exv10w5






Exhibit 10.5




ILLUMINA, INC.




AMENDED AND RESTATED 2005 STOCK AND INCENTIVE PLAN

(as of October 28, 2009)




     1. Purposes of the Plan. The purposes of this 2005 Stock and Incentive Plan are to attract
and retain the best available personnel for positions of substantial responsibility, to provide
additional incentive to Service Providers, and to promote the success of the Company’s business.
Options granted under the Plan may be Incentive Stock Options or Nonstatutory Stock Options, as
determined by the Administrator at the time of grant. Stock Awards (including Stock Grants, Stock
Units and Stock Appreciation Rights) and Cash Awards may also be granted under the Plan.



     2. Definitions. As used herein, the following definitions shall apply:




	 	(a)	 	“Administrator” means the Board or any of its Committees as shall be
administering the Plan, in accordance with Section 4 hereof.
	 
	 	(b)	 	“Applicable Laws” means the requirements relating to the administration of
stock option and restricted stock plans, the grant of options and the issuance of
shares under U.S. state corporate laws, U.S. federal and state securities laws, the
Code, any Nasdaq National Market, stock exchange or quotation system on which the
Common Stock is listed or quoted and the applicable laws of any other country or
jurisdiction where Options or Awards are granted under the Plan, as such laws, rules,
regulations and requirements shall be in place from time to time.
	 
	 	(c)	 	“Award” means an Option, a Stock Award or a Cash Award granted in accordance
with the terms of the Plan.
	 
	 	(d)	 	“Award Agreement” means a Stock Award Agreement, Cash Award Agreement and/or
Option Agreement, which may be in written or electronic format, in such form and with
such terms and conditions as may be specified by the Administrator, evidencing the
terms and conditions of an individual Award. Each Award Agreement is subject to the
terms and conditions of the Plan.
	 
	 	(e)	 	“Board” means the Board of Directors of the Company.
	 
	 	(f)	 	“Cash Award” means a bonus opportunity awarded under Section 15 pursuant to
which a Participant may become entitled to receive an amount based on the satisfaction
of such performance criteria as are specified in the agreement or other documents
evidencing the Award (the “Cash Award Agreement”).
	 
	 	(g)	 	“Code” means the Internal Revenue Code of 1986, as amended.




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	 	(h)	 	“Committee” means a committee of Directors appointed by the Board in
accordance with Section 4 hereof.
	 
	 	(i)	 	“Common Stock” means the common stock of the Company.
	 
	 	(j)	 	“Company” means Illumina, Inc., a Delaware corporation.
	 
	 	(k)	 	“Consultant” means any natural person, including an advisor, engaged by the
Company or a Parent or Subsidiary to render services to such entity.
	 
	 	(l)	 	“Corporate Transaction” means any of the following, unless the Administrator
provides otherwise:






	 	(i)	 	any merger or consolidation in which the Company shall not be
the surviving entity (or survives only as a subsidiary of another entity whose
stockholders did not own all or substantially all of the Common Stock in
substantially the same proportions as immediately prior to such transaction),
	 
	 	(ii)	 	the sale of all or substantially all of the Company’s assets
to any other person or entity (other than a wholly-owned subsidiary),
	 
	 	(iii)	 	the acquisition of beneficial ownership of a controlling
interest (including, without limitation, power to vote) in the outstanding
shares of Common Stock by any person or entity (including a “group” as defined
by or under Section 13(d)(3) of the Exchange Act),
	 
	 	(iv)	 	a contested election of Directors, as a result of which or in
connection with which the persons who were Directors before such election or
their nominees (the “Incumbent Directors”) cease to constitute a majority of
the Board; provided, however, that if the election, or nomination for election
by the Company’s stockholders, of any new Director was approved by a vote of
at least fifty percent (50%) of the Incumbent Directors, such new Director
shall be considered as an Incumbent Director, or
	 
	 	(v)	 	any other event specified by the Board or a Committee,
regardless of whether at the time an Award is granted or thereafter.






	 	(m)	 	“Director” means a member of the Board.
	 
	 	(n)	 	“Disability” means total and permanent disability as defined in Section 21
(e)(3) of the Code.
	 
	 	(o)	 	“Effective Date” means the date on which the Company’s stockholders approve
the Plan.




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	 	(p)	 	“Employee” means any person, including Officers and Inside Directors,
employed by the Company or any Parent or Subsidiary of the Company. An Employee shall
not be deemed to cease Employee status by reason of (i) any leave of absence approved
by the Company or (ii) transfers between locations of the Company or between the
Company, its Parent, any Subsidiary, or any successor. For purposes of Incentive
Stock Options, no such leave may exceed ninety days, unless reemployment upon
expiration of such leave is guaranteed by statute or contract. If reemployment upon
expiration of a leave of absence approved by the Company is not so guaranteed, then
three (3) months following the 91st day of such leave any Incentive Stock Option held
by the Optionee shall cease to be treated as an Incentive Stock Option and shall be
treated for tax purposes as a Nonstatutory Stock Option. Neither service as Director
nor payment of a director’s fee by the Company shall be sufficient to constitute
“employment” by the Company.
	 
	 	(q)	 	“Exchange Act” means the Securities Exchange Act of 1934, as amended.
	 
	 	(r)	 	“Fair Market Value” means, as of any date, the value of a Share determined as
follows:






	 	(i)	 	if the Common Stock is listed on any established stock
exchange or traded on a national market system, including without limitation
the Nasdaq National Market or the Nasdaq SmallCap Market of The Nasdaq Stock
Market, the Fair Market Value of a Share shall be the closing selling price
for such stock (or the closing bid, if no sales were reported) as quoted on
such exchange or system on the day of determination, as reported in The Wall
Street Journal or such other source as the Administrator deems reliable;






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






	 	(iii)	 	in the absence of an established market for the Common
Stock, the Fair Market Value shall be determined in good faith by the
Administrator.






	 	(s)	 	“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 and as designated in the applicable Option Agreement.
	 
	 	(t)	 	“Inside Director” means a Director who is an Employee.




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	 	(u)	 	“Nonstatutory Stock Option” means an Option not intended to qualify as an
Incentive Stock Option and/or as designated in the applicable Option Agreement.
	 
	 	(v)	 	“Notice of Grant” means a written or electronic notice evidencing certain
terms and conditions of an individual Option grant. The Notice of Grant is part of
the Option Agreement.
	 
	 	(w)	 	“Officer” means a person who is an executive officer of the Company within
the meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder.
	 
	 	(x)	 	“Option” means a stock option granted pursuant to the Plan.
	 
	 	(y)	 	“Option Agreement” means an agreement between the Company and an Optionee
evidencing the terms and conditions of an individual Option grant. The Option
Agreement is subject to the terms and conditions of the Plan.
	 
	 	(z)	 	“Optioned Shares” means the Shares subject to an Option.
	 
	 	(aa)	 	“Optionee” means the holder of an outstanding Option granted under the Plan.
	 
	 	(bb)	 	“Outside Director” means a Director who is not an Employee.
	 
	 	(cc)	 	“Parent” means a “parent corporation,” whether now or hereafter existing, as
defined in Section 424(e) of the Code or any successor provision.
	 
	 	(dd)	 	“Participant” means any holder of one or more Options, Stock Awards or Cash
Awards, or the Shares issuable or issued upon exercise of such Awards, under the Plan.
	 
	 	(ee)	 	“Plan” means this 2005 Stock and Incentive Plan.
	 
	 	(ff)	 	“Predecessor Plan” means the Illumina, Inc. 2000 Stock Plan, as amended.
	 
	 	(gg)	 	“Qualifying Performance Criteria” means any one or more of the following
performance criteria, either individually, alternatively or in any combination,
applied to either the Company as a whole or to a business unit, Parent, Subsidiary or
business segment, either individually, alternatively or in any combination, and
measured either annually or cumulatively over a period of years, on an absolute basis
or relative to a pre-established target, to previous years’ results or to a designated
comparison group, in each case as specified by the Committee in the Award: (i) cash
flow; (ii) earnings (including gross margin, earnings before interest and taxes,
earnings before taxes, and net earnings); (iii)




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	 	 	 	earnings per share; (iv) growth in earnings or earnings per share; (v) stock price;
(vi) return on equity or average stockholders’ equity; (vii) total stockholder
return; (viii) return on capital; (ix) return on assets or net assets; (x) return
on investment; (xi) revenue; (xii) income or net income; (xiii) operating income or
net operating income; (xiv) operating profit or net operating profit; (xv)
operating margin; (xvi) return on operating revenue; (xvii) market share; (xviii)
contract awards or backlog; (xix) overhead or other expense reduction; (xx) growth
in stockholder value relative to the moving average of the S&P 500 Index or a peer
group index; (xxi) credit rating; (xxii) strategic plan development and
implementation (including individual performance objectives that relate to
achievement of the Company’s or any business unit’s strategic plan); (xxiii)
improvement in workforce diversity, and (xxiv) any other similar criteria as may be
determined by the Administrator. The Committee may appropriately adjust any
evaluation of performance under a Qualifying Performance Criteria to exclude any of
the following events that occurs during a performance period: (A) asset
write-downs; (B) litigation or claim judgments or settlements; (C) the effect of
changes in tax law, accounting principles or other such laws or provisions
affecting reported results; (D) accruals for reorganization and restructuring
programs; and (E) any gains or losses classified as extraordinary or as
discontinued operations in the Company’s financial statements.
	 
	 	(hh)	 	“Rule 16b-3” means Rule 16b-3 of the Exchange Act, as the same may be amended
from time to time, or any successor to Rule 16b-3, as in effect when discretion is
being exercised with respect to the Plan.
	 
	 	(ii)	 	“Service Provider” means (i) an individual rendering services to the Company
or any Parent or Subsidiary of the Company in the capacity of an Employee or
Consultant or (ii) an individual serving as a Director.
	 
	 	(jj)	 	“Share” means a share of the Common Stock, as adjusted in accordance with
Section 17 hereof.
	 
	 	(kk)	 	“Stock Appreciation Right” means a right to receive cash and/or Shares based
on a change in the Fair Market Value of a specific number of Shares granted under
Section 14.
	 
	 	(ll)	 	“Stock Award” means a Stock Grant, a Stock Unit or a Stock Appreciation Right
granted under Sections 13 or 14 below or other similar awards granted under the Plan
(including phantom stock rights).
	 
	 	(mm)	 	“Stock Award Agreement” means a written agreement, the form(s) of which shall
be approved from time to time by the Administrator, 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.




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	 	(nn)	 	“Stock Grant” means the award of a certain number of Shares granted under
Section 13 below.
	 
	 	(oo)	 	“Stock Unit” means a bookkeeping entry representing an amount equivalent to
the Fair Market Value of one Share, payable in cash, property or Shares. Stock Units
represent an unfunded and unsecured obligation of the Company, except as otherwise
explicitly provided for by the Administrator.
	 
	 	(pp)	 	“Subsidiary” means a “subsidiary corporation,” whether now or hereafter
existing, as defined in Section 424(f) of the Code, or any successor provision.
	 
	 	(qq)	 	“Withholding Taxes” means the federal, state and local income and employment
withholding taxes, or any other taxes required to be withheld, to which the holder of
an Award may be subject in connection with the grant, exercise, or vesting of an Award
or the issuance or transfer of Shares issued or issuable pursuant to an Award.





     3. Stock Subject to the Plan.




	 	(a)	 	Subject to the provisions of Section 17 hereof, the maximum aggregate number
of Shares that may be issued and sold under the Plan is 11,542,358 Shares. This
maximum number of Shares reserved and available for issuance under the Plan consists
of Shares reserved for issuance under the Predecessor Plan that as of May 2, 2005 were
either (i) available for grant pursuant to awards that may be made under the
Predecessor Plan or (ii) subject to outstanding options granted under the Predecessor
Plan which Shares might be returned to the Predecessor Plan but such Shares shall
become available for issuance hereunder only if and to the extent the options granted
under the Predecessor Plan to which they are subject terminate or expire or become
unexercisable for any reason without having been exercised in full.
	 
	 	(b)	 	An annual increase in the number of Shares reserved for issuance hereunder
shall automatically occur on the first day of each fiscal year of the Company,
beginning with fiscal year 2006 and ending with fiscal year 2010, equal to the lesser
of (i) 1,200,000 Shares (subject to adjustment under Section 17), (ii) 5% of the
outstanding Shares as of the last day of the immediately preceding fiscal year or
(iii) a number of Shares determined by the Board. The Shares may be authorized, but
unissued, or reacquired Shares, including Shares repurchased by the Company on the
open market.
	 
	 	(c)	 	If an outstanding Award expires or terminates for any reason prior to
exercise in full, or without the Shares subject thereto having been issued in full,
the unpurchased or unissued Shares which were subject thereto shall




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	 	 	 	become available for future grant or sale under the Plan (unless the Plan has
terminated); provided, however, that Shares that have actually been issued under
the Plan pursuant to an Award shall not be returned to the Plan and shall not
become available for future distribution under the Plan, except that if unvested
Shares are repurchased by the Company at their original purchase price or otherwise
forfeited to the Company in connection with termination of a Participant’s status
as a Service Provider, such Shares shall become available for future grant under
the Plan. Should the exercise or purchase price of an Award under the Plan be paid
with Shares (including by withholding Shares from the Award) or should Shares
otherwise issuable under the Plan be withheld by the Company in satisfaction of the
Withholding Taxes incurred in connection with the exercise, purchase or issuance of
Shares under an Award, then the number of Shares available for issuance under the
Plan shall be reduced by the gross number of Shares issued in connection with the
Award, and not by the net number of Shares issued to the holder of such Award.





     4. Administration of the Plan.




	 	(a)	 	Procedure.






	 	(i)	 	Multiple Administrative Bodies. Different Committees with
respect to different groups of Service Providers may administer the Plan.
	 
	 	(ii)	 	Section 162(m). To the extent that the Administrator
determines it to be desirable to qualify Awards granted hereunder as
“performance-based compensation” within the meaning of Section 162(m) of the
Code, the Plan shall be administered by a Committee of two or more “outside
directors” within the meaning of Section 162(m) of the Code.
	 
	 	(iii)	 	Rule 16b-3. To the extent desirable to qualify transactions
hereunder as exempt under Rule 16b-3, the transactions contemplated hereunder
shall be structured to satisfy the requirements for exemption under Rule
16b-3.
	 
	 	(iv)	 	Other Administration. Other than as provided above, the Plan
shall be administered by (A) the Board, (B) a Committee, which committee shall
be constituted to satisfy Applicable Laws or (C) subject to the Applicable
Laws, one or more officers of the Company to whom the Board or Committee has
delegated the power to grant Awards to persons eligible to receive Awards
under the Plan provided such grantees may not be officers or Directors.






	 	(b)	 	Powers of the Administrator. Subject to the provisions of the Plan, and in
the case of a Committee, subject to the specific duties delegated by the




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	 	 	 	Board to such Committee, the Administrator shall have the authority, in its
discretion:






     (A) to determine the Fair Market Value of the Common Stock in
accordance with Section 2(r) of the Plan;




     (B) to select the Service Providers to whom Awards may be granted
hereunder;




     (C) to determine the number of Shares or amount of cash to be covered
by each Award granted hereunder;




     (D) to approve forms of Award Agreements for use under the Plan;




     (E) to determine the terms and conditions, not inconsistent with the
terms of the Plan, of any Award granted hereunder, which terms and
conditions include, but are not limited to, the exercise price and/or
purchase price (if applicable), the time or times when Awards may be
exercised (which may be based on performance criteria), the vesting
schedule, any vesting and/or exercisability acceleration or waiver of
forfeiture restrictions, the acceptable forms of consideration, the term
and any restriction or limitation regarding any Award or the Shares
relating thereto, based in each case on such factors as the Administrator,
in its sole discretion, shall determine and may be established at the time
an Award is granted or thereafter;




     (F) to construe and interpret the terms of the Plan and Awards
granted pursuant to the Plan;




     (G) to prescribe, amend and rescind rules and regulations relating to
the Plan, including rules and regulations relating to sub-plans
established for the purpose of satisfying applicable foreign laws;




     (H) to modify or amend each Award (subject to Section 19 hereof),
including the discretionary authority to extend the post-termination
exercisability or purchase period of Awards longer than is originally
provided for in the Award Agreement;




     (I) to allow Participants to satisfy Withholding Tax obligations by
electing to have the Company withhold from the Shares to be issued upon
exercise or settlement of an Award that number of Shares having a Fair
Market Value equal to the minimum amount required to be withheld. The
Fair Market Value of the Shares to be withheld shall be determined on the
date that the amount of Withholding Tax is to be determined. All
elections



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by a Participant to have Shares withheld for this purpose shall be
made in such form and under such conditions as the Administrator may deem
necessary or advisable;




     (J) to authorize any person to execute on behalf of the Company any
instrument required to effect the grant of an Award previously granted by
the Administrator;




     (K) to make all other determinations deemed necessary or advisable
for administering the Plan.




	 	(c)	 	Effect of Administrator’s Decision. The Administrator’s decisions,
determinations and interpretations shall be final and binding on all Participants and
any other holders of Options, Stock Awards, Cash Awards or Shares issued under the
Plan.





     5. Eligibility. Nonstatutory Stock Options and Stock Awards may be granted to Service
Providers. Incentive Stock Options and Cash Awards may be granted only to Employees.



     6. Limitations.




	 	(a)	 	Each Option shall be designated in the Option Agreement as either an
Incentive Stock Option or a Nonstatutory Stock Option. However, notwithstanding
designation as an Incentive Stock Option, no installment under such an Option shall
qualify for favorable tax treatment as an Incentive Stock Option if (and to the
extent) the aggregate Fair Market Value of the Shares (determined at the date of
grant) for which such installment first becomes exercisable hereunder would, when
added to the aggregate value (determined as of the respective date or dates of grant)
of the Shares or other securities for which such Option or any other Incentive Stock
Options granted to Optionee prior to the date of grant (whether under the Plan or any
other plan of the Company or any Parent or Subsidiary of the Company) first become
exercisable during the same calendar year, exceed One Hundred Thousand Dollars
($100,000) in the aggregate. Should such One Hundred Thousand Dollar ($100,000)
limitation be exceeded in any calendar year, the Option shall nevertheless become
exercisable for the excess Optioned Shares in such calendar year as a Nonstatutory
Stock Option. For purposes of this Section 6(a), Incentive Stock Options shall be
taken into account in the order in which they were granted.
	 
	 	(b)	 	Neither the Plan nor any Award shall confer upon a Participant any right with
respect to continuing the Participant’s relationship as a Service Provider with the
Company, nor shall they interfere in any way with the Participant’s right or the
Company’s right to terminate such relationship at any time, with or without cause.




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	 	(c)	 	The following limitations shall apply to grants of Options and Stock Awards:






	 	(i)	 	No Service Provider shall be granted, in any fiscal year of
the Company, Awards covering more than 500,000 Shares, subject to adjustment
as provided in Section 17 below.






	 	(ii)	 	However, in connection with his or her commencement of
Service Provider status, an individual may be granted Awards covering up to an
additional 1,000,000 Shares during the fiscal year in which such commencement
occurs, which shall not count against the limit set forth in subsection (i)
above and subject to adjustment as provided in Section 17 below.





     7. Term of Plan. The Plan shall become effective on the Effective Date. Unless the Plan is
terminated earlier pursuant to Section 19 hereof, the Plan shall terminate upon the earliest to
occur of (a) June 28, 2015, (b) the date on which all Shares available for issuance under the Plan
shall have been issued as fully vested Shares or (c) the termination of all outstanding Awards in
connection with a dissolution or liquidation pursuant to Section 17(b) hereof or a Corporate
Transaction pursuant to Section 17(c) hereof. Should the Plan terminate on June 28, 2015, then all
Awards outstanding at that time shall continue to have force and effect in accordance with the
provisions of the applicable Award Agreement.



     8. Term of Option. The term of each Option shall be stated in the Option Agreement; provided,
however, that the term shall be no more than ten (10) years from the date of grant or such shorter
term as may be provided in the Option Agreement. Moreover, in the case of an Incentive Stock
Option granted to an Optionee who, at the time the Incentive Stock Option is granted, owns stock
representing more than ten percent (10%) of the total combined voting power of all classes of stock
of the Company or any Parent or Subsidiary, the term of the Incentive Stock Option shall be five
(5) years from the date of grant or such shorter term as may be provided in the Option Agreement.



     9. Option Exercise Price and Consideration.




	 	(a)	 	Exercise Price. The per Share exercise price for the Shares to be issued
pursuant to exercise of an Option shall be determined by the Administrator, subject to
the following:






	 	(i)	 	In the case of an Incentive Stock Option






     (A) granted to an Employee who, at the time the Incentive Stock
Option is granted, owns stock representing more than ten percent (10%) of
the voting power of all classes of stock of the Company or any Parent or
Subsidiary, the per Share exercise price shall be no less than 110% of the
Fair Market Value per Share on the date of grant.



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     (B) granted to any Employee other than an Employee described in
paragraph (A) immediately above, the per Share exercise price shall be no
less than 100% of the Fair Market Value per Share on the date of grant.




	 	(ii)	 	In the case of a Nonstatutory Stock Option, the per Share
exercise price shall be no less than 100% of the Fair Market Value per Share
on the date of grant.






	 	(b)	 	Waiting Period and Exercise Dates. At the time an Option is granted, the
Administrator shall fix the period within which the Option may be exercised and shall
determine any conditions (including any vesting conditions) that must be satisfied
before the Option may be exercised.
	 
	 	(c)	 	Form of Consideration. The Administrator shall determine the acceptable form
of consideration for exercising an Option, including the method of payment. Such
consideration may consist entirely of:






	 	(i)	 	cash;
	 
	 	(ii)	 	check; 
	 
	 	(iii)	 	other Shares which, in the case of Shares acquired directly
or indirectly from the Company, (A) have been owned by the Optionee for more
than six (6) months on the date of surrender (if it is required to eliminate
or reduce accounting charges incurred by the Company in connection with the
Option, or such other period (if any) required to so eliminate or reduce such
charges), and (B) have a Fair Market Value on the date of surrender equal to
the aggregate exercise price of the Shares as to which said Option shall be
exercised;
	 
	 	(iv)	 	consideration received through a special sale and remittance
procedure pursuant to which the Optionee shall concurrently provide
irrevocable instructions to (A) a Company-designated brokerage firm to effect
the immediate sale of the purchased Shares and remit to the Company, out of
the sale proceeds available on the settlement date, sufficient funds to cover
the aggregate exercise price payable for the purchased Shares plus all
Withholding Taxes required to be withheld by the Company by reason of such
exercise and (B) the Company to deliver the certificates for the purchased
Shares directly to such brokerage firm in order to complete the sale;
	 
	 	(v)	 	a reduction in the amount of any Company liability to the
Optionee, including any liability attributable to the Optionee’s participation
in any Company-sponsored deferred compensation program or arrangement;




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	 	(vi)	 	any combination of the foregoing methods of payment; or
	 
	 	(vii)	 	such other consideration and method of payment for the
issuance of Optioned Shares as determined by the Administrator and to the
extent permitted by Applicable Laws.






	 	(d)	 	No Option Repricings. Other than in connection with a change in the
Company’s capitalization (as described in Section 17(a) of the Plan), the exercise
price of an Option may not be reduced without stockholder approval.





     10. Exercise of Option.




	 	(a)	 	Procedure for Exercise; Rights as a Stockholder.






	 	(i)	 	Any Option granted hereunder shall be exercisable according
to the terms of the Plan and at such times and under such conditions as
determined by the Administrator and set forth in the Option Agreement. Unless
the Administrator provides otherwise, vesting of Options granted hereunder
shall be suspended during any unpaid leave of absence. An Option may not be
exercised for a fraction of a Share.
	 
	 	(ii)	 	An Option shall be deemed exercised when the Company
receives: (A) written or electronic notice of exercise (in accordance with the
Option Agreement) from the person entitled to exercise the Option, and (B)
full payment for the Optioned Shares with respect to which the Option is
exercised and (C) satisfaction of any Withholding Taxes. Full payment may
consist of any consideration and method of payment authorized by the
Administrator and permitted by the Plan and shall be set forth in the Option
Agreement. Shares issued upon exercise of an Option shall be issued in the
name of the Optionee or, if requested by the Optionee, in the name of the
Optionee and his or her spouse. Until the Shares are issued (as evidenced by
the appropriate entry on the books of the Company or of a duly authorized
transfer agent of the Company), no right to vote or receive dividends or any
other rights as a stockholder shall exist with respect to the Optioned Shares,
notwithstanding the exercise of the Option. The Company shall issue (or cause
to be issued) such Shares promptly after the Option is exercised. No
adjustment will be made for a dividend or other right for which the record
date is prior to the date the Shares are issued, except as provided in Section
17 hereof.
	 
	 	(iii)	 	Exercising an Option in any manner shall decrease the number
of Optioned Shares thereafter available, both for purposes of the Plan




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	 	 	 	and for sale under the Option, by the number of Shares as to which the
Option is exercised.






	 	(b)	 	Termination of Relationship as a Service Provider. If an Optionee ceases to
be a Service Provider, other than upon the Optionee’s death or Disability, such
Optionee may exercise his or her Option for a period of three (3) months measured from
the date of termination, or such longer period of time as specified in the Option
Agreement, to the extent that the Option is vested on the date of termination (but in
no event later than the expiration of the term of the Option as set forth in the
Option Agreement); provided, however, that, unless otherwise provided by the
Administrator in the Option Agreement, any Officer or Outside Director (as of the date
of termination) may exercise his or her Option for a period of twelve (12) months
measured from the date of termination, or such longer period of time as specified in
the Option Agreement, to the extent that the Option is vested on the date of
termination (but in no event later than the expiration of the term of the Option as
set forth in the Option Agreement). If, on the date of termination, the Optionee is
not vested as to his or her entire Option, the Option shall immediately terminate as
to all the Optioned Shares covered by the unvested portion of the Option, and those
Optioned Shares shall revert immediately to the Plan. To the extent the Optionee does
not, within the post-termination time period determined pursuant to this
Section 10(b), exercise the Option for the Optioned Shares in which Optionee is vested
at the time of such termination of Service Provider status, the Option shall terminate
with respect to those vested Optioned Shares at the end of such period, and those
Optioned Shares shall revert to the Plan.
	 
	 	(c)	 	Disability of Optionee. If an Optionee ceases to be a Service Provider as a
result of the Optionee’s Disability, the Optionee may exercise his or her Option
within twelve (12) months of termination, or such longer period of time as specified
in the Option Agreement, to the extent the Option is vested on the date of termination
(but in no event later than the expiration of the term of such Option as set forth in
the Option Agreement). If, on the date of termination, the Optionee is not vested as
to his or her entire Option, the Option shall immediately terminate as to the Optioned
Shares covered by the unvested portion of the Option, and those Optioned Shares shall
revert immediately to the Plan. To the extent the Optionee does not, within the
post-termination time period determined pursuant to this Section 10(c), exercise the
Option for the Optioned Shares in which Optionee is vested at the time of such
termination of Service Provider status, the Option shall terminate with respect to
those vested Optioned Shares at the end of such period, and those Optioned Shares
shall revert to the Plan.
	 
	 	(d)	 	Death of Optionee. If an Optionee dies while a Service Provider, the Option
may be exercised within twelve (12) months following Optionee’s




13









 






	 	 	 	death, or such longer period of time as specified in the Option Agreement, to the
extent that the Option is vested on the date of death (but in no event later than
the expiration of the term of such Option as set forth in the Option Agreement) by
the Optionee’s designated beneficiary, provided such beneficiary has been
designated prior to Optionee’s death in a form acceptable to the Administrator. If
no such beneficiary has been designated by the Optionee, then such Option may be
exercised by the personal representative of the Optionee’s estate or by the
person(s) to whom the Option is transferred pursuant to the Optionee’s will or in
accordance with the laws of descent and distribution. If, at the time of death,
the Optionee is not vested as to his or her entire Option, the Option shall
immediately terminate as to the Optioned Shares covered by the unvested portion of
the Option, and those Optioned Shares shall immediately revert to the Plan. To the
extent the Option is not, within the post-termination time period determined
pursuant to this Section 10(d), exercised for the Optioned Shares in which Optionee
is vested at the time of such termination of Service Provider status, the Option
shall terminate with respect to those vested Optioned Shares, and those Optioned
Shares shall revert to the Plan.





     11. Formula Option Grants to Outside Directors. Outside Directors shall automatically be
granted Options in accordance with the following provisions:




	 	(a)	 	All Options granted pursuant to this Section shall be Nonstatutory Stock
Options and, except as otherwise provided in this Section 11, shall be subject to the
other terms and conditions of the Plan.
	 
	 	(b)	 	Each individual who becomes an Outside Director after the Effective Date
shall be automatically granted an Option to purchase 20,000 Shares subject to
adjustment as set forth in Section 17(a) below (the “First Option”) on the date such
individual is elected as a Director, whether through election by the stockholders of
the Company or appointment by the Board to fill a vacancy; provided, however, that an
Inside Director who ceases to be an Inside Director but who remains a Director shall
not receive a First Option.
	 
	 	(c)	 	On each annual stockholder meeting commencing with the Effective Date, each
Outside Director who continues to serve in such capacity immediately after such annual
stockholder meeting shall be automatically granted an Option to purchase 7,500 Shares
and 1,000 Stock Units subject to adjustment as set forth in Section 17(a) below (a
“Subsequent Option”); provided that the Outside Director has served on the Board for
at least six calendar months prior to the date of such annual stockholder meeting.
	 
	 	(d)	 	The terms of a First Option or a Subsequent Option granted pursuant to this
Section shall be as follows:




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	 	(i)	 	The term of the Option shall be ten (10) years measured from
the date of grant.
	 
	 	(ii)	 	The Option shall be exercisable only during the time that the
Outside Director remains a Director and, with respect to Optioned Shares
vested on the last day of service as a Director for the twelve (12) month
period following the date of the Optionee’s cessation of service as a
Director, provided, however, that the Option cannot be exercised after the
expiration of the term of the Option. If, at the time of Optionee’s cessation
of service as a Director, the Optionee is not vested as to his or her entire
Option, the Option shall immediately terminate as to the Optioned Shares
covered by the unvested portion of the Option, and those Optioned Shares shall
immediately revert to the Plan. To the extent the Option is not, within the
post-termination time period determined pursuant to this Section 11(d)(ii),
exercised for the Optioned Shares in which the Optionee is vested at the time
of his or her cessation of Director status, the Option shall terminate with
respect to those vested Optioned Shares, and those Optioned Shares shall
revert to the Plan.
	 
	 	(iii)	 	The exercise price per Share shall be 100% of the Fair
Market Value per Share on the date of grant of the Option.
	 
	 	(iv)	 	The First Option shall vest and become exercisable as to
one-third of the Optioned Shares on each of the first three anniversaries of
its date of grant, provided that the Optionee continues to serve as a Director
on such dates.
	 
	 	(v)	 	The Subsequent Option shall vest and become exercisable as to
100% of the Optioned Shares on the earlier of (i) the one year anniversary of
the date of grant of the Option and (ii) the date immediately preceding the
date of the annual meeting of the Company’s stockholders for the year
following the year of grant of the Option, provided that the Optionee
continues to serve as a Director on such date.
	 
	 	(vi)	 	If an Outside Director dies or ceases to serve as a Director
as a result of the Outside Director’s Disability while holding any outstanding
Option under this Section 11, then that Option may be exercised within twelve
(12) months following such Outside Director’s death or termination, or such
longer period of time as specified in the Option Agreement, to the extent that
the Option is vested on the date of death or termination (but in no event
later than the expiration of the term of such Option as set forth in the
Option Agreement) by the Outside Director or the Outside Director’s designated
beneficiary, provided such beneficiary has




15









 






	 	 	 	been designated, prior to the death of the Outside Director, in a form
acceptable to the Administrator. If no such beneficiary has been
designated by the Outside Director, then such Option may be exercised by
the personal representative of such Outside Director’s estate or by the
person(s) to whom the Option is transferred pursuant to such Outside
Director’s will or in accordance with the laws of descent and
distribution. If, at the time of death or termination as a result of
Disability, the Outside Director is not vested as to such Outside
Director’s entire Option, the Option shall immediately terminate as to the
Optioned Shares covered by the unvested portion of the Option, and those
Optioned Shares shall immediately revert to the Plan. To the extent the
Option is not, within the post-termination time period determined pursuant
to this Section 11(d)(vi), exercised for the Optioned Shares in which the
Outside Director is vested at the time of death or termination as a result
of Disability, the Option shall terminate with respect to those vested
Optioned Shares, and those Optioned Shares shall revert to the Plan.
	 
	 	(vii)	 	In the event of a Corporate Transaction, all Options granted
pursuant to this Section 11 shall be subject to the terms and conditions of
Section 17(c); provided that in the event that the successor corporation does
not assume or substitute for each First Option and Subsequent Option, the
Optionee shall fully vest in and have the right to exercise the Option as to
all of the Optioned Shares, including Shares as to which it would not
otherwise be vested or exercisable.






	 	(e)	 	The Board shall have sole and exclusive authority to establish, maintain,
amend, suspend, and terminate any program by which Outside Directors are automatically
granted Nonstatutory Stock Options pursuant to this Section 11.





     12. Limited Transferability of Options. An Option generally may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner other than by will or by the laws
of descent or distribution and may be exercised, during the lifetime of the Optionee, only by the
Optionee; provided however that Nonstatutory Stock Options may be transferred by instrument to an
inter vivos or testamentary trust in which the Nonstatutory Stock Options are to be passed to
beneficiaries upon the death of the trustor (settlor) or by gift or pursuant to domestic relations
orders to “Immediate Family Members” (as defined below) of the Optionee. “Immediate Family” means
any child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling,
niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or
sister-in-law (including adoptive relationships), a trust in which these persons have more than
fifty percent of the beneficial interest, a foundation in which these persons (or the Optionee)
control the management of assets, and any other entity in which these persons (or the Optionee) own
more than fifty percent of the voting interests. The



16









 




Optionee may designate one or more persons as the beneficiary or beneficiaries of his or her
outstanding Options, and those Options shall, in accordance with such designation, automatically be
transferred to such beneficiary or beneficiaries upon the Optionee’s death while holding those
Options. Such beneficiary or beneficiaries shall take the transferred Options subject to all the
terms and conditions of the applicable agreement evidencing each such transferred Option, including
(without limitation) the limited time period during which the Option may be exercised following the
Optionee’s death.




     13. Stock Grants and Stock Unit Awards. Each Stock Award Agreement reflecting the issuance of
a Stock Grant or Stock Unit shall be in such form and shall contain such terms and conditions as
the Administrator shall deem appropriate. The terms and conditions of such agreements may change
from time to time, and the terms and conditions of separate agreements need not be identical, but
each such agreement shall include (through incorporation of provisions hereof by reference in the
agreement or otherwise) the substance of each of the following provisions:




	 	(a)	 	Consideration. A Stock Grant or Stock Unit may be awarded in consideration
for such property or services as is permitted under Applicable Law, including for past
services actually rendered to the Company or a Subsidiary for its benefit.
	 
	 	(b)	 	Vesting. Shares of Common Stock awarded under an agreement reflecting a
Stock Grant and a Stock Unit award may, but need not, be subject to a share repurchase
option, forfeiture restriction or other conditions in favor of the Company in
accordance with a vesting or lapse schedule to be determined by the Administrator.
	 
	 	(c)	 	Termination of Participant’s Relationship as a Service Provider. In the
event a Participant’s relationship as a Service Provider terminates, the Company may
reacquire any or all of the Shares held by the Participant which have not vested or
which are otherwise subject to forfeiture or other conditions as of the date of
termination under the terms of the agreement.
	 
	 	(d)	 	Transferability. Except as determined by the Board, no rights to acquire
Shares under a Stock Grant or a Stock Unit shall be assignable or otherwise
transferable by the Participant except by will or by the laws of descent and
distribution.





     14. Stock Appreciation Rights.




	 	(a)	 	General. Stock Appreciation Rights may be granted either alone, in addition
to, or in tandem with other Awards granted under the Plan. The Administrator may
grant Stock Appreciation Rights to eligible Participants subject to terms and
conditions not inconsistent with this Plan and determined by the Administrator. The
specific terms and conditions applicable to the Participant shall be provided for in
the Stock Award Agreement. Stock Appreciation Rights shall be exercisable, in whole
or in




17









 






	 	 	 	part, at such times as the Administrator shall specify in the Stock Award
Agreement.
	 
	 	(b)	 	Exercise of Stock Appreciation Right. Upon the exercise of a Stock
Appreciation Right, in whole or in part, the Participant shall be entitled to a
payment in an amount equal to the excess of the Fair Market Value on the date of
exercise of a fixed number of Shares covered by the exercised portion of the Stock
Appreciation Right, over the Fair Market Value on the grant date of the Shares covered
by the exercised portion of the Stock Appreciation Right (or such other amount
calculated with respect to Shares subject to the award as the Administrator may
determine). The amount due to the Participant upon the exercise of a Stock
Appreciation Right shall be paid in such form of consideration as determined by the
Administrator and may be in cash, Shares or a combination thereof, over the period or
periods specified in the Stock Award Agreement. A Stock Award Agreement may place
limits on the amount that may be paid over any specified period or periods upon the
exercise of a Stock Appreciation Right, on an aggregate basis or as to any
Participant. A Stock Appreciation Right shall be considered exercised when the
Company receives written notice of exercise in accordance with the terms of the Stock
Award Agreement from the person entitled to exercise the Stock Appreciation Right.
	 
	 	(c)	 	Transferability. Except as determined by the Board, no Stock Appreciation
Rights shall be assignable or otherwise transferable by the Participant except by will
or by the laws of descent and distribution.





     15. Cash Awards. Each Cash Award will confer upon the Participant the opportunity to earn a
future payment tied to the level of achievement with respect to one or more performance criteria
established for a performance period of not less than one (1) year.




	 	(a)	 	Cash Award. Each Cash Award shall contain provisions regarding (i) the
target and maximum amount payable to the Participant as a Cash Award, (ii) the
Qualifying Performance Criteria and level of achievement versus these criteria which
shall determine the amount of such payment, (iii) the period as to which performance
shall be measured for establishing the amount of any payment, (iv) the timing of any
payment earned by virtue of performance, (v) restrictions on the alienation or
transfer of the Cash Award prior to actual payment, (vi) forfeiture provisions, and
(vii) such further terms and conditions (including, without limitation, the effect
that a termination as a Service Provider shall have on any Cash Award) in each case
not inconsistent with the Plan, as may be determined from time to time by the
Administrator. The maximum amount payable as a Cash Award may be a multiple of the
target amount payable, but the maximum amount payable pursuant to that portion of a
Cash Award granted under




18









 






	 	 	 	this Plan for any fiscal year to any Participant shall not exceed U.S. $1,000,000.
	 
	 	(b)	 	Performance Criteria. The Administrator shall establish the Qualifying
Performance Criteria and level of achievement versus these criteria which shall
determine the target and the minimum and maximum amount payable under a Cash Award.
The Administrator may specify the percentage of the target Cash Award that is intended
to satisfy the requirements for “performance-based compensation” under Section 162(m)
of the Code. Notwithstanding anything to the contrary herein, the performance
criteria for any portion of a Cash Award that is intended to satisfy the requirements
for “performance-based compensation” under Section 162(m) of the Code shall be a
measure established by the Administrator based on one or more Qualifying Performance
Criteria selected by the Administrator and specified in writing not later than 90 days
after the commencement of the period of service to which the performance goals
relates, provided that the outcome is substantially uncertain at that time (or in such
other manner that complies with Section 162(m)).
	 
	 	(c)	 	Timing and Form of Payment. The Administrator shall determine the timing of
payment of any Cash Award. The Administrator may provide for or, subject to such
terms and conditions as the Administrator may specify and Applicable Laws, may permit
a Participant to elect for the payment of any Cash Award to be deferred to a specified
date or event. The Administrator may specify the form of payment of Cash Awards,
which may be cash or other property, or may provide for a Participant to have the
option for his or her Cash Award, or such portion thereof as the Administrator may
specify, to be paid in whole or in part in cash or other property. Cash Awards shall
be structured to comply with the “short-term deferral” rules of Section 409A of the
Code.





     16. Section 162(m) Compliance. Any Stock Award (other than an Option or any other Stock Award
having a purchase price equal to 100% of the Fair Market Value on the date such award is made) or
Cash Award that is intended as “qualified performance-based compensation” within the meaning of
Section 162(m) of the Code must vest or become exercisable or payable contingent on the achievement
of one or more Qualifying Performance Criteria. Notwithstanding anything to the contrary herein,
the Committee shall have the discretion to determine the time and manner of compliance with Section
162 (m) of the Code as required under applicable regulations and to conform the procedures related
to the Award to the requirements of Section 162(m) and may in its discretion reduce the number of
Shares granted or amount of cash or other property to which a Participant may otherwise have been
entitled with respect to an Award designed to qualify as performance-based compensation under
Section 162(m).



     17. Adjustments Upon Changes in Capitalization, Dissolution or Corporate Transaction.



19









 






	 	(a)	 	Changes in Capitalization. Subject to any required action by the
stockholders of the Company, (i) the number of Shares which have been authorized for
issuance under the Plan but as to which no Awards have yet been granted or which have
been returned to the Plan upon cancellation or expiration of an Award, (ii) the number
of Shares that may be added annually to the Plan pursuant to Section 3(b) hereof,
(iii) the number of Optioned Shares granted under First Options and Subsequent Options
under Section 11 hereof, (iv) the maximum numbers of Shares that may be granted under
Awards to any Service Provider within any fiscal year as set forth in Section 6(c) and
(v) the number of Shares as well as the price per Share subject to each outstanding
Award, shall be proportionately adjusted for any increase or decrease in the number of
issued Shares resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other increase or decrease
in the number of issued Shares effected without receipt of consideration by the
Company; provided, however, that conversion of any convertible securities of the
Company shall not be deemed to have been “effected without receipt of consideration.”
Such adjustment shall be made by the Administrator, whose determination in that
respect shall be final, binding and conclusive. Except as expressly provided herein,
no issuance by the Company of shares of stock of any class, or securities convertible
into shares of stock of any class, shall affect, and no adjustment by reason thereof
shall be made with respect to, the number or price of Shares.
	 
	 	(b)	 	Dissolution or Liquidation. In the event of the proposed dissolution or
liquidation of the Company, the Administrator shall notify each Participant as soon as
practicable prior to the effective date of such proposed transaction. The
Administrator in its discretion may (but need not) provide for a Participant to have
the right to exercise his or her Option or Stock Award until ten (10) days prior to
such transaction as to all of the Shares covered thereby, including Shares as to which
the Option or Stock Award would not otherwise be exercisable. In addition, the
Administrator may (but need not) provide that any Company repurchase option applicable
to any unvested Shares purchased upon exercise of an Option or issued under a Stock
Award shall lapse as to all such Shares, provided the proposed dissolution or
liquidation takes place at the time and in the manner contemplated. To the extent it
has not been previously exercised, an Award will terminate immediately prior to the
consummation of such proposed action.
	 
	 	(c)	 	Corporate Transaction.






	 	(i)	 	In the event of a Corporate Transaction, as determined by the
Board or a Committee, the Board or Committee may, in its discretion, (i)
provide for the assumption or substitution of, or adjustment to, each
outstanding Award; (ii) accelerate the vesting of Options and terminate any
restrictions on Cash Awards or Stock




20









 






	 	 	 	Awards; and/or (iii) provide for termination of Awards as a result of the
Corporate Transaction on such terms and conditions as it deems
appropriate, including providing for the cancellation of Awards for a cash
payment to the Participant. For the purposes of this paragraph, the Award
shall be considered assumed if, following the Corporate Transaction, the
Award confers the right to purchase or receive, for each Share or amount
of cash covered by the Award 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 Corporate
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 or its Parent, the Administrator may, with the
consent of the successor corporation, provide for the consideration to be
received upon the exercise of the Award, for each Share covered by the
Award, to be solely common stock of the successor corporation or its
Parent equal in fair market value to the per share consideration received
by holders of Shares in the Corporate Transaction.
	 
	 	(ii)	 	Each Option or Stock Award which is assumed pursuant to this
Section 17(c) shall be appropriately adjusted, immediately after such
Corporate Transaction, to apply to the number and class of securities which
would have been issuable to the Participant in consummation of such Corporate
Transaction had the Option or Stock Award been exercised immediately prior to
such Corporate Transaction. Appropriate adjustments to reflect such Corporate
Transaction shall also be made to (A) the exercise or purchase price payable
per share under each outstanding Option or Stock Award, provided the aggregate
exercise or purchase price payable for such securities shall remain the same,
(B) the maximum number and/or class of securities available for issuance over
the remaining term of the Plan, (C) the maximum number and/or class of
securities for which any one person may be granted Options or Stock Awards
under the Plan per year, (D) the maximum number and/or class of securities by
which the share reserve is to increase automatically each year and (E) the
number and/or class of securities subject to the Options granted under Section
11.
	 
	 	(iii)	 	Notwithstanding the foregoing, as may be determined by the
Administrator, any such adjustment shall not (i) cause an Award which is
exempt from Section 409A of the Code to become subject to Section 409A of the
Code or (ii) cause an Award subject to




21









 






	 	 	 	Section 409A of the Code not to comply with the requirements of Section
409A of the Code.





     18. Date of Grant. The date of grant of a First Option or Subsequent Option shall be the date
on which it was automatically granted pursuant to Section 11 hereof. The date of grant of any
other Award shall be, for all purposes, the date on which the Administrator grants such Award.
Notice of the grant shall be provided to each Participant within a reasonable time after the date
of such grant.



     19. Amendment and Termination of the Plan. The Board may at any time amend, alter, suspend or
terminate the Plan. However, the Company shall obtain stockholder approval of any Plan amendment
to the extent necessary and desirable to comply with Applicable Laws. In addition, no amendment,
alteration, suspension or termination of the Plan shall impair the rights of any Participant under
any grant theretofore made, unless mutually agreed otherwise between the Participant and the
Administrator, which agreement must be in writing and signed by the Participant and the Company.
Termination of the Plan shall not affect the Administrator’s ability to exercise the powers granted
to it hereunder with respect to Awards granted under the Plan prior to the date of such
termination. In addition, unless approved by the stockholders of the Company, no amendment shall
be made that would result in a repricing of Options by (x) reducing the exercise price of
outstanding Options or (y) canceling an outstanding Option held by a Participant and re-granting to
the Participant a new Option with a lower exercise price, in either case other than in connection
with a change in the Company’s capitalization pursuant to Section 17(a) of the Plan.



     20. Conditions Upon Issuance of Shares.




	 	(a)	 	Awards shall not be granted and Shares shall not be issued pursuant to the
exercise of an Award unless the grant of the Award, the exercise or settlement of such
Award and the issuance and delivery of such Shares shall comply with Applicable Laws
and shall be further subject to the approval of counsel for the Company with respect
to such compliance.
	 
	 	(b)	 	No Shares or other assets shall be issued or delivered under the Plan unless
and until there shall have been compliance with all applicable requirements of Federal
and state securities laws, including the filing and effectiveness of the Form S-8
registration statement for the Shares, and all applicable listing requirements of any
stock exchange (or the Nasdaq National Market, if applicable) on which Common Stock is
then listed for trading.





     21. Inability to Obtain Authority. The inability of the Company to obtain authority from any
regulatory body having jurisdiction (including under Section 20), which authority is deemed by the
Company’s counsel to be necessary to the lawful grant of Awards and issuance and sale of any Shares
hereunder, shall relieve the Company of any liability in respect of the failure to grant such
Awards or issue or sell such Shares as to which such requisite authority shall not have been
obtained.



22









 





     22. Reservation of Shares. The Company, during the term of this Plan, will at all times
reserve and keep available such number of Shares as shall be sufficient to satisfy the requirements
of the Plan.



     23. Stockholder Approval. If required by Applicable Laws, continuance of the Plan shall be
subject to approval by the stockholders of the Company within twelve (12) months after the date the
Plan is adopted or after any amendment requiring stockholder approval is made. Such stockholder
approval shall be obtained in the manner and to the degree required under Applicable Laws.




23