EXHIBIT 10.4
JDS UNIPHASE CORPORATION
1998 EMPLOYEE STOCK PURCHASE PLAN
AS AMENDED NOVEMBER 9, 2001
I. PURPOSE
The JDS Uniphase Corporation 1998 EMPLOYEE STOCK PURCHASE PLAN (the
"Plan") is intended to provide eligible employees of the Company and one or more
of its Corporate Affiliates with the opportunity to acquire a proprietary
interest in the Company through participation in a plan designed to qualify as
an employee stock purchase plan under Section 423 of the Internal Revenue Code
(the "Code").
II. DEFINITIONS
For purposes of administration of the Plan, the following terms
shall have the meanings indicated:
Compensation means the (i) regular base salary paid to a Participant
by one or more Participating Companies during such individual's period of
participation in the Plan, plus (ii) any amounts contributed by the Corporation
or any Corporate Affiliate pursuant to a salary reduction agreement which are
not includible in the gross income of the Participant by reason of Code Sections
402(e)(3) or 125, plus (iii) all of the following amounts to the extent paid in
cash: overtime payments, bonuses, commissions, profit-sharing distributions and
other incentive-type payments. However, Eligible Earnings shall not include any
contributions (other than those excludible from the Participant's gross income
under Code Sections 402(e)(3) or 125) made on the Participant's behalf by the
Corporation or any Corporate Affiliate to any deferred compensation plan or
welfare benefit program now or hereafter established.
Board means the Board of Directors of the Company.
Company means JDS Uniphase Corporation, a Delaware corporation, and
any corporate successor to all or substantially all of the assets or voting
stock of JDS Uniphase Corporation, which shall by appropriate action adopt the
Plan.
Corporate Affiliate means any company which is either the parent
corporation or a subsidiary corporation of the Company (as determined in
accordance with Section 424 of the Code), including any parent or subsidiary
corporation which becomes such after the Effective Date.
Effective Date means August 1, 1998. However, should any Corporate
Affiliate
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become a Participating Company in the Plan after such applicable date, then such
entity shall designate a separate Effective Date with respect to its
employee-Participants.
Employee means any person who is regularly engaged, for a period of
more than 20 hours per week and more than 5 months per calendar year, in the
rendition of personal services to the Company or any other Participating Company
for earnings considered wages under Section 3121(a) of the Code.
Quarter means any three-month period commencing August 1, November 1
February 1 or May 1, during each calendar year during the term of the Plan.
Participant means any Employee of a Participating Company who is
actively participating in the Plan.
Participating Company means the Company and such Corporate Affiliate
or Affiliates as may be designated from time to time by the Board.
Plan Administrator means either the Board or a Committee of the
Board that is responsible for administration of the Plan.
Stock means shares of the common stock of the Company.
III. ADMINISTRATION
(a) The Plan shall be administered by the Plan Administrator which
shall have full and exclusive discretionary authority to construe, interpret and
apply the terms of the Plan, to determine eligibility and to adjudicate all
disputed claims filed under the Plan. Every finding, decision and determination
made by the Plan Administrator shall, to the full extent permitted by Applicable
Law, be final and binding upon all persons.
(b) No member of the Committee while serving as such shall be
eligible to participate in the Plan.
IV. PURCHASE PERIODS
(a) Stock shall be offered for purchase under the Plan through a
series of successive purchase periods until such time as (i) the maximum number
of shares of Stock available for issuance under the Plan shall have been
purchased or (ii) the Plan shall have been sooner terminated in accordance with
Article X or Article XI.
(b) The Plan shall be implemented in a series of overlapping
purchase periods, each to be of such duration (not to exceed twenty-four (24)
months per purchase period) as
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determined by the Plan Administrator prior to the commencement date of the
purchase period. The initial purchase period will begin on the Effective Date
and subsequent purchase periods will commence, at the Plan Administrator's
discretion, either on the first day of each succeeding Quarter or of each
alternate succeeding Quarter. Accordingly, either four (4) or two (2) separate
purchase periods may commence in each subsequent calendar year during which the
Plan remains in existence. The Plan Administrator shall have the authority to
change the length of any purchase period by announcement at least thirty (30)
days prior to the commencement of such purchase period and to determine whether
subsequent purchase periods shall be consecutive or overlapping. A purchase
period may be terminated by the Plan Administrator on any date of exercise if
the Plan Administrator determines that the termination of the purchase period is
in the best interests of the Company and its stockholders.
(c) The Participant shall be granted a separate purchase right for
each purchase period in which he/she participates. The purchase right shall be
granted on the first day of the purchase period and shall be automatically
exercised in (i) successive quarterly installments on the last day of each
Quarter such purchase right remains outstanding, in the case of quarterly
purchase periods, or (ii) successive semi-annual installments on the last day of
each alternate Quarter such purchase right remains outstanding, in the case of
semi-annual purchase periods.
(d) An Employee may participate in only one purchase period at a
time. Accordingly, an Employee who wishes to join a new purchase period must
withdraw from the current purchase period in which he/she is participating and
must also enroll in the new purchase period prior to the commencement date for
that period.
(e) The acquisition of Stock through participation in the Plan for
any purchase period shall neither limit nor require the acquisition of Stock by
the Participant in any subsequent purchase period.
(f) Under no circumstances shall any purchase rights granted under
the Plan be exercised, nor shall any shares of Stock be issued hereunder, until
such time as (i) the Plan shall have been approved by the Company's stockholders
and (ii) the Company shall have complied with all applicable requirements of the
Securities Act of 1933 (as amended), all applicable listing requirements of any
securities exchange on which the Stock is listed and all other applicable
requirements established by law or regulation.
V. ELIGIBILITY AND PARTICIPATION
(a) Every Employee of a Participating Company shall be eligible to
participate in the Plan on the first day of the first purchase period following
the Employee's commencement of service with the Company or any Corporate
Affiliate, but in no event shall participation commence prior to the Effective
Date.
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(b) In order to participate in the Plan for a particular purchase
period, the Employee must complete the enrollment forms prescribed by the Plan
Administrator (including a purchase agreement and a payroll deduction
authorization) and file such forms with the Plan Administrator (or its
designate) prior to the commencement date of the purchase period.
(c) The payroll deduction authorized by a Participant for purposes
of acquiring Stock under the Plan may be any multiple of 1% of Compensation paid
to the Participant during the relevant purchase period, up to a maximum of 10%.
The deduction rate so authorized shall continue in effect for the entire
purchase period unless the Participant shall, prior to the end of the purchase
period for which the purchase right is in effect, reduce the rate by filing the
appropriate form with the Plan Administrator (or its designate). The reduced
rate shall become effective as soon as practicable following the filing of such
form. Each Participant shall be permitted such a rate reduction only four (4)
times in each purchase period. The reduced rate shall continue in effect for the
entire purchase period and for each subsequent purchase period, unless the
Participant shall, prior to the commencement of any subsequent purchase period,
designate a different rate (up to the 10% maximum) by filing the appropriate
form with the Plan Administrator (or its designate). The new rate shall become
effective for the first purchase period commencing after the filing of such
form. Payroll deductions, however, will automatically cease upon the termination
of the Participant's purchase right in accordance with Section VII(d) or (e)
below.
VI. STOCK SUBJECT TO PLAN
(a) The Stock purchasable by Participants under the Plan shall,
solely in the Board's discretion, be made available from either authorized but
unissued Stock or from reacquired Stock, including shares of Stock purchased on
the open market. The total number of shares of Stock which may be issued under
the Plan shall not exceed 50,000,000 shares (subject to adjustment under Section
VI(b).
(b) In the event any change is made to the Stock purchasable under
the Plan by reason of any recapitalization, stock dividend, stock split,
combination of shares or other change affecting the outstanding common stock of
the Company as a class without receipt of consideration, then appropriate
adjustments shall be made by the Plan Administrator to the class and maximum
number of shares purchasable under the Plan, the class and maximum number of
shares purchasable per Participant under any purchase right outstanding at the
time or purchasable per Participant over the term of the Plan, and the class and
number of shares and the price per share of the Stock subject to outstanding
purchase rights held by Participants under the Plan.
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VII. PURCHASE RIGHTS
An Employee who participates in the Plan for a particular purchase
period shall have the right to purchase Stock on the purchase dates designated
by the Plan Administrator for such purchase period upon the terms and conditions
set forth below and shall execute a purchase agreement embodying such terms and
conditions and such other provisions (not inconsistent with the Plan) as the
Plan Administrator may deem advisable.
(a) Purchase Price. The purchase price per share shall be the
lesser of (i) 85% of the fair market value of a share of Stock on the date on
which the purchase right is granted or (ii) 85% of the fair market value of a
share of Stock on the date the purchase right is exercised. For purposes of
determining such fair market value (and for all other valuation purposes under
the Plan), the fair market value per share of Stock on any date shall be the
closing selling price per share on such date, as officially quoted on the
principal exchange on which the Stock is at the time traded or, if not traded on
any exchange, the mean of the highest bid and the lowest asked prices (or, if
such information is available, the closing price per share) of the Stock on such
date, as reported on the NASDAQ system. If there are no sales of Stock on such
day, then the closing selling price (or, to the extent applicable, the mean of
the highest bid and lowest asked prices) for the Stock on the next preceding day
for which there do exist such quotations shall be determinative of fair market
value.
(b) Number of Purchasable Shares. The number of shares purchasable
by a Participant on any particular purchase date shall be the number of whole
shares obtained by dividing the amount collected from the Participant through
payroll deductions during the quarterly or semi-annual period beginning with the
start of the purchase period or the most recent purchase date in the same
purchase period (whichever is applicable), together with any amount carried over
from the preceding purchase date in the same purchase period pursuant to the
provisions of Section VII(f), by the purchase price in effect for such purchase
date. However, the maximum number of shares purchasable by the Participant
pursuant to any one outstanding purchase right shall not exceed 40,000 shares
(subject to adjustment under Section VI(b)).
Under no circumstances shall purchase rights be granted under the
Plan to any Employee if such Employee would, immediately after the grant, own
(within the meaning of Section 424(d) of the Code), or hold outstanding options
or other rights to purchase, stock possessing 5% or more of the total combined
voting power or value of all classes of stock of the Company or any of its
Corporate Affiliates.
(c) Payment. Payment for Stock purchased under the Plan shall be
effected by means of the Participant's authorized payroll deductions. Such
deductions shall begin on the first pay day coincident with or immediately
following the commencement date of the relevant purchase period and shall
terminate with the pay day ending with or immediately prior to the last day of
the purchase period. The amounts so collected shall be credited to the
Participant's individual account under the Plan, but no interest shall be paid
on the balance from time to time
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outstanding in the account. The amounts collected from a Participant may be
commingled with the general assets of the Company and may be used for general
corporate purposes.
(d) Termination of Purchase Rights.
(i) A Participant may, prior to any purchase date, terminate
his/her outstanding purchase right under the Plan by filing the
prescribed notification form with the Plan Administrator (or its
designate). The Company will then refund the payroll deductions
which the Participant made with respect to the terminated purchase
right, and no further amounts will be collected from the Participant
with respect to such terminated right.
(ii) The termination shall be irrevocable with respect to the
particular purchase period to which it pertains and shall also
require the Participant to re-enroll in the Plan (by making a timely
filing of a new purchase agreement and payroll deduction
authorization) if the Participant wishes to resume participation in
a subsequent purchase period.
(e) Termination of Employment. If a Participant ceases Employee
status during any purchase period, then the Participant's outstanding purchase
right under the Plan shall immediately terminate and all sums previously
collected from the Participant and not previously applied to the purchase of
stock during such purchase period shall be promptly refunded. However, should
the Participant die or become permanently disabled while in Employee status,
then the Participant or the person or persons to whom the rights of the deceased
Participant under the Plan are transferred by will or by the laws of descent and
distribution (the "successor") will have the election, exercisable at any time
prior to the purchase date for the quarterly or semi-annual period in which the
Participant dies or becomes permanently disabled, to (i) withdraw all of the
funds in the Participant's payroll account at the time of his/her cessation of
Employees status or (ii) have such funds held for purchase of shares of Stock on
the purchase date. In no event, however, shall any further payroll deductions be
added to the Participant's account following his/her cessation of Employee
status.
For purposes of the Plan: (a) a Participant shall be considered to
be an Employee for so long as such Participant remains in the employ of the
Company or any other Participating Company under the Plan and (b) a Participant
shall be deemed to be permanently disabled if he/she is unable, by reason of any
medically determinable physical or mental impairment expected to result in death
or to be of continuous duration of at least twelve (12) months, to engage in any
substantial gainful employment.
(f) Stock Purchase. Outstanding purchase rights shall be
automatically exercised in a series of successive installments as provided in
Section IV(c). The exercise shall be effected by applying the amount credited to
the Participant's account on the last date of the Quarter, in the case of a
purchase period in which purchases are effected quarterly, or the last
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date of the alternate Quarter, in the case of a purchase period in which
purchases are effected semi-annually, to the purchase of whole shares of Stock
(subject to the limitations on the maximum number of purchasable shares set
forth in Section VII(b)) at the purchase price in effect for such purchase date.
Any amount remaining in the Participant's account after such exercise shall be
held for the purchase of Stock on the next quarterly or semi-annual purchase
date within the purchase period; provided, however, that any amount not applied
to the purchase of Stock at the end of a purchase period shall be refunded
promptly after the close of the purchase period and any amount not applied to
the purchase of stock by reason by the Section VII(b) limitations on the maximum
number of purchasable shares shall be refunded promptly after the quarterly or
semi-annual purchase date.
(g) Proration of Purchase Rights. Should the total number of
shares of Stock which are to be purchased pursuant to outstanding purchase
rights on any particular date exceed 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 any
amounts credited to the accounts of Participants shall, to the extent not
applied to the purchase of Stock, be refunded to the Participants.
(h) Rights as Stockholder. A Participant shall have no rights as a
stockholder with respect to shares covered by the purchase rights granted to the
Participant under the Plan until the shares are actually purchased on the
Participant's behalf in accordance with Section VII(f). No adjustments shall be
made for dividends, distributions or other rights for which the record date is
prior to the date of such purchase.
A Participant shall be entitled to receive, as soon as practicable
after the date of each purchase, stock certificates for the number of shares
purchased on the Participant's behalf.
(i) Assignability. No purchase rights granted under the Plan shall
be assignable or transferable by a Participant except by will or by the laws of
descent and distribution, and the purchase rights shall, during the lifetime of
the Participant, be exercisable only by such Participant.
(j) Merger or Liquidation of Company. In the event the Company or
its stockholders enter into an agreement to dispose of all or substantially all
of the assets or outstanding capital stock of the Company by means of a sale,
merger or reorganization in which the Company will not be the surviving
corporation (other than a reorganization effected primarily to change the State
in which the Company is incorporated) or in the event the Company is liquidated,
then all outstanding purchase rights under the Plan shall automatically be
exercised immediately prior to such sale, merger, reorganization or liquidation
by applying all sums previously collected from Participants pursuant to their
payroll deductions in effect for such rights to the purchase of whole shares of
Stock, subject, however, to the applicable limitations of Section VII(b).
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VIII. ACCRUAL LIMITATIONS
(a) No Participant shall be entitled to accrue rights to acquire
Stock pursuant to any purchase right under this Plan if and to the extent such
accrual, when aggregated with (I) Stock rights accrued under other purchase
rights outstanding under this Plan and (II) similar rights accrued under other
employee stock purchase plans (within the meaning of Section 423 of the Code) of
the Company or its Corporate Affiliates, would otherwise permit such Participant
to purchase more than $25,000 worth of stock of the Company or any Corporate
Affiliate (determined on the basis of the fair market value of such stock on the
date or dates such rights are granted to the Participant) for each calendar year
such rights are at any time outstanding.
(b) For purposes of applying the accrual limitations of Section
VIII(a), the right to acquire Stock pursuant to each purchase right outstanding
under the Plan shall accrue as follows:
(i) The right to acquire Stock under each such purchase
right shall accrue in a series of successive quarterly or semi-annual
installments as and when the purchase right first becomes exercisable for
each installment as provided in Section IV(c).
(ii) No right to acquire 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 $25,000 worth of Stock
(determined on the basis of the fair market value on the date or dates of
grant) pursuant to that purchase right or one or more other purchase
rights which may have been held by the Participant during such calendar
year.
(iii) If by reason of the Section VIII(a) limitations, the
Participant's outstanding purchase right does not accrue for a particular
purchase date of any purchase period, then the payroll deductions which
the Participant made during that quarterly or semi-annual period with
respect to such purchase right shall be promptly refunded.
(c) In the event there is any conflict between the provisions of
this Article VIII and one or more provisions of the Plan or any instrument
issued thereunder, the provisions of this Article VIII shall be controlling.
IX. STATUS OF PLAN UNDER FEDERAL TAX LAWS
(a) The Plan is designed to qualify as an employee stock purchase
plan under Section 423 of the Code. However, after the Effective Date, the Plan
Administrator may, at its discretion, cease to administer the Plan as a
qualified employee stock purchase plan under Code
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Section 423. Accordingly, share purchases effected under the Plan at any time
after the Plan ceases to be administered as a qualified employee stock purchase
plan under Code Section 423 (whether pursuant to purchase rights granted before
or after the Plan ceases to be qualified) shall result in taxable income to each
Participant equal to the excess of (i) the fair market value of the purchased
shares on the purchase date over (ii) the purchase price paid for such shares.
(b) To the extent required by law, the Company's obligation to
deliver shares to the Participant upon the exercise of any outstanding purchase
right shall be subject to the Participant's satisfaction of all applicable
federal, state and local income and employment tax withholding requirements.
X. AMENDMENT AND TERMINATION
(a) The Board may from time to time alter, amend, suspend or
discontinue the Plan; provided, however, that no such action shall become
effective prior to the exercise of outstanding purchase rights at the end of the
quarterly or semi-annual period in which such action is authorized. To the
extent necessary to comply with Code Section 423, the Company shall obtain
stockholder approval in such a manner and to such a degree as required.
(b) The Company shall have the right, exercisable in the sole
discretion of the Plan Administrator, to terminate the Plan immediately
following the end of a quarterly or semi-annual purchase date. Should the
Company elect to exercise such right, then the Plan shall terminate in its
entirety, and no further purchase rights shall thereafter be granted, and no
further payroll deductions shall thereafter be collected, under the Plan.
XI. GENERAL PROVISIONS
(a) The Plan shall terminate upon the earlier of (i) August 1,
2008 or (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.
(b) All costs and expenses incurred in the administration of the
Plan shall be paid by the Company.
(c) Neither the action of the Company in establishing the Plan,
nor any action taken under the Plan by the Plan Administrator, nor any provision
of the Plan itself shall be construed so as to grant any person the right to
remain in the employ of the Company or any of its Corporate Affiliates for any
period of specific duration, and such person's employment may be terminated at
any time, with or without cause.
(d) Governing Law. The Plan is to be construed in accordance with
and governed by the internal laws of the State of California (as permitted by
Section 1646.5 of the California Civil Code, or any similar successor provision)
without giving effect to any choice of
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law rule that would cause the application of the laws of any jurisdiction other
than the internal laws of the State of California to the rights and duties of
the parties, except to the extent the internal laws of the State of California
are superseded by the laws of the United States. Should any provision of the
Plan be determined by a court of law to be illegal or unenforceable, the other
provisions shall nevertheless remain effective and shall remain enforceable.
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