**Exhibit 10.1**

 

**PHARSIGHT CORPORATION**

 

**AMENDED AND RESTATED 2000 EQUITY INCENTIVE PLAN**

 

Adopted by Board of Directors April 7, 2000 

Approved by Stockholders June 4, 2000 

Amended by Board of Directors July 29, 2002 

Approved by Stockholders September 6, 2002 

Amended by Board of Directors June 13, 2003 

Amended by Board of Directors July 17, 2003 

Amended by Board of Directors April 22, 2004 

Effective Date: Date of Initial Public Offering 

Termination Date: April 7, 2010 

 

 

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

 

**(b)****Available StockAwards.** 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. The Plan also provides for non-discretionary grants of Nonstatutory Stock Options to Non-Employee Directors of the Company.

 

**(c)****General Purpose.** The Company, by means ofthe 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 ofthe Company and its Affiliates. 

 

 

**(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)**“***Cause”*** means the occurrence of any one or more of the following: (i) the Participant’s conviction of any felonyor any crime involving moral turpitude or dishonesty which results in material harm to the business of the Company; (ii) the Participant’s participation in a fraud or act of dishonesty against the Company which results in material harm to thebusiness of the Company; or (iii) the Participant’s intentional, material violation of any material contract between the Company and the Participant or any statutory duty the Participant owes to the Company that the Participant does not correctwithin thirty (30) days after written notice thereof has been provided to the Participant and which results in material harm to the business of the Company. 

 

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**(d)*****“Change in Control”*** means the occurrence of any one or more of thefollowing: 

 

**(i)**a Corporate Transactionafter which persons who were not stockholders of the Company immediately prior to such Corporate Transaction own, directly or indirectly, immediately following such Corporate Transaction, fifty percent (50%) or more of the outstanding voting powerof each of (a) the continuing or surviving entity and (b) any direct or indirect parent corporation of the continuing or surviving entity; 

 

**(ii)**after the IPO Date, an acquisition by any person, entity or group within the meaning of Section 13(d) or 14(d) of the ExchangeAct, 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 ExchangeAct, 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; provided that such acquisition does not occur in connection with,in contemplation of or as a result of a Corporate Transaction; or 

 

**(iii)**after the IPO Date, during any consecutive two (2) year period the individuals who, as of the start of such period, are members of the Board (the “Incumbent Board”), cease for any reason toconstitute at least fifty percent (50%) of the Board, provided that such change in the Incumbent Board does not occur in connection with, in contemplation of or as a result of a Corporate Transaction, and further provided that if the election, ornomination 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 Board, such new Director shall be considered as a member of the Incumbent Board. 

 

**(e)*****“Code”*** means the Internal Revenue Code of1986, as amended. 

 

**(f)*****“Committee”*** means a committee of one or more members of the Board appointed by the Board in accordance with subsection 3(c). 

 

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

 

**(h)*****“Company”*** means Pharsight Corporation, a Delaware corporation. 

 

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

 

**(j)*****“Continuous Service”*** means that theParticipant’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 achange 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 ortermination of the Participant’s 

 

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Continuous Service. For example, a change in status from an Employee of the Company to a Consultant of an Affiliate or a Director will not constitute aninterruption 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 approvedby that party, including sick leave, military leave or any other personal leave. 

 

**(k)*****“Corporate Transaction”*** means the occurrence of any one or more of the following: 

 

**(i)**a sale, lease or other disposition of all or substantially all of the securities or assets of the Company; 

 

**(ii)**a merger or consolidation following which theCompany is not the surviving corporation; 

 

**(iii)**a reverse merger following 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 theform of securities, cash or otherwise; or 

 

**(iv)**any other transaction described as a “corporate transaction” in Treasury Regulations §1.425-1(a)(1)(ii). 

 

**(l)*****“Covered Employee”*** means the chief executive officer and the four (4) other highest compensated officers of the Companyfor 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. 

 

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

 

**(n)*****“Disability”*** means the inability of aperson, in the opinion of a qualified physician acceptable to the Company, to perform the major duties of that person’s position with the Company or an Affiliate because of the sickness or injury of the person and such inability results intermination of employment by the Company or Affiliate. 

 

**(o)*****“Eligible Director”*** means a Non-Employee Director or any other Director who is not an Employee or Consultant at the time of grant of an Nonstatutory Stock Option under section 7 hereof. 

 

**(p)*****“Employee”*** means any person employed bythe 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. 

 

**(q)*****“Exchange Act”*** means the SecuritiesExchange Act of 1934, as amended. 

 

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**(r)*****“Fair Market Value”*** means, as of any date, the value of the CommonStock determined as follows and in each case in a manner consistent with Section 260.140.50 of Title 10 of the California Code of Regulations: 

 

**(i)**If the Common Stock is listed on any established stock exchange or traded on the Nasdaq National Market**,**the NasdaqSmallCap Market or the Over The Counter Bulletin Board system 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, market orsystem (or the exchange, market or system with the greatest volume of trading the Common Stock) on the last market trading day prior to determination, as reported in *The Wall Street Journal*or such other source as the Board deems reliable.

 

**(ii)**In the absence of an establishedmarket or system for the Common Stock, the Fair Market Value shall be determined in good faith by the Board. 

 

**(s)*****“Good Reason”*** means that one or more of the following are undertaken by the Company without the Participant’sexpress written consent: (i) the assignment to the Participant of any duties or responsibilities that results in a diminution in the Participant’s position or function as in effect immediately prior to the effective date of the Change inControl; *provided, however*, that a mere change in the Participant’s title or reporting relationships shall not constitute Good Reason; (ii) a reduction by the Company in the Participant’s annual base salary, as in effect on theeffective date of the Change in Control; (iii) any failure by the Company to continue in effect any benefit plan or program, including incentive plans or plans with respect to the receipt of securities of the Company, in which the Participant wasparticipating immediately prior to the effective date of the Change in Control (hereinafter referred to as “Benefit Plans”), or the taking of any action by the Company that would adversely affect the Participant’s participation in orreduce the Participant’s benefits under the Benefit Plans or deprive the Participant of any fringe benefit that the Participant enjoyed immediately prior to the effective date of the Change in Control; *provided, however,* that Good Reasonshall not be deemed to have occurred if the Company provides for the Participant’s participation in benefit plans and programs that, taken as a whole, are comparable to the Benefit Plans; (iv) a relocation of the Participant’s businessoffice to a location more than thirty (30) miles from the location at which the Participant performs duties as of the effective date of the Change in Control, except for required travel by the Participant on the Company’s business to an extentsubstantially consistent with the Participant’s business travel obligations prior to the Change in Control; (v) a material breach by the Company of any provision of the Plan or the Stock Award Agreement or any other material agreement betweenthe Participant and the Company concerning the terms and conditions of the Participant’s employment; or (vi) any failure by the Company to obtain the assumption of the Plan and Stock Award Agreement by any successor or assign of the Company.

 

**(t)*****“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. 

 

**(u)*****“Independent Director***” means each Director of the Company who is (i) not an Employee of the Company, (ii) is not actingin the capacity of a Consultant to the Company, and (iii) cannot exercise, individually or in affiliation with any entity or group of entities that exercises, voting control over more than 20% of the Company’s voting stock. 

 

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**(v)*****“IPO Date”*** means the effective date of the Company’s Form S-1Registration Statement filed under the Securities Act in connection with the initial public offering of the Common Stock. 

 

**(w)*****“Non-Employee Director”*** means a Director who either (i) is not a current Employee or Officer of the Company or itsparent 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 whichdisclosure 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 Item404(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.

 

**(x)*****“Non-Employee DirectorOption”*** shall have the meaning subscribed in section 7 hereof. 

 

**(y)*****“Non-Employee Director Option Agreement”*** means a written agreement between the Company and an Eligible Director, evidencing the terms and conditions of a Non-Employee Director Optiongrant. Each Non-Employee Director Option Agreement shall be subject to the terms and conditions of the Plan. 

 

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

 

**(aa)*****“Officer”*** means a person who is anofficer of the Company within the meaning of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder. 

 

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

 

**(cc)*****“Option Agreement”*** means a writtenagreement 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. 

 

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

 

**(ee)*****“Outside Director”*** means a Director who either (i) is not a current employee of the Company or an “affiliatedcorporation” (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 thanbenefits 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 “affiliatedcorporation” for services in any capacity other than as a Director or (ii) is otherwise considered an “outside director” for purposes of Section 162(m) of the Code. 

 

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**(ff)*****“Participant”*** means a person to whom a Stock Award is grantedpursuant to the Plan or, if applicable, such other person who holds an outstanding Stock Award. 

 

**(gg)*****“Plan”*** means this Pharsight Corporation Amended and Restated 2000 Equity Incentive Plan. 

 

**(hh)*****“Predecessor Plans”*** means theCompany’s 1995 Stock Option Plan and the 1997 Stock Option Plan. 

 

**(ii)*****“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. 

 

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

 

**(kk)*****“Stock Award”*** means any right grantedunder the Plan, including an Option, a Non-Employee Director Option, a stock bonus and a right to acquire restricted stock. 

 

**(ll)*****“Stock Award Agreement”*** means a written agreement between the Company and a holder of a Stock Award evidencing theterms and conditions of an individual Stock Award grant. Each Stock Award Agreement shall be subject to the terms and conditions of the Plan. 

 

**(mm)*****“Ten Percent Stockholder”*** means a person who owns (or is deemed to own pursuant to Section 424(d) of the Code) stockpossessing 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 shall administer the Plan unless and until the Board delegates administration to a Committee, asprovided in subsection 3(c). 

 

**(b)****Powers ofBoard.** 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 eachStock Award shall be granted; what type or combination of types of Stock Award shall be granted; the provisions of each Stock Award granted (which need not be identical), including the time or times when a person shall be permitted to receive CommonStock pursuant to a Stock Award; and the number of shares of Common Stock with respect to which a Stock Award shall be granted to each such person. 

 

**(ii)**To construe and interpret the Plan and Stock Awards granted under it, and to establish, amend and revoke rules and regulationsfor 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 Planfully effective. 

 

**(iii)**To amend thePlan or a Stock Award as provided in Section 13. 

 

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**(iv)**Generally, to exercise such powers and to perform such acts as the Boarddeems 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 ofthe 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 Committeeor 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 administrationof the Plan. 

 

**(ii)****CommitteeComposition 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 theCode, and/or solely of two or more Non-Employee Directors, in accordance with Rule 16b-3. Within the scope of such authority, the Board or the Committee may (1) delegate to a committee of one or more members of the Board who are not OutsideDirectors 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 withrespect to whom the Company wishes to comply with Section 162(m) of the Code and/or) (2) delegate to a committee of one or more members of the Board who are not Non-Employee Directors the authority to grant Stock Awards to eligible persons who arenot 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 SUBJECTTOTHE PLAN.**
 

**(a)****Share Reserve.** Subject to the provisions of Section 12relating to adjustments upon changes in stock and Section 4(d) below, the Common Stock that may be issued pursuant to Stock Awards shall not exceed in the aggregate four million four hundred twelve thousand seven hundred fifty seven (4,412,757)shares of Common Stock (the “Reserved Shares”). As of each January 1, beginning with January 1, 2004 and continuing through and including January 1, 2010 (the “Anniversary Date”), the number of Reserved Shares will be increasedautomatically by the least of (i) 5 % of the total number of share of Common Stock outstanding on such Anniversary Date, (ii) two million (2,000,000) shares, (iii) such fewer number of shares as determined by the Board prior to such Anniversary Dateor (iv) such fewer number of shares as permitted pursuant to Section 4(d) below. 

 

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**(b)****Reversion of Shares to the Share Reserve**. If any Stock Award shall for any reasonexpire or otherwise terminate, in whole or in part, without having been exercised in full, the shares of Common Stock not acquired under such Stock Award shall revert to and again become available for issuance under the Plan. 

 

**(c)****Source of Shares.** The shares of Common Stock subject to thePlan may be unissued shares or reacquired shares, bought on the market or otherwise. 

 

**(d)****Reserve Limitation.** Notwithstanding Section 4(a), if at the time of each grant of a Stock Award under the Plan, the Company is subject to Section 260.140.45 of Title 10 of the California Code ofRegulations (“Section 260.140.45”), the total number of securities issuable upon exercise of all outstanding options of the Company and the total number of shares provided for under this Plan or any other equity incentive, stock bonus orsimilar plan or agreement of the Company or outside any such plan shall not exceed 30% of the then outstanding capital stock of the Company (as measured as set forth in Section 260.140.45), unless stockholder approval to exceed 30% has been obtainedin compliance with Section 260.140.45, in which case the limit shall be such higher percentage as approved by the stockholders. 

 
**5.****ELIGIBILITY.**
 

**(a)****Eligibility for Specific Stock Awards**. Incentive Stock Options may be granted only to Employees. Stock Awards other than Incentive StockOptions may be granted to Employees, Directors (whether or not eligible for grants pursuant to Section 7 hereof) and Consultants. 

 

**(b)****Ten Percent Stockholders.**

 

**(i)**A Ten Percent Stockholder shall not be granted an Option unless the exercise price of such Option is at least one hundred tenpercent (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. 

 

**(ii)**So long as the Company is subject to Section 260.140.41 of Title 10 of the California Code ofRegulations, a Ten Percent Stockholder shall not be granted a restricted stock award unless the purchase price of the restricted stock is at least (A) one hundred percent (100%) of the Fair Market Value of the Common Stock on the date of grant or(B) such lower percentage of the Fair Market Value of the Common Stock on the date of grant as is permitted by Section 260.140.41 of Title 10 of the California Code of Regulations at the time of the grant of the restricted stock award. 

 

**(c)****Section 162(m) Limitation.** Subject to the provisions ofSection 12 relating to adjustments upon changes in the shares of Common Stock, no Employee shall be eligible to be granted Options covering more than Five Hundred Thousand (500,000) shares of Common Stock during any calendar year. 

 

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**(d)****Consultants.**

 

**(i)**A Consultant shall not be eligible for the grant of a Stock Award if, at the time of grant, aForm 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 Consultantis providing to the Company, or because the Consultant is not a natural person, or as otherwise provided by the rules governing the use of Form S-8, unless the Company determines both (i) that such grant (A) shall be registered in another mannerunder 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 grantcomplies with the securities laws of all other relevant jurisdictions. 

 

**(ii)**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 ormajority-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 theissuer’s securities. 

 
**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 separatelydesignated Incentive Stock Options or Nonstatutory Stock Options at the time of grant, and, if certificates are issued, a separate certificate or certificates will be issued for shares of Common Stock purchased 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 Option shall be exercisable after the expiration of ten (10) 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, theexercise price of each Incentive Stock Option shall be not less than one hundred percent (100%) of the Fair Market Value of the Common Stock subject to the Option on the date the Option is granted. 

 

**(c)****Exercise Price of a Nonstatutory Stock Option.** Subject tothe provisions of subsection 5(b) regarding Ten Percent Stockholders, the exercise price of each Nonstatutory Stock Option shall be not less than eighty-five percent (85%) of the Fair Market Value of the Common Stock subject to the Option on thedate the Option is granted. 

 

**(d)****Consideration.**The purchase price of Common Stock acquired pursuant to an Option shall be paid, to the extent permitted by applicable statutes and regulations, either (i) in cash at the time the Option is exercised or (ii) at the discretion of the Board at thetime of the grant of the Option (or subsequently in the case of a Nonstatutory Stock Option) (1) by delivery to the Company of other Common Stock, (2) according to a deferred payment or other similar arrangement with the Optionholder or (3) in anyother form of legal consideration that may be 

 

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acceptable to the Board. Unless otherwise specifically provided in the Option, the purchase price of Common Stock acquired pursuant to an Option that is paidby 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 oftime required to avoid a charge to earnings for financial accounting purposes). 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. 

 

**(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 theOptionholder. Notwithstanding the foregoing, the Optionholder may, by delivering written notice to the Company, in a form satisfactory to the Company, designate a third party who, in the event of the death of the Optionholder, shall thereafter beentitled to exercise the Option. 

 

**(f)****Transferabilityof a Nonstatutory Stock Option.** A Nonstatutory Stock Option shall be transferable to the extent provided in the Option Agreement; provided however, to the extent that the Company is subject to Section 260.140.41(d) of Title 10 of the CaliforniaCode of Regulations at the time of the grant of the Nonstatutory Stock Option, 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 theOptionholder only by the Optionholder. 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 beexercisable during the lifetime of the Optionholder only by the Optionholder. Notwithstanding the foregoing, the Optionholder may, by delivering written notice to the Company, in a form satisfactory to the Company, designate a third party who, inthe 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 becomeexercisable in periodic installments that 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 maydeem appropriate. The vesting provisions of individual Options may vary. The provisions of this subsection 6(g) are subject to any Option provisions governing the minimum number of shares of Common Stock as to which an Option may be exercised.Notwithstanding the foregoing, to the extent that the Company is subject to the following restrictions on vesting under Section 260.140.41(f) of Title 10 of the California Code of Regulations at the time of the grant of the Option, then optionsgranted to an Employee who is not an Officer, Director or Consultant on the date of grant shall provide for vesting of the total number of shares of Common Stock at a rate of at least twenty percent (20%) per year over five (5) years from the datethe Option was granted, subject to reasonable conditions such as continued employment. 

 

**(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 hisor her Option (to the extent that the Optionholder was entitled to exercise such 

 

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Option 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 ofthe Optionholder’s Continuous Service (or such longer or shorter period specified in the Option Agreement, which period, for so long as the Company is subject to Section 260.140.41 of Title 10 of the California Code of Regulations, shall not beless than thirty (30) days unless such termination is for Cause), 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 timespecified 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 theOptionholder’s death or Disability) would be prohibited at any time solely because the issuance of shares of Common Stock would violate the registration requirements under the Securities Act, 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 after the termination of the Optionholder’s Continuous Service during which the exercise of the Option would not bein violation of such registration requirements. 

 

**(j)****Disability of Optionholder.** In the event that an Optionholder’s Continuous Service terminates as a result of the Optionholder’s Disability, the Optionholder may exercise his or her Option (to the extent that the Optionholder wasentitled to exercise such Option as of the date of termination), 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 OptionAgreement, which period, for so long as the Company is subject to Section 260.140.41 of Title 10 of the California Code of Regulations, shall not be less than six (6) months) or (ii) the expiration of the term of the Option as set forth in theOption 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 (i) an Optionholder’s Continuous Service terminates as a result of the Optionholder’sdeath 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 theOptionholder was entitled to exercise such Option as of the date of death) by the Optionholder’s estate, by a person who acquired the right to exercise the Option by bequest or inheritance or by a person designated to exercise the Option uponthe 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,which period, for so long as the Company is subject to Section 260.140.41 of Title 10 of the California Code of Regulations, shall not be less than six (6) months) or (2) the expiration of the term of such Option as set forth in the OptionAgreement. 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 theOptionholder’s Continuous Service terminates to 

 

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exercise the Option as to any part or all of the shares of Common Stock subject to the Option prior to the full vesting of the Option. Subject to the“Repurchase Limitation” in Section 11(g), any unvested shares of Common Stock so purchased may be subject to a repurchase option in favor of the Company or to any other restriction the Board determines to be appropriate. 

 

**(m) Re-Load Options.**

 

**(i)**Without in any way limiting the authority of theBoard to make or not to make grants of Options hereunder, the Board shall have the authority (but not an obligation) to include as part of any Option Agreement a provision entitling the Optionholder to a further Option (a “Re-Load Option”)in the event the Optionholder exercises the Option evidenced by the Option Agreement, in whole or in part, by surrendering other shares of Common Stock in accordance with this Plan and the terms and conditions of the Option Agreement. Unlessotherwise specifically provided in the Option, the Optionholder shall not surrender shares of Common Stock acquired, directly or indirectly from the Company, unless such shares have been held for more than six (6) months (or such longer or shorterperiod of time required to avoid a charge to earnings for financial accounting purposes). 

 

**(ii)**Any such Re-Load Option shall (1) provide for a number of shares of Common Stock equal to the number of shares of Common Stocksurrendered as part or all of the exercise price of such Option; (2) have an expiration date which is the same as the expiration date of the Option the exercise of which gave rise to such Re-Load Option; and (3) have an exercise price which is equalto one hundred percent (100%) of the Fair Market Value of the Common Stock subject to the Re-Load Option on the date of exercise of the original Option. Notwithstanding the foregoing, a Re-Load Option shall be subject to the same exercise price andterm provisions heretofore described for Options under the Plan. 

 

**(iii)**Any such Re-Load Option may be an Incentive Stock Option or a Nonstatutory Stock Option, as the Board may designate at the time of the grant of the original Option; provided, however, that the designationof any Re-Load Option as an Incentive Stock Option shall be subject to the one hundred thousand dollar ($100,000) annual limitation on the exercisability of Incentive Stock Options described in subsection 11(d) and in Section 422(d) of the Code.There shall be no Re-Load Options on a Re-Load Option. Any such Re-Load Option shall be subject to the availability of sufficient shares of Common Stock under subsection 4(a) and the “Section 162(m) Limitation” on the grants of Optionsunder subsection 5(c) and shall be subject to such other terms and conditions as the Board may determine which are not inconsistent with the express provisions of the Plan regarding the terms of Options. 

 
**7.****NON-EMPLOYEE DIRECTOR STOCK OPTIONS**
 

Without any further action from the Board, Eligible Directors andIndependent Directors shall be granted Nonstatutory Stock Options in accordance with subsections 7(a) and 7(b) (collectively, the “Non-Employee Director Options”). Each Non-Employee Director Option shall include the substance of the termsset forth in subsection 7(c) through 7(k) and such other terms and conditions as shall be determined by the Board as appropriate. 

 

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**(a)****Initial Grants.**After April 22, 2004, each Independent Director who is elected orappointed to the Board, and each Director who was not previously an Independent Director who subsequently becomes an Independent Director, automatically shall be granted a Nonstatutory Stock Option to purchase One Hundred Thousand (100,000) sharesof Common Stock on the terms and conditions set forth herein (the “Initial Grant”) on the date such Independent Director is elected or appointed to the Board, or in the case of a Director who was not previously an Independent Director, onthe date such Director subsequently becomes an Independent Director. 

 

**(b)****Annual Grants.** On the day following each annual meeting of the stockholders of the Company (the “Annual Meeting”) commencing with the Annual Meeting in calendar year 2004, each person who is then an EligibleDirector automatically shall be granted a Nonstatutory Stock Option to purchase Ten Thousand (10,000) shares of Common Stock on the terms and conditions set forth herein (the “Annual Grant”). 

 

**(c)****Term.** Each Non-Employee Director Option shall have a termof ten (10) years from the date it is granted. 

 

**(d)****Exercise Price.** Subject to the provisions of Section 5(b) regarding Ten Percent Stockholders, the exercise price of each Non-Employee Director Option shall be one hundred percent (100%) of the Fair Market Value of the stock subject to theNon-Employee Director Option on the date of grant. 

 

**(e)****Vesting.** Non-Employee Director Options shall vest and become exercisable as follows: 

 

**(i)**An Initial Grant shall vest in twenty-four (24) equal installments on each monthly anniversary of the date of the InitialGrant; *provided however*, that the Director provides service to the Company through each such date; *and provided further*, that if a Change in Control occurs, then the vesting and exercisability of the Initial Grant shall be acceleratedin full. 

 

**(ii)**An Annual Grant shallvest in full on the day of the first anniversary of the Annual Meeting next following its date of grant; *provided, however*, that the Director provides service to the Company through each such date. 

 

**(f)****Consideration.** The purchase price of stock acquiredpursuant to a Non-Employee Director Option may be paid, to the extent permitted by applicable statutes and regulations, in any combination of (i) cash or check, (ii) delivery to the Company of other Common Stock owned by the Director for at leastsix (6) months; (iii) deferred payment or (iv) any other form of legal consideration that may be acceptable to the Board and provided in the Non-Employee Director Option Agreement; provided, however, that at any time that the Company is incorporatedin Delaware, payment of the Common Stock’s “par value,” as defined in the Delaware Corporation Law, shall not be made by deferred payment. 

 

**(g)****Transferability.** A Non-Employee Director Option shall be transferable to the extent provided in the Non-Employee Director OptionAgreement; provided however, to the extent that the Company is subject to Section 260.140.41(d) of Title 10 of the California Code of Regulations at the time of the grant of the Non-Employee Director Option, the Eligible Director shall not betransferable except by will or by the laws of descent and distribution and shall be 

 

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exercisable during the lifetime of the Eligible Director only by the Eligible Director. If the Non-Employee Director Option Agreement does not provide fortransferability, then the Non-Employee Director 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 Eligible Director only by the Eligible Director.Notwithstanding the foregoing, the Eligible Director 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 Eligible Director, shall thereafter beentitled to exercise the Non-Employee Director Option. 

 

**(h)****Termination of Continuous Service**. In the event an Eligible Director’s Continuous Service terminates (other than upon the Eligible Director’s death or Disability), the Eligible Director may exercise his or her Non-EmployeeDirector Option (to the extent that the Eligible Director 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 six (6) months following the termination of the EligibleDirector’s Continuous Service, or (ii) the expiration of the term of the Non-Employee Director Option as set forth in the Non-Employee Director Option Agreement. If, after termination, the Eligible Director does not exercise his or herNon-Employee Director Option within the time specified herein, the Non-Employee Director Option shall terminate. 

 

**(i)****Extension of Termination Date**. If the exercise of the Non-Employee Director Option following the termination of the EligibleDirector’s Continuous Service (other than upon the Eligible Director’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, thenthe Non-Employee Director Option shall terminate on the earlier of (i) the expiration of the term of the Non-Employee Director Option set forth in subsection 7(c) or (ii) the expiration of a period of three (3) months after the termination of theEligible Director’s Continuous Service during which the exercise of the Non-Employee Director Option would not violate such registration requirements. 

 

**(j)****Disability of Eligible Director**. In the event an Eligible Director’s Continuous Service terminates as a result of the EligibleDirector’s Disability, the Eligible Director may exercise his or her Non-Employee Director Option (to the extent that the Eligible Director was entitled to exercise it as of the date of termination), but only within such period of time endingon the earlier of (i) the date twelve (12) months following such termination or (ii) the expiration of the term of the Non-Employee Director Option as set forth in the Non-Employee Director Option Agreement. If, after termination, the EligibleDirector does not exercise his or her Non-Employee Director Option within the time specified herein, the Non-Employee Director Option shall terminate. 

 

**(k)****Death of Eligible Director**. In the event (i) an Eligible Director’s Continuous Service terminates as a result of the EligibleDirector’s death or (ii) the Eligible Director dies within the six-month period after the termination of the Eligible Director’s Continuous Service for a reason other than death, then the Non-Employee Director Option may be exercised (tothe extent the Eligible Director was entitled to exercise the Non-Employee Director Option as of the date of death) by the Eligible Director’s estate, by a person who acquired the right to exercise the Non-Employee Director Option by bequest orinheritance or by a person designated to exercise the Non-Employee Director Option upon the Eligible Director’s death, but only within the period 

 

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ending on the earlier of (1) the date eighteen (18) months following the date of death or (2) the expiration of the term of such Non-Employee Director Optionas set forth in the Non-Employee Director Option Agreement. If, after death, the Non-Employee Director Option is not exercised within the time specified herein, the Non-Employee Director Option shall terminate. 

 
**8.****PROVISIONS OF STOCK AWARDS OTHER THAN OPTIONS.**
 

**(a)****Stock Bonus Awards.** Eachstock 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 separatestock 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: 

 

**(i)****Consideration.** A stock bonus may beawarded in consideration for past services actually rendered to the Company or an Affiliate for its benefit. 

 

**(ii)****Vesting.** Subject to the “Repurchase Limitation” in Section 11(g), shares of Common Stock awarded under thestock bonus agreement may, but need not, be subject to a share reacquisition right in favor of the Company in accordance with a vesting schedule to be determined by the Board. 

 

**(iii)****Termination of Participant’s Continuous Service.** Subject to the “RepurchaseLimitation” in Section 11(g), 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 which have not vested as of the date of termination underthe terms of the stock bonus agreement. 

 

**(iv)****Transferability.** Rights to acquire shares of Common Stock under a 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 theBoard shall determine in its discretion, so long as Common Stock awarded under the stock bonus agreement remains subject to the terms of the stock bonus agreement; provided however, to the extent that the Company is subject to Section 260.140.41(d)of Title 10 of the California Code of Regulations at the time of the award, such rights to acquire shares of Common Stock under a stock bonus agreement shall not be transferable except by will or by the laws of descent and distribution and shall beexercisable during the lifetime of the Participant only by the Participant. 

 

**(b)****Restricted Stock Purchase 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 andconditions 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: 

 

**(i)****Purchase Price.** Subject to the provisions of Section 5(b) regarding Ten Percent Stockholders, the purchase price undereach restricted stock purchase agreement shall be 

 

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

 

**(ii)****Consideration.** The purchase price of Common Stock acquired pursuant to the restricted stock purchase agreement shall bepaid 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 theBoard in its discretion; provided, however, that at any time that the Company is incorporated in Delaware, then payment of the Common Stock’s “par value,” as defined in the Delaware General Corporation Law, shall not be made bydeferred payment. 

 

**(iii)****Vesting.** Subject to the “Repurchase Limitation” in Section 11(g), 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 Companyin accordance with a vesting schedule to be determined by the Board. 

 

**(iv)****Termination of Participant’s Continuous Service.** Subject to the “Repurchase Limitation” in Section 11(g), in the event a Participant’s Continuous Service terminates, the Companymay repurchase or otherwise reacquire any or all of the shares of Common Stock held by the Participant which have not vested as of the date of termination under the terms of the restricted stock purchase agreement. 

 

**(v)****Transferability.** Rights to acquire sharesof Common Stock under a 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, solong as Common Stock awarded under the restricted stock purchase agreement remains subject to the terms of the restricted stock purchase agreement; provided however, to the extent that the Company is subject to Section 260.140.41(d) of Title 10 ofthe California Code of Regulations at the time of the award, such rights to acquire shares of Common Stock under a restricted stock purchase agreement shall not be transferable except by will or by the laws of descent and distribution and shall beexercisable during the lifetime of the Participant only by the Participant. 

 
**9.****COVENANTSOF THE COMPANY.**
 

**(a)****Availability of Shares.** During the terms of the Stock Awards, the Company shall keep available at alltimes 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 toissue 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 Common Stock issued or issuablepursuant to any such Stock Award. If, after reasonable efforts, the Company is unable 

 

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to obtain from any such regulatory commission or agency the authority which counsel for the Company deems necessary for the lawful issuance and sale ofCommon Stock under the Plan, the Company shall be relieved from any liability for failure to issue and sell Common Stock upon exercise of such Stock Awards unless and until such authority is obtained. 

 
**10.****USEOF PROCEEDSFROM STOCK.**
 

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

 
**11.****MISCELLANEOUS.**
 

**(a)****Acceleration of Exercisability and Vesting.** The Board shall have the power to accelerate the time at which a Stock Award may first beexercised 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 bedeemed to be the holder of, or to have any of the rights of a holder with respect to, any shares of Common Stock subject to such Stock Award unless and until such Participant has satisfied all requirements for exercise of the Stock Award pursuant toits terms. 

 

**(c)****No Employment or other ServiceRights.** Nothing in the Plan or any instrument executed or Stock Award granted pursuant thereto shall confer upon any Participant any right to continue to serve the Company or an Affiliate in the capacity in effect at the time the Stock Award wasgranted 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’sagreement 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 isincorporated, as the case may be. 

 

**(d)****IncentiveStock Option $100,000 Limitation.** To the extent that the aggregate Fair Market Value (determined at the time of grant) of Common Stock with respect to which Incentive Stock Options are exercisable for the first time by any Optionholder duringany 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 asNonstatutory Stock Options. 

 

**(e)****InvestmentAssurances.** The Company may require a Participant, as a condition of exercising or acquiring Common Stock under any Stock Award, (i) to give written assurances satisfactory to the Company as to the Participant’s knowledge and experience infinancial 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 togetherwith the purchaser representative, the merits and risks of exercising the Stock Award; and (ii) to give written assurances satisfactory to the Company stating that the Participant is acquiring Common Stock subject to the Stock Award for 

 

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the Participant’s own account and not with any present intention of selling or otherwise distributing the Common Stock. The foregoing requirements, andany assurances given pursuant to such requirements, shall be inoperative if (1) the issuance of the shares of Common Stock upon the exercise or acquisition of Common Stock under the Stock Award has been registered under a then currently effectiveregistration statement under the Securities Act or (2) as to any particular requirement, a determination is made by counsel for the Company that such requirement need not be met in the circumstances under the then applicable securities laws. TheCompany 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, legendsrestricting the transfer of the Common 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 Common Stock under aStock 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 theCompany to withhold shares of Common Stock from the shares of Common Stock otherwise issuable to the Participant as a result of the exercise or acquisition of Common Stock under the Stock Award, provided, however, that the Company shall not beauthorized to withheld shares of Common Stock in excess if the minimum statutory rates for federal or state tax purposes including payroll taxes; or (iii) delivering to the Company owned and unencumbered shares of Common Stock. 

 

**(g)****Repurchase Limitation.** The terms of any repurchase optionshall be specified in the Stock Award, and the repurchase price shall be the original purchase price. To the extent required by Section 260.140.41 and Section 260.140.42 of Title 10 of the California Code of Regulations at the time a Stock Award ismade, any repurchase option contained in a Stock Award granted to a person who is not an Officer, Director or Consultant shall be upon the terms described below: 

 

**(i)****Fair Market Value.** If the repurchase option gives the Company the right to repurchase theshares of Common Stock upon termination of Continuous Status at not less than the Fair Market Value of the shares of Common Stock to be purchased on the date of termination of Continuous Status, then (A) the right to repurchase shall be exercisedfor cash or cancellation of purchase money indebtedness for the shares of Common Stock within ninety (90) days of termination of Continuous Status (or in the case of shares of Common Stock issued upon exercise of Stock Awards after such date oftermination, within ninety (90) days after the date of the exercise) or such longer period as may be agreed to by the Company and the Participant (for example, for purposes of satisfying the requirements of Section 1202(c)(3) of the Code regarding“qualified small business stock”) and (B) the right terminates when the shares of Common Stock become publicly traded. 

 

**(ii)****Original Purchase Price.** If the repurchase option gives the Company the right to repurchase the shares of Common Stockupon termination of Continuous Status at the lower of (A) the Fair Market Value of the shares of Common Stock on the date of repurchase or (B) their original purchase price, then (x) the right to repurchase at the original purchase price 

 

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shall lapse at the rate of at least twenty percent (20%) of the shares of Common Stock per year over five (5) years from the date the Stock Award is granted(without respect to the date the Stock Award was exercised or became exercisable) and (y) the right to repurchase shall be exercised for cash or cancellation of purchase money indebtedness for the shares of Common Stock within ninety (90) days oftermination of Continuous Status (or in the case of shares of Common Stock issued upon exercise of Options after such date of termination, within ninety (90) days after the date of the exercise) or such longer period as may be agreed to by theCompany and the Participant (for example, for purposes of satisfying the requirements of Section 1202(c)(3) of the Code regarding “qualified small business stock”). 

 

**(h)****Information Obligation.** To the extent required by Section 260.140.46 of Title 10 of the California Code ofRegulations, the Company shall deliver financial statements to Participants at least annually. This Section 11(h) shall not apply to key Employees whose duties in connection with the Company assure them access to equivalent information. 

 
**12.****ADJUSTMENTSUPON CHANGESIN STOCK.**
 

**(a)****Capitalization Adjustments**. If any change is made in theCommon 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 thancash, 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 theclass(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 appropriatelyadjusted in the class(es) and number of securities and price per share of Common Stock subject to such outstanding Stock Awards. The Board shall make such adjustments, and its determination shall be final, binding and conclusive. (The conversion ofany 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 all outstanding Stock Awards shallterminate immediately prior to such event. 

 

**(c)****Corporate Transaction**. In the event of a Corporate Transaction, any surviving corporation or acquiring corporation may assume any Stock Awards outstanding under the Plan or may substitute similar stock awards (including an award toacquire the same consideration paid to the stockholders pursuant to the Corporate Transaction). In the event any surviving corporation or acquiring corporation refuses to assume such Stock Awards or to substitute similar stock awards for thoseoutstanding under the Plan, then with respect to Stock Awards held by Participants whose Continuous Service has not terminated as of the effective date of the Corporate Transaction, the vesting of such Stock Awards (and, if applicable, the timeduring 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 effective date. With respect to any other Stock Awards outstanding underthe Plan, such Stock Awards shall terminate if not exercised (if applicable) prior the effective date of the Corporate Transaction. 

 

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**(d)****Change in Control.**If a Change in Control occurs and within thirteen (13) months afterthe effective date of such Change in Control the Continuous Service of a Participant terminates due to an involuntary termination (not including death or Disability) without Cause or due to a voluntary termination with Good Reason, then the vestingand exercisability of all Stock Awards held by such Participant shall be accelerated in full. ****

 
**13.****AMENDMENTOFTHE PLANAND STOCK AWARDS.**
 

**(a)****Amendment of Plan.** The Board at any time, and from time totime, may amend the Plan. However, except as provided in Section 12 relating to adjustments upon changes in Common Stock, no amendment shall be effective unless approved by the stockholders of the Company to the extent stockholder approval isnecessary 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 ofcompensation 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 theprovisions of the Code and the regulations promulgated thereunder relating to Incentive Stock Options and/or to bring the Plan and/or Incentive Stock Options granted under it into compliance therewith. 

 

**(d)****No Impairment of Rights.** Rights under any Stock Awardgranted 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 fromtime 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) theParticipant consents in writing. 

 
**14.****TERMINATIONOR SUSPENSIONOFTHE PLAN.**
 

**(a)****Plan Term.** The Board may suspend or terminate the Plan atany time. Unless sooner terminated, the Plan shall terminate on the day before the tenth (10th) anniversary of the date the Plan is adopted by the Board or approved by the stockholders of the Company, whichever is earlier. No Stock Awards may begranted under the Plan while the Plan is suspended or after it is terminated. 

 

**(b)****No Impairment of Rights.** Suspension or termination of the Plan shall not impair rights and obligations under any Stock Award granted while the Plan is in effect except with the written consent of theParticipant. 

 

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**15.****EFFECTIVE DATEOF PLAN.**
 

The Plan shall become effective on the IPO Date, 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. 

 
**16.****CHOICEOF LAW.**
 

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

 

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