exv10w2






Exhibit 10.2




THIRD AMENDMENT AND RESTATEMENT OF

THE 2001 INCENTIVE AWARD PLAN OF

WATSON PHARMACEUTICALS, INC.




     Watson Pharmaceuticals, Inc., a Nevada corporation, adopted the 2001 Incentive Award Plan of
Watson Pharmaceuticals, Inc. (the “Plan”), effective as of February 12, 2001 (the “Effective
Date”), for the benefit of its eligible Employees, Consultants and Directors. The Plan was
subsequently amended effective as of May 16, 2001, May 19, 2003, and August 4, 2003, May 13, 2005,
and November 3, 2006. The Plan was amended and restated in its entirety to provide for certain
additional types of awards to eligible Employees, Consultants and Directors, effective as of May 4,
2007.



     The Plan is hereby amended and restated to add Section 3.6, titled “Foreign Holders,” which
sets forth certain provisions related to for awards that may be made to eligible Employees,
Consultants and Directors outside of the United States. This amendment and restatement of the Plan
is effective as of May 7, 2010.



     The purposes of the Plan are as follows:



     (1) To provide an additional incentive for Directors, key Employees and Consultants (as
such terms are defined below) to further the growth, development and financial success of the
Company by personally benefiting through the ownership of Company stock and/or rights which
recognize such growth, development and financial success.



     (2) To enable the Company to obtain and retain the services of Directors, key Employees
and Consultants considered essential to the long range success of the Company by offering them an
opportunity to own stock in the Company and/or rights which will reflect the growth, development
and financial success of the Company.



ARTICLE I.

DEFINITIONS




     Wherever the following terms are used in the Plan they shall have the meanings specified
below, unless the context clearly indicates otherwise. The singular pronoun shall include the
plural where the context so indicates.



     1.1. “Administrator” shall mean the entity that conducts the general administration of the
Plan as provided herein. With reference to the administration of the Plan with respect to Awards
granted to Independent Directors, the term “Administrator” shall refer to the Board. With reference
to the administration of the Plan with respect to any other Award, the term “Administrator” shall
refer to the Committee unless the Board has assumed the authority for administration of the Plan
generally as provided in Section 11.1. With reference to the duties of the Committee under the Plan
which have been delegated to one or more persons pursuant to Section 11.5, the term “Administrator”
shall refer to such person(s) unless the Committee or the Board has revoked such delegation.



     1.2. “Award” shall mean an Option, a Restricted Stock award, a Restricted Stock Unit
award, a Dividend Equivalents award, a Deferred Stock award, a Stock Payment award or a Stock
Appreciation Right, which may be awarded or granted under the Plan (collectively, “Awards”).




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     1.3. “Award Agreement” shall mean a written agreement executed by an authorized officer of
the Company and the Holder which shall contain such terms and conditions with respect to an Award
as the Administrator shall determine, consistent with the Plan.



     1.4. “Award Limit” shall mean five hundred thousand (500,000) shares of Common Stock, as
adjusted pursuant to Section 12.3; provided, however, that each share of Common Stock subject to an
Award shall be counted as one share against the Award Limit.



     1.5. “Board” shall mean the Board of Directors of the Company.



     1.6. “Change in Control” shall mean the occurrence of any of the following:




     (a) a sale of assets representing fifty percent (50%) or more of the net book value and
of the fair market value of the Company’s consolidated assets (in a single transaction or in a
series of related transactions);




     (b) a liquidation or dissolution of the Company;




     (c) a merger or consolidation involving the Company or any subsidiary of the Company
after the completion of which: (i) in the case of a merger (other than a triangular merger) or
a consolidation involving the Company, the stockholders of the Company immediately prior to the
completion of such merger or consolidation beneficially own (within the meaning of Rule 13d-3
promulgated under the Exchange Act, or comparable successor rules), directly or indirectly,
outstanding voting securities representing less than sixty percent (60%) of the combined voting
power of the surviving entity in such merger or consolidation, and (ii) in the case of a
triangular merger involving the Company or a subsidiary of the Company, the stockholders of the
Company immediately prior to the completion of such merger beneficially own (within the meaning
of Rule 13d-3 promulgated under the Exchange Act, or comparable successor rules), directly or
indirectly, outstanding voting securities representing less than sixty percent (60%) of the
combined voting power of the surviving entity in such merger and less than sixty percent (60%)
of the combined voting power of the parent of the surviving entity in such merger;




     (d) an acquisition by any person, entity or “group” (within the meaning of Section 13(d)
or 14(d) of the Exchange Act or any comparable successor provisions), other than any employee
benefit plan, or related trust, sponsored or maintained by the Company or an affiliate of the
Company and other than in a merger or consolidation of the type referred to in subsection (c),
of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act,
or comparable successor rules) of outstanding voting securities of the Company representing
more than thirty percent (30%) of the combined voting power of the Company (in a single
transaction or series of related transactions); or




     (e) in the event that the individuals who, as of the Effective Date, are members of the
Board (the “Incumbent Board”), cease for any reason to constitute at least fifty percent (50%)
of the Board; provided, that if the election, or nomination for election by the Company’s
stockholders, of any new member of the Board is approved by a vote of at least fifty percent
(50%) of the Incumbent Board, such new member of the Board shall be considered as a member of
the Incumbent Board.



     1.7. “Code” shall mean the Internal Revenue Code of 1986, as amended.



     1.8. “Committee” shall mean the Compensation Committee of the Board, or another committee
or subcommittee of the Board, appointed as provided in Section 11.1.



     1.9. “Common Stock” shall mean the common stock of the Company, par value $0.0033 per
share.



     1.10. “Company” shall mean Watson Pharmaceuticals, Inc., a Nevada corporation.









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     1.11. “Consultant” shall mean any consultant or adviser if: (a) the consultant or adviser
renders bona fide services to the Company; (b) the services rendered by the consultant or adviser
are not in connection with the offer or sale of securities in a capital-raising transaction and do
not directly or indirectly promote or maintain a market for the Company’s securities; and (c) the
consultant or adviser is a natural person who has contracted directly with the Company to render
such services.



     1.12. “Deferred Stock” shall mean rights to receive Common Stock awarded under Section 8.4 of
the Plan.



     1.13. “Director” shall mean a member of the Board.



     1.14. “Dividend Equivalent” shall mean a right to receive the equivalent value (in cash or
Common Stock) of dividends paid on Common Stock, awarded under Section 8.2 of the Plan.



     1.15. “DRO” shall mean a domestic relations order as defined by the Code or Title I of the
Employee Retirement Income Security Act of 1974, as amended, or the rules thereunder.



     1.16. “Employee” shall mean any officer or other employee (as defined in accordance with
Section 3401(c) of the Code) of the Company, or of any corporation which is a Subsidiary.



     1.17. “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.



     1.18. “Fair Market Value” means, as of any date, the value of a share of Common Stock
determined as follows:




     (a) If the Common Stock is listed on any established stock exchange (such as the New
York Stock Exchange, the NASDAQ Global Market and the NASDAQ Global Select Market) or any
national market system, including without limitation any market system of The NASDAQ Stock
Market, the value of a share of Common Stock shall be the closing sales price for a share of
Common Stock as quoted on such exchange or system for such date, or if there is no closing
sales price for a share of Common Stock on the date in question, the closing sales price for a
share of Common Stock on the last preceding date for which such quotation exists, as reported
in The Wall Street Journal or such other source as the Administrator deems reliable;




     (b) If the Common Stock is regularly quoted by a recognized securities dealer but
closing sales prices are not reported, the value of a share of Common Stock shall be the mean
of the high bid and low asked prices for such date or, if there are no high bid and low asked
prices for a share of Common Stock on the date in question, the high bid and low asked prices
for a share of Common Stock on the last preceding date for which such information exists, as
reported in The Wall Street Journal or such other source as the Administrator deems reliable;
or




     (c) If the Common Stock is neither listed on an established stock exchange or a
national market system nor regularly quoted by a recognized securities dealer, the value of a
share of Common Stock shall be established by the Administrator in good faith.



     1.19. “Holder” shall mean a person who has been granted or awarded an Award.



     1.20. “Incentive Stock Option” shall mean an option which conforms to the applicable
provisions of Section 422 of the Code and which is designated as an Incentive Stock Option by the
Administrator.



     1.21. “Independent Director” shall mean a member of the Board who is not an Employee.



     1.22. “Full Value Award” shall mean any Award other than an Option or Stock Appreciation
Right.



     1.23. “Non-Qualified Stock Option” shall mean an Option which is not designated as an
Incentive Stock Option by the Administrator.







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     1.24. “Option” shall mean a stock option granted under Article IV of the Plan. An Option
granted under the Plan shall, as determined by the Administrator, be either a Non-Qualified Stock
Option or an Incentive Stock Option; provided, however, that Options granted to Independent
Directors and Consultants shall be Non-Qualified Stock Options.



     1.25. “Performance Criteria” shall mean any one or more of the following business criteria
with respect to the Company, any Subsidiary or any division or operating unit thereof: (a) revenue
or sales, (b) net income, (c) pre-tax income, (d) operating income, (e) cash flow, (f) earnings per
share, (g) return on equity, (h) return on invested capital or assets, (i) cost reductions or
savings, (j) funds from operations, (k) appreciation in the Fair Market Value of Common Stock, or
(l) earnings before any one or more of the following: (i) interest, (ii) taxes, (iii) depreciation
or (iv) amortization, each as determined in accordance with generally accepted accounting
principles.



     1.26. “Plan” shall mean the 2001 Incentive Award Plan of Watson Pharmaceuticals, Inc., as
amended.



     1.27. “Restricted Stock” shall mean Common Stock awarded under Article VII of the Plan.



     1.28. “Restricted Stock Units” shall mean rights to receive Common Stock awarded under
Section 8.5 of the Plan.



     1.29. “Rule 16b-3” shall mean Rule 16b-3 promulgated under the Exchange Act, as such Rule may
be amended from time to time.



     1.30. “Section 162(m) Participant” shall mean any key Employee designated by the
Administrator as a key Employee whose compensation for the fiscal year in which the key Employee is
so designated or a future fiscal year may be subject to the limit on deductible compensation
imposed by Section 162(m) of the Code.



     1.31. “Securities Act” shall mean the Securities Act of 1933, as amended.



     1.32. “Stock Appreciation Right” shall mean a stock appreciation right granted under Article
IX of the Plan.



     1.33. “Stock Payment” shall mean: (a) a payment in the form of shares of Common Stock, or (b)
an option or other right to purchase shares of Common Stock, as part of a deferred compensation
arrangement, made in lieu of all or any portion of the compensation, including without limitation,
salary, bonuses and commissions, that otherwise would become payable to a key Employee, Independent
Director or Consultant in cash, awarded under Section 8.3 of the Plan.



     1.34. “Subsidiary” shall mean any corporation in an unbroken chain of corporations beginning
with the Company if each of the corporations other than the last corporation in the unbroken chain
then owns 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.



     1.35. “Substitute Award” shall mean an Option granted under this Plan upon the assumption of,
or in substitution for, outstanding equity awards previously granted by a company or other entity
in connection with a corporate transaction, such as a merger, combination, consolidation or
acquisition of property or stock; provided, however, that in no event shall the term “Substitute
Award” be construed to refer to an award made in connection with the cancellation and repricing of
an Option.



     1.36. “Termination of Consultancy” shall mean the time when the engagement of a Holder as a
Consultant to the Company or a Subsidiary is terminated for any reason, with or without cause,
including, but not by way of limitation, by resignation, discharge, death or retirement, but
excluding terminations where there is a simultaneous commencement of employment with the Company or
any Subsidiary, or any parent thereof. The Administrator, in its absolute discretion, shall
determine the effect of all matters and questions relating to Termination of Consultancy,
including, but not by way of limitation, the question of








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whether a Termination of Consultancy resulted from a discharge for good cause, and all questions of
whether a particular leave of absence constitutes a Termination of Consultancy. Notwithstanding any
other provision of the Plan, the Company or any Subsidiary has an absolute and unrestricted right
to terminate a Consultant’s service at any time for any reason whatsoever, with or without cause,
except to the extent expressly provided otherwise in writing.




     1.37. “Termination of Directorship” shall mean the time when a Holder who is an Independent
Director ceases to be a Director for any reason, including, but not by way of limitation, a
termination by resignation, removal, failure to be elected, death or retirement. The Board, in its
sole and absolute discretion, shall determine the effect of all matters and questions relating to
Termination of Directorship with respect to Independent Directors.



     1.38. “Termination of Employment” shall mean the time when the employee-employer relationship
between a Holder and the Company or any Subsidiary is terminated for any reason, with or without
cause, including, but not by way of limitation, a termination by resignation, discharge, death,
disability or retirement; but excluding: (a) terminations where there is a simultaneous
reemployment or continuing employment of a Holder by the Company or any Subsidiary, or any parent
thereof, (b) at the discretion of the Administrator, terminations which result in a temporary
severance of the employee-employer relationship, and (c) at the discretion of the Administrator,
terminations which are followed by the simultaneous establishment of a consulting relationship by
the Company or a Subsidiary, or any parent thereof, with the former employee. The Administrator, in
its absolute discretion, shall determine the effect of all matters and questions relating to
Termination of Employment, including, but not by way of limitation, the question of whether a
Termination of Employment resulted from a discharge for good cause, and all questions of whether a
particular leave of absence constitutes a Termination of Employment; provided, however, that, with
respect to Incentive Stock Options, unless otherwise determined by the Administrator in its
discretion, a leave of absence, change in status from an employee to an independent contractor or
other change in the employee-employer relationship shall constitute a Termination of Employment if,
and to the extent that, such leave of absence, change in status or other change interrupts
employment for the purposes of Section 422(a)(2) of the Code and the then applicable regulations
and revenue rulings under said Section.



ARTICLE II.

SHARES SUBJECT TO PLAN




     2.1. Shares Subject to Plan.




     (a) The shares of stock subject to Awards shall be Common Stock. Subject to adjustment
as provided in Section 12.3, the aggregate number of such shares of Common Stock which may be
issued pursuant to Awards under the Plan shall not exceed 19,728,333 shares. The shares of
Common Stock issuable upon exercise of such Options or rights or upon any such Awards may be
either previously authorized but unissued shares or treasury shares. The aggregate number of
shares of Common Stock available for issuance under the Plan pursuant to this Section 2.1 shall
be reduced by two shares for each share of Common Stock delivered in settlement of any Full
Value Award.




     (b) The maximum number of shares which may be subject to Awards granted under the Plan
to any individual in any fiscal year of the Company shall not exceed the Award Limit. To the
extent required by Section 162(m) of the Code, shares subject to Awards which are canceled
continue to be counted against the Award Limit.



     2.2. Add-Back of Options and Other Rights. If any Option, or other right to acquire
shares of Common Stock under any other Award under the Plan, expires or is canceled without having
been fully exercised, the number of shares subject to such Option or other right but as to which
such Option or other right was not exercised prior to its expiration, cancellation or exercise may
again be optioned, granted or








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awarded hereunder, subject to the limitations of Section 2.1; provided, however, that the number of
shares that shall again be available for the grant of an Award pursuant to the Plan shall be
increased by two shares for each share of Common Stock subject to a Full Value Award at the time
such Full Value Award terminates, expires, lapses or is forfeited for any reason. Furthermore, any
shares subject to Awards which are adjusted pursuant to Section 12.3 and become exercisable with
respect to shares of stock of another corporation shall be considered cancelled and may again be
optioned, granted or awarded hereunder, subject to the limitations of Section 2.1. If any shares of
Restricted Stock are surrendered by the Holder or repurchased by the Company pursuant to Section
7.4 or 7.5 hereof, such shares may again be optioned, granted or awarded hereunder, subject to the
limitations of Section 2.1. To the extent exercised, the full number of shares subject to an Option
or Stock Appreciation Right shall be counted for purposes of calculating the aggregate number of
shares of Common Stock available for issuance under the Plan as set forth in Section 2.1(a) and for
purposes of calculating the share limitation set forth in Section 2.1(b), regardless of the actual
number of shares issued or transferred upon any net exercise of an Option (in which Common Stock is
withheld to satisfy the exercise price or taxes) or upon exercise of any Stock Appreciation Right
for Common Stock or cash. Notwithstanding the provisions of this Section 2.2, no shares of Common
Stock may again be optioned, granted or awarded if such action would cause an Incentive Stock
Option to fail to qualify as an incentive stock option under Section 422 of the Code.




ARTICLE III.

GRANTING OF AWARDS




     3.1. Award Agreement. Each Award shall be evidenced by an Award Agreement. Award
Agreements evidencing Awards intended to qualify as performance-based compensation as described in
Section 162(m)(4)(C) of the Code shall contain such terms and conditions as may be necessary to
meet the applicable provisions of Section 162(m) of the Code. Award Agreements evidencing Incentive
Stock Options shall contain such terms and conditions as may be necessary to meet the applicable
provisions of Section 422 of the Code.



     3.2. Provisions Applicable to Section 162(m) Participants.




     (a) The Committee, in its discretion, may determine whether an Award is to qualify as
performance-based compensation as described in Section 162(m)(4)(C) of the Code.




     (b) Notwithstanding anything in the Plan to the contrary, the Committee may grant any
Award to a Section 162(m) Participant, including a Restricted Stock award, a Restricted Stock
Unit award, a Dividend Equivalent award, a Deferred Stock award or a Stock Payment award, the
restrictions with respect to which lapse upon the attainment of performance goals which are
related to one or more of the Performance Criteria and any Award described in Article VIII that
vests or becomes exercisable or payable upon the attainment of performance goals which are
related to one or more of the Performance Criteria.




     (c) To the extent necessary to comply with the performance-based compensation
requirements of Section 162(m)(4)(C) of the Code, with respect to any Award granted under
Articles VII and VIII which may be granted to one or more Section 162(m) Participants, no later
than ninety (90) days following the commencement of any fiscal year in question or any other
designated fiscal period or period of service (or such other time as may be required or
permitted by Section 162(m) of the Code), the Committee shall, in writing, (i) designate one or
more Section 162(m) Participants, (ii) select the Performance Criteria applicable to the fiscal
year or other designated fiscal period or period of service, (iii) establish the various
performance targets, in terms of an objective formula or standard, and amounts of such Awards,
as applicable, which may be earned for such fiscal year or other designated fiscal period or
period of service, and (iv) specify the relationship between Performance Criteria and the
performance targets and the amounts of such Awards, as applicable, to be earned by







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each Section 162(m) Participant for such fiscal year or other designated fiscal period or
period of service. Following the completion of each fiscal year or other designated fiscal
period or period of service, the Committee shall certify in writing whether the applicable
performance targets have been achieved for such fiscal year or other designated fiscal period
or period of service. In determining the amount earned by a Section 162(m) Participant, the
Committee shall have the right to reduce (but not to increase) the amount payable at a given
level of performance to take into account additional factors that the Committee may deem
relevant to the assessment of individual or corporate performance for the fiscal year or other
designated fiscal period or period of service.




     (d) Furthermore, notwithstanding any other provision of the Plan, any Award which is
granted to a Section 162(m) Participant and is intended to qualify as performance-based
compensation as described in Section 162(m)(4)(C) of the Code shall be subject to any
additional limitations set forth in Section 162(m) of the Code (including any amendment to
Section 162(m) of the Code) or any regulations or rulings issued thereunder that are
requirements for qualification as performance-based compensation as described in Section
162(m)(4)(C) of the Code, and the Plan shall be deemed amended to the extent necessary to
conform to such requirements.



     3.3. Limitations Applicable to Section 16 Persons. Notwithstanding any other provision
of the Plan, the Plan, and any Award granted or awarded to any individual who is then subject to
Section 16 of the Exchange Act, shall be subject to any additional limitations set forth in any
applicable exemptive rule under Section 16 of the Exchange Act (including any amendment to Rule
16b-3 of the Exchange Act) that are requirements for the application of such exemptive rule. To the
extent permitted by applicable law, the Plan and Awards granted or awarded hereunder shall be
deemed amended to the extent necessary to conform to such applicable exemptive rule.



     3.4. Consideration. In consideration of the granting of an Award under the Plan, the
Holder shall agree, in the Award Agreement, to remain in the employ of (or to consult for or to
serve as an Independent Director of, as applicable) the Company or any Subsidiary for a period of
at least one year (or such shorter period as may be fixed in the Award Agreement or by action of
the Administrator following grant of the Award) after the Award is granted (or, in the case of an
Independent Director, until the next annual meeting of stockholders of the Company).



     3.5. At-Will Employment. Nothing in the Plan or in any Award Agreement hereunder shall
confer upon any Holder any right to continue in the employ of, or as a Consultant for, the Company
or any Subsidiary, or as a Director of the Company, or shall interfere with or restrict in any way
the rights of the Company and any Subsidiary, which are hereby expressly reserved, to discharge any
Holder at any time for any reason whatsoever, with or without cause, except to the extent expressly
provided otherwise in a written employment agreement between the Holder and the Company and any
Subsidiary.



     3.6. Foreign Holders. Notwithstanding any provision of the Plan to the contrary, in order to
comply with the laws in other countries in which the Company and any Subsidiary of the Company
operate or have Employees, Independent Directors or Consultants, or in order to comply with the
requirements of any foreign stock exchange or applicable laws, the Administrator, in its sole
discretion, shall have the power and authority to: (a) determine which Subsidiaries shall be
covered by the Plan; (b) determine which Employees, Independent Directors or Consultants outside
the United States are eligible to participate in the Plan; (c) modify the terms and conditions of
any Award granted to Employees, Independent Directors or Consultants outside the United States to
comply with applicable foreign laws or listing requirements of any such foreign stock exchange; (d)
establish subplans and modify exercise procedures and other terms and procedures, to the extent
such actions may be necessary or advisable (any such subplans and/or modifications shall be
attached to the Plan as appendices); provided, however, that no such subplans and/or modifications
shall increase the share limitations contained in Article II or expand the classes of persons to
whom Awards may be granted under the Plan; and (e) take any action, before or after an Award is
made, that it deems advisable to obtain approval or comply with any necessary local governmental
regulatory exemptions or approvals or listing requirements of any such foreign stock exchange.
Notwithstanding the foregoing, the Administrator may not take any actions hereunder, and no Awards
shall be granted, that would violate the Code, the Exchange Act, the Securities Act or any other
securities law or governing statute or any other applicable law.



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ARTICLE IV.

GRANTING OF OPTIONS TO EMPLOYEES,

CONSULTANTS AND INDEPENDENT DIRECTORS




     4.1. Eligibility. Any Employee or Consultant selected by the Administrator pursuant to
Section 4.4(a)(i) shall be eligible to be granted an Option. Each Independent Director of the
Company shall be eligible to be granted Options at the times and in the manner set forth in Section
4.5.



     4.2. Disqualification for Stock Ownership. No person may be granted an Incentive Stock
Option under the Plan if such person, at the time the Incentive Stock Option is granted, owns stock
possessing more than 10% of the total combined voting power of all classes of stock of the Company
or any then existing Subsidiary or parent corporation (within the meaning of Section 422 of the
Code) unless such Incentive Stock Option conforms to the applicable provisions of Section 422 of
the Code.








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     4.3. Qualification of Incentive Stock Options. No Incentive Stock Option shall be
granted to any person who is not an Employee.



     4.4. Granting of Options to Employees and Consultants.




     (a) The Administrator shall from time to time, in its absolute discretion, and, subject
to applicable limitations of the Plan:




     (i) Determine which Employees are key Employees and select from among the key
Employees or Consultants (including Employees or Consultants who have previously received
Awards under the Plan) such of them as in its opinion should be granted Options;




     (ii) Subject to the Award Limit, determine the number of shares to be subject to
such Options granted to the selected key Employees or Consultants;




     (iii) Subject to Section 4.3, determine whether such Options are to be Incentive
Stock Options or Non-Qualified Stock Options and whether such Options are to qualify as
performance-based compensation as described in Section 162(m)(4)(C) of the Code; and




     (iv) Determine the terms and conditions of such Options, consistent with the Plan;
provided, however, that the terms and conditions of Options intended to qualify as
performance-based compensation as described in Section 162(m)(4)(C) of the Code shall
include, but not be limited to, such terms and conditions as may be necessary to meet the
applicable provisions of Section 162(m) of the Code.




     (b) Upon the selection of a key Employee or Consultant to be granted an Option, the
Administrator shall instruct the Secretary of the Company to issue the Option and may impose
such conditions on the grant of the Option as it deems appropriate.




     (c) Any Incentive Stock Option granted under the Plan may be modified by the
Administrator, with the consent of the Holder, to disqualify such Option from treatment as an
“incentive stock option” under Section 422 of the Code.



     4.5. Granting of Options to Independent Directors. The Board shall from time to time, in
its absolute discretion, and subject to applicable limitations of the Plan:




     (a) Select from among the Independent Directors (including Independent Directors who
have previously received Options under the Plan) such of them as in its opinion should be
granted Options;




     (b) Subject to the Award Limit, determine the number of shares to be subject to such
Options granted to the selected Independent Directors; and




     (c) Determine the terms and conditions of such Options, consistent with the Plan.


All the foregoing Option grants authorized by this Section 4.5 are subject to stockholder approval
of the Plan.




     4.6. Options in Lieu of Cash Compensation. Options may be granted under the Plan to
Employees and Consultants in lieu of cash bonuses which would otherwise be payable to such
Employees and Consultants, and to Independent Directors in lieu of directors’ fees which would
otherwise be payable to such Independent Directors, pursuant to such policies which may be adopted
by the Administrator from time to time.









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ARTICLE V.

TERMS OF OPTIONS




     5.1. Option Price. The price per share of the shares subject to each Option granted to
Employees, Independent Directors and Consultants shall be set by the Administrator; provided,
however, that:




     (a) In the case of Options intended to qualify as performance-based compensation as
described in Section 162(m)(4)(C) of the Code, such price shall not be less than 100% of the
Fair Market Value of a share of Common Stock on the date the Option is granted;




     (b) In the case of Incentive Stock Options such price shall not be less than 100% of the
Fair Market Value of a share of Common Stock on the date the Option is granted (or the date the
Option is modified, extended or renewed for purposes of Section 424(h) of the Code);




     (c) In the case of Incentive Stock Options granted to an individual then owning (within
the meaning of Section 424(d) of the Code) more than 10% of the total combined voting power of
all classes of stock of the Company or any Subsidiary or parent corporation thereof (within the
meaning of Section 422 of the Code), such price shall not be less than 110% of the Fair Market
Value of a share of Common Stock on the date the Option is granted (or the date the Option is
modified, extended or renewed for purposes of Section 424(h) of the Code); and




     (d) In the case of Non-Qualified Stock Options, such price shall not be less than 100%
of the Fair Market Value of a share of Common Stock on the date the Option is granted.



     5.2. Option Term. The term of an Option granted to an Employee, Independent Director or
Consultant shall be set by the Administrator in its discretion; provided, however, that the term
shall not be more than ten (10) years from the date the Option is granted, or five (5) years from
the date the Option is granted if the Option is an Incentive Stock Option granted to an individual
then owning (within the meaning of Section 424(d) of the Code) more than 10% of the total combined
voting power of all classes of stock of the Company or any Subsidiary Corporation or parent
corporation thereof (as defined in Section 424(e) of the Code). Except as limited by requirements
of Section 422 of the Code and regulations and rulings thereunder applicable to Incentive Stock
Options, the Administrator may extend the term of any outstanding Option in connection with any
Termination of Employment, Termination of Directorship or Termination of Consultancy of the Holder,
or amend any other term or condition of such Option relating to such a Termination of Employment,
Termination of Directorship or Termination of Consultancy.



     5.3. Option Vesting.




     (a) The period during which the right to exercise, in whole or in part, an Option
granted to an Employee, Independent Director or a Consultant vests in the Holder shall be set
by the Administrator and the Administrator may determine that an Option may not be exercised in
whole or in part for a specified period after it is granted; provided, however, that, unless
the Administrator otherwise provides in the terms of the Award Agreement or otherwise, no
Option shall be exercisable by any Holder who is then subject to Section 16 of the Exchange Act
within the period ending six months and one day after the date the Option is granted. At any
time after grant of an Option, the Administrator may, in its sole and absolute discretion and
subject to whatever terms and conditions it selects, accelerate the period during which an
Option granted to an Employee, Independent Director or Consultant vests.




     (b) No portion of an Option granted to an Employee, Independent Director or Consultant
which is unexercisable at Termination of Employment, Termination of Directorship or Termination
of Consultancy, as applicable, shall thereafter become exercisable, except as may be otherwise
provided









B-10









 









by the Administrator either in the Award Agreement or by action of the Administrator following
the grant of the Option.




     (c) To the extent that the aggregate fair market value of stock with respect to which
“incentive stock options” (within the meaning of Section 422 of the Code, but without regard to
Section 422(d) of the Code) are exercisable for the first time by a Holder during any calendar
year under the Plan, and all other plans of the Company and any Subsidiary or parent
corporation thereof, within the meaning of Section 424 of the Code, exceeds $100,000, the
Options shall be treated as Non-Qualified Stock Options to the extent required by Section 422
of the Code. The rule set forth in the preceding sentence shall be applied by taking Options
and other “incentive stock options” into account in the order in which they were granted. For
purposes of this Section 5.3(c), the fair market value of stock shall be determined as of the
time the Option or other “incentive stock options” with respect to such stock is granted.



     5.4. Substitute Awards. Notwithstanding the foregoing provisions of this Article V to
the contrary, in the case of an Option that is a Substitute Award, the price per share of the
shares subject to such Option may be less than the Fair Market Value per share on the date of
grant, provided, that the excess of: (a) the aggregate Fair Market Value (as of the date such
Substitute Award is granted) of the shares subject to the Substitute Award, over (b) the aggregate
exercise price thereof, does not exceed the excess of: (c) the aggregate fair market value (as of
the time immediately preceding the transaction giving rise to the Substitute Award, such fair
market value to be determined by the Committee) of the shares of the predecessor entity that were
subject to the grant assumed or substituted for by the Company, over (d) the aggregate exercise
price of such shares.



     5.5. Substitution of Stock Appreciation Rights. The Administrator may provide in the
Award Agreement evidencing the grant of an Option that the Administrator, in its sole discretion,
shall have the right to substitute a Stock Appreciation Right for such Option at any time prior to
or upon exercise of such Option, subject to the provisions of Section 9.2; provided, that such
Stock Appreciation Right shall be exercisable with respect to the same number of shares of Common
Stock for which such substituted Option would have been exercisable and at the Option exercise
price per share.



ARTICLE VI.

EXERCISE OF OPTIONS




     6.1. Partial Exercise. An exercisable Option may be exercised in whole or in part.
However, an Option shall not be exercisable with respect to fractional shares and the Administrator
may require that, by the terms of the Option, a partial exercise be with respect to a minimum
number of shares.



     6.2. Manner of Exercise. All or a portion of an exercisable Option shall be deemed
exercised upon delivery of all of the following to the Secretary of the Company, or such other
person or entity designated by the Board, or his, her or its office, as applicable:




     (a) A written notice complying with the applicable rules established by the
Administrator stating that the Option, or a portion thereof, is exercised. The notice shall be
signed by the Holder or other person then entitled to exercise the Option or such portion of
the Option;




     (b) Such representations and documents as the Administrator, in its absolute discretion,
deems necessary or advisable to effect compliance with all applicable provisions of the
Securities Act and any other federal or state securities laws or regulations. The Administrator
may, in its absolute discretion, also take whatever additional actions it deems appropriate to
effect such compliance including, without limitation, placing legends on share certificates and
issuing stop-transfer notices to agents and registrars;










B-11









 









     (c) In the event that the Option shall be exercised pursuant to Section 12.1 by any
person or persons other than the Holder, appropriate proof of the right of such person or
persons to exercise the Option; and




     (d) Full cash payment to the Secretary of the Company for the shares with respect to
which the Option, or portion thereof, is exercised. However, the Administrator may, in its
discretion, (i) allow payment, in whole or in part, through the delivery of shares of Common
Stock which have been owned by the Holder for at least six months, duly endorsed for transfer
to the Company with a Fair Market Value on the date of delivery equal to the aggregate exercise
price of the Option or exercised portion thereof; (ii) allow payment, in whole or in part,
through the surrender of shares of Common Stock then issuable upon exercise of the Option
having a Fair Market Value on the date of Option exercise equal to the aggregate exercise price
of the Option or exercised portion thereof; (iii) allow payment, in whole or in part, through
the delivery of property of any kind which constitutes good and valuable consideration; (iv)
allow payment, in whole or in part, through the delivery of a notice that the Holder has placed
a market sell order with a broker with respect to shares of Common Stock then issuable upon
exercise of the Option, and that the broker has been directed to pay a sufficient portion of
the net proceeds of the sale to the Company in satisfaction of the Option exercise price,
provided, that payment of such proceeds is then made to the Company upon settlement of such
sale; or (v) allow payment through any combination of the consideration provided in the
foregoing paragraphs (i), (ii), (iii) and (iv); provided, however, that the payment in the
manner prescribed in the preceding paragraphs shall not be permitted to the extent that the
Administrator determines that payment in such manner shall result in an extension or
maintenance of credit, an arrangement for the extension of credit, or a renewal or an extension
of credit in the form of a personal loan to or for any Director or executive officer of the
Company that is prohibited by Section 13(k) of the Exchange Act or other applicable law.



     6.3. Conditions to Issuance of Stock Certificates. The Company shall not be required to
issue or deliver any certificate or certificates for shares of stock purchased upon the exercise of
any Option or portion thereof prior to fulfillment of all of the following conditions:




     (a) The admission of such shares to listing on all stock exchanges on which such class
of stock is then listed;




     (b) The completion of any registration or other qualification of such shares under any
state or federal law, or under the rulings or regulations of the Securities and Exchange
Commission or any other governmental regulatory body which the Administrator shall, in its
absolute discretion, deem necessary or advisable;




     (c) The obtaining of any approval or other clearance from any state or federal
governmental agency which the Administrator shall, in its absolute discretion, determine to be
necessary or advisable;




     (d) The lapse of such reasonable period of time following the exercise of the Option as
the Administrator may establish from time to time for reasons of administrative convenience;
and




     (e) The receipt by the Company of full payment for such shares, including payment of
any applicable withholding tax, which in the discretion of the Administrator may be in the form
of consideration used by the Holder to pay for such shares under Section 6.2(d).



     6.4. Rights as Stockholders. Holders shall not be, nor have any of the rights or
privileges of, stockholders of the Company in respect of any shares purchasable upon the exercise
of any part of an Option unless and until certificates representing such shares have been issued by
the Company to such Holders.








B-12









 








     6.5. Ownership and Transfer Restrictions. The Administrator, in its absolute discretion,
may impose such restrictions on the ownership and transferability of the shares purchasable upon
the exercise of an Option as it deems appropriate. Any such restriction shall be set forth in the
respective Award Agreement and may be referred to on the certificates evidencing such shares. The
Holder shall give the Company prompt notice of any disposition of shares of Common Stock acquired
by exercise of an Incentive Stock Option within (a) two years from the date of granting (including
the date the Option is modified, extended or renewed for purposes of Section 424(h) of the Code)
such Option to such Holder, or (b) one year after the transfer of such shares to such Holder.



     6.6. Additional Limitations on Exercise of Options. Holders may be required to comply
with any timing or other restrictions with respect to the settlement or exercise of an Option,
including a window-period limitation, as may be imposed in the discretion of the Administrator.



ARTICLE VII.

AWARD OF RESTRICTED STOCK




     7.1. Eligibility. Subject to the Award Limit, Restricted Stock may be awarded to any
Employee whom the Administrator determines is a key Employee, or any Independent Director or any
Consultant, whom the Administrator determines should receive such an Award.



     7.2. Award of Restricted Stock.




     (a) The Administrator may from time to time, in its absolute discretion:



     (i) Determine which Employees are key Employees, and select from among the key
Employees, Independent Directors or Consultants (including Employees, Independent
Directors or Consultants who have previously received other Awards under the Plan) such of
them as in its opinion should be awarded Restricted Stock; and



     (ii) Determine the purchase price, if any, and other terms and conditions
applicable to such Restricted Stock, consistent with the Plan.




     (b) The Administrator shall establish the purchase price, if any, and form of payment
for Restricted Stock; provided, however, that such purchase price shall be no less than the par
value of the Common Stock to be purchased, unless otherwise permitted by applicable state law.
In all cases, legal consideration shall be required for each issuance of Restricted Stock.




     (c) Upon the selection of an Employee, Independent Director or Consultant to be awarded
Restricted Stock, the Administrator shall instruct the Secretary of the Company to issue such
Restricted Stock and may impose such conditions on the issuance of such Restricted Stock as it
deems appropriate.



     7.3. Rights as Stockholders. Subject to Section 7.4, upon delivery of the shares of
Restricted Stock to the escrow holder pursuant to Section 7.7, the Holder shall have, unless
otherwise provided by the Administrator, all the rights of a stockholder with respect to said
shares, subject to the restrictions in his or her Award Agreement, including the right to receive
all dividends and other distributions paid or made with respect to the shares; provided, however,
that, in the discretion of the Administrator, any dividends or distributions with respect to the
Common Stock shall be subject to the restrictions set forth in Section 7.4.



     7.4. Restriction. All shares of Restricted Stock issued under the Plan (including any
shares received by Holders thereof with respect to shares of Restricted Stock as a result of stock
dividends, stock splits or any other form of recapitalization) shall, in the terms of each
individual Award Agreement, be subject to such restrictions as the Administrator shall provide,
which restrictions may include, without limitation, restrictions concerning voting rights and
transferability and restrictions based on duration of employment, directorship or consultancy with
the Company, or any Subsidiary, or any parent thereof, Company








B-13









 







performance and individual performance, or any one or more of the Performance Criteria or other
specific performance criteria determined appropriate by the Administrator; provided, however, that,
unless the Administrator otherwise provides in the terms of the Award Agreement or otherwise, no
share of Restricted Stock granted to a person subject to Section 16 of the Exchange Act shall be
sold, assigned or otherwise transferred until at least six months and one day have elapsed from the
date on which the Restricted Stock was issued; and, provided, further, that, except with respect to
shares of Restricted Stock granted to Section 162(m) Participants, by action taken after the
Restricted Stock is issued, the Administrator may, on such terms and conditions as it may determine
to be appropriate, remove any or all of the restrictions imposed by the terms of the Award
Agreement. Restricted Stock may not be sold or encumbered until all restrictions are terminated or
expire. If no consideration was paid by the Holder upon issuance, a Holder’s rights in unvested
Restricted Stock shall lapse, and such Restricted Stock shall be surrendered to the Company without
consideration, upon Termination of Employment, Termination of Directorship, or Termination of
Consultancy, as applicable; provided, however, that the Administrator in its sole and absolute
discretion may provide that such rights shall not lapse in the event of a Termination of
Employment, Termination of Directorship or Termination of Consultancy, as applicable, following a
“change of ownership or control” (within the meaning of Treasury Regulation Section
1.162-27(e)(2)(v) or any successor regulation thereto) of the Company or because of the Holder’s
death or disability; and, provided, further, except with respect to shares of Restricted Stock
granted to Section 162(m) Participants that is intended to qualify as performance-based
compensation as described in Section 162(m)(4)(C) of the Code, the Administrator in its sole and
absolute discretion may provide that no such lapse or surrender shall occur in the event of a
Termination of Employment, Termination of Directorship, or Termination of Consultancy, as
applicable, without cause or following any Change in Control or because of the Holder’s retirement,
or otherwise.




     7.5. Repurchase of Restricted Stock. The Administrator shall provide in the terms of
each individual Award Agreement that the Company shall have the right to repurchase from the Holder
the Restricted Stock then subject to restrictions under the Award Agreement immediately upon a
Termination of Employment, Termination of Directorship, or Termination of Consultancy, as
applicable, at a cash price per share equal to the price paid by the Holder for such Restricted
Stock; provided, however, that the Administrator in its sole and absolute discretion may provide
that no such right of repurchase shall exist in the event of a Termination of Employment,
Termination of Directorship or Termination of Consultancy, as applicable, following a “change of
ownership or control” (within the meaning of Treasury Regulation Section 1.162-27(e)(2)(v) or any
successor regulation thereto) of the Company or because of the Holder’s death or disability; and,
provided, further, that, except with respect to shares of Restricted Stock granted to Section
162(m) Participants that is intended to qualify as performance-based compensation as described in
Section 162(m)(4)(C) of the Code, the Administrator in its sole and absolute discretion may provide
that no such right of repurchase shall exist in the event of a Termination of Employment,
Termination of Directorship, or Termination of Consultancy, as applicable, without cause or
following any Change in Control or because of the Holder’s retirement, or otherwise.



     7.6. Escrow. The Secretary of the Company or such other escrow holder as the
Administrator may appoint shall retain physical custody of each certificate representing Restricted
Stock until all of the restrictions imposed under the Award Agreement with respect to the shares
evidenced by such certificate expire or shall have been removed.



     7.7. Legend. In order to enforce the restrictions imposed upon shares of Restricted
Stock hereunder, the Administrator shall cause a legend or legends to be placed on certificates
representing all shares of Restricted Stock that are still subject to restrictions under Award
Agreements, which legend or legends shall make appropriate reference to the conditions imposed
thereby.



     7.8. Section 83(b) Election. If a Holder makes an election under Section 83(b) of the
Code, or any successor section thereto, to be taxed with respect to the Restricted Stock as of the
date of transfer of the




B-14











 




Restricted Stock rather than as of the date or dates upon which the Holder would otherwise be
taxable under Section 83(a) of the Code, the Holder shall deliver a copy of such election to the
Company immediately after filing such election with the Internal Revenue Service.




ARTICLE VIII.

DIVIDEND EQUIVALENTS, DEFERRED STOCK, STOCK PAYMENTS,

RESTRICTED STOCK UNITS




     8.1. Eligibility. Subject to the Award Limit, one or more Dividend Equivalent awards,
Deferred Stock awards, Stock Payment awards, and/or Restricted Stock Unit awards may be granted to
any Employee whom the Administrator determines is a key Employee, or any Independent Director or
any Consultant, whom the Administrator determines should receive such an Award.



     8.2. Dividend Equivalents.




     (a) Any key Employee, Independent Director or Consultant selected by the Administrator
may be granted Dividend Equivalents based on the dividends declared on the Common Stock, to be
credited as of dividend payment dates, during the period between the date a Stock Appreciation
Right, Deferred Stock award, or Restricted Stock Unit award is granted, and the date such Stock
Appreciation Right, Deferred Stock award, or Restricted Stock Unit award vests, is exercised,
is distributed, terminates or expires, as determined by the Administrator. Such Dividend
Equivalents shall be converted to cash or additional shares of Common Stock by such formula and
at such time and subject to such limitations as may be determined by the Administrator.




     (b) Any Holder of an Option who is an Employee, Independent Director or Consultant
selected by the Administrator may be granted Dividend Equivalents based on the dividends
declared on the Common Stock, to be credited as of dividend payment dates, during the period
between the date an Option is granted, and the date such Option vests, is exercised, terminates
or expires, as determined by the Administrator. Such Dividend Equivalents shall be converted to
cash or additional shares of Common Stock by such formula and at such time and subject to such
limitations as may be determined by the Administrator.




     (c) Dividend Equivalents granted with respect to Options intended to be qualified
performance-based compensation for purposes of Section 162(m) of the Code shall be payable,
with respect to pre-exercise periods, regardless of whether such Option is subsequently
exercised.



     8.3. Stock Payments. Any key Employee, Independent Director or Consultant selected by
the Administrator may receive Stock Payments in the manner determined from time to time by the
Administrator. The number of shares shall be determined by the Administrator and may be based upon
the Performance Criteria or other specific performance criteria determined appropriate by the
Administrator, determined on the date such Stock Payment is made or on any date thereafter.



     8.4. Deferred Stock. Any key Employee, Independent Director or Consultant selected by
the Administrator may be granted an award of Deferred Stock in the manner determined from time to
time by the Administrator. The number of shares of Deferred Stock shall be determined by the
Administrator and may be based upon the Performance Criteria or other specific performance criteria
determined to be appropriate by the Administrator, in each case on a specified date or dates or
over any period or periods determined by the Administrator. Common Stock underlying a Deferred
Stock award shall not be issued until the Deferred Stock award shall have vested, pursuant to a
vesting schedule or performance criteria set by the Administrator. The Administrator shall specify
the distribution dates applicable to each Deferred Stock award which shall be no earlier than the
vesting dates or events of the award and may be determined at the election of the Employee,
Independent Director or Consultant. Unless otherwise provided by the Administrator, a Holder of
Deferred Stock shall have no rights as a Company stockholder






B-15









 







with respect to such Deferred Stock until such time as the Award has vested and the Common Stock
underlying the Award has been issued.




     8.5. Restricted Stock Units. Any key Employee, Independent Director or Consultant
selected by the Administrator may be granted an award of Restricted Stock Units in the manner
determined from time to time by the Administrator. The Administrator is authorized to make awards
of Restricted Stock Units in such amounts and subject to such terms and conditions as determined by
the Administrator. The Administrator shall specify the date or dates on which the Restricted Stock
Units shall become fully vested and nonforfeitable, and may specify such conditions to vesting as
it deems appropriate, and may specify that such Restricted Stock Units become fully vested and
nonforfeitable pursuant to the satisfaction of one or more Performance Goals or other specific
performance goals as the Administrator determines to be appropriate at the time of the grant of the
Restricted Stock Units or thereafter, in each case on a specified date or dates or over any period
or periods determined by the Administrator. The Administrator shall specify the distribution dates
applicable to each award of Restricted Stock Units which shall be no earlier than the vesting dates
or events of the award and may be determined at the election of the Employee, Independent Director
or Consultant. On the distribution dates, the Company shall issue to the Participant one
unrestricted, fully transferable share of Common Stock for each Restricted Stock Unit distributed.
The Administrator shall specify the purchase price, if any, to be paid by the Employee, Independent
Director or Consultant to the Company for such shares of Common Stock to be distributed pursuant to
the Restricted Stock Unit award.



     8.6. Term. The term of a Dividend Equivalent award, Deferred Stock award, Stock Payment
award and/or Restricted Stock Unit award shall be set by the Administrator in its discretion.



     8.7. Exercise or Purchase Price. The Administrator may establish the exercise or
purchase price of shares of Deferred Stock, shares distributed as a Stock Payment award or shares
distributed pursuant to a Restricted Stock Unit award; provided, however, that such price shall not
be less than the par value of a share of Common Stock, unless otherwise permitted by applicable
state law.



     8.8. Exercise upon Termination of Employment, Termination of Consultancy or Termination of
Directorship. A Dividend Equivalent award, Deferred Stock award, Stock Payment award and/or
Restricted Stock Unit award is exercisable or distributable only while the Holder is an Employee,
Consultant or Independent Director, as applicable; provided, however, that the Administrator in its
sole and absolute discretion may provide that the Dividend Equivalent award, Deferred Stock award,
Stock Payment award and/or Restricted Stock Unit award may be exercised or distributed subsequent
to a Termination of Employment, Termination of Directorship or Termination of Consultancy following
a “change of control or ownership” (within the meaning of Section 1.162-27(e)(2)(v) or any
successor regulation thereto) of the Company.



     8.9. Form of Payment. Payment of the amount determined under Section 8.2 above shall be
in cash, in Common Stock or a combination of both, as determined by the Administrator. To the
extent any payment under this Article VIII is effected in Common Stock, it shall be made subject to
satisfaction of all provisions of Section 6.3.



ARTICLE IX.

STOCK APPRECIATION RIGHTS




     9.1. Grant of Stock Appreciation Rights. A Stock Appreciation Right may be granted to
any key Employee, Independent Director or Consultant selected by the Administrator. A Stock
Appreciation Right may be granted: (a) in connection and simultaneously with the grant of an
Option, (b) with respect to a previously granted Option, or (c) independent of an Option. A Stock
Appreciation Right shall be subject to such terms and conditions not inconsistent with the Plan as
the Administrator shall impose and shall be evidenced by an Award Agreement.







B-16









 








     9.2. Coupled Stock Appreciation Rights.




     (a) A Coupled Stock Appreciation Right (“CSAR”) shall be related to a particular Option
and shall be exercisable only when and to the extent the related Option is exercisable.




     (b) A CSAR may be granted to the Holder for no more than the number of shares subject to
the simultaneously or previously granted Option to which it is coupled.




     (c) A CSAR shall entitle the Holder (or other person entitled to exercise the Option
pursuant to the Plan) to surrender to the Company unexercised a portion of the Option to which
the CSAR relates (to the extent then exercisable pursuant to its terms) and to receive from the
Company in exchange therefor an amount determined by multiplying the difference obtained by
subtracting the Option exercise price from the Fair Market Value of a share of Common Stock on
the date of exercise of the CSAR by the number of shares of Common Stock with respect to which
the CSAR shall have been exercised, subject to any limitations the Administrator may impose.



     9.3. Independent Stock Appreciation Rights.




     (a) An Independent Stock Appreciation Right (“ISAR”) shall be unrelated to any Option
and shall have a term set by the Administrator provided, however, that the term shall not be
more than ten (10) years from the date the ISAR is granted. An ISAR shall be exercisable in
such installments as the Administrator may determine. An ISAR shall cover such number of shares
of Common Stock as the Administrator may determine; provided, however, that unless the
Administrator otherwise provides in the terms of the ISAR or otherwise, no ISAR granted to a
person subject to Section 16 of the Exchange Act shall be exercisable until at least six months
have elapsed from (but excluding) the date on which the Option was granted. The exercise price
per share of Common Stock subject to each ISAR shall be set by the Administrator; provided,
that such exercise price per share shall not be less than 100% of the Fair Market Value of a
share of Common Stock on the date the ISAR is granted. An ISAR is exercisable only while the
Holder is an Employee, Independent Director or Consultant; provided, that the Administrator may
determine that the ISAR may be exercised subsequent to Termination of Employment, Termination
of Directorship or Termination of Consultancy without cause, or following a Change in Control
of the Company, or because of the Holder’s retirement, death or disability, or otherwise.




     (b) An ISAR shall entitle the Holder (or other person entitled to exercise the ISAR
pursuant to the Plan) to exercise all or a specified portion of the ISAR (to the extent then
exercisable pursuant to its terms) and to receive from the Company an amount determined by
multiplying the difference obtained by subtracting the exercise price per share of the ISAR
from the Fair Market Value of a share of Common Stock on the date of exercise of the ISAR by
the number of shares of Common Stock with respect to which the ISAR shall have been exercised,
subject to any limitations the Administrator may impose.



     9.4. Payment and Limitations on Exercise.




     (a) Payment of the amounts determined under Section 9.2(c) and 9.3(b) above shall be in
cash, in Common Stock (based on its Fair Market Value as of the date the Stock Appreciation
Right is exercised) or a combination of both, as determined by the Administrator. To the extent
such payment is effected in Common Stock it shall be made subject to satisfaction of all
provisions of Section 6.3 above pertaining to Options.




     (b) Holders of Stock Appreciation Rights may be required to comply with any timing or
other restrictions with respect to the settlement or exercise of a Stock Appreciation Right,
including a window-period limitation, as may be imposed in the discretion of the Administrator.






B-17









 








ARTICLE X.

COMPLIANCE WITH SECTION 409A OF THE CODE




     10.1. Awards subject to Code Section 409A. Any Award that constitutes, or provides for, a
deferral of compensation subject to Section 409A of the Code (a “Section 409A Award”) shall satisfy
the requirements of Section 409A of the Code and this Article X, to the extent applicable. The
Award Agreement with respect to a Section 409A Award shall incorporate the terms and conditions
required by Section 409A of the Code and this Article X.



     10.2. Distributions under a Section 409A Award.




     (a) Subject to subsection (b), any shares of Common Stock, cash or other property or
amounts to be paid or distributed upon the grant, issuance, vesting, exercise or payment of a
Section 409A Award shall be distributed in accordance with the requirements of Section
409A(a)(2) of the Code, and shall not be distributed earlier than:




     (i) the Holder’s separation from service, as determined by the Secretary of the
Treasury,




     (ii) the date the Holder becomes disabled,




     (iii) the Holder’s death,




     (iv) a specified time (or pursuant to a fixed schedule) specified under the Award
Agreement at the date of the deferral of such compensation,




     (v) to the extent provided by the Secretary of the Treasury, a change in the
ownership or effective control of the Company or a Subsidiary, or in the ownership of a
substantial portion of the assets of the Company or a Subsidiary, or




     (vi) the occurrence of an unforeseeable emergency with respect to the Holder.




     (b) In the case of a Holder who is a specified employee, the requirement of paragraph
(a)(i) shall be met only if the distributions with respect to the Section 409A Award may not be
made before the date which is six months after the Holder’s separation from service (or, if
earlier, the date of the Holder’s death). For purposes of this subsection (b), a Holder shall
be a specified employee if such Holder is a key employee (as defined in Section 416(i) of the
Code without regard to paragraph (5) thereof) of a corporation any stock of which is publicly
traded on an established securities market or otherwise, as determined under Section
409A(a)(2)(B)(i) of the Code and the Treasury Regulations thereunder.




     (c) The requirement of paragraph (a)(vi) shall be met only if, as determined under
Treasury Regulations under Section 409A(a)(2)(B)(ii) of the Code, the amounts distributed with
respect to the unforeseeable emergency do not exceed the amounts necessary to satisfy such
unforeseeable emergency plus amounts necessary to pay taxes reasonably anticipated as a result
of the distribution, after taking into account the extent to which such unforeseeable emergency
is or may be relieved through reimbursement or compensation by insurance or otherwise or by
liquidation of the Holder’s assets (to the extent the liquidation of such assets would not
itself cause severe financial hardship).




     (d) For purposes of this Section, the terms specified therein shall have the respective
meanings ascribed thereto under Section 409A of the Code and the Treasury Regulations
thereunder.



     10.3. Prohibition on Acceleration of Benefits. The time or schedule of any distribution or
payment of any shares of Common Stock, cash or other property or amounts under a Section 409A Award
shall not be accelerated, except as otherwise permitted under Section 409A(a)(3) of the Code and
the Treasury Regulations thereunder.







B-18









 








     10.4. Elections under Section 409A Awards.




     (a) Any deferral election provided under or with respect to an Award to any Employee,
Independent Director or Consultant, or to the Holder of a Section 409A Award, shall satisfy the
requirements of Section 409A(a)(4)(B) of the Code, to the extent applicable, and, except as
otherwise permitted under paragraph (i) or (ii), any such deferral election with respect to
compensation for services performed during a taxable year shall be made not later than the
close of the preceding taxable year, or at such other time as provided in Treasury Regulations.




     (i) In the case of the first year in which an Employee, Independent Director or
Consultant, or the Holder, becomes eligible to participate in the Plan, any such deferral
election may be made with respect to services to be performed subsequent to the election
with thirty (30) days after the date the Employee, Independent Director or Consultant, or
the Holder, becomes eligible to participate in the Plan, as provided under Section
409A(a)(4)(B)(ii) of the Code.




     (ii) In the case of any performance-based compensation based on services performed
by an Employee, Independent Director or Consultant, or the Holder, over a period of at
least twelve (12) months, any such deferral election may be made no later than six months
before the end of the period, as provided under Section 409A(a)(4)(B)(iii) of the Code.




     (b) In the event that a Section 409A Award permits, under a subsequent election by the
Holder of such Section 409A Award, a delay in a distribution or payment of any shares of Common
Stock, cash or other property or amounts under such Section 409A Award, or a change in the form
of distribution or payment, such subsequent election shall satisfy the requirements of Section
409A(a)(4)(C) of the Code, and:




     (i) such subsequent election may not take effect until at least twelve (12) months
after the date on which the election is made,




     (ii) in the case such subsequent election relates to a distribution or payment not
described in Section 10.2(a)(ii), (iii) or (vi), the first payment with respect to such
election may be deferred for a period of not less than five years from the date such
distribution or payment otherwise would have been made, and




     (iii) in the case such subsequent election relates to a distribution or payment
described in Section 10.2(a)(iv), such election may not be made less than twelve (12)
months prior to the date of the first scheduled distribution or payment under Section
10.2(a)(iv).



     10.5. Compliance in Form and Operation. A Section 409A Award, and any election under or
with respect to such Section 409A Award, shall comply in form and operation with the requirements
of Section 409A of the Code and the Treasury Regulations thereunder.



ARTICLE XI.

ADMINISTRATION




     11.1. Compensation Committee. The Compensation Committee (or another committee or a
subcommittee of the Board assuming the functions of the Committee under the Plan) shall consist
solely of two or more Independent Directors appointed by and holding office at the pleasure of the
Board, each of whom is both a “non-employee director” as defined by Rule 16b-3 and an “outside
director” for purposes of Section 162(m) of the Code. Appointment of Committee members shall be
effective upon acceptance of appointment. Committee members may resign at any time by delivering
written notice to the Board. Vacancies in the Committee may be filled by the Board.






B-19









 








     11.2. Duties and Powers of Committee. It shall be the duty of the Committee to conduct the
general administration of the Plan in accordance with its provisions. The Committee shall have the
power to interpret the Plan and the Award Agreements, and to adopt such rules for the
administration, interpretation and application of the Plan as are consistent therewith, to
interpret, amend or revoke any such rules and to amend any Award Agreement provided that the rights
or obligations of the Holder of the Award that is the subject of any such Award Agreement are not
affected adversely. Any such grant or award under the Plan need not be the same with respect to
each Holder. Any such interpretations and rules with respect to Incentive Stock Options shall be
consistent with the provisions of Section 422 of the Code. In its absolute discretion, the Board
may at any time and from time to time exercise any and all rights and duties of the Committee under
the Plan except with respect to matters which under Rule 16b-3 or Section 162(m) of the Code, or
any regulations or rules issued thereunder, are required to be determined in the sole discretion of
the Committee. Notwithstanding the foregoing, the full Board, acting by a majority of its members
in office, shall conduct the general administration of the Plan with respect to Awards granted to
Independent Directors.



     11.3. Majority Rule; Unanimous Written Consent. The Committee shall act by a majority of
its members in attendance at a meeting at which a quorum is present or by a memorandum or other
written instrument signed by all members of the Committee.



     11.4. Compensation; Professional Assistance; Good Faith Actions. Members of the Committee
shall receive such compensation, if any, for their services as members as may be determined by the
Board. All expenses and liabilities which members of the Committee incur in connection with the
administration of the Plan shall be borne by the Company. The Committee may, with the approval of
the Board, employ attorneys, consultants, accountants, appraisers, brokers or other persons. The
Committee, the Company and the Company’s officers and Directors shall be entitled to rely upon the
advice, opinions or valuations of any such persons. All actions taken and all interpretations and
determinations made by the Committee or the Board in good faith shall be final and binding upon all
Holders, the Company and all other interested persons. No members of the Committee or Board shall
be personally liable for any action, determination or interpretation made in good faith with
respect to the Plan or Awards, and all members of the Committee and the Board shall be fully
protected by the Company in respect of any such action, determination or interpretation.



     11.5. Delegation of Authority to Grant Awards. The Committee may, but need not, delegate
from time to time some or all of its authority to grant Awards under the Plan to a committee
consisting of one or more members of the Committee or of one or more officers of the Company, to
the extent permitted by applicable state law; provided, however, that the Committee may not
delegate its authority to grant Awards to individuals: (a) who are subject on the date of the
grant to the reporting rules under Section 16(a) of the Exchange Act, (b) who are Section 162(m)
Participants, or (c) who are officers of the Company who are delegated authority by the Committee
hereunder. Any delegation hereunder shall be subject to the restrictions and limits that the
Committee specifies at the time of such delegation of authority and may be rescinded at any time by
the Committee. At all times, any committee appointed under this Section 11.5 shall serve in such
capacity at the pleasure of the Committee.



ARTICLE XII.

MISCELLANEOUS PROVISIONS




     12.1. Transferability of Awards.




     (a) Except as otherwise provided in Section 12.1(b):




     (i) No Award under the Plan may be sold, pledged, assigned or transferred in any
manner other than by will or the laws of descent and distribution or, subject to the
consent of the Administrator, pursuant to a DRO, unless and until such Award has been
exercised, or the shares





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underlying such Award have been issued, and all restrictions applicable to such shares
have lapsed;




     (ii) No Option, Restricted Stock award, Deferred Stock award, Stock Appreciation
Right, Dividend Equivalent award, Stock Payment award, or Restricted Stock Unit award, or
any interest or right therein, shall be liable for the debts, contracts or engagements of
the Holder or his successors in interest or shall be subject to disposition by transfer,
alienation, anticipation, pledge, encumbrance, assignment or any other means whether such
disposition be voluntary or involuntary or by operation of law by judgment, levy,
attachment, garnishment or any other legal or equitable proceedings (including
bankruptcy), and any attempted disposition thereof shall be null and void and of no
effect, except to the extent that such disposition is permitted by the preceding sentence;
and




     (iii) During the lifetime of the Holder, only the Holder may exercise an Option or
other Award (or any portion thereof) granted to him under the Plan, unless it has been
disposed of pursuant to a DRO; after the death of the Holder, any exercisable portion of
an Option or other Award may, prior to the time when such portion becomes unexercisable
under the Plan or the applicable Award Agreement, be exercised by his personal
representative or by any person empowered to do so under the deceased Holder’s will or
under the then applicable laws of descent and distribution.





     (b) Notwithstanding Section 12.1(a), the Administrator, in its sole discretion, may
determine to permit a Holder to transfer a Non-Qualified Stock Option to any one or more
Permitted Transferees (as defined below), subject to the following terms and conditions: (i) a
Non-Qualified Stock Option transferred to a Permitted Transferee shall not be assignable or
transferable by the Permitted Transferee other than by will or the laws of descent and
distribution; (ii) any Non-Qualified Stock Option which is transferred to a Permitted
Transferee shall continue to be subject to all the terms and conditions of the Non-Qualified
Stock Option as applicable to the original Holder (other than the ability to further transfer
the Non-Qualified Stock Option); and (iii) the Holder and the Permitted Transferee shall
execute any and all documents requested by the Administrator, including, without limitation
documents to (A) confirm the status of the transferee as a Permitted Transferee, (B) satisfy
any requirements for an exemption for the transfer under applicable federal and state
securities laws and (C) evidence the transfer. For purposes of this Section 12.1(b), “Permitted
Transferee” shall mean, with respect to a Holder, any child, stepchild, grandchild, parent,
stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law,
father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including
adoptive relationships, any person sharing the Holder’s household (other than a tenant or
employee), a trust in which these persons (or the Holder) control the management of assets, and
any other entity in which these persons (or the Holder) own more than fifty percent of the
voting interests, or any other transferee specifically approved by the Administrator after
taking into account any state or federal tax or securities laws applicable to transferable
Non-Qualified Stock Options.



     12.2. Amendment, Suspension or Termination of the Plan. Except as otherwise provided in
this Section 12.2, the Plan may be wholly or partially amended or otherwise modified, suspended or
terminated at any time or from time to time by the Board. However, without approval of the
Company’s stockholders given within twelve (12) months before or after the action by the Board, no
action of the Board may, except as provided in Section 12.3, (i) increase the limits imposed in
Section 2.1 on the maximum number of shares which may be issued under the Plan, or the maximum
number of shares which may be granted or issued as Restricted Stock awards, Restricted Stock Unit
awards, Dividend Equivalent awards, Deferred Stock awards, or Stock Payment awards, (ii) expand the
classes of persons to whom Awards may be granted under the Plan, or (iii) decrease the exercise
price of any outstanding Option or Stock Appreciation Right granted under the Plan. No amendment,
suspension or termination of the Plan shall,





B-21









 







without the consent of the Holder, alter or impair any rights or obligations under any Award
theretofore granted or awarded, unless the Award itself otherwise expressly so provides. No Awards
may be granted or awarded during any period of suspension or after termination of the Plan, and in
no event may any Award be granted under the Plan after the first to occur of the following events:





     (a) The expiration of ten (10) years from the date this second amendment and
restatement of the Plan is adopted by the Board; or




     (b) The expiration of ten (10) years from the date this second amendment and restatement
of the Plan is approved by the Company’s stockholders under Section 12.4.



     12.3. Changes in Common Stock or Assets of the Company, Acquisition or Liquidation of the
Company and Other Corporate Events.




     (a) Subject to Section 12.3(e), in the event that the Administrator determines that any
dividend or other distribution (whether in the form of cash, Common Stock, other securities or
other property), recapitalization, reclassification, stock split, reverse stock split,
reorganization, merger, consolidation, split-up, spin-off, combination, repurchase,
liquidation, dissolution, or sale, transfer, exchange or other disposition of all or
substantially all of the assets of the Company, or exchange of Common Stock or other securities
of the Company, issuance of warrants or other rights to purchase Common Stock or other
securities of the Company, or other similar corporate transaction or event affects the Common
Stock, then the Administrator shall equitably adjust any or all of the following in order to
prevent dilution or enlargement of the benefits or potential benefits intended to be made
available under the Plan or with respect to an Award:




     (i) The number and kind of shares of Common Stock (or other securities or
property) with respect to which Awards may be granted or awarded (including, but not
limited to, adjustments of the limitations in Section 2.1 on the maximum number and kind
of shares which may be issued under the Plan, and the maximum number and kind of shares
which may be granted or issued as Restricted Stock awards, Restricted Stock Unit awards,
Dividend Equivalent awards, Deferred Stock awards or Stock Payment awards, adjustments of
the Award Limit, and adjustments of the manner in which shares subject to Full Value
Awards will be counted);




     (ii) The number and kind of shares of Common Stock (or other securities or
property) subject to outstanding Awards; and




     (iii) The grant or exercise price with respect to any Award.




     (b) Subject to Sections 12.3(c) and 12.3(e), in the event of any transaction or event
described in Section 12.3(a) or any unusual or nonrecurring transactions or events affecting
the Company, any affiliate of the Company, or the financial statements of the Company or any
affiliate, or of changes in applicable laws, regulations or accounting principles, the
Administrator, in its sole and absolute discretion, and on such terms and conditions as it
deems appropriate, either by the terms of the Award or by action taken prior to the occurrence
of such transaction or event and either automatically or upon the Holder’s request, is hereby
authorized to take any one or more of the following actions whenever the Administrator
determines that such action is appropriate in order to prevent dilution or enlargement of the
benefits or potential benefits intended to be made available under the Plan or with respect to
any Award under the Plan, to facilitate such transactions or events or to give effect to such
changes in laws, regulations or principles:




     (i) To provide for either the purchase of any such Award for an amount of cash
equal to the amount that could have been attained upon the exercise of such Award or
realization of the Holder’s rights had such Award been currently exercisable or payable or
fully vested or the



B-22









 







replacement of such Award with other rights or property selected by the Administrator in
its sole discretion;




     (ii) To provide that the Award cannot vest, be exercised or become payable after
such event;




     (iii) To provide that such Award shall be exercisable as to all shares covered
thereby, notwithstanding anything to the contrary in Section 5.3 or the provisions of such
Award;




     (iv) To provide that such Award be assumed by the successor or survivor corporation,
or a parent or subsidiary thereof, or shall be substituted for by similar options, rights
or awards covering the stock of the successor or survivor corporation, or a parent or
subsidiary thereof, with appropriate adjustments as to the number and kind of shares and
prices; and




     (v) To make adjustments in the number and type of shares of Common Stock (or other
securities or property) subject to outstanding Awards, and/or in the terms and conditions
of (including the grant, exercise or purchase price), and the criteria included in,
outstanding options, rights and awards and options, rights and awards which may be granted
in the future.




     (vi) To provide that, for a specified period of time prior to such event, the
restrictions imposed under an Award Agreement upon some or all shares of Restricted Stock,
Restricted Stock Units or Deferred Stock may be terminated, and, in the case of Restricted
Stock, some or all shares of such Restricted Stock may cease to be subject to repurchase
under Section 7.5 or forfeiture under Section 7.4 after such event.




     (c) Notwithstanding any other provision of the Plan, in the event of a Change in
Control, each outstanding Award shall remain outstanding, or shall be assumed or an equivalent
award substituted by the successor corporation, or a parent or subsidiary of the successor
corporation. In the event that the successor corporation, or a parent or subsidiary of the
successor corporation, with respect to the Change in Control transaction refuses to assume or
substitute for the Award, the Holder shall have the right to exercise the Award as to all of
the shares subject thereto, including shares as to which such Award otherwise would not be
exercisable, and the Holder shall have the right to vest in, and received a distribution of,
such Award, with respect to all of the shares subject thereto. If an Award becomes exercisable
in lieu of assumption or substitution by the successor corporation, or a parent or subsidiary
corporation, with respect to a Change in Control transaction, the Administrator shall notify
the Holder that the Award shall be fully exercisable for a period of not less than fifteen (15)
days from the date of such notice prior to the Change in Control transaction, and the Award
shall terminate upon the expiration of such period. For purposes of this Section 12.3(c), the
Award shall be assumed, or an equivalent award shall be substituted for such Award, if,
following the Change in Control transaction, the Award or substituted award confers on the
Holder the right to purchase or receive, for each share subject to the Award immediately prior
to the Change in Control transaction, the consideration (whether in stock, cash, or other
securities or property, or a combination thereof) received or to be received for each share of
Common Stock in the Change in Control transaction on the effective date of the Change in
Control transaction (and if holders of shares of Common Stock were offered a choice of
consideration, the type of consideration chosen by the holders of a majority of the outstanding
shares of Common Stock); provided, however, that, if such consideration received in the Change
in Control transaction was not solely common stock of the successor corporation or its parent,
the Administrator may, with the consent of the successor corporation or its parent, provide for
the consideration to be received upon the exercise, vesting or distribution of the assumed
Award or substituted award, for each share subject to the Award, to be solely common stock of
the successor corporation or its parent equal in fair market value to the per share
consideration received by the holders of Common Stock in the Change in Control transaction.






B-23









 









     (d) Subject to Sections 12.3(e), 3.2 and 3.3, the Administrator may, in its discretion,
include such further provisions and limitations in any Award or Award Agreement as it may deem
equitable and in the best interests of the Company.




     (e) With respect to Awards which are granted to Section 162(m) Participants and are
intended to qualify as performance-based compensation under Section 162(m)(4)(C), no adjustment
or action described in this Section 12.3 or in any other provision of the Plan shall be
authorized to the extent that such adjustment or action would cause such Award to fail to so
qualify under Section 162(m)(4)(C), or any successor provisions thereto. No adjustment or
action described in this Section 12.3 or in any other provision of the Plan shall be authorized
to the extent that such adjustment or action would cause the Plan to violate Section 422(b)(1)
of the Code. Furthermore, no such adjustment or action shall be authorized to the extent such
adjustment or action would result in short-swing profits liability under Section 16 or violate
the exemptive conditions of Rule 16b-3 unless the Administrator determines that the Award is
not to comply with such exemptive conditions. The number of shares of Common Stock subject to
any Award shall always be rounded to the next whole number.




     (f) Notwithstanding the foregoing, in the event that the Company becomes a party to a
transaction that is intended to qualify for “pooling of interests” accounting treatment and,
but for one or more of the provisions of this Plan or any Award Agreement would so qualify,
then this Plan and any Award Agreement shall be interpreted so as to preserve such accounting
treatment, and to the extent that any provision of the Plan or any Award Agreement would
disqualify the transaction from pooling of interests accounting treatment (including, if
applicable, an entire Award Agreement), then such provision shall be null and void. All
determinations to be made in connection with the preceding sentence shall be made by the
independent accounting firm whose opinion with respect to “pooling of interests” treatment is
required as a condition to the Company’s consummation of such transaction.




     (g) The existence of the Plan, the Award Agreement and the Awards granted hereunder
shall not affect or restrict in any way the right or power of the Company or the shareholders
of the Company to make or authorize any adjustment, recapitalization, reorganization or other
change in the Company’s capital structure or its business, any merger or consolidation of the
Company, any issue of stock or of options, warrants or rights to purchase stock or of bonds,
debentures, preferred or prior preference stocks whose rights are superior to or affect the
Common Stock or the rights thereof or which are convertible into or exchangeable for Common
Stock, or the dissolution or liquidation of the company, or any sale or transfer of all or any
part of its assets or business, or any other corporate act or proceeding, whether of a similar
character or otherwise.




     (h) No action shall be taken under this Section 12.3 which shall cause an Award to fail
to comply with Section 409A of the Code or the Treasury Regulations thereunder, to the extent
applicable to such Award.



     12.4. Approval of Plan by Stockholders. The Plan will be submitted for the approval of the
Company’s stockholders within twelve (12) months after the date of the Board’s initial adoption of
the Plan. Awards may be granted or awarded prior to such stockholder approval, provided, that such
Awards shall not be exercisable nor shall such Awards vest prior to the time when the Plan is
approved by the stockholders, and provided further, that if such approval has not been obtained at
the end of said twelve-month period, all Awards previously granted or awarded under the Plan shall
thereupon be canceled and become null and void. In addition, if the Board determines that Awards
other than Options or Stock Appreciation Rights which may be granted to Section 162(m) Participants
should continue to be eligible to qualify as performance-based compensation under Section
162(m)(4)(C) of the Code, the Performance Criteria must be disclosed to and approved by the
Company’s stockholders no later than the first





B-24









 







stockholder meeting that occurs in the fifth year following the year in which the Company’s
stockholders previously approved the Plan, as amended and restated to include the Performance
Criteria.




     12.5. Tax Withholding. The Company shall be entitled to require payment in cash or
deduction from other compensation payable to each Holder of any sums required by federal, state or
local tax law to be withheld with respect to the grant, issuance, vesting, exercise or payment of
any Award. The Administrator may in its discretion and in satisfaction of the foregoing requirement
allow such Holder to elect to have the Company withhold shares of Common Stock otherwise issuable
under such Award (or allow the return of shares of Common Stock) having a Fair Market Value equal
to the sums required to be withheld. Notwithstanding any other provision of the Plan, the number of
shares of Common Stock which may be withheld with respect to the issuance, vesting, exercise or
payment of any Award (or which may be repurchased from the Holder of such Award within six months
after such shares of Common Stock were acquired by the Holder from the Company) in order to satisfy
the Holder’s federal and state income and payroll tax liabilities with respect to the issuance,
vesting, exercise or payment of the Award shall be limited to the number of shares which have a
Fair Market Value on the date of withholding or repurchase equal to the aggregate amount of such
liabilities based on the minimum statutory withholding rates for federal and state tax income and
payroll tax purposes that are applicable to such supplemental taxable income.



     12.6. Prohibition on Repricing. Subject to Section 12.3, the Administrator shall not,
without the approval of the stockholders of the Company, authorize the amendment of any outstanding
Award to reduce its price per share. Furthermore, no Award shall be canceled and replaced with the
grant of an Award having a lesser price per share without the further approval of stockholders of
the Company.



     12.7. Forfeiture Provisions. Pursuant to its general authority to determine the terms and
conditions applicable to Awards and the Award Agreements under the Plan, the Administrator shall
have the right to provide, in the terms of Awards made under the Plan, or to require a Holder to
agree by separate written instrument, that: (a)(i) any proceeds, gains or other economic benefit
actually or constructively received by the Holder upon any receipt or exercise of the Award, or
upon the receipt or resale of any Common Stock underlying the Award, must be paid to the Company,
and (ii) the Award shall terminate and any unexercised portion of the Award (whether or not vested)
shall be forfeited, if (b)(i) a Termination of Employment, Termination of Directorship or
Termination of Consultancy occurs prior to a specified date, or within a specified time period
following receipt or exercise of the Award, or (ii) the Holder at any time, or during a specified
time period, engages in any activity in competition with the Company, or which is inimical,
contrary or harmful to the interests of the Company, as further defined by the Administrator or
(iii) the Holder incurs a Termination of Employment, Termination of Directorship or Termination of
Consultancy for “cause” (as such term is defined in the sole and absolute discretion of the
Committee, or as set forth in a written agreement relating to such Award between the Company and
the Holder).



     12.8. Effect of Plan upon Options and Compensation Plans. The adoption of the Plan shall
not affect any other compensation or incentive plans in effect for the Company or any Subsidiary.
Nothing in the Plan shall be construed to limit the right of the Company: (a) to establish any
other forms of incentives or compensation for Employees, Directors or Consultants of the Company or
any Subsidiary, or (b) to grant or assume options or other rights or awards otherwise than under
the Plan in connection with any proper corporate purpose including but not by way of limitation,
the grant or assumption of options in connection with the acquisition by purchase, lease, merger,
consolidation or otherwise, of the business, stock or assets of any corporation, partnership,
limited liability company, firm or association.



     12.9. Compliance with Laws. The Plan, the granting and vesting of Awards under the Plan and
the issuance and delivery of shares of Common Stock and the payment of money under the Plan or
under Awards granted or awarded hereunder are subject to compliance with all applicable federal and
state laws, rules and regulations (including but not limited to state and federal securities law
and federal margin




B-25









 







requirements) and to such approvals by any listing, regulatory or governmental authority as may, in
the opinion of counsel for the Company, be necessary or advisable in connection therewith. Any
securities delivered under the Plan shall be subject to such restrictions, and the person acquiring
such securities shall, if requested by the Company, provide such assurances and representations to
the Company as the Company may deem necessary or desirable to assure compliance with all applicable
legal requirements. To the extent permitted by applicable law, the Plan and Awards granted or
awarded hereunder shall be deemed amended to the extent necessary to conform to such laws, rules
and regulations.




     12.10. Titles. Titles are provided herein for convenience only and are not to
serve as a basis for interpretation or construction of the Plan.



     12.11. Governing Law. The Plan and any agreements hereunder shall be
administered, interpreted and enforced under the internal laws of the State of California without
regard to conflicts of laws thereof.



* * *




     I hereby certify that the foregoing amendment and restatement of the Plan was duly adopted by
the Board of Directors of Watson Pharmaceuticals, Inc. on May 7, 2010.



     Executed on this 7th day of May 2010.



	 	 	 	 	 
	 	 	 
	 	By:  	/s/ DAVID A. BUCHEN
 	 
	 	 	David A. Buchen 	 
	 	 	Secretary 	 
	 



* * *





     I hereby certify that the Plan was previously approved by the stockholders of Watson
Pharmaceuticals, Inc. on May 4, 2007.



     Executed on this 7th day of May 2010.



	 	 	 	 	 
	 	 	 
	 	By:  	/s/ DAVID A. BUCHEN
 	 
	 	 	David A. Buchen 	 
	 	 	Secretary 	 
	 




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