exv10w5



 







Exhibit 10.5




REPLIDYNE, INC.




2006 EMPLOYEE STOCK PURCHASE PLAN




Adopted by the Board of Directors on __________, 2006

Approved by the Stockholders on __________, 2006




     1. Purpose.



            (a) The purpose of this Plan is to provide a means by which Employees of the Company and
certain designated Subsidiaries may be given an opportunity to purchase stock of the Company.



            (b) The Company, by means of the Plan, seeks to retain the services of its Employees, to
secure and retain the services of new Employees, and to provide incentives for such persons to
exert maximum efforts for the success of the Company.



            (c) The Company intends that the Purchase Rights granted under the Plan be considered options
issued under an Employee Stock Purchase Plan.



     2. Definitions.



     As used in the Plan and any Offering, unless otherwise specified, the following terms have the
meanings set forth below:



     (a) “Affiliate” means (i) any corporation (other than the Company) in an unbroken chain of
corporations ending with the Company, provided each corporation in the unbroken chain (other than
the Company) owns, at the time of the determination, 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, and (ii) any corporation (other than the Company) in an unbroken chain of corporations
beginning with the Company, provided each corporation (other than the last corporation) in the
unbroken chain owns, at the time of the determination, 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. The Board shall have the authority to determine (i) the time or times at which the
ownership tests are applied, and (ii) whether “Affiliate” includes entities other than corporations
within the foregoing definition.



     (b) “Board” means the Board of Directors of the Company.



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



     (d) “Committee” means a committee of one (1) or more members of the Board to whom authority
has been delegated by the Board in accordance with Section 3(c).



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     (e) “Common Stock” means the common stock of the Company.



     (f) “Company” means Replidyne, Inc., a Delaware corporation.



     (g) “Contributions” means the payroll deductions, and other additional payments specifically
provided for in the Offering, that a Participant contributes to fund the exercise of a Purchase
Right. A Participant may make additional payments into his or her account, if specifically provided
for in the Offering, and then only if the Participant has not already had the maximum permitted
amount withheld through payroll deductions during the Offering.



     (h) “Corporate Transaction” means the occurrence, in a single transaction or in a series of
related transactions, of any one or more of the following events:



     (1) a dissolution or liquidation of the Company;



     (2) a lease, sale, or other disposition of all or substantially all of the assets of the
Company;



     (3) the consummation of a merger, consolidation or similar transaction following which the
Company is not the surviving corporation; or



     (4) the consummation of a merger, consolidation or similar transaction following which the
Company is the surviving corporation but the shares of Common Stock outstanding immediately
preceding the merger, consolidation or similar transaction are converted or exchanged by virtue of
the merger, consolidation or similar transaction into other property, whether in the form of
securities, cash or otherwise.



     (5) the acquisition by any person, entity or group within the meaning of Section 13(d) or
14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any comparable
successor provisions (excluding any employee benefit plan, or related trust, sponsored or
maintained by the Company or any Subsidiary) of the beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act, or comparable successor rule) of securities of the
Company representing at least fifty percent (50%) of the combined voting power entitled to vote in
the election of directors; or



     (6) the individuals who, as of the date of the adoption of this Plan, are members of the Board
(the “Incumbent Board”) cease for any reason to constitute at least fifty percent (50%) of the
Board, provided that if the election, or nomination for election by the Company’s stockholders, of
a new director was approved by a vote of at least fifty percent (50%) of the members of the Board
then comprising the Incumbent Board, such new director shall upon his or her election be considered
a member of the Incumbent Board.



     (i) “Director” means a member of the Board.



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     (j) “Earnings” of an Employee with respect to any Offering has the meaning defined in such
Offering.



     (k) “Eligible Employee” means an Employee who meets the requirements set forth in the Offering
for eligibility to participate in the Offering, provided that such Employee also meets the
requirements for eligibility to participate set forth in the Plan.



     (l) “Employee” means any person, including Officers and Directors, who is employed for
purposes of Section 423(b)(4) of the Code by the Company or a Subsidiary. Neither service as a
Director nor payment of a director’s fee shall be sufficient to make an individual an Employee of
the Company or a Subsidiary.



     (m) “Employee Stock Purchase Plan” means a plan that grants Purchase Rights intended to be
options issued under an “employee stock purchase plan,” as that term is defined in Section 423(b)
of the Code.



     (n) “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     (o) “Fair Market Value” means the value of a security, as determined in good faith by the
Board. If the security is listed on any established stock exchange or traded on the Nasdaq
National Market or the Nasdaq SmallCap Market, the Fair Market Value of the security, unless
otherwise determined by the Board, shall be the closing sales price (rounded up where necessary to
the nearest whole cent) for such security (or the closing bid, if no sales were reported) as quoted
on such exchange or market (or the exchange or market with the greatest volume of trading in the
relevant security of the Company) on the last Trading Day prior to the date of determination, as
reported in The Wall Street Journal or such other source as the Board deems reliable.



     (p) “Initial Offering” means the first Offering under this Plan.



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



     (r) “Offering” means the grant of Purchase Rights to purchase shares of Common Stock under the
Plan to Eligible Employees.



     (s) “Offering Date” means a date selected by the Board for an Offering to commence.



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     (t) "Officer” means a person who is an officer of the Company within the meaning of Section 16
of the Exchange Act and the rules and regulations promulgated thereunder



     (u) “Outside Director” means a Director who either (i) is not a current employee of the
Company or an “affiliated corporation” (within the meaning of Treasury Regulations promulgated
under Section 162(m) of the Code), is not a former employee of the Company or an “affiliated
corporation” who receives compensation for prior services (other than benefits under a
tax-qualified retirement plan) during the taxable year, has not been an officer of the Company or
an “affiliated corporation,” and does not receive remuneration from the Company or an “affiliated
corporation,” either directly or indirectly, in any capacity other than as a Director, or (ii) is
otherwise considered an “outside director” for purposes of Section 162(m) of the Code.



     (v) “Participant” means an Eligible Employee who holds an outstanding Purchase Right granted
pursuant to the Plan.



     (w) “Plan” means this Replidyne, Inc. 2006 Employee Stock Purchase Plan.



     (x) “Purchase Date” means one or more dates during an Offering established by the Board on
which Purchase Rights shall be exercised and as of which purchases of shares of Common Stock shall
be carried out in accordance with such Offering.



     (y) “Purchase Period” means a period of time specified within an Offering beginning on the
Offering Date or on the next day following a Purchase Date within an Offering and ending on a
Purchase Date. An Offering may consist of one or more Purchase Periods.



     (z) “Purchase Right” means an option to purchase shares of Common Stock granted pursuant to
the Plan.



     (aa) “Related Corporation” means any parent corporation or subsidiary corporation, whether now
or hereafter existing, as those terms are defined in Sections 424(e) and (f), respectively, of the
Code.



     (bb) “Securities Act” means the Securities Act of 1933, as amended.



     (cc) “Subsidiary” means any subsidiary corporation of the Company, whether now or hereafter
existing, as such term is defined in Section 424(f) of the Code.



     (dd) "Trading Day” means any day the exchange(s) or market(s) on which shares of Common Stock
are listed, whether it be any established stock exchange, the Nasdaq National Market, the Nasdaq
SmallCap Market or otherwise, is open for trading.



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     3. Administration.



            (a) The Plan shall be administered by the Board unless and until the Board delegates
administration to a Committee, as provided in subparagraph 3(c). Whether or not the Board has
delegated administration, the Board shall have the final power to determine all questions of policy
and expediency that may arise in the administration of the Plan.



            (b) The Board shall have the power, subject to, and within the limitations of, the express
provisions of the Plan:



            (i) To determine when and how Purchase Rights shall be granted and the provisions of each
offering of such Purchase Rights (which need not be identical).



            (ii) To designate from time to time which Subsidiaries shall be eligible to participate in the
Plan.



            (iii) To construe and interpret the Plan and Purchase Rights granted under it, and to
establish, amend and revoke rules and regulations for its administration. The Board, in the
exercise of this power, may correct any defect, omission or inconsistency in the Plan, in a manner
and to the extent it shall deem necessary or expedient to make the Plan fully effective.



            (iv) To amend the Plan as provided in paragraph 14.



            (v) Generally, to exercise such powers and to perform such acts as the Board deems necessary
or expedient to promote the best interests of the Company and its Subsidiaries and to carry out the
intent that the Plan be treated as an Employee Stock Purchase Plan.



     (c) The Board may delegate administration of the Plan to a Committee of the Board composed of
two (2) or more members, all of the members of which Committee may be, in the discretion of the
Board, Non-Employee Directors and/or Outside Directors. If administration is delegated to a
Committee, the Committee shall have, in connection with the administration of the Plan, the powers
theretofore possessed by the Board, including the power to delegate to a subcommittee of two (2) or
more Outside Directors any of the administrative powers the Committee is authorized to exercise
(and references in this Plan to the Board shall thereafter be to the Committee or such a
subcommittee), subject, however, to such resolutions, not inconsistent with the provisions of the
Plan, as may be adopted from time to time by the Board. The Board may abolish the Committee at any
time and revest in the Board the administration of the Plan. If administration is delegated to a
Committee, references to the Board in this Plan and in the Offering document shall thereafter be
deemed to be to the Board or the Committee, as the case may be.



     (d) Any interpretation of the Plan by the Board of any decision made by it under the Plan
shall be final and binding on all persons.



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     4. Shares Subject to the Plan.



            (a) Subject to the provisions of paragraph 13 relating to adjustments upon changes in stock,
the stock that may be sold pursuant to Purchase Rights granted under the Plan (the “Reserved
Shares”), shall not exceed in the aggregate one million five
hundred thousand (1,500,000) shares of
the Common Stock. As of each January 1, beginning with January 1, 2007, and continuing through and
including January 1, 2016, the number of Reserved Shares will be increased automatically by the
lesser of (i) one percent (1.0%) of the total number of shares of the Common Stock outstanding on
December 31st
of the preceding calendar year, or (ii) five hundred thousand
(500,000) shares. Notwithstanding the foregoing, the Board may designate a smaller number of
shares to be added to the share reserve as of a particular January 1. If any Purchase Right
granted under the Plan shall for any reason terminate without having been exercised, the Common
Stock not purchased under such Purchase Right shall again become available for the Plan.



            (b) The stock subject to the Plan may be unissued shares or reacquired shares, bought on the
market or otherwise.



     5. Grant of Rights; Offering.



            (a) The Board or the Committee may from time to time grant or provide for the grant of
Purchase Rights under the Plan to Eligible Employees in an Offering on an Offering Date or Offering
Dates selected by the Board or the Committee. Each Offering shall be in such form and shall
contain such terms and conditions as the Board or the Committee shall deem appropriate, which shall
comply with the requirements of Section 423(b)(5) of the Code that all Employees granted Purchase
Rights under the Plan shall have the same rights and privileges. The terms and conditions of an
Offering shall be incorporated by reference into the Plan and treated as part of the Plan. The
provisions of separate Offerings need not be identical, but each Offering shall include (through
incorporation of the provisions of this Plan by reference in the document comprising the Offering
or otherwise) the period during which the Offering shall be effective, which period shall not
exceed twenty-seven (27) months beginning with the Offering Date, and the substance of the
provisions contained in paragraphs 6 through 9, inclusive.



            (b) If a Participant has more than one (1) Purchase Right outstanding under the Plan, unless
he or she otherwise indicates in agreements or notices delivered hereunder, a Purchase Right with a
lower exercise price (or an earlier-granted Purchase Right if two (2) Purchase Rights have
identical exercise prices), will be exercised to the fullest possible extent before a Purchase
Right with a higher exercise price (or a later-granted Purchase Right if two (2) Purchase Rights
have identical exercise prices) will be exercised.



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     6. Eligibility.



            (a) Rights may be granted only to Employees of the Company or, as the Board or the Committee
may designate as provided in subparagraph 3(b), to Employees of any Subsidiary of the Company.
Except as provided in subparagraph 6(b), an Employee of the Company or any Subsidiary shall not be
eligible to be granted Purchase Rights under the Plan unless, on the Offering Date, such Employee
has been in the employ of the Company or any Subsidiary for such continuous period preceding such
grant as the Board or the Committee may require, but in no event shall the required period of
continuous employment be greater than two (2) years. In addition, unless otherwise determined by
the Board or the Committee and set forth in the terms of the applicable Offering, no Employee of
the Company or any Subsidiary shall be eligible to be granted Purchase Rights under the Plan
unless, on the Offering Date, such Employee’s customary employment with the Company or such
Subsidiary is for at least twenty (20) hours per week and at least five (5) months per calendar
year.



            (b) The Board or the Committee may provide that each person who, during the course of an
Offering, first becomes an Eligible Employee of the Company or designated Subsidiary will, on a
date or dates specified in the Offering which coincides with the day on which such person becomes
an Eligible Employee or a date which occurs thereafter, receive a Purchase Right under that
Offering, which Purchase Right shall thereafter be deemed to be a part of that Offering. Such
Purchase Right shall have the same characteristics as any Purchase Rights originally granted under
that Offering, as described herein, except that:



                    (i) the date on which such Purchase Right is granted shall be the “Offering Date” of such
Purchase Right for all purposes, including determination of the exercise price of such Purchase
Right;



                    (ii) the period of the Offering with respect to such Purchase Right shall begin on its
Offering Date and end coincident with the end of such Offering; and



                    (iii) the Board or the Committee may provide that if such person first becomes an Eligible
Employee within a specified period of time before the end of the Offering, he or she will not
receive any Purchase Right under that Offering.



            (c) No Employee shall be eligible for the grant of any Purchase Rights under the Plan if,
immediately after any such Purchase Rights are granted, such Employee owns stock possessing five
percent (5%) or more of the total combined voting power or value of all classes of stock of the
Company or of any Related Corporation. For purposes of this subparagraph 6(c), the rules of
Section 424(d) of the Code shall apply in determining the stock ownership of any Employee, and
stock which such Employee may purchase under all outstanding Purchase Rights and options (whether
vested or unvested) shall be treated as stock owned by such Employee.



            (d) An Eligible Employee may be granted Purchase Rights under the Plan only if such Purchase
Rights, together with any other Purchase Rights granted under Employee Stock Purchase Plans of the
Company and any Related Corporations do not permit such



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Employee’s Purchase Rights or any Related Corporation to accrue at a rate which exceeds twenty
five thousand dollars ($25,000) of Fair Market Value of such stock (determined at the time such
Purchase Rights are granted) for each calendar year in which such Purchase Rights are outstanding
at any time.



            (e) Officers of the Company and any designated Subsidiary shall be eligible to participate in
Offerings under the Plan; provided, however, that the Board may provide in an Offering that certain
Employees who are highly compensated Employees within the meaning of Section 423(b)(4)(D) of the
Code shall not be eligible to participate.



     7. Rights; Purchase Price.



            (a) On each Offering Date, each Eligible Employee, pursuant to an Offering made under the
Plan, shall be granted a Purchase Right to purchase up to the number of shares of Common Stock of
the Company purchasable with a percentage designated by the Board or the Committee not exceeding
twenty percent (20%) of such Employee’s Earnings during the period which begins on the Offering
Date (or such later date as the Board or the Committee determines for a particular Offering) and
ends on the date stated in the Offering, which date shall be no later than the end of the Offering.
The Board or the Committee shall establish one (1) or more Purchase Dates during an Offering on
which Purchase Rights granted under the Plan shall be exercised and purchases of Common Stock
carried out in accordance with such Offering.



            (b) In connection with each Offering made under the Plan, the Board or the Committee may
specify a maximum number of shares that may be purchased by any Participant as well as a maximum
aggregate number of shares that may be purchased by all Participants pursuant to such Offering. In
addition, in connection with each Offering that contains more than one (1) Purchase Date, the Board
or the Committee may specify a maximum aggregate number of shares which may be purchased by all
Participants on any given Purchase Date under the Offering. If the aggregate purchase of shares
upon exercise of Purchase Rights granted under the Offering would exceed any such maximum aggregate
number, the Board or the Committee shall make a pro rata allocation of the shares available in as
nearly a uniform manner as shall be practicable and as it shall deem to be equitable.



            (c) The per share purchase price of stock acquired pursuant to Purchase Rights granted under
the Plan shall be not less than the lesser of:



                    (i) an amount equal to eighty-five percent (85%) of the Fair Market Value of a share of Common
Stock on the Offering Date; or



                    (ii) an amount equal to eighty-five percent (85%) of the Fair Market Value of a share of
Common Stock on the Purchase Date.



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     8. Participation; Withdrawal; Termination.



            (a) A Participant may elect to authorize payroll deductions pursuant to an Offering under the
Plan by completing and delivering to the Company, within the time specified in the Offering, an
enrollment form (in such form as the Company may provide). Each such enrollment form shall
authorize an amount of Contributions expressed as a percentage of the submitting Participant’s
Earnings during the Offering (not to exceed any maximum percentage or amount specified by the
Board). Each Participant’s Contributions shall be credited to a bookkeeping account for such
Participant under the Plan and shall be deposited with the general funds of the Company except
where applicable law requires that Contributions be deposited with a third party. To the extent
provided in the Offering, a Participant may begin such Contributions after the beginning of the
Offering. To the extent provided in the Offering, a Participant may thereafter reduce (including
to zero) or increase his or her Contributions. To the extent specifically provided in the
Offering, in addition to making Contributions by payroll deductions, a Participant may make
Contributions through the payment by cash or check prior to a specified Purchase Date of the
Offering.



            (b) During an Offering, a Participant may cease making Contributions and withdraw from the
Offering by delivering to the Company a notice of withdrawal in such form as the Company may
provide. Such withdrawal may be elected at any time prior to the end of the Offering, except as
provided otherwise in the Offering. Upon such withdrawal from the Offering by a Participant, the
Company shall distribute to such Participant all of his or her accumulated Contributions (reduced
to the extent, if any, such deductions have been used to acquire shares of Common Stock for the
Participant) under the Offering, and such Participant’s Purchase Rights in that Offering shall
thereupon terminate. A Participant’s withdrawal from an Offering shall have no effect upon such
Participant’s eligibility to participate in any other Offerings under the Plan, but such
Participant shall be required to deliver a new enrollment form in order to participate in
subsequent Offerings.



            (c) Rights granted pursuant to any Offering under the Plan shall terminate immediately upon a
Participant ceasing to be an Employee for any reason or for no reason (subject to any
post-employment participation period required by law) or other lack of eligibility. The Company
shall distribute to such terminated or otherwise ineligible Employee all of his or her accumulated
Contributions (reduced to the extent, if any, such deductions have been used to acquire shares of
Common Stock for the terminated or otherwise ineligible Employee) under the Offering.



            (d) Rights shall not be transferable by a Participant otherwise than by will or the laws of
descent and distribution, or by a beneficiary designation as provided in Section 15 and, during a
Participant’s lifetime, shall be exercisable only by such Participant.



            (e) Unless otherwise specified in an Offering, the Company shall have no obligation to pay
interest on Contributions.



     9. Exercise.



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            (a) On each Purchase Date specified therefor in the relevant Offering, each Participant’s
accumulated payroll deductions and other additional payments specifically provided for in the
Offering (without any increase for interest) will be applied to the purchase of whole shares of
stock of the Company, up to the maximum number of shares permitted pursuant to the terms of the
Plan and the applicable Offering, at the purchase price specified in the Offering. No fractional
shares shall be issued upon the exercise of Purchase Rights granted under the Plan. The amount, if
any, of accumulated payroll deductions remaining in each Participant’s account after the purchase
of shares which is less than the amount required to purchase one share of Common Stock on the final
Purchase Date of an Offering shall be held in each such Participant’s account for the purchase of
shares under the next Offering under the Plan, unless such Participant withdraws from such next
Offering, as provided in subparagraph 8(b), or is no longer eligible to be granted Purchase Rights
under the Plan, as provided in paragraph 6, in which case such amount shall be distributed to the
Participant after such final Purchase Date, without interest. The amount, if any, of accumulated
payroll deductions remaining in any Participant’s account after the purchase of shares which is
equal to the amount required to purchase one or more whole shares of Common Stock on the final
Purchase Date of an Offering shall be distributed in full to the Participant after such Purchase
Date, without interest.



            (b) No Purchase Rights granted under the Plan may be exercised to any extent unless the shares
to be issued upon such exercise under the Plan (including Purchase Rights granted thereunder) are
covered by an effective registration statement pursuant to the Securities Act and the Plan is in
material compliance with all applicable state, foreign and other securities and other laws
applicable to the Plan. If on a Purchase Date in any Offering hereunder the Plan is not so
registered or in such compliance, no Purchase Rights granted under the Plan or any Offering shall
be exercised on such Purchase Date, and the Purchase Date shall be delayed until the Plan is
subject to such an effective registration statement and such compliance, except that the Purchase
Date shall not be delayed more than twelve (12) months and the Purchase Date shall in no event be
more than twenty-seven (27) months from the Offering Date. If on the Purchase Date of any Offering
hereunder, as delayed to the maximum extent permissible, the Plan is not registered and in such
compliance, no Purchase Rights granted under the Plan or any Offering shall be exercised and all
payroll deductions accumulated during the Offering (reduced to the extent, if any, such deductions
have been used to acquire stock) shall be distributed to the participants, without interest.



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     10. Covenants of the Company.



            (a) During the terms of the Purchase Rights granted under the Plan, the Company shall keep
available at all times the number of shares of Common Stock required to satisfy such Purchase
Rights, provided that the Company shall not be obligated to keep available shares in excess of the
limits set forth or described in paragraphs 4 and 7 of the Plan and any corresponding or additional
limits set forth in an Offering.



            (b) The Company shall seek to obtain from each federal, state, foreign or other regulatory
commission or agency having jurisdiction over the Plan such authority as may be required to issue
and sell shares of stock upon exercise of the Purchase Rights granted under the Plan. If, after
reasonable efforts, the Company is unable to obtain from any such regulatory commission or agency
the authority which counsel for the Company deems necessary for the lawful issuance and sale of
stock under the Plan, the Company shall be relieved from any liability for failure to issue and
sell stock upon exercise of such Purchase Rights unless and until such authority is obtained.



     11. Use of Proceeds from Stock.



     Proceeds from the sale of stock pursuant to Purchase Rights granted under the Plan shall
constitute general funds of the Company.



     12. Rights as a Stockholder.



     A Participant shall not be deemed to be the holder of, or to have any of the rights of a
holder with respect to, any shares subject to Purchase Rights granted under the Plan unless and
until the participant’s shareholdings acquired upon exercise of Purchase Rights under the Plan are
recorded in the books of the Company (or its transfer agent).



     13. Adjustments upon Changes in Stock; Corporate Transactions.



            (a) If any change is made in the stock subject to the Plan, or subject to any Purchase Rights
granted under the Plan (through merger, consolidation, reorganization, recapitalization, stock
dividend, dividend in property other than cash, stock split, liquidating dividend, combination of
shares, exchange of shares, change in corporate structure or other transaction not involving the
receipt of consideration by the Company), the Plan and outstanding Purchase Rights will be
appropriately adjusted in the class(es) and maximum number of shares subject to the Plan and the
class(es) and number of shares and price per share of stock subject to outstanding Purchase Rights.
Such adjustments shall be made by the Board or the Committee, the determination of which shall be
final, binding and conclusive. (The conversion of any convertible securities of the Company shall
not be treated as a “transaction not involving the receipt of consideration by the Company.”)



            (b) In the event of a Corporate Transaction, then: (i) any surviving or acquiring corporation
may continue or assume Purchase Rights outstanding under the Plan or



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may substitute similar rights (including a right to acquire the same consideration paid to
stockholders in the Corporate Transaction) for those outstanding under the Plan, or (ii) if any
surviving or acquiring corporation does not continue or assume such Purchase Rights or does not
substitute similar rights for Purchase Rights outstanding under the Plan, then, the Participants’
accumulated Contributions shall be used to purchase shares of Common Stock within five (5) business
days prior to the Corporate Transaction under the ongoing Offering, and the Participants’ Purchase
Rights under the ongoing Offering shall terminate immediately after such purchase.



     14. Amendment of the Plan or Offerings.



            (a) The Board at any time, and from time to time, may amend the Plan or the terms of one or
more Offerings. However, except as provided in paragraph 13 relating to adjustments upon changes
in stock, no amendment shall be effective unless approved by the stockholders of the Company within
the time and to the extent stockholder approval is necessary for the Plan to satisfy the
requirements of Section 423 of the Code or other applicable laws or regulations. It is expressly
contemplated that the Board may amend the Plan or an Offering in any respect the Board deems
necessary or advisable to provide Eligible Employees with the maximum benefits provided or to be
provided under the provisions of the Code and the regulations promulgated thereunder relating to
Employee Stock Purchase Plans and/or to bring the Plan and/or Purchase Rights granted under an
Offering into compliance therewith.



            (b) The Board may, in its sole discretion, submit any amendment to the Plan or an Offering for
stockholder approval.



            (c) Purchase Rights and obligations under any Purchase Rights granted before amendment of the
Plan or Offering shall not be impaired by any amendment of the Plan, except with the consent of the
person to whom such Purchase Rights were granted, or except as necessary to comply with any laws or
governmental regulations, or except as necessary to ensure that the Plan and/or Purchase Rights
granted under an Offering comply with the requirements of Section 423 of the Code.



     15. Designation of Beneficiary.



            (a) A Participant may file a written designation of a beneficiary who is to receive any shares
and cash, if applicable, from the Participant’s account under the Plan in the event of such
Participant’s death subsequent to the end of an Offering but prior to delivery to the participant
of such shares and cash. In addition, a Participant may file a written designation of a
beneficiary who is to receive any cash from the Participant’s account under the Plan in the event
of such Participant’s death during an Offering.



            (b) Such designation of beneficiary may be changed by the Participant at any time by written
notice in the form prescribed by the Company. In the event of the death of a Participant and in
the absence of a beneficiary validly designated under the Plan who is living (or if an entity, is
otherwise in existence) at the time of such Participant’s death, the Company shall



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deliver such shares and/or cash to the executor or administrator of the estate of the
Participant, or if no such executor or administrator has been appointed (to the knowledge of the
Company), the Company, in its sole discretion, may deliver such shares and/or cash to the spouse or
to any one (1) or more dependents or relatives of the Participant, or if no spouse, dependent or
relative is known to the Company, then to such other person as the Company may determine.



     16. Termination or Suspension of the Plan.



            (a) The Board in its discretion, may suspend or terminate the Plan at any time. Unless sooner
terminated, the Plan shall terminate on the day before the tenth (10th) anniversary of
the date the Plan is adopted by the Board. The Plan shall automatically terminate if all the
shares subject to the Plan pursuant to subparagraph 4(a) are issued. No Purchase Rights may be
granted under the Plan while the Plan is suspended or after it is terminated.



            (b) Rights and obligations under any Purchase Rights granted while the Plan is in effect shall
not be impaired by suspension or termination of the Plan, except as expressly provided in the Plan
or with the consent of the person to whom such Purchase Rights were granted, or except as necessary
to comply with any laws or governmental regulation, or except as necessary to ensure that the Plan
and/or Purchase Rights granted under an Offering comply with the requirements of Section 423 of the
Code.



     17. Effective Date of Plan.



     The Plan shall become effective on the same day on which the Company’s registration statement
under the Securities Act with respect to the initial public offering of shares of the Company’s
Common Stock becomes effective (the “Effective Date”), but no Purchase Rights granted under the
Plan shall be exercised unless and until the Plan had been approved by the stockholders of the
Company within twelve (12) months before or after the date the Plan is adopted by the Board or the
Committee, which date may be prior to the Effective Date.



     18. Miscellaneous Provisions.



            (a) All questions concerning the construction, validity and interpretation of this Plan shall
be governed by the law of the State of Delaware, without regard to such state’s conflict of laws
rules.



            (b) The Plan and Offering do not constitute an employment contract. Nothing in the Plan or in
the Offering shall in any way alter the at will nature of a Participant’s employment or be deemed
to create in any way whatsoever any obligation on the part of any Participant to continue in the
employ of the Company or a Related Corporation, or on the part of the Company or a Related
Corporation to continue the employment of a Participant.




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