exv10w1






Exhibit 10.1




THORATEC CORPORATION




AMENDED AND RESTATED 2006 INCENTIVE STOCK PLAN



Approved by the Shareholders on May 25, 2006

Amended and Restated by the Board on May 25, 2006 and April 7, 2008

Approved by the Shareholders on May 20, 2008

Amended and Restated by the Board on May 20, 2008 and March 2, 2010

Approved by the Shareholders on May 19, 2010



Termination Date: May 24, 2016



I. PURPOSES



     1.1 Eligible Stock Award Recipients. The persons eligible to receive Stock Awards are
the Employees, Directors, and Consultants of the Company and its Affiliates.



     1.2 Available Stock Awards. The types of stock awards that may be granted under this
Plan shall be: (i) Incentive Stock Options, (ii) Nonstatutory Stock Options, (iii) Restricted Stock
Bonuses, (iv) Restricted Stock Purchase Rights, (v) Stock Appreciation Rights, (vi) Phantom Stock
Units, (vii) Restricted Stock Units, (viii) Performance Share Bonuses, and (ix) Performance Share
Units.



     1.3 General Purpose. The Company, by means of this new Plan, which will serve as the
successor to the Company’s 1997 Stock Option Plan (“1997 Plan”), the Company’s 1996 Stock Option
Plan (“1996 Plan”), and the Company’s Nonemployee Directors Stock Option Plan (“Directors 1996
Plan”), seeks to create incentives for eligible Employees (including officers), Directors, and
Consultants of the Company, through their participation in the growth in value of the Common Stock
of the Company, to accept or continue their employment or other service relationship with the
Company, increase their interest in the Company’s welfare, and improve the operations and increase
the profits of the Company. The Plan will serve as a replacement for the 1997 Plan, the 1996 Plan,
and the Directors 1996 Plan. Stock awards granted under any of these plans shall continue to be
governed by the terms of the plan under which the stock award was granted that were in effect on
the date of grant of such award.



II. DEFINITIONS




     2.1 “Affiliate” means a parent or subsidiary of the Company, with “parent” meaning an entity
that controls the Company directly or indirectly, through one or more intermediaries, and
“subsidiary” meaning an entity that is controlled by the Company directly or indirectly, through
one or more intermediaries. Solely with respect to the granting of any Incentive Stock Options,
Affiliate means any parent corporation or subsidiary corporation of the Company, whether now or
hereafter existing, as those terms are defined in Sections 424(e) and (f), respectively, of the
Code.



     2.2 “Beneficial Owner” means the definition given in Rule 13d-3 promulgated under the Exchange
Act.













 





     2.3 “Board” means the Board of Directors of the Company.



     2.4 “Change of Control” means the occurrence of any of the following events:



          (i) Any person or group is or becomes the Beneficial Owner, directly or indirectly, of more
than 50% of the total voting power of the voting stock of the Company, including by way of merger,
consolidation or otherwise;




          (ii) The sale, exchange, lease or other disposition of all or substantially all of the assets
of the Company to a person or group of related persons, as such terms are defined or described in
Sections 3(a)(9) and 13(d)(3) of the Exchange Act;




          (iii) A merger or consolidation or similar transaction involving the Company;




          (iv) A change in the composition of the Board occurring within a two-year period, as a result
of which fewer than a majority of the Directors are Incumbent Directors; or




          (v) A dissolution or liquidation of the Company.




     2.5 “Code” means the Internal Revenue Code of 1986, as amended.



     2.6 “Committee” means a committee of one or more members of the Board (or officers who are not
members of the Board to the extent allowed by law) appointed by the Board in accordance with
Section 3.3 of the Plan.



     2.7 “Common Stock” means the common shares of the Company.



     2.8 “Company” means Thoratec Corporation, a California corporation.



     2.9 “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 who are not compensated by the Company for their services as a
Director or Directors who are compensated by the Company solely for their services as a Director.



     2.10 “Continuous Service” means that the Participant’s service with the Company or an
Affiliate, whether as an Employee, Director, or Consultant is not interrupted or terminated. The
Participant’s Continuous Service shall not be deemed to have terminated merely because of a change
in the capacity in which the Participant renders service to the Company or an Affiliate as an
Employee, Consultant, or Director, or a change in the entity for which the Participant renders such
service, provided that there is no interruption or termination of the Participant’s Continuous
Service. For example, a change in status from an Employee of the Company to a Consultant of an
Affiliate or a Director 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
the Company or an Affiliate, including sick leave, military leave, or any other personal leave.



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     2.11 “Covered Employee” means the chief executive officer and the four (4) other highest
compensated officers of the Company for whom total compensation is required to be reported to
shareholders under the Exchange Act, as determined for purposes of Section 162(m) of the Code.



     2.12 “Director” means a member of the Board of Directors of the Company.



     2.13 “Disability” means the permanent and total disability of a person within the meaning of
Section 22(e)(3) of the Code for all Incentive Stock Options. For all other Stock Awards,
“Disability” means physical or mental incapacitation such that for a period of six (6) consecutive
months or for an aggregate of nine (9) months in any twenty-four (24) consecutive month period, a
person is unable to substantially perform his or her duties. Any question as to the existence of
that person’s physical or mental incapacitation as to which the person or person’s representative
and the Company cannot agree shall be determined in writing by a qualified independent physician
mutually acceptable to the person and the Company. If the person and the Company or an Affiliate
cannot agree as to a qualified independent physician, each shall appoint such a physician and those
two (2) physicians shall select a third (3rd) who shall make such determination in
writing. The determination of Disability made in writing to the Company or an Affiliate and the
person shall be final and conclusive for all purposes of the Stock Awards.



     2.14 “Eligible Director” means any Director who is not employed by the Company or an
Affiliate.



     2.15 “Employee” means any person employed by the Company or an Affiliate. Service as a
Director or compensation by the Company or an Affiliate solely for services as a Director shall not
be sufficient to constitute “employment” by the Company or an Affiliate.



     2.16 “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     2.17 “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 such 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 date of determination, as reported in The Wall Street
Journal or such other source as the Board deems reliable;




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




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




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     2.18 “Full-Value Stock Award” shall mean any of a Restricted Stock Bonus, Restricted Stock
Units, Phantom Stock Units, Performance Share Bonus, or Performance Share Units.



     2.19 “Incentive Stock Option” means an Option intended to qualify as an incentive stock option
within the meaning of Section 422 of the Code and the regulations promulgated thereunder.



     2.20 “Incumbent Directors” shall mean Directors who either (i) are Directors of the Company as
of the date the Plan first becomes effective pursuant to Article XVI hereof or (ii) are elected, or
nominated for election, to the Board with the affirmative votes of at least a majority of those
Directors whose election or nomination was not in connection with any transaction described in
subsections (i), (ii), or (iii) of Section 2.4, or in connection with an actual or threatened proxy
contest relating to the election of Directors to the Company.



     2.21 “Non-Employee Director” means a Director who either (i) is not a current Employee or
Officer of the Company or its parent or a subsidiary, does not receive compensation (directly or
indirectly) from the Company or its parent or a subsidiary for services rendered as a consultant or
in any capacity other than as a Director (except for an amount as to which disclosure would not be
required under Item 404(a) of Regulation S-K promulgated pursuant to the Securities Act
(“Regulation S-K”)), does not possess an interest in any other transaction as to which disclosure
would be required under Item 404(a) of Regulation S-K and is not engaged in a business relationship
as to which disclosure would be required under Item 404(b) of Regulation S-K; or (ii) is otherwise
considered a “non-employee director” for purposes of Rule 16b-3.



     2.22 “Nonstatutory Stock Option” means an Option not intended to qualify as an Incentive Stock
Option.



     2.23 “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.



     2.24 “Option” means an Incentive Stock Option or a Nonstatutory Stock Option granted pursuant
to the Plan.



     2.25 “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.



     2.26 “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.



     2.27 “Outside Director” means a Director who either (i) is not a current employee of the
Company or an “affiliated corporation” (within the meaning of Treasury Regulations promulgated
under Section 162(m) of the Code), is not a former employee of the Company or an “affiliated
corporation” receiving compensation for prior services (other than benefits under a tax qualified
pension plan), was not an officer of the Company or an “affiliated corporation” at any time and is
not currently receiving direct or indirect remuneration from the Company or an “affiliated
corporation” for services in any capacity other than as a Director; or (ii) is otherwise considered
an “outside director” for purposes of Section 162(m) of the Code.



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     2.28 “Participant” means a person to whom a Stock Award is granted pursuant to the Plan or, if
applicable, such other person who holds an outstanding Stock Award.



     2.29 “Performance Share Bonus” means a grant of shares of the Company’s Common Stock not
requiring a Participant to pay any amount of monetary consideration, and which grant is subject to
the provisions of Section 8.6 of the Plan.



     2.30 “Performance Share Unit” means the right to receive the value of one (1) share of the
Company’s Common Stock at the time the Performance Share Unit vests, with the further right to
elect to defer receipt of that value otherwise deliverable upon the vesting of an award of
Performance Share Units to the extent permitted in the Participant’s Stock Award Agreement. These
Performance Share Units are subject to the provisions of Section 8.7 of the Plan.



     2.31 “Phantom Stock Unit” means the right to receive the value of one (1) share of the
Company’s Common Stock, subject to the provisions of Section 8.4 of the Plan.



     2.32 “Plan” means this Thoratec Corporation 2006 Incentive Stock Plan.



     2.33 “Restricted Stock Bonus” means a grant of shares of the Company’s Common Stock not
requiring a Participant to pay any amount of monetary consideration, and which grant is subject to
the provisions of Section 8.1 of the Plan.



     2.34 “Restricted Stock Purchase Right” means the right to acquire shares of the Company’s
Common Stock upon the payment of the agreed-upon monetary consideration, subject to the provisions
of Section 8.2 of the Plan.



     2.35 “Restricted Stock Unit” means the right to receive the value of one (1) share of the
Company’s Common Stock at the time the Restricted Stock Unit vests, with the further right to elect
to defer receipt of that value otherwise deliverable upon the vesting of an award of restricted
stock to the extent permitted in the Participant’s agreement. These Restricted Stock Units are
subject to the provisions of Section 8.5 of the Plan.



     2.36 “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.



     2.37 “Securities Act” means the Securities Act of 1933, as amended.



     2.38 “Stock Appreciation Right” means the right to receive an amount equal to the Fair Market
Value of one (1) share of the Company’s Common Stock on the day the Stock Appreciation Right is
redeemed, reduced by the deemed exercise price or base price of such right, subject to the
provisions of Section 8.3 of the Plan.



     2.39 “Stock Award” means any Option award, Restricted Stock Bonus award, Restricted Stock
Purchase Right award, Stock Appreciation Right award, Phantom Stock Unit award, Restricted Stock
Unit award, Performance Share Bonus award, Performance Share Unit award, or other stock-based
award. These Awards may include, but are not limited to those listed in Section 1.2.



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     2.40 “Stock Award Agreement” means a written agreement, including an Option Agreement, between
the Company and a holder of a Stock Award setting forth the terms and conditions of an individual
Stock Award grant. Each Stock Award Agreement shall be subject to the terms and conditions of the
Plan.



     2.41 “Ten Percent Shareholder” means a person who owns (or is deemed to own pursuant to
Section 424(d) of the Code) stock possessing more than ten percent (10%) of the total combined
voting power of all classes of stock of the Company or of any of its Affiliates.



III. ADMINISTRATION




     3.1 Administration by Board. The Board shall administer the Plan unless and until the
Board delegates administration to a Committee, as provided in Section 3.3.



     3.2 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 from time to time which of the persons eligible under the Plan shall be
granted Stock Awards; when and how each Stock Award shall be granted; what type or combination of
types of Stock Award shall be granted; the provisions of each Stock Award granted (which need not
be identical), including the time or times when a person shall be permitted to receive Common Stock
pursuant to a Stock Award; and the number of shares of Common Stock with respect to which a Stock
Award shall be granted to each such person.




          (ii) To construe and interpret the Plan and Stock Awards 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 Stock Award
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 a Stock Award as provided in Section 14 of the Plan.




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




          (v) To adopt sub-plans and/or special provisions applicable to Stock Awards regulated by the
laws of a jurisdiction other than and outside of the United States. Such sub-plans and/or special
provisions may take precedence over other provisions of the Plan, with the exception of Section 4
of the Plan, but unless otherwise superseded by the terms of such sub-plans and/or special
provisions, the provisions of the Plan shall govern.




          (vi) To authorize any person to execute on behalf of the Company any instrument required to
effect the grant of a Stock Award previously granted by the Board.




          (vii) To determine whether Stock Awards will be settled in shares of Common Stock, cash or in
any combination thereof.







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          (viii) To determine whether Stock Awards will be adjusted for Dividend Equivalents, with
“Dividend Equivalents” meaning a credit, made at the discretion of the Board, to the account of a
Participant in an amount equal to the cash dividends paid on one share of Common Stock for each
share of Common Stock represented by a Stock Award held by such Participant.




          (ix) To establish a program whereby Participants designated by the Board can reduce
compensation otherwise payable in cash in exchange for Stock Awards under the Plan.




          (x) To impose such restrictions, conditions or limitations as it determines appropriate as to
the timing and manner of any resales by a Participant or other subsequent transfers by the
Participant of any shares of Common Stock issued as a result of or under a Stock Award, including,
without limitation, (A) restrictions under an insider trading policy and (B) restrictions as to the
use of a specified brokerage firm for such resales or other transfers.




          (xi) To provide, either at the time a Stock Award is granted or by subsequent action, that a
Stock Award shall contain as a term thereof, a right, either in tandem with the other rights under
the Stock Award or as an alternative thereto, of the Participant to receive, without payment to the
Company, a number of shares of Common Stock, cash or a combination thereof, the amount of which is
determined by reference to the value of the Stock Award.




     3.3 Delegation to Committee.



          (i) General. The Board may delegate administration of the Plan to a Committee or
Committees consisting of one or more members of the Board or one or more officers of the Company
who are not members of the Board (to the extent allowed by law), and the term “Committee” shall
apply to any person or persons to whom such authority has been delegated. If administration is
delegated to a Committee, the Committee also may exercise, in connection with the administration of
the Plan, any of the powers and authority granted to the Board under the Plan, and the Committee
may delegate to a subcommittee any of the administrative powers the Committee is authorized to
exercise (and references in this Plan to the Board shall thereafter be to the Committee or
subcommittee, as applicable), subject, however, to such resolutions, not inconsistent with the
provisions of the Plan, as may be adopted from time to time by the Board. The Board may abolish the
Committee at any time and revest in the Board the administration of the Plan.




          (ii) Committee Composition when Common Stock is Publicly Traded. At such time as the
Common Stock is publicly traded, in the discretion of the Board, a Committee may consist solely of
two or more Outside Directors, in accordance with Section 162(m) of the Code, and/or solely of two
or more Non-Employee Directors, in accordance with Rule 16b-3. Within the scope of such authority,
the Board or the Committee may (1) delegate to a committee of one or more individuals who are not
Outside Directors the authority to grant Stock Awards to eligible persons who are either (a) not
then Covered Employees and are not expected to be Covered Employees at the time of recognition of
income resulting from such Stock Award or (b) not persons with respect to whom the Company wishes
to comply with Section 162(m) of the Code and/or (2) delegate to a committee of one or more
individuals who are not Non-Employee Directors the authority to grant Stock Awards to eligible
persons who are either (a) not then






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subject to Section 16 of the Exchange Act or (b) receiving a Stock Award as to which the Board
or Committee elects not to comply with Rule 16b-3 by having two or more Non-Employee Directors
grant such Stock Award.




     3.4 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.



     3.5 Compliance with Section 16 of Exchange Act. With respect to persons subject to
Section 16 of the Exchange Act, transactions under this Plan are intended to comply with the
applicable conditions of Rule 16b-3, or any successor rule thereto. To the extent any provision of
this Plan or action by the Board fails to so comply, it shall be deemed null and void, to the
extent permitted by law and deemed advisable by the Board. Notwithstanding the above, it shall be
the responsibility of such persons, not of the Company or the Board, to comply with the
requirements of Section 16 of the Exchange Act; and neither the Company nor the Board shall be
liable if this Plan or any transaction under this Plan fails to comply with the applicable
conditions of Rule 16b-3 or any successor rule thereto, or if any person incurs any liability under
Section 16 of the Exchange Act.



IV. SHARES SUBJECT TO THE PLAN




     4.1 Share Reserve. Subject to the provisions of Section 13 of the Plan relating to
adjustments upon changes in Common Stock, the maximum aggregate number of shares of Common Stock
that may be issued pursuant to Stock Awards shall not exceed Eight Million Six Hundred Thousand
(8,600,000) shares of Common Stock (“Share Reserve”); provided that from May 20, 2008 until May 18,
2010, (i) each share of Common Stock issued pursuant to a Full-Value Stock Award shall reduce the
Share Reserve by one and seventy-four hundredths (1.74) shares and (ii) each share of Common Stock
issued pursuant to a Stock Award other than a Full-Value Stock Award shall reduce the Share Reserve
by one (1) share; and provided further that from and after May 19, 2010, (i) each share of Common
Stock issued pursuant to a Full-Value Stock Award shall reduce the Share Reserve by one and seven
tenths (1.7) shares and (ii) each share of Common Stock issued pursuant to a Stock Award other than
a Full-Value Stock Award shall reduce the Share Reserve by one (1) share. To the extent that a
distribution pursuant to a Stock Award is made in cash, the Share Reserve shall be reduced by the
number of shares of Common Stock subject to the redeemed or exercised portion of the Stock Award.
Notwithstanding any other provision of the Plan to the contrary, the maximum aggregate number of
shares of Common Stock that may be issued under the Plan pursuant to Incentive Stock Options is
Eight Million Six Hundred Thousand (8,600,000) shares of Common Stock (“ISO Limit”), subject to the
adjustments provided for in Section 13 of the Plan. No more than an aggregate of five percent (5%)
of the initial Share Reserve at the time of the adoption of this Plan and five percent (5%) of any
increase in the Share Reserve as may be approved by the shareholders of the Company from time to
time may be granted under Accelerated Vesting Restricted Stock Bonuses and Accelerated Vesting
Restricted Stock Units (as defined in Sections 8.1(ii) and 8.5(ii), respectively).



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     4.2 Reversion of Shares to the Share Reserve.



          (i) If any Stock Award granted under this Plan shall for any reason (A) expire, be cancelled
or otherwise terminate, in whole or in part, without having been exercised or redeemed in full, (B)
be reacquired by the Company prior to vesting, or (C) be repurchased at cost by the Company prior
to vesting, the shares of Common Stock not acquired by Participant under such Stock Award shall
revert or be added to the Share Reserve and become available for issuance under the Plan; provided,
however, that shares of Common Stock shall not revert or be added to the Share Reserve that are (a)
tendered in payment of an Option, (b) withheld by the Company to satisfy any tax withholding
obligation, or (c) repurchased by the Company with Option proceeds, and provided, further, that
shares of Common Stock covered by a Stock Appreciation Right, to the extent that it is exercised
and settled in shares of Common Stock, and whether or not shares of Common Stock are actually
issued to the Participant upon exercise of the Stock Appreciation Right, shall be considered issued
or transferred pursuant to the Plan. For shares that revert or are added to the Share Reserve as
provided above, the Share Reserve shall be increased by (i) one and seven tenths (1.7) shares for
each share of Common Stock underlying a Full-Value Stock Award and (ii) one (1) share for each
share of Common Stock underlying a Stock Award other than a Full-Value Stock Award.




          (ii) Shares of Common Stock that are not acquired by a holder of a stock award granted under
the 1997 Plan, the 1996 Plan, or the Directors 1996 Plan shall not revert or be added to the Share
Reserve or become available for issuance under the Plan.




     4.3 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.



V. ELIGIBILITY




     5.1 Eligibility for Specific Stock Awards. Incentive Stock Options may be granted only
to Employees. Stock Awards other than Incentive Stock Options may be granted to Employees,
Directors, and Consultants.



     5.2 Ten Percent Shareholders. A Ten Percent Shareholder shall not be granted an
Incentive Stock Option unless the exercise price of such Option is at least one hundred ten percent
(110%) of the Fair Market Value of the Common Stock on the date of grant and the Option is not
exercisable after the expiration of five (5) years from the date of grant.



     5.3 Annual Section 162(m) Limitation. Subject to the provisions of Section 13 of the
Plan relating to adjustments upon changes in the shares of Common Stock, no Employee shall be
eligible to be granted Incentive Stock Options, Nonstatutory Stock Options, or Stock Appreciation
Rights covering more than Three Hundred Fifty Thousand (350,000) shares of Common Stock during any
fiscal year; provided that in connection with his or her initial service, an Employee may be
granted Incentive Stock Options, Nonstatutory Stock Options, or Stock Appreciation Rights covering
not more than an additional Two Hundred Fifty Thousand (250,000) shares of Common Stock, which
shall not count against the limit set forth in the preceding sentence.



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     5.4. Consultants.



          (i) A Consultant shall not be eligible for the grant of a Stock Award if, at the time of
grant, a Form S-8 Registration Statement under the Securities Act (“Form S-8”) is not available to
register either the offer or the sale of the Company’s securities to such Consultant because of the
nature of the services that the Consultant is providing to the Company, or because the Consultant
is not a natural person, or as otherwise provided by the rules governing the use of Form S-8,
unless the Company determines both (1) that such grant (A) shall be registered in another manner
under the Securities Act (e.g., on a Form S-3 Registration Statement) or (B) does not require
registration under the Securities Act in order to comply with the requirements of the Securities
Act, if applicable, and (2) that such grant complies with the securities laws of all other relevant
jurisdictions.




          (ii) Form S-8 generally is available to consultants and advisors only if (A) they are natural
persons; (B) they provide bona fide services to the issuer, its parents, or its majority owned
subsidiaries; and (C) the services are not in connection with the offer or sale of securities in a
capital-raising transaction, and do not directly or indirectly promote or maintain a market for the
issuer’s securities.




VI. OPTION PROVISIONS




     Each Option shall be in such form and shall contain such terms and conditions as the Board
shall deem appropriate. All Options shall be separately designated Incentive Stock Options or
Nonstatutory Stock Options at the time of grant, and, if certificates are issued, a separate
certificate or certificates will be issued for shares of Common Stock purchased upon exercise of
each type of Option. The provisions of separate Options need not be identical, but each Option
shall include (through incorporation of provisions hereof by reference in the Option or otherwise)
the substance of each of the following provisions:



     6.1 Term. Subject to the provisions of Section 5.2 of the Plan regarding grants of
Incentive Stock Options to Ten Percent Shareholders, no Option shall be exercisable after the
expiration of ten (10) years from the date it was granted, and no Option granted to an Eligible
Director pursuant to Article VII shall be exercisable after the expiration of five (5) years from
the date it was granted.



     6.2 Exercise Price of an Incentive Stock Option. Subject to the provisions of Section
5.2 of the Plan regarding Ten Percent Shareholders, the exercise price of each Incentive Stock
Option shall be not less than one hundred percent (100%) of the Fair Market Value of the Common
Stock subject to the Option on the date the Option is granted. Notwithstanding the foregoing, an
Incentive Stock 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.



     6.3 Exercise Price of a Nonstatutory Stock Option. The exercise price of each
Nonstatutory Stock Option shall be not less than one hundred percent (100%) of the Fair Market
Value of the Common Stock subject to the Option on the date the Option is granted.



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Notwithstanding the foregoing, a Nonstatutory Stock 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.




     6.4 Consideration. The purchase price of Common Stock acquired pursuant to an Option
shall be paid, to the extent permitted by applicable statutes and regulations, either (i) in cash
or by check at the time the Option is exercised or (ii) at the discretion of the Board at the time
of the grant of the Option (or subsequently in the case of a Nonstatutory Stock Option): (1) by
delivery to the Company of other Common Stock, (2) pursuant to a “same day sale” program to the
extent permitted by law, (3) reduction of the Company’s liability to the Optionholder, (4) a
reduction in the number of shares of Common Stock otherwise issuable upon the exercise of the
Option, (5) by any other form of consideration permitted by law, but in no event shall a promissory
note or other form of deferred payment constitute a permissible form of consideration for an Option
granted under the Plan, or (6) by some combination of the foregoing. In the absence of a provision
to the contrary in the individual Optionholder’s Option Agreement, payment for Common Stock
pursuant to an Option may only be made in the form of cash, check, or pursuant to a “same day sale”
program.



     6.5 Transferability of an Incentive Stock Option. An Incentive Stock 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. Notwithstanding the foregoing,
the Optionholder may, by delivering written notice to the Company, in a form 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.



     6.6 Transferability of a Nonstatutory Stock Option. A Nonstatutory Stock Option shall
be transferable to the extent provided in the Option Agreement. If the Nonstatutory Stock Option
does not provide for transferability, then the Nonstatutory Stock 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. Notwithstanding the foregoing, the
Optionholder may, by delivering written notice to the Company, in a form 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.



     6.7 Vesting Generally. Options granted under the Plan shall be exercisable at such
time and upon such terms and conditions as may be determined by the Board. The vesting provisions
of individual Options may vary. If vesting is based on the Participant’s Continuous Service, such
Options shall not fully vest in less than three (3) years. If vesting is based on the achievement
of performance criteria, such Options shall not fully vest in less than one (1) year. The
provisions of this Section 6.7 are subject to any Option provisions governing the minimum number of
shares of Common Stock as to which an Option may be exercised. Notwithstanding the foregoing
provisions of this Section 6.7, Options granted in recognition of a Participant’s long-term
Continuous Service may vest fully in periods shorter than those described above or may be fully
vested upon grant.



11









 





     6.8 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 such
Option as of the date of termination) but only within such period of time as is specified in the
Option Agreement (and in no event later than the expiration of the term of such 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. In the
absence of a provision to the contrary in the individual Optionholder’s Option Agreement, the
Option shall remain exercisable for three (3) months following the termination of the
Optionholder’s Continuous Service.



     6.9 Extension of Termination Date. An Optionholder’s Option Agreement may also provide
that 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 of Common Stock would violate the registration requirements
under the Securities Act or other applicable securities law, then the Option shall terminate on the
earlier of (i) the expiration of the term of the Option 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 or other applicable securities law. The provisions of this Section 6.9
notwithstanding, in the event that a sale of the shares of Common Stock received upon exercise of
his or her Option would subject the Optionholder to liability under Section 16(b) of the Exchange
Act, then the Option will terminate on the earlier of (1) the fifteenth (15th) day after
the last date upon which such sale would result in liability, or (2) two hundred ten (210) days
following the date of termination of the Optionholder’s employment or other service to the Company
(and in no event later than the expiration of the term of the Option).



     6.10 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 such Option as of the
date of termination, but only within such period of time as is specified in the Option Agreement
(and in no event later than the expiration of the term of such 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. In the absence of a provision
to the contrary in the individual Optionholder’s Option Agreement, the Option shall remain
exercisable for twelve (12) months following such termination.



     6.11 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 period
(if any) specified in the Option Agreement 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 pursuant to Section 6.5 or
6.6 of the Plan, but only within such period of time as is specified in the Option Agreement (and
in no event later than 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



12









 




specified in the Option Agreement, the Option shall terminate. In the absence of a provision
to the contrary in the individual Optionholder’s Option Agreement, the Option shall remain
exercisable for twelve (12) months following the Optionholder’s death.




     6.12 Early Exercise Generally Not Permitted. The Company’s general policy is not to
allow the Optionholder to exercise the Option as to any part or all of the shares of Common Stock
subject to the Option prior to the vesting of the Option. If, however, an Option Agreement does
permit such early exercise, any unvested shares of Common Stock so purchased may be subject to a
repurchase option in favor of the Company or to any other restriction the Board determines to be
appropriate.



VII. NON-DISCRETIONARY STOCK AWARDS FOR ELIGIBLE
DIRECTORS




     In addition to any other Stock Awards that Eligible Directors may be granted on a
discretionary basis under the Plan, which Stock Awards may only be granted by a Committee comprised
solely of Non-Employee Directors, each Eligible Director of the Company shall be automatically
granted without the necessity of action by the Board, the following Stock Awards.



     7.1 Initial Grant. On the date that a Director commences service on the Board and
satisfies the definition of an Eligible Director, an initial grant of restricted stock in the form
of a Restricted Stock Bonus award or an award of Restricted Stock Units shall automatically be made
to that Eligible Director (the “Initial Grant”). Unless expressly provided in this Article VII,
such Initial Grant shall be subject to the applicable provisions of Section 8.1 or Section 8.5, as
the case may be. In the absence of an affirmative decision by the Board to the contrary, the
Initial Grant shall be in the form of a Restricted Stock Bonus award. The number of shares subject
to this Initial Grant shall be Seven Thousand (7,000) shares; provided, however, that prior to the
date of grant the Board may, in its sole discretion, provide that a different number of shares
shall be subject to this Initial Grant. The other terms governing this Initial Grant shall be as
determined by the Board in its sole discretion. If at the time a Director commences service on the
Board, the Director does not satisfy the definition of an Eligible Director, such Director shall
not be entitled to an Initial Grant at any time, even if such Director subsequently becomes an
Eligible Director.



     7.2 Annual Grant. An annual grant of restricted stock in the form of a Restricted
Stock Bonus award or an award of Restricted Stock Units (the “Annual Grant”) shall automatically be
made to each Director who (1) is re-elected to the Board and (2) is an Eligible Director on the
relevant grant date. Unless expressly provided in this Article VII, such Annual Grant shall be
subject to the applicable provisions of Section 8.1 or Section 8.5, as the case may be. In the
absence of an affirmative decision by the Board to the contrary, the Annual Grant shall be in the
form of a Restricted Stock Bonus award. The number of shares subject to this Annual Grant shall be
Five Thousand (5,000) shares. The other terms governing this Annual Grant shall be as determined by
the Board in its sole discretion. The date of grant of an Annual Grant is the date of the first
meeting of the Board following the annual meeting of the Company’s shareholders (even if that Board
meeting is held on the same day as the annual meeting of the shareholders).



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     7.3 Vesting. Initial Grants and Annual Grants granted pursuant to this Article shall
be subject to a share reacquisition right in favor of the Company. Such grants shall vest as to one
fourth (1/4) of the total award annually, such that the award is fully vested after four (4) years
of Continuous Service. In the event a Director’s Continuous Service terminates, the Company shall
automatically reacquire without cost any shares of Common Stock held by the Director that have not
vested as of the date of such termination and any unvested Restricted Stock Units shall
automatically expire as of the date of such termination.



VIII. PROVISIONS OF STOCK AWARDS OTHER THAN OPTIONS




     8.1 Restricted Stock Bonus Awards. Each Restricted Stock Bonus agreement shall be in
such form and shall contain such terms and conditions as the Board shall deem appropriate.
Restricted Stock Bonuses shall be paid by the Company in shares of the Common Stock of the Company.
The terms and conditions of Restricted Stock Bonus agreements may change from time to time, and the
terms and conditions of separate Restricted Stock Bonus agreements need not be identical, but each
Restricted Stock Bonus agreement shall include (through incorporation of provisions hereof by
reference in the agreement or otherwise) the substance of each of the following provisions:




          (i) Consideration. A Restricted Stock Bonus may be awarded in consideration for past
services actually rendered to the Company or an Affiliate for its benefit; provided, however, that
in the case of a Restricted Stock Bonus to be made to a new Employee, Director, or Consultant who
has not performed prior services for the Company, the Restricted Stock Bonus will not be awarded
until the Board determines that such person has rendered services to the Company for a sufficient
period of time to ensure proper issuance of the shares in compliance with the California
Corporations Code.




          (ii) Vesting. Vesting shall generally be based on the Participant’s Continuous
Service. Shares of Common Stock awarded under the Restricted Stock Bonus agreement shall be subject
to a share reacquisition right in favor of the Company in accordance with a vesting schedule to be
determined by the Board. Absent a provision to the contrary in the Participant’s Restricted Stock
Bonus agreement, so long as the Participant remains in Continuous Service with the Company, a
Restricted Stock Bonus granted to the Participant shall vest as to one fourth (1/4) of the total
Restricted Stock Bonus award on each annual anniversary of the grant date, such that the Restricted
Stock Bonus is fully vested after four (4) years of Continuous Service from the grant date. If
vesting is based on the Participant’s Continuous Service, such Restricted Stock Bonus shall not
fully vest in less than three (3) years. If vesting is based on the achievement of performance
criteria, such Restricted Stock Bonus shall not fully vest in less than one (1) year.
Notwithstanding the foregoing provisions of this Section 8.1(ii), a Restricted Stock Bonus granted
in recognition of a Participant’s long-term Continuous Service may vest fully in periods shorter
than those described above or may be fully vested upon grant (“Accelerated Vesting Restricted Stock
Bonuses”), subject to provisions of the last sentence of Section 4.1.




          (iii) Termination of Participant’s Continuous Service. In the event a Participant’s
Continuous Service terminates, the Company shall automatically reacquire without cost any or all of
the shares of Common Stock held by the Participant that have not vested as of the date of
termination under the terms of the Restricted Stock Bonus agreement.







14









 








          (iv) Transferability. Rights to acquire shares of Common Stock under the Restricted
Stock Bonus agreement shall be transferable by the Participant only upon such terms and conditions
as are set forth in the Restricted Stock Bonus agreement, as the Board shall determine in its
discretion, so long as Common Stock awarded under the Restricted Stock Bonus agreement remains
subject to the terms of the Restricted Stock Bonus agreement.




     8.2 Restricted Stock Purchase Awards. Each Restricted Stock Purchase Right agreement
shall be in such form and shall contain such terms and conditions as the Board shall deem
appropriate. The terms and conditions of the Restricted Stock Purchase Right agreements may change
from time to time, and the terms and conditions of separate Restricted Stock Purchase Right
agreements need not be identical, but each Restricted Stock Purchase Right agreement shall include
(through incorporation of provisions hereof by reference in the agreement or otherwise) the
substance of each of the following provisions:



          (i) Purchase Price. The purchase price under each Restricted Stock Purchase Right
agreement shall be such amount as the Board shall determine and designate in such Restricted Stock
Purchase Right agreement. The purchase price shall not be less than one hundred percent (100%) of
the Common Stock’s Fair Market Value on the date such award is made or at the time the purchase is
consummated.



          (ii) Consideration. The purchase price of Common Stock acquired pursuant to the
Restricted Stock Purchase Right agreement shall be paid either: (A) in cash or by check at the time
of purchase; or (B) at the discretion of the Board, according to a deferred payment or other
similar arrangement with the Participant to the extent permitted by law.




          (iii) Vesting. The Board shall determine the criteria under which shares of Common
Stock under the Restricted Stock Purchase Right agreement may vest; the criteria may or may not
include performance criteria or Continuous Service. Shares of Common Stock acquired under the
Restricted Stock Purchase Right agreement may, but need not, be subject to a share repurchase
option in favor of the Company in accordance with a vesting schedule to be determined by the Board.




          (iv) Termination of Participant’s Continuous Service. In the event a Participant’s
Continuous Service terminates, the Company may repurchase any or all of the shares of Common Stock
held by the Participant that have not vested as of the date of termination under the terms of the
Restricted Stock Purchase Right agreement.




          (v) Transferability. Rights to acquire shares of Common Stock under the Restricted
Stock Purchase Right agreement shall be transferable by the Participant only upon such terms and
conditions as are set forth in the Restricted Stock Purchase Right agreement, as the Board shall
determine in its discretion, so long as Common Stock awarded under the Restricted Stock Purchase
Right agreement remains subject to the terms of the Restricted Stock Purchase Right agreement.




          (vi) Term. No Restricted Stock Purchase Right shall be exercisable after the
expiration of ten (10) years from the date it was granted.




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     8.3 Stock Appreciation Rights. Two types of Stock Appreciation Rights (“SARs”) shall
be authorized for issuance under the Plan: (1) stand-alone SARs and (2) stapled SARs.



          (i) Stand-Alone SARs. The following terms and conditions shall govern the grant and
redeemability of stand-alone SARs:




     (A) The stand-alone SAR shall cover a specified number of underlying shares of Common Stock
and shall be redeemable upon such terms and conditions as the Board may establish. Upon redemption
of the stand-alone SAR, the holder shall be entitled to receive a distribution from the Company in
an amount equal to the excess of (i) the aggregate Fair Market Value (on the redemption date) of
the shares of Common Stock underlying the redeemed right over (ii) the aggregate base price in
effect for those shares.



     (B) The number of shares of Common Stock underlying each stand-alone SAR and the base price in
effect for those shares shall be determined by the Board in its sole discretion at the time the
stand-alone SAR is granted. In no event, however, may the base price per share be less than one
hundred percent (100%) of the Fair Market Value per underlying share of Common Stock on the grant
date.



     (C) The distribution with respect to any redeemed stand-alone SAR may be made in shares of
Common Stock valued at Fair Market Value on the redemption date, in cash, or partly in shares and
partly in cash, as the Board shall in its sole discretion deem appropriate.



          (ii) Stapled SARs. The following terms and conditions shall govern the grant and
redemption of stapled SARs:




     (A) Stapled SARs may only be granted concurrently with an Option to acquire the same number of
shares of Common Stock as the number of such shares underlying the stapled SARs.



     (B) Stapled SARs shall be redeemable upon such terms and conditions as the Board may establish
and shall grant a holder the right to elect among (i) the exercise of the concurrently granted
Option for shares of Common Stock, whereupon the number of shares of Common Stock subject to the
stapled SARs shall be reduced by an equivalent number, (ii) the redemption of such stapled SARs in
exchange for a distribution from the Company in an amount equal to the excess of the Fair Market
Value (on the redemption date) of the number of vested shares which the holder redeems over the
aggregate base price for such vested shares, whereupon the number of shares of Common Stock subject
to the concurrently granted Option shall be reduced by any equivalent number, or (iii) a
combination of (i) and (ii).



     (C) The distribution to which the holder of stapled SARs shall become entitled under this
Section 8 upon the redemption of stapled SARs as described in Section 8.3(ii)(B) above may be made
in shares of Common Stock valued at Fair Market Value on the redemption date, in cash, or partly in
shares and partly in cash, as the Board shall in its sole discretion deem appropriate.



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







16









 








     8.4 Phantom Stock Units. The following terms and conditions shall govern the grant and
redeemability of Phantom Stock Units:



          (i) Phantom Stock Unit awards shall be redeemable by the Participant upon such terms and
conditions as the Board may establish. The value of a single Phantom Stock Unit shall be equal to
the Fair Market Value of a share of Common Stock, unless the Board otherwise provides in the terms
of the Stock Award Agreement.




          (ii) The distribution with respect to any exercised Phantom Stock Unit award may be made in
shares of Common Stock valued at Fair Market Value on the redemption date, in cash, or partly in
shares and partly in cash, as the Board shall in its sole discretion deem appropriate.




     8.5 Restricted Stock Units. The following terms and conditions shall govern the grant
and redeemability of Restricted Stock Units:



     A Restricted Stock Unit is the right to receive the value of one (1) share of the Company’s
Common Stock at the time the Restricted Stock Unit vests. To the extent permitted by the Board in
the terms of his or her Restricted Stock Unit agreement, a Participant may elect to defer receipt
of the value of the shares of Common Stock otherwise deliverable upon the vesting of an award of
Restricted Stock Units, so long as such deferral election complies with applicable law, including
Section 409A of the Code and, to the extent applicable, the Employee Retirement Income Security Act
of 1974, as amended (“ERISA”). An election to defer such delivery shall be irrevocable and shall be
made in writing on a form acceptable to the Company. The election form shall be filed prior to the
vesting date of such Restricted Stock Units in a manner determined by the Board. When the
Participant vests in such Restricted Stock Units, the Participant will be credited with a number of
Restricted Stock Units equal to the number of shares of Common Stock for which delivery is
deferred. Restricted Stock Units may be paid by the Company by delivery of shares of Common Stock,
in cash, or a combination thereof, as the Board shall in its sole discretion deem appropriate, in
accordance with the timing and manner of payment elected by the Participant on his or her election
form, or if no deferral election is made, as soon as administratively practicable following the
vesting of the Restricted Stock Unit.



     Each Restricted Stock Unit agreement shall be in such form and shall contain such terms and
conditions as the Board shall deem appropriate. The terms and conditions of Restricted Stock Unit
agreements may change from time to time, and the terms and conditions of separate Restricted Stock
Unit agreements need not be identical, but each Restricted Stock Unit agreement shall include
(through incorporation of provisions hereof by reference in the agreement or otherwise) the
substance of each of the following provisions:



          (i) Consideration. A Restricted Stock Unit may be awarded in consideration for past
services actually rendered to the Company or an Affiliate for its benefit. The Board shall have the
discretion to provide that the Participant pay for such Restricted Stock Unit with cash or other
consideration permissible by law.




          (ii) Vesting. Vesting shall generally be based on the Participant’s Continuous
Service. If vesting is based on the Participant’s Continuous Service, such Restricted Stock Unit






17









 







award shall not fully vest in less than three (3) years. If vesting is based on the
achievement of performance criteria, such Restricted Stock Unit award shall not fully vest in less
than one (1) year. Notwithstanding the foregoing provisions of this Section 8.5(ii), a Restricted
Stock Unit granted in recognition of a Participant’s long-term Continuous Service may vest fully in
periods shorter than those described above (“Accelerated Vesting Restricted Stock Units”), subject
to provisions of the last sentence of Section 4.1.




          (iii) Termination of Participant’s Continuous Service. The unvested portion of the
Restricted Stock Unit award shall expire immediately upon the termination of Participant’s
Continuous Service.




          (iv) Transferability. Rights to acquire the value of shares of Common Stock under the
Restricted Stock Unit agreement shall be transferable by the Participant only upon such terms and
conditions as are set forth in the Restricted Stock Unit agreement, as the Board shall determine in
its discretion, so long as any Common Stock awarded under the Restricted Stock Unit agreement
remains subject to the terms of the Restricted Stock Unit agreement.




     8.6 Performance Share Bonus Awards. Each Performance Share Bonus agreement shall be in
such form and shall contain such terms and conditions as the Board shall deem appropriate.
Performance Share Bonuses shall be paid by the Company in shares of the Common Stock of the
Company. The terms and conditions of Performance Share Bonus agreements may change from time to
time, and the terms and conditions of separate Performance Share Bonus agreements need not be
identical, but each Performance Share Bonus agreement shall include (through incorporation of
provisions hereof by reference in the agreement or otherwise) the substance of each of the
following provisions:



          (i) Consideration. A Performance Share Bonus may be awarded in consideration for past
services actually rendered to the Company or an Affiliate for its benefit. In the event that a
Performance Share Bonus is granted to a new Employee, Director, or Consultant who has not performed
prior services for the Company, the Performance Share Bonus will not be awarded until the Board
determines that such person has rendered services to the Company for a sufficient period of time to
ensure proper issuance of the shares in compliance with the California Corporations Code.




          (ii) Vesting. Vesting shall be based on the achievement of certain performance
criteria, whether financial, transactional or otherwise, as determined by the Board. A Performance
Share Bonus shall not fully vest in less than one (1) year. Vesting shall be subject to the
Performance Share Bonus agreement. Upon failure to meet performance criteria, shares of Common
Stock awarded under the Performance Share Bonus agreement shall be subject to a share reacquisition
right in favor of the Company in accordance with a vesting schedule to be determined by the Board.




          (iii) Termination of Participant’s Continuous Service. In the event a Participant’s
Continuous Service terminates, the Company shall reacquire any or all of the shares of Common Stock
held by the Participant that have not vested as of the date of termination under the terms of the
Performance Share Bonus agreement.







18









 








          (iv) Transferability. Rights to acquire shares of Common Stock under the Performance
Share Bonus agreement shall be transferable by the Participant only upon such terms and conditions
as are set forth in the Performance Share Bonus agreement, as the Board shall determine in its
discretion, so long as Common Stock awarded under the Performance Share Bonus agreement remains
subject to the terms of the Performance Share Bonus agreement.




     8.7 Performance Share Units. The following terms and conditions shall govern the grant
and redeemability of Performance Share Units:



     A Performance Share Unit is the right to receive the value of one (1) share of the Company’s
Common Stock at the time the Performance Share Unit vests. To the extent permitted by the Board in
the terms of his or her Performance Share Unit agreement, a Participant may elect to defer receipt
of the value of shares of Common Stock otherwise deliverable upon the vesting of an award of
performance shares. An election to defer such delivery shall be irrevocable and shall be made in
writing on a form acceptable to the Company. The election form shall be filed prior to the vesting
date of such performance shares in a manner determined by the Board. When the Participant vests in
such performance shares, the Participant will be credited with a number of Performance Share Units
equal to the number of shares of Common Stock for which delivery is deferred. Performance Share
Units may be paid by the Company by delivery of shares of Common Stock, in cash, or a combination
thereof, as the Board shall in its sole discretion deem appropriate, in accordance with the timing
and manner of payment elected by the Participant on his or her election form, or if no deferral
election is made, as soon as administratively practicable following the vesting of the Performance
Share Unit.



     Each Performance Share Unit agreement shall be in such form and shall contain such terms and
conditions as the Board shall deem appropriate. The terms and conditions of Performance Share Unit
agreements may change from time to time, and the terms and conditions of separate Performance Share
Unit agreements need not be identical, but each Performance Share Unit agreement shall include
(through incorporation of provisions hereof by reference in the agreement or otherwise) the
substance of each of the following provisions:



          (i) Consideration. A Performance Share Unit may be awarded in consideration for past
services actually rendered to the Company or an Affiliate for its benefit. The Board shall have the
discretion to provide that the Participant pay for such Performance Share Unit with cash or other
consideration permissible by law.




          (ii) Vesting. Vesting shall be based on the achievement of certain performance
criteria, whether financial, transactional or otherwise, as determined by the Board. Vesting shall
be subject to the Performance Share Unit agreement. The terms of the Performance Share Unit
agreement notwithstanding, a Performance Share Unit may not fully vest in less than one (1) year.




          (iii) Termination of Participant’ Continuous Service. The unvested portion of any
Performance Share Unit shall expire immediately upon the termination of Participant’s Continuous
Service.







19









 








          (iv) Transferability. Rights to acquire the value of shares of Common Stock under the
Performance Share Unit agreement shall be transferable by the Participant only upon such terms and
conditions as are set forth in the Performance Share Unit agreement, as the Board shall determine
in its discretion, so long as Common Stock awarded under the Performance Share Unit agreement
remains subject to the terms of the Performance Share Unit agreement.




IX. COVENANTS OF THE COMPANY




     9.1 Availability of Shares. During the term of the Stock Awards, the Company shall
keep available at all times the number of shares of Common Stock required to satisfy such Stock
Awards.



     9.2 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
Stock Awards and to issue and sell shares of Common Stock upon exercise, redemption or satisfaction
of the Stock Awards; provided, however, that this undertaking shall not require the Company to
register under the Securities Act the Plan or any Stock Award or any Common Stock issued or
issuable pursuant to any such Stock Award. 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 Common Stock under the Plan, the Company shall
be relieved from any liability for failure to issue and sell Common Stock related to such Stock
Awards unless and until such authority is obtained.



X. USE OF PROCEEDS FROM STOCK




     Proceeds from the sale of Common Stock pursuant to Stock Awards shall constitute general funds
of the Company.



XI. NO REPRICING WITHOUT SHAREHOLDER APPROVAL




     11.1 Subject to approval by the Company’s shareholders, the Board shall have the authority to
effect, at any time and from time to time, (i) the repricing of any outstanding Options under the
Plan and/or (ii) with the consent of the affected Optionholders, the cancellation of any
outstanding Options under the Plan and the grant in substitution therefor of new Stock Awards under
the Plan, including new Options covering the same or different number of shares of Common Stock,
but having an exercise price per share not less than one hundred percent (100%) of the Fair Market
Value or, in the case of a Ten Percent Shareholder (as described in Section 5.2 of the Plan), not
less than one hundred ten percent (110%) of the Fair Market Value) per share of Common Stock on the
new grant date. Notwithstanding the foregoing, the Board may grant an Option with an exercise price
lower than that set forth above if such Option is granted as part of a transaction to which Section
424(a) of the Code applies.



     11.2 Shares subject to an Option cancelled under this Section 11 shall continue to be counted
against the maximum award of Options permitted to be granted pursuant to Section 5.3 of the Plan.
The repricing of an Option under this Section 11, resulting in a reduction of the exercise price,
shall be deemed to be a cancellation of the original Option and the grant of a substitute Option;
in the event of such repricing, both the original and the substituted Options shall be counted
against the maximum awards of Options permitted to be granted pursuant to



20









 




Section 5.3 of the Plan. The provisions of this Section 11.2 shall be applicable only to the
extent required by Section 162(m) of the Code.




XII. MISCELLANEOUS




     12.1 Acceleration of Exercisability and Vesting. The Board (or Committee, if so
authorized by the Board) shall have the power to accelerate exercisability and/or vesting of any
Stock Award granted pursuant to the Plan upon a Change of Control or upon the death, Disability or
termination of Continuous Service of the Participant. In furtherance of such power, the Board or
Committee may accelerate the time at which a Stock Award may first be exercised or the time during
which a Stock Award or any part thereof will vest in accordance with the Plan, notwithstanding any
provisions in the Stock Award Agreement to the contrary.



     12.2 Shareholder Rights. No Participant 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 a Stock
Award except to the extent that the Company has issued the shares of Common Stock relating to such
Stock Award.



     12.3 No Employment or Other Service Rights. Nothing in the Plan or any instrument
executed or Stock Award granted pursuant thereto shall confer upon any Participant any right to
continue to serve the Company or an Affiliate in the capacity in effect at the time the Stock Award
was granted 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, and any applicable
provisions of the corporate law of the state or other jurisdiction in which the Company is
domiciled, as the case may be.



     12.4 Incentive Stock Option $100,000 Limitation. To the extent that the aggregate Fair
Market Value (determined at the time of grant) of Common Stock with respect to which Incentive
Stock Options are exercisable for the first time by any Optionholder during any calendar year
(under all plans of the Company and its Affiliates) exceeds One Hundred Thousand dollars
($100,000), or such other limit as may be set by law, the Options or portions thereof which exceed
such limit (according to the order in which they were granted) shall be treated as Nonstatutory
Stock Options.



     12.5 Investment Assurances. The Company may require a Participant, as a condition of
exercising or redeeming a Stock Award or acquiring Common Stock under any Stock Award, (i) to give
written assurances satisfactory to the Company as to the Participant’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 acquiring the Common Stock; (ii) to give written assurances satisfactory to the
Company stating that the Participant is acquiring Common Stock subject to the Stock Award for the
Participant’s own account and not with any present intention of selling or otherwise distributing
the Common Stock; and (iii) to give such other written assurances as the Company may determine are
reasonable in order to comply with applicable



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law. The foregoing requirements, and any assurances given pursuant to such requirements, shall
be inoperative if (1) the issuance of the shares of Common Stock under the Stock Award has been
registered under a then currently effective registration statement under the Securities Act or (2)
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, and in
either case otherwise complies with applicable law. 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 laws, including, but not limited to, legends
restricting the transfer of the Common Stock.




     12.6 Withholding Obligations. To the extent provided by the terms of a Stock Award
Agreement, the Participant may satisfy any federal, state, local, or foreign tax withholding
obligation relating to the exercise or redemption of a Stock Award or the acquisition, vesting,
distribution, or transfer of Common Stock under a Stock Award by any of the following means (in
addition to the Company’s right to withhold from any compensation or other amounts payable to the
Participant by the Company) or by a combination of such means: (i) tendering a cash payment; (ii)
authorizing the Company to withhold shares of Common Stock from the shares of Common Stock
otherwise issuable to the Participant, 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 unnumbered shares of Common Stock.



     12.7 Section 409A. Notwithstanding anything in the Plan to the contrary, it is the
intent of the Company that all Stock Awards granted under this Plan (including, but not limited to,
Restricted Stock Units, Phantom Stock Units, and Performance Share Units) shall not cause an
imposition of the additional taxes provided for in Section 409A(a)(1)(B) of the Code; furthermore,
it is the intent of the Company that the Plan shall be administered so that the additional taxes
provided for in Section 409A(a)(1)(B) of the Code are not imposed.



XIII. ADJUSTMENTS UPON CHANGES IN STOCK




     13.1 Capitalization Adjustments. If any change is made in the Common Stock subject to
the Plan, or subject to any Stock Award, without the receipt of consideration by the Company
(through merger, consolidation, reorganization, recapitalization, reincorporation, stock dividend,
spinoff, dividend in property other than cash, stock split, liquidating dividend, extraordinary
dividends or distributions, combination of shares, exchange of shares, change in corporate
structure or other transaction not involving the receipt of consideration by the Company), the Plan
shall be equitably adjusted in the class(es) and maximum number of securities subject to the Plan
pursuant to Section 4.1 above, the maximum number of securities subject to award to any person
pursuant to Section 5.3 above, and the number of securities subject to Initial Grants and Annual
Grants to Eligible Directors under Article VII of the Plan, and the outstanding Stock Awards shall
be equitably adjusted in the class(es) and number of securities or other property and price per
share of the securities or other property subject to such outstanding Stock Awards. The Board shall
determine the form of such adjustments in its sole discretion, 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.)



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     13.2 Adjustments Upon a Change of Control.



          (i) In the event of a Change of Control as defined in Section 2.4(i) through 2.4(iv), such as
an asset sale, merger, or change in Board composition, then the Board or the board of directors of
any surviving entity or acquiring entity may provide or require that the surviving or acquiring
entity shall: (1) assume or continue all or any part of the Stock Awards outstanding under the Plan
or (2) substitute substantially equivalent stock or cash-based awards (including an award to
acquire substantially the same consideration paid to the shareholders in the transaction by which
the Change of Control occurs) for those outstanding under the Plan. In the event any surviving
entity or acquiring entity refuses to assume or continue such Stock Awards or to substitute similar
stock awards for those outstanding under the Plan, then with respect to Stock Awards held by
Participants whose Continuous Service has not terminated, the Board in its sole discretion and
without liability to any person may: (1) provide for the payment of a cash amount in exchange for
the cancellation of a Stock Award equal to the product of (x) the excess, if any, of the Fair
Market Value per share of Common Stock at such time over the exercise or redemption price, if any,
times (y) the total number of shares then subject to such Stock Award; (2) continue the
Stock Awards; or (3) notify Participants holding an Option, Stock Appreciation Right, Phantom Stock
Unit, Restricted Stock Unit or Performance Share Unit that they must exercise or redeem any portion
of such Stock Award (including, at the discretion of the Board, any unvested portion of such Stock
Award) at or prior to the closing of the transaction by which the Change of Control occurs and that
the Stock Awards shall terminate if not so exercised or redeemed at or prior to the closing of the
transaction by which the Change of Control occurs. With respect to any other Stock Awards
outstanding under the Plan, such Stock Awards shall terminate if not exercised or redeemed prior to
the closing of the transaction by which the Change of Control occurs. The Board shall not be
obligated to treat all Stock Awards, even those that are of the same type, in the same manner.




          (ii) In the event of a Change of Control as defined in Section 2.4(v), such as a dissolution
of the Company, all outstanding Stock Awards shall terminate immediately prior to such event.




XIV. AMENDMENT OF THE PLAN AND STOCK AWARDS




     14.1 Amendment of Plan. The Board at any time, and from time to time, may amend the
Plan. However, except as provided in Section 13 of the Plan relating to adjustments upon changes in
Common Stock, no amendment shall be effective unless approved by the shareholders of the Company to
the extent shareholder approval is necessary to satisfy the requirements of Section 422 of the
Code, any New York Stock Exchange, Nasdaq or other securities exchange listing requirements, or
other applicable law or regulation.



     14.2 Shareholder Approval. The Board may, in its sole discretion, submit any other
amendment to the Plan for shareholder approval, including, but not limited to, amendments to the
Plan intended to satisfy the requirements of Section 162(m) of the Code and the regulations
thereunder regarding the exclusion of performance-based compensation from the limit on corporate
deductibility of compensation paid to certain executive officers.



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     14.3 Contemplated Amendments. It is expressly contemplated that the Board may amend
the Plan in any respect the Board deems necessary or advisable to provide eligible Employees with
the maximum benefits provided or to be provided under the provisions of the Code and the
regulations promulgated thereunder relating to Incentive Stock Options and/or to bring the Plan
and/or Incentive Stock Options granted under it into compliance therewith.



     14.4 No Material Impairment of Rights. Rights under any Stock Award granted before
amendment of the Plan shall not be materially impaired by any amendment of the Plan unless (i) the
Company requests the consent of the Participant and (ii) the Participant consents in writing.



     14.5 Amendment of Stock Awards. The Board at any time, and from time to time, may
amend the terms of any one or more Stock Awards subject to and consistent with the terms of the
Plan, including Sections 14.1 and 14.2; provided, however, that the rights of the Participant under
any Stock Award shall not be materially impaired by any such amendment unless (i) the Company
requests the consent of the Participant and (ii) the Participant consents in writing.



XV. TERMINATION OR SUSPENSION OF THE PLAN




     15.1 Plan Term. The Board may suspend or terminate the Plan at any time. Unless sooner
terminated, the Plan shall terminate on the day before the tenth (10th) anniversary of
the date that the Plan is approved by the shareholders of the Company, as the adoption of the Plan
by the Board is conditioned upon such shareholder approval. No Stock Awards may be granted under
the Plan while the Plan is suspended or after it is terminated.



     15.2 No Material Impairment of Rights. Suspension or termination of the Plan shall not
materially impair rights and obligations under any Stock Award granted while the Plan is in effect
except with the written consent of the Participant.



XVI. EFFECTIVE DATE OF PLAN




     The Plan shall become effective immediately following its approval by the shareholders of the
Company, which approval shall be within twelve (12) months before or after the date the Plan is
adopted by the Board. If the Plan is approved by the shareholders of the Company, the 1997 Plan,
the 1996 Plan, and the Directors 1996 Plan shall terminate on the effective date of the Plan. If
the Plan is not approved by the shareholders of the Company, the 1997 Plan, the 1996 Plan, and the
Directors 1996 Plan shall continue unaffected. No Stock Awards may be granted under the Plan prior
to the time that the shareholders have approved the Plan.



XVII. CHOICE OF LAW




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




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