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Exhibit 4.02
CALTON, INC.
EMPLOYEE STOCK PURCHASE PLAN
ARTICLE 1 - PURPOSE.
This Employee Stock Purchase Plan (the "Plan") is intended to encourage
stock ownership by all eligible employees of Calton, Inc. (the "Company"), a New
Jersey corporation, and its participating subsidiaries (as defined in Article
17) so that they may share in the growth of the Company by acquiring or
increasing their proprietary interest in the Company. This Plan is designed to
encourage eligible employees to remain in the employ of the Company and its
participating subsidiaries. This Plan is intended to constitute an "employee
stock purchase plan" within the meaning of Section 423(b) of the Internal
Revenue Code of 1986, as amended (the "Code").
ARTICLE 2 - ADMINISTRATION OF THE PLAN.
This Plan shall be administered by the Compensation Committee (the
"Committee") of the Board of Directors of the Company. The interpretation and
construction by the Committee of any provisions of this Plan or of any option
granted under it, shall be final, unless otherwise determined by the Board of
Directors. The Committee may from time to time adopt such rules and regulations
for carrying out this Plan as it may deem best, provided that any such rules and
regulations shall be applied on a uniform basis to all employees under the Plan.
No member of the Board of Directors or the Committee shall be liable for any
action or determination made in good faith with respect to this Plan or any
option granted under it.
In the event the Board of Directors dissolves the Committee or
terminates the authority of the Committee to administer this Plan, the Board of
Directors shall have all power and authority to administer this Plan. In such
event, the word "Committee" wherever used herein shall be deemed to mean the
Board of Directors.
ARTICLE 3 - ELIGIBLE EMPLOYEES.
All employees of the Company or any of its participating subsidiaries
whose customary employment is more than twenty (20) hours per week and for more
than five (5) months in any calendar year shall be eligible to receive options
under this Plan to purchase common stock of the Company, and all eligible
employees shall have the same rights and privileges hereunder. Persons who are
eligible employees on the first business day of any Offering Period (as defined
in Article 5) shall receive their options as of such day. Persons who become
eligible employees after any date on which options are granted under this Plan
shall be granted options on the first day of the next succeeding Offering Period
on which options are granted to eligible employees under this Plan. Directors
who are not employees of the Company shall not be eligible to receive options
under the Plan. In no event, however, may an employee be granted an option if
such employee, immediately after the option was granted, would be treated as
owning stock possessing five percent (5%) or more of the total combined voting
power or value of all classes of stock of the Company or of any parent
corporation or subsidiary corporation, as the terms
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"parent corporation" and "subsidiary corporation" are defined in Section 424(e)
and (f) of the Code. For purposes of determining stock ownership under this
paragraph, the rules of Section 424(d) of the Code shall apply, and stock which
the employee may purchase under outstanding options shall be treated as stock
owned by the employee.
ARTICLE 4 - STOCK SUBJECT TO THE PLAN.
The stock subject to the options under this Plan shall be shares of the
Company's authorized but unissued Common Stock, par value $.05 per share (the
"Common Stock"), or shares of Common Stock reacquired by the Company, including
shares purchased in the open market. The aggregate number of shares which may be
issued pursuant to this Plan is One Hundred Seventy-Five Thousand (175,000)
shares, which number shall automatically increase on January 1 of each year,
beginning January 1, 2002, by such number of shares as is equal to the lesser of
(i) 2% of the total number of shares of Common Stock outstanding on December 31
of the prior year and (ii) Seventy-Five Thousand (75,000) shares. The number of
shares which may be issued under this Plan shall at all times be subject to
adjustment as provided in Article 12. If any option granted under this Plan
shall expire or terminate for any reason without having been exercised in full
or shall cease for any reason to be exercisable in whole or in part, the
unpurchased shares subject thereto shall again be available under this Plan.
ARTICLE 5 - EFFECTIVENESS; PAYMENT PERIOD AND STOCK OPTIONS.
Subject to the terms and conditions of this Plan, the Committee shall
make offerings to eligible employees to purchase Common Stock under this Plan
from time to time on the date or dates designated by the Committee. The
Committee shall specify the terms and conditions for each such offering
including the date of the offering, the fixed terms of any offering and the
terms of any interim payment periods (each a "Payment Period") within the fixed
term of any offering. The fixed term of any offering (each an "Offering Period")
shall be a maximum of twenty-four months during which term payroll deductions
shall be made from the annual compensation of eligible employees participating
in an offering.
On the first business day of each Offering Period, the Company will
grant to each eligible employee who is then a participant in this Plan an option
to purchase on the last day of each Payment Period within such Offering Period,
at the Option Price hereinafter provided for, a number of shares which has on
the first day of the Offering Period an aggregate Option Price equal to 15% of
the Employee's annual compensation, on condition that such employee remains
eligible to participate in this Plan throughout the remainder of such Payment
Period. The participant shall be entitled to exercise the option so granted only
to the extent of the participant's accumulated payroll deductions on the last
day of such Payment Period. The option price per share for each Payment Period
shall be the lesser of (i) 85% of the average market price of the Common Stock
on the first business day of the Offering Period to which such Payment Period
relates, or (ii) 85% of the average market price of the Common Stock on the last
business day of such Payment Period (the "Option Price"). The Option Price shall
be subject to adjustment as provided in Article 12.
For purposes of this Plan, the term "average market price" on any date
means (i) the average (on that date) of the high and low prices of the Common
Stock on the principal national
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securities exchange on which the Common Stock is traded, if the Common Stock is
then traded on a national securities exchange; or (ii) the last reported sale
price (on that date) of the Common Stock on the Nasdaq Stock Market, if the
Common Stock is not then traded on a national securities exchange; or (iii) the
average the closing bid and asked prices last quoted (on that date) by an
established quotation service for over-the-counter securities, if the Common
Stock is not reported on the Nasdaq Stock Market; or (iv) if the Common Stock is
not publicly traded, the fair market value of the Common Stock as determined by
the Committee after taking into consideration all factors which it deems
appropriate, including, without limitation, recent sale and offer prices of the
Common Stock in private transactions negotiated at arm's length. For purposes of
determining the "last reported" sale price or the "last quoted" price for the
foregoing provision, the last reported or quoted prices shall mean, as the case
may be, at 4:00 p.m., New York time, on that day.
For purposes of this Plan, the term "business day" means a day on which
there is trading on the Nasdaq Stock Market or the aforementioned national
securities exchange, whichever is applicable pursuant to the preceding
paragraph; and if neither is applicable, a day that is not a Saturday, Sunday or
legal holiday in the State of New Jersey.
No employee shall be granted an option which permits the employee's
right to purchase stock under this Plan, and under all other Section 423(b)
employee stock purchase plans of the company and any parent or subsidiary
corporations, to accrue at a rate which exceeds $25,000 of fair market value of
such stock (determined on the date or dates that options on such stock were
granted) for each calendar year in which such option is outstanding at any time.
The purpose of the limitation in the preceding sentence is to comply with
Section 423(b)(8) of the Code. If the participant's accumulated payroll
deductions on the last day of the Payment Period would otherwise enable the
participant to purchase Common Stock in excess of the Section 423(b)(8)
limitation described in this paragraph, the excess of the amount of the
accumulated payroll deductions over the aggregate purchase price of the shares
actually purchased shall be promptly refunded to the participant by the Company,
without interest.
ARTICLE 6 - EXERCISE OF OPTION.
Each eligible employee who continues to be a participant in this Plan
on the last day of a Payment Period shall be deemed to have exercised his or her
option on such date and shall be deemed to have purchased from the Company such
number of full shares of Common Stock reserved for the purpose of this Plan as
the participant's accumulated payroll deductions on such date will pay for at
the Option Price, subject to the Section 423(b)(8) limitation described in
Article 5. If the individual is not a participant on the last day of a Payment
Period, then he or she shall not be entitled to exercise his or her option and
the amount of his or her payroll deduction not previously used to purchase
Common Stock shall be refundable. The Committee may determine with respect to
participating employees whether any fractional share which would be issuable
under this Article 6 shall be rounded down to the next lower whole share or
credited as a fractional share. Unused payroll deductions remaining in a
participant's account at the end of a Payment Period by reason of the inability
to purchase a fractional share shall be carried forward to the next Payment
Period.
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ARTICLE 7 - AUTHORIZATION FOR ENTERING THE PLAN.
An employee may elect to enter this Plan by filling out, signing and
delivering to the Company an authorization:
A. Stating the percentage to be deducted regularly from the
employee's pay;
B. Authorizing the purchase of stock for the employee in each
Payment Period in accordance with the terms of this Plan; and
C. Specifying the exact name or names in which stock purchased
from the employee is to be issued as provided under Article 11
hereof.
Such authorization must be received by the Company at least ten (10)
business days before the first day of the next succeeding Offering Period and
shall take effect only if the employee is an eligible employee on the first
business day of such Offering Period.
Unless a participant files a new authorization or withdraws from this
Plan, the deductions and purchases under the authorization the participant has
on file under this Plan will continue from one Offering Period to succeeding
(but not overlapping) Offering Periods as long as this Plan remains in effect.
Eligible employees may not participate in more than one Offering Period at a
time.
The Company will accumulate and hold for each participant's account the
amounts deducted from his or her pay. No interest will be paid on these amounts.
ARTICLE 8 - MAXIMUM AMOUNT OF PAYROLL DEDUCTIONS.
An employee may authorize payroll deductions in an amount (expressed as
a whole percentage) of not less than one percent (1%) but not more than fifteen
percent (15%) of the employee's total compensation including base pay or salary
and any overtime, bonuses and commissions.
ARTICLE 9 - CHANGE IN PAYROLL DEDUCTIONS.
Deductions may not be increased or decreased during an Offering Period.
However, a participant may withdraw in full from an Offering Period.
ARTICLE 10 - WITHDRAWAL FROM THE PLAN.
A participant may withdraw from the Plan (in whole but not in part) at
any time prior to the last day of a Payment Period by delivering a withdrawal
notice to the Company, in which event the Company will promptly refund the
entire balance of the employee's deductions not previously used to purchase
stock under such Payment Period.
To re-enter this Plan, an employee who has previously withdrawn must
file a new authorization at least ten (10) business days before the first day of
the next Offering Period in which he or she wishes to participate. The
employee's re-entry into this Plan becomes effective at the beginning of such
Offering Period, provided that he or she is an eligible employee on the first
business day of the Offering Period.
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ARTICLE 11 - ISSUANCE OF STOCK.
After the end of each Offering Period, the Company will deposit the
number of shares of Common Stock which each participant has purchased into an
account (a "Brokerage Account") established in the participant's name with the
Company's transfer agent or at a stock brokerage or other financial services
firm which the Company shall designate. The participant may request that the
account be established in the name of the participant or in the name of the
participant and the name of another person of legal age as joint tenants with
rights of survivorship. Subject to Article 16 hereof, a participant may sell or
otherwise dispose of shares in the Brokerage Account at any time; however, each
participant shall hold shares in the Brokerage Account until (a) two years after
the beginning of the Offering Period in which the participant purchased the
shares or (b) one year after the applicable Payment Date, whichever comes later.
After these time periods elapse, the participant may transfer the applicable
shares to another stock brokerage or other financial services firm, or the
participant may request that the Company issue a stock certificate in the
participant's name.
ARTICLE 12 - ADJUSTMENTS.
In the event of a stock split, stock dividend, recapitalization,
reorganization, exchange of shares or other similar event or change in the
Company's capitalization, the class and aggregate number of shares set forth in
Article 4 hereof which are subject to options which have been or may be granted
under this Plan, the Option Price and the limitations set forth in the second
paragraph of Article 5 shall also be appropriately adjusted to reflect such
events. Notwithstanding the foregoing, any such adjustment shall be made only
after the Committee, based on advice of counsel for the Company, determines
whether such adjustments would constitute a "modification" (as that term is
defined in Section 424 of the Code). If the Committee determines that such
adjustments would constitute a modification, it may refrain from making such
adjustments.
If the Company is to be consolidated with or acquired by another entity
in a merger, a sale of all or substantially all of the Company's assets or
otherwise (an "Acquisition"), the Committee or the board of directors of any
entity assuming the obligations of the Company hereunder (the "Successor Board")
shall, with respect to options then outstanding under this Plan, either (i) make
appropriate provision for the continuation of such options by arranging for the
substitution on an equitable basis for the shares then subject to such options
either (a) the consideration payable with respect to the outstanding shares of
the Common Stock in connection with the Acquisition, (b) shares of stock of the
successor corporation, or a parent or subsidiary of such corporation, or (c)
such other securities as the Successor Board deems appropriate, the fair market
value of which shall not materially exceed the fair market value of the shares
of Common Stock subject to such options immediately preceding the Acquisition;
(ii) terminate each participant's options in exchange for a cash payment equal
to the excess of (a) the fair market value on the date of the Acquisition of the
number of shares of Common Stock that the participant's accumulated payroll
deductions as of the date of the Acquisition could purchase, at an option price
determined with reference only to the first business day of the applicable
Payment Period and subject to the Code Section 423(b)(8) and fractional-share
limitations on the amount of stock a participant would be entitled to purchase,
over (b) the result of multiplying such number of shares by such option price;
or (iii) provide for the assumption of the purchase rights by such acquiring
party, subject to the same terms and conditions set forth herein, except that
any purchase price shall be adjusted to reflect any exchange ratio.
The Committee or Successor Board shall determine the adjustments to be
made under this Article 12, and its determination shall be conclusive.
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ARTICLE 13 - NO TRANSFER OR ASSIGNMENT OF EMPLOYEE'S RIGHTS.
An employee's rights under this Plan are the employee's alone and may
not be transferred or assigned to, or availed of by, any other person other than
by will or the laws of descent and distribution. Any option granted under this
Plan to an employee may be exercised, during the employee's lifetime, only by
the employee.
ARTICLE 14 - TERMINATION OF EMPLOYEE'S RIGHTS.
Whenever a participant ceases to be an eligible employee because of
retirement, voluntary or involuntary termination, resignation, layoff,
discharge, death or for any other reason, his or her rights under this Plan
shall immediately terminate, and the Company shall promptly refund, without
interest, the entire balance of his or her payroll deduction account under this
Plan. Notwithstanding the foregoing, eligible employment shall be treated as
continuing intact while a participant is on military leave, sick leave or other
bona fide leave of absence, for up to 90 days, or, if longer than 90 days, for
so long as the participant's right to re-employment is guaranteed by statute or
by contract.
If a participant's payroll deductions are interrupted by any legal
process, a withdrawal notice will be considered as having been received from the
participant on the day the interruption occurs.
ARTICLE 15 - TERMINATION AND AMENDMENTS TO PLAN.
Unless terminated sooner as provided below, this Plan shall terminate
on November 30, 2009. This Plan may be terminated at any time by the Company's
Board of Directors but such termination shall not affect options then
outstanding under this Plan. It will terminate in any case when all or
substantially all of the unissued shares of stock reserved for the purposes of
this Plan have been purchased. If at any time shares of stock reserved for the
purpose of this Plan remain available for purchase but not in sufficient number
to satisfy all then unfilled purchase requirements, the available shares shall
be apportioned among participants in proportion to the amount of payroll
deductions accumulated on behalf of each participant that would otherwise be
used to purchase stock, and this Plan shall terminate. Upon such termination or
any other termination of this Plan, all payroll deductions not used to purchase
stock will be refunded, without interest.
The Committee or the Board of Directors may from time to time adopt
amendments to this Plan provided that, without the approval of the shareholders
of the Company, no amendment may (i) increase the number of shares that may be
issued under this Plan (except as provided in Article 4); (ii) change the class
of employees eligible to receive options under this Plan, if such action would
be treated as the adoption of a new plan for purposes of Section 423(b) of the
Code; or (iii) cause Rule 16b-3 under the Securities Exchange act of 1934 to
become inapplicable to this Plan.
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ARTICLE 16 - LIMITS ON SALE OF STOCK PURCHASED UNDER THE PLAN.
This Plan is intended to provide shares of Common stock for investment
and not for resale. The Company does not, however, intend to restrict or
influence any employee in the conduct of his or her own affairs. An employee
may, therefore, sell stock purchased under this Plan at any time the employee
chooses, subject to compliance with any applicable Federal or state securities
laws and subject to any restrictions imposed under Article 21 to ensure that tax
withholding obligations are satisfied. THE EMPLOYEE ASSUMES THE RISK OF ANY
MARKET FLUCTUATIONS IN THE PRICE OF THE STOCK.
ARTICLE 17 - PARTICIPATING SUBSIDIARIES.
The term "participating subsidiary" shall mean any present or future
subsidiary of the Company, as that term is defined in Section 424(f) of the
Code, which is designated from time to time by the Board of Directors to
participate in this Plan. The Board of Directors shall have the power to make
such designation before or after this Plan is approved by the shareholders.
ARTICLE 18 - OPTIONEES NOT SHAREHOLDERS.
Neither the granting of an option to an employee nor the deductions
from his or her pay shall constitute such employee a shareholder of the shares
covered by an option until such shares have been actually purchased by the
employee.
ARTICLE 19 - APPLICATION OF FUNDS.
The proceeds received by the Company from the sale of Common Stock
pursuant to options granted under this Plan will be used for general corporate
purposes.
ARTICLE 20 - NOTICE TO COMPANY OF DISQUALIFYING DISPOSITION.
By electing to participate in this Plan, each participant agrees to
notify the Company in writing immediately after the participant transfers Common
Stock acquired under this Plan, if such transfer occurs within two years after
the first business day of the Payment Period in which such Common Stock was
acquired. Each participant further agrees to provide any information about such
a transfer as may be requested by the Company or any subsidiary corporation in
order to assist it in complying with the tax laws. Such dispositions generally
are treated as "disqualifying dispositions" under Sections 421 and 424 of the
Code, which have certain tax consequences to participants and to the Company and
its participating subsidiaries.
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ARTICLE 21 - WITHHOLDING OF ADDITIONAL INCOME TAXES.
By electing to participate in this Plan, each participant acknowledges
that the Company and its participating subsidiaries are required to withhold
taxes with respect to the amounts deducted from the participant's compensation
and accumulated for the benefit of the participant under this Plan, and each
participant agrees that the Company and its participating subsidiaries may
deduct additional amounts from the participant's compensation, when amounts are
added to the participant's account, used to purchase Common Stock or refunded,
in order to satisfy such withholding obligations. Each participant further
acknowledges that when Common Stock is purchased under this Plan the Company and
its participating subsidiaries may be required to withhold taxes with respect to
all or a portion of the difference between the fair market value of the Common
Stock purchased and its purchase price, and each participant agrees that such
taxes may be withheld from compensation otherwise payable to such participant.
It is intended that tax withholding will be accomplished in such a manner that
the full amount of payroll deductions elected by the participant under Article 7
will be used to purchase Common Stock. However, if amounts sufficient to satisfy
applicable tax withholding obligations have not been withheld from compensation
otherwise payable to any participant, then, notwithstanding any other provision
of this Plan, the Company may withhold such taxes from the participant's
accumulated payroll deductions and apply the net amount to the purchase of
Common Stock, unless the participant pays to the Company, prior to the exercise
date, an amount sufficient to satisfy such withholding obligations. Each
participant further acknowledges that the Company and its participating
subsidiaries may be required to withhold taxes in connection with the
disposition of stock acquired under this Plan and agrees that the Company or any
participating subsidiary may take whatever action it considers appropriate to
satisfy such withholding requirements, including deducting from compensation
otherwise payable to such participant an amount sufficient to satisfy such
withholding requirements or conditioning any disposition of Common Stock by the
participant upon the payment to the Company or such subsidiary of an amount
sufficient to satisfy such withholding requirements.
ARTICLE 22 - GOVERNMENTAL REGULATIONS.
The Company's obligation to sell and deliver shares of Common stock
under this Plan is subject to the approval of any governmental authority
required in connection with the authorization, issuance or sale of such shares.
Government regulations may impose reporting or other obligations on the
Company with respect to this Plan. For example, the Company may be required to
identify shares of Common Stock issued under this Plan on its stock ownership
records and send tax information statements to employees and former employees
who transfer title to such shares.
ARTICLE 23 - GOVERNING LAW.
The validity and construction of this Plan shall be governed by the
laws of the State of New Jersey, without giving effect to the principles of
conflicts of law thereof.
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