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Exhibit 10.1 EPICEPT CORPORATION
2009 Employee Stock Purchase Plan The Company wishes to
attract employees to the Company, its Subsidiaries and Affiliates
and to induce employees to remain with the Company, its
Subsidiaries and Affiliates, and to encourage them to increase
their efforts to make the Company’s business more successful,
whether directly or through its Subsidiaries and Affiliates. In
furtherance thereof, the Plan is designed to provide equity-based
incentives to the Eligible Employees of the Company, its
Subsidiaries and Affiliates. The Plan is intended to comply with
the provisions of Section 423 of the Code and shall be
administered, interpreted and construed accordingly, although the
Company makes no undertaking or representation to maintain such
qualification. 1. Definitions. When used herein, the
following terms shall have the respective meanings set forth below:
"Affiliate" means any entity, other than a Subsidiary, in
which the Company has an equity or other ownership interest.
"Board of Directors" means the Board of Directors of the
Company. " Broker " shall have the meaning as set forth in
the second paragraph of Section 2 herein. "Code" means
the Internal Revenue Code of 1986, as amended. "Committee"
means the committee appointed by the Board of Directors of the
Company under Section 3 hereof. "Common Stock" means
the Common Stock, par value $0.0001 per share, of the Company.
"Company" means EpiCept Corporation, a Delaware corporation.
"Designated Companies" shall mean the Company and any
Subsidiary or Affiliate which has been designated by the Board of
Directors from time to time in its sole discretion as eligible to
participate in the Plan. "Effective Date" means
January 1, 2009.
"Eligible Compensation" for any pay period means, unless
otherwise determined by the Committee, the amount of base salary
for such period. Eligible Compensation does not include, without
limitation, any payments for reimbursement of expenses, bonuses,
incentive compensation, overtime, deferred compensation, and other
non-cash or non-basic payments, unless otherwise determined by the
Committee. "Eligible Employee" means an employee eligible to
participate in the Plan pursuant to the provisions of
Section 4. "Enrollment Period" means such period
preceding an Offer Period as is specified by the Committee with
respect to such Offer Period. "Exchange Act" means the
Securities Exchange Act of 1934, as amended. "Fair Market
Value" per Share as of a particular date means (i) if
Shares are then listed on a national stock exchange, the closing
price per Share on the exchange for the last preceding date on
which there was a sale of Shares on such exchange, as determined by
the Committee, (ii) if Shares are not then listed on a
national stock exchange but are then traded on an over-the-counter
market, the average of the closing bid and asked prices for such
Shares in such over-the-counter market for the last preceding date
on which there was a sale of such Shares in such market, as
determined by the Committee, or (iii) if Shares are not then
listed on a national exchange or traded on an over-the-counter
market, such value as the Committee in its discretion may in good
faith determine; provided that, where such shares are so listed or
traded, the Committee may make discretionary determinations where
the shares have not been traded for 10 trading days. "Offer
Date" means the first day of an Offer Period. "Offer
Period" means the period of time for which the Company will
offer Shares for purchase under the Plan. The Offer Period shall be
for successive six-month periods, beginning on January 1 and July 1
of each calendar year or on such other date as the Committee may
determine in its absolute discretion; provided that the first Offer
Date shall be the Effective Date and the second Offer Period shall
commence on the immediately next following January 1 or July 1. The
Company may make additional Offer Periods for different periods,
provided that no Offer Period shall extend for more than
27 months. "Participating Employee" means an employee
(i) for whom payroll deductions are currently being made or
who otherwise contributes to the Plan, or (ii) for whom
payroll deductions are not currently being made or who does not
otherwise contribute to the Plan because he or she has reached the
limitation set forth in the first sentence of Section 6.
"Payroll Account" means an account maintained by the
Committee with respect to each Participating Employee as
contemplated by Section 5. No interest or other earnings shall
be credited to any contributions under the Plan.
2
"Plan" means this EpiCept Corporation 2009 Employee Stock
Purchase Plan, as it may from time to time be amended. "Plan
Year" means the fiscal year of the Company. "Purchase
Date" means the last day of an Offer Period, except as provided
in Section 15. "Shares" means shares of Common Stock.
"Stock Account" means a brokerage account as contemplated by
Section 8. "Subsidiary" means any corporation that is a
"subsidiary corporation" with respect to the Company under Section
424(f) of the Code. 2. Shares Reserved for the Plan. There
shall be reserved for issuance and purchase by employees under the
Plan an aggregate of 1,000,000 Shares, subject to adjustment as
provided in Section 12. All such Shares may be granted under
the Code Section 423(b). Shares subject to the Plan may be
Shares now or hereafter authorized but unissued, or Shares that
were once issued and subsequently reacquired by the Company. If and
to the extent that any right to purchase reserved Shares shall not
be exercised by any employee for any reason or if such right to
purchase shall terminate as provided herein, Shares that have not
been so purchased hereunder shall again become available for the
purposes of the Plan unless the Plan shall have been terminated,
but such unpurchased Shares shall not be deemed to increase the
aggregate number of Shares specified above to be reserved for
purposes of the Plan (subject to adjustment as provided in
Section 12). The Committee shall select a broker (the "
Broker ") which shall hold and act as custodian of Shares
purchased pursuant to the Plan. Absent instructions to the contrary
from a Participating Employee, certificates for Shares purchased
will not be issued by the Broker to a participant. 3.
Administration of the Plan. The Plan shall be administered by
the Committee, which shall consist of such members as determined by
the Company. The Board of Directors shall consider the rules of
Rule 16b-3 promulgated under the Exchange Act in connection
with any such appointment, if and to the extent that such
appointments may have an effect thereunder. Each member of the
Committee shall serve at the pleasure of the Board of Directors.
The acts of a majority of the members present at any meeting of the
Committee at which a quorum is present, or acts approved in writing
by a majority of the entire Committee, shall be the acts of the
Committee for purposes of the Plan. To the extent applicable, no
member of the Committee may act as to matters under the Plan
specifically relating to such member.
3
Notwithstanding the foregoing, the Board of Directors may
designate the Compensation Committee of the Board of Directors to
act as the Committee hereunder. The Committee may make such rules
and regulations and establish such procedures and sub-plans for the
operation and administration of the Plan as it deems appropriate,
including relating to the operation and administration of the Plan
to accommodate the specific requirements of local laws and
procedures for jurisdictions outside of the United States. The
Committee shall have authority to interpret the Plan, with such
interpretations to be conclusive and binding on all persons and
otherwise accorded the maximum deference permitted by law and shall
take any other actions and make any other determinations or
decisions that it deems necessary or appropriate in connection with
the Plan or the administration or interpretation thereof. The
Company shall pay brokerage commissions, fees and other charges, if
any, incurred for purchases of Shares with payroll deductions made
under the Plan. All brokerage commissions, fees or other charges in
connection with any sale or other transfer of the Shares shall be
paid by the respective Participating Employee. In addition, any
charges by the Broker in connection with the respective
Participating Employee’s request to have certificates
representing Shares registered in such Participating
Employee’s name shall be paid by such Participating Employee.
Upon termination of employment of a Participating Employee or the
withdrawal of a Participating Employee from the Plan for any other
reason, all commissions, fees and other charges thereafter relating
to such Participating Employee’s Payroll Account will be such
Participating Employee’s responsibility. 4. Eligible
Employees. Except as described below, all employees of the
Company and its Designated Companies shall be eligible to
participate in the Plan, provided that each of such employees does
not own, for purposes of Section 423 of the Code, immediately
after the right is granted, stock possessing 5% or more of the
total combined voting power or value of all classes of capital
stock of the Company or of a Subsidiary. To the extent permitted
under local law, the Committee may also exclude from participation
in the Plan any or all of (i) a group of highly compensated
employees designated by the Committee as being ineligible to
participate in the Plan as permitted by Section 423(b)(4)(D)
of the Code, (ii) employees who have been employed by the Company
or any Subsidiary for less than two years, (iii) employees whose
customary employment is for not more than five months in any
calendar year, and (iv) employees who customarily work 20
hours per week or less. An employee of a Subsidiary or an Affiliate
which ceases to be a "Subsidiary" or an "Affiliate" as defined
herein shall, automatically and without any further action, be
deemed to have been terminated and such employee shall cease to be
an Eligible Employee hereunder.
4
5. Election to Participate and Payroll
Deductions/Contributions. Each Eligible Employee may elect to
participate in the Plan during the Enrollment Period immediately
prior to the beginning of each Offer Period during a Plan Year.
Each Eligible Employee may elect an after-tax payroll deduction
subject to such minimum and maximum limits, expressed in dollars or
as a percentage of wages, as the Committee may impose. Elections
under this Section 5 are subject to the limits set forth in
Section 6. All payroll deductions shall be credited, as
promptly as practicable, to a Payroll Account in the name of the
Participating Employee. The Committee, in its discretion, may
decide that an Eligible Employee may contribute to the Plan by
means other than payroll deductions. All funds held by the Company
under the Plan shall not be segregated from other corporate funds
(except that the Company may in its discretion establish separate
bank or investment accounts in its own name) and may be used by the
Company for any corporate purpose, unless otherwise required by
local law. An Eligible Employee may reduce, but not increase his or
her rate of payroll deduction during an Offer Period by written
notice to the Committee in such form and manner as it requires.
Such reduction shall be effective as of the first pay period
thereafter by which the Company is able to process the change. Each
Eligible Employee may cancel his or her election to participate in
the Plan by signing and delivering written notice to the Committee,
on a form specified for such purpose by the Committee, at such
times as may be established by the Committee, up to one time per
Offer Period. In such case, the entire balance in the Payroll
Account of such Eligible Employee shall be repaid to such Eligible
Employee as promptly as practicable in accordance with
Section 9. A Participating Employee’s voluntary
withdrawal during an Offer Period shall have no effect upon such
Participating Employee’s eligibility to participate during
any other Offer Period under the Plan, but such Participating
Employee shall be required to deliver a new enrollment form in
order to participate during a subsequent Offer Period. Subject to
the preceding paragraph of this Section 5, if so provided by
the Committee, an Eligible Employee who is a Participating Employee
immediately prior to the beginning of an Offer Period will be
deemed (i) to have elected to participate for such Offer
Period and (ii) to
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