exv10w1



 





Exhibit 10.1



Pursuant to the resolution of the Board of Directors of Kyphon Inc. (the “Company”) dated
October 18, 2007, from and after the Effective Time, as such term is defined in that certain
Agreement and Plan of Merger, dated as of July 26, 2007, by and among Medtronic, Inc., a Minnesota
corporation (“Medtronic”), Jets Acquisition Corporation, a Delaware corporation and wholly
owned subsidiary of Medtronic (“Merger Sub”), and the Company, the Kyphon Inc. 2002 Stock
Plan and each agreement evidencing outstanding awards thereunder shall be deemed amended to the
extent necessary so that each reference to the Company (other than references relating to a “change
in control” of the Company) shall refer to Medtronic.




MEDTRONIC, INC. – KYPHON INC. 2002 STOCK PLAN




(FORMERLY THE KYPHON INC. 2002 STOCK PLAN)




(Amended and Restated July 26, 2007, as further amended on October 18, 2007)




     1. Purposes of the Plan. The purposes of this 2002 Stock Plan are:




	 	•	 	to attract and retain the best available personnel for positions of
substantial responsibility,
	 
	 	•	 	to provide additional incentive to Employees, Directors and Consultants, and
	 
	 	•	 	to promote the success of the Company’s business.





          Options granted under the Plan may be Incentive Stock Options or Nonstatutory Stock Options,
as determined by the Administrator at the time of grant. Stock Purchase Rights and Restricted
Stock Units may also be granted under the Plan.




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



          (a) “Administrator” means the Board or any of its Committees as shall be administering
the Plan, in accordance with Section 4 of the Plan.




          (b) “Applicable Laws” means the requirements relating to the administration of stock
option plans under U. S. state corporate laws, U.S. federal and state securities laws, the Code,
any stock exchange or quotation system on which the Common Stock is listed or quoted and the
applicable laws of any foreign country or jurisdiction where Options, Restricted Stock Units or
Stock Purchase Rights are, or will be, granted under the Plan.




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




          (d) “Change in Control” means the occurrence of any of the following events:




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               (i) Any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act)
becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly or
indirectly, of securities of the Company representing fifty percent (50%) or more of the total
voting power represented by the Company’s then outstanding voting securities; or



               (ii) A change in the composition of the Board occurring within a two-year period, as a result
of which fewer than a majority of the directors are Incumbent Directors. “Incumbent Directors”
will mean directors who either (A) are directors of the Company as of the date hereof, or (B) are
elected, or nominated for election, to the Board with the affirmative votes of at least a majority
of the Incumbent Directors at the time of such election or nomination (but will not include an
individual whose election or nomination is in connection with an actual or threatened proxy contest
relating to the election of directors to the Company); or



               (iii) The consummation of the sale or disposition by the Company of all or substantially all
of the Company’s assets; or



               (iv) The consummation of a merger or consolidation of the Company with any other corporation,
other than a merger or consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by remaining outstanding or
by being converted into voting securities of the surviving entity or its parent) at least fifty
percent (50%) of the total voting power represented by the voting securities of the Company or such
surviving entity or its parent outstanding immediately after such merger or consolidation.



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




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




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




          (h) “Company” means Kyphon Inc., a Delaware corporation.




          (i) “Consultant” means any natural person, including an advisor, engaged by the
Company or a Parent or Subsidiary to render services to such entity.




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




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




          (l) “Employee” means any person, including Officers and Directors, employed by the
Company or any Parent or Subsidiary of the Company. A Service Provider shall not cease to be an
Employee in the case of (i) any leave of absence approved by the Company or (ii) transfers between
locations of the Company or between the Company, its Parent, any Subsidiary, or any successor. For
purposes of Incentive Stock Options, no such leave may exceed ninety days, unless reemployment upon
expiration of such leave is guaranteed by statute or contract. If reemployment



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upon expiration of a leave of absence approved by the Company is not so guaranteed, then three
(3) months following the 90th day of such leave, any Incentive Stock Option held by the
Optionee shall cease to be treated as an Incentive Stock Option and shall be treated for tax
purposes as a Nonstatutory Stock Option. Neither service as a Director nor payment of a director’s
fee by the Company shall be sufficient to constitute “employment” by the Company.




          (m) “Equity Restructuring” means a non-reciprocal transaction between the Company and
its stockholders, such as a stock dividend, stock split, spin-off, rights offering or
recapitalization through a large, nonrecurring cash dividend, that affects the shares of Common
Stock (or other securities of the Company) or the share price of Common Stock (or other securities)
and causes a change in the per share value of the Common Stock underlying outstanding Options,
Restricted Stock Units and Stock Purchase Rights.




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




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




               (i) If the Common Stock is listed on any established stock exchange or a national market
system, including without limitation the Nasdaq National Market or The Nasdaq SmallCap Market of
The Nasdaq Stock Market, its Fair Market Value shall be the closing sales price for such stock (or
the closing bid, if no sales were reported) as quoted on such exchange or system on the day of
determination, as reported in The Wall Street Journal or such other source as the Administrator
deems reliable;



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



               (iii) For purposes of any awards granted on the first day the Company initially offers it
equity securities to the public, the Fair Market Value shall be the initial price to the public as
set forth in the final prospectus included within the registration statement in Form S-1 filed with
the Securities and Exchange Commission for the initial public offering of the Company’s Common
Stock.



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



          (p) “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.




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




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          (r) “Notice of Grant” means a written or electronic notice evidencing certain terms
and conditions of an individual Option, Restricted Stock Units or Stock Purchase Right grant. The
Notice of Grant is part of the Option Agreement, Restricted Stock Unit Agreement and Restricted
Stock Purchase Agreement.




          (s) “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.




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




          (u) “Option Agreement” means an agreement between the Company and an Optionee
evidencing the terms and conditions of an individual Option grant. The Option Agreement is subject
to the terms and conditions of the Plan.




          (v) “Option Exchange Program” means a program whereby outstanding Options are
surrendered in exchange for Options with a lower exercise price.




          (w) “Optioned Stock” means the Common Stock subject to an Option, Restricted stock
Unit or Stock Purchase Right.




          (x) “Optionee” means the holder of an outstanding Option, Restricted Stock Unit or
Stock Purchase Right granted under the Plan.




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




          (z) “Plan” means this 2002 Stock Plan, as amended and restated herein.




          (aa) “Restricted Stock” means shares of Common Stock acquired pursuant to a grant of
Stock Purchase Rights under Section 11 of the Plan.




          (bb) “Restricted Stock Purchase Agreement” means a written agreement between the
Company and the Optionee evidencing the terms and restrictions applying to stock purchased under a
Stock Purchase Right. The Restricted Stock Purchase Agreement is subject to the terms and
conditions of the Plan and the Notice of Grant.




          (cc) “Restricted Stock Unit” means an award granted under Section 12 of the Plan.




          (dd) “Restricted Stock Unit Agreement” means a written agreement between the Company
and the Optionee evidencing the terms and conditions of an award of Restricted Stock Units. The
Restrictred Stock Unit Agreement is subject to the terms and conditions of the Plan and the Notice
of Grant.




          (ee) “Rule 16b-3” means Rule 16b-3 of the Exchange Act or any successor to Rule 16b-3,
as in effect when discretion is being exercised with respect to the Plan.




          (ff) “Section 16(b) “ means Section 16(b) of the Exchange Act.




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          (gg) “Service Provider” means an Employee, Director or Consultant.




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




          (ii) “Stock Purchase Right” means the right to purchase Common Stock pursuant to
Section 11 of the Plan, as evidenced by a Notice of Grant.




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




     3. Stock Subject to the Plan. Subject to the provisions of Section 14 of the Plan,
the maximum aggregate number of Shares that may be optioned and sold under the Plan is 2,500,000
Shares plus (a) any Shares which have been reserved but not issued under the Company’s 1996 Stock
Option Plan (the “1996 Plan”) as of the date of stockholder approval of this Plan, (b) any Shares
returned to the 1996 Plan as a result of termination of options or repurchase of Shares issued
under the 1996 Plan and (c) an annual increase to be added on the first day of the Company’s fiscal
year beginning in 2003, equal to the lesser of (i) 3,500,000 shares, (ii) 5% of the outstanding
shares on such date or (iii) an amount determined by the Board. The Shares may be authorized, but
unissued, or reacquired Common Stock.



          If an Option, Restricted Stock Unit or Stock Purchase Right expires or becomes unexercisable
without having been exercised in full, or is surrendered pursuant to an Option Exchange Program,
the unpurchased Shares which were subject thereto shall become available for future grant or sale
under the Plan (unless the Plan has terminated); provided, however, that Shares that have
actually been issued under the Plan, whether upon exercise of an Option, Restricted Stock Unit or
Stock Purchase Right, shall not be returned to the Plan and shall not become available for future
distribution under the Plan, except that if Shares of Restricted Stock are repurchased by the
Company at their original purchase price, such Shares shall become available for future grant under
the Plan.




     4. Administration of the Plan.



          (a) Procedure.




               (i) Multiple Administrative Bodies. Different Committees with respect to different
groups of Service Providers may administer the Plan.



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



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



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



          (b) Powers of the Administrator. Subject to the provisions of the Plan, and in the
case of a Committee, subject to the specific duties delegated by the Board to such Committee, the
Administrator shall have the authority, in its discretion:




               (i) to determine the Fair Market Value;



               (ii) to select the Service Providers to whom Options, Restricted Stock Units and Stock
Purchase Rights may be granted hereunder;



               (iii) to determine the number of shares of Common Stock to be covered by each Option,
Restricted Stock Unit and Stock Purchase Right granted hereunder;



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



               (v) to determine the terms and conditions, not inconsistent with the terms of the Plan, of any
Option, Restricted Stock Unit or Stock Purchase Right granted hereunder. Such terms and conditions
include, but are not limited to, the exercise price, the time or times when Options or Stock
Purchase Rights may be exercised (which may be based on performance criteria), any vesting
acceleration or waiver of forfeiture restrictions, and any restriction or limitation regarding any
Option, Restricted Stock Unit or Stock Purchase Right or the shares of Common Stock relating
thereto, based in each case on such factors as the Administrator, in its sole discretion, shall
determine;



               (vi) to institute an Option Exchange Program subject to shareholder approval;



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



               (viii) to establish, amend and rescind rules and regulations relating to the Plan, including
rules and regulations relating to sub-plans established for the purpose of satisfying applicable
foreign laws;



               (ix) to modify or amend each Option, Restricted Stock Unit or Stock Purchase Right (subject to
Section 16(c) of the Plan), including the discretionary authority to extend the post-termination
exercisability period of Options longer than is otherwise provided for in the Plan;



               (x) to allow Optionees to satisfy withholding tax obligations by electing to have the Company
withhold from the Shares to be issued upon exercise of an Option, Restricted Stock Unit or Stock
Purchase Right that number of Shares having a Fair Market Value equal to the minimum amount
required to be withheld. 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. All elections by



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an Optionee to have Shares withheld for this purpose shall be made in such form and under such
conditions as the Administrator may deem necessary or advisable;




               (xi) to authorize any person to execute on behalf of the Company any instrument required to
effect the grant of an Option, Restricted Stock Unit or Stock Purchase Right previously granted by
the Administrator;



               (xii) to correct any defect, supply any omission, or reconcile any inconsistency in the Plan,
or in any Option Agreement, Restricted Stock Unit Agreement or Restricted Stock Purchase Agreement,
in a manner and to the extent it shall deem necessary, all of which determinations and
interpretations made by the Administrator shall be conclusive and binding on all Optionees, any
other holders of Options and on their legal representatives and beneficiaries; and



               (xiii) except to the extent prohibited by, or impermissible in order to obtain treatment
desired by the Administrator under, applicable law or rule, to allocate or delegate all or any
portion of its powers and responsibilities to any one or more of its members or to any person(s)
selected by it, subject to revocation or modification by the Administrator of such allocation or
delegation.



               (xiv) to make all other determinations deemed necessary or advisable for administering the
Plan.



          (c) Effect of Administrator’s Decision. The Administrator’s decisions, determinations
and interpretations shall be final and binding on all Optionees and any other holders of Options,
Restricted Stock Units or Stock Purchase Rights.




     5. Eligibility. Nonstatutory Stock Options, Restricted Stock Units and Stock Purchase
Rights may be granted to Service Providers. Incentive Stock Options may be granted only to
Employees.



     6. Limitations.



          (a) Each Option shall be designated in the Option Agreement as either an Incentive Stock
Option or a Nonstatutory Stock Option. However, notwithstanding such designation, to the extent
that the aggregate Fair Market Value of the Shares with respect to which Incentive Stock Options
are exercisable for the first time by the Optionee during any calendar year (under all plans of the
Company and any Parent or Subsidiary) exceeds $100,000, such Options shall be treated as
Nonstatutory Stock Options. For purposes of this Section 6(a), Incentive Stock Options shall be
taken into account in the order in which they were granted. The Fair Market Value of the Shares
shall be determined as of the time the Option with respect to such Shares is granted.




          (b) Neither the Plan nor any Option, Restricted Stock Unit or Stock Purchase Right shall
confer upon an Optionee any right with respect to continuing the Optionee’s relationship as a
Service Provider with the Company, nor shall they interfere in any way with the Optionee’s right or
the Company’s right to terminate such relationship at any time, with or without cause.




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          (c) The following limitations shall apply to grants of Options:




               (i) No Service Provider shall be granted, in any fiscal year of the Company, Options to
purchase more than 750,000 Shares.



               (ii) In connection with his or her initial service, a Service Provider may be granted Options
to purchase up to an additional 2,000,000 Shares, which shall not count against the limit set forth
in subsection (i) above.



               (iii) The foregoing limitations shall be adjusted proportionately in connection with any
change in the Company’s capitalization as described in Section 14.



               (iv) If an Option is cancelled in the same fiscal year of the Company in which it was granted
(other than in connection with a transaction described in Section 14), the cancelled Option will be
counted against the limits set forth in subsections (i) and (ii) above. For this purpose, if the
exercise price of an Option is reduced, the transaction will be treated as a cancellation of the
Option and the grant of a new Option.



     7. Term of Plan. Subject to Section 20 of the Plan, the Plan shall become effective
upon its adoption by the Board. It shall continue in effect for a term of ten (10) years unless
terminated earlier under Section 16 of the Plan.



     8. Term of Option. The term of each Option shall be stated in the Option Agreement.
In the case of an Incentive Stock Option, the term shall be ten (10) years from the date of grant
or such shorter term as may be provided in the Option Agreement. Moreover, in the case of an
Incentive Stock Option granted to an Optionee who, at the time the Incentive Stock Option is
granted, owns stock representing more than ten percent (10%) of the total combined voting power of
all classes of stock of the Company or any Parent or Subsidiary, the term of the Incentive Stock
Option shall be five (5) years from the date of grant or such shorter term as may be provided in
the Option Agreement.



     9. Option Exercise Price and Consideration.




               (i) In the case of an Incentive Stock Option



                    (A) granted to an Employee who, at the time the Incentive Stock 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 per Share exercise price shall be no less than 110% of the Fair
Market Value per Share on the date of grant.



                    (B) granted to any Employee other than an Employee described in paragraph (A) immediately
above, the per Share exercise price shall be no less than 100% of the Fair Market Value per Share
on the date of grant.



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               (ii) In the case of a Nonstatutory Stock Option, the per Share exercise price shall be
determined by the Administrator. In the case of a Nonstatutory Stock Option intended to qualify as
“performance-based compensation” within the meaning of Section 162(m) of the Code, the per Share
exercise price shall be no less than 100% of the Fair Market Value per Share on the date of grant.



               (iii) Notwithstanding the foregoing, Options may be granted with a per Share exercise price of
less than 100% of the Fair Market Value per Share on the date of grant pursuant to a merger or
other corporate transaction.



          (b) Waiting Period and Exercise Dates. At the time an Option is granted, the
Administrator shall fix the period within which the Option may be exercised and shall determine any
conditions that must be satisfied before the Option may be exercised.




          (c) Form of Consideration. The Administrator shall determine the acceptable form of
consideration for exercising an Option, including the method of payment. In the case of an
Incentive Stock Option, the Administrator shall determine the acceptable form of consideration at
the time of grant. Such consideration may consist entirely of:




               (i) cash;



               (ii) check;



               (iii) promissory note;



               (iv) other Shares, provided Shares acquired directly or indirectly from the Company, (A) have
been owned by the Optionee for more than six (6) months on the date of surrender, and (B) have a
Fair Market Value on the date of surrender equal to the aggregate exercise price of the Shares as
to which said Option shall be exercised;



               (v) consideration received by the Company under a cashless exercise program implemented by the
Company in connection with the Plan;



               (vi) a reduction in the amount of any Company liability to the Optionee, including any
liability attributable to the Optionee’s participation in any Company-sponsored deferred
compensation program or arrangement;



               (vii) any combination of the foregoing methods of payment; or



               (viii) such other consideration and method of payment for the issuance of Shares to the extent
permitted by Applicable Laws.



     10. Exercise of Option.



          (a) Procedure for Exercise; Rights as a Stockholder. Any Option granted hereunder
shall be exercisable according to the terms of the Plan and at such times and under such conditions
as determined by the Administrator and set forth in the Option Agreement. Unless the



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Administrator provides otherwise, vesting of Options granted hereunder shall be suspended
during any unpaid leave of absence. An Option may not be exercised for a fraction of a Share.




               An Option shall be deemed exercised when the Company receives: (i) written or electronic
notice of exercise (in accordance with the Option Agreement) from the person entitled to exercise
the Option, and (ii) full payment for the Shares with respect to which the Option is exercised.
Full payment may consist of any consideration and method of payment authorized by the Administrator
and permitted by the Option Agreement and the Plan. Shares issued upon exercise of an Option shall
be issued in the name of the Optionee or, if requested by the Optionee, in the name of the Optionee
and his or her spouse or in the name of a family trust of which the Optionee is a trustee. Until
the Shares are issued (as evidenced by the appropriate entry on the books of the Company or of a
duly authorized transfer agent of the Company), no right to vote or receive dividends or any other
rights as a stockholder shall exist with respect to the Optioned Stock, notwithstanding the
exercise of the Option. The Company shall issue (or cause to be issued) such Shares promptly after
the Option is exercised; provided that if the Company shall be advised by counsel that certain
requirements under the Federal, state or foreign securities laws must be met before Shares may be
issued under this Plan, the Company shall notify all persons who have been issued Options, and the
Company shall have no liability for failure to issue Shares under any exercise of Options because
of delay while such requirements are being met or the inability of the Company to comply with such
requirements. No adjustment will be made for a dividend or other right for which the record date
is prior to the date the Shares are issued, except as provided in Section 14 of the Plan.



               Exercising an Option in any manner shall decrease the number of Shares thereafter 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 Relationship as a Service Provider. If an Optionee ceases to be a
Service Provider, other than upon the Optionee’s death or Disability, the Optionee may exercise his
or her Option within such period of time as is specified in the Option Agreement to the extent that
the Option is vested on the date of termination (but in no event later than the expiration of the
term of such Option as set forth in the Option Agreement). In the absence of a specified time in
the Option Agreement, the Option shall remain exercisable for three (3) months following the
Optionee’s termination. If, on the date of termination, the Optionee is not vested as to his or
her entire Option, the Shares covered by the unvested portion of the Option shall revert to the
Plan. If, after termination, the Optionee does not exercise his or her Option within the time
specified by the Administrator, the Option shall terminate, and the Shares covered by such Option
shall revert to the Plan.




          (c) Disability of Optionee. If an Optionee ceases to be a Service Provider as a
result of the Optionee’s Disability, the Optionee may exercise his or her Option within such period
of time as is specified in the Option Agreement to the extent the Option is vested on the date of
termination (but in no event later than the expiration of the term of such Option as set forth in
the Option Agreement). In the absence of a specified time in the Option Agreement, the Option
shall remain exercisable for twelve (12) months following the Optionee’s termination. If, on the
date of termination, the Optionee is not vested as to his or her entire Option, the Shares covered
by the




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unvested portion of the Option shall revert to the Plan. If, after termination, the Optionee
does not exercise his or her Option within the time specified herein, the Option shall terminate,
and the Shares covered by such Option shall revert to the Plan.




          (d) Death of Optionee. If an Optionee dies while a Service Provider, the Option may
be exercised following the Optionee’s death within such period of time as is specified in the
Option Agreement to the extent that the Option is vested on the date of death (but in no event may
the Option be exercised later than the expiration of the term of such Option as set forth in the
Option Agreement), by the Optionee’s designated beneficiary, provided such beneficiary has been
designated prior to the Optionee’s death in a form acceptable to the Administrator. If no such
beneficiary has been designated by the Optionee, then such Option may be exercised by the personal
representative of the Optionee’s estate or by the person(s) to whom the Option is transferred
pursuant to the Optionee’s will or in accordance with the laws of descent and distribution. In the
absence of a specified time in the Option Agreement, the Option shall remain exercisable for twelve
(12) months following the Optionee’s death. If, at the time of death, the Optionee is not vested
as to his or her entire Option, the Shares covered by the unvested portion of the Option shall
immediately revert to the Plan. If the Option is not so exercised within the time specified
herein, the Option shall terminate, and the Shares covered by such Option shall revert to the Plan.




     11. Stock Purchase Rights.



          (a) Rights to Purchase. Stock Purchase Rights may be issued either alone, in addition
to, or in tandem with other awards granted under the Plan and/or cash awards made outside of the
Plan. After the Administrator determines that it will offer Stock Purchase Rights under the Plan,
it shall advise the offeree in writing or electronically, by means of a Notice of Grant, of the
terms, conditions and restrictions related to the offer, including the number of Shares that the
offeree shall be entitled to purchase, the price to be paid, and the time within which the offeree
must accept such offer. The offer shall be accepted by execution of a Restricted Stock Purchase
Agreement in the form determined by the Administrator.




          (b) Repurchase Option. Unless the Administrator determines otherwise, the Restricted
Stock Purchase Agreement shall grant the Company a repurchase option exercisable upon the voluntary
or involuntary termination of the purchaser’s service with the Company for any reason (including
death or Disability). The purchase price for Shares repurchased pursuant to the Restricted Stock
Purchase Agreement shall be the original price paid by the purchaser and may be paid by
cancellation of any indebtedness of the purchaser to the Company. The repurchase option shall
lapse at a rate determined by the Administrator.




          (c) Other Provisions. The Restricted Stock Purchase Agreement shall contain such
other terms, provisions and conditions not inconsistent with the Plan as may be determined by the
Administrator in its sole discretion.




          (d) Rights as a Stockholder. Once the Stock Purchase Right is exercised, the
purchaser shall have the rights equivalent to those of a stockholder, and shall be a stockholder
when his or her purchase is entered upon the records of the duly authorized transfer agent of the
Company.




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No adjustment will be made for a dividend or other right for which the record date is prior to
the date the Stock Purchase Right is exercised, except as provided in Section 14 of the Plan.




     12. Restricted Stock Units. The Administrator is authorized to make awards of
Restricted Stock Units to any Service Provider selected by the Administrator in such amounts and
subject to such terms and conditions as determined by the Administrator. At the time of grant, the
Administrator shall specify the date or dates on which the Restricted Stock Units shall become
fully vested and nonforfeitable, and may specify such conditions to vesting as it deems
appropriate. At the time of grant, the Administrator shall specify the maturity date applicable to
each grant of Restricted Stock Units which shall be no earlier than the vesting date or dates of
the Restricted Stock Units and may be determined at the election of the grantee. On the maturity
date, the Company shall, subject to Section 17, transfer to the Participant one unrestricted,
fully transferable share of Common Stock for each Restricted Stock Unit scheduled to be paid out on
such date and not previously forfeited. The Restricted Stock Unit Agreement shall contain such
terms, provisions and conditions as may be determined by the Administrator in its sole discretion.



     13. Transferability of Options, Restricted Stock Units and Stock Purchase Rights.
Unless determined otherwise by the Administrator, an Option, Restricted Stock Unit or Stock
Purchase Right 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, during
the lifetime of the Optionee, only by the Optionee. If the Administrator makes an Option,
Restricted Stock Unit or Stock Purchase Right transferable, such Option, Restricted Stock Unit or
Stock Purchase Right shall contain such additional terms and conditions as the Administrator deems
appropriate.



     14. Adjustments; Dissolution; Merger or Change in Control.



          (a) Adjustments. In the event that any dividend or other distribution,
reorganization, merger, consolidation, combination, repurchase, or exchange of Common Stock or
other securities of the Company, or other change in the corporate structure of the Company
affecting the Common Stock (other than an Equity Restructuring) occurs such that an adjustment is
determined by the Administrator (in its sole discretion) to be appropriate in order to prevent
dilution or enlargement of the benefits or potential benefits intended to be made available under
the Plan, then the Administrator shall, in such manner as it may deem equitable, adjust the number
and class of Common Stock which may be delivered under the Plan, the purchase price per Share and
the number of Shares covered by each Option which has not yet been exercised and each Restricted
Stock Unit for wich a Share has not yet been issued, and the numerical limits of Sections 3 and 6.




          (b) Dissolution or Liquidation. In the event of the proposed dissolution or
liquidation of the Company, the Administrator shall notify each Optionee as soon as practicable
prior to the effective date of such proposed transaction. The Administrator in its discretion may
provide for an Optionee to have the right to exercise his or her Option until ten (10) days prior
to such transaction as to all of the Optioned Stock covered thereby, including Shares as to which
the Option would not otherwise be exercisable. In addition, the Administrator may provide that any
Company repurchase option applicable to any Shares purchased upon exercise of an Option or Stock
Purchase Right shall lapse as to all such Shares and that the vesting with respect to Restricted
Stock Units shall fully accelerate, provided the proposed dissolution or liquidation takes place at
the time



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and in the manner contemplated. To the extent an Option or Stock Purchase Right has not been
previously exercised or Shares subject to a Restricted Stock Unit have not been previously issued,
such Option, Restricted Stock Unit or Stock Purchase Right will terminate immediately prior to the
consummation of such proposed action.




          (c) In connection with the occurrence of any Equity Restructuring, and notwithstanding
anything to the contrary in Section 14(a) and 14(b):




               (i) The number and type of securities subject to each outstanding Option, Restricted Stock
Unit or Stock Purchase Right and the exercise price or grant price thereof, if applicable, will be
proportionately adjusted. The adjustments provided under this Section 14(c)(i) shall be
nondiscretionary and shall be final and binding on the affected Service Provider and the Company.



               (ii) The Administrator shall make such proportionate adjustments, if any, as the Administrator
in its discretion may deem appropriate to reflect such Equity Restructuring with respect to the
aggregate number and kind of shares that may be issued under the Plan (including, but not limited
to, adjustments of the limitations in Sections 3 and 6).



               (iii) Notwithstanding anything in this Section 14 to the contrary, this Section 14(c) shall
not apply to, and instead Section 14(a) shall apply to, any Option to which the application of this
Section 14(c) would (A) result in a penalty tax under Section 409A of the Code and the Department
of Treasury proposed and final regulations and guidance thereunder or (B) cause any Incentive Stock
Option to fail to qualify as an “incentive stock option” under Section 422 of the Code.



          (d) Merger or Change in Control. In the event of a merger of the Company with or into
another corporation, or a Change in Control, each outstanding Option, Restricted Stock Unit and
Stock Purchase Right shall be assumed or an equivalent option or right substituted by the successor
corporation or a Parent or Subsidiary of the successor corporation. In the event that the
successor corporation refuses to assume or substitute for the Option, Restricted Stock Unit or
Stock Purchase Right, the Optionee shall fully vest in and have the right to exercise the Option or
Stock Purchase Right and to have Shares issued pursuant to the Restricted Stock Unit, in each case,
as to all of the Optioned Stock, including Shares as to which it would not otherwise be vested or
exercisable. If an Option or Stock Purchase Right becomes fully vested and exercisable in lieu of
assumption or substitution in the event of a merger or Change in Control, the Administrator shall
notify the Optionee in writing or electronically that the Option or Stock Purchase Right shall be
fully vested and exercisable for a period of fifteen (15) days from the date of such notice, and
the Option or Stock Purchase Right shall terminate upon the expiration of such period. If a
Restricted Stock Unit becomes fully vested in lieu of assumption or substitution in the event of a
merger or Change in Control, the Share subject to such Restricted Stock Unit shall be issued no
later than immediately prior to the consummation of such merger or Change in Control.




          For the purposes of this subsection (c), the Option, Restricted Stock Unit or Stock Purchase
Right shall be considered assumed if, following the merger or Change in Control, the option, unit
or right confers the right to purchase or receive, for each Share of Optioned Stock




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subject to the Option, Restricted Stock Unit or Stock Purchase Right immediately prior to the
merger or Change in Control, the consideration (whether stock, cash, or other securities or
property) received in the merger or Change in Control by holders of Common Stock for each Share
held on the effective date of the transaction (and if holders were offered a choice of
consideration, the type of consideration chosen by the holders of a majority of the outstanding
Shares); provided, however, that if such consideration received in the merger or Change in Control
is not solely common stock of the successor corporation or its Parent, the Administrator may, with
the consent of the successor corporation, provide for the consideration to be received upon the
exercise of the Option or Stock Purchase Right and upon the maturity of the Restricted Stock Unit,
for each Share of Optioned Stock subject to the Option, Restricted Stock Unit or Stock Purchase
Right, to be solely common stock of the successor corporation or its Parent equal in fair market
value to the per share consideration received by holders of Common Stock in the merger or Change in
Control.




     15. Date of Grant. The date of grant of an Option, Restricted Stock Unit or Stock
Purchase Right shall be, for all purposes, the date on which the Administrator makes the
determination granting such Option, Restricted Stock Unit or Stock Purchase Right, or such other
later date as is determined by the Administrator. Notice of the determination shall be provided to
each Optionee within a reasonable time after the date of such grant.



     16. Amendment and Termination of the Plan.



          (a) Amendment and Termination. The Board may at any time amend, alter, suspend or
terminate the Plan.




          (b) Stockholder Approval. The Company shall obtain stockholder approval of any Plan
amendment to the extent necessary and desirable to comply with Applicable Laws.




          (c) Effect of Amendment or Termination. No amendment, alteration, suspension or
termination of the Plan shall impair the rights of any Optionee, unless mutually agreed otherwise
between the Optionee and the Administrator, which agreement must be in writing and signed by the
Optionee and the Company. Termination of the Plan shall not affect the Administrator’s ability to
exercise the powers granted to it hereunder with respect to Options, Restricted Stock Units and
Stock Purchase Rights granted under the Plan prior to the date of such termination.




     17. Conditions Upon Issuance of Shares.



          (a) Legal Compliance. Shares shall not be issued pursuant to the exercise of an
Option, Restricted Stock Unit or Stock Purchase Right unless the exercise of such Option,
Restricted Stock Unit or Stock Purchase Right and the issuance and delivery of such Shares shall
comply with Applicable Laws and shall be further subject to the approval of counsel for the Company
with respect to such compliance.




          (b) Investment Representations. As a condition to the exercise of an Option or Stock
Purchase Right or the issuance of Shares pursuant to a Restricted Stock Unit, the Company may
require the person exercising such Option, Restricted Stock Unit or Stock Purchase Right to
represent and warrant at the time of any such exercise that the Shares are being purchased only for




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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.




     18. Inability to Obtain Authority. 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.



     19. 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.



     20. Stockholder Approval. The Plan shall be subject to approval by the stockholders
of the Company within twelve (12) months after the date the Plan is adopted. Such stockholder
approval shall be obtained in the manner and to the degree required under Applicable Laws.




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