exv10w2



 






Exhibit 10.2




EXABYTE CORPORATION

INCENTIVE STOCK PLAN

AS AMENDED THROUGH JANUARY 16, 1997




     1. Purpose of Plan. This Incentive Stock Plan is intended to encourage ownership of Shares of
Exabyte Corporation (the “Corporation”) (i) by key Employees and Consultants, thereby providing
additional incentive for such Employees and Consultants to promote the success of the business, and
(ii) by each director of the Corporation who is not an Employee of the Corporation or an Affiliate
of the Corporation, thereby securing the services of such qualified directors and providing them
with incentives to exert maximum efforts for the success of the Corporation. Options granted
hereunder to Employees may be either Incentive Stock Options or Nonstatutory Stock Options, at the
discretion of the Board and as reflected in the terms of the written Stock Option Agreement.
Options granted hereunder to Consultants and Directors who are not Employees shall be Nonstatutory
Stock Options. The Board also has the discretion to grant Stock Purchase Rights to Employees,
Directors and Consultants.



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



          (a) “Affiliate” shall mean any Parent or Subsidiary, whether now or hereafter existing.



          (b) “Board” shall mean the Committee, if one has been appointed, or the Board of the
Corporation, if no Committee is appointed.



          (c) “Code” shall mean the Internal Revenue Code of 1986, as amended.




          (d) “Corporation” shall mean Exabyte Corporation, a Delaware corporation.



          (e) “Committee” shall mean the Committee appointed by the Board in accordance with Section 4
of the Plan, if one is appointed.



          (f) “Consultant” shall mean any person, performing services for the benefit of the Corporation
(or of any Affiliate of the Corporation) as an independent consultant or advisor; provided,
however, that directors who receive only directors’ fees are not Consultants.



          (g) “Continuous Status as an Employee, Director or Consultant” shall mean the absence of any
interruption or termination of service as an Employee, Director or Consultant, as applicable.
Continuous Status as an Employee, Director or Consultant shall not be considered interrupted in the
case of sick leave, military leave, or any other leave of absence approved by the Board.



          (h) “Covered Employee” shall mean the Chief Executive Officer and the four other highest
compensated officers of the Corporation for whom total compensation is required to be reported to
Stockholders under the Exchange Act, as determined for purposes of Section 162(m) of the Code.



          (i) “Director” shall mean a member of the Board of Directors.



          (j) “Employee” shall mean any person employed by the Corporation or by any Affiliate of the
Corporation. The payment of a director’s fee by the Corporation shall not be sufficient to
constitute “employment” by the Corporation.



          (k) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.



          (l) “Incentive Stock Option” shall mean an Option intended to qualify as an Incentive Stock
Option within the meaning of Section 422 of the Code.



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          (m) “Non-Insider Director” shall mean a director of the Corporation who is not an Employee
provided, however, such director may be a Consultant.



          (n) “Non-Employee Director” shall mean a director of the Corporation who either is not a
current employee or officer of the company or its parent or subsidiary, does not receive
compensation (directly or indirectly) from the Corporation or its parent or subsidiary for services
rendered as a consultant or in any capacity other than as a director (except for an amount as to
which disclosure would not be required under Item 404(a) of Regulation S-K promulgated pursuant to
the Securities Act of 1933 (“Regulation S-K”), does not possess an interest in any other
transaction as to which disclosure would be required under Item 404(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 is otherwise considered a “non-employee director” for purposes of Rule 16b-3.



          (o) “Nonstatutory Stock Option” shall mean an Option not intended to qualify as an Incentive
Stock Option.



          (p) “Option” shall mean a Stock Option granted pursuant to the Plan.




          (q) “Optioned Stock” shall mean the Stock subject to an Option.



          (r) “Optionee” shall mean an Employee, Consultant or Non-Insider Director, as applicable, who
receives an Option.



          (s) “Outside Director” means a director who either (i) is not a current Employee of the
Corporation or an “affiliated corporation” (as defined in the Treasury regulations promulgated
under Section 162(m) of the Code), is not a former Employee of the Corporation or of an affiliated
corporation receiving compensation for prior services (other than benefits under a tax qualified
pension plan), was not an officer of the Corporation or of an affiliated corporation at any time,
and is not currently receiving direct or indirect remuneration 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.



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



          (u) “Plan” shall mean this Incentive Stock Plan.



          (v) “Purchaser” shall mean an Employee, Director or Consultant who exercises a Stock Purchase
Right.



          (w) “Share” shall mean a share of the Stock, as adjusted in accordance with Section 14 of the
Plan.



          (x) “Stock” shall mean the Common Stock of the Corporation.



          (y) “Stock Option Agreement” shall mean the written agreement setting forth the grant of an
Option and terms and conditions relating thereto (which need not be the same for each Option), in
such form as the Board in its discretion may approve and for Non-Employee Directors.



          (z) “Stock Purchase Agreement” shall mean a written agreement (which need not be the same for
each Stock Purchase Right) setting forth the terms and conditions relating to the purchase of Stock
under a Stock Purchase Right, in the form attached hereto or such other form as the Board in its
discretion may approve.



          (aa) “Stock Purchase Right” shall mean a right to purchase Stock pursuant to the Plan.



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          (ab) “Subsidiary” shall mean a “subsidiary corporation,” whether now or hereafter existing, as
defined in Section 424(f) of the Code.



     3. Shares Subject to the Plan. There will be reserved for use from time to time under the
Plan, an aggregate of 9,500,000 shares of Stock of $0.001 par value of the Corporation. As the
Board shall from time to time determine, the Shares may be in whole or in part, authorized but
unissued Shares or issued Shares which shall have been reacquired by the Corporation. If an Option
or Stock Purchase Right should expire or become unexercisable for any reason without having been
exercised in full, the unpurchased Shares which were subject thereto shall become available for
future grant or sale under the Plan unless the Plan shall have been terminated.



     4. Administration of Plan.



          (a) Committee. The Plan shall be administered by the Board; provided that the Board may
appoint a Committee, which shall consist of not fewer than two members of the Board. In the
discretion of the Board, the Committee may consist solely of two or more Outside Directors, in
accordance with Code Section 162(m), or solely of two or more Non-Employee Directors, in accordance
with Rule 16b-3. The Board may from time to time appoint members of the Committee in substitution
for or in addition to members previously appointed and may fill vacancies, however caused, in the
Committee. The Committee shall select one of its members as its chairman and shall hold its
meetings at such times and places as it shall deem advisable. A majority of its members shall
constitute a quorum. All action of the Committee shall be taken by a majority of its members. Any
action may be taken by a written instrument signed by a majority of the members and action so taken
shall be fully as effective as if it had been taken by a vote held. The Committee may appoint a
secretary, shall keep minutes of its meetings, and shall make such rules and regulations for the
conduct of its business as it shall deem advisable. The Committee’s interpretation and construction
of any of the provisions of this Plan, or of any rules promulgated under this Plan, or of any
agreements entered into under this Plan, shall be final and binding on all Optionees, Purchasers,
and any other holders of any Options or Stock Purchase Rights granted under the Plan. No member of
the Committee shall be liable for any action or determination made in good faith in connection with
this Plan. Notwithstanding anything in this Section 4 to the contrary, the Board or the Committee
may delegate to a committee of one or more members of the Board the authority to grant Options and
Stock Purchase Rights to eligible persons who (1) are not then subject to Section 16 of the
Exchange Act and/or (2) are either: (i) not then Covered Employees and are not expected to be
Covered Employees at the time of recognition of income resulting from such Option or Stock Purchase
Right; or (ii) not persons with respect to whom the Corporation wishes to comply with Section
162(m) of the Code.



          (b) Powers of the Board. Subject to the provisions of the Plan, the Board shall have the
authority, in its discretion: (i) to grant Incentive Stock Options, Nonstatutory Stock Options or
Stock Purchase Rights; (ii) to determine, upon review of relevant information in accordance with
Section 6 of the Plan, the fair market value of the Stock; (iii) to determine the exercise price
per share of Options or Stock Purchase Rights to be granted, which exercise price shall be
determined in accordance with Section 6 of the Plan; (iv) to determine the Employees, Directors and
Consultants to whom, and the time or times at which, Options, or Stock Purchase Rights shall be
granted and the number of Shares to be represented by each Option or Stock Purchase Right; (v) to
interpret the Plan; (vi) to prescribe, amend, and rescind rules and regulations relating to the
Plan; (vii) to determine the terms and provisions of each Option granted (which need not be the
same for each Option granted) and, with the consent of the holder thereof, modify, terminate or
amend each Option provided,



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however, that the Board shall not have the power to lower the Option price except pursuant to the
terms of Section 13 of the Plan; (viii) to accelerate or defer (with the consent of the Optionee)
the exercise date of any Option; (ix) to authorize any person to execute on behalf of the
Corporation any instrument required to effectuate the grant of an Option or Stock Purchase Right
previously granted by the Board; and (x) to make all other determinations deemed necessary or
advisable for the administration of the Plan.



     5. Eligibility of Employees, Directors and Consultants. With respect to Options and Stock
Purchase Rights granted to Employees, Directors and Consultants:



          (a) Generally. Options and Stock Purchase Rights may be granted to Employees, Directors and
Consultants, provided that Incentive Stock Options may only be granted to Employees. An Employee,
Director or Consultant who has been granted an Option or Stock Purchase Right may, if he is
otherwise eligible, be granted additional Options or Stock Purchase Rights.



          (b) Criteria. In making any determination as to Employees, Directors and Consultants to whom
Options and Stock Purchase Rights shall be granted, the Committee shall take into account such
factors as it shall deem relevant in accomplishing the purpose of the Plan, including but not
limited to the Employee’s, Director’s or Consultant’s loyalty, performance, and experience.



          (c) ISO Limitations with Respect to Price and Term. In no event shall an Incentive Stock
Option be granted to an Employee who, at the time such Option is granted, owns (as defined in
Section 422 of the Code) Shares possessing more than 10% of the total combined voting power of all
classes of Shares of the Corporation or any of its Affiliates, unless the Option price is at least
110% of the fair market value of the Stock subject to the Option, and such Option is by its terms
not exercisable after the expiration of five years from date such Option is granted.



          (d) ISO Limitations with Respect to Shares. Moreover, the aggregate fair market value
(determined as of the time that Option is granted) of the Shares with respect to which Incentive
Stock Options are exercisable for the first time by any individual Employee during any single
calendar year under this Plan and all the incentive stock plans of the Corporation (and its
Affiliates, if any), shall not exceed $100,000.



          (e) Subject to the provisions of Section 13 relating to adjustments upon changes in Stock, no
person shall be eligible to be granted Options or Stock Purchase Rights covering more than Five
Hundred Thousand (500,000) Shares in any calendar year.



     6. Prices for Options and Stock Purchase Rights. With respect to Options and Stock Purchase
Rights:



          (a) Generally. The per share exercise price for the Shares to be issued pursuant to exercise
of an Option shall be such price as is determined by the Board. However, the exercise price of the
Shares which shall be covered by each Stock Option shall be at least 100% of the fair market value
of the Shares at the time of granting the Stock Option.



          (b) Payment. The consideration to be paid for the Shares to be issued upon exercise of an
Option, or Stock Purchase Right, including the method of payment, shall be determined by the Board
and may consist entirely of cash, check, or other Shares having a fair market value on the date of
surrender equal to the aggregate exercise price of the Shares as to which said Option or Stock
Purchase Right shall be exercised, or any combination of such methods of payment, or such other
consideration and method of payment for the issuance of Shares to the extent permitted under
applicable law. In addition, the Corporation may accept a promissory note issued by a person
exercising an Option or a Stock Purchase Right;



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provided that such person pay in cash at the time of purchase at least the aggregate par value of
the Shares purchased and the promissory note be for an amount no greater than the full purchase
price less such aggregate par value amount. In making its determination as to the type of
consideration to accept, the Board shall consider if acceptance of such consideration may be
reasonably expected to benefit the Corporation.



     7. Option Provisions.



          (a) Generally. Subject to the provisions of the Plan, the Board shall determine for each
Option (which need not be identical) the number of Shares for which the Option shall be granted,
the exercise price of the Option, and all other terms and conditions of the Option.



          (b) Term of Option. The term of each Option may be up to 10 years from the date of grant
thereof or such shorter term as may be provided in the Stock Option Agreement. However, in the case
of an Incentive Stock Option granted to an Employee who, at the time the Incentive Stock Option is
granted, owns Stock representing more than 10% of the voting power of all classes of Stock of the
Corporation or any Affiliate of the Corporation, the term of the Incentive Stock Option shall be
five years from the date of grant thereof or such shorter time as may be provided in the Stock
Option Agreement.



          (c) Exercise of Option.



               (i) Any Option granted hereunder shall be exercisable at such times and under such conditions
as determined by the Board, including performance criteria with respect to the Corporation or the
Optionee, or both, and as such shall be permissible under the terms of the Plan.



               (ii) An Option may not be exercised for a fraction of a Share.



               (iii) An Option shall be deemed to be exercised when written notice of such exercise has been
given to the Corporation in accordance with the terms of the Option by the person entitled to
exercise the Option and full payment for the Shares with respect to which the Option is exercised
has been received by the Corporation. Full payment may, as authorized by the Board, consist of any
consideration and method of payment allowable under Section 6 of the Plan. Until the issuance (as
evidenced by the appropriate entry on the books of the Corporation or of a duly authorized transfer
agent of the Corporation) of the Stock certificate evidencing such Shares, no right to vote or
receive dividends or any other rights of a Stockholder shall exist with respect to the Optioned
Stock, notwithstanding the exercise of the Option. No adjustment will be made for a dividend or
other right for which the record date is prior to the date the Stock certificate is issued, except
as provided in Section 13 of the Plan.



               (iv) Exercise of an Option in any manner shall result in a decrease in the number of Shares
which thereafter may be available, both for purposes of the Plan and for sale under the Option, by
the number of Shares as to which the Option is exercised.



               (v) Except as otherwise specifically provided herein or in the Stock Option Agreement, an
Option may not be exercised at any time unless the holder thereof shall have maintained Continuous
Status as an Employee, Director or Consultant of the Corporation or of one or more of its
Affiliates, from the date of the granting of the Option to the date of its exercise.



          (d) Termination of Employment. In the event that an Optionee’s Continuous Status as an
Employee, Director or Consultant shall be terminated other than by reason of death or disability,
such Option may be



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exercised (to the extent that the Optionee shall have been entitled to do so at the termination of
Continuous Status as an Employee, Director or Consultant) at any time within three months after
such termination or such other longer or shorter period as set forth in the Stock Option Agreement,
but in any event no later than the date of expiration of the Option term. So long as the holder of
an Option shall maintain Continuous Status as an Employee, Director or Consultant, his Option shall
not be affected by any change of duties or position. To the extent that the holder of an Option was
not entitled to exercise his Option at the time of his termination, or insofar as he does not
exercise such Option to the extent he was entitled within the time specified herein, the Option
shall itself terminate at the time of such termination.



          (e) Disability of Optionee. Notwithstanding the provisions of Section 7(d) above, in the event
an Optionee does not maintain Continuous Status as an Employee, Director or Consultant as a result
of his total and permanent disability (as defined in Section 22(e)(3) of the Code), he may, but
only within six months after termination due to such disability (or such other longer or shorter
period as set forth in the Stock Option Agreement), exercise his Option to the extent he was
entitled to exercise it at the date of such disability. To the extent that he was not entitled to
exercise the Option at the date of disability, or insofar as he does not exercise such Option to
the extent he was entitled within the time specified herein, the Option shall terminate.



          (f) Death of Optionee. Unless otherwise set forth in the Stock Option Agreement, in the event
of the death of an Optionee who at the time of his death is an Employee, Director or Consultant and
who shall have been in Continuous Status as an Employee, Director or Consultant since the date of
grant of the Option, or with respect to an Optionee who was such an Employee, Director or
Consultant within the preceding three months, the Option may be exercised, at any time within six
months following the date of death (or such longer or shorter period as set forth in the Stock
Option Agreement), by the Optionee’s estate or by a person who acquired the right to exercise the
Option by bequest or inheritance, but only to the extent of the right to exercise that has accrued
at the date of such termination or otherwise pursuant to the terms of the Stock Option Agreement.



          (g) Other. Notwithstanding any provision in this Plan to the contrary, no Option shall
terminate later than the original expiration date set forth in any related Stock Option Agreement.



     8. Stock Purchase Rights.



          (a) Rights to Purchase. After the Board determines that it will offer an Employee, Director or
Consultant the right to purchase Shares (other than pursuant to an Option) under the Plan, it shall
advise the offeree in writing of the terms, conditions, and restrictions relating to the offer,
including the number of Shares which such person shall be entitled to purchase, the proposed Stock
Purchase Agreement, and the time within which such person must accept such offer, which shall in no
event exceed nine months from the date upon which the Board made the determination to grant the
Stock Purchase Right. The offer may be accepted by execution of the Stock Purchase Agreement and
its return to the Corporation (together with payment for the Stock being purchased) within the time
specified.



          (b) Issuance of Shares. Forthwith after payment therefor, the Shares purchased shall be duly
issued; provided, however, that the Board may require that the Purchaser make adequate provision
for any Federal and State withholding obligations as a condition to the Purchaser purchasing such
Shares.



          (c) Repurchase Option. Unless the Board determines otherwise, the Stock Purchase Agreement
shall (i) grant the Corporation a repurchase option exercisable upon the voluntary or involuntary
termination of the



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Purchaser’s Continuous Status as an Employee, Director or Consultant for any reason; and (ii) set
the purchase price for Shares repurchased at the original price paid by the Purchaser (plus
interest, if any, to be paid pursuant to the Stock Purchase Agreement), which may be paid by
cancellation of any indebtedness of the Purchaser to the Corporation. The repurchase option shall
lapse at such rate as the Board may determine.



          (d) Other Provisions. The Stock Purchase Agreement shall contain such other terms, provisions,
and conditions not inconsistent with the Plan as may be determined by the Board.



     9. Non-Discretionary Grants to Non-Insider Directors.



          (a) New Non-Insider Directors. Each person who is on or after January 27, 1993 elected for the
first time to be a Non-Insider Director shall, upon the date of his initial election to be a
Non-Insider Director by the Board or Stockholders of the Corporation, whichever shall first occur,
be granted a Nonstatutory Stock Option to purchase 10,000 Shares of Common Stock of the Corporation
on the terms and conditions set forth herein.



          (b) Annual Grants. On January 27th of each fiscal year, commencing with January 27, 1993, each
person who is then a Non-Insider Director and has been a Non-Insider Director for at least three
months shall be granted a Nonstatutory Stock Option to purchase 5,000 Shares of Common Stock of the
Corporation on the terms and conditions set forth herein.



     10. Prices for Non-Insider Directors.



          (a) Generally. The exercise price of each Option granted under Section 9 shall be 100% of the
fair market value of the Common Stock (which shall be the closing sales price) subject to such
Option on the date such Option is granted; provided, however, that if such date of grant is not
a trading day, the exercise price of such Option shall be 100% of the fair market value of the
Common Stock subject to such Option on the trading day immediately preceding the date such Option
is granted.



          (b) Payment. Each Non-Insider Director may elect to make payment of the exercise price under
one of the following alternatives:



               (i) Payment of the exercise price per share in cash at the time of exercise; or



               (ii) Provided that at the time of the exercise the Corporation’s Common Stock is publicly
traded and quoted regularly in The Wall Street Journal, payment by delivery of Shares of Common
Stock of the Corporation already owned by the Non-Insider Director, held for the period required to
avoid a charge to the Corporation’s reported earnings, and owned free and clear of any liens,
claims, encumbrances or security interest, which Common Stock shall be valued at fair market value
on the date preceding the date of exercise; or



               (iii) Payment by a combination of methods of payment specified in subparagraph 10(b)(i) and
10(b)(ii) above.



     11. Non-Insider Directors’ Option Provisions.



     Notwithstanding any provisions in this Plan to the contrary, each Option issued to Non-Insider
Directors under Section 10 shall contain the following terms and conditions:



          (a) Term of Option. The term of each Option commences on the date it is granted and, unless
sooner terminated as set forth herein, expires on the date (“Expiration Date”) ten years from the
date of grant.



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          (b) Termination of Service. In the event that the services of a Non-Insider Director to whom a
Non-Insider Director Option has been granted terminate for any reason or no reason, other than by
reason of death or disability, such Option may be exercised (to the extent that the Non-Insider
Director shall have been entitled to do so at the termination of his service) at any time within
three months after such termination. To the extent that such Non-Insider Director was not entitled
to exercise his Option at the time of his termination, or insofar as he does not exercise such
Option to the extent he was entitled within the time specified herein, the Option shall itself
terminate at the time of such termination. Notwithstanding any provision in this Section 11(b) to
the contrary, the services of a Non-Insider Director shall not be deemed terminated if such
Non-Insider Director subsequently becomes an Employee, Director or Consultant.



          (c) Disability of Optionee. Notwithstanding the provisions of Section 11(b) above, in the
event a Non-Insider Director is unable to perform services as a Non-Insider Director for the
benefit of the Corporation as a result of his total and permanent disability (as defined in Section
22(e)(3) of the Code), he may, but only within six months after termination due to such disability,
exercise his Option to the extent he was entitled to exercise it at the date of such disability. To
the extent that he was not entitled to exercise the Option at the date of disability, or insofar as
he does not exercise such Option to the extent he was entitled within the time specified herein,
the Option shall terminate.



          (d) Death of Optionee. In the event of the death of an Optionee who at the time of his death
is a Non-Insider Director of the Corporation and who shall have continuously served as a
Non-Insider Director since the date of grant of the Option, or with respect to an Optionee who was
a Non-Insider Director within the preceding three months, the Option may be exercised, at any time
within six months following the date of death, by the Optionee’s estate or by a person who acquired
the right to exercise the Option by bequest or inheritance, but only to the extent of the right to
exercise that has accrued at the date of such termination or otherwise pursuant to the terms of the
Stock Option Agreement.



          (e) No Extension. Notwithstanding any provision in this Plan to the contrary, no Option
granted to a Non-Insider Director under Section 9 shall terminate later than its original
Expiration Date.



          (f) Exercisability. Options granted under Section 9 shall become exercisable from the date of
grant at the rate of 2% per month over a period of 50 months; provided that the Optionee has,
during the entire period prior to such vesting date, continuously served as a Non-Insider Director
or subsequent to serving as a Non-Insider Director continuously served as an Employee, Director or
Consultant, whereupon such Option shall become fully exercisable in accordance with its terms with
respect to that portion of the Shares represented by that installment.



     12. Non-Transferability of Options and Stock Purchase Rights. The Options and Stock Purchase
Rights may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in any manner
other than by will or by the laws of descent or distribution and may be exercised, during the
lifetime of the Optionee or Purchaser, only by the Optionee or Purchaser, provided that the Board
may grant a Nonstatutory Stock Option that is transferable to the extent provided in the Stock
Option Agreement.



     13. Adjustments Upon Changes in Capitalization or Merger.



          (a) Proportional Adjustments. Subject to any required action by the Stockholders of the
Corporation, the number of Shares covered by each outstanding Option and Stock Purchase Right, the
number of Shares which have been authorized for issuance under the Plan but as to which no Options
or Stock Purchase Rights have yet been granted or which have been returned to the Plan upon
cancellation or expiration of an Option or Stock Purchase Right, and



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the maximum number of Shares subject to award to any person during any calendar year period
pursuant to Section 5(e), as well as the price per Share covered by each such outstanding Option or
Stock Purchase Right, shall be proportionately adjusted for any increase or decrease in the number
of issued Shares resulting from a stock split, the payment of a stock dividend with respect to the
stock, or any other increase or decrease in the number of issued Shares effected without receipt of
consideration by the Corporation; provided, however, that conversion of any convertible securities
of the Corporation shall not be deemed to have been “effected without receipt of consideration.”
Such adjustment shall be made by the Board, whose determination in that respect shall be final,
binding and conclusive. Except as expressly provided herein, no issuance by the Corporation of
shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of Shares subject to an Option or Stock Purchase Right.



          (b) Reorganization. With respect to Options granted other than to Non-Insider Directors
pursuant to Section 9, in the event of the proposed dissolution or liquidation of the Corporation,
or in the event of a proposed sale of all or substantially all of the assets of the Corporation, or
the merger of the Corporation with or into another corporation, at the sole discretion of the Board
and to the extent permitted by applicable law: (i) any surviving corporation shall assume any
Options outstanding under the Plan or shall substitute similar Options for those outstanding under
the plan; (ii) such Options shall continue in full force and effect; or (iii) each Option held by
an Optionee then performing services as an Employee, Director or Consultant will become fully
exercisable with respect to all of the Shares subject to the Option prior to the consummation of
such proposed action at such time as the Board in its discretion may determine and the Option
terminated if not exercised prior to such event. The Board may also in its discretion require that
all of the Shares purchased pursuant to the foregoing clause (iii) which would not otherwise be
purchasable at such time except by operation of such clause (iii) shall be subject to a repurchase
right of the Corporation (or its successor) which repurchase right shall expire at the same (or
earlier) times and to the same (or greater) extent as such Shares would have become purchasable
under the Option had the Option not become fully exercisable pursuant to clause (iii). For this
purpose, the Board may require that the Optionee and the Corporation (or its successor) execute an
agreement (in such form as determined by the Board) with respect to such Shares to reflect the
Corporation’s (or its successor’s) repurchase right. If such Option is to be assumed or
substituted, then such Option shall be appropriately adjusted to apply to the kind, class and
number of securities or other property which would have been issuable to the Optionee in the
consummation of such transaction had the Option been exercised immediately prior to such
transaction and appropriate adjustments shall also be made to the price payable per share, provided
that the aggregate Option price payable thereunder shall remain the same. With respect to Options
granted to Non-Insider Directors pursuant to Section 9, in the event of the proposed dissolution or
liquidation of the Corporation, or in the event of a proposed sale of all or substantially all of
the assets of the Corporation, or the merger of the Corporation with or into another corporation,
to the extent permitted by applicable law, each Option held by an Optionee then performing services
as a Non-Insider Director will become fully exercisable with respect to all of the Shares subject
to the Option immediately prior to the consummation of such proposed action and the Option
terminated if not exercised prior to such event.



     14. Effectiveness of Plan. The Plan became effective on January 22, 1987.



     15. Time of Granting Options. Unless otherwise specifically determined by the Board, the
granting of an Option shall be deemed to occur at such time as final corporate action necessary to
authorize the grant shall have occurred.



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     16. No Employee Contract. The Plan shall not confer upon any holder of an Option or holder of
a Stock Purchase Right any right with respect to continuation of employment by or the rendition of
consulting or director services to the Corporation or any Affiliate of the Corporation, nor shall
it interfere in any way with his right or the Corporation’s or its Affiliates’ (and in the case of
directors, the Stockholders’) right to terminate his employment or services as a Consultant or
director at any time.



     17. Withholding. To the extent provided by the terms of a Stock Option Agreement or Stock
Purchase Agreement, any Optionee or Purchaser may satisfy any federal, state or local tax
withholding obligation relating to the purchase of Stock by any of the following means or by a
combination of such means: (1) tendering a cash payment; (2) authorizing the Corporation to
withhold from the Shares otherwise issuable to the purchaser a number of Shares having a fair
market value less than or equal to the amount of the withholding tax obligation; or (3) delivering
to the Corporation owned and unencumbered Shares having a fair market value less than or equal to
the amount of withholding tax obligation.



     18. Termination and Amendment of Plan.



          (a) Termination. The Plan shall terminate on January 16, 2007, and no Option or Stock Purchase
Right shall be granted under the Plan after that date.



          (b) Amendment. Except as otherwise set forth in Section 11(g), the Board at any time, and from
time to time, may amend the Plan. However, except as provided in Section 13(a) relating to
adjustments upon changes in Stock, no amendment shall be effective unless approved by the
Stockholders of the Corporation to the extent stockholder approval is necessary to satisfy the
requirements of Section 422(b) of the Code, to comply with the requirements of Rule 16b-3
promulgated under the Exchange Act, or to satisfy any Nasdaq or securities exchange listing
requirements. The Board may, in its sole discretion, submit any other amendment to the Plan for
Stockholder approval, including, but not limited to, amendments to the Plan intended to satisfy the
requirements of Section 162(m) of the Code and the regulations promulgated thereunder regarding the
exclusion of performance-based compensation from the limit on corporate deductibility of
compensation paid to certain executive officers.



          (c) It is expressly contemplated that the Board may amend the Plan in any respect the Board
deems necessary or advisable to provide Optionees with the maximum benefits provided or to be
provided under the provisions of the Code and the regulations promulgated thereunder relating to
employee Incentive Stock Options and/or to bring the Plan and/or Incentive Stock Options granted
under it into compliance therewith.



          (d) Rights and obligations under any Option granted before amendment or termination of the
Plan shall not be altered or impaired by any amendment of the Plan unless: (i) the Corporation
requests the consent of the person to whom the Option was granted; and (ii) such person consents in
writing.



     19. Issuance of Shares.



          (a) The Corporation shall not be required to issue Shares pursuant to the exercise of an
Option or Stock Purchase Right unless the exercise of such Option or Stock Purchase Right and the
issuance and delivery of such Shares pursuant thereto shall comply with all relevant provisions of
law, including, without limitation, the Securities Act of 1933, as amended, the Exchange Act, the
rules and regulations promulgated thereunder, and the requirements of any Stock exchange upon which
the Shares may then be listed, and shall be further subject to the approval of counsel for the
Corporation with respect to such compliance; provided, however, that this provision shall not
require the Corporation to



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register under the Securities Act of 1933, as amended, either the Plan, any Option or Stock
Purchase Right, or any Stock issued or issuable pursuant to such Option or Right.



          (b) As a condition to the exercise of an Option or Stock Purchase Right, the Corporation may
impose various conditions, including a requirement that the person exercising such Option represent
and warrant, at the time of any such exercise, that the Shares are being purchased only for
investment and without any present intention to sell or distribute such Shares.



     20. Reservation of Shares. The Corporation, during the term of this Plan, will at all times
reserve and keep available such number of Shares as shall be sufficient to satisfy the requirements
of the Plan. The inability of the Corporation to obtain authority from any regulatory body having
jurisdiction, which authority is deemed by the Corporation’s counsel to be necessary to the lawful
issuance and sale of any Shares hereunder, shall relieve the Corporation of any liability in
respect of the failure to issue or sell such Shares as to which such requisite authority shall not
have been obtained.




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