Exhibit 4.1
WATERS CORPORATION
2009 EMPLOYEE STOCK PURCHASE PLAN
WATERS CORPORATION
2009 Employee Stock Purchase Plan
1. Purpose and History
The purpose of this Plan is to give Employees wishing to do so a convenient means of
purchasing Common Stock of the Company through payroll deductions. The Company believes that
ownership of Common Stock by Employees will foster greater Employee interest in the Company’s
growth and development.
This Plan was adopted by the Board on February 27, 2009. It is the Company’s intention that
the Plan qualify as an “employee stock purchase plan” under Section 423 of the Code. The
provisions of the Plan shall, accordingly, be construed in a manner consistent with the
requirements of that Code section.
2. Definitions
As used in this Plan, the following terms shall have the following meanings:
2.1.
Board
means the Company’s Board of Directors.
2.2.
Code
means the Internal Revenue Code of 1986, as amended from time to time, or
any successor statute thereto, and any regulations issued from time to time thereunder.
2.3.
Committee
means the Compensation Committee of the Board or such other committee
delegated responsibility by the Board for the administration of the Plan, as provided in Section 5
of the Plan. For any period during which no such committee is in existence “Committee” shall mean
the Board and all authority and responsibility assigned to the Committee under the Plan shall be
exercised, if at all, by the Board.
2.4.
Common
Stock
or
Stock
means the common stock, par value $.01 per share, of the
Company.
2.5.
Company
means Waters Corporation, a corporation organized under the laws of the
State of Delaware.
2.6.
Compensation
means an Employee’s regular earnings plus commissions, lump sum cash
payments of merit pay increases, overtime, short-term disability pay, unused vacation pay, and
certain management-approved incentive bonuses.
2.7.
Continuous
Status
as
an
Employee means
the absence of any interruption or termination of
service as an Employee. Continuous Status as an Employee shall not be considered interrupted in the
case of (i) sick leave; (ii) military leave; (iii) any other leave of absence approved by the Plan
administrator, provided that such leave is for a period of not more than three (3) months, unless
reemployment upon the expiration of such leave is guaranteed by contract or statute, or unless
provided otherwise pursuant to Company policy adopted from time to time; or (iv) transfers between
locations of the Company or between the Company and a Covered Entity.
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2.8.
Contributions
means all amounts credited to the account of a Participating
Employee pursuant to the Plan.
2.9.
Corporate Transaction
means (1) any merger or consolidation of the Company with or into
another entity as a result of which the Stock of the Company is converted into or exchanged for the
right to receive cash, securities or other property or is cancelled, (2) any sale or exchange of
all of the Stock of the Company for cash, securities or other property, (3) any sale, transfer, or
other disposition of all or substantially all of the Company’s assets to one or more other persons
in a single transaction or series of related transactions or (4) any liquidation or dissolution of
the Company.
2.10.
Covered Entity
means any Subsidiary that may adopt the Plan from time to time in
accordance with the procedures set forth in Section 14 hereof with the Company’s consent.
2.11.
Effective
Date
means February 27, 2009.
2.12.
Employee
means an employee of the Company or a Covered Entity who is customarily
employed for at least twenty (20) hours per week and more than five (5) months in a calendar year.
2.13.
Exchange
Act
means the Securities Exchange Act of 1934, as amended.
2.14.
Fair
Market
Value
has the meaning set forth in Section 6.4(c), below.
2.15.
New
Plan
Period
Termination
Date
has the meaning set forth in Section 12.4, below.
2.16.
Participating
Employee
means an Employee who elects to participate in
the Plan pursuant to Section 6.2, below.
2.17.
Payroll
Deduction
means a payroll deduction specified by a Participating Employee to be
made from each paycheck during the Plan Period for the purchase of Shares under this Plan.
2.18.
Plan
means this Waters Corporation 2009 Employee Stock Purchase Plan.
2.19.
Plan
Period
Commencement
Date
means the first day of each Plan Period.
2.20.
Plan
Period
Termination
Date
means the last day of each Plan Period.
2.21.
Plan
Period
means each period described in Section 6.1, at the end of which each
Participating Employee shall purchase Shares.
2.22.
Purchase
Price
means with respect to a Plan Period an amount equal to (a) ninety percent
(90%) of the Fair Market Value (as defined in Section 6.4(c) below) of a Share on the Plan Period
Commencement Date or (b) the Fair Market Value of a Share on the Plan Period Termination Date,
whichever is lower;
provided, however
, that if (i) there is an increase in the number of Shares
available for issuance under the Plan as a result of a stockholder-approved amendment to the Plan,
(ii) all or a portion of such additional Shares are to be issued with respect to the Plan Period
underway at the time of such increase (“Additional Shares”), and (iii) the Fair Market Value of a
Share of Common Stock on the date of such increase (the “Approval Date Fair
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Market Value”) is higher than the Fair Market Value described in clause (a) above, then in
such instance the Purchase Price with respect to Additional Shares shall be (x) ninety percent
(90%) of the Approval Date Fair Market Value or (b) the Fair Market Value of a Share on the Plan
Period Termination Date, whichever is lower.
2.23.
Share
means a share of Common Stock, as adjusted in accordance with Section 12
of the Plan.
2.24.
Subsidiary
means a corporation, in an unbroken chain of corporations beginning
with the Company if, at the time of the granting of the option, each of the corporations other than
the last corporation in the unbroken chain owns stock possessing fifty percent (50%) or more of the
total combined voting power of all classes of stock in one of the other corporations in such chain.
3. Shares Reserved For The Plan
Subject to adjustment as provided in Section 12 hereof, the number of Shares reserved for
issuance hereunder shall be eight hundred eighty six thousand four hundred fifty six (886,456)
which is the sum of: (i) seven hundred fifty thousand (750,000), plus (ii) the number of shares
reserved for issuance pursuant to the Company’s 1996 Employee Stock Purchase Plan but not issued
thereunder as of January 1, 2009. For purposes of applying the foregoing limitation, if any option
expires, terminates or is cancelled for any reason without having been exercised in full, the
Shares not purchased or received by the Employee shall again be available for options to be granted
under the Plan. Shares issued pursuant to the Plan may be either authorized but unissued shares or
shares held by the Company in its treasury.
4. Administration
The Plan shall be administered by the Committee,
provided, however
, that at any time and on
any one or more occasions the Board may itself exercise any of the powers and responsibilities
assigned the Committee under the Plan and when so acting shall have the benefit of all of the
provisions of the Plan pertaining to the Committee’s exercise of its authorities hereunder; and
provided, further
, that the Committee may delegate its duties in order to facilitate the purchase
and transfer of Shares and to provide for the day-to-day administration of the Plan with all powers
necessary to enable the delegate to carry out its duties in that respect. Subject to the
provisions of the Plan, the Committee shall have complete authority, in its discretion, to make or
to select the manner of making all determinations with respect to each option to be granted by the
Company under the Plan. In making such determinations, the Committee may take into account such
factors as the Committee in its discretion shall deem relevant. Subject to the provisions of the
Plan, the Committee shall also have complete authority to interpret the Plan, to prescribe, amend
and rescind rules and regulations relating to it and to make all other determinations necessary or
advisable for the administration of the Plan. The Committee’s determinations made in good faith on
matters referred to in the Plan shall be final, binding and conclusive on all persons having or
claiming any interest under the Plan or an option granted pursuant to hereto.
5. Eligibility for Awards
Subject to the requirements of Section 6.2 and the limitations imposed by Section 423(b) of
the Code, any Employee shall be eligible to participate in a Plan Period under the Plan as of the
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applicable Plan Period Commencement Date. Notwithstanding any provision of the Plan to the
contrary, no Employee shall be granted an option under the Plan (i) if, immediately after the
grant, such Employee (taking into account stock which would be attributed to such Employee pursuant
to Section 424(d) of the Code) would own capital stock of the Company and/or hold outstanding
options to purchase stock possessing five percent (5%) or more of the total combined voting power
or value of all classes of stock of the Company or of any Subsidiary of the Company, or (ii) if
such option would permit his or her rights to purchase stock under all employee stock purchase
plans (described in Section 423 of the Code) of the Company and its Subsidiaries to accrue at a
rate which exceeds twenty-five thousand dollars ($25,000) of the Fair Market Value of such stock
(determined on the basis of the Fair Market Value of such stock on the date or dates such option
was granted) for each calendar year in which such option is outstanding at any time.
6. Terms of Participation
6.1.
Plan
Periods
. Each calendar year shall be have four Plan Periods, beginning on the first
day of each January, April, July and October for which a closing price for the Company Common Stock
is available, and ending on the last day of the immediately following March, June, September and
December for which a closing price for the Company Common Stock is available, respectively. Each
such period is referred to herein as a “Plan Period.”
6.2.
Election to Participate and Plan Deductions
.
(a) Shares shall be offered for purchase under the Plan through a series of successive,
non-overlapping Plan Periods until such time as (i) the maximum number of Shares available for
issuance under the Plan shall have been purchased or (ii) the Plan shall have been sooner
terminated. At any time and from time to time, the Committee may change the duration and/or the
frequency of Plan Periods or suspend operation of the Plan with respect to Plan Periods not yet
commenced.
(b) An eligible Employee may become a Participating Employee in the Plan by completing an
enrollment agreement on the form provided by the company and filing it with the Company prior to
the Company’s enrollment deadline for the Plan Period in which such Employee desires to
participate, unless a later time for filing the subscription agreement is set by the Committee for
all eligible Employees with respect to a given Plan Period. The enrollment agreement shall set
forth the percentage of the Employee’s Compensation (subject to Section 6.2(c) below) to be paid as
Contributions pursuant to the Plan. Payroll deductions shall commence on the first payroll
following the Plan Period Commencement Date and shall end on the last payroll paid on or prior to
the Plan Period Termination Date, unless sooner terminated by the Participating Employee as
provided in Section 6.7.
(c) A Participating Employee may elect to have payroll deductions taken from each payroll
during any Plan Period in an amount not less than one percent (1%) and not more than fifteen
percent (15%) (or such other percentage as the Committee may establish from time to time before any
Plan Period Commencement Date) of such Participating Employee’s Compensation on each payroll date
during the Plan Period. All payroll deductions made by a Participating Employee shall be credited
to his or her account under the Plan. No interest shall accrue on Contributions to the Plan. A
Participating Employee may not make any additional payments into such account.
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(d) Unless the Committee announces otherwise before the start of a particular Plan Period, an
eligible Employee’s enrollment agreement in effect at the end of one Plan Period will remain in
effect for each subsequent Plan Period.
(e) A Participating Employee may discontinue his or her participation in the Plan as provided
in Section 6.7. In addition, a Participating Employee may, on one occasion only during each Plan
Period, reduce the rate of his or her Contributions to zero percent (0%) with respect to the Plan
Period by completing and filing with the Company a new enrollment agreement authorizing a change in
the payroll deduction rate. Any such change in payroll deduction rate shall be effective as of the
first payroll period following the date of filing of the new enrollment agreement, if the agreement
is filed at least ten (10) business days prior to such period and, if not, as of the second
following payroll period.
(f) Notwithstanding the foregoing, to the extent necessary to comply with Section 423(b)(8) of
the Code and Section 5 herein, a Participating Employee’s Payroll Deductions may be decreased
during any Plan Period to zero percent (0%). Payroll Deductions reduced to zero percent (0%) in
compliance with this Section 6.2(f) shall re-commence automatically at the rate provided in such
Participating Employee’s enrollment agreement at the beginning of the next Plan Period, unless
terminated by the Participating Employee as provided in Section 6.7.
(g) Any amounts left over in a Participating Employee’s account upon expiration or termination
of the Plan (or upon a withdrawal by a Participating Employee or upon a Participating Employee
purchasing the maximum dollar amount or number of shares hereunder) shall be returned to the
Participating Employee.
6.3.
Shares
.
(a) If the Committee determines that, on a given Plan Period Termination Date, the number of
shares with respect to which options are to be exercised may exceed (i) the number of Shares that
were available for sale under the Plan on the Plan Period Commencement Date, or (ii) the number of
shares available for sale under the Plan on such Plan Period Termination Date, then the Company
shall make a pro rata allocation of the Shares available for purchase on such Plan Period
Termination Date in as uniform a matter as shall be practicable and as it shall determine in its
sole discretion to be equitable among all Participating Employees exercising options to purchase
Common Stock on such Plan Period Termination Date. The Company shall make pro rata allocation of
the Shares available on the Plan Period Commencement Date pursuant to the preceding sentence,
notwithstanding any authorization of additional Shares for issuance under the Plan by the Company’s
stockholders subsequent to such Plan Period Commencement Date.
(b) The Participating Employee shall have no interest or voting right in Shares covered by his
or her option until such option has been exercised.
(c) Shares to be delivered to a Participating Employee under the Plan will be registered in
the name of the Participating Employee.
6.4.
Grant of Options
.
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(a) A Participating Employee shall be granted a separate purchase right for each Plan Period
in which he or she participates. The purchase right shall be granted on the Plan Period
Commencement Date for the Plan Period and shall provide the Participating Employee with the right
to purchase Shares upon the terms set forth below.
(b) The number of Shares purchasable by a Participating Employee on each Plan Period
Termination Date during the Plan Period, pursuant to Section 6.5 below, shall be determined by
dividing such Employee’s Contributions accumulated during such Plan Period prior to such Plan
Period Termination Date and retained in the Participating Employee’s account as of the Plan Period
Termination Date by the applicable Purchase Price. However, the maximum number of Shares a
Participating Employee may purchase during each Plan Period shall be five thousand (5,000) Shares,
and provided further that such purchase shall be subject to the limitations set forth in Sections
6.2(c).
(c) The fair market value of the Shares on a given date (the “Fair Market Value”) means the
value of a share of common stock on a particular date determined by such methods or procedures as
may be established by the Committee. Unless otherwise determined by the Committee, the Fair Market
Value of the common stock as of any date, is the closing price for the common stock as reported by
the New York Stock Exchange (or on any other national securities exchange on which the common stock
is then listed) for that date.
6.5.
Exercise
. Unless a Participating Employee withdraws from the Plan as provided in
Section 6.7, each purchase right shall be automatically exercised on each Plan Period Termination
Date, and Shares shall accordingly be purchased on behalf of each Participating Employee on each
such Plan Period Termination Date. The purchase shall be effected by applying the Participating
Employee’s Payroll Deductions for the Plan Period ending on such Plan Period Termination Date to
the purchase of Shares (subject to the limitation on the maximum number of Shares purchasable per
Participating Employee on any one Plan Period Termination Date) at the Purchase Price in effect for
the Participating Employee for that Plan Period Termination Date. The Shares purchased upon
exercise of an option hereunder shall be deemed to be transferred to the Participating Employee on
the Plan Period Termination Date. During his or her lifetime, a Participating Employee’s option to
purchase Shares hereunder is exercisable only by him or her.
6.6.
Delivery
. As promptly as practicable after each Plan Period Termination Date, the
Company shall arrange the delivery to each Participating Employee, as appropriate, of the Shares
purchased upon exercise of his or her option.
6.7.
Voluntary Withdrawal; Termination of Employment
.
(a) A Participating Employee may withdraw all but not less than all of the Contributions
credited to his or her account under the Plan at any time prior to each Plan Period Termination
Date by giving written notice to the Company in accordance with the Company’s policy regarding
withdrawal from the Plan. All of the Participating Employee’s Contributions credited to his or her
account will be paid to him or her promptly after receipt of his or her notice of withdrawal and
his or her option for the current Plan Period will be automatically terminated, and no further
Contributions for the purchase of Shares will be made (or will be permitted to be made) during the
Plan Period.
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(b) Upon termination of the Participating Employee’s Continuous Status as an Employee prior to
a Plan Period Termination Date for any reason, including retirement or death, the Contributions
credited to his or her account will be returned to him or her or, in the case of his or her death,
to the person or persons entitled thereto under Section 8, and his or her option will be
automatically terminated.
(c) In the event a Participating Employee fails to remain in Continuous Status as an Employee
of the Company for at least twenty (20) hours per week during the Plan Period in which the Employee
is a Participating Employee, he or she will be deemed to have elected to withdraw from the Plan and
the Contributions credited to his or her account and remaining there will be returned to him or her
and his or her option terminated.
(d) A Participating Employee’s withdrawal during a Plan Period will not have any effect upon
his or her eligibility to participate in a succeeding Plan Period or in any similar plan which may
hereafter be adopted by the Company.
7. No Special Service Rights
Nothing contained in this Plan shall confer upon any Employee any right with respect to the
continuation of his or her employment with the Company or any Covered Entity or any other entity,
corporation, partnership, limited liability company or business trust controlling, controlled by or
under common control with the Company, or interfere in any way with the right of any such entity,
subject to the terms of any separate employment agreement or provision of law or corporate articles
or by-laws to the contrary, at any time to terminate such employment relationship or to increase or
decrease, or otherwise adjust, the other terms and conditions of the Employee’s employment.
8. Designation of Beneficiary
8.1. A Participating Employee may file a written designation of a beneficiary who is to
receive any Shares and cash, if any, from the Participating Employee’s account under the Plan in
the event of such Participating Employee’s death subsequent to the end of a Plan Period but prior
to delivery to him or her of such Shares and cash. Any such beneficiary shall also be entitled to
receive any cash from the Participating Employee’s account under the Plan in the event of such
Participating Employee’s death during a Plan Period.
8.2. Such designation of beneficiary may be changed by the Participating Employee at any time
by written notice. In the event of the death of a Participating Employee and in the absence of a
beneficiary validly designated under the Plan who is living at the time of such Participating
Employee’s death, the Company shall deliver such Shares and/or cash to the executor or
administrator of the estate of the Participating Employee, or if no such executor or administrator
has been appointed (to the knowledge of the Company), the Company, in its discretion, may deliver
such Shares and/or cash to the spouse or to any one or more dependents or relatives of the
Participating Employee, or if no spouse, dependent or relative is known to the Company, then to
such other person as the Company may designate.
9. Transferability of Options and Shares
Neither Contributions credited to a Participating Employee’s account nor any rights with
regard to the exercise of an option or to receive Shares under the Plan may be assigned,
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transferred, pledged or otherwise disposed of in any way (other than by will, the laws of
descent and distribution, or as provided in Section 8) by the Participating Employee. Any such
attempt at assignment, transfer, pledge or other disposition shall be without effect, except that
the Company may treat such act as an election to withdraw funds in accordance with Section 6.7. In
addition, if the Committee has so announced to Participating Employees at least five (5) days prior
to the scheduled beginning of the next Plan Period, any Shares acquired on the Plan Period
Termination Date of such Plan Period may be subject to restrictions specified by the Committee on
the transfer of such Shares. Any Participating Employee selling or transferring any or all of his
or her Shares purchased pursuant to the Plan must provide written notice of such sale or transfer
to the Company within five (5) business days after the date of sale or transfer. Such notice to the
Company shall include the gross sales price, if any, the Plan Period during which the Shares being
sold were purchased by the Participating Employee, the number of Shares being sold or transferred
and the date of sale or transfer.
10. Use of Funds
All Contributions received or held by the Company under the Plan may be used by the Company
for any corporate purpose, and the Company shall not be obligated to segregate such Contributions
from its other assets.
11. Reports
Individual accounts will be maintained for each Participating Employee in the Plan. Statements
of account will be given to Participating Employees at least annually, which statements will set
forth, with respect to the immediately prior calendar year, the amounts of Contributions, the per
Share Purchase Price, the number of Shares purchased and the remaining cash balance, if any.
12. Adjustments Upon Changes in Capitalization; Corporate Transactions
12.1.
Adjustment
in
General
. All of the share numbers set forth in the Plan reflect the
capital structure of the Company as of the date of the Board’s adoption of this Plan. If
subsequent to that date the outstanding Shares (or any other securities covered by the Plan by
reason of the prior application of this Section) are increased, decreased, or exchanged for a
different number or kind of shares or other securities, or if additional shares or new or different
shares or other securities are distributed with respect to Shares, as a result of a reorganization,
recapitalization, reclassification, stock dividend, stock split, reverse stock split, or other
similar distribution with respect to such shares of Stock, an appropriate and proportionate
adjustment will be made in (i) the maximum numbers and kinds of shares provided in Section 3, (ii)
the numbers and kinds of shares or other securities subject to the then outstanding options, and
(iii) the exercise price for each share or other unit of any other securities subject to then
outstanding options.
12.2.
Adjustment
Upon
the
Occurrence
of
Certain
Unusual
or
Nonrecurring
Events
. In the event
of any corporate action not specifically covered by the preceding Section, including but not
limited to an extraordinary cash distribution on Common Stock, a corporate separation or other
reorganization or liquidation, the Committee may make such adjustment of outstanding options and
their terms, if any, as it, in its sole discretion, may deem equitable and appropriate in the
circumstances. The Committee may make adjustments in the terms and conditions of, and the criteria
included in, options in recognition of unusual or nonrecurring events (including, without
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limitation, the events described in this Section) affecting the Company or the financial
statements of the Company or of changes in applicable laws, regulations, or accounting principles,
whenever the Committee determines that such adjustments are appropriate in order to prevent
dilution or enlargement of the benefits or potential benefits intended to be made available under
the Plan.
12.3.
Related
Matters
. Any adjustment in Awards made pursuant to Section 12.1 or 12.2 shall
be determined and made, if at all, by the Committee, acting in its sole discretion, and shall
include any correlative modification of terms which the Committee may deem necessary or appropriate
so as to ensure the rights of the Participating Employees in their respective options are not
substantially diminished nor enlarged as a result of the adjustment and corporate action other than
as expressly contemplated in this Section 12.
12.4.
Corporate
Transactions
. In the event of a Corporate Transaction that is a dissolution
or liquidation of the Company, the Plan Period then in progress will terminate immediately prior to
the consummation of such action, unless otherwise provided by the Committee. In the event of a
Corporate Transaction, each option outstanding under the Plan shall be assumed or an equivalent
option shall be substituted by the successor corporation or a parent or subsidiary of such
successor corporation. In the event that the successor corporation refuses to assume or substitute
for outstanding options, the Plan Period then in progress shall be shortened and a new Plan Period
Termination Date shall be set (the “New Plan Period Termination Date”), as of which date the Plan
Period then in progress will terminate. The New Plan Period Termination Date shall be on or before
the date of consummation of the transaction and the Committee shall notify each Participating
Employee in writing, at least ten (10) days prior to the New Plan Period Termination Date, that the
Plan Period Termination Date for his or her option has been changed to the New Plan Period
Termination Date and that his or her option will be exercised automatically on the New Plan Period
Termination Date, unless prior to such date he or she has withdrawn from the Plan Period as
provided in Section 6.7. For purposes of this Section 12.4, an option granted under the Plan shall
be deemed to be assumed, without limitation, if, at the time of issuance of the stock or other
consideration upon a Corporate Transaction, each holder of an option under the Plan would be
entitled to receive upon exercise of the option the same number and kind of shares of stock or the
same amount of property, cash or securities as such holder would have been entitled to receive upon
the occurrence of the transaction if the holder had been, immediately prior to the transaction, the
holder of the number of Shares covered by the option at such time (after giving effect to any
adjustments in the number of Shares covered by the option as provided for in this Section 12);
provided however
that if the consideration received in the transaction is not solely common stock
of the successor corporation or its parent (as defined in Section 424(e) of the Code), the
Committee may, with the consent of the successor corporation, provide for the consideration to be
received upon exercise of the option to be solely common stock of the successor corporation or its
parent equal in fair market value to the per Share consideration received by holders of common
stock in the transaction.
13. Settlement of Awards
13.1.
Violation
of
Law
. Notwithstanding any other provision of the Plan to the contrary, if,
at any time, in the reasonable opinion of the Company, the issuance of Shares pursuant to the Plan
may constitute a violation of law, then the Company may delay such issuance of such Shares until
(i) approval shall have been obtained from such governmental agencies, other than the Securities
and Exchange Commission, as may be required under any applicable law, rule, or regulation and (ii)
in the case where such issuance would constitute a
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violation of a law administered by or a regulation of the Securities and Exchange Commission,
one of the following conditions shall have been satisfied:
(a) the Shares are, at the time of the issue of such Shares, effectively registered under the
Securities Act of 1933; or
(b) the Company shall have determined, on such basis as it deems appropriate (including an
opinion of counsel in form and substance satisfactory to the Company) that the sale, transfer,
assignment, pledge, encumbrance or other disposition of such Shares or such beneficial interest, as
the case may be, does not require registration under the Securities Act of 1933, as amended or any
applicable State securities laws.
The Company shall make all reasonable efforts to bring about the occurrence of said events.
13.2.
Corporate
Restrictions
on
Rights
in
Stock
. Any Shares to be issued pursuant to the Plan
shall be subject to all restrictions upon the transfer thereof which may be now or hereafter
imposed by the charter, certificate or articles, and by-laws, of the Company.
13.3.
Investment
Representations
. The Company shall be under no obligation to issue any
Shares unless the Shares to be issued pursuant to the Plan have been effectively registered under
the Securities Act of 1933, as amended.
13.4.
Placement
of
Legends;
Stop
Orders;
etc.
Each Share to be issued pursuant to the Plan
may bear a reference to any applicable restriction under the Plan. All certificates for Shares or
other securities delivered under the Plan shall be subject to such stock transfer orders and other
restrictions as the Committee may deem advisable under the rules, regulations, and other
requirements of any stock exchange upon which the Common Stock is then listed, and any applicable
federal or state securities law, and the Committee may cause a legend or legends to be put on any
such certificates to make appropriate reference to such restrictions.
14. Adopting Subsidiaries
Any Subsidiary of the Company may request that its Employees be allowed to participate in the
Plan in accordance with procedures to be adopted by the Board. The Board of Directors of the
Company may, in its sole discretion, approve or reject any such request. Any such Subsidiary whose
request is approved by the Board of Directors shall be referred to herein as a “Covered Entity.”
In addition, the Board of Directors of the Company may determine, in its sole discretion, that a
Subsidiary that is a Covered Entity will cease to be a Covered Entity with respect to Plan Periods
not yet commenced.
15. Amendment and Termination
(a) The Board may at any time terminate the Plan or make such modifications of the Plan as it
shall deem advisable. Except as provided in Section 12, no termination of the Plan may affect
options previously granted, provided that the Plan or a Plan Period may be terminated by the Board
on a Plan Period Termination Date or by the Board’s setting a new Plan Period Termination Date with
respect to a Plan Period then in progress if the Board determines that termination of the Plan
and/or any Plan Period is in the best interests of the Company and its stockholders or if
continuation of the Plan and/or a Plan Period would cause the Company to incur adverse accounting
charges as a result of the Plan. Except as provided in Section 12 or this
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Section 15, no amendment to the Plan shall make any change in any option previously granted
which adversely affects the rights of any Participating Employee.
(b) In addition to the foregoing, without stockholder consent and without regard to whether
any Participating Employee rights may be considered to have been adversely affected, the Committee
shall be entitled to change the Plan Periods, establish the exchange ratio applicable to amounts
withheld in a currency other than U.S. dollars (if applicable), permit payroll withholding in
excess of the amount designated by a Participating Employee to adjust for delays or mistakes in the
Company’s processing of properly completed withholding elections, establish reasonable waiting and
adjustment periods and/or accounting and crediting procedures to ensure that amounts applied toward
the purchase of Common Stock for each Participating Employee properly correspond with amounts
withheld from the Participating Employee’s Compensation, and establish such other limitations or
procedures as the Committee determines in its sole discretion advisable which are consistent with
the Plan.
16. Notices and Other Communications
Any notice, demand, request or other communication hereunder to any party shall be deemed to
be sufficient if contained in a written instrument delivered in person or duly sent by first class
registered, certified or overnight mail, postage prepaid, or telecopied with a confirmation copy by
regular, certified or overnight mail, addressed or telecopied, as the case may be, (i) if to a
Participating Employee, at his or her residence address last filed with the Company and (ii) if to
the Company, at its principal place of business, addressed to the attention of its Treasurer, or to
such other address or telecopier number, as the case may be, as the addressee may have designated
by notice to the addressor. All such notices, requests, demands and other communications shall be
deemed to have been received: (i) in the case of personal delivery, on the date of such delivery;
(ii) in the case of mailing, when received by the addressee; and (iii) in the case of facsimile
transmission, when confirmed by facsimile machine report. In addition, the Company may, in its
sole discretion, deliver any documents related to the Plan by electronic means or request that
Participating Employee communicate with the Company with respect to the Plan by electronic means.
By participating in the Plan, each Participating Employee will have consented to receive such
documents by electronic delivery and, if requested, to agree to participate in the Plan through an
on-line or electronic system established and maintained by the Company or another third party
designated by the Company, and such consent shall remain in effect throughout the Participating
Employee’s term of employment or service with the Company and thereafter until withdrawn in writing
by Participant.
17. Governing Law
The Plan and all options and actions taken thereunder shall be governed, interpreted and
enforced in accordance with the laws of the State of Delaware without regard to the conflict of
laws principles thereof.
18. Term of Plan
The Plan shall become effective immediately upon approval by the Board or upon such date as
set by the Board. The Plan shall continue in effect until terminated pursuant to Section 15.