{"id":38472,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/acquisition-equity-incentive-plan-jds-uniphase-corp.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"acquisition-equity-incentive-plan-jds-uniphase-corp","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/acquisition-equity-incentive-plan-jds-uniphase-corp.html","title":{"rendered":"Acquisition Equity Incentive Plan – JDS Uniphase Corp."},"content":{"rendered":"

JDS UNIPHASE CORPORATION<\/strong><\/p>\n

2005 ACQUISITION EQUITY INCENTIVE PLAN<\/strong><\/p>\n

as amended May 2, 2010<\/strong><\/p>\n

1. Purpose of the Plan<\/u>. The purpose of this Plan is to provide
\nincentives to attract eligible persons whose potential contributions are
\nimportant to the success of the Company by offering them an opportunity to
\nparticipate in the Company153s future performance.<\/p>\n

2. Definitions<\/u>. As used herein, the following definitions shall apply:\n<\/p>\n

(a) “Administrator<\/u>” means any Committee appointed by the Board in
\naccordance with Applicable Law to administer the Plan.<\/p>\n

(b) “Affiliate<\/u>” and “Associate<\/u>” shall have the respective
\nmeanings ascribed to such terms in Rule 12b-2 promulgated under the Exchange
\nAct.<\/p>\n

(c) “Applicable Laws<\/u>” means the legal requirements relating to the
\nPlan and the Awards under applicable provisions of federal securities laws,
\nstate corporate and securities laws, the Code, the rules of any applicable stock
\nexchange or national market system, and the rules of any non-U.S. jurisdiction
\napplicable to Awards granted to residents therein.<\/p>\n

(d) “Assumed<\/u>” means that pursuant to a Corporate Transaction either
\n(i) the Award is expressly affirmed by the Company or (ii) the contractual
\nobligations represented by the Award are expressly assumed (and not simply by
\noperation of law) by the successor entity or its Parent in connection with the
\nCorporate Transaction with appropriate adjustments to the number and type of
\nsecurities of the successor entity or its Parent subject to the Award and the
\nexercise or purchase price thereof which preserves the compensation element of
\nthe Award existing at the time of the Corporate Transaction as determined in
\naccordance with the instruments evidencing the agreement to assume the Award.\n<\/p>\n

(e) “Award<\/u>” means the grant of an Option, SAR, Dividend Equivalent
\nRight, Restricted Stock, Restricted Stock Unit, Performance Unit, or other right
\nor benefit under the Plan.<\/p>\n

(f) “Award Agreement<\/u>” means the written agreement evidencing the grant
\nof an Award executed by the Company and the Grantee, including any amendments
\nthereto.<\/p>\n

(g) “Board<\/u>” means the Board of Directors of the Company.<\/p>\n

(h) “Cause<\/u>” means, with respect to the termination by the Company or a
\nRelated Entity of the Grantee153s Continuous Active Service, that such termination
\nis for “Cause” as such term is expressly defined in a then-effective written
\nagreement between the Grantee and the Company or such Related Entity, or in the
\nabsence of such then-effective written agreement and definition, is based on, in
\nthe determination of the Administrator, the Grantee153s: (i) performance of any
\nact or failure to perform any act in bad faith and to the detriment of the
\nCompany or a Related Entity; (ii) dishonesty, intentional misconduct, material
\nviolation of any<\/p>\n

1<\/p>\n

\n

<\/p>\n

applicable Company or Related Entity policy, or material breach of any
\nagreement with the Company or a Related Entity; or (iii) commission of a crime
\ninvolving dishonesty, breach of trust, or physical or emotional harm to any
\nperson.<\/p>\n

(i) “Change in Control<\/u>” means a change in ownership or control of the
\nCompany effected through either of the following transactions:<\/p>\n

(i) the direct or indirect acquisition by any person or related group of
\npersons (other than an acquisition from or by the Company or by a
\nCompany-sponsored employee benefit plan or by a person that directly or
\nindirectly controls, is controlled by, or is under common control with, the
\nCompany) of beneficial ownership (within the meaning of Rule 13d-3 of the
\nExchange Act) of securities possessing more than fifty percent (50%) of the
\ntotal combined voting power of the Company153s outstanding securities pursuant to
\na tender or exchange offer made directly to the Company153s stockholders which a
\nmajority of the Continuing Directors who are not Affiliates or Associates of the
\nofferor do not recommend such stockholders accept, or<\/p>\n

(ii) a change in the composition of the Board over a period of thirty-six
\n(36) months or less such that a majority of the Board members (rounded up to the
\nnext whole number) ceases, by reason of one or more contested elections for
\nBoard membership, to be comprised of individuals who are Continuing Directors.\n<\/p>\n

(j) “Code<\/u>” means the Internal Revenue Code of 1986, as amended.<\/p>\n

(k) “Committee<\/u>” means any committee composed of members of the Board
\nappointed by the Board to administer the Plan.<\/p>\n

(l) “Common Stock<\/u>” means the common stock of the Company.<\/p>\n

(m) “Company<\/u>” means JDS Uniphase Corporation, <\/strong>a
\nDelaware corporation.<\/p>\n

(n) “Consultant<\/u>” means any person (other than an Employee or a
\nDirector, solely with respect to rendering services in such person153s capacity as
\na Director) who is engaged by the Company or any Related Entity to render
\nconsulting or advisory services to the Company or such Related Entity.<\/p>\n

(o) “Continuing Directors<\/u>” means members of the Board who either (i)
\nhave been Board members continuously for a period of at least thirty-six (36)
\nmonths or (ii) have been Board members for less than thirty-six (36) months and
\nwere elected or nominated for election as Board members by at least a majority
\nof the Board members described in clause (i) who were still in office at the
\ntime such election or nomination was approved by the Board.<\/p>\n

(p) “Continuous Active Service<\/u>” means that the provision of services
\nto the Company or a Related Entity in any capacity of Employee, Director or
\nConsultant is not interrupted or terminated. In jurisdictions requiring notice
\nin advance of an effective termination as an Employee, Director or Consultant,
\nContinuous Active Service shall be deemed terminated upon the actual cessation
\nof providing services to the Company or a Related Entity notwithstanding any
\nrequired notice period that must be fulfilled before a termination as an<\/p>\n

2<\/p>\n

\n

<\/p>\n

Employee, Director or Consultant can be effective under Applicable Laws.
\nContinuous Active Service shall not be considered interrupted in the case of (i)
\nany approved leave of absence, (ii) transfers among the Company, any Related
\nEntity, or any successor, in any capacity of Employee, Director or Consultant,
\nor (iii) any change in status as long as the individual remains in the service
\nof the Company or a Related Entity in any capacity of Employee, Director or
\nConsultant (except as otherwise provided in the Award Agreement). An approved
\nleave of absence shall include sick leave, military leave, or any other
\nauthorized personal leave.<\/p>\n

(q) “Corporate Transaction<\/u>” means any of the following transactions:\n<\/p>\n

(i) a merger or consolidation in which the Company is not the surviving
\nentity, except for a transaction the principal purpose of which is to change the
\nstate in which the Company is incorporated;<\/p>\n

(ii) the sale, transfer or other disposition of all or substantially all of
\nthe assets of the Company;<\/p>\n

(iii) the complete liquidation or dissolution of the Company;<\/p>\n

(iv) any reverse merger or series of related transactions culminating in a
\nreverse merger (including, but not limited to, a tender offer followed by a
\nreverse merger) in which the Company is the surviving entity but in which
\nsecurities possessing more than forty percent (40%) of the total combined voting
\npower of the Company153s outstanding securities are transferred to a person or
\npersons different from those who held such securities immediately prior to such
\nmerger or the initial transaction culminating in such merger but excluding any
\nsuch transaction or series of related transactions that the Administrator
\ndetermines shall not be a Corporate Transaction; or<\/p>\n

(v) acquisition in a single or series of related transactions by any person
\nor related group of persons (other than the Company or by a Company-sponsored
\nemployee benefit plan) of beneficial ownership (within the meaning of Rule 13d-3
\nof the Exchange Act) of securities possessing more than fifty percent (50%) of
\nthe total combined voting power of the Company153s outstanding securities but
\nexcluding any such transaction or series of related transactions that the
\nAdministrator determines shall not be a Corporate Transaction.<\/p>\n

(r) “Covered Employee<\/u>” means an Employee who is a “covered employee”
\nunder Section 162(m)(3) of the Code.<\/p>\n

(s) “Director<\/u>” means a member of the Board or the board of directors
\nof any Related Entity.<\/p>\n

(t) “Disability<\/u>” means as defined under the long-term disability
\npolicy of the Company or the Related Entity to which the Grantee provides
\nservices regardless of whether the Grantee is covered by such policy. If the
\nCompany or the Related Entity to which the Grantee provides service does not
\nhave a long-term disability plan in place, “Disability” means that a Grantee is
\nunable to carry out the responsibilities and functions of the position held by
\nthe Grantee by reason of any medically determinable physical or mental
\nimpairment for a period of<\/p>\n

3<\/p>\n

\n

<\/p>\n

not less than ninety (90) consecutive days. A Grantee will not be considered
\nto have incurred a Disability unless he or she furnishes proof of such
\nimpairment sufficient to satisfy the Administrator in its discretion.<\/p>\n

(u) “Dividend Equivalent Right<\/u>” means a right entitling the Grantee to
\ncompensation measured by dividends paid with respect to Common Stock.<\/p>\n

(v) “Employee<\/u>” means any person, including an Officer or Director, who
\nis in the employ of the Company or any Related Entity, subject to the control
\nand direction of the Company or any Related Entity as to both the work to be
\nperformed and the manner and method of performance. The payment of a director153s
\nfee by the Company or a Related Entity shall not be sufficient to constitute
\n“employment” by the Company.<\/p>\n

(w) “Exchange Act<\/u>” means the Securities Exchange Act of 1934, as
\namended.<\/p>\n

(x) “Fair Market Value<\/u>” means, as of any date, the value of Common
\nStock determined as follows:<\/p>\n

(i) If the Common Stock is listed on any established stock exchange or a
\nnational market system, including without limitation The Nasdaq National Market
\nor The Nasdaq SmallCap Market of The Nasdaq Stock Market, its Fair Market Value
\nshall be the closing sales price for such stock (or the closing bid, if no sales
\nwere reported) as quoted on such exchange or system on the date of determination
\n(or, if no closing sales price or closing bid was reported on that date, as
\napplicable, on the last trading date such closing sales price or closing bid was
\nreported), as reported in The Wall Street Journal or such other source as the
\nAdministrator deems reliable;<\/p>\n

(ii) If the Common Stock is regularly quoted on an automated quotation system
\n(including the OTC Bulletin Board) or by a recognized securities dealer, but
\nselling prices are not reported, the Fair Market Value of a share of Common
\nStock shall be the mean between the high bid and low asked prices for the Common
\nStock on the date of determination (or, if no such prices were reported on that
\ndate, on the last date such prices were reported), as reported in The Wall
\nStreet Journal or such other source as the Administrator deems reliable; or<\/p>\n

(iii) In the absence of an established market for the Common Stock of the
\ntype described in (i) and (ii), above, the Fair Market Value thereof shall be
\ndetermined by the Administrator in good faith.<\/p>\n

(y) “Grantee<\/u>” means an Employee, who receives an Award under the Plan.\n<\/p>\n

(z) “Immediate Family<\/u>” means any child, stepchild, grandchild, parent,
\nstepparent, grandparent, spouse, former spouse, sibling, niece, nephew,
\nmother-in-law, father-in-law, son-in law, daughter-in-law, brother-in-law, or
\nsister-in-law, including adoptive relationships, any person sharing the
\nGrantee153s household (other than a tenant or employee), a trust in which these
\npersons (or the Grantee) have more than fifty percent (50%) of the beneficial
\ninterest, a foundation in which these persons (or the Grantee) control the
\nmanagement of assets,<\/p>\n

4<\/p>\n

\n

<\/p>\n

and any other entity in which these persons (or the Grantee) own more than
\nfifty percent (50%) of the voting interests.<\/p>\n

(aa) “Non-Qualified Stock Option<\/u>” means an Option not intended to
\nqualify as an Incentive Stock Option.<\/p>\n

(bb) “Officer<\/u>” means a person who is an officer of the Company or a
\nRelated Entity within the meaning of Section 16 of the Exchange Act and the
\nrules and regulations promulgated thereunder.<\/p>\n

(cc) “Option<\/u>” means an option to purchase Shares pursuant to an Award
\nAgreement granted under the Plan.<\/p>\n

(dd) “Parent<\/u>” means a “parent corporation”, whether now or hereafter
\nexisting, as defined in Section 424(e) of the Code.<\/p>\n

(ee) “Performance-Based Compensation<\/u>” means compensation qualifying as
\n“performance-based compensation” under Section 162(m) of the Code.<\/p>\n

(ff) “Performance Units<\/u>” means an Award which may be earned in whole
\nor in part based upon attainment of performance criteria established by the
\nAdministrator and which may be settled for cash, Shares or other securities or a
\ncombination of cash, Shares or other securities as established by the
\nAdministrator.<\/p>\n

(gg) “Plan<\/u>” means this 2005 Acquisition Equity Incentive Plan.<\/p>\n

(hh) “Related Entity<\/u>” means any Parent or Subsidiary of the Company
\nand any business, corporation, partnership, limited liability company or other
\nentity in which the Company or a Parent or a Subsidiary of the Company holds a
\nsubstantial ownership interest, directly or indirectly.<\/p>\n

(ii) “Replaced<\/u>” means that pursuant to a Corporate Transaction the
\nAward is replaced with a comparable stock award or a cash incentive program of
\nthe Company, the successor entity (if applicable) or Parent of either of them
\nwhich preserves the compensation element of such Award existing at the time of
\nthe Corporate Transaction and provides for subsequent payout in accordance with
\nthe same (or a more favorable) vesting schedule applicable to such Award. The
\ndetermination of Award comparability shall be made by the Administrator and its
\ndetermination shall be final, binding and conclusive.<\/p>\n

(jj) “Restricted Stock<\/u>” means Shares issued under the Plan to the
\nGrantee for such consideration, if any, and subject to such restrictions on
\ntransfer, rights of first refusal, repurchase provisions, forfeiture provisions,
\nand other terms and conditions as established by the Administrator.<\/p>\n

(kk) “Restricted Stock Unit<\/u>” means an interest in the Company
\nrepresented by a Share, which is subject to such restrictions on transfer,
\nrights of first refusal, repurchase provisions, forfeiture provisions, and other
\nterms and conditions as established by the Administrator.<\/p>\n

5<\/p>\n

\n

<\/p>\n

(ll) “Rule 16b-3<\/u>” means Rule 16b-3 promulgated under the Exchange Act
\nor any successor thereto.<\/p>\n

(mm) “SAR<\/u>” means a stock appreciation right entitling the Grantee to
\nShares, as established by the Administrator, measured by appreciation in the
\nvalue of Common Stock.<\/p>\n

(nn) “Share<\/u>” means a share of the Common Stock.<\/p>\n

(oo) “Subsidiary<\/u>” means a “subsidiary corporation”, whether now or
\nhereafter existing, as defined in Section 424(f) of the Code.<\/p>\n

3. Stock Subject to the Plan<\/u>.<\/p>\n

(a) Subject to the provisions of Section 10 below, the maximum aggregate
\nnumber of Shares which may be issued pursuant to all Awards is 2,800,000(1)
\nShares. The Shares to be issued pursuant to Awards may be authorized, but
\nunissued, or reacquired Common Stock.<\/p>\n

(b) Any Shares covered by an Award (or portion of an Award) which is
\nforfeited, canceled or expires (whether voluntarily or involuntarily) shall be
\ndeemed not to have been issued for purposes of determining the maximum aggregate
\nnumber of Shares which may be issued under the Plan. Shares that actually have
\nbeen issued under the Plan pursuant to an Award shall not be returned to the
\nPlan and shall not become available for future issuance under the Plan, except
\nthat if unvested Shares are forfeited, or repurchased by the Company at the
\nlower of their original purchase price or their Fair Market Value at the time of
\nrepurchase, such Shares shall become available for future grant under the Plan.\n<\/p>\n

4. Administration of the Plan<\/u>.<\/p>\n

(a) Plan Administrator<\/u>.<\/p>\n

(i) Administration with Respect to Directors and Officers<\/u>. With
\nrespect to grants of Awards who are also Officers or Directors of the Company,
\nthe Plan shall be administered by a Committee designated by the Board, which
\nCommittee shall be constituted in such a manner as to satisfy the Applicable
\nLaws and to permit such grants and related transactions under the Plan to be
\nexempt from Section 16(b) of the Exchange Act in accordance with Rule 16b-3.
\nOnce appointed, such Committee shall continue to serve in its designated
\ncapacity until otherwise directed by the Board.<\/p>\n

(ii) Administration With Respect to Consultants and Other Employees<\/u>.
\nWith respect to grants of Awards to Employees who are neither Directors nor
\nOfficers of the Company, the Plan shall be administered by a Committee
\ndesignated by the Board, which Committee shall be constituted in such a manner
\nas to satisfy the Applicable Laws. Once appointed, such Committee shall continue
\nto serve in its designated capacity until otherwise<\/p>\n

\n

(1) 16,000,000 Shares originally authorized for issuance. On October 16,
\n2006, the Company153s Common Stock was subject to an 8:1 reverse split, in
\nconnection with which the number of Shares authorized for issuance was
\nautomatically reduced to 2,000,000 Shares. On May 2, 2010, the Board approved an
\nincrease of 800,000 Shares to the total number of Shares authorized for
\nissuance.<\/p>\n

6<\/p>\n

\n

<\/p>\n

directed by the Board. The Board may authorize one or more Officers to grant
\nsuch Awards and may limit such authority as the Board determines from time to
\ntime.<\/p>\n

(iii) Administration With Respect to Covered Employees<\/u>.
\nNotwithstanding the foregoing, grants of Awards to any Covered Employee intended
\nto qualify as Performance-Based Compensation shall be made only by a Committee
\n(or subcommittee of a Committee) which is comprised solely of two or more
\nDirectors eligible to serve on a committee making Awards qualifying as
\nPerformance-Based Compensation. In the case of such Awards granted to Covered
\nEmployees, references to the “Administrator” or to a “Committee” shall be deemed
\nto be references to such Committee or subcommittee.<\/p>\n

(iv) Administration Errors<\/u>. In the event an Award is granted in a
\nmanner inconsistent with the provisions of this subsection (a), such Award shall
\nbe presumptively valid as of its grant date to the extent permitted by the
\nApplicable Laws.<\/p>\n

(b) Powers of the Administrator<\/u>. Subject to Applicable Laws and the
\nprovisions of the Plan (including any other powers given to the Administrator
\nhereunder), and except as otherwise provided by the Board, the Administrator
\nshall have the authority, in its discretion:<\/p>\n

(i) to select the Employees, to whom Awards may be granted from time to time
\nhereunder;<\/p>\n

(ii) to determine whether and to what extent Awards are granted hereunder;\n<\/p>\n

(iii) to determine the number of Shares or the amount of other consideration
\nto be covered by each Award granted hereunder;<\/p>\n

(iv) to approve forms of Award Agreements for use under the Plan;<\/p>\n

(v) to determine the terms and conditions of any Award granted hereunder;\n<\/p>\n

(vi) to amend the terms of any outstanding Award granted under the Plan,
\nprovided that (A) any amendment that would adversely affect the Grantee153s rights
\nunder an outstanding Award shall not be made without the Grantee153s written
\nconsent, (B) the reduction of the exercise price of any Option awarded under the
\nPlan shall be subject to stockholder approval and (C) canceling an Option at a
\ntime when its exercise price exceeds the Fair Market Value of the underlying
\nShares, in exchange for another Award shall be subject to stockholder approval,
\nunless the cancellation and exchange occurs in connection with a Corporate
\nTransaction;<\/p>\n

(vii) to construe and interpret the terms of the Plan and Awards, including
\nwithout limitation, any notice of award or Award Agreement, granted pursuant to
\nthe Plan;<\/p>\n

(viii) to establish additional terms, conditions, rules or procedures to
\naccommodate the rules or laws of applicable non-U.S. jurisdictions and to afford
\nGrantees<\/p>\n

7<\/p>\n

\n

<\/p>\n

favorable treatment under such rules or laws; provided, however, that no
\nAward shall be granted under any such additional terms, conditions, rules or
\nprocedures with terms or conditions which are inconsistent with the provisions
\nof the Plan; and<\/p>\n

(ix) to take such other action, not inconsistent with the terms of the Plan,
\nas the Administrator deems appropriate.<\/p>\n

(c) Indemnification<\/u>. In addition to such other rights of
\nindemnification as they may have as members of the Board or as Officers or
\nEmployees of the Company or a Related Entity, members of the Board and any
\nOfficers or Employees of the Company or a Related Entity to whom authority to
\nact for the Board, the Administrator or the Company is delegated shall be
\ndefended and indemnified by the Company to the extent permitted by law on an
\nafter-tax basis against all reasonable expenses, including attorneys153 fees,
\nactually and necessarily incurred in connection with the defense of any claim,
\ninvestigation, action, suit or proceeding, or in connection with any appeal
\ntherein, to which they or any of them may be a party by reason of any action
\ntaken or failure to act under or in connection with the Plan, or any Award
\ngranted hereunder, and against all amounts paid by them in settlement thereof
\n(provided such settlement is approved by the Company) or paid by them in
\nsatisfaction of a judgment in any such claim, investigation, action, suit or
\nproceeding, except in relation to matters as to which it shall be adjudged in
\nsuch claim, investigation, action, suit or proceeding that such person is liable
\nfor gross negligence, bad faith or intentional misconduct; provided, however,
\nthat within thirty (30) days after the institution of such claim, investigation,
\naction, suit or proceeding, such person shall offer to the Company, in writing,
\nthe opportunity at the Company153s expense to handle and defend the same.<\/p>\n

5. Eligibility<\/u>. Awards only may be granted to Employees. An Employee
\nwho has been granted an Award may, if otherwise eligible, be granted additional
\nAwards. Awards may be granted to such Employees who are residing in non-U.S.
\njurisdictions as the Administrator may determine from time to time.<\/p>\n

6. Terms and Conditions of Awards<\/u>.<\/p>\n

(a) Type of Awards<\/u>. The Administrator is authorized under the Plan to
\naward any type of arrangement to an Employee that is not inconsistent with the
\nprovisions of the Plan and that by its terms involves or might involve the
\nissuance of (i) Shares, (ii) cash or (iii) an Option or similar right with a
\nfixed or variable price related to the Fair Market Value of the Shares and with
\nan exercise or conversion privilege related to the passage of time, the
\noccurrence of one or more events, or the satisfaction of performance criteria or
\nother conditions. Such awards include, without limitation, Options, Restricted
\nStock, Performance Units and an Award may consist of one such security or
\nbenefit, or two (2) or more of them in any combination or alternative.<\/p>\n

(b) Designation of Award<\/u>. Each Award shall be designated in the Award
\nAgreement. In the case of an Option, the Option shall be designated as a
\nNon-Qualified Stock Option.<\/p>\n

8<\/p>\n

\n

<\/p>\n

(c) Conditions of Award<\/u>. Subject to the terms of the Plan, the
\nAdministrator shall determine the provisions, terms, and conditions of each
\nAward including, but not limited to, the Award vesting schedule, repurchase
\nprovisions, rights of first refusal, forfeiture provisions, form of payment
\n(cash, Shares, or other consideration) upon settlement of the Award, payment
\ncontingencies, and satisfaction of any performance criteria. The performance
\ncriteria established by the Administrator may be based on any one of, or
\ncombination of, the following: (i) increase in share price, (ii) earnings per
\nshare, (iii) total stockholder return, (iv) operating margin, (v) gross margin,
\n(vi) return on equity, (vii) return on assets, (viii) return on investment, (ix)
\noperating income, (x) net operating income, (xi) pre-tax profit, (xii) cash
\nflow, (xiii) revenue, (xiv) expenses, (xv) earnings before interest, taxes and
\ndepreciation, (xvi) economic value added, (xvii) market share, (xviii) personal
\nmanagement objectives, and (xix) other measures of performance selected by the
\nAdministrator. Partial achievement of the specified criteria may result in a
\npayment or vesting corresponding to the degree of achievement as specified in
\nthe Award Agreement.<\/p>\n

(d) Deferral of Award Payment<\/u>. The Administrator may establish one or
\nmore programs under the Plan to permit selected Grantees the opportunity to
\nelect to defer receipt of consideration upon exercise of an Award, satisfaction
\nof performance criteria, or other event that absent the election would entitle
\nthe Grantee to payment or receipt of Shares or other consideration under an
\nAward. The Administrator may establish the election procedures, the timing of
\nsuch elections, the mechanisms for payments of, and accrual of interest or other
\nearnings, if any, on amounts, Shares or other consideration so deferred, and
\nsuch other terms, conditions, rules and procedures that the Administrator deems
\nadvisable for the administration of any such deferral program.<\/p>\n

(e) Separate Programs<\/u>. The Administrator may establish one or more
\nseparate programs under the Plan for the purpose of issuing particular forms of
\nAwards to one or more classes of Grantees on such terms and conditions as
\ndetermined by the Administrator from time to time.<\/p>\n

(f) Individual Limitations on Awards<\/u>. The maximum number of Shares
\nwith respect to which Awards may be granted to any Grantee in any fiscal year of
\nthe Company shall be six hundred twenty-five thousand (625,000) Shares. The
\nforegoing limitation shall be adjusted proportionately in connection with any
\nchange in the Company153s capitalization pursuant to Section 10, below. To the
\nextent required by Section 162(m) of the Code or the regulations thereunder, in
\napplying the foregoing limitation with respect to a Grantee, if any Awards are
\ncanceled, the canceled Awards shall continue to count against the maximum number
\nof Shares with respect to which Awards may be granted to the Grantee. For this
\npurpose, the repricing of an Option (or in the case of a SAR, the base amount on
\nwhich the stock appreciation is calculated is reduced to reflect a reduction in
\nthe Fair Market Value of the Common Stock) shall be treated as the cancellation
\nof the existing Option or SAR and the grant of a new Option or SAR. If the
\nvesting or receipt of Shares under the Award is deferred to a later date, any
\namount (whether denominated in Shares or cash) paid in addition to the original
\nnumber of Shares subject to the Award will not be treated as an increase in the
\nnumber of Shares subject to the Award if the additional amount is based either
\non a reasonable rate of interest or on one or more predetermined actual
\ninvestments such that the amount payable by the Company at the later date<\/p>\n

9<\/p>\n

\n

will be based on the actual rate of return of a specific investment
\n(including any decrease as well as any increase in the value of an investment).\n<\/p>\n

(g) Early Exercise<\/u>. The Award Agreement may, but need not, include a
\nprovision whereby the Grantee may elect at any time while an Employee, Director
\nor Consultant to exercise any part or all of the Award prior to full vesting of
\nthe Award. Any unvested Shares received pursuant to such exercise may be subject
\nto a repurchase right in favor of the Company or a Related Entity or to any
\nother restriction the Administrator determines to be appropriate.<\/p>\n

(h) Term of Award<\/u>. The term of each Award shall be the term stated in
\nthe Award Agreement, provided, however, that the term of an Award shall be no
\nmore than eight (8) years from the date of grant thereof.<\/p>\n

(i) Transferability of Awards<\/u>. Awards shall be transferable by will
\nand by the laws of descent and distribution, and during the lifetime of the
\nGrantee, by gift or pursuant to a domestic relations order to members of the
\nGrantee153s Immediate Family to the extent and in the manner determined by the
\nAdministrator. Notwithstanding the foregoing, the Grantee may designate a
\nbeneficiary of the Grantee153s Award in the event of the Grantee153s death on a
\nbeneficiary designation form provided by the Administrator.<\/p>\n

(j) Time of Granting Awards<\/u>. The date of grant of an Award shall for
\nall purposes be the date on which the Administrator makes the determination to
\ngrant such Award, or such later date as is determined by the Administrator.<\/p>\n

7. Award Exercise or Purchase Price, Consideration and Taxes<\/u>.<\/p>\n

(a) Exercise or Purchase Price<\/u>. The exercise or purchase price, if
\nany, for an Award shall be as follows:<\/p>\n

(i) In the case of a Non-Qualified Stock Option, the per Share exercise price
\nshall be not less than one hundred percent (100%) of the Fair Market Value per
\nShare on the date of grant.<\/p>\n

(ii) In the case of Awards intended to qualify as Performance-Based
\nCompensation, the exercise or purchase price, if any, shall be not less than one
\nhundred percent (100%) of the Fair Market Value per Share on the date of grant.\n<\/p>\n

(iii) In the case of other Awards, such price as is determined by the
\nAdministrator.<\/p>\n

(b) Consideration<\/u>. Subject to Applicable Laws, the consideration to be
\npaid for the Shares to be issued upon exercise or purchase of an Award including
\nthe method of payment, shall be determined by the Administrator. In addition to
\nany other types of consideration the Administrator may determine, the
\nAdministrator is authorized to accept as consideration for Shares issued under
\nthe Plan the following, provided that the portion of the consideration equal to
\nthe par value of the Shares must be paid in cash or other legal consideration
\npermitted by the Delaware General Corporation Law:<\/p>\n

10<\/p>\n

\n

<\/p>\n

(i) cash;<\/p>\n

(ii) check;<\/p>\n

(iii) surrender of Shares or delivery of a properly executed form of
\nattestation of ownership of Shares as the Administrator may require (including
\nwithholding of Shares otherwise deliverable upon exercise of the Award) which
\nhave a Fair Market Value on the date of surrender or attestation equal to the
\naggregate exercise price of the Shares as to which said Award shall be
\nexercised, provided, however, that Shares acquired under the Plan or any other
\nequity compensation plan or agreement of the Company must have been held by the
\nGrantee for a period of more than six (6) months;<\/p>\n

(iv) with respect to Options, payment through a broker-dealer sale and
\nremittance procedure pursuant to which the Grantee (A) shall provide written
\ninstructions to a Company designated brokerage firm to effect the immediate sale
\nof some or all of the purchased Shares and remit to the Company sufficient funds
\nto cover the aggregate exercise price payable for the purchased Shares and (B)
\nshall provide written directives to the Company to deliver the certificates for
\nthe purchased Shares directly to such brokerage firm in order to complete the
\nsale transaction; or<\/p>\n

(v) any combination of the foregoing methods of payment.<\/p>\n

(c) Taxes<\/u>. No Shares shall be delivered under the Plan to any Grantee
\nor other person until such Grantee or other person has made arrangements
\nacceptable to the Administrator for the satisfaction of any non-U.S., federal,
\nstate, or local income and employment tax withholding obligations, including,
\nwithout limitation, obligations incident to the receipt of Shares or the
\ndisqualifying disposition of Shares received on exercise of an Incentive Stock
\nOption. Upon exercise of an Award the Company shall withhold or collect from
\nGrantee an amount sufficient to satisfy such tax obligations.<\/p>\n

8. Exercise of Award<\/u>.<\/p>\n

(a) Procedure for Exercise; Rights as a Stockholder<\/u>.<\/p>\n

(i) Any Award granted hereunder shall be exercisable at such times and under
\nsuch conditions as determined by the Administrator under the terms of the Plan
\nand specified in the Award Agreement.<\/p>\n

(ii) An Award shall be deemed to be exercised when written notice of such
\nexercise has been given to the Company in accordance with the terms of the Award
\nby the person entitled to exercise the Award and full payment for the Shares
\nwith respect to which the Award is exercised, including, to the extent selected,
\nuse of the broker-dealer sale and remittance procedure to pay the purchase price
\nas provided in Section 7(b)(iv).<\/p>\n

11<\/p>\n

\n

<\/p>\n

(b) Exercise of Award Following Termination of Continuous Active
\nService<\/u>.<\/p>\n

(i) An Award may not be exercised after the termination date of such Award
\nset forth in the Award Agreement and may be exercised following the termination
\nof a Grantee153s Continuous Active Service only to the extent provided in the
\nAward Agreement.<\/p>\n

(ii) Where the Award Agreement permits a Grantee to exercise an Award
\nfollowing the termination of the Grantee153s Continuous Active Service for a
\nspecified period, the Award shall terminate to the extent not exercised on the
\nlast day of the specified period or the last day of the original term of the
\nAward, whichever occurs first.<\/p>\n

9. Conditions Upon Issuance of Shares<\/u>.<\/p>\n

(a) Shares shall not be issued pursuant to the exercise of an Award unless
\nthe exercise of such Award and the issuance and delivery of such Shares pursuant
\nthereto shall comply with all Applicable Laws, and shall be further subject to
\nthe approval of counsel for the Company with respect to such compliance.<\/p>\n

(b) As a condition to the exercise of an Award, the Company may require the
\nperson exercising such Award to represent and warrant at the time of any such
\nexercise that the Shares are being purchased only for investment and without any
\npresent intention to sell or distribute such Shares if, in the opinion of
\ncounsel for the Company, such a representation is required by any Applicable
\nLaws.<\/p>\n

10. Adjustments Upon Changes in Capitalization<\/u>. Subject to any
\nrequired action by the stockholders of the Company, the number of Shares covered
\nby each outstanding Award, and the number of Shares which have been authorized
\nfor issuance under the Plan but as to which no Awards have yet been granted or
\nwhich have been returned to the Plan, the exercise or purchase price of each
\nsuch outstanding Award, the maximum number of Shares with respect to which
\nAwards may be granted to any Grantee in any fiscal year of the Company, as well
\nas any other terms that the Administrator determines require adjustment shall be
\nproportionately adjusted for (i) any increase or decrease in the number of
\nissued Shares resulting from a stock split, reverse stock split, stock dividend,
\ncombination or reclassification of the Shares, or similar transaction affecting
\nthe Shares, (ii) any other increase or decrease in the number of issued Shares
\neffected without receipt of consideration by the Company, or (iii) as the
\nAdministrator may determine in its discretion, any other transaction with
\nrespect to Common Stock including a corporate merger, consolidation, acquisition
\nof property or stock, separation (including a spin-off or other distribution of
\nstock or property), reorganization, liquidation (whether partial or complete) or
\nany similar transaction; provided, however that conversion of any convertible
\nsecurities of the Company shall not be deemed to have been “effected without
\nreceipt of consideration.” Such adjustment shall be made by the Administrator
\nand the Administrator153s determination shall be final, binding and conclusive.
\nExcept as the Administrator determines, no issuance by the Company of shares of
\nstock of any class, or securities convertible into shares of stock of any class,
\nshall affect, and no adjustment by reason hereof shall be made with respect to,
\nthe number or price of Shares subject to an Award.<\/p>\n

12<\/p>\n

\n

<\/p>\n

11. Corporate Transactions<\/u>.<\/p>\n

(a) Termination of Award to Extent Not Assumed in Corporate
\nTransaction<\/u>. Effective upon the consummation of a Corporate Transaction, all
\noutstanding Awards under the Plan shall terminate. However, all such Awards
\nshall not terminate to the extent they are Assumed in connection with the
\nCorporate Transaction.<\/p>\n

(b) Acceleration of Award Upon Corporate Transaction<\/u>. Except as
\nprovided otherwise in an individual Award Agreement, in the event of a Corporate
\nTransaction, for the portion of each Award that is neither Assumed nor Replaced,
\nsuch portion of the Award shall automatically become fully vested and
\nexercisable and be released from any repurchase or forfeiture rights (other than
\nrepurchase rights exercisable at fair market value) for all of the Shares at the
\ntime represented by such portion of the Award, immediately prior to the
\nspecified effective date of such Corporate Transaction.<\/p>\n

12. Effective Date and Term of Plan<\/u>. The Plan shall become effective
\nupon its adoption by the Board. It shall continue in effect for a term of ten
\n(10) years unless sooner terminated. Subject to Applicable Laws, Awards may be
\ngranted under the Plan upon its becoming effective.<\/p>\n

13. Amendment, Suspension or Termination of the Plan<\/u>.<\/p>\n

(a) The Board may at any time amend, suspend or terminate the Plan; provided,
\nhowever, that no such amendment shall be made without the approval of the
\nCompany153s stockholders to the extent such approval is required by Applicable
\nLaws, or if such amendment would change any of the provisions of Section
\n4(b)(vi) or this Section 13(a).<\/p>\n

(b) No Award may be granted during any suspension of the Plan or after
\ntermination of the Plan.<\/p>\n

(c) No suspension or termination of the Plan (including termination of the
\nPlan under Section 12, above) shall adversely affect any rights under Awards
\nalready granted to a Grantee.<\/p>\n

14. Reservation of Shares<\/u>.<\/p>\n

(a) The Company, during the term of the Plan, will at all times reserve and
\nkeep available such number of Shares as shall be sufficient to satisfy the
\nrequirements of the Plan.<\/p>\n

(b) The inability of the Company to obtain authority from any regulatory body
\nhaving jurisdiction, which authority is deemed by the Company153s counsel to be
\nnecessary to the lawful issuance and sale of any Shares hereunder, shall relieve
\nthe Company of any liability in respect of the failure to issue or sell such
\nShares as to which such requisite authority shall not have been obtained.<\/p>\n

15. No Effect on Terms of Employment\/Consulting Relationship<\/u>. The Plan
\nshall not confer upon any Grantee any right with respect to the Grantee153s
\nContinuous Active Service, nor<\/p>\n

13<\/p>\n

\n

<\/p>\n

shall it interfere in any way with his or her right or the right of the
\nCompany or any Related Entity to terminate the Grantee153s Continuous Active
\nService at any time, with or without Cause, and with or without notice. The
\nability of the Company or any Related Entity to terminate the employment of a
\nGrantee who is employed at will is in no way affected by its determination that
\nthe Grantee153s Continuous Active Service has been terminated for Cause for the
\npurposes of this Plan.<\/p>\n

16. No Effect on Retirement and Other Benefit Plans<\/u>. Except as
\nspecifically provided in a retirement or other benefit plan of the Company or a
\nRelated Entity, Awards shall not be deemed compensation for purposes of
\ncomputing benefits or contributions under any retirement plan of the Company or
\na Related Entity, and shall not affect any benefits under any other benefit plan
\nof any kind or any benefit plan subsequently instituted under which the
\navailability or amount of benefits is related to level of compensation. The Plan
\nis not a “Retirement Plan” or “Welfare Plan” under the Employee Retirement
\nIncome Security Act of 1974, as amended.<\/p>\n

17. Unfunded Obligation<\/u>. Grantees shall have the status of general
\nunsecured creditors of the Company. Any amounts payable to Grantees pursuant to
\nthe Plan shall be unfunded and unsecured obligations for all purposes,
\nincluding, without limitation, Title I of the Employee Retirement Income
\nSecurity Act of 1974, as amended. Neither the Company nor any Related Entity
\nshall be required to segregate any monies from its general funds, or to create
\nany trusts, or establish any special accounts with respect to such obligations.
\nThe Company shall retain at all times beneficial ownership of any investments,
\nincluding trust investments, which the Company may make to fulfill its payment
\nobligations hereunder. Any investments or the creation or maintenance of any
\ntrust or any Grantee account shall not create or constitute a trust or fiduciary
\nrelationship between the Administrator, the Company or any Related Entity and a
\nGrantee, or otherwise create any vested or beneficial interest in any Grantee or
\nthe Grantee153s creditors in any assets of the Company or a Related Entity. The
\nGrantees shall have no claim against the Company or any Related Entity for any
\nchanges in the value of any assets that may be invested or reinvested by the
\nCompany with respect to the Plan.<\/p>\n

14<\/p>\n

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