ex10-12_f10k12312009.htm


    Exhibit
10.12

     

    OPHTHALMIC
IMAGING SYSTEMS

    2005
STOCK OPTION PLAN

    


    


    1.   Purposes of the
Plan.

     

    (a)   This
stock  option  plan (the  "Plan")
is  intended  to provide an incentive to
employees  (including directors and officers who are employees) and
non-employee  directors of, and consultants and advisors to,
Ophthalmic  Imaging Systems,  a
California  corporation (the "Company") or any of
its  Subsidiaries, and
to  offer  an  additional  inducement  in  obtaining  the  services  of
such individuals.

     

    (b)   The
Plan  provides  for the  grant
of  "incentive  stock  options" ("ISOs") within
the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code"),  stock options which do not qualify as
ISOs  ("NQSOs"), and  shares of stock of
the  Company  that may be subject  to
contingencies or restrictions (" Restricted Stock").  ISOs and NQSOs
are collectively referred to herein as "Options," and Options and Restricted
Stock are collectively  referred to as "Awards."  The
Company  makes no  representation  or
warranty,  express or implied, as to the qualification of any Option
as an "incentive stock option" or any other treatment of an Award under the
Code.

     

    (c)   Capitalized  terms
used but not defined  elsewhere herein have the meanings assigned to
them in Section 18 below.

     

    2.   Stock  Subject to
the Plan.  Subject to the provisions of Section 11, the
aggregate number of shares of the Company's Common Stock,  without par
value ("Common  Stock"),  for
which  Awards  may be  granted  under
the Plan shall not exceed Seven  Hundred
Fifty  Thousand  (750,000)  shares.  Such
shares of Common Stock may, in the  discretion of the Board
of  Directors  of the  Company (the "Board of
Directors"),  consist  either in whole or in part of
authorized but unissued shares of Common Stock or shares of Common Stock held in
the treasury of the Company.  Subject to
the  provisions  of Section 12, any shares of Common
Stock  subject  to
an  Award  which  for
any  reason  expires  or is  forfeited,
canceled,  or  terminated  unexercised  or
which  ceases  for any  reason  to be
exercisable,  shall again become  available for the granting
of Awards under the Plan.  The Company  shall at all
times  during the term of the Plan  reserve and
keep  available  such number of shares of Common Stock as
will be  sufficient to satisfy the requirements of the
Plan.

     

    3.    Administration of the
Plan.

     

    (a)   The Plan
will be administered  by the Board of Directors,  or by a
committee (the "Committee") consisting of two or more directors appointed by the
Board of Directors.  Those administering the Plan shall be referred to
herein as the  "Administrators."  Notwithstanding the
foregoing, if the Company is or becomes a corporation  issuing any
class of common equity securities required to be registered under Section 12 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to the
extent necessary to preserve any deduction 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    under
Section 162(m) of the Code or to comply with Rule 16b-3 promulgated under the
Exchange Act, or any successor rule ("Rule 16b-3"), any Committee appointed by
the Board of  Directors to administer the Plan shall be comprised of
two or more directors each of whom shall be a "non-employee director," within
the meaning of Rule 16b-3, and an "outside director," within the meaning of
Treasury Regulation Section 1.162-27(e)(3), and the delegation of powers to the
Committee shall be consistent with applicable laws and regulations (including,
without limitation,  applicable state law and Rule
16b-3).  Unless otherwise provided in the By-Laws of the Company, by
resolution of the Board of Directors or applicable law, a majority of the
members of the Committee shall constitute a quorum, and the acts of a majority
of the members present at any meeting at which a quorum is present, and any acts
approved in writing by all members without a meeting, shall be the acts of the
Committee.

     

    (b)   Subject
to the express provisions of the Plan, the Administrators shall have the
authority, in their sole discretion, to determine each person who shall be
granted an Award; the type of Award to be granted, the times when an Award shall
be granted; whether an Option granted to a Designee (as defined in Section 4
below) shall be an ISO or a NQSO; the number of shares of Common Stock to be
subject to each Award, and the terms on which each Award shall be exercised; the
date each Award shall vest and/or become exercisable; whether an Award shall
vest and/or be exercisable in whole or in installments, and, if in installments,
the number of shares of Common Stock to be subject to each installment; whether
the installments shall be cumulative; the date each installment shall become
exercisable and the term of each installment; whether to accelerate the date of
grant of any Award or the exercise of any Option hereunder (or any installment
of any such Award); whether shares of Common Stock may be issued upon the
exercise of an Option granted under the Plan as partly paid, and, if so, the
dates when future installments of the exercise price shall become due and the
amounts of such installments; the exercise price or other amount to be paid in
connection with the exercise of an Option granted under the Plan; the form of
payment of the exercise price; the fair market value of a share of Common Stock;
the restrictions and/or contingencies, if any, imposed with respect to an Award
and whether and under what conditions to waive any such restrictions and/or
contingencies; whether and under what conditions to restrict the sale or other
disposition of the shares of Common Stock acquired upon the grant of an Award or
exercise of an Option granted under the Plan and, if so, whether and under what
conditions to waive any such restriction and/or contingencies; whether and under
what conditions to subject the grant of all or any portion of an Award, the
exercise of all or any portion of an Option granted under the Plan, the vesting
of an Award, or the shares acquired pursuant to the exercise of an Option
granted under the Plan to the fulfillment of certain restrictions and/or
contingencies as specified in the contract or other document evidencing the
Award (the "Agreement"), including, without limitation, restrictions and/or
contingencies relating to (i) entering into a covenant not to compete with the
Company, its Parent (if any) and any of its Subsidiaries, (ii) financial
objectives for the Company, any of its Subsidiaries, a division, a product line
or other category and/or (iii) the period of continued employment with the
Company or any of its Subsidiaries, and to determine whether such restrictions
or contingencies have been met; whether to accelerate the date on which an Award
may vest or an Option may be exercised or to waive any restriction or limitation
with respect to an Award; the amount, if any, necessary to satisfy the
obligation of the Company, any of its Subsidiaries or any Parent to withhold
taxes or other amounts; whether a Designee has a Disability; with the consent of
the Designee, to cancel or modify an Award; provided, however, that the modified
provision is permitted to be included in an Award granted under the Plan on the


     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    date of
the modification; provided, further, however, that in the case of a modification
(within the meaning of Section 424(h) of the Code) of an ISO, such Option as
modified would be permitted to be granted on the date of such modification under
the terms of the Plan; to construe the respective Agreements and the Plan; to
prescribe, amend and rescind rules and regulations relating to the Plan; to
approve any provision of the Plan or any Award granted under the Plan or any
amendment to either which, under Rule 16b-3 or Section 162(m) of the Code,
requires the approval of the Board of Directors, a committee of non-employee
directors or the shareholders, in order to be exempt under Section 16(b) of the
Exchange Act (unless otherwise specifically provided herein) or to preserve any
deduction under Section 162(m) of the Code; and to make all other determinations
necessary or advisable for administering the Plan. Any controversy or claim
arising out of or relating to the Plan, any Award granted under the Plan or any
Agreement shall be determined unilaterally by the Administrators in their sole
discretion.  The determinations of the Administrators on matters
referred to in this Section 3 shall be conclusive and binding on all
parties.  No Administrator or former Administrator shall be liable for
any action or determination made in good faith with respect to the Plan or any
Award granted hereunder.

     

    4.    Eligibility.  The
Administrators may from time to time, consistent with the purposes of the Plan,
grant Awards to (a) employees (including officers and directors who are
employees) of the Company, any of its Subsidiaries or the Parent, (b)
consultants to the Company, any of its Subsidiaries or the Parent, (c) advisors
to the Company, any of its Subsidiaries or the Parent, and (b) such directors of
the Company who, at the time of grant, are not common law employees of the
Company, as the Administrators may determine in their sole discretion (each, a
"Designee").  Such Awards granted shall cover the number of shares of
Common Stock that the Administrators may determine in their sole discretion;
provided, however, that if on the date of grant of an Award any class of common
stock of the Company (including without the limitation the Common Stock) is
required to be registered under Section 12 of the Exchange Act, the maximum
number of shares subject to Awards that may be granted to any recipient under
the Plan during any calendar year shall be 200,000 shares; provided further,
however, that the aggregate fair market value (determined at the time any Option
is granted) of the shares of Common Stock for which any eligible employee may be
granted ISOs under the Plan or any other plan of the Company, or of a Parent or
a Subsidiary of the Company, which are exercisable for the first time by such
Designee during any calendar year shall not exceed One Hundred Thousand Dollars
($100,000).  The One Hundred Thousand Dollar ($100,000) ISO limitation
amount shall be applied by taking ISOs into account in the order in which they
were granted.  Any Option (or portion thereof) granted in excess of
such ISO limitation amount shall be treated as a NQSO to the extent of such
excess.

     

    5.    Grant of
Options.

     

    (a)   The
Administrators may from time to time, in their sole discretion, consistent with
the purposes of the Plan, grant Options to one or more Designees.

     

    (b)   The
exercise price of the shares of Common Stock under each Option shall be
determined by the Administrators in their sole discretion; provided, however,
that the exercise price of an ISO or any Option intended to satisfy the
performance-based compensation exemption to the deduction limitation under
Section 162(m) of the Code shall not be less than the fair market value of the
Common Stock subject to such option on the date of grant; and provided,


     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    further,
however, that if, at the time an ISO is granted, the Designee owns (or is deemed
to own under Section 424(d) of the Code) stock possessing more than ten percent
(10%) of the total combined voting power of all classes of stock of the Company,
any of its Subsidiaries or the Parent, the exercise price of such ISO shall not
be less than one hundred and ten percent (110%) of the fair market value of the
Common Stock subject to such ISO on the date of grant.

     

    (c)   Each
Option granted pursuant to the Plan shall be for such term as is established by
the Administrators, in their sole discretion, at or before the time such Option
is granted; provided, however, that the term of each Option granted pursuant to
the Plan shall be for a period not exceeding ten (10) years from the date of
grant thereof, and provided further, that if, at the time an ISO is granted, the
Designee owns (or is deemed to own under Section 424(d) of the Code) stock
possessing more than ten percent (10%) of the total combined voting power of all
classes of stock of the Company, any of its Subsidiaries or the Parent, the term
of the ISO shall be for a period not exceeding five (5) years from the date of
grant.  Options shall be subject to earlier termination as hereinafter
provided.

     

    6.    Restricted
Stock.  The Administrators, in their sole discretion, may from
time to time, consistent with the purposes of the Plan, grant shares of Common
Stock to one or more Designees on such terms and conditions as the
Administrators may determine in the applicable Agreement.  The grant
may require the Designee to pay such price per share therefore, if any, as the
Administrators may determine in their sole discretion.  The
Administrators may subject such shares to such contingencies and restrictions as
the Administrators may in their sole discretion determine, including, but not
limited to, requirements to forfeit all or a portion of such shares back to the
Company for no consideration, voting agreements and the withholding of dividends
and other payments with respect to the shares.  Until such time as all
of the restrictions and contingencies lapse, the Administrators may require that
such shares be held by the Company, together with a stock power duly endorsed in
blank by the Designee.

     

    7.    Rules of
Operation.

     

    (a)   The fair
market value of a share of Common Stock on any day shall be (i) if the principal
market for the Common Stock is a national securities exchange, the average of
the highest and lowest sales prices per share of the Common Stock on such day as
reported by such exchange or on a consolidated tape reflecting transactions on
such exchange, (ii) if the principal market for the Common Stock is not a
national securities exchange and the Common Stock is quoted on the Nasdaq Stock
Market ("Nasdaq"), and (A) if actual sales price information is available with
respect to the Common Stock, the average of the highest and lowest sales prices
per share of the Common Stock on such day on Nasdaq, or (B) if such information
is not available, the average of the highest bid and the lowest asked prices per
share for the Common Stock on such day on Nasdaq, or (iii) if the principal
market for the Common Stock is not a national securities exchange and the Common
Stock is not quoted on Nasdaq, the average of the highest bid and lowest asked
prices per share for the Common Stock on such day as reported on the OTC
Bulletin Board Service or by National Quotation Bureau, Incorporated or a
comparable service; provided, however, that if clauses (i), (ii) and (iii) of
this Section 7(a) are all inapplicable because the Company's Common Stock is not
publicly traded, or if no trades have been made or no quotes are available for
such day, the fair market value of a share of Common Stock shall be determined
by the Administrators by any method consistent with any applicable regulations
adopted by the Treasury Department relating to stock options.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    (b)   An Option
granted under the Plan (or any installment thereof), to the extent then vested
and exercisable, shall be exercised by giving written notice to the Company at
its principal office stating which Option is being exercised, specifying the
number of shares of Common Stock as to which such Option is being exercised and
accompanied by payment in full of the aggregate exercise price therefore (or the
amount due on exercise if the applicable Agreement permits installment payments)
(i) in cash and/or by certified check, (ii) with the authorization of the
Administrators, with previously acquired shares of Common Stock having an
aggregate fair market value, on the date of exercise, equal to the aggregate
exercise price of all Awards being exercised, or (iii) some combination thereof;
provided, however, that in no case may shares be tendered if such tender would
require the Company to incur a charge against its earnings for financial
accounting purposes.  The Company shall not be required to issue any
shares of Common Stock pursuant to the exercise of any Option until all required
payments with respect thereto, including payments for any required withholding
amounts, have been made.

     

    (c)   The
Administrators  may, in their sole discretion,  permit
payment of the  exercise  price of an
Option  granted  under the Plan by delivery by the Designee
of a properly  executed notice,  together with a copy of the
Designee's irrevocable instructions to a broker acceptable to the Administrators
to deliver promptly to the Company the amount of sale or
loan  proceeds  sufficient  to pay
such  exercise  price.  In  connection  therewith,  the  Company  may
enter into agreements for coordinated procedures with one or more brokerage
firms.

     

    (d)   In no
case may a fraction of a share of Common  Stock be purchased or issued
under the Plan.

     

    (e)   A
Designee shall not have the rights of a shareholder with respect to such shares
of Common Stock to be received upon the exercise or grant of an Award until the
date of issuance of a stock certificate to the Designee for such shares or, in
the case of uncertificated shares, until the date an entry is made on the books
of the Company's transfer agent representing such shares; provided, however,
that until such stock certificate is issued or until such book entry is made,
any Designee using  previously  acquired shares of Common
Stock in payment of an Option exercise  price shall continue to have
the rights of a shareholder with respect to such previously acquired
shares.

     

    8.    Termination of
Relationship.

     

    (a)   Except as
may otherwise be expressly provided in the applicable Agreement, any Designee
whose employment, consulting or advisory relationship with the Company, its
Parent and any of its Subsidiaries has terminated for any reason other than the
death or Disability of the Designee may exercise any Option granted to the
Designee as an employee, consultant or advisor, to the extent exercisable on the
date of such termination, at any time within three (3) months after the date of
termination, but not thereafter and in no event after the date the Option would
otherwise have expired; provided, however, that if the Designee's employment is
terminated for Cause, such Option shall terminate immediately.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    (b)   For the
purposes of the Plan, an employment relationship shall be deemed to exist
between an individual and a corporation if, at the time of the determination,
the individual was an employee of such corporation for purposes of Section
422(a) of the Code. As a result, an individual on military leave, sick leave or
other bona fide leave of absence shall continue to be considered an employee for
purposes of the Plan during such leave if the period of the leave does not
exceed ninety (90) days, or, if longer, so long as the individual's right to
re-employment with the Company, any of its Subsidiaries or the Parent is
guaranteed either by statute or by contract.  If the period of leave
exceeds ninety (90) days and the individual's right to re-employment is not
guaranteed by statute or by contract, the employment relationship shall be
deemed to have terminated on the ninety-first (91st) day of such
leave.

     

    (c)   Except as
may otherwise be expressly provided in the applicable Agreement, a Designee
whose directorship with the Company has terminated for any reason other than the
Designee's death or Disability may exercise the Options granted to the Designee
as a director who was not an employee of or consultant to the Company or any of
its Subsidiaries to the extent exercisable on the date of such termination, at
any time within three (3) months after the date of termination, but not
thereafter and in no event after the date the Option would otherwise have
expired; provided, however, that if the Designee's directorship is terminated
for Cause, such Option shall terminate immediately.

     

    (d)   Except as
may otherwise be expressly provided in the applicable Agreement, Options granted
under this Plan to a director, officer, employee, consultant or advisor shall
not be affected by any change in the status of the Designee so long as such
Designee continues to be a director of the Company, or an officer or employee
of, or a consultant or advisor to, the Company, any of its Subsidiaries or the
Parent (regardless of having changed from one to the other or having been
transferred from one entity to another).

     

    (e)   Nothing
in the Plan or in any Option granted under the Plan shall confer on any person
any right to continue in the employ of or as a consultant to the Company, its
Parent or any of its Subsidiaries, or as a director of the Company, or interfere
in any way with any right of the Company, its Parent or any of its Subsidiaries
to terminate such relationship at any time for any reason whatsoever without
liability to the Company, its Parent or any of its Subsidiaries.

     

    (f)   Except as
may otherwise be expressly provided in the applicable Agreement, if a Designee
dies (i) while the Designee is employed by, or a consultant or advisor to, the
Company, its Parent or any of its Subsidiaries (ii) within three (3) months
after the termination of the Designee's employment, consulting or advisory
relationship with the Company, its Parent or any of its Subsidiaries (unless
such termination was for Cause or without the consent of the Company) or (iii)
within one (1) year following the termination of such employment, consulting or
advisory relationship by reason of the Designee's Disability, any Options
granted to the Designee as an employee of, or consultant to, the Company or any
of its Subsidiaries, may be exercised, to the extent exercisable on the date of
the Designee's death, by the Designee's Legal Representative, at any time within
one (1) year after death, but not thereafter and in no event after the date the
Option would otherwise have expired. Except as may otherwise be expressly
provided in the applicable Agreement, any Designee whose employment, consulting
or advisory relationship with the Company, its Parent or any of its Subsidiaries
has terminated by reason of the Designee's Disability may exercise such Options,
to the extent exercisable upon the effective date of such termination, at any
time within one year after such date, but not thereafter and in no event after
the date the Option would otherwise have expired.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    (g)   Except as
may otherwise be expressly provided in the applicable Agreement, if a Designee
dies (i) while the Designee is a director of the Company, (ii) within three (3)
months after the termination of the Designee's directorship with the Company
(unless such termination was for Cause) or (iii) within one (1) year after the
termination of the Designee's directorship by reason of the Designee's
Disability, the Options granted to the Designee as a director who was not an
employee of, or consultant or advisor to, the Company or any of its
Subsidiaries, may be exercised, to the extent exercisable on the date of the
Designee's death, by the Designee's Legal Representative at any time within one
(1) year after death, but not thereafter and in no event after the date the
Option would otherwise have expired. Except as may otherwise be expressly
provided in the applicable Agreement, a Designee whose directorship with the
Company has terminated by reason of Disability may exercise such Options, to the
extent exercisable on the effective date of such termination, at any time within
one year after such date, but not thereafter and in no event after the date the
Option would otherwise have expired.

     

    9.    Compliance with Securities
Laws.

     

    (a)   It is a
condition to the receipt or exercise of any Award that either (i) a Registration
Statement under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to the shares of Common Stock to be issued upon such grant or
exercise shall be effective and current at the time of such grant or exercise,
or (ii) there is an exemption from registration under the Securities Act for the
issuance of the shares of Common Stock upon such grant or exercise. Nothing
herein shall be construed as requiring the Company to register shares subject to
any Award under the Securities Act or to keep any Registration Statement
effective or current.

     

    (b)   The
Administrators may require, in their sole discretion, as a condition to the
grant of an Award or the exercise of an Option granted under the Plan, that the
Designee execute and deliver to the Company the Designee's representations and
warranties, in form, substance and scope satisfactory to the Administrators,
which the Administrators determine is necessary or convenient to facilitate the
perfection of an exemption from the registration requirements of the
Securities  Act,  applicable  state  securities
laws or other legal requirements, including without limitation, that (i) the
shares of Common Stock to be issued upon the receipt of an Award or the exercise
of an Option granted under the Plan are being acquired by the Designee for the
Designee's own account, for investment only and not with a view to the resale or
distribution thereof, and (ii) any subsequent resale or distribution of shares
of Common Stock by such Designee will be made only pursuant to (A) a
Registration Statement under the Securities Act which is effective and current
with respect to the shares of Common Stock being sold, or (B) a specific
exemption from the registration requirements of the Securities Act, but in
claiming such exemption, the Designee, prior to any offer of sale or sale of
such shares of Common Stock, shall provide the Company with a favorable written
opinion of counsel satisfactory to the Company, in form, substance and scope
satisfactory to the Company, as to the applicability of such exemption to the
proposed sale or distribution.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    (c)   In
addition, if at any time the Administrators shall determine that the listing or
qualification of the shares of Common Stock subject to any Award on any
securities exchange, Nasdaq or under any applicable law, or that the consent or
approval of any governmental agency or regulatory body, is necessary or
desirable as a condition to, or in connection with, the granting of an Award or
the issuance of shares of Common Stock upon exercise of an Award, such Award may
not be granted or exercised in whole or in part, as the case may be, unless such
listing, qualification, consent or approval shall have been effected or
obtained  free of
any  conditions  not  acceptable  to the
Administrators. The Company shall deliver to the optionees any information
(including financial information) required to be delivered pursuant to any
applicable laws.

     

    10.   Award
Agreements.  Each Award shall be evidenced by an appropriate
Agreement, which shall be duly executed by the Company and the Designee. Such
Agreement shall contain such terms, provisions and conditions not inconsistent
herewith as may be determined by the Administrators in their sole
discretion.  The terms of each Award and Agreement need not be
identical.

     

    11.   Adjustments upon Changes in
Common Stock.

     

    (a)   Notwithstanding
any other provision of the Plan, in the event of any change in the outstanding
Common Stock by reason of a stock dividend, recapitalization, merger in which
the Company is the surviving corporation, spin-off, split-up, combination or
exchange of shares or the like which results in a change in the number or kind
of shares of Common Stock which are outstanding immediately prior to such event,
the aggregate number and kind of shares subject to the Plan, the aggregate
number and kind of shares subject to each outstanding Award, and the exercise
price of each Award, and the maximum number of shares subject to each Award that
may be granted to any employee in any calendar year, shall be appropriately
adjusted by the Board of Directors, whose determination shall be conclusive and
binding on all parties. Such adjustment may provide for the elimination of
fractional shares that might otherwise be subject to Options without payment
therefore. Notwithstanding the foregoing, no adjustment shall be made pursuant
to this Section 11 if such adjustment (i) would cause the Plan to fail to comply
with Section 422 of the Code or with Rule 16b-3 of the Exchange Act (if
applicable to such Award), or (ii) would be considered as the adoption of a new
plan requiring shareholder approval.

     

    (b)   Except as
may otherwise be expressly provided in an applicable Agreement, in the event of
(i) a liquidation or dissolution of the Company, or (ii) any transaction (or
series of related transactions) that is approved by a majority of the members of
the Company's Board of Directors who were elected by shareholders prior to the
first such transaction (including, without limitation, a merger, consolidation,
sale of stock by the Company or its shareholders, tender offer or sale of
assets) and in which either (A) the voting power (in the election of directors
generally) of the Company's voting securities outstanding immediately prior to
such transaction(s) ceases to represent more than fifty percent (50%) of the
combined voting power (in the election of directors generally) of the Company or
such surviving entity outstanding immediately after such transaction(s), or (B)
all or substantially all of the Company's assets are sold to an unaffiliated
third party, the Board of Directors of the Company, or the board of directors of
any corporation or other legal entity assuming the obligations of the Company,


     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    shall, as
to outstanding Options, either (x) make appropriate provision for the protection
of any such outstanding Options by the substitution on an equitable basis of
appropriate stock of the Company or of the merged, consolidated or otherwise
reorganized entity which will be issuable in respect of the shares of Common
Stock of the Company, provided that no additional benefits shall be conferred
upon optionees as a result of such substitution, and the excess of the aggregate
fair market value of the shares subject to the Options immediately after such
substitution over the purchase price thereof is not more than the excess of the
aggregate fair market value of the shares subject to the Options immediately
before such substitution over the purchase price thereof, or (y) upon written
notice to the optionees, provide that all unexercised Options must be exercised
within a specified number of days of the date of such notice or they will be
terminated. In any such case, the Board of Directors may, in its discretion,
accelerate the exercise dates of outstanding Options.

     

    12.   Amendments and Termination
of the Plan.  The Plan was adopted by the Board of Directors on
August 2, 2005. No Award may be granted under the Plan after August 2, 2015. The
Board of Directors, without further approval of the Company's shareholders, may
at any time suspend or terminate the Plan, in whole or in part, or amend it from
time to time in such respects as it may deem advisable, including without
limitation, in order that ISOs granted hereunder meet the requirements for
"incentive stock options" under the Code, or to comply with the provisions of
Rule 16b-3 or Section 162(m) of the Code or any change in applicable laws or
regulations, ruling or interpretation of any governmental agency or regulatory
body; provided, however, that no amendment shall be effective, without the
requisite prior or subsequent shareholder approval, which would (a) except as
contemplated in Section 10, increase the maximum number of shares of Common
Stock for which any Awards may be granted under the Plan, (b) change the
eligibility requirements for individuals entitled to receive Awards hereunder,
or (c) make any change for which applicable law or any governmental agency or
regulatory body requires shareholder approval. No termination, suspension or
amendment of the Plan shall adversely affect the rights of a Designee under any
Award granted under the Plan without such Designee's consent.  The
power of the Administrators to construe and administer any Award granted under
the Plan prior to the termination or suspension of the Plan shall continue after
such termination or during such suspension.

     

    13.   Non-Transferability.  Except
as may otherwise be expressly provided in the applicable Agreement, no Award
granted under the Plan shall be transferable other than by will or the laws of
descent and distribution, and Options may be exercised, during the lifetime of
the Designee, only by the Designee or the Designee's Legal Representatives.
Except as may otherwise be expressly provided in the applicable Agreement, an
Award, to the extent not vested, shall not be transferable otherwise than by
will or the laws or descent and distribution. Except to the extent provided
above, Awards may not be assigned, transferred, pledged, hypothecated or
disposed of in any way (whether by operation of law or otherwise) and shall not
be subject to execution, attachment or similar process, and any such attempted
assignment, transfer, pledge, hypothecation or disposition shall be null and
void ab initio and of no force or effect.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    14.   Withholding
Taxes.  The Company, its Subsidiary or the Parent, as
applicable, may withhold (a) cash or (b) with the consent of the Administrators
(in the Agreement or otherwise), shares of Common Stock to be issued under an
Award or a combination of cash and shares, having an aggregate fair market value
equal to the amount which the Administrators determine is necessary to satisfy
the obligation of the Company, a Subsidiary or the Parent to withhold federal,
state and local income taxes or other amounts incurred by reason of the grant,
vesting, exercise or disposition of an Option, or the disposition of the
underlying shares of Common Stock. Alternatively, the Company may require the
Designee to pay to the Company such amount, in cash, promptly upon
demand.

     

    15.   Legends; Payment of
Expenses.

     

    (a)   The
Company may endorse  such legend or legends upon the certificates for
shares of Common Stock issued upon the grant or exercise of an Award and may
issue such "stop transfer" instructions to its transfer agent in respect of such
shares as it determines, in its sole discretion, to be necessary or appropriate
to (i) prevent a violation of, or to perfect an exemption from, the registration
requirements of the Securities Act, applicable state securities laws or other
legal requirements, (ii) implement the provisions of the Plan or any agreement
between the Company and the Designee with respect to such shares of Common
Stock, or (iii) permit the Company to determine the  occurrence of a
"disqualifying disposition," as described in Section 421(b) of the Code, of the
shares of Common Stock transferred upon the exercise of an ISO granted under the
Plan.

     

    (b)   The
Company shall pay all issuance taxes with respect to the issuance of shares of
Common Stock upon grant of an Award or exercise of an Option granted under the
Plan, as well as all fees and expenses incurred by the Company in connection
with such issuance.

     

    16.   Use of Proceeds; Unfunded
Plan.  The cash proceeds to be received upon the grant of an
Award or the exercise of an Option granted under the Plan shall be added to the
general funds of the Company and used for such corporate purposes as the Board
of Directors may determine, in its sole discretion. The Company shall not be
required to segregate any assets, nor shall the Plan be construed as providing
for such segregation, nor shall the Board of Directors or the Committee, if
designated, be deemed to be a trustee of any cash or assets in connection with
the Plan. Any liability of the Company to any Designee or any beneficiary
thereof shall be based solely upon any contractual obligations that may be
created by the Plan and an Agreement, and no such obligation shall be secured by
any pledge or other encumbrance on the property of the Company, any Subsidiary
or the Parent.

     

    17.   Substitutions and
Assumptions of Awards of Certain Constituent Corporations. Anything in
this Plan to the contrary notwithstanding, the Board of Directors may, without
further approval by the shareholders, substitute new Awards hereunder for prior
awards of a Constituent Corporation or assume the prior options or restricted
stock of such Constituent Corporation.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    18.   Definitions.

     

    (a)   "Cause,"
in connection with the termination of a Designee, shall mean (i) "cause," as
such term (or any similar term, such as "with cause") is defined in any
employment, consulting or other applicable agreement for services between the
Company and such Designee, or (ii) in the absence of such an agreement, "cause"
as such term is defined in the Agreement executed by the Company and such
Designee, or (iii) in the absence of both of the foregoing, (A) indictment of
such Designee for any illegal conduct, (B) failure of such Designee to
adequately perform any of the Designee's duties and responsibilities in any
capacity held with the Company, any of its Subsidiaries or any Parent (other
than any such failure resulting solely from such Designee's physical or mental
incapacity), (C) the commission of any act or failure to act by such Designee
that involves moral turpitude, dishonesty, theft, destruction of property,
fraud, embezzlement or unethical business conduct, or that is otherwise
injurious to the Company, any of its Subsidiaries or any Parent or any other
affiliate of the Company (or its or their respective employees), whether
financially or otherwise, (D) any violation by such Designee of any Company rule
or policy, or (E) any violation by such Designee of the requirements of such
Agreement, any other contract or agreement between the Company and such Designee
or this Plan (as in effect from time to time); in each case, with respect to
subsections (A) through (E), as determined by the Board of
Directors.

     

    (b)   "Constituent
Corporation" shall mean any corporation which engages with the Company, its
Parent or any Subsidiary in a transaction to which Section 424(a) of the Code
applies (or would apply if the Option assumed or substituted were an ISO), or
any Parent or any Subsidiary of such corporation.

     

    (c)   "Disability"
shall mean permanent and total disability within the meaning of Section 22(e)(3)
of the Code.

     

    (d)   "Legal
Representative" shall mean the executor, administrator or other person who at
the time is entitled by law to exercise the rights of a deceased or
incapacitated Designee with respect to an Award granted under the
Plan.

     

    (e)   "Parent"
shall mean any "parent corporation" within the meaning of Section 424(e) of the
Code.

     

    (f)   "Subsidiary"
shall mean a "subsidiary corporation" within the meaning of Section 424(f) of
the Code.

     

    19.   Governing
Law.

     

    (a) The Plan,
any Awards granted hereunder, the Agreements and all related matters shall be
governed by, and construed in accordance with, the laws of the State of
California, without regard to conflict or choice of law provisions that would
defer to the substantive laws of another jurisdiction.

     

    (b) Neither
the Plan nor any Agreement shall be construed or interpreted with any
presumption against the Company by reason of the Company causing the Plan or
Agreement to be drafted. Whenever from the context it appears appropriate, any
term stated in either the singular or plural shall include the singular and
plural, and any term stated in the masculine, feminine or neuter gender shall
include the masculine, feminine and neuter.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    20.   Partial
Invalidity.  The invalidity, illegality or unenforceability of
any provision in the Plan, any Award or Agreement shall not affect the validity,
legality or enforceability of any other provision, all of which shall be valid,
legal and enforceable to the fullest extent permitted by applicable
law.

     

    21.   Shareholder
Approval.  The Plan shall be subject to approval of the
Company's shareholders.  No Options granted hereunder may be exercised
prior to such approval, provided, however, that the date of grant of any Option
shall be determined as if the Plan had not been subject to such
approval.