NPS PHARMACEUTICALS INC
1994 EMPLOYEE STOCK PURCHASE PLAN
<DOCUMENT>
<TYPE>EX-10.4C
<SEQUENCE>9
<FILENAME>b323607_10-4c.htm
<DESCRIPTION>1994 EMPLOYEE STOCK PURCHASE PLAN
<TEXT>
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<title>
Prepared and filed by St Ives Burrups
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<a name="p1"></a>
<p align="right"><font size="2"><b>EXHIBIT 10.4C</b></font></p>
<p align="center"><font size="2" face="serif"><b><font face="serif" size="3">NPS
  PHARMACEUTICALS, INC.</font></b></font></p>
<p align="center"><font size="2" face="serif"><b>1994 E<small>MPLOYEE</small> S<small>TOCK</small> P<small>URCHASE</small>
  P<small>LAN</small><br>
  </b></font><font size="2" face="serif"><i>(as Amended by the Board of Directors
  on December 2002)</i></font></p>
<table width="100%" border="0" cellspacing="0" cellpadding="0">
  <tr>
    <td width="4%"><font size="2" face="serif">1. </font></td>
    <td><font size="2">P<small>URPOSE</small>.</font></td>
  </tr>
</table>
<div style="text-indent: 4%">
  <p><font size="2">1.1 The purpose of the Employee Stock Purchase Plan (the &#8220;Plan&#8221;)
    is to provide a means by which employees of NPS Pharmaceuticals, Inc., a Delaware
    corporation (the &#8220;Company&#8221;), and its Affiliates, as defined in
    subparagraph 1.2, which are designated as provided in subparagraph 2.2, may
    be given an opportunity to purchase stock of the Company.</font></p>
  <p align="left"><font size="2" face="serif">1.2 The word &#8220;Affiliate&#8221;
    as used in the Plan means any parent corporation or subsidiary corporation
    of the Company, as those terms are defined in Sections&nbsp;424(e) and (f),
    respectively, of the Internal Revenue Code of 1986, as amended (the &#8220;Code&#8221;).</font></p>
  <p align="left"><font size="2" face="serif">1.3 The Company, by means of the
    Plan, seeks to retain the services of its 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.</font></p>
  <p align="left"><font size="2" face="serif">1.4 The Company intends that the
    rights to purchase stock of the Company granted under the Plan be considered
    options issued under an &#8220;employee stock purchase plan&#8221; as that
    term is defined in Section&nbsp;423(b) of the Code.</font></p>
</div>
<table width="100%" border="0" cellspacing="0" cellpadding="0">
  <tr>
    <td width="4%"><font size="2" face="serif">2. </font></td>
    <td><font size="2">A<small>DMINISTRATION</small>.</font></td>
  </tr>
</table>
<div style="text-indent: 4%">
  <p><font size="2">2.1 The Plan shall be administered by the Board of Directors
    (the &#8220;Board&#8221;) of the Company unless and until the Board delegates
    administration to a Committee, as provided in subparagraph 2.3. 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.</font></p>
  <p align="left"><font size="2" face="serif">2.2 The Board shall have the power,
    subject to, and within the limitations of, the express provisions of the Plan:</font></p>
  <div style="margin-left: 4%"><font size="2">2.2.1 To determine when and how
    rights to purchase stock of the Company shall be granted and the provisions
    of each offering of such rights (which need not be identical).</font>
    <p align="left"><font size="2" face="serif">2.2.2 To designate from time to
      time which Affiliates of the Company shall be eligible to participate in
      the Plan.</font></p>
    <p align="left"><font size="2" face="serif">2.2.3 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.</font></p>
    <p align="left"><font size="2" face="serif">2.2.4 To amend the Plan as provided
      in paragraph&nbsp;13.</font></p>
    <p align="left"><font size="2" face="serif">2.2.5 Generally, to exercise such
      powers and to perform such acts as the Board deems necessary or expedient
      to promote the best interests of the Company.</font></div>
</div>
<p align="center"><font size="2">1</font></p>
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<a name="p2"></a><p></p> <page>
<div style="text-indent: 4%">
  <p><font size="2">2.3 The Board may delegate administration of the Plan to a
    Committee composed of not fewer than two (2) members of the Board (the &#8220;Committee&#8221;).
    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, 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.</font></p>
</div>
<table width="100%" border="0" cellspacing="0" cellpadding="0">
  <tr>
    <td width="4%"><font size="2" face="serif">3. </font></td>
    <td><font size="2">S<small>HARES</small> S<small>UBJECT</small> T<small>O</small> T<small>HE</small> P<small>LAN</small>.</font></td>
  </tr>
</table>
<div style="text-indent: 4%">
  <p><font size="2">3.1 Subject to the provisions of paragraph 12 relating to
    adjustments upon changes in stock, the stock that may be sold pursuant to
    rights granted under the Plan shall not exceed in the aggregate two hundred
    sixty thousand (260,000) shares of the Company's common stock (the &#8220;Common
    Stock&#8221;). If any right granted under the Plan shall for any reason terminate
    without having been exercised, the Common Stock not purchased under such right
    shall again become available for the Plan.</font></p>
  <p align="left"><font size="2" face="serif">3.2 The stock subject to the Plan
    may be unissued shares or reacquired shares, bought on the market or otherwise.</font></p>
</div>
<table width="100%" border="0" cellspacing="0" cellpadding="0">
  <tr>
    <td width="4%"><font size="2" face="serif">4.</font></td>
    <td><font size="2" face="serif"> G<small>RANT</small> O<small>F</small> R<small>IGHTS</small>; O<small>FFERING</small>.</font></td>
  </tr>
</table>
<div style="text-indent: 4%">
  <p><font size="2">The Board or the Committee may from time to time grant or
    provide for the grant of rights to purchase Common Stock of the Company under
    the Plan to eligible employees (an &#8220;Offering&#8221;) on a date or dates
    (the &#8220;Offering Date(s)&#8221;) selected by the Board or the Committee.
    Each Offering shall be in such form and shall contain such terms and conditions
    as the Board or the Committee shall deem appropriate. If an employee has more
    than one right outstanding under the Plan, unless he or she otherwise indicates
    in agreements or notices delivered hereunder: (a)&nbsp;each agreement or notice
    delivered by that employee will be deemed to apply to all of his or her rights
    under the Plan, and (b)&nbsp;a right with a lower exercise price (or an earlier-granted
    right, if two rights have identical exercise prices), will be exercised to
    the fullest possible extent before a right with a higher exercise price (or
    a later-granted right, if two rights have identical exercise prices)
    will be exercised. 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 Offering or otherwise) the substance of the
    provisions contained in paragraphs&nbsp;5 through 8, inclusive.</font></p>
</div>
<table width="100%" border="0" cellspacing="0" cellpadding="0">
  <tr>
    <td width="4%"><font size="2" face="serif">5.</font></td>
    <td><font size="2" face="serif"> E<small>LIGIBILITY</small>.</font></td>
  </tr>
</table>
<div style="text-indent: 4%">
  <p><font size="2">5.1 Rights may be granted only to employees of the Company
    or, as the Board or the Committee may designate as provided in subparagraph
    2.2, to employees of any Affiliate of the Company. Except as provided in subparagraph
    5.2, an employee of the Company or any Affiliate 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 any Affiliate for such continuous
    period preceding such grant as the Board or the Committee may require, but
    in no event shall the required period of continuous employment be equal to
    or greater than two (2) years. In addition, unless otherwise determined by
    the Board or the Committee and set forth in the terms of the applicable Offering,
    no employee of the Company or any Affiliate shall be eligible to be granted
    rights under the Plan, unless, on the Offering Date, such employee's customary
    employment with the Company or such Affiliate is at least twenty (20) hours
    per week and at least five (5) months per calendar year.</font></p>
  <p align="left"><font size="2" face="serif">5.2 The Board or the Committee may
    provide that, each person who, during the course of an Offering, first becomes
    an eligible employee of the Company or designated Affiliate will, on a date
    or dates specified in the Offering which coincides with the day on which such
    person becomes an eligible employee or occurs thereafter, receive a right
    under that Offering, which right shall thereafter be deemed to</font></p>
</div>
<p align="center"><font size="2" face="serif">2</font></p>
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<div style="page-break-before:always"></div><a name="p3"></a><p></p>
<page>
<p align="left"><font size="2" face="serif"> 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:</font></p>
<div style="text-indent: 4%">
  <div style="margin-left: 4%"><font size="2">5.2.1 the date on which such right
    is granted shall be the &#8220;Offering Date&#8221; of such right for all
    purposes, including determination of the purchase price of such right;</font>
<p align="left"><font size="2" face="serif">5.2.2 the Offering Period (as
      defined below) for such right shall begin on its Offering Date and end coincident
      with the end of such Offering; and</font></p>
    <p align="left"><font size="2" face="serif">5.2.3 the Board or the Committee
      may provide that if such person first becomes an eligible employee within
      a specified period of time before the end of the Offering Period (as defined
      below) for such Offering, he or she will not receive any right under that
      Offering.</font></div>
  <div style="text-indent: 4%">
    <p><font size="2">5.3 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 5.3, the rules of Section&nbsp;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.</font></p>
  </div>
  <p align="left"><font size="2" face="serif">5.4 An eligible employee may be
    granted rights under the Plan only if such rights, together with any other
    rights granted under &#8220;employee stock purchase plans&#8221; of the Company
    and any Affiliates, as specified by Section&nbsp;423(b)(8) of the Code, do
    not permit such employee's rights to purchase stock of the Company or any
    Affiliate to accrue at a rate which exceeds twenty-five thousand dollars
    ($25,000) of fair market value of such stock (determined at the time such
    rights are granted) for each calendar year in which such rights are outstanding
    at any time.</font></p>
  <p align="left"><font size="2" face="serif">5.5 Officers of the Company and
    any designated Affiliate shall be eligible to participate in Offerings under
    the Plan, provided, however, that the Board may provide in an Offering that
    certain employees who are highly compensated employees within the meaning
    of Section&nbsp;423(b)(4)(D) of the Code shall not be eligible to participate.</font></p>
</div>
<table width="100%" border="0" cellspacing="0" cellpadding="0">
  <tr>
    <td width="4%"><font size="2" face="serif">6. </font></td>
    <td><font size="2" face="serif"> R<small>IGHTS</small>; P<small>URCHASE</small> P<small>RICE</small>.</font></td>
  </tr>
</table>
<div style="text-indent: 4%">
  <p><font size="2">6.1 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 Common Stock of the Company purchasable with
    a percentage designated by the Board or the Committee not exceeding fifteen
    percent (15%) of such employee&#8217;s Earnings (as defined in Section&nbsp;7(a))
    during the period which begins on the Offering Date (or such later date as
    the Board or the Committee determines for a particular Offering) and ends
    on the date stated in the Offering, which date shall be no more than twenty-seven
    (27) months after the Offering Date (the &#8220;Offering Period&#8221;). In
    connection with each Offering made under this Plan, the Board or the Committee
    shall specify a maximum number of shares which may be purchased by any employee
    as well as a maximum aggregate number of shares which may be purchased by
    all eligible employees pursuant to such Offering. In addition, in connection
    with each Offering which contains more than one Purchase Date and a corresponding
    Purchase Period (as defined in the Offering), the Board or the Committee may
    specify a maximum aggregate number of shares which may be purchased by all
    eligible employees on any given Purchase Date under the Offering. If the aggregate
    purchase of shares upon exercise of rights granted under the Offering would
    exceed any such maximum aggregate number, the Board or the Committee shall
    make a pro rata allocation of the shares available in as nearly a uniform
    manner as shall be practicable and as it shall deem to be equitable.</font></p>
</div>
<p align="center"><font size="2">3</font></p>
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<a name="p4"></a><p></p> <page>
<div style="text-indent: 4%">
  <p><font size="2">6.2 The purchase price of stock acquired pursuant to rights
    granted under the Plan shall be not less than the lesser of:</font></p>
</div>
<div style="text-indent: 4%">
  <div style="margin-left: 4%"><font size="2">6.2.1 an amount equal to eighty-five
    percent (85%) of the fair market value of the stock on the Offering Date;
    or </font>
    <p align="left"><font size="2" face="serif">6.2.2 an amount equal to eighty-five
      percent (85%) of the fair market value of the stock on the Purchase Date.
      </font></div>

</div>
<div style="text-indent: 4%">
  <p><font size="2">6.3 In the event that the fair market value of the shares
    on a Purchase Date of an Offering Period is less than the fair market value
    of the shares on the Offering Date for such Offering Period, then every participant
    shall automatically (a) be withdrawn from such Purchase Period at the close
    of such Purchase Date (after the acquisition of shares for such Purchase Period),
    and (b) be re-enrolled on the first business day subsequent to such Purchase
    Date with such date now constituting the &#8220;Offering Date&#8221; for all
    purposes, including determination of the Purchase Price of such right. </font></p>
</div>
<table width="100%" border="0" cellspacing="0" cellpadding="0">
  <tr>
    <td width="4%"><font size="2" face="serif">7.</font></td>
    <td><font size="2" face="serif"> P<small>ARTICIPATION</small>; W<small>ITHDRAWAL</small>; T<small>ERMINATION</small>.</font></td>
  </tr>
</table>
<div style="text-indent: 4%">
  <p><font size="2">7.1 An eligible employee may become a participant in 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 deductions of up to the maximum percentage specified
    by the Board or the Committee of such employee's Earnings during the Offering
    Period. &#8220;Earnings&#8221; is defined as the total compensation paid to
    an employee, including all salary, wages (including amounts elected to be
    deferred by the employee, that would otherwise have been paid, under any cash
    or deferred arrangement established by the Company), overtime pay, commissions,
    bonuses, and other remuneration paid directly to the employee, but excluding
    profit sharing, the cost of employee benefits paid for by the Company, education
    or tuition reimbursements, imputed income arising under any Company group
    insurance or benefit program, traveling expenses, business and moving expense
    reimbursements, income received in connection with stock options, contributions
    made by the Company under any employee benefit plan, and similar items of
    compensation. The payroll deductions made for each participant shall be credited
    to an account for such participant under the Plan and shall be deposited with
    the general funds of the Company. A participant may reduce (including to zero),
    increase or begin such payroll deductions after the beginning of any Purchase
    Period only as provided for in 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 had the maximum amount withheld
    during the Purchase Period.</font></p>
  <p align="left"><font size="2" face="serif">7.2 At any time during an Offering
    Period 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 Period except as provided
    by the Board or the Committee 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 stock for the participant)
    under the Offering, without interest, and such participant&#8217;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.</font></p>
  <p align="left"><font size="2" face="serif">7.3 Rights granted pursuant to any
    Offering under the Plan shall terminate immediately upon cessation of any
    participating employee&#8217;s employment with the Company and any designated Affiliate,
    for any reason, and the Company shall distribute to such terminated employee
    all of his or her accumulated</font></p>
  <div align="center"><font size="2">4</font></div>
</div>
<hr noshade>
<div style="page-break-before:always"></div><a name="p5"></a><p></p>
<page>
<p align="left"><font size="2" face="serif"> payroll deductions (reduced to the
  extent, if any, such deductions have been used to acquire stock for the terminated
  employee), under the Offering, without interest.</font></p>
<div style="text-indent: 4%">
  <p><font size="2">7.4 Rights granted under the Plan shall not be transferable,
    and, except as provided in Section 14, shall be exercisable only by the person
    to whom such rights are granted.</font></p>
</div>
<table width="100%" border="0" cellspacing="0" cellpadding="0">
  <tr>
    <td width="4%"><font size="2" face="serif">8. </font></td>
    <td><font size="2" face="serif"> E<small>XERCISE</small>.</font></td>
  </tr>
</table>
<div style="text-indent: 4%">
  <p><font size="2">8.1 On each purchase date, as defined in the relevant Offering
    (a &#8220;Purchase Date&#8221;), each participant&#8217;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 whole shares
    of stock of the Company, up to the maximum number of shares permitted pursuant
    to the terms of the Plan and the applicable Offering, at the purchase price
    specified in the Offering. No fractional shares shall be issued upon the exercise
    of rights granted under the Plan. The amount, if any, of accumulated payroll
    deductions remaining in each participant&#8217;s account after the purchase of shares
    which is less than the amount required to purchase one share of stock on the
    final Purchase Date of an Offering shall be held in each such participant&#8217;s
    account for the purchase of shares under the next Offering under the Plan,
    unless such participant withdraws from such next Offering, as provided in
    subparagraph 7.2, or is no longer eligible to be granted rights under the
    Plan, as provided in paragraph&nbsp;5, in which case such amount shall be
    distributed to the participant after said final Purchase Date of the Offering,
    without interest. The amount, if any, of accumulated payroll deductions remaining
    in any participant's account after the purchase of shares which is equal to
    the amount required to purchase whole shares of stock on the final Purchase
    Date of an Offering shall be distributed in full to the participant after
    such Purchase Date, without interest.</font></p>
  <p align="left"><font size="2" face="serif">8.2 No rights granted under the
    Plan may be exercised to any extent unless the Plan (including rights granted
    thereunder) is covered by an effective registration statement pursuant to
    the Securities Act of 1933, as amended (the &#8220;Securities Act&#8221;).
    If on a Purchase Date of any Offering hereunder the Plan is not so registered,
    no rights granted under the Plan or any Offering shall be exercised on said
    Purchase Date and the Purchase Date shall be delayed until the Plan is subject
    to such an effective registration statement, except that the Purchase Date
    shall not be delayed more than two (2) 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, no rights granted under the
    Plan or any Offering shall be exercised and all payroll deductions accumulated
    during the Offering Period (reduced to the extent, if any, such deductions
    have been used to acquire stock) shall be distributed to the participants,
    without interest.</font></p>
</div>
<table width="100%" border="0" cellspacing="0" cellpadding="0">
  <tr>
    <td width="4%"><font size="2" face="serif">9.</font></td>
    <td><font size="2" face="serif"> C<small>OVENANTS</small> O<small>F</small> T<small>HE</small> C<small>OMPANY</small>.</font></td>
  </tr>
</table>
<div style="text-indent: 4%">
  <p><font size="2">9.1 During the terms of the rights granted under the Plan,
    the Company shall keep available at all times the number of shares of stock
    required to satisfy such rights.</font></p>
  <p align="left"><font size="2" face="serif">9.2 The Company shall seek to obtain
    from each regulatory commission or agency having jurisdiction over the Plan
    such authority as may be required to issue and sell shares of 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 stock under the Plan, the Company shall be relieved from any liability
    for failure to issue and sell stock upon exercise of such rights unless and
    until such authority is obtained.</font></p>
</div>
<p align="center"><font size="2" face="serif">5</font></p>
<hr noshade>
<div style="page-break-before:always">
  <p><a name="p6"></a></p>
  <page>
<table width="100%" border="0" cellspacing="0" cellpadding="0">
  <tr>
    <td width="4%"><font size="2" face="serif">10.</font></td>
      <td><font size="2" face="serif"> U<small>SE</small> O<small>F</small> P<small>ROCEEDS</small> F<small>ROM</small> S<small>TOCK</small>.</font></td>
  </tr>
</table>
<div style="text-indent: 4%">
  <p><font size="2" face="serif">Proceeds from the sale of stock pursuant to rights
    granted under the Plan shall constitute general funds of the Company.</font></p>
</div>
<table width="100%" border="0" cellspacing="0" cellpadding="0">
  <tr>
    <td width="4%"><font size="2" face="serif">11.</font></td>
      <td><font size="2" face="serif"> R<small>IGHTS</small> A<small>S</small> A S<small>TOCKHOLDER</small>.</font></td>
  </tr>
</table>
<div style="text-indent: 4%">
  <p><font size="2">A participant shall not be deemed to be the holder of, or
    to have any of the rights of a holder with respect to, any shares subject
    to rights granted under the Plan unless and until the participant's shareholdings
    acquired upon exercise of rights hereunder are recorded in the books of the
    Company.</font></p>
</div>
<table width="100%" border="0" cellspacing="0" cellpadding="0">
  <tr>
    <td width="4%"><font size="2" face="serif">12.</font></td>
      <td><font size="2" face="serif"> A<small>DJUSTMENTS</small> U<small>PON</small> C<small>HANGES</small> I<small>N</small> S<small>TOCK</small>.</font></td>
  </tr>
</table>
<div style="text-indent: 4%">
  <p><font size="2">12.1 If any change is made in the stock subject to the Plan,
    or subject to any rights granted under the Plan (through merger, consolidation,
    reorganization, recapitalization, stock dividend, dividend in property other
    than cash, stock split, liquidating dividend, combination of shares, exchange
    of shares, change in corporate structure or otherwise), the Plan and outstanding
    rights will be appropriately adjusted in the class(es) and maximum number
    of shares subject to the Plan and the class(es) and number of shares and price
    per share of stock subject to outstanding rights.</font></p>
    <p align="left"><font size="2" face="serif">12.2 In the event of: (a)&nbsp;a
      dissolution or liquidation of the Company; (b)&nbsp;a merger or consolidation
      in which the Company is not the surviving corporation; (c)&nbsp;a reverse
      merger in which the Company is the surviving corporation but the shares
      of the Company&#8217;s 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; (d) a strategic corporate event,
      such as a merger or acquisition, where the Company is technically the surviving
      entity, but where other elements of a change of control are present, i.e.
      change in management team or board composition; (e) a transaction which
      the Board determines in its sole discretion to constitute a change in control
      of the Company; or (f)&nbsp;any other capital reorganization in which more
      than fifty percent (50%) of the shares of the Company entitled to vote are
      exchanged, then, as determined by the Board in its sole discretion (i)&nbsp;any
      surviving corporation may assume outstanding rights or substitute similar
      rights for those under the Plan, (ii)&nbsp;such rights may continue in full
      force and effect, or (iii)&nbsp;participants&#8217; accumulated payroll deductions
      may be used to purchase Common Stock immediately prior to the transaction
      described above and the participants&#146; rights under the ongoing Offering
      terminated.</font></p>
</div>
<table width="100%" border="0" cellspacing="0" cellpadding="0">
  <tr>
    <td width="4%"><font size="2" face="serif">13. </font></td>
      <td><font size="2" face="serif"> A<small>MENDMENT</small> O<small>F</small> T<small>HE</small> P<small>LAN</small>.</font></td>
  </tr>
</table>
<br>
<div style="text-indent: 4%">
  <div style="margin-left: 4%"><font size="2">13.1 The Board at any time, and
    from time to time, may amend the Plan. However, except as provided in paragraph&nbsp;12
    relating to adjustments upon changes in stock, no amendment shall be effective
    unless approved by the stockholders of the Company within twelve (12) months
    before or after the adoption of the amendment, where the amendment will:</font>
    <p align="left"><font size="2" face="serif">13.1.1 Increase the number of
      shares reserved for rights under the Plan;</font></p>
    <p align="left"><font size="2" face="serif">13.1.2 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&nbsp;423 of the Code or to comply
      with the requirements of Rule&nbsp;16b-3 promulgated under the Securities
      Exchange Act of 1934, as amended (&#8220;Rule 16b-3&#8221;)); or</font></div>
</div>
<p align="center"><font size="2">6</font></p>
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<page>
<div style="text-indent: 4%">
  <div style="margin-left: 4%"><font size="2">13.1.3 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&nbsp;423 of
    the Code or to comply with the requirements of Rule&nbsp;16b-3.</font></div>
  <p align="left"><font size="2" face="serif">It is expressly contemplated that
    the Board may amend the Plan in any respect the Board deems necessary or advisable
    to provide eligible 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.</font></p>
  <p align="left"><font size="2" face="serif">13.2 Rights and obligations under
    any rights granted before amendment of the Plan shall not be altered or 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 regulation. </font></p>
</div>
<table width="100%" border="0" cellspacing="0" cellpadding="0">
  <tr>
    <td width="4%"><font size="2" face="serif">14.</font></td>
      <td><font size="2" face="serif"> D<small>ESIGNATION</small> O<small>F</small> B<small>ENEFICIARY</small>.</font></td>
  </tr>
</table>
<div style="text-indent: 4%">
  <p><font size="2">14.1 A participant may file a written designation of a beneficiary
    who is to receive any shares and cash, if any, from the participant&#8217;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 him of such shares and cash. In
    addition, a participant may file a written designation of a beneficiary who
    is to receive any cash from the participant's account under the Plan in the
    event of such participant's death during an Offering Period. </font></p>
  <p align="left"><font size="2" face="serif">14.2 Such designation of beneficiary
    may be changed by the participant at any time by written notice. In the event
    of the death of a participant and in the absence of a beneficiary validly
    designated under the Plan who is living at the time of such participant's
    death, the Company shall deliver such shares 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 discretion, may deliver such shares 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. </font></p>
</div>
<table width="100%" border="0" cellspacing="0" cellpadding="0">
  <tr>
    <td width="4%" height="15"><font size="2" face="serif">15.</font></td>
      <td><font size="2" face="serif"> T<small>ERMINATION</small> O<small>R</small> S<small>USPENSION</small> O<small>F</small> T<small>HE</small> P<small>LAN</small>.</font></td>
  </tr>
</table>
<div style="text-indent: 4%">
  <p><font size="2">15.1 The Board may suspend or terminate the Plan at any time.
    Unless sooner terminated, the Plan shall terminate on midnight, January 6,
    2004. No rights may be granted under the Plan while the Plan is suspended
    or after it is terminated.</font></p>
  <p align="left"><font size="2" face="serif">15.2 Rights and obligations under
    any rights granted while the Plan is in effect shall not be altered or impaired
    by suspension or termination 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 regulation.</font></p>
</div>
<table width="100%" border="0" cellspacing="0" cellpadding="0">
  <tr>
    <td width="4%"><font size="2" face="serif">16.</font></td>
      <td><font size="2" face="serif"> E<small>FFECTIVE</small> D<small>ATE</small> O<small>F</small> P<small>LAN</small>.</font></td>
  </tr>
</table>
<div style="text-indent: 4%">
  <p><font size="2">The Plan shall become effective as determined by the Board,
    but no rights granted under the Plan shall be exercised unless and until the
    Plan has been approved by the stockholders of the Company.</font></p>
</div>
<p align="center"><font face="serif" size="2">7</font></p>
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