Common use of Employee Stock Purchase Plan Clause in Contracts

Employee Stock Purchase Plan. As soon as reasonably practicable following the date of this Agreement and in any event prior to the Effective Time and not later than the day immediately prior to the date on which the first Offering Period (as defined in the ESPP) that is regularly scheduled to commence under the ESPP after the date of this Agreement, the Company shall take all necessary actions, including obtaining any necessary determinations or resolutions of the Company Board (or a committee thereof), if appropriate, and amending the terms of the ESPP as may be necessary or required under the ESPP and applicable Legal Requirements, to (i) provide that each individual participating in the Offering Period (as defined in the ESPP) in progress on the date of this Agreement (the “Final Offering”) shall not be permitted to increase the percentage of his or her earnings (as defined in the Final Offering documents) pursuant to the ESPP from the individual’s applicable elected percentage of earnings that was in effect when that Offering Period commenced, or make any non-payroll contributions to the ESPP on or following the date of this Agreement; (ii) ensure that, except for the Final Offering, no Offering Period under the ESPP will be authorized or commenced on or after the date of this Agreement; (iii) if the Closing will occur prior to the end of the Final Offering, provide each individual participating in the Final Offering with notice of the transactions contemplated by this Agreement and the CVR Agreement at least ten days prior to the New Exercise Date; (iv) cause the Final Offering to end no later than the date that is immediately prior to the Closing Date (the “New Exercise Date”); (v) make any pro rata adjustments that may be necessary to reflect the shortened Offering Period (as defined in the ESPP) of the Final Offering, but otherwise treat such shortened Offering Period of the Final Offering as a fully effective and completed Offering Period for all purposes pursuant to the ESPP; (vi) cause each ESPP participant’s accumulated contributions under the ESPP to be used to purchase shares of Company Common Stock in accordance with the ESPP as of the end of the Final Offering; (vii) provide that the applicable purchase price for Company Common Stock will not be decreased below the levels set forth in the ESPP as of the date of this Agreement; and (viii) ensure that no further rights are granted under the ESPP after the Effective Time. Immediately prior to and effective as of the Effective Time (but subject to the consummation of the Transactions), the Company shall terminate the ESPP.

Employee Stock Purchase Plan. As soon Prior to the Effective Time, the Company Board of Directors shall adopt such resolutions or take such other actions as reasonably practicable following may be required so that (i) participation in the Hibbett, Inc. 2015 Employee Stock Purchase Plan (the “ESPP”) shall be limited to those employees of the Company and its Subsidiaries who are currently participating in the ESPP on the date of this Agreement and in any event prior to Agreement, if any, (ii) the Effective Time and not later than the day immediately prior to the date on which the first Offering Period “Offering” (as defined in the ESPP) that is regularly scheduled to commence under the ESPP after in effect as of the date of this Agreement, the Company shall take all necessary actions, including obtaining any necessary determinations or resolutions of the Company Board (or a committee thereof), if appropriate, and amending the terms of the ESPP as may be necessary or required under the ESPP and applicable Legal Requirements, to (i) provide that each individual participating in the Offering Period (as defined in the ESPP) in progress on the date of this Agreement hereof (the “Final Offering”) shall not be permitted to increase the percentage of his or her earnings (as defined in the Final final Offering documents) pursuant to the ESPP from the individual’s applicable elected percentage of earnings that was in effect when that Offering Period commenced, or make any non-payroll contributions to the ESPP on or following the date of this Agreement; (ii) ensure that, except for the Final Offering, no Offering Period under the ESPP will be authorized or commenced and no Offering shall commence on or after the date of this Agreement; , (iii) if all further payroll deductions under the Closing will occur prior to ESPP shall cease effective as of the end conclusion of the Final Offering, provide each individual participating in the Final Offering with notice of the transactions contemplated by this Agreement and the CVR Agreement at least ten days prior to the New Exercise Date; (iv) cause each purchase right under the Final Offering to end ESPP outstanding as of the date hereof will automatically be exercised no later than the date that is immediately earlier to occur of (A) the Offering Termination Date (as defined in the ESPP) for the Final Offering and (B) the second Business Day prior to the Closing Date (such earlier date, the “New Final Exercise Date”); (v) make any pro rata adjustments that may be necessary to reflect the shortened Offering Period (as defined in the ESPP) of the Final Offering, but otherwise treat such shortened Offering Period of the Final Offering as a fully effective and completed Offering Period for all purposes pursuant to the ESPP; (vi) cause each ESPP participant’s accumulated contributions under the ESPP to will be used to purchase whole shares of Company Common Stock in accordance with the ESPP as terms of the end of the Final Offering; (vii) provide that the applicable purchase price for Company Common Stock will not be decreased below the levels set forth in the ESPP as of the date Final Exercise Date, which shares of this AgreementCompany Common Stock shall be treated in the manner described in Section 2.1(a) at the Effective Time; and (viiivi) ensure that no further the ESPP will terminate effective as of immediately prior to (and subject to the occurrence of) the Effective Time, but subsequent to the exercise of purchase rights are granted on the Final Exercise Date (in accordance with the terms of the ESPP). At the Effective Time, any funds credited as of such date under the ESPP after that are not used to purchase shares of Company Common Stock on the Effective Time. Immediately prior to and effective as of Final Exercise Date within the Effective Time (but subject associated accumulated payroll withholding account for each participant under the ESPP will be refunded to the consummation applicable participant in accordance with the terms of the Transactions), the Company shall terminate the ESPP.

Employee Stock Purchase Plan. As soon If the Closing shall occur prior to the end of the offering period in existence under the Company’s Employee Stock Purchase Plan (the “ESPP”) as reasonably practicable following of the date of this Agreement and (the “Current Offering Period”), the Company shall take all actions necessary to (i) terminate the ESPP in any event its entirety as of immediately prior to the Effective Time and not later than (ii) cause a new exercise date to be set under the ESPP, which date shall be the business day immediately prior to the date on which anticipated Closing Date. The Company has not, following the first start of the Current Offering Period (as defined in Period, allowed any participant to increase his or her payroll deduction election under the ESPP) that is regularly scheduled to commence under the ESPP after , and, following the date of this Agreement, the Company shall take all necessary actions, including obtaining not permit any necessary determinations or resolutions of the Company Board (or a committee thereof), if appropriate, and amending the terms of participant in the ESPP as may be necessary or required under the ESPP and applicable Legal Requirements, to (i) provide that each individual participating in the Offering Period (as defined in the ESPP) in progress on the date of this Agreement (the “Final Offering”) shall not be permitted to increase the percentage amount of his or her earnings (as defined in the Final Offering documents) pursuant to the ESPP from the individualsuch participant’s applicable elected percentage of earnings that was in effect when that Offering Period commenced, or make any non-current payroll contributions to the ESPP on or following the date of this Agreement; (ii) ensure that, except for the Final Offering, no Offering Period under the ESPP will be authorized or commenced on or after the date of this Agreement; (iii) if deduction election. If the Closing will does not occur prior to the end of the Final Offering, provide each individual participating in the Final Current Offering with notice of the transactions contemplated by this Agreement Period and the CVR Agreement at least ten days Company permits a new offering period to begin under the ESPP, (x) the Company shall take all actions necessary to terminate the ESPP in its entirety prior to the New Exercise Date; (iv) Effective Time and shall cause the Final Offering to end no later than the date that is immediately prior entire amount credited to the Closing Date (the “New Exercise Date”); (v) make any pro rata adjustments that may be necessary to reflect the shortened Offering Period (as defined in the ESPP) stock purchase account of the Final Offering, but otherwise treat such shortened Offering Period of the Final Offering as a fully effective and completed Offering Period for all purposes pursuant to the ESPP; (vi) cause each ESPP participant’s accumulated contributions under the ESPP to be used to purchase shares of Company Common Stock in accordance with the ESPP as of the end of the Final Offering; (vii) provide that the applicable purchase price for Company Common Stock will not be decreased below the levels set forth in the ESPP participant thereunder as of the date of such termination to be distributed to the participant in accordance with Section 7.2 of the ESPP, such that no participant in the ESPP shall be entitled to purchase any Shares in respect of such offering period under the ESPP, and (y) the Company shall, within a reasonable period of time prior to the commencement of such new offering period, notify all actual or potential participants in the ESPP of the impact the Closing will have with respect to participation in the ESPP for such offering period (including the fact that the Closing will have the impact described in clause (x) above). Following the date of this Agreement; and (viii) ensure that no further rights are granted under the ESPP after the Effective Time. Immediately prior to and effective as of the Effective Time (but subject to the consummation of the Transactions), the Company shall terminate provide Parent an opportunity to review and comment on any written notices, communications or other documents provided to actual or potential participants in the ESPPESPP that relate to the ESPP and their participation therein pursuant to clause (y) of the preceding sentence (excluding informal communications with individual participants) and shall consider in good faith any comments reasonably proposed by Parent.

Employee Stock Purchase Plan. As soon as reasonably practicable following Prior to the Offer Closing, the Company shall take all necessary and appropriate action such that (a) no new purchase or offering period under the Company’s 2015 Employee Stock Purchase Plan (the “ESPP”) commences after the date hereof until termination of this Agreement and in any event or the Offer Closing such that if the Offer Closing has not occurred prior to the Effective Time and end of the current offering period the Company shall suspend the ESPP until the Offer Closing, (b) each participant in the offering period currently in effect shall not increase his or her payroll deductions or purchase elections from those in effect immediately prior to the date hereof, (c) if, with respect to an offering period in effect on the date hereof, the Offer Closing occurs prior to any Purchase Date (as defined in the ESPP) for such offering period, then on a date to be determined by the Company in accordance with the terms of the ESPP (but no later than the day immediately prior to the date on which the first Offering Period (as defined in the ESPPOffer Closing) that is regularly scheduled to commence under the ESPP after the date of this Agreement, the Company shall take all necessary actions, including obtaining any necessary determinations or resolutions of the Company Board (or a committee thereof), if appropriate, and amending the terms of the ESPP as may be necessary or required under the ESPP and applicable Legal Requirements, to (i) provide that each individual participating in the Offering Period (as defined in the ESPP) in progress on the date of this Agreement (the “Final OfferingPurchase Date”) shall not be permitted to increase the percentage of his or her earnings (), each purchase right under such offering that is outstanding as defined in the Final Offering documents) pursuant to the ESPP from the individual’s applicable elected percentage of earnings that was in effect when that Offering Period commenced, or make any non-payroll contributions to the ESPP on or following the date of this Agreement; (ii) ensure that, except for the Final Offering, no Offering Period under the ESPP will be authorized or commenced on or after the date of this Agreement; (iii) if the Closing will occur prior to the end of the Final Offering, provide each individual participating in the Final Offering with notice of the transactions contemplated by this Agreement and the CVR Agreement at least ten days prior to the New Exercise Date; (iv) cause the Final Offering to end no later than the date that is immediately prior to the Closing Purchase Date (the “New Exercise Date”); (v) make any pro rata adjustments that may be necessary to reflect the shortened Offering Period (as defined in the ESPP) of the Final Offering, but otherwise treat such shortened Offering Period of the Final Offering as a fully effective and completed Offering Period for all purposes pursuant to the ESPP; (vi) cause each ESPP participant’s accumulated contributions under the ESPP to shall be used to purchase from the Company whole shares of Company Common Stock in accordance with (subject to the ESPP as terms of the end offering and ESPP regarding the maximum number and value of shares purchasable per participant) at the applicable price determined under the terms of the Final Offering; offering and ESPP (vii) provide that subject to the applicable purchase price for Company Common Stock will not be decreased below the levels limitations set forth in clause (b) of this Section 3.6) for the then outstanding purchase or offering period using such date as the final Purchase Date for such purchase or offering period, and any remaining accumulated but unused payroll deductions shall be distributed to the relevant participants without interest as promptly as practicable following the Offer Closing, and (d) the ESPP as of the date of this Agreement; and (viii) ensure that no further rights are granted under the ESPP after the Effective Time. Immediately is terminated at or prior to and effective as of the Effective Time (but subject to the consummation of the Transactions), the Company shall terminate the ESPPOffer Closing.

Employee Stock Purchase Plan. As With respect to the Company's 2015 Employee Stock Purchase Plan (the "ESPP"), as soon as reasonably practicable following the date of this Agreement and in any event prior to the Effective Time and not later than the day immediately prior to the date on which the first Offering Period (as defined in the ESPP) that is regularly scheduled to commence under the ESPP after the date of this Agreement, the Company shall take all necessary actions, including obtaining any necessary determinations Board or resolutions of the Company Board (or a applicable committee thereof), if appropriateas applicable, and amending the terms of the ESPP will adopt resolutions or take other actions as may be necessary or required under the ESPP and applicable Legal Requirements, to (i) provide that each individual participating in the any Offering Period (as defined in the ESPP) in progress on the date of this Agreement (the “Final Offering”) shall will not be permitted to (i) increase the percentage of his or her earnings (as defined in the Final Offering documents) payroll contribution rate pursuant to the ESPP from the individual’s applicable elected percentage of earnings that was rate in effect when that Offering Period commenced, commenced or (ii) make any separate non-payroll contributions to the ESPP on or following the date of this Agreement; (ii) ensure that, except for the Final Offering, no Offering Period under as may be required by applicable Law. No individual who is not participating in the ESPP as of the date of this Agreement will be authorized or commenced on or after allowed to commence participation in the ESPP following the date of this Agreement; (iii) if the Closing will occur prior . Prior to the end of Effective Time, the Final Offering, provide each individual participating in Company will take all action that may be necessary to (A) cause any Offering Period that would otherwise be outstanding at the Final Offering with notice of the transactions contemplated by this Agreement and the CVR Agreement at least Effective Time to be terminated no later than ten (10) days prior to the New Exercise Datedate on which the Effective Time occurs; (iv) cause the Final Offering to end no later than the date that is immediately prior to the Closing Date (the “New Exercise Date”); (vB) make any pro rata adjustments in accordance with the ESPP that may be necessary to reflect the shortened Offering Period (as defined in the ESPP) of the Final OfferingPeriod, but otherwise treat such shortened Offering Period of the Final Offering as a fully effective and completed Offering Period for all purposes pursuant to the ESPP; (viC) cause the exercise of each ESPP participant’s accumulated contributions under outstanding purchase right pursuant to the ESPP prior to be used to purchase shares of Company Common Stock in accordance with the ESPP as of the end of the Final OfferingEffective Time; and (viiD) provide that the applicable purchase price for Company Common Stock will not be decreased below the levels set forth no further Offering Period or Purchase Period (as defined in the ESPP) will commence pursuant to the ESPP as of after the date of this Agreement; and (viii) ensure that no further rights are granted under . On such exercise date, the Company will apply the funds credited as of such date pursuant to the ESPP after within each participant's ESPP account to the Effective Timepurchase of whole Shares in accordance with the terms of the ESPP. Immediately prior to and effective as of the Effective Time (but subject to the consummation of the TransactionsMerger), the Company shall will terminate the ESPP.

Employee Stock Purchase Plan. As soon The Company Board has agreed to take such actions under the Company's Amended and Restated Employee Stock Purchase Plan ("ESPP") as reasonably practicable following the date of this Agreement and may be necessary or desirable in Parent's reasonable judgment to extend any event prior to the Effective Time and not later than the day immediately prior to the date on which the first Offering Period (as defined in the ESPP) that is regularly scheduled to commence under the ESPP after the date of this Agreement, the Company shall take all necessary actions, including obtaining any necessary determinations or resolutions of the Company Board (or a committee thereof), if appropriate, and amending the terms of the ESPP as may be necessary or required under the ESPP and applicable Legal Requirements, to (i) provide that each individual participating in the Offering Period (as defined in the ESPP) in progress pending on the date of this the Merger Agreement (until such time as the “Final Offering”) shall not Merger Agreement may be permitted to increase terminated in accordance with its terms without the percentage of his Offer or her earnings the Merger being consummated (as defined in so extended, the Final "Pending Offering documents) pursuant to Period"). The extension of the ESPP from the individual’s applicable elected percentage of earnings that was in effect when that Offering Period commenced, or make ensures that the Company's employees do not exercise any non-payroll contributions to the ESPP on or following the date of this Agreement; (ii) ensure that, except for the Final Offering, no Offering Period under the ESPP will be authorized or commenced on or after the date of this Agreement; (iii) if the Closing will occur prior to the end of the Final Offering, provide each individual participating in the Final Offering with notice of the transactions contemplated by this Agreement and the CVR Agreement at least ten days prior to the New Exercise Date; (iv) cause the Final Offering to end no later than the date that is immediately prior to the Closing Date (the “New Exercise Date”); (v) make any pro rata adjustments that may be necessary to reflect the shortened Offering Period (as defined in the ESPP) of the Final Offering, but otherwise treat such shortened Offering Period of the Final Offering as a fully effective and completed Offering Period for all purposes pursuant to the ESPP; (vi) cause each ESPP participant’s accumulated contributions under the ESPP to be used option to purchase shares of Company Common Stock in accordance with the ESPP as of the end of the Final Offering; (vii) provide that the applicable purchase price for Company Common Stock will not be decreased below the levels set forth in the ESPP as of the date of this Agreement; and (viii) ensure that no further rights are granted under the ESPP after during the Effective Timeterm of the Merger Agreement. Immediately In addition, prior to Sub's first acceptance of shares of Company Common Stock in the Offer, the Company Board will take such actions as may be necessary or desirable in Parent's reasonable judgment to (i) cancel any Pending Offering Period without any further purchases of shares of Company Common Stock, (ii) refund all amounts contributed during the Pending Offering Period, and (iii) terminate the ESPP effective as no later than the date of Sub's first acceptance of shares of Company Common Stock in the Effective Time (but subject to Offer. The Company Board has also made a determination that the consummation of the TransactionsOffer constitutes a "change-in-control event" within the meaning of the ESPP. STOCKHOLDER APPROVAL. The DGCL requires that the Merger be adopted by the Company Board and, if the "short-form" merger procedure described below is not available, approved by the holders of a majority of the Company's outstanding voting securities. The Company Board unanimously adopted and approved the Offer, the Merger and the Merger Agreement by all members present. As a result, the only additional action that may be necessary to effect the Merger is approval of the Merger Agreement by the Company's stockholders if a "short-form" merger procedure is not available. If required by the DGCL, the Company will call and hold a special meeting of its stockholders as promptly as practicable following the consummation of the Offer for the purposes of considering and voting upon the adoption of the Merger Agreement. At any such meeting, all shares of Company Common Stock then owned by Sub or any other Subsidiary of Parent will be voted in favor of the approval of the Merger Agreement and the Merger. If Sub acquires through the Offer voting power with respect to at least a majority of the Fully Diluted Shares (which would be the case if the Minimum Tender Condition were satisfied and Sub were to accept for payment shares of Company Common Stock tendered pursuant to the Offer), Sub will have sufficient voting power to effect the Merger without the affirmative vote of any other stockholder of the Company. The DGCL also provides for a "short-form" merger procedure if a corporation owns at least 90% of the outstanding shares of each class of voting stock of a corporation. A "short-form" merger may be consummated without prior notice to, or the approval of, the other stockholders. Accordingly, if, as a result of the Offer, Sub or any other Subsidiary of Parent acquires or controls the voting power of at least 90% of the outstanding shares of Company Common Stock, Sub intends to effect the Merger without prior notice to, or any action by, any other stockholder of the Company. CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER. The Merger Agreement provides that the respective obligations of each party to effect the Merger is subject to the satisfaction or waiver of the following conditions: (i) if required, the Company shall terminate have obtained the ESPPCompany Stockholder Approval; (ii) the waiting period under the HSR Act shall have been terminated or shall have expired and any consents, approvals and filings under any foreign antitrust law, the absence of which would prohibit the consummation of Merger, shall have been obtained or made; (iii) no temporary restraining order, preliminary or permanent injunction or other Order or other legal restraint or prohibition preventing or imposing any conditions or limitations on the consummation of any of the Transactions shall be in effect; and (iv) Sub shall have accepted shares of Company Common Stock for payment pursuant to the Offer, provided that this condition shall not be applicable if, in breach of the Merger Agreement or the terms of the Offer, Sub fails to purchase shares of Company Common Stock validly tendered and not withdrawn.

Employee Stock Purchase Plan. As soon as reasonably practicable following The Company’s 2018 Employee Stock Purchase Plan (the date “ESPP”) allows all of this Agreement and in any event prior the Company’s regular full-time employees, including executive officers, to purchase shares of the Effective Time and not later than Company’s common stock at the day immediately prior to lower of: (i) 85% of the date fair market value on which the first day of each Offering Period (as defined in the ESPP); or (ii) that is regularly scheduled to commence under the ESPP after the date of this Agreement, the Company shall take all necessary actions, including obtaining any necessary determinations or resolutions 85% of the Company Board (or a committee thereof), if appropriate, and amending fair market value on the terms of the ESPP as may be necessary or required under the ESPP and applicable Legal Requirements, to (i) provide that each individual participating in the Offering Period Purchase Date (as defined in the ESPP), with the objective of allowing employees to profit when the value of our common stock increases over time. The ESPP’s next scheduled Purchase Date under the current Offering is December 14, 2021. Under the terms of the Merger Agreement, (i) in progress on the date of this Agreement (the “Final Offering”) shall not be permitted to no participant may increase the percentage of his or her earnings (as defined in the Final Offering documents) pursuant to the ESPP payroll deduction election from the individual’s applicable elected percentage of earnings that was in effect when that Offering Period commenced, on the date of the Merger Agreement or make any non-payroll contributions to the ESPP on or following the date of this Agreement; ESPP, (ii) ensure that, except for the Final Offering, no new Offering Period under the ESPP will be authorized or commenced commence on or after the date of this the Merger Agreement; , (iii) if no purchase price for any purchase rights will be decreased below the Closing will occur prior to levels in place under the end ESPP as of the Final Offering, provide each individual participating in the Final Offering with notice date of the transactions contemplated by this Agreement and the CVR Agreement at least ten days prior to the New Exercise Date; Merger Agreement, (iv) cause the Final last day and final Purchase Date of the current Offering to end under the ESPP shall Table of Contents be no later than the date that is immediately prior to the Closing Date (the “New Exercise Date”or December 14, 2021, if earlier); , and (v) make any pro rata adjustments that may be necessary to reflect the shortened Offering Period (as defined in the ESPP) of the Final Offering, but otherwise treat such shortened Offering Period of the Final Offering as a fully effective and completed Offering Period for all purposes pursuant to the ESPP; (vi) cause each ESPP participant’s accumulated contributions under the ESPP to be used to purchase shares of Company Common Stock will terminate in accordance with the ESPP its entirety as of the end Effective Time, contingent upon the occurrence of the Final Offering; (vii) provide that the applicable purchase price for Company Common Stock will not be decreased below the levels set forth in the ESPP as of the date of this Agreement; and (viii) ensure that no further rights are granted under the ESPP after the Effective Time. Immediately The Offer is being made only for Shares, and therefore participants in the ESPP may participate in the Offer only to the extent that the amounts accrued in a participant’s account for the current offering period under the ESPP are used to purchase Shares from the Company pursuant to the terms of the Merger Agreement and the ESPP and such Shares are issued by no later than the date that is immediately prior to and effective as the Closing Date (or December 14, 2021, if earlier). When a participant receives Shares purchased from the Company under the ESPP, the participant must comply with the procedures for tendering Shares described in this Section 3 prior to the expiration of the Effective Time (but subject to the consummation of the Transactions), the Company shall terminate Offer. See Section 11 – “The Merger Agreement; Other Agreements” for additional information regarding the ESPP.

Employee Stock Purchase Plan. As With respect to the Company’s 2015 Employee Stock Purchase Plan (the “ESPP”), as soon as reasonably practicable following the date of this Agreement and in any event prior to the Effective Time and not later than the day immediately prior to the date on which the first Offering Period (as defined in the ESPP) that is regularly scheduled to commence under the ESPP after the date of this Agreement, the Company shall take all necessary actions, including obtaining any necessary determinations Board or resolutions of the Company Board (or a applicable committee thereof), if appropriateas applicable, and amending the terms of the ESPP will adopt resolutions or take other actions as may be necessary or required under the ESPP and applicable Legal Requirements, to (i) provide that each individual participating in the any Offering Period (as defined in the ESPP) in progress on the date of this Agreement (the “Final Offering”) shall will not be permitted to (i) increase the percentage of his or her earnings (as defined in the Final Offering documents) payroll contribution rate pursuant to the ESPP from the individual’s applicable elected percentage of earnings that was rate in effect when that Offering Period commenced, commenced or (ii) make any separate non-payroll contributions to the ESPP on or following the date of this Agreement; (ii) ensure that, except for the Final Offering, no Offering Period under as may be required by applicable Law. No individual who is not participating in the ESPP as of the date of this Agreement will be authorized or commenced on or after allowed to commence participation in the ESPP following the date of this Agreement; (iii) if the Closing will occur prior . Prior to the end of Effective Time, the Final Offering, provide each individual participating in Company will take all action that may be necessary to (A) cause any Offering Period that would otherwise be outstanding at the Final Offering with notice of the transactions contemplated by this Agreement and the CVR Agreement at least Effective Time to be terminated no later than ten (10) days prior to the New Exercise Datedate on which the Effective Time occurs; (iv) cause the Final Offering to end no later than the date that is immediately prior to the Closing Date (the “New Exercise Date”); (vB) make any pro rata adjustments in accordance with the ESPP that may be necessary to reflect the shortened Offering Period (as defined in the ESPP) of the Final OfferingPeriod, but otherwise treat such shortened Offering Period of the Final Offering as a fully Table of Contents effective and completed Offering Period for all purposes pursuant to the ESPP; (viC) cause the exercise of each ESPP participant’s accumulated contributions under outstanding purchase right pursuant to the ESPP prior to be used to purchase shares of Company Common Stock in accordance with the ESPP as of the end of the Final OfferingEffective Time; and (viiD) provide that the applicable purchase price for Company Common Stock will not be decreased below the levels set forth no further Offering Period or Purchase Period (as defined in the ESPP) will commence pursuant to the ESPP as of after the date of this Agreement; and (viii) ensure that no further rights are granted under . On such exercise date, the Company will apply the funds credited as of such date pursuant to the ESPP after within each participant’s ESPP account to the Effective Timepurchase of whole Shares in accordance with the terms of the ESPP. Immediately prior to and effective as of the Effective Time (but subject to the consummation of the TransactionsMerger), the Company shall will terminate the ESPP.

Employee Stock Purchase Plan. As With respect to the Company’s 2007 Employee Stock Purchase Plan (the “ESPP”), as soon as reasonably practicable following the date of this Agreement and in any event prior to the Effective Time and not later than the day immediately prior to the date on which the first Offering Period (as defined in the ESPP) that is regularly scheduled to commence under the ESPP after the date of this Agreement, the Company shall Board will adopt resolutions or take all necessary actions, including obtaining any necessary determinations or resolutions of the Company Board (or a committee thereof), if appropriate, and amending the terms of the ESPP other actions as may be necessary or required under the ESPP and applicable Legal Requirements, to (i) provide that each individual participating in the Offering Period (as defined in the ESPP) in progress on the date of this Agreement (the “Final Offering”) shall will not be permitted to (i) increase the percentage of his or her earnings (as defined in the Final Offering documents) payroll contribution rate pursuant to the ESPP from the individual’s applicable elected percentage of earnings that was rate in effect when that Offering Period commenced, commenced or (ii) make any separate non-payroll contributions to the ESPP on or following the date of this Agreement; (ii) ensure that, except for the Final Offering, no Offering Period under as may be required by applicable law. No individual who is not participating in the ESPP as of the date of this Agreement will be authorized or commenced on or after allowed to commence participation in the ESPP following the date of this Agreement; (iii) if the Closing will occur prior . Prior to the end of Effective Time, the Final Offering, provide each individual participating in Company will take all action that may be necessary to (A) cause any Offering Period that would otherwise be outstanding at the Final Offering with notice of the transactions contemplated by this Agreement and the CVR Agreement at least Effective Time to be terminated no later than ten days prior to the New Exercise Datedate on which the Effective Time occurs; (iv) cause the Final Offering to end no later than the date that is immediately prior to the Closing Date (the “New Exercise Date”); (vB) make any pro rata adjustments that may be necessary to reflect the shortened Offering Period (as defined in the ESPP) of the Final OfferingPeriod, but otherwise treat such shortened Offering Period of the Final Offering as a fully effective and completed Offering Period for all purposes pursuant to the ESPP; (viC) cause each ESPP participant’s accumulated contributions under the ESPP to be used to purchase shares of Company Common Stock in accordance with the ESPP exercise (as of no later than five business days prior to the end date on which the Effective Time occurs) of each outstanding purchase right pursuant to the Final OfferingESPP; and (viiD) provide that the applicable no further Offering Period or purchase price for Company Common Stock period will not be decreased below the levels set forth in commence pursuant to the ESPP as of after the date of this Agreement; and (viii) ensure that no further rights are granted under . On such exercise date, the Company will apply the funds credited as of such date pursuant to the ESPP after within each participant’s payroll withholding account to the Effective Timepurchase of whole Shares in accordance with the terms of the ESPP. Immediately prior to and effective as of the Effective Time (but subject to the consummation of the TransactionsMerger), the Company shall will terminate the ESPP.

Employee Stock Purchase Plan. As soon as reasonably practicable following the date of this Agreement and in any event prior to the Effective Time and not No later than the earlier to occur of (i) the last day immediately prior to of the date on which Company’s regularly scheduled payroll period following the first Offering Offer Period (as defined in the Company’s Amended and Restated 2009 Employee Stock Purchase Plan (the “ESPP) that is regularly scheduled to commence under the ESPP after the date of this Agreement, the Company shall take all necessary actions, including obtaining any necessary determinations or resolutions of the Company Board (or a committee thereof”), if appropriate, and amending the terms of the ESPP as may be necessary or required under the ESPP and applicable Legal Requirements, to (i) provide that each individual participating in the Offering Period (as defined in the ESPP) in progress on the date of this Agreement and (ii) the date that is five (5) Business Days prior to the Effective Time, the then-current Offer Period shall terminate (the “Final OfferingDate”) shall not be permitted to increase and the percentage payroll deductions of his or her earnings each ESPP participant accumulated as of the Final Date in each participant’s Payroll Account (as defined in the Final Offering documentsESPP) pursuant shall be used to purchase that number of whole shares of Company Common Stock in accordance with the terms of the ESPP (taking into account a participant’s withdrawal rights under the ESPP), which number of shares shall be cancelled and be converted into the right to receive the Merger Consideration as provided in Section 2.1(c). The board of directors of the Company (the “Company Board”) or the compensation committee thereof shall adopt such resolutions or take such other actions as may be required to provide that with respect to the ESPP ESPP: (i) participants may not increase their payroll deductions from the individual’s applicable elected percentage of earnings that was those in effect when that Offering Period commenced, on the date of this Agreement or make any separate non-payroll contributions to the ESPP on or following the date of this Agreement; (ii) ensure that, except for the Final Offering, no Offering Period under new participants may enroll to commence participation in the ESPP will be authorized or commenced on or after following the date of this Agreement; (iii) if the Closing will occur prior to the end of the Final Offering, provide each individual participating in the Final Offering with notice of the transactions contemplated by this Agreement and the CVR Agreement at least ten days prior to the New Exercise Date; (iv) cause the Final Offering to end no later than the date that is immediately prior to the Closing Date (the “New Exercise Date”); (v) make any pro rata adjustments that may be necessary to reflect the shortened Offering new Offer Period (as defined in the ESPP) of the Final Offering, but otherwise treat such shortened Offering Period of the Final Offering as a fully effective and completed Offering Period for all purposes pursuant to the ESPP; (vi) cause each ESPP participant’s accumulated contributions under the ESPP to be used to purchase shares of Company Common Stock in accordance with the ESPP as of the end of the Final Offering; (vii) provide that the applicable purchase price for Company Common Stock will not be decreased below the levels set forth in the ESPP as of may commence following the date of this Agreement; (iv) the Offer Period in progress on the date of this Agreement shall not be modified or extended in any way; and (viiiv) ensure that the ESPP shall terminate immediately following the Final Date and no further rights are shall be granted or exercised under the ESPP after the Effective Time. Immediately prior to and effective as of the Effective Time (but subject to the consummation of the Transactions), the Company shall terminate the ESPPthereafter.