EXHIBIT 10.4
JDS UNIPHASE CORPORATION
AMENDED AND RESTATED
1999 CANADIAN EMPLOYEE STOCK PURCHASE PLAN
AS AMENDED ON NOVEMBER 9, 2001
AS AMENDED AND RESTATED ON JULY 31, 2002
I. PURPOSE
The JDS Uniphase Corporation 1999 Canadian Employee Stock
Purchase Plan (the "Plan") is intended to provide eligible employees of JDS
Uniphase Inc. ("JDS Uniphase Canada"), a wholly owned subsidiary of the Company
(as defined below), with the opportunity to acquire a proprietary interest in
the Company through participation in the Plan.
II. DEFINITIONS
For purposes of administration of the Plan, the following terms
shall have the meanings indicated:
"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 the Company, which shall by appropriate action adopt the Plan.
"Compensation" means:
(i) the regular base salary paid to a Participant by one or
more Participating Companies during the Participant's
period of participation in the Plan; plus
(ii) any amounts contributed by the Company 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,
"Compensation" 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 Company or any Corporate
Affiliate to any deferred compensation plan or welfare
benefit program now or hereafter established.
"Corporate Affiliate" means any corporation which is either the
parent corporation or a subsidiary corporation of the Company (as determined in
accordance with Section 424 of the
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Internal Revenue Code (the "Code"), including any parent or subsidiary
corporation which becomes such after the Effective Date.
"Effective Date" means September 1, 1999. However, should any
Corporate Affiliate become a Participating Company in the Plan after such
applicable date, then such entity shall designate a separate Effective Date with
respect to its employees which are Participants.
"Employee" means any person who is regularly engaged, for a
period of more than 25 hours per week and more than 5 months per calendar year,
in the rendition of personal services to JDS Uniphase Canada 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, provided that the first Quarter shall be September 1, 1999 to January
31, 2000.
"Participant" means any Employee of a Participating Company who
is actively participating in the Plan.
"Participating Company" means JDS Uniphase Canada 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 (the "Committee") 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 determined
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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; provided, however, that no new purchase periods shall commence under
the Plan on or after August 1, 2002 except as determined otherwise by the Board.
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 installment on the last day of each
Quarter such purchase right remains outstanding, in the case of quarterly
purchase periods, or (ii) successive semi-annual installment 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
purchase 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 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 and have obtained any required
exemptions.
V. ELIGIBILITY AND PARTICIPATION
(a) Every Employee of JDS Uniphase Canada or 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 JDS
Uniphase Canada or any Corporate Affiliate; provided, however, that no Employee
shall become eligible to participate in the Plan on or after August 1, 2002
except as determined otherwise by the Board.
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(b) In order to participate in the Plan for a particular purchase
period, the Participant must complete the enrolment 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 the Base
Compensation paid to the Participant during the relevant purchase period, up to
a maximum of 10%.
(d) The amount deducted for each Participant shall be deducted from the
Participant's salary in Canadian dollars and shall be converted to U.S. dollars
using the noon buying rate as reported by the Federal Reserve Bank of New York
for the purchase of U.S. dollars in Canadian currency on the day Stock is
purchased for the Participant's account. 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 once 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 10,000,000 shares of Stock (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. 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 does 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 20,000 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 outstanding in the account. The amounts
collected from a Participant may be commingled with the general assets of JDS
Uniphase Canada and may be used for general corporate purposes.
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(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). JDS Uniphase Canada 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
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 disabled or
deceased Participant under the Plan are exercisable or 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 Employee 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 JDS Uniphase
Canada or any other Participating Company under the Plan, but not for any period
during which the Participant receives termination or severance pay in lieu of
notice; 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 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
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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 non-discriminatory 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 right shall, subject to the
provisions set forth in Section VII(e) in the case of a Participant who dies or
becomes permanently disabled, be exercisable only by such Participant.
(j) Merger or Liquidation of Company. In the event the Company, its
stockholders or JDS Uniphase Canada enter into an agreement to dispose of all or
substantially all of the assets or outstanding capital stock of the Company or
JDS Uniphase Canada by means of a sale, merger or reorganization in which the
Company or JDS Uniphase Canada will not be the surviving corporation (other than
a reorganization effected primarily to change the jurisdiction in which the
Company or JDS Uniphase Canada is incorporated or in which the successor entity
to JDS Uniphase Canada remains a directly or indirectly wholly owned subsidiary
of the Company) or in the event the Company or JDS Uniphase Canada 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).
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
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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 the
Canadian dollar equivalent of $25,000 U.S. 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 the Canadian dollar equivalent of $25,000 U.S.
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 TAX LAWS
(a) 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,
and provincial income and other 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
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of outstanding purchase rights at the end of the quarterly or semi-annual period
in which such action is authorized.
(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 payroll deduction shall thereafter be collected, under the Plan.
XI. GENERAL PROVISIONS
(a) The Plan shall terminate upon the earlier of (i) July 1, 2009 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 to any person the right to remain
in the employ of JDS Uniphase Canada or any of the Corporate Affiliates for any
period of specific duration, and such person's employment may be terminated at
any time, with or without cause.
(d) The Plan is to be construed in accordance with and governed by the
internal laws of the State of Delaware without giving effect to any choice of
law rule that would cause the application of the laws of any jurisdiction other
than the internal laws of the State of Delaware to the rights and duties of the
parties, except to the extent the internal laws of the State of Delaware 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.