall be
granted and no shares shall be issued under the Plan.



      B. The Plan shall terminate upon the EARLIEST of (i) the tenth anniversary of the Plan
Effective Date, (ii) the date on which all shares available for issuance under the Plan shall have
been issued as fully-vested shares or (iii) the termination of all outstanding options in
connection with a



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Change in Control. Upon such plan termination, all outstanding option grants and
unvested stock issuances shall thereafter continue to have force and effect in accordance with the
provisions of the documents evidencing such grants or issuances.



IV. AMENDMENT OF THE PLAN




      A. The Board shall have complete and exclusive power and authority to amend or modify the Plan
in any or all respects. However, no such amendment or modification shall adversely affect the
rights and obligations with respect to stock options or unvested stock issuances at the time
outstanding under the Plan unless the Optionee consents to such amendment or modification. In
addition, certain amendments may require stockholder approval pursuant to applicable laws or
regulations.



      B. Options to purchase shares of Common Stock may be granted under the Discretionary Option
Grant Program that are in each instance in excess of the number of shares then available for
issuance under the Plan, provided any excess shares actually issued under those programs shall be
held in escrow until there is obtained any required approval of an amendment sufficiently
increasing the number of shares of Common Stock available for issuance under the Plan. If such
approval is not obtained within twelve (12) months after the date the first such excess issuances
are made, then (i) any unexercised options granted on the basis of such excess shares shall
terminate and cease to be outstanding and (ii) the Corporation shall promptly refund to the
Optionees the exercise or purchase price paid for any excess shares issued under the Plan and held
in escrow, together with interest (at the applicable Short Term Federal Rate) for the period the
shares were held in escrow, and such shares shall thereupon be automatically cancelled and cease to
be outstanding.



V. USE OF PROCEEDS




      Any cash proceeds received by the Corporation from the sale of shares of Common Stock under
the Plan shall be used for general corporate purposes.



VI. REGULATORY APPROVALS




      A. The implementation of the Plan, the granting of any stock option under the Plan and the
issuance of any shares of Common Stock upon the exercise of any granted option shall be subject to
the Corporation’s procurement of all approvals and permits required by regulatory authorities
having jurisdiction over the Plan, the stock options granted under it and the shares of Common
Stock issued pursuant to it.



      B. No shares of Common Stock or other assets shall be issued or delivered under the Plan
unless and until there shall have been compliance with all applicable requirements of Federal and
state securities laws, including the filing and effectiveness of the Form S-8 registration
statement for the shares of Common Stock issuable under the Plan, and all applicable listing
requirements of any stock exchange (or the Nasdaq National Market, if applicable) on which Common
Stock is then listed for trading.



VII. NO EMPLOYMENT/SERVICE RIGHTS




      Nothing in the Plan shall confer upon the Optionee any right to continue in Service for any
period of specific duration or interfere with or otherwise restrict in any way the rights of the
Corporation (or any Subsidiary employing or retaining such person) or of the Optionee, which rights
are hereby expressly reserved by each, to terminate such person’s Service at any time for any
reason, with or without cause.



X. FINANCIAL REPORTS




      The Corporation shall deliver financial reports and other information if such reports and
information is required to be delivered pursuant to applicable law.



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APPENDIX




      The following definitions shall be in effect under the Plan:


A. BOARD shall mean the Corporation’s Board of Directors.



B. CHANGE IN CONTROL shall mean a change in ownership or control of the Corporation effected
through any of the following transactions:




      (i) a stockholder-approved merger or consolidation in which securities possessing more than
fifty percent (50%) of the total combined voting power of the Corporation’s outstanding securities
are transferred to a person or persons different from the persons holding those securities
immediately prior to such transaction;



      (ii) a sale, transfer or other disposition of all or substantially all of the Corporation’s
assets; or



      (iii) the acquisition, directly or indirectly by any person or related group of persons (other
than the Corporation or a person that directly or indirectly controls, is controlled by, or is
under common control with, the Corporation), of beneficial ownership (within the meaning of Rule
13d-3 of the 1934 Act) of securities possessing more than fifty percent (50%) of the total combined
voting power of the Corporation’s outstanding securities pursuant to a tender or exchange offer
made directly to the Corporation’s stockholders which the Board recommends such stockholders
accept.


C. CODE shall mean the Internal Revenue Code of 1986, as amended.



D. COMMON STOCK shall mean the Corporation’s common stock.



E. CORPORATION shall mean Novint Technologies, Inc., a Delaware corporation, and its successors.



F. DISCRETIONARY OPTION GRANT PROGRAM shall mean the discretionary option grant program in effect
under the Plan.



G. EMPLOYEE shall mean an individual who is in the employ of the Corporation (or any Subsidiary),
subject to the control and direction of the employer entity as to both the work to be performed and
the manner and method of performance.



H. EXERCISE DATE shall mean the date on which the Corporation shall have received written notice of
the option exercise.



I. FAIR MARKET VALUE per share of Common Stock on any relevant date shall be determined in
accordance with the following provisions:




      (i) if the Common Stock is then listed or quoted on a Trading Market, the Fair Market Value is
the daily volume weighted average price per share of the Common Stock for such date (or the nearest
preceding date) on the primary Trading Market on which the Common Stock is then listed or quoted;



      (ii) if the Common Stock is not then listed or quoted on an Trading Market and if prices for
the Common Stock are then reported in the “Pink Sheets” published by the National Quotation Bureau
Incorporated (or a similar organization or agency succeeding to its functions of reporting prices),
the Fair Market Value is the most recent bid price per share of the Common Stock so reported; or



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      (iii) in all other cases, the Fair Market Value of a share of Common Stock shall be determined
by the Plan Administrator after taking into account such factors as the Plan Administrator shall
deem appropriate.


J. HOSTILE TAKE-OVER shall mean:




      (i) the acquisition, directly or indirectly, by any person or related group of persons (other
than the Corporation or a person that directly or indirectly controls, is controlled by, or is
under common control with, the Corporation) of beneficial ownership (within the meaning of Rule
13d-3 of the 1934 Act) of securities possessing more than fifty percent (50%) of the total combined
voting power of the Corporation’s outstanding securities pursuant to a tender or exchange offer
made directly to the Corporation’s stockholders which the Board does not recommend such
stockholders to accept; or



      (ii) a change in the composition of the Board over a period of thirty-six (36) consecutive
months or less such that a majority of the Board members ceases, by reason of one or more contested
elections for Board membership, to be comprised of individuals who either: (a) have been Board
members continuously since the beginning of such period; or (b) have been elected or nominated for
election as Board members during such period by at least a majority of the Board members described
in clause (a) who were still in office at the time the Board approved such election or nomination.


K. IMMEDIATE FAMILY shall mean any child, stepchild, grandchild, parent, stepparent, grandparent,
spouse, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or
sister-in-law, and shall include adoptive relationships.




L. INCENTIVE OPTION shall mean an option which satisfies the requirements of Code Section 422.



      (i) INVOLUNTARY TERMINATION shall mean the termination of the Service of any individual which
occurs by reason of such individual’s involuntary dismissal or discharge by the Corporation for
reasons other than Misconduct.


M. MISCONDUCT shall mean the commission of any act of fraud, embezzlement or dishonesty by the
Optionee, any unauthorized use or disclosure by such person of confidential information or trade
secrets of the Corporation (or any Subsidiary), or any other intentional misconduct by such person
adversely affecting the business or affairs of the Corporation (or any Subsidiary) in a material
manner. The foregoing definition shall not be deemed to be inclusive of all the acts or omissions
which the Corporation (or any Subsidiary) may consider as grounds for the dismissal or discharge of
any Optionee or other person in the Service of the Corporation (or any Subsidiary).



N. 1934 ACT shall mean the Securities Exchange Act of 1934, as amended.



O. NON-STATUTORY OPTION shall mean an option not intended to satisfy the requirements of Code
Section 422.



P. OPTIONEE shall mean any person to whom an option is granted under the Discretionary Option Grant
Program.



Q. PARENT shall mean any corporation (other than the Corporation) in an unbroken chain of
corporations ending with the Corporation, provided each corporation in the unbroken chain (other
than the Corporation) owns, at the time of the determination, stock possessing fifty percent (50%)
or more of the total combined voting power of all classes of stock in one of the other corporations
in such chain.




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R. PLAN shall mean the Corporation’s 2004 Stock Incentive Plan, as set forth in this document.



S. PLAN ADMINISTRATOR shall mean the particular entity, whether the Primary Committee, the Board or
the Secondary Committee, which is authorized to administer the Discretionary Option Grant with
respect to one or more classes of eligible persons, to the extent such entity is carrying out its
administrative functions under those programs with respect to the persons under its jurisdiction.



T. PLAN EFFECTIVE DATE shall mean the date on which the Plan was adopted by the Board.



U. PRIMARY COMMITTEE shall mean the committee of two (2) or more non-employee Board members
appointed by the Board to administer the Discretionary Option Grant with respect to Section 16
Insiders following the Section 12 Registration Date.



V. SECONDARY COMMITTEE shall mean a committee of two (2) or more Board members appointed by the
Board to administer any aspect of Plan not required hereunder to be administered by the Primary
Committee. The members of the Secondary Committee may be Board members who are Employees eligible
to receive discretionary option grants, stock bonus or other stock plan of the Corporation (or any
Subsidiary).



W. SECTION 12 REGISTRATION DATE shall mean the date on which the Common Stock is first registered
under Section 12(g) or Section 15 of the 1934 Act.



X. SECTION 16 INSIDER shall mean an officer or director of the Corporation subject to the
short-swing profit liabilities of Section 16 of the 1934 Act.



Y. SERVICE shall mean the performance of services for the Corporation (or any Subsidiary) by a
person in the capacity of an Employee, a non-employee member of the board of directors or a
consultant or independent advisor, except to the extent otherwise specifically provided in the
documents evidencing the option grant or stock issuance.



Z. SHORT TERM FEDERAL RATE shall mean the federal short-term rate in effect under Section 1274(d)
of the Code for the period the shares were held in escrow.



AA. STOCK EXCHANGE shall mean either the American Stock Exchange or the New York Stock Exchange.



BB. SUBSIDIARY shall mean any corporation (other than the Corporation) in an unbroken chain of
corporations beginning with the Corporation, provided each corporation (other than the last
corporation) in the unbroken chain owns, at the time of the determination, stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of stock in one of the
other corporations in such chain.



CC. TAXES shall mean the Federal, state and local income and employment tax liabilities incurred by
the holder of Non-Statutory Options or unvested shares of Common Stock in connection with the
exercise of those options or the vesting of those shares.



DD. TRADING MARKET means the following markets or exchanges on which the Common Stock is listed or
quoted for trading on the date in question: the OTC Bulletin Board, the American Stock Exchange,
the New York Stock Exchange, the Nasdaq National Market or the Nasdaq SmallCap Market.



EE. 10% STOCKHOLDER shall mean the owner of stock (as determined under Code Section 424(d))
possessing more than ten percent (10%) of the total combined voting power of all classes of stock
of the Corporation (or any Subsidiary).





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