exv10w4



 





Exhibit 10.4




INTERMUNE, INC.




AMENDED AND RESTATED 2000 EMPLOYEE STOCK PURCHASE PLAN




Approved by the Board of Directors: January 31, 2000

Approved by Stockholders: March 20, 2000

Approved by the Board of Directors: March 15, 2006




1. PURPOSE.




     (a) The purpose of this Amended and Restated 2000 Employee Stock Purchase Plan (the
“Plan”) is to provide a means by which employees of InterMune, Inc. (the “Company”)
and its Affiliates, as defined in subsection 1(b) below, that are designated as provided in
subsection 2(b) below, may be given an opportunity to purchase Common Stock of the Company (the
“Common Stock”).



     (b) The word “Affiliate” as used in the Plan means any parent corporation or
subsidiary corporation of the Company, as those terms are defined in Sections 424(e) and (f),
respectively, of the Internal Revenue Code of 1986, as amended (the “Code”).



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



     (d) The Company intends that the rights to purchase stock of the Company granted under the
Plan be considered options issued under an “employee stock purchase plan” as that term is defined
in Section 423(b) of the Code.



2. ADMINISTRATION.




     (a) The Plan shall be administered by the Board of Directors (the “Board”) of the
Company unless and until the Board delegates administration to a Committee, as provided in
subsection 2(c). Whether or not the Board has delegated administration, the Board shall have the
final power to determine all questions of policy and expediency that may arise in the
administration of the Plan.



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



          (i) determine when and how rights to purchase stock of the Company shall be granted and the
provisions of each offering of such rights (which need not be identical);




          (ii) designate from time to time which Affiliates of the Company shall be eligible to
participate in the Plan;




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




          (iv) amend the Plan as provided in Section 13;




          (v) terminate or suspend the Plan as provided in Section 15; and




          (vi) exercise such powers and to perform such acts as the Board deems necessary or expedient
to promote the best interests of the Company and its Affiliates and to carry out the intent that
the Plan be treated as an “employee stock purchase plan” within the meaning of Section 423 of the
Code.




     (c) The Board may delegate administration of the Plan to a Committee composed of not fewer
than two (2) members of the Board (the “Committee”). 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, subject, however, to such resolutions, not inconsistent with
the provisions of the Plan, as may be adopted from time to time by the Board. The Board may abolish
the Committee at any time and revest in the Board the administration of the Plan.



3. SHARES SUBJECT TO THE PLAN.




     (a) Subject to the provisions of Section 12 relating to adjustments upon changes in stock and
subject to the increases in the number of reserved shares described below, the stock that may be
sold pursuant to rights granted under the Plan shall not exceed in the aggregate two hundred
thousand (200,000) shares of Common Stock (the “Reserved Shares”). As of each January 1,
commencing with January 1, 2001 and including and ending with January 1, 2006, the number of
Reserved Shares will be increased automatically by the lesser of (i) one percent (1%) of the total
number of shares of Common Stock outstanding (on a fully-diluted, as converted basis) on each such
January 1, (ii) four hundred thousand (400,000) shares or (iii) a number of shares determined by
the Board prior to a January 1, which number shall be less than (i) above and also less than (ii)
above. 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 the
Plan.



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



4. GRANT OF RIGHTS; OFFERING.




     The Board or the Committee may from time to time grant or provide for the grant of rights to
purchase Common Stock of the Company under the Plan to eligible employees (an “Offering”)
on a date or dates (the “Offering Date(s)”) selected by the Board or the Committee. Each
Offering shall be in such form and shall contain such



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terms and conditions as the Board or the Committee shall deem appropriate, which shall comply
with the requirements of Section 423(b)(5) of the Code that all employees granted rights to
purchase stock under the Plan shall have the same rights and privileges. The terms and conditions
of an Offering shall be incorporated by reference into the Plan and treated as part of the Plan.
The provisions of separate Offerings need not be identical, but each Offering shall include
(through incorporation of the provisions of this Plan by reference in the document comprising the
Offering or otherwise) the period during which the Offering shall be effective, which period shall
not exceed twenty-seven (27) months beginning with the Offering Date, and the substance of the
provisions contained in Sections 5 through 8, inclusive.



5. ELIGIBILITY.




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



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



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




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




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




     (c) No employee shall be eligible for the grant of any rights under the Plan if, immediately
after any such rights are granted, such employee owns stock possessing five



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percent (5%) or more of the total combined voting power or value of all classes of stock of
the Company or of any Affiliate. For purposes of this subsection 5(c), the rules of Section 424(d)
of the Code shall apply in determining the stock ownership of any employee, and stock which such
employee may purchase under all outstanding rights and options shall be treated as stock owned by
such employee.



     (d) An eligible employee may be granted rights under the Plan only if such rights, together
with any other rights granted under “employee stock purchase plans” of the Company and any
Affiliates, as specified by Section 423(b)(8) of the Code, do not permit such employee’s rights to
purchase stock of the Company or any Affiliate to accrue at a rate which exceeds twenty-five
thousand dollars ($25,000) of Fair Market Value of such stock (determined at the time such rights
are granted) for each calendar year in which such rights are outstanding at any time. For purposes
of this Plan, “Fair Market Value” means, as of the date, the value of the Common Stock of
the Company determined as follows: If the Common Stock is listed on any established stock exchange
or traded on the Nasdaq National Market system or the Nasdaq Small Cap Market, the Fair Market
Value of a share of Common Stock shall be the closing sales price for such stock (or the closing
bid, if no sales were reported) as quoted on such exchange or market (or the exchange or market
with the greatest volume of trading in the Common Stock) on the last market trading day prior to
the day of determination, as reported in The Wall Street Journal or such other source as the Board
deems reliable. In the absence of such markets for the Common Stock, the Fair Market Value shall
be determined in good faith by the Board.



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



6. RIGHTS; PURCHASE PRICE.




     (a) On each Offering Date, each eligible employee, pursuant to an Offering made under the
Plan, shall be granted the right to purchase up to the number of shares of Common Stock of the
Company purchasable with a percentage designated by the Board or the Committee not exceeding
fifteen percent (15%) of such employee’s Earnings (as defined in subsection 7(a)) during the period
which begins on the Offering Date (or such later date as the Board or the Committee determines for
a particular Offering) and ends on the date stated in the Offering, which date shall be no later
than the end of the Offering. The Board or the Committee shall establish one or more dates during
an Offering (the “Purchase Date(s)”) on which rights granted under the Plan shall be
exercised and purchases of Common Stock carried out in accordance with such Offering.



     (b) In connection with each Offering made under the Plan, the Board or the Committee may
specify a maximum number of shares that may be purchased by any employee as well as a maximum
aggregate number of shares that may be purchased by all eligible employees pursuant to such
Offering. In addition, in connection with each Offering that contains more than one Purchase Date,
the Board or the Committee may



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specify a maximum aggregate number of shares which may be purchased by all eligible employees
on any given Purchase Date under the Offering. If the aggregate purchase of shares upon exercise of
rights granted under the Offering would exceed any such maximum aggregate number, the Board or the
Committee shall make a pro rata allocation of the shares available in as nearly a uniform manner as
shall be practicable and as it shall deem to be equitable.



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



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




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




7. PARTICIPATION; WITHDRAWAL; TERMINATION.




     (a) An eligible employee may become a participant in the Plan pursuant to an Offering by
delivering a participation agreement to the Company within the time specified in the Offering, in
such form as the Company provides. Each such agreement shall authorize payroll deductions of up to
the maximum percentage specified by the Board or the Committee of such employee’s Earnings during
the Offering. “Earnings” is defined as an employee’s wages (including amounts thereof
elected to be deferred by the employee, that would otherwise have been paid, under any arrangement
established by the Company that is intended to comply with Section 125, Section 401(k), Section
402(h) or Section 403(b) of the Code or that provides non-qualified deferred compensation), which
shall include overtime pay, bonuses, incentive pay, and commissions, but shall exclude profit
sharing or other remuneration paid directly to the employee, the cost of employee benefits paid for
by the Company or an Affiliate, education or tuition reimbursements, imputed income arising under
any group insurance or benefit program, traveling expenses, business and moving expense
reimbursements, income received in connection with stock options, contributions made by the Company
or an Affiliate under any employee benefit plan, and similar items of compensation, as determined
by the Board or the Committee. The payroll deductions made for each participant shall be credited
to an account for such participant under the Plan and shall be deposited with the general funds of
the Company. A participant may reduce (including to zero) or increase such payroll deductions, and
an eligible employee may begin such payroll deductions, after the beginning of any Offering only as
provided for in the Offering. A participant may make additional payments into his or her account
only if specifically provided for in the Offering and only if the participant has not had the
maximum amount withheld during the Offering.



     (b) At any time during an Offering, a participant may terminate his or her payroll deductions
under the Plan and withdraw from the Offering by delivering to the Company a notice of withdrawal
in such form as the Company provides. Such withdrawal may be elected at any time prior to the end
of the Offering except as provided



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by the Board or the Committee in the Offering. Upon such withdrawal from the Offering by a
participant, the Company shall distribute to such participant all of his or her accumulated payroll
deductions (reduced to the extent, if any, such deductions have been used to acquire stock for the
participant) under the Offering, without interest, and such participant’s interest in that Offering
shall be automatically terminated. A participant’s withdrawal from an Offering will have no effect
upon such participant’s eligibility to participate in any other Offerings under the Plan but such
participant will be required to deliver a new participation agreement in order to participate in
subsequent Offerings under the Plan.



     (c) Rights granted pursuant to any Offering under the Plan shall terminate immediately upon
cessation of any participating employee’s employment with the Company and any designated Affiliate,
for any reason, and the Company shall distribute to such terminated employee all of his or her
accumulated payroll deductions (reduced to the extent, if any, such deductions have been used to
acquire stock for the terminated employee), under the Offering, without interest.



     (d) Rights granted under the Plan shall not be transferable by a participant otherwise than by
will or the laws of descent and distribution, or by a beneficiary designation as provided in
Section 14 and, otherwise during his or her lifetime, shall be exercisable only by the person to
whom such rights are granted.



8. EXERCISE.




     (a) On each Purchase Date specified therefore in the relevant Offering, each participant’s
accumulated payroll deductions and other additional payments specifically provided for in the
Offering (without any increase for interest) will be applied to the purchase of whole shares of
stock of the Company, up to the maximum number of shares permitted pursuant to the terms of the
Plan and the applicable Offering, at the purchase price specified in the Offering. No fractional
shares shall be issued upon the exercise of rights granted under the Plan. The amount, if any, of
accumulated payroll deductions remaining in each participant’s account after the purchase of shares
which is less than the amount required to purchase one share of stock on the final Purchase Date of
an Offering shall be held in each such participant’s account for the purchase of shares under the
next Offering under the Plan, unless such participant withdraws from such next Offering, as
provided in subsection 7(b), or is no longer eligible to be granted rights under the Plan, as
provided in Section 5, in which case such amount shall be distributed to the participant after such
final Purchase Date, without interest. The amount, if any, of accumulated payroll deductions
remaining in any participant’s account after the purchase of shares which is equal to the amount
required to purchase whole shares of stock on the final Purchase Date of an Offering shall be
distributed in full to the participant after such Purchase Date, without interest.



     (b) No rights granted under the Plan may be exercised to any extent unless the shares to be
issued upon such exercise under the Plan (including rights granted thereunder) are covered by an
effective registration statement pursuant to the Securities Act of 1933, as amended (the
“Securities Act”) and the Plan is in material compliance



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with all applicable state, foreign and other securities and other laws applicable to the Plan.
If on a Purchase Date in any Offering hereunder the Plan is not so registered or in such
compliance, no rights granted under the Plan or any Offering shall be exercised on such Purchase
Date, and the Purchase Date shall be delayed until the Plan is subject to such an effective
registration statement and such compliance, except that the Purchase Date shall not be delayed more
than twelve (12) months and the Purchase Date shall in no event be more than twenty-seven (27)
months from the Offering Date. If on the Purchase Date of any Offering hereunder, as delayed to the
maximum extent permissible, the Plan is not registered and in such compliance, no rights granted
under the Plan or any Offering shall be exercised and all payroll deductions accumulated during the
Offering (reduced to the extent, if any, such deductions have been used to acquire stock) shall be
distributed to the participants, without interest.



9. COVENANTS OF THE COMPANY.




     (a) During the terms of the rights granted under the Plan, the Company shall keep available at
all times the number of shares of stock required to satisfy such rights.



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



10. USE OF PROCEEDS FROM STOCK.




     Proceeds from the sale of Common Stock pursuant to rights granted under the Plan shall
constitute general funds of the Company.



11. RIGHTS AS A STOCKHOLDER.




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



12. ADJUSTMENTS UPON CHANGES IN STOCK.




     (a) If any change is made in the stock subject to the Plan, or subject to any rights granted
under the Plan, due to a change in corporate capitalization and without the receipt of
consideration by the Company (through reincorporation, stock dividend, stock split, reverse stock
split, combination or reclassification of shares), the Plan will be appropriately adjusted in the
class(es) and maximum number of securities subject to the Plan pursuant to subsection 3(a) as well
as the number of shares set forth under (ii) of subsection 3(a), and the outstanding rights will be
appropriately adjusted in the class(es)



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and number of securities and price per share of stock subject to such outstanding rights. Such
adjustments shall be made by the Board, the determination of which shall be final, binding and
conclusive.



     (b) In the event of: (i) a dissolution, liquidation or sale of all or substantially all of the
securities or assets of the Company, (ii) a merger or consolidation in which the Company is not the
surviving corporation or (iii) a reverse merger in which the Company is the surviving corporation
but the shares of Common Stock outstanding immediately preceding the merger are converted by virtue
of the merger into other property, whether in the form of securities, cash or otherwise, then any
surviving corporation may assume outstanding rights or substitute similar rights for those under
the Plan. In the event that no surviving corporation assumes outstanding rights or substitutes
similar rights therefore, participants’ accumulated payroll deductions shall be used to purchase
Common Stock immediately prior to the transaction described above and the participants’ rights
under the ongoing Offering shall terminate immediately following such purchase.



13. AMENDMENT OF THE PLAN.




     (a) The Board at any time, and from time to time, may amend the Plan. However, except as
provided in Section 12 relating to adjustments upon changes in stock, no amendment shall be
effective unless approved by the stockholders of the Company within twelve (12) months before or
after the adoption of the amendment, where the amendment will:



          (i) Increase the number of shares reserved for rights under the Plan;




          (ii) Modify the provisions as to eligibility for participation in the Plan (to the extent such
modification requires stockholder approval in order for the Plan to obtain employee stock purchase
plan treatment under Section 423 of the Code or to comply with the requirements of Rule 16b-3
promulgated under the Securities Exchange Act of 1934, as amended (“Rule 16b-3”)); or




          (iii) Modify the Plan in any other way if such modification requires stockholder approval in
order for the Plan to obtain employee stock purchase plan treatment under Section 423 of the Code
or to comply with the requirements of Rule 16b-3, or any Nasdaq or securities exchange listing
requirements.




          It is expressly contemplated that the Board may amend the Plan in any respect the Board deems
necessary or advisable to provide eligible employees with the maximum benefits provided or to be
provided under the provisions of the Code and the regulations promulgated thereunder relating to
employee stock purchase plans and/or to bring the Plan and/or rights granted under it into
compliance therewith.




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



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



     (b) Such designation of beneficiary may be changed by the participant at any time by written
notice. In the 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 sole 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.



15. TERMINATION OR SUSPENSION OF THE PLAN.




     (a) The Board in its discretion, may suspend or terminate the Plan at any time. No rights may
be granted under the Plan while the Plan is suspended or after it is terminated.



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



16. EFFECTIVE DATE OF PLAN.




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





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INTERMUNE, INC.




AMENDED AND RESTATED

2000 EMPLOYEE STOCK PURCHASE PLAN OFFERING




(As Approved by the Board of Directors on March 7, 2007)




     1. GRANT; OFFERING DATE.



     (a) Effective as of March 7, 2007 (the “Effective Date”), the Board of Directors (the
“Board”) of InterMune, Inc., a Delaware corporation (the “Company”), pursuant to
the Company’s Amended and Restated 2000 Employee Stock Purchase Plan (the “Plan”), hereby
authorizes the grant of rights to purchase shares of the common stock of the Company (“Common
Stock”) to all eligible employees (an “Offering”). On and after May 1, 2007, a new
Offering shall begin on May 1st and November 1st of each calendar year and
each such Offering shall end on the day prior to the six (6) month anniversary of each such
Offering’s Offering Date, unless sooner terminated in accordance with the provisions of this
Offering or the Plan (the “Offering Period”). The first day of an Offering is that
Offering’s “Offering Date.”



     (b) Prior to the commencement of any Offering, the Board (or the Committee described in
subsection 2(c) of the Plan, if any) may change any or all terms of such Offering and any
subsequent Offerings. The granting of rights pursuant to each Offering hereunder shall occur on
each respective Offering Date unless, prior to such date (a) the Board (or the Committee, as
defined in the Plan) determines that such Offering shall not occur, or (b) no shares remain
available for issuance under the Plan in connection with the Offering.



     (c) The “Purchase Date” shall be the day prior to the six (6) month anniversary of
each such Offering’s Offering Date.



     (d) Notwithstanding any provision herein to the contrary, offerings under the Plan which were
already in progress as of the Effective Date shall continue in accordance with their original terms
and conditions.



2. ELIGIBLE EMPLOYEES.




     (a) Each employee of either the Company or its designated Affiliates (as defined in the Plan)
incorporated in the United States shall be eligible to be granted rights to purchase Common Stock
under the Offering on the Offering Date of such Offering, provided that such employee has been
continuously employed by the Company or one of its designated Affiliates throughout the ten (10)
day period immediately prior to and ending on that Offering’s Offering Date (an “Eligible
Employee”).



     (b) Notwithstanding subsection 2(a) above, the following employees shall not be Eligible
Employees or be eligible to be granted rights under an Offering: (i) part-time or seasonal
employees whose customary employment is less than twenty (20) hours per week or five (5)



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months per calendar year, or (ii) five percent (5%) stockholders (including ownership through
unexercised options) described in subsection 5(c) of the Plan.




3. RIGHTS.




     (a) Subject to the limitations contained herein and in the Plan, on each Offering Date each
Eligible Employee shall automatically be granted the right to purchase the number of shares of
Common Stock purchasable with up to fifteen percent (15%) of such Eligible Employee’s Earnings paid
during the period of such Offering beginning after such Eligible Employee first commences
participation; provided, however, that no Eligible Employee may purchase Common Stock on a
particular Purchase Date that would result in more than fifteen percent (15%) of such Eligible
Employee’s Earnings paid during the period of time measured from the later of (i) the Offering
Date, (ii) the date the Eligible Employee first commences participation in the Offering, or (iii)
the immediately preceding Purchase Date, to such Purchase Date having been applied to purchase
shares under all ongoing Offerings under the Plan and all other Company plans intended to qualify
as “employee stock purchase plans” under Section 423 of the Internal Revenue Code of 1986, as
amended (the “Code”). For purposes of an Offering, “Earnings” shall mean an
Eligible Employee’s wages (including amounts thereof elected to be deferred by the Eligible
Employee that would otherwise have been paid, under any arrangement established by the Company that
is intended to comply with Section 125, Section 401(k), Section 402(h) or Section 403(b) of the
Code or that provides non-qualified deferred compensation), which shall include overtime pay,
bonuses, incentive pay, and commissions, but shall exclude profit sharing or other remuneration
paid directly to the Eligible Employee, the cost of employee benefits paid for by the Company or an
Affiliate, education or tuition reimbursements, imputed income arising under any group insurance or
benefit program, traveling expenses, business and moving expense reimbursements, income received in
connection with stock options, contributions made by the Company or an Affiliate under any employee
benefit plan, and similar items of compensation.



     (b) Notwithstanding the foregoing, the maximum number of shares of Common Stock an Eligible
Employee may purchase on any Purchase Date in an Offering shall be such number of shares as has a
Fair Market Value (as defined in the Plan) (determined as of the Offering Date for such Offering)
equal to (x) $25,000 multiplied by the number of calendar years in which the right under such
Offering has been outstanding at any time, minus (y) the Fair Market Value (as defined in the Plan)
of any other shares of Common Stock (determined as of the relevant Offering Date with respect to
such shares) which, for purposes of the limitation of Section 423(b)(8) of the Code, are attributed
to any of such calendar years in which the right is outstanding. The amount in clause (y) of the
previous sentence shall be determined in accordance with regulations applicable under Section
423(b)(8) of the Code based on (i) the number of shares previously purchased with respect to such
calendar years pursuant to such Offering or any other Offering under the Plan, or pursuant to any
other Company plans intended to qualify as “employee stock purchase plans” under Section 423 of the
Code, and (ii) the number of shares subject to other rights outstanding on the Offering Date for
such Offering pursuant to the Plan or any other such Company plan.



     (c) The maximum aggregate number of shares available to be purchased by all Eligible Employees
under an Offering shall be the number of shares remaining available under the Plan on the Offering
Date. If the aggregate purchase of shares of Common Stock upon



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exercise of rights granted under the Offering would exceed the maximum aggregate number of
shares available, the Board shall make a pro rata allocation of the shares available in a uniform
and equitable manner.




4. PURCHASE PRICE.




     The purchase price of the Common Stock under the Offering shall be the lesser of (a)
eighty-five percent (85%) of the Fair Market Value of the Common Stock on the Offering Date
(eighty-five percent (85%) of the Fair Market Value of the Common Stock on the first day on which
the Company’s Common Stock is actively traded that immediately follows the Offering Date if an
Offering Date does not fall on a day during which the Company’s Common Stock is actively traded),
or (b) eighty-five percent (85%) of the Fair Market Value of the Common Stock on the Purchase Date
(eighty-five percent (85%) of the Fair Market Value of the Common Stock on the first day on which
the Company’s Common Stock is actively traded that immediately precedes the Purchase Date if a
Purchase Date does not fall on a day during which the Company’s Common Stock is actively traded),
in each case rounded up to the nearest whole cent per share.



5. PARTICIPATION.




     (a) Except as otherwise provided in this Section 5, an Eligible Employee may elect to
participate in an Offering prior to the Offering Date. An Eligible Employee shall become a
participant in an Offering by delivering an agreement authorizing payroll deductions to the Company
no later than ten (10) days prior to the Offering Date. Such deductions must be in whole dollars,
with a minimum dollar amount of ten dollars ($10) per pay period and a maximum amount not expected
to exceed fifteen percent (15%) of such Eligible Employee’s Earnings over the course of an
Offering, or in whole percentages, with a minimum percentage of one percent (1%) and a maximum
percentage of fifteen percent (15%) of such Eligible Employee’s Earnings over the course of an
Offering. A participant may not make additional payments into his or her account. In the absence
of the delivery of an agreement authorizing payroll deductions, a participant’s initial
participation level shall be zero, provided, however, that for a participant already enrolled in an
offering under the Plan, as of the day prior to the Offering Date of an Offering under this
offering document, the initial level of participation shall be as provided in the most recent
agreement authorizing payroll deductions from the pay of such participant that has been delivered
to the Company.



     (b) By delivering a notice to the Company on such form as the Company provides, a participant
may increase or decrease his or her participation level during the Offering Period or withdraw from
an Offering as follows: (i) a participant may increase or decrease (including to zero) his or her
participation level only once (except for a second reduction to zero) during the Offering Period,
except during the ten (10) day period immediately preceding a Purchase Date, (ii) a participant may
increase or decrease his or her participation level with such change not to take effect until after
the Purchase Date that follows the date such increase is delivered to the Company, and (iii) a
participant may withdraw from an Offering and receive all of his or her accumulated payroll
deductions (reduced to the extent, if any, such deductions have been used to acquire Common Stock
for the participant), without interest, at any time prior to the end of the Offering, excluding
only the ten (10) day period immediately preceding a Purchase Date.



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6. PURCHASES.




     Subject to the limitations contained herein, on each Purchase Date, each participant’s
accumulated payroll deductions (without any increase for interest) shall be applied to the purchase
of whole shares of Common Stock, up to the maximum number of shares permitted under the Plan and
the Offering.



7. NOTICES AND AGREEMENTS.




     Any notices or agreements provided for in an Offering or the Plan shall be given in writing,
in a form provided by the Company, and unless specifically provided for in the Plan or this
Offering shall be deemed effectively given upon receipt or, in the case of notices and agreements
delivered by the Company, five (5) days after deposit in the United States mail, postage prepaid.



8. EXERCISE CONTINGENT ON STOCKHOLDER APPROVAL.




     The rights granted under an Offering are subject to the approval of any amendment to the Plan
by the stockholders as required in order to obtain or preserve treatment as a tax-qualified
employee stock purchase plan under Section 423 of the Code and as necessary to comply with the
requirements of exemption from potential liability under Section 16(b) of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”) set forth in Rule 16b-3 promulgated under the
Exchange Act.



9. OFFERING SUBJECT TO PLAN.




     Each Offering is subject to all the provisions of the Plan, and all terms and conditions of
the Plan are hereby made a part of the Offering, and is further subject to all interpretations,
amendments, rules and regulations which may from time to time be promulgated and adopted pursuant
to the Plan. In the event of any conflict between the provisions of an Offering and those of the
Plan (including interpretations, amendments, rules and regulations which may from time to time be
promulgated and adopted pursuant to the Plan), the provisions of the Plan shall control.




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