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Exhibit 10.12
REMEDYTEMP, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
The following constitutes the provisions of the RemedyTemp, Inc. 1996
Employee Stock Purchase Plan (the "PLAN").
1. PURPOSE.
The purpose of the Plan is to maintain competitive equity compensation
programs and to provide employees of RemedyTemp, Inc. (the "COMPANY") with an
opportunity and incentive to acquire a proprietary interest in the Company
through the purchase of the Company's Class A Common Stock, thereby more closely
aligning the interests of the Company's employees and stockholders. 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 of 1986, as amended
("SECTION 423"). Accordingly, the provisions of the Plan shall be construed to
extend and limit participation consistent with the requirements of Section 423.
2. DEFINITIONS.
Capitalized terms used in this Plan and not otherwise defined have the
meanings set forth below.
"ADMINISTRATOR" means the Committee, or the Board if the Board asserts
administrative authority over the Plan pursuant to Section 13.
"BOARD" means the Board of Directors of the Company.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMITTEE" means a committee of members of the Board meeting the
qualifications described in Section 13 and appointed by the Board to administer
the Plan.
"COMMON STOCK" shall mean the Class A Common Stock of the Company.
"COMPENSATION" means, with respect to each participant for each pay
period, the full base salary or hourly compensation and any cash bonus paid to
such participant. Except as otherwise determined by the Committee for all
participants, "Compensation" does not include (i) commissions, overtime pay or
shift premiums, (ii) any amount contributed on behalf of a participant to any
pension plan or plan of deferred compensation, (iii) any automobile or
relocation allowances (or reimbursement for any such expenses), (iv) any amounts
realized as compensation from the exercise of qualified or nonqualified stock
options, (v) any amounts paid as a starting bonus or finder's fee, (vi) any
amounts paid to a participant in the form of fringe benefits, such as health and
welfare, hospitalization, and group life insurance benefits, or perquisites, or
paid in lieu of such benefits, such as cash-out credits generated under a plan
qualified under Code Section 125, or (vii) other similar forms of extraordinary
compensation.
"ELIGIBLE EMPLOYEE" means an Employee who has been an Employee for at
least six months.
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"EMPLOYEE" means any individual who is customarily employed for at least fifteen
(15) hours per week and more than five (5) months in a calendar year by the
Company or a Subsidiary that is permitted to participate in the Plan under
Section 16(b). For purposes of the Plan, the employment relationship shall be
treated as continuing while the individual is on sick leave or other leave of
absence approved by the Company, except that when 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.
"ENROLLMENT DATE" means the first day of each Offering Period, i.e.
August 1, 1996 and each February 1 and August 1 thereafter for the duration of
the Plan.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXERCISE DATE" means the last day of each Purchase Period, i.e.
January 31, 1997 and each July 31 and January 31 thereafter for the duration of
the Plan.
"FAIR MARKET VALUE" of the Common Stock on any date means the value of
Common Stock determined as follows:
(1) If the Common Stock is listed on any established stock
exchange or a national market system, including, without limitation, the Nasdaq
National Market, its Fair Market Value shall be the closing sales price for such
stock (or the closing bid, if no sales were reported), as quoted on such
exchange or system (or the exchange or system with the greatest volume of
trading in the Common Stock) on the date of such determination (or, if such date
is not a Trading Day, then on the next preceding Trading Day), as reported in
the Wall Street Journal or such other source as the Administrator deems
reliable; or
(2) If the Common Stock is quoted on the National Association
of Securities Dealers Automated Quotation System (but not on the Nasdaq National
Market) or is regularly quoted by a recognized securities dealer but selling
prices are not reported, its Fair Market Value shall be the mean between the
high and low asked prices for the Common Stock on the date of such determination
(or, if such date is not a Trading Day, then on the next preceding Trading Day),
as reported in the Wall Street Journal or such other source as the Administrator
deems reliable; or
(3) In the absence of an established market for the Common
Stock, the Fair Market Value of the Common Stock shall be determined in good
faith by the Administrator.
"OFFERING PERIOD" means each period of twenty-four (24) months, either
(i) commencing on August 1, 1996 and each August 1 thereafter for the duration
of the Plan and terminating on the July 31 twenty-four (24) months later, or
(ii) commencing on February 1, 1997 and each February 1 thereafter for the
duration of the Plan and terminating on the January 31 twenty-four (24) months
later. The Administrator shall have the power to change the duration of Offering
Periods without stockholder approval as set forth in Section 12 or if such
change is announced at least fifteen (15) days prior to the scheduled beginning
of the first Offering Period to be affected.
"OPTION" means the option granted to each participant pursuant to
Section 4 upon enrollment in an Offering Period.
"PERIODIC EXERCISE LIMIT" has the meaning set forth in Section 4(a).
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"PLAN ACCOUNT" means an account maintained by the Company for each
participant in the Plan, to which are credited the payroll deductions made for
such participant pursuant to Section 5 and from which are debited amounts paid
for the purchase of shares upon exercise of such participant's Option pursuant
to Section 6.
"PURCHASE PRICE" as of any Exercise Date means an amount equal to 85%
of the Fair Market Value of a share of Common Stock on the Exercise Date or on
the Enrollment Date for the Offering Period in which such Exercise Date occurs,
whichever is lower.
"PURCHASE PERIOD" means each six-month period within an Offering
Period, commencing each August 1 and February 1 and ending each July 31 and
January 31, respectively.
"RESERVES" means the number of shares of Common Stock covered by each
Option that have not yet been exercised and the number of shares of Common Stock
that have been authorized for issuance under the Plan, but not yet placed under
Option.
"RULE 16b-3" means Rule 16b-3 under the Exchange Act and any successor
provision.
"SUBSIDIARY" has the meaning as set forth under Section 424(f) of the
Code.
"TRADING DAY" means a day on which national stock exchanges and the
National Association of Securities Dealers Automated Quotation System are open
for trading.
3. OFFERING PERIODS AND PARTICIPATION.
The Plan shall be implemented through a series of consecutive and
overlapping Offering Periods. An Eligible Employee may enroll in an Offering
Period by delivering a subscription agreement in the form of Exhibit A hereto to
the Company's payroll office at least five (5) business days prior to the
Enrollment Date for that Offering Period. Eligible Employees shall participate
in only one Offering Period at a time, and a subscription agreement in effect
for a Plan participant for a particular Offering Period shall continue in effect
for subsequent Offering Periods if the participant remains an Eligible Employee
and has not withdrawn pursuant to Section 8.
4. OPTIONS.
(a) Grants. On the Enrollment Date for 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 that number of shares of Common Stock
determined by dividing $12,500 by the Fair Market Value of a share of Common
Stock on the Enrollment Date (such number of shares being the "PERIODIC EXERCISE
LIMIT"). The Option shall expire immediately after the last Exercise Date of the
Offering Period.
(b) Grant Limitations. Any provisions of the Plan to the contrary
notwithstanding, no participant shall be granted an Option under the Plan:
(i) if, immediately after the grant, such participant (taking
into account stock held by other persons that is attributed to such
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 total combined voting power or value of all classes of
stock of the Company or of any Subsidiary (as determined under Treasury
regulations Section 1.423-2(d)); or
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(ii) which permits such participant's rights to purchase stock
under all employee stock purchase plans of the Company and its
Subsidiaries to accrue at a rate that 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) in any calendar year.
(c) No Rights in Respect of Underlying Stock. The participant will have
no interest or voting right in shares covered by an Option until such Option has
been exercised.
5. PAYROLL DEDUCTIONS.
(a) Participant Designations. The subscription agreement applicable to
an Offering Period shall designate payroll deductions to be made on each payday
during the Offering Period as a whole number percentage not exceeding ten
percent (10%) of such Eligible Employee's Compensation for the pay period
preceding such payday, provided that the aggregate of such payroll deductions
during the Offering Period shall not exceed ten percent (10%) of the
participant's Compensation during said Offering Period.
(b) Plan Account Balances. The Company shall make payroll deductions as
specified in each participant's subscription agreement on each payday during the
Offering Period and credit such payroll deductions to such participant's Plan
Account. A participant may not make any additional payments into such Plan
Account. No interest will accrue on any payroll deductions. All payroll
deductions received or held by the Company under the Plan may be used by the
Company for any corporate purpose, and the Company shall not be obligated to
segregate such payroll deductions.
(c) Participant Changes. A participant may discontinue his or her
participation in the Plan as provided in Section 8, or may increase or decrease
(subject to such limits as the Administrator may impose) the rate of his or her
payroll deductions during any Purchase Period by filing with the Company a new
subscription agreement authorizing such a change in the payroll deduction rate.
The change 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) Decreases. Notwithstanding the foregoing, to the extent necessary
to comply with Section 423(b)(8) of the Code and Section 4(b) herein, a
participant's payroll deductions may be decreased to 0% at such time during any
Purchase Period that is scheduled to end during a calendar year (the "CURRENT
PURCHASE PERIOD") when the aggregate of all payroll deductions previously used
to purchase stock under the Plan in a prior Purchase Period which ended during
that 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 that is scheduled to end in the following calendar
year, unless terminated by the participant as provided in Section 8.
(e) Tax Obligations. At the time of each exercise of a participant's
Option, and at the time any Common Stock issued under the Plan to a participant
is disposed of, the participant must adequately provide 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.
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(f) Statements of Account. The Company shall maintain each
participant's Plan Account and shall give each Plan participant a statement of
account at least annually. Such statements will set forth the amounts of payroll
deductions, the Purchase Price, the number of shares purchased and the remaining
cash balance, if any, for the period covered.
6. EXERCISE OF OPTIONS.
(a) Automatic Exercise on Exercise Dates. Unless a participant
withdraws as provided in Section 8, his or her Option for the purchase of shares
will be exercised automatically on each Exercise Date within the Offering Period
in which such participant is enrolled for the maximum number of shares of Common
Stock, including fractional shares, as can then be purchased at the applicable
Purchase Price with the payroll deductions accumulated in such participant's
Plan Account and not yet applied to the purchase of shares under the Plan,
subject to the Periodic Exercise Limit. During a participant's lifetime, a
participant's Options to purchase shares hereunder are exercisable only by the
participant.
(b) Delivery of Shares. 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 or book entry
transfer representing the shares purchased upon exercise of his or her Option,
provided that the Company may in its discretion hold fractional shares for the
accounts of the participants pending aggregation to whole shares.
(c) Compliance with Law. Shares shall not be issued with respect to an
Option unless the exercise of such Option and the issuance and delivery of such
shares pursuant thereto comply with all applicable provisions of law, domestic
or foreign, including, without limitation, the Securities Act of 1933, as
amended, the Exchange Act, 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 participant for whom an Option is exercised 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. Shares
issued upon purchase under the Plan may be subject to such transfer restrictions
and stop-transfer instructions as the Administrator deems appropriate.
(d) Excess Plan Account Balances. If, due to application of the
Periodic Exercise Limit, there remains in a participant's Plan Account
immediately following exercise of such participant's Option on an Exercise Date
any cash accumulated during the Purchase Period immediately preceding such
Exercise Date and not applied to the purchase of shares under the Plan, such
cash shall promptly be returned to the participant.
7. AUTOMATIC TRANSFER TO LOW PRICE OFFERING PERIOD.
If the Fair Market Value of the Common Stock on any Exercise Date is
lower than the Fair Market Value of the Common Stock on the Enrollment Date for
the Offering Period in which such Exercise Date occurs, 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.
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8. WITHDRAWAL: TERMINATION OF EMPLOYMENT.
(a) Voluntary Withdrawal. Subject to Section 16(g), a participant may
withdraw from an Offering Period by giving written notice to the Company's
payroll office at least five (5) business days prior to the next Exercise Date.
Such withdrawal shall be effective beginning five business days after receipt by
the Company's payroll office of notice thereof. On or promptly following the
effective date of any withdrawal, all (but not less than all) of the withdrawing
participant's payroll deductions credited to his or her Plan Account and not yet
applied to the purchase of shares under the Plan will be paid to such
participant, and on the effective date of such withdrawal 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 any succeeding Offering Period unless the
participant delivers to the Company a new subscription agreement with respect
thereto.
(b) Termination of Employment. Promptly after a participant's ceasing
to be an Employee for any reason the payroll deductions credited to such
participant's Plan Account and not yet applied to the purchase of shares under
the Plan will be returned to such participant or, in the case of his or her
death, to the person or persons entitled thereto under Section 10, and such
participant's Option will be automatically terminated, provided that, if the
Company does not learn of such death more than five (5) business days prior to
an Exercise Date, payroll deductions credited to such participant's Plan account
may be applied to the purchase of shares under the Plan on such Exercise Date.
9. TRANSFERABILITY.
Neither payroll deductions credited to a participant's Plan 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 by the
participant in any way other than by will, the laws of descent and distribution
or as provided in Section 10 hereof. Any such attempt at assignment, transfer,
pledge or other disposition shall be without effect, except that the
Administrator may treat such act as an election to withdraw from an Offering
Period in accordance with Section 8. The Administrator may, in its discretion
and consistent with applicable law, restrict the transfer of shares purchased
under the Plan by imposing a holding period not to exceed one year from the date
of issuance.
10. DESIGNATION OF BENEFICIARY.
A participant may file a written designation of a beneficiary who is to
receive any cash from the participant's Plan Account in the event of such
participant's death and any shares purchased for the participant upon exercise
of his or her Option but not yet issued. If a participant is married and the
designated beneficiary is not the spouse, spousal consent may be required for
such designation to be effective. A designation of beneficiary may be changed by
a participant at any time by written notice. In the event of the death of a
participant and in the absence of a beneficiary validly designated under the
Plan who is living at the time of such participant's death, the Company shall
deliver such shares and/or cash to the executor or administrator of the estate
of the participant, or if no such executor or administrator has been appointed
(to the knowledge of the Company), the Company, in its discretion, may deliver
such shares and/or cash to the spouse or to any one or more dependents or
relatives of the participant, or if no spouse, dependent or relative is known to
the Company, then to such other person as the Company may designate.
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11. STOCK.
The maximum number of shares of the Company's Common Stock that shall
be made available for sale under the Plan shall be 300,000 shares, subject to
adjustment upon changes in capitalization of the Company as provided in Section
12. If on a given Enrollment Date or Exercise Date the number of shares with
respect to which Options are to be granted or exercised exceeds the number of
shares then available under the Plan, the Administrator 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 of
Common Stock subject to unexercised Options that expire, terminate or are
cancelled will again become available for the grant of further Options under the
Plan.
12. 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 Reserves as well as the Purchase Price,
Periodic Exercise Limit, and other characteristics of the Options, shall be
appropriately and proportionately adjusted for any increase or decrease or
exchange in the issued shares of Common Stock resulting from a stock split,
reverse stock split, stock dividend, combination or reclassification of the
Common Stock, exchange 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 Administrator, 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 shares 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 Administrator may, if it so determines
in the exercise of its sole discretion, provide for adjusting the Reserves, as
well as the Purchase Price, Periodic Exercise Limit, and other characteristics
of the Options, in the 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, all pending Offering Periods will
terminate immediately prior to the consummation of such proposed action, unless
otherwise provided by the Administrator, and all Plan Account balances will be
paid to participants as appropriate consistent with applicable law.
(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 or other
combination (the "TRANSACTION") of the Company with or into another entity, each
Option under the Plan shall be assumed or an equivalent option shall be
substituted by such successor entity or a parent or subsidiary of such successor
entity, unless the Administrator 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 Administrator shortens the Offering Periods then in
progress in lieu of assumption or substitution, the Administrator shall notify
each participant in writing, at least ten (10) days prior to the New Exercise
Date, that the Exercise Date for such participant's Option has been changed to
the New Exercise Date and that such participant's Option will be exercised
automatically on the New Exercise Date, unless prior to such date the
participant has withdrawn from the Offering Period as provided in Section 8
(provided that, in such case, the participant's withdrawal shall be effective if
notice thereof is delivered to the Company's payroll office at least two (2)
business days prior to the New Exercise
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Date). For purposes of this Section, an Option granted under the Plan shall be
deemed to be assumed if, following the Transaction the Option confers the right
to purchase at the Purchase Price (provided that for such purposes the Fair
Market Value of the Common Stock on the New Exercise Date shall be the value per
share of the consideration paid in the Transaction), for each share of stock
subject to the Option immediately prior to the Transaction, the consideration
(whether stock, cash or other securities or property) received in the
Transaction 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 Transaction was not solely common equity of the
successor entity or its parent (as defined in Section 424(e) of the Code), the
Administrator may, with the consent of the successor entity and the participant,
provide for the consideration to be received upon exercise of the Option to be
solely common equity of the successor entity or its parent equal in fair market
value to the per share consideration received by holders of Common Stock in the
Transaction.
13. ADMINISTRATION.
The Plan shall be administered by the Committee, which shall have the
authority to construe, interpret and apply the terms of the Plan and any
agreements defining the rights and obligations of the Company and participants
under the Plan, to prescribe, amend, and rescind rules and regulations relating
to the Plan, to determine eligibility and to adjudicate all disputed claims
filed under the Plan, and to make all other determinations necessary or
advisable for the administration of the Plan. The Administrator may, in its
discretion, delegate ministerial responsibilities under the Plan to the Company.
Every finding, decision and determination made by the Committee shall, to the
full extent permitted by law, be final and binding upon all parties. Any action
of the Committee shall be taken pursuant to a majority vote or by the unanimous
written consent of its members. The Committee shall consist of three or more
members of the Board, each of whom shall be disinterested within the meaning of
Rule 16b-3, provided, however, that the number of members of the Committee may
be reduced or increased from time to time by the Board to the number required or
allowed by Rule 16b-3. The Board may from time to time in its discretion
exercise any responsibilities or authority allocated to the Committee under the
Plan. No member of the Committee or any designee thereof will be liable for any
action or determination made in good faith with respect to the Plan or any
transaction arising under the Plan.
14. AMENDMENT OR TERMINATION.
(a) Administrator's Discretion. The Administrator may, at any time and
for any reason, terminate or amend the Plan. Except as provided in Section 12,
no such termination can affect Options previously granted, provided that an
Offering Period may be terminated by the Administrator on any Exercise Date if
the Administrator determines that such termination is in the best interests of
the Company and its stockholders. Except as provided herein, no amendment may
make any change in any Option theretofore granted that adversely affects the
rights of any participant. To the extent necessary to comply with and qualify
under Rule 16b-3 or under Section 423 (or any successor rule or provision or any
other applicable law or regulation), the Administrator shall obtain stockholder
approval of amendments to the Plan in such a manner and to such a degree as
required.
(b) Administrative Modifications. Without stockholder consent (except
as specifically required by applicable law or regulation) and without regard to
whether any participant rights may be considered to have been "adversely
affected," the Administrator shall be entitled to amend the
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Plan to the extent necessary to comply with and qualify under Rule 16b-3 and
Section 423, change the Purchase Periods and/or Offering Periods, limit the
frequency and/or number of changes in payroll deductions 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 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 Compensation, and establish such other limitations or
procedures as the Administrator determines in its sole discretion to be
advisable and which are consistent with the Plan.
15. TERM OF PLAN.
The Plan shall become effective upon the first Enrollment Date after
its approval by the stockholders of the Company and shall continue in effect for
a term of twenty (20) years unless sooner terminated pursuant to Section 14.
16. MISCELLANEOUS.
(a) Notices. All notices or other communications by a participant to
the Company under or in connection with the Plan shall be deemed to have been
duly given when received in the form specified by the Company at the location,
or by the person, designated by the Company for the receipt thereof.
(b) Subsidiaries. The Administrator may from time to time in its
discretion permit Employees of any Subsidiary to participate in the Plan on the
same terms as Eligible Employees hereunder.
(c) Stockholder Approval. The Plan shall be subject to approval by the
stockholders of the Company within twelve months before or after the date the
Board adopts the Plan. If such stockholder approval is not obtained, the Plan
and all rights to the Common Stock purchased under the Plan shall be null and
void and shall have no effect.
(d) Expenses. All costs and expenses incurred in administering the Plan
shall be paid by the Company, except that any stamp duties or transfer taxes
applicable to participation in the Plan may be charged to the account of such
participant by the Company. Any brokerage fees for the purchase of shares by a
participant shall be paid by the Company, but any brokerage fees for the sale of
shares by a participant shall be borne by the participant.
(e) Equal Rights and Privileges. All Employees of the Company (or of
any Subsidiary that is permitted to participate in the Plan under Section 16(b))
shall have equal rights and privileges under the Plan so that the Plan qualifies
as an "employee stock purchase" within the meaning of Section 423 (or any
successor provision of the Code) and the Treasury regulations thereunder. Any
provision of the Plan which is inconsistent with Section 423 (or any successor
provision of the Code) or applicable Treasury regulations shall, without further
act or amendment by the Company or the Board, be reformed to comply with the
requirements of Section 423 (or any successor provision of the Code) or
applicable Treasury regulations. This Section 16(e) shall take precedence over
all other provisions of the Plan.
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(f) Exclusion From Retirement and Fringe Benefit Computation. To the
extent not prohibited by statutory law, no portion of the award of Options under
this Plan shall be taken into account as "wages," "salary," or other
"compensation" for any purpose, whether in determining eligibility, benefits, or
otherwise, under (i) any pension, retirement, profit sharing or other qualified
or nonqualified plan of deferred compensation, (ii) any employee welfare or
fringe benefit plan including, but not limited to, group insurance,
hospitalization, medical, and disability, or (iii) any form of extraordinary pay
including but not limited to, bonuses, sick pay, and vacation pay.
(g) Additional Restrictions of Rule 16b-3. The terms and conditions of
Options granted hereunder to, and the purchase of shares by, persons subject to
Section 16 of the Exchange Act shall comply with the applicable provisions of
Rule 16b-3. This Plan shall be deemed to contain, and such Options shall
contain, and the shares issued upon exercise thereof shall be subject to, such
additional conditions and restrictions as may be required by Rule 16b-3 to
qualify for the maximum exemption from Section 16 of the Exchange Act with
respect to Plan transactions. Without limitation of the foregoing, the election
by a person subject to Section 16 of the Exchange Act to enroll in an Offering
Period may be made irrevocable for specific Purchase Period within the Offering
Period.
(h) No Employment Rights. The Plan does not, directly or indirectly,
create any right for the benefit of an employee or class of employees to
purchase any shares under the Plan, or create in any employee or class of
employees any right with respect to continuation of employment by the Company,
and it shall not be deemed to interfere in any way with the Company's right to
terminate, or otherwise modify, an employee's employment at any time.
(i) Applicable Law. The laws of the State of California shall govern
all matters relating to the Plan, except to the extent (if any) superseded by
the laws of the United States.
(j) Headings. Headings used herein are for convenience of reference
only and do not affect the meaning or interpretation of the Plan.
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REMEDYTEMP, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
SUBSCRIPTION AGREEMENT
_____ Original Application Enrollment Date: ___________
_____ Change in Payroll Deduction Rate
_____ Change of Beneficiary(ies)
1. The undersigned hereby elects to participate in the RemedyTemp, Inc.
1996 Employee Stock Purchase Plan (the "Plan") and subscribes to
purchase shares of the Company's Common Stock in accordance with this
Subscription Agreement and the Plan.
2. I hereby authorize payroll deductions from each paycheck in the amount
of ____% (not to exceed 10%) of my Compensation (as defined in the
Plan) on each payday during the Offering Period in accordance with the
Plan. (Please note that no fractional percentages are permitted.)
3. I understand that said payroll deductions shall be accumulated for the
purchase of shares of Common Stock at the applicable Purchase Price
determined in accordance with the Plan. I understand that if I do not
withdraw from an Offering Period, any accumulated payroll deductions
will be used to automatically exercise my Option on each Exercise Date
within the Offering Period.
4. I have received a copy of the complete Plan. I understand that my
participation in the Plan is in all respects subject to the terms of
the Plan, that capitalized terms used herein have the same meanings as
ascribed thereto in the Plan, and that in case of any inconsistency
between this Subscription Agreement and the Plan, the Plan shall
govern. I understand that the grant of the Option by the Company under
this Subscription Agreement is subject to stockholder approval of the
Plan.
5. Shares purchased for me under the Plan should be issued in the name(s)
of (employee and/or spouse only):____________________________________.
6. I understand that if I dispose of any shares received by me pursuant to
the Plan within two years after the Enrollment Date (the first day of
the Offering Period during which I purchased such shares) or within one
year after the Exercise Date (the date I purchased such shares), I will
be treated for federal income tax purposes as having received ordinary
income at the time of such disposition in an amount equal to the excess
of the fair market value of the shares at the time such shares were
delivered to me over the price which I paid for the shares. I hereby
agree to notify the Company in writing within 30 days after the date of
any disposition of my shares, and I will make adequate provision for
Federal, State or other tax withholding obligations, if any, which
arise upon the disposition of the Common Stock. The Company may, but
will not be obligated to, withhold from my Compensation or other
amounts payable to me the amount necessary to meet any applicable
withholding obligation including any withholding necessary to make
available to the Company any tax deductions or benefits attributable to
sale or early disposition of Common Stock by me. If I dispose of such
shares at any time after the expiration of the one-year and two-year
holding periods described above, I understand that I will be treated
for federal income tax purposes as having received income only at the
time of such disposition, and that such income will be taxed as
ordinary income only to the extent of an amount equal to the lesser of
(a) the excess of the fair market value of the shares at the time of
such disposition over the purchase price which I paid for the shares,
or (b) 15% of the fair
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market value of the shares on the first day of the Offering Period. The
remainder of the gain, if any, recognized on such disposition will be
taxed as capital gain. I understand that this tax summary is only a
summary for general information purposes and is subject to change and I
agree to consult with my own tax advisors for definitive advice
regarding the tax consequences to me of participation in the Plan and
sale of shares purchased thereunder.
7. I agree to be bound by the terms of the Plan. The effectiveness of this
Subscription Agreement is dependent upon my eligibility to participate
in the Plan.
8. In the event of my death, I hereby designate the following as my
beneficiary(ies) to receive (in proportion to the percentages listed
below) all payments and shares due me under the Plan (use additional
sheets to add beneficiaries):
NAME: (Please print) __________________________________________________
(First) (Middle) (Last)
______________________________ ______________________________
Relationship
Percentage: __________ ______________________________
(Address)
NAME: (Please print) __________________________________________________
(First) (Middle) (Last)
______________________________ ______________________________
Relationship
Percentage: __________ ______________________________
(Address)
Employee's Social
Security Number: ______________________________________
Employee's Address: ______________________________________
______________________________________
______________________________________
I UNDERSTAND THAT THIS SUBSCRIPTION AGREEMENT SHALL REMAIN IN EFFECT THROUGHOUT
SUCCESSIVE OFFERING PERIODS UNLESS TERMINATED BY ME.
Dated: ___________________ ______________________________________
Signature of Employee
________________________________________
Spouse's Signature (If beneficiary other
than spouse)
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