tricida-2018esppfinalame






                                                                  EXHIBIT 10.4                                  TRICIDA, INC.                        EMPLOYEE STOCK PURCHASE PLAN  1. Purpose. The purpose of this Plan is to provide Employees of the Company and Participating  Subsidiaries with an opportunity to purchase common stock of the Company through accumulated payroll  deductions. It is the intention of the Company to have the Plan qualify as an “Employee Stock Purchase  Plan” under Section 423 of the Code. The provisions of the Plan, accordingly, shall be construed so as to  extend and limit participation in a manner consistent with the requirements of that Section of the Code.  2. Definitions. As used herein, the terms set forth below have the meanings assigned to them in this  Section 2 and shall include the plural as well as the singular.  1933 Act means the Securities Act of 1933, as amended.  1934 Act means the Securities Exchange Act of 1934, as amended.  Board means the Board of Directors of Tricida, Inc.  Business Day shall mean a day on which The NASDAQ Global Select Market (“NASDAQ”) is open for  trading.  Brokerage Account means the account in which the Purchased Shares are held.  Code means the Internal Revenue Code of 1986, as amended.  Committee means the Compensation Committee of the Board, or the designee of the Compensation  Committee.  Company means Tricida, Inc., a Delaware corporation.  Compensation means the base pay received by a Participant, plus commissions, overtime and regular  annual, quarterly and monthly cash bonuses and vacation, holiday and sick pay. Compensation does not  include: (1) income related to stock option awards, stock grants and other equity incentive awards,  (2) expense reimbursements, (3) relocation-related payments, (4) benefit plan payments (including but not  limited to short-term disability pay, long-term disability pay, maternity pay, military pay, tuition  reimbursement and adoption assistance), (5) deceased pay, (6) income from non-cash and fringe benefits,  (7) severance payments, and (8) other forms of compensation not specifically listed herein.  Employee means any individual who is a common law employee of the Company or any other  Participating Subsidiary. For purposes of the Plan, the employment relationship shall be treated as  continuing intact while the individual is on sick leave or other leave of absence approved by the Company  or the Participating Subsidiary, as appropriate, and only to the extent permitted under Section 423 of the  Code. For purposes of the Plan, an individual who performs services for the Company or a Participating  Subsidiary pursuant to an agreement (written or oral) that classifies such individual’s relationship with the  Company or a Participating Subsidiary as other than a common law employee shall not be considered an  “employee” with respect to any period preceding the date on which a court or administrative agency  issues a final determination that such individual is an “employee.”  Enrollment Date means the first Business Day of each Offering Period.  Exercise Date means the last Business Day of each Offering Period (or, if determined by the Committee,  the Purchase Period if different from the Offering Period).                                         1 





 






Fair Market Value on or as of any date means the “NASDAQ Official Closing Price” (as defined on  www.nasdaq.com) (or such substantially similar successor price thereto) for a Share as reported on  www.nasdaq.com (or a substantially similar successor website) on the relevant valuation date or, if no  NASDAQ Official Closing Price is reported on such date, on the preceding day on which a NASDAQ  Official Closing Price was reported; or, if the Shares are no longer listed on NASDAQ, the closing price  for Shares as reported on the official website for such other exchange on which the Shares are listed.  Offering Period means every six-month period beginning each January 1st and July 1st or such other  period designated by the Committee; provided that in no event shall an Offering Period exceed  27 months, with the commencement of the first Offering Period to be determined by the Committee.   Notwithstanding anything herein to the contrary, the Committee may establish an Offering Period with  multiple Purchase Periods within such Offering Period.    Option means an option granted under this Plan that entitles a Participant to purchase Shares.  Participant means an Employee who satisfies the requirements of Sections 3 and 5 of the Plan.  Participating Subsidiary means each Subsidiary other than those that the Committee or the Board has  excluded from participation in the Plan.   Plan means this Tricida, Inc. Employee Stock Purchase Plan.  Purchase Account means the account used to purchase Shares through the exercise of Options under the  Plan.  Purchase Period means the period designated by Committee during which payroll deductions or other  contributions of the Participants are accumulated under the Plan.  A Purchase Period may coincide with  an entire Offering Period or there may be multiple Purchase Periods within an Offering Period, as  determined by the Committee prior to the commencement of the applicable Offering Period.  Purchase Price shall be the lesser of: (i) 85% percent of the Fair Market Value of a Share on the  applicable Enrollment Date for an Offering Period and (ii) 85% percent of the Fair Market Value of a  Share on the applicable Exercise Date; provided, however, that the Committee may determine a different  per share Purchase Price provided that such per share Purchase Price is communicated to Participants  prior to the beginning of the Offering Period and provided that in no event shall such per share Purchase  Price be less than the lesser of (i) 85% of the Fair Market Value of a Share on the applicable Enrollment  Date or (ii) 85% of the Fair Market Value of a Share on the Exercise Date.  Purchased Shares means the full Shares issued or delivered pursuant to the exercise of Options under the  Plan.  Shares means the common stock, par value $0.001 per share, of the Company.  Subsidiary means an entity, domestic or foreign, of which not less than 50% of the voting equity is held  by the Company or a Subsidiary, whether or not such entity now exists or is hereafter organized or  acquired by the Company or a Subsidiary; provided such entity is also a “subsidiary” within the meaning  of Section 424 of the Code.  Termination Date means the date on which a Participant terminates employment or on which the  Participant ceases to provide services to the Company or a Subsidiary as an employee, and specifically  does not include any period following that date which the Participant may be eligible for or in receipt of  other payments from the Company including in lieu of notice or termination or severance pay or as  wrongful dismissal damages.                                          2 





 






3. Eligibility.  (a) Only Employees of the Company or a Participating Subsidiary shall be eligible to be granted Options  under the Plan and, in no event may a Participant be granted an Option under the Plan following his or her  Termination Date.  (b) Any provisions of the Plan to the contrary notwithstanding, no Employee shall be granted an Option  under the Plan if (i) immediately after the grant, such Employee (or any other person whose stock would  be attributed to such Employee pursuant to Section 424(d) of the Code) would own capital stock of the  Company and/or hold outstanding Options or options to purchase stock possessing 5% or more of the  total combined voting power or value of all classes of stock of the Company or of any of its Subsidiaries  or (ii) such Option would permit his or her rights to purchase stock under all employee stock purchase  plans (described in Section 423 of the Code) of the Company and its Subsidiaries to accrue at a rate that  exceeds $25,000 of the Fair Market Value of such stock (determined at the time each such Option is  granted) for each calendar year in which such Option is outstanding at any time. Except as otherwise  determined by the Committee prior to the commencement of an Offering Period, no Participant may  purchase more than 2,500 Shares during any Offering Period.  4. Exercise of an Option. Options shall be exercised on behalf of Participants in the Plan every Exercise  Date, using payroll deductions that have accumulated in the Participants’ Purchase Accounts during the  immediately preceding Purchase Period or that have been retained from a prior Purchase Period pursuant  to Section 8 hereof.   5. Participation.  (a) An Employee shall be eligible to participate on the first Enrollment Date that occurs after such  Employee’s first date of employment with the Company or a Participating Subsidiary; provided, that such  Employee properly completes and submits an election form by the deadline prescribed by the Company.  (b) An Employee who does not become a Participant on the first Enrollment Date on which he or she is  eligible may thereafter become a Participant on any subsequent Enrollment Date by properly completing  and submitting an election form by the deadline prescribed by the Company.  (c) Payroll deductions for a Participant shall commence on the first payroll date following the Enrollment  Date and shall end on the last payroll date in the Purchase Period to which such authorization is  applicable, unless sooner terminated by the Participant as provided in Section 12 hereof.     6. Payroll Deductions.  (a) A Participant shall elect to have payroll deductions made during a Purchase Period equal to no less  than 1% of the Participant’s Compensation up to a maximum of 15% (or such greater amount as the  Committee establishes from time to time). The amount of such payroll deductions shall be in whole  percentages. All payroll deductions made by a Participant shall be credited to his or her Purchase  Account. A Participant may not make any additional payments into his or her Purchase Account.  (b) Except as otherwise determined by the Committee prior to commencement of an Offering Period, a  Participant may not increase or decrease the rate of payroll deductions during an Offering Period. A  Participant may change his or her payroll deduction percentage under subsection (a) above for any  subsequent Offering Period by properly completing and submitting an election change form in accordance  with the procedures prescribed by the Committee. The change in amount shall be effective as of the first  Enrollment Date following the date of filing of the election change form.  (c) Notwithstanding the foregoing, to the extent necessary to comply with Section 423(b)(8) of the Code  and Section 3(b) hereof, a Participant’s payroll deductions may be decreased to 0% at any time during an                                          3 





 






Offering Period. Payroll deductions shall recommence at the rate provided in such Participant’s election  form at the beginning of the first Offering Period which is scheduled to end in the following calendar  year, unless terminated by the Participant as provided in Section 12 hereof.  7. Grant of Option. On the applicable Enrollment Date, each Participant in an Offering Period shall be  granted an Option to purchase on the applicable Exercise Date a number of full Shares determined by  dividing such Participant’s payroll deductions accumulated prior to such Exercise Date and retained in the  Participant’s Purchase Account as of the applicable Exercise Date by the applicable Purchase Price.   8. Exercise of Option. A Participant’s Option for the purchase of Shares shall be exercised automatically  on the Exercise Date, and the maximum number of Shares subject to the Option shall be purchased for  such Participant at the applicable Purchase Price with the accumulated payroll deductions in his or her  Purchase Account.  If the Fair Market Value of a Share on the first day of the current Offering Period in  which a participant is enrolled is higher than the Fair Market Value of a Share on the first day of any  subsequent Offering Period, the Company may establish procedures to automatically enroll such  participant in the subsequent Offering Period and any funds accumulated in a participant’s account prior  to the first day of such subsequent Offering Period will be applied to the purchase of shares on the  Exercise Date immediately prior to the first day of such subsequent Offering Period. A participant does  not need to file any forms with the Company to be automatically enrolled in the subsequent Offering  Period.   No fractional Shares shall be purchased; any payroll deductions accumulated in a Participant’s Purchase  Account which are not sufficient to purchase a full Share shall be retained in the Purchase Account for the  next subsequent Purchase Period, subject to earlier withdrawal by the Participant as provided in  Section 12 hereof. All other payroll deductions accumulated in a Participant’s Purchase Account and not  used to purchase Shares on an Exercise Date shall be distributed to the Participant. During a Participant’s  lifetime, a Participant’s Option is exercisable only by him or her. The Company shall satisfy the exercise  of all Participants’ Options for the purchase of Shares through (a) the issuance of authorized but unissued  Shares, (b) the transfer of treasury Shares, (c) the purchase of Shares on behalf of the applicable  Participants on the open market through an independent broker and/or (d) a combination of the foregoing.    9. Issuance of Stock. The Shares purchased by each Participant shall be issued in book entry form and  shall be considered to be issued and outstanding to such Participant’s credit as of the end of the last day of  each Purchase Period. The Committee may permit or require that shares be deposited directly in a  Brokerage Account with one or more brokers designated by the Committee or to one or more designated  agents of the Company, and the Committee may use electronic or automated methods of share transfer.  The Committee may require that Shares be retained with such brokers or agents for a designated period of  time and/or may establish other procedures to permit tracking of disqualifying dispositions of such shares,  and may also impose a transaction fee with respect to a sale of Shares issued to a Participant’s credit and  held by such a broker or agent. The Committee may permit Shares purchased under the Plan to participate  in a dividend reinvestment plan or program maintained by the Company, and establish a default method  for the payment of dividends.  10. Approval by Stockholders. Notwithstanding the above, the Plan is expressly made subject to the  approval of the stockholders of the Company within 12 months before or after the date the Plan is adopted  by the Board. Such stockholder approval shall be obtained in the manner and to the degree required under  applicable federal and state law. If the Plan is not so approved by the stockholders within 12 months  before or after the date the Plan is adopted by the Board, this Plan shall not come into effect.   11. Administration.                                          4 





 






(a) Powers and Duties of the Committee. The Plan shall be administered by the Committee. Subject to the  provisions of the Plan, Section 423 of the Code and the regulations thereunder, the Committee shall have  the discretionary authority to determine the time and frequency of granting Options, the duration of  Offering Periods and Purchase Periods, the terms and conditions of the Options and the number of Shares  subject to each Option. The Committee shall also have the discretionary authority to do everything  necessary and appropriate to administer the Plan, including, without limitation, interpreting the provisions  of the Plan (but any such interpretation shall not be inconsistent with the provisions of Section 423 of the  Code). All actions, decisions and determinations of, and interpretations by the Committee with respect to  the Plan shall be final and binding upon all Participants and upon their executors, administrators, personal  representatives, heirs and legatees. No member of the Board or the Committee shall be liable for any  action, decision, determination or interpretation made in good faith with respect to the Plan or any Option  granted hereunder. The Plan shall be administered so as to ensure that all Participants have the same  rights and privileges as are provided by Section 423(b)(5) of the Code.  (b) Administrator. The Company, Board or the Committee may engage the services of a brokerage firm or  financial institution (the “Administrator”) to perform certain ministerial and procedural duties under the  Plan including, but not limited to, mailing and receiving notices contemplated under the Plan, determining  the number of Purchased Shares for each Participant, maintaining or causing to be maintained the  Purchase Account and the Brokerage Account, disbursing funds maintained in the Purchase Account or  proceeds from the sale of Shares through the Brokerage Account, and filing with the appropriate tax  authorities proper tax returns and forms (including information returns) and providing to each Participant  statements as required by law or regulation.    (c) Indemnification. Each person who is or shall have been (a) a member of the Board, (b) a member of  the Committee, or (c) an officer or employee of the Company to whom authority was delegated in relation  to this Plan, shall be indemnified and held harmless by the Company against and from any loss, cost,  liability or expense that may be imposed upon or reasonably incurred by him or her in connection with or  resulting from any claim, action, suit or proceeding to which he or she may be a party or in which he or  she may be involved by reason of any action taken or failure to act under the Plan and against and from  any and all amounts paid by him or her in settlement thereof, with the Company’s approval, or paid by  him or her in satisfaction of any judgment in any such claim, action, suit or proceeding against him or her;  provided, however, that he or she shall give the Company an opportunity, at its own expense, to handle  and defend the same before he or she undertakes to handle and defend it on his or her own behalf, unless  such loss, cost, liability or expense is a result of his or her own willful misconduct or except as expressly  provided by statute.  The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to  which such persons may be entitled under the Company’s certificate of incorporation or bylaws, any  contract with the Company, as a matter of law, or otherwise, or of any power that the Company may have  to indemnify them or hold them harmless.  12. Withdrawal. A Participant may withdraw from the Plan by properly completing and submitting to the  Company a withdrawal form in accordance with the procedures prescribed by the Committee, which must  be submitted prior to the date specified by the Committee before the last day of the applicable Offering  Period. Upon withdrawal, any payroll deductions credited to the Participant’s Purchase Account prior to  the effective date of the Participant’s withdrawal from the Plan will be returned to the Participant. No  further payroll deductions for the purchase of Shares will be made during subsequent Offering Periods,  unless the Participant properly completes and submits an election form, by the deadline prescribed by the  Company. A Participant’s withdrawal from an offering will not have any effect upon his or her eligibility  to participate in the Plan or in any similar plan that may hereafter be adopted by the Company.                                          5 





 






13. Termination of Employment. On the Termination Date of a Participant for any reason prior to the  applicable Exercise Date, whether voluntary or involuntary, and including termination of employment due  to retirement, death or as a result of liquidation, dissolution, sale, merger or a similar event affecting the  Company or a Participating Subsidiary, the corresponding payroll deductions credited to his or her  Purchase Account will be returned to him or her or, in the case of the Participant’s death, to the person or  persons entitled thereto under Section 16, and his or her Option will be automatically terminated.  14. Interest. No interest shall accrue on the payroll deductions of a Participant in the Plan.   15. Stock.  (a) The stock subject to Options shall be common stock of the Company as traded on the NASDAQ or on  such other exchange as the Shares may be listed.  (b) Subject to adjustment upon changes in capitalization of the Company as provided in Section 18  hereof, the maximum number of Shares which shall be made available for sale under the Plan shall be  800,000 Shares.  In addition, subject to adjustments upon changes in capitalization of the Company as  provided in Section 18 hereof, the maximum number of Shares which shall be made available for sale  under the Plan shall automatically increase on the first trading day in January of each calendar year during  the term of this Plan, commencing with January 2019, by an amount equal to the lesser of (i) one percent  (1%) of the total number of Shares issued and outstanding on December 31 of the immediately preceding  calendar year, (ii) 800,000 Shares or (iii) such number of Shares as may be established by the Board.  If,  on a given Exercise Date, the number of Shares with respect to which Options are to be exercised exceeds  the number of Shares then available under the Plan, the Committee shall make a pro rata allocation of the  Shares remaining available for purchase in as uniform a manner as shall be practicable and as it shall  determine to be equitable.  (c) A Participant shall have no interest or voting right in Shares covered by his or her Option until such  Option has been exercised and the Participant has become a holder of record of Shares acquired pursuant  to such exercise.  16. Designation of Beneficiary. The Committee may permit Participants to designate beneficiaries to  receive any Purchased Shares or payroll deductions, if any, in the Participant’s accounts under the Plan in  the event of such Participant’s death. Beneficiary designations shall be made in accordance with  procedures prescribed by the Committee. If no properly designated beneficiary survives the Participant,  the Purchased Shares and payroll deductions, if any, will be distributed to the Participant’s estate.  17. Assignability of Options. Neither payroll deductions credited to a Participant’s Purchase Account nor  any rights with regard to the exercise of an Option or to receive Shares under the 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 16 hereof) by the Participant. Any such attempt at assignment,  transfer, pledge or other disposition shall be without effect, except that the Company may treat such act as  an election to withdraw from an Offering Period in accordance with Section 12 hereof.   18. Adjustment of Number of Shares Subject to Options.  (a) Adjustment. Subject to any required action by the stockholders of the Company, the maximum  number of securities available for purchase under the Plan, as well as the price per security and the  number of securities covered by each Option under the Plan which has not yet been exercised shall be  appropriately adjusted in the event of any a stock split, reverse stock split, stock dividend, combination or  reclassification of the common stock of the Company, or any other increase or decrease in the number of  Shares effected without receipt of 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                                          6 





 






consideration.” Such adjustment shall be made by the Board or the Committee, whose determination in  that respect shall be final, binding and conclusive. If any such adjustment would result in a fractional  security being available under the Plan, such fractional security shall be disregarded. Except as expressly  provided herein, no issuance 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. The Options granted pursuant to the Plan shall not  be adjusted in a manner that causes the Options to fail to qualify as options issued pursuant to an  “employee stock purchase plan” within the meaning of Section 423 of the Code.  (b) Dissolution or Liquidation. In the event of the proposed dissolution or liquidation of the Company, the  Offering Period then in progress will terminate immediately prior to the consummation of such proposed  action, unless otherwise provided by the Board, and the Board may either provide for the purchase of  Shares as of the date on which such Offering Period terminates or return to each Participant the payroll  deductions credited to such Participant’s Purchase Account.  (c) Merger or Asset Sale. In the event of a proposed sale of all or substantially all of the assets of the  Company, or the merger of the Company with or into another corporation, each outstanding Option shall  be assumed or an equivalent option substituted by the successor corporation or a parent or subsidiary of  the successor corporation, unless the Board determines, in the exercise of its sole discretion, that in lieu of  such assumption or substitution to either terminate all outstanding Options and return to each Participant  the payroll deductions credited to such Participant’s Purchase Account or to provide for the Offering  Period in progress to end on a date prior to the consummation of such sale or merger.   19. Amendments or Termination of the Plan.  (a) The Board or the Committee may at any time and for any reason amend, modify, suspend, discontinue  or terminate the Plan without notice; provided that no Participant’s existing rights in respect of existing  Options are adversely affected thereby. To the extent necessary to comply with Section 423 of the Code  (or any other applicable law, regulation or stock exchange rule), the Company shall obtain stockholder  approval in such a manner and to such a degree as required.  (b) Without stockholder consent and without regard to whether any Participant rights may be considered  to have been “adversely affected,” the Board or the Committee shall be entitled to change the Purchase  Price, Offering Periods, Purchase Periods, eligibility requirements, limit or increase the frequency and/or  number of changes in the amount withheld during a Purchase Period, establish the exchange ratio  applicable to amounts withheld in a currency other than U.S. dollars, permit payroll withholding in an  amount less than or greater than the amount designated by a Participant in order to adjust for delays or  mistakes in the Company’s processing of properly completed withholding elections, establish reasonable  waiting and adjustment periods and/or accounting and crediting procedures to ensure that amounts  applied toward the purchase of Shares for each Participant properly correspond with amounts withheld  from the Participant’s Compensation, and establish such other limitations or procedures as the Board or  the Committee determines in its sole discretion advisable which are consistent with the Plan; provided,  however, that changes to (i) the Purchase Price, (ii) the Offering Period, (iii) the Purchase Period, (iv) the  maximum percentage of Compensation that may be deducted pursuant to Section 6(a) or (v) the  maximum number of Shares that may be purchased in a Purchase Period, shall not be effective until  communicated to Participants in a reasonable manner, with the determination of such reasonable manner  in the sole discretion of the Board or the Committee.  20. No Other Obligations. The receipt of an Option pursuant to the Plan shall impose no obligation upon  the Participant to purchase any Shares covered by such Option. Nor shall the granting of an Option  pursuant to the Plan constitute an agreement or an understanding, express or implied, on the part of the  Company to employ the Participant for any specified period.                                          7 





 






21. Notices and Communication. Any notice or other form of communication which the Company or a  Participant may be required or permitted to give to the other shall be provided through such means as  designated by the Committee, including but not limited to any paper or electronic method.    22. Condition upon Issuance of Shares.  (a) 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 thereto shall comply with all applicable provisions of law,  domestic or foreign, including, without limitation, the 1933 Act and the 1934 Act and the rules and  regulations promulgated thereunder, and the requirements of any stock exchange 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.  (b) As a condition to the exercise of an Option, the Company may require the person exercising such  Option to represent and warrant at the time of any such exercise that the Shares are being purchased only  for investment and without any present intention to sell or distribute such Shares if, in the opinion of  counsel for the Company, such a representation is required by any of the aforementioned applicable  provisions of law.  23. General Compliance. The Plan will be administered and Options will be exercised in compliance with  the 1933 Act, 1934 Act and all other applicable securities laws and Company policies, including without  limitation, any insider trading policy of the Company.  24. Term of the Plan. The Plan shall become effective upon the earlier to occur of (i) its adoption by the  Board and (ii) its approval by the stockholders of the Company (the “Effective Date”), and shall continue  in effect until the earlier of (A) the termination of the Plan pursuant to Section 19 hereof and (B) the ten- year anniversary of the Effective Date, with no new Offering Periods commencing on or after such ten- year anniversary.  25. Governing Law. The Plan and all Options granted hereunder shall be construed in accordance with  and governed by the laws of the State of Delaware without reference to choice of law principles and  subject in all cases to the Code and the regulations thereunder.  26. Non-U.S. Participants. To the extent permitted under Section 423 of the Code, without the  amendment of the Plan, the Company may provide for the participation in the Plan by Employees who are  subject to the laws of foreign countries or jurisdictions on such terms and conditions different from those  specified in the Plan as may in the judgment of the Company be necessary or desirable to foster and  promote achievement of the purposes of the Plan and, in furtherance of such purposes the Company may  make such modifications, amendments, procedures, subplans and the like as may be necessary or  advisable to comply with provisions of laws of other countries or jurisdictions in which the Company or  the Participating Subsidiaries operate or have employees. Each subplan shall constitute a separate  “offering” under this Plan in accordance with Treas. Reg. §1.423-2(a).                                          8