exv4w5






Exhibit 4.5




ILLUMINA, INC.




2005 STOCK AND INCENTIVE PLAN




          1. Purposes of the Plan. The purposes of this 2005 Stock and Incentive Plan are to
attract and retain the best available personnel for positions of substantial responsibility, to
provide additional incentive to Service Providers, and to promote the success of the Company’s
business. Options granted under the Plan may be Incentive Stock Options or Nonstatutory Stock
Options, as determined by the Administrator at the time of grant. Stock Awards (including Stock
Grants, Stock Units and Stock Appreciation Rights) and Cash Awards may also be granted under the
Plan.




          2. Definitions. As used herein, the following definitions shall apply:




               (a) “Administrator” means the Board or any of its Committees as shall be administering
the Plan, in accordance with Section 4 hereof.



               (b) “Applicable Laws” means the requirements relating to the administration of stock
option and restricted stock plans, the grant of options and the issuance of shares under U.S. state
corporate laws, U.S. federal and state securities laws, the Code, any Nasdaq National Market, stock
exchange or quotation system on which the Common Stock is listed or quoted and the applicable laws
of any other country or jurisdiction where Options or Awards are granted under the Plan, as such
laws, rules, regulations and requirements shall be in place from time to time.



               (c) “Award” means an Option, a Stock Award or a Cash Award granted in accordance with
the terms of the Plan.



               (d) “Award Agreement” means a Stock Award Agreement, Cash Award Agreement and/or
Option Agreement, which may be in written or electronic format, in such form and with such terms
and conditions as may be specified by the Administrator, evidencing the terms and conditions of an
individual Award. Each Award Agreement is subject to the terms and conditions of the Plan.



               (e) “Board” means the Board of Directors of the Company.



               (f) “Cash Award” means a bonus opportunity awarded under Section 15 pursuant to which
a Participant may become entitled to receive an amount based on the satisfaction of such
performance criteria as are specified in the agreement or other documents evidencing the Award (the
“Cash Award Agreement”).



               (g) “Code” means the Internal Revenue Code of 1986, as amended.



               (h) “Committee” means a committee of Directors appointed by the Board in accordance
with Section 4 hereof.



               (i) “Common Stock” means the common stock of the Company.



               (j) “Company” means Illumina, Inc., a Delaware corporation.



               (k) “Consultant” means any natural person, including an advisor, engaged by the
Company or a Parent or Subsidiary to render services to such entity.



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               (l) “Corporate Transaction” means any of the following, unless the Administrator
provides otherwise:



                    (i) any merger or consolidation in which the Company shall not be the surviving entity (or
survives only as a subsidiary of another entity whose stockholders did not own all or substantially
all of the Common Stock in substantially the same proportions as immediately prior to such
transaction),



                    (ii) the sale of all or substantially all of the Company’s assets to any other person or
entity (other than a wholly-owned subsidiary),



                    (iii) the acquisition of beneficial ownership of a controlling interest (including, without
limitation, power to vote) the outstanding shares of Common Stock by any person or entity
(including a “group” as defined by or under Section 13(d)(3) of the Exchange Act),



                    (iv) a contested election of Directors, as a result of which or in connection with which the
persons who were Directors before such election or their nominees (the “Incumbent
Directors”) cease to constitute a majority of the Board; provided however that if the election,
or nomination for election by the Company’s stockholders, of any new director was approved by a
vote of at least fifty percent (50%) of the Incumbent Directors, such new Director shall be
considered as an Incumbent Director, or



                    (v) any other event specified by the Board or a Committee, regardless of whether at the time
an Award is granted or thereafter.



               (m) “Director” means a member of the Board.



               (n) “Disability” means total and permanent disability as defined in Section 21(e)(3)
of the Code.



               (o) “Effective Date” means the date on which the Company’s stockholders approve the
Plan.



               (p) “Employee” means any person, including Officers and Inside Directors, employed by
the Company or any Parent or Subsidiary of the Company. An Employee shall not be deemed to cease
Employee status by reason of (i) any leave of absence approved by the Company or (ii) transfers
between locations of the Company or between the Company, its Parent, any Subsidiary, or any
successor. For purposes of Incentive Stock Options, no such leave may exceed ninety days, unless
reemployment upon expiration of such leave is guaranteed by statute or contract. If reemployment
upon expiration of a leave of absence approved by the Company is not so guaranteed, then three (3)
months following the 91st day of such leave any Incentive Stock Option held by the
Optionee shall cease to be treated as an Incentive Stock Option and shall be treated for tax
purposes as a Nonstatutory Stock Option. Neither service as Director nor payment of a director’s
fee by the Company shall be sufficient to constitute “employment” by the Company.



               (q) “Exchange Act” means the Securities Exchange Act of 1934, as amended.



               (r) “Fair Market Value” means, as of any date, the value of a Share determined as
follows:



                    (i) If the Common Stock is listed on any established stock exchange or traded on a national
market system, including without limitation the Nasdaq National Market or the Nasdaq SmallCap
Market of The Nasdaq Stock Market, the Fair Market Value of a Share shall be the closing selling
price for such stock (or the closing bid, if no sales were reported) as quoted on such exchange or
system on the day of determination, as reported in The Wall Street Journal or such other source as
the Administrator deems reliable;



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                    (ii) If the Common Stock is regularly quoted by a recognized securities dealer but selling
prices are not reported, the Fair Market Value of a Share shall be the mean between the high bid
and low asked prices for the Common Stock on the day of determination, as reported in The Wall
Street Journal or such other source as the Administrator deems reliable; or



                    (iii) In the absence of an established market for the Common Stock, the Fair Market Value
shall be determined in good faith by the Administrator.



               (s) “Incentive Stock Option” means an Option intended to qualify as an incentive stock
option within the meaning of Section 422 of the Code and the regulations promulgated thereunder and
as designated in the applicable Option Agreement.



               (t) “Inside Director” means a Director who is an Employee.



               (u) “Nonstatutory Stock Option” means an Option not intended to qualify as an
Incentive Stock Option and/or as designated in the applicable Option Agreement.



               (v) “Notice of Grant” means a written or electronic notice evidencing certain terms
and conditions of an individual Option grant. The Notice of Grant is part of the Option Agreement.



               (w) “Officer” means a person who is an executive officer of the Company within the
meaning of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder.



               (x) “Option” means a stock option granted pursuant to the Plan.



               (y) “Option Agreement” means an agreement between the Company and an Optionee
evidencing the terms and conditions of an individual Option grant. The Option Agreement is subject
to the terms and conditions of the Plan.



               (z) “Optioned Shares” means the Shares subject to an Option.



               (aa) “Optionee” means the holder of an outstanding Option granted under the Plan.



               (bb) “Outside Director” means a Director who is not an Employee.



               (cc) “Parent” means a “parent corporation,” whether now or hereafter existing, as
defined in Section 424(e) of the Code or any successor provision.



               (dd) “Participant” means any holder of one or more Options, Stock Awards or Cash
Awards, or the Shares issuable or issued upon exercise of such Awards, under the Plan.



               (ee) “Plan” means this 2005 Stock and Incentive Plan.



               (ff) “Predecessor Plan” means the Illumina, Inc. 2000 Stock Plan, as amended.



               (gg) “Qualifying Performance Criteria” means any one or more of the following
performance criteria, either individually, alternatively or in any combination, applied to either
the Company as a whole or to a business unit, Parent, Subsidiary or business segment, either
individually, alternatively or in any combination, and measured either annually or cumulatively
over a period of years, on an absolute basis or relative to a pre-established target, to previous
years’ results or to a designated comparison group, in each case as specified by the Committee in
the Award: (i) cash flow; (ii) earnings (including gross margin, earnings before interest and
taxes, earnings before taxes, and net earnings); (iii) earnings per share; (iv) growth in earnings
or earnings per share;



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(v) stock price; (vi) return on equity or average stockholders’ equity; (vii) total stockholder
return; (viii) return on capital; (ix) return on assets or net assets; (x) return on investment;
(xi) revenue; (xii) income or net income; (xiii) operating income or net operating income; (xiv)
operating profit or net operating profit; (xv) operating margin; (xvi) return on operating revenue;
(xvii) market share; (xviii) contract awards or backlog; (xix) overhead or other expense reduction;
(xx) growth in stockholder value relative to the moving average of the S&P 500 Index or a peer
group index; (xxi) credit rating; (xxii) strategic plan development and implementation (including
individual performance objectives that relate to achievement of the Company’s or any business
unit’s strategic plan); (xxiii) improvement in workforce diversity, and (xxiv) any other similar
criteria as may be determined by the Administrator. The Committee may appropriately adjust any
evaluation of performance under a Qualifying Performance Criteria to exclude any of the following
events that occurs during a performance period: (A) asset write-downs; (B) litigation or claim
judgments or settlements; (C) the effect of changes in tax law, accounting principles or other such
laws or provisions affecting reported results; (D) accruals for reorganization and restructuring
programs; and (E) any gains or losses classified as extraordinary or as discontinued operations in
the Company’s financial statements.




               (hh) “Rule 16b-3” means Rule 16b-3 of the Exchange Act, as the same may be amended
from time to time, or any successor to Rule 16b-3, as in effect when discretion is being exercised
with respect to the Plan.



               (ii) “Service Provider” means (i) an individual rendering services to the Company or
any Parent or Subsidiary of the Company in the capacity of an Employee or Consultant or (ii) an
individual serving as a Director.



               (jj) “Share” means a share of the Common Stock, as adjusted in accordance with Section
17 hereof.



               (kk) “Stock Appreciation Right” means a right to receive cash and/or Shares based on a
change in the Fair Market Value of a specific number of Shares granted under Section 14.



               (ll) “Stock Award” means a Stock Grant, a Stock Unit or a Stock Appreciation Right
granted under Sections 13 or 14 below or other similar awards granted under the Plan (including
phantom stock rights).



               (mm) “Stock Award Agreement” means a written agreement, the form(s) of which shall be
approved from time to time by the Administrator, between the Company and a holder of a Stock Award
evidencing the terms and conditions of an individual Stock Award grant. Each Stock Award Agreement
shall be subject to the terms and conditions of the Plan.



               (nn) “Stock Grant” means the award of a certain number of Shares granted under Section
13 below.



               (oo) “Stock Unit” means a bookkeeping entry representing an amount equivalent to the
Fair Market Value of one Share, payable in cash, property or Shares. Stock Units represent an
unfunded and unsecured obligation of the Company, except as otherwise explicitly provided for by
the Administrator.



               (pp) “Subsidiary” means a “subsidiary corporation,” whether now or hereafter existing,
as defined in Section 424(f) of the Code, or any successor provision.



               (qq) “Withholding Taxes” means the federal, state and local income and employment
withholding taxes, or any other taxes required to be withheld, to which the holder of an Award may
be subject in connection with the grant, exercise, or vesting of an Award or the issuance or
transfer of Shares issued or issuable pursuant to an Award.



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          3. Stock Subject to the Plan.




               (a) Subject to the provisions of Section 17 hereof, the maximum aggregate number of Shares
that may be issued and sold under the Plan is 11,542,358 Shares. This maximum number of Shares
reserved and available for issuance under the Stock Plan consists of Shares reserved for issuance
under the Predecessor Plan that as of May 2, 2005 were either (i) available for grant pursuant to
awards that may be made under the Predecessor Plan or (ii) subject to outstanding options granted
under the Predecessor Plan which Shares might be returned to the Predecessor Plan but such Shares
shall become available for issuance hereunder only if and to the extent the options granted under
the Predecessor Plan to which they are subject terminate or expire or become unexercisable for any
reason without having been exercised in full.



               (b) An annual increase in the number of Shares reserved for issuance hereunder shall
automatically occur on the first day of each fiscal year of the Company, beginning with fiscal year
2006 and ending with fiscal year 2010, equal to the lesser of (i) 1,200,000 Shares (subject to
adjustment under Section 17), (ii) 5% of the outstanding Shares as of the last day of the
immediately preceding fiscal year or (iii) a number of Shares determined by the Board. In addition
to any increase, pursuant to the immediately preceding sentence, in the number of Shares reserved
for issuance hereunder, the number of Shares reserved for issuance hereunder shall automatically
increase, on May 16, 2008, by an additional 1,200,000 Shares. The Shares may be authorized, but
unissued, or reacquired Shares, including Shares repurchased by the Company on the open market.



               (c) If an outstanding Award expires or terminates for any reason prior to exercise in full, or
without the Shares subject thereto having been issued in full, the unpurchased or unissued Shares
which were subject thereto shall become available for future grant or sale under the Plan (unless
the Plan has terminated); provided, however, that Shares that have actually been issued under the
Plan pursuant to an Award shall not be returned to the Plan and shall not become available for
future distribution under the Plan, except that if unvested Shares are repurchased by the Company
at their original purchase price or otherwise forfeited to the Company in connection with
termination of a Participant’s status as a Service Provider, such Shares shall become available for
future grant under the Plan. Should the exercise or purchase price of an Award under the Plan be
paid with Shares (including by withholding Shares from the Award) or should Shares otherwise
issuable under the Plan be withheld by the Company in satisfaction of the Withholding Taxes
incurred in connection with the exercise, purchase or issuance of Shares under an Award, then the
number of Shares available for issuance under the Plan shall be reduced by the gross number of
Shares issued in connection with the Award, and not by the net number of Shares issued to the
holder of such Award.



          4. Administration of the Plan.




               (a) Procedure.



                    (i) Multiple Administrative Bodies. Different Committees with respect to different
groups of Service Providers may administer the Plan.



                    (ii) Section 162(m). To the extent that the Administrator determines it to be
desirable to qualify Awards granted hereunder as “performance-based compensation” within the
meaning of Section 162(m) of the Code, the Plan shall be administered by a Committee of two or more
“outside directors” within the meaning of Section 162(m) of the Code.



                    (iii) Rule 16b-3. To the extent desirable to qualify transactions hereunder as exempt
under Rule 16b-3, the transactions contemplated hereunder shall be structured to satisfy the
requirements for exemption under Rule 16b-3.



                    (iv) Other Administration. Other than as provided above, the Plan shall be
administered by (A) the Board, (B) a Committee, which committee shall be constituted to satisfy
Applicable Laws or (C) subject to the Applicable Laws, one or more officers of the Company to whom
the Board or Committee



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has delegated the power to grant Awards to persons eligible to receive Awards under the Plan
provided such grantees may not be officers or Directors.




               (b) Powers of the Administrator. Subject to the provisions of the Plan, and in the
case of a Committee, subject to the specific duties delegated by the Board to such Committee, the
Administrator shall have the authority, in its discretion:



                         (A) to determine the Fair Market Value of the Common Stock in accordance with Section 2(r) of
the Plan;



                         (B) to select the Service Providers to whom Awards may be granted hereunder;



                         (C) to determine the number of Shares or amount of cash to be covered by each Award granted
hereunder;



                         (D) to approve forms of Award Agreements for use under the Plan;



                         (E) to determine the terms and conditions, not inconsistent with the terms of the Plan, of any
Award granted hereunder, which terms and conditions include, but are not limited to, the exercise
price and/or purchase price (if applicable), the time or times when Awards may be exercised (which
may be based on performance criteria), the vesting schedule, any vesting and/or exercisability
acceleration or waiver of forfeiture restrictions, the acceptable forms of consideration, the term
and any restriction or limitation regarding any Award or the Shares relating thereto, based in each
case on such factors as the Administrator, in its sole discretion, shall determine and may be
established at the time an Award is granted or thereafter;



                         (F) to construe and interpret the terms of the Plan and Awards granted pursuant to the Plan;



                         (G) to prescribe, amend and rescind rules and regulations relating to the Plan, including
rules and regulations relating to sub-plans established for the purpose of satisfying applicable
foreign laws;



                         (H) to modify or amend each Award (subject to Section 19) hereof), including the discretionary
authority to extend the post-termination exercisability or purchase period of Awards longer than is
originally provided for in the Award Agreement;



                         (I) to allow Participants to satisfy Withholding Tax obligations by electing to have the
Company withhold from the Shares to be issued upon exercise or settlement of an Award that number
of Shares having a Fair Market Value equal to the minimum amount required to be withheld. The Fair
Market Value of the Shares to be withheld shall be determined on the date that the amount of
Withholding Tax is to be determined. All elections by a Participant to have Shares withheld for
this purpose shall be made in such form and under such conditions as the Administrator may deem
necessary or advisable;



                         (J) to authorize any person to execute on behalf of the Company any instrument required to
effect the grant of an Award previously granted by the Administrator;



                         (K) to make all other determinations deemed necessary or advisable for administering the Plan.



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               (c) Effect of Administrator’s Decision. The Administrator’s decisions, determinations
and interpretations shall be final and binding on all Participants and any other holders of
Options, Stock Awards, Cash Awards or Shares issued under the Plan.



          5. Eligibility. Nonstatutory Stock Options and Stock Awards may be granted to Service
Providers. Incentive Stock Options and Cash Awards may be granted only to Employees.




          6. Limitations.




               (a) Each Option shall be designated in the Option Agreement as either an Incentive Stock
Option or a Nonstatutory Stock Option. However, notwithstanding designation as an Incentive Stock
Option, no installment under such an Option shall qualify for favorable tax treatment as an
Incentive Stock Option if (and to the extent) the aggregate Fair Market Value of the Shares
(determined at the date of grant) for which such installment first becomes exercisable hereunder
would, when added to the aggregate value (determined as of the respective date or dates of grant)
of the Shares or other securities for which such Option or any other Incentive Stock Options
granted to Optionee prior to the date of grant (whether under the Plan or any other plan of the
Company or any Parent or Subsidiary of the Company) first become exercisable during the same
calendar year, exceed One Hundred Thousand Dollars ($100,000) in the aggregate. Should such One
Hundred Thousand Dollar ($100,000) limitation be exceeded in any calendar year, the Option shall
nevertheless become exercisable for the excess Optioned Shares in such calendar year as a
Nonstatutory Stock Option. For purposes of this Section 6(a), Incentive Stock Options shall be
taken into account in the order in which they were granted.



               (b) Neither the Plan nor any Award shall confer upon a Participant any right with respect to
continuing the Participant’s relationship as a Service Provider with the Company, nor shall they
interfere in any way with the Participant’s right or the Company’s right to terminate such
relationship at any time, with or without cause.



               (c) The following limitations shall apply to grants of Options and Stock Awards:



                    (i) No Service Provider shall be granted, in any fiscal year of the Company, Awards covering
more than 500,000 Shares, subject to adjustment as provided in Section 17 below.



                    (ii) However, in connection with his or her commencement of Service Provider status, an
individual may be granted Awards covering up to an additional 1,000,000 Shares during the fiscal
year in which such commencement occurs, which shall not count against the limit set forth in
subsection (i) above and subject to adjustment as provided in Section 17 below.



          7. Term of Plan. The Plan shall become effective on the Effective Date. Unless the
Plan is terminated earlier pursuant to Section 19 hereof, the Plan shall terminate upon the
earliest to occur of (a) June 28, 2015, (b) the date on which all Shares available for
issuance under the Plan shall have been issued as fully vested Shares or (c) the termination of all
outstanding Awards in connection with a dissolution or liquidation pursuant to Section 17(b) hereof
or a Corporate Transaction pursuant to Section 17(c) hereof. Should the Plan terminate on June 28,
2015, then all Awards outstanding at that time shall continue to have force and effect in
accordance with the provisions of the applicable Award Agreement.




          8. Term of Option. The term of each Option shall be stated in the Option Agreement;
provided, however that the term shall be no more than ten (10) years from the date of grant or such
shorter term as may be provided in the Option Agreement. Moreover, in the case of an Incentive
Stock Option granted to an Optionee who, at the time the Incentive Stock Option is granted, owns
stock representing more than ten percent (10%) of the total combined voting power of all classes of
stock of the Company or any Parent or Subsidiary, the term of the Incentive Stock Option shall be
five (5) years from the date of grant or such shorter term as may be provided in the Option
Agreement.




          9. Option Exercise Price and Consideration.




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               (a) Exercise Price. The per Share exercise price for the Shares to be issued pursuant
to exercise of an Option shall be determined by the Administrator, subject to the following:



                    (i) In the case of an Incentive Stock Option



                         (A) granted to an Employee who, at the time the Incentive Stock Option is granted, owns stock
representing more than ten percent (10%) of the voting power of all classes of stock of the Company
or any Parent or Subsidiary, the per Share exercise price shall be no less than 110% of the Fair
Market Value per Share on the date of grant.



                         (B) granted to any Employee other than an Employee described in paragraph (A) immediately
above, the per Share exercise price shall be no less than 100% of the Fair Market Value per Share
on the date of grant.



                    (ii) In the case of a Nonstatutory Stock Option, the per Share exercise price shall be no less
than 100% of the Fair Market Value per Share on the date of grant.



                    (iii) Notwithstanding the foregoing, Options may be granted with a per Share exercise price of
less than 100% of the Fair Market Value per Share on the date of grant pursuant to a merger or
other corporate transaction.



               (b) Waiting Period and Exercise Dates. At the time an Option is granted, the
Administrator shall fix the period within which the Option may be exercised and shall determine any
conditions (including any vesting conditions) that must be satisfied before the Option may be
exercised.



               (c) Form of Consideration. The Administrator shall determine the acceptable form of
consideration for exercising an Option, including the method of payment. Such consideration may
consist entirely of:



                    (i) cash;



                    (ii) check;



                    (iii) promissory note;



                    (iv) other Shares which, in the case of Shares acquired directly or indirectly from the
Company, (A) have been owned by the Optionee for more than six (6) months on the date of surrender
(if it is required to eliminate or reduce accounting charges incurred by the Company in connection
with the Option, or such other period (if any) required to so eliminate or reduce such charges),
and (B) have a Fair Market Value on the date of surrender equal to the aggregate exercise price of
the Shares as to which said Option shall be exercised;



                    (v) consideration received through a special sale and remittance procedure pursuant to which
the Optionee shall concurrently provide irrevocable instructions to (A) a Company-designated
brokerage firm to effect the immediate sale of the purchased Shares and remit to the Company, out
of the sale proceeds available on the settlement date, sufficient funds to cover the aggregate
exercise price payable for the purchased Shares plus all Withholding Taxes required to be withheld
by the Company by reason of such exercise and (B) the Company to deliver the certificates for the
purchased Shares directly to such brokerage firm in order to complete the sale;



                    (vi) a reduction in the amount of any Company liability to the Optionee, including any
liability attributable to the Optionee’s participation in any Company-sponsored deferred
compensation program or arrangement;



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                    (vii) any combination of the foregoing methods of payment; or



                    (viii) such other consideration and method of payment for the issuance of Optioned Shares as
determined by the Administrator and to the extent permitted by Applicable Laws.



               (d) No Option Repricings. Other than in connection with a change in the Company’s
capitalization (as described in Section 17(a) of the Plan), the exercise price of an Option may not
be reduced without stockholder approval.



          10. Exercise of Option.




               (a) Procedure for Exercise; Rights as a Stockholder.



                    (i) Any Option granted hereunder shall be exercisable according to the terms of the Plan and
at such times and under such conditions as determined by the Administrator and set forth in the
Option Agreement. Unless the Administrator provides otherwise, vesting of Options granted
hereunder shall be suspended during any unpaid leave of absence. An Option may not be exercised
for a fraction of a Share.



                    (ii) An Option shall be deemed exercised when the Company receives: (A) written or electronic
notice of exercise (in accordance with the Option Agreement) from the person entitled to exercise
the Option, and (B) full payment for the Optioned Shares with respect to which the Option is
exercised and (C) satisfaction of any Withholding Taxes. Full payment may consist of any
consideration and method of payment authorized by the Administrator and permitted by the Plan and
shall be set forth in the Option Agreement. Shares issued upon exercise of an Option shall be
issued in the name of the Optionee or, if requested by the Optionee, in the name of the Optionee
and his or her spouse. Until the Shares are issued (as evidenced by the appropriate entry on the
books of the Company or of a duly authorized transfer agent of the Company), no right to vote or
receive dividends or any other rights as a stockholder shall exist with respect to the Optioned
Shares, notwithstanding the exercise of the Option. The Company shall issue (or cause to be
issued) such Shares promptly after the Option is exercised. No adjustment will be made for a
dividend or other right for which the record date is prior to the date the Shares are issued,
except as provided in Section 17 hereof.



                    (iii) Exercising an Option in any manner shall decrease the number of Optioned Shares
thereafter available, both for purposes of the Plan and for sale under the Option, by the number of
Shares as to which the Option is exercised.



               (b) Termination of Relationship as a Service Provider. If an Optionee ceases to be a
Service Provider, other than upon the Optionee’s death or Disability, such Optionee may exercise
his or her Option for a period of three (3) months measured from the date of termination, or such
longer period of time as specified in the Option Agreement, to the extent that the Option is vested
on the date of termination (but in no event later than the expiration of the term of the Option as
set forth in the Option Agreement). If, on the date of termination, the Optionee is not vested as
to his or her entire Option, the Option shall immediately terminate as to all the Optioned Shares
covered by the unvested portion of the Option, and those Optioned Shares shall revert immediately
to the Plan. To the extent the Optionee does not, within the post-termination time period
specified in the Option Agreement, exercise the Option for the Optioned Shares in which Optionee is
vested at the time of such termination of Service Provider status, the Option shall terminate with
respect to those vested Optioned Shares at the end of such period, and those Optioned Shares shall
revert to the Plan.



               (c) Disability of Optionee. If an Optionee ceases to be a Service Provider as a
result of the Optionee’s Disability, the Optionee may exercise his or her Option within twelve (12)
months of termination, or such longer period of time as specified in the Option Agreement, to the extent
the Option is vested on the date of termination (but in no event later than the expiration of the
term of such Option as set forth in the Option Agreement). If, on the date of termination, the
Optionee is not vested as to his or her entire Option, the Option shall immediately terminate as to
the Optioned Shares covered by the unvested portion of the Option, and those Optioned Shares shall
revert immediately to the Plan. To the extent the Optionee does not, within the post-



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termination
time period specified in the Option Agreement, exercise the Option for the Optioned Shares in which
Optionee is vested at the time of such termination of Service Provider status, the Option shall
terminate with respect to those vested Optioned Shares at the end of such period, and those
Optioned Shares shall revert to the Plan.




               (d) Death of Optionee. If an Optionee dies while a Service Provider, the Option may
be exercised within twelve (12) months following Optionee’s death, or such longer period of time as
specified in the Option Agreement, to the extent that the Option is vested on the date of death
(but in no event later than the expiration of the term of such Option as set forth in the Option
Agreement) by the Optionee’s designated beneficiary, provided such beneficiary has been designated
prior to Optionee’s death in a form acceptable to the Administrator. If no such beneficiary has
been designated by the Optionee, then such Option may be exercised by the personal representative
of the Optionee’s estate or by the person(s) to whom the Option is transferred pursuant to the
Optionee’s will or in accordance with the laws of descent and distribution. If, at the time of
death, the Optionee is not vested as to his or her entire Option, the Option shall immediately
terminate as to the Optioned Shares covered by the unvested portion of the Option, and those
Optioned Shares shall immediately revert to the Plan. To the extent the Option is not, within the
post-termination time period specified in the Option Agreement, exercised for the Optioned Shares
in which Optionee is vested at the time of such termination of Service Provider status, the Option
shall terminate with respect to those vested Optioned Shares, and those Optioned Shares shall
revert to the Plan.



          11. Formula Option Grants to Outside Directors. Outside Directors shall automatically
be granted Options in accordance with the following provisions:




               (a) All Options granted pursuant to this Section shall be Nonstatutory Stock Options and,
except as otherwise provided in this Section 11, shall be subject to the other terms and conditions
of the Plan.



               (b) Each individual who becomes an Outside Director after the Effective Date shall be
automatically granted an Option to purchase 20,000 Shares subject to adjustment as set forth in
Section 17(a) below (the “First Option”) on the date such individual is elected as a Director,
whether through election by the stockholders of the Company or appointment by the Board to fill a
vacancy; provided, however, that an Inside Director who ceases to be an Inside Director but who
remains a Director shall not receive a First Option.



               (c) On each annual stockholder meeting commencing with the Effective Date, each Outside
Director who continues to serve in such capacity immediately after such annual stockholder meeting
shall be automatically granted an Option to purchase 8,000 Shares subject to adjustment as set
forth in Section 17(a) below (a “Subsequent Option”); provided that the Outside Director has served
on the Board for at least six calendar months prior to the date of such annual stockholder meeting.



               (d) The terms of a First Option or a Subsequent Option granted pursuant to this Section shall
be as follows:



                    (i) The term of the Option shall be ten (10) years measured from the date of grant.



                    (ii) The Option shall be exercisable only during the time that the Outside Director remains a
Director and, with respect to Optioned Shares vested on the last day of service as a Director for
the six (6) month period following the date of the Optionee’s cessation of service as a Director,
provided, however, that the Option cannot be exercised after the expiration of the term of the
Option. If, at the time of Optionee’s cessation of service as a Director, the Optionee is not
vested as to his or her entire Option, the Option shall immediately terminate as to the Optioned
Shares covered by the unvested portion of the Option, and those Optioned Shares shall immediately
revert to the Plan. To the extent the Option is not, within the post-termination time period
specified in the Option Agreement, exercised for the Optioned Shares in which the Optionee is
vested at the time of his or her cessation of Director status, the Option shall terminate with
respect to those vested Optioned Shares, and those Optioned Shares shall revert to the Plan.



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                    (iii) The exercise price per Share shall be 100% of the Fair Market Value per Share on the
date of grant of the Option.



                    (iv) The First Option shall vest and become exercisable as to 33% of the Optioned Shares on
each of the first three anniversaries of its date of grant, provided that the Optionee continues to
serve as a Director on such dates.



                    (v) The Subsequent Option shall vest and become exercisable as to 100% of the Optioned Shares
on the earlier of (i) the one year anniversary of the date of grant of the Option and (ii) the date
immediately preceding the date of the annual meeting of the Company’s stockholders for the year
following the year of grant of the Option, provided that the Optionee continues to serve as a
Director on such date.



                    (vi) If an Outside Director dies or ceases to serve as a Director as a result of the Outside
Director’s Disability while holding any outstanding Option under this Section 11, then that Option
may be exercised within six (6) months following his or her death or termination, or such longer
period of time as specified in the Option Agreement, to the extent that the Option is vested on the
date of death or termination (but in no event later than the expiration of the term of such Option
as set forth in the Option Agreement) by the Outside Director’s or the Outside Director’s
designated beneficiary, provided such beneficiary has been designated prior to his or her death in
a form acceptable to the Administrator. If no such beneficiary has been designated by the Outside
Director, then such Option may be exercised by the personal representative of his or her estate or
by the person(s) to whom the Option is transferred pursuant to his or her will or in accordance
with the laws of descent and distribution. If, at the time of death or termination as a result of
Disability, the Outside Director is not vested as to his or her entire Option, the Option shall
immediately terminate as to the Optioned Shares covered by the unvested portion of the Option, and
those Optioned Shares shall immediately revert to the Plan. To the extent the Option is not,
within the post-termination time period specified in the Option Agreement, exercised for the
Optioned Shares in which the Outside Director is vested at the time of death or termination as a
result of Disability, the Option shall terminate with respect to those vested Optioned Shares, and
those Optioned Shares shall revert to the Plan.



                    (vii) In the event of a Corporate Transaction, all Options granted pursuant to this Section II
shall be subject to the terms and conditions of Section 17©; provided that in the event that the
successor corporation does not assume or substitute for each First Option and Subsequent Option,
the Optionee shall fully vest in and have the right to exercise the Option as to all of the
Optioned Shares, including Shares as to which it would not otherwise be vested or exercisable.



               (e) The Board shall have sole and exclusive authority to establish, maintain, amend, suspend,
and terminate any program by which Outside Directors are automatically granted Nonstatutory Stock
Options pursuant to this Section 11.



          12. Limited Transferability of Options. An Option generally may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner other than by will or by the laws
of descent or distribution and may be exercised, during the lifetime of the Optionee, only by the
Optionee; provided however that Nonstatutory Stock Options may be transferred by instrument to an
inter vivos or testamentary trust in which the Nonstatutory Stock Options are to be passed to
beneficiaries upon the death of the trustor (settlor) or by gift or pursuant to domestic relations
orders to “Immediate Family Members” (as defined below) of the Optionee. “Immediate
Family” means any child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former
spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law,
brother-in-law, or sister-in-law (including adoptive relationships), a trust in which these persons
have more than fifty percent of the beneficial interest, a foundation in which these persons (or
the Optionee) control the management of assets, and any other entity in which these persons (or the
Optionee) own more than fifty percent of the voting interests. The Optionee may designate one or
more persons as the beneficiary or beneficiaries of his or her outstanding Options,
and those Options shall, in accordance with such designation, automatically be transferred to
such beneficiary or beneficiaries upon the Optionee’s death while holding those Options. Such
beneficiary or beneficiaries shall take the transferred Options subject to all the terms and
conditions of the applicable agreement evidencing each such




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transferred Option, including (without
limitation) the limited time period during which the Option may be exercised following the
Optionee’s death.




          13. Stock Grants and Stock Unit Awards. Each Stock Award Agreement reflecting the
issuance of a Stock Grant or Stock Unit shall be in such form and shall contain such terms and
conditions as the Administrator shall deem appropriate. The terms and conditions of such
agreements may change from time to time, and the terms and conditions of separate agreements need
not be identical, but each such agreement shall include (through incorporation of provisions hereof
by reference in the agreement or otherwise) the substance of each of the following provisions:




               (a) Consideration. A Stock Grant or Stock Unit may be awarded in consideration for
such property or services as is permitted under Applicable Law, including for past services
actually rendered to the Company or a Subsidiary for its benefit.



               (b) Vesting. Shares of Common Stock awarded under an agreement reflecting a Stock
Grant and a Stock Unit award may, but need not, be subject to a share repurchase option, forfeiture
restriction or other conditions in favor of the Company in accordance with a vesting or lapse
schedule to be determined by the Administrator.



               (c) Termination of Participant’s Relationship as a Service Provider. In the event a
Participant’s relationship as a Service Provider terminates, the Company may reacquire any or all
of the Shares held by the Participant which have not vested or which are otherwise subject to
forfeiture or other conditions as of the date of termination under the terms of the agreement.



               (d) Transferability. Except as determined by the Board, no rights to acquire Shares
under a Stock Grant or a Stock Unit shall be assignable or otherwise transferable by the
Participant except by will or by the laws of descent and distribution.



          14. Stock Appreciation Rights.




               (a) General. Stock Appreciation Rights may be granted either alone, in addition to,
or in tandem with other Awards granted under the Plan. The Administrator may grant Stock
Appreciation Rights to eligible Participants subject to terms and conditions not inconsistent with
this Plan and determined by the Administrator. The specific terms and conditions applicable to the
Participant shall be provided for in the Stock Award Agreement. Stock Appreciation Rights shall be
exercisable, in whole or in part, at such times as the Administrator shall specify in the Stock
Award Agreement.



               (b) Exercise of Stock Appreciation Right. Upon the exercise of a Stock Appreciation
Right, in whole or in part, the Participant shall be entitled to a payment in an amount equal to
the excess of the Fair Market Value on the date of exercise of a fixed number of Shares covered by
the exercised portion of the Stock Appreciation Right, over the Fair Market Value on the grant date
of the Shares covered by the exercised portion of the Stock Appreciation Right (or such other
amount calculated with respect to Shares subject to the award as the Administrator may determine).
The amount due to the Participant upon the exercise of a Stock Appreciation Right shall be paid in
such form of consideration as determined by the Administrator and may be in cash, Shares or a
combination thereof, over the period or periods specified in the Stock Award Agreement. A Stock
Award Agreement may place limits on the amount that may be paid over any specified period or
periods upon the exercise of a Stock Appreciation Right, on an aggregate basis or as to any
Participant. A Stock Appreciation Right shall be considered exercised when the Company receives
written notice of exercise in accordance with the terms of the Stock Award Agreement from the
person entitled to exercise the Stock Appreciation Right.



               (c) Transferability. Except as determined by the Board, no Stock Appreciation Rights
shall be assignable or otherwise transferable by the Participant except by will or by the laws of
descent and distribution.



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          15. Cash Awards. Each Cash Award will confer upon the Participant the opportunity to
earn a future payment tied to the level of achievement with respect to one or more performance
criteria established for a performance period of not less than one (1) year.




               (a) Cash Award. Each Cash Award shall contain provisions regarding (i) the target
and maximum amount payable to the Participant as a Cash Award, (ii) the Qualifying Performance
Criteria and level of achievement versus these criteria which shall determine the amount of such
payment, (iii) the period as to which performance shall be measured for establishing the amount of
any payment, (iv) the timing of any payment earned by virtue of performance, (v) restrictions on
the alienation or transfer of the Cash Award prior to actual payment, (vi) forfeiture provisions,
and (vii) such further terms and conditions, in each case not inconsistent with the Plan, as may be
determined from time to time by the Administrator. The maximum amount payable as a Cash Award may
be a multiple of the target amount payable, but the maximum amount payable pursuant to that portion
of a Cash Award granted under this Plan for any fiscal year to any Participant shall not exceed
U.S. $1,000,000.



               (b) Performance Criteria. The Administrator shall establish the Qualifying
Performance Criteria and level of achievement versus these criteria which shall determine the
target and the minimum and maximum amount payable under a Cash Award. The Administrator may
specify the percentage of the target Cash Award that is intended to satisfy the requirements for
“performance-based compensation” under Section 162(m) of the Code. Notwithstanding anything to the
contrary herein, the performance criteria for any portion of a Cash Award that is intended to
satisfy the requirements for “performance-based compensation” under Section 162(m) of the Code
shall be a measure established by the Administrator based on one or more Qualifying Performance
Criteria selected by the Administrator and specified in writing not later than 90 days after the
commencement of the period of service to which the performance goals relates, provided that the
outcome is substantially uncertain at that time (or in such other manner that complies with Section
162(m)).



               (c) Timing and Form of Payment. The Administrator shall determine the timing of
payment of any Cash Award. The Administrator may provide for or, subject to such terms and
conditions as the Administrator may specify and Applicable Laws, may permit a Participant to elect
for the payment of any Cash Award to be deferred to a specified date or event. The Administrator
may specify the form of payment of Cash Awards, which may be cash or other property, or may provide
for a Participant to have the option for his or her Cash Award, or such portion thereof as the
Administrator may specify, to be paid in whole or in part in cash or other property.



               (d) Termination of Relationship as a Service Provider. The Administrator shall have
the discretion to determine the effect of a termination as a Service Provider due to (i)
Disability, (ii) death or (iii) otherwise shall have on any Cash Award.



          16. Section 162(m) Compliance. Any Stock Award (other than an Option or any other
Stock Award having a purchase price equal to 100% of the Fair Market Value on the date such award
is made) or Cash Award that is intended as “qualified performance-based compensation” within the
meaning of Section 162(m) of the Code must vest or become exercisable or payable contingent on the
achievement of one or more Qualifying Performance Criteria. Notwithstanding anything to the
contrary herein, the Committee shall have the discretion to determine the time and manner of
compliance with Section 162(m) of the Code as required under applicable regulations and to conform
the procedures related to the Award to the requirements of Section 162(m) and may in its discretion
reduce the number of Shares granted or amount of cash or other property to which a Participant may
otherwise have been entitled with respect to an Award designed to qualify as performance-based
compensation under Section 162(m).




          17. Adjustments Upon Changes in Capitalization, Dissolution or Corporate Transaction.




               (a) Changes in Capitalization. Subject to any required action by the stockholders of
the Company, (i) the number of Shares which have been authorized for issuance under the Plan but as
to which no Awards have yet been granted or which have been returned to the Plan upon cancellation
or expiration of an Award,



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(ii) the number of Shares that may be added annually to the Plan
pursuant to Section 3(b)(i) hereof, (iii) the number of Optioned Shares granted under First Options
and Subsequent Options under Section 11 hereof, (iv) the maximum numbers of Shares that may be
granted under Awards to any Service Provider within any fiscal year as set forth in Section 6(c)
and (v) the number of Shares as well as the price per Share subject to each outstanding Award,
shall be proportionately adjusted for any increase or decrease in the number of issued Shares
resulting from a stock split, reverse stock split, stock dividend, combination or reclassification
of the Common Stock, or any other increase or decrease in the number of issued Shares effected
without receipt of consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been “effected without receipt of
consideration.” Such adjustment shall be made by the Administrator, whose determination in that
respect shall be final, binding and conclusive. Except as expressly provided herein, no issuance
by the Company of shares of stock of any class, or securities convertible into shares of stock of
any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the
number or price of Shares.




               (b) Dissolution or Liquidation. In the event of the proposed dissolution or
liquidation of the Company, the Administrator shall notify each Participant as soon as practicable
prior to the effective date of such proposed transaction. The Administrator in its discretion may
(but need not) provide for a Participant to have the right to exercise his or her Option or Stock
Award until ten (10) days prior to such transaction as to all of the Shares covered thereby,
including Shares as to which the Option or Stock Award would not otherwise be exercisable. In
addition, the Administrator may (but need not) provide that any Company repurchase option
applicable to any unvested Shares purchased upon exercise of an Option or issued under a Stock
Award shall lapse as to all such Shares, provided the proposed dissolution or liquidation takes
place at the time and in the manner contemplated. To the extent it has not been previously
exercised, an Award will terminate immediately prior to the consummation of such proposed action.



               (c) Corporate Transaction.



                    (i) In the event of a Corporate Transaction, as determined by the Board or a Committee, the
Board or Committee may, in its discretion, (i) provide for the assumption or substitution of, or
adjustment to, each outstanding Award; (ii) accelerate the vesting of Options and terminate any
restrictions on Cash Awards or Stock Awards; and/or (iii) provide for termination of Awards as a
result of the Corporate Transaction on such terms and conditions as it deems appropriate, including
providing for the cancellation of Awards for a cash payment to the Participant. For the purposes
of this paragraph, the Award shall be considered assumed if, following the Corporate Transaction,
the Award confers the right to purchase or receive, for each Share or amount of cash covered by the
Award immediately prior to the Corporate Transaction, the consideration (whether stock, cash, or
other securities or property) received in the Corporate Transaction by holders of Common Stock for
each Share held on the effective date of the Corporate Transaction (and if holders were offered a
choice of consideration, the type of consideration chosen by the holders of a majority of the
outstanding Shares); provided, however, that if such consideration received in the Corporate
Transaction is not solely common stock of the successor corporation or its Parent, the
Administrator may, with the consent of the successor corporation, provide for the consideration to
be received upon the exercise of the Award, for each Share covered by the Award, to be solely
common stock of the successor corporation or its Parent equal in fair market value to the per share
consideration received by holders of Shares in the Corporate Transaction.



                    (ii) Each Option or Stock Award which is assumed pursuant to this Section 17(c) shall be
appropriately adjusted, immediately after such Corporate Transaction, to apply to the number and
class of securities which would have been issuable to the Participant in consummation of such
Corporate Transaction had the Option or Stock Award been exercised immediately prior to such
Corporate Transaction. Appropriate adjustments to reflect such Corporate Transaction shall also be
made to (A) the exercise or purchase price payable per share under each outstanding Option or Stock
Award, provided the aggregate exercise or purchase price payable for such securities shall remain
the same, (B) the maximum number and/or class of securities available for issuance over the
remaining term of the Plan, (C) the maximum number and/or class of securities for which any one
person may be granted Options or Stock Awards under the Plan per year, (D) the maximum number
and/or class
of securities by which the share reserve is to increase automatically each year and (E) the
number and/or class of securities subject to the Options granted under Section 11.



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          18. Date of Grant. The date of grant of a First Option or Subsequent Option shall be
the date on which it was automatically granted pursuant to Section 11 hereof. The date of grant of
any other Award shall be, for all purposes, the date on which the Administrator grants such Award.
Notice of the grant shall be provided to each Participant within a reasonable time after the date
of such grant.




          19. Amendment and Termination of the Plan. The Board may at any time amend, alter,
suspend or terminate the Plan. However, the Company shall obtain stockholder approval of any Plan
amendment to the extent necessary and desirable to comply with Applicable Laws. In addition, no
amendment, alteration, suspension or termination of the Plan shall impair the rights of any
Participant under any grant theretofore made, unless mutually agreed otherwise between the
Participant and the Administrator, which agreement must be in writing and signed by the Participant
and the Company. Termination of the Plan shall not affect the Administrator’s ability to exercise
the powers granted to it hereunder with respect to Awards granted under the Plan prior to the date
of such termination. In addition, unless approved by the stockholders of the Company, no amendment
shall be made that would result in a repricing of Options by (x) reducing the exercise price of
outstanding Options or (y) canceling an outstanding Option held by a Participant and re-granting to
the Participant a new Option with a lower exercise price, in either case other than in connection
with a change in the Company’s capitalization pursuant to Section 17(a) of the Plan.




          20. Conditions Upon Issuance of Shares.




               (a) Awards shall not be granted and Shares shall not be issued pursuant to the exercise of an
Award unless the grant of the Award, the exercise or settlement of such Award and the issuance and
delivery of such Shares shall comply with Applicable Laws and shall be further subject to the
approval of counsel for the Company with respect to such compliance.



               (b) No Shares or other assets shall be issued or delivered under the Plan unless and until
there shall have been compliance with all applicable requirements of Federal and state securities
laws, including the filing and effectiveness of the Form S-8 registration statement for the Shares,
and all applicable listing requirements of any stock exchange (or the Nasdaq National Market, if
applicable) on which Common Stock is then listed for trading.



          21. Inability to Obtain Authority. The inability of the Company to obtain authority
from any regulatory body having jurisdiction (including under Section 20), which authority is
deemed by the Company’s counsel to be necessary to the lawful grant of Awards and issuance and sale
of any Shares hereunder, shall relieve the Company of any liability in respect of the failure to
grant such Awards or issue or sell such Shares as to which such requisite authority shall not have
been obtained.




          22. Reservation of Shares. The Company, during the term of this Plan, will at all
times reserve and keep available such number of Shares as shall be sufficient to satisfy the
requirements of the Plan.




          23. Stockholder Approval. If required by Applicable Laws, continuance of the Plan
shall be subject to approval by the stockholders of the Company within twelve (12) months after the
date the Plan is adopted or after any amendment requiring stockholder approval is made. Such
stockholder approval shall be obtained in the manner and to the degree required under Applicable
Laws.





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