EXHIBIT 10.22
FOUNDATION HEALTH SYSTEMS, INC.
EMPLOYEE STOCK PURCHASE PLAN
I. INTRODUCTION
Foundation Health Systems, Inc. (the "Company") hereby establishes the
Foundation Health Systems, Inc. Employee Stock Purchase Plan (the "Plan") to
encourage and facilitate the purchase of shares of common stock of the Company
by eligible employees of the Company and its subsidiaries.
II. DEFINITIONS
For purposes of the Plan, the following capitalized terms shall have the
meanings set forth in this Article.
2.1 "Benefits Representative" means the Human Resources Department of the
Company or such other person or persons designated by the Committee to assist
the Committee with the administration of the Plan.
2.2 "Board" means the Board of Directors of the Company as from time to time
constituted.
2.3 "Committee" means the Compensation and Stock Option Committee of the Board.
2.4 "Common Stock" means the Class A Common Stock, par value $.001 per share,
of the Company.
2.5 "Company" means Foundation Health Systems, Inc., a Delaware corporation,
and any successor thereto.
2.6 "Compensation" means the base compensation paid to a Participant by an
Employer, including shift differentials but excluding bonuses, commissions,
overtime or any other pay outside the regular work schedule, as determined by
the Committee.
2.7 "Effective Date" means September 1, 1997.
2.8 "Employee Stock Purchase Account" means the account established pursuant to
Section 5(c) of the Plan to which a Participant's payroll deductions are
credited.
2.9 "Employer" means the Company and each Subsidiary, other than a Subsidiary,
if any, which the Committee excludes from participation in the Plan.
2.10 "Entry Date" means a date which is September 1, 1997, or the first day of
each subsequent month.
2.11 "Excluded Employee" means an employee of an Employer who (i) is one of up
to thirty-five senior officers of the Company and its Subsidiaries whose
compensation is subject to Committee approval under the by-laws of the Company
or (ii) is scheduled to work less than 20 hours a week.
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2.12 "Fair Market Value" means the closing price of a share of Common Stock as
reported in THE WALL STREET JOURNAL on the New York Stock Exchange Composite
Transactions list for the date as of which such value is being determined or, if
there shall be no reported transaction on such date or if such date is not a
trading day, on the next immediately preceding date for which a transaction was
reported or which was a trading day, PROVIDED that if Fair Market Value for any
date cannot be so determined, Fair Market Value shall be determined by the
Committee by whatever means or method as the Committee, in the good faith
exercise of its discretion, shall at such time deem appropriate.
2.13 "Participant" means any employee of an Employer who meets the eligibility
requirements of Article III and has elected to participate in the Plan as
described in such Article. An individual shall cease to be a Participant as of
the date he or she terminates employment with all Employers, for whatever
reason, or abandons his or her election pursuant to Article VII hereof.
2.14 "Plan" means the Foundation Health Systems, Inc. Employee Stock Purchase
Plan herein set forth and any amendment hereto.
2.15 "Purchase Date" means a date which is September 30, 1997, or the last day
of each subsequent month.
2.16 "Purchase Period" means a monthly period ending on a Purchase Date.
2.17 "Purchase Price" means, with respect to a share of Common Stock purchased
on a Purchase Date, the lesser of (i) 85 percent of the Fair Market Value of a
share of Common Stock on the first day of the Purchase Period ending on such
Purchase Date or (ii) 85 percent of the Fair Market Value of a share of Common
Stock on such Purchase Date, PROVIDED that if such price includes a fraction of
a cent, the Purchase Price shall be rounded up to the next whole cent.
2.18 "Subsidiary" means a corporation (other than the Company) in an unbroken
chain of corporations beginning with the Company if each of the corporations
other than the last corporation in the unbroken chain owns stock possessing 50
percent or more of the total combined voting power of all classes of stock in
one of the other corporations in such chain. Any corporation that satisfies the
conditions set forth in the immediately preceding sentence after the date the
Plan is adopted by the Board shall be a "Subsidiary" beginning on the date such
corporation satisfies such conditions.
2.19 "Termination Date" means the earlier of (i) the date as of which the Board
terminates the Plan or (ii) the Purchase Date on which all shares available for
issuance under the Plan shall have been purchased by Participants under the
Plan.
III. ELIGIBILITY AND ADMINISTRATION
3.1 ELIGIBILITY AND PARTICIPATION.
(a) Any employee of an Employer who is not an Excluded Employee shall be
eligible to participate in the Plan as of the first Entry Date following such
employee's satisfaction of the "eligibility service requirement" (as defined
below in this Section 4(a)), or, if later, the first Entry Date following the
date on which the employee's Employer adopted the Plan. An employee shall have
satisfied the eligibility service requirement on the Entry Date following his or
her
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completion of at least 30 days of continuous service with an Employer. For the
sole purpose of calculating days of continuous service under the Plan, employees
shall be credited with service for an Employer or a Subsidiary (even though such
service may have been performed prior to (i) the Effective Date or (ii) the
Company's acquisition of such Subsidiary. No eligibility provision hereof shall
permit participation in the Plan in a manner contrary to the applicable
requirements of the Code and the regulations promulgated thereunder.
(b) At least 15 days (or such other period as may be prescribed by the
Committee) prior to any Entry Date, an employee who is eligible to participate
in the Plan pursuant to subsection (a) of this Section may execute and deliver
to the Benefits Representative an application on the prescribed form specifying
his or her chosen rate of payroll deductions, as described in Article IV. Such
application shall authorize the employee's Employer to reduce the employee's
Compensation by the amount of any such payroll deductions. The application shall
also evidence the employee's acceptance of and agreement to all provisions of
the Plan.
(c) If a Participant is transferred from one Employer to another Employer,
such transfer shall not terminate the Participant's participation in the Plan.
Such Participant shall continue to make payroll deductions under the Plan,
PROVIDED that such Participant completes any forms as the Committee may require,
in the time and manner prescribed by the Committee.
(d) If an individual terminates employment with all Employers so as to
discontinue participation in the Plan, and such individual is subsequently
reemployed by an Employer, such individual shall be required to satisfy the
eligibility service requirement described in subsection (a) of this Section as
if he or she were a new employee.
(e) Notwithstanding anything herein to the contrary, no employee shall be
entitled to participate in the Plan for a Purchase Period if such employee, on
the first day of such Purchase Period would own shares (including shares which
may be purchased under the Plan during such Purchase Period) possessing five
percent or more of the total combined voting power or value of all classes of
stock of the Company or any of its Subsidiaries. For purposes of the foregoing
sentence, the rules of stock attribution set forth in Section 424(d) of the Code
shall apply in determining share ownership.
3.2 ADMINISTRATION. The Plan shall be administered by the Committee. Subject to
the express provisions hereof, the Committee shall have complete authority to
interpret the Plan, to prescribe, amend and rescind rules and regulations
relating to it and to make all other determinations necessary or advisable for
its administration. Such determinations made by the Committee shall be
conclusive. No member of the Committee shall be personally liable for any
decision or determination made in good faith under the Plan.
IV. PARTICIPANT PAYROLL DEDUCTIONS
4.1 ELECTIONS. Each Participant may elect, in the manner described in
Section 4, to make payroll deductions under the Plan in an amount equal to a
whole dollar amount or a whole percentage, of such Participant's Compensation
for each payroll period, beginning with the first pay date which occurs on or
after the Entry Date as of which such Participant commences participation in the
Plan. Payroll deductions for each payroll period under the Plan shall be at
least two percent of a Participant's Compensation for such payroll period and
may be limited by such maximum percentage or whole dollar amount, if any, as the
Committee may designate from time to time. Once a Participant's participation in
the Plan commences, such Participant
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shall continue to participate in the Plan for each succeeding Purchase Period
until he or she withdraws from the Plan pursuant to Article VII or ceases to be
an eligible employee.
4.2 ELECTION CHANGES. At least 15 days (or such other period as may be
prescribed by the Committee) prior to the first day of any Purchase Period, a
Participant shall have the right to elect to increase or decrease his or her
designated rate of payroll deductions under the Plan by executing and delivering
to the Benefits Representative an application on the prescribed form specifying
his or her chosen rate of payroll deductions.
4.3 ACCOUNTS. The Committee shall cause to be established a separate Employee
Stock Purchase Account on behalf of each Participant. Such Employee Stock
Purchase Accounts shall be solely for accounting purposes, and there shall be no
segregation of assets among the separate accounts. Such accounts shall not be
credited with interest or other investment earnings.
V. PURCHASE OF COMMON SHARES
5.1 NUMBER OF SHARES PURCHASED. Subject to a Participant's right of abandonment
described in Article VII, the balance of each Participant's Employee Stock
Purchase Account shall be applied on each Purchase Date to purchase the number
of whole and fractional shares of Common Stock determined by dividing the
balance of such Participant's Employee Stock Purchase Account as of such date by
the Purchase Price. The Participant's Employee Stock Purchase Account shall be
debited accordingly.
5.2 MAXIMUM SHARES PURCHASED.
(a) Notwithstanding any provision of the Plan to the contrary, the maximum
number of shares which shall be available for purchase under the Plan shall be
1,000,000 shares of Common Stock, subject to adjustment as provided in Section
9.2. The shares of Common Stock available under the Plan may be treasury shares,
shares originally issued for such purpose or shares purchased by the Company, as
the Company may decide. In the event that the aggregate number of shares of
Common Stock which all Participants elect to purchase during a Participation
Period exceeds the number of shares remaining available for issuance under the
Plan, then the number of shares to which each Participant is entitled shall be
determined by multiplying the number of shares available for issuance by a
fraction, the numerator of which is the number of shares which such Participant
has elected to purchase and the denominator of which is the number of shares
which all Participants have elected to purchase.
(b) Notwithstanding any provision contained herein to the contrary, no
Participant shall be permitted to purchase shares of Common Stock in any
calendar year under the Plan and other employee stock purchase plans (within the
meaning of Section 423 of the Code) of the Company and its Subsidiaries with an
aggregate fair market value (determined at the time the options to purchase such
shares are granted) in excess of $25,000, all determined in the manner provided
by Section 423 (b) (8) of the Code. Any portion of the balance of a
Participant's Employee Stock Purchase Account that is not applied to purchase
shares of Common Stock due to the application of this subsection shall be
refunded to such Participant as soon as administratively practicable.
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5.3 TERMINATION OF EMPLOYMENT. If a Participant dies, terminates employment
with all the Employers for any reason or otherwise becomes an Excluded Employee,
then the Participant's payroll deductions shall be suspended and the balance of
the Participant's Employee Stock Purchase Account shall be applied to purchase
shares of Common Stock on the Purchase Date next occurring after the effective
date of such transfer, except to the extent the Participant abandons his or her
election to purchase shares of Common Stock as described in Article VII.
VI. ISSUANCE OF CERTIFICATES
As soon as administratively practicable after each Purchase Date, the
Company, in its sole discretion, shall purchase or issue shares of Common Stock
and at the election of the Company, a certificate representing the shares of
Common Stock purchased by such Participant under the Plan on such date shall be
issued and delivered to such Participant or a notation of noncertificated shares
shall be made on the stock records of the Company. Shares of Common Stock
purchased by a Participant under the Plan shall be registered in the name of the
Participant. Shares of Common Stock purchased hereunder may not be sold,
assigned, transferred, pledged, exchanged, encumbered or otherwise disposed of
in any way (other than by will or the laws of descent and distribution) for a
period commencing on the Purchase Date and ending one year thereafter (the
"Holding Period"); PROVIDED, HOWEVER, that the Committee, in its discretion, may
shorten the Holding Period or otherwise provide for the lapse of any
restrictions outstanding on any shares. All certificates issues to Participants
following each Purchase Date shall bear a legend in substantially the following
form:
The shares represented by this certificate may not be sold, assigned,
transferred, pledged, exchanged, encumbered or otherwise disposed of in any
way (other than by will or the laws of descent and distribution) for a
period commencing on [insert applicable Purchase Date] and ending one year
thereafter (the "Holding Period"); provided, however, that the committee
administering the Foundation Health Systems, Inc. Employee Stock Purchase
Plan, in its discretion, may shorten the Holding Period or otherwise
provide for the lapse of any restrictions outstanding on any such shares.
VII. PARTICIPANT'S RIGHT TO ABANDON PURCHASE OF SHARES
At any time during a Purchase Period, but in no event later than 15 days
(or such shorter period prescribed by the Committee) prior to a Purchase Date, a
Participant may elect to abandon his or her election to purchase shares of
Common Stock under the Plan. Such abandonment election shall be made on forms
prescribed by the Committee and delivered to the Benefits Representative. Upon
such an election by a Participant, the amount credited to the Participant's
Employee Stock Purchase Account for the current Purchase Period shall be
refunded to the Participant as soon as is administratively practicable, and such
Participant's participation in the Plan shall terminate.
VIII. SUSPENSION ON ACCOUNT OF HARDSHIP WITHDRAWAL
If a Participant makes a hardship withdrawal from any plan with a cash or
deferred arrangement qualified under Section 401(k) of the Code, which plan is
sponsored, or participated in, by the Participant's Employer, such Participant
shall be suspended from making payroll deductions under the Plan for a period of
twelve months from the date of such
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withdrawal. The balance of such Participant's Employee Stock Purchase Account
shall be applied to purchase shares of Common Stock on the Purchase Date next
occurring after the effective date of such withdrawal, except to the extent the
Participant abandons his or her election to purchase shares of Common Stock as
described in Article VII. After the expiration of such twelve-month period, the
Participant may resume his or her payroll deductions in accordance with Article
IV.
IX. GENERAL
9.1 RIGHTS NOT TRANSFERABLE. The right to purchase shares of Common Stock under
the Plan shall not be transferable by any Participant other than by will or the
laws of descent and distribution, and must be exercisable, during his or her
lifetime, only by the Participant.
9.2 CHANGES IN THE COMPANY'S CAPITAL STRUCTURE.
(a) The existence of the Plan shall not affect in any way the right or
power of the Company or its shareholders to make or authorize any adjustment,
recapitalization, reorganization or other change in the Company's capital
structure or its business, or any merger or consolidation of the Company, or any
issue of bonds, debentures, preferred or prior preference stock that affects the
shares of Common Stock or the rights thereof, or the dissolution or liquidation
of the Company, or any sale or transfer of all or any part of its assets or
business, or any other corporate act or proceeding, whether of a similar
character or otherwise.
(b) If, during the term of the Plan, the Company shall effect (i) a
distribution or payment of a dividend on its Common Stock in shares of the
Company, (ii) a subdivision of its outstanding Common Stock by a stock split or
otherwise, (iii) a combination of the outstanding shares of Common Stock into a
smaller number of shares by a reverse stock split or otherwise, or (iv) an
issuance by reclassification or other reorganization of its Common Stock (other
than by merger or consolidation) of any shares of the Company, then each
Participant shall be entitled to receive upon the purchase of shares of Common
Stock pursuant to the Plan such shares of the Company which the Participant
would have owned or would have been entitled to receive after the happening of
such event had the Participant purchased shares of Common Stock pursuant to the
Plan immediately prior to the happening of such event. If any other event shall
occur that, in the judgment of the Board, necessitates adjusting the Purchase
Price, the number of shares of Common Stock offered or other terms of the Plan,
the Board shall take any action that in its judgment shall be necessary to
preserve each Participant's rights substantially proportionate to the rights
existing prior to such event. To the extent that any event or action pursuant to
this paragraph shall entitle Participants to purchase additional shares of
Common Stock or other shares of the Company, the shares available under the Plan
shall be deemed to include such additional shares of Common Stock or such other
shares.
(c) In the event of a merger of one or more corporations into the Company,
or a consolidation of the Company and one or more corporations in which the
Company shall be the surviving corporation, each Participant in the Plan shall,
at no additional cost, be entitled, upon his or her payment for all or part of
the shares of Common Stock purchasable by him or her under the Plan, to receive
(subject to any required action by shareholders) in lieu of the number of shares
of Common Stock which he or she was entitled to purchase, the number and class
of shares of stock or other securities to which such holder would have been
entitled pursuant to the terms of the agreement of merger or consolidation if,
immediately prior to such merger or
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consolidation, such holder had been the holder of record of the number of shares
of Common Stock equal to the number of shares paid for by the Participant.
(d) If the Company is merged into or consolidated with another corporation
under circumstances where the Company is not the surviving corporation, or if
the Company sells or otherwise disposes of substantially all its assets to
another corporation during the term of the Plan, each holder of a right to
purchase shall be entitled to receive, upon his or her payment for all or part
of the shares of Common Stock purchasable by him or her under the Plan and in
lieu of such shares of Common Stock, shares of such stock or other securities as
the holders of shares of Common Stock received pursuant to the terms of the
merger, consolidation or sale.
(e) Except as heretofore expressly provided, the issue by the Company of
shares of stock of any class, or securities convertible into shares of stock of
any class, for cash or property, or for labor or services either upon direct
sale or upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible into such shares
or other securities, shall not affect, and no adjustment by reason thereof shall
be made with respect to, the number or price of shares of Common Stock then
available for purchase under the Plan.
9.3 SHAREHOLDER APPROVAL. The Plan shall be submitted to the stockholders of
the Company for approval and, if approved by the affirmative vote of a majority
of the shares of Common Stock present in person or represented by proxy at
the1997 annual meeting of stockholders, shall become effective as of September
1,1997.
9.4 RIGHTS OF A SHAREHOLDER. No Participant shall have rights or privileges of
a shareholder of the Company with respect to shares purchasable under the Plan
unless and until the Participant shall become the holder of record of one or
more shares of Common Stock.
9.5 NO REPURCHASE OF COMMON STOCK BY COMPANY. The Company is not obligated to
repurchase any shares of Common Stock acquired under the Plan.
9.6 AMENDMENT OF THE PLAN. The Board may amend the Plan as it shall deem
advisable, subject to any requirement of stockholder approval required by
applicable law, rule or regulation, including Section 423 of the Code; provided,
however, that no amendment shall be made without stockholder approval if such
amendment would increase the maximum number of shares of Common Stock available
under the Plan (subject to Section 9.2). No amendment may impair the rights of a
holder of an outstanding award without the consent of such holder.
9.7 TERMINATION OF THE PLAN. While it is intended that the Plan remain in
effect as long as shares of Common Stock are available for purchase under the
Plan, the Board may terminate the Plan at any time in its discretion by
resolutions duly adopted. Upon termination of the Plan, the Committee shall
terminate payroll deductions and shall apply the balance of each Participant's
Employee Stock Purchase Account to purchase shares of Common Stock as described
in Section 6 as if such termination date were a Purchase Date under the Plan.
Notwithstanding the foregoing, in the event of the termination of the Plan, a
Participant may
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elect, in the time and manner prescribed by the Committee, to abandon his or her
right to purchase all or a portion of the shares of Common Stock purchasable by
him. As soon as administratively practicable after the termination of the Plan,
the Committee shall refund to each Participant who elects to abandon his or her
right to purchase shares of Common Stock, the entire balance of in his or her
Employee Stock Purchase Plan Account, or the applicable portion thereof.
Notwithstanding any provision in the Plan to the contrary, the Plan shall
automatically terminate as of the Purchase Date on which all shares available
for issuance under the Plan shall have been purchased by Participants under the
Plan.
9.8 COMPLIANCE WITH STATUTES AND REGULATIONS. The sale and delivery of Common
Stock under the Plan shall be in compliance with relevant statutes and
regulations of governmental authorities, including state securities laws and
regulations, and with the regulations of applicable stock exchanges.
9.9 GOVERNING LAW. The Plan and all determinations made hereunder and actions
taken pursuant hereto, to the extent not otherwise governed by the Code or the
laws of the United States, shall be governed by the laws of the State of
Delaware and construed in accordance therewith without giving effect to
principles of conflicts of laws.
9.10 COMPANY AS AGENT FOR THE EMPLOYERS. Each Employer, by adopting the Plan,
appoints the Company, the Board and the Committee as its agents to exercise on
its behalf all of the powers and authorities hereby conferred upon the Company,
the Board and the Committee by the terms of the Plan, including, but not by way
of limitation, the power to amend and terminate the Plan. The authority of the
Company, the Board and the Committee to act as such agents shall continue for as
long as necessary to carry out the purposes of the Plan.
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