EXHIBIT
10.22


 


RIGEL PHARMACEUTICALS, INC.


 


2000 NON-EMPLOYEE DIRECTORS’ STOCK
OPTION PLAN


 


ADOPTED AUGUST 18, 2000


APPROVED
BY STOCKHOLDERS SEPTEMBER 11, 2000


EFFECTIVE
DATE: DECEMBER 4, 2000


AMENDED
AND RESTATED APRIL 24, 2003


AMENDED
AND RESTATED JUNE 20, 2003


APPROVED
BY STOCKHOLDERS JUNE 20, 2003


AMENDED
AND RESTATED APRIL 22, 2005


APPROVED
BY STOCKHOLDERS JUNE 2, 2005


AMENDED
AND RESTATED JANUARY 31, 2007


APPROVED
BY STOCKHOLDERS MAY 31, 2007


AMENDED
AND RESTATED SEPTEMBER 18, 2007


AMENDED
AND RESTATED FEBRUARY 21, 2008


APPROVED
BY STOCKHOLDERS MAY 29, 2008


AMENDED
AND RESTATED MAY 19, 2009


AMENDED
AND RESTATED JANUARY 28, 2010


 


1.             PURPOSES.


 


(a)          Eligible Option Recipients. The persons eligible to receive Options
are the Non-Employee Directors of the Company.


 


(b)          Available Options. The purpose of the Plan is to provide a
means by which Non-Employee Directors may be given an opportunity to benefit
from increases in value of the Common Stock through the granting of
Nonstatutory Stock Options.


 


(c)          General Purpose. The Company, by means of the Plan,
seeks to retain the services of its Non-Employee Directors, to secure and
retain the services of new Non-Employee Directors and to provide incentives for
such persons to exert maximum efforts for the success of the Company and its
Affiliates.


 

















 


2.             DEFINITIONS.


 


(a)           “Affiliate” means, at the time of determination,
any “parent” or “subsidiary” of the Company as such terms are defined in Rule 405
of the Securities Act.  The Board shall
have the authority to determine the time or times at which “parent” or “subsidiary”
status is determined within the foregoing definition.


 


(b)           “Annual
Grant” means
an Option granted annually to all Non-Employee Directors who meet the criteria
specified in subsection 6(b) of the Plan.


 


(c)           “Annual
Meeting”
means the annual meeting of the stockholders of the Company.


 


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


 


(e)                  A “Change in Control,” with respect
to Options granted on or after the effective date of the Plan,
will be deemed to have occurred upon the first to occur of an event set forth
in any one of the following paragraphs:


 


(i)              the acquisition
(other than from the Company, by any person (as such term is defined in Section 13(c) or
14(d) of the Exchange Act of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of fifty
percent (50%) or more of the combined voting power of the Company’s then
outstanding voting securities;


 


(ii)           the individuals
who, as of the effective date of the Plan, are members of the Board (the  “Incumbent Board”), cease for any reason to
constitute at least a majority of the Board, unless the election, or nomination
for election by the Company’s stockholders, of any new director was approved by
a vote of at least a majority of the Incumbent Board, and such new director
shall, for purposes of this Plan, be considered as a member of the Incumbent
Board; or


 


(iii)         the closing of:


 


(1)           a merger or
consolidation involving the Company if the stockholders of the Company,
immediately before such merger or consolidation, do not, as a result of such
merger or consolidation, own, directly or indirectly, more than fifty
percent (50%) of the combined voting power of the then outstanding voting
securities of the corporation resulting from such merger or consolidation in
substantially the same proportion as their ownership of the 


 

















 


combined
voting power of the voting securities of the Company outstanding immediately
before such merger or consolidation; or


 


(2)           a complete liquidation or
dissolution of the Company or an agreement for the sale or other disposition of
all or substantially all of the assets of the Company.


 


Notwithstanding the foregoing, a Change in Control
shall not be deemed to occur solely because fifty percent (50%) or more of the
combined voting power of the Company’s then outstanding securities is acquired
by (i) a trustee or other fiduciary holding securities under one or more
employee benefit plans maintained by the Company or any of its subsidiaries or (ii) any
corporation which, immediately prior to such acquisition, is owned
directly or indirectly by the stockholders of the Company in the same
proportion as their ownership of stock in the Company immediately prior to
such acquisition.


 


For the avoidance of doubt,
the term Change in Control shall not include a sale of assets, merger or other
transaction effected exclusively for the purpose of changing the domicile of
the Company.


 


Notwithstanding the foregoing or any other provision
of this Plan, the definition of Change in Control (or any analogous term) in an
individual written agreement between the Company or any Affiliate and
the Optionholder shall supersede the foregoing definition with respect
to Options subject to such agreement; provided,
however, that if no definition of Change in Control or any analogous
term is set forth in such an individual written agreement, the foregoing
definition shall apply.


 


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


 


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


 


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


 


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


 


(j)          “Continuous
Service”
means that the Optionholder’s service with the Company or an Affiliate, whether
as an Employee, Director or Consultant, is not interrupted or terminated. 


 

















 


The Optionholder’s
Continuous Service shall not be deemed to have terminated merely because of a
change in the capacity in which the Optionholder renders service to the Company
or an Affiliate as an Employee, Consultant or Director or a change in the
entity for which the Optionholder renders such service, provided that there is
no interruption or termination of the Optionholder’s service. For example, a
change in status without interruption from a Non-Employee Director of the
Company to a Consultant of an Affiliate or an Employee of the Company will not
constitute an interruption of Continuous Service. The Board or the chief
executive officer of the Company, in that party’s sole discretion, may
determine whether Continuous Service shall be considered interrupted in the
case of any leave of absence approved by that party, including sick leave,
military leave or any other personal leave.


 


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


 


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


 


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


 


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


 


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


 


(i)         If the Common Stock is listed on any established stock
exchange or traded on the Nasdaq National Market or the Nasdaq SmallCap Market,
the Fair Market Value of a share of Common Stock shall be the closing sales
price for such stock (or the closing bid, if no sales were reported) as quoted
on such exchange or market (or the exchange or market with the greatest volume
of trading in the Common Stock) on the last market trading day prior to the day
of determination, as reported in The Wall Street Journal or such other source
as the Board deems reliable.


 


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


 

















 


(p)          “Initial
Grant” means
an Option granted to a Non-Employee Director who meets the criteria specified
in subsection 6(a) of the Plan.


 


(q)          “IPO
Date” means
the effective date of the initial public offering of the Common Stock.


 


(r)          “Non-Employee
Director”
means a Director who is not an Employee.


 


(s)          “Nonstatutory
Stock Option”
means an Option not intended to qualify as an incentive stock option within the
meaning of Section 422 of the Code and the regulations promulgated
thereunder.


 


(t)          “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.


 


(u)         “Option” means a Nonstatutory Stock Option
granted pursuant to the Plan.


 


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


 


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


 


(x)          “Plan” means this Rigel Pharmaceuticals, Inc.
2000 Non-Employee Directors’ Stock Option Plan.


 


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


 

















 


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


 


3.             ADMINISTRATION.


 


(a)           Administration by Board. The Board shall administer the Plan.
The Board may not delegate administration of the Plan to a committee.


 


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


 


(i)                                    To determine the provisions of each
Option to the extent not specified in the Plan.


 


(ii)                                To construe and interpret the Plan and Options granted
under it, and to establish, amend and revoke rules and regulations for its
administration. The Board, in the exercise of this power, may correct any
defect, omission or inconsistency in the Plan or in any Option Agreement, in a
manner and to the extent it shall deem necessary or expedient to make the Plan
fully effective.


 


(iii)                            To amend the Plan or an Option as provided in Section 12.


 


(iv)                               To terminate or suspend the Plan as provided in Section 13.


 


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


 


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


 

















 


(d)          Cancellation and Re-Grant of Options. Notwithstanding anything to the
contrary in the Plan, neither the Board nor any Committee shall have the
authority to: (i) reprice any outstanding Option under the Plan, (ii) cancel
and re-grant any outstanding Option under the Plan, or (iii) effect any
other action that is treated as a repricing under generally accepted accounting
principles unless, in each case, the stockholders of the Company have approved
such an action within twelve (12) months prior to such an event.


 


4.             SHARES SUBJECT TO THE PLAN.


 


(a)          Share Reserve. Subject to the provisions of Section 11
relating to adjustments upon changes in the Common Stock, the Common Stock that
may be issued pursuant to Options shall not exceed in the aggregate 535,000
shares of Common Stock, which number consists of (i) 33,333 shares of
Common stock initially reserved for issuance under the Plan plus (ii) 66,667
shares of Common stock approved by the Board in April 2003 and
subsequently approved by the Company’s stockholders plus (iii) 225,000
shares of Common Stock approved by the Board in April 2005 and
subsequently approved by the Company’s stockholders plus (iv) 110,000
shares of Common Stock approved by the Board in January 2007 and
subsequently approved by the Company’s stockholders plus (v) 100,000
shares of Common Stock approved by the Board in February 2008 and
subsequently approved by the Company’s stockholders.


 


(b)          Reversion of Shares to the Share
Reserve. If any
Option shall for any reason expire or otherwise terminate, in whole or in part,
without having been exercised in full, the shares of Common Stock not acquired
under such Option shall revert to and again become available for issuance under
the Plan. If any shares subject to an Option are not delivered to an
Optionholder because the Option is exercised through a reduction of shares
subject to the Option ( i.e ., “net
exercised”), the number of shares that are not delivered to the Optionholder
shall not remain available for issuance under the Plan. If any shares subject
to an Option are not delivered to an Optionholder because such shares are
withheld in satisfaction of the withholding of taxes incurred in connection
with the exercise of an Option, the number of shares that are not delivered to
the Optionholder shall not remain available for subsequent issuance under the
Plan. If the exercise price of any Option is satisfied by tendering shares of
Common Stock held by the Optionholder (either by actual delivery or
attestation), then the number of shares so tendered shall not remain available
for subsequent issuance under the Plan.


 


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


 

















 


5.             ELIGIBILITY.


 


The Options as set forth in section 6 automatically shall be granted
under the Plan to all Non-Employee Directors who meet the specified criteria.


 


6.             NON-DISCRETIONARY GRANTS.


 


(a)           Initial Grants. Without any further action of the Board,
each person who is elected or appointed for the first time to be a Non-Employee
Director automatically shall, upon the date of his or her initial election or
appointment to be a Non-Employee Director by the Board or stockholders of the
Company, be granted an Initial Grant to purchase twenty-five thousand (25,000)
shares of Common Stock on the terms and conditions set forth herein.


 


(b)           Annual Grants. Without any further action of the Board,
a Non-Employee Director shall be granted an Annual Grant as follows: On the day
following each Annual Meeting commencing with the Annual Meeting in 2010, each
person who is then a Non-Employee Director automatically shall be granted an
Annual Grant to purchase fifteen thousand (15,000) shares of Common Stock on
the terms and conditions set forth herein;
provided, however, that if the person has not been serving as a
Non-Employee Director for the entire period since the preceding Annual Meeting,
then the number of shares subject to the Annual Grant shall be reduced pro rata
for each full quarter prior to the date of grant during which such person did
not serve as a Non-Employee Director.


 


7.             OPTION PROVISIONS.


 


Each Option shall be in such form and shall contain such terms and
conditions as required by the Plan. Each Option shall contain such additional
terms and conditions, not inconsistent with the Plan, as the Board shall deem
appropriate. Each Option shall include (through incorporation of provisions
hereof by reference in the Option or otherwise) the substance of each of the
following provisions:


 


(a)           Term. No Option shall be exercisable after the expiration
of ten (10) years from the date it was granted.


 


(b)           Exercise Price. The exercise price of each Option shall
be one hundred percent (100%) of the Fair Market Value of the stock subject to
the Option on the date the Option is granted. Notwithstanding the foregoing, an
Option may be granted with an exercise price lower 


 

















 


than that set
forth in the preceding sentence if such Option is granted pursuant to an
assumption or substitution for another option in a manner satisfying the
provisions of Section 424(a) of the Code.


 


(c)          Consideration. The purchase price of stock acquired
pursuant to an Option may be paid, to the extent permitted by applicable
statutes and regulations, in any combination of the following methods:


 


(i)            By cash or check.


 


(ii)           Provided that at the time of exercise the Common Stock
is publicly traded and quoted regularly in
The Wall Street Journal , by delivery to the Company of shares of
Common Stock that are owned free and clear of any liens, claims, encumbrances
or security interests, and that are valued at Fair Market Value on the date of
exercise. “Delivery” for these purposes shall include delivery to the Company
of the Optionholder’s attestation of ownership of such shares of Common Stock
in a form approved by the Company. Notwithstanding the foregoing, the
Optionholder may not exercise the Option by tender to the Company of Common
Stock to the extent such tender would violate the provisions of any law,
regulation or agreement restricting the redemption of the Company’s stock.


 


(iii)         Provided that at the time of exercise the Common Stock
is publicly traded and quoted regularly in
The Wall Street Journal , pursuant to a program developed under
Regulation T as promulgated by the Federal Reserve Board that, prior to the
issuance of Common Stock, results in either the receipt of cash (or check) by
the Company or the receipt of irrevocable instructions to pay the aggregate
exercise price to the Company from the sales proceeds.


 


(iv)          By a “net exercise” arrangement pursuant to which the
Company will reduce the number of shares of Common Stock issued upon exercise
by the largest whole number of shares with a Fair Market Value that does not
exceed the aggregate exercise price;  provided, however,  that the Company shall accept a cash or other
payment from the Optionholder to the extent of any remaining balance of the
aggregate exercise price not satisfied by such holding back of whole shares;  provided,
further, however,  that shares
of Common Stock will no longer be outstanding under an Option and will not be
exercisable thereafter to the extent that (i) shares are used to pay the
exercise price pursuant to the “net exercise,” (ii) shares are delivered
to the Optionholder as a result of such exercise, and (iii) shares are
withheld to satisfy tax withholding obligations.


 
















 


(d)           Transferability. The Board may, in its sole discretion,
impose such limitations on the transferability of Options as the Board shall
determine.  In the absence of such a
determination by the Board to the contrary, the following restrictions on the
transferability of Options shall apply:


 


(i)            Restrictions on Transfer. 
An Option shall not be transferable except by will or by the laws of
descent and distribution and shall be exercisable during the lifetime of the
Optionholder only by the Optionholder; provided, however,
that the Board may, in its sole discretion, permit transfer of the Option in a
manner that is not prohibited by applicable tax and securities laws upon the
Optionholder’s request.  Except as
explicitly provided herein, an Option may not be transferred for consideration.


 


(ii)           Domestic Relations Orders. 
Notwithstanding the foregoing, an Option may be transferred pursuant to
a domestic relations order.


 


(iii)         Beneficiary Designation. 
Notwithstanding the foregoing, the Optionholder may, by delivering
written notice to the Company, in a form provided by or otherwise satisfactory
to the Company and any broker designated by the Company to effect Option
exercises, designate a third party who, in the event of the death of the
Optionholder, shall thereafter be entitled to exercise the Option and receive
the Common Stock or other consideration resulting from such exercise.  In the absence of such a designation, the
executor or administrator of the Optionholder’s estate shall be entitled to
exercise the Option and receive the Common Stock or other consideration
resulting from such exercise.


 


(e)           Exercise Schedule. The Option shall be exercisable as the
shares of Common Stock subject to the Option vest.


 


(f)            Vesting Schedule.


 


(i)            Each Option granted as an initial grant shall vest in
accordance with the schedule set forth below that results in a shorter period
of full vesting:


 


(1)           1/36th of the shares of Common Stock subject to the
Option shall vest each month after the date of grant over a period of three (3) years;
or


 


(2)           the Option shall vest in equal monthly installments
after the date of grant over a period commencing on the date that the
Optionholder is appointed for the first time to be a Non-Employee Director by
the Board and ending on the date of the Annual Meeting 


 

















 


at which the
Optionholder is first scheduled to be considered for election to be a
Non-Employee Director by the stockholders of the Company.


 


(ii)           Each Option granted as an annual grant before the
Annual Meeting in 2008 shall vest such that 1/36th of the shares of Common Stock subject to such
Option shall vest each month after the date of grant over a period of three (3) years;
and each Option granted as an annual grant on or after the Annual Meeting in
2008 shall vest such that 1/12  th  of the shares of Common Stock subject to such
Option shall vest each month after the date of grant over a period of one (1) year.


 


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


 


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


 


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


 


(j)            Death of Optionholder. In the event (i) an Optionholder’s
Continuous Service terminates as a result of the Optionholder’s death or (ii) the
Optionholder dies within the three-month period after the termination of the
Optionholder’s Continuous Service for a reason other 


 

















 


than death, then
the Option may be exercised (to the extent the Optionholder was entitled to
exercise the Option as of the date of death) by the Optionholder’s estate, by a
person who acquired the right to exercise the Option by bequest or inheritance
or by a person designated to exercise the Option upon the Optionholder’s death,
but only within the period ending on the earlier of (1) the date eighteen
(18) months following the date of death or (2) the expiration of the term
of such Option as set forth in the Option Agreement. If, after death, the
Option is not exercised within the time specified herein, the Option shall
terminate.


 


8.             COVENANTS OF THE COMPANY.


 


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


 


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


 


9.             USE OF PROCEEDS FROM STOCK.


 


Proceeds from the sale of stock pursuant to Options shall constitute
general funds of the Company.


 


10.          MISCELLANEOUS.


 


(a)           Stockholder Rights. No Optionholder shall be deemed to be
the holder of, or to have any of the rights of a holder with respect to, any
shares subject to such Option unless and 


 

















 


until such
Optionholder has satisfied all requirements for exercise of the Option pursuant
to its terms.


 


(b)           No Service Rights. Nothing in the Plan or any instrument
executed or Option granted pursuant thereto shall confer upon any Optionholder
any right to continue to serve the Company as a Non-Employee Director or shall
affect the right of the Company or an Affiliate to terminate (i) the
employment of an Employee with or without notice and with or without cause, (ii) the
service of a Consultant pursuant to the terms of such Consultant’s agreement
with the Company or an Affiliate or (iii) the service of a Director pursuant
to the Bylaws of the Company or an Affiliate, and any applicable provisions of
the corporate law of the state in which the Company or the Affiliate is
incorporated, as the case may be.


 


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


 


(d)           Withholding Obligations. The Optionholder may satisfy any
federal, state or local tax withholding obligation relating to the exercise or
acquisition of stock under an Option by any of the following means (in addition
to the Company’s right to withhold from any compensation paid to the
Optionholder by the Company) or by a combination of such means:  (i) tendering
a cash payment; (ii) authorizing the Company to withhold shares from the
shares of the Common Stock otherwise issuable to the Optionholder as a result
of the exercise or acquisition of stock under the Option, provided, however,
that no shares of Common Stock are withheld with a value exceeding the minimum
amount of tax required to be withheld by law; or (iii) delivering to the
Company owned and unencumbered shares of the Common Stock.


 

















 


(e)           Electronic Delivery.  Any reference
herein to a “written” agreement or document shall include any agreement or
document delivered electronically or posted on the Company’s intranet.


 


11.          ADJUSTMENTS UPON CHANGES IN STOCK.


 


(a)           Capitalization Adjustments. If any change is made in the stock
subject to the Plan, or subject to any Option, without the receipt of
consideration by the Company (through merger, consolidation, reorganization,
recapitalization, reincorporation, stock dividend, dividend in property other
than cash, stock split, liquidating dividend, combination of shares, exchange
of shares, change in corporate structure or other transaction not involving the
receipt of consideration by the Company), the Board shall appropriately and
proportionately adjust (i) the class(es) and maximum number of securities
subject both to the Plan pursuant to subsection 4(a) and to the
nondiscretionary Options specified in Section 5, (ii) the class(es) and
number of securities and price per share of stock subject to outstanding
Options. The Board shall make such adjustments, and its determination shall be
final, binding and conclusive. (The conversion of any convertible securities of
the Company shall not be treated as a transaction “without receipt of
consideration” by the Company.)


 


(b)           Corporate Transaction. In the event of (i) a sale, lease
or other disposition of all or substantially all of the securities or assets of
the Company, (ii) a merger or consolidation in which the Company is not
the surviving corporation or (iii) a reverse merger in which the Company
is the surviving corporation but the shares of Common Stock outstanding
immediately preceding the merger are converted by virtue of the merger into
other property, whether in the form of securities, cash or otherwise, then any
surviving corporation or acquiring corporation may assume any Options
outstanding under the Plan or may substitute similar Options (including an
option to acquire the same consideration paid to the stockholders in the
transaction described in this subsection 11(b)) for those outstanding under the
Plan. In the event no surviving corporation or acquiring corporation assumes
such Options or substitutes similar Options for those outstanding under the
Plan, then with respect to Options held by Optionholders who are in Continuous
Service immediately prior to such an event, the vesting of such Options (and
the time during which such Options may be exercised) shall be accelerated in full,
and the Options shall terminate if not exercised at or prior to such event.
With respect to any other Options outstanding under the Plan, such Options
shall terminate if not exercised prior to such event.


 


(c)                           Change in Control. 
Upon a Change in Control, all Options held by each Optionholder whose
Continuous Service has not terminated immediately prior to the Change in
Control shall become fully vested and exercisable immediately prior to the
effectiveness of such Change in Control.


 

















 


12.          AMENDMENT OF THE PLAN AND OPTIONS.


 


(a)           Amendment of Plan. The Board at any time, and from time to
time, may amend the Plan. However, except as provided in Section 11
relating to adjustments upon changes in stock, no amendment shall be effective
unless approved by the stockholders of the Company to the extent stockholder
approval is necessary to satisfy the requirements of Rule 16b-3 or any
Nasdaq or securities exchange listing requirements.


 


(b)           Stockholder Approval. The Board may, in its sole discretion,
submit any other amendment to the Plan for stockholder approval.


 


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


 


(d)           Amendment of Options. The Board at any time, and from time to
time, may amend the terms of any one or more Options including, but not limited
to, amendments to provide terms more favorable than previously provided in the
agreement evidencing an Option, subject to any specified limits in the Plan
that are not subject to Board discretion; provided, however, that the rights
under any Option shall not be impaired by any such amendment unless (i) the
Company requests the consent of the Optionholder and (ii) the Optionholder
consents in writing.


 


13.          TERMINATION OR SUSPENSION OF THE
PLAN.


 


(a)           Plan Term. The Board may suspend or terminate the
Plan at any time. No Options may be granted under the Plan while the Plan is
suspended or after it is terminated.


 


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


 

















 


14.          EFFECTIVE DATE OF PLAN.


 


The Plan shall become effective on the IPO Date, but no Option shall be
exercised unless and until the Plan has been approved by the stockholders of
the Company, which approval shall be within twelve (12) months before or after
the date the Plan is adopted by the Board.


 


15.          CHOICE OF LAW.


 


All questions concerning the construction, validity and interpretation
of this Plan shall be governed by the law of the State of Delaware, without
regard to such state’s conflict of laws rules.