**Exhibit 10.5**

 

**AKESIS PHARMACEUTICALS, INC.**

 

**2005 STOCK PLAN**

 

1. Purposes of the Plan. The purposes of this 2005 Stock Plan are: 

 

 

 

 

Options granted under the Plan may be Incentive Stock Options or Nonstatutory Stock Options, as determined by the Administrator at the time of grant.Stock Purchase Rights may also be granted under the Plan 

 

2.Definitions. As used herein, the following definitions shall apply: 

 

(a) “Administrator” means the Board or any of its Committees as shall be administering the Plan, in accordance with Section 4 of the Plan. 

 

(b) “Applicable Laws” means the requirements relating to the administration of stock option plans underU.S. state corporate laws, U.S. federal and state securities laws, the Code, any stock exchange or quotation system on which the Common Stock is listed or quoted and the applicable laws of any foreign country or jurisdiction where Options or StockPurchase Rights are, or will be, granted under the Plan. 

 

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

 

(d) “Change in Control” means the occurrence of any of the following events: 

 

(i) Any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) becomes the “beneficial owner” (as defined inRule 13d-3 of the Exchange Act), directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the total voting power represented by the Company’s then outstanding voting securities; or 

 

(ii) A change in the composition of the Board occurring within a two-yearperiod, as a result of which fewer than a majority of the Directors are Incumbent Directors. “Incumbent Directors” will mean Directors who either (A) are Directors of the Company as of the date hereof, or (B) are elected, or nominated forelection, to the Board with the affirmative votes of at least a majority of the Incumbent Directors at the time of such election or nomination (but will not include an individual whose election or nomination is in connection with an actual orthreatened proxy contest relating to the election of Directors to the Company); or 

(iii) The consummation of the sale or disposition by the Company of all or substantially all of theCompany’s assets; or 

 

(iv) The consummation of a mergeror consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remainingoutstanding or by being converted into voting securities of the surviving entity or its parent) at least fifty percent (50%) of the total voting power represented by the voting securities of the Company or such surviving entity or its parentoutstanding immediately after such merger or consolidation. 

 

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

 

(f) “Committee” means a committee of Directors appointed by the Board in accordance with Section 4 of the Plan. 

 

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

 

(h) “Company” means Akesis Pharmaceuticals, Inc., a Nevada corporation. 

 

(i) “Consultant” means any person, including an advisor,engaged by the Company or a Parent or Subsidiary to render services to such entity. 

 

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

 

(k) “Disability” means total and permanent disability as defined in Section 22(e)(3) of the Code. 

 

(l) “Employee” means any person, including Officers and Directors, employed by the Company or any Parent or Subsidiary of the Company. AService Provider shall not cease to be an Employee in the case of (i) any leave of absence approved by the Company or (ii) transfers between locations of the Company or between the Company, its Parent, any Subsidiary, or any successor. For purposesof Incentive Stock Options, no such leave may exceed ninety (90) days, unless reemployment upon expiration of such leave is guaranteed by statute or contract. If reemployment upon expiration of a leave of absence approved by the Company is not soguaranteed, then three (3) months following the 91st day of such leave, any Incentive Stock Option held by theOptionee shall cease to be treated as an Incentive Stock Option and shall be treated for tax purposes as a Nonstatutory Stock Option. Neither service as a Director nor payment of a director’s fee by the Company shall be sufficient to constitute“employment” by the Company. 

 

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

 

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

 

(i) If the Common Stock is listed on any established stock exchange or a national market system, including without limitation the Nasdaq National Marketor The Nasdaq SmallCap Market of The Nasdaq Stock Market, its Fair Market Value shall be the closing sales price 

 

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for such stock (or the closing bid, if no sales were reported) as quoted on such exchange or system on the day ofdetermination, as reported in *The Wall Street Journal* or such other source as the Administrator deems reliable; 

 

(ii) If the Common Stock is regularly quoted by a recognized securities dealer but selling prices are not reported, the Fair Market Value of a Share ofCommon Stock shall be the mean between the high bid and low asked prices for the Common Stock on the day of determination, as reported in *The Wall Street Journal* or such other source as the Administrator deems reliable; 

 

(iii) In the absence of an established market for the Common Stock, the FairMarket Value shall be determined in good faith by the Administrator. 

 

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

 

(p) “Nonstatutory Stock Option” means an Option not intendedto qualify as an Incentive Stock Option. 

 

(q) “Noticeof Grant” means a written or electronic notice evidencing certain terms and conditions of an individual Option or Stock Purchase Right grant. The Notice of Grant is part of the Option Agreement. 

 

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

 

(s) “Option” means a stock option granted pursuant to the Plan. 

 

(t) “Option Agreement” means an agreement between the Company and an Optionee evidencing the terms andconditions of an individual Option grant. The Option Agreement is subject to the terms and conditions of the Plan. 

 

(u) “Optioned Stock” means the Common Stock subject to an Option or a Stock Purchase Right. 

 

(v) “Optionee” means the holder of an outstanding Option orStock Purchase Right granted under the Plan. 

 

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

 

(x) “Plan” means this 2005 Stock Plan. 

 

(y) “Restricted Stock” means shares of Common Stock acquired pursuant to a grant of Stock Purchase Rights under Section 11 of the Plan orpursuant to the early exercise of an Option. 

 

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(z) “Restricted Stock Purchase Agreement” means a written agreement between the Companyand the Optionee evidencing the terms and restrictions applying to stock purchased under a Stock Purchase Right. The Restricted Stock Purchase Agreement is subject to the terms and conditions of the Plan and the Notice of Grant. 

 

(aa) “Rule 16b-3” means Rule 16b-3 of the Exchange Act orany successor to Rule 16b-3, as in effect when discretion is being exercised with respect to the Plan. 

 

(bb) “Section 16(b)” means Section 16(b) of the Exchange Act. 

 

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

 

(dd) “Service Provider” means an Employee, Director orConsultant. 

 

(ee) “Share” means a share of theCommon Stock, as adjusted in accordance with Section 13 of the Plan. 

 

(ff) “Stock Purchase Right” means the right to purchase Common Stock pursuant to Section 11 of the Plan, as evidenced by a Notice of Grant. 

 

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

 

3. Stock Subject to thePlan. Subject to the provisions of Section 13 of the Plan, the maximum aggregate number of Shares that may be subject to Options or Stock Purchase Rights and sold under the Plan is 1,500,000. The Shares may be authorized, but unissued, orreacquired Common Stock. 

 

If an Option or a Stock PurchaseRight expires or becomes unexercisable without having been exercised in full, the unpurchased Shares which were subject thereto shall become available for future grant or sale under the Plan (unless the Plan has terminated); provided,however, that Shares that have actually been issued under the Plan shall not be returned to the Plan and shall not become available for future distribution under the Plan, except that if Shares of Restricted Stock are repurchased by the Company attheir original purchase price, such Shares shall become available for future grant under the Plan. 

 

4. Administration of the Plan. 

 

(a) Procedure. 

 

(i) Multiple Administrative Bodies. Different Committees with respect to different groups of Service Providers may administer the Plan.

 

(ii) Section 162(m). To the extent that theAdministrator determines it to be desirable to qualify Options or Stock Purchase Rights granted hereunder as “performance-based compensation” within the meaning of Section 162(m) of the Code, the Plan shall be administered by a Committeeof two (2) or more outside Directors within the meaning of Section 162(m) of the Code. 

 

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(iii) Rule 16b-3. To the extent desirable to qualify transactions hereunder as exempt under Rule16b-3, the transactions contemplated hereunder shall be structured to satisfy the requirements for exemption under Rule 16b-3. 

 

(iv) Other Administration. Other than as provided above, the Plan shall be administered by (A) the Board or (B) a Committee, which Committee shallbe constituted to satisfy Applicable Laws. 

 

(b) Powers ofthe Administrator. Subject to the provisions of the Plan, and in the case of a Committee, subject to the specific duties delegated by the Board to such Committee, the Administrator shall have the authority, in its discretion: 

 

(i) to determine the Fair Market Value; 

 

(ii) to select the Service Providers to whom Options and Stock PurchaseRights may be granted hereunder; 

 

(iii) to determine thenumber of shares of Common Stock to be covered by each Option or Stock Purchase Right granted hereunder; 

 

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

 

(v) to determine the terms and conditions, not inconsistent with the terms of the Plan, of any Option or Stock Purchase Right granted hereunder. Suchterms and conditions include, but are not limited to, the exercise price, the time or times when Options or Stock Purchase Rights may be exercised (which may be based on performance criteria), any vesting acceleration or waiver of forfeiturerestrictions, and any restriction or limitation regarding any Option or Stock Purchase Right or the Common Stock relating thereto, based in each case on such factors as the Administrator, in its sole discretion, shall determine; 

 

(vi) to construe and interpret the terms of the Plan and awards grantedpursuant to the Plan; 

 

(vii) to establish, amend and rescindrules and regulations relating to the Plan, including rules and regulations relating to sub-plans established for the purpose of satisfying applicable foreign laws; 

 

(viii) to modify or amend each Option or Stock Purchase Right (subject to Section 15(c) of the Plan), including thediscretionary authority to extend the post-termination exercisability period of Options or Stock Purchase Rights longer than is otherwise provided for in the Plan; 

 

(ix) to allow Optionees to satisfy withholding tax obligations by electing to have the Company withhold from the Shares tobe issued upon exercise of an Option or Stock Purchase Right that number of Shares having a Fair Market Value equal to the minimum amount required to be withheld. The Fair Market Value of the Shares to be withheld shall be determined on the datethat the amount of tax to be withheld is to be determined. All elections by an Optionee to have Shares withheld for this purpose shall be made in such form and under such conditions as the Administrator may deem necessary or advisable; 

 

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(x) to authorize any person to execute on behalf of the Company any instrument required to effect thegrant of an Option or Stock Purchase Right previously granted by the Administrator; 

 

(xi) to correct any defect, supply any omission, or reconcile any inconsistency in the Plan, or in any Option Agreement or Restricted Stock Purchase Agreement, in a manner and to the extent it shall deem necessary,all of which determinations and interpretations made by the Administrator shall be conclusive and binding on all Optionees, any other holders of Options or Stock Purchase Rights and on their legal representatives and beneficiaries; and 

 

(xii) except to the extent prohibited by, or impermissible in order toobtain treatment desired by the Administrator under, applicable law or rule, to allocate or delegate all or any portion of its powers and responsibilities to any one or more of its members or to any person(s) selected by it, subject to revocation ormodification by the Administrator of such allocation or delegation. 

 

(xiii) to make all other determinations deemed necessary or advisable for administering the Plan. 

 

(c) Effect of Administrator’s Decision. The Administrator’s decisions, determinations and interpretations shall be final and binding onall Optionees and any other holders of Options or Stock Purchase Rights. 

 

5. Eligibility. Nonstatutory Stock Options and Stock Purchase Rights may be granted to Service Providers. Incentive Stock Options may be granted only to Employees. 

 

6. Limitations. 

 

(a) Each Option shall be designated in the Option Agreement as either anIncentive Stock Option or a Nonstatutory Stock Option. However, notwithstanding such designation, to the extent that the aggregate Fair Market Value of the Shares with respect to which Incentive Stock Options are exercisable for the first time bythe Optionee during any calendar year (under all plans of the Company and any Parent or Subsidiary) exceeds $100,000, such Options shall be treated as Nonstatutory Stock Options. For purposes of this Section 6(a), Incentive Stock Options shall betaken into account in the order in which they were granted. The Fair Market Value of the Shares shall be determined as of the time the Option with respect to such Shares is granted. 

 

(b) The following limitations will apply to grants of Options and Stock Appreciation Rights: 

 

(i) No Service Provider will be granted, in any calendar year, Options topurchase more than 300,000 Shares. 

 

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(ii) In connection with his or her initial service, a Service Provider may be granted Options topurchase up to an additional 500,000 Shares, which will not count against the limit set forth in Section 6(a)(2)(ii)(1) above. 

 

(iii) The foregoing limitations will be adjusted proportionately in connection with any change in the Company’s capitalization as described inSection 13. 

 

(iv) If an Option, as applicable, is cancelled inthe same calendar year in which it was granted (other than in connection with a transaction described in Section 13), the cancelled Option will be counted against the limits set forth in subsections (1) and (2) above. For this purpose, if theexercise price of an Option is reduced, the transaction will be treated as a cancellation of the Option and the grant of a new Option. 

 

(c) Neither the Plan nor any Option or Stock Purchase Right shall confer upon an Optionee any right with respect to continuing the Optionee’srelationship as a Service Provider with the Company, nor shall they interfere in any way with the Optionee’s right or the Company’s right to terminate such relationship at any time, with or without cause. 

 

7. Term of Plan. Subject to Section 19 of the Plan, the Plan shallbecome effective upon its adoption by the Board. It shall continue in effect for a term of ten (10) years unless terminated earlier under Section 15 of the Plan. 

 

8. Term of Option. The term of each Option shall be stated in the Option Agreement, provided, however, that the termshall be no more than ten (10) years from the date of the grant thereof. Moreover, in the case of an Incentive Stock Option granted to an Optionee who, at the time the Incentive Stock Option is granted, owns stock representing more than ten percent(10%) of the total combined voting power of all classes of stock of the Company or any Parent or Subsidiary, the term of the Incentive Stock Option shall be five (5) years from the date of grant or such shorter term as may be provided in the OptionAgreement. 

 

9. Option Exercise Price and Consideration.

 

(a) Exercise Price. The per share exercise price forthe Shares to be issued upon exercise of an Option shall be such price as is determined by the Administrator, but shall be subject to the following: 

 

(i) In the case of an Incentive Stock Option 

 

(1) granted to an Employee who, at the time of grant of such Option, owns stock representing more than ten percent (10%) of the voting power of allclasses of stock of the Company or any Parent or Subsidiary, the exercise price shall be no less than 110% of the Fair Market Value per Share on the date of grant. 

 

(2) granted to any other Employee, the per Share exercise price shall be no less than 100% of the Fair Market Value perShare on the date of grant. 

 

(ii) In the case of aNonstatutory Stock Option 

 

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(1) granted to a Service Provider who, at the time of grant of such Option, owns stock representing morethan ten percent (10%) of the voting power of all classes of stock of the Company or any Parent or Subsidiary, the exercise price shall be no less than 110% of the Fair Market Value per Share on the date of grant. 

 

(2) granted to any other Service Provider, the per Share exercise priceshall be no less than eighty-five percent (85%) of the Fair Market Value per Share on the date of grant. 

 

(iii) Notwithstanding the foregoing, Options may be granted with a per Share exercise price other than as required above in accordance with and pursuantto a transaction described in Section 424 of the Code. 

 

(b)Waiting Period and Exercise Dates. At the time an Option is granted, the Administrator shall fix the period within which the Option may be exercised and shall determine any conditions that must be satisfied before the Option may be exercised.

 

(c) Form of Consideration. The Administrator shalldetermine the acceptable form of consideration for exercising an Option, including the method of payment. In the case of an Incentive Stock Option, the Administrator shall determine the acceptable form of consideration at the time of grant. Suchconsideration may consist of (without limitation): 

 

(i) cash;

 

(ii) check; 

 

(iii) other Shares, provided Shares acquired directly or indirectly from theCompany, (A) have been owned by the Optionee for more than six (6) months on the date of surrender, and (B) have a Fair Market Value on the date of surrender equal to the aggregate exercise price of the Shares as to which said Option shall beexercised; 

 

(iv) consideration received by the Company under acashless exercise program implemented by the Company in connection with the Plan; 

 

(v) a reduction in the amount of any Company liability to the Optionee, including any liability attributable to the Optionee’s participation in any Company-sponsored deferred compensation program or arrangement;

 

(vi) any combination of the foregoing methods of payment; or

 

(vii) such other consideration and method of payment for theissuance of Shares to the extent permitted by Applicable Laws. 

 

10. Exercise of Option. 

 

(a) Procedure forExercise; Rights as a Stockholder. Any Option granted hereunder shall be exercisable according to the terms of the Plan and at such times and under such conditions as determined by the Administrator and set forth in the Option Agreement. Unlessthe 

 

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Administrator provides otherwise, vesting of Options granted hereunder shall be suspended during any unpaid leave ofabsence. An Option may not be exercised for a fraction of a Share. Except in the case of Options granted to Officers, Directors and Consultants, Options shall become exercisable at a rate of no less than twenty percent (20%) per year over five (5)years from the date the Options are granted. 

 

An Option shallbe deemed exercised when the Company receives: (i) written or electronic notice of exercise (in accordance with the Option Agreement) from the person entitled to exercise the Option, and (ii) full payment for the Shares with respect to which theOption is exercised. Full payment may consist of any consideration and method of payment authorized by the Administrator and permitted by the Option Agreement and the Plan. Shares issued upon exercise of an Option shall be issued in the name of theOptionee or, if requested by the Optionee, in the name of the Optionee and his or her spouse or in the name of a family trust of which the Optionee is a trustee. Until the Shares are issued (as evidenced by the appropriate entry on the books of theCompany or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder shall exist with respect to the Optioned Stock, notwithstanding the exercise of the Option. The Company shallissue (or cause to be issued) such Shares promptly after the Option is exercised; provided that if the Company shall be advised by counsel that certain requirements under the Federal, state or foreign securities laws must be met before Shares may beissued under this Plan, the Company shall notify all persons who have been issued Options, and the Company shall have no liability for failure to issue Shares under any exercise of Options because of delay while such requirements are being met orthe inability of the Company to comply with such requirements. No adjustment will be made for a dividend or other right for which the record date is prior to the date the Shares are issued, except as provided in Section 13 of the Plan. 

 

Exercising an Option in any manner shall decrease the number of Sharesthereafter available, both for purposes of the Plan and for sale under the Option, by the number of Shares as to which the Option is exercised. 

 

(b) Termination of Relationship as a Service Provider. . If an Optionee ceases to be a Service Provider, such Optionee may exercise his or herOption within thirty (30) days of termination, or such longer period of time as specified in the Option Agreement, to the extent that the Option is vested on the date of termination (but in no event later than the expiration of the term of theOption as set forth in the Option Agreement). In the absence of a specified time in the Option Agreement, the Option shall remain exercisable for three (3) months following the Optionee’s termination. If, on the date of termination, theOptionee is not vested as to his or her entire Option, the Shares covered by the unvested portion of the Option shall revert to the Plan. If, after termination, the Optionee does not exercise his or her Option within the time specified by theAdministrator, the Option shall terminate, and the Shares covered by such Option shall revert to the Plan. 

 

(c) Disability of Optionee. If an Optionee ceases to be a Service Provider as a result of the Optionee’s Disability, the Optionee may exercisehis or her Option within six (6) months of termination, or such longer period of time as specified in the Option Agreement, to the extent the Option is vested on the date of termination (but in no event later than the expiration of the term of theOption as set forth in the Option Agreement). In the absence of a specified time in the Option 

 

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Agreement, the Option shall remain exercisable for twelve (12) months following the Optionee’s termination. If, onthe date of termination, the Optionee is not vested as to his or her entire Option, the Shares covered by the unvested portion of the Option shall revert to the Plan. If, after termination, the Optionee does not exercise his or her Option within thetime specified herein, the Option shall terminate, and the Shares covered by such Option shall revert to the Plan. 

 

(d) Death of Optionee. If an Optionee dies while a Service Provider, the Option may be exercised following the Optionee’s death within six (6)months of termination, or such longer period of time as specified in the Option Agreement, to the extent the Option is vested on the date of termination (but in no event later than the expiration of the term of the Option as set forth in the OptionAgreement), by the Optionee’s designated beneficiary, provided such beneficiary has been designated prior to the Optionee’s death in a form acceptable to the Administrator. If no such beneficiary has been designated by the Optionee, thensuch Option may be exercised by the personal representative of the Optionee’s estate or by the person(s) to whom the Option is transferred pursuant to the Optionee’s will or in accordance with the laws of descent and distribution. In theabsence of a specified time in the Option Agreement, the Option shall remain exercisable for twelve (12) months following the Optionee’s death. If, at the time of death, the Optionee is not vested as to his or her entire Option, the Sharescovered by the unvested portion of the Option shall immediately revert to the Plan. If the Option is not so exercised within the time specified herein, the Option shall terminate, and the Shares covered by such Option shall revert to the Plan.

 

11. Stock Purchase Rights. 

 

(a) Rights to Purchase. Stock Purchase Rights may be issued eitheralone, in addition to, or in tandem with other awards granted under the Plan and/or cash awards made outside of the Plan. After the Administrator determines that it will offer Stock Purchase Rights under the Plan, it shall advise the offeree inwriting or electronically, by means of a Notice of Grant, of the terms, conditions and restrictions related to the offer, including the number of Shares that the offeree shall be entitled to purchase, the price to be paid, and the time within whichthe offeree must accept such offer. The terms of the offer shall comply in all respects with Section 260.140.42 of Title 10 of the California Code of Regulations. The offer shall be accepted by execution of a Restricted Stock Purchase Agreement inthe form determined by the Administrator. 

 

(b) RepurchaseOption. Unless the Administrator determines otherwise, the Restricted Stock Purchase Agreement shall grant the Company a repurchase option exercisable within ninety (90) days of the voluntary or involuntary termination of the purchaser’sservice with the Company for any reason (including death or Disability). Unless the Administrator provides otherwise, the purchase price for Shares repurchased pursuant to the Restricted Stock Purchase Agreement shall be the original price paid bythe purchaser and may be paid by cancellation of any indebtedness of the purchaser to the Company. The repurchase option shall lapse at such rate as the Administrator may determine. Except with respect to Shares purchased by Officers, Directors andConsultants, the repurchase option shall in no case lapse at a rate of less than twenty percent (20%) per year over five (5) years from the date of purchase. 

 

(c) Other Provisions. The Restricted Stock Purchase Agreement shall contain such other terms, provisions and conditions not inconsistent with thePlan as may be determined by the Administrator in its sole discretion. 

 

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(d) Rights as a Stockholder. Once the Stock Purchase Right is exercised, the purchaser shall havethe rights equivalent to those of a stockholder, and shall be a stockholder when his or her purchase is entered upon the records of the duly authorized transfer agent of the Company. No adjustment will be made for a dividend or other right for whichthe record date is prior to the date the Stock Purchase Right is exercised, except as provided in Section 13 of the Plan. 

 

12. Transferability of Options and Stock Purchase Rights. Unless determined otherwise by the Administrator, an Option or Stock Purchase Right maynot be sold, pledged, assigned, hypothecated, transferred, or disposed of in any manner other than by will or by the laws of descent or distribution and may be exercised, during the lifetime of the Optionee, only by the Optionee. If theAdministrator, in its sole discretion, makes an Option or Stock Purchase Right transferable, such Option or Stock Purchase Right may only be transferred (i) by will, (ii) by the laws of descent and distribution, or (iii) to family members (withinthe meaning of Rule 701 of the Securities Act) through gifts or domestic relations orders as permitted by Rule 701 of the Securities Act. 

 

13. Adjustments Upon Changes in Capitalization, Dissolution, Merger or Change in Control. 

 

(a) Changes in Capitalization. Subject to any required action by thestockholders of the Company, the number of Shares of Common Stock that have been authorized for issuance under the Plan but as to which no Options or Stock Purchase Rights have yet been granted or which have been returned to the Plan uponcancellation or expiration of an Option or Stock Purchase Right, as well as the price per share of Common Stock covered by each such outstanding Option or Stock Purchase Right, shall be proportionately adjusted for any increase or decrease in thenumber of issued Shares of Common Stock resulting from a stock split, reverse stock split, stock dividend, recapitalization, combination or reclassification of the Common Stock, or any other increase or decrease in the number of issued shares ofCommon Stock effected without receipt of consideration by the Company; provided, however, that conversion of any convertible securities of the Company shall not be deemed to have been “effected without receipt of consideration.” Suchadjustment shall be made by the Board, whose determination in that respect shall be final, binding and conclusive, provided, however, that the Board shall make such adjustments to the extent required by Section 25102(o) of the CaliforniaCorporations Code. 

 

(b) Dissolution or Liquidation. Inthe event of the proposed dissolution or liquidation of the Company, the Administrator shall notify each Optionee as soon as practicable prior to the effective date of such proposed transaction. The Administrator in its discretion may provide for anOptionee to have the right to exercise his or her Option or Stock Purchase Right until ten (10) days prior to such transaction as to all of the Optioned Stock covered thereby, including Shares as to which the Option or Stock Purchase Right would nototherwise be exercisable. In addition, the Administrator may provide that any Company repurchase option applicable to any Shares purchased upon exercise of an Option or Stock Purchase Right shall lapse as to all such Shares, provided the proposeddissolution or liquidation takes place at the time and in the manner contemplated. To the extent it has not been previously exercised, an Option or Stock Purchase Right will terminate immediately prior to the consummation of such proposed action.

 

(c) Merger or Change in Control. In the event of amerger of the Company with or into another corporation, or a Change in Control, each outstanding Option or Stock Purchase 

 

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Right shall be treated as the Administrator determines, including, without limitation, that each Option or Stock PurchaseRight be assumed or an equivalent option or right substituted by the successor corporation or a Parent or Subsidiary of the successor corporation. The Administrator shall not be required to treat all Options and Stock Purchase Rights similarly inthe transaction. 

 

In the event that the successor corporationnot assume or substitute for the Option or Stock Purchase Right, unless the Administrator determines otherwise, the Optionee shall fully vest in and have the right to exercise the Option or Stock Purchase Right that is not assumed or substituted foras to all of the Optioned Stock, including Shares as to which it would not otherwise be vested or exercisable. If the Administrator determines that an Option or Stock Purchase Right that is not assumed or substituted in connection with a merger orChange in Control shall fully vest, the Administrator shall notify the Optionee in writing or electronically that the Option or Stock Purchase Right shall be fully vested and exercisable for a period of time the Administrator determines, and theOption or Stock Purchase Right shall terminate upon the expiration of such period for no consideration, unless the Administrator determines otherwise. 

 

For the purposes of this subsection (c), the Option or Stock Purchase Right shall be considered assumed if, following the merger or Change in Control,the option or right confers the right to purchase or receive, for each Share subject to the Option or Stock Purchase Right immediately prior to the merger or Change in Control, the consideration (whether stock, cash, or other securities or property)received in the merger or Change in Control by holders of Common Stock for each Share held on the effective date of the transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majorityof the outstanding Shares); provided, however, that if such consideration received in the merger or Change in Control is not solely common stock of the successor corporation or its Parent, the Administrator may, with the consent of the successorcorporation, provide for the consideration to be received upon the exercise of the Option, for each Share subject to the Option or Stock Purchase Right, to be solely common stock of the successor corporation or its Parent equal in fair market valueto the per share consideration received by holders of Common Stock in the merger or Change in Control. 

 

14. Date of Grant. The date of grant of an Option or Stock Purchase Right shall be, for all purposes, the date on which the Administrator makes thedetermination granting such Option or Stock Purchase Right, or such other later date as is determined by the Administrator. Notice of the determination shall be provided to each Optionee within a reasonable time after the date of such grant.

 

15. Amendment and Termination of the Plan. 

 

(a) Amendment and Termination. The Board may at any time amend,alter, suspend or terminate the Plan. 

 

(b) StockholderApproval. The Board shall obtain stockholder approval of any Plan amendment to the extent necessary and desirable to comply with Applicable Laws and Section 15(c) below. 

 

(c) Effect of Amendment or Termination. No amendment, alteration, suspension or termination of the Plan or any Optionshall impair the rights of any Optionee, unless mutually 

 

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agreed otherwise between the Optionee and the Administrator, which agreement must be in writing and signed by theOptionee and the Company. Termination of the Plan shall not affect the Administrator’s ability to exercise the powers granted to it hereunder with respect to Options or Stock Purchase Rights granted under the Plan prior to the date of suchtermination. 

 

16. Conditions Upon Issuance of Shares.

 

(a) Legal Compliance. Shares shall not be issuedpursuant to the exercise of an Option or Stock Purchase Right unless the exercise of such Option or Stock Purchase Right and the issuance and delivery of such Shares shall comply with Applicable Laws and shall be further subject to the approval ofcounsel for the Company with respect to such compliance. 

 

(b)Investment Representations. As a condition to the exercise of an Option or Stock Purchase Right, the Administrator may require the person exercising such Option or Stock Purchase Right to represent and warrant at the time of any such exercisethat the Shares are being purchased only for investment and without any present intention to sell or distribute such Shares if, in the opinion of counsel for the Company, such a representation is required. 

 

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

 

18. Reservation of Shares. The Company, during the term of this Plan, will at all times reserve and keep available such number of Shares as shallbe sufficient to satisfy the requirements of the Plan. 

 

19.Stockholder Approval. The Plan shall be subject to approval by the stockholders of the Company within twelve (12) months after the date the Plan is adopted. Such stockholder approval shall be obtained in the manner and to the degree requiredunder Applicable Laws. 

 

20. Information to Optionees.The Company shall provide to each Optionee and to each individual who acquires Shares pursuant to the Plan, not less frequently than annually during the period such Optionee has one or more Options or Stock Purchase Rights outstanding, and, in thecase of an individual who acquires Shares pursuant to the Plan, during the period such individual owns such Shares, copies of annual financial statements. The Company shall not be required to provide such statements to key employees whose duties inconnection with the Company assure their access to equivalent information. 

 

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