Registrant's 2004 Employee Stock Purchase Plan



 Exhibit 10.24 
  
 AUXILIUM PHARMACEUTICALS, INC. 
  
 2004 EMPLOYEE STOCK PURCHASE PLAN 







 TABLE OF CONTENTS 
  

					
	 	  	 	  	Page


	1.	  	 Purpose of the Plan
	  	1
			
	2.	  	 Definitions
	  	1
			
	3.	  	 Administration of the Plan
	  	4
			
	4.	  	 Stock Subject to Plan
	  	4
			
	5.	  	 Offering Periods
	  	4
			
	6.	  	 Eligibility
	  	5
			
	7.	  	 Payroll Deductions
	  	6
			
	8.	  	 Purchase Rights
	  	7
			
	9.	  	 Accrual Limitations
	  	9
			
	10.	  	 Effective Date and Term of The Plan
	  	10
			
	11.	  	 Amendment and Termination
	  	10
			
	12.	  	 General Provisions
	  	11
		
	Schedule A	  	A-1

  

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 1. PURPOSE OF THE PLAN 
  
 The Auxilium Pharmaceuticals, Inc. 2004 Employee Stock Purchase Plan is intended to promote the interests of the Company (as
defined in Article 2) by providing eligible employees of a Participating Employer (as defined in Article 2) with the opportunity to acquire a proprietary interest in the Company through participation in a payroll deduction-based employee stock
purchase plan designed to qualify under section 423 of the Internal Revenue Code of 1986, as amended. The Plan is not intended and shall not be construed as constituting an “employee benefit plan,” within the meaning of section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended. 
  
 2. DEFINITIONS 
  
 (a) “Board”
shall mean the Company’s Board of Directors. 
  
 (b)
“Change of Control” shall mean a change in ownership of the Company pursuant to any of the following transactions: 
  
 (i) Any “person” (as such term is used in sections 13(d) and 14(d) of the Exchange Act) becomes a “beneficial owner”
(as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than 50% of the voting power of the then outstanding securities of the Company; provided that a Change of Control shall not be
deemed to occur as a result of a transaction in which the Company becomes a subsidiary of another corporation and in which the stockholders of the Company, immediately prior to the transaction, will beneficially own, immediately after the
transaction, shares entitling such stockholders to more than 50% of all votes to which all stockholders of the parent corporation would be entitled in the election of directors; 
  
 (ii) The consummation of (i) a merger or consolidation of the Company with another corporation where the
stockholders of the Company, immediately prior to the merger or consolidation, will not beneficially own, immediately after the merger or consolidation, shares entitling such stockholders to more than 50% of all votes to which all stockholders of
the surviving corporation would be entitled in the election of directors, (ii) a sale or other disposition of all or substantially all of the assets of the Company, or (iii) a liquidation or dissolution of the Company; or 
  
 (iii) After the date on which this Plan is approved by the
stockholders of the Company, directors are elected such that a majority of the members of the Board shall have been members of the Board for less than two years, unless the election or nomination for election of each new director who was not a
director at the beginning of such two-year period was approved by a vote of at least two-thirds of the directors then still in office who were directors at the beginning of such period. 
  

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 (c) “Code” shall mean the Internal Revenue Code of 1986, as amended. 
  
 (d) “Common Stock” shall mean the common stock of the
Company. 
  
 (e) “Company Affiliate” shall mean
any parent or subsidiary corporation of the Company (as determined in accordance with Code section 424), whether now existing or subsequently established. 
  
 (f) “Company” shall mean Auxilium Pharmaceuticals, Inc., a Delaware corporation, and any corporate successor to all or substantially all
of the assets or voting stock of Auxilium Pharmaceuticals, Inc. that shall adopt the Plan. 
  
 (g) “Compensation” shall mean (i) the regular base salary paid to a Participant by one or more Participating Employers during the Participant’s period of participation in one or more Offering
Periods under the Plan plus (ii) all overtime payments, bonuses and commissions received during such period. Such Compensation shall be calculated before deduction of (A) any income or employment tax withholdings or (B) any contributions made by the
Participant to any Code section 401(k) salary deferral plan, any Code section 125 cafeteria benefit program or any Code section 132(f)(4) transportation fringe benefit program now or hereafter established by the Company or any Company Affiliate.
However, Compensation shall not include any contributions made by the Company or any Company Affiliate on the Participant’s behalf to any employee benefit or welfare plan now or hereafter established (other than Code section 401(k), Code
section 125, or Code section 132(f)(4) contributions deducted from such Compensation). 
  
 (h) “Effective Time” shall mean the time at which the Underwriting Agreement is executed and the Common Stock is priced for the initial public offering of such Common Stock. Any Company Affiliate that
becomes a Participating Employer after such Effective Time shall designate an effective date with respect to its employees. 
  
 (i) “Eligible Employee” shall mean any person who is employed by a Participating Employer on a basis under which he is regularly expected
to render more than 20 hours of service per week for more than five months per calendar year, for earnings considered wages under Code section 3401(a). 
  
 (j) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended. 
  
 (k) “Fair Market Value” per share of Common Stock on any
relevant date shall be determined in accordance with the following provisions: 
  
 (i) If the Common Stock is at the time traded on the Nasdaq National Market, then the Fair Market Value shall be the closing selling price
per share of Common Stock on the date in question, as such price is reported by the National Association of Securities Dealers on the Nasdaq National Market and published in The Wall Street Journal. If there is no closing selling price for
the Common Stock on the date in question, then the Fair Market Value shall be the closing selling price on the last preceding date for which such quotation exists. 
  

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 (ii) If the Common Stock is at the time listed on the New York Stock Exchange or American
Stock Exchange, then the Fair Market Value shall be the closing selling price per share of Common Stock on the date in question on the stock exchange determined by the Plan Administrator to be the primary market for the Common Stock, as such price
is officially quoted in the composite tape of transactions on such exchange and published in The Wall Street Journal. If there is no closing selling price for the Common Stock on the date in question, then the Fair Market Value shall be the
closing selling price on the last preceding date for which such quotation exists. 
  
 (iii) For purposes of the initial Offering Period that begins at the Effective Time, the Fair Market Value shall be deemed to be equal to
the price per share at which the Common Stock is sold in the initial public offering pursuant to the Underwriting Agreement. 
  
 (l) “1933 Act” shall mean the Securities Act of 1933, as amended. 
  
 (m) “Offering Period” shall mean the period during which shares of Common Stock shall be offered for
purchase under the Plan as described in Section 5. 
  
 (n)
“Participant” shall mean any Eligible Employee of a Participating Employer who is actively participating in the Plan. 
  
 (o) “Participating Employer” shall mean the Company and such Company Affiliates as may be authorized from time to time by the Board to
extend the benefits of the Plan to their Eligible Employees. The Participating Employers in the Plan are listed in the attached Schedule A. 
  
 (p) “Plan” shall mean the Auxilium Pharmaceuticals, Inc. 2004 Employee Stock Purchase Plan, as set forth in this document, and as amended
from time to time. 
  
 (q) “Plan Administrator”
shall mean the committee of two or more Board members appointed by the Board to administer the Plan or such other committee as may be appointed by the Board to administer the Plan. 
  
 (r) “Purchase Date” shall mean the last business day of each Purchase Interval. The initial Purchase Date
shall be November 15, 2004. 
  
 (s) “Purchase
Interval” shall mean each successive six-month period (or other period designated by the Plan Administrator) within a particular Offering Period, at the end of which purchased shares of Common Stock shall be purchased on behalf of each
Participant. 
  
 (t) “Underwriting Agreement”
shall mean the agreement between the Company and the underwriters managing the initial public offering of the Common Stock. 
  

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 3. ADMINISTRATION OF THE PLAN 
  
 The Plan Administrator shall have full discretionary authority to interpret and construe any provision of the Plan and to
adopt such rules and regulations for administering the Plan as it may deem necessary in order to comply with the requirements of Code section 423. Decisions of the Plan Administrator shall be final and binding on all parties having an interest in
the Plan. As a condition of participating in the Plan, all Participants must acknowledge, in writing or by completing the enrollment forms to participate in the Plan, that all decisions and determinations of the Plan Administrator shall be final and
binding on the Participant, his beneficiaries and any other person having or claiming an interest under the Plan on behalf of the Participant. 
  
 4. STOCK SUBJECT TO PLAN 
  
 (a) Number of Shares. Subject to adjustment as described below, the aggregate number of shares of common stock of the Company (“Company
Stock”) may be issued or transferred under the Plan is 1,000,000 shares. The stock purchasable under the Plan shall be shares of authorized but unissued or reacquired Common Stock, including shares of Common Stock purchased on the open market.

  
 (b) Adjustment. If any change is made to the Common
Stock by reason of any stock split, stock dividend, recapitalization, combination of shares, exchange of shares or other change affecting the outstanding Common Stock as a class without the Company’s receipt of consideration, the Plan
Administrator may make appropriate adjustments to (i) the maximum number and class of securities issuable under the Plan, (ii) the maximum number and class of securities purchasable per Participant on any Purchase Date, (iii) the maximum number and
class of securities purchasable in total by all Participants on any Purchase Date, and (iv) the number and class of securities and the price per share in effect under each outstanding purchase right, in order to prevent the dilution or enlargement
of benefits thereunder. 
  
 5. OFFERING PERIODS 

 
 (a) Limitations. Shares of Common Stock shall be offered for
purchase under the Plan through a series of overlapping Offering Periods until such time as (i) the maximum number of shares of Common Stock available for issuance under the Plan shall have been purchased or (ii) the Plan shall have been sooner
terminated. 
  
 (b) Duration of Offering Period. Each
Offering Period shall be of such duration (not to exceed 24 months) as shall be determined by the Plan Administrator prior to the beginning of such Offering Period. Unless the Plan Administrator determines otherwise before the beginning of the
Offering Period, Offering Periods shall commence at six-month intervals on each May 16 and November 16 (or the next business day, if such date is not a business day) over the term of the Plan, and each Offering Period shall last for 24 months,
ending on May 15 or November 15, as the case may be (or the next business day, if such date is not a business day). Accordingly, two separate Offering Periods shall commence in each calendar year during which the Plan remains in existence. However,
the initial Offering Period shall commence at the Effective Time and terminate on May 15, 2006. 
  

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 (c) Purchase Intervals. Each Offering Period shall consist of a series of one or more successive
Purchase Intervals. Unless the Plan Administrator determines otherwise, Purchase Intervals shall run from May 16 to November 15 and from November 16 to May 15 (or the next business day, if the designated date is not a business day). However, the
first Purchase Interval in effect under the initial Offering Period shall commence at the Effective Time and terminate on November 15, 2004. 
  
 (d) Plan Administrator Discretion. Notwithstanding the foregoing, the Plan Administrator may establish shorter Offering Periods or different
(shorter or longer) Purchase Intervals, before the beginning of the applicable Offering Period, as the Plan Administrator deems appropriate. 
  
 (e) Transfer from One Offering Period to Another. If the Fair Market Value per share of Common Stock on any Purchase Date within a particular
Offering Period is less than the Fair Market Value per share of Common Stock on the start date of that Offering Period, then immediately after the purchase of shares of Common Stock on the Purchase Date, the Eligible Employees participating in such
Offering Period shall be transferred from that Offering Period and automatically enrolled in the next Offering Period commencing after such Purchase Date. 
  
 6. ELIGIBILITY 
  
 (a) Commencement of Participation. Each individual who is an Eligible Employee on the start date of any Offering Period under the Plan may enter
that Offering Period on such start date. However, an Eligible Employee may participate in only one Offering Period at a time. For the initial Offering Period commencing at the Effective Time, each individual who is an Eligible Employee at that time
shall automatically be enrolled as a Participant with a contribution rate equal to 10% of the Eligible Employee’s Compensation. 
  
 (b) Limitation on Participation. Under no circumstances shall purchase rights be granted under the Plan to any Eligible Employee if such individual
would, immediately after the grant, own (within the meaning of section 424(d) of the Code) or hold outstanding options or other rights to purchase, stock possessing 5% or more of the total combined voting power or value of all classes of stock of
the Company or any Company Affiliate. 
  
 (c) Enrollment
Forms. Except as otherwise provided in Sections 5(d) and 6(a) above, in order to participate in the Plan for a particular Offering Period, an Eligible Employee must complete an enrollment form prescribed by the Plan Administrator (including a
stock purchase agreement and a payroll deduction authorization) and file such forms with the Plan Administrator (or its designate) at such time on or before the beginning of that Offering Period, as determined by the Plan Administrator. 

 

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 7. PAYROLL DEDUCTIONS 
  
 (a) Elections. The payroll deduction authorized by the Participant for purposes of acquiring shares of Common Stock
during an Offering Period may be any multiple of 1% of the Compensation paid to the Participant during each Purchase Interval within that Offering Period, up to a maximum of 10% of Compensation. The deduction rate so authorized shall continue in
effect throughout the Offering Period, except to the extent such rate is changed in accordance with the following guidelines: 
  
 (i) The Participant may, at any time during the Offering Period, reduce his rate of payroll deduction (or, to the extent applicable, the
percentage of Compensation to serve as his lump sum contribution for the initial Purchase Interval of the first Offering Period, as described in Section 7(c)) to become effective as soon as possible after filing the appropriate form with the Plan
Administrator. The Participant may not, however, effect more than one such reduction per Purchase Interval. 
  
 (ii) Prior to the commencement of any new Purchase Interval within the Offering Period, a Participant may increase the rate of his payroll
deduction by filing the appropriate form with the Plan Administrator. The new rate (which may not exceed the 10% of Compensation maximum) shall become effective on the start date of the first Purchase Interval following the filing of such form.

  
 (b) Commencement. Payroll deductions shall begin on the
first pay day as of which commencement is administratively feasible following the beginning of the Offering Period and shall (unless sooner terminated by the Participant) continue through the pay day ending with or immediately prior to the last day
of that Offering Period. The amounts so collected shall be credited to a book account established on the Company’s records for the Participant, but no interest shall be paid on the balance from time to time outstanding in such account. The
amounts collected from the Participant shall not be required to be held in any segregated account or trust fund and may be commingled with the general assets of the Company and used for general corporate purposes. 
  
 (c) Special Rule for Initial Purchase Interval. For the initial
Purchase Interval of the first Offering Period under the Plan, no payroll deductions shall be required of the Participant until such time as the Participant affirmatively elects to commence such payroll deductions following his receipt of the 1933
Act prospectus for the Plan. In the absence of such payroll deductions, if the Participant elects to have shares of Common Stock purchased on his behalf on the Purchase Date for that initial Purchase Interval, the Participant will be required to
contribute the applicable percentage of his Compensation to the Plan in a lump sum payment immediately prior to the close of that Purchase Interval. 
  
 (d) Cessation of Payroll Deductions. Payroll deductions shall automatically cease upon the termination of the Participant’s purchase right in
accordance with the Plan. 
  

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 (e) No Requirement to Purchase. The Participant’s acquisition of Common Stock under the Plan
on any Purchase Date shall neither limit nor require the Participant’s acquisition of Common Stock on any subsequent Purchase Date, whether within the same or a different Offering Period. 
  
 8. PURCHASE RIGHTS 
  
 (a) Grant of Purchase Rights. A Participant shall be granted a
separate purchase right for each Offering Period in which he is enrolled. The purchase right shall be granted on the first day of the Offering Period and shall provide the Participant with the right to purchase shares of Common Stock, in a series of
successive installments during that Offering Period, upon the terms set forth below. The Participant shall execute a stock purchase agreement embodying such terms and such other provisions (not inconsistent with the Plan) as the Plan Administrator
may deem advisable. 
  
 (b) Exercise of the Purchase
Right. Each purchase right shall be automatically exercised in installments on each successive Purchase Date within the Offering Period, and shares of Common Stock shall accordingly be purchased on behalf of each Participant on each such
Purchase Date. The purchase shall be effected by applying the Participant’s payroll deductions (or, to the extent applicable, his lump sum contribution) for the Purchase Interval ending on the Purchase Date to the purchase of whole shares of
Common Stock at the purchase price in effect for the Participant for that Purchase Date. 
  
 (c) Purchase Price. Unless the Plan Administrator determines otherwise prior to the beginning of the Offering Period, the purchase price per share at which Common Stock will be purchased on the
Participant’s behalf on each Purchase Date within the Offering Period in which he is enrolled shall be equal to 85% of the lower of (i) the Fair Market Value per share of Common Stock on the first day of that Offering Period or (ii) the Fair
Market Value per share of Common Stock on the Purchase Date. 
  
 (d) Number of Purchasable Shares. The number of shares of Common Stock purchasable by a Participant on each Purchase Date during the particular Offering Period in which he is enrolled shall be the number of whole shares obtained by
dividing the amount collected from the Participant through payroll deductions during the Purchase Interval ending with that Purchase Date (or, to the extent applicable, his lump sum contribution for that Purchase Interval) by the purchase price in
effect for the Participant for that Purchase Date. However, the maximum number of shares of Common Stock purchasable per Participant on any one Purchase Date shall not exceed 40,000 shares, subject to adjustment as described in Section 4(b). In
addition, the maximum number of shares of Common Stock purchasable in total by all Participants in the Plan on any Purchase Date shall not exceed 400,000 shares, subject to adjustment as described in Section 4(b). The Plan Administrator shall have
the discretionary authority, exercisable prior to the start of any Offering Period, to increase or decrease the limitations to be in effect for the number of shares purchasable per Participant and in total by all Participants on each Purchase Date
that occurs during the Offering Period. 
  

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 (e) Excess Payroll Deductions. Any payroll deductions that are not applied to the purchase of
shares of Common Stock on any Purchase Date because they are not sufficient to purchase a whole share of Common Stock shall be held for the purchase of Common Stock on the next Purchase Date. However, any payroll deductions not applied to the
purchase of Common Stock by reason of the limitation on the maximum number of shares purchasable per Participant or in total by all Participants on the Purchase Date shall be promptly refunded. 
  
 (f) Suspension of Payroll Deductions. In the event that a Participant
is, by reason of the accrual limitations in Article 9, precluded from purchasing additional shares of Common Stock on one or more Purchase Dates during an Offering Period, then no further payroll deductions shall be collected from such Participant
with respect to those Purchase Dates. The suspension of such deductions shall not terminate the Participant’s purchase right for the Offering Period in which he is enrolled, and payroll deductions shall automatically resume on behalf of such
Participant when he is again able to purchase shares during that Offering Period in compliance with the accrual limitations of Article 9. 
  
 (g) Withdrawal from Offering Period. The following provisions shall govern the Participant’s withdrawal from an Offering Period: 

 
 (i) A Participant may withdraw from the Offering Period
in which he is enrolled at any time prior to the next scheduled Purchase Date by filing the appropriate form with the Plan Administrator (or its designee), and no further payroll deductions shall be collected from the Participant with respect to
that Offering Period. Any payroll deductions collected during the Purchase Interval in which such withdrawal occurs shall, at the Participant’s election, be immediately refunded or held for the purchase of shares on the next Purchase Date. If
no such election is made at the time of such withdrawal, then the payroll deductions collected from the Participant during the Purchase Interval in which such withdrawal occurs shall be refunded as soon as possible. 
  
 (ii) The Participant’s withdrawal from an Offering
Period shall be irrevocable, and the Participant may not subsequently rejoin that Offering Period at a later date. In order to resume participation in any subsequent Offering Period, the Participant must re-enroll in the Plan (by making a timely
filing of the prescribed enrollment forms) on or before the beginning of that Offering Period. 
  
 (h) Termination of Purchase Right. If a Participant ceases to be an Eligible Employee for any reason (including death, disability or change in status) while his purchase right remains outstanding, the
Participant’s purchase right shall immediately terminate, and all of the Participant’s payroll deductions for the Purchase Interval in which the purchase right so terminates shall be immediately refunded to the Participant. 
  
 (i) Change of Control. Immediately prior to the effective date of any
Change of Control, each outstanding purchase right shall automatically be exercised by applying the payroll deductions of each Participant for the Purchase Interval in which the Change of Control occurs to the purchase of whole shares of Common
Stock at a purchase price per share equal to (unless the 
  

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 Plan Administrator determines otherwise prior to the beginning of the particular Offering Period) 85% of the lower of (i)
the Fair Market Value per share of Common Stock on the first day of the Offering Period in which such Participant is enrolled at the time of the Change of Control or (ii) the Fair Market Value per share of Common Stock immediately prior to the
effective date of the Change of Control. The applicable limitation on the number of shares of Common Stock purchasable per Participant shall continue to apply to any such purchase, but not the limitation applicable to the maximum number of shares of
Common Stock purchasable in total by all Participants on any one Purchase Date. The Company shall use its best efforts to provide at least ten days’ prior written notice of the occurrence of any Change of Control, and Participants shall,
following the receipt of such notice, have the right to terminate their outstanding purchase rights prior to the effective date of the Change of Control. 
  
 (j) Proration of Purchase Rights. If the total number of shares of Common Stock to be purchased pursuant to outstanding purchase rights on any
particular date exceeds the number of shares then available for issuance under the Plan, the Plan Administrator shall make a pro-rata allocation of the available shares on a uniform and nondiscriminatory basis, and the payroll deductions of each
Participant, to the extent in excess of the aggregate purchase price payable for the Common Stock pro-rated to such Participant, shall be refunded. 
  
 (k) Assignability. A purchase right shall be exercisable only by the Participant and shall not be assignable or transferable by the Participant.

  
 (l) Stockholder Rights. A Participant shall have no
stockholder rights with respect to the shares subject to his outstanding purchase right until the shares are purchased on the Participant’s behalf in accordance with the provisions of the Plan and the Participant has become a holder of record
of the purchased shares. 
  
 9. ACCRUAL LIMITATIONS

  
 (a) Dollar Limitation. No Participant shall be
entitled to accrue rights to acquire Common Stock pursuant to any purchase right outstanding under this Plan if and to the extent that such accrual, when aggregated with (i) rights to purchase Common Stock accrued under any other purchase right
granted under this Plan and (ii) similar rights accrued under other employee stock purchase plans (within the meaning of Code section 423) of the Company or any Company Affiliate, would otherwise permit the Participant to purchase more than
$25,000.00 worth of stock of the Company or any Company Affiliate (determined on the basis of the Fair Market Value per share on the date or dates such rights are granted) for each calendar year in which such rights are at any time outstanding.

  
 (b) Application of Dollar Limitation. For purposes of
applying such accrual limitations to the purchase rights granted under the Plan, the following provisions shall apply: 
  
 (i) The right to acquire Common Stock under each outstanding purchase right shall accrue in a series of installments on each successive
Purchase Date during the Offering Period in which such right remains outstanding. 
  

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 (ii) No right to acquire Common Stock under any outstanding purchase right shall accrue
to the extent the Participant has already accrued in the same calendar year the right to acquire Common Stock under one or more other purchase rights at a rate equal to $25,000 worth of Common Stock (determined on the basis of the Fair Market Value
per share on the date or dates of grant) for each calendar year in which such rights were at any time outstanding. 
  
 (c) Refund. If by reason of such accrual limitations, any purchase right of a Participant does not accrue for a particular Purchase Interval, then
the payroll deductions that the Participant made during that Purchase Interval with respect to such purchase right shall be promptly refunded. 
  
 (d) Conflict. In the event there is any conflict between the provisions of this Article and one or more provisions of the Plan or any instrument
issued thereunder, the provisions of this Article shall be controlling. 
  
 10. EFFECTIVE DATE AND TERM OF THE PLAN 
  
 (a)
Effective Date. The Plan was adopted by the Board on June 9, 2004, and shall become effective at the Effective Time, provided that no purchase rights granted under the Plan shall be exercised, and no shares of Common Stock shall be issued
hereunder, until (i) the Plan shall have been approved by the stockholders of the Company and (ii) the Company shall have complied with all applicable requirements of the 1933 Act (including the registration of the shares of Common Stock issuable
under the Plan on a Form S-8 registration statement filed with the Securities and Exchange Commission), all applicable listing requirements of any stock exchange (or the Nasdaq National Market, if applicable) on which the Common Stock is listed for
trading and all other applicable requirements established by law or regulation have been met. In the event such stockholder approval is not obtained, or such compliance is not effected, within 12 months after the date on which the Plan is adopted by
the Board, the Plan shall terminate and have no further force or effect, and all sums collected from Participants during the initial Offering Period hereunder shall be refunded. 
  
 (b) Term. Unless sooner terminated by the Board, the Plan shall terminate upon the earliest of (i) June 8, 2014, (ii)
the date on which all shares available for issuance under the Plan shall have been sold pursuant to purchase rights exercised under the Plan or (iii) the date on which all purchase rights are exercised in connection with a Change of Control. No
further purchase rights shall be granted or exercised, and no further payroll deductions shall be collected, under the Plan following such termination. 
  
 11. AMENDMENT AND TERMINATION 
  
 (a) Amendment; Termination. The Board may alter, amend, suspend or terminate the Plan at any time, to become effective immediately following the
close of any Purchase Interval. However, the Board may amend or terminate the Plan immediately at any time if the Board deems such amendment or termination appropriate to reduce or eliminate compensation expense for financial reporting purposes,
compensation expense in connection with the Plan, should the financial accounting rules applicable to the Plan at the Effective Time be revised so as to require the Company to recognize compensation expense in connection with the Plan. 

 

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 (b) Stockholder Approval. In no event may the Board effect any of the following amendments or
revisions to the Plan without the approval of the Company’s stockholders: (i) increase the number of shares of Common Stock issuable under the Plan, except for permissible adjustments in the event of certain changes in the Company’s
capitalization, (ii) alter the purchase price formula so as to reduce the purchase price payable for the shares of Common Stock purchasable under the Plan or (iii) modify the eligibility requirements for participation in the Plan. 
  
 12. GENERAL PROVISIONS 
  
 (a) Expenses. All costs and expenses incurred in the administration
of the Plan shall be paid by the Company; however, each Plan Participant shall bear all costs and expenses incurred by such individual in the sale or other disposition of any shares purchased under the Plan. 
  
 (b) No Right of Employment. Nothing in the Plan shall confer upon the
Participant any right to continue in the employ of the Company or any Company Affiliate or interfere with or otherwise restrict in any way the rights of the Company (or any Company Affiliate) or of the Participant, which rights are hereby expressly
reserved by each, to terminate such person’s employment at any time for any reason, with or without cause. 
  
 (c) Governing Law. The validity, construction, interpretation and effect of the Plan shall be governed and construed by and determined in
accordance with the laws of the State of Delaware, without giving effect to the conflict of laws provisions thereof. 
  

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 Schedule A 
  

Participating Employers 
  
 Auxilium Pharmaceuticals, Inc. 
  

 A-1