PROFIT IN AWARDS WILL NOT
CONSTITUTE AN ELEMENT OF DAMAGES IN THE EVENT OF TERMINATION OF EMPLOYMENT FOR
ANY REASON, EVEN IF THE TERMINATION IS IN VIOLATION OF AN OBLIGATION OF THE
COMPANY OR AFFILIATE TO THE PARTICIPANT.
(8)
CERTAIN PERFORMANCE AWARDS. THIS SECTION 6(A)(8) APPLIES TO ANY PERFORMANCE
AWARD THAT IS INTENDED TO QUALIFY AS PERFORMANCE-BASED FOR THE PURPOSES OF
SECTION 162(M), OTHER THAN A STOCK OPTION OR SAR. IN THE CASE OF ANY PERFORMANCE
AWARD TO WHICH THIS SECTION 6(A)(8) APPLIES, THE PLAN AND SUCH AWARD WILL BE
CONSTRUED TO THE MAXIMUM EXTENT PERMITTED BY LAW IN A MANNER CONSISTENT WITH
QUALIFYING THE AWARD FOR SUCH EXCEPTION. WITH RESPECT TO SUCH PERFORMANCE
AWARDS, THE ADMINISTRATOR WILL PREESTABLISH, IN WRITING, ONE OR MORE SPECIFIC
PERFORMANCE CRITERIA NO LATER THAN 90 DAYS AFTER THE COMMENCEMENT OF THE PERIOD
OF SERVICE TO WHICH THE PERFORMANCE RELATES (OR AT SUCH EARLIER TIME AS IS
REQUIRED TO QUALIFY THE AWARD AS PERFORMANCE-BASED UNDER SECTION 162(M)). PRIOR
TO GRANT, VESTING OR PAYMENT OF THE PERFORMANCE AWARD, AS THE CASE MAY BE, THE
ADMINISTRATOR WILL CERTIFY WHETHER THE APPLICABLE PERFORMANCE CRITERIA HAVE BEEN
ATTAINED AND SUCH DETERMINATION WILL BE FINAL AND CONCLUSIVE.
(B)
AWARDS REQUIRING EXERCISE
(1)
TIME AND MANNER OF EXERCISE. UNLESS THE ADMINISTRATOR EXPRESSLY PROVIDES
OTHERWISE, AN AWARD REQUIRING EXERCISE BY THE HOLDER WILL NOT BE DEEMED TO HAVE
BEEN EXERCISED UNTIL THE ADMINISTRATOR RECEIVES A NOTICE OF EXERCISE (IN FORM
ACCEPTABLE TO THE ADMINISTRATOR) SIGNED BY THE APPROPRIATE PERSON AND
ACCOMPANIED BY ANY PAYMENT REQUIRED UNDER THE AWARD. IF THE AWARD IS EXERCISED
BY ANY PERSON OTHER THAN THE PARTICIPANT, THE ADMINISTRATOR MAY REQUIRE
SATISFACTORY EVIDENCE THAT THE PERSON EXERCISING THE AWARD HAS THE RIGHT TO DO
SO.
(2)
EXERCISE PRICE. THE ADMINISTRATOR WILL DETERMINE THE EXERCISE PRICE (OR THE
BASE VALUE FROM WHICH APPRECIATION IS TO BE MEASURED, IN THE CASE OF A SAR) OF
EACH AWARD REQUIRING EXERCISE. HOWEVER, THE EXERCISE PRICE OR BASE VALUE, AS THE
CASE MAY BE, MAY NOT BE LESS THAN THE FAIR MARKET VALUE OF THE STOCK SUBJECT TO
THE AWARD, DETERMINED AS OF THE DATE OF GRANT. FAIR MARKET VALUE SHALL BE
DETERMINED BY THE ADMINISTRATOR CONSISTENT WITH THE REQUIREMENTS OF SECTION 422,
WHERE APPLICABLE, AND SECTION 409A. NO SUCH AWARD, ONCE GRANTED, MAY BE REPRICED
OTHER THAN IN ACCORDANCE WITH THE APPLICABLE NASDAQ STOCKHOLDER APPROVAL
REQUIREMENTS.
(3)
PAYMENT OF EXERCISE PRICE. WHERE THE EXERCISE OF AN AWARD IS TO BE
ACCOMPANIED BY PAYMENT, THE ADMINISTRATOR MAY DETERMINE THE REQUIRED OR
PERMITTED FORMS OF PAYMENT, SUBJECT TO THE FOLLOWING:
ALL PAYMENTS WILL BE BY
CASH OR CHECK ACCEPTABLE TO THE ADMINISTRATOR, OR, IF SO PERMITTED BY THE
ADMINISTRATOR AND IF LEGALLY PERMISSIBLE, (I) THROUGH THE DELIVERY OF SHARES OF
STOCK THAT HAVE BEEN OUTSTANDING FOR AT LEAST SIX MONTHS (UNLESS THE
ADMINISTRATOR APPROVES A SHORTER PERIOD) AND THAT HAVE A FAIR MARKET VALUE EQUAL
TO THE EXERCISE PRICE, (II) BY DELIVERY TO THE COMPANY OF A PROMISSORY NOTE OF
THE PERSON EXERCISING THE AWARD,