Exhibit 10.20


 


ICO GLOBAL
COMMUNICATIONS (HOLDINGS) LIMITED


 


AMENDED AND
RESTATED


 


2000 STOCK
INCENTIVE PLAN


 


SECTION 1. PURPOSE


 


The purpose of the ICO Global Communications
(Holdings) Limited Amended and Restated 2000 Stock Incentive Plan (the “Plan”)
is to enhance the long-term stockholder value of New ICO Global Communications
(Holdings) Limited, a Delaware corporation (the “Company”), by offering
opportunities to selected persons to participate in the Company’s growth and
success, and to encourage them to remain in the service of the Company and its
Related Corporations (as defined in Section 2) and to acquire and maintain
stock ownership in the Company.


 


SECTION 2. DEFINITIONS


 


For purposes of the Plan, the following terms
shall be defined as set forth below:


 


“Acquired Entity” has
the meaning set forth in Section 6.3.


 


“Acquisition Transaction” has
the meaning set forth in Section 6.3.


 


“Award” means an
award or grant made pursuant to the Plan, including awards or grants of Stock
Options, Awards, or any combination of the foregoing.


 


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


 


“Cause” means dismissal for willful material misconduct or
failure to discharge duties, conviction or confession of a crime punishable by
law (except minor violations), the performance of an illegal act while
purporting to act in the Company’s behalf, or engaging in activities directly
in competition or antithetical to the best interests of the Company, such as dishonesty,
fraud, unauthorized use or disclosure of confidential information or trade
secrets, in each case as determined by the Plan Administrator, and its
determination shall be conclusive and binding.


 


“Code” means the
Internal Revenue Code of 1986, as amended from time to time.


 


“Common Stock” means
the common stock, par value $.01 per share, of the Company.


 


“Corporate Transaction”
means any of the following events:


 


(a)                                  Consummation of any
merger or consolidation of the Company with or into another corporation,
including a COM Affiliate;


 


(b)                                 Consummation of any
sale, lease, exchange or other transfer in one transaction or a series of
related transactions of all or substantially all the Company’s outstanding
securities or


 

















 


substantially all the Company’s assets other than a transfer of the
Company’s assets to a majority-owned subsidiary corporation (as defined in Section 8.3)
of the Company or a COM Affiliate; or


 


(c)                                  After
the initial registration of the Common Stock under Section 12(b) or
12(g) of the Exchange Act, any acquisition by a person, other than Craig
O. McCaw or a COM Affiliate, within the meaning of Section 3(a)(9) or
of Section 13(d)(3) (as in effect on the date of adoption of the
Plan) of the Exchange Act of a majority or more of the Company’s outstanding
voting securities (whether directly or indirectly, beneficially or of record).
Ownership of voting securities shall take into account and shall include
ownership as determined by applying Rule 13d-3(d)(1)(i) (as in effect
on the date of adoption of the Plan) under the Exchange Act.


 


For purposes of this definition, a “COM
Affiliate” shall mean any entity which Craig O. McCaw or Eagle River
Investments LLC (“Eagle River”) controls directly or indirectly through one or
more intermediaries. For purposes of this definition, an entity shall be deemed
to be controlled by Craig O. McCaw or Eagle River if (and only for so long
as) (x) Craig O. McCaw or Eagle River has the right to vote by
ownership, proxy or otherwise securities constituting 5% or more of the voting
power of such entity if such entity has equity securities registered and files
reports under the Exchange Act, as amended, or otherwise owns securities
constituting 50% or more of the voting power of such entity (if not reporting);
(y)  Craig O. McCaw or Eagle River
possesses, directly or indirectly, the power to direct or cause the direction
of the management and policies of such entity, whether through the ownership of
voting securities, by contract or otherwise; or (z) with respect to a
charitable trust, foundation or nonprofit corporation, Craig O. McCaw or
Eagle River is the sole trustee or director or has the power to appoint a
majority of the trustees or directors thereof. Notwithstanding the foregoing,
the following shall be deemed COM Affiliates: New Satco Holdings, Inc.,
Teledesic Corporation, Teledesic LLC, Teledesic Holdings Limited, Nextel
Communications, Inc. and NEXTLINK Communications, Inc.


 


“Disability,” unless otherwise defined by the Plan Administrator, means
a mental or physical impairment of the Participant that is expected to result
in death or that has lasted or is expected to last for a continuous period of
12 months or more and that causes the Participant to be unable, in the opinion
of the Plan Administrator, to perform his or her duties for the Company or
a Related Corporation and to be engaged in any substantial gainful activity.


 


“Early Retirement”
means termination of service prior to Retirement on terms and conditions
approved by the Plan Administrator.


 


“Effective Date” has
the meaning set forth in Section 17.


 


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


 


“Fair Market Value”
shall be as established in good faith by the Plan Administrator or (a) if
the Common Stock is listed on the Nasdaq National Market, the closing sales
price for the Common Stock as reported by the Nasdaq National Market for a
single trading day or (b) if the Common Stock is listed on the New York
Stock Exchange or the American Stock Exchange, the closing sales price for the
Common Stock as such price is officially quoted in the composite tape of
transactions on such exchange for a single trading day. If there is no such
reported price for


 


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the Common Stock for the date in question, then such price on the last
preceding date for which such price exists shall be determinative of Fair
Market Value.


 


“Grant Date” means
the date on which the Plan Administrator completes the corporate action
relating to the grant of an Award and all conditions precedent to the grant
have been satisfied, provided that conditions to the exercisability or vesting
of Awards shall not defer the Grant Date.


 


“Incentive Stock Option” means
an Option to purchase Common Stock granted under Section 7 with the
intention that it qualify as an “incentive stock option” as that term is
defined in Section 422 of the Code.


 


“Nonqualified Stock Option” means
an Option to purchase Common Stock granted under Section 7 other than an
Incentive Stock Option.


 


“Option” means the
right to purchase Common Stock granted under Section 7.


 


“Option Term” has
the meaning set forth in Section 7.3.


 


“Participant” means (a) the
person to whom an Award is granted; (b) for a Participant who has died,
the personal representative of the Participant’s estate, the person(s) to whom
the Participant’s rights under the Award have passed by will or by the
applicable laws of descent and distribution, or the beneficiary designated in
accordance with Section 11; or (c) the person(s) to whom an Award has
been transferred in accordance with Section 11.


 


“Plan Administrator”
means the Board or any committee or committees designated by the Board to
administer the Plan under Section 3.1.


 


“Related Corporation”
means any entity that, directly or indirectly, is in control of, or is
controlled by, or under common control with the Company.


 


“Retirement” means
retirement on or after an individual’s normal retirement date under the Company’s
401(k) plan or other similar successor plan applicable to salaried employees,
unless otherwise defined by the Plan Administrator from time to time for
purposes of the Plan.


 


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


 


“Stock Award” means
an Award of shares of Common Stock or units denominated in Common Stock granted
under Section 9, the rights of ownership of which may be subject to
restrictions prescribed by the Plan Administrator.


 


“Successor Corporation”
has the meaning set forth in Section 12.3.


 


“Termination Date”
has the meaning set forth in Section 7.6.


 


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SECTION 3. ADMINISTRATION


 


3.1                               Plan
Administrator


 


The Plan shall be administered by the Board
and/or a committee or committees (which term includes subcommittees) appointed
by, and consisting of two or more
members of, the Board (a “Plan Administrator”). If and so long as the Common
Stock is registered under Section 12(b) or 12(g) of the Exchange
Act, the Board shall consider in selecting the members of any committee acting
as Plan Administrator, with respect to any persons subject or likely to become
subject to Section 16 of the Exchange Act, the provisions regarding (a) ”outside
directors” as contemplated by Section 162(m) of the Code and (b) ”nonemployee
directors” as contemplated by Rule 16b-3 under the Exchange Act.
Notwithstanding the foregoing, the Board may delegate the responsibility
for administering the Plan with respect to designated classes of eligible
persons to different committees consisting of one or more members of the Board,
subject to such limitations as the Board deems appropriate. Committee members
shall serve for such term as the Board may determine, subject to removal
by the Board at any time.


 


3.2                               Administration
and Interpretation by Plan Administrator


 


Except for the terms and conditions
explicitly set forth in the Plan, the Plan Administrator shall have exclusive
authority, in its discretion, to determine all matters relating to Awards under
the Plan, including the selection of individuals to be granted Awards, the type
of Awards, the number of shares of Common Stock subject to an Award, all terms,
conditions, restrictions and limitations, if any, of an Award and the terms of
any instrument that evidences the Award. The Plan Administrator shall also have
exclusive authority to interpret the Plan and the terms of any instrument
evidencing the Award and may from time to time adopt and change rules and
regulations of general application for the Plan’s administration. The Plan
Administrator’s interpretation of the Plan and its rules and regulations,
and all actions taken and determinations made by the Plan Administrator
pursuant to the Plan, shall be conclusive and binding on all parties involved
or affected. The Plan Administrator may delegate administrative duties to
such of the Company’s officers as it so determines.


 


SECTION 4. STOCK SUBJECT TO THE PLAN


 


4.1                               Authorized
Number of Shares


 


Subject to adjustment from time to time as
provided in Section 12.1, a maximum of 13,000,000 (1) shares of Common
Stock shall be available for issuance under the Plan.


 


Shares issued under the Plan shall be drawn
from authorized and unissued shares or shares now held or subsequently acquired
by the Company as treasury shares.


 






(1) Reflects 2-for-one stock dividend effective July 24,
2000.


 


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4.2                               Reuse
of Shares


 


Any shares of Common Stock that have been
made subject to an Award that cease to be subject to the Award (other than by
reason of exercise or settlement of the Award to the extent it is exercised for
or settled in vested and nonforfeitable shares) shall again be available for
issuance in connection with future grants of Awards under the Plan. In the
event shares issued under the Plan are reacquired by the Company pursuant to
any forfeiture or provision, right of repurchase or right of first refusal,
such shares shall again be available for the purposes of the Plan; provided,
that the aggregate number of shares that may be issued upon the exercise
of Incentive Stock Options shall in no event exceed 13,000,000, subject to
adjustment from time to time as provided in Section 12.1.


 


SECTION 5. ELIGIBILITY


 


Awards may be granted under the Plan to
those officers, directors and employees of the Company and its Related
Corporations as the Plan Administrator from time to time selects. Awards may also
be granted to consultants, agents, advisors and independent contractors who
provide services to the Company and its Related Corporations; provided,
however, that such Participants (i) are natural persons or an alter-ego
entity; (ii) render bona fide services that are not in connection with the
offer and sale of the Company’s securities in a capital-raising transaction;
and (iii) render bona fide services that do not directly or indirectly
promote or maintain a market for the Company’s securities.


 


SECTION 6. AWARDS


 


6.1                               Form and
Grant of Awards


 


The Plan Administrator shall have the
authority, in its sole discretion, to determine the type or types of Awards to
be made under the Plan. Such Awards may include, but are not limited to,
Incentive Stock Options, Nonqualified Stock Options and Stock Awards. Awards may be
granted singly or in combination.


 


6.2                               Settlement
of Awards


 


The Company may settle Awards through
the delivery of shares of Common Stock, the granting of replacement Awards or
any combination thereof as the Plan Administrator shall determine. Any Award
settlement, including payment deferrals, may be subject to such
conditions, restrictions and contingencies as the Plan Administrator shall
determine. The Plan Administrator may permit or require the deferral of
any Award payment, subject to such rules and procedures as it may establish,
which may include provisions for the payment or crediting of interest, or
dividend equivalents, including converting such credits into deferred stock
equivalents.


 


6.3                               Acquired
Company Awards


 


Notwithstanding anything in the Plan to the
contrary, the Plan Administrator may grant Awards under the Plan in
substitution for awards issued under other plans, or assume under the


 


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Plan awards issued under other plans, if the other plans are or were
plans of other acquired entities (“Acquired Entities”) (or the parent or
subsidiary of the Acquired Entity) and the new Award is substituted, or the old
award is assumed, by reason of a merger, consolidation, acquisition of property
or stock, reorganization or liquidation (the “Acquisition Transaction”). If a
written agreement pursuant to which the Acquisition Transaction is completed is
approved by the Board and that agreement sets forth the terms and conditions of
the substitution for or assumption of outstanding awards of the Acquired
Entity, those terms and conditions shall be deemed to be the action of the Plan
Administrator without any further action by the Plan Administrator, except as may be
required for compliance with Rule 16b-3 under the Exchange Act, and the
persons holding such awards shall be deemed to be Participants.


 


SECTION 7. AWARDS OF OPTIONS


 


7.1                               Grant
of Options


 


The Plan Administrator is authorized under
the Plan, in its sole discretion, to issue Options as Incentive Stock Options
or as Nonqualified Stock Options, which shall be appropriately designated.


 


7.2                               Option
Exercise Price


 


The exercise price for shares purchased under
an Option shall be as determined by the Plan Administrator, but shall not be
less than 100% of the Fair Market Value of the Common Stock on the Grant Date
with respect to Incentive Stock Options. For Incentive Stock Options granted to
a more than 10% stockholder, the Option exercise price shall be as specified in
Section 8.2.


 


7.3                               Term
of Options


 


The term of each Option (the “Option Term”)
shall be as established by the Plan Administrator or, if not so established,
shall be ten years from the Grant Date. For Incentive Stock Options, the Option
Term shall be as specified in Sections 8.2 and 8.4.


 


7.4                               Exercise
of Options


 


The Plan Administrator shall establish and
set forth in each instrument that evidences an Option the time at which, or the
installments in which, the Option shall vest and become exercisable, which
provisions may be waived or modified by the Plan Administrator at any
time. If not so established in the instrument evidencing the Option, the Option
shall vest and become exercisable according to the following schedule, which may be
waived or modified by the Plan Administrator at any time:


 


	
  Period of Participant’s
  Continuous

  Employment or Service With the Company

  or Its Related Corporations From the

  Option Grant Date

  	
   

  	
  Portion of Total Option

  That Is Vested and Exercisable

  
	
  After 1 year

  	
   

  	
  1/4th

  
	
   

  	
   

  	
   

  
	
  Each additional one-month period of continuous
  service completed thereafter

  	
   

  	
  An additional 1/48th

  
	
   

  	
   

  	
   

  
	
  After 4 years

  	
   

  	
  100%

  



 


6

















 


To the extent that an Option has vested and
become exercisable, the Option may be exercised from time to time by
delivery to the Company of a written stock option exercise agreement or notice,
in a form and in accordance with procedures established by the Plan
Administrator, setting forth the number of shares with respect to which the
Option is being exercised, the restrictions imposed on the shares purchased
under such exercise agreement, if any, and such representations and agreements
as may be required by the Plan Administrator, accompanied by payment in
full as described in Section 7.5. The Plan Administrator may prescribe,
in lieu of or in addition to written agreements, notices and forms, electronic
or telephonic methods or procedures for Option exercises. An Option may be
exercised only for whole shares and may not be exercised for less than a
reasonable number of shares at any one time, as determined by the Plan
Administrator.


 


7.5                               Payment
of Exercise Price


 


The exercise price for shares purchased under
an Option shall be paid in full to the Company by delivery of consideration
equal to the product of the Option exercise price and the number of shares
purchased. Such consideration must be paid in cash or by check or, unless the
Plan Administrator in its sole discretion determines otherwise, either at the
time the Option is granted or at any time before it is exercised, in any
combination of


 


(a)                                  cash or check;


 


(b)                                 tendering (either
actually or, if and so long as the Common Stock is registered under Section 12(b) or
12(g) of the Exchange Act, by attestation) shares of Common Stock already
owned by the Participant for at least six months (or any shorter period
necessary to avoid a charge to the Company’s earnings for financial reporting
purposes) having a Fair Market Value on the day prior to the exercise date
equal to the aggregate Option exercise price;


 


(c)                                  if and so long as the
Common Stock is registered under Section 12(b) or 12(g) of the
Exchange Act, delivery of a properly executed exercise notice, together with
irrevocable instructions, to (i) a brokerage firm designated by the
Company to deliver promptly to the Company the aggregate amount of sale or loan
proceeds to pay the Option exercise price and any withholding tax obligations
that may arise in connection with the exercise and (ii) the Company
to deliver the certificates for such purchased shares directly to such
brokerage firm, all in accordance with the regulations of the Federal Reserve
Board; or


 


(d)                                 such other
consideration as the Plan Administrator may permit.


 


In addition, to assist a Participant
(including a Participant who is an officer or a director of the Company) in
acquiring shares of Common Stock pursuant to an Award granted under the


 


7

















 


Plan, the Plan Administrator, in its sole discretion, may authorize,
either at the Grant Date or at any time before the acquisition of Common Stock
pursuant to the Award, (i) the payment by a Participant of a full-recourse
promissory note, (ii) the payment by the Participant of the purchase
price, if any, of the Common Stock in installments, or (iii) the guarantee
by the Company of a full-recourse loan obtained by the Participant from a third
party. Subject to the foregoing, the Plan Administrator shall in its sole
discretion specify the terms of any loans, installment payments or loan
guarantees, including the interest rate and terms of and security for
repayment.


 


7.6                               Post-Termination
Exercises


 


The Plan Administrator shall establish and
set forth in each instrument that evidences an Option whether the Option shall
continue to be exercisable, and the terms and conditions of such exercise, if a
Participant ceases to be employed by, or to provide services to, the Company or
its Related Corporations, which provisions may be waived or modified by
the Plan Administrator at any time. If not so established in the instrument
evidencing the Option, the Option shall be exercisable according to the
following terms and conditions, which may be waived or modified by the
Plan Administrator at any time:


 


(a)                                  Any portion of an
Option that is not vested and exercisable on the date of termination of the
Participant’s employment or service relationship (the “Termination Date”) shall
expire on such date.


 


(b)                                 Any portion of an
Option that is vested and exercisable on the Termination Date shall expire upon
the earliest to occur of


 


(i)                                     if
the Participant’s Termination Date occurs for reasons other than Cause, death,
Disability, Early Retirement or Retirement, the three-month anniversary of such
Termination Date;


 


(ii)                                  if
the Participant’s Termination Date occurs by reason of Retirement or Early
Retirement, the one-year anniversary of such Termination Date;


 


(iii)                               if
the Participant’s Termination Date occurs by reason of Disability or death, the
one-year anniversary of such Termination Date; and


 


(iv)                              the
last day of the Option Term.


 


Notwithstanding the foregoing, if the
Participant dies after the Termination Date while the Option is otherwise
exercisable, the portion of the Option that is vested and exercisable on such
Termination Date shall expire upon the earlier to occur of (y) the last
day of the Option Term and (z) the first anniversary of the date of death,
unless the Plan Administrator determines otherwise.


 


Also notwithstanding the foregoing, in case
of termination of the Participant’s employment or service relationship for
Cause, the Option shall automatically expire at the time the Company first
notifies the Participant of such termination, unless the Plan Administrator
determines otherwise. If a Participant’s employment or service relationship
with the Company is


 


8

















 


suspended pending an investigation of whether the Participant shall be
terminated for Cause, all the Participant’s rights under any Option likewise
shall be suspended during the period of investigation, unless the Plan
Administrator determines otherwise. If any facts that would constitute Cause
for termination or removal of a Participant are discovered after the
Participant’s relationship with the Company or its Related Corporation has
ended, any Option then held by the Participant may be immediately
terminated by the Plan Administrator, in its sole discretion.


 


A Participant’s transfer of employment or service relationship between
or among the Company and its Related Corporations, or a change in status from
an employee to a consultant, agent, advisor or independent contractor or a
change in status from a consultant, agent, advisor or independent contractor to
an employee, shall not be considered a termination of employment or service
relationship for purposes of this Section 7. The effect of a
Company-approved leave of absence on the terms and conditions of an Option
shall be determined by the Plan Administrator, in its sole discretion.


 


SECTION 8. INCENTIVE STOCK OPTION LIMITATIONS


 


To the extent required by Section 422 of
the Code, Incentive Stock Options shall be subject to the following additional
terms and conditions:


 


8.1                               Dollar
Limitation


 


To the extent the aggregate Fair Market Value
(determined as of the Grant Date) of Common Stock with respect to which
Incentive Stock Options are exercisable for the first time during any calendar
year (under the Plan and all other stock option plans of the Company) exceeds
$100,000, such portion in excess of $100,000 shall be treated as a Nonqualified
Stock Option. In the event the Participant holds two or more such Options that
become exercisable for the first time in the same calendar year, such
limitation shall be applied on the basis of the order in which such Options are
granted.


 


8.2                               More
Than 10% Stockholders


 


If an individual owns more than 10% of the
total combined voting power of all classes of the  stock of the Company or of its parent or
subsidiary corporations, then the exercise price per share of an Incentive
Stock Option granted to such individual shall not be less than 110% of the Fair
Market Value of the Common Stock on the Grant Date and the Option Term shall
not exceed five years. The determination of more than 10% ownership shall be
made in accordance with Section 422 of the Code.


 


8.3                               Eligible
Employees


 


Individuals who are not employees of the
Company or one of its parent corporations or subsidiary corporations may not
be granted Incentive Stock Options.


 


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8.4                               Term


 


Subject to Section 8.2, the Option Term
shall not exceed ten years.


 


8.5                               Exercisability


 


An Option designated as an Incentive Stock
Option shall cease to qualify for favorable tax treatment as an Incentive Stock
Option to the extent it is exercised (if permitted by the terms of the Option) (a) more
than three months after the Termination Date for reasons other than death
or Disability, (b) more than one year after the Termination Date by reason
of Disability, or (c) after the Participant has been on leave of absence
for more than 90 days, unless the Participant’s reemployment rights are
guaranteed by statute or contract.


 


8.6                               Taxation
of Incentive Stock Options


 


In order to obtain certain tax benefits
afforded to Incentive Stock Options under Section 422 of the Code, the
Participant must hold the shares issued upon the exercise of an Incentive Stock
Option for two years after the Grant Date and one year from the date of
exercise. A Participant may be subject to the alternative minimum tax at
the time of exercise of an Incentive Stock Option. The Participant shall give
the Company prompt notice of any disposition of shares acquired by the exercise
of an Incentive Stock Option prior to the expiration of such holding periods.


 


8.7                               Stockholder
Approval


 


If the stockholders of the Company do not
approve the Plan within 12 months after the Board of Director’s adoption of the
Plan, any Incentive Stock Options will become Nonqualified Stock Options.


 


8.8                               Code
Definitions


 


For purposes of this Section 8, “parent corporation,” “subsidiary
corporation” and “Disability” shall have the meanings attributed to those terms
for purposes of Section 422 of the Code.


 


SECTION 9. STOCK AWARDS


 


9.1                               Grant
of Stock Awards


 


The Plan Administrator is authorized to make
Awards of Common Stock or Awards denominated in units of Common Stock on such
terms and conditions and subject to such restrictions, if any (which may be
based on continuous service with the Company or the achievement of performance
goals), as the Plan Administrator shall determine, in its sole discretion,
which terms, conditions and restrictions shall be set forth in the instrument
evidencing the Award. The terms, conditions and restrictions that the Plan
Administrator shall have the power to determine shall include, without limitation,
the manner in which shares subject to Stock Awards are held during the periods
they are subject to restrictions and the circumstances under


 


10

















 


which forfeiture of the Stock Award shall occur by reason of
termination of the Participant’s employment or service relationship.


 


9.2                               Issuance
of Shares


 


Upon the satisfaction of any terms,
conditions and restrictions prescribed in respect to a Stock Award, or upon the
Participant’s release from any terms, conditions and restrictions of a Stock
Award, as determined by the Plan Administrator, the Company shall release, as
soon as practicable, to the Participant or, in the case of the Participant’s
death, to the personal representative of the Participant’s estate or as the
appropriate court directs, the appropriate number of shares of Common Stock.


 


9.3                               Waiver
of Restrictions


 


Notwithstanding any other provisions of the
Plan, the Plan Administrator may, in its sole discretion, waive the forfeiture
period and any other terms, conditions or restrictions on any Stock Award under
such circumstances and subject to such terms and conditions as the Plan
Administrator shall deem appropriate.


 


SECTION 10. WITHHOLDING


 


The Company may require the Participant
to pay to the Company the amount of any withholding taxes that the Company is
required to withhold with respect to the grant, vesting or exercise of any
Award. Subject to the Plan and applicable law, the Plan Administrator may, in
its sole discretion, permit the Participant to satisfy withholding obligations,
in whole or in part, (a) by paying cash, (b) by electing to have the
Company withhold shares of Common Stock (up to the employer’s minimum required
tax withholding rate) or (c) by transferring to the Company shares of Common
Stock (already owned by the Participant for the period necessary to avoid a
charge to the Company’s earnings for financial reporting purposes), in such
amounts as are equivalent to the Fair Market Value of the withholding
obligation. The Company shall have the right to withhold from any Award or any
shares of Common Stock issuable pursuant to an Award or from any cash amounts
otherwise due or to become due from the Company to the Participant an amount
equal to such taxes (up to the employer’s minimum required tax withholding
rate). The Company may also deduct from any Award any other amounts due
from the Participant to the Company or a Related Corporation.


 


SECTION 11. ASSIGNABILITY


 


Awards granted under the Plan and any
interest therein may not be assigned, pledged or transferred by the
Participant and may not be made subject to attachment or similar
proceedings otherwise than by will or by the applicable laws of descent and
distribution, and, during the Participant’s lifetime, such Awards may be
exercised only by the Participant. Notwithstanding the foregoing, and to the
extent permitted by Section 422 of the Code with respect to incentive
stock options, the Plan Administrator, in its sole discretion, may permit
such assignment, transfer and exercisability and may permit a Participant
to designate a beneficiary who may exercise the Award or receive payment
under the Award after the Participant’s death; provided, however, that


 


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any Award so assigned or transferred shall be subject to all the same
terms and conditions contained in the instrument evidencing the Award.


 


SECTION 12. ADJUSTMENTS


 


12.1                        Adjustment
of Shares


 


In the event that, at any time or from time
to time, a stock dividend, stock split, spin-off, combination or exchange of
shares, recapitalization, merger, consolidation, distribution to stockholders
other than a normal cash dividend, or other change in the Company’s corporate
or capital structure results in (a) the outstanding shares, or any
securities exchanged therefor or received in their place, being exchanged for a
different number or kind of securities of the Company or of any other
corporation or (b) new, different or additional securities of the Company
or of any other corporation being received by the holders of shares of Common
Stock of the Company, then the Plan Administrator shall make proportional
adjustments in (i) the maximum number and kind of securities subject to
the Plan and issuable as Incentive Stock Options as set forth in Section 4.1
and (ii) the number and kind of securities that are subject to any
outstanding Award and the per share price of such securities, without any
change in the aggregate price to be paid therefor. The determination by the
Plan Administrator as to the terms of any of the foregoing adjustments shall be
conclusive and binding. Notwithstanding the foregoing, a dissolution or
liquidation of the Company or a Corporate Transaction shall not be governed by
this Section 12.1 but shall be governed by Sections 12.2 and 12.3,
respectively.


 


12.2                        Dissolution
or Liquidation


 


To the extent not previously exercised or
settled, and unless otherwise determined by the Plan Administrator in its sole
discretion, Options and Stock Awards denominated in units shall terminate
immediately prior to the dissolution or liquidation of the Company. To the
extent a forfeiture provision or repurchase right applicable to an Award has
not been waived by the Plan Administrator, the Award shall be forfeited
immediately prior to the consummation of the dissolution or liquidation.


 


12.3                        Corporate
Transaction


 


12.3.1                                                  Options


 


(a)                                  In the event of a
Corporate Transaction as defined in Section 2 in clause (a) or (b),
except as otherwise provided in the instrument evidencing the Award, each outstanding
Option shall be assumed or continued or an equivalent option or right
substituted by the surviving corporation, the successor corporation or its
parent corporation, as applicable (the “Successor Corporation”).


 


(b)                                 In the event that the
Successor Corporation refuses to assume, continue or substitute for the Option,
or in the event of a Corporate Transaction as defined in Section 2 in
clause (c), the Participant shall fully vest in and have the right to exercise
the Option as to all of the shares of Common Stock subject thereto, including
shares as to which the Option would not otherwise be vested or exercisable. In
such case, the Plan Administrator shall notify the


 


12

















 


Participant in writing or electronically that the Option shall be fully
vested and exercisable for a specified time period after the date of such
notice, and the Option shall terminate upon the expiration of such period, in
each case conditioned on the consummation of the Corporate Transaction.


 


(c)                                  For the purposes of
this Section 12.3, the Option shall be considered assumed, continued or
substituted if, following the Corporate Transaction, the option or right
confers the right to purchase or receive, for each share of Common Stock subject
to the Option, immediately prior to the Corporate Transaction, the
consideration (whether stock, cash, or other securities or property) received
in the Corporate Transaction by holders of Common Stock for each share held on
the effective date of the transaction (and if holders were offered a choice of
consideration, the type of consideration chosen by the holders of a majority of
the outstanding shares); provided, however, that if such consideration received
in the Corporate Transaction is not solely common stock of the Successor
Corporation, the Plan Administrator may, with the consent of the Successor
Corporation, provide for the consideration to be received upon the exercise of
the Option, for each share of Common Stock subject thereto, to be solely common
stock of the Successor Corporation equal in fair market value to the per share
consideration received by holders of Common Stock in the Corporate Transaction.
The determination of such substantial equality of value of consideration shall
be made by the Plan Administrator and its determination shall be conclusive and
binding.


 


(d)                                 All Options shall
terminate and cease to remain outstanding immediately following the
consummation of the Corporate Transaction, except to the extent assumed by the
Successor Corporation.


 


12.3.2                                                  Stock
Awards


 


In the event of a Corporate Transaction,
except as otherwise provided in the instrument evidencing the Award, the
vesting of shares subject to Stock Awards shall accelerate, and the forfeiture
provisions to which such shares are subject shall lapse, if and to the same
extent that the vesting of outstanding Options accelerates in connection with
the Corporate Transaction. If unvested Options are to be assumed, continued or
substituted by a Successor Corporation without acceleration upon the occurrence
of a Corporate Transaction, the forfeiture provisions to which such Stock
Awards are subject shall continue with respect to shares of the Successor
Corporation that may be issued in exchange for such shares.


 


12.4                        Further
Adjustment of Awards


 


Subject to Sections 12.1 and 12.2, the
Plan Administrator shall have the discretion, exercisable at any time before a
Corporate Transaction or other sale, merger, consolidation, reorganization,
liquidation or change in control of the Company, as defined by the Plan
Administrator, to take such further action as it determines to be necessary or
advisable, and fair and equitable to the Participants, with respect to Awards.
Such authorized action may include (but shall not be limited to) establishing,
amending or waiving the type, terms, conditions or duration of, or restrictions
on, Awards so as to provide for earlier, later, extended or additional time for
exercise, lifting restrictions and other modifications, and the Plan
Administrator may


 


13

















 


take such actions with respect to all Participants, to certain
categories of Participants or only to individual Participants. The Plan
Administrator may take such action before or after granting Awards to
which the action relates and before or after any public announcement with
respect to such sale, merger, consolidation, reorganization, liquidation or
change in control that is the reason for such action.


 


12.5                        Limitations


 


The grant of Awards shall in no way affect
the Company’s right to adjust, reclassify, reorganize or otherwise change its
capital or business structure or to merge, consolidate, dissolve, liquidate or
sell or transfer all or any part of its business or assets.


 


12.6                        Fractional
Shares


 


In the event of
any adjustment in the number of shares covered by any Award, each such Award
shall cover only the number of full shares resulting from such adjustment.


 


SECTION 13. REPURCHASE AND FIRST REFUSAL RIGHTS


 


13.1                        Repurchase
Rights From Terminated Participants


 


Until the date on which the initial
registration of the Common Stock under Section 12(b) or 12(g) of
the Exchange Act first becomes effective, if a Participant ceases to be
employed by or provide services to the Company, then all shares of Common Stock
issued pursuant to an Award (whether issued before or after cessation of
employment or services) shall be subject to repurchase by the Company, at the
Company’s sole discretion, at the Fair Market Value of such shares on the date
of such repurchase. The terms and conditions upon which such repurchase right
shall be exercisable (including the period and procedure for exercise) shall be
established by the Plan Administrator.


 


13.2                        First
Refusal Rights


 


Until the date on which the initial
registration of the Common Stock under Section 12(b) or 12(g) of
the Exchange Act first becomes effective, the Company shall have the right of
first refusal with respect to any proposed sale or other disposition by the
Participant of any shares of Common Stock issued pursuant to an Award granted
under the Plan. Such right of first refusal shall be exercisable in accordance
with the terms and conditions established by the Plan Administrator and set
forth in the agreement evidencing such right.


 


13.3                        Restrictions
on Rights


 


Repurchase or first refusal rights under this
Section 13 may not be exercised earlier than six months and one day
following the date the shares were purchased by the Participant, or such time
period necessary to avoid charges to the Company’s earnings for financial
reporting purposes.


 


14

















 


SECTION 14. MARKET STANDOFF


 


In connection with any underwritten public
offering by the Company of its equity securities pursuant to an effective
registration statement filed under the Securities Act, including the Company’s
initial public offering, a person shall not sell, make any short sale of, loan,
hypothecate, pledge, grant any option for the purchase of, or otherwise dispose
of or transfer for value or otherwise agree to engage in any of the foregoing
transactions with respect to any shares issued pursuant to an Award granted
under the Plan without the prior written consent of the Company or its
underwriters. Such limitations shall be in effect for such period of time as may be
requested by the Company or such underwriters and agreed to by the Company’s
officers and directors with respect to their shares; provided, however, that in
no event shall such period exceed 180 days. The limitations of this paragraph
shall in all events terminate two years after the effective date of the Company’s
initial public offering. Holders of shares issued pursuant to an Award granted
under the Plan shall be subject to the market standoff provisions of this
paragraph only if the officers and directors of the Company are also subject to
similar arrangements.


 


In the event of any stock split, stock
dividend, recapitalization, combination of shares, exchange of shares or other
change affecting the Company’s outstanding Common Stock effected as a class without
the Company’s receipt of consideration, any new, substituted or additional
securities distributed with respect to the purchased shares shall be
immediately subject to the provisions of this Section 14, to the same
extent the purchased shares are at such time covered by such provisions.


 


In order to enforce the limitations of this Section 14,
the Company may impose stop-transfer instructions with respect to the
purchased shares until the end of the applicable standoff period.


 


SECTION 15. AMENDMENT AND TERMINATION OF PLAN


 


15.1                        Amendment
of Plan


 


The Plan may be amended only by the
Board in such respects as it shall deem advisable; provided, however, that to
the extent required for compliance with Section 422 of the Code or any
applicable law or regulation, stockholder approval shall be required for any
amendment that would (a) increase the total number of shares available for
issuance under the Plan, (b) modify the class of employees eligible
to receive Options, or (c) otherwise require stockholder approval under
any applicable law or regulation. Any amendment made to the Plan that would
constitute a “modification” to Incentive Stock Options outstanding on the date
of such amendment shall not, without the consent of the Participant, be applicable
to such outstanding Incentive Stock Options but shall have prospective effect
only. Notwithstanding the foregoing, any adjustments made pursuant to Section 12
shall not be subject to these restrictions.


 


15.2                        Termination
of Plan


 


The Board may suspend or terminate the
Plan at any time. The Plan shall have no fixed expiration date; provided,
however, that no Incentive Stock Options may be granted more than


 


15

















 


ten years after the later of (a)  the Plan’s adoption by the
Board and (b) the adoption by the Board of any amendment to the Plan that
constitutes the adoption of a new plan for purposes of Section 422 of the
Code.


 


15.3                        Consent of
Participant


 


The amendment or termination of the Plan or
the amendment of an outstanding Award shall not, without the Participant’s
consent, impair or diminish any rights or obligations under any Award
theretofore granted to the Participant under the Plan. Any change or adjustment
to an outstanding Incentive Stock Option shall not, without the consent of the
Participant, be made in a manner so as to constitute a “modification” that
would cause such Incentive Stock Option to fail to continue to qualify as an
Incentive Stock Option. Notwithstanding the foregoing, any adjustments made
pursuant to Section 12 shall not be subject to these restrictions.


 


SECTION 16. GENERAL


 


16.1                        Evidence
of Awards


 


Awards granted under the Plan shall be
evidenced by a written instrument that shall contain such terms, conditions,
limitations and restrictions as the Plan Administrator shall deem advisable and
that are not inconsistent with the Plan.


 


16.2                        No
Individual Rights


 


Nothing in the Plan or any Award granted
under the Plan shall be deemed to constitute an employment contract or confer
or be deemed to confer on any Participant any right to continue in the employ
of, or to continue any other relationship with, the Company or any Related
Corporation or limit in any way the right of the Company or any Related
Corporation to terminate a Participant’s employment or other relationship at
any time, with or without Cause.


 


Neither a Participant nor any other person shall, by reason
of participation in the Plan, acquire any right in or title to any assets,
funds or property of the Company or any Related Corporation whatsoever
including, without limitation, any specific funds, assets or other property
which the Company or any Related Corporation, in its or their sole discretion, may set
aside in anticipation of a liability under the Plan. A Participant shall have
only a contractual right to the Common Stock or amounts, if any, payable under
the Plan, unsecured by any assets of the Company or any Related Corporation,
and nothing contained in the Plan shall constitute a representation of
guarantee that the assets of the Company or any Related Corporation shall be
sufficient to pay any benefits to any person.


 


Nothing in this Plan nor in any agreement evidencing an
Award shall confer upon any eligible employee or Participant any promise or
commitment by the Company or a Related Corporation regarding future positions,
future work assignments, future compensation or any other term or condition or
employment or affiliation.


 


The Company, in establishing and maintaining this Plan as a
voluntary and unilateral undertaking, expressly disavows the creation of any
rights in eligible employees, Participants or


 


16





















 


others claiming
entitlement under the Plan or any obligations on the part of the Company,
any Related Corporation or the Plan Administrator, except as expressly provided
herein. In particular, no third party beneficiary rights shall be created under
the Plan. Without limiting the generality of the foregoing, the Company
disavows any undertaking to maintain the tax-qualified status of Options
designated as Incentive Stock Options or to assure the tax treatment of any
particular award, including the deferral or transfer of any Award benefits, as may be
permitted by the Plan Administrator.


 


16.3                        Issuance
of Shares


 


Notwithstanding any other provision of the
Plan, the Company shall have no obligation to issue or deliver any shares of
Common Stock under the Plan or make any other distribution of benefits under
the Plan unless such issuance, delivery or distribution would comply with all
applicable laws (including, without limitation, the requirements of the
Securities Act), and the applicable requirements of any securities exchange or
similar entity.


 


The Company shall be under no obligation to
any Participant to register for offering or resale or to qualify for exemption
under the Securities Act, or to register or qualify under state or foreign
securities laws, any shares of Common Stock, security or interest in a security
paid or issued under, or created by, the Plan, or to continue in effect any
such registrations or qualifications if made. The Company may issue
certificates for shares with such legends and subject to such restrictions on
transfer and stop-transfer instructions as counsel for the Company deems necessary
or desirable for compliance by the Company with federal, state and foreign
securities laws.


 


To the extent that the Plan or any instrument
evidencing an Award provides for issuance of stock certificates to reflect the
issuance of shares of Common Stock, the issuance may be effected on a
noncertificated basis, to the extent not prohibited by applicable law or the
applicable rules of any stock exchange. As a condition to the exercise of
an Option or any other receipt of Common Stock pursuant to an Award under the
Plan, the Company may require (i) the Participant to represent and
warrant at the time of any such exercise or receipt that such shares are being
purchased or received only for the Participant’s own account and without any
present intention to sell or distribute such shares and (ii) such other
action or agreement by the Participant as may from time to time be
necessary to comply with the foreign, federal and state securities laws. At the
option of the Company, a stop-transfer order against any such shares may be
placed on the official stock books and records of the Company, and a legend
indicating that such shares may not be pledged, sold or otherwise
transferred, unless an opinion of counsel is provided (concurred in by counsel
for the Company) stating that such transfer is not in violation of any
applicable law or regulation, may be stamped on stock certificates to
ensure exemption from registration. The Plan Administrator may also
require the Participant to execute and deliver to the Company a purchase
agreement or such other agreement as may be in use by the Company at such
time that describes certain terms and conditions applicable to the shares.


 


17

















 


16.4                        No Rights
as a Stockholder


 


No Option or Stock Award denominated in units
shall entitle the Participant to any cash dividend, voting or other right of a
stockholder unless and until the date of issuance under the Plan of the shares
that are the subject of such Award.


 


16.5                        Compliance
With Laws and Regulations


 


Notwithstanding anything in the Plan to the
contrary, the Plan Administrator, in its sole discretion, may bifurcate
the Plan so as to restrict, limit or condition the use of any provision of the
Plan to Participants who are officers or directors subject to Section 16
of the Exchange Act without so restricting, limiting or conditioning the Plan
with respect to other Participants. Additionally, in interpreting and applying
the provisions of the Plan, any Option granted as an Incentive Stock Option
pursuant to the Plan shall, to the extent permitted by law, be construed as an “incentive
stock option” within the meaning of Section 422 of the Code.


 


16.6                        Participants
in Foreign Countries


 


The Plan Administrator shall have the
authority to adopt such modifications, procedures and subplans as may be
necessary or desirable to comply with provisions of the laws of foreign
countries in which the Company or its Related Corporations may operate to
assure the viability of the benefits from Awards granted to Participants
employed in such countries and to meet the objectives of the Plan.


 


16.7                        No Trust
or Fund


 


The Plan is intended to constitute an “unfunded”
plan. Nothing contained herein shall require the Company to segregate any
monies or other property, or shares of Common Stock, or to create any trusts,
or to make any special deposits for any immediate or deferred amounts payable
to any Participant, and no Participant shall have any rights that are greater
than those of a general unsecured creditor of the Company.


 


16.8                        Severability


 


If any provision of the Plan or any Award is
determined to be invalid, illegal or unenforceable in any jurisdiction, or as
to any person, or would disqualify the Plan or any Award under any law deemed
applicable by the Plan Administrator, such provision shall be construed or
deemed amended to conform to applicable laws, or, if it cannot be so
construed or deemed amended without, in the Plan Administrator’s determination,
materially altering the intent of the Plan or the Award, such provision shall
be stricken as to such jurisdiction, person or Award, and the remainder of the
Plan and any such Award shall remain in full force and effect.


 


16.9                        Choice of
Law


 


The Plan and all determinations made and
actions taken pursuant hereto, to the extent not otherwise governed by the laws
of the United States, shall be governed by the laws of the State of Washington
without giving effect to principles of conflicts of laws.


 


18

















 


SECTION 17. EFFECTIVE DATE


 


The Effective Date is the date on which the Plan is first adopted by
the Board, so long as it is approved by the Company’s stockholders at any time
within 12 months of such adoption.


 


SECTION 18. CALIFORNIA AWARDS


 


This Section 18 shall have application only to
Eligible Participants who are residents of the State of California. Notwithstanding any provision contained in this Plan to the contrary
and to the extent required by applicable law, the following terms and
conditions shall apply to all Awards granted to residents of the State of
California, until such time as the Common Stock becomes registered under the
Securities Exchange Act of 1934:


 


18.1                        Option
Price.


 


Nonqualified Stock Options shall have an exercise
price that is not less than 85% of the Fair Market Value of the Common Stock at
the Grant Date, except that the exercise price shall be at least 110% of the
Fair Market Value in the case of any person 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.


 


18.2                        Purchase
Price.


 


The purchase price for any Stock Awards that may be
purchased under the Plan (“Stock Purchase Rights”) shall be at least 85% of the
Fair Market Value of the Common Stock at the time the Eligible Participant is
granted the Stock Purchase Right or at the time the purchase is consummated.
Notwithstanding the foregoing, the purchase price shall be at least 100% of the
Fair Market Value of the Common Stock at the time the Eligible Participant is
granted the Stock Purchase Right or at the time the purchase is consummated in
the case of any person 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.


 


18.3                        Maximum
Term.


 


Options shall have a term of not more than ten years from the Grant
Date.


 


18.4                        Transferability.


 


Awards shall be nontransferable other than by will or
the laws of descent and distribution. Notwithstanding the foregoing, and to the
extent permitted by Section 422 of the Code, the Administrator, in its
discretion, may permit distribution of an Option to an inter vivos or
testamentary trust in which the Option is 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) of the Exchange Act.


 


19

















 


18.5                        Vesting.


 


Options shall become exercisable at the rate of at
least 20% per year over five years from the date the Option is granted,
subject to reasonable conditions such as continued employment. However, in the
case of an Option granted to officers, directors or consultants of the Company
or any of its affiliates, the Option may become fully exercisable, subject
to reasonable conditions such as continued employment, at any time or during
any period established by the Company or any of its affiliates.


 


18.6                        Termination
of Employment.


 


Unless employment is terminated for Cause, the right
to exercise an Option in the event of termination of employment, to the extent
that the Eligible Participant is otherwise entitled to exercise an Option on
the date employment terminates, shall be


 


a.                                       at
least six months from the Termination Date if termination was caused by
death or Disability; and


 


b.                                      at
least 30 days from the Termination Date if termination was caused by other than
death or Disability;


 


c.                                       but
in no event later than the remaining term of the Option.


 


18.7                        Grant
Period.


 


No Award may be granted to a resident of
California more than ten years after the earlier of the date of adoption of the
Plan and the date the Plan is approved by the stockholders.


 


18.8                        Premature
Grants.


 


Any Award exercised before stockholder approval is
obtained shall be rescinded if stockholder approval is not obtained within 12
months before or after the Plan is adopted. Such shares shall not be counted in
determining whether such approval is obtained.


 


18.9                        Disclosure.


 


The Company shall provide annual financial statements
of the Company to each California resident holding an outstanding Award under
the Plan. Such financial statements need not be audited and need not be issued
to key employees whose duties at the Company assure them access to equivalent
information.


 


18.10                 Repurchase
Limits.


 


Any right of repurchase on behalf of the Company in
the event of an Eligible Participant’s termination of employment shall be at a
purchase price that is (a) not less than the Fair Market Value of the
securities to be repurchased on the date of termination of employment, and the
right to repurchase shall be exercised for cash or cancellation of purchase
money indebtedness for the


 


20

















 


shares within 90 days of termination of employment (or
in the case of securities issued upon exercise of Options after the date of
termination, within 90 days after the date of the exercise), and the right
shall terminate when the Company’s securities become publicly traded; or (b) at
the original purchase price, provided that the right to repurchase at the
original purchase price lapses at the rate of at least 20% of the shares per
year over five years from the date the Option or Stock Purchase Right is
granted (without respect to the date the Option or Stock Purchase Right was
exercised or became exercisable) and the right to repurchase shall be exercised
for cash or cancellation of purchase money indebtedness for the shares within
90 days of termination of employment (or in the case of securities issued upon
exercise of Options after the date of termination, within 90 days after the
date of the exercise). In addition to the restrictions set forth in clauses (a) and
(b), the securities held by an officer, director or consultant of the Company
or an affiliate of the Company may be subject to additional or greater
restrictions.


 


18.11                 Voting
Rights.


 


Shares of Common Stock and similar equity securities
should normally carry equal voting rights on all matters where such vote is
permitted by applicable law.


 


21

















 


PLAN ADOPTION AND
AMENDMENTS/ADJUSTMENTS

SUMMARY PAGE


 


	
  Date of Board Action

  	
   

  	
  Action

  	
   

  	
  Section/Effect of

  Amendment

  	
   

  	
  Date of Stockholder

  Approval

  
	
  May 10,
  2000

  	
   

  	
  Initial
  Plan Adoption

  	
   

  	
   

  	
   

  	
  May 10,
  2000

  
	
  August 9,
  2000

  	
   

  	
  Amendments

  	
   

  	
  Technical

  	
   

  	
  N/A

  
	
  November 17,
  2005

  	
   

  	
  Amendments

  	
   

  	
  Technical

  	
   

  	
  N/A

  



 


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