**EXHIBIT 10.64**

 

**PATH 1 NETWORK TECHNOLOGIES, INC.**

**2004 EQUITY INCENTIVE PLAN**

 

 

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

 

**(b)****Available Stock Awards.** The purpose of the Plan is toprovide a means by which eligible recipients of Stock Awards may be given an opportunity to benefit from increases in the value of the Common Stock through the granting of the following Stock Awards: (i) Incentive Stock Options, (ii) NonstatutoryStock Options, (iii) Restricted Stock Awards, (iv) Stock Appreciation Rights, (v) Phantom Stock Awards and (vi) Other Stock Awards. 

 

**(c)****General Purpose.** The Company, by means of the Plan, seeks to retain the services of the group of persons eligible to receive StockAwards, 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. 

 

 

**(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)*****“Capitalization Adjustment”*** has the meaning ascribed to that term in Section 11(a). 

 

**(d)*****“Cause”*** means, with respect to aParticipant, (i) such Participant’s conviction of, or plea of “guilty” or “no contest” to, a felony or any crime involving fraud, under the laws of the United States or any state thereof, (ii) such Participant’sunauthorized excessive absence from work for reasons other than illness, (iii) such Participant’s use of alcohol, illegal drugs or any other illegal substance in such a manner as to interfere with the performance of such Participant’sduties with the Company, (iv) such Participant’s refusal to follow reasonable directives from such Participant’s superior, (v) such Participant’s unauthorized use or disclosure of the Company’s confidential information or tradesecrets, (vi) such Participant’s gross misconduct or material failure to comply with the Company’s written policies or rules, or (vii) such Participant’s failure to perform any material duty where such failure has continued for 30days after such Participant has been notified in writing by the Company of the specific nature of such Participant’s failure to perform. Any determination by the Board that the Continuous Service of a Participant was terminated by reason ofdismissal without Cause for the purposes of outstanding Stock Awards held by such Participant shall have no effect upon any determination of the rights or obligations of the Company or such Participant for any other purpose. 

 

**(e)*****“Change in Control”*** means the occurrence, in a single transaction orin a series of related transactions, of any one or more of the following events: 

 

**(i)**any Exchange Act Person becomes the Owner, directly or indirectly, of securities of the Company representing more than fiftypercent (50%) of the combined voting power of the Company’s then outstanding securities other than by virtue of a merger, consolidation or similar transaction. Notwithstanding the foregoing, a Change in Control shall not be deemed to occur (A)on account of the acquisition of securities of the Company by an investor, any affiliate thereof or any other Exchange Act Person from the Company in a transaction or series of related transactions the primary purpose of which is to obtain financingfor the Company through the issuance of equity securities or (B) solely because the level of Ownership held by any Exchange Act Person (the “***Subject Person***”) exceeds the designated percentage threshold of the outstandingvoting securities as a result of a repurchase or other acquisition of voting securities by the Company reducing the number of shares outstanding, provided that if a Change in Control would occur (but for the operation of this sentence) as a resultof the acquisition of voting securities by the Company, and after such share acquisition, the Subject Person becomes the Owner of any additional voting securities that, assuming the repurchase or other acquisition had not occurred, increases thepercentage of the then outstanding voting securities Owned by the Subject Person over the designated percentage threshold, then a Change in Control shall be deemed to occur;****

 

**(ii)**there is consummated a merger, consolidation or similar transaction involving (directly orindirectly) the Company and, immediately after the consummation of such merger, consolidation or similar transaction, the stockholders of the Company immediately prior thereto do not Own, directly or indirectly, either (A) outstanding votingsecurities representing more than fifty percent (50%) of the combined outstanding voting power of the surviving Entity in such merger, consolidation or similar transaction or (B) more than fifty percent (50%) of the combined outstanding voting powerof the parent of the surviving Entity in such merger, consolidation or similar transaction, in each case in substantially the same proportions as their Ownership of the outstanding voting securities of the Company immediately prior to suchtransaction; 

 

**(iii)**the stockholders ofthe Company approve or the Board approves a plan of complete dissolution or liquidation of the Company, or a complete dissolution or liquidation of the Company shall otherwise occur; 

 

**(iv)**there is consummated a sale, lease, license or other disposition of all or substantially all ofthe consolidated assets of the Company and its Subsidiaries, other than a sale, lease, license or other disposition of all or substantially all of the consolidated assets of the Company and its Subsidiaries to an Entity, more than fifty percent(50%) of the combined voting power of the voting securities of which are Owned by stockholders of the Company in substantially the same proportions as their Ownership of the outstanding voting securities of the Company immediately prior to suchsale, lease, license or other disposition; or 

 

**(v)**individuals who, on the date this Plan is adopted by the Board, are members of the Board (the ***“Incumbent Board”***) cease for any reason to constitute at least a majority of the members of the Board;*provided, however,* that if the appointment or election (or 

 

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nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office,such new member shall, for purposes of this Plan, be considered as a member of the Incumbent Board.****

 

Notwithstanding the foregoing or any other provision of this Plan, the definition of Change in Control (or any analogous term) in an individual writtenagreement between the Company or any Affiliate and the Participant shall supersede the foregoing definition with respect to Stock Awards subject to such agreement (it being understood, however, that if no definition of Change in Control or anyanalogous term is set forth in such an individual written agreement, the foregoing definition shall apply). 

 

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

 

**(g)*****“Committee”*** means a committee of one (1)or more members of the Board appointed by the Board in accordance with Section 3(c). 

 

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

 

**(i)*****“Company”*** means Path 1 Network Technologies, Inc., a Delaware corporation. 

 

**(j)*****“Consultant”*** means any person, includingan advisor, engaged by the Company or an Affiliate to render consulting or advisory services and who is compensated for such services. However, the term “Consultant” shall not include Directors who are not compensated by the Company fortheir services as Directors, and the payment of a fee by the Company for services which the Board determines in its sole discretion are services as a Director, shall not cause a Director to be considered a “Consultant” for purposes of thePlan. 

 

**(k)*****“Continuous Service”***means that the Participant’s service with the Company or an Affiliate, whether as an Employee, Director or Consultant, is not interrupted or terminated. A change in the capacity in which the Participant renders service to the Company or anAffiliate 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 service with the Company or an Affiliate,shall not terminate a Participant’s Continuous Service. For example, a change in status from an Employee of the Company to a Consultant of an Affiliate or to a Director shall not constitute an interruption of Continuous Service. The Board orthe 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, militaryleave or any other personal leave. Notwithstanding the foregoing, a leave of absence shall be treated as Continuous Service for purposes of vesting in a Stock Award only to such extent as may be provided in the Company’s leave of absence policyor in the written terms of the Participant’s leave of absence. 

 

**(l)*****“Corporate Transaction”*** means the occurrence, in a single transaction or in a series of related transactions, of any one or more of the following events: 

 

**(i)**a sale or other disposition of all orsubstantially all, as determined by the Board in its discretion, of the consolidated assets of the Company and its Subsidiaries; 

 

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**(ii)**a sale or other disposition of at least ninety percent (90%) of theoutstanding securities of the Company; 

 

**(iii)**a merger, consolidation or similar transaction following which the Company is not the surviving corporation; or 

 

**(iv)**a merger, consolidation or similar transaction following which the Company is the surviving corporation but the shares ofCommon Stock outstanding immediately preceding the merger, consolidation or similar transaction are converted or exchanged by virtue of the merger, consolidation or similar transaction into other property, whether in the form of securities, cash orotherwise. 

 

**(m)*****“CoveredEmployee”*** means the chief executive officer and the four (4) other highest compensated officers of the Company for whom total compensation is required to be reported to stockholders under the Exchange Act, as determined for purposes ofSection 162(m) of the Code. 

 

**(n)*****“Director”*** means a member of the Board. 

 

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

 

**(p)*****“Employee”*** means any person employed by the Company or an Affiliate. Service as aDirector or payment of a fee by the Company or an Affiliate shall not be sufficient to constitute “employment” by the Company or such Affiliate. 

 

**(q)*****“Entity”*** means a corporation, partnership or other entity. 

 

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

 

**(s)*****“Exchange Act Person”***means any natural person, Entity or “group” (within the meaning of Section 13(d) or 14(d) of the Exchange Act), except that “Exchange Act Person” shall not include (A) the Companyor any Subsidiary of the Company, (B) any employee benefit plan of the Company or any Subsidiary of the Company or any trustee or other fiduciary holding securities under an employee benefit plan of the Company or any Subsidiary of the Company, (C)an underwriter temporarily holding securities pursuant to an offering of such securities, or (D) an Entity Owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their Ownership of stock of theCompany. 

 

**(t)*****“Fair MarketValue”*** means, as of any date, the value of the Common Stock determined as follows: 

 

**(i)**If the Common Stock is listed on any established stock exchange or traded on the Nasdaq National Market or the Nasdaq SmallCapMarket, 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 oftrading in the Common Stock) on the last market trading day prior to the day 

 

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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 CommonStock, the Fair Market Value shall be determined in good faith by the Board. 

 

**(u)*****“Incentive Stock Option”*** means an Option to purchase shares of Common Stock that is intended to qualify as an incentive stock option within the meaning of Section 422 of the Code andthe regulations promulgated thereunder. 

 

**(v)*****“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, either directly or indirectly, from the Company orits 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 promulgated pursuant to theSecurities Act (***“Regulation S-K”***)), does not possess an interest in any other transaction for which disclosure would be required under Item 404(a) of Regulation S-K, and is not engaged in a business relationship for whichdisclosure would be required pursuant to Item 404(b) of Regulation S-K; or (ii) is otherwise considered a “non-employee director” for purposes of Rule 16b-3. 

 

**(w)*****“Nonstatutory Stock Option”*** means an Option to purchase shares of Common Stock that isnot intended to qualify as an Incentive Stock Option. 

 

**(x)*****“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. 

 

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

 

**(z)*****“Option Agreement”*** means a written agreement between the Company and an Optionholder evidencing the terms and conditions of an individual Option grant. Each Option Agreement shall be subject to the termsand conditions of the Plan. 

 

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

 

**(bb)*****“Other Stock Award”*** means an award based in whole or in part by reference to the CommonStock which is granted pursuant to the terms and conditions of Section 7(d). 

 

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

 

**(dd)*****“Outside Director”*** means a Director who either (i) is not a current employee of the Company or an “affiliatedcorporation” (within the meaning of Treasury Regulations promulgated under Section 162(m) of the Code), is not a former employee of the Company or an 

 

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“affiliated corporation” who receives compensation for prior services (other than benefits under a tax-qualified retirement plan) during thetaxable year, has not been an officer of the Company or an “affiliated corporation”, and does not receive remuneration from the Company or an “affiliated corporation,” either directly or indirectly, in any capacity other than asa Director or (ii) is otherwise considered an “outside director” for purposes of Section 162(m) of the Code. 

 

**(ee)*****“Own,” “Owned,” “Owner,” “Ownership”***A person or Entity shall be deemed to“Own,” to have “Owned,” to be the “Owner” of, or to have acquired “Ownership” of securities if such person or Entity, directly or indirectly, through any contract, arrangement, understanding, relationship orotherwise, has or shares voting power, which includes the power to vote or to direct the voting, with respect to such securities. 

 

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

 

**(gg)*****“Phantom Stock Award”***means a right to receive shares of Common Stock which is granted pursuant to the terms and conditions of Section 7(b). 

 

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

 

**(ii)*****“Plan”*** means this Path 1 NetworkTechnologies, Inc. 2004 Equity Incentive Plan. 

 

**(jj)*****“Restricted Stock Award”*** means an award of shares of Common Stock which is granted pursuant to the terms and conditions of Section 7(a). 

 

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

 

**(ll)*****“Rule 16b-3”*** means Rule 16b-3 promulgatedunder the Exchange Act or any successor to Rule 16b-3, as in effect from time to time. 

 

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

 

**(nn)*****“Stock Appreciation Right”*** means a right to receive the appreciation of Common Stock that is granted pursuant to theterms and conditions of Section 7(c). 

 

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

 

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**(pp)*****“Stock Award”*** means any right granted under the Plan, including anOption, a Restricted Stock Award, a Stock Appreciation Right, a Phantom Stock Award or any Other Stock Award. 

 

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

 

**(rr)*****“Subsidiary”*** means, with respect to the Company, (i) any corporation of which more than fifty percent (50%) of theoutstanding capital stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether, at the time, stock of any other class or classes of such corporation shall have or might have votingpower by reason of the happening of any contingency) is at the time, directly or indirectly, Owned by the Company, and (ii) any partnership in which the Company has a direct or indirect interest (whether in the form of voting or participation inprofits or capital contribution) of more than fifty percent (50%). 

 

**(ss)*****“Ten Percent Stockholder”*** 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 allclasses of stock of the Company or of any of its Affiliates. 

 
**3.****ADMINISTRATION.**
 

**(a)****Administration by Board.** The Board shall administer the Plan unless and until the Board delegates administration to a Committee, asprovided in Section 3(c). 

 

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

 

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

 

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

 

**(iii)**To effect, atany time and from time to time, with the consent of any adversely affected Optionholder, (1) the reduction of the exercise price of any outstanding Option under the Plan, (2) the cancellation of any outstanding Option under the Plan and the grant insubstitution therefor of (A) a new Option under the Plan or another equity plan of the Company covering the same or a different number of shares of Common Stock, (B) a Restricted Stock Award (including a stock bonus), (C) a Stock Appreciation Right,(D) a Phantom Stock 

 

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Award (E) an Other Stock Award, (F) cash and/or (G) other valuable consideration (as determined by the Board, in its sole discretion), or (3) any otheraction that is treated as a repricing under generally accepted accounting principles. 

 

**(iv)**To amend the Plan or a Stock Award as provided in Section 12. 

 

**(v)**To terminate or suspend the Plan as provided in Section 13. 

 

**(vi)**Generally, to exercise such powers and toperform such acts as the Board deems necessary or expedient to promote the best interests of the Company and that are not in conflict with the provisions of the Plan. 

 

**(c)****Delegation to Committee.**

 

**(i)****General.** The Board may delegate administration of the Plan to a Committee or Committees ofone or more members of 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 connectionwith the administration of the Plan, the powers theretofore possessed by the Board, including the power to delegate to a subcommittee any of the administrative powers the Committee is authorized to exercise (and references in this Plan to the Boardshall thereafter be to the Committee 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 andrevest in the Board the administration of the Plan. 

 

**(ii)****Section 162(m) and Rule 16b-3 Compliance.** In the discretion of the Board, the 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 moreNon-Employee Directors, in accordance with Rule 16b-3. In addition, the Board or the Committee, in their discretion, may (1) delegate to a committee of one or more members of the Board who need not be Outside Directors the authority to grant StockAwards to eligible persons who are either (a) not then Covered Employees and are not expected to be Covered Employees at the time of recognition of income resulting from such Stock Award, or (b) not persons with respect to whom the Company wishes tocomply with Section 162(m) of the Code, and/or (2) delegate to a committee of one or more members of the Board who need not be Non-Employee Directors the authority to grant Stock Awards to eligible persons who are not then subject to Section 16 ofthe Exchange Act. 

 

**(d)****Delegation to an Officer.**The Board may delegate to one or more Officers of the Company the authority to do one or both of the following (i) designate Officers and Employees of the Company or any of its Subsidiaries to be recipients of Stock Awards and (ii) determine thenumber of shares of Common Stock to be subject to such Stock Awards granted to such Officers and Employees of the Company; *provided, however,*that the Board resolutions regarding such delegation shall specify the total number of shares ofCommon Stock that may be subject to the Stock Awards granted by such Officer and that such Officer may not grant a Stock Award to himself or herself. Notwithstanding anything to the contrary in this Section 3(d), the Board may not delegate to anOfficer authority to determine the Fair Market Value of the Common Stock pursuant to Section 2(t)(ii) above. 

 

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

 
**4.****SHARES SUBJECTTOTHE PLAN.**
 

**(a)****Share Reserve.** Subject to the provisions of Section 11(a)relating to Capitalization Adjustments, the shares of Common Stock that may be issued pursuant to Stock Awards shall not exceed in the aggregate nine-hundred thousand (900,000) shares of Common Stock. 

 

**(b)****Reversion of Shares to the Share Reserve**. If any StockAward shall for any reason expire or otherwise terminate, in whole or in part, without having been exercised in full, or if any shares of Common Stock issued to a Participant pursuant to a Stock Award are forfeited back to or repurchased by theCompany, including, but not limited to, any repurchase or forfeiture caused by the failure to meet a contingency or condition required for the vesting of such shares, then the shares of Common Stock not acquired under such Stock Award, or forfeitedback to or repurchased by the Company, shall revert to and again become available for issuance under the Plan. If any shares subject to a Stock Award are not delivered to a Participant because such shares are withheld for the payment of taxes or theStock Award is exercised through a reduction of shares subject to the Stock Award (*i.e.*, “net exercised”), the number of shares that are not delivered to the Participant as a result thereof shall revert to and again become availablefor issuance under the Plan. If the exercise price of any Stock Award is satisfied by tendering shares of Common Stock held by the Participant (either by actual delivery or attestation), then the number of shares so tendered shall revert to andagain become available for issuance under the Plan. Notwithstanding anything to the contrary in this Section 4(b), subject to the provisions of Section 11(a) relating to Capitalization Adjustments the aggregate maximum number of shares of CommonStock that may be issued as Incentive Stock Options shall be nine-hundred thousand (900,000) shares of Common Stock. 

 

**(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 StockOptions may be granted to Employees, Directors and Consultants. 

 

**(b)****Ten Percent Stockholders.** A Ten Percent Stockholder shall not be granted an Incentive Stock Option unless the exercise price of such Option is at least one hundred ten percent (110%) of the Fair Market Value of the CommonStock on 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 on Annual Grants.** Subject to the provisions of Section 11(a) relating to Capitalization Adjustments, at suchtime as the Company may be subject to the applicable provisions of Section 162(m) of the Code, no Employee shall be eligible 

 

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to be granted Options or Stock Appreciation Rights covering more than seven-thousand (700,000) shares of Common Stock during any calendar year. 

 

**(d)****Consultants.** A Consultant shall not be eligible for thegrant of a Stock 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 suchConsultant because of the nature of the services that the Consultant is providing to the Company, because the Consultant is not a natural person, or because of any other rule governing the use of Form S-8, unless the Company determines both (i) thatsuch grant (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. 

 
**6.****OPTION PROVISIONS.**
 

Each Option shall be in such form and shall contain such terms and conditions as the Board shall deem appropriate. All Options shall be separatelydesignated Incentive Stock Options or Nonstatutory Stock Options at the time of grant, and, if certificates are issued, a separate certificate or certificates shall be issued for shares of Common Stock purchased on exercise of each type of Option.The provisions of separate Options need not be identical, but each Option shall include (through incorporation of provisions hereof by reference in the Option or otherwise) the substance of each of the following provisions: 

 

**(a)****Term.** The Board shall determine the term of an Option;*provided that,*subject to the provisions of Section 5(b) regarding Ten Percent Stockholders, no Incentive Stock Option shall be exercisable after the expiration of ten (10) years from the date on which it was granted. 

 

**(b)****Exercise Price of an Incentive Stock Option.** Subject to theprovisions of Section 5(b) regarding Ten Percent Stockholders, 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 date theOption 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 Board, in its discretion, shall determine the exercise price of each Nonstatutory Stock Option. 

 

**(d)****Consideration.** The purchase price of Common Stock acquiredpursuant to an Option shall be paid, to the extent permitted by applicable law, 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 at the time the Option is exercised, (2) according to a deferred payment or other similar arrangement with the Optionholder, (3) by a “net exercise” of theOption (as further described below), (4) pursuant to a program developed under Regulation T as promulgated by 

 

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the Federal Reserve Board that, prior to the issuance of Common Stock, results in either the receipt of cash (or check) by the Company or the receipt ofirrevocable instructions to pay the aggregate exercise price to the Company from the sales proceeds or (5) in any other form of legal consideration that may be acceptable to the Board. Unless otherwise specifically provided in the Option, thepurchase 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 havebeen 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 time that the Company is incorporated in Delaware, payment of the Common Stock’s“par value,” as defined in the Delaware General Corporation Law, shall not be made by deferred payment. 

 

In the case of any deferred payment arrangement, interest shall be compounded at least annually and shall be charged at the minimum rate of interest necessary to avoid(1) the treatment as interest, under any applicable provisions of the Code, of any amounts other than amounts stated to be interest under the deferred payment arrangement and (2) the treatment of the Option as a variable award for financialaccounting purposes. 

 

In the case of a “net exercise”of an Option, the Company will not require a payment of the exercise price of the Option from the Participant but will reduce the number of shares of Common Stock issued upon the exercise by the largest number of whole shares that has a Fair MarketValue that does not exceed the aggregate exercise price. With respect to any remaining balance of the aggregate exercise price, the Company shall accept a cash payment from the Participant. The shares of Common Stock so used to pay the exerciseprice of an Option under a “net exercise” will be considered to have resulted from the exercise of the Option, and accordingly, the Option will not again be exercisable with respect to such shares, the shares actually delivered to theParticipant, and any shares withheld for purposes of tax withholding. 

 

**(e)****Transferability of an Incentive Stock Option.** An Incentive Stock Option shall not be transferable except by will or by the laws of descent and distribution and shall be exercisable during the lifetime of the Optionholderonly by the Optionholder. Notwithstanding the foregoing, the Optionholder may, by delivering written notice to the Company, in a form provided by or otherwise satisfactory to the Company, designate a third party who, in the event of the death of theOptionholder, 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 Option Agreement. If the Nonstatutory Stock Option does not provide for transferability, thenthe Nonstatutory Stock Option shall not be transferable except by will or by the laws of descent and distribution and shall be exercisable during the lifetime of the Optionholder only by the Optionholder. Notwithstanding the foregoing, theOptionholder may, by delivering written notice to the Company, in a form provided by or otherwise satisfactory to the Company, designate a third party who, in the event of the death of the Optionholder, shall thereafter be entitled to exercise theOption. 

 

**(g)****Vesting Generally.** The total numberof shares of Common Stock subject to an Option 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 

 

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the time or times when it may be exercised (which may be based on performance or other criteria) as the Board may deem appropriate. The vesting provisions ofindividual Options may vary. The provisions of this Section 6(g) are subject to any Option provisions governing the minimum number of shares of Common Stock as to which an Option may be exercised. 

 

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

 

**(i)****Extension of Termination Date.** An Optionholder’s Option Agreement may (but need not) provide that if the exercise of the Option following the termination of the Optionholder’s Continuous Service (for reasonsother than Cause or upon the Optionholder’s death or Disability) would be prohibited at any time solely because the issuance of shares of Common Stock would violate the registration requirements under the Securities Act, then the Option shallterminate on the earlier of (i) the expiration of the term of the Option as set forth in the Option Agreement or (ii) the expiration of a period of three (3) months after the termination of the Optionholder’s Continuous Service during which theexercise of the Option would not be in violation of such registration requirements. 

 

**(j)****Disability of Optionholder.** In the event that an Optionholder’s Continuous Service terminates as a result of the Optionholder’s Disability, the Optionholder may exercise his or her Option(to the extent that the Optionholder was entitled to exercise such Option as of the date of termination), but only within such period of time ending on the earlier of (i) the expiration of the term of the Option as set forth in the Option Agreementor (ii) the date twelve (12) months following such termination (or such longer or shorter period specified in the Option Agreement). If, after termination of Continuous Service, the Optionholder does not exercise his or her Option within the timespecified herein or in the Option Agreement (as applicable), the Option shall terminate. 

 

**(k)****Death of Optionholder.** In the event that (i) an Optionholder’s Continuous Service terminates as a result of the Optionholder’s death or (ii) the Optionholder dies within the period (if any)specified in the Option Agreement after the termination of the Optionholder’s Continuous Service for a reason other than death, then the Option may be exercised (to the extent the Optionholder was entitled to exercise such Option as of the dateof death) by the Optionholder’s estate, by a person who acquired the right to exercise the Option by bequest or inheritance or by a person designated to exercise the option upon the Optionholder’s death pursuant to Section 6(e) or 6(f),but only within the period ending on the earlier of (1) the expiration of the term of the Option as set forth in the Option Agreement or (2) the date eighteen (18) months following the date of death (or such longer or shorter period specified in theOption 

 

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Agreement). If, after death, the Option is not exercised within the time specified herein or in the Option Agreement (as applicable), the Option shallterminate. 

 

**(l)****Termination for Cause.** In theevent an Optionholder’s Continuous Service is terminated for Cause, the Option shall terminate upon the termination date of such Optionholder’s Continuous Service and the Optionholder shall be prohibited from exercising his or her Optionfrom and after the time of such termination. 

 

**(m)****Early Exercise.** The Option may, but need not, include a provision whereby the Optionholder may elect at any time before the Optionholder’s Continuous Service terminates to exercise the Option as to any part or all of the shares ofCommon 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 repurchase option in favor of the Company or to any other restriction the Board determines to beappropriate. The Company will not exercise its repurchase option until at least six (6) months (or such longer or shorter period of time required to avoid a charge to earnings for financial accounting purposes) have elapsed following exercise of theOption unless the Board otherwise specifically provides in the Option. 

 
**7.****PROVISIONSOF STOCK AWARDSOTHERTHAN OPTIONS.**
 

**(a)****Restricted Stock Awards.**Each Restricted Stock Award Agreement shall be in such form and shall contain such terms and conditions as the Board shall deem appropriate. At the Board’s election, shares of Common Stock may be (i) held in book entry form subject to theCompany’s instructions until any restrictions relating to the Restricted Stock Award lapse; or (ii) evidenced by a certificate, which certificate shall be held in such form and manner as determined by the Board. The terms and conditions ofRestricted Stock Award Agreements may change from time to time, and the terms and conditions of separate Restricted Stock Award Agreements need not be identical, but each shall include (through incorporation of the provisions hereof by reference inthe agreement or otherwise) the substance of each of the following provisions: 

 

**(i)****Purchase Price.** At the time of the grant of a Restricted Stock Award, the Board will determine the price to be paid bythe Participant for each share subject to the Restricted Stock Award. To the extent required by law, the price to be paid by the Participant for each share of the Restricted Stock Award will not be less than the par value of a share of Common Stock.A Restricted Stock Award may be awarded as a stock bonus (*i.e.,*with no cash purchase price to be paid) to the extent permissible under applicable law. 

 

**(ii)****Consideration.** At the time of the grant of a Restricted Stock Award, the Board will determine the considerationpermissible for the payment of the purchase price of the Restricted Stock Award. The purchase price of Common Stock acquired pursuant to the Restricted Stock Award shall be paid in one of the following ways: (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; (iii) by services rendered or to be rendered to the Company; or (iv) in any other form of legal consideration that may be acceptableto the Board in its discretion; *provided, however,*that at any time that the Company is incorporated in Delaware, the Common Stock’s “par value,” as defined in the Delaware General Corporation Law, shall not be paid by 

 

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deferred payment and must be paid in a form of consideration that is permissible under the Delaware General Corporation Law. 

 

**(iii)****Vesting.** Shares of Common Stock acquiredunder a Restricted Stock Award 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 that aParticipant’s Continuous Service terminates, the Company shall have the right, but not the obligation, to repurchase or otherwise reacquire any or all of the shares of Common Stock held by the Participant that have not vested as of the date oftermination under the terms of the Restricted Stock Award Agreement. At the Board’s election, the repurchase right may be at the least of: (i) the Fair Market Value on the relevant date; (ii) the Participant’s original cost; or (iii) ifthe Participant paid the purchase price for the shares of Common Stock with services rendered, then for no consideration. The Company shall not be required to exercise its repurchase option until at least six (6) months (or such longer or shorterperiod of time required to avoid a charge to earnings for financial accounting purposes) have elapsed following the purchase of the restricted stock unless otherwise determined by the Board or provided in the Restricted Stock Award Agreement.

 

**(v)****Transferability.** Rights topurchase or receive shares of Common Stock granted under a Restricted Stock Award shall be transferable by the Participant only upon such terms and conditions as are set forth in the Restricted Stock Award Agreement, as the Board shall determine inits discretion, and so long as Common Stock awarded under the Restricted Stock Award remains subject to the terms of the Restricted Stock Award Agreement. 

 

**(b)****Phantom Stock.**Each Phantom Stock Award Agreement shall be in such form and shall contain such terms and conditions as the Board shalldeem appropriate. The terms and conditions of Phantom Stock Award Agreements may change from time to time, and the terms and conditions of separate Phantom Stock Award Agreements need not be identical, but each shall include (through incorporationof the provisions hereof by reference in the agreement or otherwise) the substance of each of the following provisions:****

 

**(i)****Consideration.** At the time of grant of a Phantom Stock Award, the Board will determine the consideration, if any, to bepaid by the Participant upon delivery of each share of Common Stock subject to the Phantom Stock Award. To the extent required by applicable law, the consideration to be paid by the Participant for each share of Common Stock subject to a PhantomStock Award will not be less than the par value of a share of Common Stock. Such consideration may be paid in any form permitted under applicable law. 

 

**(ii)****Vesting.**At the time of the grant of a Phantom Stock Award, the Board may impose such restrictions or conditions to thevesting of the Phantom Stock Award as it, in its absolute discretion, deems appropriate. 

 

**(iii)****Payment**. A Phantom Stock Award may be settled by the delivery of shares of Common Stock, their cash equivalent, or anycombination of the two, as the Board deems appropriate. 

 

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**(iv)****Additional Restrictions.**At the time of the grant of a Phantom StockAward, the Board, as it deems appropriate, may impose such restrictions or conditions that delay the delivery of the shares of Common Stock (or their cash equivalent) subject to a Phantom Stock Award after the vesting of such Award. 

 

**(v)****Dividend Equivalents.**Dividend equivalentsmay be credited in respect of shares of Common Stock covered by a Phantom Stock Award, as determined by the Board and contained in the Phantom Stock Award Agreement. At the discretion of the Board, such dividend equivalents may be converted intoadditional shares of Common Stock covered by the Phantom Stock Award by dividing (1) the aggregate amount or value of the dividends paid with respect to that number of shares of Common Stock covered by the Phantom Stock Award then credited by (2)the Fair Market Value per share of Common Stock on the payment date for such dividend, or in such other manner as determined by the Board. Any additional shares covered by the Phantom Stock Award credited by reason of such dividend equivalents willbe subject to all the terms and conditions of the underlying Phantom Stock Award Agreement to which they relate. 

 

**(vi)****Termination of Participant’s Continuous Service.**Except as otherwise provided in the applicable Phantom StockAward Agreement, such portion of the Phantom Stock Award that has not vested will be forfeited upon the Participant’s termination of Continuous Service for any reason.****

 

**(c)****Stock Appreciation Rights.**Each Stock Appreciation Right Agreement shall be in such form and shall containsuch terms and conditions as the Board shall deem appropriate. The terms and conditions of Stock Appreciation Right Agreements may change from time to time, and the terms and conditions of separate Stock Appreciation Right Agreements need not beidentical. In addition, the terms of a Stock Appreciation Right may provide for the automatic conversion of such Stock Appreciation Right, with or without further action by the Board or the Participant, into another type of Stock Award, whichconversion may or may not be conditioned on the occurrence of one or more events. Each Stock Appreciation Right Agreement shall include (through incorporation of the provisions hereof by reference in the agreement or otherwise) the substance of eachof the following provisions: ****

 

**(i)****Strike Price and Calculation of Appreciation.** Each Stock Appreciation Right will be denominated in share of Common Stock equivalents. The appreciation distribution payable on the exercise of a Stock Appreciation Right will be not greaterthan an amount equal to the excess of (A) the aggregate Fair Market Value (on the date of the exercise of the Stock Appreciation Right) of a number of shares of Common Stock equal to the number of share of Common Stock equivalents in which theParticipant is vested under such Stock Appreciation Right, and with respect to which the Participant is exercising the Stock Appreciation Right on such date, over (B) an amount that will be determined by the Committee at the time of grant of theStock Appreciation Right. 

 

**(ii)****Vesting.**At the time of the grant of a Stock Appreciation Right, the Board may impose such restrictions or conditions to the vesting of such Stock Appreciate Right as it, in its absolute discretion, deems appropriate. 

 

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**(iii)****Exercise.** To exercise any outstanding Stock Appreciation Right, theParticipant must provide written notice of exercise to the Company in compliance with the provisions of the Stock Appreciation Right Agreement evidencing such Stock Appreciation Right. 

 

**(iv)****Payment**. In general, the appreciation distribution with respect to a Stock AppreciationRight may be paid in one or more of the following forms: Common Stock, cash or any other form of consideration as determined by the Board and set forth in the Stock Appreciation Right Agreement evidencing such Stock Appreciation Right; provided,however, that, unless and until the Plan has been approved by the stockholders of the Company, the appreciation distribution with respect to a Stock Appreciation Right may be paid only in cash, or, at the election of the Participant in his or hersole discretion at the time of exercise, shares of Common Stock having an aggregate Fair Market Value equal to such appreciation distribution (with cash paid in lieu of any fractional shares). 

 

**(v)****Termination of Continuous Service.** In theevent that a Participant’s Continuous Service terminates, the Participant may exercise his or her Stock Appreciation Right (to the extent that the Participant was entitled to exercise such Stock Appreciation Right as of the date of termination)but only within such period of time ending on the earlier of (i) the expiration of the term of the Stock Appreciation Right as set forth in the Stock Appreciation Right Agreement or (ii) the date three (3) months (or such longer or shorter periodspecified in the Stock Appreciation Right Agreement) following the termination of the Participant’s Continuous Service. If, after termination of Continuous Service, the Participant does not exercise his or her Stock Appreciation Right withinthe time specified herein or in the Stock Appreciation Right Agreement (as applicable), the Stock Appreciation Right shall terminate. 

 

**(d)****Other Stock Awards**. Other forms of Stock Awards valued in whole or in part by reference to, or otherwise based on, Common Stock may begranted either alone or in addition to Stock Awards provided for under Section 6 and the preceding provisions of this Section 7. Subject to the provisions of the Plan, the Board shall have sole and complete authority to determine the persons to whomand the time or times at which such Other Stock Awards will be granted, the number of shares of Common Stock (or the cash equivalent thereof) to be granted pursuant to such Awards and all other terms and conditions of such Awards. 

 
**8.****COVENANTSOFTHE COMPANY.**
 

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

 

**(b)****Securities Law Compliance.** The Company shall seek to obtain from each regulatory commission or agency having jurisdiction over the Plan such authority as may be required to grant Stock Awards and toissue and sell shares of Common Stock upon exercise of the Stock Awards; *provided, however,* that this undertaking shall not require the Company to register under the Securities Act the Plan, any Stock Award or any Common Stock issued orissuable pursuant to any such Stock Award. If, after reasonable efforts, the Company is unable to obtain from any such regulatory commission or agency the authority which counsel for the 

 

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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 toissue and sell Common Stock upon exercise of such Stock Awards unless and until such authority is obtained. 

 
**9.****USEOF PROCEEDSFROM STOCK.**
 

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

 
**10.****MISCELLANEOUS.**
 

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

 

**(b)****Stockholder Rights.** No Participant shall bedeemed to be the holder of, or to have any of the rights of a holder with respect to, any shares of Common Stock subject to such Stock Award unless and until such Participant has satisfied all requirements for exercise of the Stock Award pursuant toits terms. 

 

**(c)****No Employment or other ServiceRights.** Nothing in the Plan, any Stock Award Agreement or other instrument executed pursuant thereto or any Stock Award granted pursuant thereto shall confer upon any Participant any right to continue to serve the Company or an Affiliate in thecapacity in effect at the time the Stock Award was granted or shall affect the right of the Company or an Affiliate to terminate (i) the employment of an Employee with or without notice and with or without cause, (ii) the service of a Consultantpursuant 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 inwhich 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 Common Stock with respect to which Incentive Stock Options are exercisable for the firsttime by any Optionholder during any calendar year (under all plans of the Company and its Affiliates) exceeds one hundred thousand dollars ($100,000), the Options or portions thereof that exceed such limit (according to the order in which they weregranted) shall be treated as Nonstatutory Stock Options, notwithstanding any contrary provision of the applicable Option Agreement(s). 

 

**(e)****Investment Assurances.** The Company may require a Participant, as a condition of exercising or acquiring Common Stock under any StockAward, (i) to give written assurances satisfactory to the Company as to the Participant’s knowledge and experience in financial and business matters and/or to employ a purchaser representative reasonably satisfactory to the Company who isknowledgeable and experienced in financial and business matters and that he or she 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 assurancessatisfactory 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 Company thatsuch 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 representing Common Stock issued under the Plan as suchcounsel deems necessary or 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 Participantmay satisfy any federal, state or local tax withholding obligation relating to the exercise or acquisition of Common Stock under a Stock Award by any of the following means (in addition to the Company’s right to withhold from any compensationpaid to the Participant by the Company) or by a combination of such means: (i) tendering a cash payment; (ii) authorizing the Company to withhold shares of Common Stock from the shares of Common Stock otherwise issuable to the Participant as aresult 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 such lesser amountas may be necessary to avoid variable award accounting); or (iii) delivering to the Company owned and unencumbered shares of Common Stock. 

 
**11.****ADJUSTMENTSUPON CHANGESIN STOCK.**
 

**(a)****Capitalization Adjustments**. If any change is made in, orother event occurs with respect to, 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, stockdividend, 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 the Company (each a***“Capitalization Adjustment”***), the Plan will be appropriately adjusted in the class(es) and maximum number of securities subject to the Plan pursuant to Sections 4(a) and 4(b) and the maximum number of securities subject toaward to any person pursuant to Section 5(c), and the 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 shallmake such adjustments, and its determination shall be final, 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)****Dissolution or Liquidation**. In the event ofa dissolution or liquidation of the Company, then all outstanding Stock Awards shall terminate immediately prior to the completion of such dissolution or liquidation. 

 

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**(c)****Corporate Transaction**. In the event of a Corporate Transaction, any survivingcorporation or acquiring corporation may (but need not) assume or continue any or all Stock Awards outstanding under the Plan or may (but need not) substitute similar stock awards for any and all Stock Awards outstanding under the Plan, including anaward to acquire the same consideration paid to the stockholders or the Company, as the case may be, pursuant to the Corporate Transaction), and any reacquisition or repurchase rights held by the Company in respect of Common Stock issued pursuant toany and all Stock Awards may be assigned by the Company to the successor of the Company (or the successor’s parent company), if any, in connection with such Corporate Transaction. In the event that any surviving corporation or acquiringcorporation does not assume or continue all such outstanding Stock Awards or substitute similar stock awards for all such outstanding Stock Awards, then with respect to Stock Awards that have been not assumed, continued or substituted and that areheld by Participants whose Continuous Service has not terminated prior to the effective time of the Corporate Transaction, the vesting of such Stock Awards (and, if applicable, the time at which such Stock Awards may be exercised) shall (contingentupon the effectiveness of the Corporate Transaction) be accelerated in full to a date prior to the effective time of such Corporate Transaction as the Board shall determine (or, if the Board shall not determine such a date, to the date that is five(5) days prior to the effective time of the Corporate Transaction), such Stock Awards shall terminate if not exercised (if applicable) at or prior to such effective time, and any reacquisition or repurchase rights held by the Company with respect tosuch Stock Awards shall (contingent upon the effectiveness of the Corporate Transaction) lapse. With respect to any other Stock Awards outstanding under the Plan that have not been assumed, continued or substituted, the vesting of such Stock Awards(and, if applicable, the time at which such Stock Award may be exercised) shall not be accelerated, unless otherwise provided in a written agreement between the Company or any Affiliate and the holder of such Stock Award, and such Stock Awards shallterminate if not exercised (if applicable) prior to the effective time of the Corporate Transaction. 

 

**(d)****Change in Control.** A Stock Award may be subject to additional acceleration of vesting and exercisability upon or after a Change inControl as may be provided in the Stock Award Agreement for such Stock Award or as may be provided in any other written agreement between the Company or any Affiliate and the Participant, but in the absence of such provision, no such accelerationshall occur. 

 
**12.****AMENDMENTOFTHE PLANAND STOCK AWARDS.**
 

**(a)****Amendment of Plan.** The Board at any time, and from time totime, may amend the Plan. However, except as provided in Section 11(a) relating to Capitalization Adjustments, no amendment shall be effective unless approved by the stockholders of the Company to the extent stockholder approval is necessary tosatisfy applicable law. 

 

**(b)****StockholderApproval.** The Board, in its sole discretion, may submit any other amendment to the Plan for stockholder approval, including, but not limited to, amendments to the Plan intended to satisfy the requirements of Section 162(m) of the Code and theregulations thereunder regarding the exclusion of performance-based compensation from the limit on corporate deductibility of compensation paid to Covered Employees. 

 

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**(c)****Contemplated Amendments.** It is expressly contemplated that the Board may amend the Planin 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 regulations promulgated thereunder relating to Incentive Stock Optionsand/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 thePlan unless (i) the Company requests the consent of the Participant and (ii) the Participant consents in writing. 

 

**(e)****Amendment of Stock Awards.** The Board at any time, and from time to time, may amend the terms of any one or more Stock Awards, including,but not limited to, amendments to provide terms more favorable than previously provided in the agreement evidencing a Stock Award, subject to any specified limits in the Plan that are not subject to Board discretion; *provided, however,* thatthe rights under any Stock Award shall not be impaired by any such amendment unless (i) the Company requests the consent of the Participant and (ii) the Participant consents in writing. 

 
**13.****TERMINATIONOR SUSPENSIONOFTHE PLAN.**
 

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

 

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

 
**14.****EFFECTIVE DATEOF PLAN.**
 

The Plan shall become effective on the date the Plan is adopted by the Board; provided, however, that, no Stock Award otherthan Stock Appreciation Rights shall be granted under the Plan unless and until the Plan has been approved by the stockholders of the Company within twelve (12) months after the date the Plan is adopted by the Board. 

 
**15.****CHOICEOF LAW.**
 

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

 

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