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Exhibit 10.4
WALL DATA INCORPORATED
RESTATED EMPLOYEE STOCK PURCHASE PLAN
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TABLE OF CONTENTS
SECTION 1 PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.1 Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.2 Base Pay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.3 Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.4 Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.5 Eligible Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.6 Offering Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.7 Participant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.8 Related Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 3 ADMINISTRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 4 STOCK SUBJECT TO THIS PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4.1 Type and Number of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4.2 Limitation on Exercise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 5 ELIGIBILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 6 OFFERINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 7 PARTICIPATION BY PAYROLL DEDUCTION . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 8 OPTION PRICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 9 GRANTING OF OPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 10 EXERCISE OF OPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 11 PARTICIPANT'S RIGHTS AS A SHAREHOLDER . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 12 DELIVERY OF STOCK CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 13 WITHDRAWAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 14 CARRYOVER OF ACCOUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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SECTION 15 INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 16 RIGHTS NOT TRANSFERABLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 17 TERMINATION OF EMPLOYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 18 DOLLAR AMOUNT LIMITATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 19 CONTINUATION OF EMPLOYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 20 WITHHOLDING TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 21 GREATER THAN FIVE PERCENT SHAREHOLDERS . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 22 ADJUSTMENTS UPON CHANGES IN CAPITALIZATION . . . . . . . . . . . . . . . . . . . . . 8
SECTION 23 SECURITIES REGULATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 24 AMENDMENT AND TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 25 INDEMNIFICATION OF BOARD AND PLAN ADMINISTRATOR . . . . . . . . . . . . . . . . . . . 9
SECTION 26 EFFECTIVENESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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WALL DATA INCORPORATED
RESTATED EMPLOYEE STOCK PURCHASE PLAN
SECTION 1 PURPOSE
The purpose of this Wall Data Incorporated Restated Employee Stock
Purchase Plan (the "Plan") is to provide a means whereby certain employees of
Wall Data Incorporated (the "Company"), or of any Related Corporation
designated by the Company, may be granted stock options to purchase the common
stock of the Company, in order to attract and retain the services or advice of
such employees and to provide added incentive to them by encouraging stock
ownership in the Company. It is the intention of the Company to have the Plan
qualify as an "employee stock purchase plan" under Section 423 of the Internal
Revenue Code of 1986, as amended. The provisions of the Plan shall,
accordingly, be construed in a manner consistent with the requirements of that
Section of the Code.
SECTION 2 DEFINITIONS
2.1 ACCOUNT
"Account" shall mean the funds accumulated with respect to a Participant
as a result of deductions from his or her paycheck for the purpose of
purchasing stock under this Plan. The funds allocated to a Participant's
Account shall remain the property of the respective Participant at all times
but may be commingled with the general funds of the Company.
2.2 BASE PAY
"Base Pay" shall mean the total cash compensation (including bonuses,
overtime, and commissions) as reflected on a Participant's W-2 income tax
statement (excluding moving expenses, reimbursed employee business expenses,
and taxable fringe benefits), except that a Participant may elect on the
Participation Agreement to exclude all bonuses and commissions from Base Pay.
If a Participant so elects, he or she must exclude all bonuses and commission
but not a part thereof.
2.3 BOARD
"Board" shall mean the Board of Directors of the Company.
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2.4 CODE
"Code" shall mean the Internal Revenue Code of 1986, as it may be amended
from time to time.
2.5 ELIGIBLE EMPLOYEE
"Eligible Employee" shall mean any employee who is eligible to participate
in the Plan pursuant to the provisions of Section 5.
2.6 OFFERING DATE
"Offering Date" shall mean the commencement date of an offering, if such
date is a regular business day; otherwise, it shall mean the first regular
business day following such commencement date. A different date may be set by
resolution of the Board.
2.7 PARTICIPANT
"Participant" shall mean an Eligible Employee who has completed and filed
a Participation Agreement pursuant to Section 7.1.
2.8 RELATED CORPORATION
"Related Corporation," when referring to a subsidiary corporation, shall
mean any corporation (other than the Company) in an unbroken chain of
corporations beginning with the Company, if stock possessing fifty percent
(50%) or more of the total combined voting power of all classes of stock of
each of the corporations other than the Company is owned by one of the other
corporations in such chain. When referring to a parent corporation, the term
"Related Corporation" shall mean any corporation in an unbroken chain of
corporations ending with the Company if, at the time of the granting of the
option, each of the corporations other than the Company 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.
SECTION 3 ADMINISTRATION
This Plan shall be administered by the Compensation Committee of the Board
(the "Compensation Committee") or such person or persons designated by such
Compensation Committee, to whom the Compensation Committee may delegate all or
a portion of the Compensation Committee's authority under this Plan. The
Compensation Committee and any such designated person or persons shall
hereinafter be referred to as the Plan Administrator. The Plan Administrator
shall be vested with full authority to make, administer, and interpret such
rules and regulations as it deems necessary to administer the Plan, and any
determination, decision, or action of the Plan Administrator in connection with
the construction,
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interpretation, administration, or application of the Plan shall be final,
conclusive, and binding upon all Participants and any and all persons claiming
under or through any Participant.
SECTION 4 STOCK SUBJECT TO THIS PLAN
4.1 TYPE AND NUMBER OF SHARES
The stock subject to this Plan shall be the Company's Common Stock (the
"Common Stock"), presently authorized but unissued or subsequently acquired by
the Company. Subject to adjustment as provided in Section 22, the aggregate
amount of Common Stock to be delivered upon the exercise of all options granted
under this Plan shall not exceed four hundred thousand (400,000) shares as such
Common Stock was constituted on the effective date of this Plan and after giving
effect to the 4:1 reverse stock split authorized by the Board of Directors of
the Company on January 7, 1993. If any option granted under this Plan shall
expire or terminate for any reason without having been exercised in full, the
unpurchased shares subject thereto shall thereupon again be available for
delivery under this Plan.
4.2 LIMITATION ON EXERCISE
If the total number of shares for which options are to be exercised on any
date in accordance with Section 10 exceeds the number of shares then available
under the Plan (after deduction of all shares for which options have been
exercised or are then outstanding), the Plan Administrator shall make a pro
rata allocation of the shares remaining available in as nearly a uniform manner
as shall be practicable and as it shall determine to be equitable. The Company
shall give written notice of such reduction to each Participant affected
thereby and shall return any unused portion of each Participant's Account to
such Participant.
SECTION 5 ELIGIBILITY
Any regular employee of the Company (or any Related Corporation designated
by the Company) who is in the employ of the Company (or any such designated
Related Corporation) on one or more Offering Dates is eligible to participate
in the Plan, except for (i) employees who have been employed less than three
months, (ii) employees whose customary employment is less than twenty (20)
hours per week, and (iii) employees whose customary employment is for not more
than five (5) months in any calendar year. If the Company permits any
employees of a Related Corporation to participate in this Plan, then all
employees of that Related Corporation who meet the requirements of this Section
5 shall also be considered Eligible Employees.
SECTION 6 OFFERINGS
There will be consecutive offerings, each approximately six months in
length, pursuant to the Plan, until the earlier of the termination of the Plan
or the date when all (except de
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minimis amounts) of the shares of Common Stock authorized under Section 4.1
shall have been delivered. The first offering shall commence on the first day
of the first semimonthly payroll beginning after August 16, 1993 (or a later
date designated by the Board) and subsequent offerings shall commence on the
first day of the first semimonthly payroll period beginning immediately after
each subsequent February 16 and August 16. Each offering shall terminate on
the day immediately preceding the first day of the first semimonthly payroll
period of the subsequent offering. Notwithstanding the foregoing, the Plan
Administrator may, subject to the limitations set forth in the Code from time
to time, establish (a) a different term for one or more offerings and (b)
different commencing and ending dates for offerings.
SECTION 7 PARTICIPATION BY PAYROLL DEDUCTION
7.1 An Eligible Employee may participate by completing a
Participation Agreement provided by the Plan Administrator authorizing payroll
deductions, and completing any other papers deemed necessary by the Company or
Plan Administrator and filing the Agreement and any other such papers with the
Company no later than ten (10) business days prior to the commencement date
(February 16 and August 16) of the offering in which the Eligible Employee
wishes to participate, or such later date as the Plan Administrator may
designate. Participation, in one offering under the Plan shall neither limit
nor require participation in any other offering.
7.2 Payroll deductions for a Participant shall commence on the
Offering Date, and shall end on the termination date of such offering unless
earlier terminated by the Participant as provided in Section 13.
7.3 At the time a Participant files his Participation Agreement,
the Participant shall elect to have payroll deductions made from the
Participant's Base Pay, measured by whole number percentages from one percent
(1%) up to a maximum of ten percent (10%) of Base Pay, on each pay day during
the time he or she is a Participant in an offering.
7.4 All payroll deductions made for a Participant shall be
credited to the Participant's Account under the Plan. A Participant may not
make any separate cash payment into such Account, nor may the Participant make
payment for shares other than by payroll deduction.
7.5 A Participant may discontinue his or her participation in
the Plan as provided in Section 13, but no other change can be made during an
offering and, specifically, a Participant may not alter the rate of payroll
deductions for that offering.
SECTION 8 OPTION PRICE
The purchase price per share of Common Stock during any offering shall be
the lesser of (i) 85% of the fair market value of the stock on the Offering
Date, or (ii) 85% of the fair
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market value of the stock on the last business day of the offering.
Notwithstanding the foregoing, the Plan Administrator may establish a different
purchase price for any offering, which shall not be less than the purchase
price set forth in the preceding sentence. Fair market value shall mean the
closing price for the Common Stock on a particular day as reported by The Wall
Street Journal.
SECTION 9 GRANTING OF OPTION
On each Offering Date, this Plan shall be deemed to have granted to the
Participant an option for as many full shares as he or she will be able to
purchase with the payroll deductions credited to his or her Account during
participation in that offering.
SECTION 10 EXERCISE OF OPTION
Each Eligible Employee who continues to be a Participant in an offering on
the last business day of that offering shall be deemed to have exercised his or
her option on such date and shall be deemed to have purchased from the Company
such number of full shares of Common Stock reserved for the purpose of the Plan
as the accumulated payroll deductions on such date will pay for at the option
price, subject to the limitations of Section 4.2.
SECTION 11 PARTICIPANT'S RIGHTS AS A SHAREHOLDER
11.1 No Participant shall have any right as a shareholder with
respect to any shares of Common Stock until the shares have been purchased in
accordance with Section 10 above.
11.2 Shares to be delivered to a Participant under the Plan will
be registered in the name of the Participant, or, if the Participant so
directs, by written notice to the Company prior to the termination date of the
pertinent offering, in the names of the Participant and one such other person
as may be designated by the Participant, as joint tenants with right of
survivorship, tenants in common or as community property, to the extent and in
the manner permitted by applicable law.
SECTION 12 DELIVERY OF STOCK CERTIFICATES
Certificates for stock issued to Participants will be delivered as soon as
practicable after the end of each offering.
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SECTION 13 WITHDRAWAL
13.1 A Participant may withdraw from the Plan, in whole but not
in part, at any time prior to the last business day of each offering by
delivering a Withdrawal Notice to the Company, in which event the Company will
refund the entire balance of his or her Account as soon as practicable
thereafter.
13.2 To re-enter the Plan, an Eligible Employee who has
previously withdrawn must file a new Participation Agreement in accordance with
Section 7.1. Re-entry into the Plan cannot, however, become effective before
the beginning of the next offering following withdrawal.
SECTION 14 CARRYOVER OF ACCOUNT
At the termination of each offering, the Company shall automatically
re-enroll each Participant in the next offering. Upon re-enrollment, the
balance, if any, in the Participant's Account shall be used for option
exercises in the new offering. The Participant may elect not to re-enroll in
the Plan by filing notice of such election with the Company no later than ten
(10) business days prior to the commencement date (February 16 and August 16)
of the next offering. If the Participant does not re-enroll in the Plan or the
Plan terminates, the balance, if any, of each Participant's Account shall be
refunded to him or her.
SECTION 15 INTEREST
No interest will be paid or allowed on any money in the Accounts of
Participants.
SECTION 16 RIGHTS NOT TRANSFERABLE
No Participant shall be permitted to sell, assign, transfer, pledge, or
otherwise dispose of or encumber either the payroll deductions credited to his
or her Account or any rights with regard to the exercise of an option or to
receive shares under the Plan other than by will or the laws of descent and
distribution, and such right and interest shall not be liable for, or subject
to, the debts, contracts, or liabilities of the Participant. If any such
action is taken by the Participant, or any claim is asserted by any other party
in respect of such right and interest whether by garnishment, levy, attachment
or otherwise, such action or claim will be treated as an election by the
Participant to withdraw funds in accordance with Section 13.1.
SECTION 17 TERMINATION OF EMPLOYMENT
Upon termination of employment for any reason, on or prior to the last
business day of the offering, the balance in the Account of a Participant shall
be paid to the Participant or his or her estate.
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SECTION 18 DOLLAR AMOUNT LIMITATION
18.1 No Eligible Employee may be granted an option under this
Plan which would permit the Eligible Employee's rights to purchase Common Stock
under all "employee stock purchase plans" of the Company, including any parent
corporation or subsidiary corporation (as the terms "parent corporation" and
"subsidiary corporation" are defined in Sections 424(e) and (f) of the Code),
to accrue at a rate which exceeds Twenty-Five Thousand Dollars ($25,000) of
fair market value of such Common Stock (determined at the Offering Date) for
each calendar year in which such option is outstanding at any time.
18.2 For purposes of this Section 18.1, (i) the right to purchase
stock under an option accrues when the option (or any portion thereof) first
becomes exercisable during the calendar year, and (ii) a right to purchase
stock which has accrued under one option granted pursuant to this Plan may not
be carried over to any other option.
SECTION 19 CONTINUATION OF EMPLOYMENT
Nothing in this Plan or in any option granted pursuant to this Plan shall
confer upon any Participant any right to continue in the employ of the Company
or of a Related Corporation, or to interfere in any way with the right of the
Company or of any Related Corporation to terminate his or her employment or
other relationship with the Company or Related Corporation at any time.
SECTION 20 WITHHOLDING TAXES
Each Participant will agree by entering the Plan, promptly to give the
Company notice of any such stock disposed of within two years after the date of
grant of the applicable option, showing the number of such shares disposed of.
As a condition to the exercise of a stock option, the Participant shall make
such arrangements as the Plan Administrator may require for the satisfaction of
any federal, state or local withholding tax obligations that may arise in
connection with the exercise of the stock option and the subsequent sale of the
stock acquired upon the exercise of the option within two years after the date
of grant of the option.
SECTION 21 GREATER THAN FIVE PERCENT SHAREHOLDERS
No Eligible Employee may be granted an option under this Plan if such
employee, immediately after the option is granted, owns stock of the Company
possessing five percent (5%) or more of the total combined voting power of all
classes of stock of the Company or of any Related Corporations. For purposes
of this Section 21, the rules of Section 424(d) of the Code shall apply in
determining the stock ownership of an employee, and stock which an
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employee may purchase under corresponding options (under this Plan or any other
plan or contract) shall be treated as stock owned by such employee.
SECTION 22 ADJUSTMENTS UPON CHANGES IN CAPITALIZATION
22.1 The aggregate number and class of shares for which options
may be granted under this Plan, the number and class of shares covered by each
outstanding option and the exercise price per share thereof (but not the total
price), and each such option, may all be proportionately adjusted by the Plan
Administrator as it deems appropriate, for any change in the structure of the
Common Stock of the Company resulting from a reorganization, recapitalization,
stock split, stock dividend, combination of shares, merger, consolidation, or
any other capital adjustment.
22.2 All adjustments under this Section 22 shall be made by the
Plan Administrator, and its determination as to what adjustments shall be made,
and the extent thereof, shall be final, binding and conclusive. Unless a
Participant agrees otherwise, any change or adjustment to an option shall be
made in such a manner so as not to constitute a "modification," as defined in
Section 424(h) of the Code, and so as not to cause the Participant's stock
option issued hereunder to fail to continue to qualify as a stock option
granted pursuant to an employee stock purchase plan, as defined in Section
423(b) of the Code.
SECTION 23 SECURITIES REGULATION
23.1 Shares shall not be issued with respect to an option granted
under this Plan unless the exercise of such option and the issuance and
delivery of such shares pursuant thereto shall comply with all relevant
provisions of law, including, without limitation, any applicable state
securities laws, the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, the rules and regulations promulgated
thereunder, the requirements of any automated quotation system through which
shares may then be traded, and the requirements of any stock exchange upon
which the shares may then be listed, and shall be further subject to the
approval of counsel for the Company with respect to such compliance, including
the availability of an exemption from registration for the issuance and sale of
any shares hereunder. Inability of the Company to obtain, from any regulatory
body having jurisdiction, the authority deemed by the Company's counsel to be
necessary for the lawful issuance and sale of any shares hereunder or the
unavailability of an exemption from registration for the issuance and sale of
any shares hereunder shall relieve the Company of any liability in respect of
the nonissuance or sale of such shares as to which such requisite authority
shall not have been obtained.
23.2 As a condition to the exercise of an option, the Company may
require the Participant to represent and warrant at the time of any such
exercise that the shares are being
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purchased only for investment and without any present intention to sell or
distribute such shares if, in the opinion of counsel for the Company, such a
representation is required by any relevant provision of the aforementioned
laws. At the option of the Company, a stop-transfer order against any shares
of stock may be placed on the official stock books and records of the Company,
and a legend indicating that the stock may not be pledged, sold or otherwise
transferred unless an opinion of counsel is provided (concurred in by counsel
for the Company) stating that such transfer is not in violation of any
applicable law or regulation, may be stamped on stock certificates in order to
ensure exemption from registration. The Plan Administrator may also require
such other action or agreement by the Participants as may from time to time be
necessary to comply with the federal and state securities laws. THIS PROVISION
SHALL NOT OBLIGATE THE COMPANY TO UNDERTAKE REGISTRATION OF THE OPTIONS OR
STOCK HEREUNDER.
SECTION 24 AMENDMENT AND TERMINATION
The Board may at any time suspend, amend or terminate this Plan; provided,
however, the Board may not amend this Plan without appropriate shareholder
approval if such approval is required by Section 423 of the Code or the
Securities and Exchange Commission Rule 16b-3 under the 1934 Act or any
successor rule or other regulatory requirement. The Compensation Committee may
also amend the Plan to comply with applicable law, to clarify the provisions of
the Plan, or to facilitate administration of the Plan; provided, however, that
the Compensation Committee may not amend the Plan in any way which would
require shareholder approval or which would materially increase the cost to the
Company of operating the Plan.
SECTION 25 INDEMNIFICATION OF BOARD AND PLAN ADMINISTRATOR
In addition to all other rights of indemnification they may have as
Directors of the Company or as members of any body serving as the Plan
Administrator, members of the Board and Plan Administrator, excluding any
members who are not Directors or employees of the Company, shall be indemnified
by the Company to the fullest extent provided by law for all reasonable
expenses and liabilities of any type and nature, including attorneys' fees,
incurred in connection with any action, suit or proceeding to which they or any
of them are a party by reason of, or in connection with, any stock option
granted hereunder, and against all amounts paid by them in settlement thereof
(if such settlement is approved by independent legal counsel selected by the
Company).
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SECTION 26 EFFECTIVENESS
This Plan shall become effective upon adoption by the Board so long as it
receives any required approval by the holders of a majority of the Company's
outstanding shares of voting capital stock at any time within twelve (12)
months after the adoption of this Plan.
*****
Approved by the Board of Directors on January 7, 1993 and by the Company's
shareholders on January 28, 1993, May 21, 1996 and _________. Amended and
restated by the Board of Directors on July 21, 1993, March 5, 1996 and March 6,
1997.
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