(b) providing for either (i) termination of any Offering thensuch Award in progress by setting a new Purchase Date, in which case,exchange for an amount of cash, if any, equal to the new Purchase Date shall be a specified date beforeamount that would have been attained upon the exercise of such Award or realization of the Participant’s rights (and, for the avoidance of doubt, if as of the date of the Changeoccurrence of the transaction or event described in Control Transactionthis Section 16.3 the Plan Administrator determines in good faith that no amount would have been attained upon the exercise of such Award or realization of the Participant’s rights, then such Award may be terminated by the Company without payment) or (ii) the replacement of such Award with other rights or property selected by the Plan Administrator in its sole discretion;
(c) making adjustments in the number and type of shares of Common Stock (or other securities or property) subject to outstanding Awards, and/or in the terms and conditions of (including the grant or exercise price), and the Boardcriteria included in, outstanding Awards;
(d) to provide that such Award shall notify each Participant, priorbe exercisable or payable or fully vested with respect to all shares of Common Stock covered thereby, notwithstanding anything to the new Purchase Date,contrary in the Plan or the applicable agreement evidencing the Award; and
(e) to provide that the Purchase Date for the Participant’s Option has been changed to the new Purchase Date and that the Participant’s Option shallAward cannot vest, be exercised automatically on the new Purchase Date, unless prior toor become payable after such date the Participant has withdrawn from an Offering then in progress or the Plan as provided in Section 11.event.
18.316.4 Limitations
The grant of OptionsAwards shall in no way affect the Company’s right to adjust, reclassify, reorganize or otherwise change its capital or business structure or to merge, consolidate, dissolve, liquidate or sell or transfer all or any part of its business or assets.
SECTION 19. CONDITIONS UPON ISSUANCE OF SHARES16.5 Fractional Shares
Stock shall not be issued with respect to an Option unlessIn the exerciseevent of such Option andany adjustment in the issuance and deliverynumber of shares covered by any Award, each such Award shall cover only the number of Stock pursuant theretofull shares resulting from such adjustment.
SECTION 17. AMENDMENT AND TERMINATION OF PLAN
17.1 Amendment of Plan
The Plan may be amended only by the Board in such respects as it shall comply with all applicable provisions of law, domestic or foreign, including, without limitation, the U.S. Securities Act of 1933, as amended, the Exchange Act, the rules and regulations promulgated thereunder, and the requirements of any stock exchange upon which the shares may then be listed, and shall be further subjectdeem advisable; provided, however, that to the approval of counselextent required for the Companycompliance with respect to such compliance. The inability or impracticabilitySection 422 of the Company to obtain from any regulatory body having jurisdiction the authority, if any, deemed by the Company’s legal counsel to be necessaryCode or advisable to the lawful issuance and sale of any shares of Stock under the Plan, or the approval of any securities exchange or market system upon which the Stock may then be listed, if any, deemed by the Company’s legal counsel to be necessary or advisable to the issuance and sale of any shares of Stock under the Plan in compliance with the requirements of such securities exchange or market system, shall relieve the Company of any liability in respect of the failure to issue or sell such shares of Stock as to which such requisite authority or approval shall not have been obtained. As a condition to the exercise of an Option, the Company may require the Participant to satisfy any qualifications that may be necessary or appropriate, to evidence compliance with any applicable law or regulation, shareholder approval shall be required for any amendment that would (a) increase the total number of shares available for issuance under the Plan, (b) modify the class of persons eligible to receive Awards, or (c) otherwise require shareholder approval under any applicable law, regulation or stock exchange rules.
17.2 Suspension or Termination of Plan
The Board may suspend or terminate the Plan at any time. The Plan shall have no fixed expiration date; provided, however, that no Incentive Stock Options may be granted more than ten years after the later of (a) the Second Amended 2010 Plan's adoption by the Board and (b) the adoption by the Board of any amendment to makethe Plan that constitutes the adoption of a new plan for purposes of Section 422 of the Code.
17.3 Consent of Participant
The suspension, amendment or termination of the Plan or a portion thereof or the amendment of an outstanding Award shall not, without the Participant’s consent, impair or diminish any representationrights or warranty with respect theretoobligations under any Award theretofore granted to the Participant under the Plan. Any change or adjustment to an outstanding Incentive Stock Option shall not, without the consent of the Participant, be made in a manner so as to constitute a “modification” that would cause such Incentive Stock Option to fail to continue to qualify as an Incentive Stock Option. Notwithstanding the foregoing, any adjustments made pursuant to Section 16 and any amendment or other action contemplated under Section 18.9 or as may be requested by the Company.
SECTION 20. SECTION 409A
The Section 423 Plan is exempt from the application of Section 409A of the Code (“Section 409A”) and any ambiguities herein shall be interpretednecessary or advisable to so be exempt from Section 409A. The Non-423 Plan is intended to be exempt from the application of Section 409A under the short-term deferral exception and any ambiguities shall be construed and interpreted in accordancefacilitate compliance with such intent. In furtherance of the foregoing and notwithstanding any provisionapplicable law, as determined in the Plan to the contrary, ifsole discretion of the Plan Administrator, determines that an Optionshall not be subject to these restrictions.
SECTION 18. GENERAL
18.1 Evidence of Awards
Awards granted under the Plan shall be evidenced by a written instrument (which may also be subject to Section 409A orin electronic form) that any provision in the Plan would cause an Option under the Plan to be subject to Section 409A,shall contain such terms, conditions, limitations and restrictions as the Plan Administrator may, but shall deem advisable and that are not be required to, amendinconsistent with the terms of the Plan and/or of an outstanding Option granted under the Plan, or take such other action the Plan Administrator determines is necessary or appropriate, in each case, without the Participant’s consent, to exempt any outstanding Option or future Option that may be granted under the Plan from or to allow any such options to comply with Section 409A, but only to the extent any such amendments or action by the Plan Administrator would not violate Section 409A.Plan.