exv10w5



 





Exhibit
10.5


Genitope Corporation




2003 Employee Stock Purchase Plan




Adopted August 7, 2003

Approved by stockholders August 29, 2003




1. Purpose.




     (a) The purpose of the Plan is to provide a means by which Employees of the Company and
certain designated Related Corporations may be given an opportunity to purchase shares of the
Common Stock of the Company.



     (b) The Company, by means of the Plan, seeks to retain the services of such 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 and its Related Corporations.



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



2. Definitions.




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



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



     (c) “Committee” means a committee appointed by the Board in accordance with Section 3(c) of
the Plan.



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



     (e) “Company” means Genitope Corporation, a Delaware corporation.



     (f) “Contributions” means the payroll deductions and other additional payments that a
Participant contributes to fund the exercise of a Purchase Right. A Participant may make payments
not through payroll deductions only 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.



          (g) “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:



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



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          (ii) a sale or other disposition of at least ninety percent (90%) of the outstanding
securities of the Company;



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



          (iv) 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.



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



     (i) “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.



     (j) “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 Related Corporation. 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 Related Corporation.



     (k) “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.



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



     (m) “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 Trading Day prior to the relevant determination date, as
reported in The Wall Street Journal or such other source as the Board deems reliable.



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



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



     (p) “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.



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



     (r) “Plan” means this Genitope Corporation 2003 Employee Stock Purchase Plan.



     (s) “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.



     (t) “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.



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



     (v) “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.



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



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



3. Administration.




     (a) The Board shall administer the Plan unless and until the Board delegates administration to
a Committee, as provided in Section 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 (or the Committee) 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 to purchase shares of Common Stock 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 Related Corporations of the Company shall be
eligible to participate in the Plan.



          (iii) To construe and interpret the Plan and Purchase Rights, and to establish, amend and
revoke rules and regulations for the administration of the Plan. 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.



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          (iv) To amend the Plan as provided in Section 15.



          (v) Generally, to exercise such powers and to perform such acts as it deems necessary or
expedient to promote the best interests of the Company and its Related Corporations 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
one (1) or more members of the Board. 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, 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) All determinations, interpretations and constructions made by the Board in good faith
shall not be subject to review by any person and shall be final, binding and conclusive on all
persons.



4. Shares of Common Stock Subject to the Plan.




     Subject to the provisions of Section 14 relating to adjustments upon changes in securities,
the shares of Common Stock that may be sold pursuant to Purchase Rights shall not exceed in the
aggregate two hundred sixty-six thousand (266,000) shares of Common Stock, plus an annual increase
to be added on the first day of the fiscal year of the Company for a period of ten (10) years,
commencing on the first day of the fiscal year that begins on January 1, 2004 and ending on (and
including) the first day of the fiscal year that begins on January 1, 2023 (each such day, a
“Calculation Date”), equal to the lesser of (i) one and one-half percent (1.5%) of the shares of
Common Stock outstanding on each such Calculation Date (rounded down to the nearest whole share);
or (ii) one hundred sixty-six thousand (166,000) shares of Common Stock. Notwithstanding the
foregoing, the Board may act, prior to the first day of any fiscal year of the Company, to increase
the share reserve by such number of shares of Common Stock as the Board shall determine, which
number shall be less than each of (i) and (ii). If any Purchase Right granted under the Plan shall
for any reason terminate without having been exercised, the shares of Common Stock not purchased
under such Purchase Right shall again become available for issuance under the Plan.



5. Grant of Purchase Rights; Offering.




     (a) The Board may from time to time grant or provide for the grant of Purchase Rights to
purchase shares of Common Stock under the Plan to Eligible Employees in an Offering (consisting of
one or more Purchase Periods) on an Offering Date or Offering Dates selected by the Board. Each
Offering shall be in such form and shall contain such terms and conditions as the Board shall deem
appropriate, which shall comply with the requirement of Section 423(b)(5) of the Code that all
Employees granted Purchase Rights shall have the same rights and privileges. The terms and
conditions of an Offering shall be incorporated by reference into the



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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 Sections 6 through 9,
inclusive.



     (b) If a Participant has more than one Purchase Right outstanding under the Plan, unless he or
she otherwise indicates in agreements or notices delivered hereunder: (i) each agreement or notice
delivered by that Participant shall be deemed to apply to all of his or her Purchase Rights under
the Plan, and (ii) a Purchase Right with a lower exercise price (or an earlier-granted Purchase
Right, if different Purchase Rights have identical exercise prices) shall be exercised to the
fullest possible extent before a Purchase Right with a higher exercise price (or a later-granted
Purchase Right if different Purchase Rights have identical exercise prices) shall be exercised.



6. Eligibility.




     (a) Purchase Rights may be granted only to Employees of the Company or, as the Board may
designate as provided in Section 3(b), to Employees of a Related Corporation. Except as provided
in Section 6(b), an Employee 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 the Related
Corporation, as the case may be, for such continuous period preceding such Offering Date as the
Board may require, but in no event shall the required period of continuous employment be greater
than two (2) years. In addition, the Board may provide that no Employee 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 the Related Corporation is more than twenty (20) hours per week
and/or more than five (5) months per calendar year.



     (b) The Board may provide that each person who, during the course of an Offering, first
becomes an Eligible Employee shall, on a date or dates specified in the Offering which coincides
with the day on which such person becomes an Eligible Employee or 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 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 shall not receive any Purchase
Right under that Offering.



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     (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 Section 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 shall be treated as
stock owned by such Employee.



     (d) As specified by Section 423(b)(8) of the Code, an Eligible Employee may be granted
Purchase Rights under the Plan only if such Purchase Rights, together with any other rights granted
under all Employee Stock Purchase Plans of the Company and any Related Corporations, do not permit
such Eligible Employee’s rights to purchase stock of the Company 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 rights are granted, and which, with respect to the Plan, shall
be determined as of their respective Offering Dates) for each calendar year in which such rights
are outstanding at any time.



     (e) Officers of the Company and any designated Related Corporation, if they are otherwise
Eligible Employees, shall be eligible to participate in Offerings under the Plan. Notwithstanding
the foregoing, the Board may provide in an Offering that 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. Purchase 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 that number of shares of Common Stock
purchasable either with a percentage or with a maximum dollar amount, as designated by the Board,
but in either case not exceeding fifteen percent (15%), of such Employee’s Earnings (as defined by
the Board in each Offering) during the period that begins on the Offering Date (or such later date
as the Board 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.



     (b) The Board shall establish one (1) or more Purchase Dates during an Offering as of which
Purchase Rights granted pursuant to that Offering shall be exercised and purchases of shares of
Common Stock shall be carried out in accordance with such Offering.



     (c) In connection with each Offering made under the Plan, the Board may specify a maximum
number of shares of Common Stock that may be purchased by any Participant on any Purchase Date
during such Offering. In connection with each Offering made under the Plan, the Board may specify
a maximum aggregate number of shares of Common Stock that may be purchased by all Participants
pursuant to such Offering. In addition, in connection with each Offering that contains more than
one Purchase Date, the Board may specify a maximum aggregate number of shares of Common Stock that
may be purchased by all Participants on any Purchase Date under the Offering. If the aggregate
purchase of shares of Common Stock issuable upon exercise of Purchase Rights granted under the
Offering would exceed any such maximum aggregate number, then, in the absence of any Board action
otherwise, a pro rata



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allocation of the shares of Common Stock available shall be made in as nearly a uniform manner
as shall be practicable and equitable.



     (d) The purchase price of shares of Common Stock acquired pursuant to Purchase Rights shall be
not less than the lesser of:



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



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



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 (as defined in each Offering) during the Offering (not to exceed the maximum percentage
specified by the Board). Each Participant’s Contributions shall remain the property of the
Participant at all times prior to the purchase of Common Stock, but such Contributions may be
commingled with the assets of the Company and used for general corporate purposes except where
applicable law requires that Contributions be deposited with an independent third party. To the
extent provided in the Offering, a Participant may begin making 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 each 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 Contributions have been used to acquire shares of Common Stock for the
Participant) under the Offering, and such Participant’s Purchase Right 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) Purchase 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 Contributions have been used



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to acquire shares of Common Stock for the terminated or otherwise ineligible Employee) under
the Offering.



     (d) Purchase Rights shall not be transferable by a Participant otherwise than by will, the
laws of descent and distribution, or a beneficiary designation as provided in Section 13. During a
Participant’s lifetime, Purchase Rights 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.




     (a) On each Purchase Date during an Offering, each Participant’s accumulated Contributions
shall be applied to the purchase of shares of Common Stock up to the maximum number of shares of
Common Stock 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 unless specifically provided for in the Offering.



     (b) If any amount of accumulated Contributions remains in a Participant’s account after the
purchase of shares of Common Stock and such remaining amount is less than the amount required to
purchase one share of Common Stock on the final Purchase Date of an Offering, then such remaining
amount shall be held in such Participant’s account for the purchase of shares of Common Stock under
the next Offering under the Plan, unless such Participant withdraws from such next Offering, as
provided in Section 8(b), or is not eligible to participate in such Offering, as provided in
Section 6, in which case such amount shall be distributed to such Participant after the final
Purchase Date, without interest. If the amount of Contributions remaining in a Participant’s
account after the purchase of shares of Common Stock is at least equal to the amount required to
purchase one (1) whole share of Common Stock on the final Purchase Date of the Offering, then such
remaining amount shall be distributed in full to such Participant at the end of the Offering.



     (c) No Purchase Rights may be exercised to any extent unless the shares of Common Stock to be
issued upon such exercise under the Plan are covered by an effective registration statement
pursuant to the Securities Act and the Plan is in material compliance with all laws applicable to
the Plan. If on a Purchase Date during any Offering hereunder the shares of Common Stock are not
so registered or the Plan is not in such compliance, no Purchase Rights or any Offering shall be
exercised on such Purchase Date, and the Purchase Date shall be delayed until the shares of Common
Stock are subject to such an effective registration statement and the Plan is in 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 under any Offering hereunder, as delayed to the maximum extent permissible, the
shares of Common Stock are not registered and the Plan is not in such compliance, no Purchase
Rights or any Offering shall be exercised and all Contributions accumulated during the Offering
(reduced to the extent, if any, such Contributions have been used to acquire shares of Common
Stock) shall be distributed to the Participants.



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10. Covenants of the Company.




     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 Common Stock upon exercise of the Purchase Rights. If, after commercially
reasonable efforts, the Company is unable to obtain from any such regulatory commission or agency
the authority that counsel for the Company deems necessary for the lawful issuance and sale of
shares of Common Stock under the Plan, the Company shall be relieved from any liability for failure
to issue and sell shares of Common Stock upon exercise of such Purchase Rights unless and until
such authority is obtained.



11. Use of Proceeds from Shares of Common Stock.




     Proceeds from the sale of shares of Common Stock pursuant to Purchase Rights 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, shares of Common Stock subject to Purchase Rights unless and until the
Participant’s shares of Common Stock acquired upon exercise of Purchase Rights are recorded in the
books of the Company (or its transfer agent).



13. Designation of Beneficiary.




     (a) A Participant may file a written designation of a beneficiary who is to receive any shares
of Common Stock and/or cash, if any, 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 of Common Stock or 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. Any such designation shall be on
a form provided by or otherwise acceptable to the Company.



     (b) The Participant may change such designation of beneficiary at any time by written notice
to 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 at the time of such Participant’s death, the
Company shall deliver such shares of Common Stock 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 of Common
Stock and/or cash to the spouse or to any one 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 designate.



14. Adjustments upon Changes in Securities; Corporate Transactions.




     (a) If any change is made in the shares of Common Stock, subject to the Plan, or subject to
any Purchase Right, without the receipt of consideration by the Company (through merger,
consolidation, reorganization, recapitalization, reincorporation, stock dividend, dividend



9.









 







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 shall be appropriately adjusted in the type(s), class(es)
and maximum number of shares of Common Stock subject to the Plan pursuant to Section 4(a), and the
outstanding Purchase Rights shall be appropriately adjusted in the type(s), class(es), number of
shares and purchase limits of such outstanding Purchase Rights. The Board shall make such
adjustments, and its determination 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 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 ten (10) 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.



15. Amendment of the Plan.




     (a) The Board at any time, and from time to time, may amend the Plan. However, except as
provided in Section 14 relating to adjustments upon changes in securities and except as to
amendments solely to benefit the administration of the Plan, to take account of a change in
legislation or to obtain or maintain favorable tax, exchange control or regulatory treatment for
Participants or the Company or any Related Corporation, no amendment shall be effective unless
approved by the stockholders of the Company 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.



     (b) It is expressly contemplated that the Board may amend the Plan in any respect the Board
deems necessary or advisable to provide 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 or to bring the Plan and/or Purchase Rights into compliance
therewith.



     (c) The rights and obligations under any Purchase Rights granted before amendment of the Plan
shall not be impaired by any amendment of the Plan except: (i) with the consent of the person to
whom such Purchase Rights were granted, or (ii) as necessary to comply with any laws or
governmental regulations (including, without limitation, the provisions of the Code and the
regulations promulgated thereunder relating to Employee Stock Purchase Plans).



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 at the time that all of the shares of Common Stock



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reserved for issuance under the Plan, as increased and/or adjusted from time to time, have
been issued under the terms of the Plan. No Purchase Rights may be granted under the Plan while
the Plan is suspended or after it is terminated.



     (b) Any benefits, privileges, entitlements and obligations under any Purchase Rights while the
Plan is in effect shall not be impaired by suspension or termination of the Plan except (i) as
expressly provided in the Plan or with the consent of the person to whom such Purchase Rights were
granted, (ii) as necessary to comply with any laws, regulations, or listing requirements, or (iii)
as necessary to ensure that the Plan and/or Purchase Rights comply with the requirements of Section
423 of the Code.



17. Effective Date of Plan.




     The Plan shall become effective as determined by the Board, but no Purchase Rights shall be
exercised unless and until the Plan has been approved by the stockholders of the Company within
twelve (12) months before or after the date the Plan is adopted by the Board.



18. Miscellaneous Provisions.




     (a) 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.



     (b) The provisions of the Plan shall be governed by the laws of the State of Delaware without
resort to that state’s conflicts of laws rules.




11.










 





Genitope Corporation




2003 Employee Stock Purchase Plan



Offering




Adopted by the Board of Directors: August 7, 2003

Amended and Restated: February 1, 2007




     In this document, capitalized terms not otherwise defined shall have the same definitions of
such terms as in the Genitope Corporation 2003 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 “New Offering”)
shall begin on February 16, 2007 and shall end on February 15, 2009,
unless terminated earlier as provided below. The New Offering shall
consist of four (4) Purchase Periods, with the first Purchase Period
ending on August 15 2007, the second Purchase Period ending on
February 15, 2008, the third Purchase Period ending on August 15, 2008
and the fourth Purchase Period ending on February 15, 2009.




                              (c) After the New Offering commences, a concurrent
Offering shall begin on February 16 and August 16 each year,
beginning with an Offering commencing on August 16, 2007, over the
term of the Plan, and each such Offering shall be approximately twenty
four (24 )months in duration. . Each Offering shall consist of four
(4) Purchase Periods, each of which shall be approximately six (6)
months in length. 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) If the Company’s accountants advise the Company that the accounting treatment of
purchases under the Plan will change or has changed in a manner that the Company determines is
detrimental to its best



1.









 







interests, then the Company may, in its discretion, take the following actions: (i) terminate
each Offering hereunder that is then ongoing as of the next Purchase Date (after the purchase of
stock on such Purchase Date) under such Offering; (ii) set a new Purchase Date for each ongoing
Offering and terminate such Offerings after the purchase of stock on such Purchase Date; (iii)
amend the Plan and each ongoing Offering so that such Offerings will no longer have an accounting
treatment that is detrimental to the Company’s best interests and (iv) terminate each ongoing
Offering and refund any money contributed back to the participants. (g) 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 is an Employee 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
has designated that employees of such Related Corporation are eligible
to participate in the Offering, shall be granted a Purchase Right on
the Offering Date of such Offering.




                              (b) Notwithstanding the foregoing, the following
Employees shall not be Eligible Employees or be granted
Purchase Rights under an Offering:



               (i) part-time or seasonal Employees whose customary employment is twenty (20) hours
per week or less or five (5) months per calendar year or less;



               (ii) five percent (5%) stockholders (including ownership through unexercised and/or
unvested stock options) as described in Section 6(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.




                              (c) Notwithstanding the foregoing, each person who
first becomes an Eligible Employee during an Offering shall receive,
on the day after the first Purchase Date during that Offering as of
which such person first satisfies the requirements to become an
Eligible Employee, a Purchase Right under such Offering, which
Purchase Right shall thereafter be deemed to be a part of the
Offering. Such Purchase Right shall have the same characteristics as
any Purchase Rights originally granted under the Offering except that:



               (i) the date on which such Purchase Right is granted shall be the “Offering Date” of
such Purchase Right for all purposes except for the application of the provision of Section 1(g)
above (the



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application of which shall be determined only by using the Offering Date of the ongoing
Offering), including determination of the exercise price of such Purchase Right; and



               (ii) the Offering for such Purchase Right shall begin on its Offering Date and end
coincident with the end of the ongoing Offering.



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
compensation paid to a Participant, including all salary and 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), overtime pay, commissions, bonuses, and other
cash remuneration paid directly to such Participant, but excluding
profit sharing, the cost of employee benefits paid for by the Company
or a Related Corporation, severance payments, education or tuition
reimbursements, imputed income arising under any Company or Related
Corporation group insurance or benefit program, traveling expenses and
automobile allowances, business and moving expense reimbursements,
income received in connection with stock options, contributions made
by the Company or a Related Corporation under any employee benefit
plan, and 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



3.









 







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. If the aggregate purchase of
shares of Common Stock upon exercise of Purchase Rights granted under
the Offering would exceed the maximum aggregate number of shares
available, the Board shall make a pro rata allocation of the shares
available in a uniform and equitable manner.



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 on the Offering Date. 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 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. 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%). Contributions may only be made
by way of payroll deductions.




          (b) A Participant may increase his or her participation
level only once during a Purchase Period. A Participant may decrease
(including a decrease to zero percent (0%)) his or her participation
level no more than once during a Purchase Period. 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 next Purchase Date of the
Purchase Period for which it is to be effective.




          (c) 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



4.









 







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.




             (d) 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 registration
of the shares under the Plan that are subject to the Offering has been
filed by the Company and has become effective.



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,
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. 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.




5.