Exhibit 4.9
EDGEWATER TECHNOLOGY, INC.
1999 EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I
Introduction
Sec. 1.01 Statement of Purpose. The purpose of the Edgewater Technology,
Inc. Employee Stock Purchase Plan is to provide eligible employees of the
Company and its subsidiaries, who wish to become shareholders, an opportunity to
purchase common stock of the Company. The Board of Directors of the Company
believes that employee participation in stock ownership will be to the mutual
benefit of the employees and the Company.
Sec. 1.02 Internal Revenue Code Considerations. The Plan is intended to
constitute an "employee stock purchase plan" within the meaning of section 423
of the Internal Revenue Code of 1986, as amended. The Plan shall be submitted to
the Company's shareholders for approval within 12 months after the Plan is
adopted by the Board of Directors.
Sec. 1.03 ERISA Considerations. The Plan is not intended and shall not be
construed as constituting an "employee benefit plan," within the meaning of
section 3(3) of the Employee Retirement Income Security Act of 1974, as amended.
ARTICLE II
Definitions
Sec. 2.01 "Board of Directors " means the board of directors of the Company
or a committee of the board of directors authorized to act on its behalf.
Sec. 2.02 "Code " means the Internal Revenue Code of 1986, as amended, and
any successor statute of similar nature. References to specific sections of the
Code shall be taken to be references to corresponding sections of any successor
statute.
Sec. 2.03 "Committee " means the committee appointed by the Board of
Directors to administer the Plan, as provided in Section 6.03 hereof.
Sec. 2.04 "Company " means Edgewater Technology, Inc., a Delaware
corporation.
Sec. 2.05 "Effective Date" means October 1, 1999.
Sec. 2.06 "Election Date " means each January 1 and July 1 or such other
dates as the Committee shall specify.
Sec. 2.07 "Eligible Employee" means each person employed as an employee of
an Employer who is not deemed for purposes of section 423(b)(3) of the Code to
own stock possessing five percent or more of the total combined voting power or
value of all classes of stock of the Company or any Subsidiary.
Sec. 2.08 "Employer" means the Company and each Subsidiary.
Sec. 2.09 "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and as the same may hereafter be amended.
Sec. 2.10 "Market Value" means the last price for the Stock as reported on
the Nasdaq National Market for the date of reference. If there was no such price
reported for the date of reference, "Market Value" means the "Market Value" as
of the date next preceding the date of reference for which such price was
reported.
Sec. 2.11 "Participant" means each Eligible Employee who elects to
participate in the Plan.
Sec. 2.12 "Plan" means the Edgewater Technology, Inc. 1999 Employee Stock
Purchase Plan, as the same is set forth herein and as the same may hereafter be
amended.
Sec. 2.13 "Purchase Agreement" means the instrument prescribed by the
Committee pursuant to which an Eligible Employee may enroll as a Participant and
subscribe for the purchase of shares of Stock on the terms and conditions
offered by the Company. The Purchase Agreement also is intended to evidence the
Company's offer of an option to the Eligible Employee to purchase Stock on the
terms and conditions set forth therein and herein.
Sec. 2.14 "Purchase Date" means December 31, 1999 and the last day of each
Purchase Period ending thereafter.
Sec. 2.15 "Purchase Period " means, beginning October 1, 1999, each
calendar quarter or other period specified by the Board of Directors during
which the Participant's stock purchase is funded through payroll deduction
accumulations.
Sec. 2.16 "Stock" means the common stock of the Company.
Sec. 2.17 "Subsidiary " means any present or future corporation (i) which
constitutes a "subsidiary corporation" of the Company as that term is defined in
section 424 of the Code, and (ii) is designated as a participating entity in the
Plan by the Committee. Unless the Committee specifically designates otherwise, a
Canadian or other foreign subsidiary shall not be considered a Subsidiary for
purposes of the Plan, and employees of such a subsidiary shall not be Eligible
Employees.
ARTICLE III
Admission to Participation
Sec. 3.01 Initial Participation. Any Eligible Employee may elect to be
participate in the Plan and may become a Participant by executing and filing
with the Committee a Purchase Agreement at such time in advance of the effective
date of the election as the Committee shall prescribe. An Eligible Employee's
initial election to participate in the Plan may be made at any time after he or
she first becomes eligible to participate in the Plan and shall be effective as
soon as practicable after the Eligible Employee submits the necessary
documentation to the Committee. After an Eligible Employee has first become a
Participant in the Plan, subsequent elections to participate in the Plan shall
be made pursuant to Section 3.03. A Participant's Purchase Agreement shall
remain in effect until modified or canceled in accordance with the further terms
of this Plan, as hereinafter set forth.
Sec. 3.02 Discontinuance of Participation. A Participant may voluntarily
cease his or her participation in the Plan and stop payroll deductions at any
time by filing a notice of cessation of participation on such form and at such
time in advance of the effective date as the Committee shall prescribe.
Notwithstanding anything in the Plan to the contrary, if a Participant ceases to
be an Eligible Employee, his or her participation automatically shall cease and
no further purchase of Stock shall be made for such Participant hereunder.
Sec. 3.03 Readmission to Participation. Any Eligible Employee who has
previously been a Participant, who has discontinued participation (whether by
cessation of eligibility or otherwise), and who wishes to be reinstated as a
Participant may again become a Participant by executing and filing with the
Committee a new Purchase Agreement. Reinstatement to Participant status shall be
effective as of any Election Date, provided the Participant files such new
Purchase Agreement with the Committee at such time in advance of such Election
Date as the Committee shall prescribe.
ARTICLE IV
Stock Purchase and Resale
Sec. 4.01 Reservation of Shares. There shall be 700,000 shares of Stock
reserved for issuance under the Plan, plus any shares of Stock that were
authorized for issuance under the Company's prior Employee Stock Purchase Plan
(which terminates after the end of the purchase period ending
September 30, 1999) and were not issued under that Plan, subject to adjustment
in accordance with the antidilution provisions hereinafter set forth. Except as
provided in Section 5.02 hereof, the aggregate number of shares of Stock that
may be purchased under the Plan shall not exceed the number of shares of Stock
reserved for the Plan.
Sec. 4.02 Limitation on Shares Available.
(a) Subject to the limitations of Section 4.04, the maximum
number of shares of Stock that may be purchased for each Participant on a
Purchase Date is the lesser
of (a) the number of whole and fractional shares of Stock that can be purchased
by applying the full balance of the Participant's withheld funds to the purchase
of shares of Stock at the Purchase Price, or (b) the Participant's proportionate
part of the maximum number of shares of Stock available under the Plan, as
stated in Section 4.01.
(b) Notwithstanding the foregoing, if any person entitled to
purchase shares pursuant to any offering under the Plan would be deemed for
purposes of section 423(b)(3) of the Code to own stock (including any number of
shares of Stock that such person would be entitled to purchase under the Plan)
possessing five percent or more of the total combined voting power or value of
all classes of stock of Company, the maximum number of shares of Stock that such
person shall be entitled to purchase pursuant to the Plan shall be reduced to
that number which, when added to the number of shares of stock that such person
is deemed to own (excluding any number of shares of Stock that such person would
be entitled to purchase under the Plan), is one less than such five percent. Any
amounts withheld from a Participant's compensation that cannot be applied to the
purchase of Stock by reason of the foregoing limitation shall be returned to the
Participant as soon as practicable.
Sec. 4.03 Purchase Price of Shares. The Purchase Price per share of the
Stock sold to Participants pursuant to any offering hereunder shall be the lower
of (i) 85% of the Market Value per share on the first day of the Purchase Period
or (ii) 85% of the Market Value per share on the Purchase Date. Notwithstanding
the foregoing, the Board of Directors may determine that the Purchase Price
shall be the Market Value, or a percentage of the Market Value on either of such
dates or the lower of such dates, so long as such percentage shall not be lower
than 85% of such Market Value.
Sec. 4.04 Exercise of Purchase Privilege.
(a) Each Participant shall be granted an option to purchase
shares of Stock as of the first day of each Purchase Period at the Purchase
Price specified in Section 4.03. The option shall continue in effect through the
Purchase Date for the Purchase Period. Subject to the provisions of Section 4.02
above and Sections 4.04(b) and 4.04(d) below, on each Purchase Date, the
Participant shall be automatically deemed to have exercised his or her option to
purchase shares of Stock on the Purchase Date, unless he or she notifies the
Committee, in such manner and at such time in advance of the Purchase Date as
the Committee shall prescribe, of his or her desire not to make such purchase.
(b) The maximum number of shares which a Participant may purchase
during a Purchase Period is 4,000 shares, adjusted as described in Section 5.02
and subject to Section 4.04(d) below, or such other number as the Committee
establishes before the beginning of the Purchase Period.
(c) There shall be purchased for the Participant on such Purchase
Date at the Purchase Price for such Purchase Period the largest number of whole
and fractional shares of Stock as can be purchased with the amounts withheld
from the Participant's compensation during the Purchase Period. Each such
purchase shall be deemed to have occurred on the Purchase Date occurring at the
close of the Purchase Period for which the purchase was made.
(d) Notwithstanding the foregoing, a Participant may not purchase
shares of Stock having an aggregate Market Value of more than $25,000,
determined at the beginning of each Purchase Period, for any calendar year in
which one or more such offerings are outstanding at any time, and a Participant
may not purchase a share of Stock under any offering after the expiration of the
Purchase Period for such offering.
Sec. 4.05 Payroll Deductions. Each Participant shall authorize payroll
deductions from his or her compensation for the purpose of funding the purchase
of Stock pursuant to his or her Purchase Agreement. In the Purchase Agreement,
each Participant shall authorize an after-tax payroll deduction from each
payment of his compensation during a Purchase Period, of an amount not less than
$10 per paycheck ($20 for any Participant on a monthly payroll period) and not
more than 10% of such Participant's compensation. A Participant may change the
deduction to any permissible level effective as of any Election Date. Such
change shall be made by the Participant's filing with the Committee a notice in
such form and at such time in advance of the date on which such change is to be
effective as the Committee shall prescribe.
Sec. 4.06 Payment for Stock. The Purchase Price for all shares of Stock
purchased by a Participant under the Plan shall be paid out of the Participant's
authorized payroll deductions. All funds received or held by the Company under
the Plan are general assets of the Company, free of any trust or other
restriction, and may be used for any corporate purpose.
Sec. 4.07 Share Ownership; Issuance of Certificates.
(a) The shares of Stock purchased by a Participant on a Purchase
Date shall, for all purposes, be deemed to have been issued or sold at the close
of business on such Purchase Date. Prior to that time, none of the rights or
privileges of a shareholder of the Company shall inure to the Participant with
respect to such shares of Stock. All the shares of Stock purchased under the
Plan shall be delivered by the Company in a manner as determined by the
Committee.
(b) The Committee, in its sole discretion, may determine that the
shares of Stock shall be delivered by the Company by (i) issuing and delivering
to the Participant a certificate for the number of shares of Stock purchased by
such Participant on a
Purchase Date or during a calendar year or other period determined by the
Committee, (ii) issuing and delivering a certificate or certificates for the
number of shares of Stock purchased by all Participants on a Purchase Date or
during a calendar year or other period determined by the Committee to a firm
which is a member of the National Association of Securities Dealers, as selected
by the Committee from time to time, which shares shall be maintained by such
firm in separate brokerage accounts of each Participant, or (iii) issuing and
delivering a certificate or certificates for the number of shares of Stock
purchased by all Participants on a Purchase Date or during the calendar year or
other period determined by the Committee to a bank or trust company or affiliate
thereof, as selected by the Committee from time to time, which shares may be
held by such bank or trust company or affiliate in "street name", but with
separate accounts maintained by such entity for each Participant reflecting such
Participant's whole share interests in the Stock. Each certificate or account,
as the case may be, may be in the name of the Participant or, if he or she
designates on the Participant's Purchase Agreement, in the Participant's name
jointly with the Participant's spouse, with right of survivorship. A Participant
who is a resident of a jurisdiction that does not recognize such joint tenancy
may have a certificate or account in the Participant's name as tenant in common
with the Participant's spouse, without right of survivorship. Such designation
may be changed by filing notice thereof.
(c) In addition to any restrictions or limitations on the resale
of Stock purchased under the Plan set forth in Section 4.08 hereof or otherwise
hereunder, the Committee, in its sole discretion, may impose such restrictions
or limitations, as it shall determine, on the resale of Stock, the issuance of
individual stock certificates or withdrawal from any shareholder accounts
established for a Participant pursuant to the terms hereof.
(d) Any dividends payable with respect to whole or fractional
shares of Stock credited to a shareholder account of a Participant established
pursuant to Section 4.07(b) hereof will be reinvested in shares of Stock and
credited to such Participant's account. Such reinvestment shall be made based on
the Market Value of the Stock at the date of the reinvestment, with no discount
from Market Value.
Sec. 4.08 Withdrawal of Shares or Resale of Stock.
(a) This Subsection (a) shall be effective on or after June 1,
2002. A Participant may request a withdrawal or order the sale of shares of
Stock from any shareholder account established pursuant to Section 4.07(b)
hereof at any time by making a request in such form and at such time as the
Committee shall prescribe. In the event a Participant terminates his or her
employment with all Employers or otherwise ceases to be an Eligible Employee, he
or she shall receive a distribution of his or her shares of Stock held in any
shareholder account established pursuant to Section 4.07(b), or he or she may
elect to have such shares of Stock sold in accordance with such procedures as
the Committee shall prescribe.
(b) This Subsection (b) shall be effective prior to June 1, 2002.
A Participant may not sell any shares of Stock purchased hereunder or withdraw
his or her shares of Stock from any shareholder account established pursuant to
Section 4.07(b) hereof prior to the first anniversary of the Purchase Date on
which the shares were purchased. After the first anniversary of the Purchase
Date for shares of Stock, the Participant may request a withdrawal of those
shares or order the sale of those shares at any time by making a request in such
form and at such time as the Committee shall prescribe. In the event a
Participant terminates his or her employment with all Employers or otherwise
ceases to be an Eligible Employee, he or she shall receive a distribution of his
or her shares of Stock held in any shareholder account established pursuant to
Section 4.07(b) after the first anniversary of the Purchase Date on which the
shares were purchased or, after such first anniversary, he or she may elect to
have such shares of Stock sold in accordance with such procedures as the
Committee shall prescribe.
(c) If a Participant is to receive a withdrawal or distribution
of shares of Stock, the withdrawal or distribution shall be paid in whole shares
of Stock, with fractional shares paid in cash.
ARTICLE V
Special Adjustments
Sec. 5.01 Shares Unavailable. If, on any Purchase Date, the aggregate funds
available for the purchase of Stock would purchase a number of shares in excess
of the number of shares of Stock then available for purchase under the Plan, the
following events shall occur:
(a) The number of shares of Stock that would otherwise be
purchased by each Participant shall be proportionately reduced on the Purchase
Date in order to eliminate such excess; and
(b) The Plan shall automatically terminate immediately after the
Purchase Date as of which the supply of available shares is exhausted.
Sec. 5.02 Anti-Dilution Provisions. The aggregate number of shares of Stock
reserved for purchase under the Plan, as hereinabove provided, and the
calculation of the Purchase Price per share may be appropriately adjusted to
reflect any increase or decrease in the number of issued shares of Stock
resulting from a subdivision or consolidation of shares or other capital
adjustment, or the payment of a stock dividend, or other increase or decrease in
such shares, if effected without receipt of consideration by the Company. Any
such adjustment shall be made by the Committee acting with the consent of, and
subject to the approval of, the Board of Directors.
Sec. 5.03 Effect of Certain Transactions. Subject to any required action by
the shareholders, if the Company shall be the surviving or resulting corporation
in any merger or consolidation, any offering hereunder shall pertain to and
apply to the shares of stock of the Company. However, in the event of a
dissolution or liquidation of the Company, or of a
merger or consolidation in which the Company is not the surviving or resulting
corporation, the Plan and any offering hereunder shall terminate upon the
effective date of such dissolution, liquidation, merger or consolidation, and
the balance of any amounts withheld from the Participant's compensation, which
had not by such time been applied to the purchase of stock shall be returned to
the Participant.
ARTICLE VI
Miscellaneous.
Sec. 6.01 Non-Alienation. The right to purchase shares of Stock under the
Plan is personal to the Participant, is exercisable only by the Participant
during the Participant's lifetime except as hereinafter set forth, and may not
be assigned or otherwise transferred by the Participant. Notwithstanding the
foregoing, there shall be delivered to the executor, administrator or other
personal representative of a deceased Participant such shares of Stock and such
residual amounts as may remain to the Participant's credit from amounts withheld
from the Participant's compensation as of the Purchase Date occurring at the
close of the period in which the Participant's death occurs, including shares of
Stock purchased as of that date or prior thereto with moneys withheld from the
Participant's compensation.
Sec. 6.02 Administrative Costs. The Company shall pay all administrative
expenses associated with the operation of the Plan.
Sec. 6.03 The Committee. The Board of Directors shall appoint a Committee,
which shall have the authority and power to administer the Plan and to make,
adopt, construe, and enforce rules and regulations not inconsistent with the
provisions of the Plan. The Committee shall adopt and prescribe the contents of
all forms required in connection with the administration of the Plan, including,
but not limited to, the Purchase Agreement, payroll withholding authorizations,
withdrawal documents, and all other notices required hereunder. The Committee
shall have the fullest discretion permissible under law in the discharge of its
duties. The Committee's interpretations and decisions in respect of the Plan,
the rules and regulations pursuant to which it is operated, and the rights of
Participants hereunder shall be final and conclusive.
Sec. 6.04 Withholding of Taxes. All acquisitions of Stock under the Plan
shall be subject to applicable federal, state and local tax withholding
requirements if the Internal Revenue Service or other taxing authority requires
such withholding. The Company may require that Participants pay to the Company
(or make other arrangements satisfactory to the Company for the payment of) the
amount of any federal, state or local taxes that the Company is required to
withhold with respect to the purchase of Stock or the sale of Stock acquired
under the Plan, or the Company may deduct from the Participant's wages or other
compensation the amount of any withholding taxes dues with respect to the
purchase of Stock or the sale of Stock acquired under the Plan.
Sec. 6.05 Amendment of the Plan. The Board of Directors (or its delegate)
may amend or terminate the Plan at any time; provided, however, that the Board
of Directors (or its delegate) shall not amend the Plan without stockholder
approval if such approval is required by section 423 of the Code.
Sec. 6.06 Expiration and Termination of the Plan. The Plan shall continue
in effect for 10 years from the Effective Date, unless terminated prior thereto
pursuant to the provisions of the Plan or pursuant to action by the Board of
Directors, which shall have the right to terminate the Plan at any time without
prior notice to any Participant and without liability to any Participant. Upon
the expiration or termination of the Plan, the balance, if any, then standing to
the credit of each Participant from amounts withheld from the Participant's
compensation which had not, by such time, been applied to the purchase of Stock
shall be refunded to the Participant.
Sec. 6.07 Repurchase of Stock. The Company shall not be required to
purchase or repurchase from any Participant any of the shares of Stock that the
Participant acquired under the Plan.
Sec. 6.08 Notice. A Purchase Agreement and any notice that a Participant
files pursuant to the Plan shall be on the form prescribed by the Committee and
shall be effective only when received by the Committee. Delivery of such forms
may he made by hand or by certified mail, sent postage prepaid, to Edgewater
Technology, Inc., 20 Harvard Mill Square, Wakefield MA 81880 Attention: Employee
Stock Purchase Plan Administrator. Delivery by any other mechanism shall be
deemed effective at the option and discretion of the Committee.
Sec. 6.09 Government Regulation. The Company's obligation to sell and to
deliver the Stock under the Plan is at all times subject to all approvals of any
governmental authority required in connection with the authorization, issuance,
sale or delivery of such Stock.
Sec. 6.10 Headings, Captions, Gender. The headings and captions herein are
for convenience of reference only and shall not be considered as part of the
text. The masculine shall include the feminine, and vice versa.
Sec. 6.11 Severability of Provisions, Prevailing Law. The provisions of the
Plan shall be deemed severable. In the event any such provision is determined to
be unlawful or unenforceable by a court of competent jurisdiction or by reason
of a change in an applicable statute, the Plan shall continue to exist as though
such provision had never been included therein (or, in the case of a change in
an applicable statute, had been deleted as of the date of such change). The Plan
shall be governed by the laws of the State of Delaware to the extent such laws
are not in conflict with, or superseded by, federal law.
- - - - - - - - - -
The Plan was approved by the Company's stockholders on May 22, 2002.
The Plan was amended by the Board effective June 28, 2000 to change the
name of the Plan to the "Edgewater Technology, Inc. 1999 Employee Stock Purchase
Plan, which amendment did not require stockholder approval. Section 4.08 of the
Plan was amended by the Board on May 22, 2002, which amendment did not require
stockholder approval.