RADIUS INC.
1990 EMPLOYEE STOCK PURCHASE PLAN
As Amended by the Board of Directors Through June 21 1995
As Approved by Shareholders on August 23, 1995
1. ESTABLISHMENT OF PLAN. Radius, Inc. (the "Company") proposes to
grant options for purchase of the Company's Common Stock to eligible
employees of the Company and Subsidiaries (as hereinafter defined)
pursuant to this Employee Stock Purchase Plan (the "Plan"). For
purposes of this Plan, "parent corporation" and "Subsidiary" (when
used in the plural, "Subsidiaries") shall have the same meanings as
"parent corporation" and "subsidiary corporation" in Sections 425(e)
and 425(f), respectively, of the Internal Revenue Code of 1986, as
amended (the "Code"). The Company intends that the Plan shall qualify
as an "employee stock purchase plan" under Section 423 of the Code
(including any amendments 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. Subject to adjustment as provided in
Section 14 of the Plan, the aggregate number of shares of Common Stock
which may be purchased under this Plan shall not exceed 650,000 shares
of Common Stock of the Company, which may be treasury shares
reacquired by the Company or authorized and unissued shares, or a
combination of both.
2. PURPOSES. The purpose of the Plan is to provide employees of
the Company and Subsidiaries designated by the Board of Directors as
eligible to participate in the Plan with a convenient means to acquire
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. The Plan is administered by the Board of
Directors of the Company or by a committee designated by the Board of
Directors of the Company (in which event all references herein to the
Board of Directors shall be to the committee). 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
of Directors of the Company 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 day 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; and
(d) employees who, together with any other person whose
stock would be attributed to such employee pursuant to Section
425(d) of the Code, own stock or hold options to purchase stock
or who, as a result of being granted an option under the Plan
with respect to such Offering Period, would own stock or hold
options to purchase stock possessing 5 percent or more of the
total combined voting power or value of all classes of stock 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 April 1 and
October 1 of each year and ending on September 30 and March 31,
respectively, during which payroll deductions of the participant are
accumulated under this Plan. The first Offering Period shall commence
on April 1, 1991. The first day of each Offering Period is referred
to as the "Offering Date." The last day of each Offering Period is
hereinafter referred to as the "Purchase Date". The Board of
Directors of the Company 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.
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 to the Company's or Subsidiary's (whichever employs such
employee) payroll department not later than March 22, 1991 a
subscription agreement authorizing payroll deductions for the Offering
Period beginning April 1, 1991. For subsequent Offering Periods the
subscription agreement is due (i) for current employees, not later
than the 15th day of the month before such Offering Date, or (ii) for
new employees who commenced employment with the Company within thirty
(30) days of the next Offering Date, not later than the day before the
beginning of the new Offering period, unless a later time for filing
the subscription agreement 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 under the Plan shall not participate in that Offering
Period or any subsequent Offering Period unless such employee enrolls
in the Plan by filing the subscription agreement with the payroll
department not later than the 15th day of the month preceding a
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 agreements in order to continue
participation in the Plan. Any participant whose option expires and
who has not withdrawn from the Plan pursuant to Section 11 below will
automatically be re-enrolled in the Plan and granted a new option on
the Offering Date of the next Offering Period.
7. GRANT OF OPTION ON ENROLLMENT. An eligible employee who enrolls
in the Plan with respect to an Offering Period pursuant to Section 6
hereof, will receive a grant of an option (as of the Offering Date) to
purchase on the Purchase Date up to that number of shares of Common
Stock of the Company determined by dividing the amount accumulated in
such employee's payroll deduction account during such Offering Period
by the lower of (i) eighty-five percent (85%) of the fair market value
of a share of the Company's Common Stock on the Offering Date (the
"Entry Price") or (ii) eighty-five percent (85%) of the fair market
value of a share of the Company's Common Stock on the Purchase Date,
provided, however, that the number of shares of the Company's Common
Stock 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 a
share of the Company's Common Stock on the Offering Date as the
denominator. Fair market value of a share of the Company's Common
Stock shall be determined as provided in Section 8 hereof.
8. PURCHASE PRICE. The purchase price per share at which a share
of Common Stock will be purchased in any Offering Period shall be 85
percent of the lesser of:
(a) the fair market value at the close of trading on the
day prior to the Offering Date; or
(b) the fair market value at the close of trading on the
Purchase Date.
For purposes of the Plan, the term "fair market value" on a given
date shall mean the closing price in U.S. dollars of a share of the
Company's Common Stock on that date as reported on the NASDAQ National
Market System.
9. PAYMENT OF PURCHASE PRICE; CHANGES IN PAYROLL DEDUCTIONS;
ISSUANCE 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 employee's
compensation in one percent increments not less than 2 percent
nor greater than 10 percent. Compensation shall be limited to
base salary or wages, bonuses, overtime and commissions, if any,
paid; 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. Payroll deductions shall commence on
the first payday following the Offering 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 decrease (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 the 15th day of the month
before the beginning of such 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 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 then in the
participant's account to the purchase of whole shares of Common
Stock 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 purchase of
shares by reason of any limitation on the number of shares that
may be purchased under the Plan as set forth in Section 10
hereof, shall be refunded to such participant in cash; provided,
however, that any amount remaining in such participant's account
on a Purchase Date which is less than the amount necessary to
purchase a full share of Common Stock of the Company 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 purchase shares on the Purchase Date
shall be returned to the participant. No Common Stock shall
be purchased 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, as
appropriate, of a statement of shares purchased upon exercise
of his option.
(f) During a participant's lifetime, such participant's
option to purchase shares hereunder is exercisable only by him
or her. The participant will have no interest or voting right
in shares covered by his or her option until such option has
been exercised. Shares purchased on behalf of a participant
under the Plan will be included in the Beneficial Owners list
associated with the total shares registered in the name of the
Employee Stock Purchase Plan individual accounts.
10. LIMITATIONS ON SHARES TO BE PURCHASED.
(a) No employee shall be entitled to purchase stock under
the Plan at a rate which, when aggregated with his or her rights
to purchase stock under all other employee stock purchase plans
of the Company or any Subsidiary, exceeds $25,000 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 a share of the Company's
Common Stock on the Offering Date as the denominator may be
purchased by a participant on any single Purchase Date.
(c) No employee shall be entitled to purchase 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 purchased 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 in
respect of all succeeding Purchase Dates and Offering Periods
unless revised by the Board as set forth above.
(d) If the number of shares to be purchased on a Purchase
Date by all employees participating in the Plan exceeds the
number of shares then available for issuance 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 purchased under a participant's option to each
employee affected thereby.
(e) Any payroll deductions accumulated in a participant's
account which are not used to purchase stock 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.
11. WITHDRAWAL.
(a) Each participant may withdraw from an Offering Period
under the Plan by signing and delivering to the payroll
department a notice on a form provided for such purpose. Such
withdrawal may be elected at any time prior to the 15th day of
the month in which an Offering Period ends.
(b) Upon withdrawal from the Plan, the accumulated payroll
deductions shall be returned to the withdrawn employee and his
or her interest in the Plan shall terminate. In the event an
employee 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 above for
initial participation in the Plan.
12. TERMINATION OF EMPLOYMENT. Termination of a participant's
employment for any reason, including retirement or death or the
failure of a participant to remain an eligible employee, terminates
his or her participation in the Plan immediately. 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. For this purpose, 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 of
Directors of the Company; 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 an employee'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 employee 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 shares of Common Stock
covered by each option under the Plan which has not yet been exercised
and the number of shares of Common Stock which have been authorized
for issuance under the Plan but have not yet been placed under option
(collectively, the "Reserves"), as well as the price per share of
Common Stock 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 shares of Common Stock resulting from
a stock split or the
payment of a stock dividend (but only on the Common Stock) or
any other increase or decrease in the number of shares of
Common Stock effected without receipt of consideration by the
Company; provided, however, that conversion of any convertible
securities of the Company shall not be deemed to have been "effected
without receipt of consideration." Such adjustment shall be made by
the Board, whose determination in that respect shall be final, binding
and conclusive. Except as expressly provided herein, no issue by the
Company of shares of stock of any class, or securities convertible
into shares of stock of any class, shall affect, and no adjustment by
reason thereof shall be made with respect to, the number or price of
shares of Common Stock subject to an option.
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 optioned stock, including
shares which 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 merger of the Company with or into another
corporation, each option under the Plan shall be assumed or an
equivalent option shall be substituted by such successor corporation
or a parent or subsidiary of such successor 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 optioned stock. 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 share of Common Stock covered by each outstanding
option, in the event that the Company effects one or more
reorganizations, recapitalizations, rights offerings or other
increases or reductions of shares of its outstanding Common Stock, and
in the event of the Company being consolidated with or merged into any
other corporation.
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.
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 account setting
forth the total payroll deductions accumulated, the number of shares
purchased, 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 purchased in
any Offering Period pursuant to this Plan if such disposition occurs
within two years from the Offering Date or within twelve months from
the Purchase Date on which such shares were purchased (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 certificates.
18. NO RIGHTS TO CONTINUED EMPLOYMENT. 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.
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.
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. SHAREHOLDER APPROVAL OF AMENDMENTS.
Any required approval of the shareholders of the Company shall be
solicited substantially in accordance with Section 14(a) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
the rules and regulations promulgated thereunder. Any such approval
shall be solicited at or prior to the first annual meeting of
shareholders held subsequent to the grant to an officer or director of
the Company of an option under the Plan as then amended. Such
shareholder approval shall be obtained at a duly held meeting or by
written consent only to the extent required by and by a vote that
satisfies the requirements of Section 423 of the Code and Rule 16b-3
as promulgated under the Exchange Act ("Rule 16b-3").
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 ISSUANCE 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 issuance 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 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.
If the purchase of shares on a Purchase Date is exempt from the
operation of Section 16(b) of the Exchange Act by the operation of
Rule 16b-6 promulgated under the Exchange Act, to the extent required
by the Exchange Act, shares purchased by an person subject to the
requirements of Section 16(b) of the Exchange Act may not be sold
prior to the expiration of six (6) months from the Purchase Date on
which such shares were purchased (or on such other date as may be
required by Rule 16b-3 or any successor rule).
24. APPLICABLE LAW. The Plan shall be governed by the substantive
laws (excluding the conflict of laws rules) of the State of
California.
25. AMENDMENT OR TERMINATION OF THE PLAN. This Plan shall be
effective April 1, 1991 or such later date as the Board determines,
and shall continue until the earlier to occur of termination by the
Board, issuance of all of the shares of Common Stock reserved for
issuance under the Plan, or ten (10) years from the adoption of the
Plan by the Board. The Board of Directors of the Company may at any
time amend or terminate 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.