Common use of Company ESPP Clause in Contracts

Company ESPP. From and after the Agreement Date, the Company will not establish any new offering period under the Company ESPP. Participation in the Company ESPP shall be limited to those employees who were participants on the Agreement Date and each individual participating in any current purchase period will not be permitted to (i) increase his or her payroll contribution rate pursuant to the Company ESPP from the rate in effect immediately prior to the Agreement Date; or (ii) make separate non-payroll contributions to the Company ESPP that has the effect of increasing his or her contribution rate in effect immediately prior to the Agreement Date, except, in each case, as may be required by applicable Law. Prior to the Effective Time, the Company will take all action that may be necessary to, effective upon the consummation of the Merger, (A) cause any Purchase Period (as defined in the Company ESPP) that would otherwise be outstanding at the Effective Time to be terminated no later than three Business Days prior to the Closing Date; (B) make any adjustments that may be necessary or advisable to reflect the shortened Purchase Period, but otherwise treat such shortened Purchase Period as a fully effective and completed Purchase Period for all purposes pursuant to the Company ESPP; (C) cause the exercise (as of no later than three Business Days prior to the Closing Date) of each outstanding purchase right pursuant to the Company ESPP; and (D) provide that no further Purchase Period or purchase offer period will commence pursuant to the Company ESPP after the Effective Time. Notwithstanding any restrictions on transfer of stock in the Company ESPP, all Shares purchased under the Company ESPP shall be treated identically to all other Shares in the Merger and the payment described in Section 2.7(a). On such exercise date, the Company will apply the funds credited as of such date pursuant to the Company ESPP within each participant’s payroll withholding account to the purchase of whole Shares in accordance with the terms of the Company ESPP. Immediately prior to and effective as of the Effective Time (but subject to the consummation of the Merger), the Company will terminate the Company ESPP.

Company ESPP. From and after Prior to the Agreement DateEffective Time, unless the Company will not establish any new offering period underway as of the date hereof (the “Current Offering Period”) under the Xyratex Ltd 2004 Employee Stock Purchase Plan (as amended) (the “Company ESPP. Participation in the Company ESPP shall be limited to those employees who were participants on the Agreement Date and each individual participating in any current purchase period will not be permitted to (i”) increase his or her payroll contribution rate pursuant to the Company ESPP from the rate in effect immediately terminates by its terms prior to the Agreement Date; or (ii) make separate non-payroll contributions to the Company ESPP that has the effect of increasing his or her contribution rate in effect immediately prior to the Agreement Date, except, in each case, as may be required by applicable Law. Prior to the Effective Time, the Company will take all action that may be necessary to, effective upon : (i) cause the consummation Current Offering Period to be terminated as of the Merger, (A) cause any Purchase Period (as defined in the Company ESPP) that would otherwise be outstanding at last Business Day prior to the Effective Time to be terminated no later than three (the last Business Days Day prior to the Closing Effective Time, the “Designated Date”); (Bii) make any pro-rata adjustments that may be necessary or advisable to reflect the shortened Purchase Current Offering Period, but otherwise treat such shortened Purchase Current Offering Period as a fully effective and completed Purchase Period offering period for all purposes pursuant to the Company ESPP; (C) cause the exercise (as of no later than three Business Days prior to the Closing Date) of each outstanding purchase right pursuant to the Company ESPP; and (D) provide that no further Purchase Period or purchase offer period will commence pursuant to the Company ESPP after the Effective Time. Notwithstanding any restrictions on transfer of stock in the Company ESPP, all Shares purchased under the Company ESPP shall (the completion of the Current Offering Period, the “Final Purchase”); and (iii) cause each participant’s shares purchase right under the Company ESPP (the “Company ESPP Rights”) to be treated identically to all other Shares in exercised; provided, however, that the Merger and the payment actions described in Section 2.7(a)clauses (i) through (iii) of this sentence will be conditioned upon the consummation of the Merger. On such exercise datethe Designated Date, the Company will apply the funds credited as of such date pursuant to under the Company ESPP within each participant’s the associated accumulated payroll withholding account for each participant under the Company ESPP will be used to the purchase of whole Shares shares in accordance with the terms of the Company ESPP, and each share purchased thereunder will be canceled at the Effective Time and converted into the right to receive the Merger Consideration pursuant to Section 2.1(a), subject to withholding of applicable income and employment withholding Taxes pursuant to Section 2.2(f). Immediately prior Prior to and effective as of the Effective Time (but subject to the consummation of the Merger), the Company will cause the Company ESPP to terminate at the Effective Time, and the Company hereby represents and warrants to Parent and Purchaser that it will take all actions necessary with respect to the Company ESPP so that (A) no offering periods or purchase periods will be commenced following or in addition to the Current Offering Period, (B) no payroll deductions or other contributions will be made or effected after the Designated Date with respect to the Company ESPP, and (C) notice will be given to participants in the Company ESPP as soon as administratively practicable following the date hereof describing the Final Purchase and the termination of the Company ESPP pursuant to this Section 2.4(e) following the Final Purchase.

Company ESPP. From and after As soon as practicable following the Agreement Datedate hereof, the Company will not establish any new offering period under shall take all actions as may be reasonably required to provide that (i) the Offering Period (as defined in the Company ESPP. Participation ) in effect as of the date hereof shall be the final Offering Period (such period, the “Final Offering Period”) and no further Offering Period shall commence pursuant to the Company ESPP shall be limited to those employees who were participants on after the Agreement Date date hereof, and (ii) each individual participating in any current purchase period will the Final Offering Period on the date hereof shall not be permitted to (i1) increase his or her payroll contribution rate pursuant to the Company ESPP from the rate in effect immediately prior to when the Agreement Date; Final Offering Period commenced or (ii2) make separate non-payroll contributions to the Company ESPP that has on or following the effect of increasing his or her contribution rate in effect immediately prior to the Agreement Date, except, in each case, as may be required by applicable Lawdate hereof. Prior to the Effective Time, the Company will shall take all action actions that may be reasonably necessary to, effective upon the consummation of the Merger, to (A) cause any Purchase Period (as defined in the Company ESPP) Final Offering Period, to the extent that it would otherwise be outstanding at the Effective Time Time, to be terminated no later than three five (5) Business Days prior to the Closing Date; date on which the Effective Time occurs, (B) make any pro rata adjustments that may be necessary or advisable to reflect the shortened Purchase Final Offering Period, but otherwise treat such shortened Purchase the Final Offering Period as a fully effective and completed Purchase Offering Period for all purposes pursuant to the Company ESPP; ESPP and (C) cause the exercise (as of no later than three five (5) Business Days prior to the Closing Datedate on which the Effective Time occurs) of each outstanding purchase right pursuant to the Company ESPP; and (D) provide that no further Purchase Period or purchase offer period will commence pursuant to the Company ESPP after the Effective Time. Notwithstanding any restrictions on transfer of stock in the Company ESPP, all Shares purchased under the Company ESPP shall be treated identically to all other Shares in the Merger and the payment described in Section 2.7(a). On such exercise date, the Company will shall apply the funds credited as of such date pursuant to the Company ESPP within each participant’s payroll withholding account to the purchase of whole Shares shares of Company Common Stock in accordance with the terms of the Company ESPP, and such shares of Company Common Stock shall be entitled to the Merger Consideration in accordance with Section 2.1. Immediately prior to and effective as of the Effective Time (but subject to the consummation of the Merger), the Company will shall terminate the Company ESPP.

Company ESPP. From and after the Agreement Date, the The Company will not establish shall take such action as may be necessary to: (i) cause any new offering period and purchase period (or similar period during which shares may be purchased) underway as of the date of this Agreement under the Company ESPP. Participation in ESPP to be terminated as of no later than the Company ESPP shall be limited to those employees who were participants on last payroll date immediately preceding the Agreement Date and each individual participating in any current purchase period will not be permitted to Effective Time (i) increase his or her payroll contribution rate pursuant to the Company ESPP from the rate in effect immediately prior to the Agreement “Final Exercise Date”); or (ii) make separate nonany pro-payroll contributions to the Company ESPP that has the effect of increasing his or her contribution rate in effect immediately prior to the Agreement Date, except, in each case, as may be required by applicable Law. Prior to the Effective Time, the Company will take all action that may be necessary to, effective upon the consummation of the Merger, (A) cause any Purchase Period (as defined in the Company ESPP) that would otherwise be outstanding at the Effective Time to be terminated no later than three Business Days prior to the Closing Date; (B) make any rata adjustments that may be necessary or advisable to reflect the any shortened Purchase Periodoffering period or purchase period (or similar period), but otherwise treat any such shortened Purchase Period offering period or purchase period (or similar period) as a fully effective and completed Purchase Period offering period or purchase period, as applicable, for all purposes pursuant to under the Company ESPP; (Ciii) cause each participant’s shares purchase right under the exercise Company ESPP (the “Company ESPP Rights”) outstanding as of no later than three Business Days prior the Final Exercise Date to be exercised as of the Closing Final Exercise Date) of each outstanding purchase right pursuant to the Company ESPP; and (Div) provide that no further Purchase Period offering periods or purchase offer period will periods (or similar periods during which shares may be purchased) shall commence pursuant under the Company ESPP on or after the date of this Agreement; (v) provide that no participant in the Company ESPP may increase the rate of his or her contributions to the Company ESPP on or after the Effective Time. Notwithstanding any restrictions on transfer date of stock this Agreement; (vi) provide that no individual who is not participating in the Company ESPPESPP as of the date of this Agreement may commence participation in the Company ESPP on or after the date of this Agreement; and (vii) terminate the Company ESPP as of the Final Exercise Date, all Shares purchased under provided, however, that termination of the Company ESPP shall be treated identically subject to all other Shares in the Merger and consummation of the payment described in Section 2.7(a)Merger. On such exercise date, the Company will apply the funds credited as of such date pursuant to Each outstanding option under the Company ESPP within each participant’s payroll withholding account to on the Final Exercise Date shall be exercised on such date for the purchase of whole Shares Company Common Stock in accordance with the terms of the Company ESPP. Immediately prior to and effective On the Final Exercise Date, the funds credited as of such date under the Company ESPP within the associated accumulated payroll withholding account for each participant under the Company ESPP will be used to purchase shares in accordance with the terms of the Company ESPP, and each share purchased by a participant of the Company ESPP and issued thereunder will be cancelled at the Effective Time and converted into the right to receive the Merger Consideration pursuant to this Section 2.7, subject to withholding of applicable income and employment withholding Taxes. No further Company ESPP Rights will be granted after the date of this Agreement, and no further Company ESPP Rights will be exercised under the Company ESPP after the Final Exercise Date. The Company shall provide timely notice of the setting of the Final Exercise Date and termination of the Company ESPP in accordance with the Company ESPP (but which termination will be subject to the consummation of the Merger), the Company will terminate the Company ESPP.

Company ESPP. From The Company Board (or, if appropriate, the committee administering the Company ESPP) will pass such resolutions and take all actions reasonably necessary with respect to the Company ESPP to provide that (i) except for the offering periods under the Company ESPP in effect on the date hereof (the “Final Offering Periods”), no new offering period will commence following the date hereof unless and until this Agreement is terminated; and (ii) from and after the Agreement Datedate hereof, the Company no new participants will not establish any new offering period under the Company ESPP. Participation be permitted to participate in the Company ESPP shall be limited to those employees who were and participants on the Agreement Date and each individual participating in any current purchase period will not be permitted to increase their payroll deductions or purchase elections from those in effect on date of this Agreement. If the Effective Time occurs: (i) increase his during one or her payroll contribution rate pursuant to the Company ESPP from the rate in effect immediately prior to the Agreement Date; or (ii) make separate non-payroll contributions to the Company ESPP that has the effect of increasing his or her contribution rate in effect immediately prior to the Agreement Date, except, in each case, as may be required by applicable Law. Prior to the Effective Time, the Company will take all action that may be necessary to, effective upon the consummation more of the MergerFinal Offering Periods, (A) cause any Purchase Period (as defined in the Company ESPPfinal exercise date(s) that would otherwise be outstanding at the Effective Time to be terminated no later than three Business Days prior to the Closing Date; (B) make any adjustments that may be necessary or advisable to reflect the shortened Purchase Period, but otherwise treat such shortened Purchase Period as a fully effective and completed Purchase Period for all purposes pursuant to the Company ESPP; (C) cause the exercise (as of no later than three Business Days prior to the Closing Date) of each outstanding purchase right pursuant to the Company ESPP; and (D) provide that no further Purchase Period or purchase offer period will commence pursuant to the Company ESPP after the Effective Time. Notwithstanding any restrictions on transfer of stock in the Company ESPP, all Shares purchased under the Company ESPP shall be treated identically to all other Shares in the Merger and the payment described in Section 2.7(a). On such exercise date, date as the Company will apply the funds credited as of determines in its sole discretion (provided that such date pursuant shall be no later than the date that is five (5) days prior to the Effective Time) (the “Final Exercise Date”), and (B) each Company ESPP participant’s accumulated contributions under the Company ESPP within each participant’s payroll withholding account shall be used to the purchase whole shares of whole Shares Class A Common Stock in accordance with the terms of the Company ESPP. Immediately prior to and effective ESPP as of the Final Exercise Date, which shares of Class A Common Stock, to the extent outstanding immediately prior to the Effective Time, shall be canceled at the Effective Time in exchange for the right to receive the Merger Consideration in accordance with Section 2.7(a); or (but subject ii) after the end of both of the Final Offering Periods, all amounts allocated to each participant’s account under the Company ESPP at the end of each of the Final Offering Periods shall thereupon be used to purchase whole shares of Class A Common Stock under the terms of the Company ESPP for such offering period, which shares of Class A Common Stock, to the consummation extent outstanding immediately prior to the Effective Time, shall be canceled at the Effective Time in exchange for the right to receive the Merger Consideration in accordance with Section 2.7(a). As promptly as practicable following the purchase of shares of Class A Common Stock in accordance with the Mergerforegoing clauses (i) or (ii), the Company will terminate shall return to each participant the Company ESPPfunds, if any, that remain in such participant’s account after such purchase.

Company ESPP. From and after As soon as practicable following the Agreement Datedate of this Agreement, the Company will not establish any new offering period under Board or a committee thereof shall adopt resolutions or take other actions as may be required to provide that (A) the Offering Period (as defined in the Company ESPP. Participation ) in effect as of the date hereof shall be the final Offering Period (such period, the “Final Offering Period”) and no further Offering Period shall commence pursuant to the Company ESPP shall be limited to those employees who were participants on after the Agreement Date date hereof, and (B) each individual participating in any current purchase period will the Final Offering Period on the date of this Agreement shall not be permitted to (ix) increase his or her payroll contribution rate pursuant to the Company ESPP from the rate in effect immediately prior to when the Agreement Date; Final Offering Period commenced or (iiy) make separate non-payroll contributions to the Company ESPP that has on or following the effect date of increasing his or her contribution rate in effect immediately prior to the Agreement Datethis Agreement, except, in each case, except as may be required by applicable Law. Prior to the Effective Time, the Company will shall take all action that may be necessary to, effective upon the consummation of the Merger, (A) cause any Purchase Period (as defined in the Company ESPP) Final Offering Period, to the extent that it would otherwise be outstanding at the Effective Time Time, to be terminated no later than three ten (10) Business Days prior to the Closing Datedate on which the Effective Time occurs; (B) make any pro rata adjustments that may be necessary or advisable to reflect the shortened Purchase Final Offering Period, but otherwise treat such shortened Purchase the Final Offering Period as a fully effective and completed Purchase Offering Period for all purposes pursuant to the Company ESPP; and (C) cause the exercise (as of no later than three ten (10) Business Days prior to the Closing Datedate on which the Effective Time occurs) of each outstanding purchase right pursuant to the Company ESPP; and (D) provide that no further Purchase Period or purchase offer period will commence pursuant to the Company ESPP after the Effective Time. Notwithstanding any restrictions on transfer of stock in the Company ESPP, all Shares purchased under the Company ESPP shall be treated identically to all other Shares in the Merger and the payment described in Section 2.7(a). On such exercise date, the Company will shall apply the funds credited as of such date pursuant to the Company ESPP within each participant’s payroll withholding account to the purchase of whole Shares shares of Company Common Stock in accordance with the terms of the Company ESPP, and such Common Shares shall be entitled to the Merger Consideration in accordance with Section 3.1(b). Immediately prior to and effective as of the Effective Time (but subject to the consummation of the Merger), the Company will shall terminate the Company ESPP.

Company ESPP. From and after the Agreement Date, the The Company will not establish shall take such action as may be necessary to: (i) cause any new offering period and purchase period (or similar period during which shares may be purchased) underway as of the date of this Agreement under the Company ESPP. Participation in ESPP to be terminated as of no later than the Company ESPP shall be limited to those employees who were participants on last payroll date immediately preceding the Agreement Date and each individual participating in any current purchase period will not be permitted to Effective Time (i) increase his or her payroll contribution rate pursuant to the Company ESPP from the rate in effect immediately prior to the Agreement “Final Exercise Date”); or (ii) make separate nonany pro-payroll contributions to the Company ESPP that has the effect of increasing his or her contribution rate in effect immediately prior to the Agreement Date, except, in each case, as may be required by applicable Law. Prior to the Effective Time, the Company will take all action that may be necessary to, effective upon the consummation of the Merger, (A) cause any Purchase Period (as defined in the Company ESPP) that would otherwise be outstanding at the Effective Time to be terminated no later than three Business Days prior to the Closing Date; (B) make any rata adjustments that may be necessary or advisable to reflect the any shortened Purchase Periodoffering period or purchase period (or similar period), but otherwise treat any Table of Contents such shortened Purchase Period offering period or purchase period (or similar period) as a fully effective and completed Purchase Period offering period or purchase period, as applicable, for all purposes pursuant to under the Company ESPP; (Ciii) cause each participant’s shares purchase right under the exercise Company ESPP (the “Company ESPP Rights”) outstanding as of no later than three Business Days prior the Final Exercise Date to be exercised as of the Closing Final Exercise Date) of each outstanding purchase right pursuant to the Company ESPP; and (Div) provide that no further Purchase Period offering periods or purchase offer period will periods (or similar periods during which shares may be purchased) shall commence pursuant under the Company ESPP on or after the date of this Agreement; (v) provide that no participant in the Company ESPP may increase the rate of his or her contributions to the Company ESPP on or after the Effective Time. Notwithstanding any restrictions on transfer date of stock this Agreement; (vi) provide that no individual who is not participating in the Company ESPPESPP as of the date of this Agreement may commence participation in the Company ESPP on or after the date of this Agreement; and (vii) terminate the Company ESPP as of the Final Exercise Date, all Shares purchased under provided, however, that termination of the Company ESPP shall be treated identically subject to all other Shares in the Merger and consummation of the payment described in Section 2.7(a)Merger. On such exercise date, the Company will apply the funds credited as of such date pursuant to Each outstanding option under the Company ESPP within each participant’s payroll withholding account to on the Final Exercise Date shall be exercised on such date for the purchase of whole Shares Company Common Stock in accordance with the terms of the Company ESPP. Immediately prior to and effective On the Final Exercise Date, the funds credited as of such date under the Company ESPP within the associated accumulated payroll withholding account for each participant under the Company ESPP will be used to purchase shares in accordance with the terms of the Company ESPP, and each share purchased by a participant of the Company ESPP and issued thereunder will be cancelled at the Effective Time and converted into the right to receive the Merger Consideration pursuant to this Section 2.7, subject to withholding of applicable income and employment withholding Taxes. No further Company ESPP Rights will be granted after the date of this Agreement, and no further Company ESPP Rights will be exercised under the Company ESPP after the Final Exercise Date. The Company shall provide timely notice of the setting of the Final Exercise Date and termination of the Company ESPP in accordance with the Company ESPP (but which termination will be subject to the consummation of the Merger), the Company will terminate the Company ESPP.

Company ESPP. From (a) The Company shall take any and after the Agreement Date, the Company will not establish any new offering period under the Company ESPP. Participation in the Company ESPP shall be limited to those employees who were participants on the Agreement Date and each individual participating in any current purchase period will not be permitted to (i) increase his or her payroll contribution rate pursuant all actions with respect to the Company ESPP from the rate in effect immediately prior as are necessary to provide that: (i) with respect to the Agreement Date; or (ii) make separate non-payroll contributions to the Company ESPP that has the effect of increasing his or her contribution rate in effect immediately prior to the Agreement Date, except, in each case, as may be required by applicable Law. Prior to the Effective Time, the Company will take all action that may be necessary to, effective upon the consummation of the Merger, (A) cause any Purchase Offering Period (as defined in the Company ESPP) in effect as of the date hereof, no employee who is not a participant in the Company ESPP as of the date hereof may become after the date hereof a participant in the Company ESPP and no participant in the Company ESPP may increase the percentage amount of his or her payroll deduction election from that would otherwise be outstanding at in effect on the Effective Time to be terminated no later than three Business Days prior to the Closing Datedate hereof for such Offering Period; (Bii) make any adjustments that may be necessary or advisable to reflect the shortened Purchase Period, but otherwise treat such shortened Purchase Period as a fully effective and completed Purchase Period for all purposes pursuant to participants in the Company ESPP; (C) cause the exercise (as of no later than three Business Days prior ESPP shall not be permitted to the Closing Date) of each outstanding purchase right pursuant to the Company ESPP; and (D) provide that no further Purchase Period or purchase offer period will commence pursuant make additional contributions to the Company ESPP after the Effective Time. Notwithstanding any restrictions on transfer of stock second payroll period ending after the date hereof (the “Company ESPP Contribution Termination Date”); and (iii) the Exercise Date (as defined in the Company ESPP) shall occur immediately prior to the Effective Time (the “Exercise Time”) unless this Agreement is terminated prior thereto. At the Exercise Time, all each purchase right under the Company ESPP as of the Company ESPP Contribution Termination Date shall be automatically exercised by applying the payroll deductions of each participant in the Company ESPP for such Offering Period to the purchase of a number of whole Shares purchased (subject to the provisions of the Company ESPP regarding the number of shares purchasable) at an exercise price per Share equal to the Exercise Price (as defined in the Company ESPP) of a Company Common Share applicable to the Offering Period, which number of Shares will then be canceled and converted into the right to receive the Merger Consideration in accordance with Section 2.4(a) hereof, less required withholding taxes in accordance with Section 3.7. Any excess payroll deductions not used as a result of share limitations under the Company ESPP shall be treated identically returned to all other the applicable participant without interest. If a fractional number of Shares in results, then such number shall be rounded down to the Merger next whole number, and the payment described in Section 2.7(a). On such exercise date, the Company will apply the funds credited as of such date pursuant excess payroll deductions shall be returned to the Company ESPP within each participant’s payroll withholding account to the purchase of whole Shares in accordance with the terms of the Company ESPP. Immediately prior to and effective as of the Effective Time (but subject to the consummation of the Merger), the Company will terminate the Company ESPPapplicable participant without interest.

Company ESPP. From The Company shall take any and after the Agreement Date, the Company will not establish any new offering period under the Company ESPP. Participation in the Company ESPP shall be limited to those employees who were participants on the Agreement Date and each individual participating in any current purchase period will not be permitted to (i) increase his or her payroll contribution rate pursuant all actions with respect to the Company ESPP from the rate in effect immediately prior as are necessary to provide that: (i) with respect to the Agreement Date; or (ii) make separate non-payroll contributions to the Company ESPP that has the effect of increasing his or her contribution rate in effect immediately prior to the Agreement Date, except, in each case, as may be required by applicable Law. Prior to the Effective Time, the Company will take all action that may be necessary to, effective upon the consummation of the Merger, (A) cause any Purchase Offering Period (as defined in the Company ESPP) in effect as of the date hereof, no employee who is not a participant in the Company ESPP as of the date hereof may become after the date hereof a participant in the Company ESPP and no participant in the Company ESPP may increase the percentage amount of his or her payroll deduction election from that would otherwise be outstanding at in effect on the date hereof for such Offering Period; (ii) subject to consummation of the Merger, the Company ESPP shall terminate, effective immediately before the Effective Time to be terminated no later than three Business Days prior to (the Closing “Company ESPP Termination Date; (B) make any adjustments that may be necessary or advisable to reflect the shortened Purchase Period, but otherwise treat such shortened Purchase Period as a fully effective and completed Purchase Period for all purposes pursuant to the Company ESPP; (C) cause the exercise (as of no later than three Business Days prior to the Closing Date) of each outstanding purchase right pursuant to the Company ESPP”); and (Diii) provide that no further Purchase if the Offering Period or purchase offer period will commence pursuant in effect as of the date hereof terminates prior to the Company ESPP after Termination Date, the Effective TimeCompany ESPP shall be suspended and no new Offering Period will be commenced under the Company ESPP unless this Agreement shall have terminated prior to the consummation of the Merger. Notwithstanding any restrictions If such Offering Period is still in effect on transfer the Company ESPP Termination Date, then, on the Company ESPP Termination Date, each purchase right under the Company ESPP as of stock the Company ESPP Termination Date shall be automatically exercised by applying the payroll deductions of each participant in the Company ESPP for such Offering Period to the purchase of a number of whole Shares (subject to the provisions of the Company ESPP regarding the number of shares purchasable) at an exercise price per Share equal to the lower of (A) 85% of the Fair Market Value (as defined in the Company ESPP) of a share of Company Common Stock at the start of the Offering Period and (B) 85% of the Merger Consideration, all Shares purchased which number of shares will then be canceled and converted into the right to receive the Merger Consideration in accordance with Section 2.1(a) hereof. Any excess payroll deductions not used as a result of share limitations under the Company ESPP shall be treated identically distributed to all other each participant without interest. If a fractional number of Shares in results, then such number shall be rounded down to the Merger next whole number, and the payment described excess payroll deductions shall be distributed to the applicable participant without interest. As soon as reasonably practicable after the Effective Time, Parent shall cause the Paying Agent to pay to each participant in Section 2.7(a). On such exercise date, the Company will apply the funds credited as of such date pursuant to the Company ESPP within each participant’s payroll withholding account entitled to the purchase of whole Shares payment in accordance with this Section 1.11 the terms of the Company ESPP. Immediately prior to and effective as of the Effective Time (but subject to the consummation of the Merger), the Company will terminate the Company ESPPamounts payable with respect thereto.

Company ESPP. From and after the Agreement DateThe Company Board (or, if appropriate, the Company will not establish any new offering period under committee administering the Company ESPP. Participation in the Company ESPP ) shall be limited to those employees who were participants on the Agreement Date pass such resolutions and each individual participating in any current purchase period will not be permitted to (i) increase his or her payroll contribution rate pursuant take all actions reasonably necessary with respect to the Company ESPP from to provide that (i) except for the rate in effect immediately prior to the Agreement Date; or (ii) make separate non-payroll contributions to offering periods under the Company ESPP that has the effect of increasing his or her contribution rate in effect immediately prior to on the Agreement Datedate hereof (the “Final Offering Periods”), exceptno new offering period shall commence and no existing offering period shall be extended (provided that the commencement of new purchase periods under the Final Offering Periods in accordance with the terms of the Company ESPP in effect on the date hereof shall be permitted), in each case, as may following the date hereof unless and until this Agreement is terminated in accordance with its terms; (ii) from and after the date hereof, no new participants shall be required by applicable Law. Prior permitted to the Effective Time, participate in the Company will take all action that may ESPP and participants shall not be necessary to, effective upon permitted to increase their payroll deductions or purchase elections from those in effect on the date of this Agreement; and (iii) subject to the consummation of the Merger, (A) cause any Purchase Period (as defined in the Company ESPP) that would otherwise be outstanding at the Effective Time to be terminated no later than three Business Days prior to the Closing Date; (B) make any adjustments that may be necessary or advisable to reflect the shortened Purchase Period, but otherwise treat such shortened Purchase Period as a fully effective and completed Purchase Period for all purposes pursuant to the Company ESPP; (C) cause the exercise (as of no later than three Business Days prior to the Closing Date) of each outstanding purchase right pursuant to the Company ESPP; and (D) provide that no further Purchase Period or purchase offer period will commence pursuant to the Company ESPP after shall terminate as of the Effective Time. Notwithstanding any restrictions on transfer If the Effective Time occurs: (A) during one or more of stock in the Company ESPPFinal Offering Periods, all Shares purchased (x) the final exercise date(s) under the Company ESPP shall be treated identically to all other Shares in the Merger and the payment described in Section 2.7(a). On such exercise date, date as the Company will apply the funds credited as of determines in its sole discretion (provided that such date pursuant shall be no later than the date that is five (5) days prior to the Effective Time) (the “Final Exercise Date”) and (y) each Company ESPP participant’s accumulated contributions under the Company ESPP within each participant’s payroll withholding account shall be used to the purchase of whole Company Shares in accordance with the terms of the Company ESPP. Immediately prior to and effective ESPP as of the Final Exercise Date, which Company Shares, to the extent outstanding immediately prior to the Effective Time, shall be canceled at the Effective Time in exchange for the right to receive the Merger Consideration in accordance with Section 3.7(a) or (but subject B) after the end of the Final Offering Periods, all amounts allocated to each participant’s account under the Company ESPP at the end of each of the Final Offering Periods shall thereupon be used to purchase whole Company Shares under the terms of the Company ESPP for such offering period, which Company Shares, to the consummation extent outstanding immediately prior to the Effective Time, shall be canceled at the Effective Time in exchange for the right to receive the Merger Consideration in accordance with Section 3.7(a). As promptly as practicable following the purchase of Company Shares in accordance with the Mergerforegoing clauses (A) or (B), the Company will terminate shall return to each participant the Company ESPPfunds, if any, that remain in such participant’s account after such purchase.

Company ESPP. From and As soon as reasonably practicable after the Agreement Datedate of this Agreement, the Company, the Company will not establish any new offering period under Board or the Company ESPP. Participation appropriate committee thereof shall adopt resolutions or take other actions as may be required to provide that (a) the “Offering” (as defined in the Company ESPP 2009 Employee Stock Purchase Plan (the “Company ESPP”)) in effect as of the date of this Agreement shall be limited the final Offering (such period, the “Final Offering”) and no further Offering shall commence pursuant to those employees who were participants on the Agreement Date Company ESPP after the date of this Agreement, and (b) each individual participating in any current purchase period will the Final Offering on the date of this Agreement shall not be permitted to (i) increase his or her payroll contribution rate pursuant to the Company ESPP from the rate in effect immediately prior to when the Agreement Date; Final Offering commenced or (ii) make separate non-payroll contributions to the Company ESPP that has on or following the effect date of increasing his or her contribution rate in effect immediately prior to the Agreement Datethis Agreement, except, in each case, except as may be required by applicable Law. Prior to the Effective Time, the Company will shall take all action actions that may be necessary to, effective upon the consummation of the Merger, (A) cause any Purchase Period (as defined in the Company ESPP) Final Offering, to the extent that it would otherwise be outstanding at the Effective Time Time, to be terminated no later than three five (5) Business Days prior to the Closing Datedate on which the Effective Time occurs; (B) make any pro rata adjustments that may be necessary or advisable to reflect the shortened Purchase PeriodFinal Offering, but otherwise treat such shortened Purchase Period the Final Offering as a fully effective and completed Purchase Period Offering for all purposes pursuant to the Company ESPP; and (C) cause the exercise (as of no later than three five (5) Business Days prior to the Closing Datedate on which the Effective Time occurs) of each outstanding purchase right pursuant to the Company ESPP; and (D) provide that no further Purchase Period or purchase offer period will commence pursuant to the Company ESPP after the Effective Time. Notwithstanding any restrictions on transfer of stock in the Company ESPP, all Shares purchased under the Company ESPP shall be treated identically to all other Shares in the Merger and the payment described in Section 2.7(a). On such exercise date, the Company will shall apply the funds credited as of such date pursuant to the Company ESPP within each participant’s payroll withholding account to the purchase of whole Shares shares of Company Common Stock in accordance with the terms of the Company ESPP, and such shares of Company Common Stock shall be outstanding shares of Company Common Stock and entitled to the Merger Consideration in accordance with Section 3.01(a)(iii). Immediately prior The Company, the Company Board or a committee thereof shall adopt such resolutions as are necessary to and terminate the Company ESPP effective as of immediately prior to, and conditional upon the occurrence of, the Effective Time (but subject to the consummation of the Merger), the Company will terminate the Company ESPPTime.

Company ESPP. From and after Simultaneously in connection with the Agreement Dateexecution of this Agreement, the Company will not establish shall: (i) cause any new offering period (or similar period during which shares may be purchased) in progress under the Company ESPP as of the date of this Agreement to be the final offering period under the Company ESPP. Participation in ESPP and to be terminated as of the Company ESPP shall be limited to those employees who were participants on date of this Agreement (the Agreement Date and each individual participating in any current purchase period will not be permitted to (i) increase his or her payroll contribution rate pursuant to the Company ESPP from the rate in effect immediately prior to the Agreement “Final Exercise Date”); or (ii) make separate nonany pro-payroll contributions to the Company ESPP that has the effect of increasing his or her contribution rate in effect immediately prior to the Agreement Date, except, in each case, as may be required by applicable Law. Prior to the Effective Time, the Company will take all action that may be necessary to, effective upon the consummation of the Merger, (A) cause any Purchase Period (as defined in the Company ESPP) that would otherwise be outstanding at the Effective Time to be terminated no later than three Business Days prior to the Closing Date; (B) make any rata adjustments that may be necessary or advisable to reflect the shortened Purchase Periodoffering period (or similar period), but otherwise treat such shortened Purchase Period offering period (or similar period) as a fully effective and completed Purchase Period offering period for all purposes pursuant to the Company ESPP; (C) cause the exercise (as of no later than three Business Days prior to the Closing Date) of each outstanding purchase right pursuant to under the Company ESPP; and (Diii) provide that no further Purchase Period or cause each participant’s then-outstanding share purchase offer period will commence pursuant to right under the Company ESPP after (the “Company ESPP Rights”) to terminate as of the Final Exercise Date. Thereafter, the Company shall terminate the Company ESPP no later than the Effective Time. Notwithstanding any restrictions on transfer of stock in On the Company ESPPFinal Exercise Date, all Shares purchased under to the Company ESPP shall be treated identically to all other Shares in the Merger and the payment described in Section 2.7(a). On such exercise date, the Company will apply the extent sufficient funds have been credited as of such date pursuant to under the Company ESPP within each participant’s the associated accumulated payroll withholding account accounts for participants to the fund a share purchase for a reasonable number of whole Shares shares, then such funds shall be used to purchase shares of Common Stock in accordance with the terms of the Company ESPP, and otherwise the current offering period shall terminate without a final purchase. Immediately Each share purchased thereunder prior to and effective as of the Effective Time (but shall be cancelled at the Effective Time and converted into the right to receive the Common Merger Consideration in accordance with Section 3.1(a), subject to withholding of any applicable income and employment withholding Taxes. Any accumulated contributions of each participant under the consummation Company ESPP following the Final Exercise Date shall, to the extent not used to purchase shares in accordance with the terms and conditions of the MergerCompany ESPP (as amended pursuant to this Section 3.3(e)), be refunded to such participant as promptly as practicable following the Final Exercise Date (without interest). No further Company ESPP Rights shall be granted or exercised under the Company will terminate ESPP after the Company ESPPFinal Exercise Date.

Company ESPP. From and after With respect to the Agreement DateCompany ESPP, as soon as practicable following the date of this Agreement, the Company Board (or a committee thereof) will not establish any new offering period under adopt resolutions or take other actions as may be required to provide that (A) the Purchase Period (as defined in the Company ESPP. Participation ) in effect as of the date hereof shall be the final Purchase Period (such period, the “Final Purchase Period”) and no further Purchase Period will commence pursuant to the Company ESPP shall be limited to those employees who were participants on after the Agreement Date and date hereof, (B) each individual participating in any current purchase period the Final Purchase Period on the date of this Agreement will not be permitted to (ix) increase his or her payroll contribution rate pursuant to the Company ESPP from the rate in effect immediately prior to when the Agreement Date; Final Purchase Period commenced or (iiy) make separate non-payroll contributions to the Company ESPP that has on or following the effect date of increasing his or her contribution rate in effect immediately prior to the Agreement Datethis Agreement, except, in each case, except as may be required by applicable Applicable Law. Prior to the Effective Time, the Company will take all action that may be necessary to, effective upon the consummation of the Merger, (A) cause any the Final Purchase Period (as defined in Period, to the Company ESPP) extent that it would otherwise be outstanding at the Effective Time Time, to be terminated no later than three ten (10) Business Days prior to the Closing Datedate on which the Effective Time occurs; (B) make any pro rata adjustments that may be necessary or advisable to reflect the shortened Final Purchase Period, but otherwise treat such shortened the Final Purchase Period as a fully effective and completed Purchase Period for all purposes pursuant to the Company ESPP; and (C) cause the exercise (as of no later than three ten (10) Business Days prior to the Closing Datedate on which the Effective Time occurs) of each outstanding purchase right pursuant to the Company ESPP; and (D) provide that no further Purchase Period or purchase offer period will commence pursuant to the Company ESPP after the Effective Time. Notwithstanding any restrictions on transfer of stock in the Company ESPP, all Shares purchased under the Company ESPP shall be treated identically to all other Shares in the Merger and the payment described in Section 2.7(a). On such exercise date, the Company will apply the funds credited as of such date pursuant to the Company ESPP within each participant’s payroll withholding account to the purchase of whole Shares in accordance with the terms of the Company ESPP, and such Shares will be entitled to the Merger Consideration pursuant to Section 1.4(b) of this Agreement. Immediately prior to Table of Contents and effective as of the Effective Time (but subject to the consummation of the Merger), the Company will terminate the Company ESPP.

Company ESPP. From and after As soon as reasonably practicable following the Agreement Datedate of this Agreement, the Company will not establish any new shall take all actions with respect to the Company ESPP that are necessary to provide that: (i) with respect to the quarterly offering period in effect as of the date hereof (the “Current ESPP Offering Period”), i.e. the fourth quarter of 2018, no employee who is not a participant in a particular current offering under the Company ESPP. Participation ESPP as of the date hereof may become a participant in that offering under the Company ESPP and no participant may increase the percentage or amount of his or her payroll deduction election from that in effect on the date hereof for such Current ESPP Offering Period; (ii) the Current ESPP Offering Period shall terminate on the last business day of the quarter in which the date of this Agreement falls, and all participant contributions then credited to the Company ESPP shall be limited used to those employees who were participants purchase Company Common Shares on such date in accordance with the Agreement Date and each individual participating in any current terms of the Company ESPP; (iii) the purchase period will not be permitted to (i) increase his or her payroll contribution rate price of the Company Common Shares purchased pursuant to the Company ESPP from at the rate conclusion of the Current ESPP Offering Period shall be limited to no more than $400,000 with respect to the month in effect immediately which the date of this Agreement falls; and (iv) upon such termination, the Company ESPP shall be suspended and no new ESPP offering period shall be commenced under the Company ESPP prior to the Agreement Date; or (ii) make separate non-payroll contributions to the Company ESPP that has the effect termination of increasing his or her contribution rate in effect immediately prior to the Agreement Date, except, in each case, as may be required by applicable Law. Prior to the Effective Time, the Company will take all action that may be necessary to, effective upon the consummation of the Merger, (A) cause any Purchase Period (as defined in the Company ESPP) that would otherwise be outstanding at the Effective Time to be terminated no later than three Business Days prior to the Closing Date; (B) make any adjustments that may be necessary or advisable to reflect the shortened Purchase Period, but otherwise treat such shortened Purchase Period as a fully effective and completed Purchase Period for all purposes pursuant to the Company ESPP; (C) cause the exercise (as of no later than three Business Days prior to the Closing Date) of each outstanding purchase right pursuant to the Company ESPP; and (D) provide that no further Purchase Period or purchase offer period will commence pursuant to the Company ESPP after the Effective Timethis Agreement. Notwithstanding any restrictions on transfer of stock Company Common Shares in the Company ESPP, all Company Common Shares purchased under the Company ESPP shall be treated identically to all other Company Common Shares in the Merger and the payment described of the Per Share Price therefor in accordance with Section 2.7(a2.7(a)(ii). On such exercise date, the The Company will apply the funds credited as of such date pursuant to shall terminate the Company ESPP within each participant’s payroll withholding account as of or immediately prior to the purchase of whole Shares in accordance with the terms of the Company ESPP. Immediately prior to and effective as of the Effective Time (but subject to the consummation of the Merger), the Company will terminate the Company ESPPTime.

Company ESPP. From and As soon as reasonably practicable after the Agreement Datedate hereof, the Company, the Company will not establish any new offering period under Board or a committee thereof shall adopt resolutions or take other actions as may be required to provide that (a) the Purchase Period (as defined in the Employee Stock Purchase Plan of the Company, as amended and restated (the “Company ESPP. Participation ”)) in effect as of the date hereof shall be the final Purchase Period (such period, the “Final Purchase Period”) and no further Purchase Period shall commence pursuant to the Company ESPP shall be limited to those employees who were participants on after the Agreement Date date hereof, and (b) each individual participating in any current purchase period will the Final Purchase Period on the date of this Agreement shall not be permitted to (i) increase his or her payroll contribution rate pursuant to the Company ESPP from the rate in effect immediately prior to when the Agreement Date; Final Purchase Period commenced or (ii) make separate non-payroll contributions to the Company ESPP that has on or following the effect date of increasing his or her contribution rate in effect immediately prior to the Agreement Datethis Agreement, except, in each case, except as may be required by applicable Law. Prior to the Effective Time, the Company will shall take all action that may be necessary to, effective upon the consummation of the Merger, (A) cause any the Final Purchase Period (as defined in Period, to the Company ESPP) extent that it would otherwise be outstanding at the Effective Time Time, to be terminated no later than three five (5) Business Days prior to the Closing Datedate on which the Effective Time occurs; (B) make any pro rata adjustments that may be necessary or advisable to reflect the shortened Final Purchase Period, but otherwise treat such shortened the Final Purchase Period as a fully effective and completed Purchase Period for all purposes pursuant to the Company ESPP; and (C) cause the exercise (as of no later than three five (5) Business Days prior to the Closing Datedate on which the Effective Time occurs) of each outstanding purchase right pursuant to the Company ESPP; and (D) provide that no further Purchase Period or purchase offer period will commence pursuant to the Company ESPP after the Effective Time. Notwithstanding any restrictions on transfer of stock in the Company ESPP, all Shares purchased under the Company ESPP shall be treated identically to all other Shares in the Merger and the payment described in Section 2.7(a). On such exercise date, the Company will shall apply the funds credited as of such date pursuant to the Company ESPP within each participant’s payroll withholding account to the purchase of whole Shares shares of Company Stock in accordance with the terms of the Company ESPP, and such shares of Company Stock shall be outstanding shares of Company Stock and entitled to the Merger Consideration in accordance with Section 2.05. Immediately prior The Company, the Company Board or a committee thereof shall adopt such resolutions as are necessary to and terminate the Company ESPP effective as of immediately prior to the Effective Time (but subject to the consummation of the Merger), the Company will terminate the Company ESPP.

Company ESPP. From and after the Agreement DateThe Company Board (or, if appropriate, the committee administering the Company ESPP) will not establish any new pass such resolutions and take all actions reasonably necessary with respect to the Company ESPP to provide that (i) except for the offering period under the Company ESPP. Participation ESPP in effect on the date hereof (the “Final Offering Period”), no new offering period will commence following the date hereof unless and until this Agreement is terminated; and (ii) from and after the date hereof, no new participants will be permitted to participate in the Company ESPP shall be limited to those employees who were and participants on the Agreement Date and each individual participating in any current purchase period will not be permitted to (i) increase his their payroll deductions or her payroll contribution rate pursuant to the Company ESPP purchase elections from the rate those in effect immediately prior to on the Agreement Date; or (ii) make separate non-payroll contributions to the Company ESPP that has the effect date of increasing his or her contribution rate in effect immediately prior to the Agreement Date, except, in each case, as may be required by applicable Lawthis Agreement. Prior to If the Effective Time, Time occurs: (x) during the Company will take all action that may be necessary to, effective upon the consummation of the MergerFinal Offering Period, (A) cause any Purchase Period (as defined in the Company ESPPfinal exercise date(s) that would otherwise be outstanding at the Effective Time to be terminated no later than three Business Days prior to the Closing Date; (B) make any adjustments that may be necessary or advisable to reflect the shortened Purchase Period, but otherwise treat such shortened Purchase Period as a fully effective and completed Purchase Period for all purposes pursuant to the Company ESPP; (C) cause the exercise (as of no later than three Business Days prior to the Closing Date) of each outstanding purchase right pursuant to the Company ESPP; and (D) provide that no further Purchase Period or purchase offer period will commence pursuant to the Company ESPP after the Effective Time. Notwithstanding any restrictions on transfer of stock in the Company ESPP, all Shares purchased under the Company ESPP shall be treated identically to all other Shares in the Merger and the payment described in Section 2.7(a). On such exercise date, date as the Company will apply the funds credited as of determines in its sole discretion (provided that such date pursuant shall be no later than the date that is five (5) days prior to the Effective Time) (the “Final Exercise Date”), and (B) each Company ESPP participant’s accumulated contributions under the Company ESPP within each participant’s payroll withholding account shall be used to the purchase of whole Company Shares in accordance with the terms of the Company ESPP. Immediately prior to and effective ESPP as of the Final Exercise Date, which Company Shares, to the extent outstanding immediately prior to the Effective Time, shall be canceled at the Effective Time in exchange for the right to receive the Merger Consideration in accordance with Section 2.7(a); or (but subject y) after the end of the Final Offering Period, all amounts allocated to each participant’s account under the Company ESPP at the end of the Final Offering Period shall thereupon be used to purchase whole Company Shares under the terms of the Company ESPP for such offering period, which Company Shares, to the consummation extent outstanding immediately prior to the Effective Time, shall be canceled at the Effective Time in exchange for the right to receive the Merger Consideration in accordance with Section 2.7(a). As promptly as practicable following the purchase of Company Shares in accordance with the Mergerforegoing clauses (x) or (y), the Company will terminate shall return to each participant the Company ESPPfunds, if any, that remain in such participant’s account after such purchase.