**Exhibit 10.1**

 

**CV THERAPEUTICS, INC.**

 

**2000 Equity Incentive Plan**

 

**ADOPTED MARCH 31, 2000**

**APPROVED BY STOCKHOLDERS MAY 16, 2000**

**AMENDEDAND RESTATEDBYTHE BOARDOF DIRECTORS FEBRUARY 25, 2002**

**AMENDEDAND RESTATEDBYTHE BOARDOFDIRECTORS APRIL 15, 2002**

**APPROVED BY STOCKHOLDERSJUNE 7, 2002**

**AMENDEDAND RESTATEDBYTHEBOARDOF DIRECTORS OCTOBER 30, 2002**

**AMENDEDAND RESTATEDBYTHE BOARDOF DIRECTORS APRIL 1, 2004**

**APPROVED BY STOCKHOLDERS MAY 26, 2004**

**AMENDEDAND RESTATEDBYTHE BOARDOF DIRECTORS SEPTEMBER 22 AND23, 2004**

 

**I. Purposes.**

 

**A. Eligible Stock Award Recipients.** The persons eligible to receiveStock Awards are the Employees, Directors and Consultants of the Company and its Affiliates. 

 

**B. Available Stock Awards.** The purpose of the Plan is to provide a means by which eligible recipients of Stock Awards may be given an opportunity to benefit from increases in value of the Common Stock throughthe granting of the following Stock Awards: (i) Incentive Stock Options, (ii) Nonstatutory Stock Options, (iii) rights to acquire Restricted Stock and Restricted Stock Units and (iv) Stock Appreciation Rights. 

 

**C. General Purpose.** The Company, by means of the Plan, seeks to retainthe services of the group of persons eligible to receive Stock Awards, to secure and retain the services of new members of this group and to provide incentives for such persons to exert maximum efforts for the success of the Company and itsAffiliates. 

 

**II. Definitions.**

 

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

 

**B.**“***Board***” means the Board of Directors of the Company. 

 

**C.**“***Code***” means the Internal Revenue Code of 1986, as amended. 

 

**D.**“***Committee***” means a committee of one ormore members of the Board appointed by the Board in accordance with subsection III(C). 

 

**E.**“***Common Stock***” means the common stock of the Company. 

 

**F.**“***Company***” means CV Therapeutics, Inc., a Delaware corporation. 

**G.**“***Consultant***” means any person, including an advisor, (i) engaged by theCompany or an Affiliate to render consulting or advisory services and who is compensated for such services or (ii) who is a member of the Board of Directors of an Affiliate. However, the term “Consultant” shall not include either Directorswho are not compensated by the Company for their services as Directors or Directors who are merely paid a director’s fee by the Company for their services as Directors. 

 

**H.**“***Continuous Service***” means that the Participant’s service with the Company or anAffiliate, whether as an Employee, Director or Consultant, is not interrupted or terminated. The Participant’s Continuous Service shall not be deemed to have terminated merely because of a change in the capacity in which the Participant rendersservice to the Company or an Affiliate as an Employee, Consultant or Director or a change in the entity for which the Participant renders such service, provided that there is no interruption or termination of the Participant’s service to theCompany or an Affiliate. For example, a change in status without interruption from an Employee of the Company to a Consultant of an Affiliate or a Director will not constitute an interruption of Continuous Service. The Board or the chief executiveofficer of the Company, in that party’s sole discretion, may determine whether Continuous Service shall be considered interrupted in the case of any leave of absence approved by that party, including sick leave, military leave or any otherpersonal leave. 

 

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

 

**J.**“***Director***” means a member of the Board of Directors of the Company. 

 

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

 

**L.**“***Employee***” means any personemployed by the Company or an Affiliate. Mere service as a Director or payment of a director’s fee by the Company or an Affiliate shall not be sufficient to constitute “employment” by the Company or an Affiliate. 

 

**M.**“***Exchange Act***” means the SecuritiesExchange Act of 1934, as amended. 

 

**N.**“***FairMarket Value***” means, as of any date, the value of the Common Stock determined as follows: 

 

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

 

2. In the absence of such markets for the Common Stock, the Fair Market Value shall be determined in good faith by theBoard. 

 

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

 

**P.**“***Non-Employee Director***” means a Director who either (i) is not a current Employee or Officer of the Company or itsparent or a subsidiary, does not receive compensation (directly or indirectly) from the Company or its parent or a subsidiary for services rendered as a consultant or in any capacity other than as a Director (except for an amount as to whichdisclosure would not be required under Item 404(a) of Regulation S-K promulgated pursuant to the Securities Act (“Regulation S-K”)), does not possess an interest in any other transaction as to which disclosure would be required under Item404(a) of Regulation S-K and is not engaged in a business relationship as to which disclosure would be required under Item 404(b) of Regulation S-K; or (ii) is otherwise considered a “non-employee director” for purposes of Rule 16b-3.

 

**Q.**“***Nonstatutory Stock Option***”means an Option not intended to qualify as an Incentive Stock Option. 

 

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

 

**S.**“***Option***” means an Incentive Stock Option ora Nonstatutory Stock Option granted pursuant to the Plan. 

 

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

 

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

 

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

 

**W.**“***Participant***” means a person to whom aStock Award is granted pursuant to the Plan or, if applicable, such other person who holds an outstanding Stock Award. 

 

**X.**“***Performance Criteria***” means the criteria that the Committee selects for purposes of establishing the Performance Goalor Performance Goals for a Section 162(m) Participant for a Performance Period. The Performance Criteria that will be used to establish Performance Goals are limited to the following: net earnings (either before or after interest, taxes,depreciation and amortization), net losses, sales or revenue, operating earnings, operating cash flow, return on net assets, return on stockholders’ equity, return on assets, return on capital, stockholder returns, gross or net profit margin,earnings per share, price per share of Common 

 

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Stock, and market share, any of which may be measured either in absolute terms or as compared to any incremental increaseor as compared to results of a peer group; corporate or individual goals relating to the Company’s research, development, clinical, regulatory, operational, marketing or compliance programs. The Committee shall, within the time prescribed bySection 162(m) of the Code, define in an objective fashion the manner of calculating the Performance Criteria it selects to use for such Performance Period for such Section 162(m) Participant. 

 

**Y.**“***Performance Goals***” means, for aPerformance Period, the goals established in writing by the Committee for the Performance Period based upon the Performance Criteria. Depending on the Performance Criteria used to establish such Performance Goals, the Performance Goals may beexpressed in terms of overall Company performance or the performance of a division, business unit, or an individual. The Committee, in its discretion, may, within the time prescribed by Section 162(m) of the Code, adjust or modify the calculation ofPerformance Goals for such Performance Period in order to prevent the dilution or enlargement of the rights of Section 162(m) Participants (i) in the event of, or in anticipation of, any unusual or extraordinary corporate item, transaction, event,or development, or (ii) in recognition of, or in anticipation of, any other unusual or nonrecurring events affecting the Company, or the financial statements of the Company, or in response to, or in anticipation of, changes in applicable laws,regulations, accounting principles, or business conditions. 

 

**Z.**“***Performance Period***” means the one or more periods of time, which may be of varying and overlapping durations, as the Committee may select, over which the attainment of one or more Performance Goals will bemeasured for the purpose of determining a Section 162(m) Participant’s right to, and the payment of, a Stock Award the vesting of which is based on the attainment of Performance Goals. 

 

**AA.**“***Plan***” means this CV Therapeutics, Inc.2000 Equity Incentive Plan. 

 

**BB.********“***Restricted Stock”*******means Common Stock awarded to a Participant pursuant to Section Vii that is subject to certain restrictions and to risk of forfeiture.****

 

**CC.*****“Restricted Stock Unit”******* means aright to receive a specified number of shares of Common Stock during specified time periods pursuant to Section VII. 

 

**DD.**“***Rule 16b-3***” means Rule 16b-3 promulgated under the Exchange Act or any successor to Rule 16b-3, as in effect from timeto time. 

 

**EE.**“***Section 162(m)Participant***” shall mean any Employee designated by the Board as an Employee whose compensation for the fiscal year in which the Employee is so designated or a future fiscal year may be subject to the limit on deductible compensationimposed by Section 162(m) of the Code. 

 

**FF.**“***Securities Act***” means the Securities Act of 1933, as amended. 

 

**GG.**“***Stock Appreciation Right***” or “***SAR***” means a right granted pursuant to Section VII to receive a payment equal to the excess of the Fair Market Value of aspecified number of shares of Common Stock on the date the SAR is exercised over the Fair Market Value of such number of shares of Common Stock on the date the SAR was granted, or such other amount as may be determined by the Committee and as setforth in the applicable Stock Award Agreement. 

 

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**HH.**“***Stock Award***” means any right granted under the Plan, including anOption, Restricted Stock, Restricted Stock Unit and a Stock Appreciation Right. 

 

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

 

**JJ.**“***Ten Percent Stockholder***” means a person who owns (or is deemed to own pursuant to Section 424(d) of the Code) stock possessing more than ten percent (10%) of the total combinedvoting power of all classes of stock of the Company or of any of its Affiliates. 

 

**III. Administration.**

 

**A. Administration byBoard.** The Board shall administer the Plan unless and until the Board delegates administration to a Committee, as provided in subsection III(C). 

 

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

 

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

 

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

 

3. To amend the Plan or a Stock Award as provided in Sections XI and XII. 

 

4. To terminate or suspend the Plan as provided in Section XIII. 

 

5. Generally, to exercise such powers and to perform such acts as the Board deems necessary or expedient to promote the best interests of the Companywhich are not in conflict with the provisions of the Plan. 

 

**C. Delegation to Committee.**

 

1.**General.** The Board may delegate administration of the Plan to a Committee or Committees of one (1) or more members of the Board, and the term “Committee” shall apply to any person or persons to whom such authority has beendelegated. If administration is delegated to a Committee, the Committee shall have, in connection with the administration of the Plan, the powers theretofore possessed by the Board, including the power to delegate to a subcommittee any of theadministrative powers the Committee is authorized to exercise (and references in this Plan to the Board shall thereafter be to the Committee or 

 

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subcommittee), subject, however, to such resolutions, not inconsistent with the provisions of the Plan, as may be adoptedfrom time to time by the Board. The Board may abolish the Committee at any time and revest in the Board the administration of the Plan. 

 

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

 

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

 

**IV. Shares Subject to the Plan.**

 

**A. Share Reserve.** Subject to the provisions of Section XI relating toadjustments upon changes in Common Stock, the Common Stock that may be issued pursuant to Stock Awards shall not exceed in the aggregate the sum of (i) two million four hundred fifty thousand (2,450,000) shares of Common Stock, (ii) that number ofshares of Common Stock remaining available for issuance as of March 29, 2004 under the CV Therapeutics, Inc. 2000 Nonstatutory Incentive Plan (the “Nonstatutory Plan”) (not to exceed 404,685 shares of Common Stock) and (iii) that number ofshares of Common Stock that after March 29, 2004 again become available for issuance under the Nonstatutory Plan under Section 4(b) thereof as a result of stock awards granted thereunder expiring or terminating without having been exercised in full.

 

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

 

**C. Source of Shares.** The shares of CommonStock subject to the Plan may be unissued shares or reacquired shares, bought on the market or otherwise. 

 

**V. Eligibility.**

 

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

 

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

 

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**C. Section 162(m) Limitation.** Subject to the provisions of Section XI relating to adjustments uponchanges in the shares of Common Stock, no Employee shall be eligible to be granted Stock Awards covering more than five hundred thousand (500,000) shares of Common Stock during any calendar year. 

 

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

 

**VI. Option Provisions.**

 

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

 

**B. Term.** Subject to the provisions of subsection V(B) regarding TenPercent Stockholders, no Incentive Stock Option shall be exercisable after the expiration of ten (10) years from the date it was granted. 

 

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

 

**D. Exercise Price of a Nonstatutory Stock Option.** Theexercise price of each Nonstatutory Stock Option shall be not less than the par value of the Common Stock subject to the Option on the date the Option is granted. Notwithstanding the foregoing, a Nonstatutory Stock Option may be granted with anexercise price lower than that set forth in the preceding sentence if such Option is granted pursuant to an assumption or substitution for another option in a manner satisfying the provisions of Section 424(a) of the Code. 

 

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

 

**F.**In the case of any deferred payment arrangement, interest shall be compounded at least annually and shall becharged at the minimum rate of interest necessary to avoid the treatment as interest, under any applicable provisions of the Code, of any amounts other than amounts stated to be interest under the deferred payment arrangement. 

 

**G. Transferability of an Incentive Stock Option.** An Incentive StockOption shall not be transferable except by will or by the laws of descent and distribution and shall be exercisable during the lifetime of the Optionholder only by the Optionholder. Notwithstanding the foregoing, the Optionholder may, by deliveringwritten notice to the Company, in a form satisfactory to the Company, designate a third party who, in the event of the death of the Optionholder, shall thereafter be entitled to exercise the Option. 

 

**H. Transferability of a Nonstatutory Stock Option.** A NonstatutoryStock Option shall be transferable to the extent provided in the Option Agreement. If the Nonstatutory Stock Option does not provide for transferability, then the Nonstatutory Stock Option shall not be transferable except by will or by the laws ofdescent and distribution and shall be exercisable during the lifetime of the Optionholder only by the Optionholder. Notwithstanding the foregoing, the Optionholder may, by delivering written notice to the Company, in a form satisfactory to theCompany, designate a third party who, in the event of the death of the Optionholder, shall thereafter be entitled to exercise the Option. 

 

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

 

**J. Termination of Continuous Service.** In the event anOptionholder’s Continuous Service terminates (other than upon the Optionholder’s death or Disability), the Optionholder may exercise his or her Option (to the extent that the Optionholder was entitled to exercise such Option as of the dateof termination) but only within such period of time ending on the earlier of 

 

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(i) the date three (3) months following the termination of the Optionholder’s Continuous Service (or such longer orshorter period specified in the Option Agreement), or (ii) the expiration of the term of the Option as set forth in the Option Agreement. If, after termination, the Optionholder does not exercise his or her Option within the time specified in theOption Agreement, the Option shall terminate. 

 

**K. Extensionof Termination Date.** An Optionholder’s Option Agreement may also provide that if the exercise of the Option following the termination of the Optionholder’s Continuous Service (other than upon the Optionholder’s death orDisability) would be prohibited at any time solely because the issuance of shares of Common Stock would violate the registration requirements under the Securities Act, then the Option shall terminate on the earlier of (i) the expiration of the termof the Option set forth in subsection VI(B) or (ii) the expiration of a period of three (3) months after the termination of the Optionholder’s Continuous Service during which the exercise of the Option would not be in violation of suchregistration requirements. 

 

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

 

**M. Death of Optionholder.** In the event (i) an Optionholder’sContinuous Service terminates as a result of the Optionholder’s death or (ii) the Optionholder dies within the period (if any) specified in the Option Agreement after the termination of the Optionholder’s Continuous Service for a reasonother than death, then the Option may be exercised (to the extent the Optionholder was entitled to exercise such Option as of the date of death) by the Optionholder’s estate, by a person who acquired the right to exercise the Option by bequestor inheritance or by a person designated to exercise the Option upon the Optionholder’s death pursuant to subsections VI(G) or VI(H), but only within the period ending on the earlier of (1) the date eighteen (18) months following the date ofdeath (or such longer or shorter period specified in the Option Agreement) or (2) the expiration of the term of such Option as set forth in the Option Agreement. If, after death, the Option is not exercised within the time specified herein, theOption shall terminate. 

 

**N. Early Exercise.** The Optionmay, but need not, include a provision whereby the Optionholder may elect at any time before the Optionholder’s Continuous Service terminates to exercise the Option as to any part or all of the shares of Common Stock subject to the Option priorto the full vesting of the Option. Any unvested shares of Common Stock so purchased may be subject to a repurchase option in favor of the Company or to any other restriction the Board determines to be appropriate. The Company will not exercise itsrepurchase option until at least six (6) months (or such longer or shorter period of time required to avoid a charge to earnings for financial accounting purposes) have elapsed following exercise of the Option unless the Board otherwise specificallyprovides in the Option. 

 

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

 

**A. Restricted Stock and Restricted Stock Unit Awards.** The Board may grant Restricted Stock and/or Restricted StockUnits, the terms of which Stock Awards shall be set forth in an appropriate Stock Award Agreement. Each such Stock Award Agreement shall be in such form and shall contain such terms and conditions as the Board shall deem appropriate. The terms andconditions of the Stock Award Agreements may change from time to time, and the terms and conditions of separate Stock Award Agreements need not be identical, but each Stock Award Agreement shall include (through incorporation of provisions hereof byreference in the agreement or otherwise) the substance of each of the following provisions: 

 

1. **Purchase Price.** At its discretion, the Board may designate a purchase price or no purchase price for the issuance of Common Stock under the Plan. The purchase price, if any, under each Stock Award Agreementshall be such amount as the Board shall determine and designate in such Stock Award Agreement. In no event may Common Stock be issued under the Plan for less than adequate legal consideration, as determined by the Board in its sole discretion.

 

2. **Consideration.** The purchase price of Common Stockacquired pursuant to the Stock Award Agreement shall be paid either: (i) in cash at the time of issuance of the Common Stock; (ii) at the discretion of the Board, according to a deferred payment or other similar arrangement with the Participant; or(iii) in any other form of legal consideration that may be acceptable to the Board in its discretion; provided, however, that at any time that the Company is incorporated in Delaware, then payment of the Common Stock’s “par value,” asdefined in the Delaware General Corporation Law, shall not be made by deferred payment. 

 

3. **Restricted Stock Vesting.** Restricted Stock Units and/or shares of Common Stock acquired under a Stock Award Agreement shall be subject to vesting schedule or a forfeiture or share repurchase option (in thecase of Restricted Stock issued with a purchase price) in favor of the Company pursuant to a vesting schedule to be determined by the Board (or by the Committee, with regard to grants to Section 162(m) Participants intended to be linked to thePerformance Criteria) in accordance with the following guidelines: (A) the vesting period for Restricted Stock Units or shares of Common Stock acquired under Stock Award Agreements shall be no less than three (3) years unless based upon performancemilestones (including without limitation Performance Goals), in which event the vesting period shall be no less than one (1) year; and (B) notwithstanding the provisions of Section X(A), the Board may not accelerate such vesting except underextraordinary circumstances, including without limitation the death, disability or divorce of the Participant, change in corporate structure of the Company, Change of Control or termination of Continuous Service in connection with a Change ofControl. 

 

4. **Termination of Participant’s ContinuousService.** In the event a Participant’s Continuous Service terminates, the Board may cancel an unvested Restricted Stock Unit and/or repurchase or otherwise reacquire any or all of the shares of Restricted Stock held by the Participant whichhave not vested as of the date of termination under the terms of the Stock Award Agreement. 

 

5. **Transferability.** Restricted Stock or Restricted Stock Units shall be transferable by the Participant only upon such terms and conditions as are set forth in the Stock 

 

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Award Agreement, as the Board shall determine in its discretion, so long as Common Stock awarded under the applicableStock Award Agreement remains subject to the terms of the Stock Award Agreement. 

 

6. **Restricted Stock Units**. Common Stock underlying a Restricted Stock Unit award will not be issued until the Restricted Stock Unit award has vested. Unless otherwise provided by the Board, a Participantawarded Restricted Stock Units shall have no rights as a Company stockholder with respect to such Restricted Stock Units until such time as the Restricted Stock Units have vested and the Common Stock underlying the Restricted Stock Units has beenissued. 

 

*7.***Section 162(m) Participants.**Restricted Stock or Restricted Stock Units granted to a Section 162(m) Participant may, as determined by the Committee, have its vesting linked to any one or more of the Performance Criteria or other specific performance criteria determinedappropriate by the Committee, in each case on a specified date or dates or over any period or periods determined by the Committee. In making such determinations, the Committee shall consider (among such other factors as it deems relevant in light ofthe specific type of award) the contributions, responsibilities and other compensation of the particular Section 162(m) Participant. 

 

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**B.****Stock Appreciation Rights.** The Board may grant SARs, the terms of which Stock Awardsshall be set forth in an appropriate Stock Award Agreement. Each such Stock Award Agreement shall be in such form and shall contain such terms and conditions as the Board shall deem appropriate. The terms and conditions of the Stock Award Agreementsmay change from time to time, and the terms and conditions of separate Stock Award Agreements need not be identical, but each Stock Award Agreement shall include (through incorporation of provisions hereof by reference in the agreement or otherwise)the substance of each of the following provisions. 

 

*1.***Terms.**A SAR shall have a term set by the Committee and shall be exercisable in such installments as the Committee may determine. A SAR shall cover such number of shares of Common Stock as the Committee may determine. The exerciseprice per share of Common Stock subject to each SAR shall be set by the Committee; *provided* that the exercise price for any SAR shall not be less than the par value of the Common Stock on the date of grant; and *provided, further*, that,the Committee in its sole and absolute discretion may provide that the SAR may be exercised subsequent to a termination of employment or service, as applicable, or following a Change of Control of the Company, or because of the Participant’sretirement, death or disability, or otherwise.**

 

2.**Exercise.**A SAR shall entitle the Participant (or other person entitled to exercise the SAR pursuant to the Plan) to exercise all or a specified portion of the SAR (to the extent then exercisable pursuant to its terms) and to receive from theCompany an amount determined by multiplying the difference obtained by subtracting the exercise price per share of Common Stock subject to the SAR from the Fair Market Value of a share of Common Stock on the date of exercise of the SAR by the numberof shares of Common Stock with respect to which the SAR shall have been exercised, or such other amount as determined pursuant to the terms of the Stock Award Agreement, in either case subject to any limitations the Committee may impose. 

 

3. **Payment.** Payment of the amounts determined under SectionsVII.B.2. above shall be in cash, in Common Stock or other such as Options, or a combination of the foregoing as determined by the Committee and set forth in the terms of the Stock Award Agreement. 

 

**VIII. Covenants of the Company.**

 

**A. Availability of Shares.** During the terms of the Stock Awards, theCompany shall keep available at all times the number of shares of Common Stock required to satisfy such Stock Awards. 

 

**B. Securities Law Compliance.** The Company shall seek to obtain from each regulatory commission or agency having jurisdiction over the Plan suchauthority as may be required to grant Stock Awards and to issue and sell shares of Common Stock upon exercise of the Stock Awards; provided, however, that this undertaking shall not require the Company to register under the Securities Act the Plan,any Stock Award or any Common Stock issued or issuable pursuant to any such Stock Award. If, after reasonable efforts, the Company is unable to obtain from any such regulatory commission or agency the authority which counsel for the Company deemsnecessary for the lawful issuance and sale of Common Stock under the Plan, the Company shall be relieved from any liability for failure to issue and sell Common Stock upon exercise of such Stock Awards unless and until such authority is obtained.

 

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**IX. Use of Proceeds from Stock.**

 

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

 

**X. Miscellaneous.**

 

**A. Acceleration of Exercisability and Vesting.** Subject to subsection VII(A)(3) with respect to Restricted Stock andRestricted Stock Units, the Committee shall have the power to accelerate the time at which a Stock Award may first vest and/or be exercised in accordance with the Plan, notwithstanding the provisions in the Stock Award stating the time at which itmay first be exercised or the time during which it will vest. 

 

**B. Non-Employee Directors.**Notwithstanding anything herein to the contrary, the grant of any Stock Award to a Non-Employee Director under this Plan shall be made by the Board pursuant to a written non-discretionary formulaestablished by the Compensation Committee of the Board, or any successor committee thereto carrying out its responsibilities on the date of grant of any such Stock Award (the “***Non-Employee Director Equity CompensationPolicy***”). The Non-Employee Director Equity Compensation Policy shall set forth the type of Stock Award(s) to be granted to Non-Employee Directors, the number of shares of Common Stock to be subject to Non-Employee Director Stock Awards,the conditions on which such Stock Awards shall be granted, become exercisable and/or payable and expire, and such other terms and conditions as the Compensation Committee (or such other successor committee as described above) determines in itsdiscretion.****

 

**C. Stockholder Rights.** NoParticipant shall be deemed to be the holder of, or to have any of the rights of a holder with respect to, any shares of Common Stock subject to such Stock Award unless and until such Participant has satisfied all requirements for exercise of theStock Award pursuant to its terms. 

 

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

 

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

 

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**F. Investment Assurances.** The Company may require a Participant, as a condition of exercising oracquiring Common Stock under any Stock Award, (i) to give written assurances satisfactory to the Company as to the Participant’s knowledge and experience in financial and business matters and/or to employ a purchaser representative reasonablysatisfactory to the Company who is knowledgeable and experienced in financial and business matters and that he or she is capable of evaluating, alone or together with the purchaser representative, the merits and risks of exercising the Stock Award;and (ii) to give written assurances satisfactory to the Company stating that the Participant is acquiring Common Stock subject to the Stock Award for the Participant’s own account and not with any present intention of selling or otherwisedistributing the Common Stock. The foregoing requirements, and any assurances given pursuant to such requirements, shall be inoperative if (1) the issuance of the shares of Common Stock upon the exercise or acquisition of Common Stock under theStock Award has been registered under a then currently effective registration statement under the Securities Act or (2) as to any particular requirement, a determination is made by counsel for the Company that such requirement need not be met in thecircumstances under the then applicable securities laws. The Company may, upon advice of counsel to the Company, place legends on stock certificates issued under the Plan as such counsel deems necessary or appropriate in order to comply withapplicable securities laws, including, but not limited to, legends restricting the transfer of the Common Stock. 

 

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

 

**XI. Adjustments upon Changesin Stock.**

 

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

 

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**B. Dissolution or Liquidation.** In the event of a dissolution or liquidation of the Company, thenall outstanding Stock Awards shall terminate immediately prior to such event. 

 

**C. Change of Control.** In the event of a Change of Control, each outstanding Stock Award under the Plan shall, automatically and without further action by the Company, become fully vested and/or exercisable withrespect to all of the shares of Common Stock subject thereto no later than five (5) business days before the closing of such Change of Control. In addition, to the extent permitted by law, any surviving corporation or acquiring corporation in aChange of Control may assume any such Stock Awards outstanding under the Plan or substitute similar stock awards (including awards to acquire the same consideration paid to the stockholders in the Change of Control) for those outstanding under thePlan. In the event any surviving corporation or acquiring corporation does not assume such Stock Awards or substitute similar stock awards for those outstanding under the Plan then the Stock Awards shall terminate if not exercised at or prior to theclosing of the Change of Control. 

 

**D. Definition.** Forpurposes of this Plan, “Change of Control” means: (i) a sale of substantially all of the assets of the Company; (ii) a merger or consolidation in which the Company is not the surviving corporation (other than a merger or consolidation inwhich shareholders immediately before the merger or consolidation have, immediately after the merger or consolidation, equal or greater stock voting power); (iii) a reverse merger in which the Company is the surviving corporation but the shares ofCommon Stock outstanding immediately preceding the merger are converted by virtue of the merger into other property, whether in the form of securities, cash or otherwise (other than a reverse merger in which stockholders immediately before themerger have, immediately after the merger, greater stock voting power); or (iv) any transaction or series of related transactions in which in excess of 50% of the Company’s voting power is transferred. 

 

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

 

**A. Amendment of Plan.** The Board at any time, and from time to time,may amend the Plan. However, except as provided in Section XI relating to adjustments upon changes in Common Stock, no amendment shall be effective unless approved by the stockholders of the Company if such amendment (i) increases the number ofshares of Common Stock reserved for issuance under the Plan, (ii) expands the class of eligible Participants under the Plan, (iii) materially increases the benefits available under the Plan or (iv) is an amendment for which stockholder approval isnecessary to satisfy the requirements of Section 422 of the Code, Rule 16b-3 or any applicable Nasdaq or securities exchange listing requirements. 

 

**B. Stockholder Approval.** The Board may, in its sole discretion, submit any other amendment to the Plan for stockholder approval, including, but notlimited to, amendments to the Plan intended to satisfy the requirements of Section 162(m) of the Code and the regulations thereunder regarding the exclusion of performance-based compensation from the limit on corporate deductibility of compensationpaid to certain executive officers. 

 

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**C. Contemplated Amendments.** It is expressly contemplated that the Board may amend the Plan in anyrespect the Board deems necessary or advisable to provide eligible Employees with the maximum benefits provided or to be provided under the provisions of the Code and the regulations promulgated thereunder relating to Incentive Stock Options and/orto bring the Plan and/or Incentive Stock Options granted under it into compliance therewith. 

 

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

 

**E. Amendmentof Stock Awards/Repricing Prohibited.** The Board at any time, and from time to time, may amend the terms of any one or more Stock Awards; provided, however, that the rights under any Stock Award shall not be impaired by any such amendment unless(i) the Company requests the consent of the Participant and (ii) the Participant consents in writing. Notwithstanding the foregoing, the Board shall not, without the approval of the stockholders of the Company, authorize the amendment of anyoutstanding Option or SAR to reduce its exercise price. Furthermore, no Option or SAR shall be canceled and replaced with grants having a lower exercise price without the further approval of stockholders of the Company. 

 

**XIII. Termination or Suspension of the Plan.**

 

**A. Plan Term.** The Board may suspend or terminate the Plan at anytime. Unless sooner terminated, the Plan shall terminate on March 31, 2014, which is the day before the tenth (10th) anniversary of the date the Plan was amended and restated by the Board on April 1, 2004. No Stock Awards may be granted under thePlan while the Plan is suspended or after it is terminated. 

 

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

 

**XIV. Effective Date of Plan.**

 

The Plan shall become effective upon its adoption by the Board, but no StockAward shall be exercised unless and until the Plan has been approved by the stockholders of the Company, which approval shall be within twelve (12) months before or after the date the Plan is adopted by the Board. 

 

**XV. Choice of Law.**

 

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

 

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**XVI. Participants in Foreign Countries.**

 

The Board shall have the authority to adopt such modifications, procedures and subplans as may be necessary or desirable tocomply with provisions of the laws of foreign countries in which the Company or any Affiliate may operate to assure the viability of Stock Awards granted under the Plan in such countries and to meet the objectives of the Plan. 

 

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