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Exhibit 10.41
QUALCOMM INCORPORATED
2001 EMPLOYEE STOCK PURCHASE PLAN
1. ESTABLISHMENT, PURPOSE AND TERM OF PLAN.
1.1 ESTABLISHMENT. The QUALCOMM Incorporated 2001 Employee Stock
Purchase Plan (the "PLAN") is hereby established effective as of February 27,
2001 (the "EFFECTIVE DATE"), subject to the approval by Company shareholders.
1.2 PURPOSE. The purpose of the Plan is to advance the interests
of Company and its stockholders by providing an incentive to attract, retain and
reward Eligible Employees of the Participating Company Group and by motivating
such persons to contribute to the growth and profitability of the Participating
Company Group. The Plan provides such Eligible Employees with an opportunity to
acquire a proprietary interest in the Company through the purchase of Stock. The
Company intends that the Plan 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.
1.3 TERM OF PLAN. The Plan shall continue in effect until the
earlier of its termination by the Board or the date on which all of the shares
of Stock available for issuance under the Plan have been issued.
2. DEFINITIONS AND CONSTRUCTION.
2.1 DEFINITIONS. Any term not expressly defined in the Plan but
defined for purposes of Section 423 of the Code shall have the same definition
herein. Whenever used herein, the following terms shall have their respective
meanings set forth below:
(a) "BOARD" means the Board of Directors of the Company.
If one or more Committees have been appointed by the Board to administer the
Plan, "BOARD" also means such Committee(s).
(b) "CODE" means the Internal Revenue Code of 1986, as
amended, and any applicable regulations promulgated thereunder.
(c) "COMMITTEE" means the Compensation Committee or other
committee of the Board duly appointed to administer the Plan and having such
powers as shall be specified by the Board. Unless the powers of the Committee
have been specifically limited, the Committee shall have all of the powers of
the Board granted herein, including, without limitation, the power to amend or
terminate the Plan at any time, subject to the terms of the Plan and any
applicable limitations imposed by law.
(d) "COMPANY" means QUALCOMM Incorporated, a Delaware
corporation, or any Successor.
(e) "COMPENSATION" means, with respect to any Offering
Period, all salary, wages (including amounts elected to be deferred by the
employee, that would otherwise
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have been paid, under any cash or deferred arrangement established by the
Company) and overtime pay, but excluding commissions, bonuses, payments under
the 2-for 1 vacation program, profit sharing, the cost of employee benefits paid
for by the Company, education or tuition reimbursements, imputed income arising
under any Company group insurance or benefit program, traveling expenses,
business and moving expense reimbursements, income received in connection with
stock options, contributions made by the Company under any employee benefit
plan, and similar items of compensation. Compensation shall also include
payments while on a leave of absence during which participation continues
pursuant to Section 2.1(g) to such extent as may be provided by the Company's
leave policy.
(f) "ELIGIBLE EMPLOYEE" means an Employee who meets the
requirements set forth in Section 5 for eligibility to participate in the Plan.
(g) "EMPLOYEE" means a person treated as an employee of a
Participating Company for purposes of Section 423 of the Code. A Participant
shall be deemed to have ceased to be an Employee either upon an actual
termination of employment or upon the corporation employing the Participant
ceasing to be a Participating Company. For purposes of the Plan, an individual
shall not be deemed to have ceased to be an Employee while on any military leave
or other leave of absence approved by the Company of ninety (90) days or less.
If an individual's leave of absence exceeds ninety (90) days, the individual
shall be deemed to have ceased to be an Employee on the ninety-first (91st) day
of such leave unless the individual's right to reemployment with the
Participating Company Group is guaranteed either by statute or by contract.
(h) "FAIR MARKET VALUE" means, as of any date:
(i) If the Stock is listed on any established stock
exchange or traded on the Nasdaq National Market or the Nasdaq SmallCap Market,
the Fair Market Value of a share of Stock shall be the closing sales price for
such stock (or the closing bid, if no sales were reported) as quoted on such
exchange or market (or if the stock is traded on more than one exchange or
market, the exchange or market with the greatest volume of trading in the Stock)
on the last market trading day prior to the day of determination, as reported in
The Wall Street Journal or such other source as the Board deems reliable. In the
absence of such markets for the Stock, the Fair Market Value shall be determined
in good faith by the Board.
(ii) For purposes of this Plan, if the date as of
which the Fair Market Value is to be determined is not a market trading day,
then solely for the purpose of determining Fair Market Value such date shall be:
(A) in the case of the Offering Date, the first market trading day following the
Offering Date; (B) in the case of the Purchase Date, the last market trading day
prior to the Purchase Date.
(i) "OFFERING" means an offering of Stock as provided in
Section 6.
(j) "OFFERING DATE" means, for any Offering, the first day
of the Offering Period.
(k) "OFFERING PERIOD" means a period established in
accordance with Section 6.
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(l) "PARENT CORPORATION" means any present or future
"parent corporation" of the Company, as defined in Section 424(e) of the Code.
(m) "PARTICIPANT" means an Eligible Employee who has
become a participant in an Offering Period in accordance with Section 7 and
remains a participant in accordance with the Plan.
(n) "PARTICIPATING COMPANY" means the Company and any
Parent Corporation or Subsidiary Corporation designated by the Board as a
corporation the Employees of which may, if Eligible Employees, participate in
the Plan. The Board shall have the sole and absolute discretion to determine
from time to time which Parent Corporations or Subsidiary Corporations shall be
Participating Companies.
(o) "PARTICIPATING COMPANY GROUP" means, at any point in
time, the Company and all other corporations collectively which are then
Participating Companies.
(p) "PRIOR PLAN PURCHASE RIGHT" means, a purchase right
granted under the Company's 1991 Employee Stock Purchase Plan which is
outstanding on or after the date on which the Board adopts the Plan.
(q) "PURCHASE DATE" means, for any Offering, the last day
of the Offering Period; provided, however, that the Board in its discretion may
establish one or more additional Purchase Dates during any Offering Period.
(r) "PURCHASE PRICE" means the price at which a share of
Stock may be purchased under the Plan, as determined in accordance with Section
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(s) "PURCHASE RIGHT" means an option granted to a
Participant pursuant to the Plan to purchase such shares of Stock as provided in
Section 8, which the Participant may or may not exercise during the Offering
Period in which such option is outstanding. Such option arises from the right of
a Participant to withdraw any accumulated payroll deductions of the Participant
not previously applied to the purchase of Stock under the Plan and to terminate
participation in the Plan during an Offering Period, in accordance with such
rules and procedures as may be established by Board.
(t) "SPINOFF TRANSACTION" means a transaction in which the
voting stock of an entity in the Participating Company Group is distributed to
the shareholders of a parent corporation as defined by Section 424(e) of the
Code, of such entity.
(u) "STOCK" means the common stock of the Company, as
adjusted from time to time in accordance with Section 4.2.
(v) "SUBSCRIPTION AGREEMENT" means an agreement in such
form as specified by the Company which is delivered in written form or by
communicating with the Company in such other manner as the Company may
authorize, stating an Employee's election to participate in the Plan and
authorizing payroll deductions under the Plan from the Employee's Compensation.
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(w) "SUBSCRIPTION DATE" means the Offering Date of an
Offering Period, or such earlier date as the Company shall establish.
(x) "SUBSIDIARY CORPORATION" means any present or future
"subsidiary corporation" of the Company, as defined in Section 424(f) of the
Code.
(y) "SUCCESSOR" means a corporation into or with which the
Company is merged or consolidated or which acquires all or substantially all of
the assets of the Company and which is designated by the Board as a Successor
for purpose of the Plan.
2.2 CONSTRUCTION. Captions and titles contained herein are for
convenience only and shall not affect the meaning or interpretation of any
provision of the Plan. Except when otherwise indicated by the context, the
singular shall include the plural and the plural shall include the singular. Use
of the term "or" is not intended to be exclusive, unless the context clearly
requires otherwise.
3. ADMINISTRATION.
3.1 ADMINISTRATION BY THE BOARD. The Plan shall be administered
by the Board and its designees. Subject to the provisions of the Plan, the Board
shall determine all of the relevant terms and conditions of Purchase Rights;
provided, however, that all Participants granted Purchase Rights pursuant to an
Offering shall have the same rights and privileges within the meaning of Section
423(b)(5) of the Code in such Offering. All expenses incurred in connection with
the administration of the Plan shall be paid by the Company.
3.2 AUTHORITY OF OFFICERS. Any officer of the Company shall have
the authority to act on behalf of the Company with respect to any matter, right,
obligation, determination or election that is the responsibility of or that is
allocated to the Company herein, provided that the officer has actual authority
with respect to such matter, right, obligation, determination or election. Any
decision or determination of the Company made by an Officer having actual
authority with respect thereto, shall be final, binding and conclusive on the
Participating Company Group, any Participant, and all persons having an interest
in the Plan, or any Option granted hereunder, unless such Officer's decision or
determination is arbitrary or capricious, fraudulent, or made in bad faith.
3.3 POLICIES AND PROCEDURES ESTABLISHED BY THE COMPANY. The
Company may, from time to time, consistent with the Plan and the requirements of
Section 423 of the Code, establish, interpret change or terminate such rules,
guidelines, policies, procedures, limitations, or adjustments as deemed
advisable by the Company, in its discretion, for the proper administration of
the Plan, including, without limitation, (a) a minimum payroll deduction amount
required for participation in an Offering, (b) a limitation on the frequency or
number of changes permitted in the rate of payroll deduction during an Offering,
(c) an exchange ratio applicable to amounts withheld in a currency other than
United States dollars, (d) a payroll deduction greater than or less than the
amount designated by a Participant in order to adjust for the Company's delay or
mistake in processing a Subscription Agreement or in otherwise effecting a
Participant's election under the Plan or as advisable to comply with the
requirements
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of Section 423 of the Code, and (e) determination of the date and manner by
which the Fair Market Value of a share of Stock is determined for purposes of
administration of the Plan.
The Board's determination of the construction and interpretation of any
provision of the Plan, and any actions taken, and any decisions or
determinations made pursuant to the terms of the Plan, shall be final, binding
and conclusive on the Participating Company Group, any Participant, and any
person having an interest in the Plan or any Option granted hereunder unless the
Board's action, decision or determination is arbitrary or capricious,
fraudulent, or made in bad faith.
3.4 INDEMNIFICATION. In addition to such other rights of
indemnification as they may have as members of the Board or Officers or
Employees of the Participating Company Group, members of the Board and any
Officers or Employees of the Participating Company Group to whom authority to
act for the Board or the Company is delegated shall be indemnified by the
Company against all reasonable expenses, including attorneys' fees, actually and
necessarily incurred in connection with the defense of any action, suit or
proceeding, or in connection with any appeal therein, to which they or any of
them may be a party by reason of any action taken or failure to act under or in
connection with the Plan, or any right granted hereunder, and against all
amounts paid by them in settlement thereof (provided such settlement is approved
by independent legal counsel selected by the Company) or paid by them in
satisfaction of a judgment in any such action, suit or proceeding, except in
relation to matters as to which it shall be adjudged in such action, suit or
proceeding that such person is liable for gross negligence, bad faith or
intentional misconduct in duties; provided, however, that within sixty (60) days
after the institution of such action, suit or proceeding, such person shall
offer to the Company, in writing, the opportunity at its own expense to handle
and defend the same and to retain complete control over the litigation and/or
settlement of such suit, action or proceeding.
4. SHARES SUBJECT TO PLAN.
4.1 MAXIMUM NUMBER OF SHARES ISSUABLE. Subject to adjustment as
provided in Section 4.2, the maximum aggregate number of shares of Stock that
may be issued under the Plan shall be Twelve Million, Nine Hundred and Eight
Thousand, Three Hundred and Nine (12,908,309), less the number of shares issued
pursuant to exercise of a Prior Plan Purchase Right, and shall consist of
authorized but unissued or reacquired shares of Stock, or any combination
thereof. If an outstanding Purchase Right or Prior Plan Purchase Right for any
reason expires or is terminated or canceled, the shares of Stock allocable to
the unexercised portion of that Purchase Right or Prior Plan Purchase Right
shall again be available for issuance under the Plan.
4.2 ADJUSTMENTS FOR CHANGES IN CAPITAL STRUCTURE. In the event of
any stock dividend, stock split, reverse stock split, recapitalization,
combination, reclassification or similar change in the capital structure of the
Company, or in the event of any merger (including a merger effected for the
purpose of changing the Company's domicile), sale of assets or other
reorganization in which the Company is a party, appropriate adjustments shall be
made in the number and class of shares subject to the Plan, each Purchase Right,
and in the Purchase Price. If a majority of the shares of the same class as the
shares subject to outstanding Purchase Rights are exchanged for, converted into,
or otherwise become (whether or not pursuant to an
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Ownership Change Event) shares of another corporation (the "NEW SHARES"), the
Board may unilaterally amend the outstanding Purchase Rights to provide that
such Purchase Rights are exercisable for New Shares. In the event of any such
amendment, the number of shares subject to, and the Purchase Price of, the
outstanding Purchase Rights shall be adjusted in a fair and equitable manner, as
determined by the Board, in its discretion. Notwithstanding the foregoing, any
fractional share resulting from an adjustment pursuant to this Section 4.2 shall
be rounded down to the nearest whole number, and in no event may the Purchase
Price be decreased to an amount less than the par value, if any, of the stock
subject to the Purchase Right.
5. ELIGIBILITY.
5.1 EMPLOYEES ELIGIBLE TO PARTICIPATE. Each Employee of a
Participating Company is eligible to participate in the Plan and shall be deemed
an Eligible Employee, except any Employee who is either: (a) customarily
employed by the Participating Company Group for twenty (20) hours or less per
week (b) customarily employed by the Participating Company Group for not more
than five (5) months in any calendar year or (c) has not completed thirty (30)
days of service with a Participating Company, or such other service requirement,
up to a maximum of 2 years, which the Board may require.
5.2 EXCLUSION OF CERTAIN STOCKHOLDERS. Notwithstanding any
provision of the Plan to the contrary, no Employee shall be treated as an
Eligible Employee and granted a Purchase Right under the Plan if, immediately
after such grant, the Employee would own or hold options to purchase stock of
the Company or of any Parent Corporation or Subsidiary Corporation possessing
five percent (5%) or more of the total combined voting power or value of all
classes of stock of such corporation, as determined in accordance with Section
423(b)(3) of the Code. For purposes of this Section 5.2, the attribution rules
of Section 424(d) of the Code shall apply in determining the stock ownership of
such Employee.
5.3 DETERMINATION BY COMPANY. The Company shall determine in good
faith and in the exercise of its discretion whether an individual has become or
has ceased to be an Employee or an Eligible Employee and the effective date of
such individual's attainment or termination of such status, as the case may be.
For purposes of an individual's eligibility to participate in or other rights,
if any, under the Plan as of the time of the Company's determination, all such
determinations by the Company shall be final, binding and conclusive, unless the
Company's determination is arbitrary or capricious, fraudulent, or made in bad
faith notwithstanding that the Company or any court of law or governmental
agency subsequently makes a contrary determination.
6. OFFERINGS.
The Plan shall be implemented by sequential Offerings of
approximately six (6) months duration or such other duration as the Board shall
determine (an "OFFERING PERIOD"); provided, however, that the first Offering
Period (the "INITIAL OFFERING PERIOD") shall commence on July 1, 2001 and end on
March 31, 2002. Subsequent Offering Periods shall commence on or about April 1
and October 1 of each year and end on or about the next September 30 and March
31, respectively, occurring thereafter. Notwithstanding the foregoing, the
Board, in its sole and absolute discretion, may establish a different duration
for one or more Offering Periods
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or different commencing or ending dates for such Offering Periods including the
Initial Offering Period; provided, however, that no Offering Period may have a
duration exceeding twenty-seven (27) months.
7. PARTICIPATION IN THE PLAN.
7.1 INITIAL PARTICIPATION. An Eligible Employee may become a
Participant in an Offering Period by delivering a properly completed
Subscription Agreement, in accordance with such rules and procedures as may be
specified by the Company. An Eligible Employee who does not deliver a properly
completed Subscription Agreement to the Company in the required time period
shall not participate in the Plan for that Offering Period. Furthermore, the
Eligible Employee may not participate in a subsequent Offering Period unless a
properly completed Subscription Agreement is delivered to the Company on or
before the Subscription Date for such subsequent Offering Period.
7.2 CONTINUED PARTICIPATION. A Participant shall automatically
participate in the next Offering Period commencing immediately after the
Purchase Date of each Offering Period in which the Participant participates
provided that the Participant remains an Eligible Employee on the Offering Date
of the new Offering Period and has not either (a) withdrawn from the Plan
pursuant to Section 12.1 or (b) terminated employment as provided in Section 13.
A Participant who may automatically participate in a subsequent Offering Period,
as provided in this Section, is not required to deliver any additional
Subscription Agreement for the subsequent Offering Period in order to continue
participation in the Plan. However, a Participant may deliver a new Subscription
Agreement for a subsequent Offering Period in accordance with the procedures set
forth in Section 7.1 if the Participant desires to change any of the elections
contained in the Participant's then effective Subscription Agreement.
8. RIGHT TO PURCHASE SHARES.
8.1 GRANT OF PURCHASE RIGHT.
(i) Except as set forth below (or as otherwise
specified by the Board prior to the Offering Date), on the Offering Date of each
Offering Period, each Participant in that Offering Period shall be granted
automatically a Purchase Right consisting of an option to purchase that number
of whole shares of Stock determined by either dividing fifteen percent (15%) of
such Participant's Compensation during the Offering Period by the Purchase Price
of a share of Stock for such Offering Period or by dividing Twelve Thousand Five
Hundred Dollars ($12,500) by the Fair Market Value of a share of Stock on such
Offering Date, whichever is less. In connection with any Offering made under
this Plan, the Board or the Committee may specify a maximum number of shares of
Common Stock which may be purchased by any employee as well as a maximum
aggregate number of shares of Common Stock which may be purchased by all
eligible employees pursuant to such Offering. In addition, in connection with
any Offering which contains more than one Purchase Date, the Board or the
Committee may specify a maximum aggregate number of shares which may be
purchased by all eligible employees on any given Purchase Date under the
Offering.
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(ii) Notwithstanding the foregoing, the aggregate
number of shares for which Purchase Rights may be granted in any Offering Period
may not exceed the maximum number of shares which have been, prior to the
Offering Date for such Offering Period, reserved for the Plan and approved by
the stockholders of the Company and not previously been purchased upon the
exercise of Purchase Rights in any prior Offering Period.
(iii) If the aggregate purchase of shares of Common
Stock upon exercise of rights granted under the Offering would exceed any such
maximum aggregate number, the Board or the Committee shall make a pro rata
allocation of the shares of Common Stock available in as nearly a uniform manner
as shall be practicable and as it shall deem to be equitable. No Purchase Right
shall be granted on an Offering Date to any person who is not, on such Offering
Date, an Eligible Employee.
8.2 SUBSTITUTION OF RIGHTS. The grant of rights under an Offering
may be done to carry out the substitution of rights under the Plan for
pre-existing rights granted under another employee stock purchase plan, if such
substitution is pursuant to a transaction described in Section 424(a) of the
Code (or any successor provision thereto) and the characteristics of such
substitute rights conform to the requirements of Section 424(a) of the Code (or
any successor provision thereto) and will not cause the disqualification of this
Plan under Section 423 of the Code. Notwithstanding the other terms of the Plan,
such substitute rights shall have the same characteristics as the
characteristics associated with such pre-existing rights, including, but not
limited to, the following:
(i) the date on which such pre-existing right was
granted shall be the "Offering Date" of such substitute right for purposes of
determining the date of grant of the substitute right;
(ii) the Offering (as defined below) for such
substitute right shall begin on its Offering Date and end coincident on the
applicable Purchase Date, but no later than the end of the offering (as
determined under the terms of such offering) under which the pre-existing right
was granted.
8.3 PRO RATA ADJUSTMENT OF PURCHASE RIGHT. If the Board
establishes an Offering Period of any duration other than six months, then any
limitation on the number of shares of Stock subject to each Purchase Right
granted on the Offering Date of such Offering Period set forth in Section 8.1(i)
shall be prorated based upon the ratio which the number of months in such
Offering Period bears to six (6).
8.4 CALENDAR YEAR PURCHASE LIMITATION. Notwithstanding any
provision of the Plan to the contrary, no Participant shall be granted a
Purchase Right which permits his or her right to purchase shares of Stock under
the Plan to accrue at a rate which, when aggregated with such Participant's
rights to purchase shares under all other employee stock purchase plans of a
Participating Company intended to meet the requirements of Section 423 of the
Code, exceeds Twenty-Five Thousand Dollars ($25,000) in Fair Market Value (or
such other limit, if any, as may be imposed by the Code) for each calendar year
in which such Purchase Right is outstanding at any time. For purposes of the
preceding sentence, the Fair Market Value of shares purchased during a given
Offering Period shall be determined as of the Offering Date for such
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Offering Period. The limitation described in this Section shall be applied in
conformance with applicable regulations under Section 423(b)(8) of the Code.
9. PURCHASE PRICE.
The Purchase Price for an Offering Period shall be eighty-five
percent (85%) of the lesser of (a) the Fair Market Value of a share of Stock on
the Offering Date of the Offering Period, or (b) the Fair Market Value of a
share of Stock on the Purchase Date. Notwithstanding the foregoing, the Board,
in its sole discretion, may establish the Purchase Price at which each share of
Stock may be acquired in an Offering Period upon the exercise of all or any
portion of a Purchase Right; provided, however, that the Purchase Price shall
not be less than eighty-five percent (85%) of the lesser of (a) the Fair Market
Value of a share of Stock on the Offering Date of the Offering Period or (b) the
Fair Market Value of a share of Stock on the Purchase Date.
10. ACCUMULATION OF PURCHASE PRICE THROUGH PAYROLL DEDUCTION.
Shares of Stock acquired pursuant to the exercise of all or any
portion of a Purchase Right may be paid for only by means of payroll deductions
from the Participant's Compensation accumulated during the Offering Period for
which such Purchase Right was granted, and, if a payroll deduction is not
permitted under a statute, regulation, rule of a jurisdiction, or is not
administratively feasible, such other payments as may be approved by the
Company, subject to the following:
10.1 AMOUNT OF PAYROLL DEDUCTIONS. Except as otherwise provided
herein, the amount to be deducted under the Plan from a Participant's
Compensation on each payday during an Offering Period shall be determined by the
Participant's Subscription Agreement. The Subscription Agreement shall set forth
the percentage of the Participant's Compensation to be deducted on each payday
during an Offering Period in whole percentages, up to fifteen percent (15%). The
Board may change the foregoing limits on payroll deductions effective as of any
Offering Date.
10.2 COMMENCEMENT OF PAYROLL DEDUCTIONS. Payroll deductions shall
commence on the first payday following the Offering Date and shall continue
through the last payday prior to the end of the Offering Period unless sooner
altered or terminated as provided herein.
10.3 ELECTION TO CHANGE OR STOP PAYROLL DEDUCTIONS. During an
Offering Period, to the extent provided for in the Offering, a Participant may
elect to decrease the rate of or to stop deductions from his or her Compensation
by delivering to the Company an amended Subscription Agreement, in such form and
manner as specified by the Company, authorizing such change on or before the
Change Notice Date, as defined below. A Participant who elects, effective
following the first payday of an Offering Period, to decrease the rate of his or
her payroll deductions to zero percent (0%) shall nevertheless remain a
Participant in the current Offering Period unless such Participant withdraws
from the Plan as provided in Section 12.1. The "CHANGE NOTICE DATE" shall be the
day established in accordance with procedures established by the Company.
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10.4 COMPANY'S HOLDING OF DEDUCTION. All payroll deductions from
a Participant's Compensation shall be deposited with the general funds of the
Company. All payroll deductions received or held by the Company may be used by
the Company for any corporate purpose. Interest shall not be paid on sums
deducted from a Participant's Compensation pursuant to the Plan.
10.5 VOLUNTARY WITHDRAWAL OF DEDUCTIONS. A Participant may
withdraw payroll deductions credited to the Plan and not previously applied
toward the purchase of Stock only as provided in Section 12.1.
11. PURCHASE OF SHARES.
11.1 EXERCISE OF PURCHASE RIGHT. On each Purchase Date, each
Participant's accumulated payroll deductions and other additional payments
specifically permitted by the Plan (without any increase for interest), will be
applied to the purchase of whole shares of Stock, up to the maximum number of
shares permitted pursuant to the terms of the Plan and the applicable Offering,
at the Purchase Price for such Offering. No fractional shares shall be issued
upon the exercise of Purchase Rights granted under the Plan. The amount, if any,
of each Participant's accumulated payroll deductions remaining after the
purchase of shares which is less than the amount required to purchase one share
of Stock on the final Purchase Date of an Offering shall be retained in each
such Participant's account for the purchase of shares under the next Offering
under the Plan, unless such Participant withdraws from such next Offering, as
provided in Section 12.1, or is no longer eligible to be granted rights under
the Plan, as provided in Section 5, in which case such amount shall be
distributed to the Participant after said final Purchase Date, without interest.
The amount, if any, of each Participant's accumulated payroll deductions
remaining after the purchase of shares which is equal to the amount required to
purchase whole shares of Stock on the final Purchase Date of an Offering shall
be refunded in full to the Participant after such Purchase Date, without
interest.
11.2 PRO RATA ALLOCATION OF SHARES. If the number of shares of
Stock which might be purchased by all Participants in the Plan on a Purchase
Date exceeds the number of shares of Stock available in the Plan as provided in
Section 4.1, the Company shall make a pro rata allocation of the remaining
shares in as uniform a manner as practicable and as the Company determines to be
equitable. Any fractional share resulting from such pro rata allocation to any
Participant shall be disregarded.
11.3 DELIVERY OF SHARES. As soon as practicable after each
Purchase Date, the Company shall arrange the delivery to each Participant of the
shares acquired by the Participant on such Purchase Date; provided that the
Company may deliver such shares to a broker designated by the Company that will
hold such shares for the benefit of the Participant. Shares to be delivered to a
Participant under the Plan shall be registered, or held in an account, in the
name of the Participant, or, if requested by the Participant, such other name or
names as the Company may permit under rules established for the operation and
administration of the Plan.
11.4 TAX WITHHOLDING. At the time a Participant's Purchase Right
is exercised, in whole or in part, or at the time a Participant disposes of some
or all of the shares of Stock he or she acquires under the Plan, the Participant
shall make adequate provision for the
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federal, state, local and foreign tax withholding obligations, if any, of the
Participating Company Group which arise upon exercise of the Purchase Right or
upon such disposition of shares, respectively. The Participating Company Group
may, but shall not be obligated to, withhold from the Participant's compensation
the amount necessary to meet such withholding obligations.
11.5 EXPIRATION OF PURCHASE RIGHT. A Purchase Right shall expire
immediately upon the end of the Offering Period to the extent it exceeds the
number of shares of Stock which are purchased with a Participant's accumulated
payroll deductions or other permitted contribution during any Offering Period.
11.6 PROVISION OF REPORTS AND STOCKHOLDER INFORMATION TO
PARTICIPANTS. Each Participant who has exercised all or part of his or her
Purchase Right shall receive, as soon as practicable after the Purchase Date, a
report of such Participant's account setting forth the total payroll deductions
accumulated prior to such exercise, the number of shares of Stock purchased, the
Purchase Price for such shares, the date of purchase and the cash balance, if
any, remaining immediately after such purchase that is to be refunded or
retained on behalf of the Participant pursuant to Section 11.1. The report
required by this Section may be delivered in such form and by such means,
including by electronic transmission, as the Company may determine. In addition,
each Participant shall be given access to information concerning the Company
equivalent to that information provided generally to the Company's common
stockholders.
12. WITHDRAWAL FROM PLAN.
12.1 VOLUNTARY WITHDRAWAL FROM THE PLAN. A Participant may
withdraw from the Plan by signing and delivering to the Company's designated
office a written notice of withdrawal on a form provided by the Company for this
purpose or by communicating with the Company in such other manner as the Company
may authorize. A Participant who voluntarily withdraws from the Plan is
prohibited from resuming participation in the Plan in the same Offering from
which he or she withdrew, but may participate in any subsequent Offering by
again satisfying the requirements of Sections 5 and 7.1. The Company may impose,
from time to time, a requirement that the notice of withdrawal from the Plan be
on file with the Company's designated office for a reasonable period prior to
the effectiveness of the Participant's withdrawal.
12.2 RETURN OF PAYROLL DEDUCTIONS. Upon a Participant's voluntary
withdrawal from the Plan pursuant to Section 12.1, the Participant's accumulated
payroll deductions which have not been applied toward the purchase of shares
shall be refunded to the Participant as soon as practicable after the
withdrawal, without the payment of any interest, and the Participant's
participation in the Plan shall terminate. Such accumulated payroll deductions
to be refunded in accordance with this Section may not be applied to any other
Offering under the Plan.
13. TERMINATION OF EMPLOYMENT OR ELIGIBILITY.
13.1 Upon a Participant's ceasing, prior to a Purchase Date, to
be an Employee of the Participating Company Group for any reason, or upon the
failure of a Participant to remain
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an Eligible Employee, the Participant's participation in the Plan shall
terminate immediately, except as otherwise provided in Section 2.1(g) and
Section 13.3.
13.2 Upon termination of participation, the terminated
Participant's accumulated payroll deductions which have not been applied toward
the purchase of shares shall, as soon as practicable, be returned to the
Participant or, in the case of the Participant's death, to the Participant's
legal representative, and all of the Participant's rights under the Plan shall
terminate. Interest shall not be paid on sums returned pursuant to this Section
13. A Participant whose participation has been so terminated may again become
eligible to participate in future Offerings under the Plan by satisfying the
requirements of Sections 5 and 7.1.
13.3 Upon a Participant's ceasing, prior to a Purchase Date, to
be an Employee of the Participating Company Group for any reason, or upon the
failure of a Participant to remain an Eligible Employee, the Participant's
participation in the Plan shall continue, subject to the Participant's execution
of a general release of claims satisfactory to the Company, for an additional
ninety (90) days; provided, however, this Section shall not apply in the event
of the Participant's death, a Spinoff Transaction, or to any Participant on a
leave of absence governed by Section 2.1(g).
14. CHANGE IN CONTROL.
14.1 DEFINITIONS.
(a) An "OWNERSHIP CHANGE EVENT" shall be deemed to have
occurred if any of the following occurs with respect to the Company: (i) the
direct or indirect sale or exchange in a single or series of related
transactions by the stockholders of the Company of more than fifty percent (50%)
of the voting stock of the Company; (ii) a merger or consolidation in which the
Company is a party; (iii) the sale, exchange, or transfer of all or
substantially all, as determined by the Board in its sole discretion, of the
assets of the Company; or (iv) a liquidation or dissolution of the Company.
(b) A "CHANGE IN CONTROL" shall mean an Ownership Change
Event or a series of related Ownership Change Events (collectively, a
"TRANSACTION") wherein the stockholders of the Company immediately before the
Transaction do not retain immediately after the Transaction, in substantially
the same proportions as their ownership of shares of the Company's voting stock
immediately before the Transaction, direct or indirect beneficial ownership of
more than fifty percent (50%) of the total combined voting power of the
outstanding voting securities of the Company or, in the case of a Transaction
described in Section 14.1(a)(iii), the corporation or other business entity to
which the assets of the Company were transferred (the "TRANSFEREE"), as the case
may be. The Board shall determine in its sole discretion whether multiple sales
or exchanges of the voting securities of the Company or multiple Ownership
Change Events are related. Notwithstanding the preceding sentence, a Change in
Control shall not include any Transaction in which the voting stock of an entity
in the Participating Company Group is distributed to the shareholders of a
parent corporation, as defined in Section 424(e) of the Code, of such entity.
Any Ownership Change resulting from an underwritten public offering of the
Company's Stock or the stock of any Participating Company shall not be deemed a
Change in Control for any purpose hereunder.
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14.2 EFFECT OF CHANGE IN CONTROL ON PURCHASE RIGHTS. In the event
of a Change in Control, the surviving, continuing, successor, or purchasing
corporation or parent corporation thereof, as the case may be (the "ACQUIRING
CORPORATION"), may assume the Company's rights and obligations under the Plan.
If the Acquiring Corporation elects not to assume the Company's rights and
obligations under outstanding Purchase Rights, the Purchase Date of the then
current Offering Period shall be accelerated to a date before the date of the
Change in Control specified by the Board, but the number of shares of Stock
subject to outstanding Purchase Rights shall not be adjusted. All Purchase
Rights which are neither assumed by the Acquiring Corporation in connection with
the Change in Control nor exercised as of the date of the Change in Control
shall terminate and cease to be outstanding effective as of the date of the
Change in Control.
15. NONTRANSFERABILITY OF PURCHASE RIGHTS.
Neither payroll deductions nor a Participant's Purchase Right may
be assigned, transferred, pledged or otherwise disposed of in any manner other
than as provided by the Plan or by will or the laws of descent and distribution.
Any such attempted assignment, transfer, pledge or other disposition shall be
without effect, except that the Company may treat such act as an election to
withdraw from the Plan as provided in Section 12.1. A Purchase Right shall be
exercisable during the lifetime of the Participant only by the Participant.
16. COMPLIANCE WITH SECURITIES LAW.
The issuance of shares under the Plan shall be subject to
compliance with all applicable requirements of federal, state and foreign law
with respect to such securities. A Purchase Right may not be exercised if the
issuance of shares upon such exercise would constitute a violation of any
applicable federal, state or foreign securities laws or other law or regulations
or the requirements of any securities exchange or market system upon which the
Stock may then be listed. In addition, no Purchase Right may be exercised unless
(a) a registration statement under the Securities Act of 1933, as amended, shall
at the time of exercise of the Purchase Right be in effect with respect to the
shares issuable upon exercise of the Purchase Right, or (b) in the opinion of
legal counsel to the Company, the shares issuable upon exercise of the Purchase
Right may be issued in accordance with the terms of an applicable exemption from
the registration requirements of said Act. The inability of the Company to
obtain from any regulatory body having jurisdiction the authority, if any,
deemed by the Company's legal counsel to be necessary to the lawful issuance and
sale of any shares under the Plan shall relieve the Company of any liability in
respect of the failure to issue or sell such shares as to which such requisite
authority shall not have been obtained. As a condition to the exercise of a
Purchase Right, the Company may require the Participant to satisfy any
qualifications that may be necessary or appropriate, to evidence compliance with
any applicable law or regulation, and to make any representation or warranty
with respect thereto as may be requested by the Company.
17. RIGHTS AS A STOCKHOLDER AND EMPLOYEE.
A Participant shall have no rights as a stockholder by virtue of
the Participant's participation in the Plan until the date of the issuance of
shares purchased pursuant to the
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exercise of the Participant's Purchase Right (as evidenced by the appropriate
entry on the books of the Company or of a duly authorized transfer agent of the
Company). No adjustment shall be made for dividends, distributions or other
rights for which the record date is prior to the date such share is issued,
except as provided in Section 4.2. Nothing herein shall confer upon a
Participant any right to continue in the employ of the Participating Company
Group or interfere in any way with any right of the Participating Company Group
to terminate the Participant's employment at any time.
18. DISTRIBUTION ON DEATH.
If a Participant dies, the Company shall deliver any shares or
cash credited to the Participant to the Participant's legal representative.
19. 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.
20. AMENDMENT OR TERMINATION OF THE PLAN.
The Board may at any time amend or terminate the Plan, except
that (a) such termination shall not affect Purchase Rights previously granted
under the Plan, except as permitted under the Plan, and (b) no amendment may
adversely affect a Purchase Right previously granted under the Plan (except to
the extent permitted by the Plan or as may be necessary to qualify the Plan as
an employee stock purchase plan pursuant to Section 423 of the Code or to obtain
qualification or registration of the shares of Stock under applicable federal,
state or foreign securities laws). In addition, an amendment to the Plan must be
approved by the stockholders of the Company within twelve (12) months of the
adoption of such amendment if such amendment would increase the maximum
aggregate number of shares of Stock that may be issued under the Plan (except by
operation of the provisions of Section 4.1 or Section 4.2) or would change the
definition of the corporations that may be designated by the Board as
Participating Companies.
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PLAN HISTORY
____________, 2000 Board adopts Plan, with an initial reserve of 12,908,309
shares.
____________, 2001 Stockholders approve Plan.