no longer an Eligible Employee, a Consultant or a
Non-Employee
Director. Notwithstanding the foregoing, the Committee may otherwise define Termination of
Employment in the Award Agreement or, if no rights of a Participant are reduced, may otherwise define Termination of Employment thereafter, provided that any such change to the definition of the term
Termination of Employment
does
not subject the applicable Award to Section 409A of the Code.
2.49
Transfer
means: (a) when used as a noun, any direct or indirect transfer, sale,
assignment, pledge, hypothecation, encumbrance or other disposition (including the issuance of equity in any entity), whether for value or no value and whether voluntary or involuntary (including by operation of law), and (b) when used as a
verb, to directly or indirectly transfer, sell, assign, pledge, encumber, charge, hypothecate or otherwise dispose of (including the issuance of equity in any entity) whether for value or for no value and whether voluntarily or involuntarily
(including by operation of law).
Transferred
and
Transferable
shall have a correlative meaning.
ARTICLE III
ADMINISTRATION
3.1
The Committee
.
The Plan shall be administered and interpreted by the Committee. To the extent
required by applicable law, rule or regulation, it is intended that each member of the Committee shall qualify as (a) a
non-employee
director under Rule
16b-3
and (b) an independent director under the rules of any national securities exchange or national securities association, as applicable. Notwithstanding the foregoing, for purposes of any
Award granted under the Prior Plan that is intended to constitute qualified performance-based compensation under Section 162(m) of the Code, each member of the Committee shall also be an outside director within the
meaning of Section 162(m) of the Code for purposes of certifying the extent to which any applicable performance-based conditions are achieved. If it is later determined that one or more members of the Committee do not so qualify, actions taken
by the Committee prior to such determination shall be valid despite such failure to qualify.
3.2
Grants of
Awards
. The Committee shall have full authority to grant, pursuant to the terms of the Plan, to Eligible Individuals: (i) Stock Options, (ii) Restricted Stock, (iii) Performance Awards; (iv) Other Stock-Based Awards; and
(v) Other Cash-Based Awards. In particular, the Committee shall have the authority:
(a) to select the Eligible
Individuals to whom Awards may from time to time be granted hereunder;
(b) to determine whether and to what extent Awards,
or any combination thereof, are to be granted hereunder to one or more Eligible Individuals;
(c) to determine the number of
shares of Common Stock to be covered by each Award granted hereunder;
(d) to determine the terms and conditions, not
inconsistent with the terms of the Plan, of any Award granted hereunder (including, but not limited to, the exercise or purchase price (if any), any restriction or limitation, any vesting schedule or acceleration thereof, or any forfeiture
restrictions or waiver thereof, regarding any Award and the shares of Common Stock relating thereto, based on such factors, if any, as the Committee shall determine, in its sole discretion); provided that no Award will vest in the ordinary course
until at least the first anniversary of the grant date applicable to such Award (the
Minimum Vesting Requirement
), except that up to 5% of the Share Reserve may be used to grant Awards which do not meet the Minimum Vesting
Requirement;
(e) to determine the amount of cash to be covered by each Award granted hereunder;
(f) to determine whether, to what extent and under what circumstances grants of Options and other Awards under the Plan are to
operate on a tandem basis and/or in conjunction with or apart from other awards made by the Company outside of the Plan;
(g) to determine whether and under what circumstances a Stock Option may be settled in cash, Common Stock and/or Restricted
Stock under Section 6.4(d);
(h) to determine whether a Stock Option is an Incentive Stock Option or
Non-Qualified
Stock Option;
(i) to impose a blackout period during which
Options may not be exercised;
(j) to determine whether to require a Participant, as a condition of the granting of any
Award, not to sell or otherwise dispose of shares of Common Stock acquired pursuant to the exercise of an Award for a period of time as determined by the Committee, in its sole discretion, following the date of the acquisition of such Award; and
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