exv10w5



 







Exhibit 10.5




SUTURA, INC.

2006 STOCK OPTION PLAN




     1. Purpose of the Plan. The purpose of this Sutura, Inc. 2006 Stock Option Plan is to
offer certain Employees, Non-Employee Directors, and Consultants the opportunity to acquire a
proprietary interest in the Company by the grant of options to purchase Common Stock. Through the
Plan, the Company and its subsidiaries seek to attract, motivate, and retain highly competent
persons. The success of the Company and its Related Corporations are dependent upon the efforts of
these persons. An Option granted under the Plan may be a Non-Statutory Stock Option or an
Incentive Stock Option, as determined by the Administrator.



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



          “Act” shall mean the Securities Act of 1933, as amended.




          “Administrator” shall mean the Board or any one of the Committees.




          “APB 25” shall mean Opinion 25 of the Accounting Principles Board, as amended, and any
successor thereof.




          “Board” shall mean the Board of Directors of the Company.




          “Cause” shall have the meaning given to it under California law or as provided in any
applicable employment agreement or employee handbook of the Company, each as determined applicable
and as interpreted by the Administrator.




          “Change in Control” shall mean: (i) the acquisition by any entity, person, or group (other
than the Company, any one of its Related Corporations, or an employee benefit plan maintained by
the Company or any one of its Related Corporations) of beneficial ownership of 80% or more of the
outstanding voting stock (other than preferred stock) of the Company; (ii) the occurrence of a
transaction requiring shareholder approval for the acquisition of the Company by the purchase of
stock or assets, or by merger, or otherwise; or (iii) the election during any period of 24 months
or less of 80% or more of the members of the Board without the approval of the nomination of such
members by a majority of the Board consisting of members who were serving at the beginning of such
period.




          “Code” shall mean the Internal Revenue Code of 1986, as amended.




          “Committee” shall mean a committee appointed by the Board.




          “Common Stock” shall mean the common stock of the Company, without par value.




          “Company” shall mean Sutura, Inc., a Delaware corporation.




          “Consultant” shall mean any natural person who performs bona fide services for the Company or
a Related Corporation as a consultant or advisor, excluding Employees and




	 	 	 
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Non-Employee Directors; provided, however, that such services must not be in connection with
the offer or sale of securities in a capital raising transaction, and such person does not directly
or indirectly promote or maintain a market for the Company’s securities.




          “Date of Grant” shall mean the effective date as of which the Administrator grants an Option
to an Optionee.




          “Disability” shall mean total and permanent disability as defined in Section 22(e)(3) of the
Code.




          “Employee” shall mean any individual who is a common-law employee of the Company or a Related
Corporation.




          “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.




          “Exercise Price” shall mean the exercise price of a share of Optioned Stock.




          “Fair Market Value” shall mean, as of any date, the value of Common Stock determined as
follows:





          (i) If the Common Stock is listed on any established stock exchange or a national
market system, including without limitation, the Nasdaq National Market or The Nasdaq
SmallCap Market of The Nasdaq Stock Market, 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 such
exchange or system for the last market trading day prior to the time of determination, as
reported in The Wall Street Journal or such other source as the Administrator deems
reliable;




          (ii) If the Common Stock is regularly quoted by a recognized securities dealer but
selling prices are not reported, its Fair Market Value shall be the mean between the high
bid and low asked prices for the Common Stock quoted by such recognized securities dealer on
the last market trading day prior to the day of determination; or




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


For purposes of (iii) above, the Administrator may, but is not required to, engage an outside
valuation firm to help it determine the Fair Market Value of a Share, and such firm may use such
valuation method(s) as are standard in its profession to value non-public companies.




          “FASB” shall mean the Financial Accounting Standards Board.




          “Immediate Family” shall mean any child, stepchild, grandchild, parent, stepparent,
grandparent, spouse, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law,
brother-in-law, or sister-in-law and shall include adoptive relationships.




          “Incentive Stock Option” shall mean an Option intended to qualify as an incentive stock option
within the meaning of Section 422 of the Code.




	 	 	 
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          “Mature Shares” shall mean Shares that had been held by the Optionee for a meaningful period
of time such as six months or such other period of time that is consistent with FASB’s
interpretation of APB 25.




          “Non-Employee Director” shall mean a non-employee member of the Board.




          “Notice of Stock Option Grant” shall mean the notice delivered by the Company to the Optionee
evidencing the grant of an Option.




          “Non-Statutory Stock Option” shall mean an Option not intended to qualify as an Incentive
Stock Option.




          “Option” shall mean a stock option granted pursuant to the Plan.




          “Option Agreement” shall mean a written agreement that evidences an Option in such form as the
Administrator shall approve from time to time.




          “Optioned Stock” shall mean the Common Stock subject to an Option.




          “Optionee” shall mean any person who receives an Option.




          “Person” shall be construed broadly and shall include, without limitation, an individual, a
partnership, an investment fund, a limited liability company, a corporation, an association, a
joint stock company, a trust, a joint venture, an unincorporated organization, and a governmental
entity or any department, agency or political subdivision thereof.




          “Plan” shall mean the Sutura, Inc. 2006 Stock Option Plan.




          “Qualified Note” shall mean a recourse note, with a market rate of interest, that may, at the
discretion of the Administrator, be secured by the Optioned Stock or otherwise.




          “Related Corporation” shall mean any parent or subsidiary (as defined in Sections 424(e) and
(f) of the Code) of the Company.




          “Rule 16b-3” shall mean Rule 16b-3 promulgated under the Exchange Act or any successor to Rule
16b-3.




          “Section 280G Approval” shall mean the stockholder approval obtained in compliance with the
requirements of Code Section 280G(b)(5)(B), as amended, and any successor thereof, and the
regulations or proposed regulations promulgated thereunder, as determined by the Administrator in
its sole discretion.




          “Service” shall mean the performance of services for the Company (or any Related Corporation)
by an Employee, Non-Employee Director, or Consultant, as determined by the Administrator in its
sole discretion. Service shall not be considered interrupted in the case
of: (i) a change of status (i.e., from Employee to Consultant, Non-Employee Director to
Consultant, or any other combination); (ii) transfers between locations of the Company or between
the Company and any Related Corporation; or (iii) a leave of absence approved by the




	 	 	 
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Company or a
Related Corporation. A leave of absence approved by the Company or a Related Corporation shall
include sick leave, military leave, or any other personal leave approved by an authorized
representative of the Company or a Related Corporation.




          “Service Provider” shall mean an Employee, Non-Employee Director, or Consultant.




          “Share” shall mean a share of Common Stock.




          “Taxes” shall mean the federal, state, and local income, employment and excise tax liabilities
incurred by the Optionee in connection with his/her Options.




          “10% Shareholder” shall mean the owner of stock (as determined under Section 424(d) of the
Code) possessing more than 10% of the total combined voting power of all classes of stock of the
Company (or any Related Corporation).




          “Termination Date” shall mean the date on which an Optionee’s Service terminates, as
determined by the Administrator in its sole discretion.




     3. Administration of the Plan.



          (a) Plan Procedure.





          (i) Multiple Administrative Bodies. The Plan may be administered by different
Committees with respect to different groups of Service Providers.




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




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




          (iv) Other Administration. Other than as provided for above, the Plan shall be
administered by (A) the Board or (B) a Committee, which Committee shall be constituted to
satisfy applicable laws.




          (v) Grant of Incentive Stock Options. If and until such time as this
Plan is approved within 12 months from the date hereof by the holders of a majority of the
outstanding Shares of the Company entitled to vote thereon, no Incentive Stock Option(s) may
be granted under the Plan; provided that regardless of such approval that Non-Statutory
Stock Options may be granted under the Plan.



          (b) Powers of the Administrator. Subject to the provisions of the Plan and in the case
of specific duties delegated by the Administrator, and subject to the approval of relevant




	 	 	 
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authorities, including the approval, if required, of any stock exchange or national market system
upon which the Common Stock is then listed, the Administrator shall have the authority, in its sole
discretion:





          (i) to determine the Fair Market Value of the Common Stock;




          (ii) to select the Service Providers to whom Options may, from time to time, be granted
under the Plan;




          (iii) to determine whether and to what extent Options are granted under the Plan;




          (iv) to determine the number of Shares that are covered by an Option;




          (v) to approve the terms of the Option Agreements;




          (vi) to determine the terms and conditions, not inconsistent with the terms of the
Plan, of any Option. Such terms and conditions may include, but are not limited to, the
Exercise Price, the status of an Option (Non-Statutory Stock Option or Incentive Stock
Option), the time or times when the Option may be exercised, any vesting acceleration or
waiver of forfeiture restrictions, and any restriction or limitation regarding the Option or
the Shares relating thereto, based in each case on such factors as the Administrator, in its
sole discretion, shall determine;




          (vii) to determine the method of payment of the Exercise Price;




          (viii) to reduce the Exercise Price of any Option to the then current Fair Market Value
if the Fair Market Value of the Optioned Stock has declined since the Date of Grant of such
Option;




          (ix) to delegate to others responsibilities to assist in administering the Plan; and




          (x) to construe and interpret the terms of the Plan, Option Agreements, and any other
documents related to the Options.



          (c) Effect of Administrator’s Decision. All decisions, determinations, and
interpretations of the Administrator shall be final and binding on all Optionees and any other
holders of any Options. The Administrator’s decisions and determinations under the Plan need not
be uniform and may be made selectively among Optionees whether or not such Optionees are similarly
situated.




          (d) Liability. No member of the Committee shall be personally liable by reason of any
contract or other instrument executed by such member or on his/her behalf in his/her capacity as a
member of the Committee for any mistake of judgment made in good faith, and the Company shall
indemnify and hold harmless each member of the Committee and each other
employee, officer or director of the Company to whom any duty or power relating to the
administration or interpretation of the Plan may be allocated or delegated, against any cost or




	 	 	 
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expense (including counsel fees) or liability (including any sum paid in settlement of a claim)
arising out of any act or omission to act in connection with the Plan unless arising out of such
person’s own fraud or bad faith. The foregoing right of indemnification shall not be exclusive of
any other rights of indemnification to which such persons may be entitled under the Company’s
Articles of Incorporation or Bylaws, as a matter of law, or otherwise, or any power the Company may
have to indemnify them or hold them harmless.




     4. Stock Subject To The Plan.



          (a) Basic Limitation. The total number of Shares subject to issuance under the Plan
may not exceed 20,000,000 subject to the adjustments provided for in Section 8 of the Plan.




          (b) Additional Shares. In the event that any outstanding Option expires or is
canceled or otherwise terminated, the Shares allocable to the unexercised portion of such Option
shall again be available for the purposes of the Plan. In the event that Shares issued under the
Plan are reacquired by the Company at their original purchase price, such Shares shall again be
available for the purposes of the Plan, except that the aggregate number of Shares which may be
issued upon the exercise of Incentive Stock Options shall in no event exceed 20,000,000 Shares,
subject to the adjustments provided for in Section 8 of the Plan.




     5. Eligibility. The persons eligible to participate in the Plan shall be limited to
Employees, Non-Employee Directors, and Consultants who have the potential to impact the long-term
success of the Company and/or its Related Corporations and who have been selected by the
Administrator to participate in the Plan; provided, however, Employees and Non-Employee Directors
of a parent of the Company are not eligible to participate in the Plan.



     6. Option Terms. Each Option shall be evidenced by an Option Agreement, in the form
approved by the Administrator and may contain such provisions as the Administrator deems
appropriate; provided, however, that each Option Agreement shall comply with the terms specified
below. Each Option Agreement evidencing an Incentive Stock Option shall, in addition, be subject
to Section 7 below.



          (a) Exercise Price.





          (i) The Exercise Price of an Option shall be determined by the Administrator but shall
not be less than 85% (110% in the case of a person who owns, on the Date of Grant of such
Option, stock possessing more than 10% of the total combined voting power of all classes of
stock of the Company or any Related Corporation) of the Fair Market Value of a Share on the
Date of Grant of such Option.




          (ii) The consideration to be paid for the Shares to be issued upon exercise of an
Option, including the method of payment, shall be determined by the Administrator and may
consist entirely of (A) cash, (B) check, (C) Mature Shares, (D) Qualified Note, or (E) any
combination of the foregoing methods of payment. The Administrator may also permit an
Optionee to pay all or any part of his or her Exercise
Price by attesting to the ownership of Shares that are already owned by the Optionee.
Such Shares shall be surrendered to the Company in good form for transfer and shall be



	 	 	 
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valued at their Fair Market Value on the date when the Option is exercised. An Optionee may
not attest to the ownership of Shares in payment of the Exercise Price if such action would
cause the Company to recognize compensation expense (or additional compensation expense)
with respect to the Option for financial reporting purposes.



          (b) Vesting. Any Option granted hereunder shall be exercisable and shall vest at such
times and under such conditions as determined by the Administrator and set forth in the Option
Agreement, but in the case of an Optionee who is not an officer of the Company, a Non-Employee
Director, or a Consultant, an Option or Shares purchased thereunder shall vest at a rate of at
least 25% per year. An Option may not be exercised for a fraction of a Share.




          (c) Term of Options. No Option shall have a term in excess of 10 years measured from
the Date of Grant of such Option.




          (d) Procedure for Exercise. An Option shall be deemed to be exercised when written
notice of such exercise has been given to the Administrator in accordance with the terms of the
Option Agreement by the person entitled to exercise the Option and full payment of the applicable
Exercise Price for the Share being exercised has been received by the Administrator. Full payment
may, as authorized by the Administrator, consist of any consideration and method of payment
allowable under Subsection (a)(ii) above.




          (e) Effect of Termination of Service.





          (i) Termination of Service. Upon termination of an Optionee’s Service, other
than due to death, Disability, or Cause, the Optionee may exercise his/her Option, but only
on or prior to the date that is three months following the Optionee’s Termination Date, and
only to the extent that the Optionee was entitled to exercise such Option on the Termination
Date (but in no event later than the expiration of the term of such Option, as set forth in
the Notice of Stock Option Grant to the Option Agreement). If, on the Termination Date, the
Optionee is not entitled to exercise the Optionee’s entire Option, the Shares covered by the
unexercisable portion of the Option shall revert to the Plan. If, after termination of
Service, the Optionee does not exercise his/her Option within the time specified herein, the
Option shall terminate, and the Optioned Stock shall revert to the Plan.




          (ii) Disability of Optionee. In the event of termination of an Optionee’s
Service due to his/her Disability, the Optionee may exercise his/her Option, but only on or
prior to the date that is six months following the Termination Date, and only to the extent
that the Optionee was entitled to exercise such Option on the Termination Date (but in no
event later than the expiration date of the term of his/her Option, as set forth in the
Notice of Stock Option Grant to the Option Agreement). To the extent the Optionee is not
entitled to exercise the Option on the Termination Date, or if the Optionee does not
exercise the Option to the extent so entitled within the time specified herein, the Option
shall terminate, and the Optioned Stock shall revert to the Plan.



	 	 	 
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          (iii) Death of Optionee. In the event that an Optionee should die while in
Service, the Optionee’s Option may be exercised by the Optionee’s estate or by a person who
has acquired the right to exercise the Option by bequest or inheritance, but only on or
prior to the date that is six months following the date of death, and only to the extent
that the Optionee was entitled to exercise the Option at the date of death (but in no event
later than the expiration date of the term of his/her Option, as set forth in the Notice of
Stock Option Grant to the Option Agreement). If, at the time of death, the Optionee was not
entitled to exercise his/her entire Option, the Shares covered by the unexercisable portion
of the Option shall immediately revert to the Plan. If after death, the Optionee’s estate
or a person who acquires the right to exercise the Option by bequest or inheritance does not
exercise the Option within the time specified herein, the Option shall terminate, and the
Optioned Stock shall revert to the Plan.




          (iv) Cause. In the event of termination of an Optionee’s Service due to Cause,
the Optionee’s Options shall terminate on the Termination Date.




          (v) Post Termination of Service The Administrator shall have complete
discretion, exercisable either at the time an Option is granted or at any time while the
Option remains outstanding, to:




          (A) extend the period of time for which the Option is to remain exercisable
following the Optionee’s cessation of Service from the limited exercise period
otherwise in effect for that Option to such greater period of time as the
Administrator shall deem appropriate, but in no event beyond the expiration of the
Option term; and/or




          (B) permit the Option to be exercised, during the applicable post-Service
exercise period, not only with respect to the number of vested Shares for which such
Option is exercisable at the time of the Optionee’s cessation of Service but also
with respect to one or more additional installments in which the Optionee would have
vested had the Optionee continued in Service.



          (f) Shareholder Rights. Until the issuance (as evidenced by the appropriate entry on
the books of the Company or of a duly authorized transfer agent of the Company) of the stock
certificate evidencing such Shares, no right to vote or receive dividends or any other rights as a
shareholder shall exist with respect to the Optioned Stock, notwithstanding the exercise of the
Option. The Company shall issue (or cause to be issued) such certificate promptly upon exercise of
the Option. No adjustment will be made for a dividend or other right for which the record date is
prior to the date the stock certificate is issued, except as provided in Section 8 below.




          (g) Non-transferability of Options. Options may not be sold, pledged, assigned,
hypothecated, transferred, or disposed of in any manner other than by will or by the laws of
descent and distribution and may be exercised, during the lifetime of the Optionee, only by the
Optionee. Notwithstanding the foregoing, the Administrator, in its sole discretion, may allow an
Optionee to: (i) transfer his or her Option to a trust where under Section 671 of the Code and
other applicable laws, the Optionee is considered the sole beneficial owner of the Option while




	 	 	 
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it is held in the trust; and (ii) gift his or her Non-Statutory Stock Option to a member of
the Optionee’s Immediate Family, or to an inter vivos or testamentary trust in which members of the
Optionee’s Immediate Family have a beneficial interest of more than 50% and which provides that
such Non-Statutory Stock Option is to be transferred to the beneficiaries upon the Optionee’s
death.




     7. Incentive Stock Options. The terms specified below shall be applicable to all
Incentive Stock Options, and these terms shall, as to such Incentive Stock Options, supercede any
conflicting terms in Section 6 above. Options which are specifically designated as Non-Statutory
Stock Options when issued under the Plan shall not be subject to the terms of this Section.



          (a) Eligibility. Incentive Stock Options may only be granted to Employees.




          (b) Exercise Price. The Exercise Price of an Incentive Stock Option shall not be less
than 100% of the Fair Market Value of a Share on the Date of Grant of such Option, except as
otherwise provided in Subsection (d) below.




          (c) Dollar Limitation. In the case of an Incentive Stock Option, the aggregate Fair
Market Value of the Optioned Stock (determined as of the Date of Grant of each Option) with respect
to Options granted to any Employee under the Plan (or any other option plan of the Company or any
Related Corporation) that may for the first time become exercisable as Incentive Stock Options
during any one calendar year shall not exceed the sum of $100,000. An Incentive Stock Option is
considered to be first exercisable during a calendar year if the Incentive Stock Option will become
exercisable at any time during the year, assuming that any condition on the Optionee’s ability to
exercise the Incentive Stock Option related to the performance of services is satisfied. If the
Optionee’s ability to exercise the Incentive Stock Option in the year is subject to an acceleration
provision, then the Incentive Stock Option is considered first exercisable in the calendar year in
which the acceleration provision is triggered. To the extent the Employee holds two or more
Options which become exercisable for the first time in the same calendar year, the foregoing
limitation on the exercisability of such Options as Incentive Stock Options shall be applied on the
basis of the order in which such Options are granted. However, because an acceleration provision
is not taken into account prior to its triggering, an Incentive Stock Option that becomes
exercisable for the first time during a calendar year by operation of such provision does not
affect the application of the $100,000 limitation with respect to any Incentive Stock Option
exercised prior to such acceleration. Any Options in excess of this limitation shall automatically
be treated as Non-Statutory Stock Options.




          (d) 10% Shareholder. If any Employee to whom an Incentive Stock Option is granted is
a 10% Shareholder, then the Exercise Price shall not be less than 110% of the Fair Market Value of
a Share on the Date of Grant of such Option, and the Option term shall not exceed five years
measured from the Date of Grant of such Option.




          (e) Change in Status. In the event of an Optionee’s change of status from Employee to
Consultant or to Non-Employee Director, an Incentive Stock Option held by the Optionee shall cease
to be treated as an Incentive Stock Option and shall be treated for tax




	 	 	 
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purposes as a Non-Statutory Stock Option three months and one day following such change of
status.




          (f) Approved Leave of Absence. If an Optionee is on an approved leave of absence, and
the Optionee’s reemployment upon expiration of such leave is not guaranteed by statute or contract,
including Company policies, then on the 91st day of such leave any Incentive Stock Option held by
the Optionee shall cease to be treated as an Incentive Stock Option and shall be treated for tax
purposes as a Non-Statutory Stock Option.




     8. Adjustments Upon Changes in Capitalization.



          (a) Changes in Capitalization. The number of Shares covered by each outstanding
Option, and the number of Shares which have been authorized for which no Options have yet been
granted or which have been returned to the Plan upon cancellation or expiration of an Option, as
well as the Exercise Price per Share covered by each such outstanding Option, shall be
proportionately adjusted for any increase or decrease in the number of issued and outstanding
Shares resulting from a stock split, reverse stock split, stock dividend, recapitalization,
combination or reclassification of the Common Stock, or any other increase or decrease in the
number of issued and outstanding Shares, effected without the receipt of consideration by the
Company. Such adjustment shall be made by the Administrator, to the extent possible, so that the
adjustment shall not result in an accounting consequence under APB 25 and FASB Interpretation No.
44, as amended, and any successor thereof. The Administrator’s determination with respect to the
adjustment shall be final, binding, and conclusive.




          (b) Dissolution or Liquidation. In the event of the proposed dissolution or
liquidation of the Company is not a Change in Control, the Administrator shall notify each Optionee
as soon as practicable prior to the effective date of such proposed transaction. In such event,
the Administrator, in its discretion, may provide for an Optionee to fully vest in his/her Option.
In addition, the Administrator may provide that any Company repurchase option applicable to any
Shares purchased upon exercise of an Option shall lapse as to all such Shares. To the extent it
has not been previously exercised, an Option will terminate upon termination or liquidation of the
Company.




     9. Change in Control.



          (a) Except as otherwise provided for in the Optionee’s Option Agreement, in the event of a
Change in Control, the Company and the successor corporation, if any, may agree (without the
Optionee’s consent):





          (i) that, subject to Subsection (b) below, all Options that are outstanding on the date
that immediately precedes the date of the Change in Control shall become exercisable on the
date that immediately precedes the date of the Change in Control and the Administrator shall
notify the Optionees of their Options’ exercisability at least 21 days prior to the date of
the Change in Control so that the Optionees can decide whether or not to exercise their
Options on the date that immediately precedes the



	 	 	 
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date of the Change in Control. Effective as of the date of the Change in Control, the
Plan shall terminate and all unexercised Options shall be cancelled;




          (ii) that the successor corporation or its parent shall assume the Plan and all
outstanding Options effective as of the date of the Change in Control, and provided that all
Options that are outstanding on the date that immediately precedes the date of the Change in
Control shall become exercisable on the date that immediately precedes the date of the
Change in Control;




          (iii) to terminate the Plan and cancel all outstanding Options effective as of the date
of the Change in Control and replace such Options with comparable options in the successor
corporation or parent thereof (the determination of comparability shall be made by the
Administrator, and its determination shall be final, binding, and conclusive), provided that
all Options that are outstanding on the date that immediately precedes the date of the
Change in Control shall become exercisable on the date that immediately precedes the date of
the Change in Control; or




          (iv) to terminate the Plan and cancel all outstanding Options effective as of the date
of the Change in Control and, subject to Subsection (b) below, deliver to the Optionee in
lieu thereof the difference between the Fair Market Value of a Share on the date of the
Change in Control and the Exercise Price of the Optionee’s Option, multiplied by the number
of Shares to which the Option relates, provided that all Options that are outstanding on the
date that immediately precedes the date of the Change in Control shall become exercisable on
the date that immediately precedes the date of the Change in Control



          (b) Notwithstanding the foregoing, unless Section 280G Approval has been obtained, no
acceleration of exercisability or payment shall occur under Subsection (a) above to the extent that
such acceleration or payment would, after taking into account any other payments in the nature of
compensation to which the Optionee would have a right to receive from the Company and any other
Person contingent upon the occurrence of such Change in Control, result in a “parachute payment” as
defined in Section 280G(b)(2) of the Code.




          (c) The outstanding Options shall in no way affect the right of the Company to adjust,
reclassify, reorganize or otherwise change its capital or business structure or to merge,
consolidate, dissolve, liquidate or sell or transfer all or any part of its business or assets.




     10. Modification, Extension, and Assumption of Options. Within the limitations of the
Plan, the Board may modify, extend, or assume outstanding Options or may accept the cancellation of
outstanding Options (whether granted by the Company or another issuer) in return for the grant of
new Options for the same or a different number of Shares and at the same or a different Exercise
Price. Notwithstanding the foregoing, no modification of an Option shall, without the consent of
the Optionee, impair the Optionee’s rights or increase the Optionee’s obligations under such
Option.



     11. Share Escrow/Legends. Unvested Shares issued under the Plan may, in the
Administrator’s discretion, be held in escrow by the Company until the Optionee’s interest in



	 	 	 
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such Shares vests or may be issued directly to the Optionee with restrictive legends on the
certificates evidencing those unvested Shares.




     12. Tax Withholding.



          (a) The Company’s obligation to deliver Shares upon the exercise of Options or deliver Shares
or remove any restricted legends upon vesting of such Shares under the Plan shall be subject to the
satisfaction of all applicable, if any, federal, state and local income and employment tax
withholding requirements.




          (b) The Administrator may, in its discretion, provide any or all holders of Non-Statutory
Stock Options or unvested Shares under the Plan with the right to use previously vested Shares in
satisfaction of all or part of the Taxes incurred by such holders in connection with the exercise
of their Options or the vesting of their Shares; provided, however, that this form of payment shall
be limited to the withholding amount calculated using the minimum statutory rates. Such right may
be provided to any such holder in either or both of the following formats:





          (i) Stock Withholding: The election to have the Company withhold, from the
Shares otherwise issuable upon the exercise of such Non-Statutory Stock Option or the
vesting of such Shares, a portion of those Shares with an aggregate Fair Market Value equal
to the Taxes calculated using the minimum statutory withholding rates interpreted in
accordance with APB 25 and FASB Interpretation No. 44.




          (ii) Stock Delivery: The election to deliver to the Company, at the time the
Non-Statutory Stock Option is exercised or the Shares vest, one or more Shares previously
acquired by such holder (other than in connection with the Option exercise or Share vesting
triggering the Taxes) with an aggregate Fair Market Value equal to the Taxes calculated
using the minimum statutory withholding rates interpreted in accordance with APB 25 and FASB
Interpretation No. 44.



     13. Effective Date and Term of the Plan. The Plan shall become effective as of
January 6, 2006. Unless sooner terminated by the Administrator, the Plan shall continue until the
day prior to the tenth anniversary of the date on which the Board adopted the Plan. When the Plan
terminates, no Options shall be granted under the Plan thereafter. The termination of the Plan
shall not affect any Shares previously issued or any Option previously granted under the Plan.



     14. 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
date as determined by the Administrator; provided, however, that any Option granted prior to the
date on which the Plan is approved the Company’s shareholders shall be subject to the shareholders’
approval of the Plan. Notice of the determination shall be given to each Service Provider to whom
an Option is so granted within a reasonable period of time after the date of such grant.



	 	 	 
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     15. Amendment and Termination of the Plan.



          (a) Amendment and Termination. The Board may at any time amend, alter, suspend, or
discontinue the Plan, but no amendment, alteration, suspension, or discontinuation shall be made
which would impair the rights of any Optionee under any grant theretofore made without his/her
consent. In addition, to the extent necessary and desirable to comply with Section 422 of the Code
(or any other applicable law or regulation, including the requirements of any stock exchange or
national market system upon which the Common Stock is then listed), the Company shall obtain
shareholder approval of any Plan amendment in such a manner and to such a degree as required.




          (b) Effect of Amendment and Termination. Any such amendment or termination of the Plan
shall not affect Options already granted, and such Options shall remain in full force and effect as
if this Plan had not been amended or terminated, unless mutually agreed otherwise between the
Optionee and the Board, which agreement must be in writing and signed by the Optionee and the
Company.




     16. Regulatory Approvals.



          (a) The implementation of the Plan, the granting of any Option and the issuance of any Shares
upon the exercise of any granted Option shall be subject to the Company’s procurement of all
approvals and permits required by regulatory authorities having jurisdiction over the Plan, the
Options granted under it, and the Shares issued pursuant to it.




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




     17. No Employment/Service Rights. Nothing in the Plan shall confer upon the Optionee
any right to continue in Service for any period of specific duration or interfere with or otherwise
restrict in any way the rights of the Company (or any Related Corporation employing or retaining
such person) or of the Optionee, which rights are hereby expressly reserved by each, to terminate
such person’s Service at any time for any reason, with or without cause.



     18. Shareholder Approval. The Plan shall be subject to approval by the shareholders
of the Company within 12 months before or after the date the Plan is adopted by the Board. Such
shareholder approval shall be obtained in the degree and manner required under applicable state and
federal law and the rules of any stock exchange or national market system upon which the Common
Stock is then listed or traded.



	 	 	 
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     19. Financial Reports. The Company shall deliver to the Optionees and the
shareholders who have received Shares under the Plan a balance sheet and an income statement at
least annually, unless such individual is a key Employee whose duties in connection with the
Company (or any Related Corporation) assure such individual access to equivalent information.



     20. Market Stand-Off. In connection with any underwritten public offering by the
Company of its equity securities pursuant to an effective registration statement filed under the
Act, including the Company’s initial public offering, the Optionee shall not directly or indirectly
sell, make any short sale of, loan, hypothecate, pledge, offer, grant or sell any option or other
contract for the purchase of, purchase any option or other contract for the sale of, or otherwise
dispose of or transfer, or agree to engage in any of the foregoing transactions with respect to,
any Shares acquired under this Plan without the prior written consent of the Company or its
underwriters. Such restriction (the “Market Stand-Off”) shall be in effect for such period of time
following the date of the final prospectus for the offering as may be requested by the Company or
such underwriters. In no event, however, shall such period exceed 180 days. In the event of the
declaration of a stock dividend, a spin-off, a stock split, an adjustment in conversion ratio, a
recapitalization or a similar transaction affecting the Company’s outstanding securities without
receipt of consideration, any new, substituted or additional securities which are by reason of such
transaction distributed with respect to any Shares subject to the Market Stand-Off, or into which
such Shares thereby become convertible, shall immediately be subject to the Market Stand-Off. In
order to enforce the Market Stand-Off, the Company may impose stop-transfer instructions with
respect to the Shares acquired under this Plan until the end of the applicable stand-off period.
The Company’s underwriters shall be beneficiaries of the agreement set forth in this Section. This
Section shall not apply to Shares registered in the public offering under the Act, and the Optionee
shall be subject to this Section only if the directors and officers of the Company are subject to
similar arrangements.



	 	 	 
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     21. Governing Law. This Plan shall be governed by Delaware law, applied without
regard to conflict of law principles.



          IN WITNESS WHEREOF, the Company, by its duly authorized officer, has executed this Plan
effective as of January 6, 2006.




	 	 	 	 	 
	 	 	SUTURA, INC.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Its:	 	 
	 

	 	 	 	 





	 	 	 
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