EX-10.8



 





EX-10.8




SAVIENT PHARMACEUTICALS, INC.

AMENDED AND RESTATED

1998 EMPLOYEE STOCK PURCHASE PLAN




1. Purpose




     The purpose of this 1998 Employee Stock Purchase Plan (the “Plan”) is to provide employees of
Savient Pharmaceuticals, Inc. (the “Company”) and its subsidiaries who wish to become stockholders
of the Company an opportunity to purchase shares of Common Stock of the Company (the “Shares”).
The Plan is intended to qualify as an “employee stock purchase plan” within the meaning of Section
423 of the Internal Revenue Code of 1986, as amended (the “Code”).



2. Eligible Employees




     Subject to the provisions of Sections 7, 8 and 9 below, any individual who is in the full-time
employment of the Company or any subsidiary (as defined in Section 424(f) of the Code) of the
Company on the day on which a Grant Date (as defined in Section 3 below) occurs is eligible to
participate in an offering of Shares made by the Company hereunder. Full-time employment shall
mean customary employment by the Company or any subsidiary for:



     (a) 30 hours or more per week; and



     (b) more than five months in the calendar year.



3. Grant Dates




     From time to time, the Board of Directors may fix a date (a “Grant Date”) or a series of dates
(each of which is a “Grant Date”) on which the Company will grant rights to purchase Shares
(“Rights”) to employees eligible to participate.



4. Prices




     The purchase price per Share for Shares covered by a grant of Rights hereunder shall be
determined by the Board of Directors on or prior to the Grant Date, but in no event shall be less
than the lesser of:




     (a) eighty-five percent (85%) of the fair market value of a Share on the Grant



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Date; or




     (b) eighty-five percent (85%) of the fair market value of a Share on the date such
Right is exercised as to that Share.




For purposes of the Plan, the term “fair market value” on any date means:




     (a) the closing price (on that date) of the Common Stock on the principal national
securities exchange on which the Common Stock is traded, if the Common Stock is then traded
on a national securities exchange;




     (b) the last reported sale price (on that date) of the Common Stock on the Nasdaq
National Market or SmallCap Market, if the Common Stock is then traded on one of such
markets; or




     (c) the average of the closing bid and asked prices last quoted (on that date) by an
established quotation service for over-the-counter securities, if the Common Stock is not
reported on a national securities exchange, the Nasdaq National Market or the Nasdaq
SmallCap market.



5. Exercise of Rights and Method of Payment




     (a) Rights granted under the Plan will be exercisable on specific dates as determined by the
Board of Directors.



     (b) The method of payment for Shares purchased upon exercise of Rights granted hereunder
shall be through regular payroll deductions or by lump sum cash payment, or both, as determined by
the Board of Directors. No interest shall be paid upon payroll deductions or other payments in
exercise of Rights unless specifically provided for by the Board of Directors.



6. Terms of Rights




     Rights granted hereunder shall be exercisable during a twenty-seven (27) month period
beginning on the Grant Date or such shorter period as determined by the Board of Directors. All
Rights granted to an employee shall terminate upon termination of employment of the employee. Any
amounts received or withheld by the Company from or on behalf of a participating employee with
respect to a Right granted hereunder and not utilized for the purchase of Shares upon exercise of
such Right shall be promptly returned to such employee by the Company after termination of such
Right, except that amounts that were not so utilized because such amounts were insufficient to
purchase a whole Share may be applied toward the purchase of Shares pursuant to a Right
subsequently



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granted hereunder, if any.




7. Shares Subject to the Plan




     No more than three million (3,000,000) Shares may be sold pursuant to Rights granted under the
Plan. Appropriate adjustments in the above figure, in the number of Shares covered by outstanding
Rights granted hereunder, in the exercise price of the Rights and in the maximum number of Shares
which an employee may purchase (pursuant to Section 9 below) shall be made to give effect to any
mergers, consolidations, reorganizations, recapitalizations, stock splits, stock dividends or other
relevant changes in the capitalization of the Company occurring after the effective date of the
Plan, provided that no fractional Shares shall be subject to a Right and each Right shall be
adjusted downward to the nearest full Share. Any agreement of merger or consolidation will include
provisions for protection of the then existing Rights of participating employees under the Plan.
Either authorized and unissued Shares or issued Shares heretofore or hereafter reacquired by the
Company may be made subject to Rights under the Plan. If for any reason any Right under the Plan
terminates in whole or in part, Shares subject to such terminated Right may again be subject to a
Right under the Plan.



8. Limitations on Grants




     Anything to the contrary notwithstanding, pursuant to Section 423 of the Code:




     (a) No employee shall be granted a Right hereunder if such employee, immediately after
the Right is granted, owns stock possessing five percent (5%) or more of the total combined
voting power or value of all classes of stock of the Company or any subsidiary, in each case
computed in accordance with Section 423(b)(3) and 424(d) of the Code.




     (b) No employee shall be granted a Right which permits his Rights to purchase Shares
under all employee stock purchase plans of the Company and its subsidiaries to accrue at a
rate which exceeds twenty-five thousand dollars ($25,000) (or such other maximum as may be
prescribed from time to time by the Code) of fair market value of such Shares (determined at
the time such Right is granted) for each calendar year in which such Right is outstanding at
any time, all in accordance with the provisions of Section 423(b)(8) of the Code.



9. Limits on Participation




     (a) Participation shall be limited to eligible employees who enroll under the Plan. All
participating employees will have the same rights and privileges under the Plan to the extent
required by Section 423(b)(5) of the Code.



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     (b) No Right granted to any participating employee shall cover more than twelve thousand
(12,000) Shares.



10. Cancellation of Election to Participate




     An employee who has elected to participate in the Plan may, unless the employee has waived
this cancellation right at the time of such election in a manner established by the Administrator
(as defined in Section 18), cancel such election as to all (but not less than all) of the Rights
granted by giving written notice of such cancellation to the Company before the next exercise date
specified by the Board of Directors. Any amounts paid by the employee or withheld for the purchase
of Shares from the employee’s compensation through payroll deductions shall be paid to the employee
or to the employee’s estate, without interest.



11. Termination of Employment




     Upon termination of employment for any reason, including the death of the employee, before the
date on which an outstanding Right granted under the Plan is exercisable, such Right shall
immediately terminate and amounts paid by the employee or withheld for the purchase of Shares from
the employee’s compensation through payroll deductions shall be paid to the employee or to the
employee’s estate, without interest.



12. Limits on Sale of Stock Purchased Under the Plan




     The Plan is intended to provide Shares for investment and not for resale. The Company does
not, however, intend to restrict or influence any employee in the conduct of his or her own
affairs. An employee may, therefore, sell Shares purchased under the Plan at any time the employee
chooses, subject to compliance with any applicable federal or state securities laws; provided,
however, that because of certain federal tax requirements, each employee agrees, by entering the
Plan, promptly to give the Company notice of any such Shares disposed of within two years after the
date of grant of the applicable Right, showing the number of such Shares disposed of.



13. Employee’s Rights as Stockholder




     No participating employee shall have any rights as a stockholder in the Shares covered by a
Right granted hereunder until such Right has been exercised, full payment has been made for the
corresponding Shares and the purchase has been entered in the records of the Transfer Agent for the
Shares.



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14. Rights Not Transferable




     Rights under the Plan are not assignable or transferable by a participating employee.



15. Amendments or Discontinuance of the Plan




     The Board of Directors of the Company shall have the right to amend, modify or terminate the
Plan at any time without notice; provided, however, that the then existing Rights of all
participating employees shall not be adversely affected thereby, except that in the case of a
participating employee of a foreign subsidiary of the Company the Plan may be varied to conform
with local laws, and provided further that, subject to the provisions of Section 7 above, no such
amendment to the Plan shall, without the approval of the stockholders of the Company:




     (a) Increase the total number of Shares which may be offered under the Plan; or




     (b) Amend the Plan in any manner which would render Rights granted hereunder
unqualified for special tax treatment under Section 421 of the Code.



16. Effective Date and Approvals




     The Plan shall become effective as of August 1, 1998. The Company’s obligation to offer, sell
or deliver its Shares under the Plan is subject to the approval of the Company’s stockholders and
any governmental approval required in connection with the authorized issuance or sale of such
Shares and is further subject to the determination by the Company that all applicable securities
laws have been complied with.



17. Administration of the Plan




     The Board of Directors or any committee or person(s) to whom it delegates its authority (the
“Administrator”) shall administer, interpret and apply all provisions of the Plan. The
Administrator may waive such provisions of the Plan as it deems necessary to meet special
circumstances not anticipated or covered expressly by the Plan. Nothing contained in this Section
shall be deemed to authorize the Administrator to alter or administer the provisions of the Plan in
a manner inconsistent with the provisions of Section 423 of the Code.




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