Exhibit 10
VIDEOSERVER, INC.
1995 EMPLOYEE STOCK PURCHASE PLAN
(as amended on May 12, 1999)
1. Definitions. As used in this 1995 Employee Stock Purchase Plan of
VideoServer, Inc., the following terms have the respective meanings ascribed to
them below:
(a) Base Compensation means annual or annualized base compensation,
exclusive of overtime, bonuses, contributions to employee benefit plans, and
other fringe benefits.
(b) Beneficiary means, with respect to any Participating Employee, the
person designated as beneficiary on such Participating Employee's Membership
Agreement or other form provided by the Company for such purpose, or if no such
beneficiary is named, the person to whom the Option is transferred by will or
under the applicable laws of descent and distribution.
(c) Board means the board of directors of the Company, except that if
and for so long as the board of directors of the Company has delegated its
authority with respect to the Plan to the Committee pursuant to Section 4, then
all references in this Plan to the Board will be deemed to refer to the
Committee acting in such capacity.
(d) Code means the Internal Revenue Code of 1986, as amended.
(e) Company means VideoServer, Inc., a Delaware corporation.
(f) Committee means the Compensation Committee of the Board.
(g) Effective Date means the effective date of the Company's
registration statement on Form S-1, File No. 33-91132, under the Securities Act
of 1933, as amended.
(h) Eligible Employee means a person who is eligible under the
provisions of Section 7 to receive an Option as of a particular Offering
Commencement Date.
(i) Employer means, as to any particular Offering Period, the Company
and any Related Corporation that is designated by the Board as a corporation
whose Eligible Employees are to receive Options as of that Period's Offering
Commencement Date.
(j) Market Value means, as of the Offering Commencement Date of the
first Offering Period under this Plan, the initial public offering price at
which shares of Stock are offered to the public, as specified in the Company's
registration statement on Form S-1 referred to above, and as of any other
particular date, (i) if the Stock is listed on a national securities exchange,
the closing price of the Stock on such exchange on such date, (ii) if the Stock
is not listed on a national securities exchange but is quoted through the
National Association of Securities Dealers, Inc. Automated Quotation ("NASDAQ")
National Market System or any successor thereto, the last sale price of the
Stock so quoted on such date, and (iii) if the Stock is not listed on a national
securities exchange or quoted through the NASDAQ National Market System or any
successor thereto, but is quoted through NASDAQ other than through the National
Market System, or is otherwise publicly traded, the average of the closing bid
and asked prices of the Stock so quoted or otherwise reported on such date.
(k) Membership Agreement means an agreement whereby a Participating
Employee authorizes an Employer to withhold payroll deductions from his or her
Base Compensation.
(l) Offering Commencement Date means the first business day of an
Offering Period on which Options are granted to Eligible Employees.
(m) Offering Period means (i) in the case of the initial Offering
Period hereunder, the period running from the Effective Date to January 31,
1996, and (ii) in the case of each subsequent Offering Period, a semi-annual
period running from February 1 to the next following July 31 or from August 1 to
the next following January 31; during which options will be offered under the
Plan pursuant to a determination by the Board.
(n) Offering Termination Date means the last business day of an
Offering Period, on which Options must, if ever, be exercised.
(o) Option means an option to purchase shares of Stock granted under
the Plan.
(p) Option Shares means shares of Stock purchasable under an Option.
(q) Participating Employee means an Eligible Employee to whom an Option
is granted.
(r) Plan means this 1995 Employee Stock Purchase Plan of the Company,
as amended from time to time.
(s) Related Corporation means any corporation that is or during the
term of the Plan becomes a parent corporation of the Company, as defined in
Section 424(e) of the Code, or a subsidiary corporation of the Company, as
defined in Section 424(f) of the Code.
(t) Stock means the common stock, $0.01 par value per share, of the
Company, to be authorized upon stockholder approval of certain amendments to the
Company's Amended and Restated Certificate of Incorporation, authorized by the
Board on April 12, 1995, authorizing a one-for-two reverse stock split and
setting the par value of the Company's Common Stock at $0.01, and the filing
with the Delaware Secretary of State of an appropriate certificate of amendment
to such Amended and Restated Certificate of Incorporation effecting such
changes.
2. Purpose of the Plan. The Plan is intended to encourage ownership of
Stock by employees of the Company and any Related Corporations and to provide an
additional incentive for the employees to promote the success of the business of
the Company and any Related Corporations. It is intended that the Plan qualify
as an "employee stock purchase plan" within the meaning of Section 423 of the
Code.
3. Term of the Plan. The Plan will become effective on the Effective
Date. No Option may be granted under the Plan after January 31, 2005.
4. Administration of the Plan. The Plan will be administered by the
Board. The Board will determine which semi-periods will be Offering Periods in
accordance with Section 8, and which (if any) Related Corporations will be
Employers as to each Offering Period. The Board will have authority to interpret
the Plan, to prescribe, amend, and rescind rules and regulations relating to the
Plan, to determine the terms of Options granted under the Plan, and to make all
other determinations necessary or advisable for the administration of the Plan.
All determinations of the Board under the Plan will be final and binding as to
all persons having or claiming any interest in or arising out of the Plan. The
Board may delegate all or any portion of its authority with respect to the Plan
to the Committee, and thereafter until such delegation is revoked by the Board
all powers under the Plan delegated to the Committee will be exercised by the
Committee.
5. Termination and Amendment of Plan. The Board may terminate or amend
the Plan at any time; provided, however, that the Board may not, without
approval by the holders of a majority of the outstanding shares of Stock,
increase the maximum number of shares of Stock purchasable under the Plan or
change the description of employees or classes of employees eligible to receive
Options. Without limiting the generality of the foregoing, but subject to the
foregoing proviso, the Board may amend the Plan from time to time to increase or
decrease the length of any future Offering Periods and to make all required
conforming changes to the Plan. No termination or amendment of the Plan may
adversely affect the rights of a Participating Employee with respect to any
Option held by the Participating Employee prior to such termination or
amendment.
6. Shares of Stock Subject to the Plan. No more than an aggregate of
600,000 shares of Stock may be issued or delivered pursuant to the exercise of
Options granted under the Plan (such maximum number of shares taking into
account the effects of the one-for-two reverse stock split referred to above,
and subject to automatic proportionate adjustment in the event of any other
stock dividend, stock split, stock combination, recapitalization, or other
similar event affecting the Common Stock and to adjustments made in accordance
with Section 9.7). Shares to be delivered upon exercise of Options may be either
shares of Stock that are authorized but unissued or shares of Stock held by the
Company in its treasury. If an Option expires or terminates for any reason
without having been exercised in full, the unpurchased shares subject to the
Option will become available for other Options granted under the Plan. At all
times during which Options are outstanding, the Company will reserve and keep
available sufficient shares of Stock to cover the exercise in full of such
Options, and will pay all fees and expenses incurred by the Company in
connection therewith.
7. Persons Eligible to Receive Options. Each employee of an Employer
will be granted an Option on each Offering Commencement Date on which such
employee meets all of the following requirements:
(a) The employee is customarily employed by an Employer for more than
twenty hours per week and for more than five months per calendar year.
(b) The employee will not, after grant of the Option, own Stock
possessing five percent or more of the total combined voting power or value of
all classes of stock of the Company or of any Related Corporation. For purposes
of this paragraph (b), the rules of Section 424(d) of the Code will apply in
determining the Stock ownership of the employee, and Stock that the employee may
purchase under outstanding options will be treated as Stock owned by the
employee.
(c) Upon grant of the Option, the employee's rights to purchase Stock
under all employee stock purchase plans (as defined in Section 423(b) of the
Code) of the Company and its Related Corporations will not accrue at a rate
exceeding $25,000 of Market Value of Stock (determined as of the grant date) for
each calendar year in which such Option is outstanding at any time. The accrual
of rights to purchase Stock will be determined in accordance with Section
423(b)(8) of the Code.
8. Offering Commencement Dates. Options will be granted on the first
business day of the period running from the Effective Date to January 31, 1996,
and of each semi-annual period running from February 1 to the next following
July 31 or from August 1 to the next following January 31, that is designated by
the Board as an Offering Period. Following the initial Offering Period under the
Plan (i.e., the period running from the Effective Date to January 31, 1996), all
succeeding semi-annual periods described above will be deemed Offering Periods
without need of further Board action unless and until contrary action will have
been taken by the Board prior to the beginning of what would otherwise be an
Offering Period.
9. Terms and Conditions of Options.
9.1 General. All Options granted on a particular Offering Commencement
Date will comply with the terms and conditions set forth in Sections 9.2 through
9.11. Subject to Sections 7(c) and 9.9, each Option granted on a particular
Offering Commencement Date will entitle the Participating Employee to purchase
that number of shares of Stock equal to the result of $12,500 (or such lesser
amount as is selected by the Board, prior to the applicable Offering
Commencement Date, and applied uniformly during the Offering Period then
beginning) divided by the Market Value of one such share on the Offering
Commencement Date and then rounded down, if necessary, to the nearest whole
number.
9.2 Purchase Price. The purchase price of each Option Share will be 85%
of the lesser of (a) the Market Value of a share of Stock as of the Offering
Commencement Date or (b) the Market Value of a share of Stock as of the Offering
Termination Date.
9.3 Restrictions on Transfer.
(a) Options may not be transferred otherwise than by will or pursuant
to applicable laws of descent and distribution. During the lifetime of a
Participating Employee, such Participating Employee's Options may not be
exercised by anyone other than such Participating Employee.
(b) The Optionee will agree in the Membership Agreement to notify the
Company of any transfer of Option Shares within two years of the Offering
Commencement Date for such Option Shares. The Company will have the right to
place a legend on all stock certificates representing Option Shares instructing
the transfer agent to notify the Company of any transfer of such Option Shares.
The Company will also have the right to place a legend on all stock certificates
representing Option Shares setting forth or referring to the restriction on
transferability of such Option Shares.
9.4 Expiration. Each Option will expire at the close of business on the
Offering Termination Date or on such earlier date as may result from the
operation of Sections 9.5 or 9.6.
9.5 Termination of Employment of Optionee. If a Participating Employee
ceases for any reason (other than death) to be continuously employed by an
Employer, whether due to voluntary severance, involuntary severance, transfer,
or disaffiliation of a Related Corporation with the Company, his or her Option
will immediately expire, and the Participating Employee's accumulated payroll
deductions will be returned by the Company. For purposes of this Section 9.5, a
Participating Employee will be deemed to be employed throughout any leave of
absence for military service, illness, or other bona fide purpose that does not
exceed the longer of ninety days or the period during which the Participating
Employee's reemployment rights are guaranteed by statute (including without
limitation the Veterans Reemployment Rights Act or similar statute relating to
military service) or by contract. If the Participating Employee does not return
to active employment prior to the termination of such period, his or her
employment will be deemed to have ended on the ninety-first day of such leave of
absence (or such longer period guaranteed by statute or by contract as provided
above).
9.6 Death of Optionee. If a Participating Employee dies, his or her
Beneficiary will be entitled to withdraw the Participating Employee's
accumulated payroll deductions, or to purchase shares on the Offering
Termination Date to the extent that the Participating Employee would be so
entitled had he or she continued to be employed by an Employer. The number of
shares purchasable will be limited by the amount of the Participating Employee's
accumulated payroll deductions as of the date of his or her death. Accumulated
payroll deductions will be applied by the Company toward the purchase of shares
only if the Participating Employee's Beneficiary submits to the Employer not
later than the Offering Termination Date a written request that the deductions
be so applied. Accumulated payroll deductions not withdrawn or applied to the
purchase of shares will be delivered by the Company to the Beneficiary within a
reasonable time after the Offering Termination Date.
9.7 Capital Changes Affecting the Stock. In the event that, between
the Offering Commencement Date and the Offering Termination Date with respect
to an Option, a stock dividend is paid or becomes payable in respect of
the Stock, or there occurs a split-up or contraction in the number of shares of
Stock, the number of shares of Stock for which the Option may thereafter be
exercised and the price to be paid for each such share will both be
proportionately adjusted. In the event that, after the Offering Commencement
Date, there occurs a reclassification or change of outstanding shares of Stock
or a consolidation or merger of the Company with or into another corporation or
a sale or conveyance, substantially as a whole, of the property of the Company,
the Participating Employee will be entitled on the Offering Termination Date to
receive shares of Stock or other securities equivalent in kind and value to the
shares of Stock he or she would have held if he or she had exercised the Option
in full immediately prior to such reclassification, change, consolidation,
merger, sale, or conveyance and had continued to hold such shares (together with
all other shares and securities thereafter issued in respect thereof) until the
Offering Termination Date. In the event that there is to occur a
recapitalization involving an increase in the par value of the Stock that would
result in a par value exceeding the exercise price under an outstanding Option,
the Company will notify the affected Participating Employee of such proposed
recapitalization immediately upon its being recommended by the Board to the
Company's shareholders, after which the Participating Employee will have the
right to exercise his or her Option prior to such recapitalization; if the
Participating Employee fails to exercise the Option prior to recapitalization,
the exercise price under the Option will be appropriately adjusted. In the event
that, after the Offering Commencement Date, 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 will terminate, but the Participating
Employee will have the right to exercise his or her Option prior to such
dissolution or liquidation.
9.8 Payroll Deductions. A Participating Employee may purchase shares
under his or her Option during any particular Offering Period by completing and
returning to the Company at least 15 days prior to the beginning of such
Offering Period a Membership Agreement indicating a percentage (which will be a
full integer between two and ten, inclusive) of his or her Base Compensation
that is to be withheld each pay period (not to exceed an aggregate of $12,500 in
any Offering Period). No Participating Employee will be permitted to change the
percentage of Base Compensation withheld during an Offering Period. However, not
more than once per Offering Period the Participating Employee may cancel his or
her Agreement, and withdraw all (but not less than all) of his or her
accumulated payroll deductions, by submitting a written request therefor to the
Company not later than the close of business on the Offering Termination Date.
The percentage of Base Compensation withheld may be changed from one Offering
Period to another.
9.9 Exercise of Options. On the Offering Termination Date the
Participating Employee may purchase the number of shares purchasable by his
or her accumulated payroll deductions, or if less, the maximum number of shares
subject to the Option as provided in Section 9.1, provided that:
(a) If the total number of shares that all Optionees elect to purchase,
together with any shares already purchased under the Plan, exceeds the total
number of shares that may be purchased under the Plan pursuant to Section 6, the
number of shares that each Optionee is permitted to purchase will be decreased
pro rata based on the Participating Employee's accumulated payroll deductions in
relation to all accumulated payroll deductions currently being withheld under
the Plan.
(b) If the number of shares purchasable includes a fraction, such
number will be adjusted to the next smaller whole number and the purchase price
will be adjusted accordingly.
Accumulated payroll deductions not withdrawn prior to the Offering Termination
Date will be automatically applied by the Company toward the purchase of Option
Shares, or to the extent in excess of the aggregate purchase price of the shares
then purchasable by the Participating Employee, refunded to the Participating
Employee, except that where such excess is less than the purchase price for a
single share of Stock on the Offering Termination Date, such excess will not be
refunded but instead will be carried over and applied to the purchase of shares
in the first following Offering Period (subject to the possibility of withdrawal
by the Participating Employee during such Offering Period in accordance with the
terms of the Plan).
9.10 Delivery of Stock. Except as provided below, within a reasonable
time after the Offering Termination Date, the Company will deliver or cause to
be delivered to the Participating Employee a certificate or certificates for the
number of shares purchased by the Participating Employee. A stock certificate
representing the number of Shares purchased will be issued in the participant's
name only, or if his or her Membership Agreement so specifies, in the name of
the employee and another person of legal age as joint tenants with rights of
survivorship. If any law or applicable regulation of the Securities and Exchange
Commission or other body having jurisdiction in the premises will require that
the Company or the Participating Employee take any action in connection with the
shares being purchased under the Option, delivery of the certificate or
certificates for such shares will be postponed until the necessary action will
have been completed, which action will be taken by the Company at its own
expense, without unreasonable delay. The Optionee will have no rights as a
shareholder in respect of shares for which he or she has not received a
certificate.
9.11 Return of Accumulated Payroll Deductions. In the event that the
Participating Employee or the Beneficiary is entitled to the return of
accumulated payroll deductions, whether by reason of voluntary withdrawal,
termination of employment, or death, or in the event that accumulated payroll
deductions exceed the price of shares purchased, such amount will be returned by
the Company to the Participating Employee or the Beneficiary, as the case may
be, not later than within a reasonable time following the Offering Termination
Date applicable to the Option Period in which such deductions were taken.
Accumulated payroll deductions held by the Company will not bear interest nor
will the Company be obligated to segregate the same from any of its other
assets.