2004 Equity Incentive Plan



 Exhibit 10.2 
  
 LUMERA CORPORATION 
 2004 EQUITY INCENTIVE PLAN 
  
 1. DEFINED TERMS 

 
 Exhibit A, which is incorporated by reference, defines the terms used in
the Plan and sets forth certain operational rules related to those terms. 
  
 2. PURPOSE 
  
 The Plan has been established to
advance the interests of the Company by providing for the grant to Participants of Stock-based and other incentive Awards. 
  
 3. ADMINISTRATION 
  
 The Administrator has discretionary authority, subject only to the express provisions of the Plan, to interpret the Plan; determine eligibility for and
grant Awards; determine, modify or waive the terms and conditions of any Award; prescribe forms, rules and procedures; and otherwise do all things necessary to carry out the purposes of the Plan. In the case of any Award intended to be eligible for
the performance-based compensation exception under Section 162(m), the Administrator will exercise its discretion consistent with qualifying the Award for that exception. Determinations of the Administrator made under the Plan will be conclusive and
will bind all parties. 
  
 4. LIMITS ON AWARDS UNDER THE PLAN 

 
 (a) Number of Shares. The maximum number of shares of Stock
that may be delivered in satisfaction of Awards under the Plan shall be 2,000,000 plus an annual increase, effective as of the first day of the Company’s fiscal year beginning in 2005 and the first day of each subsequent fiscal year prior to
termination of the Plan, equal to the least of (i) 2,000,000 shares, or (ii) 13.4% of the number of shares of Stock outstanding as of the Company’s immediately preceding fiscal year, or (iii) such lesser amount, if any, as the
Board may determine. The number of shares of Stock delivered in satisfaction of Awards shall, for purposes of the immediately preceding sentence, be determined net of shares of Stock withheld by the Company, or tendered to the Company, in payment of
the exercise price of the Award or in satisfaction of tax withholding requirements with respect to the Award. Subject to such overall maximum, up to 21,000,000 shares of Stock may be issued upon the exercise of ISOs and up to 21,000,000 shares of
Stock may be issued with respect to Stock Options that are not ISOs. The limits set forth in the preceding sentence shall be construed to comply with Section 422 of the Code and regulations thereunder. To the extent consistent with the
requirements of Section 422 of the Code and regulations thereunder, and with other applicable legal requirements (including applicable stock exchange and Nasdaq requirements), Stock issued under awards that convert, replace or adjust awards of
an acquired company shall not reduce the number of shares available for Awards under the Plan. 







 (b) Type of Shares. Stock delivered by the Company under the Plan may be authorized but
unissued Stock or previously issued Stock acquired by the Company. No fractional shares of Stock will be delivered under the Plan. 
  
 (c) Section 162(m) Limits. The maximum number of shares of Stock for which Stock Options may be granted to any person in any calendar year
and the maximum number of shares of Stock subject to SARs granted to any person in any calendar year will each be 2,000,000. The maximum number of shares subject to other awards granted to any person in any calendar year will be 1,000,000 shares.
The maximum amount payable to any person in any year under Cash Awards will be $5,000,000. The foregoing provisions will be construed in a manner consistent with Section 162(m).
 
  
 5.
ELIGIBILITY AND PARTICIPATION 
  
 The Administrator will
select Participants from among those key Employees and directors of, and consultants and advisors to, the Company or its Affiliates who, in the opinion of the Administrator, are in a position to make a significant contribution to the success of the
Company and its Affiliates. Eligibility for ISOs is limited to employees of the Company or of a “parent corporation” or “subsidiary corporation” of the Company as those terms are defined in Section 424 of the Code. 
  
 6. RULES APPLICABLE TO AWARDS 
  
 (a) ALL AWARDS 
  
 (1) Award Provisions. The Administrator will
determine the terms of all Awards, subject to the limitations provided herein. By accepting any Award granted hereunder, the Participant agrees to the terms of the Award and the Plan. Notwithstanding any provision of this Plan to the contrary,
awards that convert, replace or adjust awards of an acquired company may contain terms and conditions that are inconsistent with the terms and conditions specified herein, as determined by the Administrator. 
  
 (2) Term of Plan. No Awards may be made after
May 1, 2014, but previously granted Awards may continue in accordance with their terms beyond that date. 
  
 (3) Transferability. Neither ISOs nor, except as the Administrator otherwise expressly provides, other Awards may be
transferred other than by will or by the laws of descent and distribution, and during a Participant’s lifetime ISOs (and, except as the Administrator otherwise expressly provides, other non-transferable Awards requiring exercise) may be
exercised only by the Participant. 
  
 (4)
Vesting, Etc. The Administrator may determine the time or times at which an Award will vest or become exercisable and the terms on which an Award requiring exercise will remain exercisable. Without limiting the foregoing, the
Administrator may at any time accelerate the vesting or exercisability of an Award, regardless of any adverse or potentially adverse tax consequences resulting from such acceleration. The following will apply unless the Administrator expressly
provides otherwise: Immediately upon the cessation of the Participant’s 
  

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 Employment an Award requiring exercise will cease to be exercisable and will terminate, and all other
Awards to the extent not already vested will be forfeited, except that: 
  
 (A) subject to (B) and (C) below, all Stock Options and SARs held by the Participant or the Participant’s permitted transferee, if any, immediately prior to the cessation of the Participant’s Employment, to
the extent then exercisable, will remain exercisable for the lesser of (i) a period of three months or (ii) the period ending on the latest date on which such Stock Option or SAR could have been exercised without regard to this Section 6(a)(4), and
will thereupon terminate; 
  
 (B) all Stock
Options and SARs held by a Participant or the Participant’s permitted transferee, if any, immediately prior to the Participant’s death, to the extent then exercisable, will remain exercisable for the lesser of (i) the one year period
ending with the first anniversary of the Participant’s death or (ii) the period ending on the latest date on which such Stock Option or SAR could have been exercised without regard to this Section 6(a)(4), and will thereupon terminate; and

  
 (C) all Stock Options and SARs held by a
Participant or the Participant’s permitted transferee, if any, immediately prior to the cessation of the Participant’s Employment will immediately terminate upon such cessation if the Administrator in its sole discretion determines that
such cessation of Employment has resulted for reasons which cast such discredit on the Participant as to justify immediate termination of the Award. 
  
 (5) Taxes. The Administrator will make such provision for the withholding of taxes as it deems necessary. The Administrator
may, but need not, hold back shares of Stock from an Award or permit a Participant to tender previously owned shares of Stock in satisfaction of tax withholding requirements (but not in excess of the minimum withholding required by law). 

 
 (6) Dividend Equivalents, Etc. The
Administrator may provide for the payment of amounts in lieu of cash dividends or other cash distributions with respect to Stock subject to an Award. 
  
 (7) Rights Limited. Nothing in the Plan will be construed as giving any person the right to continued employment or service
with the Company or its Affiliates, or any rights as a stockholder except as to shares of Stock actually issued under the Plan. The loss of existing or potential profit in Awards will not constitute an element of damages in the event of termination
of employment or service for any reason, even if the termination is in violation of an obligation of the Company or Affiliate to the Participant. 
  
 (8) Section 162(m). This Section 6(a)(8) applies to any Performance Award intended to qualify as performance-based
for the purposes of Section 162(m) other than (i) a Stock Option or SAR, or (ii) an Award satisfying the transition-rule requirements of Treas. Regs. § 1.162-27(f)(1)-(3). In the case of any Performance Award to which this Section 6(a)(8)
applies, the Plan and such Award will be construed to the maximum extent permitted by law in a manner consistent with qualifying the Award for such exception. With respect to such 
  

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 Performance Awards, the Administrator will preestablish, in writing, one or more specific Performance Criteria no later
than 90 days after the commencement of the period of service to which the performance relates (or at such earlier time as is required to qualify the Award as performance-based under Section 162(m)). Prior to grant, vesting or payment of the
Performance Award, as the case may be, the Administrator will certify whether the applicable Performance Criteria have been attained and such determination will be final and conclusive. 
  
 (b) AWARDS REQUIRING EXERCISE 
  
 (1) Time And Manner Of Exercise. Unless the Administrator expressly provides otherwise, an
Award requiring exercise by the holder will not be deemed to have been exercised until the Administrator receives a notice of exercise (in form acceptable to the Administrator) signed by the appropriate person and accompanied by any payment required
under the Award. If the Award is exercised by any person other than the Participant, the Administrator may require satisfactory evidence that the person exercising the Award has the right to do so. No Award requiring exercise will be exercisable
more than ten years after the date of grant. 
  
 (2) Exercise Price. The Administrator will determine the exercise price (or the base value from which appreciation is to be measured, in the case of an SAR) of each Award requiring exercise. However, the exercise price or base
value, as the case may be, may not be less than the fair market value of the Stock subject to the Award, determined as of the date of grant. No such Award, once granted, may be repriced other than in accordance with applicable stock exchange or
Nasdaq stockholder approval requirements. 
  
 (3) Payment Of Exercise Price. Where the exercise of an Award is to be accompanied by payment, the Administrator may determine the required or permitted forms of payment (which may include, if the Administrator so determines
and if the Stock is publicly traded at the relevant time, a broker-assisted exercise). In the absence of a determination by the Administrator that other forms of payment are permitted, all payments shall be made by cash or by check acceptable to the
Administrator. 
  
 (c) AWARDS NOT REQUIRING EXERCISE

  
 Restricted Stock and Unrestricted Stock, whether delivered
outright or under Awards of Stock Units or other Awards that do not require exercise, may be made in exchange for such lawful consideration, including services, as the Administrator determines.  
  
 7. EFFECT OF CERTAIN TRANSACTIONS 
  
 (a) MERGERS, ETC. 
  
 Except as otherwise provided in an Award, in the event of a Covered
Transaction in which there is an acquiring or surviving entity, the Administrator may provide for the assumption of some or all outstanding Awards, or for the grant of new awards in substitution therefor, by the acquiror or survivor or an affiliate
of the acquiror or survivor, in each case on such terms and subject to such conditions as the Administrator determines. In the event of a Covered Transaction (whether or not there is an acquiring or surviving entity) where there is no 
  

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 such assumption or substitution, except as otherwise provided in the Award each Stock Option, SAR and other Award
requiring exercise will become fully exercisable, and the delivery of shares of Stock issuable under each outstanding Award of Stock Units (including Restricted Stock Units) will be accelerated and such shares will be issued, prior to the Covered
Transaction, in each case on a basis that gives the holder of the Award a reasonable opportunity, as determined by the Administrator, following exercise of the Award or the issuance of the shares, as the case may be, to participate as a stockholder
in the Covered Transaction, and the Award will terminate upon consummation of the Covered Transaction. Any shares of Stock issued pursuant to the preceding sentence in satisfaction or replacement of an Award may, in the discretion of the
Administrator, contain such restrictions, if any, as the Administrator deems appropriate to reflect any performance or other vesting conditions to which the Award was subject. In the case of Restricted Stock, the Administrator may require that any
amounts delivered, exchanged or otherwise paid in respect of such Stock in connection with the Covered Transaction be placed in escrow or otherwise made subject to such restrictions as the Administrator deems appropriate to carry out the intent of
the Plan. 
  
 (b) CHANGES IN AND DISTRIBUTIONS WITH RESPECT
TO THE STOCK 
  
 (1) Basic Adjustment
Provisions. In the event of a stock dividend, stock split or combination of shares (including a reverse stock split), recapitalization or other change in the Company’s capital structure, the Administrator will make appropriate
adjustments to the maximum number of shares specified in Section 4(a) that may be delivered under the Plan, to the maximum number of shares specified in Section 4(a) that may be issued upon the exercise of ISOs, to the maximum number of shares
specified in Section 4(a) that may be issued with respect to Stock Options that are not ISOs, and to the maximum share limits described in Section 4(c), and will also make appropriate adjustments to the number and kind of shares of stock or
securities subject to Awards then outstanding or subsequently granted, any exercise prices relating to Awards and any other provision of Awards affected by such change. 
  
 (2) Certain Other Adjustments. The Administrator may also make adjustments of the type
described in Section 7(b)(1) above to take into account distributions to stockholders other than those provided for in Section 7(a) and 7(b)(1), or any other event, if the Administrator determines that adjustments are appropriate to avoid distortion
in the operation of the Plan and to preserve the value of Awards made hereunder. The Administrator shall exercise its discretionary authority under the immediately preceding sentence consistent with the objectives of preserving the qualification as
ISOs of Awards intended to continue to qualify as ISOs and of preserving the continued applicability of the performance-based compensation exception under Section 162(m) for Awards intended to continue to qualify for such exception. 
  
 (3) Continuing Application of Plan Terms.
References in the Plan to shares of Stock will be construed to include any stock or securities resulting from an adjustment pursuant to this Section 7. 
  
 8. LEGAL CONDITIONS ON DELIVERY OF STOCK 
  
 The Company will not be obligated to deliver any shares of Stock pursuant to the Plan or 
  

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 to remove any restriction from shares of Stock previously delivered under the Plan until: (i) the Company is satisfied
that all legal matters in connection with the issuance and delivery of such shares have been addressed and resolved; (ii) if the outstanding Stock is at the time of delivery listed on any stock exchange or national market system, the shares to be
delivered have been listed or authorized to be listed on such exchange or system upon official notice of issuance; and (iii) all conditions of the Award have been satisfied or waived. If the sale of Stock has not been registered under the Securities
Act of 1933, as amended, the Company may require, as a condition to exercise of the Award, such representations or agreements as counsel for the Company may consider appropriate to avoid violation of such Act. The Company may require that
certificates evidencing Stock issued under the Plan bear an appropriate legend reflecting any restriction on transfer applicable to such Stock, and the Company may hold the certificates pending lapse of the applicable restrictions. 
  
 9. AMENDMENT AND TERMINATION 
  
 The Administrator may at any time or times amend the Plan or any outstanding
Award for any purpose which may at the time be permitted by law, and may at any time terminate the Plan as to any future grants of Awards; provided, that except as otherwise expressly provided in the Plan the Administrator may not, without
the Participant’s consent, alter the terms of an Award so as to affect adversely the Participant’s rights under the Award, unless the Administrator expressly reserved the right to do so at the time of the Award. Amendment to the Plan shall
be conditioned upon stockholder approval only to the extent, if any, such approval is required by law (including the Code and applicable stock exchange requirements), as determined by the Administrator. 
  
 10. MISCELLANEOUS 
  
 The existence of the Plan or the grant of any Award will not in any way affect the Company’s right to Award a person
bonuses or other compensation in addition to Awards under the Plan. 
  
 The Administrator may establish one or more sub-plans or additional rules governing Awards to non-U.S. employees or to employees in U.S. jurisdictions subject to state blue-sky or other special requirements. Such subplans or rules, together
with the generally applicable terms of the Plan, shall constitute the Plan as it pertains to any Awards to which such sub-plans or rules apply. Without limiting the foregoing, Awards to California residents shall be subject to the requirements of
Exhibit B (as the same may from time to time by amended by the Administrator consistent with applicable law) except to the extent the Administrator determines that such requirements do not apply. 
  

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 EXHIBIT A 
  
 Definition of Terms 
  
 The following terms, when used in the Plan, will have the meanings and be subject to the provisions set forth below: 
  
 “Administrator”: The Compensation Committee, except that the
Compensation Committee may delegate (i) to one or more of its members such of its duties, powers and responsibilities as it may determine; (ii) to one or more officers of the Company the power to grant rights or options to the extent
permitted by Section 157(c) of the Delaware General Corporation Law; (iii) to one or more officers of the Company the authority to allocate other Awards among such persons (other than officers of the Company) eligible to receive Awards under
the Plan as such delegated officer or officers determine consistent with such delegation; provided, that with respect to any delegation described in this clause (iii) the Compensation Committee (or a properly delegated member or members
of such Committee) shall have authorized the issuance of a specified number of shares of Stock under such Awards and shall have specified the consideration, if any, to be paid therefor; and (iv) to such Employees or other persons as it
determines such ministerial tasks as it deems appropriate. In the event of any delegation described in the preceding sentence, the term “Administrator” shall include the person or persons so delegated to the extent of such delegation.

  
 “Affiliate”: Any corporation or other entity
owning, directly or indirectly, 50% or more of the outstanding Stock of the Company, or in which the Company or any such corporation or other entity owns, directly or indirectly, 50% of the outstanding capital stock (determined by aggregate voting
rights) or other voting interests. 
  
 “Award”:
Any or a combination of the following: 
  
 (i)
Stock Options. 
  
 (ii) SARs. 
  
 (iii) Restricted Stock. 
  
 (iv) Unrestricted Stock. 
  
 (v) Stock Units, including Restricted Stock Units.

  
 (vi) Performance Awards. 
  
 (vii) Cash Awards. 
  
 (viii) Awards (other than Awards described in (i) through
(vii) above) that are convertible into or otherwise based on Stock. 
  

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 “Board”: The Board of Directors of the Company. 
  
 “Cash Award”: An Award denominated in cash. 
  
 “Code”: The U.S. Internal Revenue Code of 1986 as from time
to time amended and in effect, or any successor statute as from time to time in effect. 
  
 “Compensation Committee”: The Compensation Committee of the Board. 
  
 “Company”: Lumera Corporation. 
  
 “Covered Transaction”: Any of (i) a consolidation, merger, or similar transaction or series of related transactions, including a sale or
other disposition of stock, in which the Company is not the surviving corporation or which results in the acquisition of all or substantially all of the Company’s then outstanding common stock by a single person or entity or by a group of
persons and/or entities acting in concert, (ii) a sale or transfer of all or substantially all the Company’s assets, or (iii) a dissolution or liquidation of the Company. Where a Covered Transaction involves a tender
offer that is reasonably expected to be followed by a merger described in clause (i) (as determined by the Administrator), the Covered Transaction shall be deemed to have occurred upon consummation of the tender offer. 
  
 “Employee”: Any person who is employed by the Company or an
Affiliate. 
  
 “Employment”: A Participant’s
employment or other service relationship with the Company and its Affiliates. Employment will be deemed to continue, unless the Administrator expressly provides otherwise, so long as the Participant is employed by, or otherwise is providing services
in a capacity described in Section 5 to the Company or its Affiliates. If a Participant’s employment or other service relationship is with an Affiliate and that entity ceases to be an Affiliate, the Participant’s Employment will be deemed
to have terminated when the entity ceases to be an Affiliate unless the Participant transfers Employment to the Company or its remaining Affiliates. 
  
 “ISO”: A Stock Option intended to be an “incentive stock option” within the meaning of Section 422 of the Code. Each
option granted pursuant to the Plan will be treated as providing by its terms that it is to be a non-incentive option unless, as of the date of grant, it is expressly designated as an ISO. 
  
 “Participant”: A person who is granted an Award under the
Plan. 
  
 “Performance Award”: An Award subject
to Performance Criteria. The Committee in its discretion may grant Performance Awards that are intended to qualify for the performance-based compensation exception under Section 162(m) and Performance Awards that are not intended so to qualify.

  
 “Performance Criteria”: Specified criteria,
other than mere continued Employment or the mere passage of time, the satisfaction of which is a condition for the grant, exercisability, 
  

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 vesting or full enjoyment of an Award. For purposes of Awards that are intended to qualify for the performance-based
compensation exception under Section 162(m), a Performance Criterion will mean an objectively determinable measure of performance relating to any or any combination of the following (measured either absolutely or by reference to an index or
indices and determined either on a consolidated basis or, as the context permits, on a divisional, subsidiary, line of business, project or geographical basis or in combinations thereof): sales; revenues; assets; expenses; earnings before or after
deduction for all or any portion of interest, taxes, depreciation, or amortization, whether or not on a continuing operations or an aggregate or per share basis; return on equity, investment, capital or assets; one or more operating ratios;
borrowing levels, leverage ratios or credit rating; market share; capital expenditures; cash flow; stock price; stockholder return; sales of particular products or services; customer acquisition or retention; acquisitions and divestitures (in whole
or in part); joint ventures and strategic alliances; spin-offs, split-ups and the like; reorganizations; or recapitalizations, restructurings, financings (issuance of debt or equity) or refinancings. A Performance Criterion and any targets with
respect thereto determined by the Administrator need not be based upon an increase, a positive or improved result or avoidance of loss. To the extent consistent with the requirements for satisfying the performance-based compensation exception under
Section 162(m), the Administrator may provide in the case of any Award intended to qualify for such exception that one or more of the Performance Criteria applicable to such Award will be adjusted in an objectively determinable manner to reflect
events (for example, but without limitation, acquisitions or dispositions) occurring during the performance period that affect the applicable Performance Criterion or Criteria. 
  
 “Plan”: The 2004 Lumera Corporation Equity Incentive Plan as from time to time amended and in effect.

  
 “Restricted Stock”: An Award of Stock for so
long as the Stock remains subject to restrictions requiring that it be redelivered or offered for sale to the Company if specified conditions are not satisfied. 
  

“Restricted Stock Unit”: A Stock Unit that is, or as to which the delivery of Stock or cash in lieu of Stock is, subject to the
satisfaction of specified performance or other vesting conditions. 
  
 “Section 162(m)”: Section 162(m) of the Code. 
  
 “SARs”: Rights entitling the holder upon exercise to receive cash or Stock, as the Administrator determines, equal to a function (determined by the Administrator using such factors as it deems appropriate) of the amount by
which the Stock has appreciated in value since the date of the Award. 
  
 “Stock”: Common Stock of the Company, par value $ 0.001 per share. 
  
 “Stock Unit”: An unfunded and unsecured promise, denominated in shares of Stock, to deliver Stock or cash measured by the value of Stock in the future. 
  

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 “Stock Options”: Options entitling the recipient to acquire shares of Stock upon payment
of the exercise price. 
  
 “Unrestricted Stock”:
An Award of Stock not subject to any restrictions under the terms of the Award. 
  

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 EXHIBIT B 
  
 Awards to California Residents 
  
 Pursuant to Section 10 of the Plan, the Administrator has adopted this Exhibit B for purposes of satisfying the requirements of Section 25102(o) of
the California Corporations Code: 
  
 Any awards granted under the
Plan to a Participant who is a resident of the State of California on the date of grant (a “California Participant”) shall be subject to the following additional limitations, terms and conditions: 
  
 1. Minimum Vesting Rate. Except in the case of Stock Options granted
to California Participants who are officers, directors, or non-employee consultants of the Company (which options may become exercisable at whatever rate is determined by the Administrator), Stock Options granted to California Participants shall
become exercisable at a rate of no less than 20% per year over five years from the date of grant; provided, that such Options may be subject to such reasonable forfeiture conditions as the Board may choose to impose and which are not
inconsistent with Section 260.140.41 of the California Code of Regulations. 
  
 2. Minimum Exercise Price. The exercise price of Stock Options granted to a California Participant who owns stock possessing more than 10% of the total combined voting power of all classes of stock of the
Company or its parent or subsidiary corporations shall be not less than 110% of the Fair Market Value of the Stock on the date of grant. 
  
 3. Minimum Exercise Period Following Termination. Unless a California Participant’s employment is terminated for cause (as defined in any
contract of employment between the Company and such Participant, or if none, in the instrument evidencing the grant of such Participant’s Stock Option), in the event of termination of employment of such Participant, he or she shall have the
right to exercise a Stock Option, to the extent that he or she was otherwise entitled to exercise such Stock Option on the date employment terminated, as follows: (i) at least six months from the date of termination, if termination was caused
by such Participant’s death or “permanent and total disability” (within the meaning of Section 22(e)(3) of the Code) and (ii) at least 30 days from the date of termination, if termination was caused other than by such
Participant’s death or “permanent and total disability” (within the meaning of Section 22(e)(3) of the Code). 
  
 4. Limitation on Repurchase Rights. If a Stock Option granted to a California Participant gives the Company the right to repurchase shares of
Common Stock issued pursuant to the Plan upon termination of employment of such Participant, the terms of such repurchase right must comply with Section 260.140.41(k) of the California Code of Regulations. 
  
 5. Additional Limitations for Other Stock-Based Awards. The terms of
all Awards granted to a California Participant shall comply, to the extent applicable, with Section 260.140.41 or Section 260.140.42 of the California Code of Regulations. 
  
 6. Additional Limitations on Transferability of Awards. Except as provided in the next sentence, Awards granted to
California Participants shall not be sold, assigned, transferred, 
  

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 pledged or otherwise encumbered by the person to whom they are granted, either voluntarily or by operation of law, except
by will or the laws of descent and distribution, and, during the life of such Participant, shall be exercisable only by such Participant. Notwithstanding the foregoing, but subject to the rules at Section 422 of the Code in the case of ISOs, the
Board may allow Awards to be transferred to an inter vivos or testamentary trust in which the Options are to be passed to beneficiaries upon the death of the trustor (settlor) or by gift to “immediate family” as that term is defined in
Rule 16a-1(e) under the Securities Exchange Act of 1934, as amended. 
  
 7. Additional Requirement to Provide Information to California Participants. The Company shall provide to each California Participant who acquires Stock pursuant to the Plan, not less frequently than annually, copies of annual
financial statements (which need not be audited). The Company shall not be required to provide such statements to key employees whose duties in connection with the Company assure their access to equivalent information. 
  
 8. Additional Limitations on Timing of Awards. No award granted to a
California Participant shall become exercisable, vested or realizable, as applicable to such Award, unless the Plan has been approved by the Company’s stockholders within 12 months before or after the date the Plan was adopted by the Board.

  
 9. Additional Limitations Relating to Definition of Fair
Market Value. For purposes of this Exhibit B, “Fair Market Value” shall be determined in a manner not inconsistent with Section 260.140.50 of the California Code of Regulations. 
  

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