**Exhibit 10.5**

**PEET’S COFFEE & TEA, INC.**

**AMENDED AND RESTATED 2000 EQUITY INCENTIVE PLAN**

**Adopted November 1, 2000**

**Approved By Shareholders November 17, 2000 and May 23, 2002**

**Amended and Restated onMarch 30 , 2007**

**1. Purposes.**

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

**(b) Available Stock Awards.** The purpose of the Plan is to provide a means by which eligible recipients of Stock Awards may be given an opportunityto benefit from increases in value of the Common Stock through the granting of the following Stock Awards: (i) Incentive Stock Options, (ii) Nonstatutory Stock Options, (iii) stock bonuses and (iv) rights to acquire restrictedstock. 

**(c) General Purpose.** The Company, by means of the Plan, seeks to retain the services of the group of persons eligible toreceive Stock Awards, to secure and retain the services of new members of this group and to provide incentives for such persons to exert maximum efforts for the success of the Company and its Affiliates. 

**2. Definitions.**

**(a)*****“Affiliate”*** means any parent corporation or subsidiary corporation of the Company, whether now or hereafter existing, as those terms are defined in Sections 424(e) and (f), respectively, of the Code. 

**(b)*****“Board”*** means the Board of Directors of the Company. 

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

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

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

**(f)*****“Company”*** means Peet’s Coffee & Tea, Inc., a Washington corporation, formerly known as Peet’sCompanies, Inc. 

**(g)*****“Consultant”*** means any person, including an advisor, (i) engaged by the Company oran Affiliate to render consulting or advisory services and who is compensated for 

 

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such services or (ii) who is a member of the Board of Directors of an Affiliate. However, the term “Consultant” shall not include eitherDirectors who are not compensated by the Company for their services as Directors or Directors who are merely paid a director’s fee by the Company for their services as Directors. 

**(h)*****“Continuous Service”*** means that the Participant’s service with the Company or an Affiliate, whether as anEmployee, Director or Consultant, is not interrupted or terminated. The Participant’s Continuous Service shall not be deemed to have terminated merely because of a change in the capacity in which the Participant renders service to the Companyor an Affiliate as an Employee, Consultant or Director or a change in the entity for which the Participant renders such service, provided that there is no interruption or termination of the Participant’s Continuous Service. For example, achange in status from an Employee of the Company to a Consultant of an Affiliate or a Director will not constitute an interruption of Continuous Service. The Board or the chief executive officer of the Company, in that party’s sole discretion,may determine whether Continuous Service shall be considered interrupted in the case of any leave of absence approved by that party, including sick leave, military leave or any other personal leave. 

**(i)*****“Covered Employee”*** means the chief executive officer and the four (4) other highest compensated officers of theCompany for whom total compensation is required to be reported to shareholders under the Exchange Act, as determined for purposes of Section 162(m) of the Code. 

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

**(k)*****“Disability”*** means the permanent and total disability of a person within the meaning of Section 22(e)(3) of the Code. 

**(l)*****“Employee”*** means any person employed by the Company or an Affiliate. Mere service as a Director or payment of a director’s fee by the Company or an Affiliate shall not besufficient to constitute “employment” by the Company or an Affiliate. 

**(m)*****“Exchange Act”*** means theSecurities Exchange Act of 1934, as amended. 

**(n)****“*****Fair Market Value”*** means, as of any date, the valueof the Common Stock determined as follows: 

**(i)** If the Common Stock is listed on any established stock exchange ortraded on the Nasdaq National Market or the Nasdaq SmallCap Market, the Fair Market Value of a share of Common Stock shall be the closing sales price for such stock (or the closing bid, if no sales were reported) as quoted on such exchange or market(or the exchange or market with the greatest volume of trading in the Common Stock) on the day of determination, as reported in *The Wall Street Journal*or such other source as the Board deems reliable. 

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

 

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**(o)*****“Incentive Stock Option”*** means an Option intended to qualify as anincentive stock option within the meaning of Section 422 of the Code and the regulations promulgated thereunder. 

**(p)*****“IPO Date”*** means the effective date of the initial public offering of the Common Stock, which was January 25, 2001. 

**(q)*****“Non-Employee Director”***means a Director who either (i) is not a current Employee or Officer of the Company or its parent or a subsidiary, does not receive compensation (directly or indirectly) fromthe Company or its parent or a subsidiary for services rendered as a consultant or in any capacity other than as a Director (except for an amount as to which disclosure would not be required under Item 404(a) of Regulation S-K promulgatedpursuant to the Securities Act (“Regulation S-K”)), does not possess an interest in any other transaction as to which disclosure would be required under Item 404(a) of Regulation S-K and is not engaged in a business relationship as towhich disclosure would be required under Item 404(b) of Regulation S-K; or (ii) is otherwise considered a “non-employee director” for purposes of Rule 16b-3. 

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

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

**(t)*****“Option”*** means an Incentive Stock Option or aNonstatutory Stock Option granted pursuant to the Plan. 

**(u)*****“Option Agreement”*** means a written agreementbetween the Company and an Optionee evidencing the terms and conditions of an individual Option grant. Each Option Agreement shall be subject to the terms and conditions of the Plan. 

**(v)*****“Optionee”*** means a person to whom an Option is granted pursuant to the Plan or, if applicable, such other person whoholds an outstanding Option. 

**(w)*****“Outside Director”*** means a Director who either (i) is not a currentemployee of the Company or an “affiliated corporation” (within the meaning of Treasury Regulations promulgated under Section 162(m) of the Code), is not a former employee of the Company or an “affiliated corporation”receiving compensation for prior services (other than benefits under a tax qualified pension plan), was not an officer of the Company or an “affiliated corporation” at any time and is not currently receiving direct or indirect remunerationfrom the Company or an “affiliated corporation” for services in any capacity other than as a Director or (ii) is otherwise considered an “outside director” for purposes of Section 162(m) of the Code. 

**(x)*****“Participant”*** means a person to whom a Stock Award is granted pursuant to the Plan or, if applicable, such other personwho holds an outstanding Stock Award. 

**(y)*****“Plan”*** means this Peet’s Coffee & Tea, Inc. 2000Equity Incentive Plan. 

 

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**(z)*****“Rule 16b-3”*** means Rule 16b-3 promulgated under the Exchange Act orany successor to Rule 16b-3, as in effect from time to time. 

**(aa)*****“Securities Act”*** means the Securities Actof 1933, as amended. 

**(bb)*****“Stock Award”*** means any right granted under the Plan, including an Option, a stockbonus and a right to acquire restricted stock. 

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

**(dd)*****“Subsidiary”*** means Peet’s Operating Company, Inc., formerly known as Peet’s Coffee & Tea.

**(ee)*****“Ten Percent Shareholder”*** means a person who owns (or is deemed to own pursuant to 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 or of any of its Affiliates. 

**3. Administration.**

**(a)****Administration by Board.** The Board shall administer the Planunless and until the Board delegates administration to a Committee, as provided in subsection 3(c). 

**(b)****Powers of Board.** TheBoard shall have the power, subject to, and within the limitations of, the express provisions of the Plan: 

**(i)** Todetermine from time to time which of the persons eligible under the Plan shall be granted Stock Awards; when and how each Stock Award shall be granted; what type or combination of types of Stock Award shall be granted; the provisions of each StockAward granted (which need not be identical), including the time or times when a person shall be permitted to receive Common Stock pursuant to a Stock Award; and the number of shares of Common Stock with respect to which a Stock Award shall begranted to each such person. 

**(ii)** To construe and interpret the Plan and Stock Awards granted under it, and toestablish, amend and revoke rules and regulations for its administration. The Board, in the exercise of this power, may correct any defect, omission or inconsistency in the Plan or in any Stock Award Agreement, in a manner and to the extent it shalldeem necessary or expedient to make the Plan fully effective. 

**(iii)** To amend the Plan or a Stock Award as providedin Section 12. 

**(iv)** Generally, to exercise such powers and to perform such acts as the Board deems necessary orexpedient to promote the best interests of the Company which are not in conflict with the provisions of the Plan. 

 

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**(c) Delegation to Committee.**

**(i)****General.** The Board may delegate administration of the Plan to a Committee or Committees of one (1) or more membersof the Board, and the term “Committee” shall apply to any person or persons to whom such authority has been delegated. If administration is delegated to a Committee, the Committee shall have, in connection with the administration of thePlan, the powers theretofore possessed by the Board, including the power to delegate to a subcommittee any of the administrative powers the Committee is authorized to exercise (and references in this Plan to the Board shall thereafter be to theCommittee or subcommittee), subject, however, to such resolutions, not inconsistent with the provisions of the Plan, as may be adopted from time to time by the Board. The Board may abolish the Committee at any time and revest in the Board theadministration of the Plan. 

**(ii)****Committee Composition when Common Stock is Publicly Traded.** At such time asthe Common Stock is publicly traded, in the discretion of the Board, a Committee may consist solely of two or more Outside Directors, in accordance with Section 162(m) of the Code, and/or solely of two or more Non-Employee Directors, inaccordance with Rule 16b-3. Within the scope of such authority, the Board or the Committee may (1) delegate to a committee of one or more members of the Board who are not Outside Directors the authority to grant Stock Awards to eligible personswho are either (a) not then Covered Employees and are not expected to be Covered Employees at the time of recognition of income resulting from such Stock Award or (b) not persons with respect to whom the Company wishes to comply withSection 162(m) of the Code and/or (2) delegate to a committee of one or more members of the Board who are not Non-Employee Directors the authority to grant Stock Awards to eligible persons who are not then subject to Section 16 of theExchange Act. 

**(d)****Effect of Board’s Decision.** All determinations, interpretations and constructions made by the Boardin good faith shall not be subject to review by any person and shall be final, binding and conclusive on all persons. 

**4. Shares Subject to the Plan.**

**(a)****Share Reserve.** Subject to the provisions of Section 11 relating to adjustments upon changes in Common Stock, theCommon Stock that was initially reserved for issuance pursuant to Stock Awards was seven hundred thousand (700,000) shares of Common Stock (the “Initial Reserved Shares”) and, effective May 23, 2002, was increased by eighthundred thousand (800,000) shares of Common Stock (together with the Initial Reserved Shares, the “Reserved Shares”). As of each annual meeting of the Company’s shareholders, beginning in 2002, and continuing through andincluding the annual meeting of the Company’s shareholders in 2006, the number of Reserved Shares was increased, and as of each annual meeting of the Company’s shareholders, beginning in 2007, and continuing through and including theannual meeting of the Company’s shareholders in 2010, the number of Reserved Shares will be increased automatically by the *least* of (i) five percent (5%) of the total number of shares of Common Stock outstanding on such date,(ii) five hundred thousand (500,000) shares, or (iii) a number of shares determined by the Board prior to such date, which number shall be less than (i) and (ii) above. 

 

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

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

**5. Eligibility.**

**(a)Eligibility for Specific Stock Awards.** Incentive Stock Options may be granted only to Employees. Stock Awards other than Incentive Stock Options may be granted to Employees, Directors and Consultants. 

**(b) Ten Percent Shareholders.** A Ten Percent Shareholder shall not be granted an Incentive Stock Option unless the exercise price of such Option isat least one hundred ten percent (110%) of the Fair Market Value of the Common Stock at the date of grant and the Option is not exercisable after the expiration of five (5) years from the date of grant. 

**(c) Section 162(m) Limitation.** Subject to the provisions of Section 11 relating to adjustments upon changes in the shares of CommonStock, no Employee shall be eligible to be granted Options covering more than five hundred thousand (500,000) shares of Common Stock during any calendar year. 

**(d) Consultants.**

**(i)** A Consultant shall not be eligible for the grant of aStock Award if, at the time of grant, a Form S-8 Registration Statement under the Securities Act (“Form S-8”) is not available to register either the offer or the sale of the Company’s securities to such Consultant because of thenature of the services that the Consultant is providing to the Company, or because the Consultant is not a natural person, or as otherwise provided by the rules governing the use of Form S-8, unless the Company determines both (i) that suchgrant (A) shall be registered in another manner under the Securities Act (*e.g.,* on a Form S-3 Registration Statement) or (B) does not require registration under the Securities Act in order to comply with the requirements of theSecurities Act, if applicable, and (ii) that such grant complies with the securities laws of all other relevant jurisdictions. 

**(ii)** Form S-8 generally is available to consultants and advisors only if (i) they are natural persons; (ii) they provide bona fide services to the issuer, its parents, its majority-owned subsidiaries; and (iii) theservices are not in connection with the offer or sale of securities in a capital-raising transaction, and do not directly or indirectly promote or maintain a market for the issuer’s securities. 

**6. Option Provisions.**

Each Option shall be in suchform and shall contain such terms and conditions as the Board shall deem appropriate. All Options shall be separately designated Incentive Stock Options or Nonstatutory Stock Options at the time of grant, and, if certificates are issued, a 

 

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separate certificate or certificates will be issued for shares of Common Stock purchased on exercise of each type of Option. The provisions of separateOptions need not be identical, but each Option shall include (through incorporation of provisions hereof by reference in the Option or otherwise) the substance of each of the following provisions: 

**(a) Term.** Subject to the provisions of subsection 5(b) regarding Ten Percent Shareholders, no Incentive Stock Option shall be exercisable after theexpiration of ten (10) years from the date it was granted. 

**(b) Exercise Price of an Incentive Stock Option.** Subject to theprovisions of subsection 5(b) regarding Ten Percent Shareholders, the exercise price of each Incentive Stock Option shall be not less than one hundred percent (100%) of the Fair Market Value of the Common Stock subject to the Option on the datethe Option is granted. Notwithstanding the foregoing, an Incentive Stock Option may be granted with an exercise price lower than that set forth in the preceding sentence if such Option is granted pursuant to an assumption or substitution for anotheroption in a manner satisfying the provisions of Section 424(a) of the Code. 

**(c) Exercise Price of a Nonstatutory Stock Option.**The exercise price of each Nonstatutory Stock Option shall be not less than eighty-five percent (85%) of the Fair Market Value of the Common Stock subject to the Option on the date the Option is granted. Notwithstanding the foregoing, aNonstatutory Stock Option may be granted with an exercise price lower than that set forth in the preceding sentence if such Option is granted pursuant to an assumption or substitution for another option in a manner satisfying the provisions ofSection 424(a) of the Code. 

**(d) Consideration.** The purchase price of Common Stock acquired pursuant to an Option shall be paid,to the extent permitted by applicable statutes and regulations, either (i) in cash at the time the Option is exercised or (ii) at the discretion of the Board at the time of the grant of the Option (or subsequently in the case of aNonstatutory Stock Option) (1) by delivery to the Company of other Common Stock, (2) according to a deferred payment or other similar arrangement with the Optionee or (3) in any other form of legal consideration that may be acceptableto the Board. Unless otherwise specifically provided in the Option, the purchase price of Common Stock acquired pursuant to an Option that is paid by delivery to the Company of other Common Stock acquired, directly or indirectly from the Company,shall be paid only by shares of the Common Stock of the Company that have been held for more than six (6) months (or such longer or shorter period of time required to avoid a charge to earnings for financial accounting purposes). At any timethat the Company is incorporated in Delaware, payment of the Common Stock’s “par value,” as defined in the Delaware General Corporation Law, shall not be made by deferred payment. 

In the case of any deferred payment arrangement, interest shall be compounded at least annually and shall be charged at a market rate of interestnecessary to avoid a change to earnings for financial accounting purposes. 

**(e) Transferability of an Incentive Stock Option.** AnIncentive Stock Option shall not be transferable except by will or by the laws of descent and distribution and shall be 

 

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exercisable during the lifetime of the Optionee only by the Optionee. Notwithstanding the foregoing, the Optionee may, by delivering written notice to theCompany, in a form satisfactory to the Company, designate a third party who, in the event of the death of the Optionee, shall thereafter be entitled to exercise the Option. 

**(f) Transferability of a Nonstatutory Stock Option.** A Nonstatutory Stock Option shall be transferable to the extent provided in the OptionAgreement. If the Nonstatutory Stock Option does not provide for transferability, then the Nonstatutory Stock Option shall not be transferable except by will or by the laws of descent and distribution and shall be exercisable during the lifetime ofthe Optionee only by the Optionee. Notwithstanding the foregoing, the Optionee may, by delivering written notice to the Company, in a form satisfactory to the Company, designate a third party who, in the event of the death of the Optionee, shallthereafter be entitled to exercise the Option. 

**(g) Vesting Generally.** The total number of shares of Common Stock subject to anOption may, but need not, vest and therefore become exercisable in periodic installments that may, but need not, be equal. The Option may be subject to such other terms and conditions on the time or times when it may be exercised (which may be basedon performance or other criteria) as the Board may deem appropriate. The vesting provisions of individual Options may vary. The provisions of this subsection 6(g) are subject to any Option provisions governing the minimum number of shares of CommonStock as to which an Option may be exercised. 

**(h) Termination of Continuous Service.** In the event an Optionee’s ContinuousService terminates (other than upon the Optionee’s death or Disability), the Optionee may exercise his or her Option (to the extent that the Optionee was entitled to exercise such Option as of the date of termination) but only within suchperiod of time ending on the earlier of (i) the date three (3) months following the termination of the Optionee’s Continuous Service (or such longer or shorter period specified in the Option Agreement), or (ii) the expiration ofthe term of the Option as set forth in the Option Agreement. If, after termination, the Optionee does not exercise his or her Option within the time specified in the Option Agreement, the Option shall terminate. 

**(i) Extension of Termination Date.** An Optionee’s Option Agreement may also provide that if the exercise of the Option following thetermination of the Optionee’s Continuous Service (other than upon the Optionee’s death or Disability) would be prohibited at any time solely because the issuance of shares of Common Stock would violate the registration requirements underthe Securities Act, then the Option shall terminate on the earlier of (i) the expiration of the term of the Option set forth in subsection 6(a) or (ii) the expiration of a period of three (3) months after the termination of theOptionee’s Continuous Service during which the exercise of the Option would not be in violation of such registration requirements. 

**(j) Disability of Optionee.** In the event that an Optionee’s Continuous Service terminates as a result of the Optionee’s Disability, the Optionee may exercise his or her Option (to the extent that the Optionee was entitledto exercise such Option as of the date of termination), but only within such period of time ending on the earlier of (i) the date twelve (12) months following such termination (or such longer or shorter period specified in the OptionAgreement) or (ii) the expiration of the term of the Option as set forth in the Option Agreement. 

 

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If, after termination, the Optionee does not exercise his or her Option within the time specified herein, the Option shall terminate. 

**(k) Death of Optionee.** In the event (i) an Optionee’s Continuous Service terminates as a result of the Optionee’s death or(ii) the Optionee dies within the period (if any) specified in the Option Agreement after the termination of the Optionee’s Continuous Service for a reason other than death, then the Option may be exercised (to the extent the Optionee wasentitled to exercise such Option as of the date of death) by the Optionee’s estate, by a person who acquired the right to exercise the Option by bequest or inheritance or by a person designated to exercise the Option upon the Optionee’sdeath pursuant to subsection 6(e) or 6(f), but only within the period ending on the earlier of (1) the date eighteen (18) months following the date of death (or such longer or shorter period specified in the Option Agreement) or(2) the expiration of the term of such Option as set forth in the Option Agreement. If, after death, the Option is not exercised within the time specified herein, the Option shall terminate. 

**(l) Early Exercise.** The Option may, but need not, include a provision whereby the Optionee may elect at any time before the Optionee’sContinuous Service terminates to exercise the Option as to any part or all of the shares of Common Stock subject to the Option prior to the full vesting of the Option. Any unvested shares of Common Stock so purchased may be subject to a repurchaseoption in favor of the Company or to any other restriction the Board determines to be appropriate. 

**7. Provisions of Stock Awards other than Options.**

**(a) Stock Bonus Awards**. Each stock bonus agreement shall be in such form and shall contain such terms and conditions as theBoard shall deem appropriate. The terms and conditions of stock bonus agreements may change from time to time, and the terms and conditions of separate stock bonus agreements need not be identical, but each stock bonus agreement shall include(through incorporation of provisions hereof by reference in the agreement or otherwise) the substance of each of the following provisions: 

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

**(ii) Vesting.** Shares of Common Stock awarded under the stock bonus agreement may, but need not, be subject to a share repurchaseoption in favor of the Company in accordance with a vesting schedule to be determined by the Board. 

**(iii) Termination ofParticipant’s Continuous Service.** In the event a Participant’s Continuous Service terminates, the Company may reacquire any or all of the shares of Common Stock held by the Participant which have not vested as of the date oftermination under the terms of the stock bonus agreement. 

**(iv) Transferability.** Rights to acquire shares of CommonStock under the stock bonus agreement shall be transferable by the Participant only upon such terms and conditions as are set forth in the stock bonus agreement, as the Board shall determine in its discretion, so long as Common Stock awarded underthe stock bonus agreement remains subject to the terms of the stock bonus agreement. 

 

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**(b) Restricted Stock Awards.** Each restricted stock purchase agreement shall be in such form andshall contain such terms and conditions as the Board shall deem appropriate. The terms and conditions of the restricted stock purchase agreements may change from time to time, and the terms and conditions of separate restricted stock purchaseagreements need not be identical, but each restricted stock purchase agreement shall include (through incorporation of provisions hereof by reference in the agreement or otherwise) the substance of each of the following provisions: 

**(i) Purchase Price.** The purchase price under each restricted stock purchase agreement shall be such amount as the Board shalldetermine and designate in such restricted stock purchase agreement. The purchase price shall not be less than eighty-five percent (85%) of the Common Stock’s Fair Market Value on the date such award is made or at the time the purchase isconsummated. 

**(ii) Consideration.** The purchase price of Common Stock acquired pursuant to the restricted stockpurchase agreement shall be paid either: (i) in cash at the time of purchase; (ii) at the discretion of the Board, according to a deferred payment or other similar arrangement with the Participant; or (iii) in any other form of legalconsideration that may be acceptable to the Board in its discretion; provided, however, that at any time that the Company is incorporated in Delaware, then payment of the Common Stock’s “par value,” as defined in the Delaware GeneralCorporation Law, shall not be made by deferred payment. 

**(iii) Vesting.** Shares of Common Stock acquired under therestricted stock purchase agreement may, but need not, be subject to a share repurchase option in favor of the Company in accordance with a vesting schedule to be determined by the Board. 

**(iv) Termination of Participant’s Continuous Service.** In the event a Participant’s Continuous Service terminates, theCompany may repurchase or otherwise reacquire any or all of the shares of Common Stock held by the Participant which have not vested as of the date of termination under the terms of the restricted stock purchase agreement. 

**(v) Transferability.** Rights to acquire shares of Common Stock under the restricted stock purchase agreement shall be transferableby the Participant only upon such terms and conditions as are set forth in the restricted stock purchase agreement, as the Board shall determine in its discretion, so long as Common Stock awarded under the restricted stock purchase agreement remainssubject to the terms of the restricted stock purchase agreement. 

**8. Covenants of the Company.**

**(a) Availability of Shares.** During the terms of the Stock Awards, the Company shall keep available at all times the number of shares of CommonStock required to satisfy such Stock Awards. 

**(b) Securities Law Compliance.** The Company shall seek to obtain from each regulatorycommission or agency having jurisdiction over the Plan such authority as may be required to grant Stock Awards and to issue and sell shares of Common Stock upon exercise of the Stock Awards; provided, however, that this undertaking shall not requirethe Company to register under the Securities Act the Plan, any Stock Award or any Common Stock issued or 

 

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issuable pursuant to any such Stock Award. If, after reasonable efforts, the Company is unable to obtain from any such regulatory commission or agency theauthority which counsel for the Company deems necessary for the lawful issuance and sale of Common Stock under the Plan, the Company shall be relieved from any liability for failure to issue and sell Common Stock upon exercise of such Stock Awardsunless and until such authority is obtained. 

**9. Use of Proceeds from Stock.**

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

**10. Miscellaneous.**

**(a) Acceleration ofExercisability and Vesting.** The Board shall have the power to accelerate the time at which a Stock Award may first be exercised or the time during which a Stock Award or any part thereof will vest in accordance with the Plan, notwithstanding theprovisions in the Stock Award stating the time at which it may first be exercised or the time during which it will vest. 

**(b) ShareholderRights.** No Participant shall be deemed to be the holder of, or to have any of the rights of a holder with respect to, any shares of Common Stock subject to such Stock Award unless and until such Participant has satisfied all requirements forexercise of the Stock Award pursuant to its terms. 

**(c) No Employment or other Service Rights.** Nothing in the Plan or any instrumentexecuted or Stock Award granted pursuant thereto shall confer upon any Participant any right to continue to serve the Company or an Affiliate in the capacity in effect at the time the Stock Award was granted or shall affect the right of the Companyor an Affiliate to terminate (i) the employment of an Employee with or without notice and with or without cause, (ii) the service of a Consultant pursuant to the terms of such Consultant’s agreement with the Company or an Affiliate or(iii) the service of a Director pursuant to the Bylaws of the Company or an Affiliate, and any applicable provisions of the corporate law of the state in which the Company or the Affiliate is incorporated, as the case may be. 

**(d) Incentive Stock Option $100,000 Limitation.** To the extent that the aggregate Fair Market Value (determined at the time of grant) of CommonStock with respect to which Incentive Stock Options are exercisable for the first time by any Optionee during any calendar year (under all plans of the Company and its Affiliates) exceeds one hundred thousand dollars ($100,000), the Options orportions thereof which exceed such limit (according to the order in which they were granted) shall be treated as Nonstatutory Stock Options. 

**(e) Investment Assurances.** The Company may require a Participant, as a condition of exercising or acquiring Common Stock under any Stock Award, (i) to give written assurances satisfactory to the Company as to theParticipant’s knowledge and experience in financial and business matters and/or to employ a purchaser representative reasonably satisfactory to the Company who is knowledgeable and experienced in financial and business matters and that he orshe is capable of evaluating, alone or together with the purchaser representative, the merits and risks of exercising the Stock Award; and (ii) to give written assurances satisfactory to the 

 

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Company stating that the Participant is acquiring Common Stock subject to the Stock Award for the Participant’s own account and not with any presentintention of selling or otherwise distributing the Common Stock. The foregoing requirements, and any assurances given pursuant to such requirements, shall be inoperative if (1) the issuance of the shares of Common Stock upon the exercise oracquisition of Common Stock under the Stock Award has been registered under a then currently effective registration statement under the Securities Act or (2) as to any particular requirement, a determination is made by counsel for the Companythat such requirement need not be met in the circumstances under the then applicable securities laws. The Company may, upon advice of counsel to the Company, place legends on stock certificates issued under the Plan as such counsel deems necessaryor appropriate in order to comply with applicable securities laws, including, but not limited to, legends restricting the transfer of the Common Stock. 

**(f) Withholding Obligations.** To the extent provided by the terms of a Stock Award Agreement, the Participant may satisfy any federal, state or local tax withholding obligation relating to the exercise oracquisition of Common Stock under a Stock Award by any of the following means (in addition to the Company’s right to withhold from any compensation paid to the Participant by the Company) or by a combination of such means: (i) tendering acash payment; (ii) authorizing the Company to withhold shares of Common Stock from the shares of Common Stock otherwise issuable to the Participant as a result of the exercise or acquisition of Common Stock under the Stock Award, provided,however, that no shares of Common Stock are withheld with a value exceeding the minimum amount of tax required to be withheld by law; or (iii) delivering to the Company owned and unencumbered shares of Common Stock. 

**11. Adjustments upon Changes in Stock.**

**(a)Capitalization Adjustments.** If any change is made in the Common Stock subject to the Plan, or subject to any Stock Award, without the receipt of consideration by the Company (through merger, consolidation, reorganization, recapitalization,reincorporation, stock dividend, dividend in property other than cash, stock split, liquidating dividend, combination of shares, exchange of shares, change in corporate structure or other transaction not involving the receipt of consideration by theCompany), the Plan will be appropriately adjusted in the class(es) and maximum number of securities subject to the Plan pursuant to subsection 4(a) and the maximum number of securities subject to award to any person pursuant to subsection 5(c), andthe outstanding Stock Awards will be appropriately adjusted in the class(es) and number of securities and price per share of Common Stock subject to such outstanding Stock Awards. The Board shall make such adjustments, and its determination shall befinal, binding and conclusive. (The conversion of any convertible securities of the Company shall not be treated as a transaction “without receipt of consideration” by the Company.) 

**(b) Change of Control.** In the event of a Change of Control (as defined below), the Company shall, at least fifteen (15) days prior to suchChange of Control, notify in writing all Optionees of such Change of Control and of the acceleration of the vesting of the outstanding Stock Awards held by such Optionees. Such notice shall give such Opionees the right to exercise their Stock Awardsimmediately prior to the Change of Control. Such acceleration of vesting and right to exercise shall be conditioned upon the consummation of the transaction constituting the Change of Control. In the event any surviving or acquiring corporationassumes 

 

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any Stock Awards outstanding under the Plan or substitutes similar stock awards for those outstanding under the Plan, then, to the extent not exercised priorto the Change of Control, the vesting of such assumed or substituted Stock Awards shall be fully accelerated at the time of the Change of Control and shall remain fully vested at all times thereafter. 

For purposes of the Plan, a “Change of Control” shall mean: (i) a sale of sixty percent (60%) or more of the assets of the Company orthe Subsidiary; (ii) a merger or consolidation involving the Company or the Subsidiary in which the Company or the Subsidiary is not the surviving corporation and the shareholders of the Company immediately prior to the completion of suchtransaction hold, directly or indirectly, less than fifty percent (50%) of the beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act, or comparable successor rules) of the securities of the survivingcorporation (excluding any shareholders who possessed a beneficial ownership interest in the surviving corporation prior to the completion of such transaction); (iii) a reverse merger involving the Company or the Subsidiary in which the Companyor the Subsidiary, as the case may be**,** is the surviving corporation but the shares of Common Stock of the Company or the Subsidiary outstanding immediately preceding the merger are converted by virtue of the merger into other property,whether in the form of securities, cash or otherwise, and the shareholders of the Company immediately prior to the completion of such transaction hold, directly or indirectly, less than fifty percent (50%) of the beneficial ownership (withinthe meaning of Rule 13d-3 promulgated under the Exchange Act, or comparable successor rules) of the surviving entity or, if more than one entity survives the transaction, the controlling entity; (iv) an acquisition by any person, entity orgroup within the meaning of Section 13(d) or 14(d) of the Exchange Act or any comparable successor provisions (excluding any employee benefit plan, or related trust, sponsored or maintained by the Company or an Affiliate of the Company) of thebeneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act, or comparable successor rules) of securities of the Company or the Subsidiary representing at least fifty percent (50%) of the combined voting powerentitled to vote in the election of directors; or, (v) in the event that the individuals who, as of the effective date of the Plan, are members of the Board (the “Incumbent Board”), cease for any reason to constitute at least fiftypercent (50%) of the Board. (If the election or nomination for election by the Company’s shareholders, of any new member of the Board is approved by a vote of at least fifty percent (50%) of the Incumbent Board, such new member of theBoard shall be considered as a member of the Incumbent Board.) Notwithstanding the foregoing, for the purposes of this Plan and with respect to any and all clauses of this Section of the Plan, an initial public offering of the securities of theCompany (an “IPO”) or any transactions or events constituting part of an IPO shall not be deemed to constitute or in any way effect a Change of Control. 

**12. Amendment of the Plan and Stock Awards.**

**(a) Amendment of Plan.** The Board at any time, and from time to time, mayamend the Plan. However, except as provided in Section 11 relating to adjustments upon changes in Common Stock, no amendment shall be effective unless approved by the shareholders of the Company to the extent shareholder approval is necessaryto satisfy the requirements of Section 422 of the Code, Rule 16b-3 or any Nasdaq or securities exchange listing requirements. 

 

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(**b) Shareholder Approval.** The Board may, in its sole discretion, submit any other amendment to thePlan for shareholder approval, including, but not limited to, amendments to the Plan intended to satisfy the requirements of Section 162(m) of the Code and the regulations thereunder regarding the exclusion of performance-based compensationfrom the limit on corporate deductibility of compensation paid to certain executive officers. 

**(c) Contemplated Amendments.** It isexpressly contemplated that the Board may amend the Plan in any respect the Board deems necessary or advisable to provide eligible Employees with the maximum benefits provided or to be provided under the provisions of the Code and the regulationspromulgated thereunder relating to Incentive Stock Options and/or to bring the Plan and/or Incentive Stock Options granted under it into compliance therewith. 

**(d) No Impairment of Rights.** Rights under any Stock Award granted before amendment of the Plan shall not be impaired by any amendment of the Plan unless (i) the Company requests the consent of theParticipant and (ii) the Participant consents in writing. 

**(e) Amendment of Stock Awards.** The Board at any time, and from timeto time, may amend the terms of any one or more Stock Awards (including, but not limited to, the extension of the post-termination exercise period of an Option); provided, however, that the rights under any Stock Award shall not be impaired by anysuch amendment unless (i) the Company requests the consent of the Participant and (ii) the Participant consents in writing. 

**13. Terminationor Suspension of the Plan.**

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

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

**14. Effective Date ofPlan.**

The Plan became effective on the IPO Date and the Plan was approved by the shareholders of the Company on November 17, 2000and May 23, 2002. 

**15. Choice of Law.**

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

 

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