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8-K - FORM 8-K - ACME PACKET INC | b86411e8vk.htm |
Exhibit 10.1
ACME
PACKET, INC.
2011
Employee Stock Purchase Plan
1. Purpose and History.
The purpose of this Plan is to give Employees a convenient means
of purchasing Common Stock of the Company through payroll
deductions. The Company believes that ownership of Common Stock
by Employees will foster greater Employee interest in the
Companys growth and development.
This Plan was adopted by the Board on March 18, 2011. It is
the Companys intention that the Plan qualify as an
employee stock purchase plan under Section 423
of the Code. The provisions of the Plan shall, accordingly, be
construed in a manner consistent with the requirements of that
Code section.
2. Definitions.
As used in this Plan, the following terms shall have the
following meanings:
2.1. Board means the Companys Board of
Directors.
2.2. Code means the Internal Revenue Code of
1986, as amended from time to time, or any successor statute
thereto, and any regulations issued from time to time thereunder.
2.3. Committee means the Compensation
Committee of the Board or such other committee delegated
responsibility by the Board for the administration of the Plan,
as provided in Section 4 of the Plan. For any period during
which no such committee is in existence Committee
shall mean the Board and all authority and responsibility
assigned to the Committee under the Plan shall be exercised, if
at all, by the Board.
2.4. Common Stock or Stock
means the common stock, par value $0.001 per share, of the
Company.
2.5. Company means Acme Packet, Inc., a
corporation organized under the laws of the State of Delaware.
2.6. Compensation means an Employees
total compensation, including base pay or regular earnings plus
commissions, overtime, and bonuses.
2.7. Continuous Status as an Employee means
the absence of any interruption or termination of service as an
Employee. Continuous Status as an Employee shall not be
considered interrupted in the case of (i) sick leave,
(ii) military leave, (iii) any other leave of absence
approved by the Plan administrator, provided that such leave is
for a period of not more than three (3) months, unless
reemployment upon the expiration of such leave is guaranteed by
contract or statute, or unless provided otherwise pursuant to
Company policy adopted from time to time or (iv) transfers
between locations of the Company or between the Company and a
Covered Entity.
2.8. Contributions means all amounts credited
to the account of a Participating Employee pursuant to the Plan.
2.9. Corporate Transaction means (i) any
merger or consolidation of the Company with or into another
entity as a result of which the Stock of the Company is
converted into or exchanged for the
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right to receive cash, securities or other property or is
cancelled, (ii) any sale or exchange of all of the Stock of
the Company for cash, securities or other property,
(iii) any sale, transfer, or other disposition of all or
substantially all of the Companys assets to one or more
other persons in a single transaction or series of related
transactions or (iv) any liquidation or dissolution of the
Company.
2.10. Covered Entity means any Subsidiary
that may adopt the Plan from time to time in accordance with the
procedures set forth in Section 14 hereof with the
Companys consent.
2.11. Effective Date means June 1, 2011.
2.12. Employee means an employee of the
Company or a Covered Entity who is (i) customarily employed
for at least twenty (20) hours per week and more than five
(5) months in a calendar year and (ii) not a
highly-compensated employee within the meaning of
Section 414(q) of the Code and an officer of the Company.
2.13. Fair Market Value has the meaning set
forth in Section 6.4(c) below.
2.14. New Plan Period Termination Date has
the meaning set forth in Section 12.4 below.
2.15. Participating Employee
means an Employee who elects to participate in the Plan pursuant
to Section 6.2, below.
2.16. Payroll Deduction means a payroll
deduction specified by a Participating Employee to be made from
each payment for the pay periods during the Plan Period for the
purchase of Shares under this Plan.
2.17. Plan means this Acme Packet, Inc. 2011
Employee Stock Purchase Plan.
2.18. Plan Period Commencement Date means the
first day of each Plan Period.
2.19. Plan Period Termination Date means the
last day of each Plan Period.
2.20. Plan Period means each successive
period described in Section 6.1, at the end of which each
Participating Employee shall purchase Shares.
2.21. Purchase Price means with respect to a
Plan Period an amount equal to eighty five percent (85%) of the
lower of (a) the Fair Market Value of a Share on the Plan
Period Commencement Date and (b) the Fair Market Value of a
Share on the Plan Period Termination Date.
2.22. Share means a share of Common Stock, as
adjusted in accordance with Section 12 of the Plan.
2.23. Subsidiary means a corporation, in an
unbroken chain of corporations beginning with the Company if, at
the time of the granting of the option, each of the corporations
other than the last corporation in the unbroken chain owns stock
possessing fifty percent (50%) or more of the total combined
voting power of all classes of stock in one of the other
corporations in such chain.
3. Shares Reserved For The Plan.
Subject to adjustment as provided in Section 12 hereof, the
number of Shares reserved for issuance hereunder shall be two
million five hundred thousand (2,500,000). For purposes of
applying the foregoing limitation, if any option expires,
terminates or is cancelled for any reason without having been
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exercised in full, the Shares not purchased or received by the
Employee shall again be available for options to be granted
under the Plan. Shares issued pursuant to the Plan may be either
authorized but unissued shares or shares held by the Company in
its treasury.
4. Administration.
The Plan shall be administered by the Committee, provided,
however, that at any time and on any one or more occasions
the Board may itself exercise any of the powers and
responsibilities assigned the Committee under the Plan and when
so acting shall have the benefit of all of the provisions of the
Plan pertaining to the Committees exercise of its
authorities hereunder; and provided, further, that the
Committee may delegate its duties in order to facilitate the
purchase and transfer of Shares and to provide for the
day-to-day
administration of the Plan with all powers necessary to enable
the delegate to carry out its duties in that respect. Subject to
the provisions of the Plan, the Committee shall have complete
authority, in its discretion, to make or to select the manner of
making all determinations with respect to each option to be
granted by the Company under the Plan. In making such
determinations, the Committee may take into account such factors
as the Committee, in its discretion, shall deem relevant.
Subject to the provisions of the Plan, the Committee shall also
have complete authority to interpret the Plan, to prescribe,
amend and rescind rules and regulations relating to the Plan and
to make all other determinations necessary or advisable for the
administration of the Plan. The Committees determinations
made in good faith on matters referred to in the Plan shall be
final, binding and conclusive on all persons having or claiming
any interest under the Plan or an option granted pursuant to
hereto.
5. Eligibility for Awards.
Subject to the requirements of Section 6.2 and the
limitations imposed by Section 423(b) of the Code, any
Employee shall be eligible to participate in a Plan Period under
the Plan as of the applicable Plan Period Commencement Date.
Notwithstanding any provision of the Plan to the contrary, no
Employee shall be granted an option under the Plan if
(i) immediately after the grant, such Employee (taking into
account stock which would be attributed to such Employee
pursuant to Section 424(d) of the Code) would own capital
stock of the Company
and/or hold
outstanding options to purchase stock possessing five percent
(5%) or more of the total combined voting power or value of all
classes of stock of the Company or of any Subsidiary of the
Company, or (ii) such option would permit his or her rights
to purchase stock under all employee stock purchase plans
(described in Section 423 of the Code) of the Company and
its Subsidiaries to accrue at a rate which exceeds twenty-five
thousand dollars ($25,000) of the Fair Market Value of such
stock (determined on the basis of the Fair Market Value of such
stock on the date or dates such option was granted) for each
calendar year in which such option is outstanding at any time.
6. Terms of Participation.
6.1. Plan Periods. Each calendar
year shall be divided into two six-month Plan Periods, the first
beginning on June 1 and ending on the immediately following
November 30, and the second beginning on December 1 and
ending on the immediately following May 31. The first Plan
Period shall begin on June 1, 2011, unless the Committee
shall have determined otherwise and communicated such
determination to eligible Employees at least five
(5) business days prior to the date the Plan Period is to
commence. Each such period is referred to herein as a Plan
Period.
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6.2. Election to Participate and Plan
Deductions.
(a) Shares shall be offered for purchase under the Plan
through a series of successive, non-overlapping Plan Periods
until such time as (i) the maximum number of Shares
available for issuance under the Plan shall have been purchased
or (ii) the Plan shall have been sooner terminated. At any
time and from time to time, the Committee may change the
duration
and/or the
frequency of Plan Periods or suspend operation of the Plan with
respect to Plan Periods not yet commenced.
(b) An eligible Employee may become a Participating
Employee in the Plan by completing an enrollment agreement on
the form provided by the Company and filing it with the Company
prior to the Companys enrollment deadline for the Plan
Period in which such Employee desires to participate, unless a
later time for filing the subscription agreement is set by the
Committee for all eligible Employees with respect to a given
Plan Period. The enrollment agreement shall set forth the
percentage of the Employees Compensation (subject to
Section 6.2(c) below) to be paid as Contributions pursuant
to the Plan. Payroll deductions shall commence on the first
payroll following the Plan Period Commencement Date and shall
end on the last payroll paid on or prior to the Plan Period
Termination Date, unless sooner terminated by the Participating
Employee as provided in Section 6.7.
(c) A Participating Employee may elect to have payroll
deductions taken from each payroll during any Plan Period in an
amount not less than one percent (1%) and not more than fifteen
percent (15%) in one percent (1%) increments (or such other
percentage as the Committee may establish from time to time
before any Plan Period Commencement Date) of such Participating
Employees Compensation on each payroll date during the
Plan Period. All payroll deductions made by a Participating
Employee shall be credited to his or her account under the Plan.
No interest shall accrue on Contributions to the Plan. A
Participating Employee may not make any additional payments into
such account.
(d) Unless the Committee announces otherwise before the
start of a particular Plan Period, an eligible Employees
enrollment agreement in effect at the end of one Plan Period
will remain in effect for each subsequent Plan Period.
(e) A Participating Employee may discontinue his or her
participation in the Plan as provided in Section 6.7. In
addition, if the Committee has so announced to Employees at
least five (5) days prior to the scheduled beginning of the
next Plan Period to be affected by the Committees
determination, a Participating Employee may, on one occasion
only during each Plan Period, change the rate of his or her
Contributions with respect to the Plan Period by completing and
filing with the Company a new enrollment agreement authorizing a
change in the payroll deduction rate; provided, however,
that no such change shall enable a Participating Employee to
resume Contributions other than as of a Plan Period Commencement
Date following a withdrawal of Contributions during a Plan
Period pursuant to Section 6.7. Any such change in payroll
deduction rate shall be effective as of the first payroll period
following the date of filing of the new enrollment agreement, if
the agreement is filed at least ten (10) business days
prior to such period and, if not, as of the second following
payroll period.
(f) Notwithstanding the foregoing, to the extent necessary
to comply with Section 423(b)(8) of the Code and
Section 5 herein, a Participating Employees Payroll
Deductions may be decreased during any Plan Period to zero
percent (0%). Payroll Deductions reduced to zero percent (0%) in
compliance with this Section 6.2(f) shall re-commence
automatically at the rate provided in such Participating
Employees enrollment agreement at the beginning of the
next Plan Period, unless terminated by the Participating
Employee as provided in Section 6.7.
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(g) Any amounts left over in a Participating
Employees account upon expiration or termination of the
Plan (or upon a withdrawal by a Participating Employee or upon a
Participating Employee purchasing the maximum dollar amount or
number of shares hereunder) shall be returned to the
Participating Employee.
6.3. Shares.
(a) If the Committee determines that, on a given Plan
Period Termination Date, the number of shares with respect to
which options are to be exercised may exceed (i) the number
of Shares that were available for sale under the Plan on the
Plan Period Commencement Date, or (ii) the number of shares
available for sale under the Plan on such Plan Period
Termination Date, then the Company shall make a pro rata
allocation of the Shares available for purchase on such Plan
Period Termination Date in as uniform a matter as shall be
practicable and as it shall determine in its sole discretion to
be equitable among all Participating Employees exercising
options to purchase Common Stock on such Plan Period Termination
Date. The Company shall make pro rata allocation of the Shares
available on the Plan Period Commencement Date pursuant to the
preceding sentence, notwithstanding any authorization of
additional Shares for issuance under the Plan by the
Companys stockholders subsequent to such Plan Period
Commencement Date.
(b) The Participating Employee shall have no interest or
voting right in Shares covered by his or her option until such
option has been exercised.
(c) Shares to be delivered to a Participating Employee
under the Plan will be registered in the name of the
Participating Employee.
6.4. Grant of Options.
(a) A Participating Employee shall be granted a separate
purchase right for each Plan Period in which he or she
participates. The purchase right shall be granted on the Plan
Period Commencement Date for the Plan Period and shall provide
the Participating Employee with the right to purchase Shares
upon the terms set forth below.
(b) The number of Shares purchasable by a Participating
Employee on each Plan Period Termination Date during the Plan
Period, pursuant to Section 6.5 below, shall be determined
by dividing such Employees Contributions accumulated
during such Plan Period prior to such Plan Period Termination
Date and retained in the Participating Employees account
as of the Plan Period Termination Date by the applicable
Purchase Price. However, the maximum number of Shares a
Participating Employee may purchase during each Plan Period
shall be one thousand (1,000) shares of Common Stock, unless
otherwise determined by the Committee and announced to Employees
at least five (5) days prior to the scheduled beginning of
the next Plan Period to be affected by the Committees
determination, provided further that such purchase shall be
subject to the limitations set forth in Sections 6.2(c).
(c) The fair market value of the Shares on a given date
(the Fair Market Value) means the value of a share
of Common Stock on a particular date determined by such methods
or procedures as may be established by the Committee. Unless
otherwise determined by the Committee, the Fair Market Value of
the Common Stock as of any date, is the closing price for the
common stock as reported by the NASDAQ Global Select Market (or
on any other national securities exchange on which the common
stock is then listed) for that date or, if no closing price is
reported for that date, the closing price on the next preceding
date for which a closing price was reported.
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6.5. Exercise.
Unless a Participating Employee withdraws from the Plan as
provided in Section 6.7, each purchase right shall be
automatically exercised on each Plan Period Termination Date,
and Shares shall accordingly be purchased on behalf of each
Participating Employee on each such Plan Period Termination
Date. The purchase shall be effected by applying the
Participating Employees Contributions for the Plan Period
ending on such Plan Period Termination Date to the purchase of
Shares (subject to the limitation on the maximum number of
Shares purchasable per Participating Employee on any one Plan
Period Termination Date) at the Purchase Price in effect for the
Participating Employee for that Plan Period Termination Date.
The Shares purchased upon exercise of an option hereunder shall
be deemed to be transferred to the Participating Employee on the
Plan Period Termination Date. During his or her lifetime, a
Participating Employees option to purchase Shares
hereunder is exercisable only by him or her.
6.6. Delivery.
As promptly as practicable after each Plan Period Termination
Date, the Company shall arrange the delivery to each
Participating Employee, as appropriate, of the Shares purchased
upon exercise of his or her option.
6.7. Voluntary Withdrawal; Termination of
Employment.
(a) A Participating Employee may withdraw all but not less
than all of the Contributions credited to his or her account
under the Plan at any time prior to each Plan Period Termination
Date by giving written notice to the Company in accordance with
the Companys policy regarding withdrawal from the Plan.
All of the Participating Employees Contributions credited
to his or her account will be paid to him or her promptly after
receipt of his or her notice of withdrawal and his or her option
for the current Plan Period will be automatically terminated,
and no further Contributions for the purchase of Shares will be
made (or will be permitted to be made) during the Plan Period.
(b) Upon termination of the Participating Employees
Continuous Status as an Employee prior to a Plan Period
Termination Date for any reason, including retirement or death,
the Contributions credited to his or her account will be
returned to him or her or, in the case of his or her death, to
the person or persons entitled thereto under Section 8, and
his or her option will be automatically terminated.
(c) In the event a Participating Employee fails to remain
in Continuous Status as an Employee of the Company for at least
twenty (20) hours per week during the Plan Period in which
the Employee is a Participating Employee, he or she will be
deemed to have elected to withdraw from the Plan and the
Contributions credited to his or her account and remaining there
will be returned to him or her and his or her option terminated.
(d) A Participating Employees withdrawal during a
Plan Period will not have any effect upon his or her eligibility
to participate in a succeeding Plan Period or in any similar
plan which may hereafter be adopted by the Company.
7. No Special Service Rights.
Nothing contained in this Plan shall confer upon any Employee
any right with respect to the continuation of his or her
employment with the Company or any Covered Entity or any other
entity, corporation, partnership, limited liability company or
business trust controlling, controlled by or under common
control with the Company, or interfere in any way with the right
of any such entity, subject to
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the terms of any separate employment agreement or provision of
law or corporate articles or by-laws to the contrary, at any
time to terminate such employment relationship or to increase or
decrease, or otherwise adjust, the other terms and conditions of
the Employees employment.
8. Designation of Beneficiary.
8.1. A Participating Employee may file a written
designation of a beneficiary who is to receive any Shares and
cash, if any, from the Participating Employees account
under the Plan in the event of such Participating
Employees death subsequent to the end of a Plan Period but
prior to delivery to him or her of such Shares and cash. Any
such beneficiary shall also be entitled to receive any cash from
the Participating Employees account under the Plan in the
event of such Participating Employees death during a Plan
Period.
8.2. Such designation of beneficiary may be changed by the
Participating Employee at any time by written notice. In the
event of the death of a Participating Employee and in the
absence of a beneficiary validly designated under the Plan who
is living at the time of such Participating Employees
death, the Company shall deliver such Shares
and/or cash
to the executor or administrator of the estate of the
Participating Employee, or if no such executor or administrator
has been appointed (to the knowledge of the Company), the
Company, in its discretion, may deliver such Shares
and/or cash
to the spouse or to any one or more dependents or relatives of
the Participating Employee, or if no spouse, dependent or
relative is known to the Company, then to such other person as
the Company may designate.
9. Transferability of Options and Shares.
Neither Contributions credited to a Participating
Employees account nor any rights with regard to the
exercise of an option or to receive Shares under the Plan may be
assigned, transferred, pledged or otherwise disposed of in any
way (other than by will, the laws of descent and distribution,
or as provided in Section 8) by the Participating
Employee. Any such attempt at assignment, transfer, pledge or
other disposition shall be without effect, except that the
Company may treat such act as an election to withdraw funds in
accordance with Section 6.7. In addition, if the Committee
has so announced to Participating Employees at least five
(5) days prior to the scheduled beginning of the next Plan
Period, any Shares acquired on the Plan Period Termination Date
of such Plan Period may be subject to restrictions specified by
the Committee on the transfer of such Shares. Any Participating
Employee selling or transferring any or all of his or her Shares
purchased pursuant to the Plan must provide written notice of
such sale or transfer to the Company within five
(5) business days after the date of sale or transfer. Such
notice to the Company shall include the gross sales price, if
any, the Plan Period during which the Shares being sold were
purchased by the Participating Employee, the number of Shares
being sold or transferred and the date of sale or transfer.
10. Use of Funds.
All Contributions received or held by the Company under the Plan
may be used by the Company for any corporate purpose, and the
Company shall not be obligated to segregate such Contributions
from its other assets.
11. Reports.
Individual accounts will be maintained for each Participating
Employee in the Plan. Statements of account will be given to
Participating Employees at least annually, which statements will
set forth, with
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respect to the immediately prior calendar year, the amounts of
Contributions, the per Share Purchase Price, the number of
Shares purchased and the remaining cash balance, if any.
12. Adjustments Upon Changes in Capitalization;
Corporate Transactions.
12.1. Adjustment in General. All
of the share numbers set forth in the Plan reflect the capital
structure of the Company as of the date of the Boards
adoption of this Plan. If subsequent to that date the
outstanding Shares (or any other securities covered by the Plan
by reason of the prior application of this Section) are
increased, decreased, or exchanged for a different number or
kind of shares or other securities, or if additional shares or
new or different shares or other securities are distributed with
respect to Shares, as a result of a reorganization,
recapitalization, reclassification, stock dividend, stock split,
reverse stock split, or other similar distribution with respect
to such shares of Stock, an appropriate and proportionate
adjustment will be made in (i) the maximum numbers and
kinds of shares provided in Section 3, (ii) the
numbers and kinds of shares or other securities subject to the
then outstanding options, and (iii) the exercise price for
each share or other unit of any other securities subject to then
outstanding options.
12.2. Adjustment Upon the Occurrence of Certain
Unusual or Nonrecurring Events. In the event
of any corporate action not specifically covered by
Section 12.1, including but not limited to an extraordinary
cash distribution on Common Stock, a corporate separation or
other reorganization or liquidation, the Committee may make such
adjustment of outstanding options and their terms, if any, as
it, in its sole discretion, may deem equitable and appropriate
in the circumstances. The Committee may make adjustments in the
terms and conditions of, and the criteria included in, options
in recognition of unusual or nonrecurring events (including,
without limitation, the events described in this Section)
affecting the Company or the financial statements of the Company
or of changes in applicable laws, regulations, or accounting
principles, whenever the Committee determines that such
adjustments are appropriate in order to prevent dilution or
enlargement of the benefits or potential benefits intended to be
made available under the Plan.
12.3. Related Matters. Any
adjustment in Awards made pursuant to Section 12.1 or 12.2
shall be determined and made, if at all, by the Committee,
acting in its sole discretion, and shall include any correlative
modification of terms which the Committee may deem necessary or
appropriate so as to ensure the rights of the Participating
Employees in their respective options are not substantially
diminished nor enlarged as a result of the adjustment and
corporate action other than as expressly contemplated in this
Section 12.
12.4. Corporate Transactions. In
the event of a Corporate Transaction that is a dissolution or
liquidation of the Company, the Plan Period then in progress
will terminate immediately prior to the consummation of such
action, unless otherwise provided by the Committee. In the event
of a Corporate Transaction other than a dissolution or
liquidation of the Company, each option outstanding under the
Plan shall be assumed or an equivalent option shall be
substituted by the successor corporation or a parent or
subsidiary of such successor corporation. In the event that the
successor corporation refuses to assume or substitute for
outstanding options, the Plan Period then in progress shall be
shortened and a new Plan Period Termination Date shall be set
(the New Plan Period Termination Date), as of which
date the Plan Period then in progress will terminate. The New
Plan Period Termination Date shall be on or before the date of
consummation of the transaction and the Committee shall notify
each Participating Employee in writing, at least ten
(10) days prior to the New Plan Period Termination Date,
that the Plan Period Termination Date for his or her option has
been changed to the New Plan Period Termination
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Date and that his or her option will be exercised automatically
on the New Plan Period Termination Date, unless prior to such
date he or she has withdrawn from the Plan Period as provided in
Section 6.7. For purposes of this Section 12.4, an
option granted under the Plan shall be deemed to be assumed,
without limitation, if, at the time of issuance of the stock or
other consideration upon a Corporate Transaction, each holder of
an option under the Plan would be entitled to receive upon
exercise of the option the same number and kind of shares of
stock or the same amount of property, cash or securities as such
holder would have been entitled to receive upon the occurrence
of the transaction if the holder had been, immediately prior to
the transaction, the holder of the number of Shares covered by
the option at such time (after giving effect to any adjustments
in the number of Shares covered by the option as provided for in
this Section 12); provided however that if the
consideration received in the transaction is not solely common
stock of the successor corporation or its parent (as defined in
Section 424(e) of the Code), the Committee may, with the
consent of the successor corporation, provide for the
consideration to be received upon exercise of the option to be
solely common stock of the successor corporation or its parent
equal in fair market value to the per Share consideration
received by holders of common stock in the transaction.
13. Settlement of Awards.
13.1. Violation of
Law. Notwithstanding any other provision of
the Plan to the contrary, if, at any time, in the reasonable
opinion of the Company, the issuance of Shares pursuant to the
Plan may constitute a violation of law, then the Company may
delay such issuance of such Shares until (i) approval shall
have been obtained from such governmental agencies, other than
the Securities and Exchange Commission, as may be required under
any applicable law, rule, or regulation and (ii) in the
case where such issuance would constitute a violation of a law
administered by or a regulation of the Securities and Exchange
Commission, one of the following conditions shall have been
satisfied:
(a) the Shares are, at the time of the issue of such
Shares, effectively registered under the Securities Act of
1933; or
(b) the Company shall have determined, on such basis as it
deems appropriate (including an opinion of counsel in form and
substance satisfactory to the Company) that the sale, transfer,
assignment, pledge, encumbrance or other disposition of such
Shares or such beneficial interest, as the case may be, does not
require registration under the Securities Act of 1933, as
amended or any applicable State securities laws.
The Company shall make all reasonable efforts to bring about the
occurrence of said events.
13.2. Corporate Restrictions on Rights in
Stock. Any Shares to be issued pursuant to
the Plan shall be subject to all restrictions upon the transfer
thereof which may be now or hereafter imposed by the charter,
certificate or articles, and by-laws, of the Company.
13.3. Investment
Representations. The Company shall be under
no obligation to issue any Shares unless the Shares to be issued
pursuant to the Plan have been effectively registered under the
Securities Act of 1933, as amended.
13.4. Placement of Legends; Stop Orders;
etc. Each Share to be issued pursuant to the
Plan may bear a reference to any applicable restriction under
the Plan. All certificates for Shares or other securities
delivered under the Plan shall be subject to such stock transfer
orders and other restrictions as the Committee may deem
advisable under the rules, regulations, and other requirements
of any stock exchange upon which the Common Stock is then
listed, and any applicable federal or state securities
9
law, and the Committee may cause a legend or legends to be put
on any such certificates to make appropriate reference to such
restrictions.
14. Adopting Subsidiaries.
Any Subsidiary of the Company may request that its Employees be
allowed to participate in the Plan in accordance with procedures
to be adopted by the Board. The Board of Directors of the
Company may, in its sole discretion, approve or reject any such
request. Any such Subsidiary whose request is approved by the
Board of Directors shall be referred to herein as a
Covered Entity. In addition, the Board of Directors
of the Company may determine, in its sole discretion, that a
Subsidiary that is a Covered Entity will cease to be a Covered
Entity with respect to Plan Periods not yet commenced.
15. Amendment and Termination.
(a) The Board may at any time terminate the Plan or make
such modifications of the Plan as it shall deem advisable.
Except as provided in Section 12, no termination of the
Plan may affect options previously granted, provided that the
Plan or a Plan Period may be terminated by the Board on a Plan
Period Termination Date or by the Boards setting a new
Plan Period Termination Date with respect to a Plan Period then
in progress if the Board determines that termination of the Plan
and/or any
Plan Period is in the best interests of the Company and its
stockholders or if continuation of the Plan
and/or a
Plan Period would cause the Company to incur adverse accounting
charges as a result of the Plan. Except as provided in
Section 12 or this Section 15, no amendment to the
Plan shall make any change in any option previously granted
which adversely affects the rights of any Participating Employee.
(b) In addition to the foregoing, without stockholder
consent and without regard to whether any Participating Employee
rights may be considered to have been adversely affected, the
Committee shall be entitled to change the Plan Periods,
establish the exchange ratio applicable to amounts withheld in a
currency other than United States dollars (if applicable),
permit payroll withholding in excess of the amount designated by
a Participating Employee to adjust for delays or mistakes in the
Companys processing of properly completed withholding
elections, establish reasonable waiting and adjustment periods
and/or
accounting and crediting procedures to ensure that amounts
applied toward the purchase of Common Stock for each
Participating Employee properly correspond with amounts withheld
from the Participating Employees Compensation, and
establish such other limitations or procedures as the Committee
determines in its sole discretion advisable which are consistent
with the Plan.
16. Notices and Other Communications.
Any notice, demand, request or other communication hereunder to
any party shall be deemed to be sufficient if contained in a
written instrument delivered in person or duly sent by first
class registered, certified or overnight mail, postage prepaid,
or telecopied with a confirmation copy by regular, certified or
overnight mail, addressed or telecopied, as the case may be,
(i) if to a Participating Employee, at his or her residence
address last filed with the Company and (ii) if to the
Company, at its principal place of business, addressed to the
attention of its Treasurer, or to such other address or
telecopier number, as the case may be, as the addressee may have
designated by notice to the addressor. All such notices,
requests, demands and other communications shall be deemed to
have been received: (i) in the case of personal delivery,
on the date of such delivery; (ii) in the case of mailing,
when received by the addressee; and (iii) in the case of
facsimile transmission, when confirmed by facsimile machine
report. In addition, the Company may, in its sole discretion,
deliver any documents related to the Plan by
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electronic means or request that Participating Employee
communicate with the Company with respect to the Plan by
electronic means. By participating in the Plan, each
Participating Employee will have consented to receive such
documents by electronic delivery and, if requested, to agree to
participate in the Plan through an on-line or electronic system
established and maintained by the Company or another third party
designated by the Company, and such consent shall remain in
effect throughout the Participating Employees term of
employment or service with the Company and thereafter until
withdrawn in writing by Participant.
17. Governing Law.
The Plan and all options and actions taken thereunder shall be
governed, interpreted and enforced in accordance with the laws
of the State of Delaware without regard to the conflict of laws
principles thereof.
18. Term of Plan.
The Plan shall become effective May 5, 2011 and shall
continue in effect until terminated pursuant to Section 15.
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