EXHIBIT 10.33
DELPHI INFORMATION SYSTEMS, INC.
1999 STOCK PURCHASE PLAN
TABLE OF CONTENTS
I. Purpose and Effective Date....................................................... 1
II. Definitions...................................................................... 1
III. Administration................................................................... 3
IV. Number of Shares................................................................. 3
V. Eligibility Requirements......................................................... 4
VI. Enrollment....................................................................... 4
VII. Grant of Options on Enrollment................................................... 5
VIII. Payroll Deductions............................................................... 5
IX. Purchase of Shares............................................................... 6
X. Termination of Participation..................................................... 8
XI. Designation of Beneficiary....................................................... 8
XII. Miscellaneous.................................................................... 9
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DELPHI INFORMATION SYSTEMS, INC.
1999 STOCK PURCHASE PLAN
I. PURPOSE AND EFFECTIVE DATE
1.1 The purpose of the Delphi Information Systems, Inc. 1999 Stock Purchase
Plan (the "Plan") is to provide an opportunity for eligible employees to acquire
a proprietary interest in the Delphi Information Systems, Inc. (the "Company")
through the purchase of shares of common stock of the Company. By providing this
opportunity, the Company intends to increase the Company's ability to attract
and retain employees who have the ability to enhance the profitability of the
Company. It is the intent of the Company to have the Plan qualify as an
"employee stock purchase plan" under Section 423 of the Internal Revenue Code.
Except for the definition of "Employee", the provisions of the Plan shall be
construed to extend and limit participation in a manner consistent with the
requirements of Section 423 of the Internal Revenue Code.
1.2 The Plan shall be effective on the Effective Date stated below, subject
to the approval of the Company's stockholders within one year before or one year
after the date the Plan is approved by the board of directors of the Company
(the "Board"). No option shall be granted under the Plan after the earlier of
(a) the day before the tenth (10th) anniversary of the Effective Date, or
(b) the date on which the Plan is terminated by the Board in accordance with
Section 12.6 of the Plan.
II. DEFINITIONS
The following words and phrases, when used in this Plan, unless their
context clearly indicates otherwise, shall have the following respective
meanings:
2.1 "ACCOUNT" means a recordkeeping account maintained for a Participant
to which payroll deductions are credited in accordance with Article VIII of the
Plan.
2.2 "ARTICLE" means an Article of this Plan.
2.3 "ACCUMULATION PERIOD" means, as to the Company or a Participating
Subsidiary, a period of six months commencing with the first regular payroll
check issued on or after each successive April 1 and October 1 occurring after
the Effective Date; provided, however, that the first Accumulation Period shall
be a period of three months commencing with the first regular payroll check
issued on or after July 1, 1999. The Committee may modify (including increasing
or decreasing the length of time covered) or suspend Accumulation Periods at any
time and from time to time.
2.4 "BASE EARNINGS" means base salary and wages, and includes incentives,
annual bonus, and pre-tax contributions to qualified employee benefit plans,
dependent care plans, health care plans or other similar plans, which is
received by a Participant from the Company or a Participating Subsidiary, but
excluding overtime pay and commissions. The Committee may exclude, with respect
to all Employees, any other form of compensation from the definition of "Base
Earnings," provided such exclusion shall comply with Section 423(b)(5) of the
Code.
2.5 "BOARD" means the board of directors of the Company.
2.6 "CODE" means the Internal Revenue Code of 1986, as amended.
2.7 "COMMITTEE" means the committee of the Board described in Section 3.1
of the Plan.
2.8 "COMMON STOCK" means the Company's common stock, $.10 par value.
2.9 "COMPANY" means Delphi Information Systems, Inc., a Delaware
corporation.
2.10 "CUT-OFF DATE" means the date established by the Committee from time
to time by which enrollment forms must be received prior to an Enrollment Date.
2.11 "EFFECTIVE DATE" means July 1, 1999.
2.12 "ELIGIBLE EMPLOYEE" means an Employee eligible to participate in the
Plan in accordance with Article V.
2.13 "EMPLOYEE" means an individual who performs services for the Company
or a Participating Subsidiary pursuant to an employment relationship determined
by the Company to be described in Treasury Regulations Section 31.3401(c)-1 or
any successor provision.
2.14 "ENROLLMENT DATE" means the first trading day of an Accumulation
Period.
2.15 "EXCHANGE ACT" means the Securities Exchange Act of 1934.
2.16 "FAIR MARKET VALUE" means, as of any applicable date:
(a) if the security is listed for trading on the New York Stock
Exchange, the closing price of the security as reported on the New York
Stock Exchange Composite Tape, or if no such reported sale of the security
shall have occurred on such date, on the latest preceding date on which
there was such a reported sale, or
(b) if the security is not so listed, but is listed on another national
securities exchange or authorized for quotation on the National Association
of Securities Dealers Inc.'s NASDAQ National Market ("NASDAQ/NMS"), the
closing price, regular way, of the security on such exchange or NASDAQ/NMS,
as the case may be, or if no such reported sale of the security shall have
occurred on such date, on the latest preceding date on which there was such
a reported sale, or
(c) if the security is not listed for trading on a national securities
exchange or authorized for quotation on NASDAQ/NMS, the average of the
closing bid and asked prices as reported by the National Association of
Securities Dealers Automated Quotation System ("NASDAQ") or, if no such
prices shall have been so reported for such date, on the latest preceding
date for which such prices were so reported, or
(d) if the security is not listed for trading on a national securities
exchange or is not authorized for quotation on NASDAQ/NMS or NASDAQ, the
fair market value of the security as determined in good faith by the Board.
2.17 "PARTICIPANT" means an Eligible Employee who has enrolled in the Plan
pursuant to Article VI and whose participation has not terminated.
2.18 "PARTICIPATING SUBSIDIARY" means a Subsidiary which has been
designated by the Committee in accordance with Section 3.3 of the Plan as
covered by the Plan.
2.19 "PLAN" means the Delphi Information Systems, Inc. 1999 Stock Purchase
Plan as set forth herein and as from time to time amended.
2.20 "PURCHASE DATE" means the specific trading day with respect to an
Accumulation Period on which shares of Common Stock are purchased under the Plan
in accordance with Article IX. For each Accumulation Period, the Purchase Date
shall be the last day of such Accumulation Period, or, if such day is not a
trading date, the next day which is a trading day.
2.21 "RULE 16b-3" means Rule 16b-3 under the Exchange Act.
2.22 "SECTION" means a section of this Plan, unless indicated otherwise.
2.23 "SECURITIES ACT" means the Securities Act of 1933, as amended.
2.24 "SUBSIDIARY" means any corporation in an unbroken chain of
corporations beginning with the Company if, as of the applicable Enrollment
Date, each of the corporations other than the last corporation in the chain owns
stock possessing 50% or more of the total combined voting power of all classes
of stock in one of the other corporations in the chain.
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III. ADMINISTRATION
3.1 The Plan shall be administered by the a Committee of not less than three
Board members appointed by the Board. Membership on the Committee shall be
subject to such limitations as the Board deems appropriate. In the event that
the Board does not appoint a Committee, the Board shall be the Committee. The
members of the Committee shall be "non-employee directors" within the meaning of
Rule 16b-3.
3.2 The Committee may select one of its members as chairman and may appoint
a secretary. The Committee shall make such rules and regulations for the conduct
of its business as it shall deem advisable; provided, however, that all
determinations of the Committee shall be made by a majority of its members when
a quorum, which is constituted by a majority of the Committee, is present. Any
acts approved of in writing must be unanimously approved.
3.3 The Committee shall have the power, subject to and within the limits of
the express provisions of the Plan, to construe and interpret the Plan and
options granted under it; to establish, amend and revoke rules and regulations
for administration of the Plan; to determine all questions of fact and of policy
and expediency that may arise in the administration of the Plan; and, generally,
to exercise such powers and perform such acts as the Committee deems necessary
or expedient to promote the best interests of the Company, including, but not
limited to, designating from time to time which Subsidiaries of the Company
shall be Participating Subsidiaries. The Committee's determinations as to the
interpretation and operation of this Plan shall be final and conclusive. The
Committee may employ agents and delegate ministerial duties to them.
In exercising the powers described in the foregoing paragraph, the Committee
may adopt special or different rules for the operation of the Plan including,
but not limited to, rules which allow employees of any foreign Subsidiary to
participate in, and enjoy the tax benefits offered by, the Plan; provided that
such rules shall not result in any grantees of options having different rights
and/or privileges under the Plan nor otherwise cause the Plan to fail to satisfy
the requirements of Section 423 of the Internal Revenue Code and the regulations
thereunder.
3.4 This Article III relating to the administration of the Plan may be
amended by the Board from time to time as may be desirable to satisfy any
requirements of or under the federal securities and/or other applicable laws of
the United States, or to obtain any exemption under such laws.
3.5 No member of the Board or the Committee or any other agent to which
either may have delegated authority under the Plan shall be liable for any
action or determination made in good faith with respect to the Plan or any
option granted under it.
IV. NUMBER OF SHARES
4.1 Two million (2,000,000) shares of the Company's Common Stock are
reserved for sales and authorized for issuance pursuant to the Plan. Shares sold
under the Plan may be newly-issued shares, outstanding shares reacquired in
private transactions or open market purchases, or both. If any option granted
under the Plan shall for any reason terminate without having been exercised, the
shares not purchased under such option shall again become available for the
Plan.
4.2 In the event of any reorganization, recapitalization, stock split,
reverse stock split, stock dividend, combination of shares, merger,
consolidation, acquisition of property or shares, separation, asset spin-off,
stock rights offering, liquidation or other similar change in the capital
structure of the Company, the Committee shall make such adjustment, if any, as
it deems appropriate in the number, kind and purchase price of the shares
available for purchase under the Plan. In the event that, at a time when options
are outstanding hereunder, there occurs a dissolution or liquidation of the
Company, except pursuant to a transaction to which Section 424(a) of the Code
applies, each option to
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purchase Common Stock of the Company shall terminate, but the Participant
holding such option shall have the right to exercise his option prior to such
dissolution or liquidation.
V. ELIGIBILITY REQUIREMENTS
5.1 Except as provided in Section 5.2, each individual who is an Employee of
the Company or a Participating Subsidiary shall become eligible to participate
in the Plan in accordance with Article VI on the first Enrollment Date following
the individual's completion of one (1) calendar month of employment by the
Company or a Subsidiary, provided that the individual is an Employee on such
Enrollment Date. Participation in the Plan is entirely voluntary.
5.2 The following Employees are not Eligible Employees:
(a) Employees who, immediately upon enrollment in the Plan or
immediately upon an option grant would own directly or indirectly, or hold
options or rights to acquire, an aggregate of 5% or more of the total
combined voting power or value of all outstanding shares of all classes of
stock of the Company or any Subsidiary (and for purposes of this paragraph,
the rules of Code Section 424(d) shall apply, and stock which the Employee
may purchase under outstanding options shall be treated as stock owned by
the Employee); and
(b) Employees who are customarily employed by the Company or a
Participating Subsidiary for less than 20 hours per week.
5.3 Notwithstanding anything to the contrary in Section 5.1, Employees who
are directors or "officers" of the Company (as defined in Rule 16a-1(f) under
the Exchange Act, as such rule may be amended from time to time) may participate
in the plan only in accordance with the requirements of Rule 16b-3 under the
Exchange Act. The Plan is intended to conform to the extent necessary with all
provisions of the Securities Act and the Exchange Act and any and all
regulations and rules promulgated by the Securities and Exchange Commission
thereunder, including without limitation Rule 16b-3. Notwithstanding anything
herein to the contrary, the Plan shall be administered, and the options shall be
granted and may be exercised, only in such a manner as to conform to such laws,
rules and regulations. To the extent permitted by applicable law, the Plan and
the options granted hereunder shall be deemed amended to the extent necessary to
conform to such laws, rules and regulations.
VI. ENROLLMENT
6.1 Any Eligible Employee may enroll in the Plan for an Accumulation Period
by completing and signing an enrollment form (which authorizes payroll
deductions during such Accumulation Period in accordance with Section 8.1) and
submitting such enrollment form to the Company on or before the Cut-Off Date
immediately preceding the commencement of the Accumulation Period. Such
enrollment form (and the authorization therein) shall be effective as of the
Enrollment Date occurring within the first Accumulation Period to which the
enrollment form relates, and shall continue in effect until the earliest of:
(a) the end of the last payroll period ending in the last Accumulation
Period before the Plan expires, in which case such enrollment and
authorization shall automatically be deemed renewed for successive
Accumulation Periods, unless the Committee adopts a different rule providing
for renewal for a different period (or prohibiting such deemed renewal);
(b) the date during an Accumulation Period that the Employee elects to
change his enrollment in accordance with Section 8.3;
(c) the date during an Accumulation Period that the Employee ceases to
be an Eligible Employee; and
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(d) the date during an Accumulation Period that the Employee withdraws
from the Plan or has a termination of employment in accordance with
Article X.
VII. GRANT OF OPTIONS ON ENROLLMENT
7.1 Enrollment by an Eligible Employee in the Plan as of an Enrollment Date
will constitute the grant by the Company to such Participant on each Enrollment
Date for which the enrollment continues in effect of an option to purchase
shares of Common Stock from the Company pursuant to the Plan. Such option shall
be evidenced in such form and with such terms (consistent with the Plan) as the
Committee shall from time to time approve and shall be subject to Section 12.9.
7.2 An option granted to a Participant pursuant to this Plan shall expire,
if not terminated for any reason first, on the earliest to occur of (a) the end
of the Purchase Date with respect to the Accumulation Period in which such
option was granted; (b) the completion of the purchase of Common Stock under the
option under Article IX; or (c) the date on which participation of such
Participant in the Plan terminates for any reason.
7.3 An option granted to a Participant under the Plan shall give the
Participant a right to purchase on a Purchase Date any number of whole shares
(if the number of shares computed below includes a fraction, such number shall
be rounded down to the next whole number) of Common Stock, and shall specify
such number prior to the Enrollment Date, which is not more than whichever of
the amounts described in (a) or (b) is applicable:
(a) an amount equal to the lesser of (i) the percentage designated in
the Participant's enrollment form of the Participant's annualized Base
Earnings at the rate in effect on the applicable Enrollment Date, divided by
85% of the Fair Market Value of a share of Common Stock as of (A) the
Enrollment Date on which the option is granted or (B) as of the Purchase
Date for the Accumulation Period, whichever is lower, or (ii) two times the
amount equal to the percentage designated in the Participant's enrollment
form of the Participant's annualized Base Earnings at the rate in effect on
the applicable Enrollment Date, divided by the Fair Market Value of a share
of Common Stock as of the Enrollment Date; provided that, if the Committee
specifies the purchase price under Section 9.4(b) applies with respect to
the Accumulation Period, then such percentage of annualized Base Earnings
shall be divided by 85% of the Fair Market Value of a share of Common Stock
as of the Purchase Date for the Accumulation Period; or
(b) a maximum number of shares as set by the Committee for an Enrollment
Period subject to Section 4.1.
Notwithstanding any other provision of this Plan, no Employee may be granted
an option which permits his rights to purchase shares of Common Stock under the
Plan and any other similar employee stock purchase plan of the Company or any of
its subsidiaries to accrue at a rate which exceeds $25,000 of Fair Market Value
of such Common Stock (determined at the time such option is granted) for each
calendar year in which such option is outstanding at any time.
VIII. PAYROLL DEDUCTIONS
8.1 An Eligible Employee who files an enrollment form pursuant to
Article VI shall elect and authorize in such form to have deductions made from
his pay on each payday during the Accumulation Period(s) to which the enrollment
form relates, and he shall designate in such form the percentage (or, if the
Committee permits, the total amount) of Base Earnings to be deducted during such
Accumulation Period. An Employee may elect and authorize to have deducted up to
10% of his Base Earnings for such Accumulation Period, subject to the maximum
set forth in Section 7.3, (subject to such minimum dollar amount as the
Committee may designate from time to time). Any designated percentage shall be a
whole percentage of Base Earnings up to 10% or such smaller percentage as the
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Committee specifies from time to time. For these purposes, the Base Earnings of
an hourly-paid Employee shall be determined by multiplying such Employee's
hourly rate of base pay as of the beginning of the Accumulation Period by the
number of regularly scheduled hours the Employee is expected to work during the
Accumulation Period, excluding overtime hours.
8.2 Payroll deductions for a Participant shall commence as soon as
administratively practical after the Participant's authorization of such payroll
deductions in an enrollment form becomes effective in accordance with
Article VI, and shall continue until the date on which such authorization ceases
to be effective in accordance with Article VI. The amount of each payroll
deduction made for a Participant shall be credited to the Participant's Account
as soon as administratively practical after the Participant's pay is withheld.
No interest shall be paid on amounts held in Participant's Account. All payroll
deductions received or held by the Company or a Participating Subsidiary may be
used by the Company or Participating Subsidiary for any corporate purpose, and
the Company or Participating Subsidiary shall not be obligated to segregate such
payroll deductions.
8.3 During an Accumulation Period, a Participant may elect to reduce or to
cease (but not to increase) payroll deductions made on his behalf for the
remainder of such Accumulation Period by delivering the applicable forms to the
Company in such manner and at such time as permitted by the Committee. A
Participant may elect to reduce payroll deductions or cease payroll deductions
at any time. A Participant who has ceased payroll deductions may voluntarily
withdraw from the Plan pursuant to Section 10.1.
8.4 A Participant may not make any separate or additional contributions to
his Account under the Plan, except when on leave of absence and then only as
provided in Section 10.3. Neither the Company nor any Participating Subsidiary
shall make separate or additional contributions to any Participant's Account
under the Plan.
IX. PURCHASE OF SHARES
9.1 Subject to Section 9.2, any option held by the Participant which was
granted under this Plan and which remains outstanding as of a Purchase Date
shall be deemed to have been exercised on such Purchase Date for the purchase of
the number of whole shares (fractional shares shall be rounded down to the
nearest whole number) of Common Stock which the funds accumulated in the
Participant's Account as of the Purchase Date will purchase at the applicable
purchase price (but not in excess of the number of shares for which options have
been granted to the Participant pursuant to Section 7.3).
9.2 A Participant who holds an outstanding option as of a Purchase Date
shall not be deemed to have exercised such option if, no later than the time
prior to such Purchase Date required by the Committee, the Participant elected
not to exercise the option by withdrawing from the Plan in accordance with
Section 10.1. If the Participant withdraws as described in the preceding
sentence, then all funds accumulated in his Account as of the Purchase Date on
which his option would otherwise be exercisable shall be distributed to him as
soon as administratively feasible after such Purchase Date.
9.3 If, after a Participant's exercise of an option under Section 9.1, an
amount remains credited to the Participant's Account as of a Purchase Date, then
the remaining amount shall be refunded to the Participant in cash as soon as
administratively practical after such Purchase Date. No interest shall accrue on
such amounts held by the Company.
9.4 (a) The purchase price for each share of Common Stock purchased under an
option granted on the Enrollment Date for such Accumulation Period shall be 85%
of the lower of
(i) the Fair Market Value of a share of Common Stock on the
Enrollment Date on which such option is granted; or
(ii) the Fair Market Value of a share of Common Stock on the Purchase
Date.
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(b) Notwithstanding Section 9.4(a), if the Committee so specifies prior
to the commencement of an Accumulation Period, the purchase price for each
share of Common Stock purchased under any option shall be 85% of the Fair
Market Value of a share of Common Stock on the Purchase Date.
9.5 If shares of Common Stock are purchased by a Participant pursuant to
Section 9.1, then such shares shall be held in non-certificated form at a bank
or other appropriate institution selected by the Company until the earlier of
(i) such annual or other periodic date determined by the Committee, at which
time the Committee shall deliver certificates representing such shares to a
Participant or (ii) the time a Participant requests delivery of certificates
representing such shares as may be required by the laws of the jurisdiction in
which a Participant sells or otherwise disposes of the Participant's shares
acquired under the Plan or for another reason approved by the Committee. If any
law or applicable regulation of the Securities and Exchange Commission or other
body having jurisdiction shall require that the Company or the Participant take
any action in connection with the shares being purchased under the option,
delivery of the certificate or certificates for such shares shall be postponed
until the necessary action shall have been completed, which action shall be
taken by the Company at its own expense, without unreasonable delay.
Any certificates delivered pursuant to this Section 9.5 shall be registered
in the name of the Participant or, if the Participant so elects, in the names of
the Participant and one or more such other persons as may be designated by the
Participant, as joint tenants with rights of survivorship or as tenants by the
entireties, to the extent permitted by law.
9.6 In the case of Participants employed by a Participating Subsidiary, the
Committee may provide for Common Stock to be sold through the Subsidiary to such
Participants, to the extent consistent with Section 423 of the Code.
9.7 If the total number of shares of Common Stock for which an option is
exercised on any Purchase Date in accordance with this Article IX, when
aggregated with all shares of Common Stock previously granted under this Plan,
exceeds the maximum number of shares reserved in Section 4.1, the Company shall
make a pro rata allocation of the shares available for delivery and distribution
in as nearly a uniform manner as shall be practicable and as it shall determine
to be equitable, and the balance of payroll deductions credited to the Account
of each Participant under the Plan shall be returned to him as promptly as
practical.
9.8 If a Participant or former Participant sells, transfers, or otherwise
makes a disposition of Common Stock purchased pursuant to an option granted
under the Plan within two years after the date such option is granted or within
one year after the Purchase Date to which such option relates, and if such
Participant or former Participant is subject to U.S. federal income tax, then
such Participant or former Participant shall notify the Company or Participating
Subsidiary in writing of such sale, transfer or other disposition within
10 days of the consummation of such sale, transfer or other disposition, and
shall remit to the Company or Participating Subsidiary or authorize the Company
or Participating Subsidiary to withhold from other sources such amount as the
Company may determine to be necessary to satisfy any federal, state or local tax
withholding obligations of the Company or Participating Subsidiary.
The Committee may from time to time establish rules and procedures
(including but not limited to postponing delivery of shares until the earlier of
the expiration of the two-year or one-year period or the disposition of such
shares by the Participant) to cause the withholding requirements to be
satisfied.
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X. TERMINATION OF PARTICIPATION
10.1 WITHDRAWAL FROM THE PLAN. A Participant may withdraw from the Plan in
full (but not in part) during any Accumulation Period by delivering a notice of
withdrawal to the Company (in a manner prescribed by the Committee) at any time
up to but not including the number of days prior to the Purchase Date occurring
in such Accumulation Period as the Committee shall require. If notice of
withdrawal is timely received, the funds then accumulated in the Participant's
Account shall not be used to purchase Common Stock, but shall instead be
distributed to the Participant as soon as administratively feasible after the
end of the Accumulation Period. An Employee who has withdrawn during an
Accumulation Period may not return funds to the Company or a Participating
Subsidiary during the same Accumulation Period and require the Company or
Participating Subsidiary to apply those funds to the purchase of Common Stock.
Any Eligible Employee who has withdrawn from the Plan may, however, re-enroll in
the Plan on the next subsequent Enrollment Date following such withdrawal in
accordance with the provisions of Article VI.
10.2 TERMINATION OF EMPLOYMENT. Participation in the Plan terminates
immediately when a Participant ceases to be employed by the Company or a
Participating Subsidiary for any reason other than death or otherwise ceases to
be an Eligible Employee, and such terminated Participant's outstanding options
shall thereupon terminate. As soon as administratively practical after
termination of participation, the Company or Participating Subsidiary shall pay
to the Participant all amounts accumulated in the Participant's Account at the
time of termination of participation. No interest shall accrue on such amount.
10.3 LEAVE OF ABSENCE. If a Participant takes a leave of absence without
terminating employment, such Participant may, at the commencement of the leave
of absence and in accordance with procedures prescribed by the Committee, to
elect: (a) to withdraw from the Plan in accordance with Section 10.1; (b) to
discontinue contributions to the Plan but remain a Participant in the Plan
through the balance of the Accumulation Period in which his leave of absence
begins; or (c) to remain a Participant in the Plan during such leave of absence,
authorizing deductions to be made from payments by the Company or a
Participating Subsidiary to the Participant during such leave of absence and
undertaking to make contributions to the Plan at the end of each payroll period
to the extent that amounts payable by the Company to such Participant are
insufficient to meet such Participant's authorized Plan deductions.
XI. DESIGNATION OF BENEFICIARY
11.1 Each Participant may designate in writing one or more beneficiaries to
receive the amount in his Account in the event of death and may, in his sole
discretion, change such designation in writing at any time. Any such designation
shall be effective upon receipt by the Company and shall control over any
disposition by will or otherwise.
11.2 As soon as administratively practical after the death of a
Participant, amounts accumulated in his Account shall be paid in cash to the
designated beneficiaries or, in the absence of a valid designation, to the
executor, administrator or other legal representative of the Participant's
estate. Such payment shall relieve the Company of further liability with respect
to the Plan on Account of the deceased Participant. If more than one beneficiary
is designated, each beneficiary shall receive an equal portion of the Account
unless the Participant has given express contrary instructions. No interest
shall be paid on such amounts.
11.3 No beneficiary shall, prior to the death of the Participant by whom he
has been designated, acquire any interest in the amounts credited to the
Participant's Account under the Plan.
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XII. MISCELLANEOUS
12.1 RESTRICTIONS ON TRANSFER. The rights of a Participant under the Plan
shall not be assignable or transferrable by such Participant, and an option
granted under the Plan may not be exercised during a Participant's lifetime
other than by the Participant.
12.2 ADMINISTRATIVE ASSISTANCE. If the Committee in its discretion so
elects, it may retain a brokerage firm, bank or other financial institution to
assist in the purchase of shares, delivery of reports or other administrative
aspects of the Plan. If the Committee so elects, each Participant shall (unless
prohibited by applicable law) be deemed upon enrollment in the Plan to have
authorized the establishment of an account on his behalf at such institution.
Shares purchased by a Participant under the Plan shall be held in the account in
the Participant's name, or if the Participant so indicates in the enrollment
form, in the Participant's name together with the name of one or more other
persons, in joint tenancy with right of survivorship or spousal community
property, or in certain forms of trusts approved by the Committee.
12.3 COSTS AND EXPENSES. All costs and expenses incurred in administering
the Plan shall be paid by the Company, including any stamp duties, transfer
taxes and any brokerage fees applicable to a Participant's acquisition of Stock
under the Plan, unless otherwise determined by the Committee and announced in
advance to Participants.
12.4 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. Notwithstanding the
express terms of the Plan, 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 Code Section 423. This Section shall take precedence over all
other provisions in the Plan.
12.5 APPLICABLE LAW. The Plan shall be governed by the substantive laws
(excluding the conflict of laws rules) of the State of Illinois.
12.6 AMENDMENT AND TERMINATION. The Board may amend, alter or terminate
the Plan at any time; provided, however, that no amendment which would amend or
modify the Plan in a manner requiring stockholder approval under Code
Section 423, the requirements of any securities exchange on which the Common
Stock is traded, or any rule or regulation promulgated by the Securities
Exchange Commission shall be effective unless, within one year after it is
adopted by the Board, it is approved by the holders of a majority of the voting
power of the Company's outstanding shares. In addition, the Committee may amend
the Plan as provided in Section 3.3, subject to the conditions set forth therein
and in this Section.
If the Plan is terminated, the Board may elect to terminate all outstanding
options either prior to their expiration or upon completion of the purchase of
shares on the next Purchase Date, or may elect to permit options to expire in
accordance with their terms (and participation to continue through such
expiration dates). If the options are terminated prior to expiration, all funds
accumulated in Participants' Accounts as of the date the options are terminated
shall be returned to the Participants as soon as administratively practical,
without interest.
12.7 RIGHTS AS A STOCKHOLDER. A Participant shall have no rights as a
stockholder with respect to any Common Stock covered by his option until the
Purchase Date. No adjustment shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property) or distributions
or other rights for which the record date is prior to the date of such exercise,
except as provided in Section 4.2 of the Plan.
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12.8 NO RIGHT OF EMPLOYMENT. Neither the grant nor the exercise of any
rights to purchase shares under this Plan nor anything in this Plan shall impose
upon the Company any obligation to employ or continue to employ any employee.
The right of the Company or any Subsidiary to terminate any employee shall not
be diminished or affected because any rights to purchase shares have been
granted to such employee.
12.9 REQUIREMENTS OF LAW. The Company shall not be required to sell,
issue, or deliver any shares of Common Stock under this Plan if such sale,
issuance, or delivery might constitute a violation by the Company or the
Participant of any provision of law. Unless a registration statement under the
Securities Act is in effect with respect to the shares of Common Stock proposed
to be delivered under the Plan, the Company shall not be required to issue such
shares if, in the opinion of the Company or its counsel, such issuance would
violate the Securities Act. Regardless of whether such shares of Common Stock
have been registered under the Securities Act or registered or qualified under
the securities laws of any state, the Company may impose restrictions upon the
hypothecation or further sale or transfer of such shares (including the
placement of appropriate legends on stock certificates) if, in the judgment of
the Company or its counsel, such restrictions are necessary or desirable to
achieve compliance with the provisions of the Securities Act, the securities
laws of any state, or any other law or are otherwise in the best interests of
the Company. Any determination by the Company or its counsel in connection with
any of the foregoing shall be final and binding on all parties.
If, in the opinion of the Company and its counsel, any legend placed on a
stock certificate representing shares of Common Stock issued under the Plan is
no longer required in order to comply with applicable securities or other laws,
the holder of such certificate shall be entitled to exchange such certificate
for a certificate representing a like number of shares lacking such legend.
The Company may, but shall not be obligated to, register or qualify any
securities covered by the Plan. The Company shall not be obligated to take any
other affirmative action in order to cause the grant or exercise of any right or
the issuance, sale, or deliver of shares pursuant to the exercise of any right
to comply with any law.
12.10 GENDER. When used herein, masculine terms shall be deemed to include
the feminine, except when the context indicates to the contrary.
Executed this day of , 1999.
DELPHI INFORMATION SYSTEMS, INC.
By:
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Title:
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