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EXHIBIT 10.11
ESPERION THERAPEUTICS, INC.
EMPLOYEE STOCK PURCHASE PLAN
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TABLE OF CONTENTS
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Page
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ARTICLE I...................................................................................................... 1
Introduction.............................................................................................. 1
Sec. 1.01 Statement of Purpose........................................................................... 1
Sec. 1.02 Internal Revenue Code Considerations........................................................... 1
Sec. 1.03 ERISA Considerations........................................................................... 1
ARTICLE II..................................................................................................... 1
Definitions............................................................................................... 1
Sec. 2.01 Board of Directors............................................................................. 1
Sec. 2.02 Code........................................................................................... 1
Sec. 2.03 Committee...................................................................................... 1
Sec. 2.04 Company........................................................................................ 1
Sec. 2.05 Compensation................................................................................... 1
Sec. 2.06 Effective Date................................................................................. 1
Sec. 2.07 Election Date.................................................................................. 2
Sec. 2.08 Eligible Employee.............................................................................. 2
Sec. 2.09 Employer....................................................................................... 2
Sec. 2.10 Exchange Act................................................................................... 2
Sec. 2.11 Market Value................................................................................... 2
Sec. 2.12 Participant.................................................................................... 2
Sec. 2.13 Participation Form............................................................................. 2
Sec. 2.14 Plan........................................................................................... 2
Sec. 2.15 Plan Year...................................................................................... 2
Sec. 2.16 Public Offering................................................................................ 2
Sec. 2.17 Purchase Date.................................................................................. 3
Sec. 2.18 Purchase Period................................................................................ 3
Sec. 2.19 Purchase Price................................................................................. 3
Sec. 2.20 Stock.......................................................................................... 3
Sec. 2.21 Subsidiary..................................................................................... 3
ARTICLE III.................................................................................................... 3
Admission to Participation................................................................................ 3
Sec. 3.01 Initial Participation.......................................................................... 3
Sec. 3.02 Discontinuance of Participation................................................................ 3
Sec. 3.03 Readmission to Participation................................................................... 3
ARTICLE IV..................................................................................................... 4
Stock Purchase and Resale................................................................................. 4
Sec. 4.01 Reservation of Shares.......................................................................... 4
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Sec. 4.02 Limitation on Shares Available................................................................. 4
Sec. 4.03 Purchase Price of Shares....................................................................... 5
Sec. 4.04 Exercise of Purchase Privilege................................................................. 5
Sec. 4.05 Payroll Deductions............................................................................. 5
Sec. 4.06 Payment for Stock.............................................................................. 6
Sec. 4.07 Share Ownership; Issuance of Certificates...................................................... 6
Sec. 4.08 Distribution of Shares or Resale of Stock...................................................... 7
ARTICLE V...................................................................................................... 7
Special Adjustments....................................................................................... 7
Sec. 5.01 Shares Unavailable............................................................................. 7
Sec. 5.02 AntiDilution Provisions........................................................................ 8
Sec. 5.03 Effect of Certain Transactions................................................................. 8
ARTICLE VI..................................................................................................... 8
Miscellaneous............................................................................................. 8
Sec. 6.01 Non-Alienation................................................................................. 8
Sec. 6.02 Administrative Costs........................................................................... 8
Sec. 6.03 Committee...................................................................................... 9
Sec. 6.04 Withholding of Taxes........................................................................... 9
Sec. 6.05 Amendment of the Plan.......................................................................... 9
Sec. 6.06 Expiration and Termination of the Plan......................................................... 9
Sec. 6.07 Repurchase of Stock............................................................................ 9
Sec. 6.08 Notice......................................................................................... 9
Sec. 6.09 Government Regulation.......................................................................... 10
Sec. 6.10 Headings, Captions, Gender..................................................................... 10
Sec. 6.11 Severability of Provisions, Prevailing Law..................................................... 10
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ARTICLE I
Introduction
Sec. 1.01 Statement of Purpose. The purpose of the Esperion
Therapeutics, Inc. Employee Stock Purchase Plan is to provide eligible employees
of the Company and its subsidiaries an opportunity to purchase common stock of
the Company. The Board of Directors of the Company believes that employee
participation in stock ownership will be to the mutual benefit of the employees
and the Company. The Plan will be implemented if and when the Company has a
public offering of its stock. The Plan must be approved by the stockholders of
the Company within 12 months after the date on which the Plan is adopted.
Sec. 1.02 Internal Revenue Code Considerations. The Plan is
intended to constitute an "employee stock purchase plan" within the meaning of
section 423 of the Internal Revenue Code of 1986, as amended.
Sec. 1.03 ERISA Considerations. The Plan is not intended and
shall not be construed as constituting an "employee benefit plan," within the
meaning of section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended.
ARTICLE II
Definitions
Sec. 2.01 "Board of Directors" means the Board of Directors
of the Company.
Sec. 2.02 "Code" means the Internal Revenue Code of 1986, as
amended. References to specific sections of the Code shall be taken to be
references to corresponding sections of any successor statute.
Sec. 2.03 "Committee" means the committee appointed by the
Board of Directors to administer the Plan, as provided in Section 6.03.
Sec. 2.04 "Company" means Esperion Therapeutics, Inc., or any
successor by merger or otherwise.
Sec. 2.05 "Compensation" means a Participant's base wages and
overtime pay, before giving effect to any compensation reductions made in
connection with plans described in section 401(k) or 125 of the Code.
Sec. 2.06 "Effective Date" shall mean the date on which the
underwriting agreement between the Company and the principal underwriters for
the Company's Public Offering is executed.
Sec. 2.07 "Election Date" means 15 days before the Effective
Date and 15 days before each subsequent October 1, January 1, April 1 and July 1
thereafter, or such other dates
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as the Committee shall specify. The first Election Date for the Plan shall be 15
days before the Effective Date.
Sec. 2.08 "Eligible Employee" means each employee of the
Employer:
(i) Who is employed by the Employer as an employee (and not
as an independent contractor),
(ii) Whose customary employment is for more than 20 hours
per week and for more than five months per year, and
(iii) Who is not deemed for purposes of section 423(b)(3) of
the Code to own stock possessing five percent or more of the total
combined voting power or value of all classes of stock of the Company
or any subsidiary.
Sec. 2.09 "Employer" means the Company and each Subsidiary.
Sec. 2.10 "Exchange Act" means the Securities Exchange Act of
1934, as amended, and as the same may hereafter be amended.
Sec. 2.11 "Market Value" means the last price for the Stock
as reported on the principal market on which the Stock is traded for the date of
reference. If there was no such price reported for the date of reference,
"Market Value" means the last reported price for the Stock on the day next
preceding the date of reference for which such price was reported or, if there
was no such reported price, the fair market value as determined by the
Committee.
Sec. 2.12 "Participant" means each Eligible Employee who
elects to participate in the Plan.
Sec. 2.13 "Participation Form" means the instrument
prescribed by the Committee pursuant to which an Eligible Employee may enroll as
a Participant and subscribe for the purchase of shares of Stock on the terms and
conditions offered by the Company. The Participation Form is intended to
evidence the Company's offer of an option to the Eligible Employee to purchase
Stock on the terms and conditions set forth therein and herein.
Sec. 2.14 "Plan" means the Esperion Therapeutics, Inc.
Employee Stock Purchase Plan, as set forth herein and as hereafter amended.
Sec. 2.15 "Plan Year" means each calendar year during which
the Plan is in effect.
Sec. 2.16 "Public Offering" means the effective date of the
initial registration of the Company's Stock under Section 12(g) of the Exchange
Act.
Sec. 2.17 "Purchase Date" means the last day of each Purchase
Period.
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Sec. 2.18 "Purchase Period" means each three-month period or
other period specified by the Committee, beginning on or after the Effective
Date, during which the Participant's Stock purchase is funded through payroll
deduction accumulations. The initial Purchase Period shall begin on the
Effective Date and end on September 30, 2000.
Sec. 2.19 "Purchase Price" means the purchase price for
shares of Stock purchased under the Plan, determined as set forth in Section
4.03.
Sec. 2.20 "Stock" means the common stock of the Company.
Sec. 2.21 "Subsidiary" means any present or future
corporation which (i) constitutes a "subsidiary corporation" of the Company as
that term is defined in section 424 of the Code and (ii) is designated as a
participating entity in the Plan by the Committee. Unless the Committee
specifically designates otherwise, a Canadian or other foreign subsidiary shall
not be considered a Subsidiary for purposes of the Plan, and employees of such a
subsidiary shall not be Eligible Employees.
ARTICLE III
Admission to Participation
Sec. 3.01 Initial Participation. An Eligible Employee may
elect to participate in the Plan and may become a Participant effective as of
any Election Date, by executing and filing with the Committee a Participation
Form at such time in advance of the Election Date as the Committee shall
prescribe. The Participation Form shall remain in effect until it is modified
through discontinuance of participation under Section 3.02 or a change under
Section 4.05.
Sec. 3.02 Discontinuance of Participation. A Participant may
voluntarily cease his or her participation in the Plan and stop payroll
deductions at any time by filing a withdrawal form at such time in advance of
the effective date as the Committee shall prescribe. If a Participant ceases
participation in the Plan, the Participant may request payment of any funds held
in his or her account under the Plan, and the Participant may not again elect to
participate in the Plan until the next Election Date. Notwithstanding anything
in the Plan to the contrary, if a Participant ceases to be an Eligible Employee,
his or her participation automatically shall cease, no further purchase of Stock
shall be made for the Participant, and the Participant may request payment of
any funds held in his or her account under the Plan.
Sec. 3.03 Readmission to Participation. Any Eligible Employee
who has previously been a Participant, who has discontinued participation
(whether by cessation of eligibility or otherwise), and who wishes to be
reinstated as a Participant may again become a Participant by executing and
filing with the Committee a new Participation Form. Reinstatement to Participant
status shall be effective as of any Election Date, provided the
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Participant files a new Participation Form with the Committee at such time in
advance of the Election Date as the Committee shall prescribe.
ARTICLE IV
Stock Purchase and Resale
Sec. 4.01 Reservation of Shares. There shall be 500,000
shares of Stock reserved for issuance or transfer under the Plan, subject to
adjustment in accordance with Section 5.02. Except as provided in Section 5.02,
the aggregate number of shares of Stock that may be purchased under the Plan
shall not exceed the number of shares of Stock reserved under the Plan.
Sec. 4.02 Limitation on Shares Available.
(a) The maximum number of shares of Stock that
may be purchased for each Participant on a Purchase Date is the lesser of (a)
the number of whole and fractional shares of Stock that can be purchased by
applying the full balance of the Participant's withheld funds to the purchase of
shares of Stock at the Purchase Price, or (b) the Participant's proportionate
part of the maximum number of shares of Stock available under the Plan, as
stated in Section 4.01.
(b) Moreover, the maximum number of shares that
a Participant may purchase during a Purchase Period is 250,000 shares (subject
to the limits of Section 4.02(d) and subject to adjustment as described in
Section 5.02).
(c) Notwithstanding the foregoing, if any person
entitled to purchase shares pursuant to any offering under the Plan would be
deemed for purposes of section 423(b)(3) of the Code to own stock (including any
number of shares of Stock that such person would be entitled to purchase under
the Plan) possessing five percent or more of the total combined voting power or
value of all classes of stock of Company, the maximum number of shares of Stock
that such person shall be entitled to purchase pursuant to the Plan shall be
reduced to that number which, when added to the number of shares of stock that
such person is deemed to own (excluding any number of shares of Stock that such
person would be entitled to purchase under the Plan), is one less than such five
percent. Any amounts withheld from a Participant's compensation that cannot be
applied to the purchase of Stock by reason of the foregoing limitation shall be
returned to the Participant as soon as practicable.
(d) A Participant may not purchase shares of
Stock having an aggregate Market Value of more than $25,000, determined at the
beginning of each Purchase Period, for any calendar year in which one or more
offerings under this Plan are outstanding at any time, and a Participant may not
purchase a share of Stock under any offering after the expiration of the
Purchase Period for the offering.
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Sec. 4.03 Purchase Price of Shares. Before the beginning of
each Purchase Period, the Committee shall establish the method for determining
the Purchase Price per share of the Stock to be sold to Participants for the
Purchase Period. The Purchase Price per share of Stock to be sold to
Participants for the initial Purchase Period beginning on the Effective Date
shall be the lower of (i) the Market Value per share on the Effective Date or
(ii) 85% of the Market Value per share on the Purchase Date. For subsequent
Purchase Periods, unless the Board of Directors determines otherwise, the
Purchase Price per share shall be the lower of (i) 85% of the Market Value of
such share on the first day of the Purchase Period or (ii) 85% of the Market
Value of such share on the Purchase Date. The Board of Directors may determine
that the Purchase Price shall be the Market Value, or a percentage of the Market
Value, on either of such dates or the lower of such dates, so long as the
percentage shall not be lower than 85% of such Market Value.
Sec. 4.04 Exercise of Purchase Privilege.
(a) As of the first day of each Purchase Period,
each Participant shall be granted an option to purchase shares of Stock at the
Purchase Price specified in Section 4.03. The option shall continue in effect
through the Purchase Date for the Purchase Period. Subject to the provisions of
Section 4.02 above and Section 4.04(c), on each Purchase Date, the Participant
shall automatically be deemed to have exercised his or her option to purchase
shares of Stock, unless he or she notifies the Committee, in such manner and at
such time in advance of the Purchase Date as the Committee shall prescribe, of
his or her desire not to make such purchase.
(b) Subject to the provisions of Section 4.02,
there shall be purchased for the Participant on each Purchase Date, at the
Purchase Price for the Purchase Period, the largest number of whole shares of
Stock as can be purchased with the amounts withheld from the Participant's
Compensation during the Purchase Period. Each such purchase shall be deemed to
have occurred on the Purchase Date occurring at the close of the Purchase Period
for which the purchase was made. Any amounts that are withheld from a
Participant's Compensation in a Purchase Period and that remain after the
purchase of whole shares of Stock on a Purchase Date will be held in the
Participant's account and applied on the Participant's behalf to purchase Stock
on the next Purchase Date.
Sec. 4.05 Payroll Deductions. Each Participant shall
authorize payroll deductions from his or her Compensation for the purpose of
funding the purchase of Stock pursuant to his or her Participation Form. In the
Participation Form, each Participant shall authorize an after-tax payroll
deduction from each payment of Compensation during the Purchase Period of an
amount not less than $25 per paycheck and not more than 15% of such
Participant's Compensation. A Participant may change the deduction to any
permissible level effective as of any Election Date. A change shall be made by
filing with the Committee a notice in such form and at such time in advance of
the Election Date on which the change is to be effective as the Committee shall
prescribe.
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Sec. 4.06 Payment for Stock. The Purchase Price for all
shares of Stock purchased by a Participant under the Plan shall be paid out of
the Participant's authorized payroll deductions. All funds received or held by
the Company under the Plan are general assets of the Company, shall be held free
of any trust or other restriction, and may be used for any corporate purpose.
Sec. 4.07 Share Ownership; Issuance of Certificates.
(a) The shares of Stock purchased by a Participant
on a Purchase Date shall, for all purposes, be deemed to have been issued or
sold at the close of business on the Purchase Date. Prior to that time, none of
the rights or privileges of a stockholder of the Company shall inure to the
Participant with respect to such shares of Stock. All the shares of Stock
purchased under the Plan shall be delivered by the Company in a manner as
determined by the Committee.
(b) The Committee, in its sole discretion, may
determine that shares of Stock shall be delivered by (i) issuing and delivering
to the Participant a certificate for the number of shares of Stock purchased by
the Participant, (ii) issuing and delivering certificates for the number of
shares of Stock purchased to a firm which is a member of the National
Association of Securities Dealers, as selected by the Committee from time to
time, which shares shall be maintained by such firm in a separate brokerage
account for each Participant, or (iii) issuing and delivering certificates for
the number of shares of Stock purchased by Participants to a bank or trust
company or affiliate thereof, as selected by the Committee from time to time,
which shares may be held by such bank or trust company or affiliate in street
name, but with a separate account maintained by such entity for each Participant
reflecting such Participant's share interests in the Stock. Each certificate or
account, as the case may be, may be in the name of the Participant or, if he or
she so designates on the Participant's Participation Form, in the Participant's
name jointly with the Participant's spouse, with right of survivorship, or in
such other form as the Committee may permit.
(c) The Committee, in its sole discretion, may
impose such restrictions or limitations as it shall determine on the resale of
Stock, the issuance of individual stock certificates or the withdrawal from any
stockholder accounts established for a Participant.
(d) If, under Section 4.07(b), certificates for
Stock are held for the benefit of the Participant, any dividends payable with
respect to shares of Stock credited to a stockholder account of a Participant
will, at the Participant's election, either be (i) reinvested in shares of Stock
and credited to the Participant's account (with fractional shares credited in
cash) or (ii) paid directly to the Participant. If dividends are reinvested in
shares of Stock, such reinvestment shall be made based on the Market Value of
the Stock at the date of the reinvestment, with no discount from Market Value.
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Sec. 4.08 Distribution of Shares or Resale of Stock.
(a) A Participant may request a distribution of
shares of Stock purchased for the Participant under the Plan or order the sale
of such shares at any time by making a request in such form and at such time as
the Committee shall prescribe.
(b) If a Participant terminates his or her
employment with the Employer or otherwise ceases to be an Eligible Employee, the
Participant shall receive a distribution of his or her shares of Stock held in
any stockholder account established pursuant to Section 4.07(b), unless the
Participant elects to have the shares of Stock sold in accordance with such
procedures as the Committee shall prescribe.
(c) If a Participant is to receive a distribution
of shares of Stock, or if shares are to be sold, the distribution or sale shall
be made in whole shares of Stock, with fractional shares paid in cash. Any
brokerage commissions resulting from a sale of Stock shall be deducted from
amounts payable to the Participant.
ARTICLE V
Special Adjustments
Sec. 5.01 Shares Unavailable. If, on any Purchase Date, the
aggregate funds available for the purchase of Stock would purchase a number of
shares in excess of the number of shares of Stock then available for purchase
under the Plan, the following events shall occur:
(a) The number of shares of Stock that would
otherwise be purchased by each Participant shall be proportionately reduced on
the Purchase Date in order to eliminate such excess; and
(b) The Plan shall automatically terminate
immediately after the Purchase Date as of which the supply of available shares
is exhausted.
Sec. 5.02 Anti-Dilution Provisions. The aggregate number of
shares of Stock reserved for purchase under the Plan, as provided in Section
4.01, the maximum number of shares that may be purchased by a Participant as
provided in Section 4.02(b), and the calculation of the Purchase Price per share
may be appropriately adjusted by the Committee to reflect any increase or
decrease in the number of issued shares of Stock resulting from a subdivision or
consolidation of shares or other capital adjustment, or the payment of a stock
dividend, or other increase or decrease in such shares, if effected without
receipt of consideration by the Company.
Sec. 5.03 Effect of Certain Transactions. Subject to any
required action by the stockholders, if the Company shall be the surviving
corporation in any merger or consolidation, any offering hereunder shall pertain
to and apply to the shares of stock of the
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Company. However, in the event of a dissolution or liquidation of the Company,
or of a merger or consolidation in which the Company is not the surviving
corporation, the Plan and any offering hereunder shall terminate upon the
effective date of such dissolution, liquidation, merger or consolidation, unless
the Board determines otherwise, and the balance of any amounts withheld from a
Participant's Compensation which have not by such time been applied to the
purchase of Stock shall be returned to the Participant.
ARTICLE VI
Miscellaneous.
Sec. 6.01 Non-Alienation. Except as set forth below, the
right to purchase shares of Stock under the Plan is personal to the Participant,
is exercisable only by the Participant during the Participant's lifetime and may
not be assigned or otherwise transferred by the Participant. If a Participant
dies, unless the executor, administrator or other personal representative of the
deceased Participant directs otherwise, any amounts previously withheld from the
Participant's Compensation during the Purchase Period in which the Participant
dies shall be used to purchase Stock on the Purchase Date for the Purchase
Period. After that Purchase Date, there shall be delivered to the executor,
administrator or other personal representative of the deceased Participant all
shares of Stock and such residual amounts as may remain to the Participant's
credit under the Plan.
Sec. 6.02 Administrative Costs. The Company shall pay the
administrative expenses associated with the operation of the Plan (other than
brokerage commissions resulting from sales of Stock directed by Participants).
Sec. 6.03 Committee. The Board of Directors shall appoint a
Committee, which shall have the authority and power to administer the Plan and
to make, adopt, construe, and enforce rules and regulations not inconsistent
with the provisions of the Plan. The Committee shall adopt and prescribe the
contents of all forms required in connection with the administration of the
Plan, including, but not limited to, the Participation Form, payroll withholding
authorizations, requests for distribution of shares, and all other notices
required hereunder. The Committee shall have the fullest discretion permissible
under law in the discharge of its duties. The Committee's interpretations and
decisions with respect to the Plan shall be final and conclusive.
Sec. 6.04 Withholding of Taxes. All acquisitions and sales of
Stock under the Plan shall be subject to applicable federal (including FICA),
state and local tax withholding requirements if the Internal Revenue Service or
other taxing authority requires such withholding. The Company may require that
Participants pay to the Company (or make other arrangements satisfactory to the
Company for the payment of) the amount of any federal, state or local taxes that
the Company is required to withhold with respect to the purchase of Stock or the
sale of Stock acquired under the Plan, or the Company may deduct from the
Participant's wages or other compensation the amount of any withholding taxes
dues with respect to the purchase of Stock or the sale of Stock acquired under
the Plan.
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Sec. 6.05 Amendment of the Plan. The Board of Directors may,
at any time and from time to time, amend the Plan in any respect, except that
any amendment that is required to be approved by the stockholders under Section
423 of the Code shall be submitted to the stockholders of the Company for
approval.
Sec. 6.06 Expiration and Termination of the Plan. The Plan
shall continue in effect for ten years from the Effective Date, unless
terminated prior to that date pursuant to the provisions of the Plan or pursuant
to action by the Board of Directors. The Board of Directors shall have the right
to terminate the Plan at any time without prior notice to any Participant and
without liability to any Participant. Upon the expiration or termination of the
Plan, the balance, if any, then standing to the credit of each Participant from
amounts withheld from the Participant's Compensation which has not, by such
time, been applied to the purchase of Stock shall be refunded to the
Participant.
Sec. 6.07 Repurchase of Stock. The Company shall not be
required to purchase or repurchase from any Participant any of the shares of
Stock that the Participant acquires under the Plan.
Sec. 6.08 Notice. A Participation Form and any notice that a
Participant files pursuant to the Plan shall be on the form prescribed by the
Committee and shall be effective only when received by the Committee. Delivery
of such forms may be made by hand or by certified mail, sent postage prepaid, to
the Company's corporate headquarters, or such other address as the Committee may
designate. Delivery by any other mechanism shall be deemed effective at the
option and discretion of the Committee.
Sec. 6.09 Government Regulation. The Company's obligation to
sell and to deliver the Stock under the Plan is at all times subject to all
approvals of any governmental authority required in connection with the
authorization, issuance, sale or delivery of such Stock.
Sec. 6.10 Headings, Captions, Gender. The headings and
captions herein are for convenience of reference only and shall not be
considered as part of the text. The masculine shall include the feminine, and
vice versa.
Sec. 6.11 Severability of Provisions, Prevailing Law. The
provisions of the Plan shall be deemed severable. In the event any such
provision is determined to be unlawful or unenforceable by a court of competent
jurisdiction or by reason of a change in an applicable statute, the Plan shall
continue to exist as though such provision had never been included therein (or,
in the case of a change in an applicable statute, had been deleted as of the
date of such change). The Plan shall be governed by the laws of the State of
Delaware to the extent such laws are not in conflict with, or superseded by,
federal law.
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