**Exhibit 10.12**

 

**BORLAND SOFTWARE CORPORATION**

**1999 EMPLOYEE STOCK PURCHASE PLAN**

 

**1.Establishment, Purpose And Term Of Plan.**

 

**1.1Establishment.** The Borland Software Corporation 1999 Employee Stock Purchase Plan (the “***Plan***”) is hereby established effective as of the date on which it is approved by the stockholders of the Company (the“***Effective Date***”). 

 

**1.2 Purpose.**The purpose of the Plan is to advance the interests of Company and its stockholders by providing an incentive to attract, retain and reward Eligible Employees of the Participating Company Group and by motivating such persons to contribute to thegrowth and profitability of the Participating Company Group. The Plan provides such Eligible Employees with an opportunity to acquire a proprietary interest in the Company through the purchase of Stock. The Company intends that the Plan qualify asan “employee stock purchase plan” under Section 423 of the Code (including any amendments or replacements of such section), and the Plan shall be so construed. 

 

**1.3 Term of Plan**. The Plan shall continue in effect until the earlier of its termination by the Board or the date onwhich all of the shares of Stock available for issuance under the Plan have been issued. 

 

**2. Definitions And Construction.**

 

**2.1 Definitions.** Any term not expressly defined in the Plan but defined for purposes of Section 423 of the Code shall have the same definition herein. Whenever used herein, the following terms shall have theirrespective meanings set forth below: 

 

**(a)**“***Board***” means the Board of Directors of the Company. If one or more Committees have been appointed by the Board to administer the Plan, “Board” also means such Committee(s). 

 

**(b)**“***Code***” means the Internal Revenue Code of1986, as amended, and any applicable regulations promulgated thereunder. 

 

**(c)**“***Committee***” means a committee of the Board duly appointed to administer the Plan and having such powers as specified by the Board. Unless the powers of the Committee have beenspecifically limited, the Committee shall have all of the powers of the Board granted herein, including, without limitation, the power to amend or terminate the Plan at any time, subject to the terms of the Plan and any applicable limitationsimposed by law. 

 

**(d)**“***Company***”means Borland Software Corporation, a Delaware corporation, or any successor corporation thereto. 

 

**(e)**“***Compensation***” means, with respect to any Offering Period, base wages or salary, overtime, bonuses, commissions, shiftdifferentials, payments for paid time off, payments in lieu of notice, and compensation deferred under any program or plan, including, 

without limitation, pursuant to Section 401(k) or Section 125 of the Code. Compensation shall be limited to amounts actually payable in cash or deferredduring the Offering Period. Compensation shall not include moving allowances, payments pursuant to a severance agreement, termination pay, relocation payments, sign-on bonuses, any amounts directly or indirectly paid pursuant to the Plan or anyother stock purchase or stock option plan, or any other compensation not included above. 

 

**(f)**“***Eligible Employee***” means an Employee who meets the requirements set forth in Section 5 for eligibility to participate in the Plan. 

 

**(g)**“***Employee***” means a person treated as anemployee of a Participating Company for purposes of Section 423 of the Code. A Participant shall be deemed to have ceased to be an Employee either upon an actual termination of employment or upon the corporation employing the Participant ceasing tobe a Participating Company. For purposes of the Plan, an individual shall not be deemed to have ceased to be an Employee while on any military leave, sick leave, or other bona fide leave of absence approved by the Company of ninety (90) days orless. If an individual’s leave of absence exceeds ninety (90) days, the individual shall be deemed to have ceased to be an Employee on the ninety-first (91st) day of such leave unless the individual’s right to reemployment with theParticipating Company Group is guaranteed either by statute or by contract. The Company shall determine in good faith and in the exercise of its discretion whether an individual has become or has ceased to be an Employee and the effective date ofsuch individual’s employment or termination of employment, as the case may be. For purposes of an individual’s participation in or other rights, if any, under the Plan as of the time of the Company’s determination, all suchdeterminations by the Company shall be final, binding and conclusive, notwithstanding that the Company or any governmental agency subsequently makes a contrary determination. 

 

**(h)**“***Fair Market Value***” means, as of any date, if the Stock is then listed on a national orregional securities exchange or market system or is regularly quoted by a recognized securities dealer, the closing sale price of a share of Stock (or the mean of the closing bid and asked prices if the Stock is so quoted instead) as quoted on theNasdaq National Market, the Nasdaq SmallCap Market or such other national or regional securities exchange or market system constituting the primary market for the Stock, or by such recognized securities dealer, as reported in The Wall Street Journalor such other source as the Company deems reliable. If the relevant date does not fall on a day on which the Stock has traded on such securities exchange or market system or has been quoted by such securities dealer, the date on which the FairMarket Value is established shall be the last day on which the Stock was so traded or quoted prior to the relevant date, or such other appropriate day as determined by the Board, in its discretion. If, on the relevant date, the Stock is not thenlisted on a national or regional securities exchange or market system or regularly quoted by a recognized securities dealer, the Fair Market Value of a share of Stock shall be as determined in good faith by the Board. 

 

**(i)**“***Offering***” means an offering of Stock asprovided in Section 6. 

 

**(j)**“***OfferingDate***” means, for any Offering, the first day of the Offering Period. 

**(k)**“***Offering Period***” means a period established in accordance withSection 6.1, including an Annual Offering Period and a Half-Year Offering Period as provided in Section 6.1. 

 

**(l)**“***Parent Corporation***” means any present or future “parent corporation” of the Company, as defined in Section424(e) of the Code. 

 

**(m)**“***Participant***” means an Eligible Employee who has become a participant in an Offering Period in accordance with Section 7 and remains a participant in accordance with the Plan. 

 

**(n)**“***Participating Company***” means the Companyor any Parent Corporation or Subsidiary Corporation designated by the Board as a corporation the Employees of which may, if Eligible Employees, participate in the Plan. The Board shall have the sole and absolute discretion to determine from time totime which Parent Corporations or Subsidiary Corporations shall be Participating Companies. 

 

**(o)**“***Participating Company Group***” means, at any point in time, the Company and all other corporations collectively which are then Participating Companies. 

 

**(p)**“***Purchase Date***” means, for any PurchasePeriod, the last day of such period. 

 

**(q)**“***Purchase Period***” means a period established in accordance with Section 6.2. 

 

**(r)**“***Purchase Price***” means the price at which a share of Stock may be purchased under the Plan, as determined in accordancewith Section 9. 

 

**(s)**“***PurchaseRight***” means an option granted to a Participant pursuant to the Plan to purchase such shares of Stock as provided in Section 8, which the Participant may or may not exercise during the Offering Period in which such option isoutstanding. Such option arises from the right of a Participant to withdraw any accumulated payroll deductions of the Participant not previously applied to the purchase of Stock under the Plan and to terminate participation in the Plan at any timeduring an Offering Period. 

 

**(t)**“***Stock***” means the common stock of the Company, as adjusted from time to time in accordance with Section 4.2. 

 

**(u)**“***Subscription Agreement***” means a written agreement in such form as specified by the Company, stating an Employee’selection to participate in the Plan and authorizing payroll deductions under the Plan from the Employee’s Compensation. 

 

**(v)**“***Subscription Date***” means the last business day prior to the Offering Date of an Offering Period or such earlier dateas the Company shall establish. 

**(w)**“***Subsidiary Corporation***” means any present or future “subsidiarycorporation” of the Company, as defined in Section 424(f) of the Code. 

 

**2.2 Construction.** Captions and titles contained herein are for convenience only and shall not affect the meaning or interpretation of any provision of the Plan. Except when otherwise indicated by the context,the singular shall include the plural and the plural shall include the singular. Use of the term “or” is not intended to be exclusive, unless the context clearly requires otherwise. 

 

**3. ADMINISTRATION.**

 

**3.1 Administration by the Board.** The Plan shall be administered bythe Board. All questions of interpretation of the Plan, of any form of agreement or other document employed by the Company in the administration of the Plan, or of any Purchase Right shall be determined by the Board and shall be final and bindingupon all persons having an interest in the Plan or the Purchase Right. Subject to the provisions of the Plan, the Board shall determine all of the relevant terms and conditions of Purchase Rights; provided, however, that all Participants grantedPurchase Rights shall have the same rights and privileges within the meaning of Section 423(b)(5) of the Code. All expenses incurred in connection with the administration of the Plan shall be paid by the Company. 

 

**3.2 Authority of Officers.** Any officer of the Company shall have theauthority to act on behalf of the Company with respect to any matter, right, obligation, determination or election that is the responsibility of or that is allocated to the Company herein, provided that the officer has apparent authority withrespect to such matter, right, obligation, determination or election. 

 

**3.3 Policies and Procedures Established by the Company.** The Company may, from time to time, consistent with the Plan and the requirements of Section 423 of the Code, establish, change or terminate such rules, guidelines, policies,procedures, limitations, or adjustments as deemed advisable by the Company, in its discretion, for the proper administration of the Plan, including, without limitation, (a) a minimum payroll deduction amount required for participation in anOffering, (b) a limitation on the frequency or number of changes permitted in the rate of payroll deduction during an Offering, (c) an exchange ratio applicable to amounts withheld in a currency other than United States dollars, (d) a payrolldeduction greater than or less than the amount designated by a Participant in order to adjust for the Company’s delay or mistake in processing a Subscription Agreement or in otherwise effecting a Participant’s election under the Plan or asadvisable to comply with the requirements of Section 423 of the Code, and (e) determination of the date and manner by which the Fair Market Value of a share of Stock is determined for purposes of administration of the Plan. 

 

**4. SHARES SUBJECT TOPLAN.**

 

**4.1 MaximumNumber of Shares Issuable.** Subject to adjustment as provided in Section 4.2, the maximum aggregate number of shares of Stock that may be issued under the Plan shall be four million (4,000,000) and shall consist of authorized but unissued orreacquired shares of Stock, or any combination thereof. If an outstanding Purchase Right for any reason expires or is terminated or canceled, the shares of Stock allocable to the unexercised portion of that Purchase Right shall again be availablefor issuance under the Plan. 

**4.2 Adjustments for Changes in Capital Structure.** In the event of any stock dividend, stock split,reverse stock split, recapitalization, combination, reclassification or similar change in the capital structure of the Company, or in the event of any merger (including a merger effected for the purpose of changing the Company’s domicile), saleof assets or other reorganization in which the Company is a party, appropriate adjustments shall be made in the number and class of shares subject to the Plan and each Purchase Right and in the Purchase Price. If a majority of the shares of the sameclass as the shares subject to outstanding Purchase Rights are exchanged for, converted into, or otherwise become (whether or not pursuant to an Ownership Change Event) shares of another corporation (the “***New Shares***”), theBoard may unilaterally amend the outstanding Purchase Rights to provide that such Purchase Rights are exercisable for New Shares. In the event of any such amendment, the number of shares subject to, and the Purchase Price of, the outstandingPurchase Rights shall be adjusted in a fair and equitable manner, as determined by the Board, in its discretion. Notwithstanding the foregoing, any fractional share resulting from an adjustment pursuant to this Section 4.2 shall be rounded down tothe nearest whole number, and in no event may the Purchase Price be decreased to an amount less than the par value, if any, of the stock subject to the Purchase Right. The adjustments determined by the Board pursuant to this Section 4.2 shall befinal, binding and conclusive. 

 

**5.ELIGIBILITY.**

 

**5.1Employees Eligible to Participate.** Each Employee of a Participating Company is eligible to participate in the Plan and shall be deemed an Eligible Employee, except the following: 

 

Any Employee who is customarily employed by the Participating Company Group for less than twenty (20) hours per week; or

 

Any Employee who is customarily employed by the ParticipatingCompany Group for not more than five (5) months in any calendar year. 

 

**5.2 Exclusion of Certain Stockholders.** Notwithstanding any provision of the Plan to the contrary, no Employee shall be granted a Purchase Right under the Plan if, immediately after such grant, the Employee would own or hold optionsto purchase stock of the Company or of any Parent Corporation or Subsidiary Corporation possessing five percent (5%) or more of the total combined voting power or value of all classes of stock of such corporation, as determined in accordance withSection 423(b)(3) of the Code. For purposes of this Section 5.2, the attribution rules of Section 424(d) of the Code shall apply in determining the stock ownership of such Employee. 

 

**6. OFFERINGS.**

 

**6.1 Offering Periods.** Except as otherwise set forth below, the Plan shall be implemented by two series of Offerings.One series shall be of sequential Offerings of approximately twelve (12) months duration or such other duration as the Board shall determine 

(an “***Annual Offering Period***”). The second series shall be of Offerings of approximately six (6) months duration or such otherduration as the Board shall determine (a “***Half-Year Offering Period***”). Annual Offering Periods shall commence on or about December 1 of each year and end on or about the first November 30 occurring thereafter. Half-YearOffering Periods shall commence on or about June 1 of each year and end on or about the first November 30 occurring thereafter. However, provided that the Effective Date occurs on or before July 1, 1999, an initial Offering (the “***InitialOffering Period***”) shall commence on or about July 1, 1999 and end on or about November 30, 1999. Notwithstanding the foregoing, the Board may establish a different duration for one or more Offering Periods or different commencing orending dates for such Offering Periods; provided, however, that no Offering Period may have a duration exceeding twenty-seven (27) months. If the first or last day of an Offering Period is not a day on which the national securities exchanges orNasdaq Stock Market are open for trading, the Company shall specify the trading day that will be deemed the first or last day, as the case may be, of the Offering Period. 

 

**6.2 Purchase Periods.** Each Annual Offering Period shall consist of two (2) consecutive Purchase Periods ofapproximately six (6) months duration, or such other number or duration as the Board determines. A Purchase Period commencing on or about December 1 shall end on or about the next May 31. A Purchase Period commencing on or about June 1 shall end onor about the next November 30. Each Half-Year Offering Period shall consist of a single Purchase Period of approximately six (6) months duration coterminous with such Offering Period. However, provided that the Effective Date occurs on or beforeJuly 1, 1999, the Initial Offering Period shall consist of a single Purchase Period ending on or about November 30, 1999. Notwithstanding the foregoing, the Board may establish a different duration for one or more Purchase Periods or differentcommencing or ending dates for such Purchase Periods. If the first or last day of a Purchase Period is not a day on which the national securities exchanges or Nasdaq Stock Market are open for trading, the Company shall specify the trading day thatwill be deemed the first or last day, as the case may be, of the Purchase Period. 

 

**7. PARTICIPATION IN THE PLAN.**

 

**7.1 Initial Participation.**An Eligible Employee may become a Participant in an Offering Period by delivering a properly completed SubscriptionAgreement to the office designated by the Company not later than the close of business for such office on the Subscription Date established by the Company for that Offering Period. An Eligible Employee who does not deliver a properly completedSubscription Agreement to the Company’s designated office on or before the Subscription Date for an Offering Period shall not participate in the Plan for that Offering Period or for any subsequent Offering Period unless the Eligible Employeesubsequently delivers a properly completed Subscription Agreement to the appropriate office of the Company on or before the Subscription Date for such subsequent Offering Period. An Employee who becomes an Eligible Employee after the Offering Dateof an Offering Period shall not be eligible to participate in that Offering Period but may participate in any subsequent Offering Period provided the Employee is still an Eligible Employee as of the Offering Date of such subsequent Offering Period.

**7.2 Continued Participation.** A Participant shall automatically participate in the next OfferingPeriod commencing immediately after the final Purchase Date of each Offering Period in which the Participant participates provided that the Participant remains an Eligible Employee on the Offering Date of the new Offering Period and has not either(a) withdrawn from the Plan pursuant to Section 12.1 or (b) terminated employment as provided in Section 12.4. A Participant who may automatically participate in a subsequent Offering Period, as provided in this Section, is not required to deliverany additional Subscription Agreement for the subsequent Offering Period in order to continue participation in the Plan. However, a Participant may deliver a new Subscription Agreement for a subsequent Offering Period in accordance with theprocedures set forth in Section 7.1 if the Participant desires to change any of the elections contained in the Participant’s then effective Subscription Agreement. Eligible Employees may not participate simultaneously in more than one Offeringunder the Plan. Accordingly, a Participant in an Annual Offering Period may not participate simultaneously in the Half-Year Offering Period commencing during the term of an Annual Offering Period. 

 

**8. RIGHT TO PURCHASESHARES.**

 

**8.1 Grant ofPurchase Right.** Except as set forth below, on the Offering Date of each Offering Period, each Participant in that Offering Period shall be granted automatically a Purchase Right determined as follows: 

 

***(a) Annual Offering Period.*** Each Purchase Right granted on theOffering Date of an Annual Offering Period shall consist of an option to purchase the lesser of (i) that number of whole shares of Stock determined by dividing Twenty-Five Thousand Dollars ($25,000) by the Fair Market Value of a share of Stock onthe Offering Date or (ii) two thousand five hundred (2,500) shares of Stock. 

 

***(b) Half-Year Offering Period.*** Each Purchase Right granted on the Offering Date of a Half-Year Offering Period shall consist of an option to purchase the lesser of (i) that number of whole shares ofStock determined by dividing Twelve Thousand Five Hundred Dollars ($12,500) by the Fair Market Value of a share of Stock on the Offering Date or (ii) one thousand two hundred fifty (1,250) shares of Stock. 

 

***(c) Initial Offering Period.*** Each Purchase Right granted on theOffering Date of the Initial Offering Period shall consist of an option to purchase the lesser of (i) that number of whole shares of Stock determined by dividing Twelve Thousand Five Hundred Dollars ($12,500) by the Fair Market Value of a share ofStock on the Offering Date or (ii) one thousand two hundred fifty (1,250) shares of Stock. 

 

No Purchase Right shall be granted on an Offering Date to any person who is not, on such Offering Date, an Eligible Employee. 

 

**8.2 Pro Rata Adjustment of Purchase Right.** Notwithstanding the provisions of Section 8.1, if the Board establishes an Offering Period (other thanthe Initial Offering Period) of any duration other than twelve months or six months, then (a) the dollar amount in Section 8.1 shall be determined by multiplying $2,083.33 by the number of months (rounded to the nearest whole month) in the OfferingPeriod and rounding to the nearest whole dollar, and (b) the share 

amount in Section 8.1 shall be determined by multiplying 208.33 shares by the number of months (rounded to the nearest whole month) in the Offering Periodand rounding to the nearest whole share. 

 

**8.3 Calendar YearPurchase Limitation.** Notwithstanding any provision of the Plan to the contrary, no Participant shall be granted a Purchase Right which permits his or her right to purchase shares of Stock under the Plan to accrue at a rate which, when aggregatedwith such Participant’s rights to purchase shares under all other employee stock purchase plans of a Participating Company intended to meet the requirements of Section 423 of the Code, exceeds Twenty-Five Thousand Dollars ($25,000) in FairMarket Value (or such other limit, if any, as may be imposed by the Code) for each calendar year in which such Purchase Right is outstanding at any time. For purposes of the preceding sentence, the Fair Market Value of shares purchased during agiven Offering Period shall be determined as of the Offering Date for such Offering Period. The limitation described in this Section 8.3 shall be applied in conformance with applicable regulations under Section 423(B)(8) of the Code. 

 

**9. PURCHASE PRICE.**

 

The Purchase Price at which each share of Stock may be acquired in anOffering Period upon the exercise of all or any portion of a Purchase Right shall be established by the Board; provided, however, that the Purchase Price shall not be less than eighty five percent (85%) of the lesser of (a) the Fair Market Value ofa share of Stock on the Offering Date of the Offering Period or (b) the Fair Market Value of a share of Stock on the Purchase Date. Unless otherwise provided by the Board prior to the commencement of an Offering Period, the Purchase Price for thatOffering Period shall be eighty five percent (85%) of the lesser of (a) the Fair Market Value of a share of Stock on the Offering Date of the Offering Period, or (b) the Fair Market Value of a share of Stock on the Purchase Date. 

 

**10. ACCUMULATION OF PURCHASEPRICE THROUGH PAYROLL DEDUCTION.**

 

Shares of Stock acquired pursuant to the exercise of all or any portion of a Purchase Right may be paid for only by means of payroll deductions from theParticipant’s Compensation accumulated during the Offering Period for which such Purchase Right was granted, subject to the following: 

 

**10.1 Amount of Payroll Deductions.** Except as otherwise provided herein, the amount to be deducted under the Plan from a Participant’sCompensation on each payday during an Offering Period shall be determined by the Participant’s Subscription Agreement. The Subscription Agreement shall set forth the percentage of the Participant’s Compensation to be deducted on eachpayday during an Offering Period in whole percentages of not less than one percent (1%) (except as a result of an election pursuant to Section 10.3 to stop payroll deductions effective following the first payday during an Offering) or more thanfifteen percent (15%). Notwithstanding the foregoing, the Board may change the foregoing limits on payroll deductions effective as of any future Offering Date. 

**10.2 Commencement of Payroll Deductions.** Payroll deductions shall commence on the first paydayfollowing the Offering Date and shall continue to the end of the Offering Period unless sooner altered or terminated as provided herein. 

 

**10.3 Election to Change or Stop Payroll Deductions.** During an Offering Period, a Participant may elect to increase or decrease the rate of or tostop deductions from his or her Compensation by delivering to the Company’s designated office an amended Subscription Agreement authorizing such change on or before the “Change Notice Date.” The “***Change NoticeDate***” shall be a date prior to the beginning of the first pay period for which such election is to be effective as established by the Company from time to time and announced to the Participants. A Participant who elects, effectivefollowing the first payday of an Offering Period, to decrease the rate of his or her payroll deductions to zero percent (0%) shall nevertheless remain a Participant in the current Offering Period unless such Participant withdraws from the Plan asprovided in Section 12.1. 

 

**10.4 Administrative Suspension ofPayroll Deductions.** The Company may, in its sole discretion, suspend a Participant’s payroll deductions under the Plan as the Company deems advisable to avoid accumulating payroll deductions in excess of the amount that could reasonably beanticipated to purchase the maximum number of shares of Stock permitted (a) under the Participant’s Purchase Right or (b) during a calendar year under the limit set forth in Section 8.3. Payroll deductions shall be resumed at the rate specifiedin the Participant’s then effective Subscription Agreement at the beginning, respectively, of (a) the next Offering Period or (b) the next Purchase Period the Purchase Date of which falls in the following calendar year, unless the Participanthas either withdrawn from the Plan as provided in Section 12.1 or has ceased to be an Eligible Employee. 

 

**10.5 Participant Accounts.** Individual bookkeeping accounts shall be maintained for each Participant. All payroll deductions from aParticipant’s Compensation shall be credited to such Participant’s Plan account and shall be deposited with the general funds of the Company. All payroll deductions received or held by the Company may be used by the Company for anycorporate purpose. 

 

**10.6 No Interest Paid.** Interestshall not be paid on sums deducted from a Participant’s Compensation pursuant to the Plan. 

 

**10.7 Voluntary Withdrawal from Plan Account.** A Participant may withdraw all or any portion of the payroll deductions credited to his or her Planaccount and not previously applied toward the purchase of Stock by delivering to the Company’s designated office a written notice on a form provided by the Company for such purpose. A Participant who withdraws the entire remaining balancecredited to his or her Plan account shall be deemed to have withdrawn from the Plan in accordance with Section 12.1. Amounts withdrawn shall be returned to the Participant as soon as practicable after the Company’s receipt of the notice ofwithdrawal and may not be applied to the purchase of shares in any Offering under the Plan. The Company may from time to time establish or change limitations on the frequency of withdrawals permitted under this Section, establish a minimum dollaramount that must be retained in the Participant’s Plan account, or terminate the withdrawal right provided by this Section. 

**11. PURCHASE OF SHARES.**

 

**11.1 Exercise of Purchase Right.** On each Purchase Date of an OfferingPeriod, each Participant who has not withdrawn from the Plan and whose participation in the Offering has not otherwise terminated before such Purchase Date shall automatically acquire pursuant to the exercise of the Participant’s Purchase Rightthe number of whole shares of Stock determined by dividing (a) the total amount of the Participant’s payroll deductions accumulated in the Participant’s Plan account during the Offering Period and not previously applied toward the purchaseof Stock by (b) the Purchase Price. However, in no event shall the number of shares purchased by the Participant during an Offering Period exceed the number of shares subject to the Participant’s Purchase Right. No shares of Stock shall bepurchased on a Purchase Date on behalf of a Participant whose participation in the Offering or the Plan has terminated before such Purchase Date. 

 

**11.2 Pro Rata Allocation of Shares.** If the number of shares of Stock which might be purchased by all Participants in the Plan on a Purchase Dateexceeds the number of shares of Stock available in the Plan as provided in Section 4.1, the Company shall make a pro rata allocation of the remaining shares in as uniform a manner as practicable and as the Company determines to be equitable. Anyfractional share resulting from such pro rata allocation to any Participant shall be disregarded. 

 

**11.3 Delivery of Certificates.** As soon as practicable after each Purchase Date, the Company shall arrange the delivery to each Participant, asappropriate, of a certificate representing the shares acquired by the Participant on such Purchase Date; provided that the Company may deliver such shares to a broker designated by the Company that will hold such shares for the benefit of theParticipant. Shares to be delivered to a Participant under the Plan shall be registered in the name of the Participant, or, if requested by the Participant, in the name of the Participant and his or her spouse, or, if applicable, in the names of theheirs of the Participant. 

 

**11.4 Return of Cash Balance.**Any cash balance remaining in a Participant’s Plan account following any Purchase Date shall be refunded to the Participant as soon as practicable after such Purchase Date. However, if the cash balance to be returned to a Participant pursuantto the preceding sentence is less than the amount that would have been necessary to purchase an additional whole share of Stock on such Purchase Date, the Company may retain the cash balance in the Participant’s Plan account to be appliedtoward the purchase of shares of Stock in the subsequent Purchase Period or Offering Period, as the case may be. 

 

**11.5 Tax Withholding.** At the time a Participant’s Purchase Right is exercised, in whole or in part, or at the time a Participant disposes ofsome or all of the shares of Stock he or she acquires under the Plan, the Participant shall make adequate provision for the federal, state, local and foreign tax withholding obligations, if any, of the Participating Company Group which arise uponexercise of the Purchase Right or upon such disposition of shares, respectively. The Participating Company Group may, but shall not be obligated to, withhold from the Participant’s compensation the amount necessary to meet such withholdingobligations. 

**11.6 Expiration of Purchase Right.** Any portion of a Participant’s Purchase Right remainingunexercised after the end of the Offering Period to which the Purchase Right relates shall expire immediately upon the end of the Offering Period. 

 

**11.7 Provision of Reports and Stockholder Information to Participants.** Each Participant who has exercised all or part of his or her Purchase Rightshall receive, as soon as practicable after the Purchase Date, a report of such Participant’s Plan account setting forth the total payroll deductions accumulated prior to such exercise, the number of shares of Stock purchased, the PurchasePrice for such shares, the date of purchase and the cash balance, if any, remaining immediately after such purchase that is to be refunded or retained in the Participant’s Plan account pursuant to Section 11.4. The report required by thisSection may be delivered in such form and by such means, including by electronic transmission, as the Company may determine. In addition, each Participant shall be provided information concerning the Company equivalent to that information providedgenerally to the Company’s common stockholders. 

 

**12.WITHDRAWAL FROM OFFERING OR PLAN.**

 

**12.1 Voluntary Withdrawal from the Plan.** A Participant may withdraw from the Plan by signing and delivering to the Company’s designated officea written notice of withdrawal on a form provided by the Company for such purpose. Such withdrawal may be elected at any time prior to the end of an Offering Period; provided, however, that if a Participant withdraws from the Plan after a PurchaseDate, the withdrawal shall not affect shares of Stock acquired by the Participant on such Purchase Date. A Participant who voluntarily withdraws from the Plan is prohibited from resuming participation in the Plan in the same Offering from which heor she withdrew, but may participate in any subsequent Offering by again satisfying the requirements of Sections 5 and 7.1. The Company may impose, from time to time, a requirement that the notice of withdrawal from the Plan be on file with theCompany’s designated office for a reasonable period prior to the effectiveness of the Participant’s withdrawal. 

 

**12.2 Automatic Withdrawal from an Offering.**If the Fair Market Value of a share of Stock on the Offering Date of the Half-Year Offering Periodcommencing immediately following the first Purchase Date of the concurrent Annual Offering Period is less than the Fair Market Value of a share of Stock on the Offering Date of such concurrent Annual Offering Period, then every Participant in suchconcurrent Annual Offering Period automatically shall be (a) withdrawn from the concurrent Annual Offering Period after the acquisition of shares of Stock on the Purchase Date and (b) enrolled in the new Half-Year Offering Period effective on itsOffering Date. A Participant may elect not to be automatically withdrawn from an Annual Offering Period pursuant to this Section 12.2 by delivering to the Company’s designated office not later than the close of business on Offering Date of thenew Half-Year Offering Period a written notice indicating such election. 

 

**12.3 Return of Payroll Deductions.** Upon a Participant’s voluntary withdrawal from the Plan pursuant to Sections 12.1 or automatic withdrawal from an Offering pursuant to Section 12.2, theParticipant’s accumulated payroll deductions which have not been applied toward the purchase of shares of Stock (except, in the case of an automatic withdrawal pursuant to Section 12.2, for an amount necessary to purchase an additional wholeshare as provided in Section 11.4) 

shall be refunded to the Participant as soon as practicable after the withdrawal, without the payment of any interest, and the Participant’s interest inthe Plan or the Offering, as applicable, shall terminate. Such accumulated payroll deductions to be refunded in accordance with this Section may not be applied to any other Offering under the Plan. 

 

**12.4 Termination Of Employment Or Eligibility**. Upon aParticipant’s ceasing, prior to a Purchase Date, to be an Employee of the Participating Company Group for any reason, including retirement, disability or death, or upon the failure of a Participant to remain an Eligible Employee, theParticipant’s participation in the Plan shall terminate immediately. In such event, the Participant’s accumulated payroll deductions which have not been applied toward the purchase of shares shall, as soon as practicable, be returned tothe Participant or, in the case of the Participant’s death, to the Participant’s legal representative, and all of the Participant’s rights under the Plan shall terminate. Interest shall not be paid on sums returned pursuant to thisSection 12.4. A Participant whose participation has been so terminated may again become eligible to participate in the Plan by satisfying the requirements of Sections 5 and 7.1. 

 

**13. TERMINATION OF PLAN.**

 

If the Company’s accountants advise the Company that the accountingtreatment of purchases under the Plan will change in a manner that the Board determines is detrimental to the best interests of the Company, then the Board may, in its discretion, take any or all of the following actions: (i) terminate each Offeringhereunder that is then ongoing as of the next Purchase Date (after the purchase of stock on such Purchase Date) under such Offering; (ii) set a new Purchase Date for each ongoing Offering and terminate such Offerings after the purchase of stock onsuch Purchase Date; (iii) amend the Plan and each ongoing Offering so that such Offerings will no longer have an accounting treatment that is detrimental to the Company’s best interests; (iv) terminate each ongoing Offering and refund any moneycontributed back to the participants. 

 

**14. CHANGEIN CONTROL.**

 

**14.1 Definitions.**

 

**(a)**An “***Ownership Change Event***” shall be deemed to have occurred if any of the following occurs with respect to the Company: (i) the direct or indirect sale or exchange in a single or series of relatedtransactions by the stockholders of the Company of more than fifty percent (50%) of the voting stock of the Company; (ii) a merger or consolidation in which the Company is a party; (iii) the sale, exchange, or transfer of all or substantially all ofthe assets of the Company; or (iv) a liquidation or dissolution of the Company. 

 

**(b)**A “***Change in Control***” shall mean an Ownership Change Event or a series of related Ownership Change Events (collectively, the “***Transaction***”) wherein thestockholders of the Company immediately before the Transaction do not retain immediately after the Transaction, in substantially the same proportions as their ownership of shares of the Company’s voting stock immediately before the Transaction,direct or indirect beneficial ownership of more than fifty percent (50%) of the total combined voting power of the 

outstanding voting stock of the Company or the corporation or corporations to which the assets of the Company were transferred (the “***TransfereeCorporation(s)***”), as the case may be. For purposes of the preceding sentence, indirect beneficial ownership shall include, without limitation, an interest resulting from ownership of the voting stock of one or more corporations which,as a result of the Transaction, own the Company or the Transferee Corporation(s), as the case may be, either directly or through one or more subsidiary corporations. The Board shall have the right to determine whether multiple sales or exchanges ofthe voting stock of the Company or multiple Ownership Change Events are related, and its determination shall be final, binding and conclusive. 

 

**14.2 Effect of Change in Control on Purchase Rights**. In the event of a Change in Control, the surviving, continuing, successor, or purchasingcorporation or parent corporation thereof, as the case may be (the “Acquiring Corporation”), may assume the Company’s rights and obligations under the Plan. If the Acquiring Corporation elects not to assume the Company’s rightsand obligations under outstanding Purchase Rights, the Purchase Date of the then current Purchase Period shall be accelerated to a date before the date of the Change in Control specified by the Board, but the number of shares of Stock subject tooutstanding Purchase Rights shall not be adjusted. All Purchase Rights which are neither assumed by the Acquiring Corporation in connection with the Change in Control nor exercised as of the date of the Change in Control shall terminate and cease tobe outstanding effective as of the date of the Change in Control. 

 

**15.NONTRANSFERABILITY OF PURCHASE RIGHTS.**

 

Neither payroll deductions credited to a Participant’s Plan account nor a Participant’s Purchase Right may be assigned, transferred, pledged orotherwise disposed of in any manner other than as provided by the Plan or by will or the laws of descent and distribution. Any such attempted assignment, transfer, pledge or other disposition shall be without effect, except that the Company maytreat such act as an election to withdraw from the Plan as provided in Section 12.1. A Purchase Right shall be exercisable during the lifetime of the Participant only by the Participant. 

 

**16. COMPLIANCE WITH SECURITIES LAW.**

 

The issuance of shares under the Plan shall be subject to compliance withall applicable requirements of federal, state and foreign law with respect to such securities. A Purchase Right may not be exercised if the issuance of shares upon such exercise would constitute a violation of any applicable federal, state orforeign securities laws or other law or regulations or the requirements of any securities exchange or market system upon which the Stock may then be listed. In addition, no Purchase Right may be exercised unless (a) a registration statement underthe Securities Act of 1933, as amended, shall at the time of exercise of the Purchase Right be in effect with respect to the shares issuable upon exercise of the Purchase Right, or (b) in the opinion of legal counsel to the Company, the sharesissuable upon exercise of the Purchase Right may be issued in accordance with the terms of an applicable exemption from the registration requirements of said Act. The inability of the Company to obtain from any regulatory body having jurisdictionthe authority, if any, deemed by the Company’s legal counsel to be necessary 

to the lawful issuance and sale of any shares under the Plan shall relieve the Company of any liability in respect of the failure to issue or sell suchshares as to which such requisite authority shall not have been obtained. As a condition to the exercise of a Purchase Right, the Company may require the Participant to satisfy any qualifications that may be necessary or appropriate, to evidencecompliance with any applicable law or regulation, and to make any representation or warranty with respect thereto as may be requested by the Company. 

 

**17. RIGHTS AS A STOCKHOLDER AND EMPLOYEE.**

 

A Participant shall have no rights as a stockholder by virtue of theParticipant’s participation in the Plan until the date of the issuance of a certificate for the shares purchased pursuant to the exercise of the Participant’s Purchase Right (as evidenced by the appropriate entry on the books of theCompany or of a duly authorized transfer agent of the Company). No adjustment shall be made for dividends, distributions or other rights for which the record date is prior to the date such certificate is issued, except as provided in Section 4.2.Nothing herein shall confer upon a Participant any right to continue in the employ of the Participating Company Group or interfere in any way with any right of the Participating Company Group to terminate the Participant’s employment at anytime. 

 

**18. LEGENDS.**

 

The Company may at any time place legends or other identifying symbolsreferencing any applicable federal, state or foreign securities law restrictions or any provision convenient in the administration of the Plan on some or all of the certificates representing shares of Stock issued under the Plan. The Participantshall, at the request of the Company, promptly present to the Company any and all certificates representing shares acquired pursuant to a Purchase Right in the possession of the Participant in order to carry out the provisions of this Section.Unless otherwise specified by the Company, legends placed on such certificates may include but shall not be limited to the following: 

 

“THE SHARES EVIDENCED BY THIS CERTIFICATE WERE ISSUED BY THE CORPORATION TO THE REGISTERED HOLDER UPON THE PURCHASE OF SHARES UNDER AN EMPLOYEE STOCKPURCHASE PLAN AS DEFINED IN SECTION 423 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. THE TRANSFER AGENT FOR THE SHARES EVIDENCED HEREBY SHALL NOTIFY THE CORPORATION IMMEDIATELY OF ANY TRANSFER OF THE SHARES BY THE REGISTERED HOLDER HEREOF. THEREGISTERED HOLDER SHALL HOLD ALL SHARES PURCHASED UNDER THE PLAN IN THE REGISTERED HOLDER’S NAME (AND NOT IN THE NAME OF ANY NOMINEE).” 

 

**19. NOTIFICATION OF DISPOSITION OF SHARES.**

 

The Company may require the Participant to give the Company prompt notice ofany disposition of shares acquired by exercise of a Purchase Right within two years from the date of granting such Purchase Right or one year from the date of exercise of such Purchase Right. The Company may require that until such time as aParticipant disposes of shares acquired upon exercise of a Purchase Right, the Participant shall hold all such shares in the Participant’s name 

(or, if elected by the Participant, in the name of the Participant and his or her spouse but not in the name of any nominee) until the lapse of the timeperiods with respect to such Purchase Right referred to in the preceding sentence. The Company may direct that the certificates evidencing shares acquired by exercise of a Purchase Right refer to such requirement to give prompt notice ofdisposition. 

 

**20. NOTICES.**

 

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

 

**21. INDEMNIFICATION.**

 

In addition to such other rights of indemnification as they may have asmembers of the Board or officers or employees of the Participating Company Group, members of the Board and any officers or employees of the Participating Company Group to whom authority to act for the Board or the Company is delegated shall beindemnified by the Company against all reasonable expenses, including attorneys’ fees, actually and necessarily incurred in connection with the defense of any action, suit or proceeding, or in connection with any appeal therein, to which theyor any of them may be a party by reason of any action taken or failure to act under or in connection with the Plan, or any right granted hereunder, and against all amounts paid by them in settlement thereof (provided such settlement is approved byindependent legal counsel selected by the Company) or paid by them in satisfaction of a judgment in any such action, suit or proceeding, except in relation to matters as to which it shall be adjudged in such action, suit or proceeding that suchperson is liable for gross negligence, bad faith or intentional misconduct in duties; provided, however, that within sixty (60) days after the institution of such action, suit or proceeding, such person shall offer to the Company, in writing, theopportunity at its own expense to handle and defend the same. 

 

**22.AMENDMENT OR TERMINATION OF THE PLAN.**

 

The Board may at any time amend or terminate the Plan, except that (a) such termination shall not affect Purchase Rights previously granted under thePlan, except as permitted under the Plan, and (b) no amendment may adversely affect a Purchase Right previously granted under the Plan (except to the extent permitted by the Plan or as may be necessary to qualify the Plan as an employee stockpurchase plan pursuant to Section 423 of the Code or to obtain qualification or registration of the shares of Stock under applicable federal, state or foreign securities laws). In addition, an amendment to the Plan must be approved by thestockholders of the Company within twelve (12) months of the adoption of such amendment if such amendment would authorize the sale of more shares than are authorized for issuance under the Plan or would change the definition of the corporations thatmay be designated by the Board as Participating Companies. 

**PLAN HISTORY**
March 22, 1999  Board adopts the Plan, with an initial reserve of 800,000 shares, to replace the Company’s 1997 Employee Stock Purchase Plan.June 4, 1999  Stockholders approve Plan, with an initial reserve of 800,000 shares.June 8, 2000  Board approves a 500,000 share increase in the Plan’s reserve (from 800,000 to 1,300,000 shares).July 25, 2000  Stockholders approve 500,000 share reserve increase, bringing the reserve to 1,300,000 shares.March 31, 2002  Board approves a 900,000 share increase in the Plan’s reserve (from 1,300,000 to 2,200,000 shares).May 16, 2002  Stockholders approve 900,000 share reserve increase, bringing the Reserve to 2,200,000.April 23, 2003  Board approves a 900,000 share reserve increase, bringing the Reserve to 3,100,000.June 12, 2003  Stockholders approve 900,000 share reserve increase, bringing the Reserve to 3,100,000.March 11, 2005  Board approves a 900,000 share reserve increase, bringing the Reserve to 4,000,000.May 13, 2005  Stockholders approve 900,000 share reserve increase, bringing the Reserve to 4,000,000.