Exhibit 10.51
THE GYMBOREE CORPORATION
1993 AMENDED AND RESTATED EMPLOYEE STOCK PURCHASE PLAN
The following constitute the provisions of the 1993 Amended and Restated
Employee Stock Purchase Plan of the Gymboree Corporation.
1. Purpose. The purpose of the Plan is to provide eligible employees of
the Company and its Designated Subsidiaries with an opportunity to purchase
Common Stock of the Company through accumulated payroll deductions. It is the
intention of the Company to have the Plan qualify as an "Employee Stock Purchase
Plan" under Section 423 of the Internal Revenue Code, as amended. The provisions
of the Plan, accordingly, shall be construed so as to extend and limit
participation in a manner consistent with the requirements of that section of
the Code.
2. Definitions.
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(c) "Common Stock" shall mean the Common Stock of the Company.
(d) "Company" shall mean The Gymboree Corporation, a Delaware
corporation.
(e) "Designated Subsidiary" shall mean the Subsidiaries which have
been designated by the Board (or any committee acting as Plan Administrator)
from time to time in its sole discretion as eligible to participate in the Plan.
(f) "Eligible Compensation" shall mean all base straight time gross
earnings plus payments of overtime, shift premiums and commissions, but
excluding incentive compensation, incentive payments, bonuses, awards, severance
pay, living and relocation bonuses, pay in lieu of vacations, gain from stock
option exercises, and other special compensation.
(g) "Eligible Employee" shall mean any individual who is a regular
employee of the Company or a Designated Subsidiary for purposes of tax
withholding under the Code and, for purposes of the Plan, works at least twenty
(20) hours a week.
Further, the employment relationship shall be treated as continuing intact while
the individual is on sick leave or other leave of absence approved by the
Company. Where the period of leave exceeds 90 days and the individual's right to
reemployment is not guaranteed either by statute or by contract, the employment
relationship will be deemed to have terminated on the 91st day of such leave. If
the Company permits any employee of a Designated Subsidiary to participate in
the Plan, then all employees of that Designated Subsidiary who meet the
requirements of this paragraph shall also be considered Eligible Employees.
(h) "Enrollment Date" shall mean the first day of each Offering
Period.
(i) "ESPP Broker" shall have the meaning set forth in Section 13(c).
(j) "Exercise Date" shall mean the last day of each Purchase Period.
(k) "Fair Market Value" shall mean the per share value of Common
Stock determined in good faith by the Plan Administrator or, if the Common Stock
is (a) listed on the Nasdaq National Market, the closing sales price for the
Common Stock as reported by that market for regular session trading for a single
trading day, (b) listed on the New York Stock Exchange or the American Stock
Exchange, the closing sales price for the Common Stock as such price is
officially quoted in the composite tape of transactions on such exchange for
regular session trading for a single trading day, (c) quoted on the Nasdaq
SmallCap Market, the last sales price as reported by that market for a single
trading day, or (d) quoted on the OTC Bulletin Board Service or by the National
Quotation Bureau, Inc., the average of the high bid and low asked prices
reported by such service for a single trading day. If there is no such reported
price for the Common Stock for the date in question, then such price on the last
preceding date for which such price exists shall be determinative of Fair Market
Value.
(l) "Offering Period" shall have the meaning set forth in Section 4.
(m) "Participant" shall mean any Eligible Employee who has elected
to participate in an Offering Period in accordance with the procedures in
Section 6 and who has not withdrawn from the Plan or whose participation in the
Plan is not otherwise terminated.
(n) "Plan" shall mean this Employee Stock Purchase Plan.
(o) "Plan Administrator" shall have the meaning set forth in Section
14.
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(p) "Purchase Price" shall mean an amount equal to 85% of the Fair
Market Value of a share of Common Stock on the Enrollment Date or the Exercise
Date, whichever is lower.
(q) "Purchase Period" shall have the meaning set forth in Section 5.
(r) "Subsidiary" shall mean a corporation, domestic or foreign, of
which not less than 50% of the voting shares are held by the Company or a
Subsidiary, whether or not such corporation now exists or is hereafter organized
or acquired by the Company or a Subsidiary.
(s) "Trading Day" shall mean a day on which national stock exchanges
and the National Association of Securities Dealers Automated Quotation (Nasdaq)
System are open for trading.
3. Eligibility.
(a) Any Eligible Employee who shall be employed by the Company on a
given Enrollment Date shall be eligible to participate in the Plan.
(b) Any provisions of the Plan to the contrary notwithstanding, no
Eligible Employee shall be granted an option under the Plan (i) if, immediately
after the grant, such Eligible Employee (or any other person whose stock would
be attributable to such Eligible Employee pursuant to Section 424(d) of the
Code) would own stock and/or hold outstanding options to purchase stock
possessing five percent (5%) or more of the Company or of any Subsidiary of the
Company, or (ii) which permits his or her rights to purchase stock under all
employee stock purchase plans of the Company and its Subsidiaries to accrue at a
rate which exceeds Twenty-Five Thousand Dollars ($25,000) worth of stock
(determined at the Fair Market Value of the shares at the time such option is
granted) for each calendar year in which such option is outstanding at any time.
(c) Notwithstanding paragraph (b) above, the maximum number of
shares a Participant may purchase during each Purchase Period of any Offering
Period shall be 2000 Shares (subject to adjustment pursuant to Section 18), and
provided further that such purchase shall be subject to the limitations set
forth in Section 13.
4. Offering Periods. The Plan shall be implemented by a series of
consecutive, overlapping offering periods that each last twelve (12) months
(each, an "Offering Period") with a new Offering Period commencing on the first
Trading Day on or after January 1 and July 1 each year, or on such other date as
the Plan Administrator shall determine, and continuing thereafter until
terminated in
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accordance with Section 19 hereof. Notwithstanding the foregoing, the Plan
Administrator shall have the power to change the duration of an Offering Period
(including the commencing and ending dates thereof) with respect to future
offerings; provided, however, that no Offering Period may exceed five (5) years
and, further, if the Purchase Price may be less than 85% of the Fair Market
Value of the Common Stock on the Exercise Date, the Offering Period may not
exceed 27 months. If the last day of an Offering Period is not a regular
business day, the last day of the Offering Period shall be deemed to be the last
preceding Trading Day.
5. Purchase Periods. Each Offering Period shall consist of one or more
consecutive purchase periods (each, a "Purchase Period"). The last day of each
Purchase Period shall be the Exercise Date for options issued at the
commencement of such Purchase Period. A Purchase Period shall commence on each
January 1 and July 1 and shall end on the next June 30 and December 31,
respectively. Notwithstanding the foregoing, the Plan Administrator shall have
the power to change the duration of Purchase Periods (including the commencing
and ending dates thereof) with respect to future Purchase Periods. If the last
day of a Purchase Period is not a regular business day, the last day of the
Purchase Period shall be deemed to be the last preceding Trading Day.
6. Participation.
(a) An Eligible Employee may become a Participant in the Plan by
completing a subscription agreement in the form provided by the Company and
filing it with the Company's Human Resources Department (as set forth in Section
20 below) at least five (5) business days prior to the applicable Enrollment
Date, unless a later time for filing the subscription agreement is set by the
Plan Administrator for all eligible Employees with respect to a given Offering
Period. Such subscription agreement shall (a) indicate the Eligible Employee's
election to participate in the Plan, (b) authorize payroll deductions and state
the amount to be deducted regularly from the Participant's Eligible Compensation
and (c) authorize the purchase of Common Stock for the Eligible Employee in each
Purchase Period.
(b) Payroll deductions for a Participant shall commence on the first
payroll period following the Enrollment Date and shall end on the last payroll
period in the Offering Period, unless sooner terminated by the Participant as
provided in Section 11 hereof.
(c) An Eligible Employee who does not deliver a subscription
agreement pursuant to Section 6(a) hereof shall not participate in the Plan for
that Offering Period or for any subsequent Offering Period unless such Eligible
Employee
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subsequently enrolls in the Plan by filing a subscription agreement pursuant to
Section 6(a) for such subsequent Offering Period. The Company may, from time to
time, change the deadline for filing of subscription agreements for future
Offering Periods as deemed advisable by the Plan Administrator, in its sole
discretion, for the proper administration of the Plan.
(d) An employee who becomes eligible to participate in the Plan
after an Offering Period has commenced shall not be eligible to participate in
such Offering Period but may participate in any subsequent Offering Period,
provided that such employee is still an Eligible Employee as of the commencement
of such subsequent Offering Period.
(e) Eligible Employees may not participate in more than one Offering
Period at a time.
(f) A Participant who has elected to participate in an Offering
Period shall automatically participate in the next Offering Period until such
time as the Participant withdraws from the Plan or terminates employment as
provided in Section 11.
7. Payroll Deductions.
(a) At the time a Participant files his or her subscription
agreement, he or she shall elect to have payroll deductions made on each pay day
during the Offering Period in an amount not exceeding ten percent (10%) of the
Eligible Compensation which he or she receives on each pay day during the
Offering Period, and the aggregate of such payroll deductions during the
Offering Period shall not exceed ten percent (10%) of the Participant's Eligible
Compensation during said Offering Period. Amounts shall be withheld in whole
percentages only.
(b) Individual accounts shall be maintained for each Participant for
memorandum purposes. All payroll deductions made for a Participant shall be
credited to his or her account under the Plan but shall be deposited with the
general funds of the Company. Subject to Section 7(e), Common Stock acquired
pursuant to the exercise of all or any portion of an option granted under the
Plan may be paid for only by means of payroll deductions from the Participant's
Eligible Compensation and a Participant may not make any additional payments
into such account. All payroll deductions received or held by the Company may be
used by the Company for any corporate purpose.
(c) Unless the Plan Administrator establishes otherwise for a future
Offering Period, a Participant may discontinue his or her participation in the
Plan as
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provided in Section 11 hereof, or may decrease the rate of his or her payroll
deductions, including to 0%, during the current Purchase Period by filing with
the Company's Human Resources Department (as set forth in Section 20 below) a
new subscription agreement authorizing a decrease in payroll deduction rate. The
decrease in rate shall be effective with the first full payroll period following
five (5) business days after the Company's receipt of the new subscription
agreement unless the Company elects to process a given change in participation
more quickly.
(d) A Participant may increase the rate of his or her payroll
deductions during a current Purchase Period by filing with the Company's Human
Resources Department, a new subscription agreement authorizing the increase in
payroll deduction rate. The increase in rate shall be effective with the first
full payroll period following five (5) business days after the Company's receipt
of the new subscription agreement unless the Company elects to process a given
change in participation more quickly. In addition, a Participant may increase
the rate of his or her payroll deductions for an upcoming Purchase Period by
filing with the Company's Human Resources Department (as set forth in Section 20
below) a new subscription agreement authorizing an increase in payroll deduction
rate within five (5) business days of the commencement of the upcoming Purchase
Period. A Participant's amended subscription agreement shall remain in effect
for successive Purchase Periods and Offering Periods unless the Participant
again changes such subscription agreement in accordance with the terms of the
Plan or the subscription agreement is terminated as provided in Section 11. The
Board shall be authorized to limit the number of participation rate changes
during any Offering Period.
(e) Notwithstanding the foregoing, to the extent necessary to comply
with Section 423(b)(8) of the Code and Section 3(b) hereof, a Participant's
payroll deductions may be decreased to 0% at such time during any Purchase
Period that is scheduled to end during the current calendar year (the "Current
Purchase Period") as the aggregate of all payroll deductions that were
previously used to purchase stock under the Plan in a prior Purchase Period that
ended during the current calendar year plus all payroll deductions accumulated
with respect to the Current Purchase Period equal $21,250. Payroll deductions
shall recommence at the rate provided in such Participant's subscription
agreement at the beginning of the first Purchase Period scheduled to end in the
following calendar year, unless terminated by the Participant as provided in
Section 11.
(f) During unpaid leaves of absence approved by the Company and
meeting the requirements of the applicable treasury regulations promulgated
under the Code, a Participant may elect to continue participation in the Plan by
continuing to accrue payroll deductions equal to such amount as if the
Participant had not taken a
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leave of absence. Currently the treasury regulations provide that a Participant
may continue participation in the Plan only during the first 90 days of a leave
of absence unless the Participant's reemployment rights are guaranteed by
contract or statute.
(g) At the time the option is exercised, in whole or in part, or at
the time some or all of the Company's Common Stock issued under the Plan is
disposed of, the Participant must make adequate provision for the Company's
federal, state or other tax withholding obligations, if any, that arise upon the
exercise of the option or the disposition of the Common Stock. At any time, the
Company may, but will not be obligated to, withhold from the Participant's
compensation the amount necessary for the Company to meet applicable withholding
obligations, including any withholding required to make available to the Company
any tax deductions or benefit attributable to sale or early disposition of
Common Stock by the employee.
8. Grant of Option. On the Enrollment Date of each Offering Period, each
Eligible Employee participating in such Offering Period shall be granted an
option to purchase on each Exercise Date during such Offering Period (at the
applicable Purchase Price) up to a number of shares of the Company's Common
Stock determined by dividing such Eligible Employee's payroll deductions
accumulated prior to such Exercise Date and credited to the Participant's
memorandum account as of the Exercise Date by the applicable Purchase Price;
provided that such purchase shall be subject to the limitations set forth in
Sections 3(b), 3(c) and 13 hereof. Exercise of the option shall occur as
provided in Section 9, unless the Participant has withdrawn pursuant to Section
11, and the option shall expire on the last day of the Offering Period.
9. Exercise of Option. Unless a Participant withdraws from the Plan as
provided in Section 11 below, his or her option for the purchase of shares will
be exercised automatically on each Exercise Date, and the maximum number of full
shares subject to the option shall be purchased for such Participant at the
applicable Purchase Price with the accumulated payroll deductions in his or her
account. No fractional shares will be purchased (unless the Plan Administrator
has determined for a future Offering Period that fractional shares may be issued
under the Plan); any payroll deductions accumulated in a Participant's account
which are not sufficient to purchase a full share shall remain credited to the
Participant's account for the subsequent Purchase Period, subject to earlier
withdrawal by the Participant as provided in Section 11. Any other money left
over in a Participant's account after the Exercise Date shall be returned to the
Participant without payment of interest. In the event that the Participant does
not participate in the next Purchase Period, the entire remaining cash balance
shall be refunded to the Participant as soon as practicable after
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the Exercise Date without payment of interest. During a Participant's lifetime,
a Participant's option to purchase shares hereunder is exercisable only by him
or her.
10. Delivery. Unless the Plan Administrator has designated or approved an
ESPP Broker pursuant to Section 13(c), as promptly as practicable after each
Exercise Date on which a purchase of shares occurs, the Company shall arrange
the delivery to each Participant, as appropriate, of a certificate representing
the shares purchased upon exercise of his or her option.
11. Withdrawal; Termination of Employment.
(a) A Participant may withdraw all but not less than all the payroll
deductions credited to his or her account and not used to exercise his or her
option under the Plan at any time by giving written notice to the Company's
Human Resources Department (as set forth in Section 20 below) in a form provided
by the Company for such purpose. All of the Participant's payroll deductions
credited to his or her account will be paid to such Participant promptly after
receipt of notice of withdrawal and such Participant's option for the Offering
Period will be automatically terminated, and no further payroll deductions for
the purchase of shares will be made during the Offering Period. If a Participant
withdraws from an Offering Period, payroll deductions will not resume at the
beginning of the succeeding Offering Period unless the Participant delivers to
the Company a new subscription agreement.
(b) Upon a Participant's ceasing to be an Eligible Employee for any
reason or upon termination of a Participant's employment relationship (as
described in Section 2(g)), the payroll deductions credited to such
Participant's account but not yet used to exercise the option will be returned
to such Participant or, in the case of his or her death, to the person or
persons entitled thereto under Section 15, and such Participant's option will be
automatically terminated.
(c) No Common Stock shall be purchased on behalf of a Participant on
an Exercise Date if his or her participation in the current Offering Period or
the Plan has terminated on or before such Exercise Date or if the Participant
has otherwise terminated employment prior to such Exercise Date.
12. Interest. No interest shall accrue on payroll deductions of a
Participant in the Plan.
13. Stock.
(a) The maximum number of shares of the Company's Common Stock which
shall be made available for sale under the Plan shall be 875,278 shares,
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subject to adjustment upon changes in capitalization of the Company as provided
in Section 18. During any Purchase Period under the Plan, the maximum number of
shares of the Company's Common Stock that shall be made available for sale under
the Plan during such Purchase Period shall be 200,000 shares, which number of
shares shall apply as a cumulative limit to the number of shares which shall be
made available for sale under all Purchase Periods occurring simultaneously
under separate Offering Periods under the Plan, subject to adjustment upon
changes in capitalization as provided in Section 18. If on a given Exercise Date
the number of shares with respect to which options are to be exercised exceeds
the number of shares then available under the Plan, the Company shall make a pro
rata allocation of the shares remaining available for purchase in as uniform a
manner as shall be practicable and as it shall determine to be equitable. Shares
issued under the Plan shall be drawn from authorized and unissued shares or from
shares subsequently acquired by the Company as treasury shares.
(b) The Participant shall not be deemed to be a stockholder of the
Company and will have no interest in or voting right with respect to shares
covered by his or her option until such option has been exercised and a
certificate or its equivalent has been issued to the Participant for the shares
following exercise.
(c) If the Plan Administrator designates or approves a stockbroker
or other financial services firm (the "ESPP Broker") to hold shares purchased
under the Plan for the accounts of Participants, the following procedures shall
apply. Promptly following each Exercise Date, the number of shares of Common
Stock purchased by each Participant shall be deposited into an account
established in the name of the Participant with the ESPP Broker. Each
Participant shall be the beneficial owner of the Common Stock purchased under
the Plan and shall have all rights of beneficial ownership in such Common Stock.
A Participant shall be free to undertake a disposition of the shares of Common
Stock in his or her account at any time, but, in the absence of such a
disposition, the shares of Common Stock must remain in the Participant's account
at the ESPP Broker until the holding period set forth in Code Section 423 has
been satisfied. With respect to shares of Common Stock for which the holding
period set forth above has been satisfied, the Participant may move those shares
of Common Stock to another brokerage account of the Participant's choosing or
request that a stock certificate be issued and delivered to him or her.
Dividends paid in the form of shares of Common Stock with respect to Common
Stock in a Participant's account shall be credited to such account. A
Participant who is not subject to payment of U.S. income taxes may move his or
her shares of Common Stock to another brokerage account of his or her choosing
or request that a stock certificate be delivered to him or her at any time,
without regard to the Code Section 423 holding period.
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(d) In the event that no ESPP Broker is designated or approved by
the Plan Administrator, the shares to be delivered to a Participant under the
Plan will be registered in the name of the Participant or in the name of the
Participant and his or her spouse.
(e) By enrolling in the Plan, each Participant agrees to promptly
give the Company notice of any Common Stock disposed of within the later of one
year from the Exercise Date and two years from the Offering Date for such Common
Stock, showing the number of such shares disposed of and the Exercise Date for
such Common Stock. This notice shall not be required if and so long as the
Company has a designated ESPP Broker.
14. Administration. The Plan shall be administered by the Board or a
committee of members of the Board appointed by the Board or, if and to the
extent the Board or the committee appointed to administer the Plan designates
one or more executive officers to administer the Plan, by such executive
officer(s) (each, the "Plan Administrator"). The Plan Administrator 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 law, be final and
binding upon all parties.
15. Designation of a Beneficiary.
(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 the
Exercise Date on which the option is exercised but 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 (and his or her spouse, if any) at any time by written notice as
provided in Section 20 below. 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
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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.
16. Transferability. Neither payroll deductions credited to a
Participant's account nor any rights with regard to the exercise of an option or
to receive shares under the Plan may be assigned, transferred, pledged or
otherwise disposed of in any way (other than by will, the laws of descent and
distribution or as provided in Section 15 hereof) by the Participant. Any such
attempt at assignment, transfer, pledge or other disposition shall be without
effect, except that the Company may treat such act as an election to withdraw
funds from an Offering Period in accordance with Section 11.
17. Reports. Individual memorandum accounts will be maintained for each
Participant in the Plan. Statements of account will be given to participating
Employees at least annually, which statements will set forth the amounts of
payroll deductions, the Purchase Price, the number of shares purchased and the
remaining cash balance, if any.
18. Adjustments Upon Changes in Capitalization, Dissolution, Merger or
Asset Sale.
(a) Changes in Capitalization. Subject to any required action by the
stockholders of the Company, the (i) the maximum number and kind of shares of
Common Stock subject to the Plan, (ii) the number and kind of securities that
are subject to any outstanding options and the per share price of such
securities and (iii) the maximum number of shares of Common Stock that may be
purchased by a Participant in a Purchase Period shall be proportionately
adjusted for any increase or decrease in the number of issued shares of Common
Stock resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other increase or
decrease in the number of shares of Common Stock effected without receipt of
consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration." Such adjustment shall be made by the Board,
whose determination in that respect shall be final, binding and conclusive.
Except as expressly provided herein, no issue by the Company of shares of stock
of any class, or securities convertible into sales of stock of any class, shall
affect, and no adjustment by reason thereof shall be made with respect to, the
number or price of shares of Common Stock subject to an option. The Board may,
if it so determines in the exercise of its sole discretion, make provision for
adjusting the Reserves, as well as the price per share of Common Stock covered
by each outstanding option, in the
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event the Company effects one or more reorganizations, recapitalizations, rights
offerings or other increases or reductions of shares of its outstanding Common
Stock.
(b) Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Company, the Offering Periods will terminate
immediately prior to the consummation of such proposed action, unless otherwise
terminated by the Board.
(c) Merger or Asset Sale. In the event of a proposed sale of all or
substantially all of the assets of the Company, or the merger of the Company
with or into another corporation, each option under the Plan shall be assumed or
an equivalent option shall be substituted by such successor corporation or a
parent or subsidiary of such successor corporation, unless the Board determines,
in the exercise of its sole discretion and in lieu of such assumption or
substitution, to shorten the Offering Periods then in progress by setting a new
Exercise Date (the "New Exercise Date"). If the Board shortens the Offering
Periods then in progress in lieu of assumption or substitution in the event of a
merger or sale of assets, the Board shall notify each Participant in writing, at
least ten (10) days prior to the New Exercise Date, that the Exercise Date for
his or her option has been changed to the New Exercise Date and that his or her
option will be exercised automatically on the New Exercise Date, unless prior to
such date he or she has withdrawn from the Offering Period as provided in
Section 11. For purposes of this Section 18, an option granted under the Plan
shall be deemed to be assumed if, following the sale of assets or merger, the
option confers the right to purchase, for each share of option stock subject to
the option immediately prior to the sale of assets or merger, the consideration
(whether stock, cash or other securities or property) received in the sale of
assets or merger by holders of Common Stock for each share of Common Stock held
on the effective date of the transaction (and if such holders were offered a
choice of consideration, the type of consideration chosen by the holders of a
majority of the outstanding shares of Common Stock); provided, however, that if
such consideration received in the sale of assets or merger was not solely
common stock of the successor corporation or its parent (as defined in Section
424(e) of the Code), the Board may, with the consent of the successor
corporation and the Participant, provide for the consideration to be received
upon exercise of the option to be solely common stock of the successor
corporation or its parent equal in fair market value to the per share
consideration received by holders of Common Stock in the sale of assets or
merger.
(d) The grant of options under the Plan shall in no way affect the
Company's right to adjust, reclassify, reorganize or otherwise change its
capital or business structure or to merge, consolidate, dissolve, liquidate or
sell or transfer all or any part of its business or assets.
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19. Amendment, Suspension or Termination.
(a) The Board may at any time and for any reason terminate, suspend
or amend the Plan. Except as provided in Section 18, no such termination can
affect options previously granted, provided that an Offering Period may be
terminated by the Board on any Exercise Date if the Board determines that the
termination of the Plan is in the best interests of the Company and its
stockholders. During any period of suspension or upon termination of the Plan,
no options shall be granted under the Plan. Except as provided in Section 18, no
amendment may make any change in any option theretofore granted which adversely
affects the rights of any Participant. To the extent necessary to comply with
Section 423 of the Code (or any successor rule or provision or any other
applicable law or regulation), the Company shall obtain stockholder approval for
any amendment that will (i) increase the total number of shares that may be
issued under the Plan (ii) modify the class of employees eligible to participate
in the Plan, or (iii) otherwise require stockholder approval under any
applicable law or regulation in such a manner and to such a degree as required.
(b) Without stockholder consent and without regard to whether any
Participant rights may be considered to have been "adversely affected," the Plan
Administrator shall be entitled to change the Purchase Periods and/or Offering
Periods, limit the frequency and/or number of changes in the amount withheld
during Purchase Periods and/or Offering Periods, establish the exchange ratio
applicable to amounts withheld in a currency other than U.S. dollars, permit
payroll withholding in excess of the amount designated by a Participant in order
to adjust for delays or mistakes in the Company's processing of properly
completed withholding elections, establish reasonable waiting and adjustment
periods and/or accounting and crediting procedures to ensure that amounts
applied toward the purchase of Common Stock for each Participant properly
correspond with amounts withheld from the Participant's Eligible Compensation,
and establish such other limitations or procedures as the Plan Administrator
determines in its sole discretion advisable which are consistent with the Plan.
20. Notices. All notices or other communications by a Participant to the
Company under or in connection with the Plan shall be given via overnight
courier, certified mail (return receipt requested), facsimile or such other form
as approved by the Plan Administrator, and shall be deemed to have been duly
given when received in the form specified by the Plan Administrator by the
Company's Human Resources Department at the Company's corporate headquarters.
21. Conditions Upon Issuance of Shares. Shares shall not be issued with
respect to an option unless the exercise of such option and the issuance and
delivery of
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such shares pursuant thereto shall comply with all applicable provisions of law,
domestic or foreign, including, without limitation, the Securities Act of 1933,
as amended, the Securities Exchange Act of 1934, as amended, the rules and
regulations promulgated thereunder, and the requirements of any stock exchange
upon which the shares may then be listed, and shall be further subject to the
approval of counsel for the Company with respect to such compliance.
As a condition to the exercise of an option, the Company may require
the person exercising such option to represent and warrant at the time of any
such exercise that the shares are being purchased only for investment and
without any present intention to sell or distribute such shares if, in the
opinion of counsel for the Company, such a representation is required by any of
the aforementioned applicable provisions of law.
22. Term of Plan. The Plan shall become effective upon the earlier to
occur of its adoption by the Board of Directors or its approval by the
stockholders of the Company. It shall continue in effect until February 11,
2013, unless sooner terminated pursuant to Section 19.
23. Automatic Transfer to Low Price Offering Period. If the Fair Market
Value of the Common Stock on any Exercise Date in an Offering Period is lower
than the Fair Market Value of the Common Stock on the Enrollment Date of such
Offering Period, then all Participants in such Offering Period shall be
automatically withdrawn from such Offering Period immediately after the exercise
of their options on such Exercise Date and automatically re-enrolled in the
immediately following Offering Period as of the first day thereof.
24. No Rights as an Employee. Nothing in the Plan shall be construed to
give any person (including any Eligible Employee or Participant) the right to
remain in the employ of the Company or any Subsidiary or to affect the right of
the Company or any Subsidiary to terminate the employment of any person
(including any Eligible Employee or Participant) at any time with or without
cause.
25. Effect Upon Other Plans. Nothing in the Plan shall be construed to
limit the right of the Company or any Subsidiary to (a) establish other forms of
incentives or compensation for employees of the Company or any Subsidiary or (b)
grant or assume options otherwise than under the Plan in connection with any
proper corporate purpose, including, but not by way of limitation, the grant or
assumption of options in connection with the acquisition, by purchase, lease,
merger, consolidation or otherwise, of the business, stock or assets of any
corporation, firm or association.
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