**Exhibit 10.1**

 

**SEPRACORINC.**

 

2000 STOCKINCENTIVE PLAN

 

# 1.             Purpose

#  

The purpose of this 2000 Stock Incentive Plan(the “Plan”) of Sepracor Inc., a Delaware****corporation(the “Company”), is to advance the interests of the Company’s stockholders byenhancing the Company’s ability to attract, retain and motivate persons whomake (or are expected to make) important contributions to the Company byproviding such persons with equity ownership opportunities andperformance-based incentives and thereby better aligning the interests of suchpersons with those of the Company’s stockholders.  Except where the context otherwise requires,the term “Company” shall include any of the Company’s present or futuresubsidiary corporations as defined in Section 424(f) of the InternalRevenue Code of 1986, as amended, and any regulations promulgated thereunder(the “Code”) and any other business venture (including, without limitation,joint venture or limited liability company) in which the Company has asignificant interest, as determined by the Board of Directors of the Company(the “Board”).

 

# 2.             Eligibility

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All of the Company’s employees, officers,directors, consultants and advisors (and any individuals who have accepted anoffer for employment) are eligible to be granted options, restricted stockawards, or other stock-based awards (each, an “Award”) under the Plan.  Each person who has been granted an Awardunder the Plan shall be deemed a “Participant”.

 

# 3.             Administration,Delegation

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## (a)           Administrationby Board of Directors.  The Plan willbe administered by the Board.  The Boardshall have authority to grant Awards and to adopt, amend and repeal suchadministrative rules, guidelines and practices relating to the Plan as it shalldeem advisable.  The Board may correctany defect, supply any omission or reconcile any inconsistency in the Plan orany Award in the manner and to the extent it shall deem expedient to carry thePlan into effect and it shall be the sole and final judge of such expediency.  All decisions by the Board shall be made inthe Board’s sole discretion and shall be final and binding on all personshaving or claiming any interest in the Plan or in any Award.  No director or person acting pursuant to theauthority delegated by the Board shall be liable for any action ordetermination relating to or under the Plan made in good faith.

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## (b)           Appointmentof Committees. To the extent permitted by applicable law, the Board maydelegate any or all of its powers under the Plan to one or more committees orsubcommittees of the Board (a “Committee”). All references in the Plan to the “Board” shall mean the Board or aCommittee of the Board referred to in Section 3(b) to the extent thatthe Board’s powers or authority under the Plan have been delegated to suchCommittee.

 

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# 4.             Stock Availablefor Awards

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## (a)           Numberof Shares. Subject to adjustment under Section 8, Awards may be madeunder the Plan for up to 2,500,000 shares of common stock, $.10 par value pershare, of the Company (the “Common Stock”). If any Award expires or is terminated, surrendered or canceled withouthaving been fully exercised or is forfeited in whole or in part or results inany Common Stock not being issued, the unused Common Stock covered by such Awardshall again be available for the grant of Awards under the Plan, subject,however, in the case of Incentive Stock Options (as hereinafter defined), toany limitation required under the Code. Shares issued under the Plan may consist in whole or in part ofauthorized but unissued shares or treasury shares.

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## (b)           Per-ParticipantLimit.  Subject to adjustment under Section 8,for Awards granted after the Common Stock is registered under the SecuritiesExchange Act of 1934 (the “Exchange Act”), the maximum number of shares ofCommon Stock with respect to which Awards may be granted to any Participantunder the Plan shall be****500,000per calendar year. The per-Participant limit described in this Section 4(b) shallbe construed and applied consistently with Section 162(m) of the Code (“Section 162(m)”).

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# 5.             Stock Options

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## (a)           General.  The Board may grant options to purchaseCommon Stock (each, an “Option”) and determine the number of shares of CommonStock to be covered by each Option, the exercise price of each Option and theconditions and limitations applicable to the exercise of each Option, includingconditions relating to applicable federal or state securities laws, as itconsiders necessary or advisable.  AnOption which is not intended to be an Incentive Stock Option (as hereinafterdefined) shall be designated a “Nonstatutory Stock Option”.

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## (b)           IncentiveStock Options.  An Option that theBoard intends to be an “incentive stock option” as defined in Section 422of the Code (an “Incentive Stock Option”) shall only be granted to employees ofthe Company and shall be subject to and shall be construed consistently withthe requirements of Section 422 of the Code.  The Company shall have no liability to aParticipant, or any other party, if an Option (or any part thereof) which isintended to be an Incentive Stock Option is not an Incentive Stock Option.

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## (c)           ExercisePrice. The Board shall establish the exercise price at the time each Optionis granted and specify it in the applicable option agreement, provided,however, that the exercise price shall not be less than 100% of the fair marketvalue of the Common Stock, as determined by the Board, at the time the Optionis granted.

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## (d)           Durationof Options. Each Option shall be exercisable at such times and subject tosuch terms and conditions as the Board may specify in the applicable optionagreement, provided however, that no Option will be granted for a term inexcess of ten years.

 

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## (e)           Exerciseof Option.  Options may be exercisedby delivery to the Company of a written notice of exercise signed by the properperson or by any other form of notice (including electronic notice) approved bythe Board together with payment in full as specified in Section 5(f) forthe number of shares for which the Option is exercised.

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## (f)            PaymentUpon Exercise.  Common Stockpurchased upon the exercise of an Option granted under the Plan shall be paidfor as follows:

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### (1)           incash or by check, payable to the order of the Company;

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### (2)           exceptas the Board may, in its sole discretion, otherwise provide in an optionagreement, by (i) delivery of an irrevocable and unconditional undertakingby a creditworthy broker to deliver promptly to the Company sufficient funds topay the exercise price or (ii) delivery by the Participant to the Companyof a copy of irrevocable and unconditional instructions to a creditworthybroker to deliver promptly to the Company cash or a check sufficient to pay theexercise price;

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### (3)           whenthe Common Stock is registered under the Exchange Act, by delivery of shares ofCommon Stock owned by the Participant valued at their fair market value asdetermined by (or in a manner approved by) the Board in good faith (“FairMarket Value”), provided (i) such method of payment is then permittedunder applicable law and (ii) such Common Stock was owned by theParticipant at least six months prior to such delivery;

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### (4)           tothe extent permitted by the Board, in its sole discretion by (i) deliveryof a promissory note of the Participant to the Company on terms determined bythe Board, or (ii) payment of such other lawful consideration as the Boardmay determine; or

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### (5)           byany combination of the above permitted forms of payment.

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## (g)           SubstituteOptions. In connection with a merger or consolidation of an entity with theCompany or the acquisition by the Company of property or stock of an entity,the Board may grant Options in substitution for any options or other stock orstock-based awards granted by such entity or an affiliate thereof.  Substitute Options may be granted on suchterms as the Board deems appropriate in the circumstances, notwithstanding anylimitations on Options contained in the other sections of this Section 5.

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# 6.             Restricted Stock

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## (a)           Grants.  The Board may grant Awards entitlingrecipients to acquire shares of Common Stock, subject to the right of theCompany to repurchase all or part of such shares at their issue price or otherstated or formula price (or to require forfeiture of such shares if issued atno cost) from the recipient in the event that conditions specified by the Boardin the applicable Award are not satisfied prior to the end of the applicablerestriction period or periods established by the Board for such Award (each, a “RestrictedStock Award”).

 

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## (b)           Termsand Conditions.  The Board shalldetermine the terms and conditions of any such Restricted Stock Award,including the conditions for repurchase (or forfeiture) and the issue price, ifany.  Any stock certificates issued inrespect of a Restricted Stock Award shall be registered in the name of theParticipant and, unless otherwise determined by the Board, deposited by theParticipant, together with a stock power endorsed in blank, with the Company(or its designee). At the expiration of the applicable restriction periods, theCompany (or such designee) shall deliver the certificates no longer subject tosuch restrictions to the Participant or if the Participant has died, to thebeneficiary designated, in a manner determined by the Board, by a Participantto receive amounts due or exercise rights of the Participant in the event ofthe Participant’s death (the “Designated Beneficiary”).  In the absence of an effective designation bya Participant, Designated Beneficiary shall mean the Participant’s estate.

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# 7.             Other Stock-BasedAwards

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The Board shall have the right to grant otherAwards based upon the Common Stock having such terms and conditions as theBoard may determine, including the grant of shares based upon certainconditions, the grant of securities convertible into Common Stock and the grantof stock appreciation rights.

 

# 8.             Adjustments forChanges in Common Stock and Certain Other Events

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## (a)           Changesin Capitalization.  In the event ofany stock split, reverse stock split, stock dividend, recapitalization,combination of shares, reclassification of shares, spin-off or other similarchange in capitalization or event, or any distribution to holders of CommonStock other than a normal cash dividend, (i) the number and class ofsecurities available under this Plan, (ii) the per-Participant limit setforth in Section 4(b), (iii) the number and class of securities andexercise price per share subject to each outstanding Option, (iv) therepurchase price per share subject to each outstanding Restricted Stock Award,and (v) the terms of each other outstanding Award shall be appropriatelyadjusted by the Company (or substituted Awards may be made, if applicable) tothe extent the Board shall determine, in good faith, that such an adjustment(or substitution) is necessary and appropriate. If this Section 8(a) applies and Section 8(c) alsoapplies to any event, Section 8(c) shall be applicable to such event,and this Section 8(a) shall not be applicable.

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## (b)           Liquidationor Dissolution.  In the event of aproposed liquidation or dissolution of the Company, the Board shall uponwritten notice to the Participants provide that all then unexercised Optionswill (i) become exercisable in full as of a specified time at least 10business days prior to the effective date of such liquidation or dissolutionand (ii) terminate effective upon such liquidation or dissolution, exceptto the extent exercised before such effective date.  The Board may specify the effect of aliquidation or dissolution on any Restricted Stock Award or other Award grantedunder the Plan at the time of the grant of such Award.

 

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(c)           Acquisitionand Change in Control Events

 

(1)           Definitions

 

(a)                                  An“Acquisition Event” shall mean:

 

(i)                                     anymerger or consolidation of the Company with or into another entity as a resultof which the Common Stock is converted into or exchanged for the right toreceive cash, securities or other property; or

 

(ii)                                  anyexchange of shares of the Company for cash, securities or other propertypursuant to a statutory share exchange transaction.

 

(b)                                 A“Change in Control Event” shall mean:

 

(i)                                     theacquisition by an individual, entity or group (within the meaning of Section 13(d)(3) or14(d)(2) of the Securities Exchange Act of 1934, as amended (the “ExchangeAct”)) (a “Person”) of beneficial ownership of any capital stock of the Companyif, after such acquisition, such Person beneficially owns (within the meaningof Rule 13d-3 promulgated under the Exchange Act) 30% or more of either(x) the then-outstanding shares of common stock of the Company (the “OutstandingCompany Common Stock”) or (y) the combined voting power of the then-outstandingsecurities of the Company entitled to vote generally in the election ofdirectors (the “Outstanding Company Voting Securities”); provided, however,that for purposes of this subsection (i), the following acquisitions shallnot constitute a Change in Control Event: (A) any acquisition directlyfrom the Company (excluding an acquisition pursuant to the exercise, conversionor exchange of any security exercisable for, convertible into or exchangeablefor common stock or voting securities of the Company, unless the Personexercising, converting or exchanging such security acquired such securitydirectly from the Company or an underwriter or agent of the Company), (B) anyacquisition by any employee benefit plan (or related trust) sponsored ormaintained by the Company or any corporation controlled by the Company, or (C) anyacquisition by any corporation pursuant to a Business Combination (as definedbelow) which complies with clauses (x) and (y) of subsection (iii) of this definition; or

 

(ii)                                  suchtime as the Continuing Directors (as defined below) do not constitute amajority of the Board (or, if applicable, 

 

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the Board of Directors of a successorcorporation to the Company), where the term “Continuing Director” means at anydate a member of the Board (x) who was a member of the Board on the date of theinitial adoption of this Plan by the Board or (y) who was nominated or electedsubsequent to such date by at least a majority of the directors who wereContinuing Directors at the time of such nomination or election or whoseelection to the Board was recommended or endorsed by at least a majority of thedirectors who were Continuing Directors at the time of such nomination orelection; provided, however, that there shall be excluded fromthis clause (y) any individual whose initial assumption of office occurred as aresult of an actual or threatened election contest with respect to the electionor removal of directors or other actual or threatened solicitation of proxiesor consents, by or on behalf of a person other than the Board; or

 

(iii)                               theconsummation of a merger, consolidation, reorganization, recapitalization orstatutory share exchange involving the Company or a sale or other dispositionof all or substantially all of the assets of the Company (a “BusinessCombination”), unless, immediately following such Business Combination, each ofthe following two conditions is satisfied: (x) all or substantially all of theindividuals and entities who were the beneficial owners of the Outstanding CompanyCommon Stock and Outstanding Company Voting Securities immediately prior tosuch Business Combination beneficially own, directly or indirectly, more than50% of the then-outstanding shares of common stock and the combined votingpower of the then-outstanding securities entitled to vote generally in theelection of directors, respectively, of the resulting or acquiring corporationin such Business Combination (which shall include, without limitation, acorporation which as a result of such transaction owns the Company orsubstantially all of the Company’s assets either directly or through one ormore subsidiaries) (such resulting or acquiring corporation is referred toherein as the “Acquiring Corporation”) in substantially the same proportions astheir ownership of the Outstanding Company Common Stock and Outstanding CompanyVoting Securities, respectively, immediately prior to such Business Combinationand (y) no Person (excluding the 

 

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Acquiring Corporation or any employee benefitplan (or related trust) maintained or sponsored by the Company or by theAcquiring Corporation) beneficially owns, directly or indirectly, 30% or moreof the then-outstanding shares of common stock of the Acquiring Corporation, orof the combined voting power of the then-outstanding securities of suchcorporation entitled to vote generally in the election of directors (except tothe extent that such ownership existed prior to the Business Combination).

 

(2)           Effecton Options

 

(a)                                  AcquisitionEvent.  Upon the occurrence of anAcquisition Event (regardless of whether such event also constitutes a Changein Control Event), or the execution by the Company of any agreement withrespect to an Acquisition Event (regardless of whether such event will resultin a Change in Control Event), the Board shall provide that all outstandingOptions shall be assumed, or equivalent options shall be substituted, by theacquiring or succeeding corporation (or an affiliate thereof); providedthatif such Acquisition Event also constitutes a Change in Control Event, except tothe extent specifically provided to the contrary in the instrument evidencingany Option or any other agreement between a Participant and the Company, suchassumed or substituted options shall be immediately exercisable in full uponthe occurrence of such Acquisition Event. For purposes hereof, an Option shall be considered to be assumed if,following consummation of the Acquisition Event, the Option confers the rightto purchase, for each share of Common Stock subject to the Option immediatelyprior to the consummation of the Acquisition Event, the consideration (whethercash, securities or other property) received as a result of the AcquisitionEvent by holders of Common Stock for each share of Common Stock heldimmediately prior to the consummation of the Acquisition Event (and if holderswere offered a choice of consideration, the type of consideration chosen by theholders of a majority of the outstanding shares of Common Stock); provided,however, that if the consideration received as a result of the AcquisitionEvent is not solely common stock of the acquiring or succeeding corporation (oran affiliate thereof), the Company may, with the consent of the acquiring orsucceeding corporation, provide for the consideration to be received upon theexercise of Options to consist solely of common stock of the acquiring orsucceeding corporation (or an affiliate thereof) equivalent in fair marketvalue 

 

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to the per share consideration received byholders of outstanding shares of Common Stock as a result of the AcquisitionEvent.

 

Notwithstandingthe foregoing, if the acquiring or succeeding corporation (or an affiliatethereof) does not agree to assume, or substitute for, such Options, then theBoard shall, upon written notice to the Participants, provide that all thenunexercised Options will become exercisable in full as of a specified timeprior to the Acquisition Event and will terminate immediately prior to theconsummation of such Acquisition Event, except to the extent exercised by theParticipants before the consummation of such Acquisition Event; provided,however, in the event of an Acquisition Event under the terms of which holdersof Common Stock will receive upon consummation thereof a cash payment for eachshare of Common Stock surrendered pursuant to such Acquisition Event (the “AcquisitionPrice”), then the Board may instead provide that all outstanding Options shallterminate upon consummation of such Acquisition Event and that each Participantshall receive, in exchange therefor, a cash payment equal to the amount (ifany) by which (A) the Acquisition Price multiplied by the number of sharesof Common Stock subject to such outstanding Options (whether or not thenexercisable), exceeds (B) the aggregate exercise price of such Options.

 

(b)                                 Changein Control Event that is not an Acquisition Event.  Upon the occurrence of a Change in ControlEvent that does not also constitute an Acquisition Event, except to the extentspecifically provided to the contrary in the instrument evidencing any Optionor any other agreement between a Participant and the Company, all Optionsthen-outstanding shall automatically become immediately exercisable in full.

 

(3)           Effecton Restricted Stock Awards

 

(a)                                  AcquisitionEvent that is not a Change in Control Event. Upon the occurrence of anAcquisition Event that is not a Change in Control Event, the repurchase andother rights of the Company under each outstanding Restricted Stock Award shallinure to the benefit of the Company’s successor and shall apply to the cash,securities or other property which the Common Stock was converted into orexchanged for pursuant to such Acquisition Event in the same manner and to thesame extent as they applied to the Common Stock subject to such RestrictedStock Award.

 

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(b)                                 Changein Control Event.  Upon theoccurrence of a Change in Control Event (regardless of whether such event alsoconstitutes an Acquisition Event), except to the extent specifically providedto the contrary in the instrument evidencing any Restricted Stock Award or anyother agreement between a Participant and the Company, all restrictions andconditions on all Restricted Stock Awards then-outstanding shall automaticallybe deemed terminated or satisfied.

 

(4)           Effecton Other Awards

 

(a)                                  AcquisitionEvent that is not a Change in Control Event. The Board shall specify theeffect of an Acquisition Event that is not a Change in Control Event on anyother Award granted under the Plan at the time of the grant of such Award.

 

(b)                                 Changein Control Event.  Upon theoccurrence of a Change in Control Event (regardless of whether such event alsoconstitutes an Acquisition Event), except to the extent specifically providedto the contrary in the instrument evidencing any other Award or any otheragreement between a Participant and the Company, all other Awards shall becomeexercisable, realizable or vested in full, or shall be free of all conditionsor restrictions, as applicable to each such Award.

 

(5)           Limitations.  Notwithstanding the foregoing provisions ofthis

 

Section 8(c), if the Change in ControlEvent is intended to be accounted for as a “pooling of interests” for financialaccounting purposes, and if the acceleration to be effected by the foregoingprovisions of this Section 8(c) would preclude accounting for theChange in Control Event as a “pooling of interests” for financial accountingpurposes, then no such acceleration shall occur upon the Change in ControlEvent.

 

# 9.             General ProvisionsApplicable to Awards

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## (a)           Transferabilityof Awards.  Except as the Board mayotherwise determine or provide in an Award, Awards shall not be sold, assigned,transferred, pledged or otherwise encumbered by the person to whom they aregranted, either voluntarily or by operation of law, except by will or the lawsof descent and distribution, and, during the life of the Participant, shall beexercisable only by the Participant. References to a Participant, to the extent relevant in the context,shall include references to authorized transferees.

 

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## (b)           Documentation.  Each Award shall be evidenced by a writteninstrument in such form as the Board shall determine. Each Award may containterms and conditions in addition to those set forth in the Plan.

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## (c)           BoardDiscretion.  Except as otherwiseprovided by the Plan, each Award may be made alone or in addition or inrelation to any other Award.  The termsof each Award need not be identical, and the Board need not treat Participantsuniformly.

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## (d)           Terminationof Status.  The Board shall determinethe effect on an Award of the disability, death, retirement, authorized leaveof absence or other change in the employment or other status of a Participantand the extent to which, and the period during which, the Participant, theParticipant’s legal representative, conservator, guardian or DesignatedBeneficiary may exercise rights under the Award.

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## (e)           Withholding.  Each Participant shall pay to the Company, ormake provision satisfactory to the Board for payment of, any taxes required bylaw to be withheld in connection with Awards to such Participant no later thanthe date of the event creating the tax liability.  Except as the Board may otherwise provide inan Award, when the Common Stock is registered under the Exchange Act,Participants may, to the extent then permitted under applicable law, satisfysuch tax obligations in whole or in part by delivery of shares of Common Stock,including shares retained from the Award creating the tax obligation, valued attheir Fair Market Value. The Company may, to the extent permitted by law,deduct any such tax obligations from any payment of any kind otherwise due to aParticipant.

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## (f)            Amendmentof Award.  The Board may amend,modify or terminate any outstanding Award, including but not limited to,substituting therefor another Award of the same or a different type, changingthe date of exercise or realization, and converting an Incentive Stock Optionto a Nonstatutory Stock Option, provided that the Participant’s consent to suchaction shall be required unless the Board determines that the action, takinginto account any related action, would not materially and adversely affect theParticipant.

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## (g)           Conditionson Delivery of Stock.  The Companywill not be obligated to deliver any shares of Common Stock pursuant to thePlan or to remove restrictions from shares previously delivered under the Planuntil (i) all conditions of the Award have been met or removed to thesatisfaction of the Company, (ii) in the opinion of the Company’s counsel,all other legal matters in connection with the issuance and delivery of suchshares have been satisfied, including any applicable securities laws and anyapplicable stock exchange or stock market rules and regulations, and (iii) theParticipant has executed and delivered to the Company such representations oragreements as the Company may consider appropriate to satisfy the requirementsof any applicable laws, rules or regulations.

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## (h)           Acceleration.  The Board may at any time provide that anyOptions shall become immediately exercisable in full or in part, that anyRestricted Stock Awards shall be free of restrictions in full or in part or 

 

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## that any other Awards may become exercisable in full or in part or freeof some or all restrictions or conditions, or otherwise realizable in full orin part, as the case may be.

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# 10.           Miscellaneous

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## (a)           NoRight To Employment or Other Status. No person shall have any claim or right to be granted an Award, and thegrant of an Award shall not be construed as giving a Participant the right tocontinued employment or any other relationship with the Company.  The Company expressly reserves the right atany time to dismiss or otherwise terminate its relationship with a Participantfree from any liability or claim under the Plan, except as expressly providedin the applicable Award.

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## (b)           NoRights As Stockholder.  Subject tothe provisions of the applicable Award, no Participant or DesignatedBeneficiary shall have any rights as a stockholder with respect to any sharesof Common Stock to be distributed with respect to an Award until becoming therecord holder of such shares. Notwithstanding the foregoing, in the event the Company effects a splitof the Common Stock by means of a stock dividend and the exercise price of andthe number of shares subject to such Option are adjusted as of the date of thedistribution of the dividend (rather than as of the record date for suchdividend), then an optionee who exercises an Option between the record date andthe distribution date for such stock dividend shall be entitled to receive, onthe distribution date, the stock dividend with respect to the shares of CommonStock acquired upon such Option exercise, notwithstanding the fact that suchshares were not outstanding as of the close of business on the record date forsuch stock dividend.

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## (c)           EffectiveDate and Term of Plan.  The Planshall become effective on the date on which it is adopted by the Board, but noAward granted to a Participant that is intended to comply with Section 162(m)shall become exercisable, vested or realizable, as applicable to such Award,unless and until the Plan has been approved by the Company’s stockholders tothe extent stockholder approval is required by Section 162(m) in themanner required under Section 162(m) (including the vote required under Section 162(m)).No Awards shall be granted under the Plan after the completion of ten yearsfrom the earlier of (i) the date on which the Plan was adopted by theBoard or (ii) the date the Plan was approved by the Company’sstockholders, but Awards previously granted may extend beyond that date.

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## (d)           Amendmentof Plan.  The Board may amend,suspend or terminate the Plan or any portion thereof at any time, provided thatto the extent required by Section 162(m), no Award granted to aParticipant that is intended to comply with Section 162(m) after the dateof such amendment shall become exercisable, realizable or vested, as applicableto such Award, unless and until such amendment shall have been approved by theCompany’s stockholders as required by Section 162(m) (including the voterequired under Section 162(m)).

 

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## (e)           GoverningLaw.  The provisions of the Plan andall Awards made hereunder shall be governed by and interpreted in accordancewith the laws of the State of Delaware, without regard to any applicableconflicts of law.

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Adopted by theBoard of Directors on February 24, 2000

 

Adopted by the Stockholders on May 24,2000

 

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**AMENDMENTNO 1. TO**

**2000STOCK INCENTIVE PLAN**

**OF**

**SEPRACORINC.**

 

The 2000 Stock Incentive Plan (the “Plan”) ofSepracor Inc. be, and hereby is, amended as follows:

 

1.             Section 4,paragraph (a) is deleted in its entirety and the following is substitutedin its place:

 

“(a) Number of Shares.  Subject to adjustment under Section 8,Awards may be made under the Plan for up to 4,000,000 shares of common stock,$.10 par value per share, of the Company (the “Common Stock”).  If any Award expires or is terminated,surrendered or cancelled without having been fully exercised or is forfeited inwhole or in part or results in any Common Stock not being issued, the unusedCommon Stock covered by such Award shall again be available for the grant ofAwards under the Plan, subject, however, in the case of Incentive Stock Options(as hereinafter defined), to any limitation required under the Code.  Shares issued under the Plan may consist inwhole or in part of authorized but unissued shares or treasury shares.”

 

 

Adopted by theBoard of Directors on February 21, 2002

 

Adopted by theStockholders on May 22, 2002

 

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**AMENDMENTNO 2. TO**

**2000STOCK INCENTIVE PLAN**

**OF**

**SEPRACORINC.**

 

The 2000 Stock Incentive Plan (the “Plan”) ofSepracor Inc. be, and hereby is, amended as follows:

 

1.             Section 4,paragraph (a) is deleted in its entirety and the following is substitutedin its place:

 

“(a) Number of Shares.  Subject to adjustment under Section 8,Awards may be made under the Plan for up to 5,5000,000 shares of common stock,$.10 par value per share, of the Company (the “Common Stock”).  If any Award expires or is terminated,surrendered or cancelled without having been fully exercised or is forfeited inwhole or in part or results in any Common Stock not being issued, the unusedCommon Stock covered by such Award shall again be available for the grant ofAwards under the Plan, subject, however, in the case of Incentive Stock Options(as hereinafter defined), to any limitation required under the Code.  Shares issued under the Plan may consist inwhole or in part of authorized but unissued shares or treasury shares.”

 

 

Adopted by theBoard of Directors on February 20, 2003

 

Adopted by theStockholders on May 22, 2003

 

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**AMENDMENTNO 3. TO**

**2000STOCK INCENTIVE PLAN**

**OF**

**SEPRACORINC.**

 

The 2000 Stock Incentive Plan (the “Plan”),as amended, of Sepracor Inc. be, and hereby is, further amended as follows:

 

1.             Section 4,paragraph (a) is deleted in its entirety and the following is substitutedin its place:

 

“(a) Number of Shares.  Subject to adjustment under Section 8,Awards may be made under the Plan for up to 8,000,000 shares of common stock,$.10 par value per share, of the Company (the “Common Stock”).  If any Award expires or is terminated, surrenderedor cancelled without having been fully exercised or is forfeited in whole or inpart or results in any Common Stock not being issued, the unused Common Stockcovered by such Award shall again be available for the grant of Awards underthe Plan, subject, however, in the case of Incentive Stock Options (ashereinafter defined), to any limitation required under the Code.  Shares issued under the Plan may consist inwhole or in part of authorized but unissued shares or treasury shares.”

 

 

Adopted by theBoard of Directors on February 11, 2004.

 

Adopted by theStockholders on May 19, 2004.

 

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**AMENDMENTNO. 4 TO**

**2000STOCK INCENTIVE PLAN**

**OF**

**SEPRACORINC.**

 

The 2000 Stock Incentive Plan (the “Plan”),as amended, of Sepracor Inc. be, and hereby is, further amended as follows:

 

1.             Section 4,paragraph (a) is deleted in its entirety and the following is substitutedin its place:

 

“(a) Number of Shares.  Subject to adjustment under Section 8,Awards may be made under the Plan for up to 9,500,000 shares of common stock,$.10 par value per share, of the Company (the “Common Stock”).  If any Award expires or is terminated,surrendered or cancelled without having been fully exercised or is forfeited inwhole or in part or results in any Common Stock not being issued, the unusedCommon Stock covered by such Award shall again be available for the grant ofAwards under the Plan, subject, however, in the case of Incentive Stock Options(as hereinafter defined), to any limitation required under the Code.  Shares issued under the Plan may consist inwhole or in part of authorized but unissued shares or treasury shares.”

 

 

Adopted by theBoard of Directors on April 1, 2005.

 

Adopted by theStockholders on May 19, 2005.

 

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**AMENDMENTNO. 5 TO 2000 STOCK INCENTIVE PLANOFSEPRACOR INC.**

 

The 2000 Stock Incentive Plan (the “Plan”) ofSepracor Inc. be and hereby is, amended as follows:

 

1.             Thefollowing Section 5(h) is hereby added:

 

(h)           Limitationon Repricing.  Unless such action isapproved by the Company’s stockholders: (i) no outstanding Option grantedunder the Plan may be amended to provide an exercise price per share that islower than the then-current exercise price per share of such outstanding Option(other than adjustments pursuant to Section 8), and (ii) the Boardmay not cancel any outstanding option (whether or not granted under the Plan)and grant in substitution therefor new Awards under the Plan covering the sameor a different number of shares of Common Stock and having an exercise priceper share lower than the then-current exercise price per share of the cancelledOption.

 

2.             Section 9(f) ishereby deleted in its entirety and replaced with the following:

 

(f)            Amendmentof Plan.  Except as prohibited by Section 5(h),the Board may amend, modify or terminate any outstanding Award, including butnot limited to, substituting therefore another Award of the same or a differenttype, changing the date of exercise or realization, and converting an IncentiveStock Option to a Non-Statutory Stock Option, provided that the Participant’sconsent to such action shall be required unless the Board determines that theaction, taking into account any related action, would not materially andadversely affect the Participant.

 

 

Adopted by the Board ofDirectors on May 13, 2005

 

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