EXHIBIT 99.2
NETWORK APPLIANCE, INC
EMPLOYEE STOCK PURCHASE PLAN
AS AMENDED AND RESTATED EFFECTIVE OCTOBER 18, 2001
I. PURPOSE OF THE PLAN
This Employee Stock Purchase Plan is intended to promote the
interests of Network Appliance, Inc. by providing eligible employees with the
opportunity to acquire a proprietary interest in the Corporation through
participation in a payroll-deduction based employee stock purchase plan designed
to qualify under Section 423 of the Code.
Capitalized terms herein shall have the meanings assigned to such
terms in the attached Appendix.
The provisions of this August 2001 restatement (the "2001
Restatement") shall become effective with the offering period commencing
December 3, 2001 and shall not have any force or effect prior to such date.
All share numbers which appear in this 2001 Restatement reflect
(i) the two-for-one split of the Common Stock effected on December 19, 1997,
(ii) the two-for-one split of the Common Stock effected on December 22, 1998,
(iii) the two-for-one split of the Common Stock effected on December 21, 1999,
and (iv) the two-for-one split of the Common Stock effected on March 23, 2000.
II. ADMINISTRATION OF THE PLAN
The Plan Administrator shall have full authority to interpret and
construe any provision of the Plan and to adopt such rules and regulations for
administering the Plan as it may deem necessary in order to comply with the
requirements of Code Section 423. Decisions of the Plan Administrator shall be
final and binding on all parties having an interest in the Plan.
III. STOCK SUBJECT TO PLAN
A. The stock purchasable under the Plan shall be shares of
authorized but unissued or reacquired Common Stock, including shares of Common
Stock purchased on the open market. The maximum number of shares of Common Stock
which may be issued over the term of the Plan shall not exceed Eleven Million
Two Hundred Thousand (11,200,000) shares, including (i) an increase of One
Million Six Hundred Thousand (1,600,000) shares authorized by the Board on
August 11, 1998 and approved by the shareholders on October 8, 1998, (ii) an
increase of One Million (1,000,000) shares authorized by the Board on August 17,
1999 and approved by the shareholders on October 26, 1999, plus (iii) an
increase of Three Million (3,000,000) shares authorized by the Board on August
9, 2001 and approved by the shareholders at the 2001 Annual Meeting held on
October 18, 2001.
B. Should any change be made to the Common Stock by reason of any
stock split, stock dividend, recapitalization, combination of shares, exchange
of shares or other change affecting the outstanding Common Stock as a class
without the Corporation's receipt of consideration, appropriate adjustments
shall be made to (i) the maximum number and class of securities issuable under
the Plan, (ii) the maximum number and class of securities purchasable per
Participant on any one Purchase Date, (iii) the maximum number and class of
securities purchasable in total by all Participants on any one Purchase Date
under the Plan and (iv) the number and class of securities and the price per
share in effect under each outstanding purchase right in order to prevent the
dilution or enlargement of benefits thereunder.
IV. OFFERING PERIODS
A. Shares of Common Stock shall be offered for purchase under the
Plan through a series of overlapping offering periods until such time as (i) the
maximum number of shares of Common Stock available for issuance under the Plan
shall have been purchased or (ii) the Plan shall have been sooner terminated.
B. Each offering period shall be of such duration (not to exceed
twenty-four (24) months) as determined by the Plan Administrator prior to the
start date of such offering period. Offering periods shall commence at
semi-annual intervals on the first business day of June and December each year
over the remaining term of the Plan. Accordingly, two (2) separate offering
periods shall commence in each calendar year the 2001 Restatement remains in
existence. However, the initial offering period under the 2001 Restatement shall
begin on the first business day in December 2001 and end on the last business
day in November 2003.
NOTE: Prior to December 3, 2001, shares of Common Stock shall be
offered for purchase under the Plan through a series of successive offering
periods, each with a maximum duration of twenty-four (24) months. The last such
offering period began on the first business day in December 1999 and shall
terminate on November 30, 2001
C. Each offering period shall be comprised of a series of one or
more successive Purchase Intervals. Purchase Intervals shall run from the first
business day in June each year to the last business day in November of the same
year and from the first business day in December each year to the last business
day in May of the following year.
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D. Should the Fair Market Value per share of Common Stock on any
Purchase Date within any offering period beginning on or after December 3, 2001
be less than the Fair Market Value per share of Common Stock on the start date
of that offering period, then the individuals participating in such offering
period shall, immediately after the purchase of shares of Common Stock on their
behalf on such Purchase Date, be transferred from that offering period and
automatically enrolled in the next offering period commencing after such
Purchase Date.
V. ELIGIBILITY
A. Each individual who is an Eligible Employee on the start date
of any offering period under the Plan may enter that offering period on such
start date. However, an Eligible Employee may participate in only one offering
period at a time.
B. Except as otherwise provided in Section IV. D, an Eligible
Employee must, in order to participate in the Plan for a particular offering
period, complete the enrollment forms prescribed by the Plan Administrator
(including a stock purchase agreement and a payroll deduction authorization
form) and file such forms with the Plan Administrator (or its designate) on or
before the start date of that offering period.
VI. PAYROLL DEDUCTIONS
A. The payroll deduction authorized by the Participant for
purposes of acquiring shares of Common Stock during an offering period may be
any multiple of one percent (1%) of the Cash Earnings paid to the Participant
during each Purchase Interval within that offering period, up to a maximum of
ten percent (10%). The deduction rate so authorized by a Participant shall
continue in effect throughout the offering period, except to the extent such
rate is changed in accordance with the following guidelines:
(i) The Participant may, at any time during the offering
period, reduce his or her rate of payroll deduction to become effective
as soon as possible after filing the appropriate form with the Plan
Administrator. The Participant may not, however, effect more than one
(1) such reduction per Purchase Interval.
(ii) The Participant may, prior to the commencement of any
new Purchase Interval within the offering period, increase the rate of
his or her payroll deduction by filing the appropriate form with the
Plan Administrator. The new rate (which may not exceed the ten percent
(10%) maximum) shall become effective as of the start date of the first
Purchase Interval following the filing of such form.
B. Payroll deductions on behalf of the Participant shall begin on
the first pay day following the start date of the offering period in which he or
she is enrolled and shall (unless sooner terminated by the Participant) continue
through the pay day ending with or immediately prior to the last day of that
offering period. The amounts so collected shall be credited to the
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Participant's book account under the Plan, but no interest shall be paid on the
balance from time to time outstanding in such account. The amounts collected
from the Participant shall not be held in any segregated account or trust fund
and may be commingled with the general assets of the Corporation and used for
general corporate purposes.
C. Payroll deductions shall automatically cease upon the
Participant's withdrawal from the offering period or the termination of his or
her purchase right in accordance with the provisions of the Plan.
D. The Participant's acquisition of Common Stock under the Plan
on any Purchase Date shall neither limit nor require the Participant's
acquisition of Common Stock on any subsequent Purchase Date, whether within the
same or a different offering period.
E. The Plan Administrator shall have the discretion, exercisable
prior to the start date of any offering period under the Plan, to determine
whether the payroll deductions authorized by Participants during such offering
period shall be calculated as a percentage of Base Salary or Cash Earnings.
VII. PURCHASE RIGHTS
A. GRANT OF PURCHASE RIGHT. A Participant shall be granted a
separate purchase right for each offering period in which he or she is enrolled.
The purchase right shall be granted on the start date of the offering period and
shall provide the Participant with the right to purchase shares of Common Stock,
in a series of successive installments during that offering period, upon the
terms set forth below. The Participant shall execute a stock purchase agreement
embodying such terms and such other provisions (not inconsistent with the Plan)
as the Plan Administrator may deem advisable.
Under no circumstances shall purchase rights be granted under the
Plan to any Eligible Employee if such individual would, immediately after the
grant, own (within the meaning of Code Section 424(d)) or hold outstanding
options or other rights to purchase, stock possessing five percent (5%) or more
of the total combined voting power or value of all classes of stock of the
Corporation or any Corporate Affiliate.
B. EXERCISE OF THE PURCHASE RIGHT. Each purchase right shall be
automatically exercised in installments on each successive Purchase Date within
the offering period, and shares of Common Stock shall accordingly be purchased
on behalf of each Participant on each such Purchase Date. The purchase shall be
effected by applying the Participant's payroll deductions for the Purchase
Interval ending on such Purchase Date to the purchase of whole shares of Common
Stock at the purchase price in effect for the Participant for that Purchase
Date.
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C. PURCHASE PRICE. The purchase price per share at which Common
Stock will be purchased on the Participant's behalf on each Purchase Date within
the particular offering period in which he or she is enrolled shall be equal to
eighty-five percent (85%) of the lower of (i) the Fair Market Value per share of
Common Stock on the start date of that offering period or (ii) the Fair Market
Value per share of Common Stock on that Purchase Date.
D. NUMBER OF PURCHASABLE SHARES. The number of shares of Common
Stock purchasable by a Participant on each Purchase Date during the particular
offering period in which he or she is enrolled shall be the number of whole
shares obtained by dividing the amount collected from the Participant through
payroll deductions during the Purchase Interval ending with that Purchase Date
by the purchase price in effect for the Participant for that Purchase Date.
However, the maximum number of shares of Common Stock purchasable per
Participant on any one Purchase Date shall not exceed One Thousand Five Hundred
(1,500) shares, subject to periodic adjustments in the event of certain changes
in the Corporation's capitalization. The maximum number of shares of Common
Stock purchasable in total by all participants on any one Purchase Date shall
not exceed One Million (1,000,000) shares, subject to periodic adjustments in
the event of certain changes in the Corporation's capitalization. However, the
Plan Administrator shall have the discretionary authority, exercisable prior to
the start of any offering period under the Plan, to increase or decrease the
limitations to be in effect for the number of shares purchasable per Participant
and in total by all Participants enrolled in that particular offering period on
each Purchase Date which occurs during that offering period.
E. EXCESS PAYROLL DEDUCTIONS. Any payroll deductions not applied
to the purchase of shares of Common Stock on any Purchase Date because they are
not sufficient to purchase a whole share of Common Stock shall be held for the
purchase of Common Stock on the next Purchase Date. However, any payroll
deductions not applied to the purchase of Common Stock by reason of the
limitation on the maximum number of shares purchasable per Participant or in
total by all Participants on the Purchase Date shall be promptly refunded.
F. SUSPENSION OF PAYROLL DEDUCTIONS. In the event that a
Participant is, by reason of the accrual limitations in Article VIII, precluded
from purchasing additional shares of Common Stock on one or more Purchase Dates
during the offering period in which he or she is enrolled, then no further
payroll deductions shall be collected from such Participant with respect to
those Purchase Dates. The suspension of such deductions shall not terminate the
Participant's purchase right for the offering period in which he or she is
enrolled, and payroll deductions shall automatically resume on behalf of such
Participant once he or she is again able to purchase shares during that offering
period in compliance with the accrual limitations of Article VIII.
G. WITHDRAWAL FROM OFFERING PERIOD. The following provisions
shall govern the Participant's withdrawal from an offering period under the
Plan:
(i) A Participant may withdraw from the offering period in
which he or she is enrolled by filing the appropriate form with the Plan
Administrator (or its designate) at any time prior to the next scheduled
Purchase Date in the offering period, and no further payroll deductions
shall be collected from the Participant with respect to that offering
period. Any payroll deductions collected during the Purchase Interval in
which such withdrawal occurs shall, at
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the Participant's election, be immediately refunded or held for the
purchase of shares on the next Purchase Date. If no such election is
made at the time the Participant withdraws from the offering period,
then the payroll deductions collected with respect to the Purchase
Interval in which such withdrawal occurs shall be refunded as soon as
possible.
(ii) The Participant's withdrawal from the offering period
shall be irrevocable, and the Participant may not subsequently rejoin
that offering period. In order to resume participation in any subsequent
offering period, such individual must re-enroll in the Plan (by making a
timely filing of the prescribed enrollment forms) on or before the start
date of that offering period.
H. TERMINATION OF ELIGIBLE EMPLOYEE STATUS. Should the
Participant cease to remain an Eligible Employee for any reason (including
death, disability or change in status) while his or her purchase right remains
outstanding, then that purchase right shall immediately terminate, and all of
the Participant's payroll deductions for the Purchase Interval in which the
purchase right so terminates shall be immediately refunded. However, should the
Participant cease to remain in active service by reason of an approved unpaid
leave of absence, then the Participant shall have the right, exercisable up
until the last business day of the Purchase Interval in which such leave
commences, to (a) withdraw all the payroll deductions collected to date on his
or her behalf for that Purchase Interval or (b) have such funds held for the
purchase of shares on his or her behalf on the next scheduled Purchase Date. In
no event, however, shall any further payroll deductions be collected on the
Participant's behalf during such leave. Upon the Participant's return to active
service (i) within ninety (90) days following the commencement of such leave or
(ii) prior to the expiration of any longer period for which such Participant's
right to reemployment with the Corporation is guaranteed by either statute or
contract, his or her payroll deductions under the Plan shall automatically
resume at the rate in effect at the time the leave began, unless the Participant
withdraws from the Plan prior to his or her return. An individual who returns to
active employment following a leave of absence which exceeds in duration the
applicable time period shall be treated as a new Employee for purposes of
subsequent participation in the Plan and must accordingly re-enroll in the Plan
(by making a timely filing of the prescribed enrollment forms) on or before the
start date of any offering period in which he or she wishes to participate.
I. CHANGE IN CONTROL. Each outstanding purchase right shall
automatically be exercised, immediately prior to the effective date of any
Change in Control, by applying the payroll deductions of each Participant for
the Purchase Interval in which such Change in Control occurs to the purchase of
whole shares of Common Stock at a purchase price per share equal to eighty-five
percent (85%) of the lower of (i) the Fair Market Value per share of Common
Stock on the start date of the offering period in which the Participant is
enrolled at the time of such Change in Control or (ii) the Fair Market Value per
share of Common Stock immediately prior to the effective date of such Change in
Control. However, the applicable limitation on the number of shares of Common
Stock purchasable per Participant shall continue to apply to any such purchase,
but not the limitation applicable to the maximum number of shares of Common
Stock purchasable in total by all Participants on any one Purchase Date.
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The Corporation shall use its best efforts to provide at least
ten (10) days prior written notice of the occurrence of any Change in Control,
and Participants shall, following the receipt of such notice, have the right to
terminate their outstanding purchase rights prior to the effective date of the
Change in Control.
J. PRORATION OF PURCHASE RIGHTS. Should the total number of
shares of Common Stock to be purchased pursuant to outstanding purchase rights
on any particular date exceed either (i) the maximum limitation on the number of
shares purchasable in total by all Participants on such date or (ii) the number
of shares then available for issuance under the Plan, the Plan Administrator
shall make a pro-rata allocation of the available shares on a uniform and
nondiscriminatory basis, and the payroll deductions of each Participant, to the
extent in excess of the aggregate purchase price payable for the Common Stock
pro-rated to such individual, shall be refunded.
K. ASSIGNABILITY. The purchase right shall be exercisable only by
the Participant and shall not be assignable or transferable by the Participant.
L. SHAREHOLDER RIGHTS. A Participant shall have no shareholder
rights with respect to the shares subject to his or her outstanding purchase
right until the shares are purchased on the Participant's behalf in accordance
with the provisions of the Plan and the Participant has become a holder of
record of the purchased shares.
VIII. ACCRUAL LIMITATIONS
A. No Participant shall be entitled to accrue rights to acquire
Common Stock pursuant to any purchase right outstanding under this Plan if and
to the extent such accrual, when aggregated with (i) rights to purchase Common
Stock accrued under any other purchase right granted under this Plan and (ii)
similar rights accrued under other employee stock purchase plans (within the
meaning of Code Section 423) of the Corporation or any Corporate Affiliate,
would otherwise permit such Participant to purchase more than Twenty-Five
Thousand Dollars ($25,000) worth of stock of the Corporation or any Corporate
Affiliate (determined on the basis of the Fair Market Value per share on the
date or dates such rights are granted) for each calendar year such rights are at
any time outstanding.
B. For purposes of applying such accrual limitations to the
purchase rights granted under the Plan, the following provisions shall be in
effect:
(i) The right to acquire Common Stock under each
outstanding purchase right shall accrue in a series of installments on
each successive Purchase Date during the offering period in which such
right remains outstanding.
(ii) No right to acquire Common Stock under any
outstanding purchase right shall accrue to the extent the Participant
has already accrued in the same calendar year the right to acquire
Common Stock under one (1) or more other purchase rights at a rate equal
to Twenty-Five Thousand Dollars ($25,000) worth of Common Stock
(determined on the basis of the Fair Market Value per share on the date
or dates of grant) for each calendar year such rights were at any time
outstanding.
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C. If by reason of such accrual limitations, any purchase right
of a Participant does not accrue for a particular Purchase Interval, then the
payroll deductions which the Participant made during that Purchase Interval with
respect to such purchase right shall be promptly refunded.
D. In the event there is any conflict between the provisions of
this Article and one or more provisions of the Plan or any instrument issued
thereunder, the provisions of this Article shall be controlling.
IX. EFFECTIVE DATE AND TERM OF THE PLAN
A. The Plan was adopted by the Board on September 26, 1995 and
was subsequently approved by the shareholders and became effective at the
Effective Time. The Plan was amended by the Board on August 11, 1998 (the "1998
Amendment") to increase the maximum number of shares of Common Stock authorized
for issuance under the Plan by an additional One Million Six Hundred Thousand
(1,600,000) shares. The 1998 Amendment was approved by the shareholders at the
1998 Annual Meeting. On August 17, 1999, the Board amended the Plan to (i)
increase the maximum number of shares of Common Stock authorized for issuance
under the Plan by an additional One Million (1,000,000) shares and (ii) make
amendments to certain administrative provisions of the Plan (the "1999
Amendment"). The 1999 Amendment was approved by the shareholders on October 26,
1999.
B. This 2001 Restatement was adopted by the Board on August 9,
2001 and effects the following changes to the Plan: (i) increase the number of
shares authorized for issuance under the Plan by an additional three million
(3,000,000) shares, (ii) implement a series of overlapping twenty-four
(24)-month offering periods beginning at semi-annual intervals each year, (iii)
establish a series of semi-annual purchase dates within each such offering
period, (iv) reduce the maximum number of shares of Common Stock purchasable per
Participant on any one Purchase Date after November 30, 2001 from twelve
thousand (12,000) shares to one thousand five hundred (1,500) shares, (v) limit
the number of shares of Common Stock purchasable in total by all Participants on
any one Purchase Date after November 30, 2001 to one million (1,000,000) shares,
(vi) extend the maximum term of the Plan until the last business day in May 2011
and (vii) revise certain provisions of the Plan document in order to facilitate
the administration of the Plan. No purchase rights were exercised under the
Plan, and no shares of Common Stock were issued, on the basis of the
3,000,000-share increase authorized by the 2001 Restatement, until the 2001
Restatement was approved by the shareholders at the 2001 Annual Stockholders
Meeting.
C. The Corporation shall comply with all applicable requirements
of the 1933 Act (including the registration of such additional shares of Common
Stock issuable under the Plan on a Form S-8 registration statement filed with
the Securities and Exchange Commission), all applicable listing requirements of
the Nasdaq National Market with respect to those shares, and all other
applicable requirements established by law or regulation.
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D. Unless sooner terminated by the Board, the Plan shall
terminate upon the earliest of (i) the last business day in May 2011, (ii) the
date on which all shares available for issuance under the Plan shall have been
sold pursuant to purchase rights exercised under the Plan or (iii) the date on
which all purchase rights are exercised in connection with a Change in Control.
No further purchase rights shall be granted or exercised, and no further payroll
deductions shall be collected, under the Plan following such termination.
X. AMENDMENT OF THE PLAN
A. The Board may alter, amend, suspend or discontinue the Plan at
any time to become effective immediately following the close of any Purchase
Interval. However, the Plan may be amended or terminated immediately upon Board
action, if and to the extent necessary to assure that the Corporation will not
recognize, for financial reporting purposes, any compensation expense in
connection with the shares of Common Stock offered for purchase under the Plan,
should the financial accounting rules applicable to the Plan at the Effective
Time be subsequently revised so as to require the recognition of compensation
expense in the absence of such amendment or termination.
B. In no event may the Board effect any of the following
amendments or revisions to the Plan without the approval of the Corporation's
shareholders: (i) increase the number of shares of Common Stock issuable under
the Plan, except for permissible adjustments in the event of certain changes in
the Corporation's capitalization, (ii) alter the purchase price formula so as to
reduce the purchase price payable for the shares of Common Stock purchasable
under the Plan or (iii) modify the requirements for eligibility to participate
in the Plan.
XI. GENERAL PROVISIONS
A. All costs and expenses incurred in the administration of the
Plan shall be paid by the Corporation; however, each Plan Participant shall bear
all costs and expenses incurred by such individual in the sale or other
disposition of any shares purchased under the Plan.
B. Nothing in the Plan shall confer upon the Participant any
right to continue in the employ of the Corporation or any Corporate Affiliate
for any period of specific duration or interfere with or otherwise restrict in
any way the rights of the Corporation (or any Corporate Affiliate employing such
person) or of the Participant, which rights are hereby expressly reserved by
each, to terminate such person's employment at any time for any reason, with or
without cause.
C. The provisions of the Plan shall be governed by the laws of
the State of California without resort to that State's conflict-of-laws rules.
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SCHEDULE A
CORPORATIONS PARTICIPATING IN
EMPLOYEE STOCK PURCHASE PLAN
AS OF AUGUST 9, 2001
Network Appliance, Inc.
APPENDIX
The following definitions shall be in effect under the Plan:
A. BASE SALARY shall mean the regular base salary paid to a
Participant by one or more Participating Companies during such individual's
period of participation in one or more offering periods under the Plan. Such
Base Salary shall be calculated before deduction of (A) any income or employment
tax withholdings or (B) any pre-tax contributions made by the Participant to any
Code Section 401(k) salary deferral plan or any Code Section 125 cafeteria
benefit program now or hereafter established by the Corporation or any Corporate
Affiliate. The following items of compensation shall NOT be included in Base
Salary: (i) all overtime payments, bonuses, commissions (other than those
functioning as base salary equivalents), profit-sharing distributions and other
incentive-type payments and (ii) any and all contributions (other than Code
Section 401(k) or Code Section 125 contributions) made on the Participant's
behalf by the Corporation or any Corporate Affiliate under any employee benefit
or welfare plan now or hereafter established.
B. BOARD shall mean the Corporation's Board of Directors.
C. CASH EARNINGS shall mean the (i) base salary payable to a
Participant by one or more Participating Companies during such individual's
period of participation in one or more offering periods under the Plan plus (ii)
all overtime payments, bonuses, commissions, current profit-sharing
distributions and other incentive-type payments received during such period.
Such Cash Earnings shall be calculated before deduction of (A) any income or
employment tax withholdings or (B) any pre-tax contributions made by the
Participant to any Code Section 401(k) salary deferral plan or any Code Section
125 cafeteria benefit program now or hereafter established by the Corporation or
any Corporate Affiliate. However, Cash Earnings shall NOT include any
contributions (other than Code Section 401(k) or Code Section 125 contributions
deducted from such Cash Earnings) made by the Corporation or any Corporate
Affiliate on the Participant's behalf to any employee benefit or welfare plan
now or hereafter established.
D. CHANGE IN CONTROL shall mean a change in ownership or control
of the Corporation effected through any of the following transactions:
(i) a merger or consolidation in which securities
possessing more than fifty percent (50%) of the total combined voting
power of the Corporation's outstanding securities are transferred to a
person or persons different from the persons holding those securities
immediately prior to such transaction,
(ii) the sale, transfer or other disposition of all or
substantially all of the assets of the Corporation in complete
liquidation or dissolution of the Corporation; or
(iii) the acquisition, directly or indirectly by any
person or related group of persons (other than the Corporation or a
person that directly or indirectly controls, is controlled by, or is
under common control with, the Corporation), of beneficial ownership
(within the meaning of Rule 13d-3 of the 1934 Act) of securities
possessing more than fifty percent (50%) of the total combined voting
power of the Corporation's outstanding securities pursuant to a tender
or exchange offer made directly to the Corporation's shareholders.
E. CODE shall mean the Internal Revenue Code of 1986, as amended.
F. COMMON STOCK shall mean the Corporation's common stock.
G. CORPORATE AFFILIATE shall mean any parent or subsidiary
corporation of the Corporation (as determined in accordance with Code Section
424), whether now existing or subsequently established.
H. CORPORATION shall mean Network Appliance, Inc., a California
corporation, and any corporate successor to all or substantially all of the
assets or voting stock of Network Appliance, Inc. which shall by appropriate
action adopt the Plan.
I. EFFECTIVE TIME shall mean the time at which the underwriting
agreement for the Corporation's initial public offering of the Common Stock was
executed and finally priced. Any Corporate Affiliate which becomes a
Participating Corporation after such Effective Time shall designate a subsequent
Effective Time with respect to its employee-Participants.
J. ELIGIBLE EMPLOYEE shall mean any person who is employed by a
Participating Company on a basis under which he or she is regularly expected to
render more than twenty (20) hours of service per week for more than five (5)
months per calendar year for earnings considered wages under Code Section
3401(a).
K. FAIR MARKET VALUE per share of Common Stock on any relevant
date shall be determined in accordance with the following provisions:
(i) If the Common Stock is at the time traded on the
Nasdaq National Market, then the Fair Market Value shall be the closing
selling price per share of Common Stock on the date in question, as such
price is reported by the National Association of Securities Dealers on
the Nasdaq National Market or any successor system and published in The
Wall Street Journal. If there is no closing selling price for the Common
Stock on the date in question, then the Fair Market Value shall be the
closing selling price on the last preceding date for which such
quotation exists.
(ii) If the Common Stock is at the time listed on any
Stock Exchange, then the Fair Market Value shall be the closing selling
price per share of Common Stock on the date in question on the Stock
Exchange determined by the Plan Administrator to be the primary market
for the Common Stock, as such price is officially quoted in the
composite tape of transactions on such exchange
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and published in The Wall Street Journal. If there is no closing selling
price for the Common Stock on the date in question, then the Fair Market
Value shall be the closing selling price on the last preceding date for
which such quotation exists.
L. 1933 ACT shall mean the Securities Act of 1933, as amended.
M. PARTICIPANT shall mean any Eligible Employee of a
Participating Corporation who is actively participating in the Plan.
N. PARTICIPATING CORPORATION shall mean the Corporation and such
Corporate Affiliate or Affiliates as may be authorized from time to time by the
Board to extend the benefits of the Plan to their Eligible Employees. The
Participating Corporations in the Plan as of August 9, 2001 are listed in
attached Schedule A.
O. PLAN shall mean the Corporation's Employee Stock Purchase
Plan, as set forth in this document.
P. PLAN ADMINISTRATOR shall mean the committee of two (2) or more
Board members appointed by the Board to administer the Plan.
Q. PURCHASE DATE shall mean the last business day of each
Purchase Interval.
R. PURCHASE INTERVAL shall mean each successive six (6)-month
period within the offering period at the end of which there shall be purchased
shares of Common Stock on behalf of each Participant.
S. STOCK EXCHANGE shall mean either the American Stock Exchange
or the New York Stock Exchange.
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