exv10w2



 





Exhibit 10.2




OMEROS MEDICAL SYSTEMS, INC.




SECOND AMENDED AND RESTATED 1998 STOCK OPTION PLAN




     1. Purposes of the Plan. The purposes of this Amended and Restated 1998 Stock Option
Plan are to attract and retain the best available personnel for positions of substantial
responsibility, to provide additional incentive to Employees and Consultants of the Company and its
Subsidiaries and to promote the success of the Company’s business. Options granted under the Plan
may be incentive stock options (as defined under Section 422 of the Code) or non-statutory stock
options, as determined by the Administrator at the time of grant of an option and subject to the
applicable provisions of Section 422 of the Code, as amended, and the regulations promulgated
thereunder.



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



          (a) “Administrator” means the Board or any of its Committees appointed pursuant to
Section 4 of the Plan.




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




          (c) “Cause” for termination of an Optionee’s Continuous Status will exist if the
Optionee is terminated for any of the following reasons: (i) Optionee’s willful failure
substantially to perform his or her duties and responsibilities to the Company or deliberate
violation of a Company policy; (ii) Optionee’s commission of any act of fraud, embezzlement,
dishonesty or any other willful misconduct that has caused or is reasonably expected to result in
material injury to the Company; (iii) unauthorized use or disclosure by Optionee of any proprietary
information or trade secrets of the Company or any other party to whom the Optionee owes an
obligation of nondisclosure as a result of his or her relationship with the Company; or (iv)
Optionee’s willful breach of any of his or her obligations under any written agreement or covenant
with the Company. The determination as to whether an Optionee is being terminated for Cause shall
be made in good faith by the Company and shall be final and binding on the Optionee. The foregoing
definition does not in any way limit the Company’s ability to terminate an Optionee’s employment or
consulting relationship at any time as provided in Section 5(d) below, and the term “Company” will
be interpreted to include any Subsidiary, Parent, Affiliate or successor thereto, if appropriate.




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




          (e) “Committee” means the Committee appointed by the Board of Directors in accordance
with Section 4(a) of the Plan.




          (f) “Common Stock” means the Common Stock of the Company.




          (g) “Company” means Omeros Medical Systems, Inc., a Washington corporation.




 









 








          (h) “Consultant” means any person, including an advisor, who is engaged by the Company
or any Parent or Subsidiary to render services and is compensated for such services, and any
director of the Company whether compensated for such services or not, provided that if and in the
event the Company registers any class of any equity security pursuant to the Exchange Act, the term
Consultant shall thereafter not include directors who are not compensated for their services or are
paid only a director’s fee by the Company.




          (i) “Constructive Termination” shall be deemed to occur if (A)(1) there is a material
adverse change in Employee’s position causing such position to be of materially reduced stature or
responsibility, (2) a reduction of more than thirty percent (30%) of Employee’s base compensation
unless in connection with similar decreases of other similarly situated employees of the Company or
(3) Employee’s refusal to comply with the Company’s request to relocate to a facility or location
more than fifty (50) miles from the Company’s current location and (B) within the thirty (30) day
period immediately following such material change or reduction Employee elects to terminate his or
her employment voluntarily.




          (j) “Continuous Status as an Employee or Consultant” means the absence of any
interruption or termination of service as an Employee or Consultant. Continuous Status as an
Employee or Consultant shall not be considered interrupted in the case of: (i) sick leave; (ii)
military leave; (iii) any other leave of absence approved by the Administrator, provided that such
leave is for a period of not more than ninety (90) days, unless re-employment upon the expiration
of such leave is guaranteed by contract or statute, or unless provided otherwise pursuant to
Company policy adopted from time to time; or (iv) in the case of transfers between locations of the
Company or between the Company, its Subsidiaries or their respective successors. For purposes of
this Plan, a change in status from an Employee to a Consultant or from a Consultant to an Employee
will not constitute an interruption of Continuous Status as an Employee or Consultant.




          (k) “Employee” means any person, including officers and directors, employed by the
Company or any Parent or Subsidiary of the Company, with the status of employment determined based
upon such minimum number of hours or periods worked as shall be determined by the Administrator in
its discretion, subject to any requirements of the Code. The payment of a director’s fee by the
Company to a director shall not be sufficient to constitute “employment” of such director by the
Company.




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




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




               (i) If the Common Stock is listed on any established stock exchange or a national market
system including without limitation the National Market of the National Association of Securities
Dealers, Inc. Automated Quotation System (“Nasdaq”), its Fair Market Value shall be the closing
sales price for such stock (or the closing bid, if no sales were reported), as quoted on such
system or exchange, or the exchange with the greatest volume of trading in Common Stock for the last market trading day prior to the time of determination, as
reported in The Wall Street Journal or such other source as the Administrator deems reliable;



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               (ii) If the Common Stock is quoted on the Nasdaq (but not on the National Market thereof) or
regularly quoted by a recognized securities dealer but selling prices are not reported, its Fair
Market Value shall be the mean between the high bid and low asked prices for the Common Stock for
the last market trading day prior to the time of determination, as reported in The Wall Street
Journal or such other source as the Administrator deems reliable; or



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



          (n) “Incentive Stock Option” means an Option intended to qualify as an incentive stock
option within the meaning of Section 422 of the Code, as designated in the applicable option
agreement.




          (o) “Listed Security” means any security of the Company that is listed or approved for
listing on a national securities exchange or designated or approved for designation as a national
market system security on an interdealer quotation system by the National Association of Securities
Dealers, Inc.




          (p) “Named Executive” means any individual who, on the last day of the Company’s
fiscal year, is the chief executive officer of the Company (or is acting in such capacity) or among
the four most highly compensated officers of the Company (other than the chief executive officer).
Such officer status shall be determined pursuant to the executive compensation disclosure rules
under the Exchange Act.




          (q) “Nonstatutory Stock Option” means an Option not intended to qualify as an
Incentive Stock Option, as designated in the applicable option agreement.




          (r) “Option” means a stock option granted pursuant to the Plan.




          (s) “Optioned Stock” means the Common Stock subject to an Option.




          (t) “Optionee” means an Employee or Consultant who receives an Option.




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




          (v) “Plan” means this Amended and Restated 1998 Stock Option Plan .




          (w) “Reporting Person” means an officer, director, or greater than ten percent (10%)
shareholder of the Company within the meaning of Rule 16a-2 under the Exchange Act, who is required
to file reports pursuant to Rule 16a-3 under the Exchange Act.




          (x) “Rule 16b-3” means Rule 16b-3 promulgated under the Exchange Act, as the same may
be amended from time to time, or any successor provision.




          (y) “Share” means a share of the Common Stock, as adjusted in accordance with Section
11 of the Plan.




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          (z) “Stock Exchange” means any stock exchange or consolidated stock price reporting
system on which prices for the Common Stock are quoted at any given time.




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




     3. Stock Subject to the Plan. Subject to the provisions of Section 11 of the Plan,
the maximum aggregate number of shares that may be optioned and sold under the Plan is
2,611,516 shares of Common Stock. The shares may be authorized, but unissued, or
reacquired Common Stock. If an Option should expire or become unexercisable for any reason without
having been exercised in full, the unpurchased Shares that were subject thereto shall, unless the
Plan shall have been terminated, become available for future grant under the Plan. In addition,
any shares of Common Stock which are retained by the Company upon exercise of an Option in order to
satisfy the exercise price for such Option or any withholding taxes due with respect to such
exercise shall be treated as not issued and shall continue to be available under the Plan.



     4. Administration of the Plan



          (a) Initial Plan Procedure. Prior to the date, if any, upon which the Company becomes
subject to the Exchange Act, the Plan shall be administered by the Board or a committee appointed
by the Board.




          (b) Plan Procedure After the Date, if any, Upon Which the Company Becomes Subject to the
Exchange Act.




               (i) Multiple Administrative Bodies. If permitted by Rule 16b-3, the Plan may be
administered by different bodies with respect to directors, non-director officers and Employees or
Consultants who are not Reporting Persons.



               (ii) Administration With Respect to Reporting Persons. With respect to grants of
Options to Employees who are Reporting Persons, the Plan shall be administered by (A) the Board if
the Board may administer the Plan in compliance with Rule 16b-3 with respect to a plan intended to
qualify thereunder as a discretionary plan, or (B) a committee designated by the Board to
administer the Plan, which committee shall be constituted in such a manner as to permit the Plan to
comply with Rule 16b-3 with respect to a plan intended to qualify thereunder as a discretionary
plan. Once appointed, such committee shall continue to serve in its designated capacity until
otherwise directed by the Board. From time to time the Board may increase the size of the
committee and appoint additional members thereof, remove members (with or without cause) and
appoint new members in substitution therefor, fill vacancies, however caused, and remove all
members of the committee and thereafter directly administer the Plan, all to the extent permitted
by Rule 16b-3 with respect to a plan intended to qualify thereunder as a discretionary plan. No
person serving as a member of an Administrator that has authority with respect to grants to Reporting Persons shall be eligible to receive any grant under the Plan which would cause
such member to cease to be “disinterested” within the meaning of Rule 16b-3.



               (iii) Administration With Respect to Consultants and Other Employees. With respect to
grants of Options to Employees or Consultants who are not Reporting Persons,



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the Plan shall be administered by (A) the Board or (B) a committee designated by the Board, which committee shall be
constituted in such a manner as to satisfy the legal requirements relating to the administration of
incentive stock option plans, if any, of state corporate and securities laws, of the Code and of
any applicable Stock Exchange (the “Applicable Laws”). Once appointed, such Committee shall
continue to serve in its designated capacity until otherwise directed by the Board. From time to
time the Board may increase the size of the Committee and appoint additional members thereof,
remove members (with or without cause) and appoint new members in substitution therefor, fill
vacancies, however caused, and remove all members of the Committee and thereafter directly
administer the Plan, all to the extent permitted by the Applicable Laws.




          (b) Powers of the Administrator. Subject to the provisions of the Plan and in the
case of a Committee, the specific duties delegated by the Board to such Committee, and subject to
the approval of any relevant authorities, including the approval, if required, of any Stock
Exchange, the Administrator shall have the authority, in its discretion:




               (i) to determine the Fair Market Value of the Common Stock, in accordance with Section 2(m) of
the Plan;



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



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



               (iv) to determine the number of shares of Common Stock to be covered by each such option
granted hereunder;



               (v) to approve forms of agreement for use under the Plan;



               (vi) to determine the terms and conditions, not inconsistent with the terms of the Plan, of
any option granted hereunder;



               (vii) to determine whether and under what circumstances an Option may be settled in cash under
Section 9(d) instead of Common Stock;



               (viii) to reduce the exercise price of any Option to the then current Fair Market Value if the
Fair Market Value of the Common Stock covered by such Option shall have declined since the date the
Option was granted;



               (ix) to construe and interpret the terms of the Plan and awards granted pursuant to the Plan;



               (x) to permit the early exercise of any Option in exchange for restricted stock subject to a
Company right of repurchase; and



               (xi) in order to fulfill the purposes of the Plan and without amending the Plan, to modify
grants of Options to participants who are foreign nationals or employed



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outside of the United States in order to recognize differences in local law, tax policies or customs.




          (c) Effect of Administrator’s Decision. All decisions, determinations and
interpretations of the Administrator shall be final and binding on all Optionees.




     5. Eligibility



          (a) Nonstatutory Stock Options may be granted to Employees and Consultants. Incentive Stock
Options may be granted only to Employees. An Employee or Consultant who has been granted an Option
may, if he or she is otherwise eligible, be granted additional Options.




          (b) Each Option shall be designated in the written option agreement as either an Incentive
Stock Option or a Nonstatutory Stock Option. However, notwithstanding such designations, to the
extent that the aggregate Fair Market Value of the Shares with respect to which Options designated
as Incentive Stock Options are exercisable for the first time by any Optionee during any calendar
year (under all plans of the Company or any Parent or Subsidiary) exceeds $100,000, such excess
Options shall be treated as Nonstatutory Stock Options.




          (c) For purposes of Section 5(b), Incentive Stock Options shall be taken into account in the
order in which they were granted, and the Fair Market Value of the Shares subject to an Incentive
Stock Option shall be determined as of the date of the grant of such Option.




          (d) The Plan shall not confer upon any Optionee any right with respect to continuation of
employment or consulting relationship with the Company, nor shall it interfere in any way with such
Optionee’s right or the Company’s right to terminate his or her employment or consulting
relationship at any time, with or without Cause.




     6. Term of Plan. The Plan shall become effective upon the earlier to occur of its
adoption by the Board of Directors or its approval by the shareholders of the Company as described
in Section 18 of the Plan. It shall continue in effect for a term of ten (10) years unless sooner
terminated under Section 14 of the Plan.



     7. Term of Option. The term of each Option shall be the term stated in the Option
Agreement; provided, however, that the term shall be no more than ten (10) years from the date of
grant thereof or such shorter term as may be provided in the Option Agreement. However, in the
case of an Option granted to an Optionee who, at the time the Option is granted, owns stock
representing more than ten percent (10%) of the voting power of all classes of stock of the Company
or any Parent or Subsidiary, the term of the Option shall be five (5) years from the date of grant
thereof or such shorter term as may be provided in the Option Agreement.



     8. Option Exercise Price and Consideration



          (a) The per share exercise price for the Shares to be issued pursuant to exercise of an Option
shall be such price as is determined by the Board, but shall be subject to the following:




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               (i) In the case of an Incentive Stock Option that is:



                    (A) granted to an Employee who, at the time of the grant of such Incentive Stock Option, owns
stock representing more than ten percent (10%) of the voting power of all classes of stock of the
Company or any Parent or Subsidiary, the per Share exercise price shall be no less than one hundred
ten percent (110%) of the Fair Market Value per Share on the date of grant.



                    (B) granted to any Employee, the per Share exercise price shall be no less than one hundred
percent (100%) of the Fair Market Value per Share on the date of grant.



               (ii) In the case of a Nonstatutory Stock Option, the per Share exercise price shall be such
price as determined by the Administrator provided that if such eligible person is, at the time of
the grant of such Option, a Named Executive of the Company, the per Share exercise price shall be
no less than 100% of the Fair Market Value on the date of grant if such Option is intended to
qualify as performance-based compensation under Section 162(m) of the Code.



               (iii) Notwithstanding the foregoing, Options may be granted with a per Share exercise price
other than as required above pursuant to a merger or other corporate transaction.



          (b) The consideration to be paid for the Shares to be issued upon exercise of an Option,
including the method of payment, shall be determined by the Administrator (and, in the case of an
Incentive Stock Option, shall be determined at the time of grant) and may consist entirely of (i)
cash, (ii) check, (iii) promissory note, (iv) other Shares that (x) in the case of Shares acquired
upon exercise of an Option, have been owned by the Optionee for more than six months on the date of
surrender or such other period as may be required to avoid a charge to the Company’s earnings, and
(y) have a Fair Market Value on the date of surrender equal to the aggregate exercise price of the
Shares as to which such Option shall be exercised, (v) authorization for the Company to retain from
the total number of Shares as to which the Option is exercised that number of Shares having a Fair
Market Value on the date of exercise equal to the exercise price for the total number of Shares as
to which the Option is exercised, (vi) delivery of a properly executed exercise notice together
with such other documentation as the Administrator and the broker, if applicable, shall require to
effect an exercise of the Option and delivery to the Company of the sale or loan proceeds required
to pay the exercise price and any applicable income or employment taxes, (vii) delivery of an
irrevocable subscription agreement for the Shares that irrevocably obligates the option holder to
take and pay for the Shares not more than twelve months after the date of delivery of the
subscription agreement, (viii) any combination of the foregoing methods of payment, or (ix) such other consideration and method
of payment for the issuance of Shares to the extent permitted under Applicable Laws. In making its
determination as to the type of consideration to accept, the Administrator shall consider if
acceptance of such consideration may be reasonably expected to benefit the Company.




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     9. Exercise of Option



          (a) Procedure for Exercise; Rights as a Shareholder. Any Option granted hereunder
shall be exercisable at such times and under such conditions as determined by the Administrator,
including performance criteria with respect to the Company and/or the Optionee, and as shall be
permissible under the terms of the Plan.




               An Option may not be exercised for a fraction of a Share.



               An Option shall be deemed to be exercised when written notice of such exercise has been given
to the Company in accordance with the terms of the Option by the person entitled to exercise the
Option and the Company has received full payment for the Shares with respect to which the Option is
exercised. Full payment may, as authorized by the Board, consist of any consideration and method
of payment allowable under Section 8(b) of the Plan. Until the issuance (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized transfer agent of the
Company) of the stock certificate evidencing such Shares, no right to vote or receive dividends or
any other rights as a shareholder shall exist with respect to the Optioned Stock, not withstanding
the exercise of the Option. The Company shall issue (or cause to be issued) such stock certificate
promptly upon exercise of the Option. No adjustment will be made for a dividend or other right for
which the record date is prior to the date the stock certificate is issued, except as provided in
Section 11 of the Plan.



               Exercise of an Option in any manner shall result in a decrease in the number of Shares that
thereafter may be available, both for purposes of the Plan and for sale under the Option, by the
number of Shares as to which the Option is exercised.



          (b) Termination of Employment or Consulting Relationship. Except as otherwise set
forth in this Section 9(b), the Administrator shall establish and set forth in the applicable
Option Agreement the terms and conditions upon which an Option shall remain exercisable, if at all,
following termination of an Optionee’s Continuous Status, which provisions may be waived or
modified by the Administrator at any time in the Administrator’s sole discretion. To the extent
that the Optionee is not entitled to exercise an Option at the date of his or her termination of
Continuous Status, or if the Optionee (or other person entitled to exercise the Option) does not
exercise the Option to the extent so entitled within the time specified in the Option Agreement or
below (as applicable), the Option shall terminate and the Optioned Stock underlying the unexercised
portion of the Option shall revert to the Plan. In no event may any Option be exercised after the
expiration of the Option term as set forth in the Option Agreement (and subject to Section 7).




          The following provisions (1) shall apply to the extent an Option Agreement does not specify
the terms and conditions upon which an Option shall terminate upon termination of an Optionee’s Continuous Status, and (2) establish the minimum post-termination exercise
periods that may be set forth in an Option Agreement:




               (i) Termination other than Upon Disability or Death or for Cause. In the event of
termination of an Optionee’s Continuous Status, such Optionee may exercise an Option for 30 days
following such termination to the extent the Optionee was entitled to exercise



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it at the date of such termination. No termination shall be deemed to occur and this Section 9(b)(i) shall not apply
if (i) the Optionee is a Consultant who becomes an Employee, or (ii) the Optionee is an Employee
who becomes a Consultant.




               (ii) Disability of Optionee. In the event of termination of an Optionee’s Continuous
Status as a result of his or her disability within the meaning of Section 22(e)(3) of the Code,
such Optionee may exercise an Option at any time within twelve months following such termination to
the extent the Optionee was entitled to exercise it at the date of such termination.



               (iii) Death of Optionee. In the event of the death of an Optionee during the period
of Continuous Status since the date of grant of the Option, or within thirty days following
termination of Optionee’s Continuous Status, the Option may be exercised by Optionee’s estate or by
a person who acquired the right to exercise the Option by bequest or inheritance at any time within
twelve months following the date of death, but only to the extent of the right to exercise that had
accrued at the date of death or, if earlier, the date the Optionee’s Continuous Status terminated.



               (iv) Termination for Cause. In the event of termination of an Optionee’s Continuous
Status for Cause, any Option (including any exercisable portion thereof) held by such Optionee
shall immediately terminate in its entirety upon first notification to the Optionee of termination
of the Optionee’s Continuous Status. If an Optionee’s employment or consulting relationship with
the Company is suspended pending an investigation of whether the Optionee shall be terminated for
Cause, all the Optionee’s rights under any Option likewise shall be suspended during the
investigation period and the Optionee shall have no right to exercise any Option. This Section
9(b)(iv) shall apply with equal effect to vested Shares acquired upon exercise of an Option granted
prior to the date, if any, upon which the Common Stock becomes a Listed Security to a person other
than an officer, Director or Consultant, in that the Company shall have the right to repurchase
such Shares from the Optionee upon the following terms: (A) the repurchase is made within 90 days
of termination of the Optionee’s Continuous Status for Cause at the Fair Market Value of the Shares
as of the date of termination, (B) consideration for the repurchase consists of cash or
cancellation of purchase money indebtedness, and (C) the repurchase right terminates upon the
effective date of the Company’s initial public offering of its Common Stock. With respect to
vested Shares issued upon exercise of an Option granted to any officer, Director or Consultant, the
Company’s right to repurchase such Shares upon termination of the Optionee’s Continuous Status for
Cause shall be made at the Optionee’s original cost for the Shares and shall be effected pursuant
to such terms and conditions, and at such time, as the Administrator shall determine. Nothing in
this Section 9(b)(iv) shall in any way limit the Company’s right to purchase unvested Shares issued
upon exercise of an Option as set forth in the applicable Option Agreement.



          (c) Rule 16b-3. Options granted to Reporting Persons shall comply with Rule 16b-3 and
shall contain such additional conditions or restrictions as may be required thereunder to qualify
for the maximum exemption for Plan transactions.




          (d) Buyout Provisions. The Administrator may at any time offer to buy out for a
payment in cash or Shares, an Option previously granted, based on such terms and




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conditions as the Administrator shall establish and communicate to the Optionee at the time that such offer is made.




     10. Stock Withholding to Satisfy Withholding Tax Obligations.



          (a) As a condition of the exercise of an Option granted under the Plan, the Optionee (or in
the case of the Optionee’s death, the person exercising the Option) shall make such arrangements as
the Administrator may require for the satisfaction of any applicable federal, state, local or
foreign withholding tax obligations that may arise in connection with the exercise of the Option
and the issuance of Shares. The Company shall not be required to issue any Shares under the Plan
until such obligations are satisfied. If the Administrator allows the withholding or surrender of
Shares to satisfy an Optionee’s tax withholding obligations under this Section 10 (whether pursuant
to Section 10(c), (d) or (e), or otherwise), the Administrator shall not allow Shares to be
withheld in an amount that exceeds the minimum statutory withholding rates for federal and state
tax purposes, including payroll taxes.




          (b) In the case of an Employee and in the absence of any other arrangement, the Employee shall
be deemed to have directed the Company to withhold or collect from his or her compensation an
amount sufficient to satisfy such tax obligations from the next payroll payment otherwise payable
after the date of an exercise of the Option.




          (c) This Section 10(c) shall apply only after the date, if any, upon which the Common Stock
becomes a Listed Security. In the case of Optionee other than an Employee (or in the case of an
Employee where the next payroll payment is not sufficient to satisfy such tax obligations, with
respect to any remaining tax obligations), in the absence of any other arrangement and to the
extent permitted under the Applicable Laws, the Optionee shall be deemed to have elected to have
the Company withhold from the Shares to be issued upon exercise of the Option that number of Shares
having a Fair Market Value determined as of the applicable Tax Date (as defined below) equal to the
amount required to be withheld. For purposes of this Section 10, the Fair Market Value of the
Shares to be withheld shall be determined on the date that the amount of tax to be withheld is to
be determined under the Applicable Laws (the “Tax Date”).




          (d) If permitted by the Administrator, in its discretion, an Optionee may satisfy his or her
tax withholding obligations upon exercise of an Option by surrendering to the Company Shares that
have a Fair Market Value determined as of the applicable Tax Date equal to the amount required to
be withheld. In the case of shares previously acquired from the Company that are surrendered under
this Section 10(d), such Shares must have been owned by the Optionee for more than six (6) months
on the date of surrender (or such other period of time as is required for the Company to avoid
adverse accounting charges).




          (e) Any election or deemed election by an Optionee to have Shares withheld to satisfy tax
withholding obligations under Section 10(c) or (d) above shall be irrevocable as to the particular
Shares as to which the election is made and shall be subject to the consent or disapproval of the
Administrator. Any election by an Optionee under Section 11(d) above must be made on or prior to
the applicable Tax Date.




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          (f) In the event an election to have Shares withheld is made by an Optionee and the Tax Date
is deferred under Section 83 of the Code because no election is filed under Section 83(b) of the
Code, the Optionee shall receive the full number of Shares with respect to which the Option is
exercised but such Optionee shall be unconditionally obligated to tender back to the Company the
proper number of Shares on the Tax Date.




     11. Adjustments Upon Changes in Capitalization; Corporate Transactions



          (a) Changes in Capitalization. Subject to any required action by the shareholders of
the Company, the number of shares of Common Stock covered by each outstanding Option, and the
number of shares of Common Stock that have been authorized for issuance under the Plan but as to
which no Options have yet been granted or that have been returned to the Plan upon cancellation or
expiration of an Option, as well as the price per share of Common Stock covered by each such
outstanding Option, shall be proportionately adjusted for any increase or decrease in the number of
issued shares of Common Stock resulting from a stock split, reverse stock split, stock dividend,
combination, recapitalization or reclassification of the Common Stock, or any other increase or
decrease in the number of issued shares of Common Stock effected without receipt of consideration
by the Company; provided, however, that conversion of any convertible securities of the Company
shall not be deemed to have been “effected without receipt of consideration.” Such adjustment
shall be made by the Board, whose determination in that respect shall be final, binding and
conclusive. Except as expressly provided herein, no issuance by the Company of shares of stock of
any class, or securities convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or price of shares of Common
Stock subject to an Option.




          (b) Dissolution or Liquidation. In the event of the proposed dissolution or
liquidation of the Company, the Option will terminate immediately prior to the consummation of such
proposed action, unless otherwise provided by the Administrator. The Administrator may, in the
exercise of its sole discretion in such instances, declare that any Option shall terminate as of a
date fixed by the Administrator and give each Optionee the right to exercise his or her Option as
to all of the Optioned Stock, including Shares as to which the Option would not otherwise be
exercisable.




          (c) Acquisition, Merger or Change in Control




               (i) In the event of a proposed sale of all or substantially all of the assets of the Company,
or the merger of the Company with or into another corporation, or other change in control (a
“Change in Control”), the exercisability of each outstanding Option shall automatically be
accelerated completely so that one hundred percent (100%) of the number of shares of Common Stock
covered by such Option shall be fully vested upon the consummation of the Change in Control; provided, however, that each outstanding Option shall automatically be
accelerated by only fifty percent (50%) of the number of shares of Common Stock covered by such
Option that are unvested at the consummation of the Change in Control if and to the extent: (A)
such Option is either to be assumed by the successor corporation at the consummation of the Change
of Control or be replaced with a comparable option to purchase shares of the capital stock of the
successor corporation at the consummation of the Change in



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Control, or (B) such Option is to be replaced by a comparable cash incentive program of the successor corporation based on the value of
the Option at the time of the consummation of the Change in Control, or (C) the acceleration of
such Option is subject to other limitations imposed by the Administrator at the time of grant.




               (ii) With respect to executive officers, as designated by the Administrator, the
exercisability of each outstanding Option held by such executive officer shall be accelerated
completely so that one hundred percent (100%) of the number of shares of Common Stock covered by
such Option are fully vested if the termination of such executive officer is without Cause or a
Constructive Termination within twelve (12) months after the consummation of a Change in Control.



               (iii) The Administrator shall have the authority, in the Administrator’s sole discretion, to
provide for the automatic acceleration of any outstanding Option upon the occurrence of a Change in
Control.



     12. Non-Transferability of Options. Options may not be sold, pledged, assigned,
hypothecated, transferred, or disposed of in any manner other than by will or by the laws of
descent or distribution and may be exercised or purchased during the lifetime of the Optionee, only
by the Optionee.



     13. Time of Granting Options. The date of grant of an Option shall, for all purposes,
be the date on which the Administrator makes the determination granting such Option, or such other
date as is determined by the Board. Notice of the determination shall be given to each Employee or
Consultant to whom an Option is so granted within a reasonable time after the date of such grant.



     14. Amendment and Termination of the Plan



          (a) Amendment and Termination. The Board may at any time amend, alter, suspend or
discontinue the Plan, but no amendment, alteration, suspension or discontinuation shall be made
that would impair the rights of any Optionee under any grant theretofore made, without his or her
consent. In addition, to the extent necessary and desirable to comply with Rule 16b-3 or with
Section 422 of the Code (or any other applicable law or regulation, including the requirements of
any Stock Exchange), the Company shall obtain shareholder approval of any Plan amendment in such a
manner and to such a degree as required.




          (b) Effect of Amendment or Termination. No amendment or termination of the Plan shall
adversely affect Options already granted, unless mutually agreed otherwise between the Optionee and the Board, which agreement must be in writing and signed by the
Optionee and the Company.




     15. Conditions Upon Issuance of Shares. Shares shall not be issued pursuant to the
exercise of an Option unless the exercise of such Option and the issuance and delivery of such
Shares pursuant thereto shall comply with all relevant provisions of law, including, without
limitation, the Securities Act of 1933, as amended, the Exchange Act, the rules and regulations
promulgated thereunder, and the requirements of any Stock Exchange.



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




     16. Reservation of Shares. The Company, during the term of this Plan, will at all
times reserve and keep available such number of Shares as shall be sufficient to satisfy the
requirements of the Plan. The inability of the Company to obtain authority from any regulatory
body having jurisdiction, which authority is deemed by the Company’s counsel to be necessary to the
lawful issuance and sale of any Shares hereunder, shall relieve the Company of any liability in
respect of the failure to issue or sell such Shares as to which such requisite authority shall not
have been obtained.



     17. Agreements. Options shall be evidenced by written agreements in such form as the
Administrator shall approve from time to time.



     18. Shareholder Approval. Continuance of the Plan shall be subject to approval by the
shareholders of the Company within twelve (12) months before or after the date the Plan is adopted.
Such shareholder approval shall be obtained in the degree and manner required under applicable
state and federal law and the rules of any Stock Exchange upon which the Common Stock is listed.
All Options issued under the Plan shall become void in the event such approval is not obtained.



     19. Information to Optionees. To the extent required by Applicable Laws, the Company
shall provide financial statements at least annually to each Optionee during the period such
Optionee has one or more Options outstanding. The Company shall not be required to provide such
information if the issuance of Options under the Plan is limited to key employees whose duties in
connection with the Company assure their access to equivalent information.



     20. Awards Granted to California Residents. Prior to the date, if any, upon which the
Common Stock becomes a Listed Security, Options granted under the Plan to persons resident in
California shall be subject to the provisions set forth in Attachment A hereto. To the
extent the provisions of the Plan conflict with the provisions set forth on Attachment A,
the provisions in Attachment A shall govern the terms of such Options.



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Attachment A

Provisions Applicable to Option Recipients

Resident in California




     Until such time as any security of the Company becomes a Listed Security and if required by
applicable laws, the following additional terms shall apply to Options, and Shares issued upon
exercise of such Options, granted under the Amended and Restated 1998 Stock Option Plan (the
“Plan”) to persons resident in California as of the grant date of any such Option (each
such person, a “California Recipient”):



     1. In the case of an Option, whether an Incentive Stock Option or a Nonqualified Stock Option,
that is granted to a California Recipient who, at the time of the grant of such Option, owns stock
representing more than 10% of the total combined voting power of all classes of stock of the
Company or any Parent or Subsidiary, the per Share exercise price shall be no less than 110% of the
Fair Market Value on the grant date.



     2. In the case of a Nonqualified Stock Option that is granted to any other California
Recipient, the per Share exercise price shall be no less than 85% of the Fair Market Value per
Share on the grant date.



     3. With respect to an Option issued to any California Recipient who is not an Officer,
Director or Consultant, such Option shall become exercisable, or any repurchase option in favor of
the Company shall lapse, at the rate of at least 20% per year over five years from the grant date.



     4. The following rules shall apply to an Option issued to any California Recipient or to stock
issued to a California Recipient upon exercise of an Option, in the event of termination of the
California Recipient’s employment or services with the Company:



          (a) If such termination was for reasons other than death or disability, the California
Recipient shall have at least 30 days after the date of such termination (but in no event later
than the expiration of the term of such Option established by the Plan Administrator as of the
grant date) to exercise such Option.




          (b) If such termination was on account of the death or disability of the California Recipient,
the holder of the Option may, but only within six months from the date of such termination (but in
no event later than the expiration date of the term of such Option established by the Plan
Administrator as of the grant date), exercise the Option to the extent the California Recipient was
otherwise entitled to exercise it at the date of such termination. To the extent that the
California Recipient was not entitled to exercise the Option at the date of termination, or if the
holder does not exercise such Option to the extent so entitled within six months from the date of
termination, the Option shall terminate and the Common Stock underlying the unexercised portion of
the Option shall revert to the Plan.




          (c) Section 9(b)(iv) of the Plan shall apply with equal effect to vested Shares acquired upon
exercise of an Option granted prior to the date, if any, upon which the Common Stock becomes a Listed Security to a person other than an Officer, Director or Consultant, in
that




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the Company shall have the right to repurchase such Shares from the Optionee upon the
following terms: (A) the repurchase is made within 90 days of termination of the Optionee’s
Continuous Status for Cause at the Fair Market Value of the Shares as of the date of termination,
(B) consideration for the repurchase consists of cash or cancellation of purchase money
indebtedness, and (C) the repurchase right terminates upon the effective date of the Company’s
initial public offering of its Common Stock. With respect to vested Shares issued upon exercise of
an Option granted to any Officer, Director or Consultant, the Company’s right to repurchase such
Shares upon termination of the Optionee’s Continuous Status for Cause shall be made at the
Participant’s original cost for the Shares and shall be effected pursuant to such terms and
conditions, and at such time, as the Administrator shall determine. Nothing in this Section
9(b)(iv) shall in any way limit the Company’s right to purchase unvested Shares issued upon
exercise of an Option as set forth in the applicable Option Agreement.




     5. The Company shall provide financial statements at least annually to each California
Recipient during the period such person has one or more Options outstanding, and in the case of an
individual who acquired Shares pursuant to the Plan, during the period such individual owns such
Shares. The Company shall not be required to provide such information if the issuance of awards
under the Plan is limited to key employees whose duties in connection with the Company assure their
access to equivalent information.



     6. Unless defined below or otherwise in this Attachment, Capitalized terms shall have the
meanings set forth in the Plan. For purposes of this Attachment, “Officer” means a person who is
an officer of the Company within the meaning of Section 16(a) of the Exchange Act and the rules and
regulations promulgated thereunder.




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