Unassociated Document


    Exhibit 4.2


    GOFISH
CORPORATION

     

    2008 STOCK INCENTIVE
PLAN

     

    1.  Purposes of the
Plan. The
purposes of this Plan are to attract and retain the best available personnel, to
provide additional incentives to Employees, Directors and Consultants and to
promote the success of the Company’s business.

     

    2.  Definitions. The
following definitions shall apply as used herein and in the individual Award
Agreements except as defined otherwise in an individual Award Agreement. In the
event a term is separately defined in an individual Award Agreement, such
definition shall supersede the definition contained in this
Section 2.

     

    (a)  “Administrator” means
the Board or any of the Committees appointed to administer the
Plan.

     

    (b)  “Affiliate” and
“Associate” shall
have the respective meanings ascribed to such terms in Rule 12b-2
promulgated under the Exchange Act.

     

    (c)  “Applicable
Laws” means
the legal requirements relating to the Plan and the Awards under applicable
provisions of federal and state securities laws, the corporate laws of
California and, to the extent other than California, the corporate law of the
state of the Company’s incorporation, the Code, the rules of any applicable
stock exchange or national market system, and the rules of any non-U.S.
jurisdiction applicable to Awards granted to residents therein. 

     

    (d)  “Assumed” means
that pursuant to a Corporate Transaction either (i) the Award is expressly
affirmed by the Company or (ii) the contractual obligations represented by the
Award are expressly assumed (and not simply by operation of law) by the
successor entity or its Parent in connection with the Corporate Transaction with
appropriate adjustments to the number and type of securities of the successor
entity or its Parent subject to the Award and the exercise or purchase price
thereof which at least preserves the compensation element of the Award existing
at the time of the Corporate Transaction as determined in accordance with the
instruments evidencing the agreement to assume the Award.

     

    (e)  “Award” means
the grant of an Option, SAR, Dividend Equivalent Right, Restricted Stock,
Restricted Stock Unit or other right or benefit under the Plan.

     

    (f)  “Award
Agreement” means
the written agreement evidencing the grant of an Award executed by the Company
and the Grantee, including any amendments thereto.

     

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

     

    (h)  “Cause” means,
with respect to the termination by the Company or a Related Entity of the
Grantee’s Continuous Service, that such termination is for “Cause” as such term
(or word of like import) is expressly defined in a then-effective written
agreement between the Grantee and the Company or such Related Entity, or in the
absence of such then-effective written agreement and definition, is based on, in
the determination of the Administrator, the 

     

    
      
        
        

      

      
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    Grantee’s:
(i) performance of any act or failure to perform any act in bad faith and
to the detriment of the Company or a Related Entity; (ii) dishonesty,
intentional misconduct or material breach of any agreement with the Company or a
Related Entity; or (iii) commission of a crime involving dishonesty, breach
of trust, or physical or emotional harm to any person; provided, however, that
with regard to any agreement that defines “Cause” on the occurrence of or in
connection with a Corporate Transaction or a Change in Control, such definition
of “Cause” shall not apply until a Corporate Transaction or a Change in Control
actually occurs.

     

    (i)  “Change in
Control” means a
change in ownership or control of the Company effected through either of the
following transactions:

     

    (i)  the
direct or indirect acquisition by any person or related group of persons (other
than an acquisition from or by the Company or by a Company-sponsored employee
benefit plan or by a person that directly or indirectly controls, is controlled
by, or is under common control with, the Company) of beneficial ownership
(within the meaning of Rule 13d-3 of the Exchange Act) of securities
possessing more than fifty percent (50%) of the total combined voting power of
the Company’s outstanding securities pursuant to a tender or exchange offer made
directly to the Company’s stockholders which a majority of the Continuing
Directors who are not Affiliates or Associates of the offeror do not recommend
such stockholders accept, or

     

    (ii)  a change
in the composition of the Board over a period of twelve (12) months or less such
that a majority of the Board members (rounded up to the next whole number)
ceases, by reason of one or more contested elections for Board membership, to be
comprised of individuals who are Continuing Directors.

     

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

     

    (k)  “Committee” means
any committee composed of members of the Board appointed by the Board to
administer the Plan.

     

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

     

    (m)  “Company” means
GoFish Corporation, a Nevada corporation, or any successor entity that adopts
the Plan in connection with a Corporate Transaction.

     

    (n)  “Consultant” means
any person (other than an Employee or a Director, solely with respect to
rendering services in such person’s capacity as a Director) who is engaged by
the Company or any Related Entity to render consulting or advisory services to
the Company or such Related Entity. 

     

    (o)  “Continuing
Directors” means
members of the Board who either (i) have been Board members continuously
for a period of at least twelve (12) months or
(ii) have been Board members for less than twelve (12) months and were
elected or nominated for election as Board members by at least a majority of the
Board members described in clause (i) who were still in office at the time
such election or nomination was approved by the Board.

     

    
      
        
        

      

      
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    (p)  “Continuous
Service” means
that the provision of services to the Company or a Related Entity in any
capacity of Employee, Director or Consultant is not interrupted or terminated.
In jurisdictions requiring notice in advance of an effective termination as an
Employee, Director or Consultant, Continuous Service shall be deemed terminated
upon the actual cessation of providing services to the Company or a Related
Entity notwithstanding any required notice period that must be fulfilled before
a termination as an Employee, Director or Consultant can be effective under
Applicable Laws. A Grantee’s Continuous Service shall be deemed to have
terminated either upon an actual termination of Continuous Service or upon the
entity for which the Grantee provides services ceasing to be a Related Entity.
Continuous Service shall not be considered interrupted in the case of
(i) any approved leave of absence, (ii) transfers among the Company,
any Related Entity, or any successor, in any capacity of Employee, Director or
Consultant, or (iii) any change in status as long as the individual remains
in the service of the Company or a Related Entity in any capacity of Employee,
Director or Consultant (except as otherwise provided in the Award Agreement). An
approved leave of absence shall include sick leave, military leave, or any other
authorized personal leave. For purposes of each Incentive Stock Option granted
under the Plan, if such leave exceeds three (3) months, and reemployment upon
expiration of such leave is not guaranteed by statute or contract, then the
Incentive Stock Option shall be treated as a Non-Qualified Stock Option on the
day three (3) months and one (1) day following the expiration of such three (3)
month period.

     

    (q)  “Corporate
Transaction” means
any of the following transactions, provided, however, that the Administrator
shall determine under parts (iv) and (v) whether multiple transactions are
related, and its determination shall be final, binding and
conclusive:

     

    (i)  a merger
or consolidation in which the Company is not the surviving entity, except for a
transaction the principal purpose of which is to change the state in which the
Company is incorporated;

     

    (ii)  the sale,
transfer or other disposition of all or substantially all of the assets of the
Company;

     

    (iii)  the
complete liquidation or dissolution of the Company; 

     

    (iv)  any
reverse merger or series of related transactions culminating in a reverse merger
(including, but not limited to, a tender offer followed by a reverse merger) in
which the Company is the surviving entity but (A) the shares of Common
Stock outstanding immediately prior to such merger are converted or exchanged by
virtue of the merger into other property, whether in the form of securities,
cash or otherwise, or (B) in which securities possessing more than fifty
percent (50%) of the total combined voting power of the Company’s outstanding
securities are transferred to a person or persons different from those who held
such securities immediately prior to such merger or the initial transaction
culminating in such merger; or

     

    (v)  acquisition
in a single or series of related transactions by any person or related group of
persons (other than the Company or by a Company-sponsored employee benefit plan)
of beneficial ownership (within the meaning of Rule 13d-3 of the Exchange Act)
of securities possessing more than fifty percent (50%) of the total combined
voting power of the Company’s outstanding securities but excluding any such
transaction or series of related transactions that the Administrator determines
shall not be a Corporate Transaction.

     

    
      
        
        

      

      
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    (r)  “Covered
Employee” means
an Employee who is a “covered employee” under Section 162(m)(3) of the
Code.

     

    (s)  “Director” means a
member of the Board or the board of directors of any Related
Entity.

     

    (t)  “Disability” means
as defined under the long-term disability policy of the Company or the Related
Entity to which the Grantee provides services regardless of whether the Grantee
is covered by such policy. If the Company or the Related Entity to which the
Grantee provides service does not have a long-term disability plan in place,
“Disability” means that a Grantee is unable to carry out the responsibilities
and functions of the position held by the Grantee by reason of any medically
determinable physical or mental impairment for a period of not less than ninety
(90) consecutive days. A Grantee will not be considered to have incurred a
Disability unless he or she furnishes proof of such impairment sufficient to
satisfy the Administrator in its discretion.

     

    (u)  “Dividend Equivalent
Right” means a
right entitling the Grantee to compensation measured by dividends paid with
respect to Common Stock.

     

    (v)  “Employee” means
any person, including an Officer or Director, who is in the employ of the
Company or any Related Entity, subject to the control and direction of the
Company or any Related Entity as to both the work to be performed and the manner
and method of performance. The payment of a director’s fee by the Company or a
Related Entity shall not be sufficient to constitute “employment” by the
Company.

     

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

     

    (x)  “Fair Market
Value” means,
as of any date, the value of Common Stock determined as follows:

     

    (i)  If the
Common Stock is listed on one or more established stock exchanges or national
market systems, including without limitation The NASDAQ Global Select Market,
The NASDAQ Global Market or The NASDAQ Capital Market of The NASDAQ Stock Market
LLC, its Fair Market Value shall be the closing sales price for such stock (or
the closing bid, if no sales were reported) as quoted on the principal exchange
or system on which the Common Stock is listed (as determined by the
Administrator) on the date of determination (or, if no closing sales price or
closing bid was reported on that date, as applicable, on the last trading date
such closing sales price or closing bid was reported), as reported in The Wall
Street Journal or such other source as the Administrator deems
reliable;

     

    (ii)  If the
Common Stock is regularly quoted on an automated quotation system (including the
OTC Bulletin Board) or by a recognized securities dealer, its Fair Market Value
shall be the closing sales price for such stock as quoted on such system or by
such securities dealer on the date of determination, but if selling prices are
not reported, the Fair Market Value of a share of Common Stock shall be the mean
between the high bid and low asked prices for the Common Stock on the date of
determination (or, if no such prices were reported on that date, on the last
date such prices were reported), as reported in The Wall Street Journal or such
other source as the Administrator deems reliable; or

     

    
      
        
        

      

      
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    (iii)  In the
absence of an established market for the Common Stock of the type described in
(i) and (ii), above, the Fair Market Value thereof shall be determined by the
Administrator in good faith and in a manner consistent with Applicable
Laws.

     

    (y)  “Grantee” means
an Employee, Director or Consultant who receives an Award under the
Plan.

     

    (z)  “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, any person sharing the Grantee’s household (other than a tenant
or employee), a trust in which these persons (or the Grantee) have more than
fifty percent (50%) of the beneficial interest, a foundation in which these
persons (or the Grantee) control the management of assets, and any other entity
in which these persons (or the Grantee) own more than fifty percent (50%) of the
voting interests. 

     

    (aa)  “Incentive Stock
Option” means
an Option intended to qualify as an incentive stock option within the meaning of
Section 422 of the Code.

     

    (bb)  “Non-Qualified Stock
Option” means
an Option not intended to qualify as an Incentive Stock Option.

     

    (cc)  “Officer” means a
person who is an officer of the Company or a Related Entity within the meaning
of Section 16 of the Exchange Act and the rules and regulations promulgated
thereunder.

     

    (dd)  “Option” means
an option to purchase Shares pursuant to an Award Agreement granted under the
Plan.

     

    (ee)  “Parent” means a
“parent corporation”, whether now or hereafter existing, as defined in
Section 424(e) of the Code.

     

    (ff)  “Performance-Based
Compensation” means
compensation qualifying as “performance-based compensation” under
Section 162(m) of the Code.

     

    (gg)  “Plan” means
this 2008 Stock Incentive Plan.

     

    (hh)  “Post-Termination Exercise
Period” means
the period specified in the Award Agreement and to the extent required by
Applicable Laws, shall be a period of not less than thirty (30) days commencing
on the date of termination (other than termination by the Company or any Related
Entity for Cause) of the Grantee’s Continuous Service, or such longer period as
may be required by Applicable Laws upon death or Disability.

     

    
      
        
        

      

      
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    (ii)  “Related
Entity” means
any Parent or Subsidiary of the Company.

     

    (jj)  “Replaced” means
that pursuant to a Corporate Transaction the Award is replaced with a
comparable stock award or a cash incentive program of the Company, the successor
entity (if applicable) or Parent of either of them which preserves the
compensation element of such Award existing at the time of the Corporate
Transaction and provides for subsequent payout in accordance with the same (or a
more favorable) vesting schedule applicable to such Award. The determination of
Award comparability shall be made by the Administrator and its determination
shall be final, binding and conclusive.

     

    (kk)  “Restricted
Stock” means
Shares issued under the Plan to the Grantee for such consideration, if any, and
subject to such restrictions on transfer, rights of first refusal, repurchase
provisions, forfeiture provisions, and other terms and conditions as established
by the Administrator. 

     

    (ll)  “Restricted Stock
Units” means
an Award which may be earned in whole or in part upon the passage of time or the
attainment of performance criteria established by the Administrator and which
may be settled for cash, Shares or other securities or a combination of cash,
Shares or other securities as established by the Administrator. 

     

    (mm)  “Rule 16b-3” means
Rule 16b-3 promulgated under the Exchange Act or any successor
thereto.

     

    (nn)  “SAR” means a
stock appreciation right entitling the Grantee to Shares or cash compensation,
as established by the Administrator, measured by appreciation in the value of
Common Stock. 

     

    (oo)  “Share” means a
share of the Common Stock.

     

    (pp)  “Subsidiary” means a
“subsidiary corporation”, whether now or hereafter existing, as defined in
Section 424(f) of the Code.

     

    3.  Stock Subject to the
Plan.

     

    (a)  Subject
to the provisions of Section 10 below,
the maximum aggregate number of Shares which may be issued pursuant to all
Awards is Nineteen Million Two Hundred Twenty Four Thousand Seven Hundred
Seventy Four (19,224,774) Shares; provided, however, that the maximum aggregate
number of Shares that may be issued pursuant to Incentive Stock Options is
Nineteen Million Two Hundred Twenty Four Thousand Seven Hundred Seventy Four
(19,224,774) Shares. The Shares may be authorized, but unissued, or reacquired
Common Stock. 

     

    (b)  Any
Shares covered by an Award (or portion of an Award) which is forfeited, canceled
or expires (whether voluntarily or involuntarily) shall be deemed not to have
been issued for purposes of determining the maximum aggregate number of Shares
which may be issued under the Plan. Shares that actually have been issued under
the Plan pursuant to an Award shall not be returned to the Plan and shall not
become available for future issuance under the Plan, except that if unvested
Shares are forfeited or repurchased by the Company, such Shares shall become
available for future grant under the Plan. To the extent not
prohibited by the listing requirements of The NASDAQ Stock Market LLC (or other
established stock exchange or national market system on which the Common Stock
is traded) and Applicable Law, any Shares covered by an Award which are
surrendered (i) in payment of the Award exercise or purchase price or
(ii) in satisfaction of tax withholding obligations incident to the
exercise of an Award shall be deemed not to have been issued for purposes of
determining the maximum number of Shares which may
be issued pursuant to all Awards under the Plan, unless
otherwise determined by the Administrator.

     

    
      
        
        

      

      
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    4.  Administration of the
Plan.

     

    (a)  Plan
Administrator.


     

    (i)  Administration with Respect
to Directors and Officers. With
respect to grants of Awards to Directors or Employees who are also Officers or
Directors of the Company, the Plan shall be administered by (A) the Board
or (B) a Committee designated by the Board, which Committee shall be
constituted in such a manner as to satisfy the Applicable Laws and to permit
such grants and related transactions under the Plan to be exempt from Section
16(b) of the Exchange Act in accordance with Rule 16b-3. Once appointed,
such Committee shall continue to serve in its designated capacity until
otherwise directed by the Board. 

     

    (ii)  Administration With Respect
to Consultants and Other Employees. With
respect to grants of Awards to Employees or Consultants who are neither
Directors nor Officers of the Company, the Plan shall be administered by (A) the
Board or (B) a Committee designated by the Board, which Committee shall be
constituted in such a manner as to satisfy the Applicable Laws. Once appointed,
such Committee shall continue to serve in its designated capacity until
otherwise directed by the Board. The Board may authorize one or more Officers to
grant such Awards and may limit such authority as the Board determines from time
to time.

     

    (iii)  Administration With Respect
to Covered Employees.
Notwithstanding the foregoing, grants of Awards to any Covered Employee intended
to qualify as Performance-Based Compensation shall be made only by a Committee
(or subcommittee of a Committee) which is comprised solely of two or more
Directors eligible to serve on a committee making Awards qualifying as
Performance-Based Compensation. In the case of such Awards granted to Covered
Employees, references to the “Administrator” or to a “Committee” shall be deemed
to be references to such Committee or subcommittee.

     

    (iv)  Administration
Errors. In the
event an Award is granted in a manner inconsistent with the provisions of this
subsection (a), such Award shall be presumptively valid as of its grant
date to the extent permitted by the Applicable Laws. 

     

    (b)  Powers of the
Administrator. Subject
to Applicable Laws and the provisions of the Plan (including any other powers
given to the Administrator hereunder), and except as otherwise provided by the
Board, the Administrator shall have the authority, in its
discretion:

     

    (i)  to select
the Employees, Directors and Consultants to whom Awards may be granted from time
to time hereunder;

     

    
      
        
        

      

      
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    (ii)  to
determine whether and to what extent Awards are granted hereunder;

     

    (iii)  to
determine the number of Shares or the amount of other consideration to be
covered by each Award granted hereunder;

     

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

     

    (v)  to
determine the terms and conditions of any Award granted hereunder;

     

    (vi)  to
establish additional terms, conditions, rules or procedures to accommodate the
rules or laws of applicable non-U.S. jurisdictions and to afford Grantees
favorable treatment under such rules or laws; provided, however, that no Award
shall be granted under any such additional terms, conditions, rules or
procedures with terms or conditions which are inconsistent with the provisions
of the Plan;

     

    (vii)  to amend
the terms of any outstanding Award granted under the Plan, provided that
(A) any amendment that would adversely affect the Grantee’s rights under an
outstanding Award shall not be made without the Grantee’s written
consent,
provided, however, that an amendment or modification that may cause an Incentive
Stock Option to become a Non-Qualified Stock Option shall not be treated as
adversely affecting the rights of the Grantee (B) the
reduction of the exercise price of any Option awarded under the Plan and the
base appreciation amount of any SAR awarded under the Plan shall be subject to
stockholder approval and (C) canceling an Option or SAR at a time when its
exercise price or base appreciation amount (as applicable) exceeds the Fair
Market Value of the underlying Shares, in exchange for another Option, SAR,
Restricted Stock, or other Award shall be subject to stockholder approval,
unless the cancellation and exchange occurs in connection with a Corporate
Transaction. Notwithstanding the foregoing, canceling an Option or SAR in
exchange for another Option, SAR, Restricted Stock, or other Award with an
exercise price, purchase price or base appreciation amount (as applicable) that
is equal to or greater than the exercise price or base appreciation amount (as
applicable) of the original Option or SAR shall not be subject to stockholder
approval;

     

    (viii)  to
construe and interpret the terms of the Plan and Awards, including without
limitation, any notice of award or Award Agreement, granted pursuant to
the Plan;
and

     

    (ix)  to take
such other action, not inconsistent with the terms of the Plan, as the
Administrator deems appropriate.

     

    The
express grant in the Plan of any specific power to the Administrator shall not
be construed as limiting any power or authority of the Administrator; provided
that the Administrator may not exercise any right or power reserved to the
Board. Any decision made, or action taken, by the Administrator or in connection
with the administration of this Plan shall be final, conclusive and binding on
all persons having an interest in the Plan.

     

    
      
        
        

      

      
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    (c)  Indemnification. In
addition to such other rights of indemnification as they may have as members of
the Board or as Officers or Employees of the Company or a Related Entity,
members of the Board and any Officers or Employees of the Company or a Related
Entity to whom authority to act for the Board, the Administrator or the Company
is delegated shall be defended and indemnified by the Company to the extent
permitted by law on an after-tax basis against all reasonable expenses,
including attorneys’ fees, actually and necessarily incurred in connection with
the defense of any claim, investigation, action, suit or proceeding, or in
connection with any appeal therein, to which they or any of them may be a party
by reason of any action taken or failure to act under or in connection with the
Plan, or any Award granted hereunder, and against all amounts paid by them in
settlement thereof (provided such settlement is approved by the Company) or paid
by them in satisfaction of a judgment in any such claim, investigation, action,
suit or proceeding, except in relation to matters as to which it shall be
adjudged in such claim, investigation, action, suit or proceeding that such
person is liable for gross negligence, bad faith or intentional misconduct;
provided, however, that within thirty (30) days after the institution of such
claim, investigation, action, suit or proceeding, such person shall offer to the
Company, in writing, the opportunity at the Company’s expense to defend the
same.

     

    5.  Eligibility. Awards
other than Incentive Stock Options may be granted to Employees, Directors and
Consultants. Incentive Stock Options may be granted only to Employees of the
Company or a Parent or a Subsidiary of the Company. An Employee, Director or
Consultant who has been granted an Award may, if otherwise eligible, be granted
additional Awards. Awards may be granted to such Employees, Directors or
Consultants who are residing in non-U.S. jurisdictions as the Administrator may
determine from time to time.

     

    6.  Terms and Conditions of
Awards.

     

    (a)  Types of
Awards. The
Administrator is authorized under the Plan to award any type of arrangement to
an Employee, Director or Consultant that is not inconsistent with the provisions
of the Plan and that by its terms involves or might involve the issuance of
(i) Shares, (ii) cash or (iii) an Option, a SAR, or similar right
with a fixed or variable price related to the Fair Market Value of the Shares
and with an exercise or conversion privilege related to the passage of time, the
occurrence of one or more events, or the satisfaction of performance criteria or
other conditions. Such awards include, without limitation, Options, SARs, sales
or bonuses of Restricted Stock, Restricted Stock Units or Dividend Equivalent
Rights, and an Award may consist of one such security or benefit, or two
(2) or more of them in any combination or alternative.

     

    (b)  Designation of
Award. Each
Award shall be designated in the Award Agreement. In the case of an Option, the
Option shall be designated as either an Incentive Stock Option or a
Non-Qualified Stock Option. However, notwithstanding such designation, an Option
will qualify as an Incentive Stock Option under the Code only to the extent the
$100,000 dollar limitation of Section 422(d) of the Code is not exceeded.
The $100,000 limitation of Section 422(d) of the Code is calculated based
on the aggregate Fair Market Value of the Shares subject to Options designated
as Incentive Stock Options which become exercisable for the first time by a
Grantee during any calendar year (under all plans of the Company or any Parent
or Subsidiary of the Company). For purposes of this calculation, Incentive Stock
Options shall be taken into account in the order in which they were granted, and
the Fair Market Value of the Shares shall be determined as of the grant date of
the relevant Option. In the event that the Code or the regulations promulgated
thereunder are amended after the date the Plan becomes effective to provide for
a different limit on the Fair Market Value of Shares permitted to be subject to
Incentive Stock Options, then such different limit will be automatically
incorporated herein and will apply to any Options granted after the effective
date of such amendment.

     

    
      
        
        

      

      
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    (c)  Conditions of
Award. Subject
to the terms of the Plan, the Administrator shall determine the provisions,
terms, and conditions of each Award including, but not limited to, the Award
vesting schedule, repurchase provisions, rights of first refusal, forfeiture
provisions, form of payment (cash, Shares, or other consideration) upon
settlement of the Award, payment contingencies, and satisfaction of any
performance criteria. The performance criteria established by the Administrator
may be based on any one of, or combination of, the following: (i) increase in
share price, (ii) earnings per share, (iii) total stockholder return, (iv)
operating margin, (v) gross margin, (vi) return on equity, (vii) return on
assets, (viii) return on investment, (ix) operating income, (x) net operating
income, (xi) pre-tax profit, (xii) cash flow, (xiii) revenue, (xiv) expenses,
(xv) earnings before interest, taxes and depreciation, (xvi) economic value
added and (xvii) market share. The performance criteria may be applicable to the
Company, Related Entities and/or any individual business units of the Company or
any Related Entity. Partial achievement of the specified criteria may result in
a payment or vesting corresponding to the degree of achievement as specified in
the Award Agreement. In addition, the performance criteria shall be calculated
in accordance with generally accepted accounting principles, but excluding the
effect (whether positive or negative) of any change in accounting standards and
any extraordinary, unusual or nonrecurring item, as determined by the
Administrator, occurring after the establishment of the performance criteria
applicable to the Award intended to be performance-based compensation. Each such
adjustment, if any, shall be made solely for the purpose of providing a
consistent basis from period to period for the calculation of performance
criteria in order to prevent the dilution or enlargement of the Grantee’s rights
with respect to an Award intended to be performance-based
compensation.

     

    (d)  Acquisitions and Other
Transactions. The
Administrator may issue Awards under the Plan in settlement, assumption or
substitution for, outstanding awards or obligations to grant future awards in
connection with the Company or a Related Entity acquiring another entity, an
interest in another entity or an additional interest in a Related Entity whether
by merger, stock purchase, asset purchase or other form of
transaction. 

     

    (e)  Deferral of Award
Payment. The
Administrator may establish one or more programs under the Plan to permit
selected Grantees the opportunity to elect to defer receipt of consideration
upon exercise of an Award, satisfaction of performance criteria, or other event
that absent the election would entitle the Grantee to payment or receipt of
Shares or other consideration under an Award. The Administrator may establish
the election procedures, the timing of such elections, the mechanisms for
payments of, and accrual of interest or other earnings, if any, on amounts,
Shares or other consideration so deferred, and such other terms, conditions,
rules and procedures that the Administrator deems advisable for the
administration of any such deferral program.

     

    
      
        
        

      

      
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    (f)  Separate
Programs. The
Administrator may establish one or more separate programs under the Plan for the
purpose of issuing particular forms of Awards to one or more classes of Grantees
on such terms and conditions as determined by the Administrator from time to
time.

     

    (g)  Individual Limitations on
Awards.

     

    (i)  Individual Option and SAR
Limit. The
maximum number of Shares with respect to which Options and SARs may be granted
to any Grantee in any calendar year shall be Two Million (2,000,000) Shares. The
foregoing limitation shall be adjusted proportionately in connection with any
change in the Company’s capitalization pursuant to Section 10, below. To
the extent required by Section 162(m) of the Code or the regulations
thereunder, in applying the foregoing limitation with respect to a Grantee, if
any Option or SAR is canceled, the canceled Option or SAR shall continue to
count against the maximum number of Shares with respect to which Options and
SARs may be granted to the Grantee. For this purpose, the repricing of an Option
(or in the case of a SAR, the base amount on which the stock appreciation is
calculated is reduced to reflect a reduction in the Fair Market Value of the
Common Stock) shall be treated as the cancellation of the existing Option or SAR
and the grant of a new Option or SAR.

     

    (ii)  Individual Limit for
Restricted Stock and Restricted Stock Units. For
awards of Restricted Stock and Restricted Stock Units that are intended to be
Performance-Based Compensation, the maximum number of Shares with respect to
which such Awards may be granted to any Grantee in any calendar year shall be
Two Million (2,000,000) Shares. The foregoing limitation shall be adjusted
proportionately in connection with any change in the Company’s capitalization
pursuant to Section 10, below. 

     

    (h)  Early
Exercise. The
Award Agreement may, but need not, include a provision whereby the Grantee may
elect at any time while an Employee, Director or Consultant to exercise any part
or all of the Award prior to full vesting of the Award. Any unvested Shares
received pursuant to such exercise may be subject to a repurchase right in favor
of the Company or a Related Entity or to any other restriction the Administrator
determines to be appropriate.

     

    (i)  Term of
Award. The
term of each Award shall be the term stated in the Award Agreement, provided,
however, that the term shall be no more than ten (10) years from the date
of grant thereof. However, in the case of an Incentive Stock Option granted to a
Grantee who, at the time the 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 of the Company, the term of the Incentive
Stock Option shall be five (5) years from the date of grant thereof or such
shorter term as may be provided in the Award Agreement. Notwithstanding the
foregoing, the specified term of any Award shall not include any period for
which the Grantee has elected to defer the receipt of the Shares or cash
issuable pursuant to the Award.

     

    (j)  Transferability of
Awards. 
Incentive Stock Options 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
Grantee, only by the Grantee.  Other
Awards shall be transferable (i) by will and by the laws of descent and
distribution and (ii) during the lifetime of the Grantee, to the extent and
in the manner authorized by the Administrator, by gift or pursuant to a domestic
relations order to members of the Grantee’s Immediate Family. Notwithstanding
the foregoing, the Grantee may designate one or more beneficiaries of the
Grantee’s Award in the event of the Grantee’s death on a beneficiary designation
form provided by the Administrator. 

     

    
      
        
        

      

      
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    (k)  Time of Granting
Awards. The
date of grant of an Award shall for all purposes be the date on which the
Administrator makes the determination to grant such Award, or such other later
date as is determined by the Administrator. 

     

    7.  Award Exercise or Purchase
Price, Consideration and Taxes.

     

    (a)  Exercise or Purchase
Price. The
exercise or purchase price, if any, for an Award shall be as
follows:

     

    (i)  In the
case of an Incentive Stock Option:

     

    (A)  granted
to an Employee who, at the time of the grant of such Incentive Stock Option 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 of the Company, the
per Share exercise price shall be not less than one hundred ten percent (110%)
of the Fair Market Value per Share on the date of grant; or

     

    (B)  granted
to any Employee other than an Employee described in the preceding paragraph, the
per Share exercise price shall be not less than one hundred percent (100%) of
the Fair Market Value per Share on the date of grant.

     

    (ii)  In the
case of a Non-Qualified Stock Option, the per Share exercise price shall be such
price as is determined by the Administrator.

     

    (iii)  In the
case of SARs, the base appreciation amount shall not be less than one hundred
percent (100%) of the Fair Market Value per Share on the date of
grant.

     

    (iv)  In the
case of Awards intended to qualify as Performance-Based Compensation, the
exercise or purchase price, if any, shall be not less than one hundred percent
(100%) of the Fair Market Value per Share on the date of grant.

     

    (v)  In the
case of the sale of Shares, the per Share purchase price, if any, shall be such
price as is determined by the Administrator.

     

    (vi)  In the
case of other Awards, such price as is determined by the
Administrator.

     

    (vii)  Notwithstanding
the foregoing provisions of this Section 7(a), in the
case of an Award issued pursuant to Section 6(d), above,
the exercise or purchase price for the Award shall be determined in accordance
with the provisions of the relevant instrument evidencing the agreement to issue
such Award.

     

    
      
        
        

      

      
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    (b)  Consideration. Subject
to Applicable Laws, the consideration to be paid for the Shares to be issued
upon exercise or purchase of an Award including the method of payment, shall be
determined by the Administrator. In addition to any other types of consideration
the Administrator may determine, the Administrator is authorized to accept as
consideration for Shares issued under the Plan the following: 

     

    (i)  cash;

     

    (ii)  check;


     

    (iii)  delivery
of Grantee’s promissory note with such recourse, interest, security, and
redemption provisions as the Administrator determines as appropriate (but only
to the extent that the acceptance or terms of the promissory note would not
violate an Applicable Law);

     

    (iv)  surrender
of Shares or delivery of a properly executed form of attestation of ownership of
Shares as the Administrator may require which have a Fair Market Value on the
date of surrender or attestation equal to the aggregate exercise price of the
Shares as to which said Award shall be exercised; 

     

    (v)  with
respect to Options, payment through a broker-dealer sale and remittance
procedure pursuant to which the Grantee (A) shall provide written instructions
to a Company designated brokerage firm to effect the immediate sale of some or
all of the purchased Shares and remit to the Company sufficient funds to cover
the aggregate exercise price payable for the purchased Shares and (B) shall
provide written directives to the Company to deliver the certificates for the
purchased Shares directly to such brokerage firm in order to complete the sale
transaction; 

     

    (vi)  with
respect to Options, payment through a “net exercise” such that, without the
payment of any funds, the Grantee may exercise the Option and receive the net
number of Shares equal to (i) the number of Shares as to which the Option
is being exercised, multiplied by (ii) a fraction, the numerator of which
is the Fair Market Value per Share (on such date as is determined by the
Administrator) less the Exercise Price per Share, and the denominator of which
is such Fair Market Value per Share (the number of net Shares to be received
shall be rounded down to the nearest whole number of Shares); or

     

    (vii)  any
combination of the foregoing methods of payment. 

     

    The
Administrator may at any time or from time to time, by adoption of or by
amendment to the standard forms of Award Agreement described in
Section 4(b)(iv), or by other means, grant Awards which do not permit all
of the foregoing forms of consideration to be used in payment for the Shares or
which otherwise restrict one or more forms of consideration. 

     

    (c)  Taxes. No
Shares shall be delivered under the Plan to any Grantee or other person until
such Grantee or other person has made arrangements acceptable to the
Administrator for the satisfaction of any non-U.S., federal, state, or local
income and employment tax withholding obligations, including, without
limitation, obligations incident to the receipt of Shares. Upon exercise or
vesting of an Award the Company shall withhold or collect from the Grantee an
amount sufficient to satisfy such tax obligations, including, but not limited
to, by surrender of the whole number of Shares
covered by the Award sufficient to satisfy the minimum applicable tax
withholding obligations incident to the exercise or vesting of an Award (reduced
to the lowest whole number of Shares if such number of Shares withheld would
result in withholding a fractional Share with any remaining tax withholding
settled in cash).


     

    
      
        
        

      

      
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    8.  Exercise of
Award.

     

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


     

    (i)  Any Award
granted hereunder shall be exercisable at such times and under such conditions
as determined by the Administrator under the terms of the Plan and specified in
the Award Agreement. 

     

    (ii)  An Award
shall be deemed to be exercised when written notice of such exercise has been
given to the Company in accordance with the terms of the Award by the person
entitled to exercise the Award and full payment for the Shares with respect to
which the Award is exercised has been made, including, to the extent selected,
use of the broker-dealer sale and remittance procedure to pay the purchase price
as provided in Section 7(b)(v). 

     

    (b)  Exercise of Award Following
Termination of Continuous Service. To the
extent required under Applicable Laws, in the event of termination of a
Grantee’s Continuous Service for any reason other than Disability or death (but
not in the event of a Grantee’s change of status from Employee to Consultant or
from Consultant to Employee), such Grantee may, but only during the
Post-Termination Exercise Period (but in no event later than the expiration date
of the term of such Award as set forth in the Award Agreement), exercise the
portion of the Grantee’s Award that was vested at the date of such termination
or such other portion of the Grantee’s Award as may be determined by the
Administrator. The Grantee’s Award Agreement may provide that upon the
termination of the Grantee’s Continuous Service for Cause, the Grantee’s right
to exercise the Award shall terminate concurrently with the termination of
Grantee’s Continuous Service. In the event of a Grantee’s change of status from
Employee to Consultant, an Employee’s Incentive Stock Option shall convert
automatically to a Non-Qualified Stock Option on the day three (3) months and
one day following such change of status. To the extent that the Grantee’s Award
was unvested at the date of termination, or if the Grantee does not exercise the
vested portion of the Grantee’s Award within the Post-Termination Exercise
Period, the Award shall terminate. If Applicable Laws allow for a shorter or
longer Post-Termination Exercise Period, the Award may be exercised following
the termination of a Grantee’s Continuous Service only to the extent provided in
the Award Agreement.

     

    (c)  Disability of
Grantee. To the
extent required under Applicable Laws, in the event of termination of a
Grantee’s Continuous Service as a result of his or her Disability, such Grantee
may, but only within twelve (12) months from the date of such termination (or
such longer period as specified in the Award Agreement but in no event later
than the expiration date of the term of such Award as set forth in the Award
Agreement), exercise the portion of the Grantee’s Award that was vested at the
date of such termination; provided, however, that if such Disability is not a
“disability” as such term is defined in Section 22(e)(3) of the Code, in
the case of an Incentive Stock Option such Incentive Stock Option shall
automatically convert to a Non-Qualified Stock Option on the day three (3)
months and one day following such termination. To the extent that the Grantee’s
Award was unvested at the date of termination, or if Grantee does not exercise
the vested portion of the Grantee’s Award within the time specified herein, the
Award shall terminate. If Applicable Laws allow for a shorter or longer
Post-Termination Exercise Period upon a Grantee’s Continuous Service as a result
of Disability, the Award may be exercised following the termination of a
Grantee’s Continuous Service only to the extent provided in the Award
Agreement.

     

    
      
        
        

      

      
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    (d)  Death of
Grantee. To the
extent required under Applicable Laws, in the event of a termination of the
Grantee’s Continuous Service as a result of his or her death, or in the event of
the death of the Grantee during the Post-Termination Exercise Period or during
the twelve (12) month period following the Grantee’s termination of Continuous
Service as a result of his or her Disability, the Grantee’s estate or a person
who acquired the right to exercise the Award by bequest or inheritance may
exercise the portion of the Grantee’s Award that was vested as of the date of
termination, within twelve (12) months from the date of death (or such longer
period as specified in the Award Agreement but in no event later than the
expiration of the term of such Award as set forth in the Award Agreement). To
the extent that, at the time of death, the Grantee’s Award was unvested, or if
the Grantee’s estate or a person who acquired the right to exercise the Award by
bequest or inheritance does not exercise the vested portion of the Grantee’s
Award within the time specified herein, the Award shall terminate. If Applicable
Laws allow for a shorter or longer Post-Termination Exercise Period upon a
termination of the Grantee’s Continuous Service as a result of his or her death,
the Award may be exercised following the termination of a Grantee’s Continuous
Service only to the extent provided in the Award Agreement.

     

    (e)  Extension if Exercise
Prevented by Law.
Notwithstanding the foregoing, if the exercise of an Award within the applicable
time periods set forth in this Section 8 is prevented by the provisions of
Section 9 below, the Award shall remain exercisable until one (1) month
after the date the Grantee is notified by the Company that the Award is
exercisable, but in any event no later than the expiration of the term of such
Award as set forth in the Award Agreement.

     

    9.  Conditions Upon Issuance of
Shares.

     

    (a)  If at any
time the Administrator determines that the delivery of Shares pursuant to the
exercise, vesting or any other provision of an Award is or may be unlawful under
Applicable Laws, the vesting or right to exercise an Award or to otherwise
receive Shares pursuant to the terms of an Award shall be suspended until the
Administrator determines that such delivery is lawful and shall be further
subject to the approval of counsel for the Company with respect to such
compliance. The Company shall have no obligation to effect any registration or
qualification of the Shares under federal or state laws.

     

    (b)  As a
condition to the exercise of an Award, the Company may require the person
exercising such Award to represent and warrant at the time of any such exercise
that the Shares are being purchased only for investment and without any present
intention to sell or distribute such Shares if, in the opinion of counsel for
the Company, such a representation is required by any Applicable
Laws.

     

    
      
        
        

      

      
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    10.  Adjustments Upon Changes in
Capitalization. Subject
to any required action by the stockholders of the Company and Section 11 hereof,
the number of Shares covered by each outstanding Award, and 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, the exercise or
purchase price of each such outstanding Award, the maximum number of Shares with
respect to which Awards may be granted to any Grantee in any calendar year, as
well as any other terms that the Administrator determines require adjustment
shall be proportionately adjusted for (i) 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 Shares, or similar transaction
affecting the Shares, (ii) any other increase or decrease in the number of
issued Shares effected without receipt of consideration by the Company, or
(iii) any other transaction with respect to Common Stock including a
corporate merger, consolidation, acquisition of property or stock, separation
(including a spin-off or other distribution of stock or property),
reorganization, liquidation (whether partial or complete) or any similar
transaction; provided, however that conversion of any convertible securities of
the Company shall not be deemed to have been “effected without receipt of
consideration.” In connection with the foregoing adjustments, the Administrator
may, in its discretion, prohibit the exercise of Awards or other issuance of
Shares, cash or other consideration pursuant to Awards during certain periods of
time. Except as the Administrator determines, no issuance by the Company of
shares of any class, or securities convertible into shares of any class, shall
affect, and no adjustment by reason hereof shall be made with respect to, the
number or price of Shares subject to an Award. 

     

    11.  Corporate Transactions and
Changes in Control.

     

    (a)  Termination of Award to
Extent Not Assumed in Corporate Transaction.
Effective upon the consummation of a Corporate Transaction, all outstanding
Awards under the Plan shall terminate. However, all such Awards shall not
terminate to the extent they are Assumed in connection with the Corporate
Transaction.

     

    (b)  Acceleration of Award Upon
Corporate Transaction or Change in Control. The
Administrator shall have the authority, exercisable either in advance of any
actual or anticipated Corporate Transaction or Change in Control or at the time
of an actual Corporate Transaction or Change in Control and exercisable at the
time of the grant of an Award under the Plan or any time while an Award remains
outstanding, to provide for the full or partial automatic vesting and
exercisability of one or more outstanding unvested Awards under the Plan and the
release from restrictions on transfer and repurchase or forfeiture rights of
such Awards in connection with a Corporate Transaction or Change in Control, on
such terms and conditions as the Administrator may specify. The Administrator
also shall have the authority to condition any such Award vesting and
exercisability or release from such limitations upon the subsequent termination
of the Continuous Service of the Grantee within a specified period following the
effective date of the Corporate Transaction or Change in Control. The
Administrator may provide that any Awards so vested or released from such
limitations in connection with a Change in Control, shall remain fully
exercisable until the expiration or sooner termination of the Award.


     

    (c)  Effect of Acceleration on
Incentive Stock Options. Any
Incentive Stock Option accelerated under this Section 11 in
connection with a Corporate Transaction or Change in Control shall remain
exercisable as an Incentive Stock Option under the Code only to the extent the
$100,000 dollar limitation of Section 422(d) of the Code is not exceeded.


     

    
      
        
        

      

      
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    12.  Effective Date and Term of
Plan. The
Plan shall become effective upon the earlier to occur of its adoption by the
Board or its approval by the stockholders of the Company. It shall continue in
effect for a term of ten (10) years unless sooner terminated. Subject to
Section 17 below, and Applicable Laws, Awards may be granted under the Plan
upon its becoming effective.

     

    13.  Amendment, Suspension or
Termination of the Plan.

     

    (a)  The Board
may at any time amend, suspend or terminate the Plan; provided, however, that no
such amendment shall be made without the approval of the Company’s stockholders
to the extent such approval is required by Applicable Laws, or if
such amendment would lessen the stockholder approval requirements of
Section 4(b)(vi) or this Section 13(a).

     

    (b)  No Award
may be granted during any suspension of the Plan or after termination of the
Plan.

     

    (c)  No
suspension or termination of the Plan (including termination of the Plan under
Section 12, above) shall adversely affect any rights under Awards already
granted to a Grantee.

     

    14.  Reservation of
Shares.

     

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

     

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

     

    15.  No Effect on Terms of
Employment/Consulting Relationship. The
Plan shall not confer upon any Grantee any right with respect to the Grantee’s
Continuous Service, nor shall it interfere in any way with his or her right or
the right of the Company or a Related Entity to terminate the Grantee’s
Continuous Service at any time, with or without Cause, and with or without
notice. The ability of the Company or any Related Entity to terminate the
employment of a Grantee who is employed at will is in no way affected by its
determination that the Grantee’s Continuous Service has been terminated for
Cause for the purposes of this Plan.

     

    16.  No Effect on Retirement and
Other Benefit Plans. Except
as specifically provided in a retirement or other benefit plan of the Company or
a Related Entity, Awards shall not be deemed compensation for purposes of
computing benefits or contributions under any retirement plan of the Company or
a Related Entity, and shall not affect any benefits under any other benefit plan
of any kind or any benefit plan subsequently instituted under which the
availability or amount of benefits is related to level of compensation. The Plan
is not a “Retirement Plan” or “Welfare Plan” under the Employee Retirement
Income Security Act of 1974, as amended.

     

    
      
        
        

      

      
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    17.  Stockholder
Approval.
Continuance of the Plan shall be subject to approval by the stockholders of the
Company within twelve (12) months before or after the date the Plan is adopted.
Such stockholder approval shall be obtained in the degree and manner required
under Applicable Laws. Any Award exercised before stockholder approval is
obtained shall be rescinded if stockholder approval is not obtained within the
time prescribed, and Shares issued on the exercise of any such Award shall not
be counted in determining whether stockholder approval is obtained.

     

    18.  Information to
Grantees. To the
extent required by Applicable Laws, the Company shall provide to each Grantee,
during the period for which such Grantee has one or more Awards outstanding,
copies of financial statements at least annually. The Company shall not be
required to provide such information to persons whose duties in connection with
the Company assure them access to equivalent information.

     

    19.  Unfunded
Obligation.
Grantees shall have the status of general unsecured creditors of the Company.
Any amounts payable to Grantees pursuant to the Plan shall be unfunded and
unsecured obligations for all purposes, including, without limitation,
Title I of the Employee Retirement Income Security Act of 1974, as amended.
Neither the Company nor any Related Entity shall be required to segregate any
monies from its general funds, or to create any trusts, or establish any special
accounts with respect to such obligations. The Company shall retain at all times
beneficial ownership of any investments, including trust investments, which the
Company may make to fulfill its payment obligations hereunder. Any investments
or the creation or maintenance of any trust or any Grantee account shall not
create or constitute a trust or fiduciary relationship between the
Administrator, the Company or any Related Entity and a Grantee, or otherwise
create any vested or beneficial interest in any Grantee or the Grantee’s
creditors in any assets of the Company or a Related Entity. The Grantees shall
have no claim against the Company or any Related Entity for any changes in the
value of any assets that may be invested or reinvested by the Company with
respect to the Plan.

     

    20.  Construction.
Captions and titles contained herein are for convenience only and shall not
affect the meaning or interpretation of any provision of the Plan. Except when
otherwise indicated by the context, the singular shall include the plural and
the plural shall include the singular. Use of the term “or” is not intended to
be exclusive, unless the context clearly requires otherwise.

     

    21.  Nonexclusivity of The
Plan. Neither
the adoption of the Plan by the Board, the submission of the Plan to the
stockholders of the Company for approval, nor any provision of the Plan will be
construed as creating any limitations on the power of the Board to adopt such
additional compensation arrangements as it may deem desirable, including,
without limitation, the granting of Awards otherwise than under the Plan, and
such arrangements may be either generally applicable or applicable only in
specific cases.

     

    
      
        
        

      

      
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