exh10-1.htm


    
      
         


      

      
         


        
          

        

      

      
         


      

    

    Exhibit
10.1

    


    IPG
PHOTONICS CORPORATION

    2008 EMPLOYEE STOCK PURCHASE
PLAN

    (As
Amended and Restated June 9, 2009)

    


    Article
I

    Introduction

     

    1.01 Purpose.  The
purpose of the IPG Photonics Corporation 2008 Employee Stock Purchase Plan (the
“Plan”) is to provide employees of IPG Photonics Corporation (the “Company”)
with an opportunity to purchase Common Stock of the Company through accumulated
payroll deductions.

     

    1.02 Operation.  It
is the intention of the Company to have the Plan qualify as an “employee stock
purchase plan” under Code Section 423.  Accordingly, the provisions of
the Plan will be administered, interpreted and construed so as to extend and
limit Plan participation in a manner consistent with the requirements of Code
Section 423.  However, the Company makes no undertaking or
representation to maintain such qualification.  In addition, the Plan
authorizes the purchase of shares of Common Stock under a Non-Code Section
423(b) Component, pursuant to rules, procedures or sub-plans adopted by the
Board and designed to achieve tax, securities law or other objective, provided,
however, that U.S. Eligible Employees will not be permitted to purchase shares
of Common Stock under the Non-Code Section 423(b) Component.

     

    Article
II

    Definitions

     

    2.01 “Administrator” means
the Compensation Committee of the Board or any committee designated by the Board
to administer the Plan pursuant to Article VII.

     

    2.02 “Affiliate” means any
entity, other than a Subsidiary, in which the Company has an equity or other
ownership interest.

     

    2.03 “Board” means the
Board of Directors of the Company.

     

    2.04 “Change in Control”
means the occurrence of any of the following events:

     

    (a)           Any
"person" (as such term is defined in Section 3(a)(9) of the Exchange Act and as
used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act), including a "group"
(as defined in Section 13(d)(3) of the Exchange Act), other than (i) the
Company, (ii) any wholly-owned subsidiary of the Company, or (iii) any employee
benefit plan (or related trust) sponsored or maintained by the Company or any
Affiliate, becomes a "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company having fifty
percent (50%) or more of the combined voting power of the then-outstanding
securities of the Company that may be cast for the election of directors of the
Company (other than as a result of an issuance of securities initiated by the
Company in the ordinary course of business) (the "Company Voting Securities");
provided, however, that the event described in this paragraph (a) shall not be
deemed to be a Change in Control by virtue of any underwriter temporarily
holding securities pursuant to an offering of such securities;

     

    (b)           During
any period of two consecutive years, individuals who at the beginning of any
such period constitute the Board (the "Incumbent Directors") cease for any
reason to constitute at least a majority of the Board, unless the election, or
the nomination for election by the stockholders of the Company, of each new
director of the Company during such period was approved by a vote of at least
two-thirds of the Incumbent Directors then still in office;

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    (c)           As
the result of, or in connection with, any cash tender or exchange offer, merger
or other business combination, sale of all or substantially all of the assets or
contested election, or any combination of the foregoing transactions, less than
a majority of the combined voting power of the then-outstanding securities of
the Company or any successor corporation or entity entitled to vote generally in
the election of the directors of the Company or such other corporation or entity
after such transaction is held in the aggregate by the holders of the securities
of the Company entitled to vote generally in the election of directors of the
Company immediately prior to such transaction; or

     

    (d)           The
stockholders of the Company approve a plan of complete liquidation of the
Company.

     

    Notwithstanding
the foregoing, a Change in Control shall not be deemed to occur solely because
any person acquires beneficial ownership of more than fifty percent (50%) of the
Company Voting Securities as a result of the acquisition of Company Voting
Securities by the Company that reduces the number of Company Voting Securities
outstanding; provided, however, that if after such acquisition by the Company
such person becomes the beneficial owner of additional Company Voting Securities
that increases the percentage of outstanding Company Voting Securities
beneficially owned by such person, a Change in Control transaction may
occur.

     

    2.05 “Code” means the U.S.
Internal Revenue Code of 1986, as amended.

     

    2.06 “Code Section 423(b)
Component” means an employee stock purchase plan that is designed to meet
the requirements set forth in Code Section 423(b), as amended.  The
provisions of the Code Section 423(b) Component shall be construed, administered
and enforced in accordance with Code Section 423(b).

     

    2.07 “Common Stock” means
the common stock of the Company.

     

    2.08 “Company” means IPG
Photonics Corporation, a Delaware Corporation.

     

    2.09 “Compensation” means
(i) the base salary and wages paid in cash to a Participant by the Participating
Company, plus (ii) any pre-tax contributions made by the Participant under Code
Section 401(k) or 125. "Compensation" shall exclude variable compensation
(including bonuses, incentive compensation, commissions, overtime pay and shift
premiums), all non-cash items, moving or relocation allowances, cost-of-living
equalization payments, car allowances, tuition reimbursements, imputed income
attributable to cars or life insurance, severance pay, fringe benefits,
contributions or benefits received under employee benefit plans, income
attributable to the exercise of stock options, and similar items.

     

    2.10 “Employee” means any
individual who is a common law employee of a Participating Company for tax
purposes whose customary employment with the Participating Company is at least
twenty (20) hours per week and more than five (5) months in any calendar year;
provided, however, that any individual who is an employee of a Participating
Company in the Non-Code Section 423(b) Component may be an Employee for purposes
of the Plan even if his or her customary employment is less than twenty (20)
hours per week and less than five (5) months in any calendar year, to the extend
required by applicable local law.

     

    2.11 “Enrollment Date”
means the first Trading Date of each Offering Period.

     

    2.12 “Exchange Act” means
the U.S. Securities Exchange Act of 1934, as amended, including the rules and
regulations promulgated thereunder.

     

    2.13 “Exercise Date” means
the last Trading Date of each Offering Period.

     

    2.14 “Fair Market Value”
means, as of any date, the value of a share of Common Stock determined as
follows:

     

    
      
        
        

      

      
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    (a)           If
the Common Stock is listed on any established stock exchange or a national
market system, its Fair Market Value will be the closing sales price for the
Common Stock (or the closing bid, if no sales were reported) as quoted on such
exchange or system on the date of determination, as reported in The Wall Street Journal or
such other source as the Administrator deems reliable;

    
       

    

    (b)           If
the Common Stock is regularly quoted by a recognized securities dealer but
selling prices are not reported, its Fair Market Value will be the mean of the
closing bid and asked prices for the Common Stock on the date of determination,
as reported in The Wall Street
Journal or such other source as the Administrator deems reliable;
or

    
       

    

    (c)           In
the absence of an established market for the Common Stock, its Fair Market Value
will be determined in good faith by the Administrator.

     

    2.15 “Fiscal Year” means
the 12-consecutive month period coinciding with the calendar year, which is the
Company's fiscal year.

     

    2.16 “Non-Code Section 423(b)
Component” means the grant of an option under the Plan that is not
intended to meet the requirements set forth Code Section 423(b).

     

    2.17 “Offering Period”
means a period with respect to which the right to purchase Common Stock may be
granted under the Plan, as determined pursuant to Section 3.03.

     

    2.18 “Parent” means a
“parent corporation” whether now or hereafter existing, as defined in Code
Section 424(e).

     

    2.19 “Participant” means an
Employee who elects to participate in the Plan, as provided in Section
3.04.

     

    2.20 “Participating
Company” means the Company and each Related Company that has been
designated by the Administrator from time to time in its sole discretion as
eligible to participate in the Plan.  For purposes of the Code Section
423(b) Component, only the Company, a Parent or a Subsidiary may be a
Participating Company; provided, however, that, at any given time, a Subsidiary
that is a Participating Company under the Code Section 423(b) Component will not
be a Participating Company under the Non-Code Section 423(b)
Component.

     

    2.21 “Plan” means the IPG
Photonics Corporation 2008 Employee Stock Purchase Plan, which includes a Code
Section 423(b) Component and a Non-Code Section 423(b) Component, as it may be
amended from time to time.

     

    2.22 “Purchase Price” means
the price at which Participants may purchase Common Stock under the Plan, as
determined pursuant to Section 5.02.

     

    2.23 “Related Company”
means any Parent, Subsidiary or Affiliate of the Company.

     

    2.24 “Subsidiary” means a
corporation, domestic or foreign, of which not less than fifty percent (50%) of
the voting shares are held by the Company or a Subsidiary, whether or not such
corporation now exists or is hereafter organized or acquired by the Company or a
Subsidiary.

     

    2.25 “Trading Day” means a
day on which the U.S. national stock exchanges and the Nasdaq System are open
for trading.

     

    2.26 “U.S. Employee” means
an Employee who (i) resides in the United States, and (ii) is employed by the
Company or a Participating Company located in the United States.

     

    
      
        
        

      

      
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    Article
III

    Eligibility and
Participation

     

    3.01 Eligibility.  Subject
to the requirements of Section 3.04, each Employee who has completed six (6) or
more months of continuous service with a Participating Company on an Enrollment
Date of an Offering Period shall be eligible to participate in such Offering
Period; provided, however, that, for Employees participating in the Non-Code
Section 423(b) Component, to the extent required by applicable local law, an
Employee may be eligible to participate in an Offering Period, notwithstanding
that he or she has not completed six (6) or more months of continuous service
with a Participating Company on an Enrollment Date of an Offer
Period.

     

    3.02 Limitations.  Notwithstanding
any provisions of the Plan to the contrary, no Employee will be granted an
option to purchase shares of Common Stock under the Plan (a) to the extent that,
immediately after the grant, such Employee would own capital stock of the
Company or any Related Company and/or hold outstanding options to purchase such
stock possessing five percent (5%) or more of the total combined voting power or
value of all classes of the capital stock of the Company or of any Related
Company (for purposes of this subsection, the rules of Code Section
424(d)  shall apply in determining stock ownership of any Employee),
or (b) to the extent that such Employee's rights to purchase stock under all
employee stock purchase plans (as defined in Code Section 423) of the Company or
any Related Company accrues at a rate which exceeds $25,000 of Fair Market Value
of the stock (determined at the time such option is granted) for each calendar
year in which such option is outstanding at any time.

    
       

    

    3.03 Offering
Periods.  The Offering Periods shall consist of six (6) month
periods commencing on the first Trading Day on or after January 1 and July 1 of
each year; provided, however, that the first Offering Period under the Plan
shall commence and end on the Trading Days selected by the Administrator
consistent with Code Section 423.  The Administrator will have the
power to change the duration of Offering Periods (including the commencement
dates thereof) with respect to future offerings without stockholder approval if
such change is announced prior to the scheduled beginning of the first Offering
Period to be affected thereafter.

     

    3.04 Participation.  An
Employee may become a Participant in the Plan by (i) submitting to the
Administrator (or its designee), on or before a dated prescribed by the
Administrator prior to an applicable Enrollment Date, a properly completed
authorization for payroll deductions in the form provided by the Administrator
for such purposes or (ii) following an electronic or other enrollment procedure
prescribed by the Administrator.  To the extent required by applicable
local law, the Administrator, in its sole discretion, may decide that an
Eligible Employee may contribute to the Plan by means other than payroll
deductions, provided that contributions other than payroll deductions will be
permissible only for Employees participating in the Non-Code Section 423(b)
Component.

     

    Article
IV

    Payroll
Deductions

     

    4.01 Amount of
Deduction/Contribution.  At the time a Participant enrolls in
the Plan pursuant to Section 3.04, he or she will elect payroll deductions or
contribution amounts (as applicable) of any whole percentage not exceeding ten
percent (10%) of such Participant’s Compensation for each pay period during an
Offering Period.  Payroll deductions or contributions authorized by a
Participant will commence on the first payday following the Enrollment
Date.  A Participant’s election shall remain in effect for successive
Offering Periods unless modified or suspended by the Participant in accordance
with procedures established by the Administrator or terminated as provided in
Section 4.07.

     

    4.02 Participant’s
Account.  All of a Participant’s payroll
deductions/contributions will be credited to an account established for such
Participant under the Plan.  Except as expressly provided herein, a
Participant may not make any additional payments into such account.

     

    4.03 Changes in Payroll
Deductions/Contributions.  Once enrolled for an Offering
Period, a Participant may not change his or her payroll deduction/contribution
election for that Offering Period, unless required by applicable local
law.

     

    
      
        
        

      

      
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    4.04 Administrator’s Power to
Suspend Deductions/Contributions.  Notwithstanding the
foregoing, to the extent necessary to comply with Code Section 423(b)(8) and
Section 3.02, a Participant’s payroll deductions/contributions may be decreased
at any time during an Offering Period.  Subject to Code Section
423(b)(8) and Section 3.02 hereof, payroll deductions/contributions will
recommence at the rate elected by the Participant immediately prior to the
suspension, effective as of the Enrollment Date of the first Offering Period in
which the Participant’s payroll deductions/contributions will comply with Code
Section 423(b)(8) and Section 3.02, unless terminated as provided in Section
4.07.

     

    4.05 Interest.  No
interest will accrue on the payroll deductions of a Participant in the Plan,
unless required by applicable local law.

     

    4.06 Withdrawal.  No
Participant in the Plan shall be entitled to withdraw any amount from the
accumulated payroll deductions/contributions in his or her account, unless
required by applicable local law; provided, however, that a Participant’s
accumulated payroll deductions/contributions shall be refunded to the
Participant as and to the extent specified in Section 4.07 below.

     

    4.07 Termination of
Employment.  Notwithstanding anything in the Plan to the
contrary, upon termination of a Participant’s employment with the Participating
Companies for any reason, the Participant’s participation in the Plan shall be
terminated and the payroll deductions/contributions credited to the
Participant’s account during the Offering Period but not yet used to purchase
shares of Common Stock under the Plan will be returned to the Participant or, in
the case of the Participant’s death, to the Participant’s designated
beneficiary.  If no beneficiary is designated or if a beneficiary
designation is not permitted by the Administrator, the amounts credited to the
Participant’s account shall be paid to the Participant’s estate.

     

    Article
V

    Option Grants and
Exercise

     

    5.01 Grant of
Option.  On an Enrollment Date of each Offering Period, each
Participant shall be deemed to have been granted an option to purchase on the
Exercise Date of the Offering Period a number of shares of Common Stock
determined by dividing the Participant’s accumulated payroll
deductions/contributions as of the Exercise Date by the Purchase
Price.

     

    5.02 Purchase
Price.  The applicable Purchase Price shall be an amount equal
to the lower of (a) eighty-five percent (85%) of the Fair Market Value of a
share of Common Stock on the Enrollment Date or (b) eighty-five percent (85%) of
the Fair Market Value of a share of Common Stock on the Exercise Date; provided,
however, that the Purchase Price may be adjusted by the Administrator pursuant
to Article VIII.

     

    5.03 Limitation.  Except
as otherwise provided by the Administrator, the maximum number of shares of
Common Stock that a Participant may purchase with respect to any Offering Period
is the number of shares determined by dividing $12,500 by the Fair Market Value
of a share of Common Stock on the Enrollment Date.

     

    
      
        
        

      

      
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    5.04 Option Exercise.
Except as provided in Section 4.07, a Participant’s option for the purchase of
shares of Common Stock will be exercised automatically on the Exercise Date, and
the maximum number of full shares subject to an option will be purchased for
such Participant at the applicable Purchase Price with the accumulated payroll
deductions/contributions in the Participant’s account.  During a
Participant’s lifetime, the Participant’s option to purchase shares hereunder is
exercisable only by him or her.

     

    5.05 Fractional
Shares.  No fractional shares of Common Stock will be
purchased; any payroll deductions/contributions accumulated in a Participant’s
account that are not sufficient to purchase a full share of Common Stock will be
retained in the Participant’s account for the subsequent Offering
Period.

     

    5.06 Purchase
Reductions.  Notwithstanding anything herein to the contrary,
the Administrator shall have the discretion to reduce the number of shares of
Common Stock to be purchased by Participants with respect to an Offering Period
and to allocate such reduced number of shares among Participants in such
Offering Period, so long as such reduction and allocation is done in a manner
consistent with Code Section 423.  Any payroll deductions not applied
to the purchase of shares of Common Stock shall be promptly refunded to
Participants after the Exercise Date of the Offering Period to which such
reduction applies.

     

    5.07 Delivery.  After
each Exercise Date on which a purchase of shares of Common Stock occurs, shares
purchased upon exercise of the Participant’s option shall be held in such
Participant’s account.  As soon as administratively practicable after
the Participant’s request, the Company will distribute to such Participant, as
appropriate, the shares in each Participant's account in a form determined by
the Administrator (in its sole discretion) and pursuant to rules established by
the Administrator.  No Participant will have any voting, dividend, or
other stockholder rights with respect to shares of Common Stock subject to any
option granted under the Plan until such shares have been purchased and
delivered to the Participant’s account.

     

    5.08 Interest.  No
interest will be paid or allowed on any money paid into the Plan or credited to
the account of distributed to any Participant, unless otherwise required by
applicable local law.

     

    Article
VI

    Common
Stock

     

    6.01 Available
Shares.  Subject to Section 9.05, the maximum number of shares
of Common Stock that will be made available for sale under the Plan will be
400,000 shares of Common Stock, plus an annual increase, if any, to be added on
the first day of each Fiscal Year so that the total number of shares of Common
Stock available shall be equal to the greater of (i) the number of shares
of Common Stock available under the Plan as of the last day of the immediately
preceding Fiscal Year and (ii) the lesser of (A) 400,000 shares of Common Stock
and (B) seventy-five hundredths of one percent (0.75%) of the outstanding shares
of Common Stock on the last day of the immediately preceding Fiscal
Year.  Any or all shares of Common Stock may be granted under the Code
Section 423(b) Component.

     

    6.02 Registration.  Shares
of Common Stock purchased by a Participant under the Plan will be registered in
the name of the Participant or, to the extent required or if the Participant so
directs by written notice to the Administrator prior to the Exercise Date, in
the name of the Participant and his or her spouse.

     

    
       

    

    Article
VII

    Administration

     

    7.01 Administration. The
Administrator shall administer the Plan.  The Administrator will have
full and exclusive discretionary authority to construe, interpret and apply the
terms of the Plan, to determine eligibility, to adjudicate all disputed claims
filed under the Plan and to establish such procedures that it deems necessary
for administration of the Plan (including, without limitation, to adopt such
rules, procedures and sub-plans as are necessary or appropriate to accommodate
the specific requirements of applicable local laws to permit the participation
in the Plan by Employees who are foreign nationals or employed outside of the
United States).  Every finding, decision and determination made by the
Administrator shall, to the fullest extent permitted by law, be final and
binding upon all parties.

     

    
      
        
        

      

      
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    7.02 Delegation.  The
Administrator, in its sole discretion and on such terms and conditions as it may
provide, may delegate to one or more individuals all or any part of its
authority and powers under the Plan.

     

    7.03 Rules Governing the
Administration of the Committee.  The Board may from time to
time appoint members of a committee to serve as the Administrator of the
Plan.  Such committee may select one of its members as its
chairperson, shall hold meetings at such times and places as it shall deem
advisable, and may hold telephonic meetings.  All determinations of
the committee shall be made by a majority of its members.  A decision
or determination reduced to writing and signed by a majority of the members of
the committee shall be fully effective as if it had been made by a majority vote
at a meeting duly called and held.  The committee may appoint a
secretary and shall make such rules and regulations for the conduct of its
business as it shall deem advisable.

     

    Article
VIII

    Amendment and
Termination

     

    8.01 Amendment or
Termination.  The Board may at any time and for any reason
suspend, terminate or amend the Plan; provided, however, that the Board shall
not, without the approval of the stockholders of the Company, alter (a) the
aggregate number of shares of Common Stock that may be issued under the Plan
(except pursuant to Section 9.05), or (b) the class of Employees eligible to
receive options under the Plan, other than to designate Participating Companies;
and provided, further, that, subject to Section 8.02, no termination,
modification, or amendment of the Plan may, without the consent of an Employee
then having an option under the Plan to purchase shares of Common Stock,
adversely affect the rights of such Employee under such option.  In
addition, and notwithstanding anything contained herein to the contrary, to the
extent necessary under Code Section 423 (or any successor rule or provision or
any applicable law or regulation), the Company shall obtain stockholder approval
in such a manner and to such a degree as required.

    
       

    

    8.02 Administrator
Authority.  Without stockholder consent, the Administrator
shall be entitled to change the Offering Periods, limit the frequency and/or
number of changes in the amount withheld during an Offering Period, establish
the exchange ratio applicable to amounts withheld in a currency other than U.S.
dollars, permit payroll withholding in excess of the amount designated by a
Participant in order to adjust for delays or mistakes in the Company’s
processing of properly completed withholding elections, establish reasonable
waiting and adjustment periods and/or accounting and crediting procedures to
ensure that amounts applied toward the purchase of Common Stock for each
Participant properly correspond with amounts withheld from the Participant’s
Compensation or otherwise contributed by the Participant, and establish such
other limitations or procedures as the Administrator determines in its sole
discretion advisable that are consistent with the Plan, in each case so long as
any such action is consistent with Code Section 423.  None of the
foregoing actions shall be considered to have adversely affected any right of
any Participant.

     

    8.03 Accounting Treatment.
In the event the Administrator determines that the ongoing operation of the Plan
may result in unfavorable financial accounting consequences, the Administrator
may, in its discretion and to the extent necessary or desirable, modify, amend
or terminate the Plan to reduce or eliminate such accounting consequence
including, but not limited to:

     

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

     

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

     

    (c)           reducing
the maximum percentage of Compensation a Participant may elect to set aside as
payroll deductions;

     

    (d)           reducing
the maximum number of Shares a Participants may purchase during any Offering
Period; and

     

    (e)           allocating
shares of Common Stock to Participant's pursuant to Section 5.06.

     

    None of
the foregoing actions shall require stockholder approval or shall be considered
to have adversely affected any right of any Participant.

     

    
      
        
        

      

      
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    Article
IX

    Miscellaneous

     

    9.01 Transferability.  Neither
payroll deductions/contributions credited to a Participant’s account nor any
option or other rights with regard to the exercise of an option to receive
shares of Common Stock under the Plan may be assigned, transferred, pledged or
otherwise disposed of in any way by the Participant other than by will, the laws
of descent and distribution, or as provided in Section 9.04.

     

    9.02 Use of
Funds.  The Company may use all payroll
deductions/contributions received or held by the Company under the Plan for any
corporate purpose, and the Company will not be obligated to segregate such
payroll deductions/contributions, unless otherwise required by applicable local
law.  Until shares of Common Stock are issued under the Plan (as
evidenced by the appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company), a Participant will only have the
rights of an unsecured creditor with respect to such shares.

     

    9.03 Reports.  Individual
accounts will be maintained for each Participant.  Statements of
account will be given to Participants at least annually, which statements will
set forth the amounts of payroll deductions/contributions, the Purchase Price,
the number of shares of Common Stock purchased and the remaining cash balance,
if any.

    
       

    

    9.04 Designation of
Beneficiary.

     

    (a)           If
permitted by the Administrator in its sole discretion, a Participant may
designate a beneficiary who is to receive any shares of Common Stock and cash,
if any, from the Participant’s account under the Plan in the event of such
Participant’s death subsequent to an Exercise Date on which the option is
exercised but prior to delivery to such Participant of such shares and cash. In
addition, if permitted by the Administrator in its sole discretion, a
Participant may designate a beneficiary who is to receive any cash from the
Participant’s account under the Plan in the event of such Participant’s death
prior to exercise of the option. If a Participant is married and the designated
beneficiary is not the spouse, spousal consent may be required by the
Administrator in its sole discretion for such designation to be effective,
unless otherwise required by applicable local law.

     

    (b)           If
the Administrator in its sole discretion has permitted the Participant to make a
beneficiary designation, the Participant may change such designation of
beneficiary at any time by written notice.  In the event of the death
of a Participant and in the absence of a beneficiary validly designated under
the Plan who is living at the time of such Participant’s death, the Company will
deliver such shares and/or cash to the Participant’s estate.

     

    (c)           All
beneficiary designations permitted under this Section 9.04 will be made in such
form and manner as the Administrator may prescribe from time to
time.

     

    9.05 Adjustment upon Changes in
Capitalization; Change in Control.

     

    (a)           Adjustments.  In
the event that any dividend or other distribution (whether in the form of cash,
Common Stock, other securities, or other property), recapitalization, stock
split, reverse stock split, reorganization, merger, consolidation, split-up,
spin-off, 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 such that adjustment is appropriate to
prevent dilution or enlargement of the benefits or potential benefits intended
to be made available under the Plan, the Administrator shall adjust the shares
of Common Stock to preserve the benefits or potential benefits under the
Plan.  Action by the Administrator may include adjustment of: (i) the
number and class of Common Stock that may be delivered under the Plan, (ii) the
Purchase Price per share, (iii) the number of shares of Common Stock covered by
each option under the Plan that has not yet been exercised, and (iv) the
numerical limits of Section 6.01.

     

    
      
        
        

      

      
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    (b)           Change in Control. In
the event of a Change in Control, any Offering Period then in progress will be
shortened by setting a new Exercise Date (the “New Exercise Date”) on the date
of the Change in Control and will terminate on such date, unless provided
otherwise by the Administrator.  The Administrator will notify each
Participant in writing, at least ten (10) business days prior to the New
Exercise Date, that the Exercise Date for the Participant’s option has been
changed to the New Exercise Date and that the Participant’s option will be
exercised automatically on the New Exercise Date.

     

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

    
       

    

    9.07 Conditions Upon Issuance of
Shares.

     

    (a)           Shares
of Common Stock will not be issued with respect to an option under the Plan
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 of 1933, as amended,
including the rules and regulations promulgated thereunder, the Exchange Act,
and the requirements of any stock exchange upon which the shares may then be
listed, and will further be subject to the approval of counsel for the Company
with respect to such compliance.  If, on the Exercise Date of any
Offering Period, as delayed to the maximum extent permissible, the shares of
Common Stock have not yet been issued, all payroll deductions/contributions
accumulated during the Offering Period (reduced to the extent, if any, such
deductions/contributions have been used to acquire shares of Common Stock) shall
be distributed to Participants, without interest, unless otherwise required
under applicable local law.

     

    (b)           As
a condition to the exercise of an option, the Company may require the person
exercising such option to represent and warrant at the time of any such exercise
that the shares are being purchased only for investment and without any present
intention to sell or distribute such shares if, in the opinion of counsel for
the Company, such a representation is required by any of the aforementioned
applicable provisions of law.

     

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

     

    9.09 Effective
Date.  The Plan shall become effective as of its adoption of by
the Board, subject to approval by the holders of a majority of the shares of
Common Stock, and shall continue in effect until the earliest the date that (a)
the shares of Common Stock reserved for issuance have been depleted, (b) the
Plan is terminated under Article VIII, and (c) is the tenth anniversary of the
Effective Date.

     

    9.10 No Employment Rights.
The Plan does not, directly or indirectly, create in any person any right with
respect to employment or continuation of employment by the Company or any
Related Company, and it shall not be deemed to interfere in any way with the
Company’s or any Related Company’s right to terminate, or otherwise modify, any
Employee's employment at any time.

     

    9.11 Severability.  If
any particular provision of this Plan is found to be invalid or otherwise
unenforceable, such provision shall not affect the enforceability of the other
provisions of the Plan, and the Plan shall be construed in all respects as if
such invalid provision had been omitted.

     

    9.12 Governing
Law.  Except to the extent superseded by the federal laws of
the United States, the law of the State of Delaware, without regard to its
conflict of laws provisions, will govern all matters relating to this
Plan.


    
      
         


      

      
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