Attached files
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8-K - FORM 8-K - Alexza Pharmaceuticals Inc. | d83916e8vk.htm |
EX-3.1 - EX-3.1 - Alexza Pharmaceuticals Inc. | d83916exv3w1.htm |
EX-10.1 - EX-10.1 - Alexza Pharmaceuticals Inc. | d83916exv10w1.htm |
Exhibit 10.2
ALEXZA
PHARMACEUTICALS, INC.
2005 EMPLOYEE STOCK PURCHASE PLAN
Adopted by the Board: December 7, 2005
Approved by the Stockholders: February 13, 2006
Amended by the Compensation Committee of the Board: May 19, 2011
Approved by the Stockholders: July 28, 2011
2005 EMPLOYEE STOCK PURCHASE PLAN
Adopted by the Board: December 7, 2005
Approved by the Stockholders: February 13, 2006
Amended by the Compensation Committee of the Board: May 19, 2011
Approved by the Stockholders: July 28, 2011
1. | Purpose. |
(a) The purpose of this Plan is to provide a means by which
Employees of the Company and certain designated Subsidiaries may
be given an opportunity to purchase stock of the Company.
(b) The Company, by means of the Plan, seeks to retain the
services of its Employees, to secure and retain the services of
new Employees, and to provide incentives for such persons to
exert maximum efforts for the success of the Company.
(c) The Company intends that the Purchase Rights granted
under the Plan be considered options issued under an Employee
Stock Purchase Plan.
2. | Definitions. |
As used in the Plan and any Offering, unless otherwise
specified, the following terms have the meanings set forth below:
(a) Affiliate means (i) any
corporation (other than the Company) in an unbroken chain of
corporations ending with the Company, provided each corporation
in the unbroken chain (other than the Company) owns, at the time
of the determination, 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, and
(ii) any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company,
provided each corporation (other than the last corporation) in
the unbroken chain owns, at the time of the determination, 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. The Board shall have the authority
to determine (i) the time or times at which the ownership
tests are applied, and (ii) whether Affiliate
includes entities other than corporations within the foregoing
definition.
(b) Board means the Board of Directors
of the Company.
(c) Code means the Internal Revenue Code
of 1986, as amended.
(d) Committee means a committee of one
(1) or more members of the Board to whom authority has been
delegated by the Board in accordance with Section 3(c).
(e) Common Stock means the common stock
of the Company.
(f) Company means Alexza
Pharmaceuticals, Inc., a Delaware corporation.
(g) Contributions means the payroll
deductions, and other additional payments specifically provided
for in the Offering, that a Participant contributes to fund the
exercise of a Purchase Right. A Participant may make additional
payments into his or her account, if specifically provided for
in the Offering, and then only if the Participant has not
already had the maximum permitted amount withheld through
payroll deductions during the Offering.
(h) Corporate Transaction means the
occurrence, in a single transaction or in a series of related
transactions, of any one or more of the following events:
(i) a dissolution or liquidation of the Company;
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(ii) a lease, sale, or other disposition of all or
substantially all of the assets of the Company;
(iii) the consummation of a merger, consolidation or
similar transaction following which the Company is not the
surviving corporation; or
(iv) the consummation of a merger, consolidation or similar
transaction following which the Company is the surviving
corporation but the shares of Common Stock outstanding
immediately preceding the merger, consolidation or similar
transaction are converted or exchanged by virtue of the merger,
consolidation or similar transaction into other property,
whether in the form of securities, cash or otherwise.
(v) the acquisition by any person, entity or group within
the meaning of Section 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended (the Exchange
Act), or any comparable successor provisions
(excluding any employee benefit plan, or related trust,
sponsored or maintained by the Company or any Subsidiary) of the
beneficial ownership (within the meaning of
Rule 13d-3
promulgated under the Exchange Act, or comparable successor
rule) of securities of the Company representing at least fifty
percent (50%) of the combined voting power entitled to vote in
the election of directors; or
(vi) the individuals who, as of the date of the adoption of
this Plan, are members of the Board (the Incumbent
Board) cease for any reason to constitute at least
fifty percent (50%) of the Board, provided that if the
election, or nomination for election by the Companys
stockholders, of a new director was approved by a vote of at
least fifty percent (50%) of the members of the Board then
comprising the Incumbent Board, such new director shall upon his
or her election be considered a member of the Incumbent Board.
(i) Director means a member of the Board.
(j) Earnings of an Employee with respect
to any Offering has the meaning defined in such Offering.
(k) Eligible Employee means an Employee
who meets the requirements set forth in the Offering for
eligibility to participate in the Offering, provided that such
Employee also meets the requirements for eligibility to
participate set forth in the Plan.
(l) Employee means any person, including
Officers and Directors, who is employed for purposes of
Section 423(b)(4) of the Code by the Company or a
Subsidiary. Neither service as a Director nor payment of a
directors fee shall be sufficient to make an individual an
Employee of the Company or a Subsidiary.
(m) Employee Stock Purchase Plan means a
plan that grants Purchase Rights intended to be options issued
under an employee stock purchase plan, as that term
is defined in Section 423(b) of the Code.
(n) Exchange Act means the Securities
Exchange Act of 1934, as amended.
(o) Fair Market Value means the value of
a security, as determined in good faith by the Board. If the
security is listed on any established stock exchange or traded
on the Nasdaq National Market or the Nasdaq SmallCap Market, the
Fair Market Value of the security, unless otherwise determined
by the Board, shall be the closing sales price (rounded up where
necessary to the nearest whole cent) for such security (or the
closing bid, if no sales were reported) as quoted on such
exchange or market (or the exchange or market with the greatest
volume of trading in the relevant security of the Company) on
the relevant determination date (or if the relevant
determination date does not fall on a Trading Day, the Trading
Day prior to the relevant determination date), as reported in
The Wall Street Journal or such other source as the Board
deems reliable.
(p) Initial Offering means the first
Offering under this Plan.
(q) Non-Employee Director means a
Director who either (i) is not a current employee or
officer of the Company or an Affiliate, does not receive
compensation, either directly or indirectly, from the Company or
an Affiliate for services rendered as a consultant or in any
capacity other than as a Director (except for an amount as to
which disclosure would not be required under Item 404(a) of
Regulation S-K
promulgated pursuant to the Securities Act
(Regulation S-K)),
does not possess an interest in any other transaction for which
disclosure would be required under Item 404(a) of
Regulation S-K,
and is not engaged in a business relationship for which
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disclosure would be required pursuant to Item 404(b) of
Regulation S-K;
or (ii) is otherwise considered a non-employee
director for purposes of
Rule 16b-3.
(r) Offering means the grant of Purchase
Rights to purchase shares of Common Stock under the Plan to
Eligible Employees.
(s) Offering Date means a date selected
by the Board for an Offering to commence.
(t) Officer means a person who is an
officer of the Company within the meaning of Section 16 of
the Exchange Act and the rules and regulations promulgated
thereunder
(u) Outside Director means a Director
who either (i) is not a current employee of the Company or
an affiliated corporation (within the meaning of
Treasury Regulations promulgated under Section 162(m) of
the Code), is not a former employee of the Company or an
affiliated corporation who receives compensation for
prior services (other than benefits under a tax-qualified
retirement plan) during the taxable year, has not been an
officer of the Company or an affiliated corporation,
and does not receive remuneration from the Company or an
affiliated corporation, either directly or
indirectly, in any capacity other than as a Director, or
(ii) is otherwise considered an outside
director for purposes of Section 162(m) of the Code.
(v) Participant means an Eligible
Employee who holds an outstanding Purchase Right granted
pursuant to the Plan.
(w) Plan means this Alexza
Pharmaceuticals, Inc. 2005 Employee Stock Purchase Plan.
(x) Purchase Date means one or more
dates during an Offering established by the Board on which
Purchase Rights shall be exercised and as of which purchases of
shares of Common Stock shall be carried out in accordance with
such Offering.
(y) Purchase Period means a period of
time specified within an Offering beginning on the Offering Date
or on the next day following a Purchase Date within an Offering
and ending on a Purchase Date. An Offering may consist of one or
more Purchase Periods.
(z) Purchase Right means an option to
purchase shares of Common Stock granted pursuant to the Plan.
(aa) Related Corporation means any
parent corporation or subsidiary corporation, whether now or
hereafter existing, as those terms are defined in
Sections 424(e) and (f), respectively, of the Code.
(bb) Securities Act means the Securities
Act of 1933, as amended.
(cc) Subsidiary means any subsidiary
corporation of the Company, whether now or hereafter existing,
as such term is defined in Section 424(f) of the Code.
(dd) Trading Day means any day the
exchange(s) or market(s) on which shares of Common Stock are
listed, whether it be any established stock exchange, the Nasdaq
National Market, the Nasdaq SmallCap Market or otherwise, is
open for trading.
3. | Administration. |
(a) The Plan shall be administered by the Board unless and
until the Board delegates administration to a Committee, as
provided in subparagraph 3(c). Whether or not the Board has
delegated administration, the Board shall have the final power
to determine all questions of policy and expediency that may
arise in the administration of the Plan.
(b) The Board shall have the power, subject to, and within
the limitations of, the express provisions of the Plan:
(i) To determine when and how Purchase Rights shall be
granted and the provisions of each offering of such Purchase
Rights (which need not be identical).
(ii) To designate from time to time which Subsidiaries
shall be eligible to participate in the Plan.
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(iii) To construe and interpret the Plan and Purchase
Rights granted under it, and to establish, amend and revoke
rules and regulations for its administration. The Board, in the
exercise of this power, may correct any defect, omission or
inconsistency in the Plan, in a manner and to the extent it
shall deem necessary or expedient to make the Plan fully
effective.
(iv) To amend the Plan as provided in paragraph 14.
(v) Generally, to exercise such powers and to perform such
acts as the Board deems necessary or expedient to promote the
best interests of the Company and its Subsidiaries and to carry
out the intent that the Plan be treated as an Employee Stock
Purchase Plan.
(c) The Board may delegate administration of the Plan to a
Committee of the Board composed of two (2) or more members,
all of the members of which Committee may be, in the discretion
of the Board, Non-Employee Directors
and/or
Outside Directors. If administration is delegated to a
Committee, the Committee shall have, in connection with the
administration of the Plan, the powers theretofore possessed by
the Board, including the power to delegate to a subcommittee of
two (2) or more Outside Directors any of the administrative
powers the Committee is authorized to exercise (and references
in this Plan to the Board shall thereafter be to the Committee
or such a subcommittee), subject, however, to such resolutions,
not inconsistent with the provisions of the Plan, as may be
adopted from time to time by the Board. The Board may abolish
the Committee at any time and revest in the Board the
administration of the Plan. If administration is delegated to a
Committee, references to the Board in this Plan and in the
Offering document shall thereafter be deemed to be to the Board
or the Committee, as the case may be.
(d) Any interpretation of the Plan by the Board of any
decision made by it under the Plan shall be final and binding on
all persons.
4. | Shares Subject to the Plan. |
(a) Subject to the provisions of paragraph 13 relating
to adjustments upon changes in stock, the stock that may be sold
pursuant to Purchase Rights granted under the Plan (the
Reserved Shares), shall not exceed in
the aggregate one million seven hundred thirty-eight thousand
one hundred and ninety-three (1,738,193) shares of Common Stock,
which consists of an initial share reserve of five hundred
thousand (500,000) shares of Common Stock plus one million two
hundred thirty-eight thousand one hundred and ninety-three
(1,238,193) shares of Common Stock added to the Plan pursuant to
automatic share increases that occurred as of each
January 1, beginning with January 1, 2007, and
continuing through and including January 1,
2011. As
of each January 1, beginning with January 1, 2012, and
continuing through and including January 1, 2016, the
number of Reserved Shares will be increased automatically by the
lesser of (i) one percent (1.0%) of the total number of
shares of Common Stock outstanding on December 31st of
the preceding calendar year, or (ii) seven hundred fifty
thousand (750,000) shares. Notwithstanding the foregoing, the
Board may designate a smaller number of shares to be added to
the share reserve as of a particular January 1. If any
Purchase Right granted under the Plan shall for any reason
terminate without having been exercised, the Common Stock not
purchased under such Purchase Right shall again become available
for the Plan.
(b) The stock subject to the Plan may be unissued shares or
reacquired shares, bought on the market or otherwise.
5. | Grant of Rights; Offering. |
(a) The Board or the Committee may from time to time grant
or provide for the grant of Purchase Rights under the Plan to
Eligible Employees in an Offering on an Offering Date or
Offering Dates selected by the Board or the Committee. Each
Offering shall be in such form and shall contain such terms and
conditions as the Board or the Committee shall deem appropriate,
which shall comply with the requirements of
Section 423(b)(5) of the Code that all Employees granted
Purchase Rights under the Plan shall have the same rights and
privileges. The terms and
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conditions of an Offering shall be incorporated by reference
into the Plan and treated as part of the Plan. The provisions of
separate Offerings need not be identical, but each Offering
shall include (through incorporation of the provisions of this
Plan by reference in the document comprising the Offering or
otherwise) the period during which the Offering shall be
effective, which period shall not exceed twenty-seven
(27) months beginning with the Offering Date, and the
substance of the provisions contained in paragraphs 6
through 9, inclusive.
(b) If a Participant has more than one (1) Purchase
Right outstanding under the Plan, unless he or she otherwise
indicates in agreements or notices delivered hereunder, a
Purchase Right with a lower exercise price (or an
earlier-granted Purchase Right if two (2) Purchase Rights
have identical exercise prices), will be exercised to the
fullest possible extent before a Purchase Right with a higher
exercise price (or a later-granted Purchase Right if two
(2) Purchase Rights have identical exercise prices) will be
exercised.
6. | Eligibility. |
(a) Rights may be granted only to Employees of the Company
or, as the Board or the Committee may designate as provided in
subparagraph 3(b), to Employees of any Subsidiary of the
Company. Except as provided in subparagraph 6(b), an Employee of
the Company or any Subsidiary shall not be eligible to be
granted Purchase Rights under the Plan unless, on the Offering
Date, such Employee has been in the employ of the Company or any
Subsidiary for such continuous period preceding such grant as
the Board or the Committee may require, but in no event shall
the required period of continuous employment be greater than two
(2) years. In addition, unless otherwise determined by the
Board or the Committee and set forth in the terms of the
applicable Offering, no Employee of the Company or any
Subsidiary shall be eligible to be granted Purchase Rights under
the Plan unless, on the Offering Date, such Employees
customary employment with the Company or such Subsidiary is for
at least twenty (20) hours per week and at least five
(5) months per calendar year.
(b) The Board or the Committee may provide that each person
who, during the course of an Offering, first becomes an Eligible
Employee of the Company or designated Subsidiary will, on a date
or dates specified in the Offering which coincides with the day
on which such person becomes an Eligible Employee or a date
which occurs thereafter, receive a Purchase Right under that
Offering, which Purchase Right shall thereafter be deemed to be
a part of that Offering. Such Purchase Right shall have the same
characteristics as any Purchase Rights originally granted under
that Offering, as described herein, except that:
(i) the date on which such Purchase Right is granted shall
be the Offering Date of such Purchase Right for all
purposes, including determination of the exercise price of such
Purchase Right;
(ii) the period of the Offering with respect to such
Purchase Right shall begin on its Offering Date and end
coincident with the end of such Offering; and
(iii) the Board or the Committee may provide that if such
person first becomes an Eligible Employee within a specified
period of time before the end of the Offering, he or she will
not receive any Purchase Right under that Offering.
(c) No Employee shall be eligible for the grant of any
Purchase Rights under the Plan if, immediately after any such
Purchase Rights are granted, such Employee owns 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 Related
Corporation. For purposes of this subparagraph 6(c), the rules
of Section 424(d) of the Code shall apply in determining
the stock ownership of any Employee, and stock which such
Employee may purchase under all outstanding Purchase Rights and
options (whether vested or unvested) shall be treated as stock
owned by such Employee.
(d) An Eligible Employee may be granted Purchase Rights
under the Plan only if such Purchase Rights, together with any
other Purchase Rights granted under Employee Stock Purchase
Plans of the Company and any Related Corporations do not permit
such Employees Purchase Rights or any Related Corporation
to accrue at a rate which exceeds twenty five thousand dollars
($25,000) of Fair Market Value of such stock (determined at the
time such Purchase Rights are granted) for each calendar year in
which such Purchase Rights are outstanding at any time.
(e) Officers of the Company and any designated Subsidiary
shall be eligible to participate in Offerings under the Plan;
provided, however, that the Board may provide in an Offering
that certain Employees who are highly compensated Employees
within the meaning of Section 423(b)(4)(D) of the Code
shall not be eligible to participate.
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7. | Rights; Purchase Price. |
(a) On each Offering Date, each Eligible Employee, pursuant
to an Offering made under the Plan, shall be granted a Purchase
Right to purchase up to the number of shares of Common Stock of
the Company purchasable with a percentage designated by the
Board or the Committee not exceeding twenty percent (20%) of
such Employees Earnings during the period which begins on
the Offering Date (or such later date as the Board or the
Committee determines for a particular Offering) and ends on the
date stated in the Offering, which date shall be no later than
the end of the Offering. The Board or the Committee shall
establish one (1) or more Purchase Dates during an Offering
on which Purchase Rights granted under the Plan shall be
exercised and purchases of Common Stock carried out in
accordance with such Offering.
(b) In connection with each Offering made under the Plan,
the Board or the Committee may specify a maximum number of
shares that may be purchased by any Participant as well as a
maximum aggregate number of shares that may be purchased by all
Participants pursuant to such Offering. In addition, in
connection with each Offering that contains more than one
(1) Purchase Date, the Board or the Committee may specify a
maximum aggregate number of shares which may be purchased by all
Participants on any given Purchase Date under the Offering. If
the aggregate purchase of shares upon exercise of Purchase
Rights granted under the Offering would exceed any such maximum
aggregate number, the Board or the Committee shall make a pro
rata allocation of the shares available in as nearly a uniform
manner as shall be practicable and as it shall deem to be
equitable.
(c) The per share purchase price of stock acquired pursuant
to Purchase Rights granted under the Plan shall be not less than
the lesser of:
(i) an amount equal to eighty-five percent (85%) of the
Fair Market Value of a share of Common Stock on the Offering
Date; or
(ii) an amount equal to eighty-five percent (85%) of the
Fair Market Value of a share of Common Stock on the Purchase
Date.
8. | Participation; Withdrawal; Termination. |
(a) A Participant may elect to authorize payroll deductions
pursuant to an Offering under the Plan by completing and
delivering to the Company, within the time specified in the
Offering, an enrollment form (in such form as the Company may
provide). Each such enrollment form shall authorize an amount of
Contributions expressed as a percentage of the submitting
Participants Earnings during the Offering (not to exceed
any maximum percentage or amount specified by the Board). Each
Participants Contributions shall be credited to a
bookkeeping account for such Participant under the Plan and
shall be deposited with the general funds of the Company except
where applicable law requires that Contributions be deposited
with a third party. To the extent provided in the Offering, a
Participant may begin such Contributions after the beginning of
the Offering. To the extent provided in the Offering, a
Participant may thereafter reduce (including to zero) or
increase his or her Contributions.
(b) During an Offering, a Participant may cease making
Contributions and withdraw from the Offering by delivering to
the Company a notice of withdrawal in such form as the Company
may provide. Such withdrawal may be elected at any time prior to
the end of the Offering, except as provided otherwise in the
Offering. Upon such withdrawal from the Offering by a
Participant, the Company shall distribute to such Participant
all of his or her accumulated Contributions (reduced to the
extent, if any, such deductions have been used to acquire shares
of Common Stock for the Participant) under the Offering, and
such Participants Purchase Rights in that Offering shall
thereupon terminate. A Participants withdrawal from an
Offering shall have no effect upon such Participants
eligibility to participate in any other Offerings under the
Plan, but such Participant shall be required to deliver a new
enrollment form in order to participate in subsequent Offerings.
(c) Rights granted pursuant to any Offering under the Plan
shall terminate immediately upon a Participant ceasing to be an
Employee for any reason or for no reason (subject to any
post-employment participation period required by law) or other
lack of eligibility. The Company shall distribute to such
terminated or otherwise ineligible Employee all of his or her
accumulated Contributions (reduced to the extent, if any, such
deductions have been used to acquire shares of Common Stock for
the terminated or otherwise ineligible Employee) under the
Offering.
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(d) Rights shall not be transferable by a Participant
otherwise than by will or the laws of descent and distribution,
or by a beneficiary designation as provided in Section 15
and, during a Participants lifetime, shall be exercisable
only by such Participant.
(e) Unless otherwise specified in an Offering, the Company
shall have no obligation to pay interest on Contributions.
(f) Notwithstanding any other provision of this Plan, in
connection with the Initial Offering, each Eligible Employee who
is employed on the date the Companys Common Stock is first
offered to the public under a registration statement declared
effective under the Securities Act automatically shall be
enrolled in the Initial Offering, with a Purchase Right for that
number of shares of Common Stock purchasable with twenty percent
(20%) of the Eligible Employees Earnings, subject to any
limitations set forth in the Offering. Following the filing of
an effective registration statement pursuant to a
Form S-8,
such Eligible Employee shall be provided a certain period of
time, as determined by the Company in its sole discretion,
within which to elect to authorize payroll deductions for the
purchase of shares during the Initial Offering (which may be for
a percentage that is less than twenty percent (20%) of the
Eligible Employees Earnings). If such Eligible Employee
elects not to authorize such payroll deductions, the Eligible
Employee instead may purchase shares of Common Stock under the
Plan by delivering a single cash payment for the purchase of
such shares to the Company prior to the ten (10) day period
(or such shorter period of time as determined by the Company and
communicated to Participants) immediately preceding the Purchase
Date under the Initial Offering. If an Eligible Employee neither
elects to authorize payroll deductions nor chooses to make a
cash payment in accordance with the foregoing sentence, then the
Eligible Employee shall not purchase any shares of Common Stock
during the Initial Offering. After the end of the Initial
Offering, in order to participate in any subsequent Offerings,
an Eligible Employee must enroll and authorize payroll
deductions prior to the commencement of the Offering;
provided, however, that once an Eligible Employee enrolls
in an Offering and authorizes payroll deductions (including in
connection with the Initial Offering), the Eligible Employee
automatically shall be enrolled for all subsequent Offerings
until he or she elects to withdraw from an Offering, as provided
in paragraph (b) above, or terminates his or her
participation in the Plan, as provided in paragraph
(c) above.
9. | Exercise. |
(a) On each Purchase Date specified therefor in the
relevant Offering, each Participants accumulated payroll
deductions and other additional payments specifically provided
for in the Offering (without any increase for interest) will be
applied to the purchase of whole shares of stock of the Company,
up to the maximum number of shares permitted pursuant to the
terms of the Plan and the applicable Offering, at the purchase
price specified in the Offering. No fractional shares shall be
issued upon the exercise of Purchase Rights granted under the
Plan. The amount, if any, of accumulated payroll deductions
remaining in each Participants account after the purchase
of shares which is less than the amount required to purchase one
share of Common Stock on the final Purchase Date of an Offering
shall be held in each such Participants account for the
purchase of shares under the next Offering under the Plan,
unless such Participant withdraws from such next Offering, as
provided in subparagraph 8(b), or is no longer eligible to be
granted Purchase Rights under the Plan, as provided in
paragraph 6, in which case such amount shall be distributed
to the Participant after such final Purchase Date, without
interest. The amount, if any, of accumulated payroll deductions
remaining in any Participants account after the purchase
of shares which is equal to the amount required to purchase one
or more whole shares of Common Stock on the final Purchase Date
of an Offering shall be distributed in full to the Participant
after such Purchase Date, without interest.
(b) No Purchase Rights granted under the Plan may be
exercised to any extent unless the shares to be issued upon such
exercise under the Plan (including Purchase Rights granted
thereunder) are covered by an effective registration statement
pursuant to the Securities Act and the Plan is in material
compliance with all applicable state, foreign and other
securities and other laws applicable to the Plan. If on a
Purchase Date in any Offering hereunder the Plan is not so
registered or in such compliance, no Purchase Rights granted
under the Plan or any Offering shall be exercised on such
Purchase Date, and the Purchase Date shall be delayed until the
Plan is subject to such an effective registration statement and
such compliance, except that the Purchase Date shall not be
delayed more than twelve (12) months and the Purchase Date
shall in no event be more than twenty-seven (27) months
from the Offering Date. If on the Purchase Date of any Offering
hereunder, as delayed to the maximum extent permissible, the
Plan is not registered and in such compliance, no Purchase
Rights granted under the Plan or any Offering shall be
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exercised and all payroll deductions accumulated during the
Offering (reduced to the extent, if any, such deductions have
been used to acquire stock) shall be distributed to the
participants, without interest.
10. | Covenants of the Company. |
(a) During the terms of the Purchase Rights granted under
the Plan, the Company shall keep available at all times the
number of shares of Common Stock required to satisfy such
Purchase Rights, provided that the Company shall not be
obligated to keep available shares in excess of the limits set
forth or described in paragraphs 4 and 7 of the Plan and
any corresponding or additional limits set forth in an Offering.
(b) The Company shall seek to obtain from each federal,
state, foreign or other regulatory commission or agency having
jurisdiction over the Plan such authority as may be required to
issue and sell shares of stock upon exercise of the Purchase
Rights granted under the Plan. If, after reasonable efforts, the
Company is unable to obtain from any such regulatory commission
or agency the authority which counsel for the Company deems
necessary for the lawful issuance and sale of stock under the
Plan, the Company shall be relieved from any liability for
failure to issue and sell stock upon exercise of such Purchase
Rights unless and until such authority is obtained.
11. | Use of Proceeds from Stock. |
Proceeds from the sale of stock pursuant to Purchase Rights
granted under the Plan shall constitute general funds of the
Company.
12. | Rights as a Stockholder. |
A Participant shall not be deemed to be the holder of, or to
have any of the rights of a holder with respect to, any shares
subject to Purchase Rights granted under the Plan unless and
until the participants shareholdings acquired upon
exercise of Purchase Rights under the Plan are recorded in the
books of the Company (or its transfer agent).
13. | Adjustments upon Changes in Stock; Corporate Transactions. |
(a) If any change is made in the stock subject to the Plan,
or subject to any Purchase Rights granted under the Plan
(through merger, consolidation, reorganization,
recapitalization, stock dividend, dividend in property other
than cash, stock split, liquidating dividend, combination of
shares, exchange of shares, change in corporate structure or
other transaction not involving the receipt of consideration by
the Company) (a Capitalization
Adjustment), the Plan and outstanding Purchase
Rights will be appropriately adjusted in the class(es) and
maximum number of shares subject to the Plan and the class(es)
and number of shares and price per share of stock subject to
outstanding Purchase Rights. Such adjustments shall be made by
the Board or the Committee, the determination of which shall be
final, binding and conclusive. (The conversion of any
convertible securities of the Company shall not be treated as a
transaction not involving the receipt of consideration by
the Company.)
(b) In the event of a Corporate Transaction, then:
(i) any surviving or acquiring corporation may continue or
assume Purchase Rights outstanding under the Plan or may
substitute similar rights (including a right to acquire the same
consideration paid to stockholders in the Corporate Transaction)
for those outstanding under the Plan, or (ii) if any
surviving or acquiring corporation does not continue or assume
such Purchase Rights or does not substitute similar rights for
Purchase Rights outstanding under the Plan, then, the
Participants accumulated Contributions shall be used to
purchase shares of Common Stock within five (5) business
days prior to the Corporate Transaction under the ongoing
Offering, and the Participants Purchase Rights under the
ongoing Offering shall terminate immediately after such purchase.
14. | Amendment of the Plan or Offerings. |
(a) The Board at any time, and from time to time, may amend
the Plan or the terms of one or more Offerings. However, except
as provided in paragraph 13 relating to adjustments upon
changes in stock, no amendment shall be effective unless
approved by the stockholders of the Company within the time and
to the extent stockholder approval is necessary for the Plan to
satisfy the requirements of Section 423 of the Code or
other applicable laws or regulations. It is expressly
contemplated that the Board may amend the Plan or an Offering in
any respect the Board deems necessary or advisable to provide
Eligible Employees with the maximum benefits provided or to be
provided under the provisions of the Code and the regulations
promulgated thereunder relating to Employee Stock Purchase Plans
and/or to
bring the Plan
and/or
Purchase Rights granted under an Offering into compliance
therewith.
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(b) The Board may, in its sole discretion, submit any
amendment to the Plan or an Offering for stockholder approval.
(c) Purchase Rights and obligations under any Purchase
Rights granted before amendment of the Plan or Offering shall
not be impaired by any amendment of the Plan, except with the
consent of the person to whom such Purchase Rights were granted,
or except as necessary to comply with any laws or governmental
regulations, or except as necessary to ensure that the Plan
and/or
Purchase Rights granted under an Offering comply with the
requirements of Section 423 of the Code.
15. | Designation of Beneficiary. |
(a) A Participant may file a written designation of a
beneficiary who is to receive any shares and cash, if
applicable, from the Participants account under the Plan
in the event of such Participants death subsequent to the
end of an Offering but prior to delivery to the participant of
such shares and cash. In addition, a Participant may file a
written designation of a beneficiary who is to receive any cash
from the Participants account under the Plan in the event
of such Participants death during an Offering.
(b) Such designation of beneficiary may be changed by the
Participant at any time by written notice in the form prescribed
by the Company. In the event of the death of a Participant and
in the absence of a beneficiary validly designated under the
Plan who is living (or if an entity, is otherwise in existence)
at the time of such Participants death, the Company shall
deliver such shares
and/or cash
to the executor or administrator of the estate of the
Participant, or if no such executor or administrator has been
appointed (to the knowledge of the Company), the Company, in its
sole discretion, may deliver such shares
and/or cash
to the spouse or to any one (1) or more dependents or
relatives of the Participant, or if no spouse, dependent or
relative is known to the Company, then to such other person as
the Company may determine.
16. | Termination or Suspension of the Plan. |
(a) The Board in its discretion, may suspend or terminate
the Plan at any time. Unless sooner terminated, the Plan shall
terminate on the day before the tenth (10th) anniversary of the
date the Plan is adopted by the Board. The Plan shall
automatically terminate if all the shares subject to the Plan
pursuant to subparagraph 4(a) are issued. No Purchase Rights may
be granted under the Plan while the Plan is suspended or after
it is terminated.
(b) Rights and obligations under any Purchase Rights
granted while the Plan is in effect shall not be impaired by
suspension or termination of the Plan, except as expressly
provided in the Plan or with the consent of the person to whom
such Purchase Rights were granted, or except as necessary to
comply with any laws or governmental regulation, or except as
necessary to ensure that the Plan
and/or
Purchase Rights granted under an Offering comply with the
requirements of Section 423 of the Code.
17. | Effective Date of Plan. |
The Plan shall become effective on the same day on which the
Companys registration statement under the Securities Act
with respect to the initial public offering of shares of the
Companys Common Stock becomes effective (the
Effective Date), but no Purchase
Rights granted under the Plan shall be exercised unless and
until the Plan had been approved by the stockholders of the
Company within twelve (12) months before or after the date
the Plan is adopted by the Board or the Committee, which date
may be prior to the Effective Date.
18. | Miscellaneous Provisions. |
(a) All questions concerning the construction, validity and
interpretation of this Plan shall be governed by the law of the
State of Delaware, without regard to such states conflict
of laws rules.
(b) The Plan and Offering do not constitute an employment
contract. Nothing in the Plan or in the Offering shall in any
way alter the at will nature of a Participants employment
or be deemed to create in any way whatsoever any obligation on
the part of any Participant to continue in the employ of the
Company or a Related Corporation, or on the part of the Company
or a Related Corporation to continue the employment of a
Participant.
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