WHEREAS, to carry out the purposes of the Companys Second Amended and Restated 2004
Non-employee Director Incentive Plan (the Plan), the Company desires to afford Non-employee
Director the opportunity to purchase shares of the common stock of the Company (Stock).
NOW THEREFORE, in consideration of the mutual agreements and other matters set forth herein
and in the Plan, the Company and Non-employee Director hereby agree as follows:
1. Grant of Option. The Company hereby grants to Non-employee Director the right and
option (Option) to purchase all or any part of an aggregate of shares of Stock, on the
terms and conditions set forth herein and in the Plan, which Plan is incorporated herein by
2. Purchase Price. The purchase price of Stock purchased pursuant to the exercise of
this Option shall be Dollars and Cents ($___) per share, which has been
determined to be the Fair Market Value of the Stock. For all purposes of this Agreement, Fair
Market Value of Stock shall be determined in accordance with the provisions of the Plan.
3. Vesting of Option. The Option granted hereunder shall vest as follows:
||the option to purchase shares of Stock is vested and exercisable as of
||the option to purchase shares of Stock is vested and exercisable as
of ___, 200___;
||the option to purchase shares of Stock is vested and exercisable as
of ___, 200___.
Subject to the earlier expiration of this Option as herein provided, this Option may be
exercised by written notice to the Company at is principal executive office addressed to the
attention of its chief executive officer. This Option must be exercised on or before
___, 201___or it will expire worthless.
The shares of Stock that are the subject of the Option are shares of Stock as presently
constituted, but if, and whenever, prior to the expiration of an Option theretofore granted, the
Company shall effect a subdivision or consolidation of shares of Stock or the payment of a stock
dividend on Stock without receipt of consideration by the Company, the number of shares of Stock
with respect to which such Option may thereafter be exercised (a) in the event of an increase in
the number of outstanding shares of Stock shall be proportionately increased, and the purchase
price per share shall be proportionately reduced, and (b) in the event of a reduction in the number
of outstanding shares of Stock shall be proportionately reduced, and the purchase price per share
shall be proportionately increased.
If the Company recapitalizes and/or reclassifies its capital stock (a recapitalization), the
number and class of shares of Stock covered by an Option theretofore granted shall be adjusted as
provided in the Plan.
4. Transferability: This Option is not transferable or assignable other than by will
or the laws of descent and distribution or pursuant to a qualified domestic relations order (as
defined by Section 414(p) of the Code).
No transfer by will, trust, or by the laws of descent and distribution shall be effective to
bind the Company unless the Compensation Committee of the board of directors of the Company or
other such committee as the Board shall appoint to administer the Plan as permitted by the Plan
(collectively herein the Committee) has been furnished with a copy of the deceased Non-employee
Directors enforceable will, trust or such other evidence as the Committee deems necessary to
establish the validity of the transfer. Any attempted transfer in violation of this provision shall
be void and ineffective.
5. Exercise of Option. The purchase price upon exercise of any Option shall be
payable to the Company in full either: (a) in cash or its equivalent, or (b) subject to prior
approval by the Committee in its discretion, by tendering previously acquired shares of Stock
having an aggregate Fair Market Value at the time of exercise equal to the total purchase price
(provided that the shares of Stock tendered have been held by Non-employee Director for at least
six (6) months prior to their tender to satisfy the option price), or (c) subject to prior approval
by the Committee in its discretion, by withholding shares of Stock which otherwise would be
acquired on exercise having an aggregate Fair Market Value at the time of exercise equal to the
total purchase price, or (d) subject to prior approval by the Committee in its discretion, by a
combination of (a), (b), and (c) above. Any payment in shares of Stock shall be effected as
provided for in the Plan. The Committee, in its discretion, also may allow the purchase price to be
paid with such other consideration as shall constitute lawful consideration for the issuance of
shares of Stock (including, without limitation, effecting a cashless exercise, as defined in the
Plan, with a broker of the Option), subject to applicable securities law restrictions and tax
withholdings, or by any other means which the Committee determines to be consistent with the Plans
purpose and applicable law.
As soon as practicable after receipt of a written notification of exercise and full payment,
the Company shall deliver, or cause to be delivered, to or on behalf of Non-employee Director, in
the name of Non-employee Director or other appropriate recipient, share certificates for the number
of shares of Stock purchased under the Option. Unless and until such certificates have
been issued by the Company to Non-employee Director, Non-employee Director (or other person
permitted to exercise this Option in the event of Non-employee Directors death) shall not be or
have any rights or privileges of a stockholder of the Company with respect to the shares acquirable
upon an exercise of this option.
6. Withholding of Tax. To the extent that the exercise of this Option or the
disposition of shares of Stock acquired by exercise of this Option results in compensation income
to Non-employee Director for federal or state income tax purposes, Non-employee Director shall
deliver to the Company at the time of such exercise or disposition such amount of money or shares
of Stock as the Company may require to meet its obligation under applicable tax laws or
regulations, and, if Non-employee Director fails to do so, the Company is authorized to withhold
from any cash or Stock remuneration then or thereafter payable to Non-employee Director any tax
required to be withheld by reason of such resulting compensation income. Upon an exercise of this
Option, the Company is further authorized in its discretion to satisfy any such withholding
requirement out of any cash or shares of Stock distributable to Non-employee Director upon such
Except as may otherwise be permitted by the Code, in the event of a permitted transfer of an
Option hereunder, Non-employee Director shall remain subject to withholding taxes upon exercise. In
addition, the Company shall have no obligation to provide any notices to the transferee including,
for example, notice of the termination of a stock option following Non-employee Directors
termination of service as a director of the Company.
7. Securities Laws. Non-employee Director agrees that the shares of Stock which
Non-employee Director may acquire by exercising this Option will not be sold or otherwise disposed
of in any manner which would constitute a violation of any applicable securities laws, whether
federal or state. Non-employee Director also agrees (i) that the certificates representing the
shares of Stock purchased under this Option may bear such legend or legends as the Committee deems
appropriate in order to assure compliance with applicable securities laws, and (ii) that the
Company may refuse to register the transfer of such shares of Stock purchased under this Option on
the stock transfer records of the Company if such proposed transfer would, in the opinion of
counsel satisfactory to the Company, constitute a violation of any applicable securities laws and
(iii) that the Company may give related instructions to its transfer agent, if any, to stop
registration of the transfer of the shares of Stock purchased under this Option.
8. No Rights to Directorship. Nothing contained in this Agreement shall confer upon
the Non-Employee Director the right to continue as a director of the Company.
9. Representations and Warranties of Non-employee Director. The Non-employee Director
represents and warrants to the Company as follows:
||The Non-employee Director has received a copy of the Plan and has read and
understands the terms of the Plan and this Agreement, and agrees to be bound by their
terms and conditions. The Non-employee Director acknowledges that there
||may be adverse tax consequences related to the Options and their vesting and
exercise, and that Non-employee Director should consult a tax advisor prior to such
||The Non-employee Director agrees to sign such additional documentation as may
reasonably required from time to time by the Company in connection with this Agreement.
10. Binding Effect. This Agreement shall be binding upon and inure to the benefit of
any successors to the Company and all persons lawfully claiming under Non-employee Director.
11. Governing Laws
. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware
12. Modification. This Agreement may not be modified except in writing signed by the
parties hereto or their respective successors and permitted assigns.
13. Headings. The headings of paragraphs in this Agreement are for convenience of
reference only, do not constitute a part of this Agreement, and shall not be deemed to limit or
alter any of the provisions of this Agreement.
14. Defined Terms. Except as otherwise provided in this Agreement, or unless the
context clearly indicates otherwise, capitalized terms used but not defined in this Agreement have
the definitions as provided in the Plan. In the event of a conflict or inconsistency between the
discretionary terms and provisions of the Plan and the provisions of this Agreement, this Agreement
shall govern and control.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed, by its officer
thereunto duly authorized, and Non-employee Director has executed this Agreement, all as of the day
and year first above written.