Attached files
file | filename |
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S-1/A - AMENDMENT NO. 3 TO FORM S-1 - NUPATHE INC. | w78367a3sv1za.htm |
EX-3.4 - EX-3.4 - NUPATHE INC. | w78367a3exv3w4.htm |
EX-5.1 - EX-5.1 - NUPATHE INC. | w78367a3exv5w1.htm |
EX-3.2 - EX-3.2 - NUPATHE INC. | w78367a3exv3w2.htm |
EX-4.1 - EX-4.1 - NUPATHE INC. | w78367a3exv4w1.htm |
EX-3.1 - EX-3.1 - NUPATHE INC. | w78367a3exv3w1.htm |
EX-1.1 - EX-1.1 - NUPATHE INC. | w78367a3exv1w1.htm |
EX-24.2 - EX-24.2 - NUPATHE INC. | w78367a3exv24w2.htm |
EX-24.3 - EX-24.3 - NUPATHE INC. | w78367a3exv24w3.htm |
EX-23.1 - EX-23.1 - NUPATHE INC. | w78367a3exv23w1.htm |
EX-10.13 - EX-10.13 - NUPATHE INC. | w78367a3exv10w13.htm |
EX-10.21 - EX-10.21 - NUPATHE INC. | w78367a3exv10w21.htm |
Exhibit 10.14
NUPATHE INC.
2010 EMPLOYEE STOCK PURCHASE PLAN
TABLE OF CONTENTS
Page | ||||
1. Purpose of the Plan |
1 | |||
2. Definitions |
1 | |||
3. Administration of the Plan |
4 | |||
4. Stock Subject to Plan |
4 | |||
5. Offering Periods |
4 | |||
6. Eligibility |
5 | |||
7. Payroll Deductions |
6 | |||
8. Purchase Rights |
7 | |||
9. Accrual Limitations |
9 | |||
10. Effective Date and Term of the Plan |
10 | |||
11. Amendment and Termination |
11 | |||
12. General Provisions |
11 | |||
Schedule A |
A-1 |
i
1. PURPOSE OF THE PLAN
The NuPathe Inc. 2010 Employee Stock Purchase Plan is intended to promote the interests of the
Company (as defined in Article 2) by providing Eligible Employees (as defined in Article 2) of a
Participating Employer (as defined in Article 2) with the opportunity to acquire a proprietary
interest in the Company through participation in a payroll deduction-based employee stock purchase
plan designed to qualify under section 423 of the Internal Revenue Code of 1986, as amended. The
Plan (as defined in Article 2) is not intended and shall not be construed as constituting an
employee benefit plan, within the meaning of section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended.
2. DEFINITIONS
(a) 1933 Act shall mean the Securities Act of 1933, as amended.
(b) Board shall mean the Companys Board of Directors.
(c) Change of Control shall be deemed to have occurred if:
(i) Any person (as such term is used in sections 13(d) and 14(d) of the
Exchange Act) becomes a beneficial owner (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company representing
more than 50% of the voting power of the then outstanding securities of the Company;
provided that a Change of Control shall not be deemed to occur as a result of a
transaction in which the Company becomes a subsidiary of another corporation and in
which the stockholders of the Company, immediately prior to the transaction, will
beneficially own, immediately after the transaction, shares entitling such
stockholders to more than 50% of all votes to which all stockholders of the parent
corporation would be entitled in the election of directors; or
(ii) The consummation of (A) a merger or consolidation of the Company with
another corporation where the stockholders of the Company, immediately prior to the
merger or consolidation, will not beneficially own in substantially the same
proportion as ownership immediately prior to the merger or consolidation,
immediately after the merger or consolidation, shares entitling such stockholders to
more than 50% of all votes to which all stockholders of the surviving corporation
would be entitled in the election of directors, or where the members of the Board,
immediately prior to the merger or consolidation, would not, immediately after the
merger or consolidation, constitute a majority of the board of directors of the
surviving corporation, (B) a sale or other disposition of all or substantially all
of the assets of the Company, or (C) a liquidation or dissolution of the Company.
(iii) A change in the composition of the Board over a period of twelve (12)
consecutive months or less such that a majority of the Board members
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ceases, by reason of one or more contested elections for Board membership, to
be comprised of individuals who either (A) have been Board members continuously
since the beginning of such period or (B) have been elected or nominated for
election as Board members during such period by at least a majority of the Board
members described in clause (A) who were still in office at the time the Board
approved such election or nomination.
(d) Code shall mean the Internal Revenue Code of 1986, as amended and the regulations
promulgated thereunder.
(e) Common Stock shall mean the common stock of the Company.
(f) Company Affiliate shall mean any parent or subsidiary corporation of the Company (as
determined in accordance with Code section 424), whether now existing or subsequently established.
(g) Company shall mean NuPathe Inc., a Delaware corporation, and any corporate successor to
all or substantially all of the assets or voting stock of NuPathe Inc. that shall adopt the Plan.
(h) Cash Compensation shall mean (i) the regular base salary paid to a Participant by one or
more Participating Employers during the Participants period of participation in one or more
Offering Periods under the Plan plus (ii) all overtime payments, bonuses and commissions received
during such period. Such Cash Compensation shall be calculated before deduction of (A) any income
or employment tax withholdings or (B) any contributions made by the Participant to any Code section
401(k) salary deferral plan, any Code section 125 cafeteria benefit program or any Code section
132(f)(4) transportation fringe benefit program now or hereafter established by the Company or any
Company Affiliate. However, Cash Compensation shall not include any contributions made by the
Company or any Company Affiliate on the Participants behalf to any employee benefit or welfare
plan now or hereafter established (other than Code section 401(k), Code section 125, or Code
section 132(f)(4) contributions deducted from such Cash Compensation).
(i) Effective Date shall mean the date at which the registration statement for the initial public
offering of the Companys Common Stock is declared effective by the Securities and Exchange Commission and
the Common Stock is priced for the initial public offering of such Common Stock. Any Company
Affiliate that becomes a Participating Employer after such Effective Date shall designate an
effective date with respect to its employees.
(j) Eligible Employee shall mean any person who is employed by a Participating Employer on a
basis under which he or she is regularly expected to render more than 20 hours of service per week
and for more than five months per calendar year, for earnings considered wages under Code section
3401(a).
(k) Exchange Act shall mean the Securities Exchange Act of 1934, as amended.
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(l) Fair Market Value per share of Common Stock on any relevant date shall be determined in
accordance with the following provisions:
(i) If the Common Stock is at the time traded on a national securities
exchange, then the Fair Market Value shall be the closing selling price per share of
Common Stock during regular trading hours on the date in question, on the stock
exchange determined by the Plan Administrator to be the primary market for the
Common Stock, as such price is officially quoted in the composite tape of
transactions on such exchange and published in The Wall Street Journal. If there is
no closing selling price for the Common Stock on the date in question, then the Fair
Market Value shall be the closing selling price during regular trading hours on the
last preceding date for which such quotation exists.
(ii) If the initial Offering Period begins at the Effective Date, for purposes
of such Offering Period, the Fair Market Value shall be deemed to be equal to the
price per share at which the Common Stock is sold in the initial public offering
pursuant to the Underwriting Agreement.
(m) Offering Period shall mean the period during which shares of Common Stock shall be
offered for purchase under the Plan as described in Section 5.
(n) Participant shall mean any Eligible Employee of a Participating Employer who is actively
participating in the Plan.
(o) Participating Employer shall mean the Company and such Company Affiliates as may be
authorized from time to time by the Board to extend the benefits of the Plan to their Eligible
Employees. The Participating Employers in the Plan are listed in the attached Schedule A.
(p) Plan shall mean the NuPathe Inc. 2010 Employee Stock Purchase Plan, as set forth in this
document, and as amended from time to time.
(q) Plan Administrator shall mean the Compensation Committee of the Board.
(r) Purchase Date shall mean the last business day of each Purchase Interval. The initial
Purchase Date shall be such date as the Plan Administrator determines.
(s) Purchase Interval shall mean each successive six-month period (or other period
designated by the Plan Administrator) within a particular Offering Period, at the end of which
purchased shares of Common Stock shall be purchased on behalf of each Participant.
(t) Underwriting Agreement shall mean the agreement between the Company and the underwriters
managing the initial public offering of the Common Stock.
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3. ADMINISTRATION OF THE PLAN
The Plan Administrator shall have full discretionary authority to interpret and construe any
provision of the Plan and to adopt such rules and regulations for administering the Plan as it may
deem necessary in order to comply with the requirements of Code section 423. Decisions of the Plan
Administrator shall be final and binding on all parties having an interest in the Plan. As a
condition of participating in the Plan, all Participants must acknowledge, in writing or by
completing the enrollment forms to participate in the Plan, that all decisions and determinations
of the Plan Administrator shall be final and binding on the Participant, his or her beneficiaries
and any other person having or claiming an interest under the Plan on behalf of the Participant.
The Plan Administrator may delegate its ministerial duties to one or more subcommittees or to a
third party administrator, as it deems appropriate.
4. STOCK SUBJECT TO PLAN
(a) Number of Shares. Subject to adjustment as described below, the aggregate number of
shares of Common Stock that may be issued or transferred under the Plan is the sum of:
(i) 124,767 shares, plus
(ii) as of the first trading day in January each year during the term of the
Plan as described in Section 10(b), beginning January, 2011, there shall be
automatically added to the number of authorized shares under the Plan an additional
positive number equal to the lesser of 1% of the shares of Common Stock
outstanding on the last trading day of the immediately preceding December, or 62,383 shares, whichever is less.
The stock purchasable under the Plan shall be shares of authorized but unissued or
reacquired Common Stock, including shares of Common Stock purchased on the open market.
(b) Adjustment. If there is any change in the number or kind of shares of Common Stock
outstanding by reason of any stock split or reverse stock split, stock dividend, spinoff,
recapitalization, combination of shares, exchange of shares or other change affecting the
outstanding Common Stock as a class without the Companys receipt of consideration, the Plan
Administrator shall make appropriate adjustments to (i) the maximum number and class of securities
issuable under the Plan, (ii) the maximum number and class of securities purchasable per
Participant on any Purchase Date, (iii) the maximum number and class of securities purchasable in
total by all Participants on any Purchase Date, and (iv) the number and class of securities and the
price per share in effect under each outstanding purchase right, in order to prevent the dilution
or enlargement of benefits thereunder. In addition, the Plan Administrator shall have discretion
to make the foregoing equitable adjustments in any circumstances in which an adjustment is not
mandated by this subsection (b) or applicable law. Any adjustments made by the Plan Administrator
shall be consistent with section 423 of the Code and shall be final, binding and conclusive.
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5. OFFERING PERIODS
(a) Limitations. Shares of Common Stock shall be offered for purchase under the Plan through
a series of overlapping Offering Periods until such time as (i) the maximum number of shares of
Common Stock available for issuance under the Plan shall have been purchased or (ii) the Plan shall
have been sooner terminated.
(b) Duration of Offering Period. Each Offering Period shall be of such duration (not to
exceed 27 months) as shall be determined by the Plan Administrator prior to the beginning of such
Offering Period. Unless the Plan Administrator determines otherwise before the beginning of the
Offering Period, Offering Periods shall commence at six-month intervals on each January 1 and July
1 (or the next business day, if such date is not a business day) over the term of the Plan, and
each Offering Period shall last for 24 months, ending on December 31 or June 30, as the case may be
(or the next business day, if such date is not a business day). Accordingly, two separate Offering
Periods shall commence in each calendar year during which the Plan remains in existence. However,
the initial Offering Period shall commence at the Effective Date or such other date as the Plan
Administrator determines, in its sole discretion, and terminate on December 31, 2011 or such other
date as the Plan Administrator determines, in its sole discretion.
(c) Purchase Intervals. Each Offering Period shall consist of a series of one or more
successive Purchase Intervals. Unless the Plan Administrator determines otherwise, Purchase
Intervals shall run from January 1 to June 30 and from July 1 to December 31 (or the next business
day, if the designated date is not a business day). However, the first Purchase Interval in effect
under the initial Offering Period shall commence at the Effective Date or such other date as the
Plan Administrator determines, in its sole discretion, and terminate on December 31, 2010 or such
other date as the Plan Administrator determines, in its sole discretion.
(d) Plan Administrator Discretion. Notwithstanding the foregoing, the Plan Administrator may
establish shorter Offering Periods or different (shorter or longer) Purchase Intervals, before the
beginning of the applicable Offering Period, as the Plan Administrator deems appropriate.
(e) Transfer from One Offering Period to Another. If the Fair Market Value per share of
Common Stock on any Purchase Date within a particular Offering Period is less than the Fair Market
Value per share of Common Stock on the start date of that Offering Period, then immediately after
the purchase of shares of Common Stock on the Purchase Date, the Eligible Employees participating
in such Offering Period shall be transferred from that Offering Period and automatically enrolled
in the next Offering Period commencing after such Purchase Date.
6. ELIGIBILITY
(a) Commencement of Participation. Each individual who is an Eligible Employee on the start
date of any Offering Period under the Plan may enter that Offering Period on such start date.
However, an Eligible Employee may participate in only one Offering Period
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at a time. If the initial Offering Period commences at the Effective Date, each individual
who is an Eligible Employee at that time shall automatically be enrolled as a Participant with a
contribution rate equal to 5% of the Eligible Employees Cash Compensation.
(b) Limitation on Participation. Under no circumstances shall purchase rights be granted
under the Plan to any Eligible Employee if such individual would, immediately after the grant, own
(within the meaning of section 424(d) of the Code) or hold outstanding options or other rights to
purchase, stock possessing 5% or more of the total combined voting power or value of all classes of
stock of the Company or any Company Affiliate.
(c) Enrollment Forms. Except as otherwise provided in Section 6(a) above, in order to
participate in the Plan for a particular Offering Period, an Eligible Employee must complete an
enrollment form prescribed by the Plan Administrator (including a stock purchase agreement and a
payroll deduction authorization) and file such forms with the Plan Administrator (or its designate)
at such time on or before the beginning of that Offering Period, as determined by the Plan
Administrator.
7. PAYROLL DEDUCTIONS
(a) Elections. The payroll deduction authorized by the Participant for purposes of acquiring
shares of Common Stock during an Offering Period may be any multiple of 1% of the Cash
Compensation paid to the Participant during each Purchase Interval within that Offering Period, up
to a maximum of 10% of Cash Compensation. The deduction rate so authorized shall continue in
effect throughout the Offering Period, except to the extent such rate is changed in accordance with
the following guidelines:
(i) The Participant may, at any time during the Offering Period, reduce his or
her rate of payroll deduction (or, to the extent applicable, the percentage of Cash
Compensation to serve as his or her lump sum contribution for the initial Purchase
Interval of the first Offering Period, as described in Section 7(c)) to become
effective as soon as possible after filing the appropriate form with the Plan
Administrator. The Participant may not, however, effect more than one such
reduction per Purchase Interval.
(ii) Prior to the commencement of any new Purchase Interval within the Offering
Period, a Participant may increase the rate of his or her payroll deduction by
filing the appropriate form with the Plan Administrator. The new rate (which may
not exceed the 10% of Cash Compensation maximum) shall become effective on the
start date of the first Purchase Interval following the filing of such form.
(b) Commencement. Payroll deductions shall begin on the first pay day as of which
commencement is administratively feasible following the beginning of the Offering Period and shall
(unless sooner terminated by the Participant) continue through the pay day ending with or
immediately prior to the last day of that Offering Period. The amounts so collected shall be
credited to a book account established on the Companys records for the
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Participant, but no interest shall be paid on the balance from time to time outstanding in
such account. The amounts collected from the Participant shall not be required to be held in any
segregated account or trust fund and may be commingled with the general assets of the Company and
used for general corporate purposes.
(c) Special Rule for Initial Purchase Interval. This Section 7(c) shall apply if the initial
Offering Period commences at the Effective Date. For the initial Purchase Interval of the first
Offering Period under the Plan, no payroll deductions shall be required of the Participant until
such time as the Participant affirmatively elects to commence such payroll deductions following his
or her receipt of the 1933 Act prospectus for the Plan. In the absence of such payroll deductions,
the Participant will be required to contribute the applicable percentage of his or her Cash
Compensation to the Plan in a lump sum payment immediately prior to the close of the initial
Purchase Interval, should the Participant elect to have shares of Common Stock purchased on his or
her behalf on the Purchase Date for that initial Purchase Interval.
(d) Cessation of Payroll Deductions. Payroll deductions shall automatically cease upon the
termination of the Participants purchase right in accordance with the Plan.
(e) No Requirement to Purchase. The Participants acquisition of Common Stock under the Plan
on any Purchase Date shall neither limit nor require the Participants acquisition of Common Stock
on any subsequent Purchase Date, whether within the same or a different Offering Period.
8. PURCHASE RIGHTS
(a) Grant of Purchase Rights. A Participant shall be granted a separate purchase right for
each Offering Period in which he or she is enrolled. The purchase right shall be granted on the
first day of the Offering Period and shall provide the Participant with the right to purchase
shares of Common Stock, in a series of successive installments during that Offering Period, upon
the terms set forth below. The Participant shall execute a stock purchase agreement embodying such
terms and such other provisions (not inconsistent with the Plan) as the Plan Administrator may deem
advisable.
(b) Exercise of the Purchase Right. Each purchase right shall be automatically exercised in
installments on each successive Purchase Date within the Offering Period, and shares of Common
Stock shall accordingly be purchased on behalf of each Participant on each such Purchase Date. The
purchase shall be effected by applying the Participants payroll deductions (or, to the extent
applicable, his or her lump sum contribution) for the Purchase Interval ending on the Purchase Date
to the purchase of whole shares of Common Stock at the purchase price in effect for the Participant
for that Purchase Date.
(c) Purchase Price. Unless the Plan Administrator determines otherwise prior to the beginning
of the Offering Period, the purchase price per share at which Common Stock will be purchased on the
Participants behalf on each Purchase Date within the Offering Period in which he or she is
enrolled shall be equal to 85% of the lower of (i) the Fair Market Value per
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share of Common Stock on the first day of that Offering Period or (ii) the Fair Market Value
per share of Common Stock on the Purchase Date.
(d) Number of Purchasable Shares. The number of shares of Common Stock purchasable by a
Participant on each Purchase Date during the particular Offering Period in which he or she is
enrolled shall be the number of whole shares obtained by dividing the amount collected from the
Participant through payroll deductions during the Purchase Interval ending with that Purchase Date
(or, to the extent applicable, his or her lump sum contribution for that Purchase Interval) by the
purchase price in effect for the Participant for that Purchase Date. However, the maximum number
of shares of Common Stock that may be purchased by a Participant on any one Purchase Date shall not
exceed 4,990 shares, subject to adjustment as described in Section 4(b). In
addition, the maximum number of shares of Common Stock that may be purchased in total by all
Participants in the Plan on any Purchase Date shall not exceed 49,907 shares,
subject to adjustment as described in Section 4(b). The Plan Administrator shall have the
discretionary authority, exercisable prior to the start of any Offering Period, to increase or
decrease the limitations to be in effect for the number of shares that may be purchased by a
Participant and in total by all Participants on each Purchase Date that occurs during the Offering
Period.
(e) Excess Payroll Deductions. Any payroll deductions that are not applied to the purchase of
shares of Common Stock on any Purchase Date because they are not sufficient to purchase a whole
share of Common Stock shall be held for the purchase of Common Stock on the next Purchase Date.
However, any payroll deductions not applied to the purchase of Common Stock by reason of the
limitation on the maximum number of shares purchasable per Participant or in total by all
Participants on the Purchase Date shall be promptly refunded.
(f) Suspension of Payroll Deductions. In the event that a Participant is, by reason of the
accrual limitations in Article 9, precluded from purchasing additional shares of Common Stock on
one or more Purchase Dates during an Offering Period, then no further payroll deductions shall be
collected from such Participant with respect to those Purchase Dates. The suspension of such
deductions shall not terminate the Participants purchase right for the Offering Period in which he
or she is enrolled, and payroll deductions shall automatically resume on behalf of such Participant
when he or she is again able to purchase shares during that Offering Period in compliance with the
accrual limitations of Article 9.
(g) Withdrawal from Offering Period. The following provisions shall govern the Participants
withdrawal from an Offering Period:
(i) A Participant may withdraw from the Offering Period in which he or she is
enrolled at any time prior to the next scheduled Purchase Date (or by such other
date as the Plan Administrator determines) by filing the appropriate form with the
Plan Administrator (or its designee) within 3 days prior to the next scheduled
Purchase Date (or such other date as the Plan Administrator determines), and no
further payroll deductions shall be collected from the Participant with respect to
that Offering Period. Any payroll deductions collected during the Purchase Interval
in which such withdrawal occurs shall, at the
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Participants election, be immediately refunded or held for the purchase of
shares on the next Purchase Date. If no such election is made at the time of such
withdrawal, then the payroll deductions collected from the Participant during the
Purchase Interval in which such withdrawal occurs shall be refunded as soon as
administratively possible.
(ii) The Participants withdrawal from an Offering Period shall be irrevocable,
and the Participant may not subsequently rejoin that Offering Period at a later
date. In order to resume participation in any subsequent Offering Period, the
Participant must re-enroll in the Plan (by making a timely filing of the prescribed
enrollment forms) on or before the beginning of that Offering Period.
(h) Termination of Purchase Right. The following provisions shall govern the termination of
outstanding purchase rights:
(i) If a Participant ceases to be an Eligible Employee for any reason
(including death, disability or change in status) while his or her purchase right
remains outstanding, the Participants purchase right shall immediately terminate,
and all of the Participants payroll deductions for the Purchase Interval in which
the purchase right so terminates shall be immediately refunded to the Participant.
(ii) If a Participant ceases to remain in active service by reason of an
approved unpaid leave of absence, then the Participant shall have the right,
exercisable up until the last business day of the Purchase Interval in which such
leave commences, to (A) withdraw all the payroll deductions collected to date on his
or her behalf for that Purchase Interval or (B) have such funds held for the
purchase of shares on his or her behalf on the next scheduled Purchase Date. In no
event, however, shall any further payroll deductions be collected on the
Participants behalf during such leave. Upon the Participants return to active
service (x) within three (3) months following the commencement of such leave or (y)
prior to the expiration of any longer period for which such Participant has a right
to reemployment with the Corporation provided by statute or contract, his or her
payroll deductions under the Plan shall automatically resume at the rate in effect
at the time the leave began, unless the Participant withdraws from the Plan prior to
his or her return. An individual who returns to active employment following a leave
of absence that exceeds in duration the applicable (x) or (y) time period will be
treated as a new Eligible Employee for purposes of subsequent participation in the
Plan and must accordingly re-enroll in the Plan (by making a timely filing of the
prescribed enrollment forms) on or before his or her scheduled start date into the
applicable Offering Period.
(i) Change of Control. Unless the Plan Administrator determines otherwise, immediately prior
to the effective date of any Change of Control, each outstanding purchase right shall automatically
be exercised by applying the payroll deductions of each Participant for the Purchase Interval in
which the Change of Control occurs to the purchase of whole shares of
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Common Stock at a purchase price per share equal to (unless the Plan Administrator determines
otherwise prior to the beginning of the particular Offering Period) 85% of the lower of (i) the
Fair Market Value per share of Common Stock on the first day of the Offering Period in which such
Participant is enrolled at the time of the Change of Control or (ii) the Fair Market Value per
share of Common Stock immediately prior to the effective date of the Change of Control. The
applicable limitation on the number of shares of Common Stock purchasable per Participant shall
continue to apply to any such purchase, but not the limitation applicable to the maximum number of
shares of Common Stock purchasable in total by all Participants on any one Purchase Date. The
Company shall use its best efforts to provide at least ten days prior written notice of the
occurrence of any Change of Control, and Participants shall, following the receipt of such notice,
have the right to terminate their outstanding purchase rights prior to the effective date of the
Change of Control.
(j) Proration of Purchase Rights. If the total number of shares of Common Stock to be
purchased pursuant to outstanding purchase rights on any particular date exceeds the number of
shares then available for issuance under the Plan, the Plan Administrator shall make a pro-rata
allocation of the available shares on a uniform and nondiscriminatory basis, and the payroll
deductions of each Participant, to the extent in excess of the aggregate purchase price payable for
the Common Stock pro-rated to such Participant, shall be refunded.
(k) Assignability. A purchase right shall be exercisable only by the Participant and shall
not be assignable or transferable by the Participant.
(l) Stockholder Rights. A Participant shall have no stockholder rights with respect to the
shares subject to his or her outstanding purchase right until the shares are purchased on the
Participants behalf in accordance with the provisions of the Plan and the Participant has become a
holder of record of the purchased shares.
(m) ESPP Brokerage Account. The shares of Common Stock purchased on behalf of each
Participant shall be deposited directly into a brokerage account which the Company shall establish
for the Participant at a Company-designated brokerage firm. The account will be known as the ESPP
Brokerage Account. The following policies and procedures shall be in place for any shares
deposited into the Participants ESPP Brokerage Account until those shares have been held for the
requisite period necessary to avoid a disqualifying disposition under U.S. federal tax laws:
(i) Shares must be held in the ESPP Brokerage Account until the later of the
following two periods: (x) the end of the two (2)-year period measured from the
start date of the Offering Period in which the shares were purchased and (y) the end
of the one (1)-year period measured from the actual purchase date of those shares.
(ii) The deposited shares shall not be transferable (either electronically or
in certificate form) from the ESPP Brokerage Account until the required holding
period for those shares is satisfied. Such limitation shall apply both to transfers
to different accounts with the same ESPP broker and to transfers
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to other brokerage firms. Any shares held for the required holding period may
be transferred (either electronically or in certificate form) to other accounts or
to other brokerage firms.
(iii) The foregoing procedures shall not in any way limit when the Participant
may sell his or her shares. Those procedures are designed solely to assure that any
sale of shares prior to the satisfaction of the required holding period is made
through the ESPP Brokerage Account. In addition, the Participant may request a
stock certificate or share transfer from his or her ESPP Brokerage Account prior to
the satisfaction of the required holding period should the Participant wish to make
a gift of any shares held in that account. However, shares may not be transferred
(either electronically or in certificate form) from the ESPP Brokerage Account for
use as collateral for a loan, unless those shares have been held for the required
holding period.
(iv) The foregoing procedures shall apply to all shares purchased by the
Participant under the Plan, whether or not the Participant continues in employee
status.
9. ACCRUAL LIMITATIONS
(a) Dollar Limitation. No Participant shall be entitled to accrue rights to acquire Common
Stock pursuant to any purchase right outstanding under this Plan if and to the extent that such
accrual, when aggregated with (i) rights to purchase Common Stock accrued under any other purchase
right granted under this Plan and (ii) similar rights accrued under other employee stock purchase
plans (within the meaning of Code section 423) of the Company or any Company Affiliate, would
otherwise permit the Participant to purchase more than $25,000 worth of stock of the Company or any
Company Affiliate (determined on the basis of the Fair Market Value per share on the date or dates
such rights are granted) for each calendar year in which such rights are at any time outstanding.
(b) Application of Dollar Limitation. For purposes of applying such accrual limitations to
the purchase rights granted under the Plan, the following provisions shall apply:
(i) The right to acquire Common Stock under each outstanding purchase right
shall accrue in a series of installments on each successive Purchase Date during the
Offering Period in which such right remains outstanding.
(ii) No right to acquire Common Stock under any outstanding purchase right
shall accrue to the extent the Participant has already accrued in the same calendar
year the right to acquire Common Stock under one or more other purchase rights at a
rate equal to $25,000 worth of Common Stock (determined on the basis of the Fair
Market Value per share on the date or dates of grant) for each calendar year in
which such rights were at any time outstanding.
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(c) Refund. If by reason of such accrual limitations, any purchase right of a Participant
does not accrue for a particular Purchase Interval, then the payroll deductions that the
Participant made during that Purchase Interval with respect to such purchase right shall be
promptly refunded.
(d) Conflict. In the event there is any conflict between the provisions of this Article and
one or more provisions of the Plan or any instrument issued thereunder, the provisions of this
Article shall be controlling.
10. EFFECTIVE DATE AND TERM OF THE PLAN
(a) Effective Date. The Plan was adopted by the Board on June
27, 2010, and shall become
effective at the Effective Date, provided that no purchase rights granted under the Plan shall be
exercised, and no shares of Common Stock shall be purchased hereunder, until (i) the Plan shall
have been approved by the stockholders of the Company and (ii) the Company shall have complied with
all applicable requirements of the 1933 Act (including the registration of the shares of Common
Stock issuable under the Plan on a Form S-8 registration statement filed with the Securities and
Exchange Commission), all applicable listing requirements of any stock exchange on which the Common
Stock is listed for trading and all other applicable requirements established by law or regulation
have been met. In the event such stockholder approval is not obtained, or such compliance is not
effected, within 12 months after the date on which the Plan is adopted by the Board, the Plan shall
terminate and have no further force or effect, and all sums collected from Participants during the
initial Offering Period (if such Offering Period commences at the Effective Date) hereunder shall
be refunded.
(b) Term. Unless sooner terminated by the Board, the Plan shall terminate upon the earliest
of (i) June 27, 2020, (ii) the date on which all shares available for issuance under the Plan
shall have been sold pursuant to purchase rights exercised under the Plan or (iii) the date on
which all purchase rights are exercised in connection with a Change of Control. No further
purchase rights shall be granted or exercised, and no further payroll deductions shall be
collected, under the Plan following such termination.
11. AMENDMENT AND TERMINATION
(a) Amendment; Termination. The Board may alter, amend, suspend or terminate the Plan at any
time, to become effective immediately following the close of any Purchase Interval. In the event of
Plan termination, any outstanding payroll deductions that are not used to purchase Common Stock on
a Purchase Date pursuant to the Plan shall be refunded to such Participants as soon as
administratively possible.
(b) Stockholder Approval. In no event may the Board effect any of the following amendments or
revisions to the Plan without the approval of the Companys stockholders: (i) increase the number
of shares of Common Stock issuable under the Plan, except for permissible adjustments in the event
of certain changes in the Companys capitalization, (ii) alter the purchase price formula so as to
reduce the purchase price payable for the shares of Common
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Stock purchasable under the Plan or (iii) modify the eligibility requirements for
participation in the Plan.
12. GENERAL PROVISIONS
(a) Death; Beneficiary. In the event of the death of a Participant, the Company shall deliver
any shares of Common Stock, cash or both shares of Common Stock and cash held for the benefit of
Participant to the executor or administrator of the estate of the Participant.
(b) Expenses. All costs and expenses incurred in the administration of the Plan shall be paid
by the Company; however, each Plan Participant shall bear all costs and expenses incurred by such
individual in the sale or other disposition of any shares purchased under the Plan.
(c) No Right of Employment. Nothing in the Plan shall confer upon the Participant any right
to continue in the employ of the Company or any Company Affiliate or interfere with or otherwise
restrict in any way the rights of the Company (or any Company Affiliate) or of the Participant,
which rights are hereby expressly reserved by each, to terminate such persons employment at any
time for any reason, with or without cause.
(d) Withholding. If and to the extent that any stock purchases or sales under this Plan are
subject to federal, state or local taxes, the Company is authorized to withhold all applicable
taxes from shares issuable under the Plan or from other compensation payable to Participant.
(e) Transferability. Neither payroll deductions credited to a Participant nor any rights with
regard to the exercise a purchase right under the Plan may be assigned, transferred, pledged or
otherwise disposed of in any way (other than by will or the laws of descent and distribution) by
the Participant. Any such attempt at assignment, transfer, pledge or other disposition shall be
without effect, except that the Company may treat such act as an election to withdraw funds from a
Purchase Period in accordance with Section 8(g).
(f) Voting. The Participant shall have no voting rights in shares that he or she may purchase
pursuant to Section 8(d) until such shares of Common Stock have actually be purchased by the
Participant.
(g) Use of Funds. All payroll deductions received or held by the Company under the Plan may
be used by the Company for any corporate purpose, and the Company shall not be obligated to
segregate such payroll deductions.
(h) Governing Law. The validity, construction, interpretation and effect of the Plan shall be
governed and construed by and determined in accordance with the laws of the State of Delaware,
without giving effect to the conflict of laws provisions thereof.
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Schedule A
Participating Employers
NuPathe Inc.
A-1