Amended and Restated Form of 2007 Employee Stock Purchase Plan Offering Document



  
 Exhibit 10.4

 JAZZ PHARMACEUTICALS, INC. 

2007 EMPLOYEE STOCK PURCHASE PLAN 

OFFERING DOCUMENT 
 ADOPTED BY THE BOARD OF DIRECTORS: MAY 1, 2007 

AMENDED: SEPTEMBER 30, 2009 
 AMENDED AND RESTATED BY THE BOARD OF DIRECTORS: SEPTEMBER 29,
2010 
 In this document, capitalized terms not otherwise defined shall have the same definitions of such terms as in the
Jazz Pharmaceuticals, Inc. 2007 Employee Stock Purchase Plan. 
 1. GRANT; OFFERING DATE.

 (a) The Board hereby authorizes a series of Offerings pursuant to the terms of this Offering document. 

(b) The first Offering hereunder (the “Initial Offering”) shall begin on the date the Common Stock is
first offered to the public under a registration statement declared effective under the Securities Act and shall end on May 31, 2009, unless terminated earlier as provided below. The Initial Offering shall consist of four (4) Purchase
Periods, with the first Purchase Period ending on November 30, 2007, the second Purchase Period ending on May 31, 2008, the third Purchase Period ending on November 30, 2008, and the fourth Purchase Period ending on May 31, 2009.

 (c) After the Initial Offering commences, a concurrent Offering shall begin on December 1, 2007 and each June 1 and
December 1 beginning in 2008 over the term of the Plan and shall be approximately twenty-four (24) months in duration. Offerings shall be concurrent, but an Eligible Employee may enroll in only one Offering at a time. Each Offering shall
consist of four (4) Purchase Periods, each of which shall be approximately six (6) months in length ending on or about May 31 and November 30 each year. Except as provided below, a Purchase Date is the last day of a Purchase
Period or of an Offering, as the case may be. 
 (d) Notwithstanding the foregoing: (i) if any Offering Date falls on a day
that is not a Trading Day, then such Offering Date shall instead fall on the next subsequent Trading Day, and (ii) if any Purchase Date falls on a day that is not a Trading Day, then such Purchase Date shall instead fall on the immediately
preceding Trading Day. 
 (e) Prior to the commencement of any Offering, the Board may change any or all terms of such Offering
and any subsequent Offerings. The granting of Purchase Rights pursuant to each Offering hereunder shall occur on each respective Offering Date unless prior to such date (i) the Board determines that such Offering shall not occur, or
(ii) no shares of Common Stock remain available for issuance under the Plan in connection with the Offering. 
 (f)
Notwithstanding anything in this Section 1 to the contrary, if the Fair Market Value of a share of Common Stock on any Purchase Date during an Offering is less than or equal to the Fair Market Value of a share of Common Stock on the Offering
Date for that Offering, then that Offering shall terminate immediately following the purchase of shares of Common Stock on such Purchase Date. Participants in the terminated Offering automatically shall be enrolled in the Offering that commences
immediately after such Purchase Date. 







  
 2. ELIGIBLE
EMPLOYEES. 
 (a) Each Eligible Employee who has been an Employee for a continuous period of at least ten
(10) days ending on the Offering Date of an Offering hereunder and is either (i) an employee of the Company; (ii) an employee of a Related Corporation incorporated in the United States; or (iii) an employee of a Related
Corporation that is not incorporated in the United States, provided that the Board or Committee has designated the employees of such Related Corporation as eligible to participate in the Offering, shall be granted a Purchase Right on the Offering
Date of such Offering. 
 (b) Each person who first becomes an Eligible Employee during an Offering shall not be granted a
Purchase Right under such Offering, but shall be eligible to participate in subsequent Offerings. 
 (c) Notwithstanding the
foregoing, the following Employees shall not be Eligible Employees or be granted Purchase Rights under an Offering: 
 (i)
Employees whose customary employment is less than twenty (20) hours per week or less than five (5) months per calendar year; 
 (ii) five percent (5%) stockholders (including ownership through unexercised and/or unvested stock options) as described in Section 5(c) of the Plan; or 

(iii) Employees in jurisdictions outside of the United States if, as of the Offering Date of the Offering, the grant of such Purchase
Rights would not be in compliance with the applicable laws of any jurisdiction in which the Employee resides or is employed. 
 3.
PURCHASE RIGHTS. 
 (a) Subject to the limitations herein and in the Plan, a Participant’s
Purchase Right shall permit the purchase of the number of shares of Common Stock purchasable with up to fifteen percent (15%) of such Participant’s Earnings paid during the period of such Offering beginning immediately after such
Participant first commences participation; provided, however, that no Participant may have more than fifteen percent (15%) of such Participant’s Earnings applied to purchase shares of Common Stock under all ongoing Offerings under
the Plan and all other plans of the Company and Related Corporations that are intended to qualify as Employee Stock Purchase Plans. 
 (b) For Offerings hereunder, “Earnings” means the base compensation paid to a Participant, including all salary, wages (including amounts elected to be deferred by such
Participant, that would otherwise have been paid, under any cash or deferred arrangement or other deferred compensation program established by the Company or a Related Corporation), but excluding all of the following: all overtime pay, commissions,
bonuses, and other remuneration paid directly to such Participant, profit sharing, the cost of employee benefits paid for by the Company or a Related Corporation, education or tuition reimbursements, imputed income arising under any Company or
Related Corporation group insurance or benefit program, traveling expenses, business and moving expense reimbursements, income received in connection with stock options and other equity awards, contributions made by the Company or a Related
Corporation under any employee benefit plan, and other similar items of compensation. 







  
 (c) Notwithstanding
the foregoing, the maximum number of shares of Common Stock that a Participant may purchase on any Purchase Date in an Offering shall be such number of shares as has a Fair Market Value (determined as of the Offering Date for such Offering) equal to
(x) $25,000 multiplied by the number of calendar years in which the Purchase Right under such Offering has been outstanding at any time, minus (y) the Fair Market Value of any other shares of Common Stock (determined as of the relevant
Offering Date with respect to such shares) that, for purposes of the limitation of Section 423(b)(8) of the Code, are attributed to any of such calendar years in which the Purchase Right is outstanding. The amount in clause (y) of the
previous sentence shall be determined in accordance with regulations applicable under Section 423(b)(8) of the Code based on (i) the number of shares previously purchased with respect to such calendar years pursuant to such Offering or any
other Offering under the Plan, or pursuant to any other Company or Related Corporation plans intended to qualify as Employee Stock Purchase Plans, and (ii) the number of shares subject to other Purchase Rights outstanding on the Offering Date
for such Offering pursuant to the Plan or any other such Company or Related Corporation Employee Stock Purchase Plan. 
 (d) The
maximum aggregate number of shares of Common Stock available to be purchased by all Participants under an Offering shall be the number of shares of Common Stock remaining available under the Plan on the Offering Date, rounded down to the nearest
whole share. If the aggregate purchase of shares of Common Stock upon exercise of Purchase Rights granted under all concurrent Offerings would exceed the maximum aggregate number of shares available, the Board shall make a pro rata allocation of the
shares available in an equitable manner. Any Contributions not applied to the purchase of available shares of Common Stock shall be refunded to the Participants without interest. 

(e) Notwithstanding the foregoing, the maximum number of shares of Common Stock that may be purchased on any single Purchase Date by all
Eligible Employees under all ongoing Offerings shall not exceed 150,000 shares for all Purchase Periods prior to the Purchase Period that began on June 1, 2009. For the Purchase Period that began on June 1, 2009, and for the subsequent
three (3) Purchase Periods, the maximum is 260,000 shares; and thereafter, the maximum is 175,000 shares, in each case on a single Purchase Date. If the aggregate number of shares of Common Stock to be purchased upon the exercise of all
outstanding Purchase Rights on a single Purchase Date would exceed the applicable limit set forth above, the Board shall make a uniform and equitable allocation of the shares available. Any Contributions not applied to the purchase of available
shares of Common Stock shall be refunded to the Participants without interest. 
 (f) In addition, for the Offering beginning on
December 1, 2010 and all subsequent Offerings, the maximum amount of Earnings that an Eligible Employee may contribute during any Purchase Period shall not exceed $15,000. 
 4. PURCHASE PRICE. 
 The purchase price of shares of
Common Stock under an Offering shall be the lesser of: (i) eighty-five percent (85%) of the Fair Market Value of such shares of Common Stock on the Offering Date, or (ii) eighty-five percent (85%) of the Fair Market Value of such
shares of Common Stock on the applicable Purchase Date, in each case rounded up to the nearest whole cent per share. 







  
 5. PARTICIPATION.

 (a) An Eligible Employee may elect to participate in an Offering with such election to be effective on the Offering Date. An
Eligible Employee may enroll in only one Offering at a time. An Eligible Employee shall elect his or her payroll deduction percentage on such enrollment form as the Company provides. The completed enrollment form must be delivered to the Company at
least ten (10) days prior to the date participation is to be effective, unless a later time for filing the enrollment form is set by the Company for all Eligible Employees with respect to a given Offering. For clarification, except as provided
in Section 1(f), if an Eligible Employee fails to submit an enrollment form prior to the start of an Offering in which such Eligible Employee is eligible to participate, such Eligible Employee shall be deemed to have withdrawn from such
Offering. Payroll deduction percentages must be expressed in whole percentages of Earnings, with a minimum percentage of one percent (1%) and a maximum percentage of fifteen percent (15%). Except as provided in Section 5(e), a Participant
may participate only by way of payroll deductions. 
 (b) A Participant may increase or decrease his or her participation level
at any time with such change to be effective commencing as of the next Offering in which such Participant is eligible to participate. Any such increase or decrease in participation level shall be made by delivering a notice to the Company or a
designated Related Corporation in such form as the Company provides prior to the ten (10) day period (or such shorter period of time as determined by the Company and communicated to Participants) immediately preceding the next Offering Date for
which it is to be effective and in which such Participant is eligible to participate. A Participant may also increase or decrease his or her participation level to be effective in a subsequent Purchase Period of an ongoing Offering in accordance
with procedures established by the Company. 
 (c) A Participant may increase his or her participation level once during a
Purchase Period. In addition, a Participant may decrease (including a decrease to zero percent (0%)) his or her participation level no more than twice during a Purchase Period (and the second decrease in participation level must be to zero percent
(0%)). Notwithstanding the foregoing or any other provision of this Offering Document or of the Plan to the contrary, the Company may determine in its sole discretion at any time, including at any time following the commencement of an Offering or
Purchase Period, that it will no longer accept Participant requests to increase participation levels during such Offering or Purchase Period, as applicable. For example, any Participant who has not increased his or her payroll deduction level from
zero percent (0%) to at least one percent (1%) by the enrollment form delivery deadline prescribed before the start of a new Offering in which such Participant is eligible to participate, excluding a new Offering commencing pursuant to
Section 1(f), shall be deemed to have withdrawn from the Plan effective as of the first day of that new Offering. Any such change in participation level shall be made by delivering a notice to the Company or a designated Related Corporation in
such form as the Company provides prior to the ten (10) day period (or such shorter period of time as determined by the Company and communicated to Participants) immediately preceding the payroll date for which it is to be effective and such
change will become effective as soon as administratively practicable following the Company’s receipt of the notice. 







  
 (d) A Participant may
withdraw from an Offering and receive a refund of his or her Contributions (reduced to the extent, if any, such Contributions have been used to acquire shares of Common Stock for the Participant on any prior Purchase Date) without interest, at any
time prior to the end of the Offering, excluding only each ten (10)-day period immediately preceding a Purchase Date (or such shorter period of time determined by the Company and communicated to Participants), by delivering a withdrawal notice to
the Company or a designated Related Corporation in such form as the Company provides. A Participant who has withdrawn from an Offering shall not again participate in such Offering, but may participate in subsequent Offerings under the Plan in
accordance with the terms of the Plan and the terms of such subsequent Offerings. 
 (e) Notwithstanding the foregoing or any
other provision of this Offering document or of the Plan to the contrary, neither the enrollment of any Eligible Employee in the Plan nor any forms relating to participation in the Plan shall be given effect until such time as a registration
statement covering the shares reserved under the Plan that are subject to the Offering has been filed by the Company and has become effective. If the provisions of this Section are applicable, the Company shall establish such procedures as will
enable the purposes of the Plan to be satisfied while complying with applicable securities laws. Such procedures may include, for example, allowing Participants to participate other than by means of payroll deduction and/or allowing Participants to
increase their level of participation during a Purchase Period. 
 (f) Except as provided otherwise in Section 1(f), an
Eligible Employee must affirmatively enroll and authorize payroll deductions in each Offering in which the Eligible Employee elects to participate. 
 6. PURCHASES. 
 Subject to the limitations contained herein, on each
Purchase Date, each Participant’s Contributions (without any increase for interest) shall be applied to the purchase of whole shares of Common Stock, up to the maximum number of shares permitted under the Plan and the Offering. 

7. NOTICES AND AGREEMENTS. 
 Any notices or agreements provided for in an Offering or the Plan shall be given in writing, in a form provided by the Company (including documents delivered in electronic form, if authorized by the
Committee), and unless specifically provided for in the Plan or this Offering, shall be deemed effectively given upon receipt or, in the case of notices and agreements delivered by the Company, five (5) days after deposit in the United States
mail, postage prepaid. 
 8. EXERCISE CONTINGENT ON STOCKHOLDER
APPROVAL. 
 The Purchase Rights granted under an Offering are subject to the approval of the Plan by the
stockholders of the Company as required for the Plan to obtain treatment as an Employee Stock Purchase Plan. 
 9. CAPITALIZATION
ADJUSTMENTS. 
 The limitation set forth in Section 3(e) shall be adjusted, as appropriate, to reflect
Capitalization Adjustments. 







  
 10. OFFERING
SUBJECT TO PLAN. 
 Each Offering is subject to all the provisions of the Plan, and
the provisions of the Plan are hereby made a part of the Offering. The Offering is further subject to all interpretations, amendments, rules and regulations which may from time to time be promulgated and adopted pursuant to the Plan. In the event of
any conflict between the provisions of an Offering and those of the Plan (including interpretations, amendments, rules and regulations which may from time to time be promulgated and adopted pursuant to the Plan), the provisions of the Plan shall
control.