exv10w1



 







    Exhibit 10.1



 




    Genitope
    Corporation

    



 




    2007
    Equity Incentive Plan

    



 




    Adopted
    By Board: April 27, 2007

    





    Approved
    By
    Stockholders: June 11,
    2007



 


		
	
    1.  
	
    General.




 



    (a) Amendment and Restatement of 2003
    Plan.  This Plan was adopted by the Board as an
    amendment and restatement of the Genitope Corporation 2003
    Equity Incentive Plan (the “2003 Plan”).
    All outstanding stock awards granted under the 2003 Plan shall
    remain subject to the terms of the 2003 Plan, except that the
    Board may elect to extend one or more of the features of this
    Plan to stock awards granted under the 2003 Plan. All Stock
    Awards granted subsequent to the Effective Date of this Plan
    shall be subject to the terms of this Plan.



 



    (b) Eligible Award Recipients.  The
    persons eligible to receive Awards are Employees, Directors and
    Consultants.



 



    (c) Available Awards.  The Plan provides
    for the grant of the following Awards: (i) Options,
    (ii) Restricted Stock Awards, (iii) Restricted Stock
    Unit Awards, (iv) Stock Appreciation Rights,
    (v) Performance Stock Awards, (vi) Performance Cash
    Awards, and (vii) Other Stock Awards.



 



    (d) General Purpose.  The Company, by
    means of the Plan, seeks to secure and retain the services of
    the group of persons eligible to receive Awards as set forth in
    Section 5(a), to provide incentives for such persons to
    exert maximum efforts for the success of the Company and any
    Affiliate and to provide a means by which such eligible
    recipients may be given an opportunity to benefit from increases
    in value of the Common Stock through the granting of Stock
    Awards.



 


		
	
    2.  
	
    Administration.




 



    (a) Administration by Board.  The Board
    shall administer the Plan unless and until the Board delegates
    administration of the Plan to a Committee or Committees, as
    provided in Section 6(c).



 



    (b) Powers of Board.  The Board shall have
    the power, subject to, and within the limitations of, the
    express provisions of the Plan:



 



    (i) To determine from time to time (A) which of the
    persons eligible under the Plan shall be granted Awards;
    (B) when and how each Award shall be granted; (C) what
    type or combination of types of Award shall be granted;
    (D) the provisions of each Award granted (which need not be
    identical), including the time or times when a person shall be
    permitted to receive cash or Common Stock pursuant to a Stock
    Award; and (E) the number of shares of Common Stock with
    respect to which a Stock Award shall be granted to each such
    person.



 



    (ii) To construe and interpret the Plan and Awards, and to
    establish, amend and revoke rules and regulations for the
    Plan’s administration. The Board, in the exercise of this
    power, may correct any defect, omission or inconsistency in the
    Plan or in any Stock Award Agreement or in the written terms of
    a Performance Cash Award, in a manner and to the extent it shall
    deem necessary or expedient to make the Plan or Award fully
    effective.



 



    (iii) To settle all controversies regarding the Plan and
    Awards.



 



    (iv) To accelerate the time at which a Stock Award may
    first be exercised or the time during which an Award or any part
    thereof will vest in accordance with the Plan, notwithstanding
    the provisions in the Award stating the time at which it may
    first be exercised or the time during which it will vest.



 



    (v) To suspend or terminate the Plan at any time.
    Suspension or termination of the Plan shall not impair rights
    and obligations under any Stock Award granted while the Plan is
    in effect except with the written consent of the affected
    Participant.




    

    1








 





 



    (vi) To amend the Plan in any respect the Board deems
    necessary or advisable, including, without limitation, relating
    to certain nonqualified deferred compensation under
    Section 409A of the Code and to bring the Plan
    and/or Stock
    Awards into compliance therewith, subject to the limitations, if
    any, of applicable law. However, except as provided in
    Section 13(a) relating to Capitalization Adjustments,
    stockholder approval shall be required for any amendment of the
    Plan that either (A) materially increases the number of
    shares of Common Stock available for issuance under the Plan,
    (B) materially expands the class of individuals eligible to
    receive Awards under the Plan, (C) materially increases the
    benefits accruing to Participants under the Plan or materially
    reduces the price at which shares of Common Stock may be issued
    or purchased under the Plan, (D) materially extends the
    term of the Plan, or (E) expands the types of Awards
    available for issuance under the Plan, but only to the extent
    required by applicable law or listing requirements. Except as
    provided above, rights under any Award granted before amendment
    of the Plan shall not be impaired by any amendment of the Plan
    unless (1) the Company requests the consent of the affected
    Participant, and (2) such Participant consents in writing.



 



    (vii) To submit any amendment to the Plan for stockholder
    approval, including, but not limited to, amendments to the Plan
    intended to satisfy the requirements of
    (A) Section 162(m) of the Code and the regulations
    thereunder regarding the exclusion of performance-based
    compensation from the limit on corporate deductibility of
    compensation paid to Covered Employees, or
    (B) Rule 16b-3.



 



    (viii) To approve forms of Award Agreements for use under
    the Plan and to amend the terms of any one or more Awards,
    including, but not limited to, amendments to provide terms more
    favorable to the Participant than previously provided in the
    Award Agreement, subject to any specified limits in the Plan
    that are not subject to Board discretion; provided
    however, that the Participant’s rights under any Award
    shall not be impaired by any such amendment unless (A) the
    Company requests the consent of the affected Participant, and
    (B) such Participant consents in writing. Notwithstanding
    the foregoing, subject to the limitations of applicable law, if
    any, and without the affected Participant’s consent, the
    Board may amend the terms of any one or more Awards if necessary
    to bring the Award into compliance with Section 409A of the
    Code and Department of Treasury regulations and other
    interpretive guidance issued thereunder, including without
    limitation any such regulations or other guidance that may be
    issued or amended after the Effective Date.



 



    (ix) Generally, to exercise such powers and to perform such
    acts as the Board deems necessary or expedient to promote the
    best interests of the Company and that are not in conflict with
    the provisions of the Plan or Awards.



 



    (x) To adopt such procedures and
    sub-plans as
    are necessary or appropriate to permit participation in the Plan
    by Employees, Directors or Consultants who are foreign nationals
    or employed outside the United States.



 



    (xi) To effect, at any time and from time to time, with the
    consent of any adversely affected Optionholder, (A) the
    reduction of the exercise price of any outstanding Option under
    the Plan; (B) the cancellation of any outstanding Option
    under the Plan and the grant in substitution therefor of
    (1) a new Option under the Plan or another equity plan of
    the Company covering the same or a different number of shares of
    Common Stock, (2) a Restricted Stock Award (including a
    stock bonus), (3) a Stock Appreciation Right,
    (4) Restricted Stock Unit, (5) an Other Stock Award,
    (6) cash
    and/or
    (7) other valuable consideration (as determined by the
    Board, in its sole discretion); or (C) any other action
    that is treated as a repricing under generally accepted
    accounting principles.



 



    (c) Delegation to Committee.



 



    (i) General.  The Board may delegate some
    or all of the administration of the Plan to a Committee or
    Committees. If administration of the Plan is delegated to a
    Committee, the Committee shall have, in connection with the
    administration of the Plan, the powers theretofore possessed by
    the Board that have been delegated to the Committee, including
    the power to delegate to a subcommittee of the Committee any of
    the administrative powers the Committee is authorized to
    exercise (and references in this Plan to the Board shall
    thereafter be to the Committee or subcommittee), subject,
    however, to such resolutions, not inconsistent with the
    provisions of the Plan, as may be adopted from time to time by
    the Board. The Board may retain the authority to concurrently
    administer




    

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    the Plan with the Committee and may, at any time, revest in the
    Board some or all of the powers previously delegated to the
    Committee, Committees, subcommittee or subcommittees.



 



    (ii) Section 162(m) and
    Rule 16b-3
    Compliance.  In the sole discretion of the Board,
    the Committee may consist solely of two (2) or more Outside
    Directors, in accordance with Section 162(m) of the Code,
    or solely of two (2) or more Non-Employee Directors, in
    accordance with
    Rule 16b-3.
    In addition, the Board or the Committee, in its sole discretion,
    may (A) delegate to a Committee which need not consist of
    Outside Directors the authority to grant Awards to eligible
    persons who are either (1) not then Covered Employees and
    are not expected to be Covered Employees at the time of
    recognition of income resulting from such Stock Award, or
    (2) not persons with respect to whom the Company wishes to
    comply with Section 162(m) of the Code, or
    (B) delegate to a Committee which need not consist of
    Non-Employee Directors the authority to grant Stock Awards to
    eligible persons who are not then subject to Section 16 of
    the Exchange Act.



 



    (d) Delegation to an Officer.  The Board
    may delegate to one (1) or more Officers the authority to
    do one or both of the following (i) designate Employees who
    are not Officers to be recipients of Options (and, to the extent
    permitted by applicable law, other Stock Awards) and the terms
    thereof, and (ii) determine the number of shares of Common
    Stock to be subject to such Stock Awards granted to such
    Employees; provided, however, that the Board resolutions
    regarding such delegation shall specify the total number of
    shares of Common Stock that may be subject to the Stock Awards
    granted by such Officer and that such Officer may not grant a
    Stock Award to himself or herself. Notwithstanding anything to
    the contrary in this Section 6(d), the Board may not
    delegate to an Officer authority to determine the Fair Market
    Value pursuant to Section 17(u)(ii) below.



 



    (e) Effect of Board’s Decision.  All
    determinations, interpretations and constructions made by the
    Board in good faith shall not be subject to review by any person
    and shall be final, binding and conclusive on all persons.



 


		
	
    3.  
	
    Shares Subject
    to the Plan.




 



    (a) Share Reserve.  Subject to the
    provisions of Section 9 relating to adjustments upon
    changes in stock, the aggregate number of shares of Common Stock
    of the Company that may be issued pursuant to Stock Awards shall
    not exceed two million eighty-three thousand three hundred
    thirty-three (2,083,333) shares of Common Stock, plus an annual
    increase to be added on January 1st of each year,
    commencing on January 1, 2004 and ending on January 1,
    2013 (each such day, a “Calculation
    Date”), equal to five percent (5%) of the shares of
    Common Stock outstanding on each such Calculation Date (rounded
    down to the nearest whole share). Notwithstanding the foregoing,
    the Board may act, prior to the first day of any fiscal year of
    the Company, to increase the share reserve by such number of
    shares of Common Stock as the Board shall determine, which
    number shall be less than the amount described in the foregoing
    sentence



 



    For clarity, the limitation in this Section 3(a) is a
    limitation in the number of shares of Common Stock that may be
    issued pursuant to the Plan. Accordingly, this Section 3(a)
    does not limit the granting of Stock Awards except as provided
    in Section 7(a). Shares may be issued in connection with a
    merger or acquisition as permitted by NASD
    Rule 4350(i)(1)(A)(iii) or, if applicable, NYSE Listed
    Company Manual Section 303A.08, or AMEX Company Guide
    Section 711, and such issuance shall not reduce the number
    of shares available for issuance under the Plan. Furthermore, if
    a Stock Award (i) expires or otherwise terminates without
    having been exercised in full or (ii) is settled in cash
    (i.e., the holder of the Stock Award receives cash rather
    than stock), such expiration, termination or settlement shall
    not reduce (or otherwise offset) the number of shares Common
    Stock that may be issued pursuant to the Plan.



 



    (b) Reversion of Shares to the Share
    Reserve.  If any shares of common stock issued
    pursuant to a Stock Award are forfeited back to the Company
    because of the failure to meet a contingency or condition
    required to vest such shares in the Participant, then the shares
    which are forfeited shall revert to and again become available
    for issuance under the Plan. Also, any shares reacquired by the
    Company pursuant to Section 8(f) or as consideration for
    the exercise of an Option shall again become available for
    issuance under the Plan.



 



    (c) Section 162(m) Limitation on Annual
    Grants.  Subject to the provisions of
    Section 13(a) relating to Capitalization Adjustments, at
    such time as the Company may be subject to the applicable
    provisions of Section 162(m) of the Code, no Employee shall
    be eligible to be granted during any calendar year Stock Awards
    whose




    

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    value is determined by reference to an increase over an exercise
    or strike price of at least one hundred percent (100%) of the
    Fair Market Value on the date the Stock Award is granted
    covering more than five million (5,000,000) shares of Common
    Stock.



 



    (d) Source of Shares.  The stock issuable
    under the Plan shall be shares of authorized but unissued or
    reacquired Common Stock, including shares repurchased by the
    Company on the market or otherwise.



 


		
	
    4.  
	
    Eligibility.




 



    (a) Eligibility for Stock Awards.  Stock
    Awards may be granted to Employees, Directors and Consultants.



 



    (b) Consultants.  A Consultant shall be
    eligible for the grant of a Stock Award only if, at the time of
    grant, a
    Form S-8
    Registration Statement under the Securities Act
    (“Form S-8”)
    is available to register either the offer or the sale of the
    Company’s securities to such Consultant because of the
    nature of the services that the Consultant is providing to the
    Company, because the Consultant is a natural person, or because
    of any other rule governing the use of
    Form S-8.



 


		
	
    5.  
	
    Option
    Provisions.




 



    Each Option shall be in such form and shall contain such terms
    and conditions as the Board shall deem appropriate. All Options
    shall be designated as nonstatutory stock options at the time of
    grant. The provisions of separate Options need not be identical;
    provided, however, that each Option Agreement shall
    include (through incorporation of provisions hereof by reference
    in the Option Agreement or otherwise) the substance of each of
    the following provisions:



 



    (a) Term.  The Board shall determine the
    term of any Option.



 



    (b) Exercise Price.  The exercise price of
    each Option shall be not less than one hundred percent (100%) of
    the Fair Market Value of the Common Stock subject to the Option
    on the date the Option is granted. Notwithstanding the
    foregoing, an Option may be granted with an exercise price lower
    than one hundred percent (100%) of the Fair Market Value of the
    Common Stock subject to the Option if such Option is granted
    pursuant to an assumption of or substitution for another option
    in a manner consistent with the provisions of
    Section 424(a) of the Code.



 



    (c) Consideration.  The purchase price of
    Common Stock acquired pursuant to the exercise of an Option
    shall be paid, to the extent permitted by applicable law and as
    determined by the Board in its sole discretion, by any
    combination of the methods of payment set forth below. The Board
    shall have the authority to grant Options that do not permit all
    of the following methods of payment (or otherwise restrict the
    ability to use certain methods) and to grant Options that
    require the consent of the Company to utilize a particular
    method of payment. The methods of payment permitted by this
    Section 5(c) are:



 



    (i) by cash, check, bank draft or money order payable to
    the Company;



 



    (ii) pursuant to a program developed under
    Regulation T as promulgated by the Federal Reserve Board
    that, prior to the issuance of the stock subject to the Option,
    results in either the receipt of cash (or check) by the Company
    or the receipt of irrevocable instructions to pay the aggregate
    exercise price to the Company from the sales proceeds;



 



    (iii) by delivery to the Company (either by actual delivery
    or attestation) of shares of Common Stock;



 



    (iv) by a “net exercise” arrangement pursuant to
    which the Company will reduce the number of shares of Common
    Stock issued upon exercise by the largest whole number of shares
    with a Fair Market Value that does not exceed the aggregate
    exercise price; provided, however, that the Company shall
    accept a cash or other payment from the Participant to the
    extent of any remaining balance of the aggregate exercise price
    not satisfied by such reduction in the number of whole shares to
    be issued; provided, further, that shares of Common Stock
    will no longer be outstanding under an Option and will not be
    exercisable thereafter to the extent that (A) shares are
    used to pay the exercise price pursuant to the “net




    

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    exercise,” (B) shares are delivered to the Participant
    as a result of such exercise, and (C) shares are withheld
    to satisfy tax withholding obligations; or



 



    (v) in any other form of legal consideration that may be
    acceptable to the Board.



 



    (d) Transferability of Options.  The Board
    may, in its sole discretion, impose such limitations on the
    transferability of Options as the Board shall determine. In the
    absence of such a determination by the Board to the contrary,
    the following restrictions on the transferability of Options
    shall apply:



 



    (i) Restrictions on Transfer.  An Option
    shall not be transferable except by will or by the laws of
    descent and distribution and shall be exercisable during the
    lifetime of the Optionholder only by the Optionholder;
    provided, however, that the Board may, in its sole
    discretion, permit transfer of the Option in a manner consistent
    with applicable tax and securities laws upon the
    Optionholder’s request.



 



    (ii) Domestic Relations
    Orders.  Notwithstanding the foregoing, an Option
    may be transferred pursuant to a domestic relations order.



 



    (iii) Beneficiary
    Designation.  Notwithstanding the foregoing, the
    Optionholder may, by delivering written notice to the Company,
    in a form provided by or otherwise satisfactory to the Company,
    designate a third party who, in the event of the death of the
    Optionholder, shall thereafter be the beneficiary of an Option
    with the right to exercise the Option and receive the Common
    Stock or other consideration resulting from an Option exercise.



 



    (e) Vesting Generally.  The total number
    of shares of Common Stock subject to an Option may vest and
    therefore become exercisable in periodic installments that may
    or may not be equal. The Option may be subject to such other
    terms and conditions on the time or times when it may or may not
    be exercised (which may be based on the satisfaction of
    Performance Goals or other criteria) as the Board may deem
    appropriate. The vesting provisions of individual Options may
    vary. The provisions of this Section 9(e) are subject to
    any Option provisions governing the minimum number of shares of
    Common Stock as to which an Option may be exercised.



 



    (f) Termination of Continuous
    Service.  Except as otherwise provided in the
    applicable Option Agreement or other agreement between the
    Optionholder and the Company, in the event that an
    Optionholder’s Continuous Service terminates (other than
    upon the Optionholder’s death or Disability), the
    Optionholder may exercise his or her Option (to the extent that
    the Optionholder was entitled to exercise such Option as of the
    date of termination of Continuous Service) but only within such
    period of time ending on the earlier of (i) the date three
    (3) months following the termination of the
    Optionholder’s Continuous Service (or such longer or
    shorter period specified in the Option Agreement), or
    (ii) the expiration of the term of the Option as set forth
    in the Option Agreement. If, after termination of Continuous
    Service, the Optionholder does not exercise his or her Option
    within the time specified herein or in the Option Agreement (as
    applicable), the Option shall terminate.



 



    (g) Extension of Termination Date.  An
    Optionholder’s Option Agreement may provide that if the
    exercise of the Option following the termination of the
    Optionholder’s Continuous Service (other than upon the
    Optionholder’s death or Disability) would be prohibited at
    any time solely because the issuance of shares of Common Stock
    would violate the registration requirements under the Securities
    Act, then the Option shall terminate on the earlier of
    (i) the expiration of a period of three (3) months
    after the termination of the Optionholder’s Continuous
    Service during which the exercise of the Option would not be in
    violation of such registration requirements, or (ii) the
    expiration of the term of the Option as set forth in the Option
    Agreement.



 



    (h) Disability of Optionholder.  In the
    event that an Optionholder’s Continuous Service terminates
    as a result of the Optionholder’s Disability, the
    Optionholder may exercise his or her Option (to the extent that
    the Optionholder was entitled to exercise such Option as of the
    date of termination of Continuous Service), but only within such
    period of time ending on the earlier of (i) the date twelve
    (12) months following such termination of Continuous
    Service (or such longer or shorter period specified in the
    Option Agreement), or (ii) the expiration of the term of
    the Option as set forth in the Option Agreement. If, after
    termination of




    

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    Continuous Service, the Optionholder does not exercise his or
    her Option within the time specified herein or in the Option
    Agreement (as applicable), the Option shall terminate.



 



    (i) Death of Optionholder.  In the event
    that (i) an Optionholder’s Continuous Service
    terminates as a result of the Optionholder’s death, or
    (ii) the Optionholder dies within the period (if any)
    specified in the Option Agreement after the termination of the
    Optionholder’s Continuous Service for a reason other than
    death, then the Option may be exercised (to the extent the
    Optionholder was entitled to exercise such Option as of the date
    of death) by the Optionholder’s estate, by a person who
    acquired the right to exercise the Option by bequest or
    inheritance or by a person designated as the beneficiary of the
    Option upon the Optionholder’s death, but only within the
    period ending on the earlier of (A) the date eighteen
    (18) months following the date of death (or such longer or
    shorter period specified in the Option Agreement), or
    (B) the expiration of the term of such Option as set forth
    in the Option Agreement. If, after the Optionholder’s
    death, the Option is not exercised within the time specified
    herein or in the Option Agreement (as applicable), the Option
    shall terminate. If the Optionholder designates a third party
    beneficiary of the Option in accordance with
    Section 5(d)(iii), then upon the death of the Optionholder
    such designated beneficiary shall have the sole right to
    exercise the Option and receive the Common Stock or other
    consideration resulting from an Option exercise.



 



    (j) Non-Exempt Employees.  No Option
    granted to an Employee that is a non-exempt employee for
    purposes of the Fair Labor Standards Act shall be first
    exercisable for any shares of Common Stock until at least six
    (6) months following the date of grant of the Option. The
    foregoing provision is intended to operate so that any income
    derived by a non-exempt employee in connection with the exercise
    or vesting of an Option will be exempt from his or her regular
    rate of pay.



 


		
	
    6.  
	
    Provisions
    of Stock Awards other than Options.




 



    (a) Restricted Stock Awards.  Each
    Restricted Stock Award Agreement shall be in such form and shall
    contain such terms and conditions as the Board shall deem
    appropriate. To the extent consistent with the Company’s
    Bylaws, at the Board’s election, shares of Common Stock may
    be (x) held in book entry form subject to the
    Company’s instructions until any restrictions relating to
    the Restricted Stock Award lapse; or (y) evidenced by a
    certificate, which certificate shall be held in such form and
    manner as determined by the Board. The terms and conditions of
    Restricted Stock Award Agreements may change from time to time,
    and the terms and conditions of separate Restricted Stock Award
    Agreements need not be identical; provided, however, that
    each Restricted Stock Award Agreement shall include (through
    incorporation of provisions hereof by reference in the agreement
    or otherwise) the substance of each of the following provisions:



 



    (i) Consideration.  A Restricted Stock
    Award may be awarded in consideration for (A) past or
    future services actually or to be rendered to the Company or an
    Affiliate, or (B) any other form of legal consideration
    that may be acceptable to the Board in its sole discretion and
    permissible under applicable law.



 



    (ii) Vesting.  Shares of Common Stock
    awarded under the Restricted Stock Award Agreement may be
    subject to forfeiture to the Company in accordance with a
    vesting schedule to be determined by the Board.



 



    (iii) Termination of Participant’s Continuous
    Service.  In the event a Participant’s
    Continuous Service terminates, the Company may receive via a
    forfeiture condition, any or all of the shares of Common Stock
    held by the Participant which have not vested as of the date of
    termination of Continuous Service under the terms of the
    Restricted Stock Award Agreement.



 



    (iv) Transferability.  Rights to acquire
    shares of Common Stock under the Restricted Stock Award
    Agreement shall be transferable by the Participant only upon
    such terms and conditions as are set forth in the Restricted
    Stock Award Agreement, as the Board shall determine in its sole
    discretion, so long as Common Stock awarded under the Restricted
    Stock Award Agreement remains subject to the terms of the
    Restricted Stock Award Agreement.



 



    (b) Restricted Stock Unit Awards.  Each
    Restricted Stock Unit Award Agreement shall be in such form and
    shall contain such terms and conditions as the Board shall deem
    appropriate. The terms and conditions of Restricted Stock Unit
    Award Agreements may change from time to time, and the terms and
    conditions of separate Restricted




    

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    Stock Unit Award Agreements need not be identical; provided,
    however, that each Restricted Stock Unit Award Agreement
    shall include (through incorporation of the provisions hereof by
    reference in the Agreement or otherwise) the substance of each
    of the following provisions:



 



    (i) Consideration.  At the time of grant
    of a Restricted Stock Unit Award, the Board will determine the
    consideration, if any, to be paid by the Participant upon
    delivery of each share of Common Stock subject to the Restricted
    Stock Unit Award. The consideration to be paid (if any) by the
    Participant for each share of Common Stock subject to a
    Restricted Stock Unit Award may be paid in any form of legal
    consideration that may be acceptable to the Board in its sole
    discretion and permissible under applicable law.



 



    (ii) Vesting.  At the time of the grant of
    a Restricted Stock Unit Award, the Board may impose such
    restrictions or conditions to the vesting of the Restricted
    Stock Unit Award as it, in its sole discretion, deems
    appropriate.



 



    (iii) Payment.  A Restricted Stock Unit
    Award may be settled by the delivery of shares of Common Stock,
    their cash equivalent, any combination thereof or in any other
    form of consideration, as determined by the Board and contained
    in the Restricted Stock Unit Award Agreement.



 



    (iv) Additional Restrictions.  At the time
    of the grant of a Restricted Stock Unit Award, the Board, as it
    deems appropriate, may impose such restrictions or conditions
    that delay the delivery of the shares of Common Stock (or their
    cash equivalent) subject to a Restricted Stock Unit Award to a
    time after the vesting of such Restricted Stock Unit Award.



 



    (v) Dividend Equivalents.  Dividend
    equivalents may be credited in respect of shares of Common Stock
    covered by a Restricted Stock Unit Award, as determined by the
    Board and contained in the Restricted Stock Unit Award
    Agreement. At the sole discretion of the Board, such dividend
    equivalents may be converted into additional shares of Common
    Stock covered by the Restricted Stock Unit Award in such manner
    as determined by the Board. Any additional shares covered by the
    Restricted Stock Unit Award credited by reason of such dividend
    equivalents will be subject to all the terms and conditions of
    the underlying Restricted Stock Unit Award Agreement to which
    they relate.



 



    (vi) Termination of Participant’s Continuous
    Service.  Except as otherwise provided in the
    applicable Restricted Stock Unit Award Agreement, such portion
    of the Restricted Stock Unit Award that has not vested will be
    forfeited upon the Participant’s termination of Continuous
    Service.



 



    (vii) Compliance with Section 409A of the
    Code.  Notwithstanding anything to the contrary
    set forth herein, any Restricted Stock Unit Award granted under
    the Plan that is not exempt from the requirements of
    Section 409A of the Code shall contain such provisions so
    that such Restricted Stock Unit Award will comply with the
    requirements of Section 409A of the Code. Such
    restrictions, if any, shall be determined by the Board and
    contained in the Restricted Stock Unit Award Agreement
    evidencing such Restricted Stock Unit Award. For example, such
    restrictions may include, without limitation, a requirement that
    any Common Stock that is to be issued in a year following the
    year in which the Restricted Stock Unit Award vests must be
    issued in accordance with a fixed pre-determined schedule.



 



    (c) Stock Appreciation Rights.  Each Stock
    Appreciation Right Agreement shall be in such form and shall
    contain such terms and conditions as the Board shall deem
    appropriate. Stock Appreciation Rights may be granted as
    stand-alone Stock Awards or in tandem with other Stock Awards.
    The terms and conditions of Stock Appreciation Right Agreements
    may change from time to time, and the terms and conditions of
    separate Stock Appreciation Right Agreements need not be
    identical; provided, however, that each Stock
    Appreciation Right Agreement shall include (through
    incorporation of the provisions hereof by reference in the
    Agreement or otherwise) the substance of each of the following
    provisions:



 



    (i) Term.  No Stock Appreciation Right
    shall be exercisable after the expiration of ten (10) years
    from the date of its grant or such shorter period specified in
    the Stock Appreciation Right Agreement.



 



    (ii) Strike Price.  Each Stock
    Appreciation Right will be denominated in shares of Common Stock
    equivalents. The strike price of each Stock Appreciation Right
    shall not be less than one hundred percent




    

    7








 






    (100%) of the Fair Market Value of the Common Stock equivalents
    subject to the Stock Appreciation Right on the date of grant.



 



    (iii) Calculation of Appreciation.  The
    appreciation distribution payable on the exercise of a Stock
    Appreciation Right will be not greater than an amount equal to
    the excess of (A) the aggregate Fair Market Value (on the
    date of the exercise of the Stock Appreciation Right) of a
    number of shares of Common Stock equal to the number of Common
    Stock equivalents in which the Participant is vested under such
    Stock Appreciation Right, and with respect to which the
    Participant is exercising the Stock Appreciation Right on such
    date, over (B) the strike price that will be determined by
    the Board at the time of grant of the Stock Appreciation Right.



 



    (iv) Vesting.  At the time of the grant of
    a Stock Appreciation Right, the Board may impose such
    restrictions or conditions to the vesting of such Stock
    Appreciation Right as it, in its sole discretion, deems
    appropriate.



 



    (v) Exercise.  To exercise any outstanding
    Stock Appreciation Right, the Participant must provide written
    notice of exercise to the Company in compliance with the
    provisions of the Stock Appreciation Right Agreement evidencing
    such Stock Appreciation Right.



 



    (vi) Payment.  The appreciation
    distribution in respect to a Stock Appreciation Right may be
    paid in Common Stock, in cash, in any combination of the two or
    in any other form of consideration, as determined by the Board
    and contained in the Stock Appreciation Right Agreement
    evidencing such Stock Appreciation Right.



 



    (vii) Termination of Continuous
    Service.  In the event that a Participant’s
    Continuous Service terminates, the Participant may exercise his
    or her Stock Appreciation Right (to the extent that the
    Participant was entitled to exercise such Stock Appreciation
    Right as of the date of termination) but only within such period
    of time ending on the earlier of (A) the date three
    (3) months following the termination of the
    Participant’s Continuous Service (or such longer or shorter
    period specified in the Stock Appreciation Right Agreement), or
    (B) the expiration of the term of the Stock Appreciation
    Right as set forth in the Stock Appreciation Right Agreement.
    If, after termination, the Participant does not exercise his or
    her Stock Appreciation Right within the time specified herein or
    in the Stock Appreciation Right Agreement (as applicable), the
    Stock Appreciation Right shall terminate.



 



    (viii) Compliance with Section 409A of the
    Code.  Notwithstanding anything to the contrary
    set forth herein, any Stock Appreciation Rights granted under
    the Plan that are not exempt from the requirements of
    Section 409A of the Code shall contain such provisions so
    that such Stock Appreciation Rights will comply with the
    requirements of Section 409A of the Code. Such
    restrictions, if any, shall be determined by the Board and
    contained in the Stock Appreciation Right Agreement evidencing
    such Stock Appreciation Right. For example, such restrictions
    may include, without limitation, a requirement that a Stock
    Appreciation Right that is to be paid wholly or partly in cash
    must be exercised and paid in accordance with a fixed
    pre-determined schedule.



 



    (d) Performance Awards.



 



    (i) Performance Stock Awards.  A
    Performance Stock Award is a Stock Award that may be granted,
    may vest, or may be exercised based upon the attainment during a
    Performance Period of certain Performance Goals. A Performance
    Stock Award may, but need not, require the completion of a
    specified period of Continuous Service. The length of any
    Performance Period, the Performance Goals to be achieved during
    the Performance Period, and the measure of whether and to what
    degree such Performance Goals have been attained shall be
    conclusively determined by the Committee in its sole discretion.
    The maximum number of shares that may be granted to any
    Participant in a calendar year attributable to Stock Awards
    described in this Section 6(d)(i) shall not exceed one
    hundred thousand (100,000) shares of Common Stock. In addition,
    to the extent permitted by applicable law and the applicable
    Award Agreement, the Board may determine that cash may be used
    in payment of Performance Stock Awards.




    

    8








 





 



    (ii) Performance Cash Awards.  A
    Performance Cash Award is a cash award that may be granted upon
    the attainment during a Performance Period of certain
    Performance Goals. A Performance Cash Award may also require the
    completion of a specified period of Continuous Service. The
    length of any Performance Period, the Performance Goals to be
    achieved during the Performance Period, and the measure of
    whether and to what degree such Performance Goals have been
    attained shall be conclusively determined by the Committee in
    its sole discretion. The maximum value that may be granted to
    any Participant in a calendar year attributable to cash awards
    described in this Section 6(d)(ii) shall not exceed three
    hundred seventy-five thousand dollars ($375,000). The Board may
    provide for or, subject to such terms and conditions as the
    Board may specify, may permit a Participant to elect for, the
    payment of any Performance Cash Award to be deferred to a
    specified date or event. The Committee may specify the form of
    payment of Performance Cash Awards, which may be cash or other
    property, or may provide for a Participant to have the option
    for his or her Performance Cash Award, or such portion thereof
    as the Board may specify, to be paid in whole or in part in cash
    or other property. In addition, to the extent permitted by
    applicable law and the applicable Award Agreement, the Board may
    determine that Common Stock authorized under this Plan may be
    used in payment of Performance Cash Awards, including additional
    shares in excess of the Performance Cash Award as an inducement
    to hold shares of Common Stock.



 



    (e) Other Stock Awards.  Other forms of
    Stock Awards valued in whole or in part by reference to, or
    otherwise based on, Common Stock may be granted either alone or
    in addition to Stock Awards provided for under Section 9
    and the preceding provisions of this Section 10. Subject to
    the provisions of the Plan, the Board shall have sole and
    complete authority to determine the persons to whom and the time
    or times at which such Other Stock Awards will be granted, the
    number of shares of Common Stock (or the cash equivalent
    thereof) to be granted pursuant to such Other Stock Awards and
    all other terms and conditions of such Other Stock Awards.



 


		
	
    7.  
	
    Covenants
    of the Company.




 



    (a) Availability of Shares.  During the
    terms of the Stock Awards, the Company shall keep available at
    all times the number of shares of Common Stock reasonably
    required to satisfy such Stock Awards.



 



    (b) Securities Law Compliance.  The
    Company shall seek to obtain from each regulatory commission or
    agency having jurisdiction over the Plan such authority as may
    be required to grant Stock Awards and to issue and sell shares
    of Common Stock upon exercise of the Stock Awards; provided,
    however, that this undertaking shall not require the Company
    to register under the Securities Act the Plan, any Stock Award
    or any Common Stock issued or issuable pursuant to any such
    Stock Award. If, after reasonable efforts, the Company is unable
    to obtain from any such regulatory commission or agency the
    authority that counsel for the Company deems necessary for the
    lawful issuance and sale of Common Stock under the Plan, the
    Company shall be relieved from any liability for failure to
    issue and sell Common Stock upon exercise of such Stock Awards
    unless and until such authority is obtained.



 



    (c) No Obligation to Notify.  The Company
    shall have no duty or obligation to any holder of a Stock Award
    to advise such holder as to the time or manner of exercising
    such Stock Award. Furthermore, the Company shall have no duty or
    obligation to warn or otherwise advise such holder of a pending
    termination or expiration of a Stock Award or a possible period
    in which the Stock Award may not be exercised. The Company has
    no duty or obligation to minimize the tax consequences of a
    Stock Award to the holder of such Stock Award.



 


		
	
    8.  
	
    Miscellaneous.




 



    (a) Use of Proceeds from Sales of Common
    Stock.  Proceeds from the sale of shares of Common
    Stock pursuant to Stock Awards shall constitute general funds of
    the Company.



 



    (b) Corporate Action Constituting Grant of Stock
    Awards.  Corporate action constituting a grant by
    the Company of a Stock Award to any Participant shall be deemed
    completed as of the date of such corporate action, unless
    otherwise determined by the Board, regardless of when the
    instrument, certificate, or letter evidencing the Stock Award is
    communicated to, or actually received or accepted by, the
    Participant.



 



    (c) Stockholder Rights.  No Participant
    shall be deemed to be the holder of, or to have any of the
    rights of a holder with respect to, any shares of Common Stock
    subject to such Stock Award unless and until such Participant
    has exercised the Stock Award pursuant to its terms and the
    Participant shall not be deemed to be a stockholder of




    

    9








 






    record until the issuance of the Common Stock pursuant to such
    exercise has been entered into the books and records of the
    Company.



 



    (d) No Employment or Other Service
    Rights.  Nothing in the Plan, any Stock Award
    Agreement or other instrument executed thereunder or in
    connection with any Award granted pursuant to the Plan shall
    confer upon any Participant any right to continue to serve the
    Company or an Affiliate in the capacity in effect at the time
    the Stock Award was granted or shall affect the right of the
    Company or an Affiliate to terminate (i) the employment of
    an Employee with or without notice and with or without cause,
    (ii) the service of a Consultant pursuant to the terms of
    such Consultant’s agreement with the Company or an
    Affiliate, or (iii) the service of a Director pursuant to
    the Bylaws of the Company or an Affiliate, and any applicable
    provisions of the corporate law of the state in which the
    Company or the Affiliate is incorporated, as the case may be.



 



    (e) Investment Assurances.  The Company
    may require a Participant, as a condition of exercising or
    acquiring Common Stock under any Stock Award, (i) to give
    written assurances satisfactory to the Company as to the
    Participant’s knowledge and experience in financial and
    business matters
    and/or to
    employ a purchaser representative reasonably satisfactory to the
    Company who is knowledgeable and experienced in financial and
    business matters and that he or she is capable of evaluating,
    alone or together with the purchaser representative, the merits
    and risks of exercising the Stock Award; and (ii) to give
    written assurances satisfactory to the Company stating that the
    Participant is acquiring Common Stock subject to the Stock Award
    for the Participant’s own account and not with any present
    intention of selling or otherwise distributing the Common Stock.
    The foregoing requirements, and any assurances given pursuant to
    such requirements, shall be inoperative if (A) the issuance
    of the shares upon the exercise or acquisition of Common Stock
    under the Stock Award has been registered under a then currently
    effective registration statement under the Securities Act, or
    (B) as to any particular requirement, a determination is
    made by counsel for the Company that such requirement need not
    be met in the circumstances under the then applicable securities
    laws. The Company may, upon advice of counsel to the Company,
    place legends on stock certificates issued under the Plan as
    such counsel deems necessary or appropriate in order to comply
    with applicable securities laws, including, but not limited to,
    legends restricting the transfer of the Common Stock.



 



    (f) Withholding Obligations.  Unless
    prohibited by the terms of a Stock Award Agreement, the Company
    may, in its sole discretion, satisfy any federal, state or local
    tax withholding obligation relating to an Award by any of the
    following means (in addition to the Company’s right to
    withhold from any compensation paid to the Participant by the
    Company) or by a combination of such means: (i) causing the
    Participant to tender a cash payment; (ii) withholding
    shares of Common Stock from the shares of Common Stock issued or
    otherwise issuable to the Participant in connection with the
    Award; (iii) withholding cash from an Award settled in
    cash; or (iv) by such other method as may be set forth in
    the Award Agreement.



 



    (g) Electronic Delivery.  Any reference
    herein to a “written” agreement or document shall
    include any agreement or document delivered electronically or
    posted on the Company’s intranet.



 



    (h) Deferrals.  To the extent permitted by
    applicable law, the Board, in its sole discretion, may determine
    that the delivery of Common Stock or the payment of cash, upon
    the exercise, vesting or settlement of all or a portion of any
    Award may be deferred and may establish programs and procedures
    for deferral elections to be made by Participants. Deferrals by
    Participants will be made in accordance with Section 409A
    of the Code. Consistent with Section 409A of the Code, the
    Board may provide for distributions while a Participant is still
    an employee. The Board is authorized to make deferrals of Stock
    Awards and determine when, and in what annual percentages,
    Participants may receive payments, including lump sum payments,
    following the Participant’s termination of employment or
    retirement, and implement such other terms and conditions
    consistent with the provisions of the Plan and in accordance
    with applicable law.



 



    (i) Compliance with Section 409A of the
    Code.  To the extent that the Board determines
    that any Award granted under the Plan is subject to
    Section 409A of the Code, the Award Agreement evidencing
    such Award shall incorporate the terms and conditions necessary
    to avoid the consequences specified in Section 409A(a)(1)
    of the Code. To the extent applicable, the Plan and Award
    Agreements shall be interpreted in accordance with
    Section 409A of the Code and Department of Treasury
    regulations and other interpretive guidance issued thereunder,
    including without limitation any such regulations or other
    guidance that may be issued or amended after the Effective Date.
    Notwithstanding any provision of the Plan to the contrary, in
    the event that following the




    

    10








 






    Effective Date the Board determines that any Award may be
    subject to Section 409A of the Code and related Department
    of Treasury guidance (including such Department of Treasury
    guidance as may be issued after the Effective Date), the Board
    may adopt such amendments to the Plan and the applicable Award
    Agreement or adopt other policies and procedures (including
    amendments, policies and procedures with retroactive effect), or
    take any other actions, that the Board determines are necessary
    or appropriate to (i) exempt the Award from
    Section 409A of the Code
    and/or
    preserve the intended tax treatment of the benefits provided
    with respect to the Award, or (ii) comply with the
    requirements of Section 409A of the Code and Department of
    Treasury regulations and other interpretive guidance issued
    thereunder, including without limitation any such regulations or
    other guidance that may be issued or amended after the Effective
    Date.



 


		
	
    9.  
	
    Adjustments
    upon Changes in Common Stock; Other Corporate Events.




 



    (a) Capitalization Adjustments.  In the
    event of a Capitalization Adjustment, the Board shall
    appropriately adjust: (i) the class(es) and maximum number
    of securities subject to the Plan pursuant to Section 3(a),
    (ii) the class(es) and maximum number of securities that
    may be awarded to any person pursuant to Section 3(c) and
    6(d)(i), and (iii) the class(es) and number of securities
    and price per share of stock subject to outstanding Stock
    Awards. The Board shall make such adjustments, and its
    determination shall be final, binding and conclusive.



 



    (b) Dissolution or Liquidation.  Except as
    otherwise provided in the Stock Award Agreement, in the event of
    a dissolution or liquidation of the Company, all outstanding
    Stock Awards (other than Stock Awards consisting of vested and
    outstanding shares of Common Stock not subject to the
    Company’s right of repurchase) shall terminate immediately
    prior to the completion of such dissolution or liquidation, and
    the shares of Common Stock subject to the Company’s
    repurchase option may be repurchased by the Company
    notwithstanding the fact that the holder of such Stock Award is
    providing Continuous Service, provided, however, that the
    Board may, in its sole discretion, cause some or all Stock
    Awards to become fully vested, exercisable
    and/or no
    longer subject to repurchase or forfeiture (to the extent such
    Stock Awards have not previously expired or terminated) before
    the dissolution or liquidation is completed but contingent on
    its completion.



 



    (c) Corporate Transaction.  The following
    provisions shall apply to Stock Awards in the event of a
    Corporate Transaction unless otherwise provided in the
    instrument evidencing the Stock Award or any other written
    agreement between the Company or any Affiliate and the
    Participant or unless otherwise expressly provided by the Board
    at the time of grant of a Stock Award.



 



    (i) Stock Awards May Be Assumed.  Except
    as otherwise stated in the Stock Award Agreement, in the event
    of a Corporate Transaction, any surviving corporation or
    acquiring corporation (or the surviving or acquiring
    corporation’s parent company) may assume or continue any or
    all Stock Awards outstanding under the Plan or may substitute
    similar stock awards for Stock Awards outstanding under the Plan
    (including but not limited to, awards to acquire the same
    consideration paid to the stockholders of the Company pursuant
    to the Corporate Transaction), and any reacquisition or
    repurchase rights held by the Company in respect of Common Stock
    issued pursuant to Stock Awards may be assigned by the Company
    to the successor of the Company (or the successor’s parent
    company, if any), in connection with such Corporate Transaction.
    A surviving corporation or acquiring corporation (or its parent)
    may choose to assume or continue only a portion of a Stock Award
    or substitute a similar stock award for only a portion of a
    Stock Award. The terms of any assumption, continuation or
    substitution shall be set by the Board in accordance with the
    provisions of Section 6.



 



    (ii) Stock Awards Held by Current
    Participants.  Except as otherwise stated in the
    Stock Award Agreement, in the event of a Corporate Transaction
    in which the surviving corporation or acquiring corporation (or
    its parent company) does not assume or continue such outstanding
    Stock Awards or substitute similar stock awards for such
    outstanding Stock Awards, then with respect to Stock Awards that
    have not been assumed, continued or substituted and that are
    held by Participants whose Continuous Service has not terminated
    prior to the effective time of the Corporate Transaction
    (referred to as the “Current
    Participants”), the vesting of such Stock Awards
    (and, with respect to Options and Stock Appreciation Rights, the
    time at which such Stock Awards may be exercised) shall be
    accelerated in full to a date prior to the effective time of
    such Corporate Transaction (contingent upon the effectiveness of
    the Corporate Transaction) as the Board shall




    

    11








 






    determine (or, if the Board shall not determine such a date, to
    the date that is five (5) days prior to the effective time
    of the Corporate Transaction), and such Stock Awards shall
    terminate if not exercised (if applicable) at or prior to the
    effective time of the Corporate Transaction, and any
    reacquisition or repurchase rights held by the Company with
    respect to such Stock Awards shall lapse (contingent upon the
    effectiveness of the Corporate Transaction).



 



    (iii) Stock Awards Held by Persons other than Current
    Participants.  Except as otherwise stated in the
    Stock Award Agreement, in the event of a Corporate Transaction
    in which the surviving corporation or acquiring corporation (or
    its parent company) does not assume or continue such outstanding
    Stock Awards or substitute similar stock awards for such
    outstanding Stock Awards, then with respect to Stock Awards that
    have not been assumed, continued or substituted and that are
    held by persons other than Current Participants, such Stock
    Awards shall terminate if not exercised (if applicable) prior to
    the effective time of the Corporate Transaction; provided,
    however, that any reacquisition or repurchase rights held by
    the Company with respect to such Stock Awards shall not
    terminate and may continue to be exercised notwithstanding the
    Corporate Transaction.



 



    (iv) Payment for Stock Awards in Lieu of
    Exercise.  Notwithstanding the foregoing, in the
    event a Stock Award will terminate if not exercised prior to the
    effective time of a Corporate Transaction, the Board may
    provide, in its sole discretion, that the holder of such Stock
    Award may not exercise such Stock Award but will receive a
    payment, in such form as may be determined by the Board, equal
    in value to the excess, if any, of (A) the value of the
    property the holder of the Stock Award would have received upon
    the exercise of the Stock Award (including, at the discretion of
    the Board, any unvested portion of such Stock Award), over
    (B) any exercise price payable by such holder in connection
    with such exercise.



 



    (d) Change in Control.  A Stock Award may
    be subject to additional acceleration of vesting and
    exercisability upon or after a Change in Control as may be
    provided in the Stock Award Agreement for such Stock Award or as
    may be provided in any other written agreement between the
    Company or any Affiliate and the Participant, but in the absence
    of such provision, no such acceleration shall occur.



 


		
	
    10.  
	
    Termination
    or Suspension of the Plan.




 



    (a) Plan Term.  The Board may suspend or
    terminate the Plan at any time. No Awards may be granted under
    the Plan while the Plan is suspended or after it is terminated.



 



    (b) No Impairment of Rights.  Termination
    of the Plan shall not impair rights and obligations under any
    Award granted while the Plan is in effect except with the
    written consent of the affected Participant.



 


		
	
    11.  
	
    Effective
    Date of Plan.




 



    This Plan shall become effective on the Effective Date.



 


		
	
    12.  
	
    Choice
    of Law.




 



    The law of the State of Delaware shall govern all questions
    concerning the construction, validity and interpretation of this
    Plan, without regard to such state’s conflict of laws rules.



 


		
	
    13.  
	
    Definitions.
    




 



    As used in the Plan, the definitions contained in this
    Section 13 shall apply to the capitalized terms indicated
    below:



 



    (a) “Affiliate” means, at the time of
    determination, any “parent” or “subsidiary”
    of the Company as such terms are defined in Rule 405 of the
    Securities Act. The Board shall have the authority to determine
    the time or times at which “parent” or
    “subsidiary” status is determined within the foregoing
    definition.



 



    (b) “Award” means a Stock Award or a
    Performance Cash Award.



 



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




    

    12








 





 



    (d) “Capitalization Adjustment” means any
    change that is made in, or other events that occur with respect
    to, the Common Stock subject to the Plan or subject to any Stock
    Award after the Effective Date without the receipt of
    consideration by the Company (through merger, consolidation,
    reorganization, recapitalization, reincorporation, stock
    dividend, dividend in property other than cash, stock split,
    liquidating dividend, combination of shares, exchange of shares,
    change in corporate structure or other transaction not involving
    the receipt of consideration by the Company. Notwithstanding the
    foregoing, the conversion of any convertible securities of the
    Company shall not be treated as a transaction “without
    receipt of consideration” by the Company.



 



    (e) “Change in Control” means the
    occurrence, in a single transaction or in a series of related
    transactions, of any one or more of the following events:



 



    (i) any Exchange Act Person becomes the Owner, directly or
    indirectly, of securities of the Company representing more than
    fifty percent (50%) of the combined voting power of the
    Company’s then outstanding securities other than by virtue
    of a merger, consolidation or similar transaction.
    Notwithstanding the foregoing, a Change in Control shall not be
    deemed to occur (A) on account of the acquisition of
    securities of the Company by an investor, any affiliate thereof
    or any other Exchange Act Person from the Company in a
    transaction or series of related transactions the primary
    purpose of which is to obtain financing for the Company through
    the issuance of equity securities or (B) solely because the
    level of Ownership held by any Exchange Act Person (the
    “Subject Person”) exceeds the designated
    percentage threshold of the outstanding voting securities as a
    result of a repurchase or other acquisition of voting securities
    by the Company reducing the number of shares outstanding,
    provided that if a Change in Control would occur (but for the
    operation of this sentence) as a result of the acquisition of
    voting securities by the Company, and after such share
    acquisition, the Subject Person becomes the Owner of any
    additional voting securities that, assuming the repurchase or
    other acquisition had not occurred, increases the percentage of
    the then outstanding voting securities Owned by the Subject
    Person over the designated percentage threshold, then a Change
    in Control shall be deemed to occur;



 



    (ii) there is consummated a merger, consolidation or
    similar transaction involving (directly or indirectly) the
    Company and, immediately after the consummation of such merger,
    consolidation or similar transaction, the stockholders of the
    Company immediately prior thereto do not Own, directly or
    indirectly, either (A) outstanding voting securities
    representing more than fifty percent (50%) of the combined
    outstanding voting power of the surviving Entity in such merger,
    consolidation or similar transaction or (B) more than fifty
    percent (50%) of the combined outstanding voting power of the
    parent of the surviving Entity in such merger, consolidation or
    similar transaction, in each case in substantially the same
    proportions as their Ownership of the outstanding voting
    securities of the Company immediately prior to such transaction;



 



    (iii) the stockholders of the Company approve or the Board
    approves a plan of complete dissolution or liquidation of the
    Company, or a complete dissolution or liquidation of the Company
    shall otherwise occur, except for a liquidation into a parent
    corporation;



 



    (iv) there is consummated a sale, lease, exclusive license
    or other disposition of all or substantially all of the
    consolidated assets of the Company and its Subsidiaries, other
    than a sale, lease, license or other disposition of all or
    substantially all of the consolidated assets of the Company and
    its Subsidiaries to an Entity, more than fifty percent (50%) of
    the combined voting power of the voting securities of which are
    Owned by stockholders of the Company in substantially the same
    proportions as their Ownership of the outstanding voting
    securities of the Company immediately prior to such sale, lease,
    license or other disposition; or



 



    (v) individuals who, on the date this Plan is adopted by
    the Board, are members of the Board (the “Incumbent
    Board”) cease for any reason to constitute at least
    a majority of the members of the Board; provided,
    however, that if the appointment or election (or
    nomination for election) of any new Board member was approved or
    recommended by a majority vote of the members of the Incumbent
    Board then still in office, such new member shall, for purposes
    of this Plan, be considered as a member of the Incumbent Board.




    

    13








 





 



    The term Change in Control shall not include a sale of assets,
    merger or other transaction effected exclusively for the purpose
    of changing the domicile of the Company.



 



    Notwithstanding the foregoing or any other provision of this
    Plan, the definition of Change in Control (or any analogous
    term) in an individual written agreement between the Company or
    any Affiliate and the Participant shall supersede the foregoing
    definition with respect to Awards subject to such agreement;
    provided, however, that if no definition of Change in
    Control or any analogous term is set forth in such an individual
    written agreement, the foregoing definition shall apply.



 



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



 



    (g) “Committee” means a committee of one
    (1) or more Directors to whom authority has been delegated
    by the Board in accordance with Section 6(c).



 



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



 



    (i) “Company” means Genitope Corporation,
    a Delaware corporation.



 



    (j) “Consultant” means any person,
    including an advisor, who is (i) engaged by the Company or
    an Affiliate to render consulting or advisory services and is
    compensated for such services, or (ii) serving as a member
    of the board of directors of an Affiliate and is compensated for
    such services. However, service solely as a Director, or payment
    of a fee for such service, shall not cause a Director to be
    considered a “Consultant” for purposes of the Plan.



 



    (k) “Continuous Service” means that the
    Participant’s service with the Company or an Affiliate,
    whether as an Employee, Director or Consultant, is not
    interrupted or terminated. A change in the capacity in which the
    Participant renders service to the Company or an Affiliate as an
    Employee, Consultant or Director or a change in the entity for
    which the Participant renders such service, provided that there
    is no interruption or termination of the Participant’s
    service with the Company or an Affiliate, shall not terminate a
    Participant’s Continuous Service. For example, a change in
    status from an employee of the Company to a consultant to an
    Affiliate or to a Director shall not constitute an interruption
    of Continuous Service. To the extent permitted by law, the Board
    or the chief executive officer of the Company, in that
    party’s sole discretion, may determine whether Continuous
    Service shall be considered interrupted in the case of any leave
    of absence approved by that party, including sick leave,
    military leave or any other personal leave. Notwithstanding the
    foregoing, a leave of absence shall be treated as Continuous
    Service for purposes of vesting in a Stock Award only to such
    extent as may be provided in the Company’s leave of absence
    policy, in the written terms of any leave of absence agreement
    or policy applicable to the Participant, or as otherwise
    required by law.



 



    (l) “Corporate Transaction” means the
    occurrence, in a single transaction or in a series of related
    transactions, of any one or more of the following events:



 



    (i) a sale or other disposition of all or substantially
    all, as determined by the Board in its sole discretion, of the
    consolidated assets of the Company and its Subsidiaries;



 



    (ii) a sale or other disposition of at least ninety percent
    (90%) of the outstanding securities of the Company;



 



    (iii) the consummation of a merger, consolidation or
    similar transaction following which the Company is not the
    surviving corporation; or



 



    (iv) the consummation of a merger, consolidation or similar
    transaction following which the Company is the surviving
    corporation but the shares of Common Stock outstanding
    immediately preceding the merger, consolidation or similar
    transaction are converted or exchanged by virtue of the merger,
    consolidation or similar transaction into other property,
    whether in the form of securities, cash or otherwise.



 



    (m) “Covered Employee” shall have the
    meaning provided in Section 162(m)(3) of the Code and the
    regulations promulgated thereunder.



 



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




    

    14








 





 



    (o) “Disability” means, with respect to a
    Participant, the inability of such Participant to engage in any
    substantial gainful activity by reason of any medically
    determinable physical or mental impairment which can be expected
    to result in death or can be expected to last for a continuous
    period of not less than twelve (12) months, as provided in
    Sections 22(e)(3) and 409A(a)(2)(c)(i) of the Code.



 



    (p) “Effective Date” means the effective
    date of this Plan document, which is the date of the annual
    meeting of stockholders of the Company held in 2007, provided
    that this Plan is approved by the Company’s stockholders at
    such meeting.



 



    (q) “Employee” means any person employed
    by the Company or an Affiliate. However, service solely as a
    Director, or payment of a fee for such services, shall not cause
    a Director to be considered an “Employee” for purposes
    of the Plan.



 



    (r) “Entity” means a corporation,
    partnership, limited liability company or other entity.



 



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



 



    (t) “Exchange Act Person” means any
    natural person, Entity or “group” (within the meaning
    of Section 13(d) or 14(d) of the Exchange Act), except that
    “Exchange Act Person” shall not include (i) the
    Company or any Subsidiary of the Company, (ii) any employee
    benefit plan of the Company or any Subsidiary of the Company or
    any trustee or other fiduciary holding securities under an
    employee benefit plan of the Company or any Subsidiary of the
    Company, (iii) an underwriter temporarily holding
    securities pursuant to an offering of such securities,
    (iv) an Entity Owned, directly or indirectly, by the
    stockholders of the Company in substantially the same
    proportions as their Ownership of stock of the Company; or
    (v) any natural person, Entity or “group” (within
    the meaning of Section 13(d) or 14(d) of the Exchange Act)
    that, as of the Effective Date of the Plan as set forth in
    Section 15, is the Owner, directly or indirectly, of
    securities of the Company representing more than fifty percent
    (50%) of the combined voting power of the Company’s then
    outstanding securities.



 



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



 



    (i) If the Common Stock is listed on any established stock
    exchange or traded on any established market, the Fair Market
    Value of a share of Common Stock shall be the closing sales
    price for such stock (or the closing bid, if no sales were
    reported) as quoted on such exchange or market (or the exchange
    or market with the greatest volume of trading in the Common
    Stock) on the last market trading day prior to the day of
    determination, as reported in The Wall Street Journal or
    such other source as the Board deems reliable.



 



    (ii) In the absence of such markets for the Common Stock,
    the Fair Market Value shall be determined by the Board in good
    faith.



 



    (v) “Non-Employee Director” means a
    Director who either (i) is not a current employee or
    officer of the Company or an Affiliate, does not receive
    compensation, either directly or indirectly, from the Company or
    an Affiliate for services rendered as a consultant or in any
    capacity other than as a Director (except for an amount as to
    which disclosure would not be required under Item 404(a) of
    Regulation S-K
    promulgated pursuant to the Securities Act
    (“Regulation S-K”)),
    does not possess an interest in any other transaction for which
    disclosure would be required under Item 404(a) of
    Regulation S-K,
    and is not engaged in a business relationship for which
    disclosure would be required pursuant to Item 404(b) of
    Regulation S-K;
    or (ii) is otherwise considered a “non-employee
    director” for purposes of
    Rule 16b-3.



 



    (w) “Officer” means a person who is an
    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 nonstatutory stock
    option granted pursuant to Section 5 of the Plan that does
    not qualify as an “incentive stock option” within the
    meaning of Section 422 of the Code and the regulations
    promulgated thereunder.




    

    15








 





 



    (y) “Option Agreement” means a written
    agreement between the Company and an Optionholder evidencing the
    terms and conditions of an Option grant. Each Option Agreement
    shall be subject to the terms and conditions of the Plan.



 



    (z) “Optionholder” means a person to whom
    an Option is granted pursuant to the Plan or, if permitted under
    the terms of this Plan, such other person who holds an
    outstanding Option.



 



    (aa) “Other Stock Award” means an award
    based in whole or in part by reference to the Common Stock which
    is granted pursuant to the terms and conditions of
    Section 10(d).



 



    (bb) “Other Stock Award Agreement” means a
    written agreement between the Company and a holder of an Other
    Stock Award evidencing the terms and conditions of an Other
    Stock Award grant. Each Other Stock Award Agreement shall be
    subject to the terms and conditions of the Plan.



 



    (cc) “Outside Director” means a Director
    who either (i) is not a current employee of the Company or
    an “affiliated corporation” (within the meaning of
    Treasury Regulations promulgated under Section 162(m) of
    the Code), is not a former employee of the Company or an
    “affiliated corporation” who receives compensation for
    prior services (other than benefits under a tax-qualified
    retirement plan) during the taxable year, has not been an
    officer of the Company or an “affiliated corporation,”
    and does not receive remuneration from the Company or an
    “affiliated corporation,” either directly or
    indirectly, in any capacity other than as a Director, or
    (ii) is otherwise considered an “outside
    director” for purposes of Section 162(m) of the Code.



 



    (dd) A person or Entity shall be deemed to
    “Own,” to have
    “Owned,” to be the
    “Owner” of, or to have acquired
    “Ownership” of securities if such person
    or Entity, directly or indirectly, through any contract,
    arrangement, understanding, relationship or otherwise, has or
    shares voting power, which includes the power to vote or to
    direct the voting, with respect to such securities.



 



    (ee) “Participant” means a person to whom
    an Award is granted pursuant to the Plan or, if applicable, such
    other person who holds an outstanding Stock Award.



 



    (ff) “Performance Cash Award” means an
    award of cash granted pursuant to the terms and conditions of
    Section 6(d)(ii).



 



    (gg) “Performance Criteria” means the one
    or more criteria that the Board shall select for purposes of
    establishing the Performance Goals for a Performance Period. The
    Performance Criteria that shall be used to establish such
    Performance Goals may be based on any one of, or combination of,
    the following: (i) earnings per share; (ii) earnings
    before interest, taxes and depreciation; (iii) earnings
    before interest, taxes, depreciation and amortization;
    (iv) total stockholder return; (v) return on equity;
    (vi) return on assets, investment, or capital employed;
    (vii) operating margin; (viii) gross margin;
    (ix) operating income; (x) net income (before or after
    taxes); (xi) net operating income; (xii) net operating
    income after tax; (xiii) pre-tax profit;
    (xiv) operating cash flow; (xv) sales or revenue
    targets; (xvi) increases in revenue or product revenue;
    (xvii) expenses and cost reduction goals;
    (xviii) improvement in or attainment of working capital
    levels; (xix) economic value added (or an equivalent
    metric); (xx) market share; (xxi) cash flow;
    (xxii) cash flow per share; (xxiii) share price
    performance; (xxiv) debt reduction;
    (xxv) implementation or completion of projects or
    processes; (xxvi) customer satisfaction;
    (xxvii) stockholders’ equity; and (xxviii) to the
    extent that an Award is not intended to comply with
    Section 162(m) of the Code, other measures of performance
    selected by the Board. Partial achievement of the specified
    criteria may result in the payment or vesting corresponding to
    the degree of achievement as specified in the Stock Award
    Agreement or the written terms of a Performance Cash Award. The
    Board shall, in its sole discretion, define the manner of
    calculating the Performance Criteria it selects to use for such
    Performance Period.



 



    (hh) “Performance Goals” means, for a
    Performance Period, the one or more goals established by the
    Board for the Performance Period based upon the Performance
    Criteria. Performance Goals may be based on a Company-wide
    basis, with respect to one or more business units, divisions,
    Affiliates, or business segments, and in either absolute terms
    or relative to the performance of one or more comparable
    companies or the performance of one or more relevant indices. At
    the time of the grant of any Award, the Board is authorized to
    determine whether, when calculating the attainment of
    Performance Goals for a Performance Period: (i) to




    

    16








 






    exclude restructuring
    and/or other
    nonrecurring charges; (ii) to exclude exchange rate
    effects, as applicable, for
    non-U.S. dollar
    denominated net sales and operating earnings; (iii) to
    exclude the effects of changes to generally accepted accounting
    standards required by the Financial Accounting Standards Board
    or the Public Accounting Oversight Board; (iv) to exclude
    the effects of any statutory adjustments to corporate tax rates;
    and (v) to exclude the effects of any “extraordinary
    items” as determined under generally accepted accounting
    principles. In addition, the Board retains the discretion to
    reduce or eliminate the compensation or economic benefit due
    upon attainment of Performance Goals.



 



    (ii) “Performance Period” means the period
    of time selected by the Board over which the attainment of one
    or more Performance Goals will be measured for the purpose of
    determining a Participant’s right to and the payment of a
    Stock Award or a Performance Cash Award. Performance Periods may
    be of varying and overlapping duration, at the sole discretion
    of the Board.



 



    (jj) “Performance Stock Award” means a
    Stock Award granted under the terms and conditions of
    Section 6(d)(i).



 



    (kk) “Plan” means this Genitope
    Corporation 2007 Equity Incentive Plan.



 



    (ll) “Restricted Stock Award” means an
    award of shares of Common Stock which is granted pursuant to the
    terms and conditions of Section 10(a).



 



    (mm) “Restricted Stock Award Agreement”
    means a written agreement between the Company and a holder
    of a Restricted Stock Award evidencing the terms and conditions
    of a Restricted Stock Award grant. Each Restricted Stock Award
    Agreement shall be subject to the terms and conditions of the
    Plan.



 



    (nn) “Restricted Stock Unit Award” means a
    right to receive shares of Common Stock which is granted
    pursuant to the terms and conditions of Section 10(b).



 



    (oo) “Restricted Stock Unit Award Agreement”
    means a written agreement between the Company and a holder
    of a Restricted Stock Unit Award evidencing the terms and
    conditions of a Restricted Stock Unit Award grant. Each
    Restricted Stock Unit Award Agreement shall be subject to the
    terms and conditions of the Plan.



 



    (pp) “Rule 16b-3”
    means
    Rule 16b-3
    promulgated under the Exchange Act or any successor to
    Rule 16b-3,
    as in effect from time to time.



 



    (qq) “Securities Act” means the Securities
    Act of 1933, as amended.



 



    (rr) “Stock Appreciation Right” means a
    right to receive the appreciation on Common Stock that is
    granted pursuant to the terms and conditions of
    Section 10(c).



 



    (ss) “Stock Appreciation Right Agreement”
    means a written agreement between the Company and a holder
    of a Stock Appreciation Right evidencing the terms and
    conditions of a Stock Appreciation Right grant. Each Stock
    Appreciation Right Agreement shall be subject to the terms and
    conditions of the Plan.



 



    (tt) “Stock Award” means any right to
    receive Common Stock granted under the Plan, including an
    Option, a Restricted Stock Award, a Restricted Stock Unit Award,
    a Stock Appreciation Right, a Performance Stock Award or any
    Other Stock Award.



 



    (uu) “Stock Award Agreement” means a
    written agreement between the Company and a Participant
    evidencing the terms and conditions of a Stock Award grant. Each
    Stock Award Agreement shall be subject to the terms and
    conditions of the Plan.



 



    (vv) “Subsidiary” means, with respect to
    the Company, (i) any corporation of which more than fifty
    percent (50%) of the outstanding capital stock having ordinary
    voting power to elect a majority of the board of directors of
    such corporation (irrespective of whether, at the time, stock of
    any other class or classes of such corporation shall have or
    might have voting power by reason of the happening of any
    contingency) is at the time, directly or indirectly, Owned by
    the Company, and (ii) any partnership, limited liability
    company or other entity in which the Company has a direct or
    indirect interest (whether in the form of voting or
    participation in profits or capital) of more than fifty percent
    (50%).




    

    17