EXHIBIT
10.1
j2
Global Communications, Inc.
AMENDED
AND RESTATED
2001
EMPLOYEE STOCK PURCHASE
1.
ESTABLISHMENT,
PURPOSE AND TERM OF PLAN.
1.1
ESTABLISHMENT.
The j2 Global Communications, Inc. 2001
Employee
Stock Purchase
Plan
(the "PLAN") is hereby established effective as of May 7, 2001 (the "EFFECTIVE
DATE"), subject to the approval by Company shareholders.
1.2
PURPOSE.
The purpose of the Plan is to advance the interests of Company and its
stockholders by providing an incentive to attract, retain and reward Eligible
Employees of the Participating Company Group and by motivating such persons
to
contribute to the growth and profitability of the Participating Company Group.
The Plan provides such Eligible Employees with an opportunity to acquire a
proprietary interest in the Company through the purchase of Stock. The Company
intends that the Plan qualify as an "
employee
stock purchase
plan"
under Section 423 of the Code (including any amendments or replacements of
such
section), and the Plan shall be so construed.
1.3
TERM
OF
PLAN. The Plan shall continue in effect until the earlier of its termination
by
the Board or the date on which all of the shares of Stock available for issuance
under the Plan have been issued.
2.
DEFINITIONS
AND CONSTRUCTION.
2.1
DEFINITIONS.
Any term not expressly defined in the Plan but defined for purposes of Section
423 of the Code shall have the same definition herein. Whenever used herein,
the
following terms shall have their respective meanings set forth
below:
(a)
"BOARD"
means the Board of Directors of the Company. If one or more Committees have
been
appointed by the Board to administer the Plan, "BOARD" also means such
Committee(s).
(b)
"CODE"
means the Internal Revenue Code of 1986, as amended, and any applicable
regulations promulgated thereunder.
(c)
"COMMITTEE"
means the Compensation Committee or other committee of the Board duly appointed
to administer the Plan and having such powers as shall be specified by the
Board. Unless the powers of the Committee have been specifically limited, the
Committee shall have all of the powers of the Board granted herein, including,
without limitation, the power to amend or terminate the Plan at any time,
subject to the terms of the Plan and any applicable limitations imposed by
law.
(d)
"COMPANY"
means j2 Global Communications, Inc., a Delaware corporation, or any
Successor.
(e)
"COMPENSATION"
means, with respect to any Offering Period, all salary, wages (including amounts
elected to be deferred by the employee, that would otherwise have been paid,
under any cash or deferred arrangement established by the Company) and overtime
pay, but excluding commissions, bonuses, profit sharing, the cost of employee
benefits paid for by the Company, education or tuition reimbursements, imputed
income arising under any Company group insurance or benefit program, traveling
expenses, business and moving expense reimbursements, income received in
connection with stock options, contributions made by the Company under any
employee benefit plan, and similar items of compensation. Compensation shall
also include payments while on a leave of absence during which participation
continues pursuant to Section 2.1(g) to such extent as may be provided by the
Company's leave policy.
(f)
"ELIGIBLE
EMPLOYEE" means an Employee who meets the requirements set forth in Section
5
for eligibility to participate in the Plan.
(g)
"EMPLOYEE"
means a person treated as an employee of a Participating Company for purposes
of
Section 423 of the Code. A Participant shall be deemed to have ceased to be
an
Employee either upon an actual termination of employment or upon the corporation
employing the Participant ceasing to be a Participating Company. For purposes
of
the Plan, an individual shall not be deemed to have ceased to be an Employee
while on any military leave or other leave of absence approved by the Company
of
ninety (90) days or less. If an individual's leave of absence exceeds ninety
(90) days, the individual shall be deemed to have ceased to be an Employee
on
the ninety-first (91st) day of such leave unless the individual's right to
reemployment with the Participating Company Group is guaranteed either by
statute or by contract.
(h)
"FAIR
MARKET VALUE" means, as of any date:
(i)
If
the
Stock is listed on any established stock exchange or traded on the Nasdaq
National Market or the Nasdaq SmallCap Market, the Fair Market Value of a share
of Stock shall be the closing sales price for such stock (or the closing bid,
if
no sales were reported) as quoted on such exchange or market (or if the stock
is
traded on more than one exchange or market, the exchange or market with the
greatest volume of trading in the Stock) on the day of determination, as
reported in THE WALL STREET JOURNAL or such other source as the Board deems
reliable. In the absence of such markets for the Stock, the Fair Market Value
shall be determined in good faith by the Board.
(ii)
For
purposes of this Plan, if the date as of which the Fair Market Value is to
be
determined is not a market trading day, then solely for the purpose of
determining Fair Market Value such date shall be the last market trading day
prior to the Purchase Date.
(i)
"OFFERING"
means an offering of Stock as provided in Section 6.
(j)
"OFFERING
DATE" means, for any Offering, the first day of the Offering
Period.
(k)
"OFFERING
PERIOD" means a period established in accordance with Section 6.
(l)
"PARENT
CORPORATION" means any present or future "parent corporation" of the Company,
as
defined in Section 424(e) of the Code.
(m)
"PARTICIPANT"
means an Eligible Employee who has become a participant in an Offering Period
in
accordance with Section 7 and remains a participant in accordance with the
Plan.
(n)
"PARTICIPATING
COMPANY" means the Company and any Parent Corporation or Subsidiary Corporation
designated by the Board as a corporation the Employees of which may, if Eligible
Employees, participate in the Plan. The Board shall have the sole and absolute
discretion to determine from time to time which Parent Corporations or
Subsidiary Corporations shall be Participating Companies.
(o)
"PARTICIPATING
COMPANY GROUP" means, at any point in time, the Company and all other
corporations collectively which are then Participating Companies.
(p)
"PURCHASE
DATE" means, for any Offering, the last day of the Offering Period; provided,
however, that the Board in its discretion may establish one or more additional
Purchase Dates during any Offering Period.
(q)
"PURCHASE
PRICE" means the price at which a share of Stock may be purchased under the
Plan, as determined in accordance with Section 9.
(r)
"PURCHASE
RIGHT" means an option granted to a Participant pursuant to the Plan to purchase
such shares of Stock as provided in Section 8, which the Participant may or
may
not exercise during the Offering Period in which such option is outstanding.
Such option arises from the right of a Participant to withdraw any accumulated
payroll deductions of the Participant not previously applied to the purchase
of
Stock under the Plan and to terminate participation in the Plan during an
Offering Period, in accordance with such rules and procedures as may be
established by Board.
(s)
"SPINOFF
TRANSACTION" means a transaction in which the voting stock of an entity in
the
Participating Company Group is distributed to the shareholders of a parent
corporation as defined by Section 424(e) of the Code, of such
entity.
(t)
"STOCK"
means the common stock of the Company, as adjusted from time to time in
accordance with Section 4.2.
(u)
"SUBSCRIPTION
AGREEMENT" means an agreement in such form as specified by the Company which
is
delivered in written form or by communicating with the
Company
in such other manner as the Company may authorize, stating an Employee's
election to participate in the Plan and authorizing payroll deductions under
the
Plan from the Employee's Compensation.
(v)
"SUBSCRIPTION
DATE" means the Offering Date of an Offering Period, or such earlier date as
the
Company shall establish.
(w)
"SUBSIDIARY
CORPORATION" means any present or future "subsidiary corporation" of the
Company, as defined in Section 424(f) of the Code.
(x)
"SUCCESSOR"
means a corporation into or with which the Company is merged or consolidated
or
which acquires all or substantially all of the assets of the Company and which
is designated by the Board as a Successor for purpose of the Plan.
2.2
CONSTRUCTION.
Captions and titles contained herein are for convenience only and shall not
affect the meaning or interpretation of any provision of the Plan. Except when
otherwise indicated by the context, the singular shall include the plural and
the plural shall include the singular. Use of the term "or" is not intended
to
be exclusive, unless the context clearly requires otherwise.
3.
ADMINISTRATION.
3.1
ADMINISTRATION
BY THE BOARD. The Plan shall be administered by the Board and its designees.
Subject to the provisions of the Plan, the Board shall determine all of the
relevant terms and conditions of Purchase Rights; provided, however, that all
Participants granted Purchase Rights pursuant to an Offering shall have the
same
rights and privileges within the meaning of Section 423(b)(5) of the Code in
such Offering. All expenses incurred in connection with the administration
of
the Plan shall be paid by the Company. While the Company is a public reporting
company, the Plan shall be administered by the Committee, which shall consist
of
not less than two directors. The members of the Committee shall be appointed
by,
and serve at the pleasure of, the Board. To the extent required for transactions
under the Plan to qualify for exemptions available under Rule 16b-3 ("Rule
16b-3") promulgated under the Securities Exchange Act of 1934 (the "1934 Act"),
all actions relating to awards to persons subject to Section 16 of the 1934
Act
shall be taken by the Board unless each person who serves on the Committee
is a
"non-employee director" within the meaning of Rule 16b-3 or such actions are
taken by a sub-committee of the Committee (or the Board) comprised solely of
"non-employee directors". To the extent required for compensation realized
from
awards under the Plan to be deductible by the Company pursuant to section 162(m)
of the Code, the members of the Committee shall be "outside directors" within
the meaning of section 162(m).
3.2
AUTHORITY
OF OFFICERS. Any officer of the Company shall have the authority to act on
behalf of the Company with respect to any matter, right, obligation,
determination or election that is the responsibility of or that is allocated
to
the Company herein, provided that the officer has actual authority with respect
to such matter, right, obligation, determination or election. Any decision
or
determination of the Company made by an Officer having actual authority with
respect thereto, shall be final, binding and conclusive on the
Participating
Company Group, any Participant, and all persons having an interest in the Plan,
or any Option granted hereunder, unless such Officer's decision or determination
is arbitrary or capricious, fraudulent, or made in bad faith.
3.3
POLICIES
AND PROCEDURES ESTABLISHED BY THE COMPANY. The Company may, from time to time,
consistent with the Plan and the requirements of Section 423 of the Code,
establish, interpret change or terminate such rules, guidelines, policies,
procedures, limitations, or adjustments as deemed advisable by the Company,
in
its discretion, for the proper administration of the Plan, including, without
limitation, (a) a minimum payroll deduction amount required for participation
in
an Offering, (b) a limitation on the frequency or number of changes permitted
in
the rate of payroll deduction during an Offering, (c) an exchange ratio
applicable to amounts withheld in a currency other than United States dollars,
(d) a payroll deduction greater than or less than the amount designated by
a
Participant in order to adjust for the Company's delay or mistake in processing
a Subscription Agreement or in otherwise effecting a Participant's election
under the Plan or as advisable to comply with the requirements of Section 423
of
the Code, and (e) determination of the date and manner by which the Fair Market
Value of a share of Stock is determined for purposes of administration of the
Plan.
The
Board's determination of the construction and interpretation of any provision
of
the Plan, and any actions taken, and any decisions or determinations made
pursuant to the terms of the Plan, shall be final, binding and conclusive on
the
Participating Company Group, any Participant, and any person having an interest
in the Plan or any Option granted hereunder unless the Board's action, decision
or determination is arbitrary or capricious, fraudulent, or made in bad
faith.
3.4
INDEMNIFICATION.
In addition to such other rights of indemnification as they may have as members
of the Board or Officers or Employees of the Participating Company Group,
members of the Board and any Officers or Employees of the Participating Company
Group to whom authority to act for the Board or the Company is delegated shall
be indemnified by the Company against all reasonable expenses, including
attorneys' fees, actually and necessarily incurred in connection with the
defense of any action, suit or proceeding, or in connection with any appeal
therein, to which they or any of them may be a party by reason of any action
taken or failure to act under or in connection with the Plan, or any right
granted hereunder, and against all amounts paid by them in settlement thereof
(provided such settlement is approved by independent legal counsel selected
by
the Company) or paid by them in satisfaction of a judgment in any such action,
suit or proceeding, except in relation to matters as to which it shall be
adjudged in such action, suit or proceeding that such person is liable for
gross
negligence, bad faith or intentional misconduct in duties; provided, however,
that within sixty (60) days after the institution of such action, suit or
proceeding, such person shall offer to the Company, in writing, the opportunity
at its own expense to handle and defend the same and to retain complete control
over the litigation and/or settlement of such suit, action or
proceeding.
4.
SHARES
SUBJECT TO PLAN.
4.1
MAXIMUM
NUMBER OF SHARES ISSUABLE. Subject to adjustment as provided in Section 4.2,
the
maximum aggregate number of shares of Stock that may be issued
under
the
Plan shall be Five Hundred Thousand (500,000), and shall consist of authorized
but unissued or reacquired shares of Stock, or any combination thereof. If
an
outstanding Purchase Right for any reason expires or is terminated or canceled,
the shares of Stock allocable to the unexercised portion of that Purchase Right
shall again be available for issuance under the Plan.
4.2
ADJUSTMENTS
FOR CHANGES IN CAPITAL STRUCTURE. In the event of any stock dividend, stock
split, reverse stock split, recapitalization, combination, reclassification
or
similar change in the capital structure of the Company, or in the event of
any
merger (including a merger effected for the purpose of changing the Company's
domicile), sale of assets or other reorganization in which the Company is a
party, appropriate adjustments shall be made in the number and class of shares
subject to the Plan, each Purchase Right, and in the Purchase Price. If a
majority of the shares of the same class as the shares subject to outstanding
Purchase Rights are exchanged for, converted into, or otherwise become (whether
or not pursuant to an Ownership Change Event, as defined below) shares of
another corporation (the "NEW SHARES"), the Board may unilaterally amend the
outstanding Purchase Rights to provide that such Purchase Rights are exercisable
for New Shares. In the event of any such amendment, the number of shares subject
to, and the Purchase Price of, the outstanding Purchase Rights shall be adjusted
in a fair and equitable manner, as determined by the Board, in its discretion.
Notwithstanding the foregoing, any fractional share resulting from an adjustment
pursuant to this Section 4.2 shall be rounded down to the nearest whole number,
and in no event may the Purchase Price be decreased to an amount less than
the
par value, if any, of the stock subject to the Purchase Right.
5.
ELIGIBILITY.
5.1
EMPLOYEES
ELIGIBLE TO PARTICIPATE. Each Employee of a Participating Company is eligible
to
participate in the Plan and shall be deemed an Eligible Employee, except any
Employee who is either: (a) customarily employed by the Participating Company
Group for twenty (20) hours or less per week (b) customarily employed by the
Participating Company Group for not more than five (5) months in any calendar
year or (c) has not completed thirty (30) days of service with a Participating
Company, or such other service requirement, up to a maximum of 2 years, which
the Board may require.
5.2
EXCLUSION
OF CERTAIN STOCKHOLDERS. Notwithstanding any provision of the Plan to the
contrary, no Employee shall be treated as an Eligible Employee and granted
a
Purchase Right under the Plan if, immediately after such grant, the Employee
would own or hold options to purchase stock of the Company or of any Parent
Corporation or Subsidiary Corporation possessing five percent (5%) or more
of
the total combined voting power or value of all classes of stock of such
corporation, as determined in accordance with Section 423(b)(3) of the Code.
For
purposes of this Section 5.2, the attribution rules of Section 424(d) of the
Code shall apply in determining the stock ownership of such
Employee.
5.3
DETERMINATION
BY COMPANY. The Company shall determine in good faith and in the exercise of
its
discretion whether an individual has become or has ceased to be an Employee
or
an Eligible Employee and the effective date of such individual's attainment
or
termination of such status, as the case may be. For purposes of an individual's
eligibility to
participate
in or other rights, if any, under the Plan as of the time of the Company's
determination, all such determinations by the Company shall be final, binding
and conclusive, unless the Company's determination is arbitrary or capricious,
fraudulent, or made in bad faith notwithstanding that the Company or any court
of law or governmental agency subsequently makes a contrary
determination.
6.
OFFERINGS.
The
Plan
shall be implemented by sequential Offerings of approximately three (3) months
duration or such other duration as the Board shall determine (an "OFFERING
PERIOD"). Offering Periods shall commence on or about February 1, May 1, August
1 and November 1 of each year and end on or about the next April 30, July 31,
October 31, and January 31, respectively, occurring thereafter. The initial
Offering Period shall begin August 1, 2001. Notwithstanding the foregoing,
the
Board, in its sole and absolute discretion, may establish a different duration
for one or more Offering Periods or different commencing or ending dates for
such Offering Periods; provided, however, that no Offering Period may have
a
duration exceeding twenty-seven (27) months.
7.
PARTICIPATION
IN THE PLAN.
7.1
INITIAL
PARTICIPATION. An Eligible Employee may become a Participant in an Offering
Period by delivering a properly completed Subscription Agreement, in accordance
with such rules and procedures as may be specified by the Company. An Eligible
Employee who does not deliver a properly completed Subscription Agreement to
the
Company in the required time period shall not participate in the Plan for that
Offering Period. Furthermore, the Eligible Employee may not participate in
a
subsequent Offering Period unless a properly completed Subscription Agreement
is
delivered to the Company on or before the Subscription Date for such subsequent
Offering Period.
7.2
CONTINUED
PARTICIPATION. A Participant shall automatically participate in the next
Offering Period commencing immediately after the Purchase Date of each Offering
Period in which the Participant participates provided that the Participant
remains an Eligible Employee on the Offering Date of the new Offering Period
and
has not either (a) withdrawn from the Plan pursuant to Section 12.1 or (b)
terminated employment as provided in Section 13. A Participant who may
automatically participate in a subsequent Offering Period, as provided in this
Section, is not required to deliver any additional Subscription Agreement for
the subsequent Offering Period in order to continue participation in the Plan.
However, a Participant may deliver a new Subscription Agreement for a subsequent
Offering Period in accordance with the procedures set forth in Section 7.1
if
the Participant desires to change any of the elections contained in the
Participant's then effective Subscription Agreement.
8.
RIGHT
TO
PURCHASE SHARES.
8.1
GRANT
OF
PURCHASE RIGHT.
(i)
Except
as
set forth below (or as otherwise specified by the Board prior to the Offering
Date), on the Offering Date of each Offering Period, each Participant in that
Offering Period shall be granted automatically a Purchase Right consisting
of an
option to purchase that number of whole shares of Stock determined by either
dividing fifteen percent (15%) of such Participant's Compensation during the
Offering Period by the Purchase Price of a share of Stock for such Offering
Period or by dividing Twelve Thousand Five Hundred Dollars ($12,500) by the
Fair
Market Value of a share of Stock on such Offering Date, whichever is less.
In
connection with any Offering made under this Plan, the Board or the Committee
may specify a maximum number of shares of Common Stock which may be purchased
by
any employee as well as a maximum aggregate number of shares of Common Stock
which may be purchased by all eligible employees pursuant to such Offering.
In
addition, in connection with any Offering which contains more than one Purchase
Date, the Board or the Committee may specify a maximum aggregate number of
shares which may be purchased by all eligible employees on any given Purchase
Date under the Offering.
(ii)
Notwithstanding
the foregoing, the aggregate number of shares for which Purchase Rights may
be
granted in any Offering Period may not exceed the maximum number of shares
which
have been, prior to the Offering Date for such Offering Period, reserved for
the
Plan and approved by the stockholders of the Company and not previously been
purchased upon the exercise of Purchase Rights in any prior Offering
Period.
(iii)
If
the
aggregate purchase of shares of Common Stock upon exercise of rights granted
under the Offering would exceed any such maximum aggregate number, the Board
or
the Committee shall make a pro rata allocation of the shares of Common Stock
available in as nearly a uniform manner as shall be practicable and as it shall
deem to be equitable. No Purchase Right shall be granted on an Offering Date
to
any person who is not, on such Offering Date, an Eligible Employee.
8.2
SUBSTITUTION
OF RIGHTS. The grant of rights under an Offering may be done to carry out the
substitution of rights under the Plan for pre-existing rights granted under
another
employee
stock purchase
plan, if
such substitution is pursuant to a transaction described in Section 424(a)
of
the Code (or any successor provision thereto) and the characteristics of such
substitute rights conform to the requirements of Section 424(a) of the Code
(or
any successor provision thereto) and will not cause the disqualification of
this
Plan under Section 423 of the Code. Notwithstanding the other terms of the
Plan,
such substitute rights shall have the same characteristics as the
characteristics associated with such pre-existing rights, including, but not
limited to, the following:
(i)
the
date
on which such pre-existing right was granted shall be the "Offering Date" of
such substitute right for purposes of determining the date of grant of the
substitute right;
(ii)
the
Offering (as defined below) for such substitute right shall begin on its
Offering Date and end coincident on the applicable Purchase Date, but no later
than the end of the offering (as determined under the terms of such offering)
under which the pre-existing right was granted.
8.3
PRO
RATA
ADJUSTMENT OF PURCHASE RIGHT. If the Board establishes an Offering Period of
any
duration other than three months, then any limitation on the number of shares
of
Stock subject to each Purchase Right granted on the Offering Date of such
Offering Period set forth in Section 8.1(i) shall be prorated based upon the
ratio which the number of months in such Offering Period bears to three
(3).
8.4
CALENDAR
YEAR PURCHASE LIMITATION. Notwithstanding any provision of the Plan to the
contrary, no Participant shall be granted a Purchase Right which permits his
or
her right to purchase shares of Stock under the Plan to accrue at a rate which,
when aggregated with such Participant's rights to purchase shares under all
other
employee
stock purchase
plans of
a Participating Company intended to meet the requirements of Section 423 of
the
Code, exceeds Twenty-Five Thousand Dollars ($25,000) in Fair Market Value (or
such other limit, if any, as may be imposed by the Code) for each calendar
year
in which such Purchase Right is outstanding at any time. For purposes of the
preceding sentence, the Fair Market Value of shares purchased during a given
Offering Period shall be determined as of the Offering Date for such Offering
Period. The limitation described in this Section shall be applied in conformance
with applicable regulations under Section 423(b)(8) of the Code.
9.
PURCHASE
PRICE.
The
Purchase Price for an Offering Period shall be ninety-five percent (95%) of
the
Fair Market Value of a share of Stock on the Purchase Date.
10.
ACCUMULATION
OF PURCHASE PRICE THROUGH PAYROLL DEDUCTION.
Shares
of
Stock acquired pursuant to the exercise of all or any portion of a Purchase
Right may be paid for only by means of payroll deductions from the Participant's
Compensation accumulated during the Offering Period for which such Purchase
Right was granted, and, if a payroll deduction is not permitted under a statute,
regulation, rule of a jurisdiction, or is not administratively feasible, such
other payments as may be approved by the Company, subject to the
following:
10.1
AMOUNT
OF
PAYROLL DEDUCTIONS. Except as otherwise provided herein, the amount to be
deducted under the Plan from a Participant's Compensation on each payday during
an Offering Period shall be determined by the Participant's Subscription
Agreement. The Subscription Agreement shall set forth the percentage of the
Participant's Compensation to be deducted on each payday during an Offering
Period in whole percentages, up to fifteen percent (15%). The Board may change
the foregoing limits on payroll deductions effective as of any Offering
Date.
10.2
COMMENCEMENT
OF PAYROLL DEDUCTIONS. Payroll deductions shall commence on the first payday
following the Offering Date and shall continue through the last payday prior
to
the end of the Offering Period unless sooner altered or terminated as provided
herein.
10.3
ELECTION
TO CHANGE OR STOP PAYROLL DEDUCTIONS. During an Offering Period, to the extent
provided for in the Offering, a Participant may elect to decrease the rate
of or
to stop deductions from his or her Compensation by delivering to the Company
an
amended Subscription Agreement, in such form and manner as specified by the
Company, authorizing such change on or before the Change Notice Date, as defined
below. A Participant who elects, effective following the first payday of an
Offering Period, to decrease the rate of his or her payroll deductions to zero
percent (0%) shall nevertheless remain a Participant in the current Offering
Period unless such Participant withdraws from the Plan as provided in Section
12.1. The "CHANGE NOTICE DATE" shall be the day established in accordance with
procedures established by the Company.
10.4
COMPANY'S
HOLDING OF DEDUCTION. All payroll deductions from a Participant's Compensation
shall be deposited with the general funds of the Company. All payroll deductions
received or held by the Company may be used by the Company for any corporate
purpose. Interest shall not be paid on sums deducted from a Participant's
Compensation pursuant to the Plan.
10.5
VOLUNTARY
WITHDRAWAL OF DEDUCTIONS. A Participant may withdraw payroll deductions credited
to the Plan and not previously applied toward the purchase of Stock only as
provided in Section 12.1.
11.
PURCHASE
OF SHARES.
11.1
EXERCISE
OF PURCHASE RIGHT. On each Purchase Date, each Participant's accumulated payroll
deductions and other additional payments specifically permitted by the Plan
(without any increase for interest), will be applied to the purchase of whole
shares of Stock, up to the maximum number of shares permitted pursuant to the
terms of the Plan and the applicable Offering, at the Purchase Price for such
Offering. No fractional shares shall be issued upon the exercise of Purchase
Rights granted under the Plan. The amount, if any, of each Participant's
accumulated payroll deductions remaining after the purchase of shares which
is
less than the amount required to purchase one share of Stock on the final
Purchase Date of an Offering shall be retained in each such Participant's
account for the purchase of shares under the next Offering under the Plan,
unless such Participant withdraws from such next Offering, as provided in
Section 12.1, or is no longer eligible to be granted rights under the Plan,
as
provided in Section 5, in which case such amount shall be distributed to the
Participant after said final Purchase Date, without interest. The amount, if
any, of each Participant's accumulated payroll deductions remaining after the
purchase of shares which is equal to the amount required to purchase whole
shares of Stock on the final Purchase Date of an Offering shall be refunded
in
full to the Participant after such Purchase Date, without interest.
11.2
PRO
RATA
ALLOCATION OF SHARES. If the number of shares of Stock which might be purchased
by all Participants in the Plan on a Purchase Date exceeds the number of shares
of Stock available in the Plan as provided in Section 4.1, the Company shall
make a pro rata allocation of the remaining shares in as uniform a manner as
practicable and as the Company determines to be equitable. Any fractional share
resulting from such pro rata allocation to any Participant shall be
disregarded.
11.3
DELIVERY
OF SHARES. As soon as practicable after each Purchase Date, the Company shall
arrange the delivery to each Participant of the shares acquired by the
Participant on such Purchase Date; provided that the Company may deliver such
shares to a broker designated by the Company that will hold such shares for
the
benefit of the Participant. Shares to be delivered to a Participant under the
Plan shall be registered, or held in an account, in the name of the Participant,
or, if requested by the Participant, such other name or names as the Company
may
permit under rules established for the operation and administration of the
Plan.
11.4
TAX
WITHHOLDING. At the time a Participant's Purchase Right is exercised, in whole
or in part, or at the time a Participant disposes of some or all of the shares
of Stock he or she acquires under the Plan, the Participant shall make adequate
provision for the federal, state, local and foreign tax withholding obligations,
if any, of the Participating Company Group which arise upon exercise of the
Purchase Right or upon such disposition of shares, respectively. The
Participating Company Group may, but shall not be obligated to, withhold from
the Participant's compensation the amount necessary to meet such withholding
obligations.
11.5
EXPIRATION
OF PURCHASE RIGHT. A Purchase Right shall expire immediately upon the end of
the
Offering Period to the extent it exceeds the number of shares of Stock which
are
purchased with a Participant's accumulated payroll deductions or other permitted
contribution during any Offering Period.
11.6
PROVISION
OF REPORTS AND STOCKHOLDER INFORMATION TO PARTICIPANTS. Each Participant who
has
exercised all or part of his or her Purchase Right shall receive, as soon as
practicable after the Purchase Date, a report of such Participant's account
setting forth the total payroll deductions accumulated prior to such exercise,
the number of shares of Stock purchased, the Purchase Price for such shares,
the
date of purchase and the cash balance, if any, remaining immediately after
such
purchase that is to be refunded or retained on behalf of the Participant
pursuant to Section 11.1. The report required by this Section may be delivered
in such form and by such means, including by electronic transmission, as the
Company may determine. In addition, each Participant shall be given access
to
information concerning the Company equivalent to that information provided
generally to the Company's common stockholders.
12.
WITHDRAWAL
FROM PLAN.
12.1
VOLUNTARY
WITHDRAWAL FROM THE PLAN. A Participant may withdraw from the Plan by signing
and delivering to the Company's designated office a written notice of withdrawal
on a form provided by the Company for this purpose or by communicating with
the
Company in such other manner as the Company may authorize. A Participant who
voluntarily withdraws from the Plan is prohibited from resuming participation
in
the Plan in the same Offering from which he or she withdrew, but may participate
in any subsequent Offering by again satisfying the requirements of Sections
5
and 7.1. The Company may impose, from time to time, a requirement that the
notice of withdrawal from the Plan be on file with the Company's designated
office for a reasonable period prior to the effectiveness of the Participant's
withdrawal.
12.2
RETURN
OF
PAYROLL DEDUCTIONS. Upon a Participant's voluntary withdrawal from the Plan
pursuant to Section 12.1, the Participant's accumulated payroll deductions
which
have not been applied toward the purchase of shares shall be refunded to the
Participant as soon as practicable after the withdrawal, without the payment
of
any interest, and the Participant's participation in the Plan shall terminate.
Such accumulated payroll deductions to be refunded in accordance with this
Section may not be applied to any other Offering under the Plan.
13.
TERMINATION
OF EMPLOYMENT OR ELIGIBILITY.
13.1
Upon
a
Participant's ceasing, prior to a Purchase Date, to be an Employee of the
Participating Company Group for any reason, or upon the failure of a Participant
to remain an Eligible Employee, the Participant's participation in the Plan
shall terminate immediately, except as otherwise provided in Section 2.1(g)
and
Section 13.3.
13.2
Upon
termination of participation, the terminated Participant's accumulated payroll
deductions which have not been applied toward the purchase of shares shall,
as
soon as practicable, be returned to the Participant or, in the case of the
Participant's death, to the Participant's legal representative, and all of
the
Participant's rights under the Plan shall terminate. Interest shall not be
paid
on sums returned pursuant to this Section 13. A Participant whose participation
has been so terminated may again become eligible to participate in future
Offerings under the Plan by satisfying the requirements of Sections 5 and
7.1.
13.3
Upon
a
Participant's ceasing, prior to a Purchase Date, to be an Employee of the
Participating Company Group for any reason, or upon the failure of a Participant
to remain an Eligible Employee, the Participant's participation in the Plan
shall continue, subject to the Participant's execution of a general release
of
claims satisfactory to the Company, for an additional ninety (90) days;
provided, however, this Section shall not apply in the event of the
Participant's death, a Spinoff Transaction, or to any Participant on a leave
of
absence governed by Section 2.1(g).
14.
CHANGE
IN
CONTROL.
14.1
DEFINITIONS.
(a)
An
"OWNERSHIP CHANGE EVENT" shall be deemed to have occurred if any of the
following occurs with respect to the Company: (i) the direct or indirect sale
or
exchange in a single or series of related transactions by the stockholders
of
the Company of more than fifty percent (50%) of the voting stock of the Company;
(ii) a merger or consolidation in which the Company is a party; (iii) the sale,
exchange, or transfer of all or substantially all, as determined by the Board
in
its sole discretion, of the assets of the Company; or (iv) a liquidation or
dissolution of the Company.
(b)
A
"CHANGE
IN CONTROL" shall mean an Ownership Change Event or a series of related
Ownership Change Events (collectively, a "TRANSACTION") wherein the
stockholders
of the Company immediately before the Transaction do not retain immediately
after the Transaction, in substantially the same proportions as their ownership
of shares of the Company's voting stock immediately before the Transaction,
direct or indirect beneficial ownership of more than fifty percent (50%) of
the
total combined voting power of the outstanding voting securities of the Company
or, in the case of a Transaction described in Section 14.1(a)(ii) or (iii),
the
corporation or other business entity surviving the merger or consolidation
or to
which the assets of the Company were transferred (the "TRANSFEREE"), as the
case
may be. The Board shall determine in its sole discretion whether multiple sales
or exchanges of the voting securities of the Company or multiple Ownership
Change Events are related. Notwithstanding the preceding sentence, a Change
in
Control shall not include any Transaction in which the voting stock of an entity
in the Participating Company Group is distributed to the shareholders of a
parent corporation, as defined in Section 424(e) of the Code, of such entity.
Any Ownership Change resulting from an underwritten public offering of the
Company's Stock or the stock of any Participating Company shall not be deemed
a
Change in Control for any purpose hereunder.
14.2
EFFECT
OF
CHANGE IN CONTROL ON PURCHASE RIGHTS. In the event of a Change in Control,
the
surviving, continuing, successor, or purchasing corporation or parent
corporation thereof, as the case may be (the "ACQUIRING CORPORATION"), may
assume the Company's rights and obligations under the Plan. If the Acquiring
Corporation elects not to assume the Company's rights and obligations under
outstanding Purchase Rights, the Purchase Date of the then current Offering
Period shall be accelerated to a date before the date of the Change in Control
specified by the Board, but the number of shares of Stock subject to outstanding
Purchase Rights shall not be adjusted. All Purchase Rights which are neither
assumed by the Acquiring Corporation in connection with the Change in Control
nor exercised as of the date of the Change in Control shall terminate and cease
to be outstanding effective as of the date of the Change in
Control.
15.
NONTRANSFERABILITY
OF PURCHASE RIGHTS.
Neither
payroll deductions nor a Participant's Purchase Right may be assigned,
transferred, pledged or otherwise disposed of in any manner other than as
provided by the Plan or by will or the laws of descent and distribution. Any
such attempted assignment, transfer, pledge or other disposition shall be
without effect, except that the Company may treat such act as an election to
withdraw from the Plan as provided in Section 12.1. A Purchase Right shall
be
exercisable during the lifetime of the Participant only by the
Participant.
16.
COMPLIANCE
WITH SECURITIES LAW.
The
issuance of shares under the Plan shall be subject to compliance with all
applicable requirements of federal, state and foreign law with respect to such
securities. A Purchase Right may not be exercised if the issuance of shares
upon
such exercise would constitute a violation of any applicable federal, state
or
foreign securities laws or other law or regulations or the requirements of
any
securities exchange or market system upon which the Stock may then be listed.
In
addition, no Purchase Right may be exercised unless (a) a registration statement
under the Securities Act of 1933, as amended, shall at the time of exercise
of
the Purchase Right be in
effect
with respect to the shares issuable upon exercise of the Purchase Right, or
(b)
in the opinion of legal counsel to the Company, the shares issuable upon
exercise of the Purchase Right may be issued in accordance with the terms of
an
applicable exemption from the registration requirements of said Act. The
inability of the Company to obtain from any regulatory body having jurisdiction
the authority, if any, deemed by the Company's legal counsel to be necessary
to
the lawful issuance and sale of any shares under the Plan shall relieve the
Company of any liability in respect of the failure to issue or sell such shares
as to which such requisite authority shall not have been obtained. As a
condition to the exercise of a Purchase Right, the Company may require the
Participant to satisfy any qualifications that may be necessary or appropriate,
to evidence compliance with any applicable law or regulation, and to make any
representation or warranty with respect thereto as may be requested by the
Company.
17.
RIGHTS
AS
A STOCKHOLDER AND EMPLOYEE.
A
Participant shall have no rights as a stockholder by virtue of the Participant's
participation in the Plan until the date of the issuance of shares purchased
pursuant to the exercise of the Participant's Purchase Right (as evidenced
by
the appropriate entry on the books of the Company or of a duly authorized
transfer agent of the Company). No adjustment shall be made for dividends,
distributions or other rights for which the record date is prior to the date
such share is issued, except as provided in Section 4.2. Nothing herein shall
confer upon a Participant any right to continue in the employ of the
Participating Company Group or interfere in any way with any right of the
Participating Company Group to terminate the Participant's employment at any
time.
18.
DISTRIBUTION
ON DEATH.
If
a
Participant dies, the Company shall deliver any shares or cash credited to
the
Participant to the Participant's legal representative.
19.
NOTICES.
All
notices or other communications by a Participant to the Company under or in
connection with the Plan shall be deemed to have been duly given when received
in the form specified by the Company at the location, or by the person,
designated by the Company for the receipt thereof.
20.
AMENDMENT
OR TERMINATION OF THE PLAN.
The
Board
may at any time amend or terminate the Plan, except that (a) such termination
shall not affect Purchase Rights previously granted under the Plan, except
as
permitted under the Plan, and (b) no amendment may adversely affect a Purchase
Right previously granted under the Plan (except to the extent permitted by
the
Plan or as may be necessary to qualify the Plan as an
employee
stock purchase
plan
pursuant to Section 423 of the Code or to obtain qualification or registration
of the shares of Stock under applicable federal, state or foreign securities
laws). In addition, an amendment to the Plan must be approved by the
stockholders of the Company within twelve (12) months of the adoption of such
amendment if such amendment would
increase
the maximum aggregate number of shares of Stock that may be issued under the
Plan (except by operation of the provisions of Section 4.1 or Section 4.2)
or
would change the definition of the corporations that may be designated by the
Board as Participating Companies.
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PLAN HISTORY
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May
7, 2001
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Board adopts Plan.
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June 26, 2001
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Stockholders approve Plan.
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May 1, 2006
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Board
amends and restates the Plan.
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