Exhibit
10.9


 


 


ARIES VENTURES INC.


 


 


2005 EQUITY INCENTIVE PLAN


 





















 


TABLE OF CONTENTS


 


 


	
  SECTION 1. PURPOSES OF THE PLAN

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.
  DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.
  ADMINISTRATION

  	
   

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  Procedure

  	
   

  
	
  3.2

  	
  Authority of the Board

  	
   

  
	
  3.3

  	
  Effect of Board’s Decisions

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 4.
  ELIGIBILITY

  	
   

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  General Rule

  	
   

  
	
  4.2

  	
  Incentive Stock Options

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5. STOCK SUBJECT TO THE PLAN

  	
   

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  Authorized Shares

  	
   

  
	
  5.2

  	
  Lapsed Awards

  	
   

  
	
  5.3

  	
  Reservation of Shares

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.
  TYPES OF AWARDS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 7. GENERAL TERMS AND CONDITIONS OF AWARDS

  	
   

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  Award Agreement

  	
   

  
	
  7.2

  	
  Early Exercise

  	
   

  
	
  7.3

  	
  Term of Award

  	
   

  
	
  7.4

  	
  Limited Transferability of Awards

  	
   

  
	
  7.5

  	
  Limitation on Award Amounts under
  Rule 701

  	
   

  
	
  7.6

  	
  Limitations
  on Repurchase Rights

  	
   

  
	
  7.7

  	
  Performance Goals

  	
   

  
	
  7.8

  	
  Deferrals

  	
   

  
	
  7.9

  	
  Separate Programs

  	
   

  
	
  7.10

  	
  Exchange Programs/Modification of Awards

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8. AWARD PRICE, CONSIDERATION AND WITHHOLDING

  	
   

  
	
   

  	
   

  	
   

  
	
  8.1

  	
  Exercise
  or Purchase Price

  	
   

  
	
  8.2

  	
  Consideration

  	
   

  
	
  8.3

  	
  Withholding

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 9. EXERCISE OF AN AWARD

  	
   

  
	
   

  	
   

  	
   

  
	
  9.1

  	
  Procedure for Exercise; Rights as a Shareholder

  	
   

  
	
  9.2

  	
  Exercise Following Termination of Continuous Service

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10. CONDITIONS UPON ISSUANCE OF SHARES

  	
   

  
	
   

  	
   

  	
   

  
	
  10.1

  	
  Compliance with Applicable Laws

  	
   

  
	
  10.2

  	
  Restrictions on Shares

  	
   

  



 


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  SECTION 11. SPECIAL PROVISIONS RELATING TO CERTAIN TYPES OF
  AWARDS

  	
   

  
	
   

  	
   

  	
   

  
	
  11.1

  	
  Options

  	
   

  
	
  11.2

  	
  Restricted Stock

  	
   

  
	
  11.3

  	
  Stock Appreciation Rights (SARs)

  	
   

  
	
  11.4

  	
  Performance Stock/Units

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 12. OTHER STOCK OR CASH AWARDS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 13. ADJUSTMENTS TO SHARES SUBJECT TO THE PLAN

  	
   

  
	
   

  	
   

  	
   

  
	
  13.1

  	
  Adjustments Upon Changes in Capitalization

  	
   

  
	
  13.2

  	
  Dissolution or Liquidation

  	
   

  
	
  13.3

  	
  Substitution and Assumption of Benefits

  	
   

  
	
  13.4

  	
  Change
  in Control

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 14. TERM, AMENDMENT, WAIVER AND TERMINATION

  	
   

  
	
   

  	
   

  	
   

  
	
  14.1

  	
  Term

  	
   

  
	
  14.2

  	
  Amendment and Termination

  	
   

  
	
  14.3

  	
  Effect of Amendment or Termination

  	
   

  
	
  14.4

  	
  Waiver

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 15.
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  15.1

  	
  Governing Law

  	
   

  
	
  15.2

  	
  Severability

  	
   

  
	
  15.3

  	
  Stockholder Approval

  	
   

  
	
  15.4

  	
  No Employment/Service Rights

  	
   

  
	
  15.5

  	
  Captions

  	
   

  
	
  15.6

  	
  Information Provided to Participants

  	
   

  
	
  15.7

  	
  Nonexclusivity of this Plan

  	
   

  
	
  15.8

  	
  Prior Plans

  	
   

  
	
  15.9

  	
  Electronic Communications

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 
  16. EXECUTION

  	
   

  



 


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ARIES VENTURES INC.


 


2005 EQUITY INCENTIVE PLAN


 


SECTION 1.
PURPOSES OF THE PLAN


 


The purposes of this Plan are to (i) promote
the long-term success of the Company; (ii)  attract and retain the best
available Employees, Directors and Consultants for the Company; (iii) motivate
such individuals to strive for excellence in individual performance; (iv) align
the financial interests of such individuals with long-term stockholder value;
and (v) provide flexibility to the Company in its efforts to achieve the
purposes set forth in (i), (ii), (iii) and (iv).


 


SECTION 2.  DEFINITIONS


 


As used herein, the following definitions
shall apply unless a different meaning is plainly required by the context:


 


“Applicable Laws” means any and all laws, rules and
regulations of whatever jurisdiction applicable to the administration of equity
incentive plans, including the issuance and transfer of Awards and Shares,
including, without limitation, applicable provisions of the Code, federal and
state securities laws, and state corporate laws.


 


“Award” means any award or benefits granted
under the Plan, including Incentive Stock Options, Nonqualified Stock Options,
Restricted Stock, Stock Appreciation Rights (including Stand-Alone SARs and
Tandem SARs), Performance Stock, Performance Units and other stock or cash
awards described herein or otherwise granted under the Plan.


 


“Award Agreement” means the agreement or
instrument evidencing the grant of an Award and the terms thereof executed by
the Company and the Participant, including any amendments thereto. An Award
Agreement may be in paper or in an electronic form and otherwise in such form
as the Board may approve from time to time.


 


“Base Value” means the Fair Market Value of a
Stand-Alone SAR on the Grant Date.


 


“Board” means (i) the Board of Directors
of the Company, as constituted from time to time, or (ii) both the Board
and the Committee, if a Committee has been appointed to administer all or a
portion of the Plan in accordance with Section 3.1.


 


“Change in Control” means (i) the
consummation of a merger or consolidation of the Company with or into another
entity or any other corporate reorganization, if more than 50% of the combined
voting power of the continuing or surviving entity’s securities outstanding
immediately after such merger, consolidation or other reorganization is owned
by persons who were not stockholders of the Company immediately before such
merger, consolidation or other reorganization; or (ii) the sale, transfer
or other disposition of all or substantially all of the Company’s assets. A
transaction shall not constitute a Change in Control if its sole purpose is to
change the state of the Company’s incorporation or to create a holding company
that will be owned in substantially the same proportions by persons who held
the Company’s securities


 


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immediately before such
transaction or to cause the Company to become a publicly-traded company.


 


“Code” means the Internal Revenue Code of
1986, as amended. Reference to a specific section of the Code shall also
include any successor provision, and any regulations promulgated under such section or
successor provision.


 


“Committee” means a committee of the Board
appointed by the Board to administer all or a portion of the Plan in accordance
with Section 3.1, if any. If the Board appoints more than one Committee,
then “Committee” shall refer to the appropriate Committee, as indicated by the
context of the reference.


 


“Company” means Aries Ventures Inc., a Nevada
corporation, and any Parent or Subsidiary, or any successors thereto.


 


“Consultant” means any person, other than an
Employee or Director, engaged by the Company to render bona fide consulting or
advisory services to the Company; provided such services are not in connection
with the offer or sale of the Company’s securities in a capital-raising
transaction or directly or indirectly with the promotion or maintenance of a
market for the Company’s securities. To the extent the Company intends that a
grant of an Award to a Consultant under this Plan qualify under the exemption
provided in Rule 701 under the Securities Act, the Consultant must be a
natural person.


 


“Continuous Service” means that the provision
of services to the Company in any capacity of Employee, Director or Consultant
is not interrupted or terminated. Continuous Service shall not be considered
interrupted in the case of (i) any approved leave of absence; (ii) transfers
within the Company or among the Company and its Parent or Subsidiaries, 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 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 ninety
(90) days, and reemployment upon expiration of such leave is not guaranteed by
statute or contract, then the Incentive Stock Option shall be treated as a
Nonqualified Stock Option on the day three (3) months and one (1) day
following the expiration of such ninety (90) day period.


 


“Director” means any individual who is a member
of the Board.


 


“Disability” means that a Participant is
unable to carry out the responsibilities and functions of the position held by
the Participant by reason of any medically determinable physical or mental
impairment for a period of not less than ninety (90) consecutive days. A
Participant shall not be considered to have incurred a Disability unless he or
she furnishes proof of such impairment sufficient to satisfy the Board in its
discretion.


 


“Effective Date” means October 20, 2005,
the date on which the Board adopted the Plan.


 


“Employee” means any person, including an
Officer or Director, who is in the employ of the Company, subject to the
control and direction of the Company as to both the work to be


 


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performed and the manner and
method of performance, whether such person is so employed at the time this Plan
is adopted or becomes so employed subsequent to the Plan’s adoption. The
payment of a Director’s fee by the Company shall not be sufficient to
constitute “employment” by the Company.


 


“Exchange Act” means the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated
thereunder.


 


“Exercise Price” means the amount for which
one (1) Share may be purchased upon exercise of an Option, as specified by
the Board and set forth in the Award Agreement.


 


“Fair Market Value” means with respect to
each Share the last reported sale price of the Company’s Shares sold on the
principal national securities exchanges on which the Shares are at the time
admitted to trading or listed, or, if there have been no sales on any such
exchange on such day, the average of the highest bid and lowest ask price on
such day as reported by the Nasdaq system, or any similar organization if the
Nasdaq is no longer reporting such information, either (i) on the date
which the notice of exercise is deemed to have been sent to the Company (the “Notice
Date”) or (ii) over a period of five (5) trading days preceding the
Notice Date, whichever of (i) or (ii) is greater.  If on the date for which the current fair
market value is to be determined, the Shares are not listed on any securities
exchange or quoted on the Nasdaq system or the over-the-counter market, the
current fair market value of the Shares shall be as determined by the Board in
good faith or as required to be determined by Applicable Laws. Section 260.140.50
of Title 10 of the California Code of Regulations requires that consideration
be given to (i) the price at which securities of reasonably comparable
corporations (if any) in the same industry are being traded, or (ii) if
there are no securities of reasonably comparable corporations in the same
industry being traded, the earnings history, book value and prospects of the
Company in light of market conditions generally. The Board’s determination of
Fair Market Value shall be conclusive and binding on all persons.


 


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


 


“Grant Date” means, with respect to an Award,
the date that the Award was approved by the Board or a later date specified by
the Board.


 


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


 


“Nonqualified Stock Option” means any Option
not intended to qualify as an Incentive Stock Option.


 


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


 


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“Option” means any right granted to a
Participant under the Plan allowing the Participant to buy a certain number of
Shares at such price or prices during such period or periods as the Board shall
determine.


 


“Outside Director” means a member of the
Board who is not an Employee.


 


“Parent” means (i) in the case of an
Incentive Stock Option, a “parent corporation,” whether now or hereafter
existing, as defined in Section 424(e) of the Code, and (ii) in
the case of an Award other than an Incentive Stock Option, in addition to a
parent corporation as defined in (i), a limited liability company, partnership
or other entity which controls fifty percent (50%) or more of the voting power
of the Company.


 


“Participant” means an Employee, Director, or
Consultant, as more fully described in Section 4, who is selected by the
Board to receive an Award under the Plan or who has an outstanding Award under
the Plan. A Participant may also include a general partner or trustee of a
Parent or Subsidiary organized as a partnership or business trust.


 


“Performance Goals” means the goal(s)
determined by the Board in its discretion to be applicable to a Participant
with respect to an Award as more fully described in Section 7.7.


 


“Performance Period” means that period
established by the Board at the time of grant or at any time thereafter during
which any Performance Goals specified by the Board with respect to an Award are
to be measured.


 


“Performance Stock” means an Award granted to
a Participant pursuant to Section 11.4.


 


“Performance Units” means an Award granted to
a Participant pursuant to Section 11.4.


 


“Period of Restriction” means the period
during which the transfer of Shares is limited in some way (based on the
passage of time, the achievement of Performance Goals, or the occurrence of
other events, or a combination thereof, as determined by the Board in its
discretion), and the Shares are subject to a substantial risk of forfeiture.


 


“Plan” means this 2005 Equity Incentive Plan,
as may be amended from time to time.


 


“Post-Termination Exercise Period” means the
period specified in the Award Agreement of not less than thirty (30) days
commencing on the date of termination (other than termination by the Company
for cause) of the Participant’s Continuous Service, or such longer period as
may be applicable upon death or Disability.


 


“Purchase Price” means the consideration for
which one Share may be acquired under the Plan (other than upon exercise of an
Option), as specified by the Board and set forth in the Award Agreement.


 


“Restricted Stock” means any Shares issued
under the Plan to the Participant 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 Board.


 


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“Reverse Vesting” means (i) in the case
of an Option, that an Option is or was fully exercisable but that, subject to a
reverse vesting schedule, the Company has a right to repurchase the Shares,
with the Company’s right of repurchase expiring in accordance with a forward
vesting schedule that would otherwise have applied to the Option under which
the Shares were acquired or in accordance with some other vesting schedule described
in the Award Agreement; and (ii) in the case of an Award of Restricted
Stock, Performance Stock or other Award of Shares, that the Company has a right
to repurchase the Shares acquired pursuant to such an Award, with the Company’s
right to repurchase expiring in accordance with the vesting schedule in
the Award Agreement.


 


“Securities Act” means the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder.


 


“Share” means one (1) share of the
Company’s common stock, with a par value of $0.01 per Share.


 


“Stand-Alone SAR” means a SAR that is granted
independently of any Options in accordance with Section 11.3.


 


“Stock Appreciation Right” or “SAR” means the
right granted to a Participant under the Plan to receive the monetary
equivalent of an increase in the Fair Market Value of a specified number of
Shares over a specified period of time, subject to such terms and conditions as
the Board may establish.


 


“Subsidiary” means (i) in the case of an
Incentive Stock Option, a “subsidiary corporation,” whether now or hereafter
existing, as defined in Section 424(f) of the Code, and (ii) in
the case of an Award other than an Incentive Stock Option, in addition to a
subsidiary corporation as defined in (i), a limited liability company,
partnership or other entity in which the Company controls fifty percent (50%)
or more of the voting power or equity interests.


 


“Tandem SAR” means a SAR granted in tandem with
an Option, the exercise of which shall require forfeiture of the right to
purchase a Share under the related Option (and when a Share is purchased under
the Option, the Tandem SAR shall similarly be canceled). The tandem interests
may be awarded simultaneously or at different times.


 


“Ten-Percent Stockholder” means an individual
who, at the time an Award is granted, owns more than 10% of the total combined
voting power of all classes of the outstanding stock of the Company or any
Parent or Subsidiary. For purposes of determining stock ownership, the
attribution rules of Section 424(d) of the Code shall be
applied.


 


SECTION 3.  ADMINISTRATION


 


3.1          Procedure.  The Plan shall be administered by the Board.
The Board may, in accordance with the Company’s Bylaws, appoint one or more
Committees to administer the Plan on behalf of the Board, subject to such terms
and conditions as the Board may prescribe; provided, however, that a Committee
may not administer the Plan in connection with Awards granted to Officers or
Directors. Once appointed, the Committee(s) shall continue to serve in its
designated capacity until otherwise directed by the Board.


 


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3.2          Authority
of the Board. 
Subject to Applicable Laws and the terms of the Plan, the Board shall
have the authority, in its discretion, to take any action and to make any
determination it deems necessary or advisable for the administration of the
Plan including, without limitation:


 


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


 


(ii)           to
establish, interpret, amend and waive rules for administration of the
Plan;


 


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


 


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


 


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


 


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


 


(vii)         to
determine the terms and conditions of any Award granted hereunder (which need
not be identical);


 


(viii)        to
amend the terms of any outstanding Award granted under the Plan, provided that
any amendment that would adversely affect the Participant’s rights under an
outstanding Award shall not be made without the Participant’s written consent;


 


(ix)           to
cancel an Award and/or to implement an exchange program in accordance with Section 7.10;
and


 


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


 


The actions of the Board taken hereunder
shall be in its sole and absolute discretion in accordance with its judgment as
to the best interests of the Company and its stockholders and in accordance
with the purposes and terms of the Plan.


 


3.3          Effect
of Board’s Decisions. 
All decisions, determinations, interpretations and other actions of the
Board shall be final and binding on all Participants and all persons deriving
their rights from a Participant.


 


SECTION 4.  ELIGIBILITY


 


4.1          General
Rule. 
Participants in the Plan may include any Employee, any Director
(including any Outside Director), and any Consultant, including prospective
Employees, Directors and Consultants conditioned on the beginning of their
service to the Company. A Participant may also include a general partner or
trustee of a Parent or Subsidiary organized as a partnership or business trust.  No Employee, Director, Consultant, general
partner or trustee shall


 


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have the right to be selected
to receive an Award under this Plan, or, having been so selected, to be
selected to receive a future Award or to receive the same type or amount of
Award as granted to any other Participant in any year. The Board shall consider
all factors that it deems relevant in selecting Participants and in determining
the type and amount of their respective Awards. A Participant who has been
granted an Award may, if eligible, be granted additional Awards.


 


4.2          Incentive
Stock Options. 
Only Employees shall be eligible to receive an Incentive Stock Option.
In the event of a Participant’s change in status from an Employee to an Outside
Director or Consultant, the unexercised portion of that Participant’s Incentive
Stock Options, if any, shall convert automatically to a Nonqualified Stock
Option on the day three (3) months and one day following such change of
status.


 


SECTION 5.  STOCK SUBJECT TO THE PLAN


 


5.1          Authorized
Shares.  Shares
authorized under the Plan may be authorized but unissued Shares or treasury
Shares. Subject to the provisions of Section 13, the maximum aggregate
number of Shares that may be issued pursuant to all Awards under the Plan shall
not exceed 5,665,856. The number of Shares that are subject to Awards at any
time under the Plan shall not exceed the number of Shares that then remain
available for issuance under the Plan. Any dividend equivalents paid or
credited under the Plan shall not be applied against the number of Shares
available for issuance under the Plan.


 


5.2          Lapsed
Awards.  If an
Award or portion thereof is cancelled, forfeited, expires, lapses, or
terminates, or otherwise becomes unexercisable for any reason, the undelivered
Shares that were subject thereto shall, unless the Plan shall have been
terminated, become available for future Awards under the Plan. In addition, any
Shares (i) issued under the Plan that are thereafter reacquired by the
Company pursuant to any forfeiture provision, right of repurchase, right of
first refusal or otherwise; (ii) exchanged by a Participant as full or
partial payment to the Company of the Exercise Price or Purchase Price, as
applicable, under any Award granted under the Plan; (iii) retained by the
Company pursuant to a Participant’s tax withholding election; or (iv) covered
by an Award that is settled in cash shall become available for future Awards
under the Plan.


 


5.3          Reservation
of Shares.  The
Company, during the term of the Plan, shall at all times reserve and keep
available sufficient Shares to satisfy the requirements of the Plan.


 


SECTION 6.  TYPES OF AWARDS


 


The Plan permits the grant of Incentive Stock
Options, Nonqualified Stock Options, Restricted Stock, Stock Appreciation
Rights (including Stand-Alone SARs and Tandem SARs), Performance Stock,
Performance Units and other stock or cash awards, all as described herein. Any
and each Award shall be at the discretion of the Board. Any Award may be
granted either alone, in addition to, or in tandem with other Awards granted
under the Plan.


 


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SECTION 7.  GENERAL TERMS AND CONDITIONS OF AWARDS


 


7.1          Award
Agreement.


 


(a)           Agreement.  Each Award shall be evidenced by an Award
Agreement, which shall set forth the specific terms of the Award. Should there
be any inconsistency between the terms of the Plan and the Award Agreement, the
terms of the Plan shall prevail.


 


(b)           Terms
and Conditions.  Subject to the terms
of the Plan, the Board shall determine the provisions, terms and conditions of
each Award including, but not limited to, the number of Shares underlying the
Award, the vesting schedule (which may include Reverse Vesting and may be
based on the passage of time, the achievement of Performance Goals, or the
occurrence of other events, or a combination thereof), repurchase provisions,
rights of first refusal, forfeiture provisions, form of payment (cash, Shares
or other consideration) upon settlement of the Award, payment contingencies,
Performance Goals, any Performance Period, any Period of Restriction, the term
of the Award or expiration date, the Exercise Price, Purchase Price or Base
Value, as applicable, and such other terms and conditions as the Board shall
determine not inconsistent with the terms of the Plan or as may be required to
comply with Applicable Laws. The terms and conditions of the various Award
Agreements entered into under the Plan need not be identical.


 


7.2          Early
Exercise.   The
Award Agreement may, but need not, include a provision whereby the Participant
may elect at any time while an Employee, Director or Consultant to exercise any
part or all of an Award before 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 to any other restriction the Board determines to be
appropriate.


 


7.3          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 Grant
Date. However, in the case of an Incentive Stock Option granted to a
Ten-Percent Stockholder, the term of such Incentive Stock Option shall be no
more than five (5) years from the Grant Date.


 


7.4          Limited
Transferability of Awards.


 


(a)           General
Rule.  Except as otherwise set forth
in the Plan, no Award granted under the Plan may be sold, transferred, pledged,
assigned, or otherwise alienated or hypothecated, other than by will or by the
laws of descent and distribution. All rights with respect to an Incentive Stock
Option granted to a Participant shall be exercisable during his or her lifetime
only by such Participant.


 


(b)           Transfers
Pursuant to Domestic Relations Orders. A Participant may, to the extent and
in the manner authorized by the Board, transfer an Award, other than an
Incentive Stock Option, to a Participant’s spouse, former spouse or dependent
pursuant to a court-approved domestic relations order that relates to the
provision of child support, alimony payments or marital property rights.


 


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(c)           Transfers
to Family Members.  A Participant
may, to the extent and in the manner authorized by the Board, transfer an
Award, other than an Incentive Stock Option, by bona fide gift and not for any
consideration, to a Family Member.


 


(d)           Disability.  In the event of the Disability of a
Participant, an Award may be exercised pursuant to its terms by the personal
representative of the Participant.


 


(e)           Beneficiary
Designations.  If permitted by the
Board, a Participant under the Plan may name a beneficiary or beneficiaries to
whom any vested but unpaid Award shall be paid in the event of the Participant’s
death. Each such designation shall revoke all prior designations by the Participant
and shall be effective only if given in a form and manner acceptable to the
Board. In the absence of any such designation, any vested benefits remaining
unpaid at the Participant’s death shall be paid to the Participant’s estate
and, subject to the terms of the Plan and of the applicable Award Agreement,
any unexercised vested Award may be exercised by the administrator or executor
of the Participant’s estate or the person or persons to whom the deceased
Participant’s rights under the Award shall pass by will or the laws of descent
and distribution.


 


(f)            Restricted
Stock.  Shares of Restricted Stock
granted under the Plan shall become freely transferable by the Participant
after the last day of the applicable Period of Restriction, subject to any
applicable federal and state securities laws governing the transfer of such
Shares.


 


7.5          Limitation
on Award Amounts under Rule 701.   To the extent the Company intends to rely on
the exemption available under Rule 701 of the Securities Act and/or Section 25102(o)
of the California Corporate Securities Law of 1968, as amended, for offers and
sales of securities under the Plan, the aggregate sales price or amount of
securities sold in reliance on such exemption during any consecutive 12 month
period may not exceed the greater of:


 


(i)            $1,000,000;


 


(ii)           15%
of the Company’s total assets as of the Company’s most recent annual balance
sheet date (if no older than its last fiscal year end); or


 


(iii)          15%
of the outstanding amount of Shares, as of the Company’s most recent annual
balance sheet date (if no older than its last fiscal year end).


 


For purposes of this limitation, the rules for
calculating prices and amounts set forth in Rule 701 of the Securities Act
shall apply. With respect to Options, Options must be valued on their Grant
Date (without regard to when the Option becomes exercisable) based on the
Exercise Price of the Option.


 


7.6          Limitations
on Repurchase Rights. 
If the terms of an Award Agreement give the Company the right to
repurchase Shares upon termination of a Participant’s Continuous Service, the
Award Agreement shall provide that:


 


(i)            the
right to repurchase must be exercised, if at all, within ninety (90) days of
the termination of the Participant’s Continuous Service (or in the case of Shares
issued upon


 


9





















 


exercise of
Options after the date of termination of the Participant’s Continuous Service,
within ninety (90) days after the date of the exercise of such Options);


 


(ii)           the
consideration payable for the Shares upon exercise of such repurchase right
shall be made in cash or by cancellation of purchase money indebtedness within
the ninety (90) day periods specified in (i); and


 


(iii)          the
amount of such consideration shall not be less than (A) the Fair Market
Value of the Shares to be repurchased on the date of termination of the
Participant’s Continuous Service, provided that the right to repurchase at Fair
Market Value lapses if and when the Shares become publicly traded, or (B) the
original Purchase Price or Exercise Price, provided that the right to
repurchase at the original Purchase Price or Exercise Price lapses at the rate
of at least twenty percent (20%) of the Shares per year over five (5) years
from the Grant Date.


 


In addition to the foregoing restrictions,
Awards to an Officer, Director or Consultant may be subject to additional or
greater restrictions.


 


7.7          Performance
Goals.  Awards
under the Plan may be made subject to the attainment of certain Performance
Goals. As determined by the Board, the Performance Goals applicable to an Award
may provide for a targeted level or levels of achievement using one or more of
the following measures: cash flow; cost; ratio of debt to debt plus equity;
profit before tax; economic profit; earnings before interest and taxes;
earnings before interest, taxes, depreciation and amortization; earnings per
share; operating earnings; economic value added; ratio of operating earnings to
capital spending; free cash flow, net profit, net sales; sales growth; return
on net assets, equity or stockholders’ equity; Fair Market Value; market share;
total return to stockholders; or such other criteria established by the Board.
These measures may be used to measure the performance of the Company as a whole
or any business unit of the Company and may be measured relative to a peer
group or index. Performance Goals may differ from Participant to Participant
and from Award to Award. The Board shall determine the method of calculation of
any Performance Goals and whether any significant element(s) shall be included
or excluded from the calculation of any Performance Goals.


 


7.8          Deferrals.   The Board may establish one or more programs
under the Plan to permit selected Participants the opportunity to elect to
defer receipt of consideration upon exercise of an Award, satisfaction of
Performance Goals, or other event that absent the election would entitle the
Participant to payment or receipt of Shares or other consideration under an
Award (but only to the extent that such deferral programs would not result in
an accounting compensation charge unless otherwise determined by the Board).
The Board 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 Board deems advisable for
the administration of any such deferral program.


 


7.9          Separate
Programs.   The
Board 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
Participants on such terms and conditions as determined by the Board from time
to time.


 


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7.10        Exchange
Programs/Modification of Awards. The Board shall have
the authority, at any time and from time to time, to modify or amend any or all
outstanding Awards granted under the Plan, or to cancel any or all such
outstanding Awards and grant in substitution new Awards, to effect a change in,
among others, (a) the number of Shares underlying the Award, (b) the
type of Award, (c) the Exercise Price, Purchase Price or Base Value of the
Award, (d) the term of the Award, or (e) a combination thereof. The
Board shall also have the authority, at any time and from time to time, to
effect a cancellation or surrender of any or all outstanding Awards in exchange
for cash or to modify or waive any restriction or forfeiture provisions, any vesting
conditions or any Performance Goals applicable to an Award. Such exchange for
cash, modification or waiver may be in combination with any of the foregoing
changes to an Award. Notwithstanding the foregoing, no amendment, modification
or cancellation of an outstanding Award granted under the Plan shall, without
the consent of the affected Participant, impair such Participant’s rights or
increase such Participant’s obligations under such Award.


 


In the case of any amendment or modification
of an Incentive Stock Option that gives the Participant additional benefits,
the Exercise Price of such Option shall be amended to reflect one hundred
percent (100%) (one hundred ten percent (110%) for a Ten-Percent Stockholder)
of the Fair Market Value on the date of such amendment or modification.
Otherwise, such Option shall be treated as a Nonqualified Stock Option.
Notwithstanding the foregoing, an acceleration of the time of exercisability of
an Incentive Stock Option shall not be considered an amendment or modification
of such Option. Any modification of the terms of an Award shall be subject to
the terms of the Plan.


 


SECTION 8.  AWARD PRICE, CONSIDERATION AND WITHHOLDING


 


8.1          Exercise
or Purchase Price. 
The Exercise Price or Purchase Price, if any, for an Award shall be as
follows:


 


(a)           Incentive
Stock Options. The Exercise Price of an Incentive Stock Option granted
under the Plan shall not be less than one hundred percent (100%) of the Fair
Market Value on the Grant Date. Notwithstanding the foregoing, if an Incentive
Stock Option is granted to a Ten-Percent Stockholder, the Exercise Price shall
not be less than one hundred ten percent (110%) of the Fair Market Value on the
Grant Date.  In no event shall the
Exercise Price be less than the par value of the Shares underlying the Option
if such is required under Applicable Laws. If the grant of an Incentive Stock
Option is subject to a contingency, the Grant Date shall be the date any such
contingency is satisfied or otherwise removed. In such case, the Exercise Price
shall not be less than one hundred percent (100%) (one hundred ten percent
(110%) for a Ten-Percent Shareholder) of the Fair Market Value on such date.


 


(b)           Nonqualified
Stock Options. The Exercise Price of a Nonqualified Stock Option granted
under the Plan shall not be less than eighty five percent (85%) of the Fair
Market Value on the Grant Date. Notwithstanding the foregoing, if a
Nonqualified Stock Option is granted to a Ten-Percent Stockholder, the Exercise
Price shall not be less than one hundred ten percent (110%) of the Fair Market
Value on the Grant Date.


 


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(c)           Sale
of Shares.  In the case of the sale
of Shares, the Purchase Price shall not be less than eighty five percent (85%)
of the Fair Market Value on the Grant Date or at the time the purchase is
consummated, except that the Purchase Price shall not be less than one hundred
percent (100%) of the Fair Market Value if the Award is granted to a
Ten-Percent Stockholder.


 


(d)           Other
Awards.  In the case of other Awards,
the price or value shall be as determined by the Board and set forth in the
applicable Award Agreement.


 


8.2          Consideration.   Subject to Applicable Laws, the
consideration, if any, 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 Board (and, in the case of an Incentive Stock Option, shall be determined
at the time of grant). In addition to any other types of consideration the
Board may determine, unless otherwise set forth in the Award Agreement, the
Board is authorized to accept as consideration for Shares issued under the Plan
the following (provided that the portion of the consideration equal to the par
value of the Shares must be paid in cash or other legal consideration permitted
by the applicable state corporate law):


 


(i)            cash
or its equivalent, including check or wire transfer;


 


(ii)           cancellation
of any debt owed by the Company to the Participant including, without
limitation, the waiver or reduction of compensation due or accrued for services
previously rendered to the Company;


 


(iii)          one
or more promissory notes with such recourse, interest, security, redemption
provisions and other terms as required by the Board and Applicable Laws (but
only to the extent that the terms of the note would not result in an accounting
compensation charge with respect to the use of such promissory note to pay the
price due unless otherwise determined by the Board);


 


(iv)          payment
through a cashless exercise procedure pursuant to which the Company delivers a
net amount or number of Shares to the Participant; or


 


(v)           a
combination of any of the foregoing.


 


Unless otherwise permitted by the Board, all
payments under the methods listed above shall be paid in United States dollars.


 


8.3          Withholding.


 


(a)           Requirements.
Before the delivery of any Shares or cash pursuant to an Award (or exercise
thereof), the Company shall be entitled to deduct or withhold, or require a
Participant to remit to the Company, an amount sufficient to satisfy any
federal, state and local taxes required to be paid or withheld with respect to
such Award (or exercise thereof).


 


(b)           Withholding
Arrangements.  The Board, in its sole
discretion and pursuant to such procedures as it may specify from time to time,
may permit a Participant to satisfy any tax withholding obligations, in whole
or in part, by (i) electing to have the Company withhold 


 


12





















 


otherwise deliverable Shares,
or (ii) delivering to the Company already-owned Shares having a Fair
Market Value equal to the amount required to be withheld.


 


SECTION 9.  EXERCISE OF AN AWARD


 


9.1          Procedure
for Exercise; Rights as a Shareholder.


 


(a)           General
Requirements.  Any Award granted
under the Plan shall be exercisable at such times and under such conditions as
determined by the Board under the terms of the Plan and specified in the Award
Agreement. An Award may not be exercised for a fraction of a Share. In lieu of
the issuance of a fraction of a Share, the Shares issuable pursuant to an
exercise shall be rounded to the next lower whole Share. Exercise of an Award
in any manner and delivery of the Shares subject to such Award shall result in
a decrease in the number of Shares which thereafter may be available, both for
purposes of the Plan and the Award, by the number of Shares as to which the
Award is exercised. 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 Agreement by the person entitled to exercise the Award and
full payment of the Shares with respect to which the Award is exercised.


 


(b)           Options.  Notwithstanding the foregoing, any Option
granted under the Plan to an Employee, other than an Officer or Director, shall
become exercisable (vest) at the rate of at least twenty percent (20%) per year
over five (5) years from the Grant Date, subject to reasonable conditions
such as Continuous Service. In the case of any Options granted to Officers,
Directors, or Consultants of the Company, the Award Agreement may provide that
the Option may become exercisable, subject to reasonable conditions such as
Continuous Service, at any time or during any period established by the Board.
If so provided in the Award Agreement, an Option may be exercisable subject to
the application of Reverse Vesting with respect to the Shares.


 


(c)           No Rights as Stockholder.   Except as otherwise specifically set forth
herein, no Participant (nor any beneficiary) shall have any of the rights or
privileges of a stockholder of the Company, including voting and dividend
rights, with respect to any Shares issuable pursuant to an Award (or exercise
thereof), unless and until certificates representing such Shares shall have
been issued, recorded on the books of the Company or of a duly authorized
transfer agent of the Company, and delivered to the Participant (or
beneficiary). No adjustment will be made for a dividend or other right for
which the record date is prior to the date the share certificate is issued,
except as otherwise provided herein.


 


9.2          Exercise
Following Termination of Continuous Service.


 


(a)           General
Requirements. In the event of termination of a Participant’s Continuous
Service for any reason other than Disability or death, such Participant 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 Participant’s Award that was vested at
the date of such termination or such other portion of the Participant’s Award
as may be determined by the Board. Each Participant’s Award Agreement shall set
forth the extent to which the Participant shall have the right to exercise an
Award


 


13





















 


following a termination of
Continuous Service. Such provisions need not be uniform among all Awards issued
under the Plan, and may reflect distinctions based on the reasons for
termination. To the extent that the Participant’s Award was unvested at the
date of termination, or if the Participant does not exercise the vested portion
of the Participant’s Award within the Post-Termination Exercise Period, the
Award shall terminate.


 


(b)           Termination
for Cause. Unless otherwise determined by the Board, each Award Agreement
shall provide that upon termination of a Participant’s Continuous Service for
cause, the Participant’s right to exercise the Award shall terminate
concurrently with the termination of the Participant’s Continuous Service.


 


(c)           Termination
Other Than For Cause, Disability or Death. Unless otherwise determined by
the Board, each Award Agreement shall provide that upon termination of a
Participant’s Continuous Service other than for cause, Disability or death, the
Post-Termination Exercise Period shall not exceed six (6) months (three (3) months
in the case of an Incentive Stock Option).


 


(d)           Disability
of Participant.  In the event of
termination of a Participant’s Continuous Service as a result of his or her
Disability, such Participant may, but only during the applicable
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 Participant’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 Nonqualified Stock Option on the day three (3) months and one
(1) day following such termination. The Post-Termination Exercise Period
in the event of termination of Continuous Service due to Disability shall be at
least six (6) months from the date of such termination and, in the case of
an Incentive Stock Option, no more than twelve (12) months. Unless otherwise
determined by the Board, each Award Agreement shall provide that the
Post-Termination Exercise Period in the event of termination of Continuous
Service due to Disability shall be twelve (12) months from the date of such
termination.


 


(e)           Death
of Participant.  In the event of
termination of a Participant’s Continuous Service as a result of his or her
death, or in the event of the death of the Participant during the
Post-Termination Exercise Period, the Participant’s estate or a person who
acquired the right to exercise the Award by bequest or inheritance may exercise
the portion of the Participant’s Award that was vested at the date of such
termination, within such period from the date of death as may be determined by
the Board (but in no event later than the expiration of the term of such Award
as set forth in the Award Agreement). Unless the Board determines otherwise,
each Award Agreement shall provide that such period after death during which an
Award may be exercised shall be twelve (12) months.


 


SECTION 10.
CONDITIONS UPON ISSUANCE OF SHARES


 


10.1        Compliance
with Applicable Laws. Shares shall not be issued
pursuant to the exercise of an Award unless the exercise of such Award and the
issuance and delivery of such Shares pursuant thereto shall comply with all
relevant provisions of Applicable Laws, and shall


 


14





















 


be further subject to the
approval of counsel for the Company with respect to such compliance. As a
condition to the exercise of an Award, the Company may require the person
exercising the 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 or to make such other
representations and warranties, in the opinion of counsel for the Company, as
are required to comply with Applicable Laws. 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.


 


10.2        Restrictions
on Shares.  The
Board may impose restrictions on any Shares acquired pursuant to the exercise
of an Award including, but not limited to, restrictions on transfer related to
applicable federal and state securities laws, rights of first refusal, and
repurchase rights, and may cause restrictive legends to be placed on
certificates representing such Shares.


 


SECTION 11.  SPECIAL PROVISIONS RELATING TO CERTAIN TYPES
OF AWARDS


 


11.1        Options.  Subject to the terms of the Plan, the Board
at any time and from time to time may grant Options, including both Incentive
Stock Options and Nonqualified Stock Options, to Participants in such number as
the Board shall determine. In addition to the other terms set forth in this
Plan, the following additional terms shall apply to the grant of Options.


 


(a)           Award
Agreement.  In addition to the other
terms of an Option granted under the Plan, each Award Agreement with respect to
a grant of an Option shall specify whether the Option is intended to be an
Incentive Stock Option or a Nonqualified Stock Option.


 


(b)           $100,000
Per Year Limit. Notwithstanding that an Option is designated as an
Incentive Stock Option, to the extent that the aggregate Fair Market Value of
Shares subject to Options designated as Incentive Stock Options that become
exercisable for the first time held by a Participant during any calendar year
exceeds $100,000, such excess Options, to the extent of the Shares covered
thereby in excess of the foregoing limitation, shall be treated as Nonqualified
Stock Options. For this purpose, the value of the Shares shall be the Fair
Market Value as of the Grant Date. All Options designated as Incentive Stock
Options that become exercisable in the same year shall be counted, even if they
were granted at different times and under different plans. If the limit is
exceeded, the most recently granted Options designated as Incentive Stock
Options shall be disqualified first and be treated as Nonqualified Stock
Options. An Option may be treated in part as an Incentive Stock Option and in
part as a Nonqualified Stock Option.


 


11.2        Restricted
Stock. Subject to the terms of the Plan, the Board at
any time and from time to time may grant or sell Shares of Restricted Stock to
Participants in such amounts as the Board shall determine. In addition to the
other terms set forth in this Plan, the following additional terms shall apply
to the grant or sale of Restricted Stock.


 


15





















 


(a)           Removal
of Restrictions.  All restrictions
shall expire at such times as the Board shall specify and the Board may, in its
discretion, accelerate the time at which any restrictions shall lapse or be
removed. To the extent deemed appropriate by the Board, the Company may retain
the certificates representing Shares of Restricted Stock in the Company’s
possession until the end of the Period of Restriction. After the end of the
Period of Restriction, the Participant shall be entitled to have any
restrictive legends that were placed on the certificates representing such
Shares removed.


 


(b)           Forfeiture.
Notwithstanding the provisions set forth in Section 9.2, unless the Board
determines otherwise, each Award Agreement with respect to the grant of
Restricted Stock shall provide for the forfeiture of any non-vested Shares
underlying the Award in the event of the termination of the Participant’s
Continuous Service during the Period of Restriction, other than due to death or
Disability, or the failure of the Participant to attain Performance Goals, if
any, during the Performance Period, as well as any other conditions determined
by the Board at the time of grant. In the event of the termination of the Participant’s
Continuous Service due to death or Disability, the Shares shall become fully
vested unless otherwise determined by the Board. To the extent the Participant
purchased the Shares granted under the Award and any such Shares remain
non-vested at the time of forfeiture, the forfeiture shall cause an immediate
sale of such non-vested Shares to the Company at the original Purchase Price
paid to the Company by the Participant. On the date of forfeiture, the
Restricted Stock shall revert to the Company, subject to the preceding purchase
requirement, and again become available for grant under the Plan.


 


(c)           Voting
Rights.   Participants granted Shares
of Restricted Stock shall be granted the right to exercise full voting rights
with respect to those Shares during the Period of Restriction unless otherwise
determined by the Board and set forth in the Award Agreement.


 


(d)           Dividends
and Other Distributions.  During the
Period of Restriction, Participants granted Shares of Restricted Stock may
receive all dividends and other distributions paid with respect to such Shares
unless otherwise provided in the Award Agreement. If any such dividends or
distributions are paid in Shares, the Shares shall be subject to the same
restrictions as the Shares of Restricted Stock with respect to which they were
paid. If any such dividends or distributions are paid in cash, a Participant
may be required to repay such dividends or distributions to the Company if the
Shares of Restricted Stock with respect to which they were paid are ultimately
forfeited.


 


11.3        Stock
Appreciation Rights (SARs). Subject to the terms of
the Plan, the Board at any time and from time to time may grant Stock
Appreciation Rights, including both Stand-Alone SARs and Tandem SARs, to
Participants in such number as the Board shall determine. In addition to the
other terms set forth in this Plan, the following additional terms shall apply
to the grant of SARs.


 


(a)           Award
Agreement.  In addition to the other
terms of a SAR granted under the Plan, each Award Agreement with respect to a
grant of a SAR shall specify the method or formula to be used to determine the
Fair Market Value of Shares from time to time, and the form of payment by the
Company upon exercise of a SAR (cash, Shares or a combination thereof).


 


16





















 


(b)           Exercise
of Tandem SARS.  The Board may grant
a Participant a Tandem SAR that allows the Participant to elect between the
exercise of the underlying Option or the surrender of the Option (or a portion thereof)
in exchange for a payment from the Company in an amount equal to the excess of (A) the
Fair Market Value (on the Option surrender date) of the number of Shares in
which the Participant is at the time vested under the surrendered Option (or
surrendered portion thereof) over (B) the aggregate Exercise Price payable
for such vested Shares. Such payment may be in cash, in Shares of equivalent
value, or a combination thereof unless otherwise specified in the Award
Agreement. Any Options granted in connection with a Tandem SAR shall be subject
to the provisions of the Plan applicable to the grant of Options.


 


(c)           Exercise
of Stand-Alone SARs.  The Board may
grant a Participant a Stand-Alone SAR not tied to any underlying Option. The
Stand-Alone SAR shall cover a specified number of Shares and shall be
exercisable upon such terms and conditions as the Board shall establish. Upon
exercise of the Stand-Alone SAR, the Participant shall be entitled to receive
payment from the Company in an amount equal to the excess of (A) the
aggregate Fair Market Value (on the exercise date) of the Shares underlying the
exercised right over (B) the aggregate Base Value. Such payment may be in
cash, in Shares of equivalent value, or a combination thereof unless otherwise
specified in the Award Agreement.


 


11.4        Performance
Stock/Units. 
Subject to the terms of the Plan, the Board at any time and from time to
time may grant Performance Stock and Performance Units to Participants in such
amount as the Board shall determine. In addition to the other terms set forth
in this Plan, the following additional terms shall apply to the grant of
Performance Stock and Performance Units.


 


(a)           Award
Agreement. In addition to the other terms of Performance Stock and
Performance Units granted under the Plan, each Award Agreement with respect to
a grant of Performance Stock or Performance Units shall specify the Performance
Goals, the Performance Period, and the value of the Shares or unit.


 


(b)           Value
of Performance Stock/Units.  Each
Performance Unit shall have an initial value that is established by the Board
at the time of grant. Each Share of Performance Stock shall have an initial
value equal to the Fair Market Value of a Share on the Grant Date. The Board
shall set Performance Goals in its discretion that, depending on the extent to
which they are met, will determine the number and/or value of Performance
Stock/Units that will be paid out to the Participant.


 


(c)           Earning
of Performance Stock/Units. Subject to the terms of the Plan, after the end
of the applicable Performance Period, the Participant shall be entitled to
receive payout on the number and value of Performance Stock/Units earned by the
Participant over the Performance Period, to be determined as a function of the
extent to which the corresponding Performance Goals have been achieved.
Notwithstanding satisfaction of any Performance Goals, the number of Shares or
the amount to be paid pursuant to an Award of Performance Stock/Units may be
adjusted by the Board on the basis of such further consideration as the Board
in its sole discretion shall determine.


 


17





















 


(d)           Form and
Timing of Payment. Payment of earned Performance Stock/Units shall be made
in a single lump sum or such other form designated by the Board following the
close of the applicable Performance Period. Subject to the terms of the Plan,
the Board may, in its discretion, pay earned Performance Stock/Units in the
form of cash or in Shares with an aggregate Fair Market Value equal to the
value of the earned Performance Stock/Units at the close of the applicable
Performance Period, or a combination thereof. Such Shares may be granted
subject to any restrictions deemed appropriate by the Board.


 


(e)           Dividends
and Voting Rights.   At the
discretion of the Board, Participants may be entitled to receive any dividends
declared with respect to Shares that have been earned in connection with grants
of Performance Stock but not yet distributed. Such dividends may be subject to
the same restrictions as set forth in Section 11.2(d). In addition,
Participants may, at the discretion of the Board, be entitled to exercise
voting rights with respect to such earned Shares.


 


(f)            Forfeiture.
Unless the Board determines otherwise, the Award Agreement shall provide for
the forfeiture of all Performance Stock/Units in the event of the termination
of the Participant’s Continuous Service during the Performance Period.


 


SECTION 12.  OTHER STOCK OR CASH AWARDS


 


In addition to the Awards described elsewhere
herein, the Board may grant other incentives payable in cash or in Shares under
the Plan as it determines to be in the best interests of the Company and
subject to such other terms and conditions as it deems appropriate.


 


SECTION 13.  ADJUSTMENTS TO SHARES SUBJECT TO THE PLAN


 


13.1        Adjustments
Upon Changes in Capitalization. Subject to any
required action by stockholders of the Company, the number of Shares covered by
each outstanding Award, and the number of Shares that 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 pursuant to Section 5.2, the Exercise
Price, Purchase Price or Base Value of each outstanding Award, as well as any
other terms that the Board 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 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) as
the Board may determine in its discretion, any other transaction with respect
to Shares 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.” Such adjustment shall be made by the Board and its
determination shall be final, binding and conclusive. Except as the Board
determines, no issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or price
of Shares subject to an Award. Notwithstanding the foregoing, the number of
Shares subject to any Award shall always be a whole number.


 


18





















 


13.2        Dissolution
or Liquidation. 
In the event of a proposed dissolution or liquidation of the Company,
each outstanding Award will terminate immediately before the consummation of
such proposed action, unless otherwise provided by the Board. The Board may, in
its discretion, declare that an Award shall terminate as of a date fixed by the
Board and give each Participant the right to exercise his or her Award as to
all or any part of the Shares subject to an Award, including Shares as to which
the Award would not otherwise be exercisable.


 


13.3        Substitution
and Assumption of Benefits.  Without affecting the number of Shares
reserved, subject to or available under the Plan, the Board may authorize the
issuance of Awards under the Plan in settlement, assumption or substitution for
outstanding awards or obligations to grant future awards in connection with the
Company acquiring another entity or an interest in another entity whether by
merger, stock purchase, asset purchase or other form of transaction, upon such
terms and conditions as the Board may deem appropriate. The Exercise Price and
Purchase Price of Awards granted hereunder may be less than as required
pursuant to Section 8.1 and shall be determined in accordance with the
provisions of the relevant instrument evidencing the agreement to issue such
Award. Specifically, substitute Incentive Stock Options may be granted with an
Exercise Price less than that otherwise required by Section 8.1 to the
extent necessary to maintain the qualification of such Option as an Incentive
Stock Option in accordance with applicable provisions under the Code.


 


In the event of any merger, consolidation or
reorganization of the Company with or into another corporation (other than a
Change in Control) that results in the outstanding Shares being converted into
or exchanged for different securities, cash or other property, or any
combination thereof, there shall be substituted, on an equitable basis as
determined by the Board in its discretion, for each Share then subject to an
Award granted under the Plan, the number and kind of shares of stock, other
securities, cash or other property to which holders of the Company’s common
stock will be entitled pursuant to the transaction.


 


13.4        Change
in Control.


 


(a)           Options
and SARs.


 


(i)            In
the event of a Change in Control, each outstanding Option and SAR may be
assumed or an equivalent option or right substituted by the successor
corporation or a parent or subsidiary of such successor corporation.


 


(ii)           In
the event that the successor corporation does not assume or substitute for the
Option or SAR, then the Options or SAR held by a Participant shall become fully
exercisable. If an Option or SAR becomes fully vested and exercisable in lieu
of assumption or substitution in the event of a Change in Control, the Company
shall notify the Participant in writing or electronically that the Option or
SAR shall be fully vested and exercisable (subject to the consummation of the
Change in Control) for a period of fifteen (15) days from the date of such
notice, and the Option or SAR shall terminate upon the expiration of such
period.


 


(iii)          For
the purpose of this Section 13.4(a), the Option or SAR shall be considered
assumed if, following the Change in Control, the option or right confers the
right to


 


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purchase or receive, for each
Share subject to the Option or SAR immediately before the Change in Control,
the consideration (whether stock, cash, or other securities or property)
received in the Change in Control by holders of Shares for each Share held on
the effective date of the transaction (and if holders were offered a choice of
consideration, the type of consideration chosen by the holders of a majority of
the outstanding Shares); provided, however, that if such consideration received
in the Change in Control is not solely common stock of the successor
corporation or its parent, the Board may, with the consent of the successor
corporation, provide for the consideration to be received upon the exercise of
the Option or SAR, for each Share subject to the Option or SAR, to be solely
common stock of the successor corporation or its parent equal in fair market
value to the per share consideration received by holders of Shares in the
Change in Control, as determined on the date of the Change in Control.


 


(iv)          With
respect to Options and SARs that are assumed or substituted for, if within
eighteen (18) months following the Change in Control the Participant is
involuntarily terminated by the successor corporation or one of its affiliates
for a reason other than cause, then the Options and SARs held by such
Participant shall become fully exercisable unless otherwise specified in the
Award Agreement or the Participant’s employment agreement, if any.


 


(b)           Restricted
Stock.


 


(i)            In
the event of a Change in Control, any Company repurchase or reacquisition right
with respect to outstanding Shares of Restricted Stock held by a Participant
may be assigned to the successor corporation. In the event that such rights are
not assigned to the successor corporation, such Company repurchase or
reacquisition rights will lapse and the Participant will become fully vested in
such Shares of Restricted Stock immediately before the Change in Control.


 


(ii)           If
the Company repurchase or reacquisition right with respect to a Share of
Restricted Stock is assigned to the successor corporation and, within eighteen
(18) months following the Change in Control, the Participant is involuntarily
terminated by the successor corporation or one of its affiliates for a reason
other than cause, then such Participant’s Shares of Restricted Stock (or the
property for which the Restricted Stock was converted upon the Change in
Control) will immediately have any Company repurchase or reacquisition right
lapse and the Participant will become fully vested in such Shares of Restricted
Stock (or the property for which the Restricted Stock was converted upon the
Change in Control), unless otherwise specified in the Award Agreement or the
Participant’s employment agreement, if any.


 


(c)           Performance
Stock and Performance Units.  In the
event of a Change in Control, the Board, in its discretion, may provide for any
one or more of the following with respect to the Performance Stock/Units: (i) any
outstanding Performance Stock/Units shall be assumed by the successor
corporation or a parent or subsidiary of the successor corporation; (ii) any
outstanding Performance Stock/Units shall be terminated immediately before the
Change in Control; or (iii) with respect to a Change in Control that
occurs before the termination of a Participant’s Continuous Service, one hundred
percent (100%) of any outstanding Performance Stock/Units shall be deemed to be
earned and shall be immediately payable to the Participant. In


 


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the event any outstanding
Performance Stock/Units are assumed, the successor corporation shall have the
ability to reasonably and equitably adjust the Performance Goals.


 


SECTION 14.  TERM, AMENDMENT, WAIVER AND TERMINATION


 


14.1        Term.   Subject to Section 15.3, the Plan shall
become effective as of the Effective Date and shall remain in effect until (i) all
Shares subject to the Plan have been purchased or acquired according to the
terms of the Plan; (ii) the Plan is terminated by the Board; or (iii) October 20,
2015, whichever is earlier. Notwithstanding the foregoing, the terms and
conditions applicable to an Award granted before the termination of the Plan
may thereafter be amended or modified by mutual agreement between the Company
and the Participant, or such other person as may then have an interest therein.


 


14.2        Amendment
and Termination. 
The Board, in its sole discretion, may amend, suspend or terminate the
Plan, or any part thereof, at any time and for any reason. To the extent
necessary to comply with Applicable Laws, the Company shall obtain stockholder
approval of any Plan amendment in such a manner and to such a degree as
required.


 


14.3        Effect
of Amendment or Termination.  Any amendment, suspension or termination of
the Plan shall not alter or impair any rights or obligations under any Award
granted before any such amendment, suspension or termination and any such Award
shall remain in full force and effect as if the Plan had not been amended,
suspended or terminated, unless mutually agreed otherwise in writing by the
Participant and the Company and approved by the Board. No Awards may be granted
during any period of suspension or after termination of the Plan.


 


14.4        Waiver.   Certain limitations and requirements set
forth in this Plan are included for the purpose of complying with certain
exemptions under applicable federal and state securities laws, including Rule 701
under the Securities Act and Section 25102(o) of the California Corporate
Securities Law of 1968, as amended. The Board may, in its discretion, modify or
waive any one or more of such limitations or requirements if the Board, upon
advice of counsel, determines that such limitations or requirements are no
longer applicable or are otherwise not necessary for compliance with Applicable
Laws with respect to an Award granted hereunder.


 


SECTION 15.  MISCELLANEOUS


 


15.1        Governing
Law.  The Plan,
the Award Agreements and all other agreements entered into under the Plan, and
all actions taken in connection with the Plan or such agreements, shall be
governed by and construed in accordance with the substantive laws, but not the
choice of law rules, of the State of Nevada.


 


15.2        Severability.  If any provision of the Plan shall be held
illegal or invalid for any reason, the illegality or invalidity shall not
affect the remaining parts of the Plan, and the Plan shall be construed and
enforced as if the illegal or invalid provision had not been included.


 


15.3        Stockholder
Approval.  The
Plan was adopted by the Board on the Effective Date, subject to stockholder
approval. Such stockholder approval shall be obtained in the degree


 


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and manner required under
Applicable Laws. Any Award granted or exercised before the necessary
stockholder approval is obtained shall be rescinded if stockholder approval is
not obtained within the time prescribed, and Shares issued upon the grant or
exercise of any such Award shall not be counted in determining whether
stockholder approval is obtained.


 


15.4        No
Employment/Service Rights.  No action of the Company in establishing the
Plan, no action taken under the Plan by the Board and no provision of the Plan
itself or of any Award Agreement shall be construed to confer upon any person
any right with respect to such person’s continuous employment or service to the
Company, nor shall it interfere in any way with such person’s right or the
right of the Company to terminate such person’s employment or service at any
time, with or without cause, and with or without notice.


 


15.5        Captions.   Captions are provided herein for convenience
only, and shall not serve as a basis for interpretation or construction of the
Plan.


 


15.6        Information
Provided to Participants.


 


(a) Financial Statements.  The Company shall provide to each
Participant, during the period for which such Participant has one or more
Awards outstanding, copies of the Company’s financial statements (balance sheet
and income statement) at least annually. Such statements need not be audited
and need not be provided to Participants whose duties with the Company assure
them access to equivalent information.


 


(b) Copy of Plan.  The Company shall provide each Participant
with a copy of the Plan.


 


(c) Additional Disclosures. The
Company may be required to provide additional information to Participants if
the aggregate sales price or amount of securities sold under the Plan during
any consecutive 12 month period exceeds $5 million and the Company intends to
rely on the exemption from registration available under Rule 701 of the
Securities Act, or to the extent otherwise required under Applicable Laws.


 


15.7        Nonexclusivity
of this Plan. 
This Plan shall not limit the power of the Company to adopt other
incentive arrangements, including, for example, the grant or issuance of any
equity-based rights under other plans or independently of any plan.


 


15.8        Prior
Plans.  All
options or other rights outstanding under any prior plan of the Company shall
continue to be governed solely by the terms of the documents evidencing such
options or other rights, and no provision of the Plan shall be deemed to affect
or otherwise modify the rights or obligations of the holders of such options or
other rights.


 


15.9        Electronic
Communications. 
Any Award Agreement, notice of exercise, or other document required or
permitted by this Plan may be delivered in writing or, to the extent determined
by the Board, electronically. Signatures may also be electronic if permitted by
the Board.


 


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SECTION 
16.  EXECUTION


 


To record the adoption of the Plan by the
Board, the Company has caused its authorized Officer to execute the same.


 


 


	
   

  	
  ARIES VENTURES INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
        /s/
  Christopher J. Reinhard

  
	
   

  	
   

  	
        Christopher
  J. Reinhard, Chief Executive Officer

  



 


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