EXHIBIT 10.1
AMENDED NELNET, INC.
EMPLOYEE SHARE PURCHASE PLAN
1. PURPOSE.
The purpose of the Nelnet, Inc. Employee Share Purchase Plan is to
provide eligible employees the opportunity to purchase Nelnet, Inc. Class A
Common Stock on a basis that qualifies for the tax treatment prescribed by
Section 423 of the Code.
2. DEFINITIONS.
The following terms, when used in the Plan, shall have the following
meanings:
(a) "Board" or "Board of Directors" means the Board of Directors of the
Company, as constituted from time to time.
(b) "Code" means the Internal Revenue Code of 1986, as amended from time
to time. References to a particular section of the Code include any successor
provisions.
(c) "Committee" means the Compensation Committee of the Board, or such
other committee appointed by the Board of Directors to administer the Plan
pursuant to the provisions of Section 3(a) below.
(d) "Common Stock" means Class A Common Stock, par value $.01 per share,
of the Company.
(e) "Company" means Nelnet, Inc., a Nebraska corporation, or any
successor corporation.
(f) "Fair Market Value" on a particular date means the mean between the
highest and lowest sales prices of a share of Common Stock on the principal
stock exchange or stock market on which the Common Stock may be listed or
admitted to trading. If there were no sales on such date, the respective prices
on the most recent prior day on which sales were reported shall be used. If the
foregoing method of determining fair market value should be inconsistent with
Section 423 of the Code, "Fair Market Value" shall be determined by the
Committee in a manner consistent with Section 423 of the Code and shall mean the
value as so determined.
(g) "Offering" means a period, designed by the Committee in accordance
with the the provisions of Section 6 hereof, on the first day of which options
will be granted to eligible employees pursuant to Section 8(a) here of and on
the last day of which such options will be deemed exercised or will expire, as
applicable, in accordance with Section 8(b) hereof.
(h) "Participant" or "Participating Employee" means an employee of the
Company or Participating Subsidiary who is eligible to participate in an
Offering under the Plan pursuant to Section 5 below and who elects to
participate in such Offering in accordance with Section 6 below.
(i) "Participating Subsidiary" means, with respect to an Offering under
the Plan, a Subsidiary the employees of which are authorized by the Committee as
provided in Section 5 below to participate in such Offering.
(j) "Plan" means the Nelnet, Inc. Employee Share Purchase Plan, as
amended from time to time.
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(k) "Parent" means a parent corporation as defined in Section 424(e) of
the Code, including a corporation which becomes such a parent in the future.
(l) "Subsidiary" means a subsidiary corporation as defined in Section
424(f) of the Code, including a corporation which becomes such a subsidiary in
the future.
(m) "Total Compensation" means, with respect to any Offering, the cash
compensation paid to a Participating Employee by the Company or a Participating
Subsidiary during the Offering for services, including overtime, premium pay,
commissions and annual bonus, in each case prior to reduction for pre-tax
contributions made to a plan or salary reduction contributions made to a plan
excludable from income under Sections 125 or 402(g) of the Code; provided,
however, that "Total Compensation" shall not include severance pay, stay-on
bonuses, retirement income, welfare benefits or income derived from stock
options, stock appreciation rights or other equity-based compensation.
3. ADMINISTRATION.
(a) The Plan shall be administered by the Compensation Committee of the
Board, or if designated by the Board such other committee of the Board
consisting of two or more directors.
(b) Subject to the provisions of the Plan, the powers of the Committee
shall include having the authority, in its discretion, to:
(i) define, prescribe, amend and rescind rules, regulations,
procedures, terms and conditions relating to the Plan; and
(ii) interpret, administer and construe the Plan and make all
other determinations necessary or advisable for the administration of
the Plan, including but not limited to correcting defects, reconciling
inconsistencies and resolving ambiguities.
(c) The interpretation by the Committee of the terms and conditions of
the Plan and its administration of the Plan, and all action taken by the
Committee, shall be final, binding and conclusive on the Company, its
stockholders, Subsidiaries, all Participants and employees, and upon their
respective successors and assigns, and upon all other persons claiming under or
through any of them.
(d) Members of the Board, members of the Committee and persons to whom
authority is delegated under Section 3(e) below acting under this Plan shall be
fully protected in relying in good faith upon the advice of counsel and shall
incur no liability except for gross or willful misconduct in the performance of
their duties.
(e) The Committee may delegate its authority to administer the Plan to
any individuals as the Committee may determine and such individuals shall serve
solely at the pleasure of the Committee. Any individuals who are authorized by
the Committee to administer the plan shall have the full power to act on behalf
of the Committee, but shall at all times be subordinate to the Committee and the
Committee shall retain ultimate authority for the administration of the Plan.
4. STOCK SUBJECT TO THE PLAN.
(a) Subject to paragraph (c) below, the aggregate number of shares of
Common Stock which may be sold under the Plan is 1,000,000 shares of Common
Stock.
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(b) If the number of shares of Common Stock that Participating Employees
become entitled to purchase is greater than the number of shares of Common Stock
that are offered in a particular Offering or that remain available under the
Plan, the available shares of Common Stock shall be allocated by the Committee
among such Participating Employees in such manner as it deems fair and
equitable.
(c) In the event of any change in the Common Stock, through
recapitalization, merger, consolidation, stock dividend or split, combination or
exchange of shares, spin-off or otherwise, the Committee may make such equitable
adjustments in the Plan and the then outstanding Offerings as it deems necessary
and appropriate including, but not limited to, changing the number of shares of
Common Stock reserved under the Plan, and the purchase price of shares in the
current Offering; provided that any such adjustments shall be consistent with
Sections 423 and 424 of the Code.
(d) Shares of Common Stock which are to be delivered under the Plan may
be obtained by the Company from its treasury, by purchasing such shares on the
open market or from private sources, or by issuing authorized but unissued
shares of Common Stock. Shares of authorized but unissued Common Stock may not
be delivered under the Plan if the purchase price thereof is less than the par
value (if any) of the Common Stock at the time. The Committee may (but need not)
provide at any time or from time to time (including without limitation upon or
in contemplation of a change in control) for a number of shares of Common Stock
equal in number to the number of shares then subject to options under this Plan
to be issued or transferred to, or acquired by, a trust (including but not
limited to a grantor trust) for the purpose of satisfying the Company's
obligations under such options, and, unless prohibited by applicable law, such
shares held in trust shall be considered authorized and issued shares with full
dividend and voting rights, notwithstanding that the options to which such
shares relate might not be exercisable at the time.
5. ELIGIBILITY.
All employees of the Company and any Subsidiaries designated by the
Committee from time to time will be eligible to participate in the Plan, in
accordance with and subject to such rules and regulations as the Committee may
prescribe; provided, however, that (a) such rules shall comply with the
requirements of the Code (including but not limited to Section 423 (b) (3), (4)
and (8) thereof), (b) no employee shall be eligible to participate in the Plan
if his or her customary employment is 20 hours or less per week or for not more
than five months in any calendar year, unless the Committee determines otherwise
on a uniform and non-discriminatory basis, (c) the Committee may (but need not)
in its discretion exclude employees who have been employed by the Company or a
Participating Subsidiary less than two years and/or highly compensated employees
within the meaning of Section 414(q) of the Code from being eligible to
participate in the Plan or any Offering, but unless and until otherwise
determined by the Committee, only employees who have been employed less than six
months will be excluded, (d) no employee may be granted an option under the Plan
if such employee, immediately after the option is granted, owns stock possessing
5% or more of the total combined voting power or value of all classes of stock
of his or her employer corporation or any Parent or Subsidiary (with the rules
of Section 424(d) of the Code applicable in determining the stock ownership of
an employee, and stock which the employee may purchase under outstanding
options, whether or not such options qualify for the special tax treatment
afforded by Section 421 (a) of the Code, shall be treated as stock owned by the
employee), and (e) all Participating Employees shall have the same rights and
privileges except as otherwise permitted by Section 423(b) (5) of the Code.
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6. OFFERINGS; PARTICIPATION
The Company may make Offerings of up to 27 months' duration each, to
eligible employees to purchase shares of Common Stock under the Plan, until all
shares authorized to be delivered under the Plan have been exhausted or until
the Plan is sooner terminated by the Board. Subject to the preceding sentence,
the number, commencement date and duration of any Offerings shall be determined
by the Committee in its sole discretion; provided, however, that, unless the
Committee determines otherwise, (a) the first Offering shall commence as soon as
practical following the effectiveness of the Company's initial public offering
and shall extend through June 30, 2004, and (b) effective May 12, 2004, a new
three-month Offering will commence immediately after the end of each previous
Offering. The duration of any Offering need not be the same as the duration of
any other Offering, and more than one Offering may commence or terminate on the
same date if the Committee so provides. Subject to such rules and procedures as
the Committee may prescribe, an eligible employee may elect to participate in an
Offering at such time(s) as the Committee may permit by authorizing a payroll
deduction for such purpose in one percent increments of up to a maximum of
twenty percent (20%) of his or her Total Compensation with respect to such
Offering, or, effective May 12, 2004, a payroll deduction for such purpose in a
dollar amount of at least ten dollars ($10.00) per pay period, or in either
case, such lesser amount as the Committee may prescribe. Participant elections
may be made in any manner deemed appropriate by the Committee from time to time,
including by voice response or through the Internet. The Committee may (but need
not) permit employee contributions to be made by means other than payroll
deductions; provided, however, that in no event shall an employee's
contributions (excluding interest, if any, credited pursuant to Section 7(a)
below) from all sources in any Offering exceed twenty percent (20%) of his or
her Total Compensation with respect to such Offering or such lesser amount as
the Committee may prescribe. The Committee may at any time suspend or accelerate
the completion of an Offering if required by law or deemed by the Committee to
be in the best interests of the Company, including in the event of a change in
ownership or control of the Company or any Subsidiary.
7. PAYROLL DEDUCTIONS.
(a) The Company will maintain payroll deduction accounts on its books
for all Participating Employees, and may (but need not) credit such accounts
with interest if (and only if) the Committee so directs at such rate (if any) as
the Committee may prescribe. All employee contributions and any interest thereon
which the Committee may authorize in accordance with the preceding sentence
shall be credited to such accounts. Employee contributions and any interest
credited to the payroll deduction accounts of Participating Employees need not
be segregated from other corporate funds and may be used for any corporate
purpose.
(b) At such times as the Committee may permit and subject to such rules
and procedures as the Committee may prescribe; a Participating Employee may
suspend his or her payroll deduction during an Offering, or may withdraw the
balance of his or her payroll deduction account and thereby withdraw from
participation in an Offering, provided, effective May 12, 2004, Participating
Employees may suspend their payroll deduction during an Offering but may not
withdraw the balance of their payroll deduction account during an Offering; and
further provided, effective for Offerings commencing after April 21, 2005,
Participating Employees who are "insiders" (as determined by the Company's
Securities Trading Committee) may not suspend payroll deductions during an
Offering.
(c) Any balance remaining in an employee's payroll deduction account
after shares have been purchased in an Offering pursuant to Section 8(b) below
will be refunded to the Participating Employee, provided, effective May 12,
2004, such balances may not be withdrawn and provided further, fractional shares
may be purchased by Participating Employees, and accordingly any such balance
will not be refunded and instead will be used to purchase shares at the end of
the Offering. Upon termination of the Plan, all amounts in the accounts of
Participating Employees shall be carried forward into their payroll deduction
accounts under a successor plan, if any, or refunded to them, as the Committee
may decide.
(d) In the event of the termination of a Participating Employee's
employment for any reason, his or her participation in any Offering under the
Plan shall cease, no further amounts shall be deducted pursuant to the Plan and
the balance in such employee's account shall be paid as soon as practicable
following such termination of employment to the employee, or, in the event of
such employee's death, to such employee's beneficiary designated under this Plan
or, in the absence of such a beneficiary designation, to such employee's estate.
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8. PURCHASE; LIMITATIONS.
(a) Subject to Section 5 above and within the limitations of Section
8(d) below, each person who is an eligible employee of the Company or a
Participating Subsidiary on the first day of an Offering under the Plan is
hereby granted an option, on the first day of such Offering, to purchase up to a
number of whole shares of Common Stock at the end of such Offering determined by
dividing twenty percent (or such lesser percentage as may be specified by the
Committee as the maximum employee contribution percentage in such Offering) of
such employee's Total Compensation with respect to such Offering, plus such
interest (if any) as the Committee may authorize to be credited during such
Offering in accordance with Section 7(a) above, by 85 percent of the Fair Market
Value of a share of Common Stock on the first date of such Offering or on the
last date of such Offering; provided, however, that in no event shall the number
of shares of Common Stock that may be purchased under any such option exceed
2500 shares or such higher or lower number of shares as the Committee may have
specified in advance of such Offering as the maximum amount of stock which may
be purchased by an employee in such Offering. The purchase price of such shares
under such options shall be determined in accordance with Section 8(c) below.
The Company's obligation to sell and deliver Common Stock in any Offering or
pursuant to any such option shall be subject to the approval of any governmental
authority whose approval the Committee determines it is necessary or advisable
to obtain in connection with the authorization, issuance, offer or sale of such
Common Stock.
(b) As of the last day of the Offering, the payroll deduction account of
each Participating Employee shall be totaled. Subject to the provisions of
Section 7(b) above and 8(d) below, if such account contains sufficient funds as
of that date to purchase one or more whole shares of Common Stock at the price
determined under Section 8(c) below, the Participating Employee shall be
conclusively deemed to have exercised the option granted pursuant to Section
8(a) above for as many whole shares of Common Stock as the amount of his or her
payroll deduction account (including any contributions made by means other than
payroll deductions and including any interest credited to the account) at the
end of the Offering can purchase (but in no event for more than the total number
of shares that are subject to the option); such employee's account will be
charged for the amount of the purchase and for all purposes under the Plan the
employee will be deemed to have acquired the shares on that date; and either a
stock certificate representing such shares will be issued to him or her, or the
Company's record keeper will make an entry on its books and records evidencing
that such shares have been duly issued or transferred as of that date, as the
Committee may direct. Any option granted pursuant to Section 8(a) above which is
not deemed exercised as of the last day of the Offering in accordance with the
foregoing provisions of this Section 8(b) shall expire on that date.
(c) Unless the Committee determines before the first day of an Offering
that a higher price that complies with Section 423 of the Code shall apply, the
price at which shares of Common Stock may be purchased under each option granted
pursuant to Section 8(a) above shall be the lesser of (i) an amount equal to 85
percent of the Fair Market Value of the Common Stock at the time such option is
granted, or (ii) an amount equal to 85 percent of the Fair Market Value of the
Common Stock at the time such option is exercised.
(d) In addition to any other limitations set forth in the Plan, no
employee may be granted an option under the Plan which permits his or her rights
to purchase stock under the Plan, and any other stock purchase plan of his or
her employer corporation and its Parent and Subsidiary that is qualified under
Section 423 of the Code, to accrue at a rate which exceeds $25,000 of the Fair
Market Value of such stock (determined at the time such option is granted) for
each calendar year in which the option is outstanding at any time. The Committee
may further limit the amount of Common Stock which may be purchased by any
employee during an Offering in accordance with Section 423(b) (5) of the Code.
9. HOLDING PERIOD.
Unless the Committee should determine otherwise, all Common Stock
acquired under the Plan is subject to a two year holding period, provided,
effective May 12, 2004 all Common Stock acquired under the Plan is subject to a
one year holding period. For purposes of measuring a given holding period, the
commencement date shall be the date which is one day after the last day of an
Offering. During the holding period, no shares acquired through the Plan may be
sold, transferred or otherwise disposed, other than by will, the laws of descent
and distribution, or if Participant is no longer employed by the Company or its
Subsidiaries.
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