exv10w51






Exhibit 10.51




As adopted by the Board of Directors on March 31, 2004

As approved by the shareholders on March 31, 2004

As amended by the Board of Directors on June 3, 2004

(shareholder approval not required)

As amended by the Board of Directors on December 22, 2005

As approved by the shareholders on December 22, 2005

As amended by the Board of Directors on May 5, 2008

As approved by the shareholders on May 16, 2008




ARCHEMIX CORP.




AMENDED & RESTATED

2001 EMPLOYEE, DIRECTOR AND CONSULTANT STOCK PLAN




1. DEFINITIONS.





Unless otherwise specified or unless the context otherwise requires, the following terms, as
used in this Archemix Corp. 2001 Employee, Director and Consultant Stock Plan, have the
following meanings:




Administrator means the Board of Directors, unless it has delegated power to
act on its behalf to the Committee, in which case the Administrator means the
Committee.




Affiliate means a corporation which, for purposes of Section 424 of the
Code, is a parent or subsidiary of the Company, direct or indirect.




Board of Directors means the Board of Directors of the Company.




Code means the United States Internal Revenue Code of 1986, as amended.




Committee means the committee of the Board of Directors to which the Board
of Directors has delegated power to act under or pursuant to the provisions of the
Plan.




Common Stock means shares of the Company’s common stock, $.001 par value per
share.




Company means Archemix Corp., a Delaware corporation.




Disability or Disabled means permanent and total disability as
defined in Section 22(e)(3) of the Code.



 









 






Fair Market Value of a Share of Common Stock means:




(1) If the Common Stock is listed on a national securities exchange or traded in the
over-the-counter market and sales prices are regularly reported for the Common
Stock, the closing or last price of the Common Stock on the Composite Tape or other
comparable reporting system for the trading day immediately preceding the applicable
date;




(2) If the Common Stock is not traded on a national securities exchange but is
traded on the over-the-counter market, if sales prices are not regularly reported
for the Common Stock for the trading day referred to in clause (1), and if bid and
asked prices for the Common Stock are regularly reported, the mean between the bid
and the asked price for the Common Stock at the close of trading in the
over-the-counter market for the trading day on which Common Stock was traded
immediately preceding the applicable date; and




(3) If the Common Stock is neither listed on a national securities exchange nor
traded in the over-the-counter market, such value as the Administrator, in good
faith, shall determine.




ISO means an option meant to qualify as an incentive stock option under
Section 422 of the Code.




Key Employee means an employee of the Company or of an Affiliate (including,
without limitation, an employee who is also serving as an officer or director of the
Company or of an Affiliate), designated by the Administrator to be eligible to be
granted one or more Stock Rights under the Plan.




Non-Qualified Option means an option which is not intended to qualify as an
ISO.




Option means an ISO or Non-Qualified Option granted under the Plan.




Option Agreement means an agreement between the Company and a Participant
delivered pursuant to the Plan, in such form as the Administrator shall approve.




Participant means a Key Employee, director or consultant to whom one or more
Stock Rights are granted under the Plan. As used herein, “Participant” shall
include “Participant’s Survivors” where the context requires.




Plan means this Archemix Corp. 2001 Employee, Director and Consultant Stock
Plan.




Shares means shares of the Common Stock as to which Stock Rights have been
or may be granted under the Plan or any shares of capital stock into which the
Shares are changed or for which they are exchanged within the provisions of
Paragraph 3



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of the Plan. The Shares issued under the Plan may be authorized and unissued shares
or shares held by the Company in its treasury, or both.




Stock Grant means a grant by the Company of Shares under the Plan.




Stock Grant Agreement means an agreement between the Company and a
Participant delivered pursuant to the Plan, in such form as the Administrator shall
approve.




Stock Right means a right to Shares of the Company granted pursuant to the
Plan — an ISO, a Non-Qualified Option or a Stock Grant.




Survivors means a deceased Participant’s legal representatives and/or any
person or persons who acquired the Participant’s rights to a Stock Right by will or
by the laws of descent and distribution.



2. PURPOSES OF THE PLAN.




     The Plan is intended to encourage ownership of Shares by Key Employees and directors of and
certain consultants to the Company in order to attract such people, to induce them to work for the
benefit of the Company or of an Affiliate and to provide additional incentive for them to promote
the success of the Company or of an Affiliate. The Plan provides for the granting of ISOs,
Non-Qualified Options and Stock Grants.



3. SHARES SUBJECT TO THE PLAN.




     The number of Shares which may be issued from time to time pursuant to this Plan shall be
Twenty Seven Million (27,000,000), or the equivalent of such number of Shares after the
Administrator, in its sole discretion, has interpreted the effect of any stock split, stock
dividend, combination, recapitalization or similar transaction in accordance with Paragraph 23 of
the Plan.



     If an Option ceases to be “outstanding”, in whole or in part, or if the Company shall
reacquire any Shares issued pursuant to a Stock Grant, the Shares which were subject to such Option
and any Shares so reacquired by the Company shall be available for the granting of other Stock
Rights under the Plan. Any Option shall be treated as “outstanding” until such Option is exercised
in full, or terminates or expires under the provisions of the Plan, or by agreement of the parties
to the pertinent Option Agreement.



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4. ADMINISTRATION OF THE PLAN.




     The Administrator of the Plan will be the Board of Directors, except to the extent the Board
of Directors delegates its authority to the Committee, in which case the Committee shall be the
Administrator. Subject to the provisions of the Plan, the Administrator is authorized to:




	 	a.	 	Interpret the provisions of the Plan or of any Option or Stock Grant and to
make all rules and determinations which it deems necessary or advisable for the
administration of the Plan;
	 
	 	b.	 	Determine which employees of the Company or of an Affiliate shall be designated
as Key Employees and which of the Key Employees, directors and consultants shall be
granted Stock Rights;
	 
	 	c.	 	Determine the number of Shares for which a Stock Right or Stock Rights shall be
granted;
	 
	 	d.	 	Specify the terms and conditions upon which a Stock Right or Stock Rights may
be granted; and




e. Adopt any sub-plans applicable to residents of any specified jurisdiction as it deems necessary
or appropriate in order to comply with or take advantage of any tax laws applicable to the Company
or to Plan Participants or to otherwise facilitate the administration of the Plan, which sub-plans
may include additional restrictions or conditions applicable to Options or Shares acquired upon
exercise of Options;

provided, however, that all such interpretations, rules, determinations, terms and conditions shall
be made and prescribed in the context of preserving the tax status under Section 422 of the Code of
those Options which are designated as ISOs. Subject to the foregoing, the interpretation and
construction by the Administrator of any provisions of the Plan or of any Stock Right granted under
it shall be final, unless otherwise determined by the Board of Directors, if the Administrator is
the Committee. In addition, if the Administrator is the Committee, the Board of Directors may take
any action under the Plan that would otherwise be the responsibility of the Committee.




     If permissible under applicable law, the Board of Directors or the Committee may allocate all
or any portion of its responsibilities and powers to any one or more of its members and may
delegate all or any portion of its responsibilities and powers to any other person selected by it.
Any such allocation or delegation may be revoked by the Board of Directors or the Committee at any
time.



5. ELIGIBILITY FOR PARTICIPATION.




     The Administrator will, in its sole discretion, name the Participants in the Plan, provided,
however, that each Participant must be a Key Employee, director or consultant of the Company



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or of an Affiliate at the time a Stock Right is granted. Notwithstanding the foregoing, the
Administrator may authorize the grant of a Stock Right to a person not then an employee, director
or consultant of the Company or of an Affiliate; provided, however, that the actual grant of such
Stock Right shall be conditioned upon such person becoming eligible to become a Participant at or
prior to the time of the delivery of the Agreement evidencing such Stock Right. ISOs may be
granted only to Key Employees. Non-Qualified Options and Stock Grants may be granted to any Key
Employee, director or consultant of the Company or an Affiliate. The granting of any Stock Right
to any individual shall neither entitle that individual to, nor disqualify him or her from,
participation in any other grant of Stock Rights.



6. TERMS AND CONDITIONS OF OPTIONS.




     Each Option shall be set forth in writing in an Option Agreement, duly executed by the Company
and, to the extent required by law or requested by the Company, by the Participant. The
Administrator may provide that Options be granted subject to such terms and conditions, consistent
with the terms and conditions specifically required under this Plan, as the Administrator may deem
appropriate including, without limitation, subsequent approval by the shareholders of the Company
of this Plan or any amendments thereto. The Option Agreements shall be subject to at least the
following terms and conditions:




	 	A.	 	Non-Qualified Options: Each Option intended to be a Non-Qualified
Option shall be subject to the terms and conditions which the Administrator determines
to be appropriate and in the best interest of the Company, subject to the following
minimum standards for any such Non-Qualified Option:






	 	a.	 	Option Price: Each Option Agreement shall state the option
price (per share) of the Shares covered by each Option, which option price
shall be determined by the Administrator but shall not be less than the par
value per share of Common Stock.
	 
	 	b.	 	Each Option Agreement shall state the number of Shares to which
it pertains;
	 
	 	c.	 	Each Option Agreement shall state the date or dates on which it
first is exercisable and the date after which it may no longer be exercised,
and may provide that the Option rights accrue or become exercisable in
installments over a period of months or years, or upon the occurrence of
certain conditions or the attainment of stated goals or events; and
	 
	 	d.	 	Exercise of any Option may be conditioned upon the
Participant’s execution of a Share purchase agreement in form satisfactory to
the Administrator providing for certain protections for the Company and its
other shareholders, including requirements that:




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	 	i.	 	The Participant’s or the Participant’s
Survivors’ right to sell or transfer the Shares may be restricted; and
	 
	 	ii.	 	The Participant or the Participant’s Survivors
may be required to execute letters of investment intent and must also
acknowledge that the Shares will bear legends noting any applicable
restrictions.






	 	B.	 	ISOs: Each Option intended to be an ISO shall be issued only to a Key
Employee and be subject to the following terms and conditions, with such additional
restrictions or changes as the Administrator determines are appropriate but not in
conflict with Section 422 of the Code and relevant regulations and rulings of the
Internal Revenue Service:






	 	a.	 	Minimum standards: The ISO shall meet the minimum standards
required of Non-Qualified Options, as described in Paragraph 6(A) above, except
clauses (a) thereunder.
	 
	 	b.	 	Option Price: Immediately before the Option is granted, if the
Participant owns, directly or by reason of the applicable attribution rules in
Section 424(d) of the Code:






	 	i.	 	Ten percent (10%) or less of the total
combined voting power of all classes of stock of the Company or an
Affiliate, the Option price per share of the Shares covered by each
Option shall not be less than one hundred percent (100%) of the Fair
Market Value per share of the Shares on the date of the grant of the
Option.
	 
	 	ii.	 	More than ten percent (10%) of the total
combined voting power of all classes of stock of the Company or an
Affiliate, the Option price per share of the Shares covered by each
Option shall not be less than one hundred ten percent (110%) of the
said Fair Market Value on the date of grant.






	 	c.	 	Term of Option: For Participants who own






	 	i.	 	Ten percent (10%) or less of the total
combined voting power of all classes of stock of the Company or an
Affiliate, each Option shall terminate not more than ten (10) years
from the date of the grant or at such earlier time as the Option
Agreement may provide.
	 
	 	ii.	 	More than ten percent (10%) of the total
combined voting power of all classes of stock of the Company or an
Affiliate, each Option shall terminate not more than five (5) years
from the date of the grant or at such earlier time as the Option
Agreement may provide.




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	 	d.	 	Limitation on Yearly Exercise: The Option Agreements shall
restrict the amount of Options which may be exercisable in any calendar year
(under this or any other ISO plan of the Company or an Affiliate) so that the
aggregate Fair Market Value (determined at the time each ISO is granted) of the
stock with respect to which ISOs are exercisable for the first time by the
Participant in any calendar year does not exceed one hundred thousand dollars
($100,000), provided that this subparagraph (d) shall have no force or effect
if its inclusion in the Plan is not necessary for Options issued as ISOs to
qualify as ISOs pursuant to Section 422(d) of the Code.





7. TERMS AND CONDITIONS OF STOCK GRANTS.




     Each offer of a Stock Grant to a Participant shall state the date prior to which the Stock
Grant must be accepted by the Participant, and the principal terms of each Stock Grant shall be set
forth in a Stock Grant Agreement, duly executed by the Company and, to the extent required by law
or requested by the Company, by the Participant. The Stock Grant Agreement shall be in a form
approved by the Administrator and shall contain terms and conditions which the Administrator
determines to be appropriate and in the best interest of the Company, subject to the following
minimum standards:




	 	(a)	 	Each Stock Grant Agreement shall state the purchase price (per share), if any,
of the Shares covered by each Stock Grant, which purchase price shall be determined by
the Administrator but shall not be less than the minimum consideration required by
Delaware General Corporation Law on the date of the grant of the Stock Grant;
	 
	 	(b)	 	Each Stock Grant Agreement shall state the number of Shares to which the Stock
Grant pertains; and
	 
	 	(c)	 	Each Stock Grant Agreement shall include the terms of any right of the Company
to reacquire the Shares subject to the Stock Grant, including the time and events upon
which such rights shall accrue and the purchase price therefore, if any.





8. EXERCISE OF OPTIONS AND ISSUE OF SHARES.




     An Option (or any part or installment thereof) shall be exercised by giving written notice to
the Company at its principal executive office address, together with provision for payment of the
full purchase price in accordance with this Paragraph for the Shares as to which the Option is
being exercised, and upon compliance with any other condition(s) set forth in the Option Agreement.
Such written notice shall be signed by the person exercising the Option, shall state the number of
Shares with respect to which the Option is being exercised and shall contain any representation
required by the Plan or the Option Agreement. Payment of the purchase price for the Shares as to
which such Option is being exercised shall be made (a) in United States dollars



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in cash or by check, or (b) at the discretion of the Administrator, through delivery of shares of
Common Stock having a Fair Market Value equal as of the date of the exercise to the cash exercise
price of the Option, or (c) at the discretion of the Administrator, by having the Company retain
from the shares otherwise issuable upon exercise of the Option, a number of shares having a Fair
Market Value equal as of the date of exercise to the exercise price of the Option, or (d) at the
discretion of the Administrator, by delivery of the grantee’s personal recourse note bearing
interest payable not less than annually at no less than 100% of the applicable Federal rate, as
defined in Section 1274(d) of the Code, or (e) at the discretion of the Administrator, in
accordance with a cashless exercise program established with a securities brokerage firm, and
approved by the Administrator, or (f) at the discretion of the Administrator, by any combination of
(a), (b), (c), (d) and (e) above. Notwithstanding the foregoing, the Administrator shall accept
only such payment on exercise of an ISO as is permitted by Section 422 of the Code.



     The Company shall then reasonably promptly deliver the Shares as to which such Option was
exercised to the Participant (or to the Participant’s Survivors, as the case may be). In
determining what constitutes “reasonably promptly,” it is expressly understood that the issuance
and delivery of the Shares may be delayed by the Company in order to comply with any law or
regulation (including, without limitation, state securities or “blue sky” laws) which requires the
Company to take any action with respect to the Shares prior to their issuance. The Shares shall,
upon delivery, be evidenced by an appropriate certificate or certificates for fully paid,
non-assessable Shares.



     The Administrator shall have the right to accelerate the date of exercise of any installment
of any Option; provided that the Administrator shall not accelerate the exercise date of any
installment of any Option granted to any Key Employee as an ISO (and not previously converted into
a Non-Qualified Option pursuant to Paragraph 26) if such acceleration would violate the annual
vesting limitation contained in Section 422(d) of the Code, as described in Paragraph 6.B.d.



     The Administrator may, in its discretion, amend any term or condition of an outstanding Option
provided (i) such term or condition as amended is permitted by the Plan, (ii) any such amendment
shall be made only with the consent of the Participant to whom the Option was granted, or in the
event of the death of the Participant, the Participant’s Survivors, if the amendment is adverse to
the Participant, and (iii) any such amendment of any ISO shall be made only after the
Administrator, after consulting the counsel for the Company, determines whether such amendment
would constitute a “modification” of any Option which is an ISO (as that term is defined in Section
424(h) of the Code) or would cause any adverse tax consequences for the holder of such ISO.



9. ACCEPTANCE OF STOCK GRANT AND ISSUE OF SHARES.




     A Stock Grant (or any part or installment thereof) shall be accepted by executing the Stock
Grant Agreement and delivering it to the Company at its principal office address, together with
provision for payment of the full purchase price, if any, in accordance with this Paragraph for the
Shares as to which such Stock Grant is being accepted, and upon compliance with any



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other conditions set forth in the Stock Grant Agreement. Payment of the purchase price for the
Shares as to which such Stock Grant is being accepted shall be made (a) in United States dollars in
cash or by check, or (b) at the discretion of the Administrator, through delivery of shares of
Common Stock having a fair market value equal as of the date of acceptance of the Stock Grant to
the purchase price of the Stock Grant determined in good faith by the Administrator, or (c) at the
discretion of the Administrator, by delivery of the grantee’s personal recourse note bearing
interest payable not less than annually at no less than 100% of the applicable Federal rate, as
defined in Section 1274(d) of the Code, or (d) at the discretion of the Administrator, by any
combination of (a), (b) and (c) above.



     The Company shall then reasonably promptly deliver the Shares as to which such Stock Grant was
accepted to the Participant (or to the Participant’s Survivors, as the case may be), subject to any
escrow provision set forth in the Stock Grant Agreement. In determining what constitutes
“reasonably promptly,” it is expressly understood that the issuance and delivery of the Shares may
be delayed by the Company in order to comply with any law or regulation (including, without
limitation, state securities or “blue sky” laws) which requires the Company to take any action with
respect to the Shares prior to their issuance.



     The Administrator may, in its discretion, amend any term or condition of an outstanding Stock
Grant or Stock Grant Agreement provided (i) such term or condition as amended is permitted by the
Plan, and (ii) any such amendment shall be made only with the consent of the Participant to whom
the Stock Grant was made, if the amendment is adverse to the Participant.



10. RIGHTS AS A SHAREHOLDER.




     No Participant to whom a Stock Right has been granted shall have rights as a shareholder with
respect to any Shares covered by such Stock Right, except after due exercise of the Option or
acceptance of the Stock Grant and tender of the full purchase price, if any, for the Shares being
purchased pursuant to such exercise or acceptance and registration of the Shares in the Company’s
share register in the name of the Participant.



11. ASSIGNABILITY AND TRANSFERABILITY OF STOCK RIGHTS.




     By its terms, a Stock Right granted to a Participant shall not be transferable by the
Participant other than (i) by will or by the laws of descent and distribution, or (ii) as otherwise
determined by the Administrator and set forth in the applicable Option Agreement or Stock Grant
Agreement. The designation of a beneficiary of a Stock Right by a Participant, with the prior
approval of the Administrator and in such form as the Administrator shall prescribe, shall not be
deemed a transfer prohibited by this Paragraph. Except as provided above, a Stock Right shall only
be exercisable or may only be accepted, during the Participant’s lifetime, by such Participant (or
by his or her legal representative) and shall not be assigned, pledged or hypothecated in any way
(whether by operation of law or otherwise) and shall not be subject to execution, attachment or
similar process. Any attempted transfer, assignment, pledge, hypothecation or other disposition of
any Stock Right or of any rights granted thereunder



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contrary to the provisions of this Plan, or the levy of any attachment or similar process upon a
Stock Right, shall be null and void.




			
	12.	 	EFFECT ON OPTIONS OF TERMINATION OF SERVICE OTHER THAN “FOR CAUSE” OR DEATH OR
DISABILITY.





     Except as otherwise provided in the pertinent Option Agreement in the event of a termination
of service (whether as an employee, director or consultant) with the Company or an Affiliate before
the Participant has exercised an Option, the following rules apply:




	 	a.	 	A Participant who ceases to be an employee, director or consultant of the
Company or of an Affiliate (for any reason other than termination “for cause”,
Disability, or death for which events there are special rules in Paragraphs 13, 14, and
15, respectively), may exercise any Option granted to him or her to the extent that the
Option is exercisable on the date of such termination of service, but only within such
term as the Administrator has designated in the pertinent Option Agreement.
	 
	 	b.	 	Except as provided in Subparagraph (c) below, or Paragraph 14 or 15, in no
event may an Option Agreement provide, if an Option is intended to be an ISO, that the
time for exercise be later than three (3) months after the Participant’s termination of
employment.
	 
	 	c.	 	The provisions of this Paragraph, and not the provisions of Paragraph 14 or 15,
shall apply to a Participant who subsequently becomes Disabled or dies after the
termination of employment, director status or consultancy, provided, however, in the
case of a Participant’s Disability or death within three (3) months after the
termination of employment, director status or consultancy, the Participant or the
Participant’s Survivors may exercise the Option within one (1) year after the date of
the Participant’s termination of employment, but in no event after the date of
expiration of the term of the Option.
	 
	 	d.	 	Notwithstanding anything herein to the contrary, if subsequent to a
Participant’s termination of employment, termination of director status or termination
of consultancy, but prior to the exercise of an Option, the Board of Directors
determines that, either prior or subsequent to the Participant’s termination, the
Participant engaged in conduct which would constitute “cause”, then such Participant
shall forthwith cease to have any right to exercise any Option.
	 
	 	e.	 	A Participant to whom an Option has been granted under the Plan who is absent
from work with the Company or with an Affiliate because of temporary disability (any
disability other than a permanent and total Disability as defined in Paragraph 1
hereof), or who is on leave of absence for any purpose, shall not, during the period of
any such absence, be deemed, by virtue of such absence alone, to have terminated such
Participant’s employment, director status or consultancy with the




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	 	 	 	Company or with an Affiliate, except as the Administrator may otherwise expressly
provide.
	 
	 	f.	 	Except as required by law or as set forth in the pertinent Option Agreement,
Options granted under the Plan shall not be affected by any change of a Participant’s
status within or among the Company and any Affiliates, so long as the Participant
continues to be an employee, director or consultant of the Company or any Affiliate.





13. EFFECT ON OPTIONS OF TERMINATION OF SERVICE “FOR CAUSE”.




     Except as otherwise provided in the pertinent Option Agreement, the following rules apply if
the Participant’s service (whether as an employee, director or consultant) with the Company or an
Affiliate is terminated “for cause” prior to the time that all his or her outstanding Options have
been exercised:




	 	a.	 	All outstanding and unexercised Options as of the time the Participant is
notified his or her service is terminated “for cause” will immediately be forfeited.
	 
	 	b.	 	For purposes of this Plan, “cause” shall include (and is not limited to):






	 	(i)	 	a violation of an important Company policy, the neglect of a
Participant’s duties or the gross or willful failure of a Participant to
perform his or her duties hereunder, which is not cured after five days notice.
	 
	 	(ii)	 	dishonesty, embezzlement, gross negligence, willful misconduct,
neglect, theft, fraud or breach of fiduciary duty to the Company;
	 
	 	(iii)	 	violation of federal or state securities laws;
	 
	 	(iv)	 	breach of an employment, consulting or other agreement
(including, without limitation, the Employee Noncompetition, Nondisclosure and
Development Agreement between a Participant and the Company, which breach
harms, damages, causes loss to or injures the business or reputation of the
Company;
	 
	 	(v)	 	the unauthorized disclosure of any trade secret or confidential
information of the Company;
	 
	 	(vi)	 	the commission of an act which constitutes unfair competition
with the Company or which induces any customer or supplier to breach a
contract with the Company;
	 
	 	(vii)	 	an act by a Participant which creates adverse publicity for
the Company; or




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	 	(viii)	 	the conviction of a Participant for the commission of any felony including a
pleas of guilty or nolo contendere.





     The determination of the Administrator as to the existence of “cause” will be conclusive on
the Participant and the Company.




	 	c.	 	“Cause” is not limited to events which have occurred prior to a Participant’s
termination of service, nor is it necessary that the Administrator’s finding of “cause”
occur prior to termination. If the Administrator determines, subsequent to a
Participant’s termination of service but prior to the exercise of an Option, that
either prior or subsequent to the Participant’s termination the Participant engaged in
conduct which would constitute “cause”, then the right to exercise any Option is
forfeited.
	 
	 	d.	 	Any definition in an agreement between the Participant and the Company or an
Affiliate, which contains a conflicting definition of “cause” for termination and which
is in effect at the time of such termination, shall supersede the definition in this
Plan with respect to such Participant.





14. EFFECT ON OPTIONS OF TERMINATION OF SERVICE FOR DISABILITY.




     Except as otherwise provided in the pertinent Option Agreement, a Participant who ceases to be
an employee, director or consultant of the Company or of an Affiliate by reason of Disability may
exercise any Option granted to such Participant:




	 	a.	 	To the extent exercisable but not exercised on the date of Disability; and
	 
	 	b.	 	In the event rights to exercise the Option accrue periodically, to the extent
of a pro rata portion of any additional rights as would have accrued had the
Participant not become Disabled prior to the end of the accrual period which next ends
following the date of Disability. The proration shall be based upon the number of days
of such accrual period prior to the date of Disability.





     A Disabled Participant may exercise such rights only within the period ending one (1) year
after the date of the Participant’s termination of employment, directorship or consultancy, as the
case may be, notwithstanding that the Participant might have been able to exercise the Option as to
some or all of the Shares on a later date if the Participant had not become disabled and had
continued to be an employee, director or consultant or, if earlier, within the originally
prescribed term of the Option.



     The Administrator shall make the determination both of whether Disability has occurred and the
date of its occurrence (unless a procedure for such determination is set forth in another agreement
between the Company and such Participant, in which case such procedure shall be used for such
determination). If requested, the Participant shall be examined by a physician



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selected or approved by the Administrator, the cost of which examination shall be paid for by the
Company.



15. EFFECT ON OPTIONS OF DEATH WHILE AN EMPLOYEE, DIRECTOR OR CONSULTANT.




     Except as otherwise provided in the pertinent Option Agreement, in the event of the death of a
Participant while the Participant is an employee, director or consultant of the Company or of an
Affiliate, such Option may be exercised by the Participant’s Survivors:




	 	a.	 	To the extent exercisable but not exercised on the date of death; and
	 
	 	b.	 	In the event rights to exercise the Option accrue periodically, to the extent
of a pro rata portion of any additional rights which would have accrued had the
Participant not died prior to the end of the accrual period which next ends following
the date of death. The proration shall be based upon the number of days of such
accrual period prior to the Participant’s death.





     If the Participant’s Survivors wish to exercise the Option, they must take all necessary steps
to exercise the Option within one (1) year after the date of death of such Participant,
notwithstanding that the decedent might have been able to exercise the Option as to some or all of
the Shares on a later date if he or she had not died and had continued to be an employee, director
or consultant or, if earlier, within the originally prescribed term of the Option.



16. EFFECT OF TERMINATION OF SERVICE ON STOCK GRANTS.




     In the event of a termination of service (whether as an employee, director or consultant) with
the Company or an Affiliate for any reason before the Participant has accepted a Stock Grant, such
offer shall terminate.



     For purposes of this Paragraph 16 and Paragraph 17 below, a Participant to whom a Stock Grant
has been offered under the Plan who is absent from work with the Company or with an Affiliate
because of temporary disability (any disability other than a permanent and total Disability as
defined in Paragraph 1 hereof), or who is on leave of absence for any purpose, shall not, during
the period of any such absence, be deemed, by virtue of such absence alone, to have terminated such
Participant’s employment, director status or consultancy with the Company or with an Affiliate,
except as the Administrator may otherwise expressly provide.



     In addition, for purposes of this Paragraph 16 and Paragraph 17 below, any change of
employment or other service within or among the Company and any Affiliates shall not be treated as
a termination of employment, director status or consultancy so long as the Participant continues to
be an employee, director or consultant of the Company or any Affiliate.



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	17.	 	EFFECT ON STOCK GRANTS OF TERMINATION OF SERVICE OTHER THAN “FOR CAUSE” OR DEATH OR
DISABILITY.





     Except as otherwise provided in the pertinent Stock Grant Agreement, in the event of a
termination of service (whether as an employee, director or consultant), other than termination
“for cause,” Disability, or death for which events there are special rules in Paragraphs 18, 19,
and 20, respectively, before all Company rights of repurchase shall have lapsed, then the Company
shall have the right to repurchase that number of Shares subject to a Stock Grant as to which the
Company’s repurchase rights have not lapsed.



18. EFFECT ON STOCK GRANTS OF TERMINATION OF SERVICE “FOR CAUSE”.




     Except as otherwise provided in the pertinent Stock Grant Agreement, the following rules apply
if the Participant’s service (whether as an employee, director or consultant) with the Company or
an Affiliate is terminated “for cause”:




	 	a.	 	All Shares subject to any Stock Grant shall be immediately subject to
repurchase by the Company at the purchase price, if any, thereof.
	 
	 	b.	 	For purposes of this Plan, “cause” shall include (and is not limited to)
dishonesty with respect to the employer, insubordination, substantial malfeasance or
non-feasance of duty, unauthorized disclosure of confidential information, and conduct
substantially prejudicial to the business of the Company or any Affiliate. The
determination of the Administrator as to the existence of “cause” will be conclusive on
the Participant and the Company.
	 
	 	c.	 	“Cause” is not limited to events which have occurred prior to a Participant’s
termination of service, nor is it necessary that the Administrator’s finding of “cause”
occur prior to termination. If the Administrator determines, subsequent to a
Participant’s termination of service, that either prior or subsequent to the
Participant’s termination the Participant engaged in conduct which would constitute
“cause,” then the Company’s right to repurchase all of such Participant’s Shares shall
apply.
	 
	 	d.	 	Any definition in an agreement between the Participant and the Company or an
Affiliate, which contains a conflicting definition of “cause” for termination and which
is in effect at the time of such termination, shall supersede the definition in this
Plan with respect to such Participant.





19. EFFECT ON STOCK GRANTS OF TERMINATION OF SERVICE FOR DISABILITY.




     Except as otherwise provided in the pertinent Stock Grant Agreement, the following rules apply
if a Participant ceases to be an employee, director or consultant of the Company or of an



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Affiliate by reason of Disability: to the extent the Company’s rights of repurchase have not
lapsed on the date of Disability, they shall be exercisable; provided, however, that in the event
such rights of repurchase lapse periodically, such rights shall lapse to the extent of a pro rata
portion of the Shares subject to such Stock Grant as would have lapsed had the Participant not
become Disabled prior to the end of the vesting period which next ends following the date of
Disability. The proration shall be based upon the number of days of such vesting period prior to
the date of Disability.



     The Administrator shall make the determination both of whether Disability has occurred and the
date of its occurrence (unless a procedure for such determination is set forth in another agreement
between the Company and such Participant, in which case such procedure shall be used for such
determination). If requested, the Participant shall be examined by a physician selected or
approved by the Administrator, the cost of which examination shall be paid for by the Company.



20. EFFECT ON STOCK GRANTS OF DEATH WHILE AN EMPLOYEE, DIRECTOR OR CONSULTANT.




     Except as otherwise provided in the pertinent Stock Grant Agreement, the following rules apply
in the event of the death of a Participant while the Participant is an employee, director or
consultant of the Company or of an Affiliate: to the extent the Company’s rights of repurchase
have not lapsed on the date of death, they shall be exercisable; provided, however, that in the
event such rights of repurchase lapse periodically, such rights shall lapse to the extent of a pro
rata portion of the Shares subject to such Stock Grant as would have lapsed had the Participant not
died prior to the end of the vesting period which next ends following the date of death. The
proration shall be based upon the number of days of such vesting period prior to the Participant’s
death.



21. PURCHASE FOR INVESTMENT.




     Unless the offering and sale of the Shares to be issued upon the particular exercise or
acceptance of a Stock Right shall have been effectively registered under the Securities Act of
1933, as now in force or hereafter amended (the “1933 Act”), the Company shall be under no
obligation to issue the Shares covered by such exercise unless and until the following conditions
have been fulfilled:




	 	a.	 	The person(s) who exercise(s) or accept(s) such Stock Right shall warrant to
the Company, prior to the receipt of such Shares, that such person(s) are acquiring
such Shares for their own respective accounts, for investment, and not with a view to,
or for sale in connection with, the distribution of any such Shares, in which event the
person(s) acquiring such Shares shall be bound by the provisions of the following
legend which shall be endorsed upon the certificate(s) evidencing their Shares issued
pursuant to such exercise or such grant:




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“The shares represented by this certificate have been taken for investment
and they may not be sold or otherwise transferred by any person, including a
pledgee, unless (1) either (a) a Registration Statement with respect to such shares shall be effective under the Securities Act of 1933, as amended, or
(b) the Company shall have received an opinion of counsel satisfactory to it
that an exemption from registration under such Act is then available, and
(2) there shall have been compliance with all applicable state securities
laws.”




	 	b.	 	At the discretion of the Administrator, the Company shall have received an
opinion of its counsel that the Shares may be issued upon such particular exercise or
acceptance in compliance with the 1933 Act without registration thereunder.





22. DISSOLUTION OR LIQUIDATION OF THE COMPANY.




     Upon the dissolution or liquidation of the Company, all Options granted under this Plan which
as of such date shall not have been exercised and all Stock Grants which have not been accepted
will terminate and become null and void; provided, however, that if the rights of a Participant or
a Participant’s Survivors have not otherwise terminated and expired, the Participant or the
Participant’s Survivors will have the right immediately prior to such dissolution or liquidation to
exercise or accept any Stock Right to the extent that the Stock Right is exercisable or subject to
acceptance as of the date immediately prior to such dissolution or liquidation.



23. ADJUSTMENTS.




     Upon the occurrence of any of the following events, a Participant’s rights with respect to any
Stock Right granted to him or her hereunder shall be adjusted as hereinafter provided, unless
otherwise specifically provided in the pertinent Option Agreement or Stock Grant Agreement:



     A. Stock Dividends and Stock Splits. If (i) the shares of Common Stock shall be
subdivided or combined into a greater or smaller number of shares or if the Company shall issue any
shares of Common Stock as a stock dividend on its outstanding Common Stock, or (ii) additional
shares or new or different shares or other securities of the Company or other non-cash assets are
distributed with respect to such shares of Common Stock, the number of shares of Common Stock
deliverable upon the exercise or acceptance of such Stock Right may be appropriately increased or
decreased proportionately, and appropriate adjustments may be made in the purchase price per share
to reflect such events.



     B. Consolidations or Mergers. If the Company is to be consolidated with or acquired
by another entity in a merger, sale of all or substantially all of the Company’s assets or
otherwise (an “Acquisition”), the Administrator or the board of directors of any entity assuming
the obligations of the Company hereunder (the “Successor Board”), shall, as to outstanding Options,
either (i) make appropriate provision for the continuation of such Options by substituting on an



16









 







equitable basis for the Shares then subject to such Options either the consideration payable with
respect to the outstanding shares of Common Stock in connection with the Acquisition or securities
of any successor or acquiring entity; or (ii) upon written notice to the Participants, provide that
all Options must be exercised (either to the extent then exercisable or, at the discretion of the
Administrator, all Options being made fully exercisable for purposes of this Subparagraph) at the
end of which period the Options shall terminate; or (iii) terminate all Options in exchange for a
cash payment equal to the excess of the Fair Market Value of the Shares subject to such Options
(either to the extent then exercisable or, at the discretion of the Administrator, all Options
being made fully exercisable for purposes of this Subparagraph) over the exercise price thereof.



     With respect to outstanding Stock Grants, the Administrator or the Successor Board, shall
either (i) make appropriate provisions for the continuation of such Stock Grants by substituting on
an equitable basis for the Shares then subject to such Stock Grants either the consideration
payable with respect to the outstanding Shares of Common Stock in connection with the Acquisition
or securities of any successor or acquiring entity; or (ii) upon written notice to the
Participants, provide that all Stock Grants must be accepted (to the extent then subject to
acceptance) within a specified number of days of the date of such notice, at the end of which
period the offer of the Stock Grants shall terminate; or (iii) terminate all Stock Grants in
exchange for a cash payment equal to the excess of the Fair Market Value of the Shares subject to
such Stock Grants over the purchase price thereof, if any. In addition, in the event of an
Acquisition, the Administrator may waive any or all Company repurchase rights with respect to
outstanding Stock Grants.



     C. Recapitalization or Reorganization. In the event of a recapitalization or
reorganization of the Company (other than a transaction described in Subparagraph B above) pursuant
to which securities of the Company or of another corporation are issued with respect to the
outstanding shares of Common Stock, a Participant upon exercising or accepting a Stock Right shall
be entitled to receive for the purchase price, if any, paid upon such exercise or acceptance the
securities which would have been received if such Stock Right had been exercised or accepted prior
to such recapitalization or reorganization.



     D. Modification of ISOs. Notwithstanding the foregoing, any adjustments made pursuant
to Subparagraph A, B or C with respect to ISOs shall be made only after the Administrator, after
consulting with counsel for the Company, determines whether such adjustments would constitute a
“modification” of such ISOs (as that term is defined in Section 424(h) of the Code) or would cause
any adverse tax consequences for the holders of such ISOs. If the Administrator determines that
such adjustments made with respect to ISOs would constitute a modification of such ISOs, it may
refrain from making such adjustments, unless the holder of an ISO specifically requests in writing
that such adjustment be made and such writing indicates that the holder has full knowledge of the
consequences of such “modification” on his or her income tax treatment with respect to the ISO.



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24. ISSUANCES OF SECURITIES.




     Except as expressly provided herein, no issuance by the Company of shares of stock of any
class, or securities convertible into shares of stock of any class, shall affect, and no adjustment
by reason thereof shall be made with respect to, the number or price of shares subject to Stock
Rights. Except as expressly provided herein, no adjustments shall be made for dividends paid in
cash or in property (including without limitation, securities) of the Company prior to any issuance
of Shares pursuant to a Stock Right.



25. FRACTIONAL SHARES.




     No fractional shares shall be issued under the Plan and the person exercising a Stock Right
shall receive from the Company cash in lieu of such fractional shares equal to the Fair Market
Value thereof.



26. CONVERSION OF ISOs INTO NON-QUALIFIED OPTIONS; TERMINATION OF ISOs.




     The Administrator, at the written request of any Participant, may in its discretion take such
actions as may be necessary to convert such Participant’s ISOs (or any portions thereof) that have
not been exercised on the date of conversion into Non-Qualified Options at any time prior to the
expiration of such ISOs, regardless of whether the Participant is an employee of the Company or an
Affiliate at the time of such conversion. Such actions may include, but not be limited to,
extending the exercise period or reducing the exercise price of the appropriate installments of
such Options. At the time of such conversion, the Administrator (with the consent of the
Participant) may impose such conditions on the exercise of the resulting Non-Qualified Options as
the Administrator in its discretion may determine, provided that such conditions shall not be
inconsistent with this Plan. Nothing in the Plan shall be deemed to give any Participant the right
to have such Participant’s ISOs converted into Non-Qualified Options, and no such conversion shall
occur until and unless the Administrator takes appropriate action. The Administrator, with the
consent of the Participant, may also terminate any portion of any ISO that has not been exercised
at the time of such conversion.



27. WITHHOLDING.




     In the event that any federal, state, or local income taxes, employment taxes, Federal
Insurance Contributions Act (“F.I.C.A.”) withholdings or other amounts are required by applicable
law or governmental regulation to be withheld from the Participant’s salary, wages or other
remuneration in connection with the exercise or acceptance of a Stock Right or in connection with a
Disqualifying Disposition (as defined in Paragraph 28) or upon the lapsing of any right of
repurchase, the Company may withhold from the Participant’s compensation, if any, or may require
that the Participant advance in cash to the Company, or to any Affiliate of the Company which
employs or employed the Participant, the statutory minimum amount of such



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withholdings unless a different withholding arrangement, including the use of shares of the
Company’s Common Stock or a promissory note, is authorized by the Administrator (and permitted by
law). For purposes hereof, the fair market value of the shares withheld for purposes of payroll
withholding shall be determined in the manner provided in Paragraph 1 above, as of the most recent
practicable date prior to the date of exercise. If the fair market value of the shares withheld is
less than the amount of payroll withholdings required, the Participant may be required to advance
the difference in cash to the Company or the Affiliate employer. The Administrator in its
discretion may condition the exercise of an Option for less than the then Fair Market Value on the
Participant’s payment of such additional withholding.



28. NOTICE TO COMPANY OF DISQUALIFYING DISPOSITION.




     Each Key Employee who receives an ISO must agree to notify the Company in writing immediately
after the Key Employee makes a Disqualifying Disposition of any shares acquired pursuant to the
exercise of an ISO. A Disqualifying Disposition is defined in Section 424(c) of the Code and
includes any disposition (including any sale or gift) of such shares before the later of (a) two
years after the date the Key Employee was granted the ISO, or (b) one year after the date the Key
Employee acquired Shares by exercising the ISO, except as otherwise provided in Section 424(c) of
the Code. If the Key Employee has died before such stock is sold, these holding period
requirements do not apply and no Disqualifying Disposition can occur thereafter.



29. TERMINATION OF THE PLAN.




     The Plan will terminate on March 31, 2014, the date which is ten (10) years from the
earlier of the date of its adoption by the Board of Directors and the date of its approval
by the shareholders of the Company. The Plan may be terminated at an earlier date by vote of the
shareholders or the Board of Directors of the Company; provided, however, that any such earlier
termination shall not affect any Option Agreements or Stock Grant Agreements executed prior to the
effective date of such termination.



30. AMENDMENT OF THE PLAN AND AGREEMENTS.




     The Plan may be amended by the shareholders of the Company. The Plan may also be amended by
the Administrator, including, without limitation, to the extent necessary to qualify any or all
outstanding Stock Rights granted under the Plan or Stock Rights to be granted under the Plan for
favorable federal income tax treatment (including deferral of taxation upon exercise) as may be
afforded incentive stock options under Section 422 of the Code, and to the extent necessary to
qualify the shares issuable upon exercise or acceptance of any outstanding Stock Rights granted, or
Stock Rights to be granted, under the Plan for listing on any national securities exchange or
quotation in any national automated quotation system of securities dealers. Any amendment approved
by the Administrator which the Administrator determines is of a scope that requires shareholder
approval shall be subject to obtaining such shareholder approval. Any modification or amendment of
the Plan shall not, without the consent of a Participant, adversely



19









 







affect his or her rights under a Stock Right previously granted to him or her. With the consent of
the Participant affected, the Administrator may amend outstanding Option Agreements and Stock Grant
Agreements in a manner which may be adverse to the Participant but which is not inconsistent with
the Plan. In the discretion of the Administrator, outstanding Option Agreements and Stock Grant
Agreements may be amended by the Administrator in a manner which is not adverse to the Participant.



31. EMPLOYMENT OR OTHER RELATIONSHIP.




     Nothing in this Plan or any Option Agreement or Stock Grant Agreement shall be deemed to
prevent the Company or an Affiliate from terminating the employment, consultancy or director status
of a Participant, nor to prevent a Participant from terminating his or her own employment,
consultancy or director status or to give any Participant a right to be retained in employment or
other service by the Company or any Affiliate for any period of time.



32. GOVERNING LAW.




     This Plan shall be construed and enforced in accordance with the law of the State of Delaware.




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