exv4w5



 





Exhibit 4.5



SANTARUS, INC.




AMENDED AND RESTATED EMPLOYEE STOCK PURCHASE PLAN




          Santarus, Inc., a Delaware corporation (the “Company”), hereby adopts the Santarus, Inc.
Amended and Restated Employee Stock Purchase Plan (the “Plan”), effective as of November 30, 2007.




     1. Purpose. The purposes of the Plan are as follows:



          (a) To assist employees of the Company and its Designated Subsidiaries (as defined below) in
acquiring a stock ownership interest in the Company pursuant to a plan which is intended to qualify
as an “employee stock purchase plan” within the meaning of Section 423(b) of the Internal Revenue
Code of 1986, as amended.




          (b) To help employees provide for their future security and to encourage them to remain in the
employment of the Company and its Designated Subsidiaries.




     2. Definitions.



          (a) “Administrator” shall mean the administrator of the Plan, as determined pursuant to
Section 14 hereof.




          (b) “Board” shall mean the Board of Directors of the Company.




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




          (d) “Committee” shall mean the committee appointed to administer the Plan pursuant to Section
14 hereof.




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




          (f) “Company” shall mean Santarus, Inc., a Delaware corporation, and any successor by merger,
consolidation or otherwise.




          (g) “Compensation” shall mean all base straight time gross earnings and commissions, exclusive
of payments for overtime, shift premium, incentive compensation, incentive payments, bonuses,
expense reimbursements, fringe benefits and other compensation.




          (h) “Designated Subsidiary” shall mean any Subsidiary which has been designated by the
Administrator from time to time in its sole discretion as eligible to participate in the Plan. The
Administrator may designate, or terminate the designation of, a subsidiary as a Designated
Subsidiary without the approval of the stockholders of the Company.




          (i) “Effective Date” shall mean the date on which the Company’s Registration Statement on Form
S-1 filed with respect to the Company’s initial public offering becomes effective. Such
Registration Statement became effective March 31, 2004.




 









 








          (j) “Eligible Employee” shall mean an Employee of the Company or a Designated Subsidiary: (i)
who does not, immediately after the option is granted, own stock possessing five percent (5%) or
more of the total combined voting power or value of all classes of stock of the Company, a Parent
or a Subsidiary (as determined under Section 423(b)(3) of the Code); (ii) whose customary
employment is for more than twenty (20) hours per week; and (iii) whose customary employment is for
more than five (5) months in any calendar year. For purposes of clause (i), the rules of Section
424(d) of the Code with regard to the attribution of stock ownership shall apply in determining the
stock ownership of an individual, and stock which an employee may purchase under outstanding
options shall be treated as stock owned by the employee. For purposes of the Plan, the employment
relationship shall be treated as continuing intact while the individual is on sick leave or other
leave of absence approved by the Company or Designated Subsidiary and meeting the requirements of
Treasury Regulation Section 1.421-7(h)(2). Where the period of leave exceeds ninety (90) days and
the individual’s right to reemployment is not guaranteed either by statute or by contract, the
employment relationship shall be deemed to have terminated on the ninety-first (91st)
day of such leave.




          (k) “Employee” shall mean any person who renders services to the Company or a Subsidiary in
the status of an employee within the meaning of Code Section 3401(c). “Employee” shall not include
any director of the Company or a Subsidiary who does not render services to the Company or a
Subsidiary in the status of an employee within the meaning of Code Section 3401(c).




          (l) “Enrollment Date” shall mean the first Trading Day of each Offering Period.




          (m) “Exercise Date” shall mean the last Trading Day of each Purchase Period.




          (n) “Fair Market Value” shall mean, as of any date, the value of Common Stock determined as
follows:




               (i) If the Common Stock is listed on any established stock exchange, its Fair Market Value
shall be the closing sales price for such stock (or the closing bid, if no sales were reported) as
quoted on such exchange on the date of determination (or the most recent preceding day on which
sales were reported if none were reported on such date), as reported in The Wall Street Journal or
such other source as the Administrator deems reliable;



               (ii) If the Common Stock is regularly quoted by a recognized securities dealer but selling
prices are not reported, its Fair Market Value shall be the mean of the closing bid and asked
prices for the Common Stock on the date of determination (or the most recent preceding day on which
bid and asked prices were reported if none were reported on such date), as reported in The Wall
Street Journal or such other source as the Administrator deems reliable;



               (iii) In the absence of an established market for the Common Stock, the Fair Market Value
thereof shall be determined in good faith by the Administrator; or



               (iv) For purposes of the first Offering Period under the Plan, the Fair Market Value on the
Enrollment Date shall be the initial price to the public as set forth in the final prospectus
included within the registration statement on Form S-1 filed with the Securities



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and Exchange Commission for the initial public offering of the Company’s Common Stock (the
“Registration Statement”).




          (o) “Offering Period” shall mean the six-month period commencing on each December 1 and June
1. The duration and timing of Offering Periods may be changed pursuant to Section 4 of this Plan,
but in no event may an Offering Period have a duration in excess of twenty-seven (27) months.
Notwithstanding the foregoing, any Offering Period in progress as of immediately prior to November
30, 2007 shall end on November 30, 2007.




          (p) “Parent” means any corporation, other than the Company, in an unbroken chain of
corporations ending with the Company if, at the time of the determination, each of the corporations
other than the Company owns stock possessing 50% or more of the total combined voting power of all
classes of stock in one of the other corporations in such chain.




          (q) “Plan” shall mean this Santarus, Inc. Amended and Restated Employee Stock Purchase Plan.




          (r) “Purchase Period” shall mean the approximately six (6) month period commencing on each
Enrollment Date and ending on the last Trading Day of the corresponding Offering Period, which, for
the avoidance of doubt, shall be the Exercise Date.




          (s) “Purchase Price” shall mean 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 adjusted by the Administrator pursuant to Section 19;
provided, further, that the Purchase Price shall not be less than the par value of
a share of Common Stock.




          (t) “Subsidiary” shall mean any corporation, other than the Company, in an unbroken chain of
corporations beginning with the Company if, at the time of the determination, each of the
corporations other than the last corporation in an unbroken chain owns stock possessing 50% or more
of the total combined voting power of all classes of stock in one of the other corporations in such
chain.




          (u) “Trading Day” shall mean a day on which national stock exchanges in the United States are
open for trading.




     3. Eligibility.



          (a) Any Eligible Employee who shall be employed by the Company or a Designated Subsidiary on a
given Enrollment Date for an Offering Period shall be eligible to participate in the Plan during
such Offering Period, subject to the requirements of Section 5 and the limitations imposed by
Section 423(b) of the Code.




          (b) Each person who, during the course of an Offering Period, first becomes an Eligible
Employee subsequent to the Enrollment Date will be eligible to become a participant in the Plan on
the first day of the first Purchase Period following the day on which such person becomes an
Eligible Employee, subject to the requirements of Section 5 and the limitations imposed by Section
423(b) of the Code.




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          (c) No Eligible Employee shall be granted an option under the Plan which permits his rights to
purchase stock under the Plan, and to purchase stock under all other employee stock purchase plans
of the Company, any Parent or any Subsidiary subject to the Section 423, to accrue at a rate which
exceeds $25,000 of fair market value of such stock (determined at the time the option is granted)
for each calendar year in which the option is outstanding at any time. For purpose of the
limitation imposed by this subsection, the right to purchase stock under an option accrues when the
option (or any portion thereof) first becomes exercisable during the calendar year, the right to
purchase stock under an option accrues at the rate provided in the option, but in no case may such
rate exceed $25,000 of fair market value of such stock (determined at the time such option is
granted) for any one calendar year, and a right to purchase stock which has accrued under an option
may not be carried over to any option. This limitation shall be applied in accordance with Section
423(b)(8) of the Code and the Treasury Regulations thereunder.




     4. Offering Periods. The Plan shall be implemented by consecutive Offering Periods
which shall continue until the Plan expires or is terminated in accordance with Section 20 hereof.
The Administrator shall 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 at least five (5) days prior to the scheduled beginning of the first Offering
Period to be affected thereafter.



     5. Participation.



          (a) Each Eligible Employee who is employed by the Company or a Designated Subsidiary on the
calendar day immediately preceding the Effective Date shall automatically become a participant in
the Plan with respect to the first Offering Period under this Plan as originally adopted. Each
such participant shall be granted an option to purchase shares of Common Stock and shall be
enrolled in such first Offering Period to the extent of twenty percent (20%) of his or her
Compensation for the pay days during the first Offering Period (or, if less, the maximum amount of
contributions permitted to be made by such participant for such Offering Period by payroll
deduction under the terms of this Plan). Participants wishing to purchase shares of Common Stock
during the first Offering Period shall do so by making a lump sum cash payment to the Company not
later than ten (10) calendar days before each Exercise Date of such Offering Period, and each such
payment may be made in an amount not exceeding twenty percent (20%) of such participant’s
Compensation for the pay days occurring during such Offering Period and occurring prior to such
lump sum payment; provided, however, that such participant shall not be required to
make such lump sum cash payments, or exercise all or any portion of such option to purchase shares
of Common Stock by making such lump sum payments. Following the Effective Date, each such
participant may, during the period designated from time to time by the Administrator for such
purpose, elect to make such contributions (or a lesser amount of contributions) for the first
Offering Period by payroll deductions in accordance with Section 6, in lieu of making contributions
in such lump sum cash payments under this subsection (a), or may elect to make no contributions for
such Offering Period; provided, however, that, to make contributions by payroll
deductions, such participant must complete the form of subscription agreement provided by the
Company for the first Offering Period under this Plan. If (i) during such Offering Period, such a
participant elects to make contributions by payroll deduction, or elects to make no contributions
for such Offering




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Period, or (ii) on or prior to the tenth (10th) calendar day before the last
Exercise Date of such Offering Period, such a participant fails to make any lump sum cash payment,
such participant shall be deemed to have elected not to make contributions by lump sum payment with
respect to such first Offering Period. Except as described in subsection (e) below, a participant
may not make contributions by lump sum payment for any Offering Period other than the first
Offering Period.




          (b) Following the first Offering Period, an Eligible Employee may become a participant in the
Plan by completing a subscription agreement authorizing payroll deductions in a form acceptable to
the Administrator and filing it with the Company’s payroll office fifteen (15) days (or such
shorter or longer period as may be determined by the Administrator, in its sole discretion) prior
to the applicable Enrollment Date.




          (c) Each person who, during the course of an Offering Period, first becomes an Eligible
Employee subsequent to the Enrollment Date will be eligible to become a participant in the Plan on
the first day of the first Purchase Period following the day on which such person becomes an
Eligible Employee. Such person may become a participant in the Plan by completing a subscription
agreement authorizing payroll deductions in a form acceptable to the Administrator and filing it
with the Company’s payroll office fifteen (15) days (or such shorter or longer period as may be
determined by the Administrator, in its sole discretion) prior to the first day of any Purchase
Period during the Offering Period in which such person becomes an Eligible Employee. The rights
granted to such participant shall have the same characteristics as any rights originally granted
during that Offering Period except that the first day of the Purchase Period in which such person
initially participates in the Plan shall be the “Enrollment Date” for all purposes for such person,
including determination of the Purchase Price.




          (d) Except as provided in subsection (a), payroll deductions for a participant shall commence
on the first payroll following the Enrollment Date and shall end on the last payroll in the
Offering Period to which such authorization is applicable, unless sooner terminated by the
participant as provided in Section 10 hereof.




          (e) During a leave of absence approved by the Company or a Subsidiary and meeting the
requirements of Treasury Regulation Section 1.421-7(h)(2), a participant may continue to
participate in the Plan by making cash payments to the Company on each pay day equal to the amount
of the participant’s payroll deductions under the Plan for the pay day immediately preceding the
first day of such participant’s leave of absence. If a leave of absence is unapproved or fails to
meet the requirements of Treasury Regulation Section 1.421-7(h)(2), the participant will cease
automatically to participate in the Plan. In such event, the company will automatically cease to
deduct the participant’s payroll under the Plan. The Company will pay to the participant his or
her total payroll deductions for the Purchase Period, in cash in one lump sum (without interest),
as soon as practicable after the participant ceases to participate in the Plan.




          (f) A participant’s completion of a subscription agreement will enroll such participant in the
Plan for each successive Purchase Period and each subsequent Offering Period on the terms contained
therein until the participant either submits a new subscription agreement,




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withdraws from participation under the Plan as provided in Section 10 hereof or otherwise
becomes ineligible to participate in the Plan.




     6. Payroll Deductions.



          (a) At the time a participant files his or her subscription agreement, he or she shall elect
to have payroll deductions made on each pay day during the Offering Period in an amount from one
percent (1%) to twenty percent (20%) of the Compensation which he or she receives on each pay day
during the Offering Period.




          (b) All payroll deductions made for a participant shall be credited to his or her account
under the Plan and shall be withheld in whole percentages only. Except as described in Section
5(a) hereof, a participant may not make any additional payments into such account.




          (c) A participant may discontinue his or her participation in the Plan as provided in Section
10 hereof, or may increase or decrease the rate of his or her payroll deductions during the
Offering Period by completing or filing with the Company a new subscription agreement authorizing a
change in payroll deduction rate. The Administrator may, in its discretion, limit the number of
participation rate changes during any Offering Period. The change in rate shall be effective with
the first full payroll period following five (5) business days after the Company’s receipt of the
new subscription agreement (or such shorter or longer period as may be determined by the
Administrator, in its sole discretion).




          (d) Notwithstanding the foregoing, to the extent necessary to comply with Section 423(b)(8) of
the Code and Section 3(c) hereof, a participant’s payroll deductions may be decreased to zero
percent (0%) at any time during a Purchase Period.




          (e) At the time the option is exercised, in whole or in part, or at the time some or all of
the Company’s Common Stock issued under the Plan is disposed of, the participant must make adequate
provision for the Company’s federal, state, or other tax withholding obligations, if any, which
arise upon the exercise of the option or the disposition of the Common Stock. At any time, the
Company may, but shall not be obligated to, withhold from the participant’s compensation the amount
necessary for the Company to meet applicable withholding obligations, including any withholding
required to make available to the Company any tax deductions or benefits attributable to sale or
early disposition of Common Stock by the Employee.




     7. Grant of Option. On the Enrollment Date of each Offering Period, each Eligible
Employee participating in such Offering Period shall 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 the Company’s Common Stock determined by dividing such participant’s payroll deductions
accumulated prior to such Exercise Date and retained in the participant’s account as of the
Exercise Date by the applicable Purchase Price; provided, however, that in no event shall a
participant be permitted to purchase during each Offering Period more than 20,000 shares of the
Company’s Common Stock (subject to any adjustment pursuant to Section 19) and during each Purchase
Period more than 5,000 shares of the Company’s Common Stock (subject to any adjustment pursuant to
Section 19); and provided, further, that such purchase shall be subject to



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the limitations set forth in Sections 3(c) and 13 hereof. The Administrator may, for future
Offering Periods, increase or decrease, in its absolute discretion, the maximum number of shares of
the Company’s Common Stock a participant may purchase during each Purchase Period and Offering
Period. Exercise of the option shall occur as provided in Section 8 hereof, unless the participant
has withdrawn pursuant to Section 10 hereof or otherwise becomes ineligible to participate in the
Plan. The option shall 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 hereof or otherwise
becomes ineligible to participate in the Plan, his or her option for the purchase of shares shall
be exercised automatically on the Exercise Date, and the maximum number of full shares subject to
the option shall be purchased for such participant at the applicable Purchase Price with the
accumulated payroll deductions in his or her account. No fractional shares shall be purchased; any
payroll deductions accumulated in a participant’s account which are not sufficient to purchase a
full share shall be retained in the participant’s account for the subsequent Purchase Period or
Offering Period. 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 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 available for sale under the Plan on such Exercise Date, the
Administrator may in its sole discretion (x) provide that the Company shall 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 shall be practicable and as it shall 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 shall 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 shall be practicable and
as it shall 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 hereof. The Company may make 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. The balance of the amount credited to
the account of each participant which has not been applied to the purchase of shares of stock shall
be paid to such participant in one lump sum in cash as soon as reasonably practicable after the
Exercise Date, without any interest thereon.




     9. Deposit of Shares. As promptly as practicable after each Exercise Date on which a
purchase of shares occurs, the Company may arrange for the deposit, into each participant’s account
with any broker designated by the Company to administer this Plan, of the number of shares
purchased upon exercise of his or her option.



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     10. Withdrawal.



          (a) A participant may withdraw all but not less than all of the payroll deductions credited to
his or her account and not yet used to exercise his or her option under the Plan at any time by
giving written notice to the Company in a form acceptable to the Administrator. All of the
participant’s payroll deductions credited to his or her account during the Offering Period shall be
paid to such participant as soon as reasonably practicable after receipt of notice of withdrawal
and such participant’s option for the Offering Period shall be automatically terminated, and no
further payroll deductions for the purchase of shares shall be made for such Offering Period. If a
participant withdraws from an Offering Period, payroll deductions shall not resume at the beginning
of the succeeding Offering Period unless the participant delivers to the Company a new subscription
agreement.




          (b) A participant’s withdrawal from an Offering Period shall not have any effect upon his or
her eligibility to participate in any similar plan which may hereafter be adopted by the Company or
in succeeding Offering Periods which 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 shall be deemed to have elected to withdraw from the Plan and
the payroll deductions credited to such participant’s account during the Offering Period shall be
paid to such participant or, in the case of his or her death, to the person or persons entitled
thereto under Section 15 hereof, as soon as reasonably practicable and such participant’s option
for the Offering Period shall be automatically terminated.



     12. Interest. No interest shall accrue on the payroll deductions or lump sum
contributions of a participant in the Plan.



     13. Shares Subject to Plan.



          (a) Subject to adjustment upon changes in capitalization of the Company as provided in Section
19 hereof, the maximum number of shares of the Company’s Common Stock which shall be made available
for sale under the Plan shall be 400,000 shares. In addition to the foregoing, subject to Section
19 hereof, commencing on the first day of the Company’s 2005 fiscal year and on the first day of
each fiscal year thereafter during the term of the Plan, the number of shares of the Company’s
Common Stock which shall be made available for sale under the Plan shall be increased by that
number of shares of the Company’s Common Stock equal to the least of (i) one percent (1%) of the
Company’s outstanding shares on such date, (ii) 500,000 shares, or (iii) a lesser amount determined
by the Board. The Company’s fiscal year is the calendar year and, accordingly, the number of
shares of the Company’s Common Stock which shall be available for sale under the Plan shall be
subject to increase under the preceding sentence only on January 1, 2005 and on each subsequent
January 1 through and including January 1, 2014. If any right granted under the Plan shall for any
reason terminate without having been exercised, the Common Stock not purchased under such right
shall again become available for issuance under the Plan. The stock subject to the Plan may be
unissued shares or reacquired shares, bought on the market or otherwise.




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          (b) With respect to shares of stock subject to an option granted under the Plan, a participant
shall not be deemed to be a stockholder of the Company, and the participant shall not have any of
the rights or privileges of a stockholder, until such shares have been issued to the participant or
his or her nominee following exercise of the participant’s option. No adjustments shall be made
for dividends (ordinary or extraordinary, whether in cash securities, or other property) or
distribution or other rights for which the record date occurs prior to the date of such issuance,
except as otherwise expressly provided herein.




     14. Administration.



          (a) The Plan shall be administered by the Board unless and until the Board delegates
administration to a Committee as set forth below. The Board may delegate administration of the
Plan to a Committee comprised of two or more members of the Board, each of whom is a “non-employee
director” within the meaning of Rule 16b-3 which has been adopted by the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended, and which is otherwise
constituted to comply with applicable law, and the term “Committee” shall apply to any persons to
whom such authority has been delegated. If administration is delegated to a Committee, the
Committee shall have, in connection with the administration of the Plan, the powers theretofore
possessed by the Board, including the power to delegate to a subcommittee any of the administrative
powers the Committee is authorized to exercise, subject, however, to such resolutions, not
inconsistent with the provisions of the Plan, as may be adopted from time to time by the Board.
Each member of the Committee shall serve for a term commencing on a date specified by the Board and
continuing until the member dies or resigns or is removed from office by the Board. References in
this Plan to the “Administrator” shall mean the Board unless administration is delegated to a
Committee or subcommittee, in which case references in this Plan to the Administrator shall
thereafter be to the Committee or subcommittee.




          (b) It shall be the duty of the Administrator to conduct the general administration of the
Plan in accordance with the provisions of the Plan. The Administrator shall have the power to
interpret the Plan and the terms of the options and to adopt such rules for the administration,
interpretation, and application of the Plan as are consistent therewith and to interpret, amend or
revoke any such rules. The Administrator at its option may utilize the services of an agent to
assist in the administration of the Plan including establishing and maintaining an individual
securities account under the Plan for each participant. In its absolute discretion, the Board may
at any time and from time to time exercise any and all rights and duties of the Administrator under
the Plan.




          (c) All expenses and liabilities incurred by the Administrator in connection with the
administration of the Plan shall be borne by the Company. The Administrator may, with the approval
of the Board, employ attorneys, consultants, accountants, appraisers, brokers or other persons.
The Administrator, the Company and its officers and directors shall be entitled to rely upon the
advice, opinions or valuations of any such persons. All actions taken and all interpretations and
determinations made by the Administrator in good faith shall be final and binding upon all
participants, the Company and all other interested persons. No member of the Board shall be
personally liable for any action, determination or interpretation made in good





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faith with respect to the Plan or the options, and all members of the Board shall be fully
protected by the Company in respect to any such action, determination, or interpretation.




     15. Designation of Beneficiary.



          (a) A participant may file a written designation of a beneficiary who is to receive any shares
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, a participant may file a written designation of
a beneficiary who is to receive any cash from the participant’s account under the Plan in the event
of such participant’s death prior to exercise of the option. If a participant is married and the
designated beneficiary is not the spouse, spousal consent shall be required for such designation to
be effective.




          (b) Such designation of beneficiary may be changed by the participant at any time by written
notice to the Company. In the event of the death of a participant and in the absence of a
beneficiary validly designated under the Plan who is living at the time of such participant’s
death, the Company shall deliver such shares and/or cash to the executor or administrator of the
estate of the participant, or if no such executor or administrator has been appointed (to the
knowledge of the Company), the Company, in its 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.




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



     17. Use of Funds. All payroll deductions received or held by the Company under the
Plan may be used by the Company for any corporate purpose, and the Company shall not be obligated
to segregate such payroll deductions.



     18. Reports. Individual accounts shall be maintained for each participant in the
Plan. Statements of account shall be given to participating Employees at least annually, which
statements shall set forth the amounts of payroll deductions, the Purchase Price, the number of
shares purchased and the remaining cash balance, if any.



     19. Adjustments. Upon Changes in Capitalization, Dissolution, Liquidation, Merger or
Asset Sale.



          (a) Changes in Capitalization. Subject to any required action by the stockholders of
the Company, the number of shares of Common Stock which have been authorized for issuance under the
Plan but not yet placed under option, the maximum number of shares each participant may purchase
each Purchase Period (pursuant to Section 7), as well as the




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price per share and the number of shares of Common Stock covered by each option under the Plan
which has not yet been exercised shall be proportionately adjusted for any increase or decrease in
the number of issued shares of Common Stock resulting from a stock split, reverse stock split,
stock dividend, combination or reclassification of the Common Stock, or any other increase or
decrease in the number of shares of Common Stock effected without receipt of consideration by the
Company; provided, however, that conversion of any convertible securities of the
Company shall not be deemed to have been “effected without receipt of consideration.” Such
adjustment shall be made by the Administrator, whose determination in that respect shall be final,
binding and conclusive. Except as expressly provided herein, no issuance by the Company of shares
of stock of any class, or securities convertible into shares of stock of any class, shall affect,
and no adjustment by reason thereof shall be made with respect to, the number or price of shares of
Common Stock subject to an option.




          (b) Dissolution or Liquidation. In the event of the proposed dissolution or
liquidation of the Company, the Offering Period then in progress shall be shortened by setting a
new Exercise Date (the “New Exercise Date”), and shall terminate immediately prior to the
consummation of such proposed dissolution or liquidation, unless provided otherwise by the
Administrator. The New Exercise Date shall be before the date of the Company’s proposed
dissolution or liquidation. The Administrator shall notify each participant in writing, at least
ten (10) business days 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 shall 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 Asset Sale. In the event of a proposed sale of all or substantially all
of the assets of the Company, or the merger of the Company with or into another corporation, each
outstanding option shall 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, any Purchase Periods then in
progress shall be shortened by setting a New Exercise Date and any Offering Periods then in
progress shall end on the New Exercise Date. The New Exercise Date shall be before the date of the
Company’s proposed sale or merger. The Administrator shall notify each participant in writing, at
least ten (10) business days 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
shall 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 Board may at any time and for any reason terminate or amend the Plan. Except as
provided in Section 19 hereof, no such termination can affect options previously granted, provided
that an Offering Period may be terminated by the Board if the Board determines that the termination
of the Offering Period or the Plan is in the best interests of the Company and its stockholders.
Except as provided in Section 19 and this Section 20 hereof, no amendment may make any change in
any option theretofore granted which adversely affects the rights of any participant without the
consent of such participant. To the extent necessary to comply with Section 423 of the Code (or
any successor rule or provision or any other applicable




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law, regulation or stock exchange rule), the Company shall obtain stockholder approval in such
a manner and to such a degree as required.




          (b) Without stockholder consent and without regard to whether any participant rights may be
considered to have been “adversely affected,” the Administrator shall be entitled to change the
Offering Periods, 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 amounts withheld from the participant’s Compensation, and
establish such other limitations or procedures as the Administrator determines in its sole
discretion advisable which are consistent with the Plan.




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




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



               (ii) shortening any Offering Period so that the Offering Period ends on a new Exercise Date,
including an Offering Period underway at the time of the Administrator action; and



               (iii) allocating shares.



     Such modifications or amendments shall not require stockholder approval or the consent of any
Plan participants.



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



     22. Conditions to Issuance of Shares. The Company shall not be required to issue or
deliver any certificate or certificates for shares of Stock purchased upon the exercise of options
prior to fulfillment of all the following conditions:



          (a) The admission of such shares to listing on all stock exchanges, if any, on which is then
listed; and




          (b) The completion of any registration or other qualification of such shares under any state
or federal law or under the rulings or regulations of the Securities and Exchange




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Commission or any other governmental regulatory body, which the Administrator shall, in its
absolute discretion, deem necessary or advisable; and




          (c) The obtaining of any approval or other clearance from any state or federal governmental
agency which the Administrator shall, in its absolute discretion, determine to be necessary or
advisable; and




          (d) The payment to the Company of all amounts which it is required to withhold under federal,
state or local law upon exercise of the option; and




          (e) The lapse of such reasonable period of time following the exercise of the option as the
Administrator may from time to time establish for reasons of administrative convenience.




     23. Term of Plan. The Plan was originally effective on the Effective Date and as
amended and restated herein is effective as of the date the amended and restated Plan is approved
by the Board. The Plan shall be in effect until January 28, 2014, unless sooner terminated under
Section 20 hereof.



     24. Equal Rights and Privileges. All Eligible Employees of the Company (or of any
Designated Subsidiary) will have equal rights and privileges under this Plan so that this Plan
qualifies as an “employee stock purchase plan” within the meaning of Section 423 of the Code or
applicable Treasury regulations thereunder. Any provision of this Plan that is inconsistent with
Section 423 or applicable Treasury regulations will, without further act or amendment by the
Company, the Board or the Administrator, be reformed to comply with the equal rights and privileges
requirement of Section 423 or applicable Treasury regulations.



     25. No Employment Rights. Nothing in the Plan shall be construed to give any person
(including any Eligible Employee or participant) the right to remain in the employ of the Company,
a Parent or a Subsidiary or to affect the right of the Company, any Parent or any Subsidiary to
terminate the employment of any person (including any Eligible Employee or participant) at any
time, with or without cause.



     26. Notice of Disposition of Shares. Each participant shall give prompt notice to the
Company of any disposition or other transfer of any shares of stock purchased upon exercise of an
option if such disposition or transfer is made: (a) within two (2) years from the Enrollment Date
of the Offering Period in which the shares were purchased or (b) within one (1) year after the
Exercise Date on which such shares were purchased. Such notice shall specify the date of such
disposition or other transfer and the amount realized, in cash, other property, assumption of
indebtedness or other consideration, by the participant in such disposition or other transfer.



     27. Governing Law. The validity and enforceability of this Plan shall be governed by
and construed in accordance with the laws of the State of Delaware without regard to otherwise
governing principles of conflicts of law.




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