exv10w01



 





 




    Exhibit
    10.01



 




    eBay
    Inc.

    



 




    AMENDED
    AND RESTATED 1998 EMPLOYEE STOCK PURCHASE PLAN



 




    Adopted
    by the Board of Directors on March 28, 2007

    Approved by the Stockholders on June 14, 2007



 



    1. Establishment of Plan.  eBay
    Inc. (the “Company”) proposes to grant
    options for purchase of the Company’s Common Stock to
    eligible employees of the Company and its Participating
    Subsidiaries (as hereinafter defined) pursuant to this Employee
    Stock Purchase Plan (this “Plan”). For
    purposes of this Plan, “Parent Corporation”
    and “Subsidiary” shall have the
    same meanings as “parent corporation” and
    “subsidiary corporation” in Sections 424(e) and
    424(f), respectively, of the Internal Revenue Code of 1986, as
    amended (the “Code”).
    “Participating Subsidiaries” are Parent
    Corporations or Subsidiaries that the Board of Directors of the
    Company (the “Board”) designates from
    time to time as corporations that shall participate in this
    Plan. The Company intends this Plan to qualify as an
    “employee stock purchase plan” under Section 423
    of the Code (including any amendments to or replacements of such
    Section), and this Plan shall be so construed. Any term not
    expressly defined in this Plan but defined for purposes of
    Section 423 of the Code shall have the same definition
    herein. A total of
    7,200,0001 shares
    of the Company’s Common Stock were reserved for issuance
    under this amended and restated Plan when originally adopted. In
    addition, on each January 1, the aggregate number of shares
    of the Company’s Common Stock reserved for issuance under
    the Plan shall be increased automatically by the number of
    shares purchased under this Plan in the preceding calendar year;
    provided that the aggregate shares reserved under this Plan
    shall not exceed
    36,000,0001 shares.
    Such number shall be subject to adjustments effected in
    accordance with Section 14 of this Plan.



 



    2. Purpose.  The purpose of this
    Plan is to provide eligible employees of the Company and its
    Participating Subsidiaries with a convenient means of acquiring
    an equity interest in the Company through payroll deductions or
    contributions, to enhance such employees’ sense of
    participation in the affairs of the Company or Participating
    Subsidiaries, and to provide an incentive for continued
    employment. In addition, the Plan authorizes the grant of
    options and the issuance of the Company’s Common Stock
    which do not qualify under Section 423 of the Code pursuant
    to sub-plans
    or special rules adopted by the Board or the Compensation
    Committee of the Board (as hereinafter defined) designated to
    achieve desired tax or other objectives in particular locations
    outside the United States.



 



    3. Administration.



 



    (a) This Plan shall be administered by the Compensation
    Committee of the Board (the
    “Committee”). Subject to the provisions
    of this Plan and the limitations of Section 423 of the Code
    or any successor provision in the Code, all questions of
    interpretation or application of this Plan shall be determined
    by the Committee and its decisions shall be final and binding
    upon all participants. Members of the Committee shall receive no
    compensation for their services in connection with the
    administration of this Plan, other than standard fees as
    established from time to time by the Board for services rendered
    by Board members serving on Board committees. All expenses
    incurred in connection with the administration of this Plan
    shall be paid by the Company.



 



    (b) The Board or the Committee may adopt rules or
    procedures relating to the operation and administration of the
    Plan to accommodate the specific requirements of local laws and
    procedures. Without limiting the generality of the foregoing,
    the Board or the Committee is specifically authorized to adopt
    rules and procedures regarding handling of payroll deductions,
    contributions, payment of interest, conversion of local
    currency, payroll tax, withholding procedures and handling of
    stock certificates which vary with local requirements. The Board
    or the Committee may adopt such rules, guidelines and forms as
    the applicable laws allow to accomplish the transfer of
    secondary Class 1 National Insurance Contributions
    (“NIC”) in the United Kingdom
    (“UK”) from the employer to the
    participants in the UK and to make such transfer of NIC
    liability a condition to the exercise of options in the UK.


 

 


    1 Denotes
    that such number reflects the stock splits of eBay’s common
    stock occurring in 8/98, 3/99, 5/00, 8/03 and 2/05.




    

    1








 





 



    (c) The Board or the Committee may also adopt
    sub-plans
    applicable to particular Participating Subsidiaries or
    locations, which
    sub-plans
    may be designed to be outside the scope of Code
    Section 423. The rules of such
    sub-plans
    may take precedence over other provisions of this Plan, with the
    exception of Section 1 above, but unless otherwise
    superseded by the terms of such
    sub-plan,
    the provisions of this Plan shall govern the operation of such
    sub-plan.



 



    4. Eligibility.  Any employee of
    the Company or its Participating Subsidiaries is eligible to
    participate in an Offering Period (as hereinafter defined) under
    this Plan, subject to Section 19 and except the following:



 



    (a) employees who are not employed by the Company or a
    Participating Subsidiary (10) days before the beginning of
    such Offering Period, except that employees who were employed on
    the Effective Date of the Registration Statement filed by the
    Company with the Securities and Exchange Commission
    (“SEC”) under the Securities Act of
    1933, as amended (the “Securities Act”)
    registering the initial public offering of the Company’s
    Common Stock were eligible to participate in the first Offering
    Period under the Plan;



 



    (b) employees who are customarily employed for twenty
    (20) hours or less per week, unless local law prohibits
    exclusion of part-time employees;



 



    (c) employees who are customarily employed for five
    (5) months or less in a calendar year, unless local law
    prohibits exclusion of such employees; and



 



    (d) employees who, together with any other person whose
    stock would be attributed to such employee pursuant to
    Section 424(d) of the Code, own stock or hold options to
    purchase 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 of its Participating Subsidiaries or who, as a
    result of being granted an option under this Plan with respect
    to such Offering Period, would own stock or hold options to
    purchase 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 of its Participating Subsidiaries.



 



    5. Offering Dates.  The offering
    periods of this Plan (each, an “Offering
    Period”) shall be of twenty-four (24) months
    duration commencing on May 1 and November 1 of each
    year and ending on April 30 and October 31 of each
    year; provided, however, that notwithstanding the foregoing, the
    first such Offering Period shall commence on the later of
    November 1, 2007 or the first day of the first calendar
    month following the calendar month in which the Company’s
    registration statement on
    Form S-8
    is filed with respect to the Plan (the “First
    Offering Date”) and shall end on April 30,
    2008. Except for the first Offering Period, each Offering Period
    shall consist of four (4) six month purchase periods
    (individually, a “Purchase Period”)
    during which payroll deductions or contributions of the
    participants are accumulated under this Plan. The first Offering
    Period shall consist of no more than five and no fewer than
    three Purchase Periods, any of which may be greater or less than
    six months as determined by the Committee. The first business
    day of each Offering Period is referred to as the
    “Offering Date”. The last business day
    of each Purchase Period is referred to as the
    “Purchase Date”. The Committee shall
    have the power to change the duration of Offering Periods with
    respect to offerings without stockholder approval if such change
    is announced at least fifteen (15) days prior to the
    scheduled beginning of the first Offering Period to be affected.
    Notwithstanding the foregoing, the Board or the Committee may
    establish other Offering Periods in addition to those described
    above, which shall be subject to any specific terms and
    conditions that the Committee approves, including requirements
    with respect to eligibility, participation, the establishment of
    Purchase Periods and Purchase Dates and other rights under any
    such Offering. A participant may be enrolled in only one
    Offering Period at a time.



 



    6. Participation in this Plan.



 



    (a) Eligible employees may become participants in an
    Offering Period under this Plan on the first Offering Date after
    satisfying the eligibility requirements by delivering a
    subscription agreement authorizing payroll deductions or
    contributions, unless Section 6(b) below applies, to the
    Company’s treasury department (the “Treasury
    Department”) not later than five (5) days
    before such Offering Date. Notwithstanding the foregoing, the
    Committee may set a later time for filing the subscription
    agreement authorizing payroll deductions or contributions for
    all eligible employees with respect to a given Offering Period.
    An eligible employee who does not deliver a subscription
    agreement to the Treasury Department by such date after becoming
    eligible to participate in such Offering Period shall not
    participate in that Offering Period or any subsequent Offering
    Period unless such




    

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    employee enrolls in this Plan by filing a subscription agreement
    with the Treasury Department not later than five (5) days
    preceding a subsequent Offering Date. Once an employee becomes a
    participant in an Offering Period, such employee will
    automatically participate in the Offering Period commencing
    immediately following the last day of the prior Offering Period
    unless the employee withdraws or is deemed to withdraw from this
    Plan or terminates further participation in the Offering Period
    as set forth in Section 11 below. Such participant is not
    required to file any additional subscription agreement in order
    to continue participation in this Plan.



 



    (b) Notwithstanding any other provisions of the Plan to the
    contrary, in locations where local law prohibits payroll
    deductions, an eligible employee may elect to participate
    through contributions to his account under the Plan in a form
    acceptable to the Board or the Committee.



 



    7. Grant of Option on
    Enrollment.  Enrollment by an eligible
    employee in this Plan with respect to an Offering Period will
    constitute the grant (as of the Offering Date) by the Company to
    such employee of an option to purchase on the Purchase Date up
    to that number of shares of Common Stock of the Company
    determined by dividing (a) the amount accumulated in such
    employee’s payroll deduction account during such Purchase
    Period by (b) the lower of (i) eighty-five percent
    (85%) of the fair market value of a share of the Company’s
    Common Stock on the Offering Date (but in no event less than the
    par value of a share of the Company’s Common Stock), or
    (ii) eighty-five percent (85%) of the fair market value of
    a share of the Company’s Common Stock on the Purchase Date
    (but in no event less than the par value of a share of the
    Company’s Common Stock), provided, however, that the number
    of shares of the Company’s Common Stock subject to any
    option granted pursuant to this Plan shall not exceed the lesser
    of (x) the maximum number of shares which may be purchased
    pursuant to Section 10(a) with respect to the applicable
    Purchase Date, or (y) the maximum number of shares set by
    the Committee pursuant to Section 10(b) below with respect
    to the applicable Purchase Date. The fair market value of a
    share of the Company’s Common Stock shall be determined as
    provided in Section 8 below.



 



    8. Purchase Price.  The purchase
    price per share at which a share of Common Stock will be sold in
    any Offering Period shall be eighty-five percent (85%) of the
    lesser of:



 



    (a) The fair market value on the Offering Date; or



 



    (b) The fair market value on the Purchase Date.



 



    For purposes of this Plan, the term “Fair Market
    Value” means, as of any date, any date, the value
    of a share of the Company’s Common Stock determined as
    follows:



 



    (a) if such Common Stock is then quoted on the Nasdaq
    National Market, its closing price on the Nasdaq National Market
    on the date of determination as reported in The Wall Street
    Journal;



 



    (b) if such Common Stock is publicly traded and is then
    listed on another national securities exchange, its closing
    price on the date of determination on the principal national
    securities exchange on which the Common Stock is listed or
    admitted to trading as reported in The Wall Street Journal;



 



    (c) if such Common Stock is publicly traded but is not
    quoted on the Nasdaq National Market nor listed or admitted to
    trading on another national securities exchange, the average of
    the closing bid and asked prices on the date of determination as
    reported in The Wall Street Journal; or



 



    (d) if none of the foregoing is applicable, by the Board in
    good faith, which in the case of the First Offering Date will be
    the price per share at which shares of the Company’s Common
    Stock are initially offered for sale to the public by the
    Company’s underwriters in the initial public offering of
    the Company’s Common Stock pursuant to a registration
    statement filed with the SEC under the Securities Act.



 



    9. Payment of Purchase Price; Changes in Payroll
    Deductions; Issuance of Shares.



 



    (a)(i) The purchase price of the shares is accumulated by
    regular payroll deductions or contributions made during each
    Offering Period. The deductions or contributions are made as a
    percentage of the participant’s Compensation in one percent
    (1%) increments not less than two percent (2%), nor greater than
    ten percent (10%) or such lower limit set by the Committee.
    Payroll deductions or contributions shall commence on the first
    payday of the Offering Period and shall continue to the end of
    the Offering Period unless sooner altered or terminated as
    provided in this Plan;




    

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    (a)(ii) “Compensation” means total cash wages or
    salary and performance-based pay actually received or deferred
    by an eligible employee under this Plan during the applicable
    Offering Period, including: base wages or salary; overtime;
    performance bonuses; commissions; shift differentials; payments
    for paid time off; payments in lieu of notice; compensation
    deferred under any program or plan, including, without
    limitation, pursuant to Section 401(k) or Section 125
    of the Code; or any other compensation or remuneration approved
    as “compensation” by the Board or the Compensation
    Committee in accordance with Section 423 of the Code. For
    purposes of this Plan, “Compensation” shall not
    include forms of compensation or remuneration that are not
    included or covered by the first sentence in this
    subparagraph (ii), including the following: moving
    allowances; payments pursuant to a severance agreement;
    equalization payments; termination pay (including the payout of
    accrued vacation time in connection with any such termination);
    relocation allowances; expense reimbursements; meal allowances;
    commuting allowances; geographical hardship pay; any payments
    (such as guaranteed bonuses in certain foreign jurisdictions)
    with respect to which salary reductions are not permitted by the
    laws of the applicable jurisdiction); automobile allowances;
    sign-on bonuses; nonqualified executive compensation; any
    amounts directly or indirectly paid pursuant to this Plan or any
    other stock-based plan, including without limitation any stock
    option, stock purchase, deferred stock unit, or similar plan, of
    the Company or any Subsidiary; or any other compensation or
    remuneration determined not to be “compensation” by
    the Board or the Compensation Committee in accordance with
    Section 423 of the Code.



 



    (b) A participant may increase or decrease the rate of
    payroll deductions or contributions during an Offering Period by
    filing with the Treasury Department a new authorization for
    payroll deductions, in which case the new rate shall become
    effective for the next payroll period commencing more than
    fifteen (15) days after the Treasury Department’s
    receipt of the authorization and shall continue for the
    remainder of the Offering Period unless changed as described
    below. Such change in the rate of payroll deductions or
    contributions may be made at any time during an Offering Period,
    but not more than one (1) change may be made effective
    during any Purchase Period. A participant may increase or
    decrease the rate of payroll deductions or contributions for any
    subsequent Offering Period by filing with the Treasury
    Department a new authorization for payroll deductions or an
    election for contributions not later than fifteen (15) days
    before the beginning of such Offering Period.



 



    (c) A participant may reduce his or her payroll deduction
    or contributions percentage to zero during an Offering Period by
    filing with the Treasury Department a request for cessation of
    payroll deductions or contributions. Such reduction shall be
    effective beginning with the next payroll period commencing more
    than fifteen (15) days after the Treasury Department’s
    receipt of the request and no further payroll deductions or
    contributions will be made for the duration of the Offering
    Period. Payroll deductions or contributions credited to the
    participant’s account prior to the effective date of the
    request shall be used to purchase shares of Common Stock of the
    Company in accordance with Section (e) below. A
    participant may not resume making payroll deductions or
    contributions during the Offering Period in which he or she
    reduced his or her payroll deductions or contributions to zero.



 



    (d) In countries where local law prohibits payroll
    deductions, at the time a participant files his or her
    subscription agreement, instead of authorization for payroll
    deductions, he or she shall elect to make contributions on each
    payday during the Offering Period at a rate not exceeding ten
    percent (10%) of the compensation which he or she receives on
    such payday, provided that the aggregate of such contributions
    during the Offering Period shall not exceed ten percent (10%) of
    the aggregate compensation which he or she would receive during
    said Offering Period. The Board or the Committee shall determine
    whether the amount to be contributed is to be designated as a
    specific dollar amount, or as a percentage of the eligible
    compensation being paid on such payday, or as either, and may
    also establish a minimum percentage or amount for such
    contributions.



 



    (e) All participant’s payroll deductions or
    contributions are credited to his or her account under this Plan
    and are deposited with the general funds of the Company. No
    interest accrues on the payroll deductions or contributions
    unless local law requires that payroll deductions or
    contributions be held in an interest-bearing account. All
    payroll deductions or contributions received or held by the
    Company may be used by the Company for any corporate purpose,
    and the Company shall not be obligated to segregate such payroll
    deductions or contributions unless segregation of accounts is
    required by local law.



 



    (f) On each Purchase Date, so long as this Plan remains in
    effect and provided that the participant has not submitted a
    signed and completed withdrawal form before that date which
    notifies the Company that the participant




    

    4








 






    wishes to withdraw from that Offering Period under this Plan and
    have all funds accumulated in the account maintained on behalf
    of the participant as of that date returned to the participant,
    the Company shall apply the funds then in the participant’s
    account to the purchase of whole shares of Common Stock reserved
    under the option granted to such participant with respect to the
    Offering Period to the extent that such option is exercisable on
    the Purchase Date. The purchase price per share shall be as
    specified in Section 8 of this Plan. Any cash remaining in
    a participant’s account after such purchase of shares shall
    be refunded to such participant in cash, without interest unless
    local law requires the payment of interest; provided, however
    that any amount remaining in such participant’s account on
    a Purchase Date which is less than the amount necessary to
    purchase a full share of Common Stock of the Company shall be
    carried forward, without interest, unless local law requires the
    payment of interest into the next Purchase Period or Offering
    Period and in the locations where the Board or the Committee
    have determined that such rollover is available under the Plan,
    as the case may be. In the event that this Plan has been
    oversubscribed, all funds not used to purchase shares on the
    Purchase Date shall be returned to the participant, without
    interest unless local law requires the payment of interest. No
    Common Stock shall be purchased on a Purchase Date on behalf of
    any employee whose participation in this Plan has terminated
    prior to such Purchase Date.



 



    (g) Subject to Section 9(h), as promptly as
    practicable after the Purchase Date, the Company shall issue
    shares for the participant’s benefit representing the
    shares purchased upon exercise of his or her option. If a
    participant dies before receiving his or her shares, the account
    will be set up in the name of such participant’s
    beneficiary, or the shares will be issued in such
    beneficiary’s name.



 



    (h) If, on the Purchase Date, the Company or a
    Participating Subsidiary is required by local law to withhold
    taxes on a participant’s exercise of his or her options and
    such participant’s compensation is not sufficient to cover
    such withholding, the Company will sell the requisite number of
    shares to raise the necessary funds to make the withholding.



 



    (i) During a participant’s lifetime, his or her option
    to purchase shares hereunder is exercisable only by him or her.
    The participant will have no interest or voting right in shares
    covered by his or her option until such option has been
    exercised.



 



    10. Limitations on Shares to be Purchased.



 



    (a) No participant shall be entitled to purchase stock
    under this Plan at a rate which, when aggregated with his or her
    rights to purchase stock under all other employee stock purchase
    plans of the Company or any Participating Subsidiary, exceeds
    $25,000 in fair market value, determined as of the Offering Date
    (or such other limit as may be imposed by the Code) for each
    calendar year in which the employee participates in this Plan.
    The Company shall automatically suspend the payroll deductions
    or contributions of any participant as necessary to enforce such
    limit provided that when the Company automatically resumes
    making such payroll deductions or accepting contributions, the
    Company must apply the rate in effect immediately prior to such
    suspension.



 



    (b) No participant shall be entitled to purchase more than
    the Maximum Share Amount (as defined below) on any single
    Purchase Date. Not less than thirty (30) days prior to the
    commencement of any Offering Period, the Committee may, in its
    sole discretion, set a maximum number of shares which may be
    purchased by any employee at any single Purchase Date
    (hereinafter the “Maximum Share
    Amount”). Until otherwise determined by the
    Committee, the Maximum Share Amount shall be 25,000 shares
    (subject to any adjustment pursuant to Section 14). If a
    new Maximum Share Amount is set, then all participants must be
    notified of such Maximum Share Amount prior to the commencement
    of the next Offering Period. The Maximum Share Amount shall
    continue to apply with respect to all succeeding Purchase Dates
    and Offering Periods unless revised by the Committee as set
    forth above.



 



    (c) If the number of shares to be purchased on a Purchase
    Date by all employees participating in this Plan exceeds the
    number of shares then available for issuance under this Plan,
    then the Company will make a pro rata allocation of the
    remaining shares in as uniform a manner as shall be reasonably
    practicable and as the Committee shall determine to be
    equitable. In such event, the Company shall give written notice
    of such reduction of the number of shares to be purchased under
    a participant’s option to each participant affected.



 



    (d) Any funds accumulated in a participant’s account
    which are not used to purchase stock due to the limitations in
    this Section 10 shall be returned to the participant as
    soon as practicable after the end of the applicable Purchase
    Period, without interest unless local law requires the payment
    of interest.




    

    5








 





 



    11. Withdrawal.



 



    (a) Each participant may withdraw from a Purchase Period
    under this Plan by signing and delivering to the Treasury
    Department a written notice to that effect on a form provided
    for such purpose. Such withdrawal may be elected at any time at
    least fifteen (15) days prior to the end of a Purchase
    Period.



 



    (b) Upon withdrawal from this Plan, the accumulated payroll
    deductions shall be returned to the withdrawn participant,
    without interest unless local law requires the payment of
    interest, and his or her interest in this Plan shall terminate.
    In the event a participant voluntarily elects to withdraw from
    this Plan, he or she may not resume his or her participation in
    this Plan during the same Offering Period, but he or she may
    participate in any Offering Period under this Plan which
    commences on a date subsequent to such withdrawal by filing a
    new authorization for payroll deductions or by commencing to
    make contributions in the same manner as set forth in
    Section 6 above for initial participation in this Plan.



 



    (c) If the Fair Market Value on the first day of the
    current Offering Period in which a participant is enrolled is
    higher than the Fair Market Value on the first day of any
    subsequent Offering Period, the Company will automatically
    enroll such participant in the subsequent Offering Period. Any
    funds accumulated in a participant’s account prior to the
    first day of such subsequent Offering Period will be applied to
    the purchase of shares on the Purchase Date immediately prior to
    the first day of such subsequent Offering Period. A participant
    does not need to file any forms with the Company to
    automatically be enrolled in the subsequent Offering Period.



 



    12. Termination of
    Employment.  Termination of a
    participant’s employment for any reason, including
    retirement, death or the failure of a participant to remain an
    eligible employee of the Company or a Participating Subsidiary,
    immediately terminates his or her participation in this Plan. In
    such event, the funds credited to the participant’s account
    will be returned to him or her or, in the case of his or her
    death, to his or her legal representative, without interest
    unless local law requires the payment of interest. For purposes
    of this Section 12, an employee will not be deemed to have
    terminated employment or failed to remain in the continuous
    employ of the Company or of a Participating Subsidiary in the
    case of sick leave, military leave, or any other leave of
    absence approved by the Board; provided that such leave is for a
    period of not more than ninety (90) days, unless
    reemployment upon the expiration of such leave is guaranteed by
    contract or statute or unless provided otherwise pursuant to
    formal policy adopted from time to time by the Company.



 



    13. Return of Payroll Deductions and
    Contributions.  In the event a
    participant’s interest in this Plan is terminated by
    withdrawal, termination of employment or otherwise, or in the
    event this Plan is terminated by the Board, the Company shall
    deliver to the participant all payroll deductions or
    contributions credited to such participant’s account.
    Subject to Section 9(e), no interest shall accrue on the
    payroll deductions or contributions of a participant in this
    Plan.



 



    14. Capital Changes.



 



    (a) In the event that any dividend or other distribution,
    reorganization, merger, consolidation, combination, repurchase,
    or exchange of Common Stock or other securities of the Company,
    or other change in the corporate structure of the Company
    affecting the Common Stock occurs such that an adjustment is
    determined by the Committee (in its sole discretion) to be
    appropriate in order to prevent dilution or enlargement of the
    benefits or potential benefits intended to be made available
    under the Plan, then the Committee shall, in such manner as it
    may deem equitable, adjust the number and class of Common Stock
    which have been authorized for issuance under this Plan but have
    not yet been placed under option (collectively, the
    “Reserves”), the Maximum Share Amount,
    the number and class of Common Stock covered by each outstanding
    option, the purchase price per share of Common Stock covered by
    each option which has not yet been exercised.



 



    (b) In connection with the occurrence of any Equity
    Restructuring, and notwithstanding anything to the contrary in
    Section 14(a), the number and type of securities subject to
    each outstanding option and the price per share thereof, if
    applicable, will be equitably adjusted by the Committee. The
    adjustments provided under this Section 14(b) shall be
    nondiscretionary and shall be final and binding on the affected
    participants and the Company.



 



    (c) “Equity Restructuring” means a non-reciprocal
    transaction (i.e. a transaction in which the Company does not
    receive consideration or other resources in respect of the
    transaction approximately equal to and in exchange for




    

    6








 






    the consideration or resources the Company is relinquishing in
    such transaction) between the Company and its stockholders, such
    as a stock split, spin-off, rights offering, nonrecurring stock
    dividend or recapitalization through a large, nonrecurring cash
    dividend, that affects the shares of Common Stock (or other
    securities of the Company) or the share price of Common Stock
    (or other securities) and causes a change in the per share value
    of the Common Stock underlying outstanding options.



 



    (d) In the event of the proposed dissolution or liquidation
    of the Company, the Offering Period will terminate immediately
    prior to the consummation of such proposed action, unless
    otherwise provided by the Committee. The Committee may, in the
    exercise of its sole discretion in such instances, declare that
    this Plan shall terminate as of a date fixed by the Committee
    and give each participant the right to purchase shares under
    this Plan prior to such termination.



 



    (e) In the event of (i) a merger or consolidation in
    which the Company is not the surviving corporation (other than a
    merger or consolidation with a wholly-owned subsidiary, a
    reincorporation of the Company in a different jurisdiction, or
    other transaction in which there is no substantial change in the
    stockholders of the Company or their relative stock holdings and
    the options under this Plan are assumed, converted or replaced
    by the successor corporation, which assumption will be binding
    on all participants), (ii) a merger in which the Company is
    the surviving corporation but after which the stockholders of
    the Company immediately prior to such merger (other than any
    stockholder that merges, or which owns or controls another
    corporation that merges, with the Company in such merger) cease
    to own their shares or other equity interest in the Company,
    (iii) the sale of all or substantially all of the assets of
    the Company or (iv) the acquisition, sale, or transfer of
    more than 50% of the outstanding shares of the Company by tender
    offer or similar transaction, unless otherwise provided by the
    Committee in its sole discretion, the Plan will continue with
    regard to Offering Periods that commenced prior to the closing
    of the proposed transaction and shares will be purchased based
    on the Fair Market Value of the surviving corporation’s
    stock on each Purchase Date. The Committee may, in the exercise
    of its sole discretion in such instances, declare that this Plan
    shall terminate as of a date fixed by the Committee and give
    each participant the right to purchase shares under this Plan
    prior to such termination.



 



    15. Nonassignability.  Neither
    payroll deductions or contributions credited to a
    participant’s account nor any rights with regard to the
    exercise of an option or to receive shares under this 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 22 below) by the
    participant. Any such attempt at assignment, transfer, pledge or
    other disposition shall be void and without effect.



 



    16. Reports.  Individual accounts
    will be maintained for each participant in this Plan. Each
    participant shall receive promptly after the end of each
    Purchase Period a report of his or her account setting forth the
    total funds accumulated in the participant’s account, the
    number of shares purchased, the per share price thereof and the
    remaining cash balance, if any, carried forward to the next
    Purchase Period or Offering Period, as the case may be.



 



    17. Notice of Disposition.  Each
    participant shall notify the Company in writing if the
    participant disposes of any of the shares purchased in any
    Offering Period pursuant to this Plan if such disposition occurs
    within two (2) years from the Offering Date or within one
    (1) year from the Purchase Date on which such shares were
    purchased (the “Notice Period”). The
    Company may, at any time during the Notice Period, place a
    legend or legends on any certificate representing shares
    acquired pursuant to this Plan requesting the Company’s
    transfer agent to notify the Company of any transfer of the
    shares. The obligation of the participant to provide such notice
    shall continue notwithstanding the placement of any such legend
    on the certificates.



 



    18. No Rights to Continued
    Employment.  Neither this Plan nor the grant
    of any option hereunder shall confer any right on any employee
    to remain in the employ of the Company or any Participating
    Subsidiary, or restrict the right of the Company or any
    Participating Subsidiary to terminate such employee’s
    employment.



 



    19. Equal Rights And
    Privileges.  All employees who participate in
    the Plan shall have the same rights and privileges under the
    Plan except for differences which may be mandated by local law
    and which are consistent with Code Section 423(b)(5);
    provided, however, that employees participating in a
    sub-plan
    adopted pursuant to Section 3 which is not designed to
    qualify under Code Section 423 need not have the same
    rights and privileges as employees participating in the Code
    Section 423 Plan. The Board or the Committee may impose
    restrictions on




    

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    eligibility and participation of employees who are officers and
    directors to facilitate compliance with federal or state
    securities laws or foreign laws. This Section 19 shall take
    precedence over all other provisions in this Plan.



 



    20. Notices.  All notices or other
    communications by a participant to the Company under or in
    connection with this 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.



 



    21. Term; Stockholder
    Approval.  After this Plan is adopted by the
    Board, this Plan will become effective on the First Offering
    Date (as defined above). This Plan shall be approved by the
    stockholders of the Company, in any manner permitted by
    applicable corporate law, within twelve (12) months before
    or after the date this Plan is adopted by the Board. No purchase
    of shares pursuant to this Plan shall occur prior to such
    stockholder approval. This Plan shall continue until the earlier
    to occur of (a) termination of this Plan by the Board
    (which termination may be effected by the Board at any time),
    (b) issuance of all of the shares of Common Stock reserved
    for issuance under this Plan, or (c) ten (10) years
    from the adoption of this Plan (as amended and restated) by the
    Board on March 28, 2007.



 



    22. 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 this Plan in the event of
    such participant’s death subsequent to the end of an
    Purchase Period but prior to delivery to him 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 this Plan in the event of such
    participant’s death prior to a Purchase Date.



 



    (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 this Plan who is living at the time of
    such participant’s death, the Company shall deliver such
    shares 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 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.



 



    23. Conditions Upon Issuance of Shares; Limitation on
    Sale of Shares.  Shares shall not be issued
    with respect to an option unless the exercise of such option and
    the issuance and delivery of such shares pursuant thereto shall
    comply with all applicable provisions of law, domestic or
    foreign, including, without limitation, the Securities Act, the
    Securities Exchange Act of 1934, as amended, the rules and
    regulations promulgated thereunder, and the requirements of any
    stock exchange or automated quotation system upon which the
    shares may then be listed, and shall be further subject to the
    approval of counsel for the Company with respect to such
    compliance.



 



    24. Applicable Law.  The Plan shall
    be governed by the substantive laws (excluding the conflict of
    laws rules) of the State of California.



 



    25. Amendment or Termination of this
    Plan.  The Board may at any time amend,
    terminate or extend the term of this Plan, except that any such
    termination cannot affect options previously granted under this
    Plan, nor may any amendment make any change in an option
    previously granted which would adversely affect the right of any
    participant, nor may any amendment be made without approval of
    the stockholders of the Company obtained in accordance with
    Section 21 above within twelve (12) months of the
    adoption of such amendment (or earlier if required by
    Section 21) if such amendment would:



 



    (a) increase the number of shares that may be issued under
    this Plan; or



 



    (b) change the designation of the employees (or class of
    employees) eligible for participation in this Plan.



 



    Notwithstanding the foregoing, the Board may make such
    amendments to the Plan as the Board determines to be advisable,
    if the continuation of the Plan or any Offering Period would
    result in financial accounting treatment for the Plan that is
    different from the financial accounting treatment in effect on
    the date this Plan is adopted by the Board.




    

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