exv10w9



 






Exhibit 10.9




XenoPort, Inc.




2005 Non-Employee Directors’ Stock Option Plan




Adopted: January 4, 2005

Approved By Stockholders: January 19, 2005




1. General.




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



     (b) 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 any
Affiliate by giving them an opportunity to benefit from increases in value of the Common Stock
through the automatic grant of Nonstatutory Stock Options.



2. Definitions.




     As used in the Plan, the following definitions shall apply to the capitalized terms indicated
below:



     (a) “Accountant” means the independent public accountants of the Company.



     (b) “Affiliate” means (i) any corporation (other than the Company) in an unbroken chain of
corporations ending with the Company, provided each corporation in the unbroken chain (other than
the Company) owns, at the time of the determination, stock possessing fifty percent (50%) or more
of the total combined voting power of all classes of stock in one of the other corporations in such
chain, and (ii) any corporation (other than the Company) in an unbroken chain of corporations
beginning with the Company, provided each corporation (other than the last corporation) in the
unbroken chain owns, at the time of the determination, stock possessing fifty percent (50%) or more
of the total combined voting power of all classes of stock in one of the other corporations in such
chain. The Board shall have the authority to determine (i) the time or times at which the
ownership tests are applied, and (ii) whether “Affiliate” includes entities other than corporations
within the foregoing definition.



     (c) “Annual Grant” means an Option granted annually to all Non-Employee Directors who meet the
specified criteria pursuant to Section 6(b).



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



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



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     (f) “Capitalization Adjustment” has the meaning ascribed to that term in Section 11(a).



     (g) “Change in Control” means the occurrence, in a single transaction or in a series of
related transactions, of any one or more of the following events:



          (i) any Exchange Act Person becomes the Owner, directly or indirectly, of securities of the
Company representing more than fifty percent (50%) of the combined voting power of the Company’s
then outstanding securities other than by virtue of a merger, consolidation or similar transaction.
Notwithstanding the foregoing, a Change in Control shall not be deemed to occur (A) on account of
the acquisition of securities of the Company by an investor, any affiliate thereof or any other
Exchange Act Person from the Company in a transaction or series of related transactions the primary
purpose of which is to obtain financing for the Company through the issuance of equity securities
or (B) solely because the level of Ownership held by any Exchange Act Person (the “Subject Person”)
exceeds the designated percentage threshold of the outstanding voting securities as a result of a
repurchase or other acquisition of voting securities by the Company reducing the number of shares
outstanding, provided that if a Change in Control would occur (but for the operation of this
sentence) as a result of the acquisition of voting securities by the Company, and after such share
acquisition, the Subject Person becomes the Owner of any additional voting securities that,
assuming the repurchase or other acquisition had not occurred, increases the percentage of the then
outstanding voting securities Owned by the Subject Person over the designated percentage threshold,
then a Change in Control shall be deemed to occur;



          (ii) there is consummated a merger, consolidation or similar transaction involving (directly
or indirectly) the Company and, immediately after the consummation of such merger, consolidation or
similar transaction, the stockholders of the Company immediately prior thereto do not Own, directly
or indirectly, either (A) outstanding voting securities representing more than fifty percent (50%)
of the combined outstanding voting power of the surviving Entity in such merger, consolidation or
similar transaction or (B) more than fifty percent (50%) of the combined outstanding voting power
of the parent of the surviving Entity in such merger, consolidation or similar transaction, in each
case in substantially the same proportions as their Ownership of the outstanding voting securities
of the Company immediately prior to such transaction;



          (iii) the stockholders of the Company approve or the Board approves a plan of complete
dissolution or liquidation of the Company, or a complete dissolution or liquidation of the Company
shall otherwise occur;



          (iv) there is consummated a sale, lease, exclusive license or other disposition of all or
substantially all of the consolidated assets of the Company and its Subsidiaries, other than a
sale, lease, license or other disposition of all or substantially all of the consolidated assets of
the Company and its Subsidiaries to an Entity, more than fifty percent (50%) of the combined voting
power of the voting securities of which are Owned by stockholders of the Company in substantially
the same proportions as their Ownership of the outstanding voting securities of the Company
immediately prior to such sale, lease, license or other disposition; or



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          (v) individuals who, on the date this Plan is adopted by the Board, are members of the Board
(the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of
the Board; provided, however, that if the appointment or election (or nomination for election) of
any new Board member was approved or recommended by a majority vote of the members of the Incumbent
Board then still in office, such new member shall, for purposes of this Plan, be considered as a
member of the Incumbent Board.



     The term Change in Control shall not include a sale of assets, merger or other transaction
effected principally 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.



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



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



     (j) “Company” means XenoPort, Inc., a Delaware corporation.



     (k) “Consultant” means any person, including an advisor, who is (i) engaged by the Company or
an Affiliate to render consulting or advisory services and is compensated for such services, or
(ii) serving as a member of the Board of Directors of an Affiliate and is compensated for such
services. However, service solely as a Director, or payment of a fee for such service, shall not
cause a Director to be considered a “Consultant” for purposes of the Plan.



     (l) “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. 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
with the Company or an Affiliate, shall not terminate an Optionholder’s Continuous Service. For
example, a change in status 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.
To the extent permitted by law, 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. Notwithstanding the foregoing, a leave of absence shall be treated as
Continuous Service for purposes of vesting in an Option only to such extent as may be provided in
the Company’s leave of absence policy or in the written terms of the Optionholder’s leave of
absence.



     (m) “Corporate Transaction” means the occurrence, in a single transaction or in a series of
related transactions, of any one or more of the following events:



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          (i) a sale or other disposition of all or substantially all, as determined by the Board in its
sole discretion, of the consolidated assets of the Company and its Subsidiaries;



          (ii) a sale or other disposition of at least ninety percent (90%) of the outstanding
securities of the Company;



          (iii) the consummation of a merger, consolidation or similar transaction following which the
Company is not the surviving corporation; or



          (iv) the consummation of a merger, consolidation or similar transaction following which the
Company is the surviving corporation but the shares of Common Stock outstanding immediately
preceding the merger, consolidation or similar transaction are converted or exchanged by virtue of
the merger, consolidation or similar transaction into other property, whether in the form of
securities, cash or otherwise.



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



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



     (p) “Employee” means any person employed by the Company or an Affiliate. However, service
solely as a Director, or payment of a fee for such services, shall not cause a Director to be
considered an “Employee” for purposes of the Plan.



     (q) “Entity” means a corporation, partnership or other entity.



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



     (s) “Exchange Act Person” means any natural person, Entity or “group” (within the meaning of
Section 13(d) or 14(d) of the Exchange Act), except that “Exchange Act Person” shall not include
(i) the Company or any Subsidiary of the Company, (ii) any employee benefit plan of the Company or
any Subsidiary of the Company or any trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any Subsidiary of the Company, (iii) an underwriter
temporarily holding securities pursuant to an offering of such securities, (iv) an Entity Owned,
directly or indirectly, by the stockholders of the Company in substantially the same proportions as
their Ownership of stock of the Company; or (v) any natural person, Entity or “group” (within the
meaning of Section 13(d) or 14(d) of the Exchange Act) that, as of the effective date of the Plan
as set forth in Section 14, is the Owner, directly or indirectly, of securities of the Company
representing more than fifty percent (50%) of the combined voting power of the Company’s then
outstanding securities.



     (t) “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



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greatest volume of trading in the Common Stock) on the date in question, as reported in The
Wall Street Journal or such other source as the Board deems reliable. If there is no closing sales
price (or closing bid if no sales were reported) for the Common Stock on the date in question, then
the Fair Market Value shall be the closing selling price (or closing bid if no sales were reported)
on the last preceding date for which such quotation exists.




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



     (u) “Initial Grant” means an Option granted to a Non-Employee Director who meets the specified
criteria pursuant to Section 6(a).



     (v) “IPO Date” means the date of the underwriting agreement between the Company and the
underwriter(s) managing the initial public offering of the Common Stock, pursuant to which the
Common Stock is priced for the initial public offering.



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



     (x) “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.



     (y) “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.



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



     (aa) “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.



     (bb) “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.



     (cc) “Own,” “Owned,” “Owner,” “Ownership” A person or Entity shall be deemed to “Own,” to
have “Owned,” to be the “Owner” of, or to have acquired “Ownership” of securities if such person or
Entity, directly or indirectly, through any contract, arrangement, understanding, relationship or
otherwise, has or shares voting power, which includes the power to vote or to direct the voting,
with respect to such securities.



     (dd) “Plan” means this XenoPort, Inc. 2005 Non-Employee Directors’ Stock Option Plan.



     (ee) “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.



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



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     (gg) “Subsidiary” means, with respect to the Company, (i) any corporation of which more than
fifty percent (50%) of the outstanding capital stock having ordinary voting power to elect a
majority of the board of directors of such corporation (irrespective of whether, at the time, stock
of any other class or classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time, directly or indirectly, Owned by the Company,
and (ii) any partnership in which the Company has a direct or indirect interest (whether in the
form of voting or participation in profits or capital contribution) of more than fifty percent
(50%).



3. Administration.




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



     (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 and 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.



4. Shares Subject to the Plan.




     (a) Share Reserve. Subject to the provisions of Section 11(a) relating to Capitalization
Adjustments, the number of shares of Common Stock that may be issued pursuant to Options shall not
exceed in the aggregate one hundred and fifty thousand (150,000) plus an automatic annual increase
beginning on January 1, 2006 and ending on (and including) January 1, 2015, in an amount equal to
the excess of (i) the number of shares subject to Options granted during the preceding calendar
year, over (ii) the number of shares added back to the share reserve during the preceding calendar
year pursuant to the provisions of Section 4(b); provided, however, that such automatic annual
increase shall not exceed one hundred and fifty thousand



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(150,000) shares. Notwithstanding the foregoing, the Board may act prior to the first day of
any calendar year, to provide that there shall be no increase in the share reserve for such
calendar year or that the number of shares by which the share reserve for such calendar year is
increased shall be a number of shares that is equal to or less than the number of shares of Common
Stock that would otherwise be determined pursuant to the preceding sentence. In the event the
Board does not act to establish the size of the share reserve increase for a calendar year pursuant
to the preceding sentence, the Board shall be deemed to have provided for no increase in the share
reserve for such year.




     (b) Reversion of Shares to the Share Reserve. If an 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
such shares are withheld for the payment of taxes or 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 remain available for issuance under the Plan. If the exercise price of
an 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 remain available for
issuance under the Plan.



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



5. Eligibility.




     The Options shall automatically be granted under the Plan as set forth in Section 6 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 after the IPO
Date 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, 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, on the date of each Annual
Meeting, commencing with the Annual Meeting in 2006, each person who is then a Non-Employee
Director automatically shall be granted an Annual Grant to purchase ten thousand (10,000) shares of
Common Stock on the terms and conditions set forth herein.



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:



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     (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 Common Stock subject to the Option on the date the Option is granted.



     (c) Consideration. The purchase price of Common Stock acquired pursuant to an Option may be
paid, to the extent permitted by applicable law, in any combination of (i) cash or check, (ii)
delivery to the Company (either by actual delivery or attestation) of shares of Common Stock held
for more than six (6) months (or such longer or shorter period of time necessary to avoid a charge
to earnings for financial accounting purposes), or (iii) to the extent permitted by law, 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.



     (d) Transferability. Except as otherwise provided for in this Section, an Option shall not be
transferable except by will or by the laws of descent and distribution and shall be exercisable
only by the Optionholder during the life of the Optionholder. However, an Option may be
transferred for no consideration upon written consent of the Board if (i) at the time of transfer,
a Form S-8 registration statement under the Securities Act is available for the issuance of shares
by the Company upon the exercise of such transferred Option, or (ii) the transfer is to the
Optionholder’s employer at the time of transfer or an affiliate of the Optionholder’s employer at
the time of transfer. Any such transfer is subject to such limits as the Board may establish, and
subject to the transferee agreeing to remain subject to all the terms and conditions applicable to
the Option prior to such transfer. The forgoing right to transfer the Option shall apply to the
right to consent to amendments to the Stock Option Agreement for such Option. In addition, until
the Optionholder transfers the Option, an Optionholder may, by delivering written notice to the
Company, in a form provided by or otherwise satisfactory to the Company, designate a third party
who, in the event of the death of the Optionholder, shall thereafter be entitled to exercise the
Option.



     (e) Vesting. When an Option is granted, the Option shall be unvested (i.e., no portion of the
Option shall be exercisable). Thereafter, the Option shall vest and become exercisable as follows:



          (i) Initial Grant. Provided the Optionholder’s Continuous Service is not interrupted, the
Initial Grant shall vest and become exercisable in a series of four (4) successive equal annual
installments over the four (4)-year period measured from the date of grant.



          (ii) Annual Grant. Provided the Optionholder’s Continuous Service is not interrupted, the
Annual Grant shall vest and become exercisable in a series of twelve (12) successive equal monthly
installments over the one (1)-year period measured from the date of grant.



8.









 









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







     (g) 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 or
upon a Change in Control) would be prohibited at any time solely because the issuance of shares of
Common Stock would violate the registration requirements under the Securities Act, then the Option
shall terminate on the earlier of (i) the expiration of the term of the Option as set forth in the
Option Agreement or (ii) the expiration of a period of three (3) months after the termination of
the Optionholder’s Continuous Service during which the exercise of the Option would not be in
violation of such registration requirements.



     (h) Disability of Optionholder. In the event that an Optionholder’s Continuous Service
terminates as a result of the Optionholder’s Disability, the Optionholder may exercise his or her
Option (to the extent that the Optionholder was entitled to exercise 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 of 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 herein or in the Option Agreement, the Option
shall terminate.



     (i) Death of Optionholder. In the event that (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 such Option as of the date of death) by the Optionholder’s estate, by a person who
acquired the right to exercise the Option by bequest or inheritance or by a person designated to
exercise the Option upon the Optionholder’s death, but only within the period ending on the earlier
of (i) the date eighteen (18) months following the date of death, or (ii) the expiration of the
term of such Option as set forth in the Option Agreement. If, after the Optionholder’s death, the
Option is not exercised within the time specified herein, the Option shall terminate.



     (j) Termination Upon Change in Control. In the event that an Optionholder’s Continuous
Service terminates as of, or within twelve (12) months following a Change in Control, the
Optionholder may exercise his or her Option (to the extent that the Optionholder was entitled to
exercise such Option as of the date of termination of Continuous Service) within such period of
time ending on the earlier of (i) the expiration of the term of the Option as set forth in the
Option Agreement, or (ii) the date twelve (12) months following the effective date of the Change in
Control (or such longer or shorter period specified in the Option Agreement). If,



9.









 




after termination of Continuous Service, the Optionholder does not exercise his or her Option
within the time specified herein or in the Option Agreement (as applicable), the Option shall
terminate.




8. 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 Common 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 that counsel for the
Company deems necessary for the lawful issuance and sale of Common Stock under the Plan, the
Company shall be relieved from any liability for failure to issue and sell Common Stock upon
exercise of such Options unless and until such authority is obtained.



9. Use of Proceeds from Sales of Common Stock.




     Proceeds from the sale of Common 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 of Common Stock 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, 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 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 Common 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 Common Stock subject to the Option for the Optionholder’s own account
and not with any present intention of selling or otherwise distributing the Common Stock. The
foregoing requirements, and any assurances given pursuant to such requirements, shall be
inoperative if (i) the issuance of the shares upon the exercise or acquisition of Common Stock
under the Option has been registered under a then currently effective registration statement under
the Securities Act, or (ii) as to any particular



10.









 




requirement, a determination is made by counsel for the Company that such requirement need not
be met in the circumstances under the then applicable securities laws. The Company may, upon
advice of counsel to the Company, place legends on stock certificates issued under the Plan as such
counsel deems necessary or appropriate in order to comply with applicable securities laws,
including, but not limited to, legends restricting the transfer of the Common Stock.




     (d) Withholding Obligations. The Optionholder may satisfy any federal, state or local tax
withholding obligation relating to the exercise or acquisition of Common 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 Common 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 Common Stock; Corporate Transactions.




     (a) Capitalization Adjustments. If any change is made in, or other events occur with respect
to, the Common Stock subject to the Plan or subject to any Option after the effective date of the
Plan set forth in Section 14 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 (each a “Capitalization Adjustment”)), the Plan shall be appropriately
adjusted in the class(es) and maximum number of securities subject both to the Plan pursuant to
Section 4 and to the nondiscretionary Options specified in Section 6, and the outstanding Options
will be appropriately adjusted in the class(es) and number of securities and price per share of
stock subject to such outstanding Options. The Board shall make such adjustments, and its
determination shall be final, binding and conclusive. (Notwithstanding the foregoing, the
conversion of any convertible securities of the Company shall not be treated as a transaction
“without receipt of consideration” by the Company.)



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



     (c) Corporate Transaction.



          (i) Options May Be Assumed. In the event of a Corporate Transaction, any surviving
corporation or acquiring corporation (or the surviving or acquiring corporation’s parent company)
may assume or continue any or all Options outstanding under the Plan or may



11.









 




substitute similar stock options for Options outstanding under the Plan (including but not
limited to, options to acquire the same consideration paid to the stockholders of the Company
pursuant to the Corporate Transaction), and any reacquisition or repurchase rights held by the
Company in respect of Common Stock issued pursuant to Options may be assigned by the Company to the
successor of the Company (or the successor’s parent company, if any), in connection with such
Corporate Transaction. A surviving corporation or acquiring corporation not choose to assume or
continue only a portion of an Option or substitute a similar option for only a portion of an
Option.




          (ii) Options Held by Active Optionholders. In the event of a Corporate Transaction in which
the surviving corporation or acquiring corporation (or its parent company) does not assume or
continue such outstanding Options or substitute similar stock options for such outstanding Options,
then with respect to Options that have not been assumed, continued or substituted and that are held
by Optionholders whose Continuous Service has not terminated prior to the effective time of the
Corporate Transaction (referred to as the “Recent Optionholders”), the vesting of such Options
(and, if applicable, the time at which such Options may be exercised) shall (contingent upon the
effectiveness of the Corporate Transaction) be accelerated in full to a date prior to the effective
time of such Corporate Transaction as the Board shall determine (or, if the Board shall not
determine such a date, to the date that is five (5) days prior to the effective time of the
Corporate Transaction), and the Options shall terminate if not exercised (if applicable) at or
prior to the effective time of the Corporate Transaction, and any reacquisition or repurchase
rights held by the Company with respect to such Options shall lapse (contingent upon the
effectiveness of the Corporate Transaction).



          (iii) Options Held by Former Optionholders. In the event of a Corporate Transaction in which
the surviving corporation or acquiring corporation (or its parent company) does not assume or
continue such outstanding Options or substitute similar stock options for such outstanding Options,
then with respect to any other Options that have not been assumed, continued or substituted and
that are held by persons other than Recent Optionholders, the vesting of such Options (and, if
applicable, the time at which such Options may be exercised) shall not be accelerated unless
otherwise provided in Section 11(d) or in a written agreement between the Company or any Affiliate
and the holder of such Options, and such Options shall terminate if not exercised (if applicable)
prior to the effective time of the Corporate Transaction; provided, however, that any reacquisition
or repurchase rights held by the Company with respect to such Options shall not terminate and may
continue to be exercised notwithstanding the Corporate Transaction.



          (iv) Payment for Options in Lieu of Exercise. Notwithstanding the foregoing, in the event an
Option will terminate if not exercised prior to the effective time of a Corporate Transaction, the
Board may provide, in its sole discretion, that the holder of such Option may not exercise such
Option but will receive a payment, in such form as may be determined by the Board, equal in value
to the excess, if any, of (i) the value of the property the holder of the Option would have
received upon the exercise of the Option, over (ii) the exercise price payable by the Optionholder
in connection with such exercise.



     (d) Change in Control. In the event that an Optionholder is required to resign his or her
position as a Non-Employee Director as a condition of a Change in Control or an



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Optionholder is removed from his or her position as a Non-Employee Director in connection with
a Change in Control, the outstanding Options of such Optionholder shall become fully vested and
exercisable immediately prior to the effectiveness of such resignation or removal (and contingent
upon the effectiveness of the Change in Control).




     (e) Parachute Payments.



          (i) If the acceleration of the vesting and exercisability of Options provided for in Sections
11(c) and 11(d), together with payments and other benefits of an Optionholder, (collectively, the
“Payment”) (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, or
any comparable successor provisions, and (ii) but for this Section 11(e) would be subject to the
excise tax imposed by Section 4999 of the Code, or any comparable successor provisions (the “Excise
Tax”), then such Payment shall be either (1) provided to such Optionholder in full, or (2) provided
to such Optionholder as to such lesser extent that would result in no portion of such Payment being
subject to the Excise Tax, whichever of the foregoing amounts, when taking into account applicable
federal, state, local and foreign income and employment taxes, the Excise Tax, and any other
applicable taxes, results in the receipt by such Optionholder, on an after-tax basis, of the
greatest amount of the Payment, notwithstanding that all or some portion of the Payment may be
subject to the Excise Tax.



          (ii) Unless the Company and such Optionholder otherwise agree in writing, any determination
required under this Section 11(e) shall be made in writing in good faith by the Accountant. If a
reduction in the Payment is to be made as provided above, reductions shall occur in the following
order unless the Optionholder elects in writing a different order (provided, however, that such
election shall be subject to Company approval if made on or after the date that triggers the
Payment or a portion thereof): (i) reduction of cash payments; (ii) cancellation of accelerated
vesting of Options; and (iii) reduction of other benefits paid to the Optionholder. If
acceleration of vesting of Options is to be reduced, such acceleration of vesting shall be
cancelled in the reverse order of date of grant of Options (i.e., the earliest granted Option
cancelled last) unless the Optionholder elects in writing a different order for cancellation.



          (iii) For purposes of making the calculations required by this Section 11(e), the Accountant
may make reasonable assumptions and approximations concerning applicable taxes and may rely on
reasonable, good faith interpretations concerning the application of the Code and other applicable
legal authority. The Company and the Optionholder shall furnish to the Accountant such information
and documents as the Accountant may reasonably request in order to make such a determination. The
Company shall bear all costs the Accountant may reasonably incur in connection with any
calculations contemplated by this Section 11(e).



          (iv) If, notwithstanding any reduction described above, the Internal Revenue Service (the
“IRS”) determines that the Optionholder is liable for the Excise Tax as a result of the Payment,
then the Optionholder shall be obligated to pay back to the Company, within thirty (30) days after
a final IRS determination or, in the event that the Optionholder challenges the final IRS
determination, a final judicial determination, a portion of the Payment (the “Repayment Amount”).
The Repayment Amount with respect to the Payment shall be the smallest such amount, if any, as
shall be required to be paid to the Company so that the Optionholder’s net after-tax proceeds with
respect to the Payment (after taking into account the



13.









 




payment of the Excise Tax and all other applicable taxes imposed on the Payment) shall be
maximized. The Repayment Amount with respect to the Payment shall be zero if a Repayment Amount of
more than zero would not result in the Optionholder’s net after-tax proceeds with respect to the
Payment being maximized. If the Excise Tax is not eliminated pursuant to this paragraph, the
Optionholder shall pay the Excise Tax.




          (v) Notwithstanding any other provision of this Section 11(e), if (i) there is a reduction in
the Payment as described above, (ii) the IRS later determines that the Optionholder is liable for
the Excise Tax, the payment of which would result in the maximization of the Optionholder’s net
after-tax proceeds of the Payment (calculated as if the Payment had not previously been reduced),
and (iii) the Optionholder pays the Excise Tax, then the Company shall pay or otherwise provide to
the Optionholder that portion of the Payment that was reduced pursuant to this Section 11(e)
contemporaneously or as soon as administratively possible after the Optionholder pays the Excise
Tax so that the Optionholder’s net after-tax proceeds with respect to the Payment are maximized.



          (vi) If the Optionholder either (i) brings any action to enforce rights pursuant to this
Section 11(e), or (ii) defends any legal challenge to his or her rights under this Section 11(e),
the Optionholder shall be entitled to recover attorneys’ fees and costs incurred in connection with
such action, regardless of the outcome of such action; provided, however, that if such action is
commenced by the Optionholder, the court finds that the action was brought in good faith.



12. Amendment of the Plan and Options.




     (a) Amendment of Plan. Subject to the limitations, if any, of applicable law, the Board, at
any time and from time to time, may amend the Plan. However, except as provided in Section 11(a)
relating to Capitalization Adjustments, no amendment shall be effective unless approved by the
stockholders of the Company to the extent stockholder approval is necessary to satisfy applicable
law.



     (b) Stockholder Approval. The Board, in its sole discretion, may 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 affected Optionholder, and (ii) such 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; 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.



14.









 





     (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.




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




15.