exv10w2



 





Exhibit 10.2




PEPLIN, INC. 2007 INCENTIVE AWARD PLAN




     Peplin, Inc., a Delaware corporation (the “Company”), by resolution of its Board of
Directors, hereby adopts the Peplin, Inc. 2007 Incentive Award Plan (the “Plan”).



     The purpose of the Plan is to promote the success and enhance the value of the Company by
linking the personal interests of the members of the Board, Employees, and Consultants to those of
the Company’s stockholders and by providing such individuals with an incentive for outstanding
performance to generate superior returns to the Company’s stockholders. The Plan is further
intended to provide flexibility to the Company in its ability to motivate, attract, and retain the
services of members of the Board, Employees, and Consultants upon whose judgment, interest, and
special effort the successful conduct of the Company’s operation is largely dependent.



ARTICLE I.




DEFINITIONS




          Wherever the following terms are used in the Plan they shall have the meanings specified
below, unless the context clearly indicates otherwise. The singular pronoun shall include the
plural where the context so indicates.




          1.1. “Administrator” shall mean the entity that conducts the general administration of
the Plan as provided in Article X. With reference to the administration of the Plan with respect
to Awards granted to Non-Employee Directors, the term “Administrator” shall refer to the Board.
With reference to the administration of the Plan with respect to any other Award, the term
“Administrator” shall refer to the Committee unless the Board has assumed the authority for
administration of the Plan generally as provided in Section 10.2. With reference to the duties of
the Committee under the Plan which have been delegated to one or more persons pursuant to Section
10.5, the term “Administrator” shall refer to such person(s) unless the Committee or the Board has
revoked such delegation.




          1.2. “ASX Listing Rules” shall mean the listing rules of the Australian Securities
Exchange, as amended from time to time.




          1.3. “Award” shall mean an Option, a Restricted Stock Award, a Restricted Stock Unit
Award, a Performance Award, a Dividend Equivalents Award, a Deferred Stock Award, a Stock Payment
Award or a Stock Appreciation Right, which may be awarded or granted under the Plan (collectively,
“Awards”).




          1.4. “Award Agreement” shall mean a written agreement executed by an authorized
officer of the Company and the Holder which shall contain such terms and conditions with respect to
an Award as the Administrator shall determine; provided, that such terms and conditions shall not
be inconsistent with the terms and conditions of the Plan.




          1.5. “Award Limit” shall mean three hundred thousand (300,000) shares of Common Stock,
as adjusted pursuant to Section 11.3. Solely with respect to cash-based Performance Awards granted
pursuant to Section 8.2(b), “Award Limit” shall mean $500,000.




 









 








          1.6. “Board” shall mean the Board of Directors of the Company.




          1.7. “Change in Control” shall mean the occurrence of any of the following
transactions or events occurring on or after the Effective Date:




               (a) the acquisition, directly or indirectly, by any “person” or “group” (as those terms are
defined in Sections 3(a)(9), 13(d), and 14(d) of the Exchange Act and the rules thereunder) of
“beneficial ownership” (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities
entitled to vote generally in the election of directors (“voting securities”) of the
Company that represent 50% or more of the combined voting power of the Company’s then outstanding
voting securities, other than




               (i) an acquisition by a trustee or other fiduciary holding securities under any
employee benefit plan (or related trust) sponsored or maintained by the Company or
any person controlled by the Company or by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any person controlled by the
Company, or




               (ii) an acquisition of voting securities by the Company or a corporation owned,
directly or indirectly, by the stockholders of the Company in substantially the same
proportions as their ownership of the stock of the Company, or




               (iii) an acquisition of voting securities pursuant to a transaction described
in clause (c) below that would not be a Change in Control under clause (c);



          Notwithstanding the foregoing, an acquisition of the Company’s securities by the Company
which, either alone or in combination only with the other event, causes the Company’s voting
securities beneficially owned by a person or group to represent 50% or more of the combined voting
power of the Company’s then outstanding voting securities shall not constitute an “acquisition” by
any person or group for purposes of this clause (a); provided, however, that if a person or group
shall become the beneficial owner of 50% or more of the combined voting power of the Company’s then
outstanding voting securities by reason of share acquisitions by the Company as described above and
shall, after such share acquisitions by the Company, become the beneficial owner of any additional
voting securities of the Company, then such acquisition shall constitute a Change in Control;




               (b) individuals who, as of the date hereof, constitute the Board (the “Incumbent
Board”) cease for any reason to constitute at least a majority of the Board; provided, however,
that any individual becoming a director subsequent to the date hereof whose election, or nomination
for election by the Company’s stockholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as though such individual were a
member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened election contest with respect to
the election or removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a person other than the Board;



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               (c) the consummation by the Company (whether directly involving the Company or indirectly
involving the Company through one or more intermediaries) of (x) a merger, consolidation,
reorganization, or business combination or (y) a sale or other disposition of all or substantially
all of the Company’s assets or (z) the acquisition of assets or stock of another entity, in each
case, other than a transaction




               (i) which results in the Company’s voting securities outstanding immediately
before the transaction continuing to represent (either by remaining outstanding or
by being converted into voting securities of the Company or the person that, as a
result of the transaction, controls, directly or indirectly, the Company or owns,
directly or indirectly, all or substantially all of the Company’s assets or
otherwise succeeds to the business of the Company (the Company or such person, the
“Successor Entity”)) directly or indirectly, at least 50% of the combined
voting power of the Successor Entity’s outstanding voting securities immediately
after the transaction, and




               (ii) after which more than 50% of the members of the board of directors of the
Successor Entity were members of the Incumbent Board at the time of the Board’s
approval of the agreement providing for the transaction or other action of the Board
approving the transaction, and




               (iii) after which no person or group beneficially owns voting securities
representing 50% or more of the combined voting power of the Successor Entity;
provided, however, that no person or group shall be treated for purposes of this
clause (C) as beneficially owning 50% or more of combined voting power of the
Successor Entity solely as a result of the voting power held in the Company prior to
the consummation of the transaction; or



               (d) stockholder approval of a liquidation or dissolution of the Company.



          For purposes of clause (a) above, the calculation of voting power shall be made as if the date
of the acquisition were a record date for a vote of the Company’s stockholders, and for purposes of
clause (c) above, the calculation of voting power shall be made as if the date of the consummation
of the transaction were a record date for a vote of the Company’s stockholders.




          1.8. “Code” shall mean the Internal Revenue Code of 1986, as amended from time to
time.




          1.9. “Committee” shall mean the Compensation Committee of the Board, or another
committee or subcommittee of the Board, appointed as provided in Article X.




          1.10. “Common Stock” shall mean the common stock of the Company, par value $0.001 per
share.




          1.11. “Company” shall mean Peplin, Inc., a Delaware corporation.




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          1.12. “Consultant” shall mean any consultant or adviser if: (a) the consultant or
adviser is a natural person, (b) the consultant or adviser renders bona fide services to the
Company or any Subsidiary; and (c) the services rendered by the consultant or adviser are not in
connection with the offer or sale of securities in a capital-raising transaction and do not
directly or indirectly promote or maintain a market for the Company’s securities.




          1.13. “Covered Employee” shall mean any Employee who is, or could be, a “covered
employee” within the meaning of Section 162(m) of the Code.




          1.14. “Deferred Stock” shall mean a right to receive Common Stock awarded under
Section 8.5 of the Plan.




          1.15. “Director” shall mean a member of the Board.




          1.16. “Dividend Equivalent” shall mean a right to receive the equivalent value (in
cash or Common Stock) of dividends paid on Common Stock, awarded under Section 8.3 of the Plan.




          1.17. “DRO” shall mean a domestic relations order as defined by the Code or Title I of
the Employee Retirement Income Security Act of 1974, as amended from time to time, or the rules
thereunder.




          1.18. “Effective Date” shall mean the date the Plan is adopted by the Board.




          1.19. “Employee” shall mean any officer or other employee (as defined in accordance
with Section 3401(c) of the Code) of the Company, or of any Subsidiary.




          1.20. “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from
time to time.




          1.21. “Fair Market Value” means, as of any date, the value of a share of Common Stock
determined as follows:




               (a) If the Common Stock is listed on any established stock exchange (such as the New York
Stock Exchange, the NASDAQ Global Market and the NASDAQ Global Select Market) or any national
market system, including without limitation any market system of The NASDAQ Stock Market, the value
of a share of Common Stock shall be the closing sales price for a share of Common Stock as quoted
on such exchange or system for such date, or if there is no closing sales price for a share of
Common Stock on the date in question, the closing sales price for a share of Common Stock on the
last preceding date for which such quotation exists, as reported in The Wall Street Journal or such
other source as the Administrator deems reliable;



               (b) If the Common Stock is regularly quoted by a recognized securities dealer but closing
sales prices are not reported, the value of a share of Common Stock shall be the mean of the high
bid and low asked prices for such date or, if there are no high bid and low asked prices for a
share of Common Stock on the date in question, the high bid and low asked prices for a share of
Common Stock on the last preceding date for which such information exists,



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as reported in The Wall Street Journal or such other source as the Administrator deems
reliable; or




               (c) If the Common Stock is neither listed on an established stock exchange or a national
market system nor regularly quoted by a recognized securities dealer, the value of a share of
Common Stock shall be established by the Administrator in good faith.



          1.22. “Fiscal Year” means the fiscal year of the Company.




          1.23. “Holder” shall mean a person who has been granted an Award.




          1.24. “Incentive Stock Option” shall mean an option which conforms to the applicable
provisions of Section 422 of the Code and which is designated as an Incentive Stock Option by the
Administrator.




          1.25. “Non-Employee Director” shall mean a Director who is not an Employee.




          1.26. “Non-Qualified Stock Option” shall mean an Option which is not designated as an
Incentive Stock Option by the Administrator.




          1.27. “Option” shall mean a stock option granted under Article IV of the Plan. An
Option granted under the Plan shall be either a Non-Qualified Stock Option or an Incentive Stock
Option, as determined by the Administrator; provided, however, that Options granted to Non-Employee
Directors and Consultants shall be Non-Qualified Stock Options.




          1.28. “Peplin Limited” shall mean Peplin Limited ACN 090 819 275.




          1.29. “Peplin Restructuring” shall mean the reorganization of Peplin Limited and its
subsidiaries pursuant to a restructure implementation agreement.




          1.30. “Performance Award” shall mean a cash bonus, stock bonus or other performance or
incentive award that is paid in cash, Common Stock or a combination of both, awarded under Section
8.2 of the Plan.




          1.31. “Performance Criteria” means the criteria (and adjustments) that the Committee
selects for an Award for purposes of establishing the Performance Goal or Performance Goals for a
Performance Period, determined as follows:




          (a) The Performance Criteria that shall be used to establish Performance Goals are limited to
the following: (i) net earnings (either before or after (A) interest, (B) taxes, (C) depreciation
and (D) amortization), (ii) gross or net sales or revenue, (iii) net income (either before or after
taxes), (iv) operating profit, (v) cash flow (including, but not limited to, operating cash flow
and free cash flow), (vi) return on assets, (vii) return on capital, (viii) return on stockholders’
equity, (ix) return on sales, (x) gross or net profit or operating margin, (xi) costs, (xii) funds
from operations, (xiii) expenses, (xiv) working capital, (xv) earnings per share, and (xvi) price
per share of Common Stock, and (xvii) market share, any of which may be measured either in absolute
terms or as compared to any incremental increase or decrease or as compared to results of a peer
group.




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          (b) The Committee may, in its discretion, at the time of grant, specify in the Award that one
or more objectively determinable adjustments shall be made to one or more of the Performance Goals.
Such adjustments may include one or more of the following: (i) items related to a change in
accounting principle; (ii) items relating to financing activities; (iii) expenses for restructuring
or productivity initiatives; (iv) other non-operating items; (v) items related to acquisitions,
including product acquisitions; (vi) items attributable to the business operations of any entity
acquired by the Company during the Performance Period; (vii) items related to the disposal of a
business or segment of a business; or (viii) items related to discontinued operations that do not
qualify as a segment of a business under United States generally accepted accounting principles
(“GAAP”).




          1.32. “Performance Goals” means, for a Performance Period, one or more goals
established in writing by the Committee for the Performance Period based upon one or more
Performance Criteria. Depending on the Performance Criteria used to establish such Performance
Goals, the Performance Goals may be expressed in terms of overall Company performance or the
performance of a division, business unit, or individual. The achievement of each Performance Goal
shall be determined in accordance with GAAP to the extent applicable.




          1.33. “Performance Period” means 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 be measured for the purpose of determining a Holder’s right to, and the
payment of, a Performance Award.




          1.34. “Plan” shall mean this Peplin, Inc. 2007 Incentive Award Plan, as amended from
time to time.




          1.35. “Prior Award” shall mean an option to acquire ordinary shares in the capital of
Peplin Limited that is granted by Peplin Limited on or before the consummation of the initial
Peplin Restructuring.




          1.36. “Restricted Stock” shall mean Common Stock awarded under Article VII of the Plan
that is subject to repurchase or forfeiture.




          1.37. “Restricted Stock Units” shall mean rights to receive Common Stock awarded under
Section 8.6.




          1.38. “Rule 16b-3” shall mean Rule 16b-3 promulgated under the Exchange Act, as such
Rule may be amended from time to time.




          1.39. “Securities Act” shall mean the Securities Act of 1933, as amended from time to
time.




          1.40. “Stock Appreciation Right” shall mean a stock appreciation right granted under
Article IX of the Plan.




          1.41. “Stock Payment” shall mean: (a) a payment in the form of shares of Common
Stock, or (b) an option or other right to purchase shares of Common Stock, as part of a deferred
compensation arrangement or otherwise, made in lieu of all or any portion of the




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compensation, including without limitation, salary, bonuses, commissions and directors’ fees,
that would otherwise be payable to an Employee, Consultant or Non-Employee Director in cash,
awarded under Section 8.4 of the Plan.




          1.42. “Subsidiary” means any entity (other than the Company), whether domestic or
foreign, in an unbroken chain of entities beginning with the Company if each of the entities other
than the last entity in the unbroken chain beneficially owns, at the time of the determination,
securities or interests representing more than fifty percent (50%) of the total combined voting
power of all classes of securities or interests in one of the other entities in such chain.




          1.43. “Subsidiary Corporation” shall mean any corporation in an unbroken chain of
corporations beginning with the Company if each of the corporations other than the last corporation
in the unbroken chain then owns stock possessing fifty percent (50%) or more of the total combined
voting power of all classes of stock in one of the other corporations in such chain.




          1.44. “Substitute Award” shall mean an Option granted under this Plan upon the
assumption of, or in substitution for or replacement of, outstanding equity awards previously
granted by a company or other entity (including, without limitation, Peplin Limited) in connection
with a corporate transaction, such as a merger, combination, consolidation, reorganization or
acquisition of property or stock; provided, however, that in no event shall the term “Substitute
Award” be construed to refer to an award made in connection with the cancellation and repricing of
an Option.




          1.45. “Termination of Consultancy” shall mean the time when the engagement of a Holder
as a Consultant to the Company or a Subsidiary is terminated for any reason, with or without cause,
including, without limitation, by resignation, discharge, death or retirement, but excluding
terminations where there is a simultaneous commencement of employment or service with the Company
or any Subsidiary. The Administrator, in its discretion, shall determine the effect of all matters
and questions relating to Termination of Consultancy, including, without limitation, the question
of whether a Termination of Consultancy resulted from a discharge for cause. Notwithstanding any
other provision of the Plan, the Company or any Subsidiary has an absolute and unrestricted right
to terminate a Consultant’s service at any time for any reason whatsoever, with or without cause,
except to the extent expressly provided otherwise in writing. For purposes of the Plan, the
engagement of a Holder as a Consultant to a Subsidiary shall be deemed to be terminated in the
event that the Subsidiary engaging such Holder ceases to remain a Subsidiary following any merger,
sale of stock or other corporate transaction or event (including, without limitation, a spin-off).




          1.46. “Termination of Directorship” shall mean the time when a Holder who is a
Non-Employee Director ceases to be a Director for any reason, including, without limitation, a
termination by resignation, failure to be elected, death or retirement. The Board, in its
discretion, shall determine the effect of all matters and questions relating to Termination of
Directorship with respect to Non-Employee Directors.




          1.47. “Termination of Employment” shall mean the time when the employee-employer
relationship between a Holder and the Company or any Subsidiary is terminated for




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any reason, with or without cause, including, without limitation, a termination by
resignation, discharge, death, disability or retirement, but excluding: (a) terminations where
there is a simultaneous reemployment or continuing employment of a Holder by the Company or any
Subsidiary, and (b) terminations which are followed by the simultaneous establishment of a
consulting relationship by the Company or a Subsidiary with the former employee. The
Administrator, in its discretion, shall determine the effect of all matters and questions relating
to Termination of Employment, including, without limitation, the question of whether a Termination
of Employment resulted from a discharge for cause; provided, however, that, with respect to
Incentive Stock Options, unless the Administrator otherwise provides in the terms of the Award
Agreement or otherwise, a leave of absence, change in status from an employee to an independent
contractor or other change in the employee-employer relationship shall constitute a Termination of
Employment if, and to the extent that, such leave of absence, change in status or other change
interrupts employment for the purposes of Section 422(a)(2) of the Code and the then applicable
regulations and revenue rulings under said Section. For purposes of the Plan, a Holder’s
employee-employer relationship shall be deemed to be terminated in the event that the Subsidiary
employing such Holder ceases to remain a Subsidiary following any merger, sale of stock or other
corporate transaction or event (including, without limitation, a spin-off).




ARTICLE II.




SHARES SUBJECT TO PLAN




          2.1. Shares Subject to Plan.




               (a) Subject to Section 11.3 and Section 2.1(b), the aggregate number of shares of Common Stock
that may be issued or transferred pursuant to Awards under the Plan initially shall be equal to
1,000,000 shares (the “Initial Authorized Shares”). In addition, in the event of any
cancellation, termination, expiration or forfeiture of any Prior Award during the term of the Plan
(including, without limitation, any cancellation of any Prior Award in connection with the Peplin
Restructuring), the number of shares of Common Stock that may be issued or transferred pursuant to
Awards under the Plan shall be automatically increased by one share for every twenty shares subject
to such Prior Award that is so cancelled, terminated, expired, forfeited or repurchased
(collectively, the “Cancelled Prior Award Shares”). In no event, however, shall the
aggregate number of Initial Authorized Shares and Cancelled Prior Award Shares made available for
issuance under the Plan exceed 1,500,000.



               (b) To the extent that an Award terminates, expires, lapses or is forfeited for any reason,
any shares of Common Stock then subject to such Award shall again be available for the grant of an
Award pursuant to the Plan. To the extent permitted by applicable law or any exchange rule, shares
of Common Stock issued in assumption of, or in substitution for, any outstanding awards of any
entity acquired in any form of combination by the Company or any Subsidiary shall not be counted
against shares of Common Stock available for grant pursuant to this Plan. If any shares of
Restricted Stock are surrendered by the Holder or repurchased by the Company pursuant to Section
7.4 or 7.5 hereof, such shares may again be granted or awarded hereunder, subject to the
limitations of Section 2.1(a). To the extent exercised, the full number of shares subject to an
Option or Stock Appreciation Right shall be counted for purposes of calculating the aggregate
number of shares of Common Stock available



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for issuance under the Plan as set forth in Section 2.1(a) and for purposes of calculating the
share limitation set forth in Section 2.3, regardless of the actual number of shares issued or
transferred upon any net exercise of an Option (in which Common Stock is withheld to satisfy the
exercise price or taxes) or upon exercise of any Stock Appreciation Right for Common Stock or cash.
The payment of Dividend Equivalents in cash in conjunction with any outstanding Awards shall not
be counted against the shares available for issuance under the Plan. Notwithstanding the
provisions of this Section 2.1(b), no shares of Common Stock may again be optioned, granted or
awarded if such action would cause an Incentive Stock Option to fail to qualify as an incentive
stock option under Section 422 of the Code.




          2.2. Stock Distributed. Any Common Stock distributed pursuant to an Award shall
consist, in whole or in part, of authorized and unissued Common Stock, shares of Common Stock held
in treasury or shares of Common Stock purchased on the open market.




          2.3. Limitation on Number of Shares Subject to Awards. Notwithstanding any provision
in the Plan to the contrary, and subject to Article XI, the maximum number of shares of Common
Stock with respect to one or more Awards that may be granted to any one Employee, Consultant or
Non-Employee Director during any Fiscal Year shall not exceed the Award Limit. To the extent
required by Section 162(m) of the Code, shares subject to Awards which are canceled shall continue
to be counted against the Award Limit.




ARTICLE III.




GRANTING OF AWARDS




          3.1. Award Agreement. Each Award shall be evidenced by an Award Agreement. Award
Agreements evidencing Awards intended to qualify as performance-based compensation (as described in
Section 162(m)(4)(C) of the Code) shall contain such terms and conditions as may be necessary to
meet the applicable provisions of Section 162(m) of the Code. Award Agreements evidencing
Incentive Stock Options shall contain such terms and conditions as may be necessary to meet the
applicable provisions of Section 422 of the Code.




          3.2. Provisions Applicable to Covered Employees.




               (a) The Committee, in its discretion, may determine whether an Award is to qualify as
performance-based compensation (as described in Section 162(m)(4)(C) of the Code).



               (b) Notwithstanding anything in the Plan to the contrary, the Committee may grant any Award to
a Covered Employee, including Restricted Stock the restrictions with respect to which lapse upon
the attainment of specified Performance Goals and any performance or incentive award described in
Article VIII that vests or becomes exercisable or payable upon the attainment of one or more
specified Performance Goals.



               (c) To the extent necessary to comply with the performance-based compensation requirements of
Section 162(m)(4)(C) of the Code, with respect to any Award granted under Articles VII and VIII
which may be granted to one or more Covered Employees, no later than ninety (90) days following the
commencement of any Fiscal Year in question or any



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other designated fiscal period or period of service (or such earlier time as may be required
under Section 162(m) of the Code), the Committee shall, in writing, (i) designate one or more
Covered Employees, (ii) select the Performance Criteria applicable to the Fiscal Year or other
designated fiscal period or period of service (including any applicable adjustments), (iii)
establish the various performance targets, in terms of an objective formula or standard, and
amounts of such Awards, as applicable, which may be earned for such Fiscal Year or other designated
fiscal period or period of service, and (iv) specify the relationship between Performance Criteria
and the performance targets and the amounts of such Awards, as applicable, to be earned by each
Covered Employee for such Fiscal Year or other designated fiscal period or period of service.
Following the completion of each Fiscal Year or other designated fiscal period or period of
service, the Committee shall certify in writing whether the applicable performance targets have
been achieved for such Fiscal Year or other designated fiscal period or period of service. In
determining the amount earned by a Covered Employee, the Committee shall have the right to reduce
(but not increase) the amount payable at a given level of performance to take into account
additional factors that the Committee may deem relevant to the assessment of individual or
corporate performance for the Fiscal Year or other designated fiscal period or period of service.




               (d) Furthermore, notwithstanding any other provision of the Plan, any Award which is granted
to a Covered Employee and is intended to qualify as performance-based compensation (as described in
Section 162(m)(4)(C) of the Code) shall be subject to any additional limitations set forth in
Section 162(m) of the Code (including any amendment to Section 162(m) of the Code) or any
regulations or rulings issued thereunder that are requirements for qualification as
performance-based compensation (as described in Section 162(m)(4)(C) of the Code), and the Plan
shall be deemed amended to the extent necessary to conform to such requirements.



          3.3. Limitations Applicable to Section 16 Persons. Notwithstanding any other
provision of the Plan, the Plan, and any Award granted or awarded to any individual who is then
subject to Section 16 of the Exchange Act, shall be subject to any additional limitations set forth
in any applicable exemptive rule under Section 16 of the Exchange Act (including any amendment to
Rule 16b-3 of the Exchange Act) that are requirements for the application of such exemptive rule.
To the extent permitted by applicable law, the Plan and Awards granted or awarded hereunder shall
be deemed amended to the extent necessary to conform to such applicable exemptive rule.




          3.4. At-Will Employment. Nothing in the Plan or in any Award Agreement hereunder
shall confer upon any Holder any right to continue in the employ of, or as a Consultant for, the
Company or any Subsidiary, or as a Director of the Company, or shall interfere with or restrict in
any way the rights of the Company and any Subsidiary, which rights are hereby expressly reserved,
to discharge any Holder at any time for any reason whatsoever, with or without cause, except to the
extent expressly provided otherwise in a written employment agreement between the Holder and the
Company and any Subsidiary.





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ARTICLE IV.




GRANTING OF OPTIONS TO EMPLOYEES,

CONSULTANTS AND NON-EMPLOYEE DIRECTORS




          4.1. Eligibility. Any Employee or Consultant selected by the Administrator pursuant
to Section 4.4(a)(i) shall be eligible to be granted an Option. Each Non-Employee Director of the
Company shall be eligible to be granted Options at the times and in the manner set forth in Section
4.5.




          4.2. 10% Stockholders. No person may be granted an Incentive Stock Option under the
Plan if such person, at the time the Incentive Stock Option is granted, owns stock possessing more
than 10% of the total combined voting power of all classes of stock of the Company or any then
existing Subsidiary Corporation or parent corporation (as defined in Section 424(e) of the Code)
unless such Incentive Stock Option conforms to the applicable provisions of Section 422 of the
Code.




          4.3. Disqualification for Incentive Stock Options. No Incentive Stock Option shall be
granted to any person who is not an Employee of the Company or a Subsidiary Corporation.




          4.4. Granting of Options to Employees and Consultants.




               (a) The Administrator shall from time to time, in its discretion, and, subject to applicable
limitations of the Plan:




               (i) Select from among the Employees or Consultants (including Employees or
Consultants who have previously received Awards under the Plan) such of them as in
its opinion should be granted Options;




               (ii) Subject to the Award Limit, determine the number of shares to be subject
to such Options granted to the selected Employees or Consultants;




               (iii) Subject to Section 4.2 and Section 4.3, determine whether such Options
are to be Incentive Stock Options or Non-Qualified Stock Options and whether such
Options are to qualify as performance-based compensation (as described in Section
162(m)(4)(C) of the Code); and




               (iv) Subject to the provisions of Article V, determine the terms and conditions
of such Options; provided, however, that such terms and conditions shall not be
inconsistent with the terms of the Plan; and provided further, that the terms and
conditions of Options intended to qualify as performance-based compensation (as
described in Section 162(m)(4)(C) of the Code) shall include, but not be limited to,
such terms and conditions as may be necessary to meet the applicable provisions of
Section 162(m) of the Code.



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               (b) Upon the selection of an Employee or Consultant to be granted an Option, the Administrator
shall instruct the Secretary of the Company to issue the Option and may impose such conditions on
the grant of the Option as it deems appropriate.



               (c) Any Incentive Stock Option granted under the Plan may be modified by the Administrator,
with the consent of the Holder, to disqualify such Option from treatment as an “incentive stock
option” under Section 422 of the Code.



          4.5. Granting of Options to Non-Employee Directors. The Board shall from time to
time, in its discretion, and subject to applicable limitations of the Plan:




               (a) Select from among the Non-Employee Directors (including Non-Employee Directors who have
previously received Awards under the Plan) such of them as in its opinion should be granted
Options;



               (b) Subject to the Award Limit, determine the number of shares to be subject to such Options
granted to the selected Non-Employee Directors; and



               (c) Subject to the provisions of Article V, determine the terms and conditions of such
Options; provided, however, that such terms and conditions shall not be inconsistent with the terms
of the Plan.



ARTICLE V.




TERMS OF OPTIONS




          5.1. Option Price. The price per share of Common Stock subject to each Option granted
to an Employee, Non-Employee Director or Consultant shall be set by the Administrator; provided,
however, that:




               (a) In the case of Incentive Stock Options, such price shall not be less than 100% of the Fair
Market Value of a share of Common Stock on the date the Option is granted (or the date the Option
is modified, extended or renewed for purposes of Section 424(h) of the Code);



               (b) In the case of Incentive Stock Options granted to an individual then owning (within the
meaning of Section 424(d) of the Code) more than 10% of the total combined voting power of all
classes of stock of the Company or any Subsidiary Corporation or parent corporation thereof (as
defined in Section 424(e) of the Code), such price shall not be less than 110% of the Fair Market
Value of a share of Common Stock on the date the Option is granted (or the date the Option is
modified, extended or renewed for purposes of Section 424(h) of the Code); and



               (c) In the case of Non-Qualified Stock Options, such price shall not be less than 100% of the
Fair Market Value of a share of Common Stock on the date the Option is granted.



12









 





          5.2. Option Term. The term of an Option granted to an Employee, Consultant or
Non-Employee Director shall be set by the Administrator in its discretion; provided, however, that
the term shall not be more than ten (10) years from the date the Option is granted, or five (5)
years from the date the Option is granted if the Option is an Incentive Stock Option granted to an
individual then owning (within the meaning of Section 424(d) of the Code) more than 10% of the
total combined voting power of all classes of stock of the Company or any Subsidiary Corporation or
parent corporation thereof (as defined in Section 424(e) of the Code). Except as limited by the
requirements of Section 409A or Section 422 of the Code and regulations and rulings thereunder, the
Administrator may extend the term during which any outstanding Option may be exercised following
any Termination of Employment, Termination of Directorship or Termination of Consultancy of the
Holder, or amend any other term or condition of such Option relating to such a Termination of
Employment, Termination of Directorship or Termination of Consultancy.




          5.3. Option Vesting.




               (a) The period during which the right to exercise, in whole or in part, an Option vests in the
Holder shall be set by the Administrator and the Administrator may determine that an Option may not
be exercised in whole or in part for a specified period after it is granted; provided, however,
that, unless the Administrator otherwise provides in the terms of the Award Agreement or otherwise,
no Option granted to a person subject to Section 16 of the Exchange Act shall be exercisable until
at least six months have elapsed following the date on which the Option was granted. At any time
after grant of an Option, the Administrator may, in its discretion and subject to whatever terms
and conditions it selects, accelerate the period during which an Option vests.



               (b) No portion of an Option granted to an Employee, Consultant or Non-Employee Director which
is unexercisable at Termination of Employment, Termination of Directorship or Termination of
Consultancy, as applicable, shall thereafter become exercisable, except as otherwise provided by
the Administrator either in the Award Agreement or by action of the Administrator following the
grant of the Option.



               (c) To the extent that the aggregate fair market value of stock with respect to which
“incentive stock options” (within the meaning of Section 422 of the Code, but without regard to
Section 422(d) of the Code) are exercisable for the first time by a Holder during any calendar year
under the Plan, and all other plans of the Company and any Subsidiary Corporation or parent
corporation thereof (as defined in Section 424(e) of the Code), exceeds $100,000, the Options shall
be treated as Non-Qualified Stock Options to the extent required by Section 422 of the Code. The
rule set forth in the preceding sentence shall be applied by taking Options and other “incentive
stock options” into account in the order in which they were granted. For purposes of this Section
5.3(c), the fair market value of stock shall be determined as of the time the Option or other
“incentive stock options” with respect to such stock is granted.



          5.4. Substitute Awards. Notwithstanding the foregoing provisions of this Article V to
the contrary, in the case of an Option that is a Substitute Award, the price per share of Common
Stock subject to such Option may be less than the Fair Market Value per share on the date of grant;
provided, that the excess of: (a) the aggregate Fair Market Value (as of the




13









 







date such Substitute Award is granted) of the shares subject to the Substitute Award, over (b)
the aggregate exercise price of such shares does not exceed the excess of: (x) the aggregate fair
market value (as of the time immediately preceding the transaction giving rise to the Substitute
Award, such fair market value to be determined by the Administrator) of the shares of the
predecessor entity that were subject to the grant assumed, replaced or substituted for by the
Company, over (y) the aggregate exercise price of such shares.




ARTICLE VI.




EXERCISE OF OPTIONS




          6.1. Partial Exercise. An exercisable Option may be exercised in whole or in part.
However, an Option shall not be exercisable with respect to fractional shares and the Administrator
may require that, by the terms of the Option, a partial exercise be with respect to a minimum
number of shares.




          6.2. Manner of Exercise. All or a portion of an exercisable Option shall be deemed
exercised upon delivery of all of the following to the Secretary of the Company, or such other
person or entity designated by the Administrator, or his, her or its office, as applicable:





          (a) A written notice complying with the applicable rules established by the
Administrator stating that the Option, or a portion thereof, is exercised. Such rules may
provide that for administrative convenience an Option may not be exercised during such
period (not exceeding 10 days) as is specified in advance by the Administrator. The notice
shall be signed by the Holder or other person then entitled to exercise the Option or such
portion of the Option;




          (b) Such representations and documents as the Administrator, in its discretion, deems
necessary or advisable to effect compliance with all applicable provisions of the Securities
Act and any other federal, state or foreign securities laws or regulations. The
Administrator may, in its discretion, also take whatever additional actions it deems
appropriate to effect such compliance including, without limitation, placing legends on
share certificates and issuing stop-transfer notices to agents and registrars;




          (c) In the event that the Option shall be exercised pursuant to Section 11.1 by any
person or persons other than the Holder, appropriate proof of the right of such person or
persons to exercise the Option; and




          (d) Full cash payment to the Secretary of the Company for the shares with respect to
which the Option, or portion thereof, is exercised. However, the Administrator may, in its
discretion, (i) allow payment, in whole or in part, through the delivery of shares of
Common Stock which have been owned by the Holder for at least six months, duly endorsed for
transfer to the Company with a Fair Market Value on the date of delivery equal to the
aggregate exercise price of the Option or exercised portion thereof; (ii) allow payment, in
whole or in part, through the surrender of shares of Common Stock then issuable upon
exercise of the Option having a Fair Market Value on the date of Option exercise equal to
the aggregate exercise price of the Option or



14









 







exercised portion thereof; (iii) allow payment, in whole or in part, through the
delivery of property of any kind which constitutes good and valuable consideration; (iv)
allow payment, in whole or in part, through the delivery of a notice that the Holder has
placed a market sell order with a broker with respect to shares of Common Stock then
issuable upon exercise of the Option, and the broker timely pays a sufficient portion of the
net proceeds of the sale to the Company in satisfaction of the Option exercise price; or (v)
allow payment through any combination of the consideration provided in the foregoing
subparagraphs (i), (ii), (iii) and (iv); provided, however, that the payment in the manner
prescribed in the preceding paragraphs shall not be permitted to the extent that the
Administrator determines that payment in such manner shall result in an extension or
maintenance of credit, an arrangement for the extension of credit, or a renewal or an
extension of credit in the form of a personal loan to or for any Director or executive
officer of the Company that is prohibited by Section 13(k) of the Exchange Act or other
applicable law.



          6.3. Conditions to Issuance of Stock Certificates. The Company shall not be required
to issue or deliver any certificate or certificates for shares of stock purchased upon the exercise
of any Option or portion thereof prior to fulfillment of all of the following conditions:





          (a) The admission of such shares to listing on all stock exchanges on which such class
of stock is then listed;




          (b) The completion of any registration or other qualification of such shares under any
federal, state or foreign law, or under the rulings or regulations of the Securities and
Exchange Commission or any other governmental regulatory body which the Administrator shall,
in its discretion, deem necessary or advisable;




          (c) The obtaining of any approval or other clearance from any federal, state or foreign
governmental agency which the Administrator shall, in its discretion, determine to be
necessary or advisable;




          (d) The lapse of such reasonable period of time following the exercise of the Option as
the Administrator may establish from time to time for reasons of administrative convenience;
and




          (e) The receipt by the Company of full payment for such shares, including payment of
any applicable withholding tax, which in the discretion of the Administrator may be in the
form of consideration used by the Holder to pay for such shares under Section 6.2(d).



          6.4. Rights as Stockholders. Holders shall not be, nor have any of the rights or
privileges of, stockholders of the Company in respect of any shares purchasable upon the exercise
of any part of an Option unless and until such shares have been issued by the Company to such
Holders.




          6.5. Ownership and Transfer Restrictions. The Administrator, in its discretion, may
impose such restrictions on the ownership and transferability of the shares purchasable upon the
exercise of an Option as it deems appropriate. Any such restriction shall be set forth in the

15









 








respective Award Agreement and may be referred to on the certificates evidencing such shares.
The Holder shall give the Company prompt notice of any disposition of shares of Common Stock
acquired by exercise of an Incentive Stock Option within (a) two years from the date of granting
(including the date the Option is modified, extended or renewed for purposes of Section 424(h) of
the Code) such Option to such Holder, or (b) one year after the transfer of such shares to such
Holder.




          6.6. Additional Limitations on Exercise of Options. Holders may be required to comply
with any timing or other restrictions with respect to the settlement or exercise of an Option,
including a window-period limitation, as may be imposed in the discretion of the Administrator.




ARTICLE VII.




AWARD OF RESTRICTED STOCK




          7.1. Eligibility. Subject to the Award Limit, Restricted Stock may be awarded to any
Employee, Consultant or Non-Employee Director who the Administrator determines should receive such
an Award.




          7.2. Award of Restricted Stock.




               (a) The Administrator may from time to time, in its discretion:




               (i) Select from among the Employees, Non-Employee Directors or Consultants
(including Employees, Non-Employee Directors or Consultants who have previously
received Awards under the Plan) such of them as in its opinion should be awarded
Restricted Stock; and




               (ii) Determine the purchase price, if any, and other terms and conditions
applicable to such Restricted Stock; provided, however, that such terms and
conditions shall not be inconsistent with the terms of the Plan.



               (b) The Administrator shall establish the purchase price, if any, and form of payment for
Restricted Stock; provided, however, that such purchase price shall be no less than the par value
of the Common Stock to be purchased, unless otherwise permitted by applicable state law. In all
cases, legal consideration shall be required for each issuance of Restricted Stock.



               (c) Upon the selection of an Employee, Consultant or Non-Employee Director to be awarded
Restricted Stock, the Administrator shall instruct the Secretary of the Company to issue such
Restricted Stock and may impose such conditions on the issuance of such Restricted Stock as it
deems appropriate.



          7.3. Rights as Stockholders. Subject to Section 7.4, upon delivery of the shares of
Restricted Stock to the escrow holder pursuant to Section 7.6, the Holder shall have, unless
otherwise provided by the Administrator, all the rights of a stockholder with respect to said
shares, including the right to receive all dividends and other distributions paid or made with




16









 







respect to the shares, subject to the restrictions in his or her Award Agreement; provided,
however, that, in the discretion of the Administrator, any extraordinary distributions with respect
to the Common Stock shall be subject to the restrictions set forth in Section 7.4.




          7.4. Restriction. All shares of Restricted Stock issued under the Plan (including any
shares received by Holders thereof with respect to shares of Restricted Stock as a result of stock
dividends, stock splits or any other form of recapitalization) shall, in the terms of each
individual Award Agreement, be subject to such restrictions as the Administrator shall provide,
which restrictions may include, without limitation, restrictions concerning voting rights and
transferability and restrictions based on duration of employment, directorship or consultancy with
the Company, Company performance and individual performance; provided, however, by action taken
after the Restricted Stock is issued, the Administrator may, on such terms and conditions as it may
determine to be appropriate, remove any or all of the restrictions imposed by the terms of the
Award Agreement. Restricted Stock may not be sold or encumbered until all restrictions are
terminated or expire. If no consideration was paid by the Holder upon issuance, a Holder’s rights
in unvested Restricted Stock shall lapse, and such Restricted Stock shall be surrendered to the
Company without consideration, upon Termination of Employment, Termination of Directorship, or
Termination of Consultancy, as applicable; provided, however, that the Administrator in its
discretion may provide that such rights shall not lapse in the event of a Termination of
Employment, Termination of Directorship or Termination of Consultancy, as applicable, following a
Change in Control or because of the Holder’s retirement, death or disability or termination without
cause, or otherwise.




          7.5. Repurchase of Restricted Stock. The Administrator shall provide in the terms of
each individual Award Agreement that the Company shall have the right to repurchase from the Holder
the Restricted Stock then subject to restrictions under the Award Agreement immediately upon a
Termination of Employment, Termination of Directorship, or Termination of Consultancy, as
applicable, at a cash price per share equal to the price paid by the Holder for such Restricted
Stock; provided, however, that the Administrator in its discretion may provide that such rights
shall not lapse in the event of a Termination of Employment, Termination of Directorship or
Termination of Consultancy, as applicable, following a Change in Control or because of the Holder’s
retirement, death or disability or termination without cause, or otherwise.




          7.6. Escrow. The Secretary of the Company or such other escrow holder as the
Administrator may appoint shall retain physical custody of each certificate representing Restricted
Stock until all of the restrictions imposed under the Award Agreement with respect to the shares
evidenced by such certificate expire or shall have been removed.




          7.7. Legend. In order to enforce the restrictions imposed upon shares of Restricted
Stock hereunder, the Administrator shall cause a legend or legends to be placed on certificates
representing all shares of Restricted Stock that are still subject to restrictions under Award
Agreements, which legend or legends shall make appropriate reference to the conditions imposed
thereby.




          7.8. Section 83(b) Election. If a Holder makes an election under Section 83(b) of the
Code, or any successor section thereto, to be taxed with respect to the Restricted Stock as of the
date of transfer of the Restricted Stock rather than as of the date or dates upon which the

17









 








Holder would otherwise be taxable under Section 83(a) of the Code, the Holder shall deliver a
copy of such election to the Company immediately after filing such election with the Internal
Revenue Service.




ARTICLE VIII.




PERFORMANCE AWARDS, DIVIDEND EQUIVALENTS, DEFERRED STOCK, STOCK PAYMENTS, RESTRICTED STOCK UNITS




          8.1. Eligibility. Subject to the Award Limit, one or more Performance Awards,
Dividend Equivalent Awards, Stock Payment Awards, Deferred Stock Awards and/or Restricted Stock
Unit Awards may be granted to any Employee, Consultant or Non-Employee Director whom the
Administrator determines should receive such an Award.




          8.2. Performance Awards.




               (a) Any Employee, Consultant or Non-Employee Director selected by the Administrator may be
granted one or more Performance Awards. The value of such Performance Awards may be linked to any
one or more of the Performance Criteria or other specific performance criteria determined
appropriate by the Administrator, in each case on a specified date or dates or over any period or
periods determined by the Administrator. In making such determinations, the Administrator shall
consider (among such other factors as it deems relevant in light of the specific type of award) the
contributions, responsibilities and other compensation of the particular Employee, Consultant or
Non-Employee Director.



               (b) Without limiting Section 8.2(a), the Administrator may grant Performance Awards to any
Covered Employee in the form of a cash bonus payable upon the attainment of objective Performance
Goals which are established by the Administrator, in each case on a specified date or dates or over
any period or periods determined by the Administrator. Any such bonuses paid to Covered Employees
shall be based upon objectively determinable bonus formulas established in accordance with the
provisions of Section 3.2. The maximum aggregate amount of all cash-based Performance Awards
granted to a Covered Employee under this Section 8.2(b) during any calendar year shall not exceed
the Award Limit. Unless otherwise specified by the Administrator at the time of grant, the
Performance Criteria with respect to a Performance Award payable to a Covered Employee shall be
determined on the basis of GAAP.



          8.3. Dividend Equivalents. Any Employee, Consultant or Non-Employee Director selected
by the Administrator may be granted Dividend Equivalents based on the dividends declared on Common
Stock, to be credited as of dividend payment dates, during the period between the date an Award is
granted and the date such Award vests, is exercised, is distributed or expires, as determined by
the Administrator. Such Dividend Equivalents shall be converted to cash or additional shares of
Common Stock by such formula and at such time and subject to such limitations as may be determined
by the Administrator.




          8.4. Stock Payments. Any Employee, Consultant or Non-Employee Director selected by
the Administrator may receive Stock Payments in the manner determined from time to time by the
Administrator. The number of shares shall be determined by the Administrator and may be based upon
the Performance Criteria or other specific performance criteria

18









 









determined appropriate by the Administrator, determined on the date such Stock Payment is made
or on any date thereafter.




          8.5. Deferred Stock. Any Employee, Consultant or Non-Employee Director selected by
the Administrator may be granted an award of Deferred Stock in the manner determined from time to
time by the Administrator. The number of shares of Deferred Stock shall be determined by the
Administrator and may be linked to the satisfaction of one or more Performance Goals or other
specific performance goals as the Administrator determines to be appropriate at the time of grant,
in each case on a specified date or dates or over any period or periods determined by the
Administrator. Common Stock underlying a Deferred Stock Award will not be issued until the
Deferred Stock Award has vested, pursuant to a vesting schedule or performance criteria set by the
Administrator. Unless otherwise provided by the Administrator, a Holder of Deferred Stock shall
have no rights as a Company stockholder with respect to such Deferred Stock until such time as the
Award has vested and the Common Stock underlying the Award has been issued.




          8.6. Restricted Stock Units. Any Employee, Consultant or Non-Employee Director
selected by the Administrator may be granted an award of Restricted Stock Units in the manner
determined from time to time by the Administrator. The Administrator is authorized to make awards
of Restricted Stock Units in such amounts and subject to such terms and conditions as determined by
the Administrator. The Administrator shall specify the date or dates on which the Restricted Stock
Units shall become fully vested and nonforfeitable, and may specify such conditions to vesting as
it deems appropriate, and may specify that such Restricted Stock Units become fully vested and
nonforfeitable pursuant to the satisfaction of one or more Performance Goals or other specific
performance goals as the Administrator determines to be appropriate at the time of the grant, in
each case on a specified date or dates or over any period or periods determined by the
Administrator. The Administrator shall specify the distribution dates applicable to each award of
Restricted Stock Units which shall be no earlier than the vesting dates or events of the award and
may be determined at the election of the Employee, Consultant or Non-Employee Director, subject to
compliance with Section 409A of the Code. On the distribution dates, the Company shall issue to
the Holder one unrestricted, fully transferable share of Common Stock for each Restricted Stock
Unit distributed.




          8.7. Term. The term of a Performance Award, Dividend Equivalent Award, Deferred Stock
Award, Stock Payment Award and/or Restricted Stock Unit Award shall be set by the Administrator in
its discretion.




          8.8. Exercise or Purchase Price. The Administrator may establish the exercise or
purchase price of a Performance Award, shares of Deferred Stock, shares distributed as a Stock
Payment Award or shares distributed pursuant to a Restricted Stock Unit Award; provided, however,
that such price shall not be less than the par value of a share of Common Stock, unless otherwise
permitted by applicable state law.




          8.9. Exercise upon Termination of Employment, Termination of Consultancy or Termination of
Directorship. A Performance Award, Dividend Equivalent Award, Deferred Stock Award, Stock
Payment Award and/or Restricted Stock Unit Award is exercisable or distributable only while the
Holder is an Employee, Consultant or Non-Employee Director, as

19









 








applicable; provided, however, that the Administrator in its discretion may provide that the
Performance Award, Dividend Equivalent Award, Deferred Stock Award, Stock Payment Award and/or
Restricted Stock Unit Award may be exercised or distributed subsequent to a Termination of
Employment, Termination of Directorship or Termination of Consultancy, as applicable, following a
“change of control or ownership” (within the meaning of Section 1.162-27(e)(2)(v) or any successor
regulation thereto) of the Company; and, provided further, that, except with respect to Performance
Awards granted to Covered Employees, the Administrator in its discretion may provide that
Performance Awards may be exercised or distributed following a Termination of Employment,
Termination of Directorship or Termination of Consultancy, as applicable, following a Change in
Control, or because of the Holder’s retirement, death or disability or termination without cause,
or otherwise.




          8.10. Form of Payment. Payment of the amount determined under Section 8.2 or 8.3
above shall be in cash, in Common Stock or a combination of both, as determined by the
Administrator. To the extent any payment under this Article VIII is effected in Common Stock, it
shall be made subject to satisfaction of all provisions of Section 6.3.




ARTICLE IX.




STOCK APPRECIATION RIGHTS




          9.1. Grant of Stock Appreciation Rights. A Stock Appreciation Right may be granted to
any Employee, Consultant or Non-Employee Director selected by the Administrator. A Stock
Appreciation Right may be granted: (a) in connection and simultaneously with the grant of an
Option, or (b) independent of an Option. A Stock Appreciation Right shall be subject to such terms
and conditions not inconsistent with the Plan as the Administrator shall impose and shall be
evidenced by an Award Agreement.




          9.2. Coupled Stock Appreciation Rights.




               (a) A Coupled Stock Appreciation Right (“CSAR”) shall be related to a particular
Option and shall be exercisable only when and to the extent the related Option is exercisable.



               (b) A CSAR may be granted to the Holder for no more than the number of shares subject to the
simultaneously granted Option to which it is coupled.



               (c) A CSAR shall entitle the Holder (or other person entitled to exercise the Option pursuant
to the Plan) to surrender to the Company unexercised a portion of the Option to which the CSAR
relates (to the extent then exercisable pursuant to its terms) and to receive from the Company in
exchange therefor an amount determined by multiplying (i) the difference obtained by subtracting
the exercise price per share of the CSAR from the Fair Market Value of a share of Common Stock on
the date of exercise of the CSAR by (ii) the number of shares of Common Stock with respect to which
the CSAR shall have been exercised, subject to any limitations the Administrator may impose.




20










 





          9.3. Independent Stock Appreciation Rights.




               (a) An Independent Stock Appreciation Right (“ISAR”) shall be unrelated to any Option
and shall have a term set by the Administrator in its discretion; provided, however, that the term
shall not be more than ten (10) years from the date the ISAR is granted. An ISAR shall be
exercisable in such installments as the Administrator may determine. An ISAR shall cover such
number of shares of Common Stock as the Administrator may determine; provided, however, that unless
the Administrator otherwise provides in the terms of the Award Agreement or otherwise, no ISAR
granted to a person subject to Section 16 of the Exchange Act shall be exercisable until at least
six months have elapsed following the date on which the ISAR was granted. The exercise price per
share of Common Stock subject to each ISAR shall be set by the Administrator; provided, that such
exercise price per share shall not be less than 100% of the Fair Market Value of a share of Common
Stock on the date the ISAR is granted. An ISAR is exercisable only while the Holder is an
Employee, Consultant or Non-Employee Director; provided, that the Administrator may provide that
ISARs may be exercised following a Termination of Employment, Termination of Directorship or
Termination of Consultancy, as applicable, or following a Change in Control, or because of the
Holder’s retirement, death or disability or termination without cause, or otherwise.



               (b) An ISAR shall entitle the Holder (or other person entitled to exercise the ISAR pursuant
to the Plan) to exercise all or a specified portion of the ISAR (to the extent then exercisable
pursuant to its terms) and to receive from the Company an amount determined by multiplying (i) the
difference obtained by subtracting the exercise price per share of the ISAR from the Fair Market
Value of a share of Common Stock on the date of exercise of the ISAR by (ii) the number of shares
of Common Stock with respect to which the ISAR shall have been exercised, subject to any
limitations the Administrator may impose.



          9.4. Payment and Limitations on Exercise.




               (a) Payment of the amounts determined under Section 9.2(c) and 9.3(b) above shall be in cash,
shares of Common Stock (based on its Fair Market Value as of the date the Stock Appreciation Right
is exercised), or a combination of both, as determined by the Administrator. The Company shall not
be required to issue or deliver any certificate or certificates for shares of stock issuable upon
the exercise of any Stock Appreciation Right prior to fulfillment of the conditions set forth in
Section 6.3 above.



               (b) Holders of Stock Appreciation Rights may be required to comply with any timing or other
restrictions with respect to the settlement or exercise of a Stock Appreciation Right, including a
window-period limitation, as may be imposed in the discretion of the Administrator.



ARTICLE X.




ADMINISTRATION




          10.1. Committee. The Committee shall consist solely of two or more Directors
appointed by and holding office at the pleasure of the Board, each of whom is intended to qualify





21









 







as both a “non-employee director” as defined by Rule 16b-3 and an “outside director” for purposes of Section 162(m) of the Code. Appointment of Committee members shall be effective
upon acceptance of appointment. Committee members may resign at any time by delivering written
notice to the Board. Vacancies in the Committee may be filled by the Board.




          10.2. Duties and Powers of Committee. It shall be the duty of the Committee to
conduct the general administration of the Plan in accordance with its provisions. The Committee
shall have the power to interpret the Plan and the Award Agreements, and to adopt such rules for
the administration, interpretation and application of the Plan as are not inconsistent therewith,
to interpret, amend or revoke any such rules, to delegate authority in accordance with Section 10.5
and to amend any Award Agreement provided that the rights or obligations of the Holder of the Award
that is the subject of any such Award Agreement are not affected adversely. Any such grant or
award under the Plan need not be the same with respect to each Holder. Any such interpretations
and rules with respect to Incentive Stock Options shall not be inconsistent with the provisions of
Section 422 of the Code. In its discretion, the Board may at any time and from time to time
exercise any and all rights and duties of the Committee under the Plan except with respect to
matters which under Rule 16b-3 or Section 162(m) of the Code, or any regulations or rules issued
thereunder, are required to be determined in the discretion of the Committee. Notwithstanding the
foregoing, the full Board, acting by a majority of its members in office, shall conduct the general
administration of the Plan with respect to Awards granted to Non-Employee Directors.




          10.3. Majority Rule; Unanimous Written Consent. The Committee shall act by a majority
of its members in attendance at a meeting at which a quorum is present or by a memorandum or other
written instrument signed by all members of the Committee.




          10.4. Compensation; Professional Assistance; Good Faith Actions. Members of the
Committee shall receive such compensation, if any, for their services as members as may be
determined by the Board. All expenses and liabilities which members of the Committee incur in
connection with the administration of the Plan shall be borne by the Company. The Committee may
employ attorneys, consultants, accountants, appraisers, brokers or other persons. The Committee,
the Company and the Company’s officers and Directors shall be entitled to rely upon the advice,
opinions or valuations of any such persons. All actions taken and all interpretations and
determinations made by the Committee or the Board in good faith shall be final and binding upon all
Holders, the Company and all other interested persons. No members of the Committee or Board shall
be personally liable for any action, determination or interpretation made in good faith with
respect to the Plan or Awards, and all members of the Committee and the Board shall be fully
protected by the Company in respect of any such action, determination or interpretation.




          10.5. Delegation of Authority to Grant Awards. To the extent permitted by applicable
law, the Committee may, but need not, delegate from time to time some or all of its authority to
grant Awards under the Plan to a committee or committees consisting of one or more members of the
Board and/or one or more officers of the Company; provided, however, that the authority to grant
awards to the following individuals may not be delegated: (a) individuals who are subject to the
reporting rules under Section 16(a) of the Exchange Act, (b) individuals who are Covered Employees,
and (c) individuals who are officers of the Company who are delegated authority by the Committee
hereunder. Any delegation hereunder shall be subject to the




22









 







restrictions and limits that the
Committee specifies at the time of such delegation of authority and may be rescinded at any time by the Committee. At all times, any committee appointed
under this Section 10.5 shall serve in such capacity at the pleasure of the Committee.




ARTICLE XI.




MISCELLANEOUS PROVISIONS




          11.1. Transferability of Awards.




               (a) Except as otherwise provided in Section 11.1(b):




               (i) No Award under the Plan may be sold, pledged, assigned or transferred in
any manner other than by will or the laws of descent and distribution or, subject to
the consent of the Administrator, pursuant to a DRO, unless and until such Award has
been exercised, or the shares underlying such Award have been issued, and all
restrictions applicable to such shares have lapsed;




               (ii) No Award or interest or right therein shall be liable for the debts,
contracts or engagements of the Holder or his successors in interest or shall be
subject to disposition by transfer, alienation, anticipation, pledge, hypothecation,
encumbrance, assignment or any other means whether such disposition be voluntary or
involuntary or by operation of law by judgment, levy, attachment, garnishment or any
other legal or equitable proceedings (including bankruptcy), and any attempted
disposition thereof shall be null and void and of no effect, except to the extent
that such disposition is permitted pursuant to Section 11.1(a)(i); and




               (iii) During the lifetime of the Holder, only the Holder may exercise an Option
or other Award (or any portion thereof) granted to him under the Plan, unless it has
been disposed of pursuant to a DRO; after the death of the Holder, any exercisable
portion of an Option or other Award may, prior to the time when such portion becomes
unexercisable under the Plan or the applicable Award Agreement, be exercised by his
personal representative or by any person empowered to do so under the deceased
Holder’s will or under the then applicable laws of descent and distribution.



               (b) Notwithstanding Section 11.1(a), the Administrator, in its discretion, may determine to
permit a Holder to transfer a Non-Qualified Stock Option to any one or more Permitted Transferees
(as defined below), subject to the following terms and conditions: (i) a Non-Qualified Stock
Option transferred to a Permitted Transferee shall not be assignable or transferable by the
Permitted Transferee other than by will or the laws of descent and distribution; (ii) any
Non-Qualified Stock Option which is transferred to a Permitted Transferee shall continue to be
subject to all the terms and conditions of the Award Agreement evidencing such Non-Qualified Stock
Option as applicable to the original Holder (other than the ability to further transfer the
Non-Qualified Stock Option); and (iii) the Holder and the Permitted Transferee shall execute any
and all documents requested by the Administrator, including,



23









 




without limitation documents to (A)
confirm the status of the transferee as a Permitted Transferee, (B) satisfy any requirements for an exemption for the transfer under applicable
federal, state and foreign securities laws and (C) evidence the transfer. For purposes of this
Section 11.1(b), “Permitted Transferee” shall mean, with respect to a Holder, any child,
stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling, niece,
nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or
sister-in-law, including adoptive relationships, any person sharing the Holder’s household (other
than a tenant or employee), a trust in which these persons (or the Holder) control the management
of assets, and any other entity in which these persons (or the Holder) own more than fifty percent
of the voting interests, or any other transferee specifically approved by the Administrator after
taking into account any federal, state, local and foreign tax and securities laws applicable to
transferable Non-Qualified Stock Options.




          11.2. Amendment, Suspension or Termination of the Plan. Except as otherwise provided
in this Section 11.2, the Plan may be wholly or partially amended or otherwise modified, suspended
or terminated at any time or from time to time by the Board, or the Compensation Committee of the
Board. However, without approval of the Company’s stockholders given within twelve (12) months
before or after the action by the Administrator, no action of the Administrator may, except as
provided in Section 11.3, (i) increase the limits imposed in Section 2.1 on the maximum number of
shares which may be issued under the Plan or (ii) decrease the exercise price of any outstanding
Option or Stock Appreciation Right granted under the Plan. Except as provided in Section 11.13, no
amendment, suspension or termination of the Plan shall, without the consent of the Holder, alter or
impair any rights or obligations under any Award theretofore granted or awarded, unless the Award
itself otherwise expressly so provides. No Awards may be granted or awarded during any period of
suspension or after termination of the Plan, and in no event may any Award be granted under the
Plan after the first to occur of the following events:





          (a) The expiration of ten (10) years from the date the Plan is adopted by the Board; or




          (b) The expiration of ten (10) years from the date the Plan is first approved by the
Company’s stockholders (or, if the Company is a wholly-owned subsidiary of Peplin Limited at
such time, the shareholders of Peplin Limited).



          11.3. Changes in Common Stock or Assets of the Company, Acquisition or Liquidation of the
Company and Other Corporate Events.




               (a) Subject to Section 11.3(d), in the event of any extraordinary dividend or other similar
distribution (whether in the form of cash, Common Stock, other securities or other property),
recapitalization, reclassification, stock split, reverse stock split, reorganization, merger,
consolidation, split-up, spin-off, combination, repurchase, liquidation, dissolution, or sale,
transfer, exchange or other disposition of all or substantially all of the assets of the Company,
or exchange of Common Stock or other securities of the Company, issuance of warrants or other
rights to purchase Common Stock or other securities of the Company, or other similar corporate
transaction or event that affects the Common Stock, then the Administrator shall equitably adjust
any or all of the following in order to prevent dilution or enlargement of



24









 




the benefits or potential benefits intended to be made available under the Plan or with
respect to an Award:





               (i) The number and kind of shares of Common Stock (or other securities or
property) with respect to which Awards may be granted or awarded (including, without
limitation, adjustments of the limitations in Section 2.1 on the maximum number and
kind of shares which may be issued under the Plan and adjustments of the Award
Limit);




               (ii) The number and kind of shares of Common Stock (or other securities or
property) subject to outstanding Awards; and




               (iii) The grant or exercise price with respect to any Award.



               (b) Subject to Section 11.3(d), in the event of any transaction or event described in Section
11.3(a) or any unusual or nonrecurring transactions or events affecting the Company, any affiliate
of the Company, or the financial statements of the Company or any affiliate, or of changes in
applicable laws, regulations or accounting principles, the Administrator, in its discretion, and on
such terms and conditions as it deems appropriate, either by the terms of the Award or by action
taken prior to the occurrence of such transaction or event and either automatically or upon the
Holder’s request, is hereby authorized to take any one or more of the following actions whenever
the Administrator determines that such action is appropriate in order to prevent dilution or
enlargement of the benefits or potential benefits intended to be made available under the Plan or
with respect to any Award under the Plan, to facilitate such transactions or events or to give
effect to such changes in laws, regulations or principles:




               (i) To provide for the purchase of any such Award for an amount of cash equal
to the amount that could have been attained upon the exercise of such Award or
realization of the Holder’s rights had such Award been currently exercisable or
payable or fully vested;




               (ii) To provide for the replacement of such Award with other rights or property
selected by the Administrator in its discretion having an aggregate value not
exceeding the amount that could have been attained upon the exercise of such Award
or realization of the Holder’s rights had such Award been currently exercisable or
payable or fully vested;




               (iii) To provide that the Award cannot vest, be exercised or become payable
after such event;




               (iv) To provide that such Award shall be exercisable as to all shares covered
thereby, notwithstanding anything to the contrary in Section 5.3 or the provisions
of such Award;




               (v) To provide that such Award be assumed by the successor or survivor
corporation, or a parent or subsidiary thereof, or shall be



25









 







substituted for by similar options, rights or awards covering the stock of the
successor or survivor corporation, or a parent or subsidiary thereof, with
appropriate adjustments as to the number and kind of shares and prices;




               (vi) To make adjustments in the number and type of shares of Common Stock (or
other securities or property) subject to outstanding Awards, and/or in the terms and
conditions of (including the grant, exercise or purchase price), and the criteria
included in, outstanding options, rights and awards and options, rights and awards
which may be granted in the future; and




               (vii) To provide that, for a specified period of time prior to such event, the
restrictions imposed under an Award Agreement upon some or all shares of Restricted
Stock, Restricted Stock Units or Deferred Stock may be terminated, and, in the case
of Restricted Stock, some or all shares of such Restricted Stock may cease to be
subject to repurchase under Section 7.5 or forfeiture under Section 7.4 after such
event.



               (c) Subject to Sections 11.3(d) and 3.2, the Administrator may, in its discretion, include
such further provisions and limitations in any Award, agreement or certificate, as it may deem
equitable and in the best interests of the Company.



               (d) With respect to Awards which are granted to Covered Employees and are intended to qualify
as performance-based compensation under Section 162(m)(4)(C), no adjustment or action described in
this Section 11.3 or in any other provision of the Plan shall be authorized to the extent that such
adjustment or action would cause such Award to fail to so qualify under Section 162(m)(4)(C), or
any successor provisions thereto. No adjustment or action described in this Section 11.3 or in any
other provision of the Plan shall be authorized to the extent that such adjustment or action would
cause the Plan to violate Section 422(b)(1) of the Code. Furthermore, no such adjustment or action
shall be authorized to the extent such adjustment or action would result in short-swing profits
liability under Section 16 or violate the exemptive conditions of Rule 16b-3 unless the
Administrator determines that the Award is not to comply with such exemptive conditions. The
number of shares of Common Stock subject to any Award shall always be rounded down to the next
whole number.



               (e) The existence of the Plan, the Award Agreement and the Awards granted hereunder shall not
affect or restrict in any way the right or power of the Company or the stockholders of the Company
to make or authorize any adjustment, recapitalization, reorganization or other change in the
Company’s capital structure or its business, any merger or consolidation of the Company, any issue
of stock or of options, warrants or rights to purchase stock or of bonds, debentures, preferred or
prior preference stocks whose rights are superior to or affect the Common Stock or the rights
thereof or which are convertible into or exchangeable for Common Stock, or the dissolution or
liquidation of the company, or any sale or transfer of all or any part of its assets or business,
or any other corporate act or proceeding, whether of a similar character or otherwise.



26









 





               (f) No action shall be taken under this Section 11.3 which shall cause an Award to fail to
comply with Section 409A of the Code or the Treasury Regulations thereunder, to the extent
applicable to such Award.



               (g) No action shall be taken under this Section 11.3 which shall cause an Award to fail to
comply with the ASX Listing Rules, to the extent applicable to such Award.



          11.4. Approval of Plan by Stockholders. The Plan will be submitted for the approval
of the Company’s stockholders within twelve (12) months after the date of the Board’s initial
adoption of the Plan. Awards may be granted or awarded prior to such stockholder approval,
provided that such Awards shall not be exercisable, shall not vest and the restrictions thereon
shall not lapse prior to the time when the Plan is approved by the stockholders, and provided
further that if such approval has not been obtained at the end of said twelve-month period, all
Awards previously granted or awarded under the Plan shall thereupon be canceled and become null and
void.




          11.5. Tax Withholding. The Company or any Subsidiary shall have the authority and the
right to deduct or withhold, or require a Holder to remit to the Company, an amount sufficient to
satisfy federal, state, local and foreign taxes (including the Holder’s FICA obligation) required
by law to be withheld with respect to any taxable event concerning a Holder arising as a result of
this Plan. The Administrator may in its discretion and in satisfaction of the foregoing
requirement allow a Holder to elect to have the Company withhold shares of Common Stock otherwise
issuable under an Award (or allow the return of shares of Common Stock) having a Fair Market Value
equal to the sums required to be withheld. Notwithstanding any other provision of the Plan, the
number of shares of Common Stock which may be withheld with respect to the issuance, vesting,
exercise or payment of any Award (or which may be repurchased from the Holder of such Award within
six months (or such other period as may be determined by the Administrator) after such shares of
Common Stock were acquired by the Holder from the Company) in order to satisfy the Holder’s
federal, state, local and foreign income and payroll tax liabilities with respect to the issuance,
vesting, exercise or payment of the Award shall be limited to the number of shares which have a
Fair Market Value on the date of withholding or repurchase equal to the aggregate amount of such
liabilities based on the minimum statutory withholding rates for federal, state, local and foreign
income tax and payroll tax purposes that are applicable to such supplemental taxable income.




          11.6. Prohibition on Repricing. Subject to Section 11.3, the Administrator shall not,
without the approval of the stockholders of the Company, authorize the amendment of any outstanding
Award to reduce its price per share. Furthermore, no Award shall be canceled and replaced with the
grant of an Award having a lesser price per share without the further approval of stockholders of
the Company. Subject to Section 11.2, the Administrator shall have the authority, without the
approval of the stockholders of the Company, to amend any outstanding award to increase the price
per share or to cancel and replace an Award with the grant of an Award having a price per share
that is greater than or equal to the price per share of the original Award.




          11.7. Forfeiture Provisions. Pursuant to its general authority to determine the terms
and conditions applicable to Awards under the Plan, the Administrator shall have the right




27









 







to provide, in the terms of Awards made under the Plan, or to require a Holder to agree by
separate written instrument, that: (a)(i) any proceeds, gains or other economic benefit actually
or constructively received by the Holder upon any receipt or exercise of the Award, or upon the
receipt or resale of any Common Stock underlying the Award, must be paid to the Company, and (ii)
the Award shall terminate and any unexercised portion of the Award (whether or not vested) shall be
forfeited, if (b)(i) a Termination of Employment, Termination of Directorship or Termination of
Consultancy occurs prior to a specified date, or within a specified time period following receipt
or exercise of the Award, or (ii) the Holder at any time, or during a specified time period,
engages in any activity in competition with the Company, or which is inimical, contrary or harmful
to the interests of the Company, as further defined by the Administrator or (iii) the Holder incurs
a Termination of Employment, Termination of Directorship or Termination of Consultancy for “cause”
(as such term is defined in the discretion of the Administrator, or as set forth in a written
agreement relating to such Award between the Company and the Holder).




          11.8. Effect of Plan upon Other Compensation Plans. The adoption of the Plan shall
not affect any other compensation or incentive plans in effect for the Company or any Subsidiary.
Nothing in the Plan shall be construed to limit the right of the Company or any Subsidiary: (a) to
establish any other forms of incentives or compensation for Employees, Directors or Consultants of
the Company or any Subsidiary, or (b) to grant or assume options or other rights or awards
otherwise than under the Plan in connection with any proper corporate purpose including without
limitation, the grant or assumption of options in connection with the acquisition by purchase,
lease, merger, consolidation or otherwise, of the business, stock or assets of any corporation,
partnership, limited liability company, firm or association.




          11.9. Prohibition on Pre-Service Grants. In no event shall any individual receive an
Award prior to the date of his or her commencement of employment or service with the Company or any
Subsidiary.




          11.10. Compliance with Laws. The Plan, the granting and vesting of Awards under the
Plan and the issuance and delivery of shares of Common Stock and the payment of money under the
Plan or under Awards granted or awarded hereunder are subject to compliance with all applicable
federal, state, local and foreign laws, rules and regulations (including but not limited to
federal, state and foreign securities law and margin requirements) and to such approvals by any
listing, regulatory or governmental authority as may, in the opinion of counsel for the Company, be
necessary or advisable in connection therewith. Any securities delivered under the Plan shall be
subject to such restrictions, and the person acquiring such securities shall, if requested by the
Company, provide such assurances and representations to the Company as the Company may deem
necessary or desirable to assure compliance with all applicable legal requirements. To the extent
permitted by applicable law, the Plan and Awards granted or awarded hereunder shall be deemed
amended to the extent necessary to conform to such laws, rules and regulations.




          11.11. Titles. Titles are provided herein for convenience only and are not to serve
as a basis for interpretation or construction of the Plan.




28









 








          11.12. Governing Law. The Plan and any agreements hereunder shall be administered,
interpreted and enforced under the internal laws of the State of Delaware without regard to
conflicts of laws thereof.




          11.13. Section 409A. To the extent that the Administrator determines that any Award
granted under the Plan is subject to Section 409A of the Code, the Award Agreement evidencing such
Award shall incorporate the terms and conditions required by Section 409A of the Code. To the
extent applicable, the Plan and Award Agreements shall be interpreted in accordance with Section
409A of the Code and Department of Treasury regulations and other interpretive guidance issued
thereunder, including without limitation any such regulations or other guidance that may be issued
after the Effective Date. Notwithstanding any provision of the Plan to the contrary, in the event
that following the Effective Date the Administrator determines that any Award may be subject to
Section 409A of the Code and related Department of Treasury guidance (including such Department of
Treasury guidance as may be issued after the Effective Date), the Administrator may adopt such
amendments to the Plan and the applicable Award Agreement or adopt other policies and procedures
(including amendments, policies and procedures with retroactive effect), or take any other actions,
that the Administrator determines are necessary or appropriate to (a) exempt the Award from Section
409A of the Code and/or preserve the intended tax treatment of the benefits provided with respect
to the Award, or (b) comply with the requirements of Section 409A of the Code and related
Department of Treasury guidance.




          11.14. Foreign Participants. Notwithstanding any provision of the Plan to the
contrary, in order to comply with the laws in other countries in which the Company and its
Subsidiaries operate or have Employees, Consultants or Directors, the Administrator, in its sole
discretion, shall have the power and authority to: (i) determine which Subsidiaries shall be
covered by the Plan; (ii) determine which Employees, Consultants and Directors outside the United
States are eligible to participate in the Plan; (iii) modify the terms and conditions of any Award
granted to Employees, Consultants and Directors outside the United States to comply with applicable
foreign laws; (iv) establish subplans and modify exercise procedures and other terms and
procedures, to the extent such actions may be necessary or advisable (any such subplans and/or
modifications may be attached to this Plan as appendices); provided, however, that no such subplans
and/or modifications shall increase the share limitations contained in Section 2.1(a) or Section
2.3 of the Plan; and (v) take any action, before or after an Award is made, that it deems advisable
to obtain approval or comply with any necessary local governmental regulatory exemptions or
approvals. Notwithstanding the foregoing, the Committee may not take any actions hereunder, and no
Awards shall be granted, that would violate the Exchange Act, the Code, the ASX Listing Rules, any
securities law or governing statute or any other applicable law.




29









 








* * * * *




          I hereby certify that the foregoing Peplin, Inc. 2007 Incentive Award Plan was duly adopted by
the Board of Directors of Peplin, Inc. on                                                  , 2007.




          Executed on this ___ day of                                         , 2007.



	 	 	 	 	 
	 	 	 
	 	
 	 
	 	Corporate Secretary 	 
	 	 	 
	 



* * * * *




          I hereby certify that the foregoing Peplin, Inc. 2007 Incentive Award Plan was approved by the
stockholders of Peplin Limited, the sole stockholder of Peplin, Inc., on                                                  , 2007.




          Executed on this ___ day of                     , 2007.




	 	 	 	 	 
	 	 	 
	 	
 	 
	 	Corporate Secretary 	 
	 	 	 
	 




30