**Exhibit 10.34**

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**OMNIVISION TECHNOLOGIES, INC.**

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**2009 EMPLOYEE STOCK PURCHASE PLAN**

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# 1.             Purpose.  The purpose of the Plan is to provideemployees of the Company and its Designated Subsidiaries with an opportunity topurchase Common Stock through accumulated payroll deductions.  This Plan includes two components: a Code Section 423Plan Component and a Non-423 Plan Component. The Company’s intention is to have the Code Section 423 PlanComponent qualify as an “employee stock purchase plan” under Section 423of the Code, (although the Company makes no undertaking or representation tomaintain such qualification).  Theprovisions of the Code Section 423 Plan Component, accordingly, will beconstrued so as to extend and limit participation in a uniform and nondiscriminatorybasis consistent with the requirements of Section 423 of the Code.  In addition, this Plan authorizes the grantof options under the Non-423 Plan Component that do not qualify under Section 423of the Code, pursuant to rules, procedures or sub-plans adopted by theAdministrator that are designed to achieve tax, securities laws or otherobjectives for Eligible Employees and/or the Company.  Except as otherwise indicated, the Non-423Plan Component will operate and be administered in the same manner as the Code Section 423Plan Component.

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# 2.             Definitions.

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

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

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## (c)           “Board” means the Board ofDirectors of the Company.

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

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### (i)    Change in Ownership of the Company.  A change in the ownership of the Companywhich occurs on the date that any one person, or more than one person acting asa group (“Person”), acquires ownership of the stock of the Company that,together with the stock held by such Person, constitutes more than 50% of thetotal voting power of the stock of the Company; or

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### (ii)   Change in Effective Control of the Company.  If the Company has a class of securitiesregistered pursuant to Section 12 of the Exchange Act, a change in theeffective control of the Company which occurs on the date that a majority ofmembers of the Board is replaced during any 12 month period by Directors whoseappointment or election is not endorsed by a majority of the members of theBoard prior to the date of the appointment or election.  For purposes of this clause (ii), if anyPerson is considered to be in effective control of the Company, the acquisitionof additional control of the Company by the same Person will not be considereda Change in Control; or

 

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### (iii)  Change in Ownership of a SubstantialPortion of the Company’s Assets.  Achange in the ownership of a substantial portion of the Company’s assets whichoccurs on the date that any Person acquires (or has acquired during the 12month period ending on the date of the most recent acquisition by such personor persons) assets from the Company that have a total gross fair market valueequal to or more than 50% of the total gross fair market value of all of theassets of the Company immediately prior to such acquisition or acquisitions.  For purposes of this subsection (iii), grossfair market value means the value of the assets of the Company, or the value ofthe assets being disposed of, determined without regard to any liabilitiesassociated with such assets.

 

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

 

Notwithstandingthe foregoing, a transaction will not be deemed a Change in Control unless thetransaction qualifies as a change in control event within the meaning of Code Section 409A,as it has been and may be amended from time to time, and any proposed or finalTreasury Regulations and Internal Revenue Service guidance that has beenpromulgated or may be promulgated thereunder from time to time.

 

Furtherand for the avoidance of doubt, a transaction will not constitute a Change inControl if: (i) its sole purpose is to change the state of the Company’sincorporation, or (ii) its sole purpose is to create a holding companythat will be owned in substantially the same proportions by the persons whoheld the Company’s securities immediately before such transaction.

 

## (e)           “Code” means the Internal RevenueCode of 1986, as amended.  Reference to aspecific section of the Code or Treasury Regulation thereunder will includesuch section or regulation, any valid regulation or other official applicableguidance promulgated under such section, and any comparable provision of anyfuture legislation or regulation amending, supplementing or superseding suchsection or regulation.

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## (f)            “Code Section 423 PlanComponent” means the component of this Plan that is intended to meet therequirements set forth in Section 423(b) of the Code, asamended.  The provisions of the Code Section 423Plan Component shall be construed, administered and enforced in accordance withSection 423(b).

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## (g)           “Committee” means a committeeof the Board appointed in accordance with Section 14 hereof.

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## (h)           “Common Stock” means thecommon stock of the Company.

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## (i)            “Company” means OmnivisionTechnologies, Inc., a Delaware corporation, or any successor thereto.

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## (j)            “Compensation” means all cashcompensation reportable on Form W-2, including without limitation basestraight time gross earnings, sales commissions, payments for overtime, shiftpremiums, incentive compensation, incentive payments, bonuses and othercompensation, but does not include any non-cash compensation.

 

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## (k)           “Designated Subsidiary” meansany Subsidiary that has been designated by the Administrator from time to timein its sole discretion as eligible to participate in the Plan. TheAdministrator will determine whether employees of any Designated Subsidiaryshall participate in the Code Section 423 Plan Component or the Non-423Plan Component.

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## (l)            “Director” means a member ofthe Board.

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## (m)          “Eligible Employee” means anyindividual who is a common law employee of the Company or a DesignatedSubsidiary and is customarily employed for at least twenty (20) hours per weekand more than five (5) months in any calendar year by the Employer,other than an employee of a Designated Subsidiary under the Non-423 PlanComponent, who, as of the Enrollment Date, resides in a country that has beenexcluded from participation in the Plan or who, as of the Enrollment Date, isotherwise determined ineligible for participation in the Non-423 PlanComponent, at the discretion of the Administrator.  For purposes of the Plan, the employmentrelationship will be treated as continuing intact while the individual is onsick leave or other leave of absence that the Employer approves.  Where the period of leave exceeds three (3) monthsand the individual’s right to reemployment is not guaranteed either by statuteor by contract, the employment relationship will be deemed to have terminatedthree (3) months and one (1) day following the commencement of suchleave.  The Administrator, in itsdiscretion, from time to time may, prior to an Enrollment Date for all optionsto be granted on such Enrollment Date, determine (on a uniform andnondiscriminatory basis for employees who may participate in the Code Section 423Plan Component) that the definition of Eligible Employee will or will notinclude an individual if he or she: (i) has not completed at least two (2) yearsof service since his or her last hire date (or such lesser period of time asmay be determined by the Administrator in its discretion), (ii) customarilyworks not more than twenty (20) hours per week (or such lesser period of timeas may be determined by the Administrator in its discretion), (iii) customarilyworks not more than five (5) months per calendar year (or such lesserperiod of time as may be determined by the Administrator in its discretion), (iv) isan executive, officer or other manager, or (v) is a highly compensatedemployee under Section 414(q) of the Code.  Notwithstanding the foregoing, for optionsgranted under the Non-423 Plan Component, Eligible Employee shall also mean anyother employee of a Designated Subsidiary to the extent that local law requiresparticipation in the Plan to be extended to such employee, as determined by theAdministrator.

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## (n)           “Employer” means the employerof the applicable Eligible Employee(s).

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## (o)           “Enrollment Date” means thefirst Trading Day of each Offering Period.

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## (p)           “Exchange Act” means theSecurities Exchange Act of 1934, as amended, including the rules andregulations promulgated thereunder.

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## (q)           “Exercise Date” means the lastTrading Day of each Purchase Period.

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## (r)            “Fair Market Value” means, asof any date and unless the Administrator determines otherwise, the value ofCommon Stock determined as follows:

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### (i)    If the Common Stock is listed on any establishedstock exchange or a national market system, including without limitation theNasdaq Global Select Market, the Nasdaq Global Market or the Nasdaq CapitalMarket of The Nasdaq Stock Market, its Fair Market Value

 

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### will be the closing salesprice for such stock (or the closing bid, if no sales were reported) as quotedon such exchange or system on the date of determination (or on the lastpreceding Trading Day if the date of determination is not a Trading Day), asreported in *The Wall Street Journal* or such othersource as the Administrator deems reliable;

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### (ii)   If the Common Stock is regularly quoted by arecognized securities dealer but selling prices are not reported, its FairMarket Value will be the mean between the high bid and low asked prices for theCommon Stock on the date of determination (or on the last preceding Trading Dayif the date of determination is not a Trading Day), as reported in *The Wall Street Journal* or such other source as theAdministrator deems reliable; or

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### (iii)  In the absence of an established market forthe Common Stock, the Fair Market Value thereof will be determined in goodfaith by the Administrator.

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## (s)           “Fiscal Year” means the fiscalyear of the Company.

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## (t)            “New Exercise Date” means anew Exercise Date if the Administrator shortens any Offering Period then inprogress.

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## (u)           “Non-423 Plan Component” meansa component of this Plan that is not intended to meet the requirements setforth in Section 423(b) of the Code, as amended.

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## (v)           “Offering Periods” means theperiods of approximately twenty-four (24) months during which an option grantedpursuant to the Plan may be exercised, commencing on the first Trading Day onor after June 1 and December 1 of each year and terminating on thelast Trading Day in the periods ending twenty-four (24) months later.  The duration and timing of Offering Periodsmay be changed pursuant to Sections 4 and 20.

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## (w)          “Parent” means a “parentcorporation,” whether now or hereafter existing, as defined in Section 424(e) ofthe Code.

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## (x)            “Participant” means anEligible Employee that participates in the Plan.

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## (y)           “Plan” means this OmnivisionTechnologies, Inc. 2009 Employee Stock Purchase Plan, which includes aCode Section 423 Plan Component and a Non-423 Plan Component.

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## (z)            “Purchase Period” means theapproximately six (6) month period commencing after one Exercise Date andending with the next Exercise Date, except that the first Purchase Period ofany Offering Period will commence on the Enrollment Date and end with the nextExercise Date.

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## (aa)         “Purchase Price” means an amountequal to eighty-five percent (85%) of the Fair Market Value of a share ofCommon Stock on the Enrollment Date or on the Exercise Date, whichever is lower; provided however, that the PurchasePrice may be determined for subsequent Offering Periods by the Administratorsubject to compliance with Section 423 of the Code (or any successor rule orprovision or any other applicable law, regulation or stock exchange rule) orpursuant to Section 20.

 

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## (bb)         “Subsidiary” means a “subsidiarycorporation,” whether now or hereafter existing, as defined in Section 424(f) ofthe Code.

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## (cc)         “Trading Day” means a day onwhich the national stock exchange upon which the Common Stock is listed is openfor trading.

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# 3.             Eligibility.

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## (a)           Offering Periods.  Any Eligible Employee on a given EnrollmentDate will be eligible to participate in the Plan, subject to the requirementsof Section 5.

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## (b)           Limitations.  Any provisions of the Plan to the contrarynotwithstanding, no Eligible Employee will be granted an option under the Plan (i) tothe extent that, immediately after the grant, such Eligible Employee (or anyother person whose stock would be attributed to such Eligible Employee pursuantto Section 424(d) of the Code) would own capital stock of the Companyor any Parent or Subsidiary of the Company and/or hold outstanding options topurchase such stock possessing five percent (5%) or more of the total combinedvoting power or value of all classes of the capital stock of the Company or ofany Parent or Subsidiary of the Company, or (ii) to the extent that his orher rights to purchase stock under all employee stock purchase plans (asdefined in Section 423 of the Code) of the Company or any Parent orSubsidiary of the Company accrues at a rate, which exceeds twenty-five thousanddollars ($25,000) worth of stock (determined at the Fair Market Value of thestock at the time such option is granted) for each calendar year in which suchoption is outstanding at any time, as determined in accordance with Section 423of the Code and the regulations thereunder.

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# 4.             Offering Periods.  The Plan will be implemented by consecutive,overlapping Offering Periods with a new Offering Period commencing on the firstTrading Day on or after June 1 and December 1 each year, or on suchother date as the Administrator will determine. The Administrator will have the power to change the duration of OfferingPeriods (including the commencement dates thereof) with respect to futureofferings without stockholder approval if such change is announced prior to thescheduled beginning of the first Offering Period to be affected thereafter.

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

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# 6.             Payroll Deductions.

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## (a)           At the time a Participant enrolls inthe Plan pursuant to Section 5, he or she will elect to have payrolldeductions made on each pay day during the Offering Period in an amount notexceeding fifteen percent (15%)****of theCompensation, which he or she receives on each pay day during the OfferingPeriod; provided, however, that should a pay day occur on an Exercise Date, aParticipant will have the payroll deductions made on such day applied to his orher account under the subsequent Purchase Period or Offering Period.  A Participant’s subscription agreement willremain in effect for successive Offering Periods unless terminated as providedin Section 10 hereof.

 

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## (b)           Payroll deductions for a Participantwill commence on the first pay day following the Enrollment Date and will endon the last pay day prior to the Exercise Date of such Offering Period to whichsuch authorization is applicable, unless sooner terminated by the Participantas provided in Section 10 hereof.

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## (c)           All payroll deductions made for a Participantwill be credited to his or her account under the Plan and will be withheld inwhole percentages only.  A Participantmay not make any additional payments into such account.

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## (d)           A Participant may discontinue his orher participation in the Plan as provided in Section 10, or may increaseor decrease the rate of his or her payroll deductions during the OfferingPeriod by (i) properly completing and submitting to the Company’s stockadministration office (or its designee), on or before a date determined by theAdministrator prior to an applicable Exercise Date, a new subscriptionagreement authorizing the change in payroll deduction rate in the form providedby the Administrator for such purpose, or (ii) following an electronic orother procedure prescribed by the Administrator; provided, however, that aParticipant may only make one payroll deduction change during each****month of the Offering Period.  If a Participant has not followed suchprocedures to change the rate of payroll deductions, the rate of his or herpayroll deductions will continue at the originally elected rate throughout theOffering Period and future Offering Periods (unless terminated as provided in Section 10).  The Administrator may, in its solediscretion, limit the nature and/or number of payroll deduction rate changesthat may be made by Participants during any Offering Period, and may establishsuch other conditions or limitations as it deems appropriate for Planadministration.  Any change in payrolldeduction rate made pursuant to this Section 6(d) will be effectiveas of the first full payroll period following five (5) business days afterthe date on which the change is made by the Participant (unless theAdministrator, in its sole discretion, elects to process a given change inpayroll deduction rate more quickly).

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## (e)           Notwithstanding the foregoing, to theextent necessary to comply with Section 423(b)(8) of the Code and Section 3(b),a Participant’s payroll deductions may be decreased to zero percent (0%) at anytime during a Purchase Period.  Subjectto Section 423(b)(8) of the Code and Section 3(b) hereof,payroll deductions will recommence at the rate originally elected by theParticipant effective as of the beginning of the first Purchase Periodscheduled to end in the following calendar year, unless terminated by theParticipant as provided in Section 10.

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## (f)            Notwithstanding any provisions tothe contrary in the Plan, the Administrator may allow Eligible Employees toparticipate in the Plan via cash contributions instead of payroll deductions if(i) payroll deductions are not permitted under applicable local law, and (ii) theEligible Employee is participating in the Non-423 Plan Component or theAdministrator determines that cash contributions are permissible under Section 423of the Code.

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## (g)           At the time the option is exercised,in whole or in part, or at the time some or all of the Common Stock issuedunder the Plan is disposed of, the Participant must make adequate provision forthe Company’s or Employer’s federal, state, or any other tax liability payableto any authority including taxes imposed by jurisdictions outside of the UnitedStates, national insurance, social security or other tax withholdingobligations, if any, which arise upon the exercise of the option or thedisposition of the Common Stock.  At anytime, the Company or the Employer may, but will not be obligated to, withholdfrom the Participant’s compensation the amount necessary for

 

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## the Company or the Employerto meet applicable withholding obligations, including any withholding requiredto make available to the Company or the Employer any tax deductions or benefitsattributable to sale or early disposition of Common Stock by the EligibleEmployee. In addition, the Company or the Employer may, but will not beobligated to, withhold from the proceeds of the sale of Common Stock or anyother method of withholding the Company or the Employer deems appropriate.

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# 7.             Grant of Option.  On the Enrollment Date of each OfferingPeriod, each Eligible Employee participating in such Offering Period will begranted 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 Stockdetermined by dividing such Eligible Employee’s payroll deductions accumulatedprior to such Exercise Date and retained in the Eligible Employee’s account asof the Exercise Date by the applicable Purchase Price; provided that in noevent will an Eligible Employee be permitted to purchase during each PurchasePeriod more than a number of shares determined by dividing $12,500 by the FairMarket Value of a share of the Company’s Common Stock (subject to anyadjustment pursuant to Section 19) on the Enrollment Date, and providedfurther that such purchase will be subject to the limitations set forth inSections 3(b) and 13.  The EligibleEmployee may accept the grant of such option with respect to an Offering Periodby electing to participate in the Plan in accordance with the requirements of Section 5.  The Administrator may, for future OfferingPeriods, increase or decrease, in its absolute discretion, the maximum numberof shares of Common Stock that an Eligible Employee may purchase during eachPurchase Period of an Offering Period. Exercise of the option will occur as provided in Section 8, unlessthe Participant has withdrawn pursuant to Section 10.  The option will expire on the last day of theOffering Period.

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# 8.             Exercise of Option.

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

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## (b)           If the Administrator determines that,on a given Exercise Date, the number of shares of Common Stock with respect towhich options are to be exercised may exceed (i) the number of shares ofCommon Stock that were available for sale under the Plan on the Enrollment Dateof the applicable Offering Period, or (ii) the number of shares of CommonStock available for sale under the Plan on such Exercise Date, theAdministrator may in its sole discretion (x) provide that the Company willmake a pro rata allocation of the shares of Common Stock available for purchaseon such Enrollment Date or Exercise Date, as applicable, in as uniform a manneras will be practicable and as it will determine in its sole discretion to beequitable among all Participants exercising options to purchase Common Stock onsuch Exercise Date, and continue all Offering

 

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## Periods then in effect or (y) providethat the Company will make a pro rata allocation of the shares available forpurchase on such Enrollment Date or Exercise Date, as applicable, in as uniforma manner as will be practicable and as it will determine in its sole discretionto be equitable among all participants exercising options to purchase CommonStock on such Exercise Date, and terminate any or all Offering Periods then ineffect pursuant to Section 20.  TheCompany may make a pro rata allocation of the shares available on theEnrollment Date of any applicable Offering Period pursuant to the precedingsentence, notwithstanding any authorization of additional shares for issuanceunder the Plan by the Company’s stockholders subsequent to such EnrollmentDate.

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# 9.             Delivery.  As soon as reasonably practicable after eachExercise Date on which a purchase of shares of Common Stock occurs, the Companywill arrange the delivery to each Participant the shares purchased uponexercise of his or her option in a form determined by the Administrator (in itssole discretion) and pursuant to rules established by theAdministrator.  The Company may permit orrequire that shares be deposited directly with a broker designated by theCompany or to a designated agent of the Company, and the Company may utilizeelectronic or automated methods of share transfer.  The Company may require that shares beretained with such broker or agent for a designated period of time and/or mayestablish other procedures to permit tracking of disqualifying dispositions ofsuch shares.  No Participant will haveany voting, dividend, or other stockholder rights with respect to shares ofCommon Stock subject to any option granted under the Plan until such shareshave been purchased and delivered to the Participant as provided in this Section 9.

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# 10.           Withdrawal.

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## (a)           A Participant maywithdraw all but not less than all the payroll deductions credited to his orher account and not yet used to exercise his or her option under the Plan atany time by (i) submitting to the Company’s stock administration office(or its designee) a written notice of withdrawal in the form determined by theAdministrator for such purpose, or (ii) following an electronic or otherwithdrawal procedure determined by the Administrator.  All of the Participant’s payroll deductionscredited to his or her account will be paid to such Participant promptly afterreceipt of notice of withdrawal and such Participant’s option for the OfferingPeriod will be automatically terminated, and no further payroll deductions forthe purchase of shares will be made for such Offering Period.  If a Participant withdraws from an OfferingPeriod, payroll deductions will not resume at the beginning of the succeedingOffering Period, unless the Participant re-enrolls in the Plan in accordancewith the provisions of Section 5.

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

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# 11.           Termination ofEmployment.  Upon aParticipant’s ceasing to be an Eligible Employee, for any reason, he or shewill be deemed to have elected to withdraw from the Plan and the payrolldeductions credited to such Participant’s account during the Offering Periodbut not yet used to purchase shares of Common Stock under the Plan will bereturned to such Participant or, in the case of his or her death, to the personor persons entitled thereto under Section 15, and such Participant’soption will be automatically terminated.

 

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# 12.           Interest.  No interest will accrue on the payrolldeductions of a participant in the Plan, except as may be required byapplicable law, as determined by the Company, for Participants in the Non-423Plan Component (or the Code Section 423 Plan Component if permitted underCode Section 423).

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# 13.           Stock.

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## (a)           Subject to adjustment upon changes incapitalization of the Company as provided in Section 19 hereof, themaximum number of shares of Common Stock that will be made available for saleunder the Plan will be 2,500,000 shares of Common Stock.

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

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## (c)           Shares of Common Stock to bedelivered to a Participant under the Plan will be registered in the name of theParticipant or in the name of the Participant and his or her spouse.

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# 14.           Administration.  The Plan will be administered by the Board ora Committee appointed by the Board, which Committee will be constituted tocomply with Applicable Laws.  TheAdministrator will have full and exclusive discretionary authority to construe,interpret and apply the terms of the Plan, to determine eligibility and toadjudicate all disputed claims filed under the Plan.  Every finding, decision and determinationmade by the Administrator will, to the full extent permitted by law, be finaland binding upon all parties. Notwithstanding any provision to the contrary in this Plan, theAdministrator may adopt rules or procedures relating to the operation andadministration of the Non-423 Plan Component to accommodate the specificrequirements of local laws and procedures for jurisdictions outside of theUnited States.  Without limiting thegenerality of the foregoing, the Administrator is specifically authorized toadopt rules and procedures regarding eligibility to participate, thedefinition of Compensation, handling of payroll deductions, making ofcontributions to the Plan (including, without limitation, in forms other thanpayroll deductions), establishment of bank or trust accounts to hold payrolldeductions, payment of interest, conversion of local currency, obligations topay payroll tax, determination of beneficiary designation requirements,withholding procedures and handling of stock certificates that vary with localrequirements.  Further, the Administratoris authorized to adopt sub-plans applicable to particular DesignatedSubsidiaries or locations under the Non-423 Plan Component.  The rules of such sub-plans may takeprecedence over other provisions of this Plan, with the exception of Section 13(a) hereof,but unless otherwise superseded by the terms of such sub-plan, the provisionsof this Plan shall govern the operation of such sub-plan.

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# 15.           Designation ofBeneficiary.

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## (a)           If permitted by theAdministrator, a Participant may file a designation of a beneficiary who is toreceive any shares of Common Stock and cash, if any, from the Participant’saccount under the Plan in the event of such Participant’s death subsequent toan Exercise Date on which the option is exercised but prior to delivery to suchParticipant of such shares and cash.  Inaddition, if permitted by the Administrator, a Participant may file adesignation of a beneficiary who

 

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## isto receive any cash from the Participant’s account under the Plan in the eventof such Participant’s death prior to exercise of the option.  If a Participant is married and thedesignated beneficiary is not the spouse, spousal consent will be required forsuch designation to be effective.

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## (b)           Such designation of beneficiary maybe changed by the Participant at any time by notice in a form determined by theAdministrator.  In the event of the deathof a Participant and in the absence of a beneficiary validly designated underthe Plan who is living at the time of such Participant’s death, the Companywill deliver such shares and/or cash to the executor or administrator of theestate of the Participant, or if no such executor or administrator has beenappointed (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 moredependents or relatives of the Participant, or if no spouse, dependent orrelative is known to the Company, then to such other person as the Company maydesignate.

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## (c)           All beneficiary designations will bein such form and manner as the Administrator may designate from time to time.

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# 16.           Transferability.  Neither payroll deductions credited to aParticipant’s account nor any rights with regard to the exercise of an optionor 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 atassignment, transfer, pledge or other disposition will be without effect,except that the Company may treat such act as an election to withdraw fundsfrom an Offering Period in accordance with Section 10 hereof.

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# 17.           Use of Funds.  The Company may use all payroll deductionsreceived or held by it under the Plan for any corporate purpose, and theCompany will not be obligated to segregate such payroll deductionsunless otherwise required under local law, as determined by theAdministrator (in which case, the affected options will be granted under theNon-423 Plan Component, if necessary). Until shares of Common Stock are issued, Participants will only have therights of an unsecured creditor with respect to such shares.

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# 18.           Reports.  Individual accounts will be maintained foreach Participant in the Plan.  Statementsof account will be given to participating Eligible Employees at least annually,which statements will set forth the amounts of payroll deductions, the PurchasePrice, the number of shares of Common Stock purchased and the remaining cashbalance, if any.

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

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## (a)           Adjustments.  In the event that any dividend orother distribution (whether in the form of cash, Common Stock, othersecurities, or other property), recapitalization, stock split, reverse stocksplit, reorganization, merger, consolidation, split-up, spin-off, combination,repurchase, or exchange of Common Stock or other securities of the Company, orother change in the corporate structure of the Company affecting the CommonStock occurs, the Administrator, in order to prevent dilution or enlargement ofthe benefits or potential benefits intended to be made available under thePlan, will, in such manner as it may deem equitable, adjust the number andclass of Common Stock that may be delivered under the Plan, the Purchase Priceper share and the number

 

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## of shares of Common Stockcovered by each option under the Plan that has not yet been exercised, and thenumerical limits of Sections 7 and 13.

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## (b)           Dissolution or Liquidation.  In the event of the proposed dissolution orliquidation of the Company, any Offering Period then in progress will beshortened by setting a New Exercise Date, and will terminate immediately priorto the consummation of such proposed dissolution or liquidation, unlessprovided otherwise by the Administrator. The New Exercise Date will be before the date of the Company’s proposeddissolution or liquidation.  TheAdministrator will notify each Participant in writing, at least ten (10) businessdays prior to the New Exercise Date, that the Exercise Date for the Participant’soption has been changed to the New Exercise Date and that the Participant’soption will be exercised automatically on the New Exercise Date, unless priorto such date the Participant has withdrawn from the Offering Period as providedin Section 10 hereof.

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

##  

# 20.           Amendment or Termination.

##  

## (a)           The Administrator, in its solediscretion, may amend, suspend, or terminate the Plan, or any part thereof, atany time and for any reason.  If the Planis terminated, the Administrator, in its discretion, may elect to terminate alloutstanding Offering Periods either immediately or upon completion of thepurchase of shares of Common Stock on the next Exercise Date (which may besooner than originally scheduled, if determined by the Administrator in itsdiscretion), or may elect to permit Offering Periods to expire in accordancewith their terms (and subject to any adjustment pursuant to Section 19).  If the Offering Periods are terminated priorto expiration, all amounts then credited to Participants**’** accounts that have not been used topurchase shares of Common Stock will be returned to the Participants (withoutinterest thereon, except as otherwise required under local laws, as further setforth in Section 12 hereof) as soon as administratively practicable.

##  

## (b)           Without stockholder consent andwithout limiting Section 20(a), the Administrator will be entitled tochange the Offering Periods, limit the frequency and/or number of changes inthe amount withheld during an Offering Period, establish the exchange ratioapplicable to amounts withheld in a currency other than U.S. dollars, permitpayroll withholding in excess of the amount designated by a Participant inorder to adjust for delays or mistakes in the Company’s processing of properlycompleted withholding elections, establish reasonable waiting and adjustmentperiods and/or accounting and crediting procedures to ensure that amountsapplied toward the

 

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## purchase of Common Stock foreach Participant properly correspond with amounts withheld from the Participant’sCompensation, and establish such other limitations or procedures as theAdministrator determines in its sole discretion advisable that are consistentwith the Plan.

##  

## (c)           In the event the Administratordetermines that the ongoing operation of the Plan may result in unfavorable financialaccounting consequences, the Administrator may, in its discretion and, to theextent necessary or desirable, modify, amend or terminate the Plan to reduce oreliminate such accounting consequence including, but not limited to:

##  

### (i)    amending the Plan to conform with the safeharbor definition under Statement of Financial Accounting Standards 123(R),including with respect to an Offering Period underway at the time;

###  

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

###  

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

###  

### (iv)  reducing the maximum percentage of Compensationa Participant may elect to set aside as payroll deductions; and

###  

### (v)   reducing the maximum number of Shares aParticipant may purchase during any Offering Period or Purchase Period.

###  

Suchmodifications or amendments will not require stockholder approval or theconsent of any Plan Participants.

#  

# 21.           Notices.  All notices or other communications by aParticipant to the Company under or in connection with the Plan will be deemedto have been duly given when received in the form and manner specified by the Companyat the location, or by the person, designated by the Company for the receiptthereof.

#  

# 22.           Conditions Upon Issuance of Shares.  Shares of Common Stock will not be issuedwith respect to an option unless the exercise of such option and the issuance anddelivery of such shares pursuant thereto will comply with all applicableprovisions of law, domestic or foreign, including, without limitation, theSecurities Act of 1933, as amended, the Exchange Act, the rules andregulations promulgated thereunder, and the requirements of any stock exchangeupon which the shares may then be listed, and will be further subject to theapproval of counsel for the Company with respect to such compliance.

#  

# Asa condition to the exercise of an option, the Company may require the personexercising such option to represent and warrant at the time of any suchexercise that the shares are being purchased only for investment and withoutany present intention to sell or distribute such shares if, in the opinion ofcounsel for the Company, such a representation is required by any of theaforementioned applicable provisions of law.

 

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# 23.           Code Section 409A.  The Code Section 423 Plan Component isexempt from the application of Code Section 409A.  The Non-423 Plan Component is intended to beexempt from Code Section 409A under the short-term deferral exception andany ambiguities in the Plan shall be construed and interpreted in accordancewith such intent.  In furtherance of theforegoing and notwithstanding any provision in the Plan to the contrary, if theAdministrator determines that an option granted under the Plan may be subjectto Code Section 409A or that any provision in the Plan would cause anoption under the Plan to be subject to Code Section 409A, theAdministrator may amend the terms of the Plan and/or of an outstanding optiongranted under the Plan, or take such other action the Administrator determinesis necessary or appropriate, in each case, without the Participant’s consent,to exempt any outstanding option or future option that may be granted under thePlan 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 wouldnot violate Code Section 409A. Notwithstanding the foregoing, the Company shall have no liability to aParticipant or any other party if the option to purchase Common Stock under thePlan that is intended to be exempt from or compliant with Code Section 409Ais not so exempt or compliant or for any action taken by the Administrator withrespect thereto.  The Company makes norepresentation that the option to purchase Common Stock under the Plan iscompliant with Code Section 409A.

#  

# 24.           Stockholder Approval.  The Plan will be subject to approval by thestockholders of the Company within twelve (12) months after the date the Planis adopted by the Board.  Suchstockholder approval will be obtained in the manner and to the degree requiredunder Applicable Laws.

#  

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

#  

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

#  

# 27.           Automatic Transfer to Low PriceOffering Period.  To the extentpermitted by Applicable Laws, if the Fair Market Value of the Common Stock onany Exercise Date in an Offering Period is lower than the Fair Market Value ofthe Common Stock on the Enrollment Date of such Offering Period, then allparticipants in such Offering Period will be automatically withdrawn from suchOffering Period immediately after the exercise of their option on such ExerciseDate and automatically re-enrolled in the immediately following Offering Periodas of the first day thereof.

 

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