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Exhibit 4.1
TRENDWEST RESORTS, INC.
1999 EMPLOYEE STOCK PURCHASE PLAN
Trendwest Resorts, Inc. (the "Company") does hereby establish its 1999
Employee Stock Purchase Plan (the "Plan") as follows:
1. Purpose of the Plan. The Plan is intended to provide a method whereby
eligible employees of the Company and its Subsidiaries will have an opportunity
to acquire a proprietary interest in the Company through the purchase of shares
of common stock of the Company. The Company believes that employee participation
in the ownership of the Company is of benefit to both the employees and the
Company. The Company intends to have the Plan qualify as an "employee stock
purchase plan" under Section 423 of the Code. The provision of the Plan shall,
accordingly, be construed so as to extend and limit participation in a manner
that is consistent with the requirements of that Section of the Code.
2. Definitions.
Account means the funds that are accumulated with respect to each
individual Participant as a result of payroll deductions for the purpose of
purchasing Shares under the Plan. The funds that are allocated to a
Participant's account shall at all times remain the property of that
Participant, but such funds will be commingled with the general funds of the
Company and will not accrue interest.
Board means the Board of Directors of the Company.
Code. means the Internal Revenue Code of 1986, as amended.
Commencement Date means the January 1, April 1, July 1, or October 1 as
the case may be, on which the particular Offering begins.
Compensation means wages and all other compensation, excluding
reimbursements, expense allowance, fringe benefits, moving expenses, deferred
compensation and welfare benefits.
Ending Date means the March 31, June 30, September 30, December 31, or
the nearest prior business day as the case may be, on which the particular
Offering concludes.
ESPP Broker means a qualified stock brokerage or other financial
services firm that has been designated by the Company.
Holding Period mean the holding period that is set forth in Section
423(a) of the Code, which, as of the date that the Company's Board of Directors
adopted this Plan, is both (a) that two (2) year period after the Commencement
Date and (b) that one (1) year period after transfer to a Participant of any
Shares under the Plan.
Participant means an employee who, pursuant to Section 3, is eligible to
participate in the Plan and has complied with the requirements of Section 7.
Pay Period means the payroll cycle of the Participant, which can be
weekly, bi-weekly or bi-monthly.
Offerings means the twenty separate consecutive three month offerings
for the purchase and sale of Shares under the Plan. Each one of the Offerings
shall be referred to as an "Offering."
Shares means shares of the Company's common stock, without par value,
that will be sold to Participants under the Plan.
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Subsidiaries means any present or future domestic or foreign corporation
that: (i) would be a "subsidiary corporation" of the Company as that term is
defined in Section 424 of the Code, and (ii) whose employees have been
designated by the Board to be eligible, subject to Section 3, to be Participants
under the Plan.
Withdrawal Notice means a notice, in a form designated by the Company,
that a Participant who wishes to withdraw from an Offering must submit to the
Company pursuant to Section 22 prior to the Ending Date.
3. Employees Eligible to Participate. Any regular employee of the
Company or any of its Subsidiaries who (a) is in the employ of the Company or
any of its Subsidiaries on the Commencement Date, (b) has been so employed for
at least ninety days, without a break in service of over 30 days and (c) has
worked an average of twenty (20) hours per week during such employment is
eligible to participate in the Plan, except officers of the Company within the
meaning of Rule 16a-1 promulgated by the Securities and Exchange Commission
under Section 16 of the Securities Exchange Act of 1934, as amended.
4. Offerings. The Plan shall consist of twenty separate consecutive
three month Offerings. The first Offering shall commence on July 1, 1999.
Thereafter, Offerings shall commence on each subsequent January 1, April 1, July
1, and October 1, and the final Offering under the Plan shall commence on April
1, 2004 and terminate on June 30, 2004.
5. Price. The purchase price per Share shall be 85 percent of the fair
market value of the stock on the Ending Date. Fair market value shall mean the
average of high and low closing bid price as reported on the National
Association of Securities Dealers Automated Quotation System or, if the stock is
traded on a stock exchange, the closing price for the stock on the principal of
such exchange.
6. Number of Shares Reserved Under the Plan. The maximum number of
Shares that will be offered under the Plan is 500,000. If, on any date, the
total number of Shares for which purchase rights are to be granted pursuant to
Section 9 exceeds the number of Shares then available under this Section 6,
(after deduction of all Shares (a) that have been purchased under the Plan, and
(b) for which rights to purchase are then outstanding), the Company shall make a
pro rata allocation of the Shares that remain available in as nearly a uniform
manner as shall be practicable and as it shall determine, in its sole judgement,
to be equitable. In such event, each Participant's payroll deductions shall be
reduced accordingly and the Company shall give to each Participant a written
notice of such reduction.
7. Participant. An eligible employee may become a Participant by
completing the Enrollment Agreement that shall be provided by the Company and
filing it with the Company prior to the Commencement Date of the Offering to
which it relates, Participation in one Offering under the Plan shall neither
limit, nor require, participation in any other Offering. The period for
enrollment into the Plan shall terminate 10 days prior to the next Commencement
Date.
8. Participant Contributions. At the time the Enrollment Agreement is
filed with the Company, each Participant shall authorize the Company to make
payroll deductions of either (a) a fixed dollar amount per pay period or (b) a
whole percentage (not partial or fractional) of Compensation; provided, however,
that no payroll deduction shall exceed 10 percent of Compensation per Pay Period
nor exceed $2,500 during any Offering. The amount of the minimum fixed dollar
deduction may be adjusted by the Board of Directors from time to time; provided,
however, that a Participant's existing rights under any Offering that has
already commenced may not be adversely affected thereby.
Each Participant's payroll deductions shall be credited to that
Participant's Account. A Participant's payroll deductions shall begin on the
Commencement Date, and shall end on the Ending Date unless the Participant
elects to withdraw pursuant to Section 13. A Participant may discontinue
participation in the Plan as provided in Section 13, but no other change may be
made during an Offering and, specifically, a Participant may not alter the
amount or rate of payroll deductions during an Offering.
9. Granting of Right to Purchase. On the Commencement Date, the Plan
shall be deemed to have granted automatically to each Participant a right to
purchase as many Shares (including fractional Shares) as may be purchased with
such Participant's Account on the Ending Date.
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10. Purchase of Shares. On the Ending Date, each Participant who has not
otherwise withdrawn from an Offering shall be deemed to have carried out the
right to purchase, and shall be deemed to have purchased at the purchase price
set forth in Section 5, the number of Shares (including fractional Shares) that
may be purchased with such Participant's Account.
11. Participant's Rights as a Shareholder. No Participant shall have any
rights of a shareholder with respect to any Shares until the Shares have been
purchased in accordance with Section 10 and issued by the Company.
12. Evidence of Ownership of Shares.
12.1 Promptly following the Ending Date of each Offering, the
Shares that are purchased by each Participant shall be deposited into an account
that is established in the Participant's name with the ESPP Broker.
12.2 A Participant may direct, by written notice to the Company
prior to the Ending Date of the pertinent Offering, that the ESPP Broker account
be established 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 community property, to the extent and in the manner
permitted by applicable law. Unless otherwise directed, the account will be
established as joint tenants with right of survivorship.
12.3 A Participant shall be free to undertake a disposition, as
that term is defined in Section 424(c) of the Code (which generally includes any
sale, exchange, gift or transfer of legal title), of Shares in the Participant's
ESPP Broker account at any time, whether by sale, exchange, gift or other
transfer of title. Subject to Section 12.4 below, in the absence of such a
disposition of the Shares, however, the Shares must remain in the Participant's
account at the ESPP Broker until the Holding Period has been satisfied. With
respect to Shares for which the Holding Period has been satisfied, a Participant
may move such Shares to an account at another brokerage firm of the
Participant's choosing or request that a certificate that represents the Shares
be issued and delivered to the Participant.
12.4 (a) A participant may file a written designation of a
beneficiary who is to receive any shares and cash, if any, from the
participant's account under the Plan in the event of such participant's death
subsequent to an Exercise Date on which the option is exercised by prior to
delivery to such 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 participant's account under the Plan in the event of such participant's
death prior to exercise of the option. If a participant is married and the
designated beneficiary is not the spouse, spousal consent shall be required for
such designation to be effective.
(b) Such designation of beneficiary may be changed by the
participant at any time by written notice. In the event of the death of a
participant and in the absence of a beneficiary validly designated under the
Plan who is living at the time of such participant's 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 discretion, may deliver
such shares and/or cash to the spouse or to any one 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 designate.
13. Withdrawal.
13.1 A Participant may withdraw from an Offering, in whole but
not in part, at any time prior to the Ending Date by delivering a Withdrawal
Notice to the Company, in which event the Company shall refund the Participant's
entire Account as soon as practicable thereafter.
13.2 An employee who has previously withdrawn from the Plan may
re-enter by complying with the requirements of Section 7. Upon compliance with
such requirements, an employee's re-entry into the Plan will become effective on
the Commencement Date of the next Offering following withdrawal.
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14. Continuation. At the conclusion of each Offering, the Company shall
automatically re-enroll each Participant in the next Offering unless otherwise
instructed.
15. Interest. No interest shall be paid or allowed on a Participant's
Account.
16. Rights Not Transferable. No Participant shall be permitted to sell,
assign, transfer, pledge, or otherwise dispose of or encumber such Participant's
Account or any rights to purchase or to receive Shares under the Plan other than
by will or the laws of descent and distribution, and such rights and interests
shall not be liable for, or subject to, a Participant's debts, contracts, or
liabilities. If a Participant purports to make a transfer, or a third party
makes a claim in respect of a Participant's rights or interests, whether by
garnishment, levy, attachment or otherwise, such purported transfer or claim
shall be treated as a withdrawal election under Section 13.
17. Termination of Employment. As soon as practicable upon termination
of a Participant's employment with the Company for any reason whatsoever,
including but not limited to death or retirement, the Participant's Account
shall be returned to the Participant or the Participant's estate, as applicable.
18. Amendment or Discontinuance of the Plan. The Board shall have the
right to amend, modify or terminate the Plan at any time without notice,
provided that (i) subject to Sections 19 and 23.1(b), no Participant's existing
rights under any Offering that is in progress may be adversely affected thereby,
and (ii) subject to Section 19, in the event that the Board desires to retain
the favorable tax treatment under Section 421 and 423 of the Code, no such
amendment of the Plan shall increase the number of Shares that were reserved for
issuance hereunder unless the Company's shareholders approve such an increase.
19. Changes in Capitalization. In the event of reorganization,
recapitalization, stock split, stock dividend, combination of shares, merger,
consolidation, offerings or rights, or any other change in the capital structure
of the Company, the Board may make such adjustment, if any, as it may deem
appropriate in the number, kind, and the price of the Shares that are available
for purchase under the Plan, and in the number of Shares that an employee is
entitled to purchase.
20. Share Ownership. Notwithstanding anything herein to the contrary, no
Participant shall be permitted to subscribe for any Shares under the Plan if
such Participant, immediately after such subscription, owns shares that account
for (including all shares that may be purchased under outstanding subscriptions
under the Plan) five percent or more of the total combined voting power or value
of all classes of shares of the Company or its Subsidiaries. For the foregoing
purposes the rules of Section 424(d) of the Code shall apply in determining
share ownership. In addition, no Participant shall be allowed to subscribe for
any Shares under the Plan that permit such Participant's rights to purchase
Shares under all "employee stock purchase plans" of the Company and its
Subsidiaries to accrue at a rate that exceeds $25,000 of the fair market value
of such shares (determined at the time such right to subscribe is granted) for
each calendar year in which such right to subscribe is outstanding at any time.
21. Administration. The Plan shall be administered by the Board, which
may engage the ESPP Broker to assist in the administration of the Plan. The
Board 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 Board in connection with the
construction, interpretation, administration or application of the Plan shall be
final, conclusive, and binding upon all Participants and any and all persons
that claim rights or interests under or through a Participant. The Board may
delegate any or all of its authority hereunder to a committee of the Board, as
it may designate.
22. Notices. All notices or other communications by a Participant to the
Company under or in connection with the Plan shall be deemed to have been duly
given when received in the form specified by the Company at the location, or by
the person, that is designated by the Company from time to time for the receipt
thereof, and, in the absence of such a designation, the Company's Staff Services
Department; Attn: Director, shall be authorized to receive such notices.
23. Termination of the Plan.
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23.1 This Plan shall terminate at the earliest of the following:
(a) June 30, 2004;
(b) The date of the filing of a Statement of Intent to Dissolve
by the Company or the effective date of a merger or consolidation wherein the
Company is not to be the surviving corporation, which merger or consolidation is
not between or among corporations related to the Company. Prior to the
occurrence of either of such events, on such date as the Company may determine,
the Company may permit a Participant to carryout the right to purchase, and to
purchase at the purchase price set forth in Section 5, the number of Shares that
may be purchased with that Participant's Account;
(c) The date the Board acts to terminate the Plan in accordance
with Section 18 above; and
(d) The date when all of the Shares that were reserved for
issuance hereunder have been purchased.
23.2 Upon termination of the Plan, the Company shall refund to
each Participant the balance of each Participant's Account.
24. Limitations on Sale of Stock Purchased Under the Plan. The Plan is
intended to provide Shares for investment and not for resale. The Company does
not, however, intend to restrict or influence the conduct of any employee's
affairs. An employee, therefore, may sell Shares that are purchased under the
Plan at any time, subject to compliance with any applicable federal or state
securities laws. THE EMPLOYEE ASSUMES THE RISK OF ANY MARKET FLUCTUATIONS IN THE
PRICE OF THE SHARES.
25. Governmental Regulation. The Company's obligation to sell and
deliver Shares under this Plan is subject to any governmental approval that is
required in connection with the authorization, issuance, or sale of such Shares.
26. No Employment Rights. The Plan does not, directly or indirectly,
create any right for the benefit of any employee or class of employees to
purchase any Shares under the Plan, or create in any employee or class of
employees any right with respect to continuation of employment by the Company,
and it shall not be deemed to interfere in any way with the Company's right to
terminate, or otherwise modify, an employee's employment at any time.
27. Governing Law. The law of the state of Oregon shall govern all
matters that relate to this Plan except to the extent it is superseded by the
laws of the United States.
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