exv10w1








 




    Exhibit 10.1




 


 




    ATMEL
    CORPORATION

    



 




    2010
    EMPLOYEE STOCK PURCHASE PLAN



 



    1.  Purpose.  The purpose of the Plan
    is to provide employees of the Company and its Designated
    Subsidiaries with an opportunity to purchase Common Stock
    through accumulated Contributions (as defined in
    Section 2(j) below). The Company’s intention is to
    have the Plan qualify as an “employee stock purchase
    plan” under Section 423 of the Code. The provisions of
    the Plan, accordingly, will be construed so as to extend and
    limit Plan participation in a uniform and nondiscriminatory
    basis consistent with the requirements of Section 423 of
    the Code.



 





    2.  Definitions.



 



    (a)  “Administrator” means the Board
    or any Committee designated by the Board to administer the Plan
    pursuant to Section 14.



 



    (b)  “Applicable Laws” means the
    requirements relating to the administration of equity-based
    awards under U.S. state corporate laws, U.S. federal
    and state securities laws, the Code, any stock exchange or
    quotation system on which the Common Stock is listed or quoted
    and the applicable laws of any foreign country or jurisdiction
    where options are, or will be, granted under the Plan.



 



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



 



    (d) “Change in Control” means the
    occurrence of any of the following events:



 



    (i) Change in Ownership of the Company.  A
    change in the ownership of the Company which occurs on the date
    that any one person, or more than one person acting as a group
    (“Person”), acquires ownership of the stock of
    the Company that, together with the stock held by such Person,
    constitutes more than fifty percent (50%) of the total voting
    power of the stock of the Company. For purposes of this clause
    (i), if any Person is considered to own more than fifty percent
    (50%) of the total voting power of the stock of the Company, the
    acquisition of additional stock by the same Person will not be
    considered a Change in Control; or



 



    (ii) Change in Effective Control of the
    Company.  If the Company has a class of securities
    registered pursuant to Section 12 of the Exchange Act, a
    change in the effective control of the Company which occurs on
    the date that a majority of members of the Board is replaced
    during any twelve (12)-month period by Directors whose
    appointment or election is not endorsed by a majority of the
    members of the Board prior to the date of the appointment or
    election. For purposes of this clause (ii), if any Person is
    considered to be in effective control of the Company, the
    acquisition of additional control of the Company by the same
    Person will not be considered a Change in Control; or



 



    (iii) Change in Ownership of a Substantial Portion of
    the Company’s Assets.  A change in the
    ownership of a substantial portion of the Company’s assets
    which occurs on the date that any Person acquires (or has
    acquired during the twelve (12)-month period ending on the date
    of the most recent acquisition by such person or persons) assets
    from the Company that have a total gross fair market value equal
    to or more than fifty percent (50%) of the total gross fair
    market value of all of the assets of the Company immediately
    prior to such acquisition or acquisitions. For purposes of this
    subsection (iii), gross fair market value means the value of the
    assets of the Company, or the value of the assets being disposed
    of, determined without regard to any liabilities associated with
    such assets.



 



    For purposes of this Section 2(d), persons will be
    considered to be acting as a group if they are owners of a
    corporation that enters into a merger, consolidation, purchase
    or acquisition of stock, or similar business transaction with
    the Company.



 



    Notwithstanding the foregoing, a transaction will not be deemed
    a Change in Control unless the transaction qualifies as a change
    in control event within the meaning of Code Section 409A,
    as it has been and may






    
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    be amended from time to time, and any proposed or final Treasury
    Regulations and Internal Revenue Service guidance that has been
    promulgated or may be promulgated thereunder from time to time.



 



    Further and for the avoidance of doubt, a transaction will not
    constitute a Change in Control if: (i) its sole purpose is
    to change the state of the Company’s incorporation, or
    (ii) its sole purpose is to create a holding company that
    will be owned in substantially the same proportions by the
    persons who held the Company’s securities immediately
    before such transaction.



 



    (e)  “Code” means the
    U.S. Internal Revenue Code of 1986, as amended. Reference
    to a specific section of the Code or Treasury Regulation
    thereunder will include such section or regulation, any valid
    regulation or other official applicable guidance promulgated
    under such section, and any comparable provision of any future
    legislation or regulation amending, supplementing or superseding
    such section or regulation.



 



    (f)  “Committee” means a committee of
    the Board appointed in accordance with Section 14 hereof.



 



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



 



    (h)  “Company” means Atmel
    Corporation, a Delaware corporation, or any successor thereto.



 



    (i)  “Compensation” means all regular
    gross earnings, including payments for overtime, shift premium,
    incentive compensation, incentive payments, bonuses, commissions
    and other compensation, excluding only one-time, non-recurring
    payments, such as relocation bonuses, as determined by the
    Administrator.



 



    (j)  “Contributions” means the
    payroll deductions and other additional payments that the
    Company may permit to be made by a Participant to fund the
    exercise of options granted pursuant to the Plan.



 



    (k)  “Designated Subsidiary” means
    any Subsidiary that has been designated by the Administrator
    from time to time in its sole discretion as eligible to
    participate in the Plan.



 



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



 



    (m)  “Eligible Employee” means any
    individual who is a common law employee of the Company or a
    Designated Subsidiary. For purposes of the Plan, the employment
    relationship will be treated as continuing intact while the
    individual is on sick leave or other leave of absence that the
    Employer approves. Where the period of leave exceeds three
    (3) months and the individual’s right to reemployment
    is not guaranteed either by statute or by contract, the
    employment relationship will be deemed to have terminated three
    (3) months and one (1) day following the commencement
    of such leave. The Administrator, in its discretion, from time
    to time may, prior to an Enrollment Date for a particular
    Offering and for all options to be granted on such Enrollment
    Date under such Offering, determine that the definition of
    Eligible Employee will or will not include an individual if he
    or she: (i) has not completed at least two (2) years
    of service since his or her last hire date (or such lesser
    period of time as may be determined by the Administrator in its
    discretion), or (ii) customarily works not more than twenty
    (20) hours per week (or such lesser period of time as may
    be determined by the Administrator in its discretion), provided
    that any exclusion described in clause (i) or (ii) of
    this sentence is applied with respect to each Offering in a
    uniform manner to all similarly-situated Employees who otherwise
    would be Eligible Employees for that Offering.



 



    (n)  “Employer” means the employer of
    the applicable Eligible Employee(s).



 



    (o)  “Enrollment Date” means the
    first Trading Day of each Offering Period.



 



    (p)  “Exchange Act” means the
    Securities Exchange Act of 1934, as amended, including the rules
    and regulations promulgated thereunder.



 



    (q)  “Exercise Date” means the last
    Trading Day of each Purchase Period.



 



    (r)  “Fair Market Value” means, as of
    any date and unless the Administrator determines otherwise, the
    closing price of the Common Stock on the NASDAQ Global Select
    Market, the NASDAQ Global Market or the NASDAQ Capital Market of
    The NASDAQ Stock Market (or on the last preceding Trading Day
    for






    
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    which such quotation exists if the date of determination is not
    a Trading Day), as reported in The Wall Street Journal or
    such other source as the Administrator deems reliable.



 



    (s)  “New Exercise Date” means a new
    Exercise Date if the Administrator shortens any Offering Period
    then in progress.



 



    (t)  “Offering” means an offer under
    the Plan of an option that may be exercised during an Offering
    Period as further described in Section 4. For purposes of
    this Plan, the Administrator may designate separate Offerings
    under the Plan (the terms of which need not be identical) in
    which Employees of one or more Employers will participate, even
    if the dates of the applicable Offering Periods of each such
    Offering are identical.



 



    (u)  “Offering Periods” means the
    periods of approximately six (6) months during which an
    option granted pursuant to the Plan may be exercised, commencing
    on the first Trading Day on or after February 15 and August 15
    of each year and terminating on the last Trading Day in the
    periods ending six (6) months later. The duration and
    timing of Offering Periods may be changed pursuant to
    Sections 4 and 20.



 



    (v)  “Parent” means a “parent
    corporation,” whether now or hereafter existing, as defined
    in Section 424(e) of the Code.



 



    (w)  “Participant” means an Eligible
    Employee that participates in the Plan.



 



    (x)  “Plan” means this Atmel
    Corporation 2010 Employee Stock Purchase Plan.



 



    (y)  “Purchase Period” means the
    approximately six (6) month period commencing after one
    Exercise Date and ending with the next Exercise Date, except
    that the first Purchase Period of any Offering Period will
    commence on the Enrollment Date and end with the next Exercise
    Date.



 



    (z)  “Purchase Price” means an amount
    equal to eighty-five percent (85%) of the Fair Market Value of a
    share of Common Stock on the Enrollment Date or on the Exercise
    Date, whichever is lower; provided however, that the Purchase
    Price may be determined for subsequent Offering Periods by the
    Administrator subject to compliance with Section 423 of the
    Code (or any successor rule or provision or any other applicable
    law, regulation or stock exchange rule) or pursuant to
    Section 20.



 



    (aa) “Subsidiary” means a “subsidiary
    corporation,” whether now or hereafter existing, as defined
    in Section 424(f) of the Code.



 



    (bb) “Trading Day” means a day on which
    the national stock exchange upon which the Common Stock is
    listed is open for trading.



 



    3.  Eligibility.



 



    (a)  Offering Periods.  Any Eligible
    Employee on a given Enrollment Date will be eligible to
    participate in the Plan, subject to the requirements of
    Section 5. Employees who are citizens or residents of a
    non-U.S. jurisdiction
    may be excluded from participation in the Plan or an Offering if
    the participation of such Employees is prohibited under the laws
    of the applicable jurisdiction or if complying with the laws of
    the applicable jurisdiction would cause the Plan or an Offering
    to violate Section 423 of the Code.



 



    (b)  Limitations.  Any provisions of
    the Plan to the contrary notwithstanding, no Eligible Employee
    will be granted an option under the Plan (i) to the extent
    that, immediately after the grant, such Eligible Employee (or
    any other person whose stock would be attributed to such
    Eligible Employee pursuant to Section 424(d) of the Code)
    would own capital stock of the Company or any Parent or
    Subsidiary of the Company
    and/or hold
    outstanding options to purchase such stock possessing five
    percent (5%) or more of the total combined voting power or value
    of all classes of the capital stock of the Company or of any
    Parent or Subsidiary of the Company, or (ii) to the extent
    that his or her rights to purchase stock under all employee
    stock purchase plans (as defined in Section 423 of the
    Code) of the Company or any Parent or Subsidiary of the Company
    accrues at a rate, which exceeds twenty-five thousand dollars
    ($25,000) worth of stock (determined at the Fair Market Value of
    the stock at the time such option is granted) for each calendar
    year in which such option is outstanding at any time, as
    determined in accordance with Section 423 of the Code and
    the regulations thereunder.





    
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    4.  Offering Periods.  The Plan will
    be implemented through Offering Periods with a new Offering
    Period commencing on the first Trading Day on or after February
    15 and August 15 each year, or on such other date as the
    Administrator will determine. The Administrator will have the
    power to change the duration of Offering Periods (including the
    commencement dates thereof) with respect to future offerings
    without stockholder approval if such change is announced prior
    to the scheduled beginning of the first Offering Period to be
    affected thereafter.



 



    5.  Participation.  An Eligible
    Employee may participate in the Plan by (i) submitting to
    the Company’s stock administration office (or its
    designee), on or before a date determined by the Administrator
    prior to an applicable Enrollment Date, a properly completed
    subscription agreement authorizing Contributions in the form
    provided by the Administrator for such purpose, or
    (ii) following an electronic or other enrollment procedure
    determined by the Administrator.



 



    6.  Contributions.



 



    (a)  At the time a Participant enrolls in the Plan
    pursuant to Section 5, he or she will elect to have payroll
    deductions made on each pay day or other Contributions (to the
    extent permitted by the Administrator) made during the Offering
    Period in an amount not exceeding ten percent (10%) and not less
    than two percent (2%) of the Compensation, which he or she
    receives on each pay day during the Offering Period; provided,
    however, that should a pay day occur on an Exercise Date or
    within eight (8) days prior thereto, a Participant will
    have any payroll deductions made on such day applied to his or
    her account under the subsequent Purchase Period or Offering
    Period. The Administrator, in its sole discretion, may permit
    Participants in a specified Offering to contribute amounts to
    the Plan through payment by cash, check or other means
    and/or
    change the maximum and minimum percentages of Compensation that
    may be contributed to the Plan for that Offering Period. A
    Participant’s subscription agreement will remain in effect
    for successive Offering Periods unless terminated as provided in
    Section 10 hereof.



 



    (b)  Payroll deductions for a Participant will
    commence on the first pay day following the Enrollment Date and
    will end on the last pay day prior to the Exercise Date of such
    Offering Period to which such authorization is applicable,
    except as provided in Section 6(a) and 6(d) and subject to
    earlier termination by the Participant as provided in
    Section 10.



 



    (c)  All Contributions made for a Participant will be
    credited to his or her account under the Plan and payroll
    deductions will be made in whole percentages only. A Participant
    may not make any additional payments into such account.



 



    (d)  A Participant may discontinue his or her
    participation in the Plan as provided in Section 10, or may
    increase or decrease the rate of his or her Contributions during
    the Offering Period by (i) properly completing and
    submitting to the Company’s stock administration office (or
    its designee), on or before a date determined by the
    Administrator prior to an applicable Exercise Date, a new
    subscription agreement authorizing the change in Contribution
    rate in the form provided by the Administrator for such purpose,
    or (ii) following an electronic or other procedure
    prescribed by the Administrator. If a Participant has not
    followed such procedures to change the rate of Contributions,
    the rate of his or her Contributions will continue at the
    originally elected rate throughout the Offering Period and
    future Offering Periods (unless terminated as provided in
    Section 10). Any elections under the Plan shall be
    effective only if made in accordance with such procedures as the
    Administrator may establish from time to time. For example, but
    not by way of limitation, the Administrator may, in its sole
    discretion, limit the nature
    and/or
    number of Contribution rate changes that may be made by
    Participants during any Offering Period, establish different
    deadlines for making elections
    and/or rules
    for when Contributions will be included in a particular Offering
    Period,
    and/or
    establish such other conditions or limitations as it deems
    appropriate for Plan administration.



 



    (e)  Notwithstanding the foregoing, to the extent
    necessary to comply with Section 423(b)(8) of the Code and
    Section 3(b), a Participant’s Contributions may be
    decreased to zero percent (0%) at any time during a Purchase
    Period. Subject to Section 423(b)(8) of the Code and
    Section 3(b) hereof, Contributions will recommence at the
    rate originally elected by the Participant effective as of the
    beginning of the first Purchase Period scheduled to end in the
    following calendar year, unless terminated by the Participant as
    provided in Section 10.



 



    (f)  At the time the option is exercised, in whole or
    in part, or at the time some or all of the Common Stock issued
    under the Plan is disposed of (or any other time that a taxable
    event related to the Plan






    
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    occurs), the Participant must make adequate provision for the
    Company’s or Employer’s federal, state, local or any
    other tax liability payable to any authority including taxes
    imposed by jurisdictions outside of the U.S., national
    insurance, social security or other tax withholding obligations,
    if any, which arise upon the exercise of the option or the
    disposition of the Common Stock (or any other time that a
    taxable event related to the Plan occurs). At any time, the
    Company or the Employer may, but will not be obligated to,
    withhold from the Participant’s Compensation the amount
    necessary for the Company or the Employer to meet applicable
    withholding obligations, including any withholding required to
    make available to the Company or the Employer any tax deductions
    or benefits attributable to sale or early disposition of Common
    Stock by the Eligible Employee. In addition, the Company or the
    Employer may, but will not be obligated to, withhold from the
    proceeds of the sale of Common Stock or any other method of
    withholding the Company or the Employer deems appropriate to the
    extent permitted by U.S. Treasury
    Regulation Section 1.423-2(f).



 



    7.  Grant of Option.  On the
    Enrollment Date of each Offering Period, each Eligible Employee
    participating in such Offering Period will be granted an option
    to purchase on each Exercise Date during such Offering Period
    (at the applicable Purchase Price) up to a number of shares of
    Common Stock determined by dividing such Eligible
    Employee’s Contributions accumulated prior to such Exercise
    Date and retained in the Eligible Employee’s account as of
    the Exercise Date by the applicable Purchase Price; provided
    that in no event will an Eligible Employee be permitted to
    purchase during each Offering Period more than fifteen thousand
    (15,000) shares of the Company’s Common Stock (or such
    other limit as the Administrator may establish from time to
    time). The Eligible Employee may accept the grant of such option
    with respect to an Offering Period by electing to participate in
    the Plan in accordance with the requirements of Section 5.
    The Administrator may, for future Offering Periods, increase or
    decrease, in its absolute discretion, the maximum number of
    shares of Common Stock that an Eligible Employee may purchase
    during each Purchase Period of an Offering Period. Exercise of
    the option will occur as provided in Section 8, unless the
    Participant has withdrawn pursuant to Section 10. The
    option will expire on the last day of the Offering Period.



 



    8.  Exercise of Option.



 



    (a)  Unless a Participant withdraws from the Plan as
    provided in Section 10, his or her option for the purchase
    of shares of Common Stock will be exercised automatically on the
    Exercise Date, and the maximum number of full shares subject to
    the option will be purchased for such Participant at the
    applicable Purchase Price with the accumulated Contributions
    from his or her account. No fractional shares of Common Stock
    will be purchased; any Contributions accumulated in a
    Participant’s account, which are not sufficient to purchase
    a full share will be returned to the Participant. Any other
    funds left over in a Participant’s account after the
    Exercise Date will be returned to the Participant. During a
    Participant’s lifetime, a Participant’s option to
    purchase shares hereunder is exercisable only by him or her.



 



    (b)  If the Administrator determines that, on a given
    Exercise Date, the number of shares of Common Stock with respect
    to which options are to be exercised may exceed (i) the
    number of shares of Common Stock that were available for sale
    under the Plan on the Enrollment Date of the applicable Offering
    Period, or (ii) the number of shares of Common Stock
    available for sale under the Plan on such Exercise Date, the
    Administrator may in its sole discretion (x) provide that
    the Company will make a pro rata allocation of the shares of
    Common Stock available for purchase on such Enrollment Date or
    Exercise Date, as applicable, in as uniform a manner as will be
    practicable and as it will determine in its sole discretion to
    be equitable among all Participants exercising options to
    purchase Common Stock on such Exercise Date, and continue all
    Offering Periods then in effect or (y) provide that the
    Company will make a pro rata allocation of the shares available
    for purchase on such Enrollment Date or Exercise Date, as
    applicable, in as uniform a manner as will be practicable and as
    it will determine in its sole discretion to be equitable among
    all participants exercising options to purchase Common Stock on
    such Exercise Date, and terminate any or all Offering Periods
    then in effect pursuant to Section 20. The Company may make
    a pro rata allocation of the shares available on the Enrollment
    Date of any applicable Offering Period pursuant to the preceding
    sentence, notwithstanding any authorization of additional shares
    for issuance under the Plan by the Company’s stockholders
    subsequent to such Enrollment Date.



 



    9.  Delivery.  As soon as reasonably
    practicable after each Exercise Date on which a purchase of
    shares of Common Stock occurs, the Company will arrange the
    delivery to each Participant of the shares purchased






    
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    upon exercise of his or her option in a form determined by the
    Administrator (in its sole discretion) and pursuant to rules
    established by the Administrator. The Company may permit or
    require that shares be deposited directly with a broker
    designated by the Company or to a designated agent of the
    Company, and the Company may utilize electronic or automated
    methods of share transfer. The Company may require that shares
    be retained with such broker or agent for a designated period of
    time and/or
    may establish other procedures to permit tracking of
    disqualifying dispositions of such shares. No Participant will
    have any voting, dividend, or other stockholder rights with
    respect to shares of Common Stock subject to any option granted
    under the Plan until such shares have been purchased and
    delivered to the Participant as provided in this Section 9.



 



    10.  Withdrawal.



 



    (a)  A Participant may withdraw all but not less than
    all the Contributions credited to his or her account and not yet
    used to exercise his or her option under the Plan by submitting
    a withdrawal notice in the form and manner and in accordance
    with such procedures as the Administrator may specify from time
    to time. All of the Participant’s Contributions credited to
    his or her account will be paid to such Participant promptly
    after the notice of withdrawal becomes effective and if timely,
    such Participant’s option for the Offering Period will be
    automatically terminated, and no further Contributions for the
    purchase of shares will be made for such Offering Period. If a
    Participant withdraws from an Offering Period, Contributions
    will not resume at the beginning of the succeeding Offering
    Period, unless the Participant re-enrolls in the Plan in
    accordance with the provisions of Section 5.



 



    (b)  A Participant’s withdrawal from an Offering
    Period will not have any effect upon his or her eligibility to
    participate in any similar plan that may hereafter be adopted by
    the Company or in succeeding Offering Periods that commence
    after the termination of the Offering Period from which the
    Participant withdraws.



 



    11. Termination of Employment.  Upon a
    Participant’s ceasing to be an Eligible Employee, for any
    reason, he or she will be deemed to have elected to withdraw
    from the Plan and the Contributions credited to such
    Participant’s account during the Offering Period but not
    yet used to purchase shares of Common Stock under the Plan will
    be returned to such Participant or, in the case of his or her
    death, to the person or persons entitled thereto under
    Section 15, and such Participant’s option will be
    automatically terminated.



 



    12. Interest.  No interest will accrue on
    the Contributions of a participant in the Plan, except as may be
    required by applicable law, as determined by the Company, and if
    so required by the laws of a particular jurisdiction, shall
    apply to all Participants in the relevant Offering except to the
    extent otherwise permitted by U.S. Treasury
    Regulation Section 1.423-2(f).



 



    13. Stock.



 



    (a)  Subject to adjustment upon changes in
    capitalization of the Company as provided in Section 19
    hereof, the maximum number of shares of Common Stock that will
    be made available for sale under the Plan will be
    25 million shares of Common Stock.



 



    (b)  Until the shares are issued (as evidenced by the
    appropriate entry on the books of the Company or of a duly
    authorized transfer agent of the Company), a Participant will
    only have the rights of an unsecured creditor with respect to
    such shares, and no right to vote or receive dividends or any
    other rights as a stockholder will exist with respect to such
    shares.



 



    (c)  Shares of Common Stock to be delivered to a
    Participant under the Plan will be registered in the name of the
    Participant.



 



    14. Administration.  The Plan will be
    administered by the Board or a Committee appointed by the Board,
    which Committee will be constituted to comply with Applicable
    Laws. The Administrator will have full and exclusive
    discretionary authority to construe, interpret and apply the
    terms of the Plan, to designate separate Offerings under the
    Plan, to determine eligibility, to adjudicate all disputed
    claims filed under the Plan and to establish such procedures
    that it deems necessary for the administration of the Plan
    (including, without limitation, to adopt such procedures and
    sub-plans as
    are necessary or appropriate to permit the participation in the
    Plan by employees who are foreign nationals or employed outside
    the U.S.). Unless otherwise determined by the Administrator, the
    Employees eligible to participate in each
    sub-plan
    will participate in a separate Offering.






    
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    Without limiting the generality of the foregoing, the
    Administrator is specifically authorized to adopt rules and
    procedures regarding eligibility to participate, the definition
    of Compensation, handling of Contributions, making and crediting
    of Contributions to the Plan (including, without limitation, in
    forms other than payroll deductions), establishment of bank or
    trust accounts to hold Contributions, payment of interest,
    making of elections and election procedures, conversion of local
    currency, obligations to pay payroll tax, determination of
    beneficiary designation requirements, withholding procedures and
    handling of stock certificates that vary with applicable local
    requirements. Every finding, decision and determination made by
    the Administrator will, to the full extent permitted by law, be
    final and binding upon all parties.



 



    15. Designation of Beneficiary.



 



    (a)  If permitted by the Administrator, a Participant
    may file a 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 an Exercise Date on which
    the option is exercised but prior to delivery to such
    Participant of such shares and cash. In addition, if permitted
    by the Administrator, a Participant may file a 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 exercise of the option. If a
    Participant is married and the designated beneficiary is not the
    spouse, spousal consent will be required for such designation to
    be effective.



 



    (b)  Such designation of beneficiary may be changed by
    the Participant at any time by notice in a form determined by
    the Administrator. 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 will 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
    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.



 



    (c)  All beneficiary designations will be in such form
    and manner as the Administrator may designate from time to time.
    Notwithstanding Sections 15(a) and (b) above, the
    Company
    and/or the
    Administrator may decide not to permit such designations by
    Participants in
    non-U.S. jurisdictions
    to the extent permitted by U.S. Treasury
    Regulation Section 1.423-2(f).



 



    16. Transferability.  Neither
    Contributions credited to a Participant’s account nor any
    rights with regard to the exercise of an option or to receive
    shares of Common Stock under the Plan may be assigned,
    transferred, pledged or otherwise disposed of in any way (other
    than by will, the laws of descent and distribution or as
    provided in Section 15 hereof) by the Participant. Any such
    attempt at assignment, transfer, pledge or other disposition
    will be without effect, except that the Company may treat such
    act as an election to withdraw funds from an Offering Period in
    accordance with Section 10 hereof.



 



    17. Use of Funds.  The Company may use all
    Contributions received or held by it under the Plan for any
    corporate purpose, and the Company will not be obligated to
    segregate such Contributions except under Offerings in which
    applicable local law requires that Contributions to the Plan by
    Participants be segregated from the Company’s general
    corporate funds
    and/or
    deposited with an independent third party for Participants in
    non-U.S. jurisdictions.
    Until shares of Common Stock are issued, Participants will only
    have the rights of an unsecured creditor with respect to such
    shares.



 



    18. Reports.  Individual accounts will be
    maintained for each Participant in the Plan. Statements of
    account will be given to participating Eligible Employees at
    least annually, which statements will set forth the amounts of
    Contributions, the Purchase Price, the number of shares of
    Common Stock purchased and the remaining cash balance, if any.



 



    19. Adjustments, Dissolution, Liquidation, Merger or
    Change in Control.



 



    (a)  Adjustments.  In the event that
    any dividend or other distribution (whether in the form of cash,
    Common Stock, other securities, or other property),
    recapitalization, stock split, reverse stock split,
    reorganization, merger, consolidation,
    split-up,
    spin-off, combination, repurchase, or exchange of Common Stock
    or other securities of the Company, or other change in the
    corporate structure of the Company affecting the Common Stock






    
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    occurs, the Administrator, in order to prevent dilution or
    enlargement of the benefits or potential benefits intended to be
    made available under the Plan, will, in such manner as it may
    deem equitable, adjust the number and class of Common Stock that
    may be delivered under the Plan, the Purchase Price per share
    and the number of shares of Common Stock covered by each option
    under the Plan that has not yet been exercised, and the
    numerical limits of Section 13.



 



    (b)  Dissolution or Liquidation.  In
    the event of the proposed dissolution or liquidation of the
    Company, any Offering Period then in progress will be shortened
    by setting a New Exercise Date, and will terminate immediately
    prior to the consummation of such proposed dissolution or
    liquidation, unless provided otherwise by the Administrator. The
    New Exercise Date will be before the date of the Company’s
    proposed dissolution or liquidation. The Administrator will
    notify each Participant in writing or electronically prior to
    the New Exercise Date, that the Exercise Date for the
    Participant’s option has been changed to the New Exercise
    Date and that the Participant’s option will be exercised
    automatically on the New Exercise Date, unless prior to such
    date the Participant has withdrawn from the Offering Period as
    provided in Section 10 hereof.



 



    (c)  Merger or Change in Control.  In
    the event of a merger or Change in Control, each outstanding
    option will be assumed or an equivalent option substituted by
    the successor corporation or a Parent or Subsidiary of the
    successor corporation. In the event that the successor
    corporation refuses to assume or substitute for the option, the
    Offering Period with respect to which such option relates will
    be shortened by setting a New Exercise Date on which such
    Offering Period shall end. The New Exercise Date will occur
    before the date of the Company’s proposed merger or Change
    in Control. The Administrator will notify each Participant in
    writing or electronically prior to the New Exercise Date, that
    the Exercise Date for the Participant’s option has been
    changed to the New Exercise Date and that the Participant’s
    option will be exercised automatically on the New Exercise Date,
    unless prior to such date the Participant has withdrawn from the
    Offering Period as provided in Section 10 hereof.



 



    20. Amendment or Termination.



 



    (a)  The Administrator, in its sole discretion, may
    amend, suspend, or terminate the Plan, or any part thereof, at
    any time and for any reason. If the Plan is terminated, the
    Administrator, in its discretion, may elect to terminate all
    outstanding Offering Periods either immediately or upon
    completion of the purchase of shares of Common Stock on the next
    Exercise Date (which may be sooner than originally scheduled, if
    determined by the Administrator in its discretion), or may elect
    to permit Offering Periods to expire in accordance with their
    terms (and subject to any adjustment pursuant to
    Section 19). If the Offering Periods are terminated prior
    to expiration, all amounts then credited to
    Participants’ accounts that have not been used to
    purchase shares of Common Stock will be returned to the
    Participants (without interest thereon, except as otherwise
    required under local laws, as further set forth in
    Section 12 hereof) as soon as administratively practicable.



 



    (b)  Without stockholder consent and without limiting
    Section 20(a), the Administrator will be entitled to change
    the Offering Periods, designate separate Offerings, limit the
    frequency
    and/or
    number of changes in the amount withheld during an Offering
    Period, establish the exchange ratio applicable to amounts
    withheld in a currency other than U.S. dollars, permit
    payroll withholding in excess of the amount designated by a
    Participant in order to adjust for delays or mistakes in the
    Company’s processing of properly completed withholding
    elections, establish reasonable waiting and adjustment periods
    and/or
    accounting and crediting procedures to ensure that amounts
    applied toward the purchase of Common Stock for each Participant
    properly correspond with Contribution amounts, and establish
    such other limitations or procedures as the Administrator
    determines in its sole discretion advisable that are consistent
    with the Plan.



 



    (c)  In the event the Administrator determines that
    the ongoing operation of the Plan may result in unfavorable
    financial accounting or other consequences, the Administrator
    may, in its discretion and, to the extent necessary or
    desirable, modify, amend or terminate the Plan to reduce or
    eliminate such accounting consequence including, but not limited
    to:



 



    (i)  amending the Plan to conform with the safe harbor
    definition under Statement of Financial Accounting Standards
    Codification Topic 718 (or any successor thereto), including
    with respect to an Offering Period underway at the time;



 



    (ii)  altering the Purchase Price for any Offering
    Period including an Offering Period underway at the time of the
    change in Purchase Price;





    
8








 







    (iii)  shortening any Offering Period by setting a New
    Exercise Date, including an Offering Period underway at the time
    of the Administrator action;



 



    (iv)  reducing the maximum percentage of Compensation
    a Participant may elect to set aside as Contributions; and



 



    (v)  reducing the number of shares a Participant may
    purchase during any Offering Period or Purchase Period.



 



    Such modifications or amendments will not require stockholder
    approval or the consent of any Plan Participant.



 



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



 



    22. Conditions Upon Issuance of
    Shares.  The Company will not be required to issue
    any shares of Common Stock under the Plan unless all the
    following conditions are satisfied: (a) the admission of
    such shares to listing on all stock exchanges on which such
    class of stock is then listed; (b) the completion of any
    registration or other qualification of such shares under any
    U.S. state or federal law or under the rulings or
    regulations of the Securities and Exchange Commission or any
    other governmental regulatory body, which the Administrator, in
    its absolute discretion, deems necessary or advisable;
    (c) the obtaining of any approval or other clearance from
    any U.S. state or federal governmental agency, which the
    Administrator, in its absolute discretion, determines to be
    necessary or advisable; and (d) the lapse of such
    reasonable period of time following the date of exercise as the
    Administrator may establish from time to time for reasons of
    administrative convenience. If the Administrator determines, in
    its absolute discretion, that one or more of the preceding
    conditions will not be satisfied, the Administrator may return
    all contributions (without interest except as may be required by
    law) and no shares will be purchased under the Plan.



 



    As a condition to the exercise of an option, the Company may
    require the person exercising such option to represent and
    warrant at the time of any such exercise that the shares are
    being purchased only for investment and without any present
    intention to sell or distribute such shares if, in the opinion
    of counsel for the Company, such a representation is required by
    any of the aforementioned applicable provisions of law.



 



    23. Code Section 409A.  The Plan is
    exempt from the application of Code Section 409A. In
    furtherance of the foregoing and notwithstanding any provision
    in the Plan to the contrary, if the Administrator determines
    that an option granted under the Plan may be subject to Code
    Section 409A or that any provision in the Plan would cause
    an option under the Plan to be subject to Code
    Section 409A, the Administrator may amend the terms of the
    Plan and/or
    of an outstanding option granted under the Plan, or take such
    other action the Administrator determines is necessary or
    appropriate, in each case, without the Participant’s
    consent, to exempt any outstanding option or future option that
    may be granted under the Plan from or to allow any such options
    to comply with Code Section 409A, but only to the extent
    any such amendments or action by the Administrator would not
    violate Code Section 409A. Notwithstanding the foregoing,
    the Company shall have no liability to a Participant or any
    other party if the option to purchase Common Stock under the
    Plan that is intended to be exempt from or compliant with Code
    Section 409A is not so exempt or compliant or for any
    action taken by the Administrator with respect thereto. The
    Company makes no representation that the option to purchase
    Common Stock under the Plan is compliant with Code
    Section 409A.



 



    24. Stockholder Approval.  The Plan will
    be subject to approval by the stockholders of the Company within
    twelve (12) months after the date the Plan is adopted by
    the Board. Such stockholder approval will be obtained in the
    manner and to the degree required under Applicable Laws.



 



    25. Governing Law.  The Plan shall be
    governed by, and construed in accordance with, the laws of the
    State of California (except its
    choice-of-law
    provisions).



 



    26. Severability.  If any provision of the
    Plan is or becomes or is deemed to be invalid, illegal, or
    unenforceable for any reason in any jurisdiction or as to any
    Participant, such invalidity, illegality or unenforceability
    shall not affect the remaining parts of the Plan, and the Plan
    shall be construed and enforced as to such jurisdiction or
    Participant as if the invalid, illegal or unenforceable
    provision had not been included.





    
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