Exhibit 10.1


 


NPSP PHARMACEUTICALS, INC.

2010 EMPLOYEE STOCK PURCHASE PLAN


 


The
following constitutes the provisions of the 2010 Employee Stock Purchase Plan
of NPS Pharmaceuticals, Inc.


 


1.                                       PURPOSE.


 


The purpose of the Plan is to provide employees of the
Company and its Affiliates with an opportunity to purchase Common Stock of the
Company. It is the intention of the Company that the Rights granted under the
Plan be considered options issued under an “Employee Stock Purchase Plan” as
that term is defined under Section 423(b) of the Code. The provisions
of the Plan shall, accordingly, be construed so as to extend and limit
participation in a manner consistent with the requirements of that section of
the Code.


 


2.                                       DEFINITIONS.


 


(a)          “AFFILIATE” as used in the Plan means any parent
corporation or subsidiary corporation of the Company, as those terms are
defined in Sections 424(e) and (f), respectively, of the Code.


 


(b)         “BOARD” shall mean the Compensation Committee of the
Board of Directors of the Company or, if the Board of Directors of the Company
so determines, either the Board of Directors of the Company or any other
committee of the Board of Directors named by the Board of Directors to
administer the Plan.


 


(c)          “CODE” shall mean the Internal Revenue Code of 1986,
as amended.


 


(d)         “COMMON STOCK” shall mean the Common Stock, $0.001 par
value, of the Company.


 


(e)          “COMPANY” shall mean NPS Pharmaceuticals, Inc., a
Delaware corporation.


 


(f)            “COMPENSATION” shall mean all base salary and overtime
payments.


 


(g)         “CONTINUOUS STATUS AS AN EMPLOYEE” shall mean the
absence of any interruption or termination of service as an employee of the
Company or any Affiliate. Continuous Status as an Employee shall not be
considered interrupted in the case of a leave of absence agreed to in writing
by the Company or any Affiliate, provided that such leave is for a period of
not more than 90 days or reemployment upon the expiration of such leave is
guaranteed by contract or statute.


 


(h)         “CONTRIBUTIONS” shall mean all amounts credited to the
account of a participant pursuant to the Plan.


 


(i)             “ENROLLMENT FORM” shall mean the enrollment form
described in paragraph 5(a).


 


(j)             “EXERCISE DATE” shall mean the last day of each
Offering Period of the Plan.


 


(k)          “FIRST OFFERING DATE” shall mean the first business
day of the initial Offering Period under the Plan.


 


(l)             “OFFERING DATE” shall mean the first business day of
an Offering Period under the Plan.


 


(m)       “OFFERING PERIOD” shall mean any of the six-month
periods commencing on each of April 1 and October 1 of each year (or
such other periods as may be determined by the Board which shall comply with Section 423(b)(7) of
the Code); provided that the initial offering period shall commence on April 1,
2010.


 


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(n)         “PLAN” shall mean this NPS Pharmaceuticals, Inc.
2010 Employee Stock Purchase Plan.


 


(o)         “RIGHT” shall mean a Right granted under paragraph 6
of this Plan to purchase shares of Common Stock.


 


3.                                       ELIGIBILITY.


 


(a)          Rights may be granted only to employees of the Company
or any Affiliate. An employee of the Company or any Affiliate shall be eligible
to participate in the Plan upon commencement of employment with the Company or
such Affiliate; provided, that no employee of the Company or any Affiliate
shall be eligible to be granted a Right under the Plan, unless, on the Offering
Date of such Offering Period, such employee’s customary employment with the
Company or such Affiliate is at least twenty (20) hours per week and at
least five (5) months per calendar year.


 


(b)         No employee shall be eligible for the grant of a Right
under the Plan if, immediately after any such grant, 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 Affiliate. For purposes
of this subparagraph 3(b), 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 rights and options
shall be treated as stock owned by such employee.


 


(c)          An eligible employee may be granted a Right under the
Plan only if such Right, together with any other options granted under “employee
stock purchase plans” of the Company and any Affiliates, as specified by Section 423(b)(8) of
the Code, does not permit such employee’s rights to purchase stock of the
Company or any Affiliate to accrue at a rate which exceeds twenty-five thousand
dollars ($25,000) of fair market value of such stock (determined at the time
such Rights are granted) for each calendar year in which such Rights are
outstanding at any time. Any Right granted under the Plan shall be deemed to be
modified to the extent necessary to satisfy this paragraph 3(c).


 


(d)         Officers of the Company shall be eligible to
participate in the Plan; provided, however, that the Board may provide in an
Offering Period 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.


 


4.                                       OFFERING PERIODS.


 


The Plan shall be implemented by a series of Offering
Periods, with a new Offering Period commencing on April 1 and October 1
of each year (or such other periods as may be determined by the Board which
shall comply with Section 423(b)(7) of the Code); provided that the
initial Offering Period shall commence on April 1, 2010. The Plan shall
continue until terminated in accordance with paragraph 17 or
paragraph 21 hereof. In addition, employees shall not be entitled to
enroll in the Plan or exercise any Rights granted under the Plan during any
period in which the Company has restricted the purchase or sale of its
securities by its employees.


 


5.                                       PARTICIPATION; CONTRIBUTIONS.


 


(a)          An eligible employee may become a participant
in the Plan by completing an enrollment form (“Enrollment Form”) provided by
the Company (which may be a form maintained by the Company on an internet
website) and submitting it to the Company in any manner designated by the
Board, prior to the applicable Offering Date, unless a later time for
submitting the Enrollment Form is set by the Board for all eligible
employees with respect to a given Offering Period. The Enrollment Form shall
set forth the percentage of the participant’s Compensation (which shall be a
whole percentage not less than 1% and not more than 15%) to be paid as
Contributions pursuant to 


 


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the
Plan. Once an employee becomes a participant in an Offering Period, such
employee will automatically participate in the Offering Period commencing
immediately following the last day of the current Offering Period unless the
employee withdraws or is deemed to withdraw from this Plan or terminates
further participation in the Offering Period as set forth in paragraph 8
below. Such participant is not required to submit any additional Enrollment
Forms in order to continue participation in this Plan.


 


(b)         Payroll deductions shall commence on the first payroll
following the Offering Date and shall end on the last payroll paid on or prior
to the Exercise Date of the Offering Period to which the Enrollment Form is
applicable, unless sooner terminated by the participant as provided in
paragraph 8. All payroll deductions made by a participant shall be credited
to such participant in an account under the Plan. A participant may not make
payments into such account.


 


(c)          A participant may discontinue his or her participation
in the Plan as provided in paragraph 8, or may change the rate of his or
her payroll deduction during an Offering Period by completing and filing with
the Company a new Enrollment Form, provided that the Board may, in its
discretion, impose reasonable and uniform restrictions on a participant’s
ability to change the rate of payroll deductions.  The change in rate
shall be effective no later than fifteen (15) days following the Company’s
receipt of the new Enrollment Form.  A participant may decrease or
increase the amount of his or her payroll deductions as of the beginning of an
Offering Period by completing and filing with the Company, at least fifteen
(15) days prior to the beginning of such Offering Period, a new Enrollment
Form.


 


(d)         Notwithstanding the foregoing, to the extent necessary
to comply with Section 423(b)(8) of the Code and paragraph 3(c) herein,
a participant’s payroll deductions may be decreased to 0% at such time during
any Offering Period which is scheduled to end during the current calendar year
that the aggregate of all payroll deductions accumulated with respect to such
Offering Period and any other Offering Period ending within the same calendar
year equals $21,250. Payroll deductions shall recommence at the rate provided
in such participant’s Enrollment Form at the beginning of the first
Offering Period which is scheduled to end in the following calendar year,
unless terminated by the participant as provided in paragraph 8.


 


6.                                       GRANT OF RIGHT.


 


(a)          On the Offering Date of each Offering Period, each
eligible employee participating in such Offering Period shall be granted a
Right to purchase on the Exercise Date of such Offering Period a number of
shares of Common Stock determined by dividing such employee’s Contributions
accumulated prior to such Exercise Date and retained in the participant’s
account as of the Exercise Date by 85% of the lesser of (i) the fair
market value of a share of the Common Stock on such Offering Date or (ii) the fair
market value of a share of the Common Stock on the Exercise Date; provided
however, that such purchase shall be subject to the limitations set forth in
paragraphs 3(b), 3(c), 3(d) and 10 hereof. Notwithstanding the
foregoing, in no event may the number of shares purchased by any employee
during an Offering Period exceed the number of shares of Common Stock having a
fair market value on the Offering Date of $25,000.  The fair market value of a share of the
Common Stock shall be determined as provided in paragraph 6(b) below.


 


(b)         The fair market value of the Common Stock on a given
date shall, unless otherwise required by any applicable provision of the Code
or the regulations issued thereunder, be determined by the Board in its
discretion; provided that (i) if the Common Stock is listed on a national
securities exchange in the United States (such as the Nasdaq Global Select
Market), the fair market value per share shall be the closing sales price on
such date as reported on the principal national securities exchange in the
United States on which the Common Stock is traded; or (ii) if not listed
on an exchange but publicly traded, the average of the closing bid and asked
prices on the date of determination as reported in The Wall Street Journal; or (iii) if none of the
foregoing is applicable, the fair market value per share shall be determined in
good faith by the Board in its discretion.


 


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7.                                       EXERCISE OF RIGHT.


 


(a)          Unless a participant withdraws from the Plan as
provided in paragraph 8, such participant’s Right to purchase shares of
Common Stock will be exercised automatically on the Exercise Date of the
Offering Period and the maximum number of full shares of Common Stock subject
to the Right will be purchased for such participant at the applicable purchase
price with the accumulated Contributions in such participant’s account. If a
fractional number of shares of Common Stock results, then such number shall be
rounded down to the next whole number and the excess Contributions shall be
carried forward to the next Exercise Date, unless such participant withdraws
the Contributions pursuant to paragraph 8(a) or is no longer eligible
to participate in the Plan, in which case such amount shall be distributed to
the participant without interest. The shares purchased upon exercise of a Right
hereunder shall be deemed to be transferred to the participant on the Exercise
Date. During a participant’s lifetime, a participant’s Right to purchase shares
hereunder is exercisable only by such participant. As promptly as practicable
after the Exercise Date of each Offering Period, the Company shall arrange the
delivery of shares to each participant by means of direct deposit into the
participant’s brokerage account.


 


(b)         Shares shall not be issued with respect to a Right
unless the exercise of such Right and the issuance and delivery of such shares
of Common Stock pursuant thereto shall comply with all applicable provisions of
law, domestic or foreign, including, without limitation, the Securities Act of
1933, as amended, the Securities Exchange Act of 1934, as amended, the rules and
regulations promulgated thereunder, and the requirements of any stock exchange
upon which the shares of Common Stock may then be listed, and shall be further
subject to the approval of counsel for the Company with respect to such
compliance. As a condition to the exercise of a Right, the Company may require
the person exercising such Right to represent and warrant at the time of any
such exercise that the shares of Common Stock are being purchased only for
investment and without any present intention to sell or distribute such shares
of Common Stock if, in the opinion of counsel for the Company, such a
representation is required by any of the aforementioned applicable provisions
of law.


 


(c)          Notwithstanding anything in the Plan to the contrary,
any shares of Common Stock acquired by a participant hereunder may not be
assigned, transferred, pledged or otherwise disposed of in any way by the
participant for a period of six months (or such other longer or shorter time
period (including 0 days) as may be established by the Board in its sole
discretion) following the date on which the participant acquired such shares as
a result of the exercise of such participant’s Right.  Each participant agrees, by entering the
Plan, to promptly give the Company notice of any disposition of shares of Common
Stock purchased under the Plan where such disposition occurs within
one year after the date of grant of the Right pursuant to which such
shares were purchased.


 


8.                                       WITHDRAWAL; TERMINATION OF EMPLOYMENT.


 


(a)          A participant may withdraw all but not less than all
the Contributions credited to his or her account under the Plan at any time at
least 15 days prior to the Exercise Date of the Offering Period by written
notice delivered to the Company either in physical or electronic form. All of
the participant’s Contributions credited to such participant’s account will be
paid to such participant promptly after receipt of such participant’s notice of
withdrawal and such participant’s Right for the current Offering Period will be
automatically terminated, and no further Contributions for the purchase of
shares of Common Stock will be made during the Offering Period.


 


(b)         Upon termination of the participant’s Continuous
Status as an Employee, prior to the Exercise Date of the Offering Period for
any reason, including retirement or death, the Contributions credited to such
participant’s account will be returned to such participant or, in the case of
his or her death, to the person or persons entitled thereto under
paragraph 12, and his or her Right will be automatically terminated.


 


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(c)          In the event an employee fails to remain in Continuous
Status as an Employee of the Company for at least 20 hours per week during
the Offering Period in which the employee is a participant, such participant
will be deemed to have elected to withdraw from the Plan and the Contributions
credited to such participant’s account will be returned to such participant and
the Right terminated.


 


(d)         A participant’s withdrawal from an Offering Period
will not have any effect upon his or her eligibility to participate in a
succeeding Offering Period or in any similar plan which may hereafter be
adopted by the Company; provided, that the Board may, in its discretion and
subject to compliance with Section 423 of the Code (or any successor rule or
provision or any applicable law or regulation), impose reasonable and uniform
restrictions on a participant’s ability to participate in succeeding Offering
Periods


 


9.                                       INTEREST.


 


No interest shall accrue on the Contributions of a
participant in the Plan.


 


10.                                 STOCK.


 


The maximum number of shares of Common Stock which
shall be made available for sale under the Plan shall be 500,000 shares subject
to adjustment upon changes in capitalization of the Company as provided in
paragraph 16. Shares sold under the Plan may be newly issued shares or
shares reacquired in private transactions or open market purchases, but all
shares sold under the Plan regardless of source shall be counted against the
500,000 share limitation. If the total number of shares of Common Stock which
would otherwise be subject to Rights granted pursuant to paragraph 6(a) hereof
on the Offering Date of an Offering Period exceeds the number of shares of
Common Stock then available under the Plan (after deduction of all shares of
Common Stock for which Rights have been exercised or are then outstanding), the
Company shall make a pro rata
allocation of the shares of Common Stock remaining available for grant in as
uniform a manner as shall be reasonably practicable and as it shall determine
to be equitable. Any amounts remaining in an employee’s account not applied to
the purchase of Common Stock pursuant to this paragraph 10 shall be
refunded on or promptly after the Exercise Date. In such event, the Company
shall give written notice of such reduction of the number of shares of Common
Stock subject to the Right to each employee affected thereby and shall
similarly reduce the rate of Contributions, if necessary.


 


11.                                 ADMINISTRATION.


 


The Board shall supervise and administer the Plan and
shall have full power to adopt, amend and rescind any rules deemed
desirable and appropriate for the administration of the Plan and not
inconsistent with the Plan, to construe and interpret the Plan, and to make all
other determinations necessary or advisable for the administration of the Plan.
All determinations of the Board pertaining to the interpretation, construction
or application of the Plan or any Right granted hereunder shall be final and
conclusive. No member of the Board shall be liable for any decision made or
action taken in good faith.


 


12.                                 DESIGNATION OF BENEFICIARY.


 


(a)          A participant may file a written designation of a
beneficiary who is to receive any shares of Common Stock and cash, if any, from
the participant’s account under the Plan in the event of such participant’s
death subsequent to the end of the Offering Period but prior to delivery of
such participant’s shares of Common Stock 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 prior to the Exercise Date of the Offering Period. If a participant is
married and the designated beneficiary is not the spouse, spousal consent shall
be required for such designation to be effective.


 


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


 


13.                                 TRANSFERABILITY.


 


Neither Contributions credited to a participant’s
account nor any rights with regard to the exercise of a Right or to receive
shares under the Plan may be assigned, transferred, pledged or otherwise
disposed of in any way other than by will, the laws of descent and distribution
or as provided in paragraph 12 hereof by the participant. Any such attempt
at assignment, transfer, pledge or other disposition shall be without effect,
except that the Company may treat such act as an election to withdraw
Contributions in accordance with paragraph 8.


 


14.                                 USE OF FUNDS.


 


All Contributions received or held by the Company
under the Plan may be used by the Company for any corporate purpose, and the
Company shall not be obligated to segregate such Contributions.


 


15.                                 REPORTS.


 


Individual accounts will be maintained for each
participant in the Plan. Statements of account will be given to participants,
which will report the amount of contributions, the per share purchase price,
the number of shares purchased and the remaining cash balance, if any.


 


16.                                 ADJUSTMENTS UPON CHANGES IN STOCK.


 


If any change is made in the shares of Common Stock
subject to the Plan or subject to any Right granted under the Plan (through
merger, consolidation, reorganization, recapitalization, stock dividend, stock
split, combination of shares, exchange of shares, or other change in capital
structure), appropriate adjustments shall be made by the Board as to the
maximum number of shares subject to the Plan and the number of shares and price
per share subject to outstanding Rights as shall be equitable to prevent
dilution or enlargement of a participant’s rights under any Right to purchase
Common Stock under the Plan. Any determination made by the Board hereunder
shall be final, binding and conclusive upon each participant.


 


17.                                 AMENDMENT OR TERMINATION.


 


The Board may at any time terminate or amend the Plan.
Except as provided in paragraph 16, no such termination may affect Rights
previously granted, nor may an amendment make any change in any Right therefore
granted which adversely affects the rights of any participant, in each case
except to comply with applicable law, stock exchange rules or accounting
rules. In addition, to the extent necessary to comply with Section 423 of
the Code (or any successor rule or provision or any applicable law or
regulation), the Company shall obtain stockholder approval in such a manner and
to such a degree as so required.


 


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18.                                 NOTICES.


 


All notices or other
communications by a participant to the Company under or in connection with the
Plan shall be deemed to have been duly given when received in the form
specified by the Company at the location, or by the person, designated by the
Company for the receipt thereof.


 


19.                                 RIGHT TO TERMINATE EMPLOYMENT.


 


Nothing in the Plan or in any agreement entered into
pursuant to the Plan shall confer upon any participant the right to continue in
the employment of the Company or any Affiliate, or affect any right which the
Company or any Affiliate may have to terminate the employment of such
participant.


 


20.                                 RIGHTS AS A STOCKHOLDER.


 


Neither the granting of a Right nor a deduction from
payroll shall constitute a participant the owner of shares covered by a Right.
No participant shall have any right as a stockholder unless and until a Right
has been exercised, and the shares of Common Stock underlying the Right have
been registered in the Company’s share register.


 


21.                                 TERM OF PLAN.


 


After this Plan is adopted by the Board, this Plan
will become effective on the date that is the First Offering Date. This Plan
shall be approved by the stockholders of the Company, in any manner permitted
by applicable law, within twelve (12) months before or after the date this
Plan is adopted by the Board. No purchase of shares pursuant to this Plan shall
occur prior to such stockholder approval. This Plan shall continue until the
earlier to occur of (a) termination of this Plan by the Board pursuant to
paragraph 17, (b) issuance of all of the shares of Common Stock
reserved for issuance under this Plan or (c) ten (10) years from the
adoption of this Plan by the Board.


 


22.                                 APPLICABLE LAW.


 


The validity, construction and effect of the Plan and
any rules and regulations relating to the Plan shall be determined in
accordance with the internal laws of the State of Delaware and any applicable United
States federal laws.


 


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