As filed with the Securities and Exchange Commission on March  30 , 2016

Registration No. 333-     

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 


 

FORM S-8

 

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 


 

GTT Communications, Inc.

(Exact Name of Registrant as Specified in Its Charter)

 

Delaware

 

20-2096338

(State or Other Jurisdiction of Incorporation or Organization)

 

(I.R.S. Employer Identification No.)

 

7900 Tysons One Place

Suite 1450

McLean, Virginia 22102

(Address of Principal Executive Offices)

 

GTT COMMUNICATIONS, INC.

2016 EMPLOYEE STOCK PURCHASE PLAN

(Full Title of the Plan)

 

Richard D. Calder, Jr.

President and Chief Executive Officer

GTT Communications, Inc.

7900 Tysons One Place

Suite 1450

McLean, Virginia 22102

(Name and Address of Agent for Service)

 

(703) 442-5500

(Telephone Number, Including Area Code, of Agent for Service)

 

With copies to:

 

Jay Schifferli, Esq.

 

Chris McKee, Esq.

Goodwin Procter LLP

 

General Counsel and EVP

901 New York Avenue, NW

 

of Business Development

Washington, DC 20001

 

GTT Communications, Inc.

(202) 346-4186

 

7900 Tysons One Place

 

 

Suite 1450

 

 

McLean, Virginia 22102
(703) 442-5500

 


 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer   o

 

Accelerated filer   x

Non-accelerated filer       o   (Do not check if a smaller reporting company)

 

Smaller reporting company  o

 

CALCULATION OF REGISTRATION FEE

 

 

 

 

 

 

 

 

 

 

Title of Securities
To Be Registered

 

Amount To Be
Registered(1)

 

Proposed Maximum
Offering Price Per
Share(2)

 

Proposed Maximum
Aggregate Offering
Price(2)

 

Amount of
Registration Fee

 

Common Stock, $0.0001 par value

 

500,000

 

$

15.55

 

$

7,775,000

 

$

782.94

 

(1)          This Registration Statement relates to 500,000 shares of Common Stock, par value $0.0001 per share, of GTT Communications, Inc. (“Common Stock”) available for issuance under its 2016 Employee Stock Purchase Plan (the “Plan”). In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover such indeterminate number of additional shares of Common Stock as may be required pursuant to the Plan in the event of a stock dividend, reverse stock split, split-up, recapitalization, forfeiture of stock under the Plan or other similar event.

 

(2)          This estimate is made pursuant to Rule 457(c) and (h) under the Securities Act of 1933, as amended (the “Securities Act”), solely for the purpose of determining the amount of the registration fee. The registration fee is based upon the average of the high and low sales prices for a share of Common Stock on March 28, 2016, as reported on the NYSE.

 

 

 



 

PART I

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

Item 1. Plan Information.

 

The documents containing the information specified in this Item 1 will be sent or given to employees, officers, directors or others as specified by Rule 428(b)(1) under the Securities Act. In accordance with the rules and regulations of the Commission and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.

 

Item 2. Registrant Information and Employee Plan Annual Information.

 

The documents containing the information specified in this Item 2 will be sent or given to employees, officers, directors or others as specified by Rule 428(b)(1) under the Securities Act. In accordance with the rules and regulations of the Commission and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

 

The following documents previously filed by the Registrant with the Securities and Exchange Commission (the “SEC” or the “Commission”) are hereby incorporated by reference in this registration statement on Form S-8 (the “Registration Statement”) (other than information in a report on Form 8-K that is “furnished” and not “filed” pursuant to Form 8-K, and, except as may be noted in any such Form 8-K, exhibits filed on such form that are related to such information):

 

·                             the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2015, filed with the Commission on March 9, 2016;

 

·                             the Company’s Current Reports on Form 8-K filed with the Commission on February 19, 2016 and March 3, 2016; and

 

·                             the information specifically incorporated by reference into the Company’s Annual Report on Form 10-K for the year ended December 31, 2014 from the Company’s Definitive Proxy Statement on Schedule 14A for its 2015 Annual Meeting of Stockholders, filed with the Commission on April 30, 2015.

 

In addition, the Registrant hereby incorporates by reference into this Registration Statement the description of the Registrant’s common stock, par value $0.0001 per share (the “Common Stock”), contained in the registration statement on Form 8-A (File No. 001-35965) filed with the Commission on November 25, 2014, pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including any amendment or report filed for the purpose of updating such description.

 

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All documents filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

 

Item 4. Description of Securities.

 

Not applicable.

 

Item 5. Interest of Named Experts and Counsel.

 

Not applicable.

 

Item 6. Indemnification of Directors and Officers.

 

The Company’s second amended and restated certificate of incorporation (the “Second Restated Charter”) and the Company’s amended and restated bylaws (the “Bylaws”) provide that each of the Company’s directors and officers shall be entitled to be indemnified by the Company to the fullest extent permitted by law.  The Second Restated Charter provides that the Company may indemnify to the fullest extent permitted by law all of its employees.  The Bylaws provide that, if authorized by the board of directors, the Company may indemnify any other person whom the Company has the power to indemnify under section 145 of the Delaware General Corporation Law (the “DGCL”).

 

Section 145 of the DGCL provides, in effect, that any person made a party to any action by reason of the fact that he is or was the Company’s director, officer, employee or agent may and, in certain cases, must be indemnified by the Company against, in the case of a non-derivative action, judgments, fines, amounts paid in settlement and reasonable expenses (including attorneys’ fees) incurred by him as a result of such action, and in the case of a derivative action, against expenses (including attorneys’ fees), if in either type of action he acted in good faith and in a manner he reasonably believed to be in or not opposed to the Company’s best interests.  This indemnification does not apply, (i) in a derivative action, to matters as to which it is adjudged that the director, officer, employee or agent is liable to the Company, unless upon court order it is determined that, despite such adjudication of liability, but in view of all the circumstances of the case, he is fairly and reasonably entitled to indemnity for expenses, and, (ii) in a non-derivative action, to any criminal proceeding in which such person had no reasonable cause to believe his conduct was unlawful.

 

Item 7. Exemption from Registration Claimed.

 

Not applicable.

 

Item 8. Exhibits.

 

Exhibit
Number

 

Description

 

 

 

3.1(1)

 

Second Amended and Restated Certificate of Incorporation.

 

 

 

3.2 (2)

 

Certificate of Amendment to Second Amended and Restated Certificate of Incorporation.

 

2



 

3.3 (3)

 

Amended and Restated Bylaws.

 

 

 

3.4 (4)

 

Amendment to Amended and Restated Bylaws.

 

 

 

3.5 (5)

 

Specimen Common Stock Certificate of the Registrant.

 

 

 

*5.1

 

Opinion of Goodwin Procter LLP.

 

 

 

*23.1

 

Consent of Goodwin Procter LLP (included in Exhibit 5.1).

 

 

 

*23.2

 

Consent of CohnReznick LLP.

 

 

 

*24.1

 

Powers of Attorney (included on the signature page hereof).

 

 

 

*99.1

 

GTT Communications, Inc. 2016 Employee Stock Purchase Plan

 


* Filed herewith.

 

(1) Previously filed as an exhibit to the registrant’s Current Report on form 8-K filed on October 19, 2006, and incorporated herein by reference.

 

(2) Previously filed as an exhibit to the registrant’s Current Report on Form 8-K filed on January 6, 2014, and incorporated herein by reference.

 

(3) Previously filed as an exhibit to the registrant’s Current Report on Form 8-K filed on October 19, 2006, and incorporated herein by reference.

 

(4) Previously filed as an exhibit to the registrant’s Current Report on Form 8-K filed May 10, 2007, and incorporated herein by reference.

 

(5) Previously filed as an exhibit to the registrant’s Registration Statement (Registration Statement No. 333-122303), as amended, filed on January 26, 2005, and incorporated herein by reference.

 

Item 9. Undertakings.

 

(a)           The undersigned Registrant hereby undertakes:

 

(1)           To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

 

(i)            To include any prospectus required by Section 10(a)(3) of the Securities Act;

 

(ii)           To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement.  Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement;

 

(iii)          To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;

 

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Provided, however , that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the Registration Statement is on Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.

 

(2)           That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(3)           To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

(b)           The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to section 13 or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(c)           Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of McLean, State of Virginia, on this 28th day of March, 2016.

 

 

GTT COMMUNICATIONS, INC.

 

 

 

By:

/s/ Richard D. Calder, Jr.

 

Richard D. Calder, Jr.

 

President and Chief Executive Officer

 

(Principal Executive Officer)

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each individual whose signature appears below hereby constitutes and appoints Richard D. Calder, Jr. and Michael T. Sicoli, and each of them, as his true and lawful agent, proxy and attorney-in-fact, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement and sign any registration statement for the same offering covered by the registration statement that is to be effective upon filing pursuant to Rule 462 promulgated under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and to take any and all such actions which may be necessary or appropriate in connection therewith, granting unto said agents, proxies and attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing necessary or appropriate to be done in connection therewith and about the premises, as fully for all intents and purposes as he might or could do in person, hereby approving, ratifying and confirming all that said agents, proxies and attorneys-in-fact and agents, or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

Name

 

Title

 

Date

 

 

 

 

 

/s/ Richard D. Calder, Jr.

 

President, Chief Executive Officer and Director

 

March 28, 2016

Richard D. Calder, Jr.

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ Michael T. Sicoli

 

Chief Financial Officer

 

March 28, 2016

Michael T. Sicoli

 

(Principal Financial and Accounting Officer)

 

 

 

 

 

 

 

/s/ H. Brian Thompson

 

Founder and Executive Chairman of the Board

 

March 28, 2016

H. Brian Thompson

 

 

 

 

 

 

 

 

 

/s/ S. Joseph Bruno

 

Director

 

March 28, 2016

S. Joseph Bruno

 

 

 

 

 

 

 

 

 

/s/ Rhodric C. Hackman

 

Director

 

March 28, 2016

Rhodric C. Hackman

 

 

 

 

 

 

 

 

 

/s/ Howard Janzen

 

Director

 

March 28, 2016

Howard Janzen

 

 

 

 

 

 

 

 

 

/s/ Morgan E. O’Brien

 

Director

 

March 28, 2016

Morgan E. O’Brien

 

 

 

 

 

 

 

 

 

/s/ Theodore B. Smith

 

Director

 

March 28, 2016

Theodore B. Smith

 

 

 

 

 

 

 

 

 

/s/ Nick Adamo

 

Director

 

March 28, 2016

Nick Adamo

 

 

 

 

 

5



 

EXHIBIT INDEX

 

Exhibit
Number

 

Description

 

 

 

3.1(1)

 

Second Amended and Restated Certificate of Incorporation.

 

 

 

3.2 (2)

 

Certificate of Amendment to Second Amended and Restated Certificate of Incorporation.

 

 

 

3.3 (3)

 

Amended and Restated Bylaws.

 

 

 

3.4 (4)

 

Amendment to Amended and Restated Bylaws.

 

 

 

3.5 (5)

 

Specimen Common Stock Certificate of the Registrant.

 

 

 

*5.1

 

Opinion of Goodwin Procter LLP.

 

 

 

*23.1

 

Consent of Goodwin Procter LLP (included in Exhibit 5.1).

 

 

 

*23.2

 

Consent of CohnReznick LLP.

 

 

 

*24.1

 

Powers of Attorney (included on the signature page hereof).

 

 

 

*99.1

 

GTT Communications, Inc. 2016 Employee Stock Purchase Plan

 


* Filed herewith.

 

(1) Previously filed as an exhibit to the registrant’s Current Report on form 8-K filed on October 19, 2006, and incorporated herein by reference.

 

(2) Previously filed as an exhibit to the registrant’s Current Report on Form 8-K filed on January 6, 2014, and incorporated herein by reference.

 

(3) Previously filed as an exhibit to the registrant’s Current Report on Form 8-K filed on October 19, 2006, and incorporated herein by reference.

 

(4) Previously filed as an exhibit to the registrant’s Current Report on Form 8-K filed May 10, 2007, and incorporated herein by reference.

 

(5) Previously filed as an exhibit to the registrant’s Registration Statement (Registration Statement No. 333-122303), as amended, filed on January 26, 2005, and incorporated herein by reference.

 

6


Exhibit 5.1

 

March 30, 2016

 

GTT Communications, Inc.

7900 Tysons One Place

Suite 1450

McLean, Virginia 22102

 

Re:          Securities Being Registered under Registration Statement on Form S-8

 

Ladies and Gentlemen:

 

We have acted as counsel to you in connection with your filing of a Registration Statement on Form S-8 (the “Registration Statement”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), on or about the date hereof relating to an aggregate of 500,000 shares of Common Stock, $0.0001 par value per share, of GTT Communications, Inc., a Delaware corporation (the “Company”), that may be issued pursuant to the Company’s 2016 Employee Stock Purchase Plan (the “Plan”).

 

We have reviewed such documents and made such examination of law as we have deemed appropriate to give the opinions set forth below.  We have relied, without independent verification, on certificates of public officials and, as to matters of fact material to the opinion set forth below, on certificates of officers of the Company.

 

The opinion set forth below is limited to the Delaware General Corporation Law (which includes reported judicial decisions interpreting the Delaware General Corporation Law).

 

For purposes of the opinion set forth below, we have assumed that a sufficient number of authorized but unissued shares of the Company’s Common Stock will be available for issuance when the Shares are issued.

 

Based on the foregoing, we are of the opinion that the Shares have been duly authorized and, upon issuance and delivery against payment therefor in accordance with the terms of the Plans, will be validly issued, fully paid and nonassessable.

 

We hereby consent to the inclusion of this opinion as Exhibit 5.1 to the Registration Statement.  In giving our consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.

 

 

Very truly yours,

 

 

 

/S/ GOODWIN PROCTER LLP

 

GOODWIN PROCTER LLP

 


Exhibit 23.2

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the incorporation by reference in the Registration Statement on Form S-8 pertaining to the GTT Communications, Inc. 2016 Employee Stock Purchase Plan of our reports dated March 9, 2016, with respect to the consolidated financial statements and schedule of GTT Communications, Inc. as of December 31, 2015 and 2014 and for each of the three years in the period ended December 31, 2015 and the effectiveness of internal control over financial reporting of GTT Communications, Inc. as of December 31, 2015 included in its Annual Report on Form 10-K for the year ended December 31, 2015, filed with the Securities and Exchange Commission.

 

/s/ CohnReznick LLP

 

Tysons, Virginia

March 30, 2016

 


Exhibit 99.1

 

GTT COMMUNICATIONS, INC.

 

2016 EMPLOYEE STOCK PURCHASE PLAN

 

The purpose of the GTT Communications, Inc. Employee Stock Purchase Plan (“the Plan”) is to provide eligible employees of GTT Communications, Inc. (the “Company”) and each Designated Subsidiary (as defined in Section 11) with opportunities to purchase shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”).  500,000 shares of Common Stock in the aggregate have been approved and reserved for this purpose.  The Plan is intended to constitute an “employee stock purchase plan” within the meaning of Section 423(b) of the Internal Revenue Code of 1986, as amended (the “Code”), and shall be interpreted in accordance with that intent.

 

1.                                       Administration .  The Plan will be administered by the person or persons (the “Administrator”) appointed by the Company’s Board of Directors (the “Board”) for such purpose.  The Administrator has authority at any time to: (i) adopt, alter and repeal such rules, guidelines and practices for the administration of the Plan and for its own acts and proceedings as it shall deem advisable; (ii) interpret the terms and provisions of the Plan; (iii) make all determinations it deems advisable for the administration of the Plan; (iv) decide all disputes arising in connection with the Plan; and (v) otherwise supervise the administration of the Plan.  All interpretations and decisions of the Administrator shall be binding on all persons, including the Company and the Participants.  No member of the Board or individual exercising administrative authority with respect to the Plan shall be liable for any action or determination made in good faith with respect to the Plan or any option granted hereunder.

 

2.                                       Offerings .  The Company will make one or more offerings to eligible employees to purchase Common Stock under the Plan (“Offerings”).  Unless otherwise determined by the

 



 

Administrator, the initial Offering will begin on April 1, 2016 and will end on the following June 30 th  (the “Initial Offering”).  Thereafter, unless otherwise determined by the Administrator, an Offering will begin on the first business day occurring on or after each July 1 st , October 1 st , January 1 st  and April 1 st  and will end on the last business day occurring on or before the following September 30 th , December 31 st ,  March 31 st  and June 30 th , respectively.  The Administrator may, in its discretion, designate a different period for any Offering, provided that no Offering shall exceed one year in duration or overlap any other Offering.

 

3.                                       Eligibility .  All individuals classified as employees on the books and records of the Company and each Designated Subsidiary are eligible to participate in any one or more of the Offerings under the Plan, provided that as of the first day of the applicable Offering (the “Grant Date”) they are employed by the Company or a Designated Subsidiary.  Notwithstanding any other provision herein, individuals who are not contemporaneously classified as employees of the Company or a Designated Subsidiary for purposes of the Company’s or applicable Designated Subsidiary’s books and records are not considered to be eligible employees of the Company or any Designated Subsidiary and shall not be eligible to participate in the Plan.  In the event any such individuals are reclassified as employees of the Company or a Designated Subsidiary for any purpose, including, without limitation, common law or statutory employees, by any action of any third party, including, without limitation, any government agency, or as a result of any private lawsuit, action or administrative proceeding, such individuals shall, notwithstanding such reclassification, remain ineligible for participation.  For the avoidance of doubt, the exclusive means for individuals who are not contemporaneously classified as employees of the Company or a Designated Subsidiary on the Company’s or Designated Subsidiary’s books and records to become eligible to participate in this Plan is through an

 

2



 

amendment to this Plan, duly executed by the Company, which specifically renders such individuals eligible to participate herein.

 

4.                                       Participation .

 

(a)                                  Participants .  An eligible employee who is not a Participant in any prior Offering may participate in a subsequent Offering by submitting an enrollment form to his or her appropriate payroll location within the period beginning 15 business days before the Grant Date and ending on the day prior to the Grant Date (or within such other period or by such other deadline as shall be established by the Administrator for the Offering).

 

(b)                                  Enrollment .  The enrollment form will (i) state either (A) a whole percentage or (B) a fixed dollar amount to be deducted from an eligible employee’s Compensation (as defined in Section 11) per pay period, (ii) authorize the purchase of Common Stock in each Offering in accordance with the terms of the Plan and (iii) include such other information as the Administrator may reasonably request.  An employee who does not enroll in accordance with these procedures will be deemed to have waived the right to participate.  Unless a Participant files a new enrollment form or withdraws from the Plan, such Participant’s deductions and purchases will continue at the same whole percentage or fixed dollar amount of Compensation for future Offerings, provided he or she remains eligible.

 

(c)                                   Notwithstanding the foregoing, participation in the Plan will neither be permitted nor be denied contrary to the requirements of the Code.

 

5.                                       Employee Contributions .  The Company will maintain book accounts showing the amount of payroll deductions made by each Participant for each Offering.  No interest will accrue or be paid on payroll deductions.

 

3



 

6.                                       Deduction Changes .  Except as may be determined by the Administrator in advance of an Offering, a Participant may not increase or decrease his or her payroll deduction during any Offering, but may increase or decrease his or her payroll deduction with respect to the next Offering by filing a new enrollment form within the period beginning 15 business days before the Grant Date and ending on the day prior to the Grant Date (or within such other period or by such other deadline as shall be established by the Administrator for the Offering).  The Administrator may, in advance of any Offering, establish rules permitting a Participant to increase, decrease or terminate his or her payroll deduction during an Offering.

 

7.                                       Withdrawal .  A Participant may withdraw from participation in the Plan by delivering a written notice of withdrawal to his or her appropriate payroll location.  The Participant’s withdrawal will be effective as of the next business day.  Following a Participant’s withdrawal, the Company will promptly refund such individual’s entire account balance under the Plan to him or her (after payment for any Common Stock purchased before the effective date of withdrawal).  Partial withdrawals are not permitted.  Such an employee may not begin participation again during the remainder of the Offering, but may enroll in a subsequent Offering in accordance with Section 4.

 

8.                                       Grant of Options .  On each Grant Date, the Company will grant to each eligible employee who is then a Participant in the Plan an option (“Option”) to purchase on the last day of such Offering (the “Exercise Date”), at the Option Price hereinafter provided for, the lowest of (a) a number of shares of Common Stock determined by dividing such Participant’s accumulated payroll deductions on such Exercise Date by the Option Price (as defined herein), (b) 5,000 shares; or (c) such other lesser maximum number of shares as shall have been established by the Administrator in advance of the Offering; provided, however, that such Option shall be subject to

 

4



 

the limitations set forth below.  Each Participant’s Option shall be exercisable only to the extent of such Participant’s accumulated payroll deductions on the Exercise Date.  The purchase price for each share purchased under each Option (the “Option Price”) will be the lesser of (i) Fair Market Value of the Common Stock on the Grant Date or (ii) 85 percent of Fair Market Value of the Common Stock on the Exercise Date.

 

Notwithstanding the foregoing, no Participant may be granted an option hereunder if such Participant, immediately after the Grant Date, would be treated as owning stock possessing five percent or more of the total combined voting power or value of all classes of stock of the Company or any Parent or Subsidiary (as defined in Section 11).  For purposes of the preceding sentence, the attribution rules of Section 424(d) of the Code shall apply in determining the stock ownership of a Participant, and all stock which the Participant has a contractual right to purchase shall be treated as stock owned by the Participant.  In addition, no Participant may be granted an Option which permits his or her rights to purchase stock under the Plan, and any other employee stock purchase plan of the Company and its Parents and Subsidiaries, to accrue at a rate which exceeds $25,000 of the fair market value of such stock (determined on the Grant Date(s)) for each calendar year in which the Option is outstanding at any time.  The purpose of the limitation in the preceding sentence is to comply with Section 423(b)(8) of the Code and shall be applied taking Options into account in the order in which they were granted.

 

9.                                       Exercise of Option and Purchase of Shares .  Each employee who continues to be a Participant in the Plan on the Exercise Date shall be deemed to have exercised his or her Option on such date and shall acquire from the Company such number of whole shares of Common Stock reserved for the purpose of the Plan as his or her accumulated payroll deductions on such date will purchase at the Option Price, subject to any other limitations contained in the Plan.

 

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Any amount remaining in a Participant’s account at the end of an Offering solely by reason of the inability to purchase a fractional share will be carried forward to the next Offering; any other balance remaining in a Participant’s account at the end of an Offering will be refunded to the Participant promptly.

 

10.                                Issuance of Common Stock .  An electronic book entry with the Company’s transfer agent representing shares of Common Stock purchased under the Plan may be issued only in the name of the employee, in the name of the employee and another person of legal age as joint tenants with rights of survivorship, or in the name of a broker authorized by the employee to be his, her or their nominee for such purpose.

 

11.                                Definitions .

 

The term “Compensation” means the basic or regular rate of compensation.

 

The term “Designated Subsidiary” means any present or future wholly-owned U.S. Subsidiary (as defined below) and any other Subsidiary that has been designated by the Board or the Administrator to participate in the Plan.  The Board or the Administrator may so designate any Subsidiary, or revoke any such designation, at any time and from time to time, either before or after the Plan is approved by the stockholders.

 

The term “Fair Market Value of the Common Stock” on any given date means the fair market value of the Common Stock determined in good faith by the Administrator; provided, however, that if the Common Stock is admitted to quotation on the New York Stock Exchange or another national securities exchange, the determination shall be made by reference to the closing price on such date.  If there is no closing price for such date, the determination shall be made by reference to the last date preceding such date for which there is a closing price.

 

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The term “Parent” means a “parent corporation” with respect to the Company, as defined in Section 424(e) of the Code.

 

The term “Participant” means an individual who is eligible as determined in Section 3 and who has complied with the provisions of Section 4.

 

The term “Subsidiary” means a “subsidiary corporation” with respect to the Company, as defined in Section 424(f) of the Code.

 

12.                                Rights on Termination of Employment .  If a Participant’s employment with the Company or a Designated Subsidiary terminates for any reason before the Exercise Date for any Offering, no payroll deduction will be taken from any pay due and owing to the Participant and the balance in the Participant’s account will be paid to such Participant or, in the case of such Participant’s death, to his or her designated beneficiary as if such Participant had withdrawn from the Plan under Section 7.  An employee will be deemed to have terminated employment, for this purpose, if the Subsidiary that employs him or her, having been a Designated Subsidiary, ceases to be a Subsidiary, or if the employee is transferred to any entity other than the Company or a Designated Subsidiary.  An employee will not be deemed to have terminated employment for purposes of this Plan if the employee is on an approved leave of absence for military service or sickness or for any other purpose approved by the Company, if the employee’s right to reemployment is guaranteed either by a statute or by contract or under the policy pursuant to which the leave of absence was granted or if the Administrator otherwise provides in writing.

 

13.                                Special Rules .  Notwithstanding anything herein to the contrary, the Administrator may adopt special rules applicable to the employees of a particular Designated Subsidiary, whenever the Administrator determines that such rules are necessary or appropriate for the implementation of the Plan in a jurisdiction where such Designated Subsidiary has

 

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employees; provided that such rules are consistent with the requirements of Section 423(b) of the Code.  Any special rules established pursuant to this Section 13 shall, to the extent possible, result in the employees subject to such rules having substantially the same rights as other Participants in the Plan.

 

14.                                Optionees Not Stockholders .  Neither the granting of an Option to a Participant nor the deductions from his or her pay shall constitute such Participant a holder of the shares of Common Stock covered by an Option under the Plan until such shares have been purchased by and issued to him or her.

 

15.                                Rights Not Transferable .  Rights under the Plan are not transferable by a Participant other than by will or the laws of descent and distribution, and are exercisable during the Participant’s lifetime only by the Participant.

 

16.                                Application of Funds .  All funds received or held by the Company under the Plan may be combined with other corporate funds and may be used for any corporate purpose.

 

17.                                Adjustment in Case of Changes Affecting Common Stock .  In the event of a subdivision of outstanding shares of Common Stock, the payment of a dividend in Common Stock or any other change affecting the Common Stock, the number of shares approved for the Plan and the share limitation set forth in Section 8 shall be equitably or proportionately adjusted to give proper effect to such event.

 

18.                                Amendment of the Plan .  The Board may at any time and from time to time amend the Plan in any respect, except that without the approval within 12 months of such Board action by the stockholders, no amendment shall be made increasing the number of shares approved for the Plan or making any other change that would require stockholder approval in

 

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order for the Plan, as amended, to qualify as an “employee stock purchase plan” under Section 423(b) of the Code.

 

19.                                Insufficient Shares .  If the total number of shares of Common Stock that would otherwise be purchased on any Exercise Date plus the number of shares purchased under previous Offerings under the Plan exceeds the maximum number of shares issuable under the Plan, the shares then available shall be apportioned among Participants in proportion to the amount of payroll deductions accumulated on behalf of each Participant that would otherwise be used to purchase Common Stock on such Exercise Date.

 

20.                                Termination of the Plan .  The Plan may be terminated at any time by the Board.  Upon termination of the Plan, all amounts in the accounts of Participants shall be promptly refunded.

 

21.                                Governmental Regulations .  The Company’s obligation to sell and deliver Common Stock under the Plan is subject to obtaining all governmental approvals required in connection with the authorization, issuance, or sale of such stock.

 

22.                                Governing Law .  This Plan and all Options and actions taken thereunder shall be governed by, and construed in accordance with, the laws of the State of Delaware, applied without regard to conflict of law principles.

 

23.                                Issuance of Shares .  Shares may be issued upon exercise of an Option from authorized but unissued Common Stock, from shares held in the treasury of the Company, or from any other proper source.

 

24.                                Tax Withholding .  Participation in the Plan is subject to any minimum required tax withholding on income of the Participant in connection with the Plan.  Each Participant agrees, by entering the Plan, that the Company and its Subsidiaries shall have the right to deduct

 

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any such taxes from any payment of any kind otherwise due to the Participant, including shares issuable under the Plan.

 

25.                                Notification Upon Sale of Shares .  Each Participant agrees, by entering the Plan, to give the Company prompt notice of any disposition of shares purchased under the Plan where such disposition occurs within two years after the date of grant of the Option pursuant to which such shares were purchased or within one year after the date such shares were purchased.

 

26.                                Effective Date and Approval of Shareholders .  The Plan shall become effective upon adoption by the Board and shall be approved by stockholders in accordance with applicable state law, the Company’s articles of incorporation and bylaws and the listing rules of the New York Stock Exchange within 12 months thereafter.  If the stockholders fail to approve the Plan within 12 months after its adoption by the Board, then any Options under the Plan shall be rescinded no additional Options shall thereafter be made under the Plan.

 

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