INSIGNIA SOLUTIONS PLC
1995 EMPLOYEE SHARE PURCHASE PLAN
Adopted by the Board of Directors on February 9, 1995 and
Amended on December 15, 1995, on July 21, 1998 and on May 27, 1999
1. ESTABLISHMENT OF PLAN
Insignia Solutions plc (the "COMPANY") proposes to grant options to
subscribe for the Company's ordinary shares of 20p each, or any instruments
evidencing such ordinary shares (e.g., American Depositary Shares or American
Depositary Receipts), to eligible employees of the Company and its Subsidiaries
(as hereinafter defined) pursuant to this Insignia Solutions plc 1995 Employee
Share Purchase Plan (this "PLAN"). For purposes of this Plan, "Parent
Corporation" and "Subsidiary" (collectively, "SUBSIDIARIES") shall have the
same meanings as "parent corporation" and "subsidiary corporation" in Sections
424(e) and 424(f), respectively, of the Internal Revenue Code of 1986, as
amended (the "CODE"). The Company intends the Plan to qualify as an "employee
stock purchase plan" under Section 423 of the Code (including any amendments to
or replacements of such section), and the Plan shall be so construed. Any term
not expressly defined in the Plan but defined for purposes of Section 423 of
the Code shall have the same definition herein. A total of nine hundred
thousand (900,000) of the Company's ordinary shares is reserved for issue under
the Plan. Such number shall be subject to adjustments effected in accordance
with Section 14 of the Plan.
2. PURPOSES
The purpose of the Plan is to provide employees of the Company and
Subsidiaries designated by the Board of Directors of the Company (the "BOARD")
as eligible to participate in the Plan with a convenient means of acquiring an
equity interest in the Company through payroll deductions, to enhance such
employees' sense of participation in the affairs of the Company and
Subsidiaries, and to provide an incentive for continued employment.
3. ADMINISTRATION
This Plan may be administered by the Board or a committee appointed
by the Board (the "COMMITTEE"). If, at the time the Company becomes subject to
Section 16 of the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT"), a majority of the Board is not comprised of Disinterested Persons as
defined in Rule 16b-3(d) promulgated under the Exchange Act, the Board shall
appoint a committee consisting of at least two (2) members of the Board, each
of whom is a Disinterested Person. As used in this Plan, references to the
"Committee" shall mean either such committee or the Board if no committee has
been established. After registration of the Company under the Exchange Act,
Board members who are not
Disinterested Persons may not vote on any matters affecting the administration
of this Plan, but any such member may be counted for determining the existence
of a quorum at any meeting of the Board. Subject to the provisions of the Plan
and the limitations of Section 423 of the Code or any successor provision in
the Code, all questions of interpretation or application of the Plan shall be
determined by the Board and its decisions shall be final and binding upon all
participants. Members of the Board shall receive no compensation for their
services in connection with the administration of the Plan, other than standard
fees as established from time to time by the Board for services rendered by
Board members serving on Board committees. All expenses incurred in connection
with the administration of the Plan shall be paid by the Company.
4. ELIGIBILITY
Any employee of the Company or the Subsidiaries is eligible to
participate in an Offering Period (as hereinafter defined) under the Plan
except the following:
(a) employees who are not employed by the Company or
Subsidiaries on the fifteenth (15th) day of the month before the beginning of
such Offering Period;
(b) employees who are customarily employed for less than 20
hours per week;
(c) employees who are customarily employed for less than 5
months in a calendar year;
(d) employees who, together with any other person whose
stock or shares would be attributed to such employee pursuant to Section 424(d)
of the Code, own stock or shares or hold options to subscribe for ordinary
shares or who, as a result of being granted an option under the Plan with
respect to such Offering Period, would own shares or hold options to subscribe
for shares possessing 5 percent or more of the total combined voting power or
value of all classes of stock or shares of the Company or any of its
Subsidiaries.
5. OFFERING DATES
The Offering Periods of the Plan (the "OFFERING PERIOD") shall be of
six (6) months duration commencing February 1 and August 1 of each year and
ending on July 31 and January 31 respectively. Notwithstanding the foregoing,
the first Offering Period shall commence on the date of the initial public
offering and shall end on the earlier of the first July 31 or January 31
thereafter (the "FIRST OFFERING PERIOD"). Payroll deductions of each
participant are accumulated under the Plan during the Offering Periods. The
first day of each Offering Period is referred to as the "Offering Date". The
last business day of each Offering Period is referred to as the "Purchase
Date". The Board shall have the power to change the duration of Offering
Periods with respect to future offerings without shareholder approval if such
change is announced at least fifteen (15) days prior to the scheduled beginning
of the first Offering Period to be affected.
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6. PARTICIPATION IN THE PLAN
Eligible employees may become participants in an Offering Period
under the Plan on the first Offering Date after satisfying the eligibility
requirements by delivering a subscription agreement to the Company's or
Subsidiary's (whichever employs such employee) payroll department (the "PAYROLL
Department") not later than five (5) days prior to such Offering Date unless a
later time for filing the subscription agreement authorizing payroll deductions
is set by the Board for all eligible employees with respect to a given Offering
Period. An eligible employee who does not deliver a subscription agreement to
the Payroll Department by such date after becoming eligible to participate in
such Offering Period shall not participate in that Offering Period or any
subsequent Offering Period unless such employee enrolls in the Plan by filing a
subscription agreement with the Payroll Department not later than five (5) days
prior to such subsequent Offering Date. Once an employee becomes a participant
in an Offering Period, such employee will automatically participate in the
Offering Period commencing immediately following the last day of the prior
Offering Period unless the employee withdraws from the Plan or terminates
further participation in the Offering Period as set forth in Section 11 below.
Such participant is not required to file any additional subscription agreement
in order to continue participation in the Plan.
7. GRANT OF OPTION ON ENROLLMENT
Enrollment by an eligible employee in the Plan with respect to an
Offering Period will constitute the grant (as of the Offering Date) by the
Company to such employee of an option to subscribe on the Purchase Date for up
to that number of ordinary shares of the Company determined by dividing the
amount accumulated in such employee's payroll deduction account during such
Offering Period, and if applicable, as converted into U.S. Dollars at the
Conversion Rate (as defined in Section 9(g)) on the Purchase Date, by the lower
of (i) eighty-five percent (85%) of the fair market value of an ordinary share
of the Company on the Offering Date (the "ENTRY PRICE") or (ii) eighty-five
percent (85%) of the fair market value of an ordinary share of the Company on
the Purchase Date; provided, however, that the number of ordinary shares of the
Company subject to any option granted pursuant to this Plan shall not exceed
the lesser of (a) the maximum number of shares set by the Board pursuant to
Section 10(c) below with respect to the applicable Offering Period, or (b) 200%
of the number of shares determined by using 85% of the fair market value of an
ordinary share of the Company on the Offering Date as the denominator. Fair
market value of an ordinary share of the Company shall be determined as
provided in Section 8 hereof.
8. PURCHASE PRICE
The purchase price of shares issued pursuant to this Plan shall be
payable in U.S. Dollars. The purchase price per share at which a share will be
issued in any Offering Period shall be 85 percent of the lesser of:
(a) The fair market value on the Offering Date; or
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(b) The fair market value on the Purchase Date.
Notwithstanding the foregoing, the purchase price per ordinary share shall not
in any circumstances be less than the U.S. Dollar equivalent, at the Conversion
Rate (as defined in Section 9(g)) on the Purchase Date, of 20p (being the par
value of an ordinary share).
For purposes of the Plan, the term "fair market value" on a given
date shall mean the fair market value of an ordinary share of the Company, or
instrument evidencing such ordinary shares (e.g., American Depositary Shares or
American Depositary Receipts) in U.S. Dollars, as determined by the Committee
from time to time in good faith. If a public market exists for the shares, or
instrument evidencing such ordinary shares (e.g., American Depositary Shares or
American Depositary Receipts), the fair market value shall be the average of
the last reported bid and asked prices for an ordinary share of the Company on
the last trading day prior to the date of determination, or, in the event
ordinary shares of the Company, or instruments evidencing such ordinary shares
(e.g., American Depositary Shares or American Depositary Receipts), are listed
on the Nasdaq National Market, the fair market value shall be the closing price
of a share, or instrument evidencing such ordinary shares (e.g., American
Depositary Shares or American Depositary Receipts), on the determination date
as quoted on the Nasdaq National Market or if no such reported sale takes place
on such date, the closing price on the next preceding trading date on which a
reported sale occurred. Notwithstanding the foregoing, the fair market value of
a share, or instrument evidencing such ordinary shares (e.g., American
Depositary Shares or American Depositary Receipts), on the First Offering Date
(which is the first business day of the First Offering Period under this Plan)
shall be the price per share at which such shares or instruments are initially
offered for sale to the public in the Company's initial public offering.
9. PAYMENT OF PURCHASE PRICE; CHANGES IN PAYROLL DEDUCTIONS; ISSUE OF SHARES
(a) The purchase price of the shares is accumulated by regular
payroll deductions made during each Offering Period. The deductions are made as
a percentage of the participant's compensation in one percent increments not
less than 2 percent nor greater than 10 percent, not to exceed $25,000 per
year, or the U.S. Dollar equivalent determined at the Conversion Rate (as
defined in Section 9(g)) on the Offering Date, or such lower limit set by the
Committee. Compensation for U.S. employees shall mean all W-2 compensation,
including, but not limited to base salary, wages, commissions, overtime, shift
premiums and bonuses, plus draws against commissions and excluding car
allowances and any other in kind employment related benefits; provided,
however, that for purposes of determining a participant's compensation, any
election by such participant to reduce his or her regular cash remuneration
under Sections 125 or 401(k) of the Code shall be treated as if the participant
did not make such election. Compensation for U.K. employees shall mean all
compensation, including, but not limited to base salary, wages, commissions,
overtime, the substantial equivalent of U.S. "shift premiums" and bonuses, plus
draws against commissions and excluding car allowances and any other in kind
employment related benefits. Payroll deductions shall commence on the first
payday following the Offering
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Date and shall continue to the end of the Offering Period unless sooner altered
or terminated as provided in the Plan.
(b) A participant may lower (but not increase) the rate of payroll
deductions during an Offering Period by filing with the Payroll Department a
new authorization for payroll deductions, in which case the new rate shall
become effective for the next payroll period commencing more than 15 days after
the Payroll Department's receipt of the authorization and shall continue for
the remainder of the Offering Period unless changed as described below. Such
change in the rate of payroll deductions may be made at any time during an
Offering Period, but not more than one change may be made effective during any
Offering Period. A participant may increase or decrease the rate of payroll
deductions for any subsequent Offering Period by filing with the Payroll
Department a new authorization for payroll deductions not later than five (5)
days prior to the beginning of such subsequent Offering Period.
(c) All payroll deductions made for a participant are credited to
his or her account under the Plan and are deposited with the general funds of
the Company. No interest accrues on the payroll deductions. All payroll
deductions received or held by the Company may be used by the Company for any
corporate purpose, and the Company shall not be obligated to segregate such
payroll deductions.
(d) On each Purchase Date, so long as the Plan remains in effect and
provided that the participant has not submitted a signed and completed
withdrawal form before that date, as set forth in Section 11 below, which
notifies the Company that the participant wishes to withdraw from that Offering
Period under the Plan and have all payroll deductions accumulated in the
account maintained on behalf of the participant as of that date returned to the
participant, the Company shall apply the funds, and if applicable, as converted
into U.S. Dollars at the Conversion Rate (as defined in Section 9(g)) on the
Purchase Date, then in the participant's account to the subscription for a
whole number of ordinary shares reserved under the option granted to such
participant with respect to the Offering Period to the extent that such option
is exercisable on the Purchase Date. The purchase price per share shall be as
specified in Section 8 of the Plan. Any cash remaining in a participant's
account after such subscription for ordinary shares shall be refunded to such
participant in cash, without interest; provided, however, that any amount
remaining in such participant's account on a Purchase Date which is less than
the amount necessary to subscribe for a single ordinary share shall be carried
forward, without interest, into the next Offering Period. In the event that the
Plan has been oversubscribed, all funds not used to subscribe for ordinary
shares on the Purchase Date shall be returned to the participant, without
interest. No ordinary shares shall be subscribed for on a Purchase Date on
behalf of any employee whose participation in the Plan has terminated prior to
such Purchase Date.
(e) As promptly as practicable after the Purchase Date, the Company
shall arrange the delivery to each participant of a certificate representing
the shares issued upon exercise of his option.
(f) During a participant's lifetime, such participant's option to
subscribe for shares hereunder is exercisable only by him or her. The
participant will have no interest or voting right
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in shares covered by his or her option until such option has been exercised.
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.
(g) "Conversion Rate" means the average currency conversion rate
quoted by the Bank of America in London for converting Pounds Sterling into
U.S. Dollars.
10. LIMITATIONS ON SHARES TO BE PURCHASED
(a) No employee shall be entitled to subscribe for shares under the
Plan at a rate which, when aggregated with his or her rights to subscribe for
shares under all other employee stock purchase plans of the Company or any
Subsidiary, exceeds $25,000 (or if applicable, the U.S. Dollars equivalent
determined at the Conversion Rate (as defined in Section 9(g)) as of the
Offering Date) in fair market value, determined as of the Offering Date (or
such other limit as may be imposed by the Code) for each calendar year in which
the employee participates in the Plan.
(b) No more than 200% of the number of shares determined by using
85% of the fair market value of an ordinary share of the Company on the
Offering Date as the denominator may be subscribed for by a participant on any
single Purchase Date.
(c) No employee shall be entitled to subscribe for more than the
Maximum Share Amount (as defined below) on any single Purchase Date. Not less
than thirty days prior to the commencement of any Offering Period, the Board
may, in its sole discretion, set a maximum number of shares which may be
subscribed for by any employee at any single Purchase Date (hereinafter the
"MAXIMUM SHARE AMOUNT"). In no event shall the Maximum Share Amount exceed the
amounts permitted under Section 10(b) above. If a new Maximum Share Amount is
set, then all participants must be notified of such Maximum Share Amount not
less than fifteen days prior to the commencement of the next Offering Period.
Once the Maximum Share Amount is set, it shall continue to apply with respect
to all succeeding Purchase Dates and Offering Periods unless revised by the
Board as set forth above.
(d) If the number of shares to be subscribed for on a Purchase Date
by all employees participating in the Plan exceeds the number of shares then
available for issue under the Plan, the Company will make a pro rata allocation
of the remaining shares in as uniform a manner as shall be practicable and as
the Board shall determine to be equitable. In such event, the Company shall
give written notice of such reduction of the number of shares to be subscribed
for under a participant's option to each participant affected thereby.
(e) Any payroll deductions accumulated in a participant's account
which are not used to subscribe for ordinary shares due to the limitations in
this Section 10 shall be returned to the participant as soon as practicable
after the end of the Offering Period, without interest.
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11. WITHDRAWAL
(a) Each participant may withdraw from an Offering Period under the
Plan by signing and delivering to the Payroll Department notice on a form
provided for such purpose. Such withdrawal may be elected at any time at least
15 days prior to the end of an Offering Period.
(b) Upon withdrawal from the Plan, the accumulated payroll
deductions shall be returned to the withdrawn participant, without interest,
and his or her interest in the Plan shall terminate. In the event a participant
voluntarily elects to withdraw from the Plan, he or she may not resume his or
her participation in the Plan during the same Offering Period, but he or she
may participate in any Offering Period under the Plan which commences on a date
subsequent to such withdrawal by filing a new authorization for payroll
deductions in the same manner as set forth in Section 6 above for initial
participation in the Plan.
12. TERMINATION OF EMPLOYMENT
Termination of a participant's employment for any reason, including
retirement, death or the failure of a participant to remain an eligible
employee, immediately terminates his or her participation in the Plan. In such
event, the payroll deductions credited to the participant's account will be
returned to him or her or, in the case of his or her death, to his or her legal
representative, without interest. For purposes of this Section 12, an employee
will not be deemed to have terminated employment or failed to remain in the
continuous employ of the Company in the case of sick leave, military leave, or
any other leave of absence approved by the Board; provided that such leave is
for a period of not more than ninety (90) days or reemployment upon the
expiration of such leave is guaranteed by contract or statute.
13. RETURN OF PAYROLL DEDUCTIONS
In the event a participant's interest in the Plan is terminated by
withdrawal, termination of employment or otherwise, or in the event the Plan is
terminated by the Board, the Company shall promptly deliver to the participant
all payroll deductions credited to his account. No interest shall accrue on the
payroll deductions of a participant in the Plan.
14. CAPITAL CHANGES
Subject to any required action by the shareholders of the Company, the
number of ordinary shares covered by each option under the Plan which has not
yet been exercised and the number of ordinary shares which have been authorized
for issue under the Plan but have not yet been placed under option
(collectively, the "RESERVES"), as well as the price per ordinary share covered
by each option under the Plan which has not yet been exercised, shall be
proportionately adjusted for any increase or decrease in the number of issued
ordinary shares resulting from any consolidation or subdivision of ordinary
shares of the Company, or any bonus or other capitalization issue of ordinary
shares or any other increase or decrease in the number of issued ordinary
shares effected without receipt of consideration by the Company; provided,
however,
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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 shall be final,
binding and conclusive. Except as expressly provided herein, no issue by the
Company of shares of any class, or securities convertible into shares of any
class, shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of ordinary shares subject to an option.
In the event of the proposed dissolution or liquidation of the Company,
the Offering Period will terminate immediately prior to the consummation of
such proposed action, unless otherwise provided by the Board. The Board may, in
the exercise of its sole discretion in such instances, declare that the options
under the Plan shall terminate as of a date fixed by the Board and give each
participant the right to exercise his or her option as to all of the ordinary
shares comprised in the option, including shares in respect of which the option
would not otherwise be exercisable. In the event of a proposed sale of all or
substantially all of the assets of the Company, or the sale of the entire share
capital of the Company to another corporation, (whether for consideration in
cash or in the form of securities of any kind) (a "merger"), each option under
the Plan shall be assumed or an equivalent option shall be substituted by the
purchasing corporation or a parent or subsidiary of such purchasing
corporation, unless the Board determines, in the exercise of its sole
discretion and in lieu of such assumption or substitution, that the participant
shall have the right to exercise the option as to all of the ordinary shares
comprised in the option. If the Board makes an option exercisable in lieu
of assumption or substitution in the event of a merger or sale of assets, the
Board shall notify the participant that the option shall be fully exercisable
for a period of twenty (20) days from the date of such notice, and the option
will terminate upon the expiration of such period.
The Board may, if it so determines in the exercise of its sole
discretion, also make provision for adjusting the Reserves, as well as the
price per ordinary share comprised in each outstanding option, in the event
that the Company effects one or more reorganizations, recapitalizations, rights
offerings or other increases or reductions of share capital, or in the event of
a merger.
15. NONASSIGNABILITY
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 22 hereof) by the participant. Any such attempt at assignment,
transfer, pledge or other disposition shall be without effect.
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16. REPORTS
Individual accounts will be maintained for each participant in the Plan.
Each participant shall receive promptly after the end of each Offering Period a
report of his or her account setting forth the total payroll deductions
accumulated (and if applicable, the Conversion Rate (as defined in Section
9(g)) at which such participant's payroll deductions were converted into U.S.
Dollars), the number of shares subscribed for, the per share price thereof and
the remaining cash balance, if any, carried forward to the next Offering Period.
17. NOTICE OF DISPOSITION
Each participant shall notify the Company if the participant disposes of
any of the shares subscribed for in any Offering Period pursuant to this Plan
if such disposition occurs within two years from the Offering Date or within
one year from the Purchase Date on which such shares were subscribed for (the
"NOTICE PERIOD"). Unless such participant is disposing of any of such shares
during the Notice Period, such participant shall keep the certificates
representing such shares in his or her name (and not in the name of a nominee)
during the Notice Period. The Company may, at any time during the Notice
Period, place a legend or legends on any certificate representing shares
acquired pursuant to the Plan requesting the Company's transfer agent to notify
the Company of any transfer of the shares. The obligation of the participant to
provide such notice shall continue notwithstanding the placement of any such
legend on the certificates.
18. NO RIGHTS TO CONTINUED EMPLOYMENT
(a) Neither this Plan nor the grant of any option hereunder shall
confer any right on any employee to remain in the employ of the Company or any
Subsidiary, or restrict the right of the Company or any Subsidiary to terminate
such employee's employment.
(b) In the event that any person holding an option under the Plan
ceases to be employed by the Company or a Subsidiary for whatever reason, he
shall have no right to any compensation in respect of the loss of his right to
receive shares under this Plan.
19. EQUAL RIGHTS AND PRIVILEGES
All eligible employees shall have equal rights and privileges with
respect to the Plan so that the Plan qualifies as an "employee stock purchase
plan" within the meaning of Section 423 or any successor provision of the Code
and the related regulations. Any provision of the Plan which is inconsistent
with Section 423 or any successor provision of the Code shall, without further
act or amendment by the Company or the Board, be reformed to comply with the
requirements of Section 423. This Section 19 shall take precedence over all
other provisions in the Plan.
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20. 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.
21. TERM; SHAREHOLDER APPROVAL
This Plan shall become effective at such date and time as the
Registration Statement filed with the Securities and Exchange Commission
relating to the Company's securities is declared effective (and then only
provided that the initial public offering later closes). This Plan shall be
approved by the shareholders of the Company, in any manner permitted by
applicable corporate law, within twelve months before or after the date this
Plan is adopted by the Board. No subscription for shares pursuant to the Plan
shall occur prior to such shareholder approval. Thereafter, no later than
twelve (12) months after the Company becomes subject to Section 16(b) of the
Exchange Act, the Company will comply with the requirements of Rule 16b-3 with
respect to shareholder approval. The Plan shall continue until the earlier to
occur of termination by the Board, issue of all of the ordinary shares reserved
for issue under the Plan, or ten (10) years from the adoption of the Plan by
the Board.
22. DESIGNATION OF 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 end
of an Offering Period but prior to delivery to him 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 a Purchase Date.
(b) Such designation of beneficiary may be changed by the
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 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 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.
23. CONDITIONS UPON ISSUE OF SHARES; LIMITATION ON SALE OF SHARES
Shares shall not be issued with respect to an option unless the exercise
of such option and the issue and delivery of such shares pursuant thereto shall
comply with all applicable provisions of law, domestic or foreign, including,
without limitation, the Securities Act of 1933, as
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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.
24. AMENDMENT OR TERMINATION OF THE PLAN
The Board may at any time amend, terminate or extend the term of the
Plan, except that any such termination cannot affect options previously granted
under the Plan, nor may any amendment make any change in an option previously
granted which would adversely affect the right of any participant, nor may any
amendment be made without approval of the shareholders of the Company obtained
in accordance with Section 21 hereof within 12 months of the adoption of such
amendment (or earlier if required by Section 21) if such amendment would:
(a) increase the number of shares that may be issued under the Plan;
(b) change the designation of the employees (or class of employees)
eligible for participation in the Plan; or
(c) constitute an amendment for which shareholder approval is
required in order to comply with Rule 16b-3 (or any successor rule) of the
Exchange Act.
25. GOVERNING LAW
The Plan and all agreements, documents and instruments entered into
pursuant to the Plan shall be governed by and construed in accordance with the
internal laws of the State of California, excluding that body of law pertaining
to conflict of laws.
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