exv10w2








 




    Exhibit 10.2



 




    ALEXZA
    PHARMACEUTICALS, INC.

    

    2005 EMPLOYEE STOCK PURCHASE PLAN

    

    Adopted by the Board: December 7, 2005

    Approved by the Stockholders: February 13, 2006

    Amended by the Compensation Committee of the
    Board: May 19,
    2011

    Approved by the
    Stockholders: July 28,
    2011



 


		
	
    1.  
	
    Purpose.




 



    (a) The purpose of this Plan is to provide a means by which
    Employees of the Company and certain designated Subsidiaries may
    be given an opportunity to purchase stock of the Company.



 



    (b) The Company, by means of the Plan, seeks to retain the
    services of its Employees, to secure and retain the services of
    new Employees, and to provide incentives for such persons to
    exert maximum efforts for the success of the Company.



 



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



 


		
	
    2.  
	
    Definitions.
    




 



    As used in the Plan and any Offering, unless otherwise
    specified, the following terms have the meanings set forth below:



 



    (a) “Affiliate” means (i) any
    corporation (other than the Company) in an unbroken chain of
    corporations ending with the Company, provided each corporation
    in the unbroken chain (other than the Company) owns, at the time
    of the determination, stock possessing fifty percent (50%) or
    more of the total combined voting power of all classes of stock
    in one of the other corporations in such chain, and
    (ii) any corporation (other than the Company) in an
    unbroken chain of corporations beginning with the Company,
    provided each corporation (other than the last corporation) in
    the unbroken chain owns, at the time of the determination, stock
    possessing fifty percent (50%) or more of the total combined
    voting power of all classes of stock in one of the other
    corporations in such chain. The Board shall have the authority
    to determine (i) the time or times at which the ownership
    tests are applied, and (ii) whether “Affiliate”
    includes entities other than corporations within the foregoing
    definition.



 



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



 



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



 



    (d) “Committee” means a committee of one
    (1) or more members of the Board to whom authority has been
    delegated by the Board in accordance with Section 3(c).



 



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



 



    (f) “Company” means Alexza
    Pharmaceuticals, Inc., a Delaware corporation.



 



    (g) “Contributions” means the payroll
    deductions, and other additional payments specifically provided
    for in the Offering, that a Participant contributes to fund the
    exercise of a Purchase Right. A Participant may make additional
    payments into his or her account, if specifically provided for
    in the Offering, and then only if the Participant has not
    already had the maximum permitted amount withheld through
    payroll deductions during the Offering.



 



    (h) “Corporate Transaction” means the
    occurrence, in a single transaction or in a series of related
    transactions, of any one or more of the following events:



 



    (i) a dissolution or liquidation of the Company;





    

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



 



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



 



    (iv) the consummation of a merger, consolidation or similar
    transaction following which the Company is the surviving
    corporation but the shares of Common Stock outstanding
    immediately preceding the merger, consolidation or similar
    transaction are converted or exchanged by virtue of the merger,
    consolidation or similar transaction into other property,
    whether in the form of securities, cash or otherwise.



 



    (v) the acquisition by any person, entity or group within
    the meaning of Section 13(d) or 14(d) of the Securities
    Exchange Act of 1934, as amended (the “Exchange
    Act”), or any comparable successor provisions
    (excluding any employee benefit plan, or related trust,
    sponsored or maintained by the Company or any Subsidiary) of the
    beneficial ownership (within the meaning of
    Rule 13d-3
    promulgated under the Exchange Act, or comparable successor
    rule) of securities of the Company representing at least fifty
    percent (50%) of the combined voting power entitled to vote in
    the election of directors; or



 



    (vi) the individuals who, as of the date of the adoption of
    this Plan, are members of the Board (the “Incumbent
    Board”) cease for any reason to constitute at least
    fifty percent (50%) of the Board, provided that if the
    election, or nomination for election by the Company’s
    stockholders, of a new director was approved by a vote of at
    least fifty percent (50%) of the members of the Board then
    comprising the Incumbent Board, such new director shall upon his
    or her election be considered a member of the Incumbent Board.



 



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



 



    (j) “Earnings” of an Employee with respect
    to any Offering has the meaning defined in such Offering.



 



    (k) “Eligible Employee” means an Employee
    who meets the requirements set forth in the Offering for
    eligibility to participate in the Offering, provided that such
    Employee also meets the requirements for eligibility to
    participate set forth in the Plan.



 



    (l) “Employee” means any person, including
    Officers and Directors, who is employed for purposes of
    Section 423(b)(4) of the Code by the Company or a
    Subsidiary. Neither service as a Director nor payment of a
    director’s fee shall be sufficient to make an individual an
    Employee of the Company or a Subsidiary.



 



    (m) “Employee Stock Purchase Plan” means a
    plan that grants Purchase Rights intended to be options issued
    under an “employee stock purchase plan,” as that term
    is defined in Section 423(b) of the Code.



 



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



 



    (o) “Fair Market Value” means the value of
    a security, as determined in good faith by the Board. If the
    security is listed on any established stock exchange or traded
    on the Nasdaq National Market or the Nasdaq SmallCap Market, the
    Fair Market Value of the security, unless otherwise determined
    by the Board, shall be the closing sales price (rounded up where
    necessary to the nearest whole cent) for such security (or the
    closing bid, if no sales were reported) as quoted on such
    exchange or market (or the exchange or market with the greatest
    volume of trading in the relevant security of the Company) on
    the relevant determination date (or if the relevant
    determination date does not fall on a Trading Day, the Trading
    Day prior to the relevant determination date), as reported in
    The Wall Street Journal or such other source as the Board
    deems reliable.



 



    (p) “Initial Offering” means the first
    Offering under this Plan.



 



    (q) “Non-Employee Director” means a
    Director who either (i) is not a current employee or
    officer of the Company or an Affiliate, does not receive
    compensation, either directly or indirectly, from the Company or
    an Affiliate for services rendered as a consultant or in any
    capacity other than as a Director (except for an amount as to
    which disclosure would not be required under Item 404(a) of
    Regulation S-K
    promulgated pursuant to the Securities Act
    (“Regulation S-K”)),
    does not possess an interest in any other transaction for which
    disclosure would be required under Item 404(a) of
    Regulation S-K,
    and is not engaged in a business relationship for which






    

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    disclosure would be required pursuant to Item 404(b) of
    Regulation S-K;
    or (ii) is otherwise considered a “non-employee
    director” for purposes of
    Rule 16b-3.



 



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



 



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



 



    (t) “Officer” means a person who is an
    officer of the Company within the meaning of Section 16 of
    the Exchange Act and the rules and regulations promulgated
    thereunder



 



    (u) “Outside Director” means a Director
    who either (i) is not a current employee of the Company or
    an “affiliated corporation” (within the meaning of
    Treasury Regulations promulgated under Section 162(m) of
    the Code), is not a former employee of the Company or an
    “affiliated corporation” who receives compensation for
    prior services (other than benefits under a tax-qualified
    retirement plan) during the taxable year, has not been an
    officer of the Company or an “affiliated corporation,”
    and does not receive remuneration from the Company or an
    “affiliated corporation,” either directly or
    indirectly, in any capacity other than as a Director, or
    (ii) is otherwise considered an “outside
    director” for purposes of Section 162(m) of the Code.



 



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



 



    (w) “Plan” means this Alexza
    Pharmaceuticals, Inc. 2005 Employee Stock Purchase Plan.



 



    (x) “Purchase Date” means one or more
    dates during an Offering established by the Board on which
    Purchase Rights shall be exercised and as of which purchases of
    shares of Common Stock shall be carried out in accordance with
    such Offering.



 



    (y) “Purchase Period” means a period of
    time specified within an Offering beginning on the Offering Date
    or on the next day following a Purchase Date within an Offering
    and ending on a Purchase Date. An Offering may consist of one or
    more Purchase Periods.



 



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



 



    (aa) “Related Corporation” means any
    parent corporation or subsidiary corporation, whether now or
    hereafter existing, as those terms are defined in
    Sections 424(e) and (f), respectively, of the Code.



 



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



 



    (cc) “Subsidiary” means any subsidiary
    corporation of the Company, whether now or hereafter existing,
    as such term is defined in Section 424(f) of the Code.



 



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



 


		
	
    3.  
	
    Administration.




 



    (a) The Plan shall be administered by the Board unless and
    until the Board delegates administration to a Committee, as
    provided in subparagraph 3(c). Whether or not the Board has
    delegated administration, the Board shall have the final power
    to determine all questions of policy and expediency that may
    arise in the administration of the Plan.



 



    (b) The Board shall have the power, subject to, and within
    the limitations of, the express provisions of the Plan:



 



    (i) To determine when and how Purchase Rights shall be
    granted and the provisions of each offering of such Purchase
    Rights (which need not be identical).



 



    (ii) To designate from time to time which Subsidiaries
    shall be eligible to participate in the Plan.





    

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    (iii) To construe and interpret the Plan and Purchase
    Rights granted under it, and to establish, amend and revoke
    rules and regulations for its administration. The Board, in the
    exercise of this power, may correct any defect, omission or
    inconsistency in the Plan, in a manner and to the extent it
    shall deem necessary or expedient to make the Plan fully
    effective.



 



    (iv) To amend the Plan as provided in paragraph 14.



 



    (v) Generally, to exercise such powers and to perform such
    acts as the Board deems necessary or expedient to promote the
    best interests of the Company and its Subsidiaries and to carry
    out the intent that the Plan be treated as an Employee Stock
    Purchase Plan.



 



    (c) The Board may delegate administration of the Plan to a
    Committee of the Board composed of two (2) or more members,
    all of the members of which Committee may be, in the discretion
    of the Board, Non-Employee Directors
    and/or
    Outside Directors. If administration is delegated to a
    Committee, the Committee shall have, in connection with the
    administration of the Plan, the powers theretofore possessed by
    the Board, including the power to delegate to a subcommittee of
    two (2) or more Outside Directors any of the administrative
    powers the Committee is authorized to exercise (and references
    in this Plan to the Board shall thereafter be to the Committee
    or such a subcommittee), subject, however, to such resolutions,
    not inconsistent with the provisions of the Plan, as may be
    adopted from time to time by the Board. The Board may abolish
    the Committee at any time and revest in the Board the
    administration of the Plan. If administration is delegated to a
    Committee, references to the Board in this Plan and in the
    Offering document shall thereafter be deemed to be to the Board
    or the Committee, as the case may be.



 



    (d) Any interpretation of the Plan by the Board of any
    decision made by it under the Plan shall be final and binding on
    all persons.



 


		
	
    4.  
	
    Shares Subject
    to the Plan.




 



    (a) Subject to the provisions of paragraph 13 relating
    to adjustments upon changes in stock, the stock that may be sold
    pursuant to Purchase Rights granted under the Plan (the
    “Reserved Shares”), shall not exceed in
    the aggregate one million seven hundred thirty-eight thousand
    one hundred and ninety-three (1,738,193) shares of Common Stock,
    which consists of an initial share reserve of five hundred
    thousand (500,000) shares of Common Stock plus one million two
    hundred thirty-eight thousand one hundred and ninety-three
    (1,238,193) shares of Common Stock added to the Plan pursuant to
    automatic share increases that occurred as of each
    January 1, beginning with January 1, 2007, and
    continuing through and including January 1,
    2011.  As

    of each January 1, beginning with January 1, 2012, and
    continuing through and including January 1, 2016, the
    number of Reserved Shares will be increased automatically by the
    lesser of (i) one percent (1.0%) of the total number of
    shares of Common Stock outstanding on December 31st of
    the preceding calendar year, or (ii) seven hundred fifty
    thousand (750,000) shares. Notwithstanding the foregoing, the
    Board may designate a smaller number of shares to be added to
    the share reserve as of a particular January 1. If any
    Purchase Right granted under the Plan shall for any reason
    terminate without having been exercised, the Common Stock not
    purchased under such Purchase Right shall again become available
    for the Plan.



 



    (b) The stock subject to the Plan may be unissued shares or
    reacquired shares, bought on the market or otherwise.



 


		
	
    5.  
	
    Grant
    of Rights; Offering.




 



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




    

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    conditions of an Offering shall be incorporated by reference
    into the Plan and treated as part of the Plan. The provisions of
    separate Offerings need not be identical, but each Offering
    shall include (through incorporation of the provisions of this
    Plan by reference in the document comprising the Offering or
    otherwise) the period during which the Offering shall be
    effective, which period shall not exceed twenty-seven
    (27) months beginning with the Offering Date, and the
    substance of the provisions contained in paragraphs 6
    through 9, inclusive.



 



    (b) If a Participant has more than one (1) Purchase
    Right outstanding under the Plan, unless he or she otherwise
    indicates in agreements or notices delivered hereunder, a
    Purchase Right with a lower exercise price (or an
    earlier-granted Purchase Right if two (2) Purchase Rights
    have identical exercise prices), will be exercised to the
    fullest possible extent before a Purchase Right with a higher
    exercise price (or a later-granted Purchase Right if two
    (2) Purchase Rights have identical exercise prices) will be
    exercised.



 


		
	
    6.  
	
    Eligibility.




 



    (a) Rights may be granted only to Employees of the Company
    or, as the Board or the Committee may designate as provided in
    subparagraph 3(b), to Employees of any Subsidiary of the
    Company. Except as provided in subparagraph 6(b), an Employee of
    the Company or any Subsidiary shall not be eligible to be
    granted Purchase Rights under the Plan unless, on the Offering
    Date, such Employee has been in the employ of the Company or any
    Subsidiary for such continuous period preceding such grant as
    the Board or the Committee may require, but in no event shall
    the required period of continuous employment be greater than two
    (2) years. In addition, unless otherwise determined by the
    Board or the Committee and set forth in the terms of the
    applicable Offering, no Employee of the Company or any
    Subsidiary shall be eligible to be granted Purchase Rights under
    the Plan unless, on the Offering Date, such Employee’s
    customary employment with the Company or such Subsidiary is for
    at least twenty (20) hours per week and at least five
    (5) months per calendar year.



 



    (b) The Board or the Committee may provide that each person
    who, during the course of an Offering, first becomes an Eligible
    Employee of the Company or designated Subsidiary will, on a date
    or dates specified in the Offering which coincides with the day
    on which such person becomes an Eligible Employee or a date
    which occurs thereafter, receive a Purchase Right under that
    Offering, which Purchase Right shall thereafter be deemed to be
    a part of that Offering. Such Purchase Right shall have the same
    characteristics as any Purchase Rights originally granted under
    that Offering, as described herein, except that:



 



    (i) the date on which such Purchase Right is granted shall
    be the “Offering Date” of such Purchase Right for all
    purposes, including determination of the exercise price of such
    Purchase Right;



 



    (ii) the period of the Offering with respect to such
    Purchase Right shall begin on its Offering Date and end
    coincident with the end of such Offering; and



 



    (iii) the Board or the Committee may provide that if such
    person first becomes an Eligible Employee within a specified
    period of time before the end of the Offering, he or she will
    not receive any Purchase Right under that Offering.



 



    (c) No Employee shall be eligible for the grant of any
    Purchase Rights under the Plan if, immediately after any such
    Purchase Rights are granted, such Employee owns stock possessing
    five percent (5%) or more of the total combined voting power or
    value of all classes of stock of the Company or of any Related
    Corporation. For purposes of this subparagraph 6(c), the rules
    of Section 424(d) of the Code shall apply in determining
    the stock ownership of any Employee, and stock which such
    Employee may purchase under all outstanding Purchase Rights and
    options (whether vested or unvested) shall be treated as stock
    owned by such Employee.



 



    (d) An Eligible Employee may be granted Purchase Rights
    under the Plan only if such Purchase Rights, together with any
    other Purchase Rights granted under Employee Stock Purchase
    Plans of the Company and any Related Corporations do not permit
    such Employee’s Purchase Rights or any Related Corporation
    to accrue at a rate which exceeds twenty five thousand dollars
    ($25,000) of Fair Market Value of such stock (determined at the
    time such Purchase Rights are granted) for each calendar year in
    which such Purchase Rights are outstanding at any time.



 



    (e) Officers of the Company and any designated Subsidiary
    shall be eligible to participate in Offerings under the Plan;
    provided, however, that the Board may provide in an Offering
    that certain Employees who are highly compensated Employees
    within the meaning of Section 423(b)(4)(D) of the Code
    shall not be eligible to participate.





    

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    7.  
	
    Rights;
    Purchase Price.




 



    (a) On each Offering Date, each Eligible Employee, pursuant
    to an Offering made under the Plan, shall be granted a Purchase
    Right to purchase up to the number of shares of Common Stock of
    the Company purchasable with a percentage designated by the
    Board or the Committee not exceeding twenty percent (20%) of
    such Employee’s Earnings during the period which begins on
    the Offering Date (or such later date as the Board or the
    Committee determines for a particular Offering) and ends on the
    date stated in the Offering, which date shall be no later than
    the end of the Offering. The Board or the Committee shall
    establish one (1) or more Purchase Dates during an Offering
    on which Purchase Rights granted under the Plan shall be
    exercised and purchases of Common Stock carried out in
    accordance with such Offering.



 



    (b) In connection with each Offering made under the Plan,
    the Board or the Committee may specify a maximum number of
    shares that may be purchased by any Participant as well as a
    maximum aggregate number of shares that may be purchased by all
    Participants pursuant to such Offering. In addition, in
    connection with each Offering that contains more than one
    (1) Purchase Date, the Board or the Committee may specify a
    maximum aggregate number of shares which may be purchased by all
    Participants on any given Purchase Date under the Offering. If
    the aggregate purchase of shares upon exercise of Purchase
    Rights granted under the Offering would exceed any such maximum
    aggregate number, the Board or the Committee shall make a pro
    rata allocation of the shares available in as nearly a uniform
    manner as shall be practicable and as it shall deem to be
    equitable.



 



    (c) The per share purchase price of stock acquired pursuant
    to Purchase Rights granted under the Plan shall be not less than
    the lesser of:



 



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



 



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



 


		
	
    8.  
	
    Participation;
    Withdrawal; Termination.




 



    (a) A Participant may elect to authorize payroll deductions
    pursuant to an Offering under the Plan by completing and
    delivering to the Company, within the time specified in the
    Offering, an enrollment form (in such form as the Company may
    provide). Each such enrollment form shall authorize an amount of
    Contributions expressed as a percentage of the submitting
    Participant’s Earnings during the Offering (not to exceed
    any maximum percentage or amount specified by the Board). Each
    Participant’s Contributions shall be credited to a
    bookkeeping account for such Participant under the Plan and
    shall be deposited with the general funds of the Company except
    where applicable law requires that Contributions be deposited
    with a third party. To the extent provided in the Offering, a
    Participant may begin such Contributions after the beginning of
    the Offering. To the extent provided in the Offering, a
    Participant may thereafter reduce (including to zero) or
    increase his or her Contributions.



 



    (b) During an Offering, a Participant may cease making
    Contributions and withdraw from the Offering by delivering to
    the Company a notice of withdrawal in such form as the Company
    may provide. Such withdrawal may be elected at any time prior to
    the end of the Offering, except as provided otherwise in the
    Offering. Upon such withdrawal from the Offering by a
    Participant, the Company shall distribute to such Participant
    all of his or her accumulated Contributions (reduced to the
    extent, if any, such deductions have been used to acquire shares
    of Common Stock for the Participant) under the Offering, and
    such Participant’s Purchase Rights in that Offering shall
    thereupon terminate. A Participant’s withdrawal from an
    Offering shall have no effect upon such Participant’s
    eligibility to participate in any other Offerings under the
    Plan, but such Participant shall be required to deliver a new
    enrollment form in order to participate in subsequent Offerings.



 



    (c) Rights granted pursuant to any Offering under the Plan
    shall terminate immediately upon a Participant ceasing to be an
    Employee for any reason or for no reason (subject to any
    post-employment participation period required by law) or other
    lack of eligibility. The Company shall distribute to such
    terminated or otherwise ineligible Employee all of his or her
    accumulated Contributions (reduced to the extent, if any, such
    deductions have been used to acquire shares of Common Stock for
    the terminated or otherwise ineligible Employee) under the
    Offering.





    

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    (d) Rights shall not be transferable by a Participant
    otherwise than by will or the laws of descent and distribution,
    or by a beneficiary designation as provided in Section 15
    and, during a Participant’s lifetime, shall be exercisable
    only by such Participant.



 



    (e) Unless otherwise specified in an Offering, the Company
    shall have no obligation to pay interest on Contributions.



 



    (f) Notwithstanding any other provision of this Plan, in
    connection with the Initial Offering, each Eligible Employee who
    is employed on the date the Company’s Common Stock is first
    offered to the public under a registration statement declared
    effective under the Securities Act automatically shall be
    enrolled in the Initial Offering, with a Purchase Right for that
    number of shares of Common Stock purchasable with twenty percent
    (20%) of the Eligible Employee’s Earnings, subject to any
    limitations set forth in the Offering. Following the filing of
    an effective registration statement pursuant to a
    Form S-8,
    such Eligible Employee shall be provided a certain period of
    time, as determined by the Company in its sole discretion,
    within which to elect to authorize payroll deductions for the
    purchase of shares during the Initial Offering (which may be for
    a percentage that is less than twenty percent (20%) of the
    Eligible Employee’s Earnings). If such Eligible Employee
    elects not to authorize such payroll deductions, the Eligible
    Employee instead may purchase shares of Common Stock under the
    Plan by delivering a single cash payment for the purchase of
    such shares to the Company prior to the ten (10) day period
    (or such shorter period of time as determined by the Company and
    communicated to Participants) immediately preceding the Purchase
    Date under the Initial Offering. If an Eligible Employee neither
    elects to authorize payroll deductions nor chooses to make a
    cash payment in accordance with the foregoing sentence, then the
    Eligible Employee shall not purchase any shares of Common Stock
    during the Initial Offering. After the end of the Initial
    Offering, in order to participate in any subsequent Offerings,
    an Eligible Employee must enroll and authorize payroll
    deductions prior to the commencement of the Offering;
    provided, however, that once an Eligible Employee enrolls
    in an Offering and authorizes payroll deductions (including in
    connection with the Initial Offering), the Eligible Employee
    automatically shall be enrolled for all subsequent Offerings
    until he or she elects to withdraw from an Offering, as provided
    in paragraph (b) above, or terminates his or her
    participation in the Plan, as provided in paragraph
    (c) above.



 


		
	
    9.  
	
    Exercise.




 



    (a) On each Purchase Date specified therefor in the
    relevant Offering, each Participant’s accumulated payroll
    deductions and other additional payments specifically provided
    for in the Offering (without any increase for interest) will be
    applied to the purchase of whole shares of stock of the Company,
    up to the maximum number of shares permitted pursuant to the
    terms of the Plan and the applicable Offering, at the purchase
    price specified in the Offering. No fractional shares shall be
    issued upon the exercise of Purchase Rights granted under the
    Plan. The amount, if any, of accumulated payroll deductions
    remaining in each Participant’s account after the purchase
    of shares which is less than the amount required to purchase one
    share of Common Stock on the final Purchase Date of an Offering
    shall be held in each such Participant’s account for the
    purchase of shares under the next Offering under the Plan,
    unless such Participant withdraws from such next Offering, as
    provided in subparagraph 8(b), or is no longer eligible to be
    granted Purchase Rights under the Plan, as provided in
    paragraph 6, in which case such amount shall be distributed
    to the Participant after such final Purchase Date, without
    interest. The amount, if any, of accumulated payroll deductions
    remaining in any Participant’s account after the purchase
    of shares which is equal to the amount required to purchase one
    or more whole shares of Common Stock on the final Purchase Date
    of an Offering shall be distributed in full to the Participant
    after such Purchase Date, without interest.



 



    (b) No Purchase Rights granted under the Plan may be
    exercised to any extent unless the shares to be issued upon such
    exercise under the Plan (including Purchase Rights granted
    thereunder) are covered by an effective registration statement
    pursuant to the Securities Act and the Plan is in material
    compliance with all applicable state, foreign and other
    securities and other laws applicable to the Plan. If on a
    Purchase Date in any Offering hereunder the Plan is not so
    registered or in such compliance, no Purchase Rights granted
    under the Plan or any Offering shall be exercised on such
    Purchase Date, and the Purchase Date shall be delayed until the
    Plan is subject to such an effective registration statement and
    such compliance, except that the Purchase Date shall not be
    delayed more than twelve (12) months and the Purchase Date
    shall in no event be more than twenty-seven (27) months
    from the Offering Date. If on the Purchase Date of any Offering
    hereunder, as delayed to the maximum extent permissible, the
    Plan is not registered and in such compliance, no Purchase
    Rights granted under the Plan or any Offering shall be






    

    7








 







    exercised and all payroll deductions accumulated during the
    Offering (reduced to the extent, if any, such deductions have
    been used to acquire stock) shall be distributed to the
    participants, without interest.



 


		
	
    10.  
	
    Covenants
    of the Company.




 



    (a) During the terms of the Purchase Rights granted under
    the Plan, the Company shall keep available at all times the
    number of shares of Common Stock required to satisfy such
    Purchase Rights, provided that the Company shall not be
    obligated to keep available shares in excess of the limits set
    forth or described in paragraphs 4 and 7 of the Plan and
    any corresponding or additional limits set forth in an Offering.



 



    (b) The Company shall seek to obtain from each federal,
    state, foreign or other regulatory commission or agency having
    jurisdiction over the Plan such authority as may be required to
    issue and sell shares of stock upon exercise of the Purchase
    Rights granted under the Plan. If, after reasonable efforts, the
    Company is unable to obtain from any such regulatory commission
    or agency the authority which counsel for the Company deems
    necessary for the lawful issuance and sale of stock under the
    Plan, the Company shall be relieved from any liability for
    failure to issue and sell stock upon exercise of such Purchase
    Rights unless and until such authority is obtained.



 


		
	
    11.  
	
    Use
    of Proceeds from Stock.




 



    Proceeds from the sale of stock pursuant to Purchase Rights
    granted under the Plan shall constitute general funds of the
    Company.



 


		
	
    12.  
	
    Rights
    as a Stockholder.




 



    A Participant shall not be deemed to be the holder of, or to
    have any of the rights of a holder with respect to, any shares
    subject to Purchase Rights granted under the Plan unless and
    until the participant’s shareholdings acquired upon
    exercise of Purchase Rights under the Plan are recorded in the
    books of the Company (or its transfer agent).



 


		
	
    13.  
	
    Adjustments
    upon Changes in Stock; Corporate Transactions.




 



    (a) If any change is made in the stock subject to the Plan,
    or subject to any Purchase Rights granted under the Plan
    (through merger, consolidation, reorganization,
    recapitalization, stock dividend, dividend in property other
    than cash, stock split, liquidating dividend, combination of
    shares, exchange of shares, change in corporate structure or
    other transaction not involving the receipt of consideration by
    the Company) (a “Capitalization
    Adjustment”), the Plan and outstanding Purchase
    Rights will be appropriately adjusted in the class(es) and
    maximum number of shares subject to the Plan and the class(es)
    and number of shares and price per share of stock subject to
    outstanding Purchase Rights. Such adjustments shall be made by
    the Board or the Committee, the determination of which shall be
    final, binding and conclusive. (The conversion of any
    convertible securities of the Company shall not be treated as a
    “transaction not involving the receipt of consideration by
    the Company.”)



 



    (b) In the event of a Corporate Transaction, then:
    (i) any surviving or acquiring corporation may continue or
    assume Purchase Rights outstanding under the Plan or may
    substitute similar rights (including a right to acquire the same
    consideration paid to stockholders in the Corporate Transaction)
    for those outstanding under the Plan, or (ii) if any
    surviving or acquiring corporation does not continue or assume
    such Purchase Rights or does not substitute similar rights for
    Purchase Rights outstanding under the Plan, then, the
    Participants’ accumulated Contributions shall be used to
    purchase shares of Common Stock within five (5) business
    days prior to the Corporate Transaction under the ongoing
    Offering, and the Participants’ Purchase Rights under the
    ongoing Offering shall terminate immediately after such purchase.



 


		
	
    14.  
	
    Amendment
    of the Plan or Offerings.




 



    (a) The Board at any time, and from time to time, may amend
    the Plan or the terms of one or more Offerings. However, except
    as provided in paragraph 13 relating to adjustments upon
    changes in stock, no amendment shall be effective unless
    approved by the stockholders of the Company within the time and
    to the extent stockholder approval is necessary for the Plan to
    satisfy the requirements of Section 423 of the Code or
    other applicable laws or regulations. It is expressly
    contemplated that the Board may amend the Plan or an Offering in
    any respect the Board deems necessary or advisable to provide
    Eligible Employees with the maximum benefits provided or to be
    provided under the provisions of the Code and the regulations
    promulgated thereunder relating to Employee Stock Purchase Plans
    and/or to
    bring the Plan
    and/or
    Purchase Rights granted under an Offering into compliance
    therewith.





    

    8








 







    (b) The Board may, in its sole discretion, submit any
    amendment to the Plan or an Offering for stockholder approval.



 



    (c) Purchase Rights and obligations under any Purchase
    Rights granted before amendment of the Plan or Offering shall
    not be impaired by any amendment of the Plan, except with the
    consent of the person to whom such Purchase Rights were granted,
    or except as necessary to comply with any laws or governmental
    regulations, or except as necessary to ensure that the Plan
    and/or
    Purchase Rights granted under an Offering comply with the
    requirements of Section 423 of the Code.



 


		
	
    15.  
	
    Designation
    of Beneficiary.




 



    (a) A Participant may file a written designation of a
    beneficiary who is to receive any shares and cash, if
    applicable, from the Participant’s account under the Plan
    in the event of such Participant’s death subsequent to the
    end of an Offering but prior to delivery to the participant of
    such shares and cash. In addition, a Participant may file a
    written designation of a beneficiary who is to receive any cash
    from the Participant’s account under the Plan in the event
    of such Participant’s death during an Offering.



 



    (b) Such designation of beneficiary may be changed by the
    Participant at any time by written notice in the form prescribed
    by the Company. In the event of the death of a Participant and
    in the absence of a beneficiary validly designated under the
    Plan who is living (or if an entity, is otherwise in existence)
    at the time of such Participant’s death, the Company shall
    deliver such shares
    and/or cash
    to the executor or administrator of the estate of the
    Participant, or if no such executor or administrator has been
    appointed (to the knowledge of the Company), the Company, in its
    sole discretion, may deliver such shares
    and/or cash
    to the spouse or to any one (1) or more dependents or
    relatives of the Participant, or if no spouse, dependent or
    relative is known to the Company, then to such other person as
    the Company may determine.



 


		
	
    16.  
	
    Termination
    or Suspension of the Plan.




 



    (a) The Board in its discretion, may suspend or terminate
    the Plan at any time. Unless sooner terminated, the Plan shall
    terminate on the day before the tenth (10th) anniversary of the
    date the Plan is adopted by the Board. The Plan shall
    automatically terminate if all the shares subject to the Plan
    pursuant to subparagraph 4(a) are issued. No Purchase Rights may
    be granted under the Plan while the Plan is suspended or after
    it is terminated.



 



    (b) Rights and obligations under any Purchase Rights
    granted while the Plan is in effect shall not be impaired by
    suspension or termination of the Plan, except as expressly
    provided in the Plan or with the consent of the person to whom
    such Purchase Rights were granted, or except as necessary to
    comply with any laws or governmental regulation, or except as
    necessary to ensure that the Plan
    and/or
    Purchase Rights granted under an Offering comply with the
    requirements of Section 423 of the Code.



 


		
	
    17.  
	
    Effective
    Date of Plan.




 



    The Plan shall become effective on the same day on which the
    Company’s registration statement under the Securities Act
    with respect to the initial public offering of shares of the
    Company’s Common Stock becomes effective (the
    “Effective Date”), but no Purchase
    Rights granted under the Plan shall be exercised unless and
    until the Plan had been approved by the stockholders of the
    Company within twelve (12) months before or after the date
    the Plan is adopted by the Board or the Committee, which date
    may be prior to the Effective Date.



 


		
	
    18.  
	
    Miscellaneous
    Provisions.




 



    (a) All questions concerning the construction, validity and
    interpretation of this Plan shall be governed by the law of the
    State of Delaware, without regard to such state’s conflict
    of laws rules.



 



    (b) The Plan and Offering do not constitute an employment
    contract. Nothing in the Plan or in the Offering shall in any
    way alter the at will nature of a Participant’s employment
    or be deemed to create in any way whatsoever any obligation on
    the part of any Participant to continue in the employ of the
    Company or a Related Corporation, or on the part of the Company
    or a Related Corporation to continue the employment of a
    Participant.





    

    9