{"id":38821,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employee-stock-option-plan-affymetrix-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employee-stock-option-plan-affymetrix-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employee-stock-option-plan-affymetrix-inc.html","title":{"rendered":"Employee Stock Option Plan – Affymetrix Inc."},"content":{"rendered":"

AFFYMETRIX, INC.<\/strong><\/p>\n

\n

2011 EMPLOYEE STOCK PURCHASE PLAN<\/strong><\/p>\n

\n

1. Purpose; Structure of Plan<\/u>.<\/p>\n<\/p>\n

(a) The purpose of this Plan is to provide Eligible Employees with an
\nopportunity to purchase Shares by means of payroll deductions or other
\ncontributions, thereby allowing such persons the opportunity to acquire an
\nequity interest in the Company in a convenient manner and enhancing their sense
\nof participation in the affairs of the Company.<\/p>\n<\/p>\n

(b) This Plan includes two components: a Code Section 423 Component (the
\n“423 Component<\/u>“) and a non-Code Section 423 Component (the “Non-423
\nComponent<\/u>“). It is the intention of the Company to have the 423 Component
\nqualify as an “employee stock purchase plan” under Section 423 of the Code. The
\nprovisions of the 423 Component, accordingly, shall be construed so as to extend
\nand limit participation in a uniform and nondiscriminatory basis consistent with
\nthe requirements of Section 423 of the Code. In addition, this Plan authorizes
\nthe grant of purchase rights under the Non-423 Component that does not qualify
\nas an “employee stock purchase plan” under Section 423 of the Code; such
\npurchase rights shall be granted pursuant to rules, procedures or subplans
\nadopted by the Committee designed to achieve tax, securities laws or other
\nobjectives for Eligible Employees and the Company. Except as otherwise provided
\nherein, the Non-423 Component will operate and be administered in the same
\nmanner as the 423 Component.<\/p>\n<\/p>\n

(c) If a Participant transfers employment from the Company or any Designated
\nSubsidiary participating in the 423 Component to a Designated Affiliate
\nparticipating in the Non-423 Component, he or she shall immediately cease to
\nparticipate in the 423 Component; however, any payroll deductions taken or other
\ncontributions made for the Purchase Period in which such transfer occurs shall
\nbe transferred to the Non-423 Component, and such Participant shall immediately
\njoin the then current Offering under the Non-423 Component upon the same terms
\nand conditions in effect for his or her participation in the Plan, except for
\nsuch modifications as may be required by applicable law. A Participant who
\ntransfers employment from a Designated Affiliate participating in the Non-423
\nComponent to the Company or any Designated Subsidiary participating in the 423
\nComponent shall remain a Participant in the Non-423 Component until the earlier
\nof (i) the end of the current Offering Period under the Non-423 Component, or
\n(ii) the Offering Date of the first Offering in which he or she participates
\nfollowing such transfer.<\/p>\n<\/p>\n

2. Definitions<\/u>.<\/p>\n<\/p>\n

(a) “Administrator<\/u>” means one or more of the Company’s officers
\nappointed by the Board or Committee to administer the day-to-day operations of
\nthe Plan. Except as otherwise provided in the Plan, the Board or Committee may
\ndelegate any of its authority to the Administrator.<\/p>\n<\/p>\n

(b) “Affiliate<\/u>” means (i) any entity that, directly or indirectly, is
\ncontrolled by, controls or is under common control with, the Company and (ii)
\nany entity in which the Company has a significant equity interest, in either
\ncase as determined by the Committee, whether now or hereafter existing.<\/p>\n<\/p>\n

(c) “Board<\/u>” means the board of directors of the Company.<\/p>\n<\/p>\n

(d) “Change in Control” means<\/p>\n<\/p>\n

(i) The consummation of a merger or consolidation of the Company with or into
\nanother entity or any other corporate reorganization, if persons who were not
\nstockholders of the Company immediately prior to such merger, consolidation or
\nother reorganization own immediately after such merger, consolidation or other
\nreorganization 50% or more of the voting power of the outstanding securities of
\neach of (A) the continuing or surviving entity and (B) any direct or indirect
\nparent corporation of such continuing or surviving entity;<\/p>\n<\/p>\n

(ii) The sale, transfer or other disposition of all or substantially all of
\nthe Company’s assets;<\/p>\n<\/p>\n

(iii) A change in the composition of the Board, as a result of which fewer
\nthan 80% of the incumbent directors are directors who either (A) had been
\ndirectors of the Company on the date 24 months prior to the date of the event
\nthat may constitute a Change in Control (the “original directors”) or (B) were
\nelected, or nominated for election, to the Board with the affirmative votes of
\nat least a majority of the aggregate of the original directors who were still in
\noffice at the time of the election or nomination and the directors whose
\nelection or nomination was previously so approved; or<\/p>\n<\/p>\n

(iv) Any transaction as a result of which any person is the “beneficial
\nowner” (as defined in Rule 13d-3 under the Exchange Act), directly or
\nindirectly, of securities of the Company representing at least 50% of the total
\nvoting power represented by the Company’s then outstanding voting securities.
\nFor purposes of this Section 2(d)(iv), the term “person” shall have the same
\nmeaning as when used in sections 13(d) and 14(d) of the Exchange Act but shall
\nexclude (A) a trustee or other fiduciary holding securities under an employee
\nbenefit plan of the Company or of a Parent or Subsidiary and (B) a corporation
\nowned directly or indirectly by the stockholders of the Company in substantially
\nthe same proportions as their ownership of the common stock of the Company.<\/p>\n<\/p>\n<\/p>\n

A transaction shall not constitute a Change in Control if its sole purpose is
\nto change the state of the Company’s incorporation or to create a holding
\ncompany that will be owned in substantially the same proportions by the persons
\nwho held the Company’s securities immediately before such transaction.<\/p>\n<\/p>\n

(e) “Code<\/u>” means the U.S. Internal Revenue Code of 1986, as amended
\nfrom time to time, or any successor statute thereto, and the regulations
\npromulgated thereunder.<\/p>\n<\/p>\n

(f) “Committee<\/u>” means the compensation committee of the Board, or such
\nother committee of the Board as may be designated by the Board to administer the
\nPlan.<\/p>\n<\/p>\n

(g) “Company<\/u>” means Affymetrix, Inc., a Delaware corporation.<\/p>\n<\/p>\n

(h) “Compensation<\/u>” means all base straight-time gross earnings,
\nexclusive of commissions, payments for incentive compensation, bonuses,
\novertime, shift premium and other similar compensation, unless otherwise
\ndetermined by the Committee on a uniform and nondiscriminatory basis. The
\nCommittee shall have the discretion to determine the application of this
\ndefinition to Participants outside the United States.<\/p>\n<\/p>\n

(i) “Designated Affiliate<\/u>” means any Affiliate selected by the
\nCommittee as eligible to participate in the Non-423 Component.<\/p>\n<\/p>\n

(j) “Designated Subsidiary<\/u>” means any Subsidiary selected by the
\nCommittee as eligible to participate in the 423 Component.<\/p>\n<\/p>\n

(k) “Director<\/u>” means a member of the Board.<\/p>\n<\/p>\n

(l) “Effective Date<\/u>” shall mean the date the Plan becomes effective in
\naccordance with Section 24 hereof.<\/p>\n<\/p>\n

(m) “Eligible Employee<\/u>” means any individual who is treated as an
\nemployee in the records of the Company or any Designated Subsidiary or
\nDesignated Affiliate, in each case regardless of any subsequent reclassification
\nby the Company or by any Designated Subsidiary or Designated Affiliate, any
\ngovernmental agency, or any court. The employment relationship shall be treated
\nas continuing intact while the individual is on military or sick leave or other
\nbona fide leave of absence approved by the Company or the Designated Subsidiary
\nor Designated Affiliate so long as the leave does not exceed three (3) months
\nor, if longer than three (3) months, the individual’s right to reemployment is
\nprovided by statute or has been agreed to by contract or in a written policy of
\nthe Company which provides for a right of reemployment following the leave of
\nabsence. The employment relationship shall be treated as continuing intact where
\nan Eligible Employee transfers employment between the Company, Designated
\nSubsidiaries and\/or Designated Affiliates.<\/p>\n<\/p>\n

(n) “Exchange Act<\/u>” means the U.S. Securities Exchange Act of 1934, as
\namended from time to time, or any successor law thereto, and the regulations
\npromulgated thereunder.<\/p>\n<\/p>\n

(o) “Fair Market Value<\/u>” means, with respect to the Shares, as of any
\ndate,<\/p>\n<\/p>\n

(i) If the Company’s common stock is listed on any established stock exchange
\nor traded on the NASDAQ, the Fair Market Value of a Share shall be the closing
\nsales price for a Share (or the closing bid if no sales were reported) as quoted
\non such exchange or market (or if the Company’s common stock is traded on more
\nthan one exchange or market, the exchange or market with the greatest volume of
\ntrading in the Company’s common stock) on the day of determination, in any case
\nas reported in The Wall Street Journal<\/em> or such other source as the
\nCommittee deems reliable. In the absence of such markets for the Company’s
\ncommon stock, the Fair Market Value shall be determined in good faith by the
\nBoard.<\/p>\n<\/p>\n

(ii) For purposes of this Plan, if the date as of which the Fair Market Value
\nis to be determined is not a Trading Day, then solely for the purpose of
\ndetermining Fair Market Value such date shall be: (A) in the case of the
\nOffering Date, the first Trading Day following the Offering Date; (B) in the
\ncase of the Purchase Date, the last Trading Day prior to the Purchase Date.<\/p>\n<\/p>\n

(p) “NASDAQ<\/u>” means the NASDAQ National Market System.<\/p>\n<\/p>\n

(q) “Offering<\/u>” means an offer under the Plan of a purchase right that
\nmay be exercised during an Offering Period. For purposes of this Plan, the
\nCommittee may designate separate Offerings under the Plan (the terms of which
\nneed not be identical) in which Eligible Employees of one or more Designated
\nSubsidiaries or Designated Affiliates will participate, even if the dates of the
\napplicable Offering Periods of each such Offering are identical.<\/p>\n<\/p>\n

(r) “Offering Date<\/u>” means the first day of each Offering Period.<\/p>\n<\/p>\n

(s) “Offering Period<\/u>” means the period set forth in Section 4(a)
\nhereof.<\/p>\n<\/p>\n

(t) “Parent<\/u>” means a “parent corporation” of the Company whether now
\nor hereinafter existing as defined in Section 424(e) of the Code.<\/p>\n<\/p>\n

(u) “Participant<\/u>” means any Eligible Employee who participates in the
\nPlan as described in Section 5 hereof.<\/p>\n<\/p>\n

(v) “Participation Election<\/u>” means any written agreement, enrollment
\nform, contract or other instrument or document (in each case in paper or
\nelectronic form) evidencing that an Eligible Employee has elected to become a
\nParticipant in the Plan.<\/p>\n<\/p>\n

(w) “Plan<\/u>” means this Affymetrix, Inc. 2011 Employee Stock Purchase
\nPlan, including both the 423 and Non-423 Components, as amended from time to
\ntime.<\/p>\n<\/p>\n

(x) “Purchase Date<\/u>” means the last day of each Purchase Period (or, if
\nsuch day is not a Trading Day, the Trading Day immediately preceding such day).\n<\/p>\n<\/p>\n

(y) “Purchase Period<\/u>” means the period set forth in Section 4(b)
\nhereof.<\/p>\n<\/p>\n

(z) “Purchase Price<\/u>” means a per-Share amount to be paid by a
\nParticipant to purchase a Share on a Purchase Date and, unless otherwise
\ndetermined by the Committee, shall be the lower of (i) eighty-five percent (85%)
\nof the Fair Market Value of a Share on the Offering Date for the relevant
\nOffering Period, or (ii) eighty-five percent (85%) of the Fair Market Value of a
\nShare on the applicable Purchase Date.<\/p>\n<\/p>\n

(aa) “Share<\/u>” means a share of common stock of the Company, $0.01 par
\nvalue, or such other security of the Company into which such share shall be
\nchanged in accordance with Section 16 hereof.<\/p>\n<\/p>\n

(bb) “Subsidiary<\/u>” means a “subsidiary corporation” of the Company
\nwhether now or hereafter existing, as defined in Section 424(f) of the Code.<\/p>\n<\/p>\n

(cc) “Trading Day<\/u>” means a day on which the NASDAQ is open for trading
\nor, if the Shares are no longer listed on the NASDAQ but are listed on any other
\nnational stock exchange or national market system, a day on which such other
\nnational stock exchange or national market system on which the Shares are listed
\nis open for trading.<\/p>\n<\/p>\n

3. Eligibility<\/u>. Unless otherwise provided in this Section 3, any
\nEligible Employee on a given Offering Date shall be eligible to participate in
\nthe Plan. Eligible Employees who are citizens or residents of a non-U.S.
\njurisdiction may be excluded from participation in the Plan or an Offering if
\nthe participation of such Eligible Employees is prohibited under the laws of the
\napplicable jurisdiction or if complying with the laws of the applicable
\njurisdiction would cause the Plan or an Offering to violate Section 423 of the
\nCode. In the case of the Non-423 Component, Eligible Employees may be excluded
\nfrom participation in the Plan or an Offering if the Committee has determined
\nthat participation of such Eligible Employees is not advisable or practicable.
\nThe Committee, in its discretion, from time to time may, prior to an Offering
\nDate for a particular Offering and for all purchase rights to be granted on such
\nOffering Date under such Offering, determine that Eligible Employees who
\ncustomarily work twenty (20) hours or less per week or not more than five (5)
\nmonths in any calendar year (or, in each case, such lesser period of time as may
\nbe determined by the Committee in its discretion) shall not be included in the
\nPlan or an Offering. Notwithstanding any provisions of the Plan to the contrary,
\nno Eligible Employee shall be granted a purchase right under the 423 Component
\nof the Plan to the extent that, immediately after the grant, such Eligible
\nEmployee (or any other person whose stock would be attributed to such Eligible
\nEmployee pursuant to Section 424(d) of the Code) would own stock of the Company
\nand\/or hold outstanding purchase rights to purchase stock possessing five
\npercent (5%) or more of the total combined voting power or value of all classes
\nof the stock of the Company or of any Subsidiary.<\/p>\n<\/p>\n

4. Offering Periods and Purchase Periods<\/u>.<\/p>\n<\/p>\n

(a) The Plan shall be implemented by a series of Offering Periods of
\napproximately twelve (12) months duration during which time a purchase right
\nunder the Plan may be offered to Eligible Employees. The first Offering Period
\nshall commence on November 15, 2011, or on such other date as the Committee
\nshall determine. Subsequently, Offering Periods shall begin on May 15 and
\nNovember 15 of each year and end on May 14 and November 14, respectively, of the
\nfollowing year. Notwithstanding the foregoing, if the Fair Market Value of the
\nShares on the Offering Date of a new Offering Period is lower than the Fair
\nMarket Value of the Shares on the Offering Date of an Offering Period then in
\nprogress, the Offering Period then in progress will terminate and Participants
\nin such Offering Period will be automatically enrolled in the new Offering
\nPeriod to commence on the next May 15 or November 15, as applicable, and extend
\nfor a twelve (12) month period ending on May 14 or November 14, as applicable.
\nThe duration and timing of Offering Periods may be changed without stockholder
\napproval; provided<\/u>, however<\/u>, that in no event shall an Offering
\nPeriod exceed 27 months and, provided<\/u>, further<\/u>, that any such
\nchange is announced to Eligible Employees prior to the beginning of the first
\nOffering Period to be affected.<\/p>\n<\/p>\n

(b) Each Offering Period shall consist of two (2) Purchase Periods of
\napproximately six (6) months duration during which time payroll deductions or
\nother contributions of Participants are accumulated. The first Purchase Period
\nshall commence on November 15, 2011, or on such other date as the Committee
\nshall determine. Subsequently, Purchase Periods shall begin on each May 15 and
\nNovember 15 and end on the following November 14 and May 14, respectively. The
\nduration and timing of Purchase Periods may be changed without stockholder
\napproval, provided<\/u>, however<\/u>, that any such change is announced to
\nEligible Employees prior to the beginning of the first Purchase Period to be
\naffected.<\/p>\n<\/p>\n

5. Participation<\/u>. An Eligible Employee may become a Participant in the
\nPlan by completing, within any prescribed enrollment period prior to the
\napplicable Offering Date, a Participation Election (either through the Company’s
\nonline Plan enrollment process or in paper form) and\/or any other forms and
\nfollowing any procedures for enrollment in the Plan as may be established by the
\nCommittee from time to time. A Participant’s enrollment in the Plan shall remain
\nin effect for successive Offering Periods unless terminated as provided in
\nSection 10 hereof.<\/p>\n<\/p>\n

6. Payroll Deductions or Other Contributions<\/u>.<\/p>\n<\/p>\n

(a) At the time a Participant completes any Participation Election,
\nenrollment form and\/or procedure to enroll in the Plan, as provided in Section 5
\nhereof, he or she shall elect to have payroll deductions made on each pay day
\nduring the Offering Period in an amount not exceeding 15% of the Compensation
\nthat he or she receives on each pay day during the Offering Period; should a pay
\nday occur on a Purchase Date, a Participant shall have the payroll deductions
\nmade on such day applied to his or her account under the current Purchase
\nPeriod, unless otherwise provided by the Committee. The Committee, in its sole
\ndiscretion, may permit Participants to contribute amounts to the Plan through
\npayment by cash, check or other means if payroll deductions are not permitted or
\nadvisable under applicable law; provided<\/u>, however<\/u>, that such
\ncontributions shall not exceed 15% of the Compensation received each pay day
\nduring the Offering Period. The Committee, in its sole discretion, may change
\nthe maximum rate at which a Participant can elect to have payroll deductions or
\nother contributions made pursuant to this Section 6(a).<\/p>\n<\/p>\n

(b) Payroll deductions or other contributions, as applicable, for a
\nParticipant shall commence on the first pay day following the Offering Date and
\nshall end on the last pay day in the Offering Period to which such authorization
\nis applicable (subject to Section 6(a) hereof), unless sooner terminated by the
\nParticipant as provided in Section 10 hereof.<\/p>\n<\/p>\n

(c) Any payroll deduction or other contribution elections made by a
\nParticipant shall be in whole percentages only.<\/p>\n<\/p>\n

(d) A Participant may decrease payroll deductions or other contributions one
\n(1) time during a Purchase Period by completing any form or following any
\nprocedure established by the Committee from time to time. Any such change in
\nrate shall be effective as soon as administratively practicable following the
\nParticipant’s completion of such prescribed form or procedure, provided that the
\nCommittee may establish in advance of a particular Purchase Period a deadline by
\nwhich any such change must be submitted before the end of that Purchase Period.
\nIn addition, to the extent necessary to comply with Section 423(b)(8) of the
\nCode as described in Section 8(b) hereof, as determined by the Committee in its
\nsole discretion, a Participant’s payroll deductions or other contributions may
\nbe decreased during a Purchase Period.<\/p>\n<\/p>\n

7. Grant of Purchase Right<\/u>. On each Offering Date, each Participant
\nshall be granted a right to purchase on each Purchase Date during such Offering
\nPeriod (at the applicable Purchase Price) up to a number of Shares determined by
\ndividing such Participant’s payroll deductions or other contributions
\naccumulated prior to such Purchase Date by the applicable Purchase Price;
\nprovided<\/u>, however<\/u>, that in no event shall a Participant be
\npermitted to purchase more than 750 Shares during each Purchase Period, subject
\nto adjustment pursuant to Section 16 hereof, and provided further that such
\npurchase shall be subject to the limitations set forth in Section 8(b) and
\nSection 15 hereof. The Committee may, for future Offerings, increase or
\ndecrease, in its absolute discretion, the maximum number of Shares that a
\nParticipant may purchase during a Purchase Period. With respect to any Offering,
\nthe purchase right shall expire on the last day of the relevant Offering Period.\n<\/p>\n<\/p>\n

8. Purchase of Shares<\/u>.<\/p>\n<\/p>\n

(a) Unless a Participant withdraws from the Plan as provided in Section 10
\nhereof, on the Purchase Date, the maximum number of Shares as may be purchased
\nwith the accumulated payroll deductions or other contributions in the
\nParticipant’s account shall be purchased for such Participant at the applicable
\nPurchase Price, subject to the limitations in Section 7 and Section 8(b) hereof.
\nUnless otherwise determined by the Committee prior to an Offering, fractional
\nShares shall not be purchased and any payroll deductions or other contributions
\naccumulated in a Participant’s account which are not sufficient to purchase a
\nfull Share shall, at the discretion of the Committee, be returned to the
\nParticipant or be retained in the Participant’s account for a subsequent
\nPurchase Period. Shares may be purchased pursuant to the purchase right granted
\nto Participant under the Plan only by the Participant.<\/p>\n<\/p>\n

(b) No Participant in the 423 Component shall be granted a purchase right
\nunder the Plan which permits his or her rights to purchase stock under all
\nemployee stock purchase plans of the Company and its Subsidiaries to accrue at a
\nrate which exceeds $25,000 of fair market value of such stock (determined at the
\ntime the purchase right is granted) for each calendar year in which such
\npurchase right is outstanding at any time.<\/p>\n<\/p>\n

(c) If the Committee determines that, on a given Purchase Date, the number of
\nShares with respect to which purchase rights are to be exercised may exceed (i)
\nthe number of Shares that were available for sale under the Plan on the relevant
\nOffering Date, or (ii) the number of Shares available for sale under the Plan on
\nsuch Purchase Date, the Committee may provide, in its sole discretion, that the
\nCompany shall make a pro-rata allocation of the Shares available for purchase on
\nsuch Purchase Date in as uniform a manner as shall be practicable and as it
\nshall determine in its sole discretion to be equitable among all Participants
\nexercising purchase rights on such Purchase Date. The Company may make a
\npro-rata allocation of the Shares pursuant to the preceding sentence,
\nnotwithstanding any authorization of additional Shares for issuance under the
\nPlan by the Company’s stockholders subsequent to the relevant Offering Date.<\/p>\n<\/p>\n

9. Delivery of Shares<\/u>. By enrolling in the Plan, each Participant
\nshall be deemed to have authorized the establishment of a brokerage account on
\nhis or her behalf at a securities brokerage firm selected by the Committee.
\nAlternatively, the Committee may provide for a Plan share account for each
\nParticipant to be established by the Company or by an outside entity selected by
\nthe Committee which is not a brokerage firm. As soon as reasonably practicable
\nafter each Purchase Date, the Company shall arrange for the delivery to each
\nParticipant of the Shares purchased upon exercise of his or her purchase right
\nto the Participant’s brokerage or Plan share account in a form determined by the
\nCommittee. Notwithstanding any other provision of the Plan, unless otherwise
\ndetermined by the Committee or required by any applicable law, rule or
\nregulation, the Company shall not deliver to any Participant certificates
\nevidencing Shares issued in connection with any purchase under the Plan, and
\ninstead such Shares shall be recorded in the books of the brokerage firm
\nselected by the Committee or, as applicable, the Company, its transfer agent,
\nstock plan administrator or such other outside entity which is not a brokerage
\nfirm.<\/p>\n<\/p>\n

10. Withdrawal<\/u>.<\/p>\n<\/p>\n

(a) A Participant may decide not to purchase Shares on a Purchase Date and
\nmay elect to withdraw all, but not less than all, the payroll deductions or
\nother contributions credited to his or her account and not yet used to purchase
\nShares under the Plan at any time by giving notice in the form and manner
\nprescribed by the Committee from time to time. Upon such withdrawal, all of the
\nParticipant’s payroll deductions or other contributions credited to his or her
\naccount shall be paid to such Participant as soon as reasonably practicable
\nafter receipt of notice of withdrawal and such Participant’s purchase right for
\nthe Offering shall be terminated automatically, and no further payroll
\ndeductions or other contributions for the purchase of Shares shall be made
\nduring the current Offering Period. Notwithstanding the foregoing, the Committee
\nmay specify a period of time immediately preceding each Purchase Date during
\nwhich time any withdrawal will not be effective for the current Purchase Period
\nbut will become effective for all subsequent Purchase Periods and Offering
\nPeriods. If a Participant withdraws from the Plan as described herein, payroll
\ndeductions or other contributions shall not resume at the beginning of the
\nsubsequent Offering Period unless the Participant completes a Participation
\nElection and\/or any other forms and follows any procedures for enrollment in the
\nPlan as described in Section 5 hereof.<\/p>\n<\/p>\n

(b) A Participant’s withdrawal from an Offering shall not have any effect
\nupon his or her eligibility to participate in any similar plan that may
\nhereafter be adopted by the Company or in subsequent Offerings which commence
\nafter the termination of the Offering from which he or she has withdrawn.<\/p>\n<\/p>\n

11. Tax Withholding<\/u>. The Participant must make adequate provision for
\nany withholding obligation of the Company or any Subsidiary or Affiliate for
\nfederal, state, or any other tax liability, national insurance, social security,
\npayment-on-account or other tax related items, if any, which arise as a result
\nof participation in the Plan, including, for the avoidance of doubt, any
\nliability to pay an employer tax or social insurance contribution which has been
\nshifted from the Company or any Subsidiary or Affiliate to the Participant as a
\nmatter of law or contract. The Company or any Subsidiary or Affiliate, as
\napplicable, may withhold, by any method permissible under applicable law, the
\namount necessary for the Company or a Subsidiary or Affiliate, as applicable, to
\nmeet applicable withholding obligations, including any withholding required to
\nmake available to the Company or a Subsidiary or Affiliate, as applicable, any
\ntax deductions or benefits attributable to the sale or early disposition of
\nShares by the Participant.<\/p>\n<\/p>\n

12. No Right to Employment<\/u>. Participation in the Plan by a Participant
\nshall not be construed as giving a Participant the right to be retained as an
\nemployee of the Company or a Subsidiary or Affiliate, as applicable.
\nFurthermore, the Company or a Subsidiary or Affiliate may dismiss a Participant
\nfrom employment at any time, free from any liability or any claim under the
\nPlan.<\/p>\n<\/p>\n

13. Termination of Employment<\/u>. Unless otherwise determined by the
\nCommittee, upon a Participant ceasing to be an Eligible Employee, for any
\nreason, he or she shall be deemed to have elected to withdraw from the Plan and
\nthe payroll deductions or other contributions credited to such Participant’s
\naccount during the current Offering Period but not yet used to purchase Shares
\nunder the Plan shall be returned to such Participant or, in the case of
\ntermination of employment due to death, to the Participant’s heirs or estate,
\nand such Participant’s purchase right shall be terminated automatically.<\/p>\n<\/p>\n

14. Interest<\/u>. No interest will accrue on the payroll deductions or
\nother contributions of a Participant in the Plan, except as may be required by
\napplicable law, as determined by the Committee.<\/p>\n<\/p>\n

15. Shares Available for Purchase under the Plan<\/u>.<\/p>\n<\/p>\n

(a) Basic Limitation<\/u>. Subject to adjustment pursuant to Section 16
\nhereof, the aggregate number of Shares authorized for sale under the Plan is
\n7,000,000 Shares. For the avoidance of doubt, the limitation set forth in this
\nsection may be used to satisfy purchases of Shares under either the 423
\nComponent or the Non-423 Component.<\/p>\n<\/p>\n

(b) Rights as an Unsecured Creditor<\/u>. Until the Shares are issued (as
\nevidenced by the appropriate entry on the books of the Company or of a
\nduly-authorized transfer agent of or broker selected by the Company), a
\nParticipant shall only have the rights of an unsecured creditor with respect to
\nsuch Shares, and no right to vote or receive dividends or any other rights as a
\nstockholder shall exist with respect to such Shares.<\/p>\n<\/p>\n

(c) Source of Shares Deliverable at Purchase<\/u>. Any Shares issued upon
\npurchase may consist, in whole or in part, of authorized and unissued Shares or
\nof treasury Shares.<\/p>\n<\/p>\n

16. Adjustments for Changes in Capitalization and Similar Events<\/u>.<\/p>\n<\/p>\n

(a) Changes in Capitalization<\/u>. In the event of any increase or
\ndecrease in the number of issued Shares resulting from any nonreciprocal
\ntransaction between the Company and its stockholders (such as a stock dividend,
\nstock split, spin-off, rights offering or recapitalization) that affects the
\nShares (or other securities of the Company) or the price of Shares (or other
\nsecurities of the Company) and causes a change in the per share value of the
\nShares underlying outstanding purchase rights, the Committee, in order to
\nprevent dilution or enlargement of the benefits or potential benefits intended
\nto be made available under the Plan will, in such manner as it may deem
\nequitable, adjust the maximum number of Shares that shall be made available for
\nsale under the Plan, the maximum number of Shares that each Participant may
\npurchase during a Purchase Period (pursuant to Section 7 hereof) and the per
\nShare price used to determine the Purchase Price. Such adjustment shall be made
\nby the Committee, whose determination in that respect shall be final, binding
\nand conclusive. For the avoidance of doubt, the Committee may not delegate its
\nauthority to make adjustments pursuant to this paragraph to the Administrator.
\nExcept as expressly provided herein, no issuance by the Company of shares of
\nstock of any class, or securities convertible into shares of stock of any class,
\nshall affect, and no adjustment by reason thereof shall be made with respect to,
\nthe number or price of Shares subject to a purchase right.<\/p>\n<\/p>\n

(b) Dissolution or Liquidation<\/u>. In the event of the proposed
\ndissolution or liquidation of the Company, the Offering Period then in progress
\nshall be shortened by setting a new Purchase Date (the “New Purchase
\nDate<\/u>“), and shall terminate immediately prior to the consummation of such
\nproposed dissolution or liquidation, unless otherwise provided by the Committee.
\nThe New Purchase Date shall be before the date of the Company’s proposed
\ndissolution or liquidation. The Committee shall notify each Participant in
\nwriting, at least five (5) U.S. business days prior to the New Purchase Date,
\nthat the Purchase Date for the Participant’s purchase right has been changed to
\nthe New Purchase Date and that Shares shall be purchased automatically for the
\nParticipant on the New Purchase Date, unless prior to such date the Participant
\nhas withdrawn from the Offering as provided in Section 10 hereof.<\/p>\n<\/p>\n

(c) Change in Control<\/u>. In the event of a Change in Control, each
\noutstanding purchase right shall be assumed or an equivalent purchase right
\nsubstituted by the successor corporation or a Parent or Subsidiary of the
\nsuccessor corporation. In the event that the successor corporation refuses to
\nassume or substitute for the purchase right, the Offering Period then in
\nprogress shall be shortened by setting a New Purchase Date and shall end on the
\nNew Purchase Date. The New Purchase Date shall be before the date of the
\nCompany’s proposed Change in Control. The Committee shall notify each
\nParticipant in writing, at least five (5) U.S. business days prior to the New
\nPurchase Date, that the Purchase Date for the Participant’s purchase right has
\nbeen changed to the New Purchase Date and that Shares shall be purchased
\nautomatically for the Participant on the New Purchase Date, unless prior to such
\ndate the Participant has withdrawn from the Offering as provided in Section 10
\nhereof.<\/p>\n<\/p>\n

17. Administration<\/u>.<\/p>\n<\/p>\n

(a) Authority of the Committee<\/u>. Subject to the terms of the Plan and
\napplicable law, and in addition to other express powers and authorizations
\nconferred on the Committee by the Plan, the Committee shall have sole and
\nplenary authority to administer the Plan, including, without limitation, the
\nauthority to:<\/p>\n<\/p>\n

(i) construe, interpret, reconcile any inconsistency in, correct any default
\nin and supply any omission in, and apply the terms of the Plan and any
\nParticipation Election or other instrument or agreement relating to the Plan,\n<\/p>\n<\/p>\n

(ii) determine eligibility and adjudicate all disputed claims filed under the
\nPlan, including whether Eligible Employees shall participate in the 423
\nComponent or the Non-423 Component and which entities shall be Designated
\nSubsidiaries or Designated Affiliates,<\/p>\n<\/p>\n

(iii) determine the terms and conditions of any right to purchase Shares and
\nany Offering under the Plan,<\/p>\n<\/p>\n

(iv) establish, amend, suspend or waive such rules and regulations and
\nappoint such agents as it shall deem appropriate for the proper administration
\nof the Plan,<\/p>\n<\/p>\n

(v) amend an outstanding purchase right or grant a replacement purchase right
\nfor a purchase right previously granted under the Plan if, in the Committee’s
\ndiscretion, it determines that (A) the tax consequences of such purchase right
\nto the Company or the Participant differ from those consequences that were
\nexpected to occur on the date the purchase right was granted, or (B)
\nclarifications or interpretations of, or changes to, tax law or regulations
\npermit purchase rights to be granted that have more favorable tax consequences
\nthan initially anticipated, and<\/p>\n<\/p>\n

(vi) make any other determination and take any other action that the
\nCommittee deems necessary or desirable for the administration of the Plan.<\/p>\n<\/p>\n

Notwithstanding any provision to the contrary in this Plan, the Committee may
\nadopt rules or procedures relating to the operation and administration of the
\nPlan to accommodate the specific requirements of local laws and procedures for
\njurisdictions outside of the United States. Without limiting the generality of
\nthe foregoing, the Committee specifically is authorized to adopt rules,
\nprocedures and subplans, which, for purposes of the Non-423 Component, may be
\noutside the scope of Section 423 of the Code, regarding, without limitation,
\neligibility to participate in the Plan, the definition of Compensation, handling
\nof payroll deductions, making of contributions to the Plan (including, without
\nlimitation, in forms other than payroll deductions), establishment of bank or
\ntrust accounts to hold payroll deductions or other contributions, payment of
\ninterest, conversion of local currency, obligations to pay payroll tax,
\ndetermination of beneficiary-designation requirements, withholding procedures
\nand handling of Share issuances, which may vary according to local requirements.
\nThe Committee may delegate any of its authority set forth in this paragraph to
\nthe Administrator, unless constrained by applicable law.<\/p>\n<\/p>\n

(b) Committee Decisions<\/u>. Unless otherwise expressly provided in the
\nPlan, all designations, determinations, interpretations and other decisions
\nunder or with respect to the Plan or any right to purchase Shares granted under
\nthe Plan shall be within the sole and plenary discretion of the Committee, may
\nbe made at any time and shall be final, conclusive, and binding upon all
\npersons, including the Company, any Designated Subsidiary or Designated
\nAffiliate, any Participant, any Eligible Employee, or any beneficiary of such
\nperson, as applicable.<\/p>\n<\/p>\n

(c) Indemnification<\/u>. To the extent permissible under applicable law,
\neach member of the Board, the Committee, the Administrator or any officer of the
\nCompany, a Designated Subsidiary or a Designated Affiliate (each such person, a
\n“Covered Person<\/u>“) shall be indemnified and held harmless by the Company
\nfrom any loss, cost, liability, or expense that may be imposed upon or
\nreasonably incurred by such Covered Person in connection with or resulting from
\nany claim, action, suit, or proceeding to which he or she may be a party or in
\nwhich he or she may be involved by reason of any action or failure to act on
\nbehalf of the Company pursuant to the Plan and against and from any and all
\namounts paid by him or her in satisfaction of judgment in such action, suit, or
\nproceeding against him or her; provided he or she gives the Company an
\nopportunity, at its own expense, to handle and defend the same before he or she
\nundertakes to handle and defend it on his or her own behalf. The foregoing right
\nof indemnification shall not be exclusive of any other rights of indemnification
\nto which such Covered Persons may be entitled pursuant to the Company’s
\nCertificate of Incorporation or Bylaws, as a matter of law, or otherwise, or any
\npower that the Company may have to indemnify them or hold them harmless.<\/p>\n<\/p>\n

18. Transferability<\/u>. Neither payroll deductions nor other
\ncontributions credited to a Participant’s account nor any rights with regard to
\nthe purchase of Shares pursuant to a purchase right or to receive Shares under
\nthe Plan may be assigned, alienated, pledged, attached, sold or otherwise
\ndisposed of in any way (other than by will, the laws of descent and
\ndistribution) by the Participant. Any such attempt at assignment, transfer,
\npledge or other disposition shall be without effect, except that the Company may
\ntreat such act as an election to withdraw funds from an Offering in accordance
\nwith Section 10 hereof.<\/p>\n<\/p>\n

19. Use of Funds<\/u>. All payroll deductions or other contributions
\nreceived or held by the Company under the Plan may be used by the Company for
\nany corporate purpose, and the Company shall not be obligated to segregate such
\npayroll deductions or contributions except as may be required by applicable law,
\nas determined by the Committee.<\/p>\n<\/p>\n

20. Amendment and Termination<\/u>.<\/p>\n<\/p>\n

(a) The Plan may be amended, modified, suspended or terminated by the Board
\nor the Committee without the approval of the stockholders of the Company;
\nprovided<\/u>, however<\/u>, that the Company shall obtain stockholder
\napproval of any amendment in such a manner and to such a degree as required by
\napplicable law or government regulation, or the rules of the NASDAQ or any
\nsuccessor exchange or quotation system on which the Shares may be listed or
\nquoted or to comply with Section 423 of the Code. For the avoidance of doubt,
\nthe authority to amend, modify, suspend or terminate the Plan may not be
\ndelegated to the Administrator.<\/p>\n<\/p>\n

(b) Without limitation to the provisions of Section 20(a) hereof, the
\nCommittee shall be entitled to take the following actions without stockholder
\napproval and without regard to whether any Participant rights may be considered
\nto be adversely affected by such actions:<\/p>\n<\/p>\n

(i) change the method for determining the Purchase Price;<\/p>\n<\/p>\n

(ii) change the duration and timing of Offering Periods and\/or Purchase
\nPeriods (subject to the limitations set forth in Sections 4(a) and (b) hereof,
\nrespectively);<\/p>\n<\/p>\n

(iii) determine whether or not and how frequent changes may be made to the
\nrate of payroll deductions or other contributions to be made during a Purchase
\nPeriod;<\/p>\n<\/p>\n

(iv) increase or decrease the maximum number of Shares a Participant may
\npurchase during a Purchase Period (subject to the limitations set forth in
\nSection 8(b) and Section 15 hereof);<\/p>\n<\/p>\n

(v) establish the exchange ratio applicable to payroll deductions or other
\ncontributions made in a currency other than U.S. dollars;<\/p>\n<\/p>\n

(vi) change the maximum rate of payroll deductions or other contributions
\nthat a Participant can elect or permit payroll deductions or other contributions
\nin excess of the rate designated by a Participant to adjust for delays or
\nmistakes in the Company’s processing of a properly completed Participation
\nElection;<\/p>\n<\/p>\n

(vii) establish reasonable waiting and adjustment periods and\/or accounting
\nand crediting procedures to ensure that amounts applied toward the purchase of
\nShares for each Participant properly correspond with amounts deducted from or
\ncontributed by the Participant; and<\/p>\n<\/p>\n

(viii) establish such other limitations or procedures as the Committee
\ndetermines in its sole discretion advisable which are consistent with the Plan.\n<\/p>\n<\/p>\n

21. Notices<\/u>. All notices or other communications by a Participant to
\nthe Company under or in connection with the Plan shall be deemed to have been
\nduly given when received in the form and manner specified by the Committee at
\nthe location, or by the person, designated by the Committee for the receipt
\nthereof.<\/p>\n<\/p>\n

22. Conditions upon Issuance of Shares<\/u>.<\/p>\n<\/p>\n

(a) Shares shall not be issued with respect to a purchase right unless the
\npurchase of Shares pursuant to such purchase right and the issuance and delivery
\nof such Shares pursuant thereto shall comply with all applicable provisions of
\nlaw, U.S. and non-U.S. and state and local provisions, including, without
\nlimitation, the U.S. Securities Act of 1933, as amended, the Exchange Act, the
\nrules and regulations promulgated thereunder, and the requirements of any stock
\nexchange upon which the Shares may then be listed, and shall be further subject
\nto the approval of counsel for the Company with respect to such compliance. In
\nthe event the Company determines that Shares may not be issued pursuant to this
\nSection 22(a), any payroll deductions or other contributions shall be promptly
\nrefunded to the relevant Participants.<\/p>\n<\/p>\n

(b) As a condition to the purchase of Shares pursuant to a purchase right,
\nthe Company may require the person on whose behalf Shares are purchased to
\nrepresent and warrant at the time of any such purchase that the Shares are being
\npurchased only for investment and without any present intention to sell or
\ndistribute such Shares if, in the opinion of counsel for the Company, such a
\nrepresentation is required by any of the applicable provisions of law described
\nin Section 22(a) hereof.<\/p>\n<\/p>\n

23. Share Issuance<\/u>. All Shares delivered pursuant to the purchase of
\nShares under the Plan shall be subject to such restrictions as the Committee may
\ndeem advisable under the Plan or the rules, regulations, and other requirements
\nof the U.S. Securities and Exchange Commission, the NASDAQ or any other stock
\nexchange or quotation system upon which such Shares or other securities are then
\nlisted or reported and any applicable federal, state or other laws, and the
\nCommittee may take whatever steps are necessary to effect such restrictions.<\/p>\n<\/p>\n

24. Term of Plan<\/u>. After adoption of the Plan by the Board, this Plan
\nwill become effective on the first Offering Date (as described in Section 4(a)
\nhereof). Subject to Section 25 hereof, this Plan shall continue until the
\nearlier to occur of (a) termination of this Plan by the Board or the Committee
\n(pursuant to Section 20(a) hereof), (b) issuance of all of the Shares reserved
\nfor issuance under this Plan, or (c) ten (10) years from the adoption of this
\nPlan by the Board. No further purchase rights shall be granted or Shares
\npurchased, and no further payroll deductions or other contributions shall be
\ncollected under the Plan following such termination.<\/p>\n<\/p>\n

25. Stockholder Approval of Plan<\/u>. This Plan shall be approved by the
\nstockholders of the Company, in the manner and to the degree required under
\napplicable law, within twelve (12) months of the date this Plan is adopted by
\nthe Board. No purchase of Shares pursuant to this Plan shall occur prior to such
\nstockholder approval. If the Plan is not approved by the stockholders of the
\nCompany prior to the first scheduled Purchase Date, the Plan and all purchase
\nrights granted under the Plan will terminate immediately prior to the first
\nscheduled Purchase Date without any action by the Board or the Committee, and
\nall payroll deductions and other contributions will be refunded to Participants
\nas soon as practicable.<\/p>\n<\/p>\n

26. Code Section 409A; Tax Qualification<\/u>.<\/p>\n<\/p>\n

(a) Purchase rights granted under the 423 Component are exempt from the
\napplication of Section 409A of the Code. Purchase rights granted under the
\nNon-423 Component to U.S. taxpayers are intended to be exempt from the
\napplication of Section 409A of the Code under the short-term deferral exception
\nand any ambiguities shall be construed and interpreted in accordance with such
\nintent. Subject to Section 26(b) hereof, purchase rights granted to U.S.
\ntaxpayers under the Non-423 Component shall be subject to such terms and
\nconditions that will permit such purchase rights to satisfy the requirements of
\nthe short-term deferral exception available under Section 409A of the Code,
\nincluding the requirement that the Shares subject to a purchase right be
\ndelivered within the short-term deferral period. Subject to Section 26(b)
\nhereof, in the case of a Participant who would otherwise be subject to Section
\n409A of the Code, to the extent the Committee determines that a purchase right
\nor the exercise, payment, settlement or deferral thereof is subject to Section
\n409A of the Code, the purchase right shall be granted, exercised, paid, settled
\nor deferred in a manner that will comply with Section 409A of the Code,
\nincluding U.S. Department of Treasury regulations and other interpretive
\nguidance issued thereunder, including without limitation any such regulations or
\nother guidance that may be issued after the Effective Date. Notwithstanding the
\nforegoing, the Company shall have no liability to a Participant or any other
\nparty if the purchase right that is intended to be exempt from or compliant with
\nSection 409A of the Code is not so exempt or compliant or for any action taken
\nby the Committee with respect thereto.<\/p>\n<\/p>\n

(b) Although the Company may endeavor to (i) qualify a purchase right for
\nfavorable tax treatment under the laws of the United States or jurisdictions
\noutside of the United States or (ii) avoid adverse tax treatment
\n(e.g.<\/em>, under Section 409A of the Code), the Company makes no
\nrepresentation to that effect and expressly disavows any covenant to maintain
\nfavorable or avoid unfavorable tax treatment, notwithstanding anything to the
\ncontrary in this Plan, including Section 26(a) hereof. The Company shall be
\nunconstrained in its corporate activities without regard to the potential
\nnegative tax impact on Participants under the Plan.<\/p>\n<\/p>\n

27. Severability<\/u>. If any particular provision of this Plan is found to
\nbe invalid or otherwise unenforceable, such provision shall not affect the other
\nprovisions of the Plan, but the Plan shall be construed in all respects as if
\nsuch invalid provision were omitted.<\/p>\n<\/p>\n

28. Governing Law<\/u>. Except to the extent that provisions of this Plan
\nare governed by applicable provisions of the Code or any other substantive
\nprovision of federal law, this Plan shall be construed in accordance with the
\nlaws of the State of Delaware, without giving effect to the conflict of laws
\nprinciples thereof.<\/p>\n<\/p>\n

29. Headings<\/u>. Headings are given to the sections and subsections of
\nthe Plan solely as a convenience to facilitate reference. Such headings shall
\nnot be deemed in any way material or relevant to the construction or
\ninterpretation of the Plan.<\/p>\n<\/p><\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6590],"corporate_contracts_industries":[],"corporate_contracts_types":[9539,9545],"class_list":["post-38821","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-affymetrix-inc","corporate_contracts_types-compensation","corporate_contracts_types-compensation__esp"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/38821","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=38821"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38821"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38821"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38821"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}