EXHIBIT 10.8
NEXAR TECHNOLOGIES, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
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l. PURPOSE
The purpose of this Employee Stock Purchase Plan (the "Plan") is to
provide employees of Nexar Technologies, Inc., a Delaware corporation (the
"Company"), and its subsidiaries, an opportunity to purchase Common Stock, $0.01
par value, of the Company (the "Shares"). The Plan is intended to qualify as an
"employee stock purchase plan" within the meaning of Section 423 of the Internal
Revenue Code of 1986, as amended (the "Code").
2. ADMINISTRATION OF THE PLAN
The Board of Directors or any committee or persons to whom it delegates
its authority (the "Administrator") shall administer, interpret and apply all
provisions of the Plan. The Administrator may waive such provisions of the Plan
as it deems necessary to meet special circumstances not anticipated or covered
expressly by the Plan. Nothing contained in this Section shall be deemed to
authorize the Administrator to alter or administer the provisions of the Plan in
a manner inconsistent with the provisions of Section 423 of the Code. No member
of the Administrator shall be liable for any action or determination made in
good faith with respect to the Plan or any right granted under it.
3. ELIGIBLE EMPLOYEES
Subject to the provisions of Sections 8, 9 and 10 below, any individual
who is in the full-time employment (as defined below) of the Company, or any of
its subsidiaries (as defined in Section 424(f) of the Code) the employees of
which are designated by the Board of Directors as eligible to participate in the
Plan, is eligible to participate in any Offering of Shares (as defined in
Section 4 below) made by the Company hereunder. Full-time employment shall
include all employees whose customary employment is:
(a) in excess of 20 hours per week; and
(b) more than five months in the relevant calendar year.
4. OFFERING DATES
From time to time the Company, by action of the Board of Directors,
will grant rights to purchase Shares to employees eligible to participate in the
Plan pursuant to one or more offerings (each of which is an "Offering") on a
date or series of dates (each of which is an "Offering Date") designated for
this purpose by the Board of Directors.
5. PRICES
The price per share for each grant of rights hereunder shall be the
lesser of:
(a) eighty-five percent (85%) of the fair market value of a Share
on the Offering Date on which such right was granted; or
(b) eighty-five percent (85%) of the fair market value of a Share
on the date such right is exercised. At its discretion, the
Board of Directors may determine a higher price for a grant of
rights.
For purposes of this Plan, the term "fair market value" on any date
shall mean (i) the average (on that date) of the high and low prices
for shares of the Common Stock on the principal national securities
exchange on which the Common Stock are traded, if the Common Stock is
then listed on a national securities exchange; or (ii) the last
reported sale price (on that date) of shares of the Common Stock on the
Nasdaq Stock Market if the Common Stock is not then listed on a
national securities exchange; or, if not so reported or listed, (iii)
the closing bid price (or average of bid prices) last quoted (on that
date) of shares of the Common Stock on the over-the-counter market. If
the Company's Common Stock is not publicly traded at the time a right
is granted under this Plan, "fair market value" shall mean the fair
market value of shares of the Common Stock as determined by the
Administrator after taking into consideration all factors which it
deems appropriate, including, without limitation, recent sale and offer
prices of shares of the Common Stock in private transactions negotiated
at arm's length.
6. EXERCISE OF RIGHTS AND METHOD OF PAYMENT
(a) Rights granted under the Plan will be exercisable periodically
on specified dates as determined by the Board of Directors.
(b) The method of payment for Shares purchased upon exercise of
rights granted hereunder shall be through regular payroll
deductions or by lump sum cash payment, or both, as determined
by the Board of Directors. No interest shall be paid upon
payroll deductions unless specifically provided for by the
Board of Directors.
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(c) Any payments received by the Company from a participating
employee and not utilized for the purchase of Shares upon
exercise of a right granted hereunder shall be promptly
returned to such employee by the Company after termination of
the right to which the payment relates.
7. TERM OF RIGHTS
Rights granted on any Offering Date shall be exercisable upon the
expiration of such period ("Offering Period") as shall be determined by the
Board of Directors when it authorizes the Offering, provided that such Offering
Period shall in no event be longer than twenty-seven (27) months.
8. SHARES COVERED BY THE PLAN
No more than 200,000 Shares may be sold pursuant to rights granted
under the Plan; provided, however, that appropriate adjustment shall be made in
such number, in the number of Shares covered by outstanding rights granted
hereunder, in the exercise price of the rights and in the maximum number of
Shares which an employee may purchase (pursuant to Section 9 below) to give
effect to any mergers, consolidations, reorganizations, recapitalizations, stock
splits, stock dividends or other relevant changes in the capitalization of the
Company occurring after the effective date of the Plan, provided that no
fractional Shares shall be subject to a right and each right shall be adjusted
downward to the nearest full Share. Any agreement of merger or consolidation
will include provisions for protection of the then existing rights of
participating employees under the Plan. Either authorized and unissued Shares or
issued Shares heretofore or hereafter reacquired by the Company may be made
subject to rights under the Plan. If for any reason any right under the Plan
terminates in whole or in part, Shares subject to such terminated right may
again be subjected to a right under the Plan.
9. LIMITATIONS ON GRANTS
(a) No employee shall be granted a right hereunder if such
employee, immediately after the right is granted, would own
stock or rights to purchase stock possessing five percent (5%)
or more of the total combined voting power or value of all
classes of stock of the Company, or of any subsidiary,
computed in accordance with Sections 423(b)(3) and 424(d) of
the Code.
(b) No employee shall be granted a right which permits his right
to purchase shares 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) (or such other
maximum as may be prescribed from time to time by the Code) of
the fair market value of such Shares (determined at the time
such right is granted) for each calendar year in which such
right is outstanding at any time in accordance with the
provisions of Section 423(b)(8) of the Code.
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(c) No right granted to any participating employee under a single
Offering shall cover more shares than may be purchased at an
exercise price equal to 10% of the compensation payable to the
employee during the Offering not taking into consideration any
changes in the employee's rate of compensation after the date
the employee elects to participate in the Offering, or such
other percentage as determined by the Board of Directors from
time to time.
10. LIMIT ON PARTICIPATION
Participation in an Offering shall be limited to eligible employees who
elect to participate in such Offering in the manner, and within the time
limitation, established by the Board of Directors when it authorizes the
offering.
11. CANCELLATION OF ELECTION TO PARTICIPATE
An employee who has elected to participate in an Offering may, unless
the employee has waived this cancellation right at the time of such election in
a manner established by the Board of Directors, cancel such election as to all
(but not part) of the rights granted under such Offering by giving written
notice of such cancellation to the Company before the expiration of the Offering
Period. Any amounts paid by the employee for the Shares or withheld for the
purchase of Shares from the employee's compensation through payroll deductions
shall be paid to the employee, without interest, upon such cancellation.
12. TERMINATION OF EMPLOYMENT
Upon termination of employment for any reason, including the death of
the employee, before the date on which any rights granted under the Plan are
exercisable, all such rights shall immediately terminate and amounts paid by the
employee for the Shares or withheld for the purchase of Shares from the
employee's compensation through payroll deductions shall be paid to the employee
or to the employee's estate, without interest.
13. EMPLOYEE'S RIGHTS AS STOCKHOLDER
No participating employee shall have any rights as a stockholder in the
Shares covered by a right granted hereunder until such right has been exercised,
full payment has been made for the corresponding Shares and the Share
certificate is actually issued.
14. RIGHTS NOT TRANSFERABLE
Rights under the Plan are not assignable or transferable by a
participating employee and are exercisable only by the employee.
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15. LIMITS ON SALE OF STOCK PURCHASED UNDER THE PLAN
The Plan is intended to provide shares of Common Stock for investment
and not for resale. The Company does not, however, intend to restrict or
influence any employee in the conduct of his/her own affairs. An employee may,
therefore, sell stock purchased under the Plan at any time the employee chooses,
subject to compliance with any applicable Federal or state securities laws;
provided, however, that because of certain Federal tax requirements, each
employee agrees by entering the Plan, promptly to give the Company notice of any
such stock disposed of within two years after the date of grant of the
applicable right showing the number of such shares disposed of. THE EMPLOYEE
ASSUMES THE RISK OF ANY MARKET FLUCTUATIONS IN THE PRICE OF THE STOCK.
16. AMENDMENTS TO OR DISCONTINUANCE OF THE PLAN
The Board of Directors may at any time terminate or amend this Plan
without notice and without further action on the part of stockholders of the
Company, provided that no such termination or amendment shall adversely affect
the then existing rights of any participating employee.
17. EFFECTIVE DATE AND APPROVALS
The Plan was being adopted by the Board of Directors on December 19,
1996 to become effective as of the date of the closing of the Company's initial
public offering. The Plan was approved by the stockholders on February 28, 1997.
The Company's obligation to offer, sell and deliver its Shares under the Plan is
subject to the approval of any governmental authority required in connection
with the authorized issuance or sale of such Shares and is further subject to
the Company receiving the opinion of its counsel that all applicable securities
laws have been complied with.
18. TERM OF PLAN. No rights shall be granted under the Plan after December
19, 2006.
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