**Exhibit 10.5**

**ZHONE TECHNOLOGIES, INC.**

**2002 EMPLOYEE STOCK PURCHASE PLAN**

**(as amended, effective September 1, 2005)**

**1. Establishment of Plan.** Zhone Technologies, Inc., a Delaware Corporation (the “*Company*”), proposes to grant options for purchase of shares of the Company’s Common Stock (“*Shares*”) toeligible employees of the Company and its Participating Subsidiaries (as hereinafter defined) pursuant to this Employee Stock Purchase Plan (this “*Plan*”). For purposes of this Plan, “*Parent Corporation*” and“*Subsidiary*” shall have the same meanings as “parent corporation” and “subsidiary corporation” in Sections 424(e) and 424(f), respectively, of the Internal Revenue Code of 1986, as amended (the“*Code*”). “*Participating Subsidiaries*” are Parent Corporations or Subsidiaries that the Board of Directors of the Company (the “*Board*”) designates from time to time as corporations that shallparticipate in this Plan. The Company intends this Plan to qualify as an “employee stock purchase plan” under Section 423 of the Code (including any amendments to or replacements of such Section), and this Plan shall be so construed.Any term not expressly defined in this Plan but defined for purposes of Section 423 of the Code shall have the same definition herein. A total of 1,000,000 Shares (as adjusted to reflect the one-for-four reverse stock split effectiveNovember 13, 2003) is reserved for issuance under this Plan. In addition, on each January 1, the aggregate number of Shares reserved for issuance under the Plan shall be increased automatically by a number of Shares equal to 2.5% of thetotal number of outstanding Shares on the immediately preceding December 31; *provided* that the aggregate number of Shares issued over the term of this Plan shall not exceed 1,500,000 (as adjusted to reflect the one-for-four reverse stocksplit effective November 13, 2003). Such number shall be subject to adjustments effected in accordance with Section 15 of this Plan. 

**2. Purpose.** The purpose of this Plan is to provide eligible employees of the Company and Participating Subsidiaries with a convenient means of acquiring an equity interest in the Company through payroll deductions, toenhance such employees’ sense of participation in the affairs of the Company and Participating Subsidiaries, and to provide an incentive for continued employment. 

**3. Certain terms.**

(a) ”*Change in Capitalization*” shallmean any increase or reduction in the number of Shares, or any change (including, without limitation, in the case of a spin-off, dividend or other distribution in respect of Shares, a change in value) in the Shares or exchange of Shares for adifferent number or kind of shares or other securities of the Company or another corporation, by reason of a reclassification, recapitalization, merger, consolidation, reorganization, spin-off, split-up, issuance of warrants or rights or debentures,stock dividend, stock split or reverse stock split, cash dividend, property dividend, combination or exchange of shares, repurchase of shares, change in corporate structure or a substantially similar transaction. 

(b) ”*Change in Control*” shall mean the occurrence of any of the following: 

(1) An acquisition (other than directly from the Company) of any Voting Securities of the Company by any “person,” as such termis used for purposes of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended, including, without limitation, any individual, firm, corporation, partnership, limited liability company, joint venture, association, trust, orany group thereof (a “*Person*”), immediately after which such Person has ownership, within the meaning of Rule 13d-3 of the Securities Exchange Act of 1934, as amended (“*Beneficial Ownership*”), of fifty percent(50%) or more of the then outstanding Shares or the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of the Board (“*Voting Securities*”), *provided,however*, in determining whether a Change in Control has occurred pursuant to this Section (b)(1), Shares or Voting Securities which are acquired in a “*Non-Control Acquisition*” (as hereinafter defined) shall not constitute anacquisition which would cause a Change in Control. A “*Non-Control Acquisition*” shall mean an acquisition by (i) an employee benefit plan (or a trust forming a part thereof) maintained by (A) the Company or (B) anycorporation or other Person of which a majority of its voting power or its voting equity securities or 

 

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equity interest is owned, directly or indirectly, by the Company (for purposes of this definition, a “*Related Entity*”), (ii) theCompany or any Related Entity, or (iii) any Person in connection with a “Non-Control Transaction” (as hereinafter defined); 

(2) The individuals who, as of the date hereof, are members of the Board (the “*Incumbent Board*”), cease for any reason to constitute at least a majority of the members of the Board, or followinga Merger (as defined in paragraph (c)(i) below) which results in a Parent corporation, the board of directors of the ultimate Parent Corporation (as defined in paragraph (3)(i)(A) below); *provided, however,* that if the election, ornomination for election by the Company’s common stockholders, of any new director was approved by a vote of at least two-thirds of the Incumbent Board, such new director shall, for purposes of this Plan, be considered as a member of theIncumbent Board; *provided further, however,* that no individual shall be considered a member of the Incumbent Board if such individual initially assumed office as a result of an actual or threatened solicitation of proxies or consents by or onbehalf of a Person other than the Board (a “*Proxy Contest*”) including by reason of any agreement intended to avoid or settle a Proxy Contest; or 

(3) The consummation of: 

(i) A merger, consolidation or reorganization with or into the Company or in which securities of the Company are issued (a “*Merger*”), unless such Merger is a “Non-Control Transaction.”A “*Non-Control Transaction*” shall mean a Merger where: 

(A) the stockholders of the Company,immediately before such Merger own directly or indirectly immediately following such Merger at least fifty percent (50%) of the combined voting power of the outstanding voting securities of (x) the corporation resulting from such Merger(the “*Surviving Corporation*”) if fifty percent (50%) or more of the combined voting power of the then outstanding voting securities of the Surviving Corporation is not Beneficially Owned, directly or indirectly by anotherPerson (a “*Parent Corporation*”), or (y) if there are one or more Parent Corporations, the ultimate Parent Corporation; and 

(B) the individuals who were members of the Incumbent Board immediately prior to the execution of the agreement providing for such Merger constitute at least a majority of the members of the board of directors of(x) the Surviving Corporation, if there is no Parent Corporation, or (y) if there are one or more Parent Corporations, the ultimate Parent Corporation; and 

(C) no Person other than (w) the Company, (x) any Related Entity, (y) any employee benefit plan (or any trust forminga part thereof) that, immediately prior to such Merger was maintained by the Company or any Related Entity, or (z) any Person who, together with its Affiliates, immediately prior to such Merger, had Beneficial Ownership of fifty percent(50%) or more of the then outstanding Voting Securities or Shares, owns, together with its Affiliates, Beneficial Ownership of fifty percent (50%) or more of the combined voting power of the outstanding voting securities or common stock of(I) the Surviving Corporation if there is no Parent Corporation, or (II) if there are one or more Parent Corporations, the ultimate Parent Corporation. 

(ii) A complete liquidation or dissolution of the Company; or 

(iii) The sale or other disposition of all or substantially all of the assets of the Company to any Person (other than a transfer toa Related Entity or under conditions that would constitute a Non-Control Transaction with the disposition of the assets being regarded as a Merger for this purpose or the distribution to the Company’s stockholders of the stock of a RelatedEntity or any other assets). 

Notwithstanding the foregoing, a Change in Control shall not be deemed to occur solely becauseany Person (the “*Subject Person*”) acquired Beneficial Ownership of more than the permitted amount of the then outstanding Shares or Voting Securities as a result of the acquisition of Shares or Voting 

 

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Securities by the Company which, by reducing the number of Shares or Voting Securities then outstanding, increases the proportional number of sharesBeneficially Owned by the Subject Persons, provided that if a Change in Control would occur (but for the operation of this sentence) as a result of the acquisition of Shares or Voting Securities by the Company, and (1) before such shareacquisition by the Company the Subject Person becomes the Beneficial Owner of any new or additional Shares or Voting Securities in contemplation of such share acquisition by the Company or (2) after such share acquisition by the Company theSubject Person becomes the Beneficial Owner of any new or additional Shares or Voting Securities which in either case increases the percentage of the then outstanding Shares or Voting Securities Beneficially Owned by the Subject Person, then aChange in Control shall occur. 

(c) ”*Fair Market Value*” on any date means the closing price at theclose of the primary trading session of the Shares on such date on the principal national securities exchange on which such Shares are listed or admitted to trading, or, if such Shares are not so listed or admitted to trading, the closing price atthe close of the primary trading session on such date as quoted on the Nasdaq Stock Market or such other market in which such prices are regularly quoted, or, if there has been no such closing price with respect to Shares on such date, the FairMarket Value shall be the value established by the Compensation Committee of the Board in good faith. 

**4. Administration.** This Plan shall be administered by the Compensation Committee of the Board (the “*Committee*”). Subject to the provisions of this Plan and the limitations of Section 423 of the Code orany successor provision in the Code, all questions of interpretation or application of this Plan shall be determined by the Committee and its decisions shall be final and binding upon all participants. Members of the Committee shall receive nocompensation for their services in connection with the administration of this Plan, other than standard fees as established from time to time by the Board for services rendered by Board members serving on Board committees. All expenses incurred inconnection with the administration of this Plan shall be paid by the Company. 

**5. Eligibility.** Any employee of the Companyor the Participating Subsidiaries is eligible to participate in an Offering Period (as hereinafter defined) under this Plan except the following: 

(a) employees who are not employed by the Company or a Participating Subsidiary (10) days before the beginning of such Offering Period; 

(b) employees who are customarily employed for twenty (20) hours or less per week; 

(c) employees who are customarily employed for five (5) months or less in a calendar year; 

(d) employees who, together with any other person whose stock would be attributed to such employee pursuant to Section 424(d) ofthe Code, own stock or hold options to purchase stock possessing five percent (5%) or more of the total combined voting power or value of all classes of stock of the Company or any of its Subsidiaries or affiliates or who, as a result of beinggranted an option under this Plan with respect to such Offering Period, would own stock or hold options to purchase stock possessing five percent (5%) or more of the total combined voting power or value of all classes of stock of the Company orany of its Participating Subsidiaries; and 

(e) individuals who provide services to the Company or any of itsParticipating Subsidiaries as independent contractors who are reclassified as common law employees for any reason *except for* federal income and employment tax purposes. 

**6. Offering Dates.** The offering periods of this Plan (each, an “*Offering Period*”), with the exception of the FirstOffering Period (the “*First Offering Period*”), shall be of twenty-four (24) months duration commencing on March 1 and September 1 of each year and ending on February 28 and August 31 of each year. EachOffering Period, other than the First Offering Period, shall consist of four (4) six-month purchase periods (individually, a “*Purchase Period*”) during which payroll deductions of the participants are accumulated under thisPlan. The First Offering Period shall be of twenty-seven (27) months duration commencing on June 1, 2002 and ending on August 31, 2004, and shall consist of one (1) nine-month 

 

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Purchase Period and three (3) six-month Purchase Periods. An additional Offering Period shall commence on January 1, 2004 and end onAugust 31, 2005, and shall consist of one (1) Purchase Period commencing on January 1, 2004 and ending on February 29, 2004 and three (3) six-month Purchase Periods thereafter. The first business day of each Offering Periodis referred to as the “*Offering Date*.” The last business day of each Purchase Period is referred to as the “*Purchase Date*.” The Committee shall have the power to change the duration of Offering Periods with respectto offerings without stockholder approval if such change is announced at least fifteen (15) days prior to the scheduled beginning of the first Offering Period to be affected; *provided, however*, that no Offering Period may be longer thantwenty-seven (27) months. Effective September 1, 2005, the following provisions shall apply.****Each Offering Period shall be three (3) months duration commencing on September 1, December 1, March 1 andJune 1 of each year and ending on November 30, February 28 (or 29 in the case of a leap year), May 31 and August 31 of each year. The last business day of each Offering Period (commencing on or after September 1,2005) shall be referred to as the “Purchase Date.” 

**7. Participation in this Plan.** Eligible employees may becomeparticipants in an Offering Period under this Plan on the first Offering Date after satisfying the eligibility requirements by delivering a subscription agreement to the Company’s stock administration department (the “*StockAdministration Department*”) not later than one (1) day before such Offering Date. An eligible employee who does not deliver a subscription agreement to the Stock Administration Department by such date after becoming eligible toparticipate in such Offering Period shall not participate in that Offering Period or any subsequent Offering Period unless such employee enrolls in this Plan by filing a subscription agreement with the Stock Administration Department not later thanone (1) day preceding a subsequent Offering Date. Once an employee becomes a participant in an Offering Period, such employee will automatically participate in the Offering Period commencing immediately following the last day of the priorOffering Period unless the employee withdraws or is deemed to withdraw from this Plan or, with respect to Offering Periods commencing prior to September 1, 2005, terminates further participation in the Offering Period as set forth inSection 12 below. Such participant is not required to file any additional subscription agreement in order to continue participation in this Plan. 

**8. Grant of Option on Enrollment.** Enrollment by an eligible employee in this Plan with respect to an Offering Period will constitute the grant (as of the Offering Date) by the Company to such employeeof an option to purchase on the Purchase Date up to that number of Shares of the Company determined by dividing (a) the amount accumulated in such employee’s payroll deduction account during such Purchase Period by (b) the lower of(i) eighty-five percent (85%) of the Fair Market Value of a Share on the Offering Date (but in no event less than the par value of a Share), or (ii) eighty-five percent (85%) of the Fair Market Value of a Share on the PurchaseDate (but in no event less than the par value of a Share), *****provided, however*****, that the number of Shares subject to any option granted pursuant to this Plan shall not exceed the maximum number of Shares set by the Committeepursuant to Section 11(b) below with respect to the applicable Purchase Date. Effective for Offering Periods commencing on or after September 1, 2005, enrollment by an eligible employee in this Plan will constitute the grant (as of theOffering Date) by the Company to such employee of an option to purchase on the Purchase Date up to that number of Shares of the Company determined by dividing the (a) amount accumulated in such employee’s payroll deduction account duringsuch Offering Period by (b) the lower of (i) eighty-five percent (85%) of the Fair Market of a Share on the Offering Date (but in no event less than par value of a Share), or (ii) eighty-five percent (85%) of the Fair Marketof a Share on the Purchase Date (but in no event less than par value of a Share), *****provided, however*****, that the number of Shares subject to any option granted pursuant to this Plan shall not exceed the maximum number of Shares setby the Committee pursuant to Section 11(b) below with respect to the applicable Purchase Date.****

**9. PurchasePrice.** The purchase price at which a Share will be sold in any Offering Period shall be eighty-five percent (85%) of the lesser of: 

(a) The Fair Market Value on the Offering Date; or 

(b) The Fair Market Value on thePurchase Date. 

 

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**10. Payment Of Purchase Price; Changes In Payroll Deductions; Issuance Of Shares.**

(a) The purchase price of the Shares is accumulated by regular payroll deductions made during each Offering Period. The deductionsare made as a percentage of the participant’s compensation in one percent (1%) increments not less than two percent (2%), nor greater than ten percent (10%) or such lower limit set by the Committee. Compensation shall mean all W-2cash compensation, including, but not limited to, base salary, wages, commissions, overtime, shift premiums and bonuses, plus draws against commissions, *provided, however*, that for purposes of determining a participant’s compensation,any election by such participant to reduce his or her regular cash remuneration under Sections 125 or 401(k) of the Code shall be treated as if the participant did not make such election. Payroll deductions shall commence on the first payday of theOffering Period and shall continue to the end of the Offering Period unless sooner altered or terminated as provided in this Plan. 

(b) A participant may increase or decrease the rate of payroll deductions during an Offering Period by filing with the Stock Administration Department a new authorization for payroll deductions, in which case the new rate shall becomeeffective for the next payroll period commencing more than fifteen (15) days after the Stock Administration Department’s receipt of the authorization and shall continue for the remainder of the Offering Period unless changed as describedherein. Such change in the rate of payroll deductions may be made at any time during an Offering Period, but not more than one (1) change may be made effective during any Purchase Period. Effective for any Offering Period commencing on or afterSeptember 1, 2005, a participant may not increase or decrease the rate of payroll deductions during an Offering Period. A participant may, however, increase or decrease the rate of payroll deductions for any subsequent Offering Period by filingwith the Stock Administration Department a new authorization for payroll deductions not later than one (1) day before the beginning of such subsequent Offering Period. 

(c) A participant may reduce his or her payroll deduction percentage to zero during an Offering Period by filing with the StockAdministration Department a request for cessation of payroll deductions. Such reduction shall be effective beginning with the next payroll period commencing more than fifteen (15) days after the Stock Administration Department’s receipt ofthe request and no further payroll deductions will be made for the duration of the Offering Period. Payroll deductions credited to the participant’s account prior to the effective date of the request shall be used to purchase Shares inaccordance with Section (e) below. A participant may not resume making payroll deductions during the Offering Period in which he or she reduced his or her payroll deductions to zero. Effective for any Offering Period commencing on or afterSeptember 1, 2005, a participant may not reduce his or her payroll deduction percentage to zero during an Offering Period. 

(d) All payroll deductions made for a participant are credited to his or her account under this Plan and are deposited with the general funds of the Company. No interest accrues on the payroll deductions. All payroll deductionsreceived or held by the Company may be used by the Company for any corporate purpose, and the Company shall not be obligated to segregate such payroll deductions. 

(e) On each Purchase Date, so long as this Plan remains in effect, and (with respect to Offering Periods commencing prior toSeptember 1, 2005) provided that the participant has not submitted a signed and completed withdrawal form before that date which notifies the Company that the participant wishes to withdraw from that Offering Period under this Plan and have allpayroll deductions accumulated in the account maintained on behalf of the participant as of that date returned to the participant, the Company shall apply the funds then in the participant’s account to the purchase of whole Shares reservedunder the option granted to such participant with respect to the Offering Period to the extent that such option is exercisable on the Purchase Date. The purchase price per Share shall be as specified in Section 9 of this Plan. Any cashremaining in a participant’s account after such purchase of Shares shall be refunded to such participant in cash, without interest; provided, however that any amount remaining in such participant’s account on a Purchase Date which is lessthan the amount necessary to purchase a full Share shall be carried forward, without interest, into the next Purchase Period or Offering Period, as the case may be. In the event that this Plan has been oversubscribed, all funds not used to purchaseShares on the Purchase Date shall be returned to the participant, without interest. No Shares shall be purchased on a Purchase Date on behalf of any employee whose participation in this Plan has terminated prior to such Purchase Date. 

 

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(f) As promptly as practicable after the Purchase Date, the Company shall issueShares for the participant’s benefit representing the Shares purchased upon exercise of his or her option. 

(g) During a participant’s lifetime, his or her option to purchase Shares hereunder is exercisable only by him or her. The participant will have no interest or voting right in Shares covered by his or her option until such optionhas been exercised. 

**11. Limitations on Shares to be Purchased.**

(a) No participant shall be entitled to purchase stock under this Plan at a rate which, when aggregated with his or her rights topurchase stock under all other employee stock purchase plans of the Company or any Subsidiary, exceeds $25,000 in fair market value, determined as of the Offering Date (or such other limit as may be imposed by the Code) for each calendar year inwhich the employee participates in this Plan. The Company shall automatically suspend the payroll deductions of any participant as necessary to enforce such limit provided that when the Company automatically resumes such payroll deductions, theCompany must apply the rate of payroll deduction in effect immediately prior to such suspension. 

(b) No participantshall be entitled to purchase more than the Maximum Share Amount (as defined below) on any single Purchase Date. Not less than ten (10) days prior to the commencement of any Purchase Period, the Committee shall determine, in its solediscretion, the maximum number of Shares which may be purchased by any employee at any single Purchase Date (hereinafter the “*Maximum Share Amount*”). Effective for Offering Periods commencing on or after September 1, 2005, theMaximum Share Amount shall be set not less then ten (10) days prior to the commencement of any Offering Period. If a new Maximum Share Amount is set, then all participants must be notified of such Maximum Share Amount prior to the commencementof the next Offering Period or Purchase Period. The Maximum Share Amount shall continue to apply with respect to all succeeding Purchase Dates and Offering Periods unless revised by the Committee as set forth above. 

(c) If the number of Shares to be purchased on a Purchase Date by all employees participating in this Plan exceeds the number ofShares then available for issuance under this Plan, then the Company will make a pro rata allocation of the remaining Shares in as uniform a manner as shall be reasonably practicable and as the Committee shall determine to be equitable. In suchevent, the Company shall give written notice of such reduction of the number of Shares to be purchased under a participant’s option to each participant affected. 

(d) Any payroll deductions accumulated in a participant’s account which are not used to purchase stock due to the limitationsin this Section 11 shall be returned to the participant as soon as practicable after the end of the applicable Offering Period or Purchase Period, without interest. 

**12. Withdrawal.**

(a) Each participant may withdraw from an Offering Periodunder this Plan by signing and delivering to the Stock Administration Department a written notice to that effect on a form provided for such purpose. Such withdrawal may be elected at any time at least fifteen (15) days prior to the end of anOffering Period. Upon withdrawal from this Plan, the accumulated payroll deductions shall be returned to the withdrawn participant, without interest, and his or her interest in this Plan shall terminate. In the event a participant voluntarily electsto withdraw from this Plan, he or she may not resume his or her participation in this Plan during the same Offering Period, but he or she may participate in any Offering Period under this Plan which commences on a date subsequent to such withdrawalby filing a new authorization for payroll deductions in the same manner as set forth in Section 7 above for initial participation in this Plan. This Section 12(a) shall only apply to Offering Periods commencing prior to September 1,2005. 

 

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(b) Effective for any Offering Period commencing on or after September 1, 2005,a participant may not withdraw from a current Offering Period under this Plan. However, a participant may, by signing and delivering to the Stock Administration Department a written withdrawal notice one (1) day in advance of a subsequentOffering Period, decline to participate in such subsequent Offering Period. After the Stock Administration Department’s timely receipt of such request no further payroll deductions will be made with respect to such participant during subsequentOffering Periods until such time as the participant affirmatively elects to participate in the Plan by filing a new authorization for payroll deductions in the same manner as set forth in Section 7 above for initial participation in the Plan.

(c) If the Fair Market Value on the first day of the current Offering Period in which a participant is enrolled ishigher than the Fair Market Value on the first day of any subsequent Offering Period, the Company will automatically enroll such participant in the subsequent Offering Period. Any funds accumulated in a participant’s account prior to the firstday of such subsequent Offering Period will be applied to the purchase of Shares on the Purchase Date immediately prior to the first day of such subsequent Offering Period, if any. 

**13. Termination of Employment.** Termination of a participant’s employment for any reason, including retirement, death or the failureof a participant to remain an eligible employee of the Company or of a Participating Subsidiary, immediately terminates his or her participation in this Plan. In such event, the payroll deductions credited to the participant’s account will bereturned to him or her or, in the case of his or her death, to his or her legal representative, without interest. For purposes of this Section 13, an employee will not be deemed to have terminated employment or failed to remain in thecontinuous employ of the Company or of a Participating Subsidiary in the case of sick leave, military leave, or any other leave of absence approved by the Board; *provided* that such leave is for a period of not more than ninety (90) daysor reemployment upon the expiration of such leave is guaranteed by contract or statute. 

**14. Return of PayrollDeductions.** In the event a participant’s interest in this Plan is terminated by withdrawal, termination of employment or otherwise, or in the event this Plan is terminated by the Board, the Company shall deliver to the participant allpayroll deductions credited to such participant’s account. No interest shall accrue on the payroll deductions of a participant in this Plan. 

**15. Change in Capitalization and Change in Control.**

(a) Subject to any required action by thestockholders of the Company, in the event of a Change in Capitalization, the number of Shares covered by each option under this Plan which has not yet been exercised and the number of Shares which have been authorized for issuance under this Planbut have not yet been placed under option (collectively, the “*Reserves*”), as well as the price per Share covered by each option under this Plan which has not yet been exercised, shall be proportionately adjusted for any increase ordecrease in the number of issued and outstanding Shares resulting from a stock split or the payment of a stock dividend (but only on the Common Stock) or any other increase or decrease in the number of issued and outstanding Shares effected withoutreceipt of any consideration by the Company; *provided, however*, that conversion of any convertible securities of the Company shall not be deemed to have been “effected without receipt of consideration.” Such adjustment shall be madeby the Committee, whose determination shall be final, binding and conclusive. Except as expressly provided herein, no issue by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect,and no adjustment by reason thereof shall be made with respect to, the number or price of Shares subject to an option. 

(b)In the event of a Change in Control due to the dissolution or liquidation of the Company, all rights to purchase Shares under the Plan shall terminate and all amounts credited to employee accounts which have not been applied to the purchase ofShares shall be refunded; *provided, however*, that the Committee may, in the exercise of its sole 

 

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discretion in such instances, declare that this Plan shall terminate as of a date fixed by the Committee and give each participant the right to purchaseShares under this Plan prior to such termination. In the event of a Change in Control for any other reason and after which the Company is not the Surviving Corporation, the Committee may determine in its sole discretion that: (1) a dateestablished by the Board on or up to 10 days before the date of consummation of such Change in Control shall be treated as the last day of any Offering Periods then in progress and shall also be a Purchase Date, and there shall be no furtherOffering Periods under this Plan; (2) all rights to purchase Shares under the Plan shall terminate and all amounts credited to employee accounts which have not been applied to the purchase of Shares shall be refunded; or (3) the Plan willcontinue with regard to Offering Periods that commenced prior to the closing of the proposed transaction and shares of the Surviving Corporation will be purchased based on the Fair Market Value of the Surviving Corporation’s stock on eachPurchase Date. 

(c) The Committee may, if it so determines in the exercise of its sole discretion, in the event of aChange in Capitalization or a Change in Control, also make provision for adjusting the Reserves, as well as the price per Share covered by each outstanding option. 

**16. Nonassignability.** Neither payroll deductions credited to a participant’s account nor any rights with regard to the exercise of an option or to receive Shares under this Plan may be assigned,transferred, pledged or otherwise disposed of in any way (other than by will, the laws of descent and distribution or as provided in Section 23 below) by the participant. Any such attempt at assignment, transfer, pledge or other dispositionshall be void and without effect. 

**17. Reports.** Individual accounts will be maintained for each participant in this Plan.Each participant shall receive promptly after the end of each Purchase Period a report of his or her account setting forth the total payroll deductions accumulated, the number of Shares purchased, the per share price thereof and the remaining cashbalance, if any, carried forward to the next Purchase Period or Offering Period, as the case may be. 

**18. Notice ofDisposition.** Each participant shall notify the Company in writing if the participant disposes of any of the Shares purchased in any Offering Period pursuant to this Plan if such disposition occurs within two (2) years from the OfferingDate or within one (1) year from the Purchase Date on which such Shares were purchased (the “*Notice Period*”). The Company may, at any time during the Notice Period, place a legend or legends on any certificate representingShares acquired pursuant to this Plan requesting the Company’s transfer agent to notify the Company of any transfer of the Shares. The obligation of the participant to provide such notice shall continue notwithstanding the placement of any suchlegend on the certificates. 

**19. No Rights to Continued Employment.** Neither this Plan nor the grant of any optionhereunder shall confer any right on any employee to remain in the employ of the Company or any Participating Subsidiary, or restrict the right of the Company or any Participating Subsidiary to terminate such employee’s employment. 

**20. Equal Rights And Privileges.** All eligible employees shall have equal rights and privileges with respect to this Plan so that thisPlan qualifies as an “employee stock purchase plan” within the meaning of Section 423 or any successor provision of the Code and the related regulations. Any provision of this Plan which is inconsistent with Section 423 or anysuccessor provision of the Code shall, without further act or amendment by the Company, the Committee or the Board, be reformed to comply with the requirements of Section 423. This Section 20 shall take precedence over all other provisionsin this Plan. 

**21. Notices.** All notices or other communications by a participant to the Company under or in connectionwith this Plan shall be deemed to have been duly given when received in the form specified by the Company at the location, or by the person, designated by the Company for the receipt thereof. 

**22. Term; Stockholder Approval.** After this Plan is adopted by the Board, this Plan will become effective on the First Offering Date (asdefined above). This Plan shall be approved by the stockholders of 

 

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the Company, in any manner permitted by applicable corporate law, within twelve (12) months before or after the date this Plan is adopted by the Board.No purchase of Shares pursuant to this Plan shall occur prior to such stockholder approval. This Plan shall continue until the earlier to occur of (a) termination of this Plan by the Board (which termination may be effected by the Board at anytime), (b) issuance of all of the Shares reserved for issuance under this Plan, or (c) ten (10) years from the adoption of this Plan by the Board. 

**23. Designation of Beneficiary.**

(a) A participant may file a writtendesignation of a beneficiary who is to receive any Shares and cash, if any, from the participant’s account under this Plan in the event of such participant’s death subsequent to the end of an Purchase Period but prior to delivery to him ofsuch 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 this Plan in the event of such participant’s death prior to a Purchase Date.

(b) Such designation of beneficiary may be changed by the participant at any time by written notice. In the event ofthe death of a participant and in the absence of a beneficiary validly designated under this Plan who is living at the time of such participant’s death, the Company shall deliver such Shares or cash to the executor or administrator of theestate of the participant, or if no such executor or administrator has been appointed (to the knowledge of the Company), the Company, in its discretion, may deliver such Shares or cash to the spouse or to any one or more dependents or relatives ofthe participant, or if no spouse, dependent or relative is known to the Company, then to such other person as the Company may designate. 

**24. Conditions Upon Issuance of Shares; Limitation on Sale of Shares.** Shares shall not be issued with respect to an option unless the exercise of such option and the issuance and delivery of such Shares pursuant theretoshall comply with all applicable provisions of law, domestic or foreign, including, without limitation, the Securities Act, the Securities Exchange Act of 1934, as amended, the rules and regulations promulgated thereunder, and the requirements ofany stock exchange or automated quotation system upon which the Shares may then be listed, and shall be further subject to the approval of counsel for the Company with respect to such compliance. 

**25. Applicable Law.** The Plan shall be governed by the substantive laws (excluding the conflict of laws rules) of the State of Delaware.

**26. Amendment or Termination of this Plan.** The Board may at any time amend, terminate or extend the term of this Plan,except that, any such termination cannot affect options previously granted under this Plan, nor may any amendment make any change in an option previously granted which would adversely affect the right of any participant; *provided however* thatno action taken under Section 15 shall be considered to adversely affect the right of any participant within the meaning of this sentence, nor may any amendment be made without approval of the stockholders of the Company obtained in accordancewith Section 22 above within twelve (12) months of the adoption of such amendment (or earlier if required by Section 22) if such amendment would: 

(a) increase the number of Shares that may be issued under this Plan; or 

(b) change thedesignation of the employees (or class of employees) eligible for participation in this Plan. 

Notwithstanding the foregoing, the Board may make suchamendments to the Plan as the Board determines to be advisable, if the continuation of the Plan or any Offering Period would result in financial accounting treatment for the Plan that is different from the financial accounting treatment in effect onthe date this Plan is adopted by the Board. 

 

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