exv4w5






Exhibit 4.5




SIPERIAN, INC.




2003 EQUITY INCENTIVE PLAN




As Adopted on February 20, 2003

As Amended on August 1, 2003

As Amended on May 12, 2004

As Amended on September 22, 2004

As amended on March 14, 2005

As Amended on October 19, 2005

As Amended on May 23, 2006

As Amended on September 20, 2007

As Amended on December 18, 2007

As amended on February 25, 2008




     1. PURPOSE. The purpose of this Plan is to provide incentives to attract,
retain and motivate eligible persons whose present and potential contributions are important to the
success of the Company, its Parent and Subsidiaries, by offering them an opportunity to participate
in the Company’s future performance through awards of Options and Restricted Stock. Capitalized
terms not defined in the text are defined in Section 22 hereof. Although this Plan is intended to
be a written compensatory benefit plan within the meaning of Rule 701 promulgated under the
Securities Act, grants may be made pursuant to this plan which do not qualify for exemption under
Rule 701 or Section 25102(o) of the California Corporations Code. Any requirement of this Plan
which is required in law only because of Section 25102(o) need not apply if the Committee so
provides.



     2. SHARES SUBJECT TO THE PLAN.



          2.1 Number of Shares Available. Subject to Sections 2.2 and 17, the total
number of Shares reserved and available for grant and issuance pursuant to this Plan will be
27,693,764 Shares plus (a) shares that are subject to issuance upon exercise of an option granted
under the Company’s 2000 Stock Plan (“Prior Plan”) but cease to be subject to such option for any
reason other than exercise of such option; and (b) shares that were issued under the Prior Plan
which are repurchased by the Company at the original issue price or forfeited or such lesser number
of Shares as permitted under Section 260.140.45 of Title 10 of the California Code of Regulations.


Subject to Sections 2.2, 5.10 and 17 hereof, Shares subject to Awards previously granted will again
be available for grant and issuance in connection with future Awards under this Plan to the extent
such Shares: (i) cease to be subject to issuance upon exercise of an Option, other than due to
exercise of such Option; (ii) are subject to an Award granted hereunder but the Shares subject to
such Award are forfeited or repurchased by the Company at the original issue price; or (iii) are




 









 







subject to an Award that otherwise terminates without Shares being issued. At all times the
Company will reserve and keep available a sufficient number of Shares as will be required to
satisfy the requirements of all Awards granted and outstanding under this Plan.




          2.2 Adjustment of Shares. In the event that the number of outstanding
shares of the Company’s Common Stock is changed by a stock dividend, recapitalization, stock split,
reverse stock split, subdivision, combination, reclassification or similar change in the capital
structure of the Company without consideration, then (i) the number of Shares reserved for issuance
under this Plan, (ii) the Exercise Prices of and number of Shares subject to outstanding Options
and (iii) the Purchase Prices of and number of Shares subject to other outstanding Awards will be
proportionately adjusted, subject to any required action by the Board or the stockholders of the
Company and compliance with applicable securities laws; provided, however, that fractions of a
Share will not be issued but will either be paid in cash at the Fair Market Value of such fraction
of a Share or will be
rounded down to the nearest whole Share, as determined by the Committee; and provided,
further, that the Exercise Price of any Option may not be decreased to below the par value of the
Shares.



     3. ELIGIBILITY. ISOs (as defined in Section 5 hereof) may be granted only
to employees (including officers and directors who are also employees) of the Company or of a
Parent or Subsidiary of the Company. NQSOs (as defined in Section 5 hereof) and Restricted Stock
Awards may be granted to employees, officers, directors and consultants of the Company or any
Parent or Subsidiary of the Company; provided such consultants render bona fide services not in
connection with the offer and sale of securities in a capital-raising transaction. A person may be
granted more than one Award under this Plan.



     4. ADMINISTRATION.



          4.1 Committee Authority. This Plan will be administered by the Committee or
the Board if no Committee is created by the Board. Subject to the general purposes, terms and
conditions of this Plan, and to the direction of the Board, the Committee will have full power to
implement and carry out this Plan. Without limitation, the Committee will have the authority to:



               (a) construe and interpret this Plan, any Award Agreement and any other agreement or
document executed pursuant to this Plan;



               (b) prescribe, amend and rescind rules and regulations relating to this Plan;



               (c) approve persons to receive Awards;



               (d) determine the form and terms of Awards;



               (e) determine the number of Shares or other consideration subject to Awards;



               (f) determine whether Awards will be granted singly, in combination with, in tandem
with, in replacement of, or as alternatives to, other Awards under this Plan or



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awards under any other incentive or compensation plan of the Company or any Parent or Subsidiary of the Company;




               (g) grant waivers of any conditions of this Plan or any Award;



               (h) determine the terms of vesting, exercisability and payment of Awards;



               (i) correct any defect, supply any omission, or reconcile any inconsistency in this
Plan, any Award, any Award Agreement, any Exercise Agreement or any Restricted Stock Purchase
Agreement;



               (j) determine whether an Award has been earned;



               (k) make all other determinations necessary or advisable for the administration of
this Plan; and



               (l) extend the vesting period beyond a Participant’s Termination Date.



          4.2 Committee Discretion. Unless in contravention of any express terms of
this Plan or Award, any determination made by the Committee with respect to any Award will be made
in its sole discretion either (i) at the time of grant of the Award, or (ii) subject to Section 5.9
hereof, at any later time. Any such determination will be final and binding on the Company and on
all persons having an interest in any Award under this Plan. The Committee may delegate to one or
more officers of the Company the authority to grant an Award under this Plan, provided such officer
or officers are members of the Board.



     5. OPTIONS. The Committee may grant Options to eligible persons described
in Section 3 hereof and will determine whether such Options will be Incentive Stock Options within
the meaning of the Code (“ISOs”) or Nonqualified Stock Options (“NQSOs”), the number of Shares
subject to the Option, the Exercise Price of the Option, the period during which the Option may be
exercised, and all other terms and conditions of the Option, subject to the following:



          5.1 Form of Option Grant. Each Option granted under this Plan will be
evidenced by an Award Agreement which will expressly identify the Option as an ISO or an NQSO
(“Stock Option Agreement”), and will be in such form and contain such provisions (which need not be
the same for each Participant) as the Committee may from time to time approve, and which will
comply with and be subject to the terms and conditions of this Plan.



          5.2 Date of Grant. The date of grant of an Option will be the date on which
the Committee makes the determination to grant such Option, unless a later date is otherwise
specified by the Committee. The Stock Option Agreement and a copy of this Plan will be delivered
to the Participant within a reasonable time after the granting of the Option.



          5.3 Exercise Period. Options may be exercisable immediately but subject to
repurchase pursuant to Section 11 hereof or may be exercisable within the times or upon the events
determined by the Committee as set forth in the Stock Option Agreement governing such



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Option; provided, however, that no Option will be exercisable after the expiration of ten (10) years from
the date the Option is granted; and provided further that no ISO granted to a person who directly
or by attribution owns more than ten percent (10%) of the total combined voting power of all
classes of stock of the Company or of any Parent or Subsidiary of the Company (“Ten Percent
Shareholder”) will be exercisable after the expiration of five (5) years from the date the ISO is
granted. The Committee also may provide for Options to become exercisable at one time or from time
to time, periodically or otherwise, in such number of Shares or percentage of Shares as the
Committee determines. Subject to earlier termination of the Option as provided herein, to the
extent section 25102(o) of the California Corporations Code is intended to apply, each Participant
who is not an officer, director or consultant of the Company or of a Parent or Subsidiary of the
Company shall have the right to exercise an Option granted hereunder at the rate of no less than
twenty percent (20%) per year over five (5) years from the date such Option is granted.




          5.4 Exercise Price. The Exercise Price of an Option will be determined by
the Committee when the Option is granted and may not be less than eighty-five percent (85%) of the
Fair Market Value of the Shares on the date of grant; provided that (i) the Exercise Price of an
ISO will not be less than one hundred percent (100%) of the Fair Market Value of the Shares on the
date of grant and (ii) the Exercise Price of any Option granted to a Ten Percent Shareholder will
not be less than one hundred ten percent (110%) of the Fair Market Value of the Shares on the date
of grant. Payment for the Shares purchased must be made in accordance with Section 7 hereof.



          5.5 Method of Exercise. Options may be exercised only by delivery to the
Company of a written stock option exercise agreement (the “Exercise Agreement”) in a form approved
by the Committee (which need not be the same for each Participant). The Exercise Agreement will
state (i) the number of Shares being purchased, (ii) the restrictions imposed on the Shares
purchased under such Exercise Agreement, if any, and (iii) such representations and agreements
regarding Participant’s investment intent and access to information and other matters, if any, as
may be required or desirable by the Company to comply with applicable securities laws. Participant
shall execute and deliver to the Company the Exercise Agreement together with payment in full of
the Exercise Price, and any applicable taxes, for the number of Shares being purchased.



          5.6 Termination. Subject to earlier termination pursuant to Sections 17 and
18 hereof and notwithstanding the exercise periods set forth in the Stock Option Agreement,
exercise of an Option will always be subject to the following:



               (a) If the Participant is Terminated for any reason other than death, Disability or
for Cause, then the Participant may exercise such Participant’s Options only to the extent that
such Options are exercisable as to Vested Shares upon the Termination Date or as otherwise
determined by the Committee. Such
Options must be exercised by the Participant, if at all, as to all or some of the Vested
Shares calculated as of the Termination Date or such other date determined by the Committee, within
three (3) months after the Termination Date (or within such shorter time period, not less than
thirty (30) days, or within such longer time period, not exceeding five (5) years, after the
Termination Date as may be determined by the Committee,



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with any exercise beyond three (3) months
after the Termination Date deemed to be an NQSO) but in any event, no later than the expiration
date of the Options.




               (b) If the Participant is Terminated because of Participant’s death or Disability
(or the Participant dies within three (3) months after a Termination other than for Cause), then
Participant’s Options may be exercised only to the extent that such Options are exercisable as to
Vested Shares by Participant on the Termination Date or as otherwise determined by the Committee.
Such options must be exercised by Participant (or Participant’s legal representative or authorized
assignee), if at all, as to all or some of the Vested Shares calculated as of the Termination Date
or such other date determined by the Committee, within twelve (12) months after the Termination
Date (or within such shorter time period, not less than six (6) months, or within such longer time
period, not exceeding five (5) years, after the Termination Date as may be determined by the
Committee, with any exercise beyond (i) three (3) months after the Termination Date when the
Termination is for any reason other than the Participant’s death or disability, within the meaning
of Section 22(e)(3) of the Code, or (ii) twelve (12) months after the Termination Date when the
Termination is for Participant’s disability, within the meaning of Section 22(e)(3) of the Code,
deemed to be an NQSO) but in any event no later than the expiration date of the Options.



               (c) If the Participant is terminated for Cause, the Participant may exercise such
Participant’s Options, but not to an extent greater than such Options are exercisable as to Vested
Shares upon the Termination Date and Participant’s Options shall expire on such Participant’s
Termination Date, or at such later time and on such conditions as are determined by the Committee.



          5.7 Limitations on Exercise. The Committee may specify a reasonable minimum
number of Shares that may be purchased on any exercise of an Option, provided that such minimum
number will not prevent Participant from exercising the Option for the full number of Shares for
which it is then exercisable.



          5.8 Limitations on ISOs. The aggregate Fair Market Value (determined as of
the date of grant) of Shares with respect to which ISOs are exercisable for the first time by a
Participant during any calendar year (under this Plan or under any other incentive stock option
plan of the Company or any Parent or Subsidiary of the Company) will not exceed One Hundred
Thousand Dollars ($100,000). If the Fair Market Value of Shares on the date of grant with respect
to which ISOs are exercisable for the first time by a Participant during any calendar year exceeds
One Hundred Thousand Dollars ($100,000), then the Options for the first One Hundred Thousand
Dollars ($100,000) worth of Shares to become exercisable in such calendar year will be ISOs and the
Options for the amount in excess of One Hundred Thousand Dollars ($100,000) that become exercisable
in that calendar year will be NQSOs. In the event that the Code or the regulations promulgated
thereunder are amended after the Effective Date (as defined in Section 18 hereof) to provide for a
different limit on the Fair Market Value of Shares permitted to be subject to ISOs, then such
different limit will be automatically incorporated herein and will apply to any Options granted
after the effective date of such amendment.



          5.9 Modification, Extension or Renewal. The Committee may modify, extend or
renew outstanding Options and authorize the grant of new Options in substitution



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therefor, provided that any such action may not, without the written consent of a Participant, impair any of such
Participant’s rights under any Option previously granted. Any outstanding ISO that is modified,
extended, renewed or otherwise altered will be treated in accordance with Section 424(h) of the
Code. Subject to Section 5.10 hereof, the Committee may reduce the Exercise Price of outstanding
Options without the consent of Participants by a written notice to them; provided, however, that
the Exercise Price may not be reduced below the minimum Exercise Price that would be permitted
under Section 5.4 hereof for Options granted on the date the action is taken to reduce the Exercise
Price; provided, further, that the Exercise Price will not be reduced below the par value of the
Shares, if any.




          5.10 No Disqualification. Notwithstanding any other provision in this Plan,
no term of this Plan relating to ISOs will be interpreted, amended or altered, nor will any
discretion or authority granted under this Plan be exercised, so as to disqualify this Plan under
Section 422 of the Code or, without the consent of the
Participant, to disqualify any Participant’s ISO under Section 422 of the Code. In no event
shall the total number of Shares issued (counting each reissuance of a Share that was previously
issued and then forfeited or repurchased by the Company as a separate issuance) under the Plan upon
exercise of ISOs exceed 50,000,000 Shares (adjusted in proportion to any adjustments under Section
2.2 hereof) over the term of the Plan.



     6. RESTRICTED STOCK. A Restricted Stock Award is an offer by the Company to
sell to an eligible person Shares that are subject to certain specified restrictions. The
Committee will determine to whom an offer will be made, the number of Shares the person may
purchase, the Purchase Price, the restrictions to which the Shares will be subject, and all other
terms and conditions of the Restricted Stock Award, subject to the following:



          6.1 Form of Restricted Stock Award. All purchases under a Restricted Stock
Award made pursuant to this Plan will be evidenced by an Award Agreement (“Restricted Stock
Purchase Agreement”) that will be in such form (which need not be the same for each Participant) as
the Committee will from time to time approve, and will comply with and be subject to the terms and
conditions of this Plan. The Restricted Stock Award will be accepted by the Participant’s
execution and delivery of the Restricted Stock Purchase Agreement and full payment for the Shares
to the Company within thirty (30) days from the date the Restricted Stock Purchase Agreement is
delivered to the person. If such person does not execute and deliver the Restricted Stock Purchase
Agreement along with full payment for the Shares to the Company within such thirty (30) days, then
the offer will terminate, unless otherwise determined by the Committee.



          6.2 Purchase Price. The Purchase Price of Shares sold pursuant to a
Restricted Stock Award will be determined by the Committee and will be at least eighty-five percent
(85%) of the Fair Market Value of the Shares on the date the Restricted Stock Award is granted or
at the time the purchase is consummated, except in the case of a sale to a Ten Percent Shareholder,
in which case the Purchase Price will be one hundred percent (100%) of the Fair Market Value on the
date the Restricted Stock Award is granted or at the time the purchase is consummated. Payment of
the Purchase Price must be made in accordance with Section 7 hereof.



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          6.3 Restrictions. Restricted Stock Awards may be subject to the
restrictions set forth in Section 11 hereof or such other restrictions not inconsistent with
Section 25102(o) of the California Corporations Code.



     7. PAYMENT FOR SHARE PURCHASES.



          7.1 Payment. Payment for Shares purchased pursuant to this Plan may be made
in cash (by check) or, where expressly approved for the Participant by the Committee and where
permitted by law:



               (a) by cancellation of indebtedness of the Company owed to the Participant;



               (b) by surrender of shares that: (i) either (A) have been owned by Participant for
more than six (6) months and have been paid for within the meaning of SEC Rule 144 (and, if such
shares were purchased from the Company by use of a promissory note, such note has been fully paid
with respect to such shares) or (B) were obtained by Participant in the public market and (ii) are
clear of all liens, claims, encumbrances or security interests;



               (c) by tender of a full recourse promissory note having such terms as may be
approved by the Committee and bearing interest at a rate sufficient to avoid (i) imputation of
income under Sections 483 and 1274 of the Code and (ii) variable accounting treatment under
Financial Accounting Standards Board Interpretation No. 44 to APB No. 25; provided, however, that
Participants who are not employees or directors of the Company will not be entitled to purchase
Shares with a promissory note unless the note is adequately secured by collateral other than the
Shares; provided, further, that the portion of the Exercise Price or Purchase Price, as the case
may be, equal to the par value of the Shares must be paid in cash or other legal consideration
permitted by Delaware General Corporation Law;



               (d) by waiver of compensation due or accrued to the Participant from the Company for
services rendered;



               (e) with respect only to purchases upon exercise of an Option, and provided that a
public market for the Company’s stock exists:



                    (i) through a “same day sale” commitment from the Participant and a broker-dealer
that is a member of the National Association of Securities Dealers (an “NASD Dealer”) whereby the
Participant irrevocably elects to exercise the Option and to sell a portion of the Shares so
purchased sufficient to pay the total Exercise Price, and whereby the NASD Dealer irrevocably
commits upon receipt of such Shares to forward the total Exercise Price directly to the Company; or



                    (ii) through a “margin” commitment from the Participant and an NASD Dealer whereby
the Participant irrevocably elects to exercise the Option and to pledge the Shares so purchased to
the NASD Dealer in a margin account as security for a loan from the NASD Dealer in the amount of
the total Exercise Price, and whereby the NASD Dealer irrevocably commits upon receipt of such
Shares to forward the total Exercise Price directly to the Company; or



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               (f) by any combination of the foregoing.



          7.2 Loan Guarantees. The Committee may, in its sole discretion, elect to
assist the Participant in paying for Shares purchased under this Plan by authorizing a guarantee by
the Company of a third-party loan to the Participant.



     8. WITHHOLDING TAXES.



          8.1 Withholding Generally. Whenever Shares are to be issued in satisfaction
of Awards granted under this Plan, the Company may require the Participant to remit to the Company
an amount sufficient to satisfy federal, state and local withholding tax requirements prior to the
delivery of any certificate or certificates for such Shares. Whenever, under this Plan, payments
in satisfaction of Awards are to be made in cash by the Company, such payment will be net of an
amount sufficient to satisfy federal, state, and local withholding tax requirements.



          8.2 Stock Withholding. When, under applicable tax laws, a Participant
incurs tax liability in connection with the exercise or vesting of any Award that is subject to tax
withholding and the Participant is obligated to pay the Company the amount required to be withheld,
the Committee may in its sole discretion allow the Participant to satisfy the minimum withholding
tax obligation by electing to have the Company withhold from the Shares to be issued that minimum
number of Shares having a Fair Market Value equal to the minimum amount required to be withheld,
determined on the date that the amount of tax to be withheld is to be determined; but in no event
will the Company withhold Shares if such withholding would result in adverse accounting
consequences to the Company. All elections by a Participant to have Shares withheld for this
purpose will be made in accordance with the requirements established by the Committee for such
elections and be in writing in a form acceptable to the Committee.



     9. PRIVILEGES OF STOCK OWNERSHIP.



          9.1 Voting and Dividends. No Participant will have any of the rights of a
stockholder with respect to any Shares until the Shares are issued to the Participant. After
Shares are issued to the Participant, the Participant will be a stockholder and have all the rights
of a stockholder with respect to such Shares, including the right to vote and receive all dividends
or other distributions made or paid with respect to such Shares; provided, that if such Shares are
Restricted Stock, then any new, additional or different securities the Participant may become
entitled to receive with respect to such Shares by virtue of a stock dividend, stock split or any
other change in the corporate or capital structure of the Company will be subject to the same
restrictions as the Restricted Stock. The Participant will have no right to retain such stock
dividends or stock distributions with respect to Unvested Shares
that are repurchased pursuant to Section 11 hereof. To the extent required, the Company will
comply with Section 260.140.1 of Title 10 of the California Code of Regulations with respect to the
voting rights of Common Stock.



          9.2 Financial Statements. The Company will provide financial statements to
each Participant annually during the period such Participant has Awards outstanding, or as
otherwise required under Section 260.140.46 of Title 10 of the California Code of Regulations.



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Notwithstanding the foregoing, the Company will not be required to provide such financial
statements to Participants when issuance of Awards is limited to key employees whose services in
connection with the Company assure them access to equivalent information.




     10. TRANSFERABILITY. Except as permitted by the Committee, Awards granted
under this Plan, and any interest therein, will not be transferable or assignable by Participant,
other than by will or by the laws of descent and distribution, and, with respect to NQSOs, by
instrument to an inter vivos or testamentary trust in which the options are to be passed to
beneficiaries upon the death of the trustor (settlor), or by gift to “immediate family” as that
term is defined in 17 C.F.R. 240.16a-1(e), and may not be made subject to execution, attachment or
similar process. During the lifetime of the Participant an Award will be exercisable only by the
Participant or Participant’s legal representative and any elections with respect to an Award may be
made only by the Participant or Participant’s legal representative.



     11. RESTRICTIONS ON SHARES.



          11.1 Right of First Refusal. At the discretion of the Committee, the
Company may reserve to itself and/or its assignee(s) in the Award Agreement a right of first
refusal to purchase all Shares that a Participant (or a subsequent transferee) may propose to
transfer to a third party, unless otherwise not permitted by Section 25102(o) of the California
Corporations Code, provided that such right of first refusal terminates upon the Company’s initial
public offering of Common Stock pursuant to an effective registration statement filed under the
Securities Act.



          11.2 Right of Repurchase. At the discretion of the Committee, the Company
may reserve to itself and/or its assignee(s) in the Award Agreement a right to repurchase Unvested
Shares held by a Participant for cash and/or cancellation of purchase money indebtedness owed to
the Company by the Participant following such Participant’s Termination at any time within the
later of ninety (90) days after the Participant’s Termination Date and the date the Participant
purchases Shares under the Plan at the Participant’s Exercise Price or Purchase Price, as the case
may be, provided that to the extent Section 25102(o) of the California Corporations Code is
intended to apply, unless the Participant is an officer, director or consultant of the Company or
of a Parent or Subsidiary of the Company, such right of repurchase lapses at the rate of no less
than twenty percent (20%) per year over five (5) years from: (a) the date of grant of the Option
or (b) in the case of Restricted Stock, the date the Participant purchases the Shares.



     12. CERTIFICATES. All certificates for Shares or other securities delivered
under this Plan will be subject to such stock transfer orders, legends and other restrictions as
the Committee may deem necessary or advisable, including restrictions under any applicable federal,
state or foreign securities law, or any rules, regulations and other requirements of the SEC or any
stock exchange or automated quotation system upon which the Shares may be listed or quoted.



     13. ESCROW; PLEDGE OF SHARES. To enforce any restrictions on a
Participant’s Shares set forth in Section 11 hereof, the Committee may require the Participant to
deposit all certificates representing Shares, together with stock powers or other instruments of
transfer approved by the Committee, appropriately endorsed in blank, with the Company or an



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agent designated by the Company to hold in escrow until such restrictions have lapsed or terminated. The
Committee may cause a legend or legends referencing such restrictions to be placed on the
certificates. Any Participant who is permitted to execute a promissory note as partial or full
consideration for the purchase of Shares under this Plan will be required to pledge and deposit
with the Company all or part of the Shares so purchased as collateral to secure the payment of
Participant’s obligation to the Company under the promissory note; provided, however, that the
Committee may require or accept other or additional forms of collateral to secure the payment of
such obligation and, in any event, the Company will have full recourse against the Participant
under the promissory note notwithstanding any pledge of the Participant’s Shares or other
collateral. In connection with any pledge of the Shares, Participant will be required to execute
and deliver a written pledge agreement in such form as the Committee will from time to time
approve. The Shares purchased with the promissory note may be released from the pledge on a pro
rata basis as the promissory note is paid.




     14. EXCHANGE AND BUYOUT OF AWARDS. The Committee may, at any time or from
time to time, authorize the Company, with the consent of the respective Participants, to issue new
Awards in exchange for the surrender and cancellation of any or all outstanding Awards. The
Committee may at any time buy from a Participant an Award previously granted with payment in cash,
shares of Common Stock of the Company (including Restricted Stock) or other consideration, based on
such terms and conditions as the Committee and the Participant may agree.



     15. SECURITIES LAW AND OTHER REGULATORY COMPLIANCE. Although this Plan is
intended to be a written compensatory benefit plan within the meaning of Rule 701 promulgated under
the Securities Act, grants may be made pursuant to this plan which do not qualify for exemption
under Rule 701 or Section 25102(o) of the California Corporations Code. Any requirement of this
Plan which is required in law only because of Section 25102(o) need not apply if the Committee so
provides. An Award will not be effective unless such Award is in compliance with all applicable
federal and state securities laws, rules and regulations of any governmental body, and the
requirements of any stock exchange or automated quotation system upon which the Shares may then be
listed or quoted, as they are in effect on the date of grant of the Award and also on the date of
exercise or other issuance. Notwithstanding any other provision in this Plan, the Company will
have no obligation to issue or deliver certificates for Shares under this Plan prior to (i)
obtaining any approvals from governmental agencies that the Company determines are necessary or
advisable, and/or (ii) compliance with any exemption, completion of any registration or other
qualification of such Shares under any state or federal law or ruling of any governmental body that
the Company determines to be necessary or advisable. The Company will be under no obligation to
register the Shares with the SEC or to effect compliance with the exemption, registration,
qualification or listing requirements of any state securities laws, stock exchange or automated
quotation system, and the Company will have no liability for any inability or failure to do so.



     16. NO OBLIGATION TO EMPLOY. Nothing in this Plan or any Award granted
under this Plan will confer or be deemed to confer on any Participant any right to continue in the
employ of, or to continue any other relationship with, the Company or any Parent or Subsidiary of the Company or limit in any way the right of the Company or any Parent or Subsidiary of the



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Company to terminate Participant’s employment or other relationship at any time, with or without Cause.




     17. CORPORATE TRANSACTIONS.



          17.1 Assumption or Replacement of Awards by Successor or Acquiring Company.
In the event of (i) a dissolution or liquidation of the Company, (ii) any reorganization,
consolidation, merger or similar transaction or series of related transactions (each, a
“combination transaction”)) in which the Company is a constituent corporation or is a party if, as
a result of such combination transaction, the voting securities of the Company that are outstanding
immediately prior to the consummation of such combination transaction (other than
any such securities that are held by an “Acquiring Stockholder”, as defined below) do not
represent, or are not converted into, securities of the surviving corporation of such combination
transaction (or such surviving corporation’s parent corporation if the surviving corporation is
owned by the parent corporation) that, immediately after the consummation of such combination
transaction, together possess at least a majority of the total voting power of all securities of
such surviving corporation (or its parent corporation, if applicable) that are outstanding
immediately after the consummation of such combination transaction, including securities of such
surviving corporation (or its parent corporation, if applicable) that are held by the Acquiring
Stockholder; or (b) a sale of all or substantially all of the assets of the Company, that is
followed by the distribution of the proceeds to the Company’s stockholders, any or all outstanding
Awards may be assumed, converted or replaced by the successor or acquiring corporation (if any),
which assumption, conversion or replacement will be binding on all Participants. In the
alternative, the successor or acquiring corporation may substitute equivalent Awards or provide
substantially similar consideration to Participants as was provided to stockholders of the Company
(after taking into account the existing provisions of the Awards). The successor or acquiring
corporation may also substitute by issuing, in place of
outstanding Shares of the Company held by the Participant, substantially similar shares or
other property subject to repurchase restrictions and other provisions no less favorable to the
Participant than those which applied to such outstanding Shares immediately prior to such
transaction described in this Section 17.1. For purposes of this Section 17.1, an “Acquiring
Stockholder” means a stockholder or stockholders of the Company that (i) merges or combines with
the Company in such combination transaction or (ii) owns or controls a majority of another
corporation that merges or combines with the Corporation in such combination transaction. In the
event such successor or acquiring corporation (if any) does not assume, convert, replace or
substitute Awards, as provided above, pursuant to a transaction described in this Section 17.1,
then notwithstanding any other provision in this Plan to the contrary, the vesting of such Awards
will accelerate and the Options will become exercisable in full prior to the consummation of such
event at such times and on such conditions as the Committee determines, and if such Options are not
exercised prior to the consummation of the corporate transaction, they shall terminate in
accordance with the provisions of this Plan.



          17.2 Other Treatment of Awards. Subject to any greater rights granted to
Participants under the foregoing provisions of this Section 17, in the event of the occurrence of
any transaction described in Section 17.1 hereof, any outstanding Awards will be treated as
provided in the applicable agreement or plan of reorganization, merger, consolidation, dissolution,
liquidation or sale of assets.



11









 





          17.3 Assumption of Awards by the Company. The Company, from time to time,
also may substitute or assume outstanding awards granted by another company, whether in connection
with an acquisition of such other company or otherwise, by either (i) granting an Award under this
Plan in substitution of such other company’s award or (ii) assuming such award as if it had been
granted under this Plan if the terms of such assumed award could be applied to an Award granted
under this Plan. Such substitution or assumption will be permissible if the holder of the
substituted or assumed award would have been eligible to be granted an Award under this Plan if the
other company had applied the rules of this Plan to such grant. In the event the Company assumes
an award granted by another company, the terms and conditions of such award will remain unchanged
(except that the exercise price and the number and nature of shares issuable upon exercise of any
such option will be adjusted appropriately pursuant to Section 424(a) of the Code). In the event
the Company elects to grant a new Option rather than assuming an existing option, such new Option
may be granted with a similarly adjusted Exercise Price.



     18. ADOPTION AND STOCKHOLDER APPROVAL. This Plan will become effective on
the date that it is adopted by the Board (the “Effective Date”). This Plan will be approved by the
stockholders of the Company (excluding Shares issued pursuant to this Plan), consistent with
applicable laws, within twelve (12) months before or after the Effective Date. Upon the Effective
Date, the Board may grant Awards pursuant to this Plan; provided, however, that: (i) no Option may
be exercised prior to initial stockholder approval of this Plan; (ii) no Option granted pursuant to
an increase in the number of Shares approved by the Board shall be exercised prior to the time such
increase has been approved by the stockholders of the Company; (iii) in the event that initial
stockholder approval is not obtained within the time period provided herein, all Awards granted
hereunder shall be canceled, any Shares issued pursuant to any Award shall be canceled and any
purchase of Shares issued hereunder shall be rescinded; and (iv) Awards granted pursuant to an
increase in the number of Shares approved by the Board which increase is not timely approved by
stockholders shall be canceled, any Shares issued pursuant to any such Awards shall be canceled,
and any purchase of Shares subject to any such Award shall be rescinded.



     19. TERM OF PLAN/GOVERNING LAW. Unless earlier terminated as provided
herein, this Plan will terminate ten (10) years from the Effective Date or, if earlier, the date of
stockholder approval. This Plan and all agreements hereunder shall be governed by and construed in
accordance with the laws of the State of California.



     20. AMENDMENT OR TERMINATION OF PLAN. Subject to Section 5.9 hereof, the
Board may at any time terminate or amend this Plan in any respect, including without limitation
amendment of any form of Award Agreement or instrument to be executed pursuant to this Plan;
provided, however, that the Board will not, without the approval of the stockholders of the
Company, amend this Plan in any manner that requires such stockholder approval pursuant to Section
25102(o) of the California Corporations Code or the Code or the regulations promulgated thereunder
as such provisions apply to ISO plans.



     21. NONEXCLUSIVITY OF THE PLAN. Neither the adoption of this Plan by the
Board, the submission of this Plan to the stockholders of the Company for approval, nor any
provision of this Plan will be construed as creating any limitations on the power of the Board to




12











 




adopt such additional compensation arrangements as it may deem desirable, including, without limitation, the granting of stock options and other equity awards otherwise than under this Plan, and such arrangements may be either generally applicable or applicable only in specific cases.




     22. DEFINITIONS. As used in this Plan, the following terms will have the following
meanings:



          “Award” means any award under this Plan, including any Option or Restricted Stock Award.




          “Award Agreement” means, with respect to each Award, the signed written agreement between the
Company and the Participant setting forth the terms and conditions of the Award, including the
Stock Option Agreement and Restricted Stock Agreement.




          “Board” means the Board of Directors of the Company.




          “Cause” means Termination because of (i) any willful, material violation by the Participant of
any law or regulation applicable to the business of the Company or a Parent or Subsidiary of the
Company, the Participant’s conviction for, or guilty plea to, a felony or a crime involving moral
turpitude, or any willful perpetration by the Participant of a common law fraud, (ii) the
Participant’s commission of an act of personal dishonesty which involves personal profit in
connection with the Company or any other entity having a business relationship with the Company,
(iii) any material breach by the Participant of any provision of any agreement or understanding
between the Company or any Parent or Subsidiary of the Company and the Participant regarding the
terms of the Participant’s service as an employee, officer, director or consultant to the Company
or a Parent or Subsidiary of the Company, including without limitation, the willful and continued
failure or refusal of the Participant to perform the material duties required of such Participant
as an employee, officer, director or consultant of the Company or a Parent or Subsidiary of the
Company, other than as a result of having a Disability, or a breach of any applicable invention
assignment and confidentiality agreement or similar agreement between the Company or a Parent or
Subsidiary of the Company and the Participant, (iv) Participant’s disregard of the policies of the
Company or any Parent or Subsidiary of the Company so as to cause loss, damage or injury to the
property, reputation or employees of the Company or a Parent or Subsidiary of the Company, or (v)
any other misconduct by the Participant which is materially injurious to the financial condition or
business reputation of, or is otherwise materially injurious to, the Company or a Parent or
Subsidiary of the Company.




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




          “Committee” means the committee created and appointed by the Board to administer this Plan, or
if no committee is created and appointed, the Board.




          “Company” means Siperian, Inc., or any successor corporation.




          “Disability” means a disability, whether temporary or permanent, partial or total, as
determined by the Committee.







13









 








          “Exercise Price” means the price at which a holder of an Option may purchase the Shares
issuable upon exercise of the Option.




          “Fair Market Value” means, as of any date, the value of a share of the Company’s Common Stock
determined as follows:




               (a) if such Common Stock is then quoted on the Nasdaq National Market, its closing price on
the Nasdaq National Market on the date of determination as reported in The Wall Street
Journal;



               (b) if such Common Stock is publicly traded and is then listed on a national securities
exchange, its closing price on the date of determination on the principal national securities
exchange on which the Common Stock is listed or admitted to trading as reported in The Wall
Street Journal;



               (c) if such Common Stock is publicly traded but is not quoted on the Nasdaq National Market
nor listed or admitted to trading on a national securities exchange, the average of the closing bid
and asked prices on the date of determination as reported by The Wall Street Journal (or,
if not so reported, as otherwise reported by any newspaper or other source as the Board may
determine); or



               (d) if none of the foregoing is applicable, by the Committee in good faith.



          “Option” means an award of an option to purchase Shares pursuant to Section 5 hereof.




          “Parent” means any corporation (other than the Company) in an unbroken chain of corporations
ending with the Company if each of such corporations other than the Company owns stock representing
fifty percent (50%) or more of the total combined voting power of all classes of stock in one of
the other corporations in such chain.




          “Participant” means a person who receives an Award under this Plan.




          “Plan” means this Siperian, Inc. 2003 Equity Incentive Plan, as amended from time to time.




          “Purchase Price” means the price at which a Participant may purchase Restricted Stock.




          “Restricted Stock” means Shares purchased pursuant to a Restricted Stock Award.




          “Restricted Stock Award” means an award of Shares pursuant to Section 6 hereof.




          “SEC” means the Securities and Exchange Commission.




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







14









 








          “Shares” means shares of the Company’s Common Stock, $0.001 par value per share, reserved for
issuance under this Plan, as adjusted pursuant to Sections 2 and 17 hereof, and any successor
security.




          “Subsidiary” means any corporation (other than the Company) in an unbroken chain of
corporations beginning with the Company if each of the corporations other than the last corporation
in the unbroken chain owns stock representing fifty percent (50%) or more of the total combined
voting power of all classes of stock in one of the other corporations in such chain.




          “Termination” or “Terminated” means, for purposes of this Plan with respect to a Participant,
that the Participant has for any reason ceased to provide services as an employee, officer,
director or consultant to the Company or a Parent or Subsidiary of the Company. A Participant will
not be deemed to have ceased to provide services in the case of (i) sick leave, (ii) military
leave, or (iii) any other leave of absence approved by the Committee, provided that such leave is
for a period of not more than ninety (90) days (a) unless reinstatement (or, in the case of an
employee with an ISO, reemployment) upon the expiration of such leave is guaranteed by contract or
statute, or (b) unless provided otherwise pursuant to formal policy adopted from time to time by
the Company’s Board and issued and promulgated in writing. In the case of any Participant on (i)
sick leave, (ii) military leave or (iii) an approved leave of absence, the Committee may make such
provisions respecting suspension of vesting of the Award while on leave from the Company or a
Parent or Subsidiary of the Company as it may deem appropriate, except that in no event may an
Option be exercised after the expiration of the term set forth in the Stock Option Agreement. The
Committee will have sole discretion to determine whether a Participant has ceased to provide
services and the effective date on which the Participant ceased to provide services (the
“Termination Date”).




          “Unvested Shares” means “Unvested Shares” as defined in the Award Agreement.




          “Vested Shares” means “Vested Shares” as defined in the Award Agreement.
















15









 












SIPERIAN, INC.




2003 EQUITY INCENTIVE PLAN



STOCK OPTION AGREEMENT



     This Stock Option Agreement (the “Agreement”) is made and entered into as of the date of grant
set forth below (the “Date of Grant”) by and between Siperian, Inc., a Delaware corporation (the
“Company”), and the participant named below (the “Participant”). Capitalized terms not defined
herein shall have the meaning ascribed to them in the Company’s 2003 Equity Incentive Plan (the
“Plan”).



	 	 	 	 	 
	Participant:

	 	 

	 
	Social Security Number:
	 	 
	 

	 	 
	 
	Address:
	 	 
	 

	 	 
	 
	 

	 	 
	 

	 	 
	 
	Total Option Shares:
	 	 
	 

	 	 
	 
	Exercise Price Per Share:
	 	 
	 

	 	 
	 
	Date of Grant:
	 	 
	 

	 	 
	 
	Vesting Start Date:
	 	 
	 

	 	 
	 
	Expiration Date:
	 	 
	 

	 	 
	 
	Type of Stock Option

	 	(unless earlier terminated under Section 5.6 of the Plan)
	 
	Classification of Optionee
	 	 
	 
	(Check one):

	 	o Incentive Stock Option
	 

	 	þ Nonqualified Stock Option






     1. GRANT OF OPTION. The Company hereby grants to Participant an option (this
“Option”) to purchase the total number of shares of Common Stock, $0.001 par value, of the Company
set forth above as Total Option Shares (the “Shares”) at the Exercise Price Per Share set forth
above (the “Exercise Price”), subject to all of the terms and conditions of this Agreement and the
Plan. If designated as an Incentive Stock Option above, the Option is intended to qualify as an
“incentive stock option” (the “ISO”) within the meaning of Section 422 of the Internal Revenue Code
of 1986, as amended (the “Code”).




 











 





     2. EXERCISE PERIOD.



          2.1 Exercise Period of Option; Vesting of Options. Provided Participant continues to
provide services to the Company or any Subsidiary or Parent of the Company, the Option will become
vested and exercisable as to portions of the Shares as follows: (i) this Option shall not vest nor
be exercisable with respect to any of the Shares until the first anniversary of the Vesting Start
Date set forth on the first page of this Agreement (the “First Vesting Date”); (ii) on the first
anniversary of the Vesting Start Date the Option will become vested and exercisable as to
Twenty-Five percent (25%) of the Shares; and (iii) thereafter at the end of each full succeeding
month the Option will become vested and exercisable as to 2.08333% of the Shares until
the Shares are vested with respect to one hundred percent (100%) of the Shares. If application of
the vesting percentage causes a fractional share, such share shall be rounded down to the nearest
whole share for each month except for the last month in such vesting period, at the end of which
last month this Option shall become vested and exercisable for the full remainder of the Shares.
Shares that are vested pursuant to the schedule set forth in Section 2.1 are “Vested Shares.”
Shares that are not vested pursuant to the schedule set forth in Section 2.1 are “Unvested Shares.”




          2.2 Expiration. The Option shall expire on the Expiration Date set forth above or
earlier as provided in Section 3 below or pursuant to Section 5.6 of the Plan.




     3. TERMINATION.



          3.1 Termination for Any Reason Except Death, Disability or Cause. If Participant is
Terminated for any reason, except death, Disability or for Cause, the Option, to the extent (and
only to the extent) that it would have been exercisable by Participant on the Termination Date, may
be exercised by Participant no later than three (3) months after the Termination Date, but in any
event no later than the Expiration Date.




          3.2 Termination Because of Death or Disability. If Participant is Terminated because
of death or Disability of Participant (or Participant dies within three (3) months of Termination
when Termination is for any reason other than Participant’s Disability or for Cause), the Option,
to the extent that it is exercisable by Participant on the Termination Date, may be exercised by
Participant (or Participant’s legal representative) no later than twelve (12) months after the
Termination Date, but in any event no later than the Expiration Date. Any exercise beyond
(i) three (3) months after the Termination Date when the Termination is for any reason other than
the Participant’s death or disability, within the meaning of Section 22(e)(3) of the Code; or
(ii) twelve (12) months after the Termination Date when the termination is for Participant’s
disability, within the meaning of Section 22(e)(3) of the Code, is deemed to be an NQSO.




          3.3 Termination for Cause. If the Participant is terminated for Cause, the
Participant may exercise such Participant’s Options, but not to an extent greater than such Options
are exercisable as to Vested Shares upon the Termination Date and Participant’s Options shall
expire on such Participant’s Termination Date, or at such later time and on such conditions as are
determined by the Committee.







2









 








          3.4 No Obligation to Employ. Nothing in the Plan or this Agreement shall confer on
Participant any right to continue in the employ of, or other relationship with, the Company or any
Parent or Subsidiary of the Company, or limit in any way the right of the Company or any Parent or
Subsidiary of the Company to terminate Participant’s employment or other relationship at any time,
with or without Cause.




     4. MANNER OF EXERCISE.



          4.1 Stock Option Exercise Agreement. To exercise this Option, Participant (or in the
case of exercise after Participant’s death or incapacity, Participant’s executor, administrator,
heir or legatee, as the case may be) must deliver to the Company an executed stock option exercise
agreement in the form attached hereto as Exhibit A, or in such other form as may be
approved by the Committee from time to time (the “Exercise Agreement”), which shall set forth,
inter alia, (i) Participant’s election to exercise the Option, (ii) the number of
Shares being purchased, (iii) any restrictions imposed on the Shares and (iv) any representations,
warranties and agreements regarding Participant’s investment intent and access to information as
may be required by the Company to comply with applicable securities laws. If someone other than
Participant exercises the Option, then such person must submit documentation reasonably acceptable
to the Company verifying that such person has the legal right to exercise the Option and such
person shall be subject to all of the restrictions contained herein as if such person were the
Participant.




          4.2 Limitations on Exercise. The Option may not be exercised unless such exercise is
in compliance with all applicable federal and state securities laws, as they are in effect on the
date of exercise. The Option may not be exercised as to fewer than one hundred (100) Shares unless
it is exercised as to all Shares as to which the Option is then exercisable.




          4.3 Payment. The Exercise Agreement shall be accompanied by full payment of the
Exercise Price for the shares being purchased in cash (by check), or where permitted by law:




               (a) by cancellation of indebtedness of the Company to the Participant;



               (b) by surrender of shares of the Company’s Common Stock that (i) either (A) have been owned
by Participant for more than six (6) months and have been paid for within the meaning of SEC
Rule 144 (and, if such shares were purchased from the Company by use of a promissory note, such
note has been fully paid with respect to such shares); or (B) were obtained by Participant in the
open public market; and (ii) are clear of all liens, claims, encumbrances or security interests;



               (c) by waiver of compensation due or accrued to Participant for services rendered;



               (d) provided that a public market for the Company’s stock exists: (i) through a “same day
sale” commitment from Participant and a broker-dealer that is a member of the National Association
of Securities Dealers (an “NASD Dealer”) whereby Participant irrevocably elects to exercise the
Option and to sell a portion of the Shares so purchased sufficient to pay for the total Exercise
Price and whereby the NASD Dealer irrevocably commits



3









 




upon receipt of such Shares to forward the total Exercise Price directly to the Company, or
(ii) through a “margin” commitment from Participant and an NASD Dealer whereby Participant
irrevocably elects to exercise the Option and to pledge the Shares so purchased to the NASD Dealer
in a margin account as security for a loan from the NASD Dealer in the amount of the total Exercise
Price, and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the
total Exercise Price directly to the Company; or




               (e) any other form of consideration approved by the Committee; or



               (f) by any combination of the foregoing.



          4.4 Tax Withholding. Prior to the issuance of the Shares upon exercise of the Option,
Participant must pay or provide for any applicable federal, state and local withholding obligations
of the Company. If the Committee permits, Participant may provide for payment of withholding taxes
upon exercise of the Option by requesting that the Company retain the minimum number of Shares with
a Fair Market Value equal to the minimum amount of taxes required to be withheld; but in no event
will the Company withhold Shares if such withholding would result in adverse accounting
consequences to the Company. In such case, the Company shall issue the net number of Shares to the
Participant by deducting the Shares retained from the Shares issuable upon exercise.




          4.5 Issuance of Shares. Provided that the Exercise Agreement and payment are in form
and substance satisfactory to counsel for the Company, the Company shall issue the Shares
registered in the name of Participant, Participant’s authorized assignee, or Participant’s legal
representative, and shall deliver certificates representing the Shares with the appropriate legends
affixed thereto.




     5. NOTICE OF DISQUALIFYING DISPOSITION OF ISO SHARES. If the Option is an ISO, and if
Participant sells or otherwise disposes of any of the Shares acquired pursuant to the ISO on or
before the later of (i) the date two (2) years after the Date of Grant, and (ii) the date one (1)
year after transfer of such Shares to Participant upon exercise of the Option, Participant shall
immediately notify the Company in writing of such disposition. Participant agrees that Participant
may be subject to income tax withholding by the Company on the compensation income recognized by
Participant from the early disposition by payment in cash or out of the current wages or other
compensation payable to Participant.



     6. COMPLIANCE WITH LAWS AND REGULATIONS. The Plan and this Agreement are intended to
comply with Section 25102(o) of the California Corporations Code and any regulations relating
thereto. Any provision of this Agreement which is inconsistent with Section 25102(o) or any
regulations relating thereto shall, without further act or amendment by the Company or the Board,
be reformed to comply with the requirements of Section 25102(o) and any regulations relating
thereto. The exercise of the Option and the issuance and transfer of Shares shall be subject to
compliance by the Company and Participant with all applicable requirements of federal and state
securities laws and with all applicable requirements of any stock exchange on which the Company’s
Common Stock may be listed at the time of such issuance or transfer. Participant understands that
the Company is under no obligation to register



4









 




or qualify the Shares with the SEC, any state securities commission or any stock exchange to
effect such compliance.




     7. NONTRANSFERABILITY OF OPTION. The Option may not be transferred in any manner
other than by will or by the laws of descent and distribution, and, with respect to NQSOs, by
instrument to an inter vivos or testamentary trust in which the options are to be passed to
beneficiaries upon the death of the trustor (settlor), or by gift to “immediate family” as that
term is defined in 17 C.F.R. 240.16a-1(e), and may be exercised during the lifetime of Participant
only by Participant or in the event of Participant’s incapacity, by Participant’s legal
representative. The terms of the Option shall be binding upon the executors, administrators,
successors and assigns of Participant.



     8. COMPANY’S RIGHT OF FIRST REFUSAL. Before any Vested Shares held by Participant or
any transferee of such Vested Shares may be sold or otherwise transferred (including without
limitation a transfer by gift or operation of law), the Company and/or its assignee(s) shall have
an assignable right of first refusal to purchase the Vested Shares to be sold or transferred on the
terms and conditions set forth in the Exercise Agreement (the “Right of First Refusal”). The
Company’s Right of First Refusal will terminate when the Company’s securities become publicly
traded.



     9. TAX CONSEQUENCES. Set forth below is a brief summary as of the Effective Date of
the Plan of some of the federal and California tax consequences of exercise of the Option and
disposition of the Shares. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND
REGULATIONS ARE SUBJECT TO CHANGE. PARTICIPANT SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THE
OPTION OR DISPOSING OF THE SHARES.



          9.1 Exercise of ISO. If the Option qualifies as an ISO, there will be no regular
federal or California income tax liability upon the exercise of the Option, although the excess, if
any, of the Fair Market Value of the Shares on the date of exercise over the Exercise Price will be
treated as a tax preference item for federal alternative minimum tax purposes and may subject the
Participant to the alternative minimum tax in the year of exercise.




          9.2 Exercise of Nonqualified Stock Option. If the Option does not qualify as an ISO,
there may be a regular federal and California income tax liability upon the exercise of the Option.
Participant will be treated as having received compensation income (taxable at ordinary income tax
rates) equal to the excess, if any, of the Fair Market Value of the Shares on the date of exercise
over the Exercise Price. If Participant is a current or former employee of the Company, the
Company may be required to withhold from Participant’s compensation or collect from Participant and
pay to the applicable taxing authorities an amount equal to a percentage of this compensation
income at the time of exercise.




          9.3 Disposition of Shares. The following tax consequences may apply upon disposition
of the Shares.




               (a) Incentive Stock Options. If the Shares are held for more than twelve (12) months
after the date of purchase of the Shares pursuant to the exercise of an ISO and are disposed of
more than two (2) years after the Date of Grant, any gain realized on disposition of the Shares
will be treated as long term capital gain for federal and California



5









 




income tax purposes. If Vested Shares purchased under an ISO are disposed of within the
applicable one (1) year or two (2) year period, any gain realized on such disposition will be
treated as compensation income (taxable at ordinary income rates in the year of the disposition) to
the extent of the excess, if any, of the Fair Market Value of the Shares on the date of exercise
over the Exercise Price. To the extent the Shares were exercised prior to vesting coincident with
the filing of an 83(b) Election, the amount taxed because of a disqualifying disposition will be
based upon the excess, if any, of the fair market value on the date of vesting over the
exercise price.




               (b) Nonqualified Stock Options. If the Shares are held for more than twelve (12)
months after the date of purchase of the Shares pursuant to the exercise of an NQSO, any gain
realized on disposition of the Shares will be treated as long term capital gain.



               (c) Withholding. The Company may be required to withhold from the Participant’s
compensation or collect from the Participant and pay to the applicable taxing authorities an amount
equal to a percentage of this compensation income.



     10. PRIVILEGES OF STOCK OWNERSHIP. Participant shall not have any of the rights of a
stockholder with respect to any Shares until the Shares are issued to Participant.



     11. INTERPRETATION. Any dispute regarding the interpretation of this Agreement shall
be submitted by Participant or the Company to the Committee for review. The resolution of such a
dispute by the Committee shall be final and binding on the Company and Participant.



     12. ENTIRE AGREEMENT. The Plan is incorporated herein by reference. This Agreement
and the Plan constitute the entire agreement of the parties and supersede all prior undertakings
and agreements with respect to the subject matter hereof.



     13. NOTICES. Any notice required to be given or delivered to the Company under the
terms of this Agreement shall be in writing and addressed to the Corporate Secretary of the Company
at its principal corporate offices. Any notice required to be given or delivered to Participant
shall be in writing and addressed to Participant at the address indicated above or to such other
address as such party may designate in writing from time to time to the Company. All notices shall
be deemed to have been given or delivered upon: (i) personal delivery; (ii) three (3) days after
deposit in the United States mail by certified or registered mail (return receipt requested); or
(iii) one (1) business day after deposit with any return receipt express courier (prepaid).



     14. SUCCESSORS AND ASSIGNS. The Company may assign any of its rights under this
Agreement, including its rights to purchase Shares under the Right of First Refusal. This
Agreement shall be binding upon and inure to the benefit of the successors and assigns of the
Company. Subject to the restrictions on transfer set forth herein, this Agreement shall be binding
upon Participant and Participant’s heirs, executors, administrators, legal representatives,
successors and assigns.



     15. GOVERNING LAW. This Agreement shall be governed by and construed in accordance
with the laws of the State of California as such laws are applied to agreements



6









 




between California residents entered into and to be performed entirely within California. If
any provision of this Agreement is determined by a court of law to be illegal or unenforceable,
then such provision will be enforced to the maximum extent possible and the other provisions will
remain fully effective and enforceable.




     16. ACCEPTANCE. Participant hereby acknowledges receipt of a copy of the Plan and
this Agreement. Participant has read and understands the terms and provisions thereof, and accepts
the Option subject to all the terms and conditions of the Plan and this Agreement. Participant
acknowledges that there may be adverse tax consequences upon exercise of the Option or disposition
of the Shares and that Participant should consult a tax adviser prior to such exercise or
disposition.



7









 





     IN WITNESS WHEREOF, the Company has caused this Agreement to be executed in triplicate by its
duly authorized representative and Participant has executed this Agreement in triplicate, effective
as of the Date of Grant.



	 	 	 	 	 
	SIPERIAN, INC.	 	PARTICIPANT
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 
	 	 
	 

	 	 	 	Signature
	 
	 	 	 	 
	 	 	 
	(Please print name)	 	(Please print name)
	 
	 	 	 	 
	 	 	 
	(Please print title	 	 






8









 






EXHIBIT A




FORM OF STOCK OPTION EXERCISE AGREEMENT





 











 










SIPERIAN, INC.




STOCK OPTION AGREEMENT




     This Stock Option Agreement (the “Agreement”) is made and entered into as of the date of grant
set forth below (the “Date of Grant”) by and between Siperian, Inc., a Delaware corporation (the
“Company”), and the participant named below (the “Participant”). Capitalized terms not defined
herein shall have the meaning ascribed to them in the Company’s Equity Incentive Plan (the “Plan”).



	 	 	 
	Participant:
	 	 
	 
	Social Security Number:
	 	 
	 
	Address:
	 	 
	 
	 
	 
	 	 
	Total Option Shares:
	 	 
	 
	Exercise Price Per Share:
	 	 
	 
	 Date of Grant:
	 	 
	 
	Vesting Start Date:
	 	 
	 
	Expiration Date:
	 	 
	 
	 

	 	(unless earlier terminated under Section 5.6 of the Plan)
	 
	Type of Stock Option
	 	 
	 
	Classification of Optionee
	 	 
	 
	(Check one):

	 	þ Incentive Stock Option
	 
	 

	 	o Nonqualified Stock Option






     1. GRANT OF OPTION. The Company hereby grants to Participant an option
(this “Option”) to purchase the total number of shares of Common Stock, $0.001 par value, of the
Company set forth above as Total Option Shares (the “Shares”) at the Exercise Price Per Share set
forth above (the “Exercise Price”), subject to all of the terms and conditions of this Agreement
and the Plan. If designated as an Incentive Stock Option above, the Option is intended to qualify
as an “incentive stock option” (the
“ISO”) within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the
“Code”).



     2. EXERCISE PERIOD.



          2.1 Exercise Period of Option; Vesting of Options. Provided Participant continues to provide
services to the Company or any Subsidiary or Parent of the Company, the




 









 







Option will become vested and exercisable as to portions of the Shares as follows: at the end of
each full succeeding month after the Vesting Start Date, the Option will become vested and
exercisable as to 2.08333% of the Shares until the Shares are vested with respect to one
hundred percent (100%) of the Shares. If application of the vesting percentage causes a fractional
share, such share shall be rounded down to the nearest whole share for each month except for the
last month in such vesting period, at the end of which last month this Option shall become vested
and exercisable for the full remainder of the Shares. Shares that are vested pursuant to the
schedule set forth in Section 2.1 are “Vested Shares.” Shares that are not vested pursuant to the
schedule set forth in Section 2.1 are “Unvested Shares.”




          2.2
Expiration. The Option shall expire on the Expiration Date set forth above or earlier as
provided in Section 3 below or pursuant to Section 5.6 of the Plan.




     3. TERMINATION.



          3.1
Termination for Any Reason Except Death, Disability or Cause. If Participant is
Terminated for any reason, except death, Disability or for Cause, the Option, to the extent (and
only to the extent) that it would have been exercisable by Participant on the Termination Date, may
be exercised by Participant no later than three (3) months after the Termination Date, but in any
event no later than the Expiration Date.




          3.2
Termination Because of Death or Disability. If Participant is Terminated because of death
or Disability of Participant (or Participant dies within three (3) months of Termination when
Termination is for any reason other than Participant’s Disability or for Cause), the Option, to the
extent that it is exercisable by Participant on the Termination Date, may be exercised by
Participant (or Participant’s legal representative) no later than twelve (12) months after the
Termination Date, but in any event no later than the Expiration Date. Any exercise beyond (i)
three (3) months after the Termination Date when the Termination is for any reason other than the
Participant’s death or disability, within the meaning of Section 22(e)(3) of the Code; or (ii)
twelve (12) months after the Termination Date when the termination is for Participant’s disability,
within the meaning of Section 22(e)(3) of the Code, is deemed to be an NQSO.




          3.3
Termination for Cause. If the Participant is terminated for Cause, the Participant may
exercise such Participant’s Options, but not to an extent greater than such Options are exercisable
as to Vested Shares upon the Termination Date and Participant’s Options shall expire on such
Participant’s Termination Date, or at such later time and on such conditions as are determined by
the Committee.




          3.4
No Obligation to Employ. Nothing in the Plan or this Agreement shall confer on Participant
any right to continue in the employ of, or other relationship with, the Company or any Parent or
Subsidiary of the Company, or limit in any way the right of the Company or any Parent or Subsidiary
of the Company to terminate Participant’s employment or other relationship at any time, with or
without Cause.




     4. MANNER
OF EXERCISE.



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          4.1
Stock Option Exercise Agreement. To exercise this Option, Participant (or in the case of
exercise after Participant’s death or incapacity, Participant’s executor, administrator, heir or
legatee, as the case may be) must deliver to the Company an executed stock option exercise
agreement in the form attached hereto as Exhibit A, or in such other form as may be approved by the
Committee from time to time (the “Exercise
Agreement”), which shall set forth, inter
alia, (i)
Participant’s election to exercise the Option, (ii) the number of Shares being purchased, (iii) any
restrictions imposed on the Shares and (iv) any representations, warranties and agreements
regarding Participant’s investment intent and access to information as may be required by the
Company to comply with applicable securities laws. If someone other than Participant exercises the
Option, then such person must submit documentation reasonably acceptable to the Company verifying
that such person has the legal right to exercise the Option and such person shall be subject to all
of the restrictions contained herein as if such person were the Participant.




          4.2
Limitations on Exercise. The Option may not be exercised unless such exercise is in
compliance with all applicable federal and state securities laws, as they are in effect on the date
of exercise. The Option may not be exercised as to fewer than one hundred (100) Shares unless it is
exercised as to all Shares as to which the Option is then exercisable.




          4.3
Payment. The Exercise Agreement shall be accompanied by full payment of the Exercise Price
for the shares being purchased in cash (by check), or where permitted by law:




               (a) by cancellation of indebtedness of the Company to the Participant;



               (b) by surrender of shares of the Company’s Common Stock that (i) either (A) have been owned
by Participant for more than six (6) months and have been paid for within the meaning of SEC Rule
144 (and, if such shares were purchased from the Company by use of a promissory note, such note has
been fully paid with respect to such shares); or (B) were obtained by Participant in the open
public market; and (ii) are clear of all liens, claims, encumbrances or security interests;



               (c) by waiver of compensation due or accrued to Participant for services rendered;



               (d) provided that a public market for the Company’s stock exists: (i) through a “same day
sale” commitment from Participant and a broker-dealer that is a member of the National Association
of Securities Dealers (an “NASD Dealer”) whereby Participant irrevocably elects to exercise the
Option and to sell a portion of the Shares so purchased sufficient to pay for the total Exercise
Price and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the
total Exercise Price directly to the Company, or (ii) through a “margin” commitment from
Participant and an NASD Dealer whereby Participant irrevocably elects to exercise the Option and to
pledge the Shares so purchased to the NASD Dealer in a margin account as security for a loan from
the NASD Dealer in the amount of the total Exercise Price, and whereby the NASD Dealer irrevocably
commits upon receipt of such Shares to forward the total Exercise Price directly to the Company; or



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               (e) any other form of consideration approved by the Committee; or



               (f) by any combination of the foregoing.



          4.4
Tax Withholding. Prior to the issuance of the Shares upon exercise of the Option,
Participant must pay or provide for any applicable federal, state and local withholding obligations
of the Company. If the Committee permits, Participant may provide for payment of withholding taxes
upon exercise of the Option by requesting that the Company retain the minimum number of Shares with
a Fair Market Value equal to the minimum amount of taxes required to be withheld; but in no event
will the Company withhold Shares if such withholding would result in adverse accounting
consequences to the Company. In such case, the Company shall issue the net number of Shares to the
Participant by deducting the Shares retained from the Shares issuable upon exercise.




          4.5
Issuance of Shares. Provided that the Exercise Agreement and payment are in form and
substance satisfactory to counsel for the Company, the Company shall issue the Shares registered in
the name of Participant, Participant’s authorized assignee, or Participant’s legal representative,
and shall deliver certificates representing the Shares with the appropriate legends affixed
thereto.




     5. NOTICE
OF DISQUALIFYING DISPOSITION OF ISO SHARES. If the
Option is an ISO, and if Participant sells or otherwise disposes of any of the Shares acquired
pursuant to the ISO on or before the later of (i) the date two (2) years after the Date of Grant,
and (ii) the date one (1) year after transfer of such Shares to Participant upon exercise of the
Option, Participant shall immediately notify the Company in writing of such disposition.
Participant agrees that Participant may be subject to income tax withholding by the Company on the
compensation income recognized by Participant from the early disposition by payment in cash or out
of the current wages or other compensation payable to Participant.



     6. COMPLIANCE
WITH LAWS AND REGULATIONS. The Plan and this
Agreement are intended to comply with Section 25102(o) of the California Corporations Code and any
regulations relating thereto. Any provision of this Agreement which is inconsistent with Section
25102(o) or any regulations relating thereto shall, without further act or amendment by the Company
or the Board, be reformed to comply with the requirements of Section 25102(o) and any regulations
relating thereto. The exercise of the Option and the issuance and transfer of Shares shall be
subject to compliance by the Company and Participant with all applicable requirements of federal
and state securities laws and with all applicable requirements of any stock exchange on which the
Company’s Common Stock may be listed at the time of such issuance or transfer. Participant
understands that the Company is under no obligation to register or qualify the Shares with the SEC,
any state securities commission or any stock exchange to effect such compliance.



     7. NONTRANSFERABILITY
OF OPTION. The Option may not be transferred in any manner other than by
will or by the laws of descent and distribution, and, with respect to NQSOs, by instrument to an
inter vivos or testamentary trust in which the options are to be passed to beneficiaries upon the
death of the trustor (settlor), or by gift to “immediate family” as that term is defined in 17
C.F.R. 240.16a-1(e), and may be exercised during the lifetime of



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Participant only by Participant or in the event of Participant’s incapacity, by Participant’s legal
representative. The terms of the Option shall be binding upon the executors, administrators,
successors and assigns of Participant.




     8. COMPANY’S
RIGHT OF FIRST REFUSAL. Before any Vested Shares held by Participant or any
transferee of such Vested Shares may be sold or otherwise transferred (including without limitation
a transfer by gift or operation of law), the Company and/or its assignee(s) shall have an
assignable right of first refusal to purchase the Vested Shares to be sold or transferred on the
terms and conditions set forth in the Exercise Agreement (the “Right of First Refusal”). The
Company’s Right of First Refusal will terminate when the Company’s securities become publicly
traded.



     9. TAX
CONSEQUENCES. Set forth below is a brief summary as of the Effective
Date of the Plan of some of the federal and California tax consequences of exercise of the Option
and disposition of the Shares. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND
REGULATIONS ARE SUBJECT TO CHANGE. PARTICIPANT SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THE
OPTION OR DISPOSING OF THE SHARES.



          9.1
Exercise of ISO. If the Option qualifies as an ISO, there will be no regular federal or
California income tax liability upon the exercise of the Option, although the excess, if any, of
the Fair Market Value of the Shares on the date of exercise over the Exercise Price will be treated
as a tax preference item for federal alternative minimum tax purposes and may subject the
Participant to the alternative minimum tax in the year of exercise.




          9.2
Exercise of Nonqualified Stock Option. If the Option does not qualify as an ISO, there may
be a regular federal and California income tax liability upon the exercise of the Option.
Participant will be treated as having received compensation income (taxable at ordinary income tax
rates) equal to the excess, if any, of the Fair Market Value of the Shares on the date of exercise
over the Exercise Price. If Participant is a current or former employee of the Company, the Company
may be required to withhold from Participant’s compensation or collect from Participant and pay to
the applicable taxing authorities an amount equal to a percentage of this compensation income at
the time of exercise.




          9.3
Disposition of Shares. The following tax consequences may apply upon disposition of the
Shares.




               (a) Incentive
Stock Options. If the Shares are held for more than twelve (12) months after
the date of purchase of the Shares pursuant to the exercise of an ISO and are disposed of more than
two (2) years after the Date of Grant, any gain realized on disposition of the Shares will be
treated as long term capital gain for federal and California income tax purposes. If Vested Shares
purchased under an ISO are disposed of within the applicable one (1) year or two (2) year period,
any gain realized on such disposition will be treated as compensation income (taxable at ordinary
income rates in the year of the disposition) to the extent of the excess, if any, of the Fair
Market Value of the Shares on the date of exercise over the Exercise Price. To the extent the
Shares were exercised prior to vesting coincident with the filing of an 83(b) Election, the amount
taxed because of a disqualifying disposition will be



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based upon
the excess, if any, of the fair market value on the date of vesting over the exercise
price.




               (b) Nonqualified
Stock Options. If the Shares are held for more than twelve (12) months after
the date of purchase of the Shares pursuant to the exercise of an NQSO, any gain realized on
disposition of the Shares will be treated as long term capital gain.



               (c) Withholding. The Company may be required to withhold from the Participant’s compensation
or collect from the Participant and pay to the applicable taxing authorities an amount equal to a
percentage of this compensation income.



     10. PRIVILEGES
OF STOCK OWNERSHIP. Participant shall not have any of the rights of a
stockholder with respect to any Shares until the Shares are issued to Participant.



     11. INTERPRETATION. Any dispute regarding the interpretation of this Agreement shall be
submitted by Participant or the Company to the Committee for review. The resolution of such a
dispute by the Committee shall be final and binding on the Company and Participant.



     12. ENTIRE
AGREEMENT. The Plan is incorporated herein by reference. This Agreement and the
Plan constitute the entire agreement of the parties and supersede all prior undertakings and
agreements with respect to the subject matter hereof.



     13. NOTICES. Any notice required to be given or delivered to the Company under the terms of
this Agreement shall be in writing and addressed to the Corporate Secretary of the Company at its
principal corporate offices. Any notice required to be given or delivered to Participant shall be
in writing and addressed to Participant at the address indicated above or to such other address as
such party may designate in writing from time to time to the Company. All notices shall be deemed
to have been given or delivered upon: (i) personal delivery; (ii) three (3) days after deposit in
the United States mail by certified or registered mail (return receipt requested); or (iii) one (1)
business day after deposit with any return receipt express courier (prepaid).



     14. SUCCESSORS
AND ASSIGNS. The Company may assign any of its rights under this Agreement,
including its rights to purchase Shares under the Right of First Refusal. This Agreement shall be
binding upon and inure to the benefit of the successors and assigns of the Company. Subject to the
restrictions on transfer set forth herein, this Agreement shall be binding upon Participant and
Participant’s heirs, executors, administrators, legal representatives, successors and assigns.



     15. GOVERNING
LAW. This Agreement shall be governed by and construed in accordance with the
laws of the State of California as such laws are applied to agreements between California residents
entered into and to be performed entirely within California. If any provision of this Agreement is
determined by a court of law to be illegal or unenforceable, then such provision will be enforced
to the maximum extent possible and the other provisions will remain fully effective and
enforceable.



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     16. ACCEPTANCE. Participant hereby acknowledges receipt of a copy of the Plan and this
Agreement. Participant has read and understands the terms and provisions thereof, and accepts the
Option subject to all the terms and conditions of the Plan and this Agreement. Participant
acknowledges that there may be adverse tax consequences upon exercise of the Option or disposition
of the Shares and that Participant should consult a tax adviser prior to such exercise or
disposition.



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     IN WITNESS WHEREOF, the Company has caused this Agreement to be executed in triplicate by its
duly authorized representative and Participant has executed this Agreement in triplicate, effective
as of the Date of Grant.



	 	 	 	 	 	 	 	 	 
	SIPERIAN, INC.

	 	 	 	PARTICIPANT	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 	 	 
	 

	 	 

	 	 
	 	 

Signature
	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	(Please print name)	 	 	 	(Please print name)	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	(Please print title	 	 	 	 	 	 






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EXHIBIT A




FORM OF STOCK OPTION EXERCISE AGREEMENT





 











 




[Two Year Vesting]




No.
                    




SIPERIAN, INC.




2003 EQUITY INCENTIVE PLAN



STOCK OPTION AGREEMENT



     This Stock Option Agreement (the “Agreement”) is made and entered into as of the date of grant
set forth below (the “Date of Grant”) by and between Siperian, Inc., a Delaware corporation (the
“Company”), and the participant named below (the “Participant”). Capitalized terms not defined
herein shall have the meaning ascribed to them in the Company’s 2003 Equity Incentive Plan (the
“Plan”).



	 	 	 	 	 
	Participant:
	 	 	 	 
	 
	Social Security Number:

	 	 

	 	 
	 
	 

	 	 	 	 
	 
	Address:
	 	 	 	 
	 

	 	 	 	 
	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	Total Option Shares:
	 	 	 	 
	 

	 	 	 	 
	 
	Exercise Price Per Share:
	 	 	 	 
	 

	 	 	 	 
	 
	Date of Grant:
	 	 	 	 
	 

	 	 	 	 
	 
	First Vesting Date:
	 	 	 	 
	 

	 	 	 	 
	 
	Expiration Date:
	 	 	 	 
	 

	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Type of Stock Option
	 	(unless earlier terminated under Section 5.6 of the Plan) 	 	 
	 
	Classification of Optionee
	 	 	 	 
	 
	(Check one):

	 	o Incentive Stock Option	 	 
	 

	 	o Nonqualified Stock Option	 	 






     1. GRANT OF OPTION. The Company hereby grants to Participant an option (this
“Option”) to purchase the total number of shares of Common Stock, $0.001 par value, of the Company
set forth above as Total Option Shares (the “Shares”) at the Exercise Price Per Share set forth
above (the “Exercise Price”), subject to all of the terms and conditions of this Agreement and the
Plan. If designated as an Incentive Stock Option above, the Option is intended to qualify as an
“incentive stock option” (the “ISO”) within the meaning of Section 422 of the Internal Revenue Code
of 1986, as amended (the “Code”).



     2. EXERCISE PERIOD.



          2.1 Exercise Period of Option; Vesting of Options. Provided Participant continues to
provide services to the Company or any Subsidiary or Parent of the Company, the



 









 




Option will become vested and exercisable as to 0.04166% of the Shares on the First Vesting
Date and an additional 0.4166% the end of each full succeeding month following the First Vesting
Date until the Shares are vested with respect to one hundred percent (100%) of the Shares. If
application of the vesting percentage causes a fractional share, such share shall be rounded down
to the nearest whole share for each month except for the last month in such vesting period, at the
end of which last month this Option shall become vested and exercisable for the full remainder of
the Shares. Shares that are vested pursuant to the schedule set forth in Section 2.1 are “Vested
Shares.” Shares that are not vested pursuant to the schedule set forth in Section 2.1 are
“Unvested Shares.”




          2.2 Expiration. The Option shall expire on the Expiration Date set forth above or
earlier as provided in Section 3 below or pursuant to Section 5.6 of the Plan.



     3. TERMINATION.



          3.1 Termination for Any Reason Except Death, Disability or Cause. If Participant is
Terminated for any reason, except death, Disability or for Cause, the Option, to the extent (and
only to the extent) that it would have been exercisable by Participant on the Termination Date, may
be exercised by Participant no later than three (3) months after the Termination Date, but in any
event no later than the Expiration Date.



          3.2 Termination Because of Death or Disability. If Participant is Terminated because
of death or Disability of Participant (or Participant dies within three (3) months of Termination
when Termination is for any reason other than Participant’s Disability or for Cause), the Option,
to the extent that it is exercisable by Participant on the Termination Date, may be exercised by
Participant (or Participant’s legal representative) no later than twelve (12) months after the
Termination Date, but in any event no later than the Expiration Date. Any exercise beyond
(i) three (3) months after the Termination Date when the Termination is for any reason other than
the Participant’s death or disability, within the meaning of Section 22(e)(3) of the Code; or
(ii) twelve (12) months after the Termination Date when the termination is for Participant’s
disability, within the meaning of Section 22(e)(3) of the Code, is deemed to be an NQSO.



          3.3 Termination for Cause. If the Participant is terminated for Cause, the
Participant may exercise such Participant’s Options, but not to an extent greater than such Options
are exercisable as to Vested Shares upon the Termination Date and Participant’s Options shall
expire on such Participant’s Termination Date, or at such later time and on such conditions as are
determined by the Committee.



          3.4 No Obligation to Employ. Nothing in the Plan or this Agreement shall confer on
Participant any right to continue in the employ of, or other relationship with, the Company or any
Parent or Subsidiary of the Company, or limit in any way the right of the Company or any Parent or
Subsidiary of the Company to terminate Participant’s employment or other relationship at any time,
with or without Cause.



     4. MANNER OF EXERCISE.



2









 





          4.1 Stock Option Exercise Agreement. To exercise this Option, Participant (or in the
case of exercise after Participant’s death or incapacity, Participant’s executor, administrator,
heir or legatee, as the case may be) must deliver to the Company an executed stock option exercise
agreement in the form attached hereto as Exhibit A, or in such other form as may be
approved by the Committee from time to time (the “Exercise Agreement”), which shall set forth,
inter alia, (i) Participant’s election to exercise the Option, (ii) the number of
Shares being purchased, (iii) any restrictions imposed on the Shares and (iv) any representations,
warranties and agreements regarding Participant’s investment intent and access to information as
may be required by the Company to comply with applicable securities laws. If someone other than
Participant exercises the Option, then such person must submit documentation reasonably acceptable
to the Company verifying that such person has the legal right to exercise the Option and such
person shall be subject to all of the restrictions contained herein as if such person were the
Participant.



          4.2 Limitations on Exercise. The Option may not be exercised unless such exercise is
in compliance with all applicable federal and state securities laws, as they are in effect on the
date of exercise. The Option may not be exercised as to fewer than one hundred (100) Shares unless
it is exercised as to all Shares as to which the Option is then exercisable.



          4.3 Payment. The Exercise Agreement shall be accompanied by full payment of the
Exercise Price for the shares being purchased in cash (by check), or where permitted by law:



               (a) by cancellation of indebtedness of the Company to the Participant;



               (b) by surrender of shares of the Company’s Common Stock that (i) either (A) have been owned
by Participant for more than six (6) months and have been paid for within the meaning of SEC
Rule 144 (and, if such shares were purchased from the Company by use of a promissory note, such
note has been fully paid with respect to such shares); or (B) were obtained by Participant in the
open public market; and (ii) are clear of all liens, claims, encumbrances or security interests;



               (c) by waiver of compensation due or accrued to Participant for services rendered;



               (d) provided that a public market for the Company’s stock exists: (i) through a “same day
sale” commitment from Participant and a broker-dealer that is a member of the National Association
of Securities Dealers (an “NASD Dealer”) whereby Participant irrevocably elects to exercise the
Option and to sell a portion of the Shares so purchased sufficient to pay for the total Exercise
Price and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the
total Exercise Price directly to the Company, or (ii) through a “margin” commitment from
Participant and an NASD Dealer whereby Participant irrevocably elects to exercise the Option and to
pledge the Shares so purchased to the NASD Dealer in a margin account as security for a loan from
the NASD Dealer in the amount of the total Exercise Price, and whereby the NASD Dealer irrevocably
commits upon receipt of such Shares to forward the total Exercise Price directly to the Company; or



3









 





               (e) any other form of consideration approved by the Committee; or



               (f) by any combination of the foregoing.



          4.4 Tax Withholding. Prior to the issuance of the Shares upon exercise of the Option,
Participant must pay or provide for any applicable federal, state and local withholding obligations
of the Company. If the Committee permits, Participant may provide for payment of withholding taxes
upon exercise of the Option by requesting that the Company retain the minimum number of Shares with
a Fair Market Value equal to the minimum amount of taxes required to be withheld; but in no event
will the Company withhold Shares if such withholding would result in adverse accounting
consequences to the Company. In such case, the Company shall issue the net number of Shares to the
Participant by deducting the Shares retained from the Shares issuable upon exercise.



          4.5 Issuance of Shares. Provided that the Exercise Agreement and payment are in form
and substance satisfactory to counsel for the Company, the Company shall issue the Shares
registered in the name of Participant, Participant’s authorized assignee, or Participant’s legal
representative, and shall deliver certificates representing the Shares with the appropriate legends
affixed thereto.



     5. NOTICE OF DISQUALIFYING DISPOSITION OF ISO SHARES. If the Option is an ISO, and if
Participant sells or otherwise disposes of any of the Shares acquired pursuant to the ISO on or
before the later of (i) the date two (2) years after the Date of Grant, and (ii) the date one (1)
year after transfer of such Shares to Participant upon exercise of the Option, Participant shall
immediately notify the Company in writing of such disposition. Participant agrees that Participant
may be subject to income tax withholding by the Company on the compensation income recognized by
Participant from the early disposition by payment in cash or out of the current wages or other
compensation payable to Participant.



     6. COMPLIANCE WITH LAWS AND REGULATIONS. The Plan and this Agreement are intended to
comply with Section 25102(o) of the California Corporations Code and any regulations relating
thereto. Any provision of this Agreement which is inconsistent with Section 25102(o) or any
regulations relating thereto shall, without further act or amendment by the Company or the Board,
be reformed to comply with the requirements of Section 25102(o) and any regulations relating
thereto. The exercise of the Option and the issuance and transfer of Shares shall be subject to
compliance by the Company and Participant with all applicable requirements of federal and state
securities laws and with all applicable requirements of any stock exchange on which the Company’s
Common Stock may be listed at the time of such issuance or transfer. Participant understands that
the Company is under no obligation to register or qualify the Shares with the SEC, any state
securities commission or any stock exchange to effect such compliance.



     7. NONTRANSFERABILITY OF OPTION. The Option may not be transferred in any manner
other than by will or by the laws of descent and distribution, and, with respect to NQSOs, by
instrument to an inter vivos or testamentary trust in which the options are to be passed to
beneficiaries upon the death of the trustor (settlor), or by gift to “immediate family” as that
term is defined in 17 C.F.R. 240.16a-1(e), and may be exercised during the lifetime of



4









 




Participant only by Participant or in the event of Participant’s incapacity, by Participant’s
legal representative. The terms of the Option shall be binding upon the executors, administrators,
successors and assigns of Participant.




     8. COMPANY’S RIGHT OF FIRST REFUSAL. Before any Vested Shares held by Participant or
any transferee of such Vested Shares may be sold or otherwise transferred (including without
limitation a transfer by gift or operation of law), the Company and/or its assignee(s) shall have
an assignable right of first refusal to purchase the Vested Shares to be sold or transferred on the
terms and conditions set forth in the Exercise Agreement (the “Right of First Refusal”). The
Company’s Right of First Refusal will terminate when the Company’s securities become publicly
traded.



     9. TAX CONSEQUENCES. Set forth below is a brief summary as of the Effective Date of
the Plan of some of the federal and California tax consequences of exercise of the Option and
disposition of the Shares. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND
REGULATIONS ARE SUBJECT TO CHANGE. PARTICIPANT SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THE
OPTION OR DISPOSING OF THE SHARES.



          9.1 Exercise of ISO. If the Option qualifies as an ISO, there will be no regular
federal or California income tax liability upon the exercise of the Option, although the excess, if
any, of the Fair Market Value of the Shares on the date of exercise over the Exercise Price will be
treated as a tax preference item for federal alternative minimum tax purposes and may subject the
Participant to the alternative minimum tax in the year of exercise.



          9.2 Exercise of Nonqualified Stock Option. If the Option does not qualify as an ISO,
there may be a regular federal and California income tax liability upon the exercise of the Option.
Participant will be treated as having received compensation income (taxable at ordinary income tax
rates) equal to the excess, if any, of the Fair Market Value of the Shares on the date of exercise
over the Exercise Price. If Participant is a current or former employee of the Company, the
Company may be required to withhold from Participant’s compensation or collect from Participant and
pay to the applicable taxing authorities an amount equal to a percentage of this compensation
income at the time of exercise.



          9.3 Disposition of Shares. The following tax consequences may apply upon disposition
of the Shares.



               (a) Incentive Stock Options. If the Shares are held for more than twelve (12) months
after the date of purchase of the Shares pursuant to the exercise of an ISO and are disposed of
more than two (2) years after the Date of Grant, any gain realized on disposition of the Shares
will be treated as long term capital gain for federal and California income tax purposes. If
Vested Shares purchased under an ISO are disposed of within the applicable one (1) year or two (2)
year period, any gain realized on such disposition will be treated as compensation income (taxable
at ordinary income rates in the year of the disposition) to the extent of the excess, if any, of
the Fair Market Value of the Shares on the date of exercise over the Exercise Price. To the extent
the Shares were exercised prior to vesting coincident with the filing of an 83(b) Election, the
amount taxed because of a disqualifying disposition will be



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based upon the excess, if any, of the fair market value on the date of vesting over
the exercise price.




               (b) Nonqualified Stock Options. If the Shares are held for more than twelve (12)
months after the date of purchase of the Shares pursuant to the exercise of an NQSO, any gain
realized on disposition of the Shares will be treated as long term capital gain.



               (c) Withholding. The Company may be required to withhold from the Participant’s
compensation or collect from the Participant and pay to the applicable taxing authorities an amount
equal to a percentage of this compensation income.



     10. PRIVILEGES OF STOCK OWNERSHIP. Participant shall not have any of the rights of a
stockholder with respect to any Shares until the Shares are issued to Participant.



     11. INTERPRETATION. Any dispute regarding the interpretation of this Agreement shall
be submitted by Participant or the Company to the Committee for review. The resolution of such a
dispute by the Committee shall be final and binding on the Company and Participant.



     12. ENTIRE AGREEMENT. The Plan is incorporated herein by reference. This Agreement
and the Plan constitute the entire agreement of the parties and supersede all prior undertakings
and agreements with respect to the subject matter hereof.



     13. NOTICES. Any notice required to be given or delivered to the Company under the
terms of this Agreement shall be in writing and addressed to the Corporate Secretary of the Company
at its principal corporate offices. Any notice required to be given or delivered to Participant
shall be in writing and addressed to Participant at the address indicated above or to such other
address as such party may designate in writing from time to time to the Company. All notices shall
be deemed to have been given or delivered upon: (i) personal delivery; (ii) three (3) days after
deposit in the United States mail by certified or registered mail (return receipt requested); or
(iii) one (1) business day after deposit with any return receipt express courier (prepaid).



     14. SUCCESSORS AND ASSIGNS. The Company may assign any of its rights under this
Agreement, including its rights to purchase Shares under the Right of First Refusal. This
Agreement shall be binding upon and inure to the benefit of the successors and assigns of the
Company. Subject to the restrictions on transfer set forth herein, this Agreement shall be binding
upon Participant and Participant’s heirs, executors, administrators, legal representatives,
successors and assigns.



     15. GOVERNING LAW. This Agreement shall be governed by and construed in accordance
with the laws of the State of California as such laws are applied to agreements between California
residents entered into and to be performed entirely within California. If any provision of this
Agreement is determined by a court of law to be illegal or unenforceable, then such provision will
be enforced to the maximum extent possible and the other provisions will remain fully effective and
enforceable.



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     16. ACCEPTANCE. Participant hereby acknowledges receipt of a copy of the Plan and
this Agreement. Participant has read and understands the terms and provisions thereof, and accepts
the Option subject to all the terms and conditions of the Plan and this Agreement. Participant
acknowledges that there may be adverse tax consequences upon exercise of the Option or disposition
of the Shares and that Participant should consult a tax adviser prior to such exercise or
disposition.



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     IN WITNESS WHEREOF, the Company has caused this Agreement to be executed in triplicate by its
duly authorized representative and Participant has executed this Agreement in triplicate, effective
as of the Date of Grant.




	 	 	 	 	 
	SIPERIAN, INC.	 	PARTICIPANT
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	 

	 	 	 	 
	 

	 	 	 	Signature






	 	 	 	 	 
	 
	 

	 	 
	(Please print name)

	 	(Please print name)
	 	 	 
	 	 
	 
	 

(Please print title

	 	 






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EXHIBIT A


FORM OF STOCK OPTION EXERCISE AGREEMENT