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EXHIBIT 10.1
 SIRNA THERAPEUTICS, INC.
2005 PERFORMANCE INCENTIVE PLAN
 1. PURPOSE OF PLAN
 The purpose of this Sirna Therapeutics, Inc. 2005 Performance Incentive Plan (this Plan)
of Sirna Therapeutics, Inc., a Delaware corporation (the Corporation), is to promote the
success of the Corporation and to increase stockholder value by providing an additional
means through the grant of awards to attract, motivate, retain and reward selected employees
and other eligible persons.
 2. ELIGIBILITY
 The Administrator (as such term is defined in Section 3.1) may grant awards under this Plan
only to those persons that the Administrator determines to be Eligible Persons. An
Eligible Person is any person who is either: (a) an officer (whether or not a director) or
employee of the Corporation or one of its Subsidiaries; (b) a director of the Corporation or
one of its Subsidiaries; or (c) an individual consultant or advisor who renders or has
rendered bona fide services (other than services in connection with the offering or sale of
securities of the Corporation or one of its Subsidiaries in a capital-raising transaction or
as a market maker or promoter of securities of the Corporation or one of its Subsidiaries)
to the Corporation or one of its Subsidiaries and who is selected to participate in this
Plan by the Administrator; provided, however, that a person who is otherwise an Eligible
Person under clause (c) above may participate in this Plan only if such participation would
not adversely affect either the Corporations eligibility to use Form S-8 to register under
the Securities Act of 1933, as amended (the Securities Act), the offering and sale of shares issuable under this Plan by the Corporation or the Corporations compliance with any
other applicable laws. An Eligible Person who has been granted an award (a participant)
may, if otherwise eligible, be granted additional awards if the Administrator shall so
determine. As used herein, Subsidiary means any corporation or other entity a majority of
whose outstanding voting stock or voting power is beneficially owned directly or indirectly
by the Corporation; and Board means the Board of Directors of the Corporation.
 3. PLAN ADMINISTRATION
 3.1
    
    The Administrator. This Plan shall be administered by and all awards under
this Plan shall be authorized by the Administrator. The Administrator means the
Board or one or more committees appointed by the Board or another committee (within its
delegated authority) to administer all or certain aspects of this Plan. Any such
committee shall be comprised solely of one or more directors or such number of
directors as may be required under applicable law. A committee may delegate some or
all of its authority to another committee so constituted. The Board or a committee
comprised solely of directors may also delegate, to the extent permitted by Section
157(c) of the Delaware General Corporation Law and any other applicable law, to one or
more officers of the Corporation, its powers
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under this Plan (a) to designate the officers and employees of the Corporation and
its Subsidiaries who will receive grants of awards under this Plan, and (b) to
determine the number of shares subject to, and the other terms and conditions of,
such awards. The Board may delegate different levels of authority to different
committees with administrative and grant authority under this Plan. Unless
otherwise provided in the Bylaws of the Corporation or the applicable charter of any
Administrator: (a) a majority of the members of the acting Administrator shall
constitute a quorum, and (b) the vote of a majority of the members present assuming
the presence of a quorum or the unanimous written consent of the members of the
Administrator shall constitute action by the acting Administrator.With respect to awards intended to satisfy the requirements for performance-based
compensation under Section 162(m) of the Internal Revenue Code of 1986, as amended
(the Code), this Plan shall be administered by a committee consisting solely of
two or more outside directors (as this requirement is applied under Section 162(m)
of the Code); provided, however, that the failure to satisfy such requirement shall
not affect the validity of the action of any committee otherwise duly authorized and
acting in the matter. Award grants, and transactions in or involving awards,
intended to be exempt under Rule 16b-3 under the Securities Exchange Act of 1934, as
amended (the Exchange Act), must be duly and timely authorized by the Board or a
committee consisting solely of two or more non-employee directors (as this
requirement is applied under Rule 16b-3 promulgated under the Exchange Act). To the
extent required by any applicable listing agency, this Plan shall be administered by
a committee composed entirely of independent directors (within the meaning of the
applicable listing agency).3.2
    
    Powers of the Administrator. Subject to the express provisions of this Plan,
the Administrator is authorized and empowered to do all things necessary or desirable
in connection with the authorization of awards and the administration of this Plan (in
the case of a committee or delegation to one or more officers, within the authority
delegated to that committee or person(s)), including, without limitation, the authority
to:
 (a)
    
    determine eligibility and, from among those persons determined
to be eligible, the particular Eligible Persons who will receive an award under
this Plan;(b)
    
    grant awards to Eligible Persons, determine the price at which
securities will be offered or awarded and the number of securities to be
offered or awarded to any of such persons, determine the other specific terms
and conditions of such awards consistent with the express limits of this Plan,
establish the installments (if any) in which such awards shall become
exercisable or shall vest (which may include, without limitation, performance
and/or time-based schedules), or determine that no delayed exercisability or
vesting is required, establish any applicable performance targets, and
establish the events of termination or reversion of such awards;
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(c)
    
    approve the forms of award agreements (which need not be
identical either as to type of award or among participants);(d)
    
    construe and interpret this Plan and any agreements defining
the rights and obligations of the Corporation, its Subsidiaries, and
participants under this Plan, further define the terms used in this Plan, and
prescribe, amend and rescind rules and regulations relating to the
administration of this Plan or the awards granted under this Plan;(e)
    
    cancel, modify, or waive the Corporations rights with respect
to, or modify, discontinue, suspend, or terminate any or all outstanding
awards, subject to any required consent under Section 8.6.5;(f)
    
    accelerate or extend the vesting or exercisability or extend
the term of any or all such outstanding awards (in the case of options or stock
appreciation rights, within the maximum ten-year term of such awards) in such
circumstances as the Administrator may deem appropriate (including, without
limitation, in connection with a termination of employment or services or other
events of a personal nature) subject to any required consent under Section
8.6.5;(g)
    
    adjust the number of shares of Common Stock subject to any
award, adjust the price of any or all outstanding awards or otherwise change
previously imposed terms and conditions, in such circumstances as the
Administrator may deem appropriate, in each case subject to Sections 4 and 8.6,
and provided that in no case (except due to an adjustment contemplated by
Section 7 or any repricing that may be approved by stockholders) shall such an
adjustment constitute a repricing (by amendment, cancellation and regrant,
exchange or other means) of the per share exercise or base price of any option
or stock appreciation right;(h)
    
    determine the date of grant of an award, which may be a
designated date after but not before the date of the Administrators action
(unless otherwise designated by the Administrator, the date of grant of an
award shall be the date upon which the Administrator took the action granting
an award);(i)
    
    determine whether, and the extent to which, adjustments are
required pursuant to Section 7 hereof and authorize the termination,
conversion, substitution or succession of awards upon the occurrence of an
event of the type described in Section 7;(j)
    
    acquire or settle (subject to Sections 7 and 8.6) rights under
awards in cash, stock of equivalent value, or other consideration; and(k)
    
    determine the fair market value of the Common Stock or awards
under this Plan from time to time and/or the manner in which such value will be
determined.
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3.3
    
    Binding Determinations. Any action taken by, or inaction of, the Corporation,
any Subsidiary, or the Administrator relating or pursuant to this Plan and within its
authority hereunder or under applicable law shall be within the absolute discretion of
that entity or body and shall be conclusive and binding upon all persons. Neither the
Board nor any Board committee, nor any member thereof or person acting at the direction
thereof, shall be liable for any act, omission, interpretation, construction or
determination made in good faith in connection with this Plan (or any award made under
this Plan), and all such persons shall be entitled to indemnification and reimbursement
by the Corporation in respect of any claim, loss, damage or expense (including, without
limitation, attorneys fees) arising or resulting therefrom to the fullest extent
permitted by law and/or under any directors and officers liability insurance coverage
that may be in effect from time to time.3.4
    
    Reliance on Experts. In making any determination or in taking or not taking
any action under this Plan, the Board or a committee, as the case may be, may obtain
and may rely upon the advice of experts, including employees and professional advisors
to the Corporation. No director, officer or agent of the Corporation or any of its
Subsidiaries shall be liable for any such action or determination taken or made or
omitted in good faith.3.5
    
    Delegation. The Administrator may delegate ministerial, non-discretionary
functions to individuals who are officers or employees of the Corporation or any of its
Subsidiaries or to third parties.
 4. SHARES OF COMMON STOCK SUBJECT TO THE PLAN; SHARE LIMITS
 4.1
    
    Shares Available. Subject to the provisions of Section 7.1, the capital stock
that may be delivered under this Plan shall be shares of the Corporations authorized
but unissued Common Stock and any shares of its Common Stock held as treasury shares.
For purposes of this Plan, Common Stock shall mean the common stock of the
Corporation and such other securities or property as may become the subject of awards
under this Plan, or may become subject to such awards, pursuant to an adjustment made
under Section 7.1.4.2
    
    Share Limits. The maximum number of shares of Common Stock that may be
delivered pursuant to awards granted to Eligible Persons under this Plan (the Share
Limit) is equal to the sum of (a) 5,749,745 shares, plus (b) the number of any shares
subject to stock options granted under the Corporations 2001 Stock Option Plan (the
2001 Plan) and outstanding as of the date of stockholder approval of this Plan (the
Stockholder Approval Date) which expire, or for any reason are cancelled or
terminated, after the Stockholder Approval Date without being exercised; provided that
in no event shall the Share Limit exceed 12,035,091 shares (which is the sum of the
5,749,745 shares set forth above, plus the maximum number of shares subject to options
previously granted and outstanding under the 2001 Plan as of the Stockholder Approval
Date).The following limits also apply with respect to awards granted under this Plan:
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(a)
    
    The maximum number of shares of Common Stock that may be
delivered pursuant to options qualified as incentive stock options granted
under this Plan is 5,000,000 shares, subject to the Plan limit set forth above.(b)
    
    The maximum number of shares of Common Stock subject to those
options and stock appreciation rights that are granted during any calendar year
to any individual under this Plan is 750,000 shares.(c)
    
    Additional limits with respect to Performance-Based Awards are
set forth in Section 5.2.3.Each of the foregoing numerical limits is subject to adjustment as contemplated by
Section 4.3, Section 7.1, and Section 8.10.
 4.3
    
    Awards Settled in Cash, Reissue of Awards and Shares. To the extent that an
award is settled in cash or a form other than shares of Common Stock, the shares that would have been delivered had there been no such cash or other settlement shall not be
counted against the shares available for issuance under this Plan. In the event that shares are delivered in respect of a dividend equivalent, stock appreciation right, or
other award, only the actual number of shares delivered with respect to the award shall
be counted against the share limits of this Plan. Shares that are subject to or
underlie awards which expire or for any reason are cancelled or terminated, are
forfeited, fail to vest, or for any other reason are not paid or delivered under this
Plan shall again be available for subsequent awards under this Plan. Shares that are
exchanged by a participant or withheld by the Corporation as full or partial payment in
connection with any award under this Plan or the 2001 Plan (with respect to such a
payment in connection with any award under the 2001 Plan, only to the extent such
transaction occurs after the Effective Date), as well as any shares exchanged by a
participant or withheld by the Corporation or one of its Subsidiaries to satisfy the
tax withholding obligations related to any award under this Plan or the 2001 Plan (with
respect to such an exchange or withholding in connection with any award under the 2001
Plan, only to the extent such transaction occurs after the Effective Date), shall be
available for subsequent awards under this Plan. Refer to Section 8.10 for application
of the foregoing share limits with respect to assumed awards. The foregoing
adjustments to the share limits of this Plan are subject to any applicable limitations
under Section 162(m) of the Code with respect to awards intended as performance-based
compensation thereunder.4.4
    
    Reservation of Shares; No Fractional Shares; Minimum Issue. The Corporation
shall at all times reserve a number of shares of Common Stock sufficient to cover the
Corporations obligations and contingent obligations to deliver shares with respect to
awards then outstanding under this Plan (exclusive of any dividend equivalent
obligations to the extent the Corporation has the right to settle such rights in cash).
No fractional shares shall be delivered under this Plan. The Administrator may pay
cash in lieu of any fractional shares in settlements of awards under this Plan. No
fewer than 100 shares may be purchased on exercise of any award (or, in the case of
stock appreciation or purchase rights, no fewer than 100 rights may be exercised at any
one time)
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unless the total number purchased or exercised is the total number at the time
available for purchase or exercise under the award.
 5. AWARDS
 5.1
    
    Type and Form of Awards. The Administrator shall determine the type or types
of award(s) to be made to each selected Eligible Person. Awards may be granted singly,
in combination or in tandem. Awards also may be made in combination or in tandem with,
in replacement of, as alternatives to, or as the payment form for grants or rights
under any other employee or compensation plan of the Corporation or one of its
Subsidiaries. The types of awards that may be granted under this Plan are:
 5.1.1 Stock Options ISO
 5.1.2 Additional Rules Applicable to ISOs
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5.1.3 Stock Appreciation Rights SAR
 5.1.4 Other Awards
 5.2
    
    Section162(m)Performance-Based Awards.Without limiting the generality of
the foregoing, any of the types of awards listed in Section 5.1.4 above may be, and
options and SARs granted with an exercise or base price not less than the fair market
value of a share of Common Stock at the date of grant (Qualifying Options and
Qualifying SARS, respectively) typically will be, granted as awards intended to
satisfy the requirements for performance-based compensation within the meaning of
Section 162(m) of the Code (Performance-Based Awards). The grant, vesting,
exercisability or payment of Performance-Based Awards may depend (or, in the case of
Qualifying Options or Qualifying SARs, may also depend) on the degree of achievement of
one or more performance goals relative to a pre-established targeted level or level
using one or more of the Business Criteria set forth below (on an absolute or relative
basis) for the Corporation on a consolidated basis or for one or more of the
Corporations subsidiaries, segments, divisions or business units, or any combination
of the foregoing. Any Qualifying Option or Qualifying SAR shall be subject only to the
requirements of Section 5.2.1 and 5.2.3 in order for such award to satisfy the
requirements for performance-based compensation under Section 162(m) of the Award.
Any other Performance-Based Award shall be subject to all of the following provisions
of this Section 5.2.
 5.2.1 Class; Administrator .
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5.2.2 Performance Goals . Business Criteria
 5.2.3 Form of Payment; Maximum Performance-Based Award .
 5.2.4 Certification of Payment .
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5.2.5 Reservation of Discretion .
 5.2.6 Expiration of Grant Authority .
 5.3
    
    Award Agreements. Each award shall be evidenced by a written award agreement
in the form approved by the Administrator and executed on behalf of the Corporation
and, if required by the Administrator, executed by the recipient of the award. The
Administrator may authorize any officer of the Corporation (other than the particular
award recipient) to execute any or all award agreements on behalf of the Corporation.
The award agreement shall set forth the material terms and conditions of the award as
established by the Administrator consistent with the express limitations of this Plan.5.4
    
    Deferrals and Settlements. Payment of awards may be in the form of cash,
Common Stock, other awards or combinations thereof as the Administrator shall
determine, and with such restrictions as it may impose. The Administrator may also
require or permit participants to elect to defer the issuance of shares or the
settlement of awards in cash under such rules and procedures as it may establish under
this Plan. The Administrator may also provide that deferred settlements include the
payment or crediting of interest or other earnings on the deferral amounts, or the
payment or crediting of dividend equivalents where the deferred amounts are denominated
in shares.5.5
    
    Consideration for Common Stock or Awards. The purchase price for any award
granted under this Plan or the Common Stock to be delivered pursuant to an award, as
applicable, may be paid by means of any lawful consideration as determined by the
Administrator, including, without limitation, one or a combination of the following
methods:
 
    
    services rendered by the recipient of such award;
    
    cash, check payable to the order of the Corporation, or electronic funds
transfer;
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
    
    notice and third party payment in such manner as may be authorized by the
Administrator;
    
    the delivery of previously owned shares of Common Stock;
    
    by a reduction in the number of shares otherwise deliverable pursuant to the
award; or
    
    subject to such procedures as the Administrator may adopt, pursuant to a
cashless exercise with a third party who provides financing for the purposes
of (or who otherwise facilitates) the purchase or exercise of awards.
 In no event shall any shares newly-issued by the Corporation be issued for less than
the minimum lawful consideration for such shares or for consideration other than
consideration permitted by applicable state law. In the event that the
Administrator allows a participant to exercise an award by delivering shares of
Common Stock previously owned by such participant and unless otherwise expressly
provided by the Administrator, any shares delivered which were initially acquired by
the participant from the Corporation (upon exercise of a stock option or otherwise)
must have been owned by the participant at least six months as of the date of
delivery. Shares of Common Stock used to satisfy the exercise price of an option
shall be valued at their fair market value on the date of exercise. The Corporation
will not be obligated to deliver any shares unless and until it receives full
payment of the exercise or purchase price therefor and any related withholding
obligations under Section 8.5 and any other conditions to exercise or purchase have
been satisfied. Unless otherwise expressly provided in the applicable award
agreement, the Administrator may at any time eliminate or limit a participants
ability to pay the purchase or exercise price of any award or shares by any method
other than cash payment to the Corporation.5.6
    
    Definition of Fair Market Value. For purposes of this Plan, fair market
value shall mean, unless otherwise determined or provided by the Administrator in the
circumstances, the last price for a share of Common Stock as furnished by the National
Association of Securities Dealers, Inc. (the NASD) through the NASDAQ National Market
Reporting System (the National Market) for the date in question or, if no sales of
Common Stock were reported by the NASD on the National Market on that date, the last
price for a share of Common Stock as furnished by the NASD through the National Market
for the next preceding day on which sales of Common Stock were reported by the NASD.
The Administrator may, however, provide with respect to one or more awards that the
fair market value shall equal the last price for a share of Common Stock as furnished
by the NASD through the National Market available on the date in question or the
average of the high and low trading prices of a share of Common Stock as furnished by
the NASD through the National Market for the date in question or the most recent
trading day. If the Common Stock is no longer listed or is no longer actively traded
on the National Market as of the applicable date, the fair market value of the Common
Stock shall be the value as reasonably determined by the Administrator for purposes of
the award in the circumstances. The Administrator also may adopt a different
methodology for determining fair
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market value with respect to one or more awards if a different methodology is
necessary or advisable to secure any intended favorable tax, legal or other
treatment for the particular award(s) (for example, and without limitation, the
Administrator may provide that fair market value for purposes of one or more awards
will be based on an average of closing prices (or the average of high and low daily
trading prices) for a specified period preceding the relevant date).
 5.7
    
    Transfer Restrictions.
 5.7.1 Limitations on Exercise and Transfer
 5.7.2 Exceptions
 5.7.3 Further Exceptions to Limits on Transfer
 (a)
    
    transfers to the Corporation,(b)
    
    the designation of a beneficiary to receive benefits in the
event of the participants death or, if the participant has died, transfers to
or exercise by the participants beneficiary, or, in the absence of a validly
designated beneficiary, transfers by will or the laws of descent and
distribution,(c)
    
    subject to any applicable limitations on ISOs, transfers to a
family member (or former family member) pursuant to a domestic relations order
if approved or ratified by the Administrator,(d)
    
    if the participant has suffered a disability, permitted
transfers or exercises on behalf of the participant by his or her legal
representative, or(e)
    
    the authorization by the Administrator of cashless exercise
procedures with third parties who provide financing for the purpose of (or who
otherwise facilitate) the exercise of awards consistent with applicable laws
and the express authorization of the Administrator.
 5.8
    
    International Awards. One or more awards may be granted to Eligible Persons
who provide services to the Corporation or one of its Subsidiaries outside of the
United States. Any awards granted to such persons may be granted pursuant to
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the terms and conditions of any applicable sub-plans, if any, appended to this Plan
and approved by the Administrator.
 6. EFFECT OF TERMINATION OF SERVICE ON AWARDS
 6.1
    
    General. The Administrator shall establish the effect of a termination of
employment or service on the rights and benefits under each award under this Plan and
in so doing may make distinctions based upon, inter alia, the cause of termination and
type of award. If the participant is not an employee of the Corporation or one of its
Subsidiaries and provides other services to the Corporation or one of its Subsidiaries,
the Administrator shall be the sole judge for purposes of this Plan (unless a contract
or the award otherwise provides) of whether the participant continues to render
services to the Corporation or one of its Subsidiaries and the date, if any, upon which
such services shall be deemed to have terminated.6.2
    
    Events Not Deemed Terminations of Service. Unless the express policy of the
Corporation or one of its Subsidiaries, or the Administrator, otherwise provides, the
employment relationship shall not be considered terminated in the case of (a) sick
leave, (b) military leave, or (c) any other leave of absence authorized by the
Corporation or one of its Subsidiaries, or the Administrator; provided that unless
reemployment upon the expiration of such leave is guaranteed by contract or law, such
leave is for a period of not more than 90 days. In the case of any employee of the
Corporation or one of its Subsidiaries on an approved leave of absence, continued
vesting of the award while on leave from the employ of the Corporation or one of its
Subsidiaries may be suspended until the employee returns to service, unless the
Administrator otherwise provides or applicable law otherwise requires. In no event
shall an award be exercised after the expiration of the term set forth in the award
agreement.6.3
    
    Effect of Change of Subsidiary Status. For purposes of this Plan and any
award, if an entity ceases to be a Subsidiary of the Corporation a termination of
employment or service shall be deemed to have occurred with respect to each Eligible
Person in respect of such Subsidiary who does not continue as an Eligible Person in
respect of another entity within the Corporation or another Subsidiary that continues
as such after giving effect to the transaction or other event giving rise to the change
in status.
 7. ADJUSTMENTS; ACCELERATION
 7.1
    
    Adjustments. Upon or in contemplation of: any reclassification,
recapitalization, stock split (including a stock split in the form of a stock dividend)
or reverse stock split (stock split); any merger, combination, consolidation, or
other reorganization; any spin-off, split-up, or similar extraordinary dividend
distribution in respect of the Common Stock (whether in the form of securities or
property); any exchange of Common Stock or other securities of the Corporation, or any
similar, unusual or extraordinary corporate transaction in respect of the Common Stock;
or a sale of all or substantially all the business or assets of the Corporation as an
entirety; then the Administrator shall, in such manner, to such
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extent (if any) and at such time as it deems appropriate and equitable in the
circumstances:
 (a)
    
    proportionately adjust any or all of (1) the number and type of shares of Common Stock (or other securities) that thereafter may be made the
subject of awards (including the specific share limits, maximums and
numbers of shares set forth elsewhere in this Plan), (2) the number, amount and type of shares of Common Stock (or other securities or property) subject to any or all
outstanding awards, (3) the grant, purchase, or exercise price (which term
includes the base price of any SAR or similar right) of any or all outstanding
awards, (4) the securities, cash or other property deliverable upon exercise or
payment of any outstanding awards, or (5) (subject to Section 8.8.3(a)) the
performance standards applicable to any outstanding awards, or(b)
    
    make provision for a cash payment or for the assumption,
substitution or exchange of any or all outstanding share-based awards or the
cash, securities or property deliverable to the holder of any or all
outstanding share-based awards, based upon the distribution or consideration
payable to holders of the Common Stock upon or in respect of such event.
 The Administrator may adopt such valuation methodologies for outstanding awards as
it deems reasonable in the event of a cash or property settlement and, in the case
of options, SARs or similar rights, but without limitation on other methodologies,
may base such settlement solely upon the excess if any of the per share amount
payable upon or in respect of such event over the exercise or base price of the
award. With respect to any award of an ISO, the Administrator may make such an
adjustment that causes the option to cease to qualify as an ISO without the consent
of the affected participant.In any of such events, the Administrator may take such action prior to such event to
the extent that the Administrator deems the action necessary to permit the
participant to realize the benefits intended to be conveyed with respect to the
underlying shares in the same manner as is or will be available to stockholders
generally. In the case of any stock split or reverse stock split, if no action is
taken by the Administrator, the proportionate adjustments contemplated by clause (a)
above shall nevertheless be made.7.2
    
    Possible Acceleration of Awards. Without limiting the generality of the
Administrators power pursuant to Section 3.2, the Administrator may, in its
discretion, provide that any outstanding option or SAR shall become fully vested, that
any share of restricted stock then outstanding shall fully vest free of restrictions,
and that any other award granted under this Plan that is then outstanding shall be
payable to the holder of such award upon or in connection with a dissolution of the
Corporation or other event described in Section 7.1 that the Corporation does not
survive (or does not survive as a public company in respect of its Common Stock) or
upon or in connection with such change in control circumstances as the Administrator
may provide. The Administrator may take such action with respect to all awards then
outstanding or only with respect
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to certain specific awards identified by the Administrator in the circumstances. If
the vesting of an award has been accelerated expressly in anticipation of an event
or upon stockholder approval of an event and the Administrator later determines that
the event will not occur, the Administrator may rescind the effect of the
acceleration as to any then outstanding and unexercised or otherwise unvested
awards. Any acceleration of awards pursuant to this Section 7 shall comply with
applicable legal requirements and, if necessary to accomplish the purposes of the
acceleration or if the circumstances require, may be deemed by the Administrator to
occur a limited period of time not greater than 30 days before the event. Without
limiting the generality of the foregoing, the Administrator may deem an acceleration
to occur immediately prior to the applicable event. The portion of any ISO
accelerated in connection with an event shall remain exercisable as an ISO only to
the extent the applicable $100,000 limitation on ISOs is not exceeded. To the
extent exceeded, the accelerated portion of the option shall be exercisable as a
nonqualified stock option under the Code.
 7.3
    
    Early Termination of Awards. Upon a dissolution of the Corporation or other
event described in Section 7.1 that the Corporation does not survive (or does not
survive as a public company in respect of its Common Stock), each then-outstanding
award (whether or not vested, exercisable and/or payable), shall terminate upon the
related dissolution event or other event referred to in Section 7.1, as applicable,
subject to any provision that has been expressly made by the Administrator, through a
plan of reorganization or otherwise, for the survival, substitution, assumption,
exchange or other continuation or settlement of such award and provided that, in the
case of options and SARs that will not survive, be substituted for, assumed, exchanged,
or otherwise continued or settled in the transaction, the holder of such award shall be
given reasonable advance notice of the impending termination and a reasonable
opportunity to exercise his or her vested and outstanding options and SARs in
accordance with their terms before the termination of such awards (except that in no
case shall more than ten days notice of the impending termination be required).
 8. OTHER PROVISIONS
 8.1
    
    Compliance with Laws. This Plan, the granting and vesting of awards under this
Plan, the offer, issuance and delivery of shares of Common Stock, the acceptance of
promissory notes and/or the payment of money under this Plan or under awards are
subject to compliance with all applicable federal and state laws, rules and regulations
(including but not limited to state and federal securities law, federal margin
requirements) and to such approvals by any listing, regulatory or governmental
authority as may, in the opinion of counsel for the Corporation, be necessary or
advisable in connection therewith. The person acquiring any securities under this Plan
will, if requested by the Corporation or one of its Subsidiaries, provide such
assurances and representations to the Corporation or one of its Subsidiaries as the
Administrator may deem necessary or desirable to assure compliance with all applicable
legal and accounting requirements.8.2
    
    Employment Status. No person shall have any claim or rights to be granted an
award (or additional awards, as the case may be) under this Plan, subject to any
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express contractual rights (set forth in a document other than this Plan) to the
contrary.8.3
    
    No Employment/Service Contract. Nothing contained in this Plan (or in any
other documents under this Plan or in any award) shall confer upon any Eligible Person
or other participant any right to continue in the employ or other service of the
Corporation or one of its Subsidiaries, constitute any contract or agreement of
employment or other service or affect an employees status as an employee at will, nor
shall interfere in any way with the right of the Corporation or one of its Subsidiaries
to change a persons compensation or other benefits, or to terminate his or her
employment or other service, with or without cause. Nothing in this Section 8.3,
however, is intended to adversely affect any express independent right of such person
under a separate employment or service contract other than an award agreement.8.4
    
    Plan Not Funded. Awards payable under this Plan shall be payable in shares or
from the general assets of the Corporation, and no special or separate reserve, fund or
deposit shall be made to assure payment of such awards. No participant, beneficiary or
other person shall have any right, title or interest in any fund or in any specific
asset (including shares of Common Stock, except as expressly otherwise provided) of the
Corporation or one of its Subsidiaries by reason of any award hereunder. Neither the
provisions of this Plan (or of any related documents), nor the creation or adoption of
this Plan, nor any action taken pursuant to the provisions of this Plan shall create,
or be construed to create, a trust of any kind or a fiduciary relationship between the
Corporation or one of its Subsidiaries and any participant, beneficiary or other
person. To the extent that a participant, beneficiary or other person acquires a right
to receive payment pursuant to any award hereunder, such right shall be no greater than
the right of any unsecured general creditor of the Corporation.8.5
    
    Tax Withholding. Upon any exercise, vesting, or payment of any award or upon
the disposition of shares of Common Stock acquired pursuant to the exercise of an ISO
prior to satisfaction of the holding period requirements of Section 422 of the Code,
the Corporation or one of its Subsidiaries shall have the right at its option to:
 (a)
    
    require the participant (or the participants personal
representative or beneficiary, as the case may be) to pay or provide for
payment of at least the minimum amount of any taxes which the Corporation or
one of its Subsidiaries may be required to withhold with respect to such award
event or payment; or(b)
    
    deduct from any amount otherwise payable in cash to the
participant (or the participants personal representative or beneficiary, as
the case may be) the minimum amount of any taxes which the Corporation or one
of its Subsidiaries may be required to withhold with respect to such cash
payment.
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In any case where a tax is required to be withheld in connection with the delivery
of shares of Common Stock under this Plan, the Administrator may in its sole
discretion (subject to Section 8.1) grant (either at the time of the award or
thereafter) to the participant the right to elect, pursuant to such rules and
subject to such conditions as the Administrator may establish, to have the
Corporation reduce the number of shares to be delivered by (or otherwise reacquire)
the appropriate number of shares, valued in a consistent manner at their fair market
value or at the sales price in accordance with authorized procedures for cashless
exercises, necessary to satisfy the minimum applicable withholding obligation on
exercise, vesting or payment. In no event shall the shares withheld exceed the
minimum whole number of shares required for tax withholding under applicable law.
The Corporation may, with the Administrators approval, accept one or more
promissory notes from any Eligible Person in connection with taxes required to be
withheld upon the exercise, vesting or payment of any award under this Plan;
provided that any such note shall be subject to terms and conditions established by
the Administrator and the requirements of applicable law.8.6
    
    Effective Date, Termination and Suspension, Amendments.
 8.6.1 Effective Date Effective Date
 8.6.2 Board Authorization
 8.6.3 Stockholder Approval
 8.6.4 Amendments to Awards
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8.6.5 Limitations on Amendments to Plan and Awards
 8.7
    
    Privileges of Stock Ownership. Except as otherwise expressly authorized by the
Administrator or this Plan, a participant shall not be entitled to any privilege of
stock ownership as to any shares of Common Stock not actually delivered to and held of
record by the participant. No adjustment will be made for dividends or other rights as
a stockholder for which a record date is prior to such date of delivery.8.8
    
    Governing Law; Construction; Severability.
 8.8.1 Choice of Law
 8.8.2 Severability
 8.8.3 Plan Construction
 (a)
    
    Rule 16b-3. It is the intent of the
Corporation that the awards and transactions permitted by awards be
interpreted in a manner that, in the case of participants who are or
may be subject to Section 16 of the Exchange Act, qualify, to the
maximum extent compatible with the express terms of the award, for
exemption from matching liability under Rule 16b-3 promulgated under
the Exchange Act. Notwithstanding the foregoing, the Corporation shall
have no liability to any participant for Section 16 consequences of
awards or events under awards if an award or event does not so qualify.(b)
    
    Section 162(m). Awards under Section
5.1.4 to persons described in Section 5.2 that are either granted or
become vested, exercisable or payable based on attainment of one or
more performance goals related to the Business Criteria, as well as
Qualifying Options and Qualifying SARs granted to persons described in
Section 5.2, that are approved by a committee composed solely of two or
more outside directors (as this requirement is applied under Section
162(m) of the Code) shall be deemed to be intended as performance-based
compensation within the meaning of Section 162(m) of the Code unless
such committee provides otherwise at the time of grant of the award.
It is the further intent of the
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Corporation that (to the extent the Corporation or one of its
Subsidiaries or awards under this Plan may be or become subject to
limitations on deductibility under Section 162(m) of the Code) any
such awards and any other Performance-Based Awards under Section 5.2
that are granted to or held by a person subject to Section 162(m)
will qualify as performance-based compensation or otherwise be exempt
from deductibility limitations under Section 162(m).
 8.9
    
    Captions. Captions and headings are given to the sections and subsections of
this Plan solely as a convenience to facilitate reference. Such headings shall not be
deemed in any way material or relevant to the construction or interpretation of this
Plan or any provision thereof.8.10
    
    Stock-Based Awards in Substitution for Stock Options or Awards Granted by Other
Corporation. Awards may be granted to Eligible Persons in substitution for or in
connection with an assumption of employee stock options, SARs, restricted stock or
other stock-based awards granted by other entities to persons who are or who will
become Eligible Persons in respect of the Corporation or one of its Subsidiaries, in
connection with a distribution, merger or other reorganization by or with the granting
entity or an affiliated entity, or the acquisition by the Corporation or one of its
Subsidiaries, directly or indirectly, of all or a substantial part of the stock or
assets of the employing entity. The awards so granted need not comply with other
specific terms of this Plan, provided the awards reflect only adjustments giving effect
to the assumption or substitution consistent with the conversion applicable to the
Common Stock in the transaction and any change in the issuer of the security. Any shares that are delivered and any awards that are granted by, or become obligations of,
the Corporation, as a result of the assumption by the Corporation of, or in
substitution for, outstanding awards previously granted by an acquired company (or
previously granted by a predecessor employer (or direct or indirect parent thereof) in
the case of persons that become employed by the Corporation or one of its Subsidiaries
in connection with a business or asset acquisition or similar transaction) shall not be
counted against the Share Limit or other limits on the number of shares available for
issuance under this Plan.8.11
    
    Non-Exclusivity of Plan. Nothing in this Plan shall limit or be deemed to
limit the authority of the Board or the Administrator to grant awards or authorize any
other compensation, with or without reference to the Common Stock, under any other plan
or authority.8.12
    
    No Corporate Action Restriction. The existence of this Plan, the award
agreements and the awards granted hereunder shall not limit, affect or restrict in any
way the right or power of the Board or the stockholders of the Corporation to make or
authorize: (a) any adjustment, recapitalization, reorganization or other change in the
capital structure or business of the Corporation or any Subsidiary, (b) any merger,
amalgamation, consolidation or change in the ownership of the Corporation or any
Subsidiary, (c) any issue of bonds, debentures, capital, preferred or prior preference
stock ahead of or affecting the capital stock (or the
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rights thereof) of the Corporation or any Subsidiary, (d) any dissolution or
liquidation of the Corporation or any Subsidiary, (e) any sale or transfer of all or
any part of the assets or business of the Corporation or any Subsidiary, or (f) any
other corporate act or proceeding by the Corporation or any Subsidiary. No
participant, beneficiary or any other person shall have any claim under any award or
award agreement against any member of the Board or the Administrator, or the
Corporation or any employees, officers or agents of the Corporation or any
Subsidiary, as a result of any such action.8.13
    
    Other Company Benefit and Compensation Programs. Payments and other benefits
received by a participant under an award made pursuant to this Plan shall not be deemed
a part of a participants compensation for purposes of the determination of benefits
under any other employee welfare or benefit plans or arrangements, if any, provided by
the Corporation or any Subsidiary, except where the Administrator expressly otherwise
provides or authorizes in writing. Awards under this Plan may be made in addition to,
in combination with, as alternatives to or in payment of grants, awards or commitments
under any other plans or arrangements of the Corporation or its Subsidiaries.
 19