Exhibit
10.2


 


OMNICELL, INC.


AMENDED
AND RESTATED


 1997 EMPLOYEE STOCK PURCHASE PLAN


 


ADOPTED
BY THE BOARD OF DIRECTORS MARCH 18, 1997


APPROVED
BY STOCKHOLDERS MARCH 6, 1998


AMENDED
BY THE BOARD OF DIRECTORS APRIL 19, 2000


AMENDMENT
APPROVED BY STOCKHOLDERS APRIL 16, 2001


AMENDED
BY THE BOARD OF DIRECTORS MARCH 5, 2009


AMENDMENT
APPROVED BY STOCKHOLDERS MAY 19, 2009


 


1.                                      PURPOSE.


 


(a)           The purpose of the Plan is to provide a means by which
Employees of the Company and certain designated Affiliates may be given an
opportunity to purchase shares of the Common Stock of the Company.


 


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


 


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


 


2.                                      DEFINITIONS.


 


(a)           “Affiliate”  means any parent corporation or subsidiary
corporation, whether now or hereafter existing, as those terms are defined in
Sections 424(e) and (f), respectively, of the Code.


 


(b)           “Board”  means the Board of Directors of the Company.


 


(c)           “Code”  means the Internal Revenue Code of 1986, as amended.


 


(d)           “Committee”  means a Committee appointed by the Board in accordance
with subparagraph 3(c) of the Plan.


 


(e)           “Common Stock” means the Common Stock of Omnicell, Inc.


 


(f)            “Company”
means Omnicell, Inc., a Delaware corporation.


 


(g)           “Director”  means a member of the Board.


 


(h)           “Eligible
Employee” means an Employee who meets the requirements set forth in the Offering
for eligibility to participate in the Offering.


 


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(i)            “Employee”  means any person, including Officers and Directors,
employed by the Company or an Affiliate of the Company.  Neither service as a Director nor payment of
a director’s fee shall be sufficient to constitute “employment” by the Company
or the Affiliate.


 


(j)            “Employee Stock Purchase
Plan”  means a
plan that grants rights intended to be options issued under an “employee stock
purchase plan,” as that term is defined in Section 423(b) of the
Code.


 


(k)           “Exchange Act”  means the Securities Exchange Act of 1934, as amended.


 


(l)            “Fair Market Value”  means the value of a security, as determined in good
faith by the Board.  If the security is
listed on any established stock exchange or traded on the Nasdaq National
Market or the Nasdaq SmallCap Market, then, except as otherwise provided in the
Offering, the Fair Market Value of the security shall be the closing sales
price (rounded up where necessary to the nearest whole cent) for such security
(or the closing bid, if no sales were reported) as quoted on such exchange or
market (or the exchange or market with the greatest volume of trading in the
relevant security of the Company) on the relevant determination date, as
reported in The Wall Street Journal or such other
source as the Board deems reliable, or if such date is not a trading day, then
on the next preceding trading day.


 


(m)          “Non-Employee Director”  means a Director who either (i) is not a current
Employee or Officer of the Company or its parent or subsidiary, does not
receive compensation (directly or indirectly) from the Company or its parent or
subsidiary for services rendered as a consultant or in any capacity other than
as a Director (except for an amount as to which disclosure would not be
required under Item 404(a) of Regulation S-K promulgated pursuant to the
Securities Act (“Regulation S-K”)), does not possess an interest in any other
transaction as to which disclosure would be required under Item 404(a) of
Regulation S-K, and is not engaged in a business relationship as to which
disclosure would be required under Item 404(b) of Regulation S-K; or (ii) is
otherwise considered a “non-employee director” for purposes of Rule 16b-3.


 


(n)           “Offering”  means the grant of Rights to purchase shares of the
Common Stock under the Plan to Eligible Employees.


 


(o)           “Offering Date” means a date selected by the Board for
an Offering to commence.


 


(p)           “Outside Director”  means a Director who either (i) is not a current
employee of the Company or an “affiliated corporation” (within the meaning of
the Treasury regulations promulgated under Section 162(m) of the
Code), is not a former employee of the Company or an “affiliated corporation”
receiving compensation for prior services (other than benefits under a tax
qualified pension plan), was not an officer of the Company or an “affiliated
corporation” at any time, and is not currently receiving direct or indirect
remuneration from the Company or an “affiliated corporation” for services in
any capacity other than as a Director, or (ii) is otherwise considered an “outside
director” for purposes of Section 162(m) of the Code.


 


(q)           “Participant”  means an Eligible Employee who holds an outstanding
Right granted pursuant to the Plan or, if applicable, such other person who
holds an outstanding Right granted under the Plan.


 


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(r)           “Plan”  means this 
Omnicell, Inc. Amended and Restated 1997 Employee Stock Purchase
Plan.


 


(s)           “Purchase Date”  means one or more dates established by the Board
during an Offering on which Rights granted under the Plan shall be exercised
and purchases of shares of the Common Stock carried out in accordance with such
Offering.


 


(t)            “Right”  means an option to purchase shares of the Common Stock
granted pursuant to the Plan.


 


(u)           “Rule 16b-3”  means Rule 16b-3 of the Exchange Act or any
successor to Rule 16b-3 as in effect with respect to the Company at the
time discretion is being exercised regarding the Plan.


 


(v)            “Securities Act”  means the Securities Act of 1933, as amended.


 


3.                                      ADMINISTRATION.


 


(a)           The Board shall administer the Plan unless and until
the Board delegates administration to a Committee, as provided in subparagraph
3(c).  Whether or not the Board has
delegated administration, the Board shall have the final power to determine all
questions of policy and expediency that may arise in the administration of the
Plan.


 


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


 


(i)            To determine when and how Rights to purchase shares of
the Common Stock shall be granted and the provisions of each Offering of such
Rights (which need not be identical).


 


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


 


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


 


(iv)          To amend the Plan as provided in paragraph 14.


 


(v)            To terminate or suspend the Plan as provided in
paragraph 16.


 


(vi)          Generally, to exercise such powers and to perform such
acts as it deems necessary or expedient to promote the best interests of the
Company and its Affiliates and to carry out the intent that the Plan be treated
as an Employee Stock Purchase Plan.


 


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(c)           The Board may delegate administration of the Plan to a
Committee of the Board composed of two (2) or more members, all of the
members of which Committee may be, in the discretion of the Board, Non-Employee
Directors and/or Outside Directors.  If
administration is delegated to a Committee, the Committee shall have, in
connection with the administration of the Plan, the powers theretofore
possessed by the Board, including the power to delegate to a subcommittee of
two (2) or more Outside Directors any of the administrative powers the
Committee is authorized to exercise (and references in this Plan to the Board
shall thereafter be to the Committee or such a subcommittee), subject, however,
to such resolutions, not inconsistent with the provisions of the Plan, as may
be adopted from time to time by the Board. 
The Board may abolish the Committee at any time and revest in the Board
the administration of the Plan.


 


4.                                      SHARES SUBJECT TO THE PLAN.


 


(a)           Subject to the provisions of paragraph 13 relating to
adjustments upon changes in securities, the shares of the Common Stock that may
be sold pursuant to Rights granted under the Plan shall not exceed in the
aggregate three million (3,000,000) shares of the Common Stock (the “Reserved
Shares”).  If any Right granted under the
Plan shall for any reason terminate without having been exercised, the shares
of the Common Stock not purchased under such Right shall again become available
for the Plan.


 


(b)           The shares of the Common Stock subject to the Plan may
be unissued shares of the Common Stock or shares of the Common Stock that have
been bought on the open market at prevailing market prices or otherwise.


 


5.                                      GRANT OF RIGHTS; OFFERING.


 


The Board may from time to time grant or provide for
the grant of Rights to purchase shares of the Common Stock under the Plan to
Eligible Employees in an Offering on an Offering Date or Dates selected by the
Board.  Each Offering shall be in such
form and shall contain such terms and conditions as the Board shall deem
appropriate, which shall comply with the requirements of Section 423(b)(5) of
the Code that all Employees granted Rights to purchase shares of the Common
Stock under the Plan shall have the same rights and privileges.  The terms and conditions of an Offering shall
be incorporated by reference into the Plan and treated as part of the
Plan.  The provisions of separate Offerings
need not be identical, but each Offering shall include (through incorporation
of the provisions of this Plan by reference in the document comprising the
Offering or otherwise) the period during which the Offering shall be effective,
which period shall not exceed twenty-seven (27) months beginning with the
Offering Date, and the substance of the provisions contained in paragraphs 6
through 9, inclusive.


 


6.                                      ELIGIBILITY.


 


(a)           Rights may be granted only to Employees of the Company
or, as the Board may designate as provided in subparagraph 3(b), to Employees
of an Affiliate.  Except as provided in
subparagraph 6(b), an Employee shall not be eligible to be granted Rights under
the Plan unless, on the Offering Date, such Employee has been in the employ of
the Company or the Affiliate, as the case may be, for such continuous period
preceding such grant as the Board may require, but in no event shall the
required period of continuous employment be greater than two (2) years;
provided, however, that Employees who are employed by the Company as of the
Effective Date 


 


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of this Plan, as amended
and restated, who would otherwise be Eligible Employees if not for the required
period of continuous employment with the Company shall be eligible to
participate in the Plan with respect to the first Offering Period beginning
with or immediately following the Effective Date of this Plan, as amended and
restated, without regard to their period of prior continuous employment with
the Company provided that they remain in continuous employment through the end
of the first Offering Period.


 


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


 


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


 


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


 


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


 


(c)           No Employee shall be eligible for the grant of any
Rights under the Plan if, immediately after any such Rights are granted, such
Employee owns stock possessing five percent (5%) or more of the total combined
voting power or value of all classes of stock of the Company or of any
Affiliate.  For purposes of this
subparagraph 6(c), the rules of Section 424(d) of the Code shall
apply in determining the stock ownership of any Employee, and stock which such
Employee may purchase under all outstanding rights and options shall be treated
as stock owned by such Employee.


 


(d)           An Eligible Employee may be granted Rights under the
Plan only if such Rights, together with any other Rights granted under all
Employee Stock Purchase Plans of the Company and any Affiliates, as specified
by Section 423(b)(8) of the Code, do not permit such Eligible
Employee’s rights to purchase shares of the Common Stock or any Affiliate to
accrue at a rate which exceeds twenty five thousand dollars ($25,000) of the
fair market value of such shares of the Common Stock (determined at the time
such Rights are granted) for each calendar year in which such Rights are
outstanding at any time.


 


(e)           The Board may provide in an Offering that Employees
who are highly compensated Employees within the meaning of Section 423(b)(4)(D) of
the Code shall not be eligible to participate.


 


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7.                                      RIGHTS; PURCHASE PRICE.


 


(a)           On each Offering Date, each Eligible Employee,
pursuant to an Offering made under the Plan, shall be granted the Right to
purchase up to the number of shares of the Common Stock purchasable either:


 


(i)            with a percentage designated by the Board not
exceeding fifteen percent (15%) of such Employee’s Earnings (as defined by the
Board in each Offering) during the period which begins on the Offering Date (or
such later date as the Board determines for a particular Offering) and ends on
the date stated in the Offering, which date shall be no later than the end of
the Offering; or


 


(ii)           with a maximum dollar amount designated by the Board
that, as the Board determines for a particular Offering, (1) shall be
withheld, in whole or in part, from such Employee’s Earnings (as defined by the
Board in each Offering) during the period which begins on the Offering Date (or
such later date as the Board determines for a particular Offering) and ends on
the date stated in the Offering, which date shall be no later than the end of
the Offering and/or (2) shall be contributed, in whole or in part, by such
Employee during such period.


 


(b)           The Board shall establish one or more Purchase Dates
during an Offering on which Rights granted under the Plan shall be exercised
and purchases of shares of the Common Stock carried out in accordance with such
Offering.


 


(c)           In connection with each Offering made under the Plan,
the Board may specify a maximum number of shares of the Common Stock that may
be purchased by any Participant as well as a maximum aggregate number of shares
of the Common Stock that may be purchased by all Participants pursuant to such
Offering.  In addition, in connection
with each Offering that contains more than one Purchase Date, the Board may
specify a maximum aggregate number of shares of the Common Stock which may be
purchased by all Participants on any given Purchase Date under the
Offering.  If the aggregate purchase of
shares of the Common Stock upon exercise of Rights granted under the Offering
would exceed any such maximum aggregate amount, the Board shall make a pro rata
allocation of the shares of the Common Stock available in as nearly a uniform
manner as shall be practicable and as it shall deem to be equitable.


 


(d)           The purchase price of shares of the Common Stock
acquired pursuant to Rights granted under the Plan shall be not less than the
lesser of:


 


(i)            an amount equal to eighty-five percent (85%) of the
fair market value of the shares of the Common Stock on the Offering Date; or


 


(ii)           an amount equal to eighty-five percent (85%) of the
fair market value of the shares of the Common Stock on the Purchase Date.


 


8.                                      PARTICIPATION; WITHDRAWAL;
TERMINATION.


 


(a)           An Eligible Employee may become a Participant in the
Plan pursuant to an Offering by delivering a participation agreement to the
Company within the time specified in the Offering, in such form as the Company
provides.  Each such agreement shall
authorize payroll 


 


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deductions of up to the
maximum percentage specified by the Board of such Employee’s Earnings during
the Offering (as defined in each Offering). 
The payroll deductions made for each Participant shall be credited to a
bookkeeping account for such Participant under the Plan and either may be
deposited with the general funds of the Company or may be deposited in a
separate account in the name of, and for the benefit of, such Participant with
a financial institution designated by the Company.  To the extent provided in the Offering, a
Participant may reduce (including to zero) or increase such payroll
deductions.  To the extent provided in
the Offering, a Participant may begin such payroll deductions after the
beginning of the Offering.  A Participant
may make additional payments into his or her account only if specifically
provided for in the Offering and only if the Participant has not already had
the maximum permitted amount withheld during the Offering.


 


(b)           At any time during an Offering, a Participant may
terminate his or her payroll deductions under the Plan and withdraw from the
Offering by delivering to the Company a notice of withdrawal in such form as
the Company provides.  Such withdrawal
may be elected at any time prior to the end of the Offering except as provided
by the Board in the Offering.  Upon such
withdrawal from the Offering by a Participant, the Company shall distribute to
such Participant all of his or her accumulated payroll deductions (reduced to
the extent, if any, such deductions have been used to acquire shares of the
Common Stock for the Participant) under the Offering, without interest unless
otherwise specified in the Offering, and such Participant’s interest in that
Offering shall be automatically terminated. 
A Participant’s withdrawal from an Offering will have no effect upon
such Participant’s eligibility to participate in any other Offerings under the
Plan but such Participant will be required to deliver a new participation
agreement in order to participate in subsequent Offerings under the Plan.


 


(c)           Rights granted pursuant to any Offering under the Plan
shall terminate immediately upon cessation of any participating Employee’s
employment with the Company or a designated Affiliate for any reason (subject
to any post-employment participation period required by law) or other lack of
eligibility. The Company shall distribute to such terminated Employee all of
his or her accumulated payroll deductions (reduced to the extent, if any, such
deductions have been used to acquire shares of the Common Stock for the
terminated Employee) under the Offering, without interest unless otherwise
specified in the Offering. If the accumulated payroll deductions have been
deposited with the Company’s general funds, then the distribution shall be made
from the general funds of the Company, without interest.  If the accumulated payroll deductions have
been deposited in a separate account with a financial institution as provided
in subparagraph 8(a), then the distribution shall be made from the separate
account, without interest unless otherwise specified in the Offering.


 


(d)           Rights granted under the Plan shall not be
transferable by a Participant otherwise than by will or the laws of descent and
distribution, or by a beneficiary designation as provided in paragraph 15 and,
otherwise during his or her lifetime, shall be exercisable only by the person
to whom such Rights are granted.


 


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9.                                      EXERCISE.


 


(a)           On each Purchase Date specified therefor in the
relevant Offering, each Participant’s accumulated payroll deductions and other
additional payments specifically provided for in the Offering (without any
increase for interest) will be applied to the purchase of shares of the Common
Stock up to the maximum number of shares of the Common Stock permitted pursuant
to the terms of the Plan and the applicable Offering, at the purchase price
specified in the Offering.  No fractional
shares of the Common Stock shall be issued upon the exercise of Rights granted
under the Plan unless specifically provided for in the Offering.


 


(b)           Unless otherwise specifically provided in the
Offering, the amount, if any, of accumulated payroll deductions remaining in
any Participant’s account after the purchase of shares of the Common Stock that
is equal to the amount required to purchase one or more whole shares of the
Common Stock on the final Purchase Date of the Offering shall be distributed in
full to the Participant at the end of the Offering, without interest. If the
accumulated payroll deductions have been deposited with the Company’s general
funds, then the distribution shall be made from the general funds of the
Company, without interest. If the accumulated payroll deductions have been
deposited in a separate account with a financial institution as provided in
subparagraph 8(a), then the distribution shall be made from the separate
account, without interest unless otherwise specified in the Offering.  The amount of accumulated payroll deductions
remaining in any Participant’s account that is less than the amount required to
purchase one whole share of Common Stock on the final Purchase Date of the
Offering shall be carried over to the next Offering or shall, if the
Participant requests or does not participate in the next Offering, be refunded.


 


(c)           No Rights granted under the Plan may be exercised to
any extent unless the shares of the Common Stock to be issued upon such
exercise under the Plan (including Rights granted thereunder) are covered by an
effective registration statement pursuant to the Securities Act and the Plan is
in material compliance with all applicable state, foreign and other securities
and other laws applicable to the Plan. 
If on a Purchase Date in any Offering hereunder the Plan is not so
registered or in such compliance, no Rights granted under the Plan or any
Offering shall be exercised on such Purchase Date, and the Purchase Date shall
be delayed until the Plan is subject to such an effective registration
statement and such compliance, except that the Purchase Date shall not be
delayed more than twelve (12) months and the Purchase Date shall in no event be
more than twenty-seven (27) months from the Offering Date.  If, on the Purchase Date of any Offering
hereunder, as delayed to the maximum extent permissible, the Plan is not
registered and in such compliance, no Rights granted under the Plan or any
Offering shall be exercised and all payroll deductions accumulated during the
Offering (reduced to the extent, if any, such deductions have been used to
acquire Shares) shall be distributed to the Participants, without interest
unless otherwise specified in the Offering. If the accumulated payroll
deductions have been deposited with the Company’s general funds, then the
distribution shall be made from the general funds of the Company, without
interest. If the accumulated payroll deductions have been deposited in a
separate account with a financial institution as provided in subparagraph 8(a),
then the distribution shall be made from the separate account, without interest
unless otherwise specified in the Offering.


 


10.                               COVENANTS OF THE COMPANY.


 


(a)           During the terms of the Rights granted under the Plan,
the Company shall ensure that the number of shares of the Common Stock required
to satisfy such Rights are available.


 


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


 


11.                               USE OF PROCEEDS FROM SHARES.


 


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


 


12.                               RIGHTS AS A STOCKHOLDER.


 


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


 


13.                               ADJUSTMENTS UPON CHANGES IN
SECURITIES.


 


(a)           If any change is made in the shares of the Common
Stock subject to the Plan, or subject to any Right, without the receipt of
consideration by the Company (through merger, consolidation, reorganization,
recapitalization, reincorporation, stock dividend, dividend in property other
than cash, stock split, liquidating dividend, combination of shares, exchange
of shares, change in corporate structure or other transaction not involving the
receipt of consideration by the Company), the Plan will be appropriately
adjusted in the class(es) and maximum number of shares of the Common Stock
subject to the Plan pursuant to subparagraph 4(a), and the outstanding Rights
will be appropriately adjusted in the class(es), number of shares of the Common
Stock and purchase limits of such outstanding Rights.  The Board shall make such adjustments, and
its determination shall be final, binding and conclusive.  (The conversion of any convertible securities
of the Company shall not be treated as a transaction that does not involve the
receipt of consideration by the Company.)


 


(b)           In the event of: 
(i) a dissolution, liquidation, or sale of all or substantially all
of the assets of the Company; (ii) a merger or consolidation in which the
Company is not the surviving corporation; or (iii) a reverse merger in
which the Company is the surviving corporation but the shares of the Common
Stock outstanding immediately preceding the merger are converted by virtue of
the merger into other property, whether in the form of securities, cash or
otherwise, then: (1) any surviving or acquiring corporation may assume
Rights outstanding under the Plan or may substitute similar rights (including a
right to acquire the same consideration paid to the Company’s stockholders in
the transaction described in this subparagraph 13(b)) for those outstanding
under the Plan, or (2) in the event any surviving or acquiring corporation
does not assume such Rights or substitute similar rights for those outstanding
under the Plan, then, as determined by the Board in its sole discretion, such
Rights 


 


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may continue in full
force and effect or the Participants’ accumulated payroll deductions (exclusive
of any accumulated interest which cannot be applied toward the purchase of
shares of the Common Stock under the terms of the Offering) may be used to
purchase shares of the Common Stock immediately prior to the transaction
described above under the ongoing Offering and the Participants’ Rights under
the ongoing Offering thereafter terminated.


 


14.                               AMENDMENT OF THE PLAN.


 


(a)           The Board at any time, and from time to time, may
amend the Plan.  However, except as
provided in paragraph 13 relating to adjustments upon changes in securities and
except as to minor amendments to benefit the administration of the Plan, to
take account of a change in legislation or to obtain or maintain favorable tax,
exchange control or regulatory treatment for Participants or the Company or any
Affiliate, no amendment shall be effective unless approved by the stockholders
of the Company to the extent stockholder approval is necessary for the Plan to
satisfy the requirements of Section 423 of the Code, Rule 16b-3 under
the Exchange Act and any Nasdaq or other securities exchange listing
requirements.  Currently under the Code,
stockholder approval within twelve (12) months before or after the adoption of
the amendment is required where the amendment will:


 


(i)            Increase the number of shares of the Common Stock
reserved for Rights under the Plan;


 


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


 


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


 


(b)           It is expressly contemplated that the Board may amend
the Plan in any respect the Board deems necessary or advisable to provide
Employees with the maximum benefits provided or to be provided under the
provisions of the Code and the regulations promulgated thereunder relating to
Employee Stock Purchase Plans and/or to bring the Plan and/or Rights granted
under it into compliance therewith.


 


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


 


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15.                               DESIGNATION OF BENEFICIARY.


 


(a)           A Participant may file a written designation of a
beneficiary who is to receive any shares of the Common Stock and/or cash, if
any, from the Participant’s account under the Plan in the event of such
Participant’s death subsequent to the end of an Offering but prior to delivery
to the Participant of such shares of the Common Stock and cash.  In addition, a Participant may file a written
designation of a beneficiary who is to receive any cash from the Participant’s
account under the Plan in the event of such Participant’s death during an
Offering.


 


(b)           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 shall deliver such shares of the Common Stock
and/or cash to the executor or administrator of the estate of the Participant,
or if no such executor or administrator has been appointed (to the knowledge of
the Company), the Company, in its sole discretion, may deliver such shares of
the Common Stock and/or cash to the spouse or to any one or more dependents or
relatives of the Participant, or if no spouse, dependent or relative is known
to the Company, then to such other person as the Company may designate.


 


16.                               TERMINATION OR SUSPENSION OF THE
PLAN.


 


(a)           The Board in its discretion may suspend or terminate
the Plan at any time.  Unless sooner
terminated, the Plan shall terminate at the time that all of the shares of the
Common Stock subject to the Plan’s reserve, as increased and/or adjusted from
time to time, have been issued under the terms of the Plan.  No Rights may be granted under the Plan while
the Plan is suspended or after it is terminated.


 


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


 


17.                               EFFECTIVE DATE OF PLAN.


 


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


 


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