Unassociated Document


    Exhibit
      10.1

     

    GOFISH
      CORPORATION

     

    NON-QUALIFIED
      STOCK OPTION PLAN

     

    1. Purposes
      of the Plan.
      The
      purposes of this Plan are to attract and retain the best available personnel,
      to
      provide additional incentives to Employees, Directors and Consultants and to
      promote the success of the Company’s business.

     

    2. Definitions.
      The
      following definitions shall apply as used herein and in the individual Option
      Agreements except as defined otherwise in an individual Option Agreement. In
      the
      event a term is separately defined in an individual Option Agreement, such
      definition shall supersede the definition contained in this
      Section 2.

     

    (a) “Administrator”
means
      the Board or any of the Committees appointed to administer the
      Plan.

     

    (b) “Affiliate”
and
      “Associate”
shall
      have the respective meanings ascribed to such terms in Rule 12b-2
      promulgated under the Exchange Act.

     

    (c) “Applicable
      Laws”
means
      the legal requirements relating to the Plan and the Options under applicable
      provisions of federal and state securities laws, the corporate laws of
      California and, to the extent other than California, the corporate law of the
      state of the Company’s incorporation, the Code, the rules of any applicable
      stock exchange or national market system, and the rules of any non-U.S.
      jurisdiction applicable to Options granted to residents therein. 

     

    (d) “Assumed”
means
      that pursuant to a Corporate Transaction either (i) the Option is expressly
      affirmed by the Company or (ii) the contractual obligations represented by
      the
      Option are expressly assumed (and not simply by operation of law) by the
      successor entity or its Parent in connection with the Corporate Transaction
      with
      appropriate adjustments to the number and type of securities of the successor
      entity or its Parent subject to the Option and the exercise or purchase price
      thereof which at least preserves the compensation element of the Option existing
      at the time of the Corporate Transaction as determined in accordance with the
      instruments evidencing the agreement to assume the Option.

     

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

     

    (f) “Cause”
means,
      with respect to the termination by the Company or a Related Entity of the
      Grantee’s Continuous Service, that such termination is for “Cause” as such term
      (or word of like import) is expressly defined in a then-effective written
      agreement between the Grantee and the Company or such Related Entity, or in
      the
      absence of such then-effective written agreement and definition, is based on,
      in
      the determination of the Administrator, the Grantee’s: (i) performance of
      any act or failure to perform any act in bad faith and to the detriment of
      the
      Company or a Related Entity; (ii) dishonesty, intentional misconduct or
      material breach of any agreement with the Company or a Related Entity; or
      (iii) commission of a crime involving dishonesty, breach of trust, or
      physical or emotional harm to any person; provided, however, that with regard
      to
      any agreement that defines “Cause” on the occurrence of or in connection with a
      Corporate Transaction or a Change in Control, such definition of “Cause” shall
      not apply until a Corporate Transaction or a Change in Control actually
      occurs.

     

    
      
        
        

      

      
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    (g) “Change
      in Control” means
      a
      change in ownership or control of the Company effected through either of the
      following transactions:

     

    (i) the
      direct or indirect acquisition by any person or related group of persons (other
      than an acquisition from or by the Company or by a Company-sponsored employee
      benefit plan or by a person that directly or indirectly controls, is controlled
      by, or is under common control with, the Company) of beneficial ownership
      (within the meaning of Rule 13d-3 of the Exchange Act) of securities
      possessing more than fifty percent (50%) of the total combined voting power
      of
      the Company’s outstanding securities pursuant to a tender or exchange offer made
      directly to the Company’s stockholders which a majority of the Continuing
      Directors who are not Affiliates or Associates of the offeror do not recommend
      such stockholders accept, or

     

    (ii) a
      change
      in the composition of the Board over a period of twelve (12) months or less
      such
      that a majority of the Board members (rounded up to the next whole number)
      ceases, by reason of one or more contested elections for Board membership,
      to be
      comprised of individuals who are Continuing Directors.

     

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

     

    (i) “Committee”
means
      any committee composed of members of the Board appointed by the Board to
      administer the Plan.

     

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

     

    (k) “Company”
means
      GoFish Corporation, a Nevada corporation, or any successor entity that adopts
      the Plan in connection with a Corporate Transaction.

     

    (l) “Consultant”
means
      any person (other than an Employee or a Director, solely with respect to
      rendering services in such person’s capacity as a Director) who is engaged by
      the Company or any Related Entity to render consulting or advisory services
      to
      the Company or such Related Entity. 

     

    (m) “Continuing
      Directors”
means
      members of the Board who either (i) have been Board members continuously
      for a period of at least twelve (12) months or
      (ii) have been Board members for less than twelve (12) months and were
      elected or nominated for election as Board members by at least a majority of
      the
      Board members described in clause (i) who were still in office at the time
      such election or nomination was approved by the Board.

     

    
      
        
        

      

      
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    (n) “Continuous
      Service”
means
      that the provision of services to the Company or a Related Entity in any
      capacity of Employee, Director or Consultant is not interrupted or terminated.
      In jurisdictions requiring notice in advance of an effective termination as
      an
      Employee, Director or Consultant, Continuous Service shall be deemed terminated
      upon the actual cessation of providing services to the Company or a Related
      Entity notwithstanding any required notice period that must be fulfilled before
      a termination as an Employee, Director or Consultant can be effective under
      Applicable Laws. A Grantee’s Continuous Service shall be deemed to have
      terminated either upon an actual termination of Continuous Service or upon
      the
      entity for which the Grantee provides services ceasing to be a Related Entity.
      Continuous Service shall not be considered interrupted in the case of
      (i) any approved leave of absence, (ii) transfers among the Company,
      any Related Entity, or any successor, in any capacity of Employee, Director
      or
      Consultant, or (iii) any change in status as long as the individual remains
      in the service of the Company or a Related Entity in any capacity of Employee,
      Director or Consultant (except as otherwise provided in the Option Agreement).
      An approved leave of absence shall include sick leave, military leave, or any
      other authorized personal leave. For purposes of each Incentive Stock Option
      granted under the Plan, if such leave exceeds three (3) months, and reemployment
      upon expiration of such leave is not guaranteed by statute or contract, then
      the
      Incentive Stock Option shall be treated as a Non-Qualified Stock Option on
      the
      day three (3) months and one (1) day following the expiration of such three
      (3)
      month period.

     

    (o) “Corporate
      Transaction”
means
      any of the following transactions, provided, however, that the Administrator
      shall determine under parts (iv) and (v) whether multiple transactions are
      related, and its determination shall be final, binding and
      conclusive:

     

    (i) a
      merger
      or consolidation in which the Company is not the surviving entity, except for
      a
      transaction the principal purpose of which is to change the state in which
      the
      Company is incorporated;

     

    (ii) the
      sale,
      transfer or other disposition of all or substantially all of the assets of
      the
      Company;

     

    (iii) the
      complete liquidation or dissolution of the Company; 

     

    (iv) any
      reverse merger or series of related transactions culminating in a reverse merger
      (including, but not limited to, a tender offer followed by a reverse merger)
      in
      which the Company is the surviving entity but (A) the shares of Common
      Stock outstanding immediately prior to such merger are converted or exchanged
      by
      virtue of the merger into other property, whether in the form of securities,
      cash or otherwise, or (B) in which securities possessing more than fifty
      percent (50%) of the total combined voting power of the Company’s outstanding
      securities are transferred to a person or persons different from those who
      held
      such securities immediately prior to such merger or the initial transaction
      culminating in such merger; or

     

    (v) acquisition
      in a single or series of related transactions by any person or related group
      of
      persons (other than the Company or by a Company-sponsored employee benefit
      plan)
      of beneficial ownership (within the meaning of Rule 13d-3 of the Exchange Act)
      of securities possessing more than fifty percent (50%) of the total combined
      voting power of the Company’s outstanding securities but excluding any such
      transaction or series of related transactions that the Administrator determines
      shall not be a Corporate Transaction.

     

    
      
        
        

      

      
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    (p) “Director”
means
      a
      member of the Board or the board of directors of any Related
      Entity.

     

    (q) “Disability”
means
      as defined under the long-term disability policy of the Company or the Related
      Entity to which the Grantee provides services regardless of whether the Grantee
      is covered by such policy. If the Company or the Related Entity to which the
      Grantee provides service does not have a long-term disability plan in place,
      “Disability” means that a Grantee is unable to carry out the responsibilities
      and functions of the position held by the Grantee by reason of any medically
      determinable physical or mental impairment for a period of not less than ninety
      (90) consecutive days. A Grantee will not be considered to have incurred a
      Disability unless he or she furnishes proof of such impairment sufficient to
      satisfy the Administrator in its discretion.

     

    (r) “Employee”
means
      any person, including an Officer or Director, who is in the employ of the
      Company or any Related Entity, subject to the control and direction of the
      Company or any Related Entity as to both the work to be performed and the manner
      and method of performance. The payment of a director’s fee by the Company or a
      Related Entity shall not be sufficient to constitute “employment” by the
      Company.

     

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

     

    (t) “Fair
      Market Value”
means,
      as of any date, the value of Common Stock determined as follows:

     

    (i) If
      the
      Common Stock is listed on one or more established stock exchanges or national
      market systems, including without limitation The NASDAQ Global Select Market,
      The NASDAQ Global Market or The NASDAQ Capital Market of The NASDAQ Stock Market
      LLC, its Fair Market Value shall be the closing sales price for such stock
      (or
      the closing bid, if no sales were reported) as quoted on the principal exchange
      or system on which the Common Stock is listed (as determined by the
      Administrator) on the date of determination (or, if no closing sales price
      or
      closing bid was reported on that date, as applicable, on the last trading date
      such closing sales price or closing bid was reported), as reported in The Wall
      Street Journal or such other source as the Administrator deems
      reliable;

     

    (ii) If
      the
      Common Stock is regularly quoted on an automated quotation system (including
      the
      OTC Bulletin Board) or by a recognized securities dealer, its Fair Market Value
      shall be the closing sales price for such stock as quoted on such system or
      by
      such securities dealer on the date of determination, but if selling prices
      are
      not reported, the Fair Market Value of a share of Common Stock shall be the
      mean
      between the high bid and low asked prices for the Common Stock on the date
      of
      determination (or, if no such prices were reported on that date, on the last
      date such prices were reported), 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 of the type described
      in
      (i) and (ii), above, the Fair Market Value thereof shall be determined by the
      Administrator in good faith and in a manner consistent with Applicable
      Laws.

     

    
      
        
        

      

      
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    (u) “Grantee”
means
      an Employee, Director or Consultant who receives an Option under the
      Plan.

     

    (v) “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, any person sharing the Grantee’s household (other than a tenant
      or employee), a trust in which these persons (or the Grantee) have more than
      fifty percent (50%) of the beneficial interest, a foundation in which these
      persons (or the Grantee) control the management of assets, and any other entity
      in which these persons (or the Grantee) own more than fifty percent (50%) of
      the
      voting interests. 

     

    (w) “Non-Qualified
      Stock Option”
means
      an Option not intended to qualify as an Incentive Stock Option.

     

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

     

    (y) “Option”
means
      a
      Non-Qualified Stock Option. 

     

    (z) “Option
      Agreement”
means
      the written agreement evidencing the grant of an Option executed by the Company
      and the Grantee, including any amendments thereto.

     

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

     

    (bb) “Plan”
means
      this Non-Qualified Stock Incentive Plan.

     

    (cc) “Related
      Entity”
means
      any Parent or Subsidiary of the Company.

     

    (dd) “Replaced”
means
      that pursuant to a Corporate Transaction the Option is replaced with a
      comparable stock option or a cash incentive program of the Company, the
      successor entity (if applicable) or Parent of either of them which preserves
      the
      compensation element of such Option existing at the time of the Corporate
      Transaction and provides for subsequent payout in accordance with the same
      (or a
      more favorable) vesting schedule applicable to such Option. The determination
      of
      Option comparability shall be made by the Administrator and its determination
      shall be final, binding and conclusive.

     

    (ee) “Rule 16b-3”
means
      Rule 16b-3 promulgated under the Exchange Act or any successor
      thereto.

     

    (ff) “Share”
means
      a
      share of the Common Stock.

     

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

     

    
      
        
        

      

      
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    3. Stock
      Subject to the Plan.

     

    (a) Subject
      to the provisions of Section 10
      below,
      the maximum aggregate number of Shares which may be issued pursuant to all
      Options is 3,600,000 Shares.

     

    4. Administration
      of the Plan.

     

    (a) Plan
      Administrator.
      

     

    (i) Administration
      with Respect to Directors and Officers.
      With
      respect to grants of Options to Directors or Employees who are also Officers
      or
      Directors of the Company, the Plan shall be administered by (A) the Board
      or (B) a Committee designated by the Board, which Committee shall be
      constituted in such a manner as to satisfy the Applicable Laws and to permit
      such grants and related transactions under the Plan to be exempt from Section
      16(b) of the Exchange Act in accordance with Rule 16b-3. Once appointed,
      such Committee shall continue to serve in its designated capacity until
      otherwise directed by the Board. 

     

    (ii) Administration
      With Respect to Consultants and Other Employees.
      With
      respect to grants of Options to Employees or Consultants who are neither
      Directors nor Officers of the Company, the Plan shall be administered by (A)
      the
      Board or (B) a Committee designated by the Board, which Committee shall be
      constituted in such a manner as to satisfy the Applicable Laws. Once appointed,
      such Committee shall continue to serve in its designated capacity until
      otherwise directed by the Board. The Board may authorize one or more Officers
      to
      grant such Options and may limit such authority as the Board determines from
      time to time.

     

    (iii) Administration
      Errors.
      In the
      event an Option is granted in a manner inconsistent with the provisions of
      this
      subsection (a), such Option shall be presumptively valid as of its grant
      date to the extent permitted by the Applicable Laws. 

     

    (b) Powers
      of the Administrator.
      Subject
      to Applicable Laws and the provisions of the Plan (including any other powers
      given to the Administrator hereunder), and except as otherwise provided by
      the
      Board, the Administrator shall have the authority, in its
      discretion:

     

    (i) to
      select
      the Employees, Directors and Consultants to whom Options may be granted from
      time to time hereunder;

     

    (ii) to
      determine whether and to what extent Options are granted hereunder;

     

    (iii) to
      determine the number of Shares or the amount of other consideration to be
      covered by each Option granted hereunder;

     

    (iv) to
      approve forms of Option Agreements for use under the Plan;

     

    (v) to
      determine the terms and conditions of any Option granted hereunder;

     

    
      
        
        

      

      
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    (vi) to
      establish additional terms, conditions, rules or procedures to accommodate
      the
      rules or laws of applicable non-U.S. jurisdictions and to afford Grantees
      favorable treatment under such rules or laws; provided, however, that no Option
      shall be granted under any such additional terms, conditions, rules or
      procedures with terms or conditions which are inconsistent with the provisions
      of the Plan;

     

    (vii) to
      amend
      the terms of any outstanding Option granted under the Plan, provided that
      (A) any amendment that would adversely affect the Grantee’s rights under an
      outstanding Option shall not be made without the Grantee’s written
      consent,
      provided, however, (B)
      the
      reduction of the exercise price of any Option awarded under the Plan under
      the
      Plan shall be subject to stockholder approval and (C) canceling an Option
      at a time when its exercise price exceeds the Fair Market Value of the
      underlying Shares, in exchange for another Option shall be subject to
      stockholder approval, unless the cancellation and exchange occurs in connection
      with a Corporate Transaction. Notwithstanding the foregoing, canceling an Option
      in exchange for another Option with an exercise price that is equal to or
      greater than the exercise price of the original Option shall not be subject
      to
      stockholder approval;

     

    (viii) to
      construe and interpret the terms of the Plan and Options, including without
      limitation, any notice of Option or Option Agreement, granted pursuant to
      the Plan;
      and

     

    (ix) to
      take
      such other action, not inconsistent with the terms of the Plan, as the
      Administrator deems appropriate.

     

    The
      express grant in the Plan of any specific power to the Administrator shall
      not
      be construed as limiting any power or authority of the Administrator; provided
      that the Administrator may not exercise any right or power reserved to the
      Board. Any decision made, or action taken, by the Administrator or in connection
      with the administration of this Plan shall be final, conclusive and binding
      on
      all persons having an interest in the Plan.

     

    (c) Indemnification.
      In
      addition to such other rights of indemnification as they may have as members
      of
      the Board or as Officers or Employees of the Company or a Related Entity,
      members of the Board and any Officers or Employees of the Company or a Related
      Entity to whom authority to act for the Board, the Administrator or the Company
      is delegated shall be defended and indemnified by the Company to the extent
      permitted by law on an after-tax basis against all reasonable expenses,
      including attorneys’ fees, actually and necessarily incurred in connection with
      the defense of any claim, investigation, action, suit or proceeding, or in
      connection with any appeal therein, to which they or any of them may be a party
      by reason of any action taken or failure to act under or in connection with
      the
      Plan, or any Option granted hereunder, and against all amounts paid by them
      in
      settlement thereof (provided such settlement is approved by the Company) or
      paid
      by them in satisfaction of a judgment in any such claim, investigation, action,
      suit or proceeding, except in relation to matters as to which it shall be
      adjudged in such claim, investigation, action, suit or proceeding that such
      person is liable for gross negligence, bad faith or intentional misconduct;
      provided, however, that within thirty (30) days after the institution of such
      claim, investigation, action, suit or proceeding, such person shall offer to
      the
      Company, in writing, the opportunity at the Company’s expense to defend the
      same.

     

    
      
        
        

      

      
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    5. Eligibility.
      Options
      may be granted to Employees, Directors and Consultants. An Employee, Director
      or
      Consultant who has been granted an Option may, if otherwise eligible, be granted
      additional Options. Options may be granted to such Employees, Directors or
      Consultants who are residing in non-U.S. jurisdictions as the Administrator
      may
      determine from time to time.

     

    6. Terms
      and Conditions of Options.

     

    (a) Types
      of Options.
      The
      Administrator is authorized under the Plan to Option any type of arrangement
      to
      an Employee, Director or Consultant that is not inconsistent with the provisions
      of the Plan and that by its terms involves or might involve the issuance of
      (i) Shares, (ii) cash or (iii) an Option, or similar right with a
      fixed or variable price related to the Fair Market Value of the Shares and
      with
      an exercise or conversion privilege related to the passage of time, the
      occurrence of one or more events, or the satisfaction of performance criteria
      or
      other conditions. 

     

    (b) Designation
      of Option.
      Each
      Option shall be a Non-Qualified Stock Option. 

     

    (c) Conditions
      of Option.
      Subject
      to the terms of the Plan, the Administrator shall determine the provisions,
      terms, and conditions of each Option including, but not limited to, the Option
      vesting schedule, repurchase provisions, rights of first refusal, forfeiture
      provisions, form of payment (cash, Shares, or other consideration) upon
      settlement of the Option, payment contingencies, and satisfaction of any
      performance criteria. 

     

    (d) Early
      Exercise.
      The
      Option Agreement may, but need not, include a provision whereby the Grantee
      may
      elect at any time while an Employee, Director or Consultant to exercise any
      part
      or all of the Option prior to full vesting of the Option. Any unvested Shares
      received pursuant to such exercise may be subject to a repurchase right in
      favor
      of the Company or a Related Entity or to any other restriction the Administrator
      determines to be appropriate.

     

    (e) Term
      of Option.
      The
      term of each Option shall be the term stated in the Option Agreement, provided,
      however, that the term shall be no more than ten (10) years from the date
      of grant thereof. 

     

    (f) Transferability
      of Options. 
      Options
      shall be transferable (i) by will and by the laws of descent and
      distribution and (ii) during the lifetime of the Grantee, to the extent and
      in the manner authorized by the Administrator by gift or pursuant to a domestic
      relations order to members of the Grantee’s Immediate Family. Notwithstanding
      the foregoing, the Grantee may designate one or more beneficiaries of the
      Grantee’s Option in the event of the Grantee’s death on a beneficiary
      designation form provided by the Administrator. 

     

    (g) Time
      of Granting Options.
      The
      date of grant of an Option shall for all purposes be the date on which the
      Administrator makes the determination to grant such Option, or such other later
      date as is determined by the Administrator. 

     

    
      
        
        

      

      
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    7. Option
      Exercise or Purchase Price, Consideration and Taxes.

     

    (a) Exercise
      or Purchase Price.
      The
      exercise price for an Option shall be determined
      by the Administrator.

     

    (b) Consideration.
      Subject
      to Applicable Laws, the consideration to be paid for the Shares to be issued
      upon exercise or purchase of an Option including the method of payment, shall
      be
      determined by the Administrator. In addition to any other types of consideration
      the Administrator may determine, the Administrator is authorized to accept
      as
      consideration for Shares issued under the Plan the following: 

     

    (i) cash;

     

    (ii) check;
      

     

    (iii) delivery
      of Grantee’s promissory note with such recourse, interest, security, and
      redemption provisions as the Administrator determines as appropriate (but only
      to the extent that the acceptance or terms of the promissory note would not
      violate an Applicable Law);

     

    (iv) surrender
      of Shares or delivery of a properly executed form of attestation of ownership
      of
      Shares as the Administrator may require which have a Fair Market Value on the
      date of surrender or attestation equal to the aggregate exercise price of the
      Shares as to which said Option shall be exercised; 

     

    (v) payment
      through a broker-dealer sale and remittance procedure pursuant to which the
      Grantee (A) shall provide written instructions to a Company designated brokerage
      firm to effect the immediate sale of some or all of the purchased Shares and
      remit to the Company sufficient funds to cover the aggregate exercise price
      payable for the purchased Shares and (B) shall provide written directives to
      the
      Company to deliver the certificates for the purchased Shares directly to such
      brokerage firm in order to complete the sale transaction; 

     

    (vi) payment
      through a “net exercise” such that, without the payment of any funds, the
      Grantee may exercise the Option and receive the net number of Shares equal
      to
      (i) the number of Shares as to which the Option is being exercised,
      multiplied by (ii) a fraction, the numerator of which is the Fair Market
      Value per Share (on such date as is determined by the Administrator) less the
      Exercise Price per Share, and the denominator of which is such Fair Market
      Value
      per Share (the number of net Shares to be received shall be rounded down to
      the
      nearest whole number of Shares); or

     

    (vii) any
      combination of the foregoing methods of payment. 

     

    The
      Administrator may at any time or from time to time, by adoption of or by
      amendment to the standard forms of Option Agreement described in
      Section 4(b)(iv), or by other means, grant Options which do not permit all
      of the foregoing forms of consideration to be used in payment for the Shares
      or
      which otherwise restrict one or more forms of consideration. 

     

    
      
        
        

      

      
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    (c) Taxes.
      No
      Shares shall be delivered under the Plan to any Grantee or other person until
      such Grantee or other person has made arrangements acceptable to the
      Administrator for the satisfaction of any non-U.S., federal, state, or local
      income and employment tax withholding obligations, including, without
      limitation, obligations incident to the receipt of Shares. Upon exercise or
      vesting of an Option the Company shall withhold or collect from the Grantee
      an
      amount sufficient to satisfy such tax obligations, including, but not limited
      to, by surrender of the whole number of Shares
      covered by the Option sufficient to satisfy the minimum applicable tax
      withholding obligations incident to the exercise or vesting of an Option
      (reduced to the lowest whole number of Shares if such number of Shares withheld
      would result in withholding a fractional Share with any remaining tax
      withholding settled in cash).
      

     

    8. Exercise
      of Option.

     

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

     

    (i) Any
      Option granted hereunder shall be exercisable at such times and under such
      conditions as determined by the Administrator under the terms of the Plan and
      specified in the Option Agreement. 

     

    (ii) An
      Option
      shall be deemed to be exercised when written notice of such exercise has been
      given to the Company in accordance with the terms of the Option by the person
      entitled to exercise the Option and full payment for the Shares with respect
      to
      which the Option is exercised has been made, including, to the extent selected,
      use of the broker-dealer sale and remittance procedure to pay the purchase
      price
      as provided in Section 7(b)(v). 

     

    (b) Exercise
      of Option Following Termination of Continuous Service.
      

     

    (i) An
      Option
      may not be exercised after the termination date of such Option set forth in
      the
      Option Agreement and may be exercised following the termination of a Grantee’s
      Continuous Service only to the extent provided in the Option
      Agreement.

     

    (ii) Where
      the
      Option Agreement permits a Grantee to exercise an Option following the
      termination of the Grantee’s Continuous Service for a specified period, the
      Option shall terminate to the extent not exercised on the last day of the
      specified period or the last day of the original term of the Option, whichever
      occurs first.

     

    9. Conditions
      Upon Issuance of Shares.

     

    (a) If
      at any
      time the Administrator determines that the delivery of Shares pursuant to the
      exercise, vesting or any other provision of an Option is or may be unlawful
      under Applicable Laws, the vesting or right to exercise an Option or to
      otherwise receive Shares pursuant to the terms of an Option shall be suspended
      until the Administrator determines that such delivery is lawful and shall be
      further subject to the approval of counsel for the Company with respect to
      such
      compliance. The Company shall have no obligation to effect any registration
      or
      qualification of the Shares under federal or state laws.

     

    
      
        
        

      

      
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    (b) As
      a
      condition to the exercise of an Option, the Company may require the person
      exercising such Option to represent and warrant at the time of any such exercise
      that the Shares are being purchased only for investment and without any present
      intention to sell or distribute such Shares if, in the opinion of counsel for
      the Company, such a representation is required by any Applicable
      Laws.

     

    10. Adjustments
      Upon Changes in Capitalization.
      Subject
      to any required action by the stockholders of the Company and Section 11 hereof,
      the number of Shares covered by each outstanding Option, and the number of
      Shares which have been authorized for issuance under the Plan but as to which
      no
      Options have yet been granted or which have been returned to the Plan, the
      exercise or purchase price of each such outstanding Option, the maximum number
      of Shares with respect to which Options may be granted to any Grantee in any
      calendar year, as well as any other terms that the Administrator determines
      require adjustment shall be proportionately adjusted for (i) 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 Shares,
      or
      similar transaction affecting the Shares, (ii) any other increase or
      decrease in the number of issued Shares effected without receipt of
      consideration by the Company, or (iii) any other transaction with respect
      to Common Stock including a corporate merger, consolidation, acquisition of
      property or stock, separation (including a spin-off or other distribution of
      stock or property), reorganization, liquidation (whether partial or complete)
      or
      any similar transaction; provided, however that conversion of any convertible
      securities of the Company shall not be deemed to have been “effected without
      receipt of consideration.” In connection with the foregoing adjustments, the
      Administrator may, in its discretion, prohibit the exercise of Options or other
      issuance of Shares, cash or other consideration pursuant to Options during
      certain periods of time. Except as the Administrator determines, no issuance
      by
      the Company of shares of any class, or securities convertible into shares of
      any
      class, shall affect, and no adjustment by reason hereof shall be made with
      respect to, the number or price of Shares subject to an Option. 

     

    11. Corporate
      Transactions and Changes in Control.

     

    (a) Termination
      of Option to Extent Not Assumed in Corporate Transaction.
      Effective upon the consummation of a Corporate Transaction, all outstanding
      Options under the Plan shall terminate. However, all such Options shall not
      terminate to the extent they are Assumed in connection with the Corporate
      Transaction.

     

    (b) Acceleration
      of Option Upon Corporate Transaction or Change in Control.
      The
      Administrator shall have the authority, exercisable either in advance of any
      actual or anticipated Corporate Transaction or Change in Control or at the
      time
      of an actual Corporate Transaction or Change in Control and exercisable at
      the
      time of the grant of an Option under the Plan or any time while an Option
      remains outstanding, to provide for the full or partial automatic vesting and
      exercisability of one or more outstanding unvested Options under the Plan in
      connection with a Corporate Transaction or Change in Control, on such terms
      and
      conditions as the Administrator may specify. The Administrator also shall have
      the authority to condition any such Option vesting and exercisability upon
      the
      subsequent termination of the Continuous Service of the Grantee within a
      specified period following the effective date of the Corporate Transaction
      or
      Change in Control. The Administrator may provide that any Options so vested
      in
      connection with a Change in Control, shall remain fully exercisable until the
      expiration or sooner termination of the Option. 

     

    
      
        
        

      

      
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    12. Effective
      Date and Term of Plan.
      The
      Plan shall become effective upon its adoption by the Board. It shall continue
      in
      effect for a term of ten (10) years unless sooner terminated. 

     

    13. Amendment,
      Suspension or Termination of the Plan.

     

    (a) The
      Board
      may at any time amend, suspend or terminate the Plan.

     

    (b) No
      Option
      may be granted during any suspension of the Plan or after termination of the
      Plan.

     

    (c) No
      suspension or termination of the Plan (including termination of the Plan under
      Section 12, above) shall adversely affect any rights under Options already
      granted to a Grantee.

     

    14. Reservation
      of Shares.

     

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

     

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

     

    15. No
      Effect on Terms of Employment/Consulting Relationship.
      The
      Plan shall not confer upon any Grantee any right with respect to the Grantee’s
      Continuous Service, nor shall it interfere in any way with his or her right
      or
      the right of the Company or a Related Entity to terminate the Grantee’s
      Continuous Service at any time, with or without Cause, and with or without
      notice. The ability of the Company or any Related Entity to terminate the
      employment of a Grantee who is employed at will is in no way affected by its
      determination that the Grantee’s Continuous Service has been terminated for
      Cause for the purposes of this Plan.

     

    16. No
      Effect on Retirement and Other Benefit Plans.
      Except
      as specifically provided in a retirement or other benefit plan of the Company
      or
      a Related Entity, Options shall not be deemed compensation for purposes of
      computing benefits or contributions under any retirement plan of the Company
      or
      a Related Entity, and shall not affect any benefits under any other benefit
      plan
      of any kind or any benefit plan subsequently instituted under which the
      availability or amount of benefits is related to level of compensation. The
      Plan
      is not a “Retirement Plan” or “Welfare Plan” under the Employee Retirement
      Income Security Act of 1974, as amended.

     

    
      
        
        

      

      
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    17. Unfunded
      Obligation.
      Grantees shall have the status of general unsecured creditors of the Company.
      Any amounts payable to Grantees pursuant to the Plan shall be unfunded and
      unsecured obligations for all purposes, including, without limitation,
      Title I of the Employee Retirement Income Security Act of 1974, as amended.
      Neither the Company nor any Related Entity shall be required to segregate any
      monies from its general funds, or to create any trusts, or establish any special
      accounts with respect to such obligations. The Company shall retain at all
      times
      beneficial ownership of any investments, including trust investments, which
      the
      Company may make to fulfill its payment obligations hereunder. Any investments
      or the creation or maintenance of any trust or any Grantee account shall not
      create or constitute a trust or fiduciary relationship between the
      Administrator, the Company or any Related Entity and a Grantee, or otherwise
      create any vested or beneficial interest in any Grantee or the Grantee’s
      creditors in any assets of the Company or a Related Entity. The Grantees shall
      have no claim against the Company or any Related Entity for any changes in
      the
      value of any assets that may be invested or reinvested by the Company with
      respect to the Plan.

     

    18. Construction.
      Captions and titles contained herein are for convenience only and shall not
      affect the meaning or interpretation of any provision of the Plan. Except when
      otherwise indicated by the context, the singular shall include the plural and
      the plural shall include the singular. Use of the term “or” is not intended to
      be exclusive, unless the context clearly requires otherwise.

     

    19. Nonexclusivity
      of The Plan.
      Neither
      the adoption of the Plan by the Board, the submission of the Plan to the
      stockholders of the Company for approval, nor any provision of the Plan will
      be
      construed as creating any limitations on the power of the Board to adopt such
      additional compensation arrangements as it may deem desirable, including,
      without limitation, the granting of Options otherwise than under the Plan,
      and
      such arrangements may be either generally applicable or applicable only in
      specific cases.

     

    
      
        
        

      

      
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