Attached files
| file | filename |
|---|---|
| EX-21 - SUBSIDIARIES OF THE REGISTRANT - AVID TECHNOLOGY, INC. | exhibit_21.htm |
| EX-3.3 - AMENDED AND RESTATED BY-LAWS, AS AMENDED - AVID TECHNOLOGY, INC. | exhibit_3-3.htm |
| EX-31.1 - CEO SECTION 302 CERTIFICATION - AVID TECHNOLOGY, INC. | exhibit_31-1.htm |
| EX-23.1 - CONSENT OF ERNST & YOUNG LLP - AVID TECHNOLOGY, INC. | exhibit_23-1.htm |
| EX-31.2 - CFO SECTION 302 CERTIFICATION - AVID TECHNOLOGY, INC. | exhibit_31-2.htm |
| EX-32.1 - CEO & CFO SECTION 906 CERTIFICATION - AVID TECHNOLOGY, INC. | exhibit_32-1.htm |
| EX-10.36 - LETTER AGREEMENT BETWEEN AVID AND MARTIN VANN - AVID TECHNOLOGY, INC. | exhibit_10-36.htm |
| EX-10.37 - FORM OF EXECUTIVE OFFICER EMPLOYMENT AGREEMENT - AVID TECHNOLOGY, INC. | exhibit_10-37.htm |
| 10-K - FORM 10-K FOR THE YEAR ENDED DECEMBER 31, 2009 - AVID TECHNOLOGY, INC. | f10k_123109.htm |
EXHIBIT
10.8
AVID
TECHNOLOGY, INC.
SECOND
AMENDED AND RESTATED
1996
EMPLOYEE STOCK PURCHASE PLAN
(as
amended on August 12, 2008 and December 15, 2009)
The
purpose of this Second Amended and Restated 1996 Employee Stock Purchase Plan
(the "Plan") is to provide eligible employees of Avid Technology, Inc. (the
"Company") and certain of its subsidiaries with opportunities to purchase shares
of the Company's common stock, $0.01 par value per share (the "Common Stock"),
commencing on August 1, 1996. An aggregate of Two Million Five
Hundred Thousand (2,500,000) shares of Common Stock have been approved for this
purpose. This Plan is intended to qualify as an "employee stock
purchase plan" as defined in Section 423 of the Internal Revenue Code of 1986,
as amended, and the regulations promulgated thereunder (the "Code"), and shall
be interpreted consistent therewith.
1. Administration. The
Plan will be administered by the Company's Board of Directors (the "Board") or
by a Committee appointed by the Board (the "Committee"). The Board or
the Committee has authority to make rules and regulations for the administration
of the Plan and its interpretation and decisions with regard thereto shall be
final and conclusive.
2. Eligibility. Participation
in the Plan will neither be permitted nor denied contrary to the requirements of
Section 423 of the Code. All employees of the Company, including
members of the Board who are employees, and all employees of any subsidiary of
the Company (as defined in Section 424(f) of the Code) unless the Board or the
Committee specifies otherwise (each subsidiary participating in the Plan is
referred to herein as a "Participating Subsidiary"), are eligible to participate
in any one or more of the offerings of Options (as defined in Section 9) to
purchase Common Stock under the Plan provided that:
(a) they
are regularly employed by the Company or a Participating Subsidiary for more
than twenty (20) hours per week and for more than five (5) months in a calendar
year; and
(b) they
have been employed by the Company or a Participating Subsidiary for at least two
(2) weeks prior to enrolling in the Plan; and
(c) they
are employees of the Company or a Participating Subsidiary on the first day of
the applicable Plan Period (as defined below).
No
employee may be granted an Option hereunder if such employee, immediately after
the Option is granted, would own five percent (5%) or more of the total
combined voting power or value of the stock of the Company or any
subsidiary. For purposes of the preceding sentence, the attribution
rules of Section 424(d) of the Code shall apply in determining the stock
ownership of an employee, and all stock which the employee has a contractual
right to purchase shall be treated as stock owned by the employee.
3. Offerings. The
Company will make offerings ("Offerings") to employees to purchase Common Stock
under this Plan. Offerings will begin each February 1, May 1, August
1 and November 1, or the first business day thereafter (the "Offering
Commencement Dates"). Each Offering Commencement Date will begin a
three (3) month period (a "Plan Period") during which payroll deductions will be
made and held for the purchase of Common Stock at the end of the Plan
Period. The Board or the Committee may, at its discretion, choose a
different Plan Period of twelve (12) months or fewer.
4. Participation. An
employee eligible on the Offering Commencement Date of any Offering may
participate in such Offering by completing and forwarding a payroll deduction
authorization form to the employee's appropriate payroll office at least seven
(7) days prior to the applicable Offering Commencement
Date. The form will authorize a regular payroll deduction from
the Compensation (as defined below) received by the employee during the Plan
Period. Unless an employee files a new form or withdraws from the
Plan, his or her deductions and purchases will continue at the same rate for
future Offerings under the Plan as long as the Plan remains in
effect. The term "Compensation" means the amount of money reportable
on the employee's Federal Income Tax Withholding Statement, excluding overtime,
shift premium, incentive or bonus awards, allowances and reimbursements for
expenses such as relocation allowances for travel expenses, income or gains on
the exercise of Company stock options or stock appreciation rights, and similar
items, whether or not shown on the employee's Federal Income Tax Withholding
Statement, but including, in the case of salespersons, sales commissions to the
extent determined by the Board or the Committee.
5. Deductions.
The
Company will maintain payroll deduction accounts for all participating
employees. With respect to any Offering made under this Plan, an
employee may authorize a payroll deduction in any dollar amount up to a maximum
of ten percent (10%) of the Compensation he or she receives during the Plan
Period or such shorter period during which deductions from payroll are made.
However, the maximum contribution during any Plan Period cannot exceed
$2,500. The Board or the Committee may set a minimum payroll
deduction requirement.
6. Deduction
Changes. An employee may discontinue his or her payroll
deduction once during any Plan Period, by filing a new payroll deduction
authorization form. However, an employee may not decrease or
increase his or her payroll deduction during a Plan Period. If an
employee elects to discontinue his or her payroll deductions during a Plan
Period, but does not elect to withdraw his or her funds pursuant to Section 8
hereof, funds deducted prior to his or her election to discontinue will be
applied to the purchase of Common Stock on the Exercise Date (as defined in
Section 9).
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7. Interest. Interest
will not be paid on any employee accounts, except to the extent that the Board
or the Committee, in its sole discretion, elects to credit employee
accounts with interest at such per annum rate as it may from time to time
determine.
8. Withdrawal
of Funds. An employee may at any time prior to the close of
business on the date fourteen (14) days prior to the last business day in the
then current Plan Period and for any reason permanently draw out the balance
accumulated in the employee's account and thereby withdraw from participation in
an Offering. Partial withdrawals are not permitted. The
employee may not begin participation again during the remainder of the Plan
Period. The employee may participate in any subsequent Offering in
accordance with terms and conditions established by the Board or the
Committee.
9. Purchase
of Shares. On the Offering Commencement Date of each Plan
Period, the Company will grant to each eligible employee who is then a
participant in the Plan an option ("Option") to purchase on the last business
day of such Plan Period (the "Exercise Date") at the applicable Option Price (as
defined below) the largest number of whole shares of Common Stock resulting from
the employee’s accumulated payroll deductions as of the Exercise Date divided by
the Option Price for such Plan Period; provided, however, that no employee may
be granted an Option which permits his or her rights to purchase Common Stock
under this Plan and any other employee stock purchase plan (as defined in
Section 423(b) of the Code) of the Company and its subsidiaries, to accrue at a
rate which exceeds $25,000 of the fair market value of such Common Stock for
each calendar year in which the Option is outstanding at any time.
The
purchase price for each share purchased will be 85% of the closing price of the
Common Stock on the Exercise Date (the "Option Price"). Such closing
price shall be (a) the closing price on the NASDAQ Global Select Market or
other national securities exchange on which the Common Stock is listed, or (b)
the average of the closing bid and asked prices in the over-the-counter market,
whichever is applicable. If no sales of Common Stock were made on
such a day, the price of the Common Stock for purposes of clause (a) above
shall be the reported price for the next preceding day on which sales were
made.
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 at the Option Price on such
date and shall be deemed to have purchased from the Company the number of whole
shares of Common Stock reserved for the purpose of the Plan that his or her
accumulated payroll deductions on such date will pay for (but not in excess of
the maximum number determined in the manner set forth above).
Any
balance remaining in an employee's payroll deduction account at the end of a
Plan Period will be automatically refunded to the employee, except that any
balance which is less than the purchase price of one share of Common Stock will
be carried forward into the employee's payroll deduction account for the
following Offering, unless the employee elects not to participate in the
following Offering under the Plan, in which case the balance in the employee's
account shall be refunded.
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10. Holding
Period. Any shares of Common Stock issued to a participating
employee pursuant to this Plan may not be sold, assigned, pledged, encumbered or
otherwise transferred by such employee for a period of three (3) months after
the applicable Exercise Date. By exercising an Option, the employee shall be
deemed to have agreed to these restrictions on the transferability of such
shares.
11. Issuance
of Shares. Promptly following the end of each Offering, the
number of shares of Common Stock purchased under the Plan shall, subject to the
holding period requirement set forth above, be deposited into an account
established in the name of the employee at a stock brokerage or other financial
services firm designated by the Company (the "ESPP Broker").
The
employee may direct, by written notice to the Company at the time during his or
her enrollment in the Plan, that his or her ESPP broker account be established
in the name of the employee and another person of legal age as joint tenants
with rights of survivorship or (in the Company’s sole discretion) in the street
name of a brokerage firm, bank or other nominee holder designated by the
employee.
12. Rights
on Retirement, Death or Termination of Employment. In the
event of a participating employee's termination of employment prior to the last
business day of a Plan Period, no payroll deduction shall be taken from any pay
due and owing to an employee following the effective date of such
termination. The balance in the employee's account shall be paid to
the employee or, in the event of the employee's death, (a) to a beneficiary
previously designated in a revocable notice signed by the employee (with any
spousal consent required under state law), (b) in the absence of such a
designated beneficiary, to the executor or administrator of the employee's
estate, or (c) if no such executor or administrator has been appointed to
the knowledge of the Company, to such other person(s) as the Company may, in its
discretion, designate. If, prior to the last business day of the Plan
Period, the Participating Subsidiary by which an employee is employed shall
cease to be a subsidiary of the Company, or if the employee is transferred to
a subsidiary of the Company that is not a Participating Subsidiary, the
employee shall be deemed to have terminated employment for the purposes of
this Plan.
13. Optionees
Not Stockholders. Neither the granting of an Option to an
employee nor the deductions from his or her pay shall constitute such employee a
stockholder of the shares of Common Stock covered by an Option under this Plan
until such shares have been purchased by and issued to him or her.
14. Rights
Not Transferable. Rights under this Plan are not transferable
by a participating employee other than by will or the laws of descent and
distribution, and are exercisable during the employee's lifetime only by the
employee.
15. Application
of Funds. All funds received or held by the Company under this
Plan may be combined with other corporate funds and may be used for any
corporate purpose.
16. Changes
in Capitalization. In the event of any stock split, reverse
stock split, stock dividend, recapitalization, combination of shares,
reclassification of shares, spin-off or other similar change in capitalization
or event, or any distribution to holders of Common Stock other than an ordinary
cash dividend, (i) the number and class of securities available under this Plan,
(ii) the share limitations set forth in Section 9, and (iii) the Option Price
shall be appropriately adjusted to the extent determined by the Board or the
Committee.
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17. Reorganization
Events. A “Reorganization Event” shall mean: (a)
any merger or consolidation of the Company with or into another entity as a
result of which all of the Common Stock of the Company is converted into or
exchanged for the right to receive cash, securities or other property or is
cancelled, (b) any exchange of all of the Common Stock of the Company for cash,
securities or other property pursuant to a share exchange transaction or (c) any
liquidation or dissolution of the Company.
In
connection with a Reorganization Event, the Board or the Committee shall take
any one or more of the following actions as to outstanding Options on such terms
as the Board or the Committee determines: (i) provide that Options shall be
assumed, or substantially equivalent Options shall be substituted, by the
acquiring or succeeding corporation (or an affiliate thereof), (ii) upon written
notice to employees, provide that all outstanding Options will be terminated as
of the effective date of the Reorganization Event and that all such outstanding
Options will become exercisable to the extent of accumulated payroll deductions
as of a date specified by the Board or the Committee in such notice, which date
shall not be less than ten (10) days preceding the effective date of the
Reorganization Event, (iii) upon written notice to employees, provide that all
outstanding Options will be cancelled as of a date prior to the effective date
of the Reorganization Event and that all accumulated payroll deductions will be
returned to participating employees on such date, (iv) in the event of a
Reorganization Event under the terms of which holders of Common Stock will
receive upon consummation thereof a cash payment for each share surrendered in
the Reorganization Event (the “Acquisition Price”), make or provide for a cash
payment to an employee equal to (A) the Acquisition Price times the number of
shares of Common Stock subject to the employee’s Option (to the extent the
Option Price does not exceed the Acquisition Price) minus (B) the aggregate
Option Price of such Option, in exchange for the termination of such Option, (v)
provide that, in connection with a liquidation or dissolution of the Company,
Options shall convert into the right to receive liquidation proceeds (net of the
Option Price thereof) and (vi) any combination of the foregoing.
For
purposes of clause (i) above, an Option shall be considered assumed if,
following consummation of the Reorganization Event, the Option confers the right
to purchase, for each share of Common Stock subject to the Option immediately
prior to the consummation of the Reorganization Event, the consideration
(whether cash, securities or other property) received as a result of the
Reorganization Event by holders of Common Stock for each share of Common Stock
held immediately prior to the consummation of the Reorganization Event (and if
holders were offered a choice of consideration, the type of consideration chosen
by the holders of a majority of the outstanding shares of Common Stock);
provided, however, that if the consideration received as a result of the
Reorganization Event is not solely common stock of the acquiring or succeeding
corporation (or an affiliate thereof), the Company may, with the consent of the
acquiring or succeeding corporation, provide for the consideration to be
received upon the exercise of Options to consist solely of common stock of the
acquiring or succeeding corporation (or an affiliate thereof) equivalent in
value (as determined by the Board) to the per share consideration received by
holders of outstanding shares of Common Stock as a result of the Reorganization
Event.
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18. Amendment
of the Plan. The Board may at any time, and from time to time,
amend this Plan in any respect, except that (a) if the approval of any such
amendment by the shareholders of the Company is required by Section 423 of the
Code, such amendment shall not be effected without such approval, and (b) in no
event may any amendment be made which would cause the Plan to fail to comply
with Section 423 of the Code.
19. Insufficient
Shares. In the event that the total number of shares of Common
Stock specified in elections to be purchased under any Offering plus the number
of shares purchased under previous Offerings under this Plan exceeds the maximum
number of shares issuable under this Plan, the Board or the Committee will allot
the shares then available on a pro rata basis.
20. Termination
of the Plan. This Plan may be terminated at any time by the
Board. Upon termination of this Plan all amounts in the accounts of
participating employees shall be promptly refunded.
21. Governmental
Regulations. The Company's obligation to sell and deliver
Common Stock under this Plan is subject to the listing requirements of the
NASDAQ Global Select Market or other applicable national stock exchange and the
approval of all governmental authorities required in connection with the
authorization, issuance or sale of such stock. The Plan shall be
governed by Delaware law except to the extent that such law is preempted by
federal law.
22. Issuance
of Shares. Shares may be issued upon exercise of an Option
from authorized but unissued Common Stock, from shares of Common Stock held in
the treasury of the Company, or from any other proper source.
23. Notification
upon Sale of Shares. Each employee agrees, by enrolling in the
Plan, to promptly give the Company 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.
24. Effective
Date and Approval of Shareholders. The Company's 1996 Employee
Stock Purchase Plan took effect on February 12, 1996 subject to approval by the
stockholders of the Company as required by Section 423 of the Code, which
approval was obtained on June 5, 1996. This Second Amended and
Restated 1996 Employee Stock Purchase shall be effective on May 1, 2008, subject
to the number of authorized shares of Common Stock (1,700,000) previously
approved by the Company's stockholders until such date as the greater number of
authorized shares set forth in the introductory paragraph of this Plan
(2,500,000) shall be approved by the stockholders of the Company as required by
Section 423 of the Code. The Company shall submit the increase in the
number of authorized shares under the Plan for stockholder approval at the
Company's 2008 Annual Meeting of Stockholders on May 21, 2008.
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AVID
TECHNOLOGY, INC.
Amendment
No. 1 to the Avid Technology, Inc. Second Amended and Restated 1996 Employee
Stock Purchase Plan
That
Section 2(a) of the Avid Technology, Inc. Second Amended and Restated 1996
Employee Stock Purchase Plan is hereby deleted in its entirety.
Approved
by the Board of Directors of Avid Technology, Inc. on August 12,
2008
AVID
TECHNOLOGY, INC.
Amendment
No. 2 to the Avid Technology, Inc. Second Amended and Restated 1996 Employee
Stock Purchase Plan
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1. The
following sentence be added to the end of the second paragraph of Section
2 -
Eligibility:
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The
Company retains the discretion to determine which eligible employees may
participate in an offering pursuant to and consistent with Treasury Regulation
Sections 1.423-2(e) and (f).
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2. Section
5 - Deductions be and hereby is deleted in its entirety and the following
is inserted in lieu
thereof:
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5. Deductions. The
Company will maintain payroll deduction accounts for all participating
employees. With respect to any Offering made under this Plan, an
employee may authorize a payroll deduction in any dollar amount up to a maximum
of ten percent (10%) of the Compensation he or she receives during the Plan
Period or such shorter period during which deductions from payroll are
made. However, the maximum contribution during any Plan Period cannot
exceed $2,500. The Board or the Committee may set a minimum payroll
deduction requirement. In addition, the maximum number of shares that
may be purchased by a participating employee during any Plan Period may not
exceed the amount equal to the product of $2,083 and the number of full months
in the Plan Period divided by the closing price of Avid common stock on the
Offering Commencement Date of each Plan Period.
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3. New
Sections 24 and 25 be inserted before the last section of the plan
entitled Effective Date and Approval of
Shareholders.
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24. Grants
to Employees in Foreign Jurisdictions. The Company may, in
order to comply with the laws of a foreign jurisdiction, grant Options to
employees of the Company or a Participating Subsidiary who are citizens or
residents of such foreign jurisdiction (without regard to whether they are also
citizens of the United States or resident aliens (within the meaning of Section
7701(b)(1)(A) of the Code)) with terms that are less favorable (but not more
favorable) than the terms of Options granted under the Plan to employees of the
Company or a Participating Subsidiary who are resident in the United
States. Notwithstanding the preceding provisions of this Plan,
employees of the Company or a Participating Subsidiary who are citizens or
residents of a foreign jurisdiction (without regard to whether they are also
citizens of the United States or resident aliens (within the meaning of Section
7701(b)(1)(A) of the Code)) may be excluded from eligibility under the Plan if
(a) the grant of an Option under the Plan to a citizen or resident of the
foreign jurisdiction is prohibited under the laws of such jurisdiction or (b)
compliance with the laws of the foreign jurisdiction would cause the Plan to
violate the requirements of Section 423 of the Code. The Company may
add one or more appendices to this Plan describing the operation of the Plan in
those foreign jurisdictions in which employees are excluded from participation
or granted less favorable Options.
25. Authorization
of Sub-Plans. The Board may from time to time establish one or more
sub-plans under the Plan with respect to one or more Participating Subsidiaries,
provided that such sub-plan complies with Section 423 of the Code.
Approved
by the Board of Directors on December 15, 2009
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