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EXHIBIT 10.2
DAISYTEK INTERNATIONAL CORPORATION
1998 EMPLOYEE STOCK PURCHASE PLAN
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SECTION 1. PURPOSE OF THE PLAN
The purpose of the Daisytek International Corporation 1998 Employee
Stock Purchase Plan (the "Plan") is to provide employees of Daisytek
International Corporation (the "Company") and designated Subsidiaries an
opportunity to acquire a proprietary interest in the Company through the
purchase of shares of common stock, $.01 par value, of the Company ("Common
Stock"). It is intended that the Plan qualify as an "employee stock purchase
plan" under Section 423 of the Internal Revenue Code of 1986, as amended
("Code"), and the provisions of the Plan shall be construed accordingly.
SECTION 2. DEFINITIONS
For purposes of the Plan, the following terms shall be defined as set
forth below:
(a) "Business Day" means each day that the New York Stock
Exchange, Inc. is open for the transaction of business.
(b) "Fair Market Value" means, with respect to the Common
Stock as of any date (i) the closing price of a share of the Common Stock on the
principal exchange on which shares of the Common Stock are then trading, if any,
on such date, or, if shares were not traded on such date, then on the next
preceding trading day during which a sale occurred; or (ii) if the Common Stock
is not traded on an exchange but is quoted on NASDAQ or a successor quotation
system, (1) the last sales price (if the Company's Common Stock is then listed
as a National Market Issue under the NASD National Market System) or (2) the
mean between the closing representative bid and asked prices (in all other
cases) for the Company's Common Stock, in each case, on such date as reported by
NASDAQ or such successor quotation system; or (iii) if the Common Stock is not
publicly traded on an exchange and not quoted on NASDAQ or a successor quotation
system, the mean between the closing bid and asked prices for the Common Stock,
on such date, as determined in good faith by the Committee; or (iv) if the
Common Stock is not publicly traded, the fair market value established by the
Committee acting in good faith.
(c) "Participating Company" shall mean the Company and each
Subsidiary which the Committee has designated to participate in the Plan.
(d) "Offering Period" means each period which begins on a
Commencement Date and ends on a Purchase Date during which Eligible Employees
may purchase Common Stock pursuant to an Offering under the Plan.
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(e) "Commencement Date" shall mean the first Business Day of
each Offering Period.
(f) "Eligible Employee" means any person who, on a
Commencement Date, (i) is customarily scheduled to be employed by any
Participating Company as an employee for at least twenty (20) hours per week and
for more than five (5) months in any calendar year, and (ii) has completed
fifteen (15) days of employment with the Company or any Subsidiary.
(g) "Purchase Date" shall mean the last Business Day of each
Offering Period.
(h) "Offering" means any proposal made in accordance with the
terms and conditions of the Plan permitting Eligible Employees to purchase
Common Stock under the Plan during an Offering Period.
(i) "Subsidiary" shall mean any corporation which is a
"subsidiary" of the Company, as that term is defined in Section 424(f) of the
Code.
SECTION 3. ADMINISTRATION OF THE PLAN
The Plan shall be administered by a committee of the Board of Directors
of the Company (the "Committee"). The Committee shall consist of two or more
Directors, appointed by and holding office at the pleasure of the Board. The
Board may limit the members of the Committee to directors who are both
"non-employee directors", as defined in Rule 16b-3 under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and "outside directors", as
defined in Section 162(m) of the Code. Subject to the limitations set forth in
the preceding sentence, the powers of the Committee may be exercised by the
Compensation Committee or the Stock Option Committee of the Board. Appointment
of Committee members shall be effective upon acceptance of appointment.
Committee members may be removed by the Board at any time and may resign at any
time. Vacancies in the Committee shall be filled by the Board. The Board
reserves the right to serve as the Committee if it so elects, and, in which
event, the term "Committee" shall mean the Board. Any action of the Committee in
administering the Plan shall be final, conclusive and binding on all persons,
including the Company, its Subsidiaries, employees, persons claiming rights from
or through employees and the stockholders of the Company.
Subject to the provisions of the Plan, the Committee shall have full
and final authority in its discretion (a) to designate the Subsidiaries whose
employees will participate in the Plan, (b) to determine the maximum number of
shares of Common Stock to be acquired by each Eligible Employee during each
Offering Period, (c) to determine the terms and conditions of each Offering, (d)
to determine the length of each Offering Period and the Commencement Date
thereof, (e) to correct any defect or supply any omission or reconcile any
inconsistency in the Plan, (f) to adopt, amend and rescind such rules and
regulations as, in its opinion, may be advisable in the administration of the
Plan and the conduct of each Offering, and (g) to make all other determinations
as it may deem necessary or advisable for the administration of the Plan.
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SECTION 4. PARTICIPATION IN THE PLAN
(a) Only individuals who are employees of a Participating
Company shall be eligible to acquire Common Stock pursuant to any Offering under
the Plan. Except as provided in paragraph (b) hereof, every Eligible Employee on
the Commencement Date of an Offering shall be eligible to participate in such
Offering, provided such individual remains an Eligible Employee until the
Purchase Date.
(b) Notwithstanding any provisions of the Plan to the
contrary, no Eligible Employee shall be eligible to participate in any Offering
if:
(i) on the Commencement Date, such Eligible Employee would own
stock (together with stock owned by any other person or entity that would be
attributed to such Eligible Employee pursuant to Section 424(d) of the Code) of
the Company (including, for this purpose, all shares of stock subject to any
outstanding options to purchase such stock, whether or not currently exercisable
and irrespective of whether such options are subject to the favorable tax
treatment of Section 421(a) of the Code) possessing five percent (5%) or more of
the total combined voting power or value of all classes of stock of the Company
or a Subsidiary; or
(ii) the Eligible Employee belongs to a class or group of
Eligible Employees which the Committee deems ineligible for participation in any
Offering (as the Committee may determine from time to time), so long as the
exclusion of such class or group of Eligible Employees from participation in an
Offering does not jeopardize the qualification of the Plan under Section 423 of
the Code or other applicable law.
SECTION 5. OFFERINGS
(a) The Plan shall be implemented by a series of Offerings to
all Eligible Employees, the duration and frequency of which will be specified
from time to time by the Committee.
(b) Each Offering shall permit each Eligible Employee to
purchase on the Purchase Date shares of Common Stock at a purchase price per
share determined by the Committee which shall not be less than the lower of (i)
85% of the Fair Market Value of the Common Stock on the Commencement Date, or
(ii) 85% of the Fair Market Value of the Common Stock on the Purchase Date.
(c) No Offering Period pursuant to the Plan shall be for a
period greater than 12 months from the Commencement Date.
(d) All Eligible Employees participating in an Offering under
the Plan shall have the same rights and privileges, except that the Committee
may from time to time provide for differences in the rights and privileges of
Eligible Employees so long as such differences do not jeopardize the
qualification of the Plan under Section 423 of the Code or violate other
applicable law.
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SECTION 6. SHARES AVAILABLE UNDER THE PLAN
(a) Subject to the provisions of Section 7 hereof, the
aggregate number of shares of Common Stock available for purchase pursuant to
all Offerings under the Plan shall be 250,000 shares, which may be authorized
but unissued shares, treasury shares or shares purchased in the open market.
(b) If the total number of shares of Common Stock to be
purchased on any Purchase Date when added to the number of shares of Common
Stock previously purchased pursuant to Offerings under the Plan exceeds the
number of shares then available under the Plan, the Committee shall make a pro
rata allocation of the shares available for purchase in such Offering in as
nearly a uniform manner as shall be practicable and as it shall determine to be
equitable, and the amounts received from each Eligible Employee in excess of the
amounts applied to purchase Common Stock shall be refunded to each Eligible
Employee.
SECTION 7. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION
In the event that the Committee determines that any stock dividend,
recapitalization, forward split or reverse split, reorganization, merger,
consolidation, spin-off, combination, share exchange or other similar
transaction or event affects the Common Stock such that an adjustment is
appropriate in order to prevent dilution or enlargement of the rights of
Eligible Employees under the Plan, then the Committee shall, in such manner as
it may deem equitable, adjust any or all of (i) the number and kind of shares of
Common Stock which may thereafter be available under the Plan, (ii) the number
and kind of shares of Common Stock issuable or to be purchased in respect of any
current Offering, and (iii) the purchase price relating to any purchase of
Common Stock to be acquired in any Offering; provided, however, that no
adjustment shall be made if, or to the extent that, such adjustment would cause
the Plan to violate Section 423 of the Code.
SECTION 8. ACCRUAL LIMITATIONS
(a) No Eligible Employee shall be entitled to accrue rights to
acquire Common Stock in any Offering under this Plan (which right shall accrue
on the Purchase Date for an Offering Period) if, and to the extent, such
accrual, when aggregated with (i) rights to purchase Common Stock accrued under
any other Offering under this Plan during the same calendar year and (ii) rights
accrued under any other employee stock purchase plan (within the meaning of
Section 423 of the Code) of the Company or any Subsidiary during the same
calendar year, would cause such Eligible Employee to be able to purchase more
than Twenty-Five Thousand Dollars ($25,000) worth of Common Stock or stock of
any Subsidiary (determined on the basis of the Fair Market Value of such stock
on the date or dates such rights are granted) for each calendar year such rights
are at any time outstanding.
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SECTION 9. MERGER, CONSOLIDATION, LIQUIDATION, ETC.
Upon the effective date of any Corporate Transaction (as herein
defined), any outstanding Offering under the Plan will terminate and such date
shall be treated as the Purchase Date, and in lieu of the issuance of Common
Stock to participating Eligible Employees, there shall be paid to such Eligible
Employees, for each such share of Common Stock, as nearly as reasonably may be
determined, the cash, securities and/or property which a holder of one share of
the Common Stock was entitled to receive upon and as of the effective date of
such Corporate Transaction. As used herein, the term "Corporate Transaction"
shall mean (i) the dissolution or liquidation of the Company, (ii) the sale of
all or substantially all of the assets of the Company, (iii) the merger or
consolidation of the Company with or into another corporation or entity (if the
Company is not the surviving corporation of such merger or consolidation) or
(iv) the acquisition by another person or entity of 80% or more of the Company's
than outstanding voting stock.
SECTION 10. GENERAL PROVISIONS
(a) Neither the Plan nor any action taken hereunder shall be
construed as giving any employee or Eligible Employee any right to be retained
in the employ of the Company or any Subsidiary, and no employee of any
Subsidiary which is not a Participating Company shall have any claim or right to
participate in any Offerings under the Plan.
(b) No right of an Eligible Employee to purchase Common Stock
pursuant to an Offering under the Plan shall be assigned or transferred by such
Eligible Employee and such rights to purchase Common Stock pursuant to an
Offering shall be exercisable during the lifetime of the Eligible Employee only
by the Eligible Employee.
(c) No Offering shall confer on any Eligible Employee any of
the rights of a stockholder of the Company unless and until Common Stock is duly
issued or transferred to the Eligible Employee in accordance with the terms of
the Offering.
(d) This Plan is intended to conform to the extent necessary
with all provisions of the Securities Act of 1933, as amended, and the Exchange
Act and any and all regulations and rules promulgated by the Securities and
Exchange Commission thereunder, including without limitation Rule 16b-3.
Notwithstanding anything herein to the contrary, the Plan shall be administered,
and the rights to purchase in any Offering shall be granted and may be
exercised, only in such a manner as to conform to such laws, rules and
regulations. To the extent permitted by applicable law, this Plan and rights
granted hereunder shall be deemed amended to the extent necessary to conform to
such laws, rules and regulations.
(e) The provisions of the Plan shall be governed by the laws
of the State of Delaware without giving effect to applicable conflict-of-laws
rules.
SECTION 11. EFFECTIVE DATE; AMENDMENT; TERMINATION
(a) The Plan shall become effective if and when approved by
the stockholders of the Company at the 1998 Annual Meeting of Stockholders.
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(b) The Board of Directors of the Company may terminate the
Plan or amend the Plan from time to time; provided, however, that the Board of
Directors of the Company shall not, without the approval of the stockholders of
the Company (i) increase the number of shares available for purchase pursuant to
all Offerings, (ii) change the class of persons eligible to participate in
Offering under the Plan, or (iii) reduce the purchase price of Common Stock
below that set forth in Section 5(b) herein.
(c) Unless sooner terminated by the Board of Directors of the
Company, the Plan shall terminate when all shares available for issuance or
purchase under the Plan have been purchased pursuant to an Offering under the
Plan, or the date of any Corporate Transaction, if earlier.
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