exv10w7






Exhibit 10.7




NEKTAR THERAPEUTICS

(formerly known as Inhale Therapeutic Systems, Inc.)

2000 Equity Incentive Plan




Adopted February 10, 1994

Approved By Shareholders February 18, 1994

Amended March 27, 1996

Amended and Restated by Board April 24, 1998

Approved By Shareholders June 23, 1998

Amended and Restated by Board April 19, 2000

Approved By Shareholders June 6, 2000

Adjusted for 2-for-1 Stock Split on August 22, 2000

Amended and Restated by Board April 23, 2004

Approved By Shareholders June 17, 2004

Amended and Restated by Board March 17, 2006

Amended and Restated by Board May 23, 2006

Approved By Shareholders June 1, 2006

Amended and Restated by Board September 14, 2010




Termination Date: February 9, 2010




1. Purposes.




     (a) Amendment and Restatement. The 1994 Equity Incentive Plan initially was adopted on
February 10, 1994 and amended and restated on April 24, 1998 (the “1994 Plan”). The 1994 Plan was
amended and restated in its entirety, effective upon adoption by the Board, and renamed the “2000
Equity Incentive Plan.” The terms of the Plan shall apply to all Stock Awards granted pursuant to
the Initial Plan.



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



     (c) Available Stock Awards. The purpose of the Plan is to provide a means by which eligible
recipients of Stock Awards may be given an opportunity to benefit from increases in value of the
Common Stock through the granting of the following Stock Awards: (i) Incentive Stock Options, (ii)
Nonstatutory Stock Options, (iii) stock bonuses and (iv) rights to acquire restricted stock.



     (d) General Purpose. The Company, by means of the Plan, seeks to retain the services of the
group of persons eligible to receive Stock Awards, to secure and retain the services of new members
of this group and to provide incentives for such persons to exert maximum efforts for the success
of the Company and its Affiliates.



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2. Definitions.




     (a) “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.



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



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



     (d) “Committee” means a Committee appointed by the Board in accordance with subsection 3(c).



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



     (f) “Company” means Nektar Therapeutics, a Delaware corporation.



     (g) “Consultant” means any person, including an advisor, (1) engaged by the Company or an
Affiliate to render consulting or advisory services and who is compensated for such services or (2)
who is a member of the Board of Directors of an Affiliate. However, the term “Consultant” shall not
include either Directors of the Company who are not compensated by the Company for their services
as Directors or Directors of the Company who are merely paid a director’s fee by the Company for
their services as Directors.



     (h) “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 of the Company will not constitute an interruption of Continuous Service.
The Board or the chief executive officer of the Company, in that party’s sole discretion, may
determine whether Continuous Service shall be considered interrupted in the case of any leave of
absence approved by that party, including sick leave, military leave or any other personal leave.



     (i) “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
stockholders under the Exchange Act, as determined for purposes of Section 162(m) of the Code.



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



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



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



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



     (n) “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 System or the Nasdaq SmallCap Market, the Fair Market Value of a share of Common
Stock shall be the closing sales price for such stock (or the closing bid, if no sales were
reported) as quoted on such exchange or market (or the exchange or market with the greatest volume
of trading in the Common Stock) on the day of determination, as reported in The Wall Street Journal
or such other source as the Board deems reliable.


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



     (o) “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.



     (p) “Non-Employee Director” means a Director of the Company 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.



     (q) “Nonstatutory Stock Option” means an Option not intended to qualify as an Incentive Stock
Option.



     (r) “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.



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



     (t) “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.



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



     (v) “Outside Director” means a Director of the Company 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.



     (w) “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.



     (x) “Plan” means this Nektar Therapeutics 2000 Equity Incentive Plan.



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



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



     (aa) “Stock Award” means any right granted under the Plan, including an Option, a stock bonus
and a right to acquire restricted stock.



     (bb) “Stock Award Agreement” means a written agreement between the Company and a holder of a
Stock Award evidencing 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.



     (cc) “Ten Percent Stockholder” 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.



3. Administration.




     (a) Administration by Board. The Board will administer the Plan unless and until the Board
delegates administration to a Committee, as provided in subsection 3(c).



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


          (i) To determine 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



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permitted to receive stock pursuant to a Stock Award; and the number of shares 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 12.


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



     (c) Delegation to Committee.


          (i) General. The Board may delegate administration of the Plan to a Committee or Committees
of one (1) or more members of the Board, 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 shall have, in connection with the administration of the Plan, the powers theretofore
possessed by the Board, including the power to 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), 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 (i) delegate to a committee of one or more members of the Board 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 (ii) delegate to a committee of one or more
members of the Board who are not Non-Employee Directors the authority to grant Stock Awards to
eligible persons who are not then subject to Section 16 of the Exchange Act.



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



4. Shares Subject to the Plan.




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     (a) Share Reserve. Subject to the provisions of Section 11 relating to adjustments upon
changes in stock, the stock that may be issued pursuant to Stock Awards shall not exceed in the
aggregate Eighteen Million Two Hundred Fifty Thousand (18,250,000) shares of Common Stock. Subject
to Section 4(b), the number of shares available for issuance under the Plan shall be reduced by (i)
one (1) share for each share of stock issued pursuant to an Option granted under Section 6, and
(ii) one and one-half (1.5) shares for each share that is issued pursuant to a stock bonus award or
restricted stock award under Section 7.



     (b) Reversion of Shares to the Share Reserve. If any Stock Award shall for any reason expire
or otherwise terminate, in whole or in part, without having been exercised in full or if any shares
of Common Stock issued to a Participant pursuant to a Stock Award are forfeited to or reacquired or
repurchased by the Company, including, but not limited to, any forfeiture, reacquisition or
repurchase caused by the failure to meet a contingency or condition required for the vesting of
such shares, the stock not acquired under such Stock Award shall revert to and again become
available for issuance under the Plan at the rate of (i) one (1) share for each share of stock that
had been issued pursuant to an Option granted under Section 6, and (ii) one and one-half (1.5)
shares for each share that had been issued pursuant to a stock bonus award or restricted stock
award under Section 7; provided, however, that if any unvested Common Stock acquired pursuant to a
Stock Award is forfeited to or reacquired or repurchased by the Company, the unvested stock
forfeited to or reacquired or repurchased by the Company shall revert to and again become available
for issuance under the Plan for all Stock Awards other than Incentive Stock Options.



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



5. Eligibility.




     (a) 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.



     (b) Ten Percent Stockholders. No Ten Percent Stockholder shall be eligible for the grant of
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 at the date of grant and the Option is
not exercisable after the expiration of five (5) years from the date of grant.



     (c) Section 162(m) Limitation. Subject to the provisions of Section 11 relating to
adjustments upon changes in stock, no employee shall be eligible to be granted Options covering
more than Eight Hundred Thousand (800,000) shares of the Common Stock during any calendar year.



     (d) Consultants. 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,



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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 (i) 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 (ii) that such grant complies with the
securities laws of all other relevant jurisdictions.1




6. 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 a separate certificate or certificates will be
issued for shares purchased on 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:



     (a) Term. Subject to the provisions of subsection 5(b) regarding Ten Percent Stockholders, no
Incentive Stock Option shall be exercisable after the expiration of eight (8) years from the date
it was granted. No Nonstatutory Stock Option shall be exercisable after the expiration of eight
(8) years from the date it was granted.



     (b) Exercise Price of an Incentive Stock Option. Subject to the provisions of subsection 5(b)
regarding Ten Percent Stockholders, the exercise price of each Incentive Stock Option shall be not
less than one hundred percent (100%) of the Fair Market Value of the stock subject to the Option on
the date the Option is granted. Notwithstanding the foregoing, an 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.



     (c) 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
stock subject to the Option on the date the Option is granted. 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.





 




			
	1	 	Form S-8 generally is available to consultants
and advisors only if (i) they are natural persons; (ii) they provide bona fide
services to the issuer, its parents, its majority-owned subsidiaries or
majority-owned subsidiaries of the issuer’s parent; and (iii) 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.




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     (d) Consideration.


          (i) The purchase price of stock acquired pursuant to an Option shall be paid, to the extent
permitted by applicable statutes and regulations, either (A) in cash at the time the Option is
exercised or (B) 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) by delivery to the Company of other Common
Stock, according to a deferred payment or other similar arrangement (which may include, without
limiting the generality of the foregoing, the use of other Common Stock) with the Participant or in
any other form of legal consideration that may be acceptable to the Board; provided, however, that
at any time that the Company is incorporated in Delaware, payment of the Common Stock’s “par
value,” as defined in the Delaware General Corporation Law, shall not be made by deferred payment.


          (ii) Unless otherwise specifically provided in the Option, the purchase price of Common Stock
acquired pursuant to an Option that is paid by delivery to the Company of other Common Stock
acquired, directly or indirectly from the Company, shall be paid only by shares of the Common Stock
of the Company that have been held for more than six (6) months (or such longer or shorter period
of time required to avoid a charge to earnings for financial accounting purposes).


          (iii) In the case of any deferred payment arrangement, interest shall be compounded at least
annually and shall be charged at the minimum rate of interest necessary to avoid the treatment as
interest, under any applicable provisions of the Code, of any amounts other than amounts stated to
be interest under the deferred payment arrangement.



     (e) 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
provisions of this subsection 6(e), 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.



     (f) 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 provisions of
this subsection 6(f), 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.



     (g) Vesting Generally. The total number of shares of Common Stock subject to an Option may,
but need not, vest and therefore become exercisable in periodic installments which may, but need
not, be equal. The Option may be subject to such other terms and conditions on the time or times
when it may be exercised (which may be based on performance or other criteria) as the Board may
deem appropriate. The vesting provisions of individual Options may



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vary. The provisions of this subsection 6(g) are subject to any Option provisions governing
the minimum number of shares as to which an Option may be exercised.




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



     (i) 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 would violate the registration requirements under the Securities
Act, then the Option shall terminate on the earlier of (i) the expiration of the term of the Option
set forth in subsection 6(a) or (ii) the expiration of a period of three (3) months (or such longer
or shorter period specified in the Option Agreement) 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.



     (j) Disability of Optionholder. In the event an Optionholder’s Continuous Service terminates
as a result of the Optionholder’s Disability, then, subject to any restrictions in the Option
Agreement, the Option shall become fully vested and exercisable as of the date of termination. The
Optionholder may exercise his or her Option, but only within such period of time ending on the
earlier of (i) the date twelve (12) months following such termination (or such longer or shorter
period specified in the Option Agreement) or (ii) the expiration of the term of the Option as set
forth in the Option Agreement. If, after termination, the Optionholder does not exercise his or her
Option within the time specified herein, the Option shall terminate.



     (k) Death of Optionholder. In the event an Optionholder’s Continuous Service terminates as a
result of the Optionholder’s death, then, subject to any restrictions in the Option Agreement, the
Option shall become fully vested and exercisable as of the date of termination. 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 the Option as of the date
of death) by the Optionholder’s estate, by a person who acquired the right to exercise the Option
by bequest or inheritance or by a person designated to exercise the Option upon the Optionholder’s
death pursuant to subsection 6(e) or 6(f), but only within the period ending on the earlier of (1)
the date eighteen (18) months following the date of death (or such longer or shorter period
specified in the Option Agreement) or (2) the expiration



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of the term of such Option as set forth in the Option Agreement. If, after death, the Option
is not exercised within the time specified herein, the Option shall terminate.




     (l) Early Exercise. The Option may, but need not, include a provision whereby the
Optionholder may elect at any time before the Optionholder’s Continuous Service terminates to
exercise the Option as to any part or all of the shares subject to the Option prior to the full
vesting of the Option. Any unvested shares so purchased may be subject to an unvested share
repurchase option in favor of the Company or to any other restriction the Board determines to be
appropriate.



7. Provisions of Stock Awards Other than Options.




     (a) Stock Bonus Awards. Each stock bonus agreement shall be in such form and shall contain
such terms and conditions as the Board shall deem appropriate. The terms and conditions of stock
bonus agreements may change from time to time, and the terms and conditions of separate stock bonus
agreements need not be identical, but each 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:



     (b) Consideration. A stock bonus shall be awarded in consideration for past services actually
rendered to the Company for its benefit.



     (c) Vesting. Shares of Common Stock awarded under the stock bonus 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.



     (d) Termination of Participant’s Continuous Service. In the event a Participant’s Continuous
Service terminates, the Company may 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 stock bonus
agreement; provided, however, that in the event a Participant’s Continuous Service terminates as a
result of the Participant’s death, then, subject to any restrictions in the stock bonus agreement,
the shares acquired pursuant to the stock bonus agreement shall become fully vested as of the date
of termination.



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



     (f) Restricted Stock Awards. Each restricted stock purchase 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 agreements may change from time to time, and the terms
and conditions of separate restricted stock purchase agreements need not be identical, but each
restricted stock purchase agreement shall include (through incorporation of provisions hereof by
reference in the agreement or otherwise) the substance of each of the following provisions:



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     (g) Purchase Price. The purchase price under each restricted stock purchase agreement shall
be such amount as the Board shall determine and designate in such restricted stock purchase
agreement. The purchase price shall not be less than eighty-five percent (85%) of the stock’s Fair
Market Value on the date such award is made or at the time the purchase is consummated.



     (h) Consideration. The purchase price of stock acquired pursuant to the restricted stock
purchase agreement shall be paid either: (i) in cash at the time of purchase; (ii) at the
discretion of the Board, according to a deferred payment or other similar arrangement with the
Participant; or (iii) in any other form of legal consideration that may be acceptable to the Board
in its discretion; provided, however, that at any time that the Company is incorporated in
Delaware, payment of the Common Stock’s “par value,” as defined in the Delaware General Corporation
Law, shall not be made by deferred payment.



     (i) Vesting. Shares of Common Stock acquired under the restricted stock purchase 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.



     (j) Termination of Participant’s Continuous Service. In the event a Participant’s Continuous
Service terminates, the Company may repurchase or otherwise 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 restricted stock purchase agreement; provided, however, that in the event a
Participant’s Continuous Service terminates as a result of the Participant’s death, then, subject
to any restrictions in the restricted stock purchase agreement, the shares acquired pursuant to the
restricted stock purchase agreement shall become fully vested as of the date of termination.



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



8. Covenants of the Company.




     (a) Availability of Shares. During the terms 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.



     (b) Securities Law Compliance. The Company shall seek to obtain from each regulatory
commission or agency having jurisdiction over the Plan such authority as may be required to grant
Stock Awards and to issue and sell shares of Common Stock upon exercise of the Stock Awards;
provided, however, that this undertaking shall not require the Company to register under the
Securities Act the Plan, any Stock Award or any 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



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




9. Use of Proceeds From Stock.




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



10. Miscellaneous.




     (a) Acceleration of Exercisability and Vesting. The Board shall have the power to 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 the provisions in the Stock
Award stating the time at which it may first be exercised or the time during which it will vest.



     (b) Stockholder 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 subject to such Stock Award unless and until
such Participant has satisfied all requirements for exercise of the Stock Award pursuant to its
terms.



     (c) 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 or other holder of Stock
Awards 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 or an
Affiliate, and any applicable provisions of the corporate law of the state in which the Company or
the Affiliate is incorporated, as the case may be.



     (d) Incentive Stock Option $100,000 Limitation. To the extent that the aggregate Fair Market
Value (determined at the time of grant) of 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), 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.



     (e) Investment Assurances. The Company may require a Participant, as a condition of
exercising or acquiring 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



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risks of exercising the Stock Award; and (ii) to give written assurances satisfactory to the
Company stating that the Participant is acquiring the stock subject to the Stock Award for the
Participant’s own account and not with any present intention of selling or otherwise distributing
the stock. The foregoing requirements, and any assurances given pursuant to such requirements,
shall be inoperative if (iii) the issuance of the shares upon the exercise or acquisition of stock
under the Stock Award has been registered under a then currently effective registration statement
under the Securities Act or (iv) as to any particular requirement, a determination is made by
counsel for the Company that such requirement need not be met in the circumstances under the then
applicable securities laws. The Company may, upon advice of counsel to the Company, place legends
on stock certificates issued under the Plan as such counsel deems necessary or appropriate in order
to comply with applicable securities laws, including, but not limited to, legends restricting the
transfer of the stock.




     (f) Withholding Obligations. To the extent provided by the terms of a Stock Award Agreement,
the Participant may satisfy any federal, state or local tax withholding obligation relating to the
exercise or acquisition of stock under a Stock Award by any of the following means (in addition to
the Company’s right to withhold from any compensation paid 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 from the shares of the Common Stock otherwise issuable to the Participant as a result of the
exercise or acquisition of stock under the Stock Award, provided, however, that no shares of Common
Stock are withheld with a value exceeding the minimum amount of tax required to be withheld by law;
or (iii) delivering to the Company owned and unencumbered shares of the Common Stock.



11. Adjustments Upon Changes in Stock.




     (a) Capitalization Adjustments. If any change is made in the stock subject to the Plan, or
subject to any Stock Award, without the receipt of consideration by the Company (through merger,
consolidation, reorganization, recapitalization, reincorporation, stock dividend, dividend in
property other than cash, stock split, liquidating dividend, combination of shares, exchange of
shares, change in corporate structure or other transaction not involving the receipt of
consideration by the Company), the Plan will be appropriately adjusted in the class(es) and maximum
number of securities subject to the Plan pursuant to subsection 4(a) and the maximum number of
securities subject to award to any person pursuant to subsection 5(c), and the outstanding Stock
Awards will be appropriately adjusted in the class(es) and number of securities and price per share
of stock subject to such outstanding Stock Awards. Such adjustments shall be made by the Board, the
determination of which shall be final, binding and conclusive. (The conversion of any convertible
securities of the Company shall not be treated as a transaction “without receipt of consideration”
by the Company.)



     (b) Dissolution or Liquidation. In the event of a dissolution or liquidation of the Company,
then such Stock Awards shall be terminated if not exercised (if applicable) prior to such event.



     (c) Corporate Transaction. In the event of (1) a sale, lease or other disposition of all or
substantially all of the assets of the Company, (2) a merger or consolidation in which the



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Company is not the surviving corporation or (3) a reverse merger in which the Company is the
surviving corporation but the shares of Common Stock outstanding immediately preceding the merger
are converted by virtue of the merger into other property, whether in the form of securities, cash
or otherwise (a “Corporate Transaction”), then any surviving corporation or acquiring corporation
shall assume any Stock Awards outstanding under the Plan or shall substitute similar stock awards
(including an award to acquire the same consideration paid to the stockholders in the Corporate
Transaction) for those outstanding under the Plan. In the event any surviving corporation or
acquiring corporation refuses to assume 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 vesting of such Stock Awards (and, if applicable, the
time during which such Stock Awards may be exercised) shall be accelerated in full, and the Stock
Awards shall terminate if not exercised (if applicable) at or prior to such Corporate Transaction.
With respect to any other Stock Awards outstanding under the Plan, such Stock Awards shall
terminate if not exercised (if applicable) prior to such Corporate Transaction.




     (d) Securities Acquisition. In the event of an acquisition by any person, entity or group
within the meaning of Section 13(d) or 14(d) of the Exchange Act, or any comparable successor
provisions (excluding any employee benefit plan, or related trust, sponsored or maintained by the
Company or an Affiliate) of the beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act, or comparable successor rule) of securities of the Company representing at
least fifty percent (50%) of the combined voting power entitled to vote in the election of
Directors and provided that such acquisition is not a result of, and does not constitute, a
Corporate Transaction described in subsection 11(c) hereof, then with respect to Stock Awards held
by Participants whose Continuous Service has not terminated, the vesting of such Stock Awards (and,
if applicable, the time during which such Stock Awards may be exercised) shall be accelerated in
full.



12. Amendment of the Plan and Stock Awards.




     (a) Amendment of Plan. The Board at any time, and from time to time, may amend the Plan.
However, except as provided in Section 11 relating to adjustments upon changes in stock, no
amendment shall be effective unless approved by the stockholders of the Company to the extent
stockholder approval is necessary to satisfy the requirements of Section 422 of the Code, Rule
16b-3 or any Nasdaq or securities exchange listing requirements.



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



     (c) 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



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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.




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



     (e) 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; provided, however, that the rights under any Stock Award
shall not be impaired by any such amendment unless (i) the Company requests the consent of the
Participant and (ii) the Participant consents in writing.



     (f) Repricing of Stock Awards. Without prior stockholder approval, the Board will not effect
a “repricing” (as hereinafter defined) of any Stock Awards under the Plan. For purposes of the
immediately preceding sentence, a “repricing” shall be deemed to mean any of the following actions:
(a) the lowering of the purchase price of a Stock Award after it is granted; (b) the canceling of a
Stock Award in exchange for another Stock Award at a time when the purchase price of the cancelled
Stock Award exceeds the Fair Market Value of the underlying stock (unless the cancellation and
exchange occurs in connection with a merger, acquisition, spin-off, dissolution, winding up or
other similar corporate transaction with respect to the Company or any subsidiary of the Company to
which the holder of such Stock Award is providing or had provided service); or (c) the purchase of
a Stock Award for cash or other consideration at a time when the purchase price of the purchased
Stock Award exceeds the Fair Market Value of the underlying stock (unless the purchase occurs in
connection with a merger, acquisition, spin-off, dissolution, winding up or other similar corporate
transaction with respect to the Company or any subsidiary of the Company to which the holder of
such Stock Award is providing or had provided service).



13. Termination or Suspension of the Plan.




     (a) Plan Term. The Board may suspend or terminate the Plan at any time. Unless sooner
terminated, the Plan shall terminate on February 9, 2010. No Stock Awards may be granted under the
Plan while the Plan is suspended or after it is terminated.



     (b) No Impairment of Rights. Rights and obligations under any Stock Award granted while the
Plan is in effect shall not be impaired by suspension or termination of the Plan, except with the
written consent of the Participant.



14. Effective Date of Plan.




     The Plan shall become effective upon adoption by the Board, but no Stock Award shall be
exercised (or, in the case of a stock bonus, shall be granted) unless and until the Plan has been
approved by the stockholders of the Company, which approval shall be within twelve (12) months
before or after the date the Plan is adopted by the Board.



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15. Choice of Law.




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




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