Exhibit 10.27
INPHONIC, INC.
AMENDED AND RESTATED STOCK INCENTIVE PLAN
1. Establishment, Purpose and Types of Awards
InPhonic, Inc., a Delaware corporation (the "Company"), hereby
establishes the INPHONIC, INC. AMENDED AND RESTATED STOCK INCENTIVE PLAN (the
"Plan"). The purpose of the Plan is to promote the long-term growth and
profitability of the Company by (i) providing key people with incentives to
improve stockholder value and to contribute to the growth and financial success
of the Company through their future services, and (ii) enabling the Company to
attract, retain and reward the best-available persons. This Plan is a
continuation, and amendment and restatement, of the Company's 1999 Stock
Incentive Plan, the provisions of which shall continue to control with respect
to any options or stock awards outstanding thereunder to the extent necessary to
avoid establishment of a new measurement date for financial accounting purposes
and to preserve the status of any options that are intended to qualify as
"incentive stock options" within the meaning of Section 422 of the Internal
Revenue Code.
The Plan permits the granting of stock options (including incentive
stock options qualifying under Code section 422 and nonstatutory stock options),
stock appreciation rights, restricted or unrestricted stock awards, phantom
stock, performance awards, other stock-based awards, or any combination of the
foregoing.
2. Definitions
Under this Plan, except where the context otherwise indicates, the
following definitions apply:
(a) "Administrator" means the Board or the committee(s) or
officer(s) appointed by the Board that have authority to administer the Plan as
provided in Section 3 hereof.
(b) "Affiliate" means any entity, whether now or hereafter
existing, which controls, is controlled by, or is under common control with, the
Company (including, but not limited to, joint ventures, limited liability
companies, and partnerships). For this purpose, "control" means ownership of 50%
or more of the total combined voting power or value of all classes of stock or
interests of the entity.
(c) "Award" means any stock option, stock appreciation right,
stock award, phantom stock award, performance award, or other stock-based award.
(d) "Board" means the Board of Directors of the Company.
(e) "Code" means the Internal Revenue Code of 1986, as amended,
and any regulations promulgated thereunder.
(f) "Common Stock" means shares of common stock of the Company,
par value of $0.01 per share.
(g) "Fair Market Value" means, with respect to a share of the
Company's Common Stock for any purpose on a particular date, the value
determined by the Administrator in good faith. However, if the Common Stock is
registered under Section 12(b) or 12(g) of the Securities Exchange Act of 1934,
as amended, and listed for trading on a national exchange or market, "Fair
Market Value" means, as applicable, (i) either the closing price or the average
of the high and low sale price on the relevant date, as determined in the
Administrator's discretion, quoted on the New York Stock Exchange, the American
Stock Exchange, or the Nasdaq National Market; (ii) the last sale price on the
relevant date quoted on the Nasdaq SmallCap Market; (iii) the average of the
high bid and low asked prices on the relevant date quoted on the Nasdaq OTC
Bulletin Board Service or by the National Quotation Bureau, Inc. or a comparable
service as determined in the Administrator's discretion; or
(iv) if the Common Stock is not quoted by any of the above, the average of the
closing bid and asked prices on the relevant date furnished by a professional
market maker for the Common Stock, or by such other source, selected by the
Administrator. If no public trading of the Common Stock occurs on the relevant
date but the shares are so listed, then Fair Market Value shall be determined as
of the next preceding date on which trading of the Common Stock does occur. For
all purposes under this Plan, the term "relevant date" as used in this Section
2.1(g) shall mean either the date as of which Fair Market Value is to be
determined or the next preceding date on which public trading of the Common
Stock occurs, as determined in the Administrator's discretion.
(h) "Grant Agreement" means a written document memorializing the
terms and conditions of an Award granted pursuant to the Plan and shall
incorporate the terms of the Plan.
3. Administration
(a) Administration of the Plan. The Plan shall be administered by
the Board or by such committee or committees as may be appointed by the Board
from time to time. To the extent allowed by applicable state law, the Board by
resolution may authorize an officer or officers to grant Awards (other than
Stock Awards) to other officers and employees of the Company and its Affiliates,
and, to the extent of such authorization, such officer or officers shall be the
Administrator.
(b) Powers of the Administrator. The Administrator shall have all
the powers vested in it by the terms of the Plan, such powers to include
authority, in its sole and absolute discretion, to grant Awards under the Plan,
prescribe Grant Agreements evidencing such Awards and establish programs for
granting Awards.
The Administrator shall have full power and authority to take all other
actions necessary to carry out the purpose and intent of the Plan, including,
but not limited to, the authority to: (i) determine the eligible persons to
whom, and the time or times at which Awards shall be granted; (ii) determine the
types of Awards to be granted; (iii) determine the number of shares to be
covered by or used for reference purposes for each Award; (iv) impose such
terms, limitations, restrictions and conditions upon any such Award as the
Administrator shall deem appropriate; (v) modify, amend, extend or renew
outstanding Awards, or accept the surrender of outstanding Awards and substitute
new Awards (provided however, that, except as provided in Section 7(d) of the
Plan, any modification that would materially adversely affect any outstanding
Award shall not be made without the consent of the holder); (vi) accelerate or
otherwise change the time in which an Award may be exercised or becomes payable
and to waive or accelerate the lapse, in whole or in part, of any restriction or
condition with respect to such Award, including, but not limited to, any
restriction or condition with respect to the vesting or exercisability of an
Award following termination of any grantee's employment or other relationship
with the Company; (vii) establish objectives and conditions, if any, for earning
Awards and determining whether Awards will be paid after the end of a
performance period; and (viii) for any purpose, including but not limited to,
qualifying for preferred tax treatment under foreign tax laws or otherwise
complying with the regulatory requirements of local or foreign jurisdictions, to
establish, amend, modify, administer or terminate sub-plans, and prescribe,
amend and rescind rules and regulations relating to such sub-plans.
The Administrator shall have full power and authority, in its sole and
absolute discretion, to administer and interpret the Plan and to adopt and
interpret such rules, regulations, agreements, guidelines and instruments for
the administration of the Plan and for the conduct of its business as the
Administrator deems necessary or advisable.
(c) Non-Uniform Determinations. The Administrator's determinations
under the Plan (including without limitation, determinations of the persons to
receive Awards, the form, amount and timing of such Awards, the terms and
provisions of such Awards and the Grant Agreements evidencing such Awards) need
not
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be uniform and may be made by the Administrator selectively among persons who
receive, or are eligible to receive, Awards under the Plan, whether or not such
persons are similarly situated.
(d) Limited Liability. To the maximum extent permitted by law,
no member of the Administrator shall be liable for any action taken or decision
made in good faith relating to the Plan or any Award thereunder.
(e) Indemnification. To the maximum extent permitted by law and by
the Company's charter and by-laws, the members of the Administrator shall be
indemnified by the Company in respect of all their activities under the Plan.
(f) Effect of Administrator's Decision. All actions taken and
decisions and determinations made by the Administrator on all matters relating
to the Plan pursuant to the powers vested in it hereunder shall be in the
Administrator's sole and absolute discretion and shall be conclusive and binding
on all parties concerned, including the Company, its stockholders, any
participants in the Plan and any other employee, consultant, or director of the
Company, and their respective successors in interest.
4. Shares Available for the Plan
Subject to adjustments as provided in Section 7(d) of the Plan, the
number of shares of Common Stock available for Awards to be granted under the
Plan at any given point in time shall equal (i) fifteen percent (15%) of the
number of shares of Common Stock issued and outstanding (as that number is
determined by the Company to calculate fully diluted earnings per share) at that
time, reduced by (ii) the number of shares of Common Stock then subject to any
outstanding Award under the Plan; provided, however, that no more than an
aggregate of [__________] shares of Common Stock may be issued pursuant to
incentive stock options intended to qualify under Code section 422. The Company
shall at all times during the term of the Plan and while any Awards are
outstanding retain as authorized and unissued Common Stock, or as treasury
Common Stock, at least the number of shares of Common Stock required to fulfill
the Company's obligations under such Awards, or otherwise assure itself of its
ability to perform its obligations thereunder.
5. Participation
Participation in the Plan shall be open to all employees, officers, and
directors of, and other individuals providing bona fide services to or for, the
Company, or of any Affiliate of the Company, as may be selected by the
Administrator from time to time. The Administrator may also grant Awards to
individuals in connection with hiring, retention or otherwise, prior to the date
the individual first performs services for the Company or an Affiliate provided
that such Awards shall not become vested or exercisable prior to the date the
individual first commences performance of such services.
6. Awards
The Administrator, in its sole discretion, establishes the terms of all
Awards granted under the Plan. Awards may be granted individually or in tandem
with other types of Awards. All Awards are subject to the terms and conditions
provided in the Grant Agreement. The Administrator may permit or require a
recipient of an Award to defer such individual's receipt of the payment of cash
or the delivery of Common Stock that would otherwise be due to such individual
by virtue of the exercise of, payment of, or lapse or waiver of restrictions
respecting, any Award. If any such payment deferral is required or permitted,
the Administrator shall, in its sole discretion, establish rules and procedures
for such payment deferrals.
(a) Stock Options. The Administrator may from time to time
grant to eligible participants Awards of incentive stock options as that term is
defined in Code section 422 or nonstatutory stock options; provided, however,
that Awards of incentive stock options shall be limited to employees of the
Company or of any current
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or hereafter existing "parent corporation" or "subsidiary corporation," as
defined in Code sections 424(e) and (f), respectively, of the Company. Options
intended to qualify as incentive stock options under Code section 422 must have
an exercise price at least equal to Fair Market Value as of the date of grant,
but nonstatutory stock options may be granted with an exercise price less than
Fair Market Value. No stock option shall be an incentive stock option unless so
designated by the Administrator at the time of grant or in the Grant Agreement
evidencing such stock option.
(b) Stock Appreciation Rights. The Administrator may from time to
time grant to eligible participants Awards of Stock Appreciation Rights ("SAR").
An SAR entitles the grantee to receive, subject to the provisions of the Plan
and the Grant Agreement, a payment having an aggregate value equal to the
product of (i) the excess of (A) the Fair Market Value on the exercise date of
one share of Common Stock over (B) the base price per share specified in the
Grant Agreement, times (ii) the number of shares specified by the SAR, or
portion thereof, which is exercised. Payment by the Company of the amount
receivable upon any exercise of an SAR may be made by the delivery of Common
Stock or cash, or any combination of Common Stock and cash, as determined in the
sole discretion of the Administrator. If upon settlement of the exercise of an
SAR a grantee is to receive a portion of such payment in shares of Common Stock,
the number of shares shall be determined by dividing such portion by the Fair
Market Value of a share of Common Stock on the exercise date. No fractional
shares shall be used for such payment and the Administrator shall determine
whether cash shall be given in lieu of such fractional shares or whether such
fractional shares shall be eliminated.
(c) Stock Awards. The Administrator may from time to time grant
restricted or unrestricted stock Awards to eligible participants in such
amounts, on such terms and conditions, and for such consideration, including no
consideration or such minimum consideration as may be required by law, as it
shall determine. A stock Award may be paid in Common Stock, in cash, or in a
combination of Common Stock and cash, as determined in the sole discretion of
the Administrator.
(d) Phantom Stock. The Administrator may from time to time grant
Awards to eligible participants denominated in stock-equivalent units ("phantom
stock") in such amounts and on such terms and conditions as it shall determine.
Phantom stock units granted to a participant shall be credited to a bookkeeping
reserve account solely for accounting purposes and shall not require a
segregation of any of the Company's assets. An Award of phantom stock may be
settled in Common Stock, in cash, or in a combination of Common Stock and cash,
as determined in the sole discretion of the Administrator. Except as otherwise
provided in the applicable Grant Agreement, the grantee shall not have the
rights of a stockholder with respect to any shares of Common Stock represented
by a phantom stock unit solely as a result of the grant of a phantom stock unit
to the grantee.
(e) Performance Awards. The Administrator may, in its discretion,
grant performance awards which become payable on account of attainment of one or
more performance goals established by the Administrator. Performance awards may
be paid by the delivery of Common Stock or cash, or any combination of Common
Stock and cash, as determined in the sole discretion of the Administrator.
Performance goals established by the Administrator may be based on the Company's
or an Affiliate's operating income or one or more other business criteria
selected by the Administrator that apply to an individual or group of
individuals, a business unit, or the Company or an Affiliate as a whole, over
such performance period as the Administrator may designate.
(f) Other Stock-Based Awards. The Administrator may from time to
time grant other stock-based awards to eligible participants in such amounts, on
such terms and conditions, and for such consideration, including no
consideration or such minimum consideration as may be required by law, as it
shall determine. Other stock-based awards may be denominated in cash, in Common
Stock or other securities, in stock-equivalent units, in stock appreciation
units, in securities or debentures convertible into Common Stock, or in any
combination of the foregoing and may be paid in Common Stock or other
securities, in cash, or in a
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combination of Common Stock or other securities and cash, all as determined
in the sole discretion of the Administrator.
7. Miscellaneous
(a) Withholding of Taxes. Grantees and holders of Awards shall pay
to the Company or its Affiliate, or make provision satisfactory to the
Administrator for payment of, any taxes required to be withheld in respect of
Awards under the Plan no later than the date of the event creating the tax
liability. The Company or its Affiliate may, to the extent permitted by law,
deduct any such tax obligations from any payment of any kind otherwise due to
the grantee or holder of an Award. In the event that payment to the Company or
its Affiliate of such tax obligations is made in shares of Common Stock, such
shares shall be valued at Fair Market Value on the applicable date for such
purposes and shall not exceed in amount the minimum statutory tax withholding
obligation.
(b) Loans. The Company or its Affiliate may make or guarantee
loans to grantees to assist grantees in exercising Awards and satisfying any
withholding tax obligations.
(c) Transferability. Except as otherwise determined by the
Administrator, and in any event in the case of an incentive stock option or a
stock appreciation right granted with respect to an incentive stock option, no
Award granted under the Plan shall be transferable by a grantee otherwise than
by will or the laws of descent and distribution. Unless otherwise determined by
the Administrator in accord with the provisions of the immediately preceding
sentence, an Award may be exercised during the lifetime of the grantee, only by
the grantee or, during the period the grantee is under a legal disability, by
the grantee's guardian or legal representative.
(d) Adjustments; Business Combinations.
(i) Upon a stock dividend of, or stock split or reverse
stock split affecting, the Common Stock, (A) the maximum number of shares
reserved for issuance or with respect to which Awards may be granted under the
Plan, as provided in Section 4 of the Plan, and (B) the number of shares covered
by and the exercise price and other terms of outstanding Awards, shall, without
further action of the Board, be adjusted to reflect such event unless the Board
determines, at the time it approves such stock dividend, stock split or reverse
stock split, that no such adjustment shall be made. The Administrator may make
adjustments, in its discretion, to address the treatment of fractional shares
and fractional cents that arise with respect to outstanding Awards as a result
of the stock dividend, stock split or reverse stock split.
(ii) In the event of any other changes affecting the
Company, the capitalization of the Company or the Common Stock of the Company by
reason of any spin-off, split-up, dividend, recapitalization, merger,
consolidation, business combination or exchange of shares and the like, the
Administrator, in its discretion and without the consent of holders of Awards,
shall make: (A) appropriate adjustments to the maximum number and kind of shares
reserved for issuance or with respect to which Awards may be granted under the
Plan, as provided in Section 4 of the Plan, and to the number, kind and price of
shares covered by outstanding Awards; and (B) any other adjustments in
outstanding Awards, including but not limited to reducing the number of shares
subject to Awards or providing or mandating alternative settlement methods such
as settlement of the Awards in cash or in shares of Common Stock or other
securities of the Company or of any other entity, or in any other matters which
relate to Awards as the Administrator shall, in its sole discretion, determine
to be necessary or appropriate.
(iii) The Administrator is authorized to make, in its
discretion and without the consent of holders of Awards, adjustments in the
terms and conditions of, and the criteria included in, Awards in recognition of
unusual or nonrecurring events affecting the Company, or the financial
statements of the
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Company or any Affiliate, or of changes in applicable laws, regulations, or
accounting principles, whenever the Administrator determines that such
adjustments are appropriate in order to prevent dilution or enlargement of the
benefits or potential benefits intended to be made available under the Plan and
outstanding Awards.
(e) Substitution of Awards in Mergers and Acquisitions. Awards may
be granted under the Plan from time to time in substitution for awards held by
employees, officers, consultants or directors of entities who become or are
about to become employees, officers, consultants or directors of the Company or
an Affiliate as the result of a merger or consolidation of the employing entity
with the Company or an Affiliate, or the acquisition by the Company or an
Affiliate of the assets or stock of the employing entity. The terms and
conditions of any substitute Awards so granted may vary from the terms and
conditions set forth herein to the extent that the Administrator deems
appropriate at the time of grant to conform the substitute Awards to the
provisions of the awards for which they are substituted.
(f) Termination, Amendment and Modification of the Plan. The Board
may terminate, amend or modify the Plan or any portion thereof at any time.
(g) Non-Guarantee of Employment or Service. Nothing in the Plan or
in any Grant Agreement thereunder shall confer any right on an individual to
continue in the service of the Company or shall interfere in any way with the
right of the Company to terminate such service at any time with or without cause
or notice and whether or not such termination results in (i) the failure of any
Award to vest; (ii) the forfeiture of any unvested or vested portion of any
Award; and/or (iii) any other adverse effect on the individual's interests under
the Plan.
(h) Compliance with Securities Laws; Listing and Registration. If
at any time the Administrator determines that the delivery of Common Stock under
the Plan is or may be unlawful under the laws of any applicable jurisdiction, or
federal, state or foreign securities laws, the right to exercise an Award or
receive shares of Common Stock pursuant to an Award shall be suspended until the
Administrator determines that such delivery is lawful. The Company shall have no
obligation to effect any registration or qualification of the Common Stock under
federal, state or foreign laws.
The Company may require that a grantee, as a condition to exercise of
an Award, and as a condition to the delivery of any share certificate, make such
written representations (including representations to the effect that such
person will not dispose of the Common Stock so acquired in violation of federal,
state or foreign securities laws) and furnish such information as may, in the
opinion of counsel for the Company, be appropriate to permit the Company to
issue the Common Stock in compliance with applicable federal, state or foreign
securities laws. The stock certificates for any shares of Common Stock issued
pursuant to this Plan may bear a legend restricting transferability of the
shares of Common Stock unless such shares are registered or an exemption from
registration is available under the Securities Act of 1933, as amended, and
applicable state or foreign securities laws.
(i) No Trust or Fund Created. Neither the Plan nor any Award shall
create or be construed to create a trust or separate fund of any kind or a
fiduciary relationship between the Company and a grantee or any other person. To
the extent that any grantee or other person acquires a right to receive payments
from the Company pursuant to an Award, such right shall be no greater than the
right of any unsecured general creditor of the Company.
(j) Governing Law. The validity, construction and effect of the
Plan, of Grant Agreements entered into pursuant to the Plan, and of any rules,
regulations, determinations or decisions made by the Administrator relating to
the Plan or such Grant Agreements, and the rights of any and all persons having
or claiming to have any interest therein or thereunder, shall be determined
exclusively in accordance with applicable federal laws and the laws of the State
of Maryland, without regard to its conflict of laws principles.
Amended and Restated Stock Incentive Plan
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(k) Effective Date; Termination Date. The Plan initially became
effective December 20, 1999. The Plan, as amended and restated herein, shall
become effective as of the date on which it is adopted by the Board, subject to
approval of the stockholders within twelve months before or after such date. No
Award shall be granted under the Plan after the close of business on the day
immediately preceding the tenth anniversary of the effective date of the Plan,
as amended and restated, or if earlier, the tenth anniversary of the date this
Plan, as amended and restated, is approved by the stockholders. Subject to other
applicable provisions of the Plan, all Awards made under the Plan prior to such
termination of the Plan shall remain in effect until such Awards have been
satisfied or terminated in accordance with the Plan and the terms of such
Awards.
Amended and Restated Stock Incentive Plan
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APPENDIX A
PROVISIONS FOR CALIFORNIA RESIDENTS
With respect to Awards granted to California residents prior to a
public offering of capital stock of the Company that is effected pursuant to a
registration statement filed with, and declared effective by, the Securities and
Exchange Commission under the Securities Act of 1933, as amended, and only to
the extent required by applicable law, the following provisions shall apply
notwithstanding anything in the Plan or a Grant Agreement to the contrary:
1. Stock appreciation rights Awards under to Section 6(b) of the Plan or
phantom stock Awards under Section 6(d) of the Plan, which may be settled in
shares of Company stock, shall not be issued to California residents.
2. With respect to any Award granted in the form of a stock option
pursuant to Section 6(a) of the Plan:
(a) The Award shall provide an exercise price which is not less
than 85% of the Fair Market Value of the underlying security at the
time the option is granted, except that the price shall be not less
than 110% of the Fair Market Value in the case of any person who owns
securities possessing more than 10% of the total combined voting power
(as defined in Section 194.5 of the California Corporations Code) of
all classes of securities of the issuer or its parent or subsidiaries
possessing voting power.
(b) The exercise period shall be no more than 120 months from the
date the option is granted.
(c) The options shall be non-transferable other than by will, by
the laws of descent and distribution, or, if and to the extent
permitted under the Grant Agreement, as permitted by Rule 701 of the
Securities Act of 1933, as amended (17 C.F.R. 230.701).
(d) The Award recipient shall have the right to exercise at the
rate of at least 20% per year over 5 years from the date the option is
granted, subject to reasonable conditions such as continued employment.
However, in the case of an option granted to officers, directors,
managers or consultants of the Company or the issuer of the underlying
security or any of its affiliates, the option may become fully
exercisable, subject to reasonable conditions such as continued
employment, at any time or during any period established by the issuer
of the option or the issuer of the underlying security or any of its
affiliates.
(e) Unless employment is terminated for "cause" as defined by
applicable law, the terms of the Plan or Grant Agreement, or a contract
of employment, the right to exercise the option in the event of
termination of employment, to the extent that the Award recipient is
entitled to exercise on the date employment terminates, will be as
follows:
(1) At least 6 months from the date of termination if
termination was caused by death or disability.
(2) At least 30 days from the date of termination if
termination was caused by other than death or disability.
3. With respect to an Award, granted pursuant to Section 6(c) of the Plan,
that provides the Award recipient the right to purchase stock:
(a) The Award shall provide a purchase price which is not less
than 85% of the Fair Market Value of the security at the time the Award
recipient is granted the right to purchase securities under the Grant
Amended and Restated Stock Incentive Plan
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Agreement, or at the time the purchase is consummated; or, not less
than 100% of the Fair Market Value of the security either at the time
the Award recipient is granted the right to purchase securities under
the Grant Agreement, or at the time the purchase is consummated, in the
case of any person who owns securities possessing more than 10% of the
total combined voting power (as defined in Section 194.5 of the
California Corporations Code) of all classes of securities of the
issuer or its parent or subsidiaries possessing voting power.
(b) The Award shall be non-transferable other than by will, by the laws
of descent and distribution, or, if and to the extent permitted under
the Grant Agreement, as permitted by Rule 701 of the Securities Act of
1933, as amended (17 C.F.R. 230.701).
4. The Plan shall have a termination date of not more than 10 years from
the date the Plan is adopted by the Board or the date the Plan is approved by
the security holders, whichever is earlier.
5. Security holders representing a majority of the Company's outstanding
securities entitled to vote must approve the Plan within 12 months before or
after the date the Plan is adopted. Any option exercised or any securities
purchased before security holder approval is obtained must be rescinded if
security holder approval is not obtained within 12 months before or after the
Plan is adopted. Such securities shall not be counted in determining whether
such approval is obtained.
6. At the discretion of the Administrator, the Company may reserve to
itself and/or its assignee(s) in the Grant Agreement or any applicable stock
restriction agreement a right to repurchase securities held by an Award
recipient upon such Award recipient's termination of employment at any time
within 90 days after such Award recipient's termination date (or in the case of
securities issued upon exercise of an option after the termination date, within
90 days after the date of such exercise) for cash or cancellation of purchase
money indebtedness, at:
(A) no less than the Fair Market Value of such securities as of the
date of the Award recipient's termination of employment, provided, that
such right to repurchase securities terminates when the Company's
securities have become publicly traded; or
(B) the Award recipient's original purchase price, provided, that such
right to repurchase securities at the original purchase price lapses at
the rate of at least 20% of the securities per year over 5 years from
the date the option is granted (without respect to the date the option
was exercised or became exercisable).
The securities held by an officer, director, manager or consultant of
the Company or an affiliate may be subject to additional or greater
restrictions.
7. The Company will provide financial statements to each Award recipient
annually during the period such individual has Awards outstanding, or as
otherwise required under Section 260.140.46 of Title 10 of the California Code
of Regulations. Notwithstanding the foregoing, the Company will not be required
to provide such financial statements to Award recipients when issuance is
limited to key employees whose services in connection with the Company assure
them access to equivalent information.
8. The Company will comply with Section 260.140.1 of Title 10 of the
California Code of Regulations with respect to the voting rights of Common Stock
and similar equity securities.
9. The Plan is intended to comply with Section 25102(o) of the California
Corporations Code. Any provision of this Plan which is inconsistent with Section
25102(o), including without limitation any provision of this Plan that is more
restrictive than would be permitted by Section 25102(o) as amended from time to
time,
Amended and Restated Stock Incentive Plan
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shall, without further act or amendment by the Board, be reformed to comply with
the provisions of Section 25102(o). If at any time the Administrator determines
that the delivery of Common Stock under the Plan is or may be unlawful under the
laws of any applicable jurisdiction, or federal or state securities laws, the
right to exercise an Award or receive shares of Common Stock pursuant to an
Award shall be suspended until the Administrator determines that such delivery
is lawful. The Company shall have no obligation to effect any registration or
qualification of the Common Stock under federal or state laws.
Amended and Restated Stock Incentive Plan
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PLAN APPROVAL
Date Approved by the Sole Director: December 20, 1999
Date Approved by the Sole Stockholder: December 20, 1999
Amendments to increase shares approved on October 13, 2000, February 16, 2001,
June 20, 2001, July 25, 2001, October 23, 2001, December 19, 2001, May 2, 2002
Date Plan, as Amended and Restated, Approved by Board: ________________
Date Plan, as Amended and Restated, Approved by Stockholders: _______________
Amended and Restated Stock Incentive Plan