exv10w3



 





Exhibit 10.3




DENDREON CORPORATION




AMENDED

2000 EQUITY INCENTIVE PLAN




Adopted March 1, 2000

Approved By Stockholders May 1, 2000




Amended By The Board of Directors December 6, 2000

Approved By Stockholders May 16, 2001




Amended by the Board of Directors February 24, 2003, March 12, 2003, and May 22, 2003

Approved by the Stockholders July 29, 2003




Amended by the Board of Directors September 8, 2004




Amended by the Board of Directors December 6, 2006




Termination Date: February 28, 2010





	1.	 	Purposes.





     (a) Amendment and Restatement of Dendreon Corporation 1996 Equity Incentive Plan. The Plan
initially was established as the Activated Cell Therapy, Inc. 1996 Equity Incentive Plan (the “1996
Equity Incentive Plan”). The 1996 Equity Incentive Plan hereby is amended and restated in its
entirety as the 2000 Equity Incentive Plan, effective as of the effective date of this amended and
restated plan, as determined by the Board. The terms of the 1996 Equity Incentive Plan (other than
the aggregate number of shares issuable thereunder) shall remain in effect with respect to all
outstanding Options granted pursuant to the 1996 Equity Incentive Plan.



     (b) Eligible Stock Award Recipients. The persons eligible to receive Stock Awards are the
Employees, Directors and Consultants of the Company and its Affiliates.



     (c) Available Stock Awards. The purpose of the Plan is to provide a means by which eligible
recipients of Stock Awards may be given an opportunity to benefit from increases in value of the
Common Stock through the granting of the following Stock Awards: (i) Incentive Stock Options, (ii)
Nonstatutory Stock Options, (iii) stock bonuses and (iv) rights to acquire restricted stock.



     (d) General Purpose. The Company, by means of the Plan, seeks to retain the services of the
group of persons eligible to receive Stock Awards, to secure and retain the services of new members
of this group and to provide incentives for such persons to exert maximum efforts for the success
of the Company and its Affiliates.



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	2.	 	Definitions.





     (a) “Affiliate” means any parent corporation or subsidiary corporation of the Company, whether
now or hereafter existing, as those terms are defined in Sections 424(e) and (f), respectively, of
the Code.



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



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



     (d) “Committee” means a committee of one or more members of the Board appointed by the Board
in accordance with subsection 3(c).



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



     (f) “Company” means Dendreon Corporation, a Delaware corporation.



     (g) “Consultant” means any person, including an advisor, (i) engaged by the Company or an
Affiliate to render consulting or advisory services and who is compensated for such services or
(ii) who is a member of the Board of Directors of an Affiliate. However, the term “Consultant”
shall not include either Directors who are not compensated by the Company for their services as
Directors or Directors who are merely paid a director’s fee by the Company for their services as
Directors.



     (h) “Continuous Service” means that the Participant’s service with the Company or an
Affiliate, whether as an Employee, Director or Consultant, is not interrupted or terminated. The
Participant’s Continuous Service shall not be deemed to have terminated merely because of a change
in the capacity in which the Participant renders service to the Company or an Affiliate as an
Employee, Consultant or Director or a change in the entity for which the Participant renders such
service, provided that there is no interruption or termination of the Participant’s Continuous
Service. For example, a change in status from an Employee of the Company to a Consultant of an
Affiliate or a Director will not constitute an interruption of Continuous Service. The Board or
the chief executive officer of the Company, in that party’s sole discretion, may determine whether
Continuous Service shall be considered interrupted in the case of any leave of absence approved by
that party, including sick leave, military leave or any other personal leave.



     (i) “Covered Employee” means the chief executive officer and the four (4) other highest
compensated officers of the Company for whom total compensation is required to be reported to
stockholders under the Exchange Act, as determined for purposes of Section 162(m) of the Code.



     (j) “Director” means a member of the Board of Directors of the Company.



     (k) “Disability” means the permanent and total disability of a person within the meaning of
Section 22(e)(3) of the Code.



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     (l) “Employee” means any person employed by the Company or an Affiliate. Mere service as a
Director or payment of a director’s fee by the Company or an Affiliate shall not be sufficient to
constitute “employment” by the Company or an Affiliate.



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



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



          (i) If the Common Stock is listed on any nationally recognized stock exchange, the Fair Market
Value of a share of Common Stock shall be the closing sales price for such stock (or the closing
bid, if no sales were reported) as quoted on such exchange (or, if more than one, the exchange with
the greatest volume of trading in the Common Stock) on the date of such, determination under the
Plan, as reported in The Wall Street Journal or such other source as the Board deems reliable, or




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




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



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



     (q) “Nonstatutory Stock Option” means an Option not intended to qualify as an Incentive Stock
Option.



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



     (s) “Option” means an Incentive Stock Option or a Nonstatutory Stock Option granted pursuant
to the Plan.



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



     (u) “Optionholder” means a person to whom an Option is granted pursuant to the Plan or, if
applicable, such other person who holds an outstanding Option.



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     (v) “Outside Director” means a Director who either (i) is not a current employee of the
Company or an “affiliated corporation” (within the meaning of Treasury Regulations promulgated
under Section 162(m) of the Code), is not a former employee of the Company or an “affiliated
corporation” receiving compensation for prior services (other than benefits under a tax qualified
pension plan), was not an officer of the Company or an “affiliated corporation” at any time and is
not currently receiving direct or indirect remuneration from the Company or an “affiliated
corporation” for services in any capacity other than as a Director or (ii) is otherwise considered
an “outside director” for purposes of Section 162(m) of the Code.



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



     (x) “Plan” means this Dendreon Corporation 2000 Equity Incentive Plan.



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



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



     (aa) “Stock Award” means any right granted under the Plan, including an Option, a stock bonus
and a right to acquire restricted stock.



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



     (cc) “Ten Percent Stockholder” means a person who owns (or is deemed to own pursuant to
Section 424(d) of the Code) stock possessing more than ten percent (10%) of the total combined
voting power of all classes of stock of the Company or of any of its Affiliates.




	3.	 	Administration.





     (a) Administration by Board. The Board shall administer the Plan unless and until the Board
delegates administration to a Committee, as provided in subsection 3(c).



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



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




          (ii) To construe and interpret the Plan and Stock Awards granted under it, and to establish,
amend and revoke rules and regulations for its administration. The Board, in the exercise of this
power, may correct any defect, omission or inconsistency in the Plan or in any




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Stock Award Agreement, in a manner and to the extent it shall deem necessary or expedient to make the Plan
fully effective.




          (iii) To amend the Plan or a Stock Award as provided in Section 13.




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




     (c) Delegation to Committee.



          (i) General. The Board may delegate administration of the Plan to a Committee or Committees
of one (1) or more members of the Board, and the term “Committee” shall apply to any person or
persons to whom such authority has been delegated. If administration is delegated to a Committee,
the Committee shall have, in connection with the administration of the Plan, the powers theretofore
possessed by the Board, including the power to delegate to a subcommittee any of the administrative
powers the Committee is authorized to exercise (and references in this Plan to the Board shall
thereafter be to the Committee or subcommittee), subject, however, to such resolutions, not
inconsistent with the provisions of the Plan, as may be adopted from time to time by the Board.
The Board may abolish the Committee at any time and revest in the Board the administration of the
Plan.




          (ii) Committee Composition when Common Stock is Publicly Traded. At such time as the Common
Stock is publicly traded, in the discretion of the Board, a Committee may consist solely of two or
more Outside Directors, in accordance with Section 162(m) of the Code, and/or solely of two or more
Non-Employee Directors, in accordance with Rule 16b-3. Within the scope of such authority, the
Board or the Committee may (1) delegate to a committee of one or more members of the Board who are
not Outside Directors the authority to grant Stock Awards to eligible persons who are either (a)
not then Covered Employees and are not expected to be Covered Employees at the time of recognition
of income resulting from such Stock Award or (b) not persons with respect to whom the Company
wishes to comply with Section 162(m) of the Code and/or) (2) delegate to a committee of one or more
members of the Board who are not Non-Employee Directors the authority to grant Stock Awards to
eligible persons who are not then subject to Section 16 of the Exchange Act.




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




	4.	 	Shares Subject to the Plan.





     (a) Share Reserve. Subject to the provisions of Section 12 relating to adjustments upon
changes in Common Stock, the Common Stock that may be issued pursuant to Stock Awards shall not
exceed in the aggregate six million four hundred thousand (6,400,000) shares (after giving effect
to any reverse stock split effected on or prior to the Effective Date and
following adoption hereof, by way of reincorporation of the Company or otherwise (the “Reverse
Split”)) of the Common Stock plus plus an annual increase to be added on the first day of each
calendar year beginning with January 1, 2001 equal to the lesser of (i) five percent (5%) of the



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Company’s outstanding shares on such date (rounded to the nearest whole share and calculated on a
fully diluted basis, that is assuming the exercise of all outstanding stock options and warrants to
purchase common stock) or (ii) seven hundred fifty thousand (750,000) shares. Notwithstanding the
foregoing, the Board may designate a smaller number of shares of Common Stock to be added to the
share reserve as of a particular January 1. This share reserve shall be comprised of (i) shares
subject to options granted under the 1996 Equity Incentive Plan which have been exercised or are
outstanding as of the Effective Date, plus (ii) the shares available for grant under the 1996
Equity Incentive Plan as of the Effective Date plus (iii) an additional approximately two million
five hundred thousand (2,500,000) shares (after giving effect to any Reverse Split on or prior to
the Effective Date) of common stock.




     (b) Reversion of Shares to the Share Reserve. If any Stock Award shall for any reason expire
or otherwise terminate, in whole or in part, without having been exercised in full, the shares of
Common Stock not acquired under such Stock Award shall revert to and again become available for
issuance under the Plan.



     (c) Source of Shares. The shares of Common Stock subject to the Plan may be unissued shares
or reacquired shares, bought on the market or otherwise.




	5.	 	Eligibility.





     (a) Eligibility for Specific Stock Awards. Incentive Stock Options may be granted only to
Employees. Stock Awards other than Incentive Stock Options may be granted to Employees, Directors
and Consultants.



     (b) Ten Percent Stockholders. A Ten Percent Stockholder shall not be granted an Incentive
Stock Option unless the exercise price of such Option is at least one hundred ten percent (110%) of
the Fair Market Value of the Common Stock at the date of grant and the Option is not exercisable
after the expiration of five (5) years from the date of grant.



     (c) Section 162(m) Limitation. Subject to the provisions of Section 12 relating to
adjustments upon changes in the shares of Common Stock, no Employee shall be eligible to be granted
Options covering more than five hundred thousand (500,000) shares of Common Stock during any
calendar year.



     (d) Consultants.




          (i) A Consultant shall not be eligible for the grant of a Stock Award if, at the time of
grant, a Form S-8 Registration Statement under the Securities Act (“Form S-8”) is not available to
register either the offer or the sale of the Company’s securities to such Consultant because of the
nature of the services that the Consultant is providing to the Company, or because the Consultant
is not a natural person, or as otherwise provided by the rules governing the use of Form S-8,
unless the Company determines both (i) that such grant (A) shall be registered in another manner
under the Securities Act (e.g., on a Form S-3 Registration Statement) or (B) does not require
registration under the Securities Act in order to comply with the requirements of the
Securities Act, if applicable, and (ii) that such grant complies with the securities laws of
all other relevant jurisdictions.




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          (ii) Form S-8 generally is available to consultants and advisors only if (i) they are natural
persons; (ii) they provide bona fide services to the issuer, its parents, its majority-owned
subsidiaries or majority-owned subsidiaries of the issuer’s parent; and (iii) the services are not
in connection with the offer or sale of securities in a capital-raising transaction, and do not
directly or indirectly promote or maintain a market for the issuer’s securities.





	6.	 	Option Provisions.





     Each Option shall be in such form and shall contain such terms and conditions as the Board
shall deem appropriate. All Options shall be separately designated Incentive Stock Options or
Nonstatutory Stock Options at the time of grant, and, if certificates are issued, a separate
certificate or certificates will be issued for shares of Common Stock purchased on exercise of each
type of Option. The provisions of separate Options need not be identical, but each Option shall
include (through incorporation of provisions hereof by reference in the Option or otherwise) the
substance of each of the following provisions:



     (a) Term. Subject to the provisions of subsection 5(b) regarding Ten Percent Stockholders, no
Incentive Stock Option shall be exercisable after the expiration of ten (10) years from the date it
was granted.



     (b) Exercise Price of an Incentive Stock Option. Subject to the provisions of subsection 5(b)
regarding Ten Percent Stockholders, the exercise price of each Incentive Stock Option shall be not
less than one hundred percent (100%) of the Fair Market Value of the Common Stock subject to the
Option on the date the Option is granted. Notwithstanding the foregoing, an Incentive Stock Option
may be granted with an exercise price lower than that set forth in the preceding sentence if such
Option is granted pursuant to an assumption or substitution for another option in a manner
satisfying the provisions of Section 424(a) of the Code.



     (c) Exercise Price of a Nonstatutory Stock Option. The exercise price of each Nonstatutory
Stock Option shall be not less than eighty-five percent (85%) of the Fair Market Value of the
Common Stock subject to the Option on the date the Option is granted. Notwithstanding the
foregoing, a Nonstatutory Stock Option may be granted with an exercise price lower than that set
forth in the preceding sentence if such Option is granted pursuant to an assumption or substitution
for another option in a manner satisfying the provisions of Section 424(a) of the Code.



     (d) Consideration. The purchase price of Common Stock acquired pursuant to an Option shall be
paid, to the extent permitted by applicable statutes and regulations, either (i) in cash at the
time the Option is exercised or (ii) at the discretion of the Board at the time of the grant of the
Option (or subsequently in the case of a Nonstatutory Stock Option) (1) by delivery to the Company
of other Common Stock, (2) according to a deferred payment or other similar arrangement with the
Optionholder or (3) in any other form of legal consideration that may be
acceptable to the Board. Unless otherwise specifically provided in the Option, the purchase
price of Common Stock acquired pursuant to an Option that is paid by delivery to the Company of



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other Common Stock acquired, directly or indirectly from the Company, shall be paid only by shares
of the Common Stock of the Company that have been held for more than six (6) months (or such longer
or shorter period of time required to avoid a charge to earnings for financial accounting
purposes). At any time that the Company is incorporated in Delaware, payment of the Common Stock’s
“par value,” as defined in the Delaware General Corporation Law, shall not be made by deferred
payment.




     In the case of any deferred payment arrangement, interest shall be compounded at least
annually and shall be charged at the minimum rate of interest necessary to avoid the treatment as
interest, under any applicable provisions of the Code, of any amounts other than amounts stated to
be interest under the deferred payment arrangement.



     (e) Transferability of an Incentive Stock Option. An Incentive Stock Option shall not be
transferable except by will or by the laws of descent and distribution and shall be exercisable
during the lifetime of the Optionholder only by the Optionholder. Notwithstanding the foregoing,
the Optionholder may, by delivering written notice to the Company, in a form satisfactory to the
Company, designate a third party who, in the event of the death of the Optionholder, shall
thereafter be entitled to exercise the Option.



     (f) Transferability of a Nonstatutory Stock Option. A Nonstatutory Stock Option shall be
transferable to the extent provided in the Option Agreement. If the Nonstatutory Stock Option does
not provide for transferability, then the Nonstatutory Stock Option shall not be transferable
except by will or by the laws of descent and distribution and shall be exercisable during the
lifetime of the Optionholder only by the Optionholder. Notwithstanding the foregoing, the
Optionholder may, by delivering written notice to the Company, in a form satisfactory to the
Company, designate a third party who, in the event of the death of the Optionholder, shall
thereafter be entitled to exercise the Option.



     (g) Vesting Generally. The total number of shares of Common Stock subject to an Option may,
but need not, vest and therefore become exercisable in periodic installments that may, but need
not, be equal. The Option may be subject to such other terms and conditions on the time or times
when it may be exercised (which may be based on performance or other criteria) as the Board may
deem appropriate. The vesting provisions of individual Options may vary. The provisions of this
subsection 6(g) are subject to any Option provisions governing the minimum number of shares of
Common Stock as to which an Option may be exercised.



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



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     (i) Extension of Termination Date. An Optionholder’s Option Agreement may also provide that
if the exercise of the Option following the termination of the Optionholder’s Continuous Service
(other than upon the Optionholder’s death or Disability) would be prohibited at any time solely
because the issuance of shares of Common Stock would violate the registration requirements under
the Securities Act, then the Option shall terminate on the earlier of (i) the expiration of the
term of the Option set forth in subsection 6(a) or (ii) the expiration of a period of three (3)
months after the termination of the Optionholder’s Continuous Service during which the exercise of
the Option would not be in violation of such registration requirements.



     (j) Disability of Optionholder. In the event that an Optionholder’s Continuous Service
terminates as a result of the Optionholder’s Disability, the Optionholder may exercise his or her
Option (to the extent that the Optionholder was entitled to exercise such Option as of the date of
termination), but only within such period of time ending on the earlier of (i) the date twelve (12)
months following such termination (or such longer or shorter period specified in the Option
Agreement) or (ii) the expiration of the term of the Option as set forth in the Option Agreement.
If, after termination, the Optionholder does not exercise his or her Option within the time
specified herein, the Option shall terminate.



     (k) Death of Optionholder. In the event (i) an Optionholder’s Continuous Service terminates
as a result of the Optionholder’s death or (ii) the Optionholder dies within the period (if any)
specified in the Option Agreement after the termination of the Optionholder’s Continuous Service
for a reason other than death, then the Option may be exercised (to the extent the Optionholder was
entitled to exercise such Option as of the date of death) by the Optionholder’s estate, by a person
who acquired the right to exercise the Option by bequest or inheritance or by a person designated
to exercise the Option upon the Optionholder’s death pursuant to subsection 6(e) or 6(f), but only
within the period ending on the earlier of (1) the date twelve (12) months following the date of
death (or such longer or shorter period specified in the Option Agreement) or (2) the expiration of
the term of such Option as set forth in the Option Agreement. If, after death, the Option is not
exercised within the time specified herein, the Option shall terminate.



     (l) Early Exercise. The Option may, but need not, include a provision whereby the
Optionholder may elect at any time before the Optionholder’s Continuous Service terminates to
exercise the Option as to any part or all of the shares of Common Stock subject to the Option prior
to the full vesting of the Option. Any unvested shares of Common Stock so purchased may be subject
to a repurchase option in favor of the Company or to any other restriction the Board determines to
be appropriate. The Company will not exercise its repurchase option until at least six (6) months
(or such longer or shorter period of time required to avoid a charge to earnings for financial
accounting purposes) have elapsed following exercise of the Option unless the Board otherwise
specifically provides in the Option.



     (m) Re-Load Options.




          (i) Without in any way limiting the authority of the Board to make or not to make grants of
Options hereunder, the Board shall have the authority (but not an obligation) to include as part of
any Option Agreement a provision entitling the Optionholder to a further




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Option (a “Re-Load Option”) in the event the Optionholder exercises the Option evidenced by
the Option Agreement, in whole or in part, by surrendering other shares of Common Stock in
accordance with this Plan and the terms and conditions of the Option Agreement. Unless otherwise
specifically provided in the Option, the Optionholder shall not surrender shares of Common Stock
acquired, directly or indirectly from the Company, unless such shares have been held for more than
six (6) months (or such longer or shorter period of time required to avoid a charge to earnings for
financial accounting purposes).




          (ii) Any such Re-Load Option shall (1) provide for a number of shares of Common Stock equal to
the number of shares of Common Stock surrendered as part or all of the exercise price of such
Option; (2) have an expiration date which is the same as the expiration date of the Option the
exercise of which gave rise to such Re-Load Option; and (3) have an exercise price which is equal
to one hundred percent (100%) of the Fair Market Value of the Common Stock subject to the Re-Load
Option on the date of exercise of the original Option. Notwithstanding the foregoing, a Re-Load
Option shall be subject to the same exercise price and term provisions heretofore described for
Options under the Plan.




          (iii) Any such Re-Load Option may be an Incentive Stock Option or a Nonstatutory Stock Option,
as the Board may designate at the time of the grant of the original Option; provided, however, that
the designation of any Re-Load Option as an Incentive Stock Option shall be subject to the one
hundred thousand dollar ($100,000) annual limitation on the exercisability of Incentive Stock
Options described in subsection 11(d) and in Section 422(d) of the Code. There shall be no Re-Load
Options on a Re-Load Option. Any such Re-Load Option shall be subject to the availability of
sufficient shares of Common Stock under subsection 4(a) and the “Section 162(m) Limitation” on the
grants of Options under subsection 5(c) and shall be subject to such other terms and conditions as
the Board may determine which are not inconsistent with the express provisions of the Plan
regarding the terms of Options.





	7.	 	Non-Employee Director Stock Options.





     Without any further action of the Board, each Non-Employee Director shall be granted
Nonstatutory Stock Options as described in subsections 7(a) and 7(b) (collectively, “Non-Employee
Director Options”). Each Non-Employee Director Option shall include the substance of the terms set
forth in subsections 7(c) through 7(k).



     (a) Initial Grants. Each person who is elected or appointed for the first time to be a
Non-Employee Director subsequent to December 6, 2000, automatically shall, upon the date of his or
her initial election or appointment to be a Non-Employee Director by the Board or stockholders of
the Company, be granted an Initial Grant to purchase Twenty-Two Thousand Five Hundred (22,500)
shares of Common Stock on the terms and conditions set forth herein (the “Initial Grant”).



     (b) Annual Grants. Each Non-Employee Director automatically shall be granted an Annual Grant
to purchase such number of shares of Common Stock determined by dividing $100,000 by the value of
an option to purchase one share of Common Stock on the terms and conditions set forth herein. The
value of an option to purchase one share of Common Stock shall be determined annually by the
compensation consultants hired by the Committee utilizing the



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Black Scholes option valuation methodology. Such Annual Grant shall be made in December of
each calendar year for the succeeding calendar year on a date to be selected by the Board of
Directors and, with respect to each Non-Employee Director initially elected to the Board on a date
after December 6, 2000, such Annual Grant shall commence on the third December following the date
of the Initial Grant to such Non-Employee Director, as set forth in Section 7(a) above.




     (c) Term. Each Initial Grant of a Non-Employee Director Option shall have a term of ten (10)
years from the date it is granted. Each Annual Grant of a Non-Employee Director Option shall have
a term of ten (10) years from the date it is granted.



     (d) Exercise Price. The exercise price of each Non-Employee Director Option shall be one
hundred percent (100%) of the Fair Market Value of the stock subject to the Non-Employee Director
Option on the date of grant. Notwithstanding the foregoing, a Non-Employee Director Option may be
granted with an exercise price lower than that set forth in the preceding sentence if such
Non-Employee Director Option is granted pursuant to an assumption or substitution for another
option in a manner satisfying the provisions of Section 424(a) of the Code.



     (e) Vesting. Seven Thousand Five Hundred (7,500) shares of Common Stock subject to each
Initial Grant shall vest on the date of grant, and Seven Thousand Five Hundred (7,500) shares of
Common Stock subject to each Initial Grant shall vest on each of the first and second anniversaries
of the date of grant. One hundred percent (100%) of the shares of Common Stock pursuant to each
Annual Grant of a Non-Employee Director Option shall vest on the date on which it is granted.



     (f) Consideration. The purchase price of stock acquired pursuant to a Non-Employee Director
Option may be paid, to the extent permitted by applicable statutes and regulations, in any
combination of (i) cash or check, (ii) delivery to the Company of other Common Stock, (ii) deferred
payment or (iv) any other form of legal consideration that may be acceptable to the Board and
provided in the Non-Employee Director Option Agreement; provided, however, that at any time that
the Company is incorporated in Delaware, payment of the Common Stock’s “par value,” as defined in
the Delaware General Corporation Law, shall not be made by deferred payment. In the case of any
deferred payment arrangement, interest shall be compounded at least annually and shall be charged
at the minimum rate of interest necessary to avoid the treatment as interest, under any applicable
provisions of the Code, of any amounts other than amounts stated to be interest under the deferred
payment arrangement.



     (g) Transferability. A Non-Employee Director Option shall not be transferable except by will
or by the laws of descent and distribution and shall be exercisable during the lifetime of the
Non-Employee Director only by the Non-Employee Director. Notwithstanding the foregoing, the
Non-Employee Director may, by delivering written notice to the Company, in a form satisfactory to
the Company, designate a third party who, in the event of the death of the Non-Employee Director,
shall thereafter be entitled to exercise the Non-Employee Director Option.



 11.









 





     (h) Termination of Continuous Service. In the event a Non-Employee Director’s Continuous
Service terminates (other than upon the Non-Employee Director’s death or Disability), the
Non-Employee Director may exercise his or her Non-Employee Director Option (to the extent that the
Non-Employee Director was entitled to exercise it as of the date of termination) but only within
such period of time ending on the earlier of (i) the date three (3) months following the
termination of the Non-Employee Director’s Continuous Service, or (ii) the expiration of the term
of the Non-Employee Director Option as set forth in the Non-Employee Director Option Agreement.
If, after termination, the Non-Employee Director does not exercise his or her Non-Employee Director
Option within the time specified in the Non-Employee Director Option Agreement, the Non-Employee
Director Option shall terminate.



     (i) Extension of Termination Date. If the exercise of the Non-Employee Director Option
following the termination of the Non-Employee Director’s Continuous Service (other than upon the
Non-Employee Director’s death or Disability) would be prohibited at any time solely because the
issuance of shares would violate the registration requirements under the Securities Act, then the
Non-Employee Director Option shall terminate on the earlier of (i) the expiration of the term of
the Non-Employee Director Option set forth in subsection 7(c) or (ii) the expiration of a period of
three (3) months after the termination of the Non-Employee Director’s Continuous Service during
which the exercise of the Non-Employee Director Option would not violate such registration
requirements.



     (j) Disability of Non-Employee Director. In the event a Non-Employee Director’s Continuous
Service terminates as a result of the Non-Employee Director’s Disability, the Non-Employee Director
may exercise his or her Non-Employee Director Option (to the extent that the Non-Employee Director
was entitled to exercise it as of the date of termination), but only within such period of time
ending on the earlier of (i) the date twelve (12) months following such termination or (ii) the
expiration of the term of the Non-Employee Director Option as set forth in the Non-Employee
Director Option Agreement. If, after termination, the Non-Employee Director does not exercise his
or her Non-Employee Director Option within the time specified herein, the Non-Employee Director
Option shall terminate.



     (k) Death of Non-Employee Director. In the event (i) a Non-Employee Director’s Continuous
Service terminates as a result of the Non-Employee Director’s death or (ii) the Non-Employee
Director dies within the three-month period after the termination of the Non-Employee Director’s
Continuous Service for a reason other than death, then the Non-Employee Director Option may be
exercised (to the extent the Non-Employee Director was entitled to exercise the Non-Employee
Director Option as of the date of death) by the Non-Employee Director’s estate, by a person who
acquired the right to exercise the Non-Employee Director Option by bequest or inheritance or by a
person designated to exercise the Non-Employee Director Option upon the Non-Employee Director’s
death, but only within the period ending on the earlier of (1) the date eighteen (18) months
following the date of death or (2) the expiration of the term of such Non-Employee Director Option
as set forth in the Non-Employee Director Option Agreement. If, after death, the Non-Employee
Director Option is not exercised within the time specified herein, the Non-Employee Director Option
shall terminate.




	8.	 	Provisions of Stock Awards other than Options.




 12.









 











     (a) Stock Bonus Awards. Each stock bonus agreement shall be in such form and shall contain
such terms and conditions as the Board shall deem appropriate. The terms and conditions of stock
bonus agreements may change from time to time, and the terms and conditions of separate stock bonus
agreements need not be identical, but each stock bonus agreement shall include (through
incorporation of provisions hereof by reference in the agreement or otherwise) the substance of
each of the following provisions:



          (i) Consideration. A stock bonus may be awarded in consideration for past services actually
rendered to the Company or an Affiliate for its benefit.




          (ii) Vesting. Shares of Common Stock awarded under the stock bonus agreement may, but need
not, be subject to a share repurchase option in favor of the Company in accordance with a vesting
schedule to be determined by the Board.




          (iii) Termination of Participant’s Continuous Service. In the event a Participant’s
Continuous Service terminates, the Company may reacquire any or all of the shares of Common Stock
held by the Participant which have not vested as of the date of termination under the terms of the
stock bonus agreement.




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




     (b) Restricted Stock Awards. Each restricted stock purchase agreement shall be in such form
and shall contain such terms and conditions as the Board shall deem appropriate. The terms and
conditions of the restricted stock purchase agreements may change from time to time, and the terms
and conditions of separate restricted stock purchase agreements need not be identical, but each
restricted stock purchase agreement shall include (through incorporation of provisions hereof by
reference in the agreement or otherwise) the substance of each of the following provisions:



          (i) Purchase Price. The purchase price under each restricted stock purchase agreement shall
be such amount as the Board shall determine and designate in such restricted stock purchase
agreement. The purchase price shall not be less than eighty-five percent (85%) of the Common
Stock’s Fair Market Value on the date such award is made or at the time the purchase is
consummated.




          (ii) Consideration. The purchase price of Common Stock acquired pursuant to the restricted
stock purchase agreement shall be paid either: (i) in cash at the time of purchase; (ii) at the
discretion of the Board, according to a deferred payment or other similar arrangement with the
Participant; or (iii) in any other form of legal consideration that may be acceptable to the Board
in its discretion; provided, however, that at any time that the Company is incorporated in
Delaware, then payment of the Common Stock’s “par value,” as defined in the Delaware General
Corporation Law, shall not be made by deferred payment.




 13.









 








          (iii) Vesting. Shares of Common Stock acquired under the restricted stock purchase agreement
may, but need not, be subject to a share repurchase option in favor of the Company in accordance
with a vesting schedule to be determined by the Board.




          (iv) Termination of Participant’s Continuous Service. In the event a Participant’s Continuous
Service terminates, the Company may repurchase or otherwise reacquire any or all of the shares of
Common Stock held by the Participant which have not vested as of the date of termination under the
terms of the restricted stock purchase agreement.




          (v) Transferability. Rights to acquire shares of Common Stock under the restricted stock
purchase agreement shall be transferable by the Participant only upon such terms and conditions as
are set forth in the restricted stock purchase agreement, as the Board shall determine in its
discretion, so long as Common Stock awarded under the restricted stock purchase agreement remains
subject to the terms of the restricted stock purchase agreement.





	9.	 	Covenants of the Company.





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



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




	10.	 	Use of Proceeds from Stock.





     Proceeds from the sale of Common Stock pursuant to Stock Awards shall constitute general funds
of the Company.




	11.	 	Miscellaneous.





     (a) Acceleration of Exercisability and Vesting. The Board shall have the power to accelerate
the time at which a Stock Award may first be exercised or the time during which a Stock Award or
any part thereof will vest in accordance with the Plan, notwithstanding the provisions in the Stock
Award stating the time at which it may first be exercised or the time during which it will vest.



     (b) Stockholder Rights. No Participant shall be deemed to be the holder of, or to have any of
the rights of a holder with respect to, any shares of Common Stock subject to such



 14.









 




Stock Award unless and until such Participant has satisfied all requirements for exercise of
the Stock Award pursuant to its terms.




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



     (d) Incentive Stock Option $100,000 Limitation. To the extent that the aggregate Fair Market
Value (determined at the time of grant) of Common Stock with respect to which Incentive Stock
Options are exercisable for the first time by any Optionholder during any calendar year (under all
plans of the Company and its Affiliates) exceeds one hundred thousand dollars ($100,000), the
Options or portions thereof which exceed such limit (according to the order in which they were
granted) shall be treated as Nonstatutory Stock Options.



     (e) Investment Assurances. The Company may require a Participant, as a condition of
exercising or acquiring Common Stock under any Stock Award, (i) to give written assurances
satisfactory to the Company as to the Participant’s knowledge and experience in financial and
business matters and/or to employ a purchaser representative reasonably satisfactory to the Company
who is knowledgeable and experienced in financial and business matters and that he or she is
capable of evaluating, alone or together with the purchaser representative, the merits and risks of
exercising the Stock Award; and (ii) to give written assurances satisfactory to the Company stating
that the Participant is acquiring Common Stock subject to the Stock Award for the Participant’s own
account and not with any present intention of selling or otherwise distributing the Common Stock.
The foregoing requirements, and any assurances given pursuant to such requirements, shall be
inoperative if (1) the issuance of the shares of Common Stock upon the exercise or acquisition of
Common Stock under the Stock Award has been registered under a then currently effective
registration statement under the Securities Act or (2) as to any particular requirement, a
determination is made by counsel for the Company that such requirement need not be met in the
circumstances under the then applicable securities laws. The Company may, upon advice of counsel
to the Company, place legends on stock certificates issued under the Plan as such counsel deems
necessary or appropriate in order to comply with applicable securities laws, including, but not
limited to, legends restricting the transfer of the Common Stock.



     (f) Withholding Obligations. To the extent provided by the terms of a Stock Award Agreement,
the Participant may satisfy any federal, state or local tax withholding obligation relating to the
exercise or acquisition of Common Stock under a Stock Award by any of the following means (in
addition to the Company’s right to withhold from any compensation paid to the Participant by the
Company) or by a combination of such means: (i) tendering a cash payment; (ii) authorizing the
Company to withhold shares of Common Stock from the shares of Common Stock otherwise issuable to
the Participant as a result of the exercise or acquisition of



 15.









 




Common Stock under the Stock Award, provided, however, that no shares of Common Stock are
withheld with a value exceeding the minimum amount of tax required to be withheld by law; or (iii)
delivering to the Company owned and unencumbered shares of Common Stock.





	12.	 	Adjustments upon Changes in Stock.





     (a) Capitalization Adjustments. If any change is made in the Common Stock subject to the
Plan, or subject to any Stock Award, without the receipt of consideration by the Company (through
merger, consolidation, reorganization, recapitalization, reincorporation, stock dividend, dividend
in property other than cash, stock split, liquidating dividend, combination of shares, exchange of
shares, change in corporate structure or other transaction not involving the receipt of
consideration by the Company), the Plan will be appropriately adjusted in the class(es) and the
maximum number of securities subject to the Plan pursuant to subsection 4(a), the maximum number of
securities subject to award to any person pursuant to subsection 5(c), and the number of securities
to be awarded pursuant to subsections 7(a) and 7(b), and the outstanding Stock Awards will be
appropriately adjusted in the class(es) and number of securities and price per share of Common
Stock subject to such outstanding Stock Awards. The Board shall make such adjustments, and its
determination shall be final, binding and conclusive. (The conversion of any convertible
securities of the Company shall not be treated as a transaction “without receipt of consideration”
by the Company.)



     (b) Dissolution or Liquidation. In the event of a dissolution or liquidation of the Company,
then all outstanding Stock Awards shall terminate immediately prior to such event.



     (c) Asset Sale, Merger, Consolidation or Reverse Merger. In the event of (i) a sale, lease
or other disposition of all or substantially all of the assets of the Company, (ii) a consolidation
or merger of the Company with or into any other corporation or other entity or person, or any other
corporate reorganization, in which the stockholders of the Company immediately prior to such
consolidation, merger or reorganization, own less than 50% of the Company’s outstanding voting
power of the surviving entity (or its parent) following the consolidation, merger or reorganization
or (iii) any transaction (or series of related transactions involving a person or entity, or a
group of affiliated persons or entities) in which in excess of fifty percent (50%) of the Company’s
outstanding voting power is transferred, then any surviving corporation or acquiring corporation
shall assume any Stock Awards outstanding under the Plan or shall substitute similar stock awards
(including an award to acquire the same consideration paid to the stockholders in the transaction
described in this subsection 12(c) for those outstanding under the Plan. In the event any
surviving corporation or acquiring corporation refuses to assume such Stock Awards or to substitute
similar stock awards for those outstanding under the Plan, then with respect to Stock Awards held
by Participants whose Continuous Service has not terminated, the vesting of such Stock Awards (and,
if applicable, the time during which such Stock Awards may be exercised) shall be accelerated in
full, and the Stock Awards shall terminate if not exercised (if applicable) at or prior to such
event. With respect to any other Stock Awards outstanding under the Plan, such Stock Awards shall
terminate if not exercised (if applicable) prior to such event.




	13.	 	Amendment of the Plan and Stock Awards.




 16.









 











     (a) Amendment of Plan. The Board at any time, and from time to time, may amend the Plan.
However, except as provided in Section 12 relating to adjustments upon changes in Common Stock, no
amendment shall be effective unless approved by the stockholders of the Company to the extent
stockholder approval is necessary to satisfy the requirements of Section 422 of the Code, Rule
16b-3 or any Nasdaq or securities exchange listing requirements.



     (b) Stockholder Approval. The Board may, in its sole discretion, submit any other amendment
to the Plan for stockholder approval, including, but not limited to, amendments to the Plan
intended to satisfy the requirements of Section 162(m) of the Code and the regulations thereunder
regarding the exclusion of performance-based compensation from the limit on corporate deductibility
of compensation paid to certain executive officers.



     (c) Contemplated Amendments. It is expressly contemplated that the Board may amend the Plan
in any respect the Board deems necessary or advisable to provide eligible Employees with the
maximum benefits provided or to be provided under the provisions of the Code and the regulations
promulgated thereunder relating to Incentive Stock Options and/or to bring the Plan and/or
Incentive Stock Options granted under it into compliance therewith.



     (d) No Impairment of Rights. Rights under any Stock Award granted before amendment of the
Plan shall not be impaired by any amendment of the Plan unless (i) the Company requests the consent
of the Participant and (ii) the Participant consents in writing.



     (e) Amendment of Stock Awards. The Board at any time, and from time to time, may amend the
terms of any one or more Stock Awards; provided, however, that the rights under any Stock Award
shall not be impaired by any such amendment unless (i) the Company requests the consent of the
Participant and (ii) the Participant consents in writing.




	14.	 	Termination or Suspension of the Plan.





     (a) Plan Term. The Board may suspend or terminate the Plan at any time. Unless sooner
terminated, the Plan shall terminate on the day before the tenth (10th) anniversary of the date the
Plan is adopted by the Board or approved by the stockholders of the Company, whichever is earlier.
No Stock Awards may be granted under the Plan while the Plan is suspended or after it is
terminated.



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




	15.	 	Effective Date of Plan.





     The Plan shall become effective as determined by the Board, but no Stock Award shall be
exercised (or, in the case of a stock bonus, shall be granted) unless and until the Plan has been
approved by the stockholders of the Company, which approval shall be within twelve (12) months
before or after the date the Plan is adopted by the Board.




	16.	 	Choice of Law.




 17.









 











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




	17.	 	Assumption of Rights Granted or Issued by Another Corporation.





     The Board of Directors also may grant options and stock bonuses and issue restricted stock
under the Plan, or assume existing options, stock bonuses and restricted stock under the Plan, with
terms, conditions and provisions that vary from those specified in the Plan; provided that any such
rights are granted in substitution for, or in connection with the assumption of, existing options,
stock bonuses and restricted stock that were granted or issued by another corporation and assumed,
or otherwise agreed to be provided for, by the Company pursuant to, or by reason of, a merger or
consolidation of the Company with or into another corporation or any other corporate reorganization
in which the Company is a party.




 18.