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EXHIBIT 10.4
LAI WORLDWIDE, INC.
1997 EMPLOYEE STOCK PURCHASE PLAN
AMENDED EFFECTIVE AS OF DECEMBER 31, 1998
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LAI WORLDWIDE, INC.
1997 EMPLOYEE STOCK PURCHASE PLAN
AMENDED EFFECTIVE AS OF DECEMBER 31, 1998
ARTICLE 1
PURPOSE
The purpose of the LAI Worldwide, Inc. 1997 Employee Stock Purchase
Plan (the "Plan") is to provide employees of LAI Worldwide, Inc. (the "Company")
and its subsidiaries with an opportunity to acquire a proprietary interest in
the Company through the purchase of authorized but unissued shares of common
stock of the Company or issued shares of such common stock acquired by the
Company or its subsidiaries on the open market or otherwise. It is the intention
of the Company to have the Plan qualify as an "employee stock purchase plan"
under Section 423 of the Internal Revenue Code of 1986, as amended (the "Code"),
and the regulations promulgated thereunder. The provisions of the Plan,
accordingly, shall be construed so as to extend and limit participation in a
manner consistent with the requirements of that section of the Code.
ARTICLE 2
DEFINITIONS
The following words and terms as used herein shall have that meaning
set forth therefor in this Article 2 unless a different meaning is clearly
required by the context. Whenever appropriate, words used in the singular shall
be deemed to include the plural and vice versa, and the masculine gender shall
be deemed to include the feminine gender.
2.1 "ACCOUNT" shall mean the payroll deduction account maintained
for an electing Eligible Employee as provided in Article 7.
2.2 "BOARD" or "BOARD OF DIRECTORS" shall mean the Board of
Directors of the Company.
2.3 "CODE" shall mean the Internal Revenue Code of 1986, as it may
be amended from time to time, or any successor statute. References to a
specified section of the Code shall include a reference to any successor
provision.
2.4 "COMMITTEE" is defined in Section 3.1.
2.5 "COMMON STOCK" shall mean the common stock of the Company.
2.6 "COMPANY" shall mean LAI Worldwide, Inc. and its successors.
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2.7 "COMPENSATION" shall mean an Eligible Employee's regular
salary and wages, overtime pay, bonuses and commissions (in all cases, before
any reduction for elective contributions to any Code Section 401(k) or Code
Section 125 Plan), but does not include credits or benefits under the Plan, or
any amount contributed by the Company to any pension, profit sharing or employee
stock ownership plan, or any employee welfare, life insurance or health
insurance plan or arrangement, or any deferred compensation plan or arrangement.
2.8 "ELIGIBLE EMPLOYEE" shall mean any individual employed by the
Company or any Subsidiary who meets the eligibility requirements of Article 4.
2.9 "FAIR MARKET VALUE" of the shares of Common Stock shall mean
the closing price, on the date in question (or, if no shares are traded on such
day, on the next preceding day on which shares were traded), of the Common Stock
on the principal securities exchange in the United States on which such stock is
listed, or if such stock is not listed on a securities exchange in the United
States, the closing price on such day in the over-the-counter market as reported
by the National Association of Security Dealers Automated Quotation System
(NASDAQ), or NASDAQ's successor, or if not reported on NASDAQ, the fair market
value of such stock as determined by the Committee in good faith and based on
all relevant factors.
2.10 "OFFERING PERIOD" is defined in Section 5.1.
2.11 "PURCHASE DOCUMENTS" is defined in Section 6.1.
2.12 "PURCHASE PRICE" is defined in Section 5.2.
2.13 "PLAN" shall mean the LAI Worldwide, Inc. 1997 Employee Stock
Purchase Plan, as set forth herein and as amended from time to time.
2.14 "SUBSIDIARY" shall mean any corporation that at the time
qualifies as a subsidiary of the Company under the definition of "subsidiary
corporation" contained in Section 424(f) of the Code.
ARTICLE 3
ADMINISTRATION
3.1 COMMITTEE. This Plan shall be administered by a committee
appointed by the Board of Directors (the "Committee"). The Committee shall
consist of not less than two (2) nor more than five (5) persons, each of whom
shall be a member of the Board, and none of whom shall be eligible to
participate under the Plan. The Board of Directors may from time to time remove
members from, or add members to, the Committee. Vacancies on the Committee,
howsoever caused, shall be filled by the Board of Directors.
3.2 ORGANIZATION. The Committee shall select one of its members as
chairman, and shall hold meetings at such time and places as it may determine.
The acts of a majority of the Committee
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at which a quorum is present, or acts reduced to or approved in writing by a
majority of the members of the Committee, shall be valid acts of the Committee.
3.3 POWER AND AUTHORITY. Subject to the provisions of the Plan,
the Committee shall have full authority, in its discretion: (a) to determine the
employees of the Company and its Subsidiaries who are eligible to participate in
the Plan; (b) to determine the purchase price of the shares of Common Stock
being offered; and (c) to interpret the Plan, and to prescribe, amend and
rescind rules and regulations with respect thereto. The interpretation and
construction by the Committee of any provision of the Plan over which it has
discretionary authority shall be final and conclusive. All actions and policies
of the Committee shall be consistent with the qualification of the Plan at all
times as an employee stock purchase plan under Section 423 of the Code.
3.4 INDEMNIFICATION. To the fullest extent permitted by law, each
person who is or shall have been a member of the Committee shall be indemnified
and held harmless by the Company against and from any loss, cost, liability, or
expense that may be imposed upon or reasonably incurred by him or her in
connection with or resulting from any claim, action, suit, or proceeding to
which he or she may be a party or in which he or she may be involved by reason
of any action taken or failure to act under the Plan and against and from any
and all amounts paid by him or her in settlement thereof, with the Company's
approval, or paid by him or her in satisfaction of any judgment in any such
action, suit, or proceeding against him or her, provided that the person shall
give the Company an opportunity, at its own expense, to handle and defend the
same before the person undertakes to handle and defend it on his or her own
behalf. The foregoing right of indemnification shall not be exclusive of any
other rights of indemnification to which such persons may be entitled under the
Company's Certificate of Incorporation or Bylaws, as a matter of law, or
otherwise, or any power that the Company may have to indemnify them or hold them
harmless.
ARTICLE 4
EMPLOYEES ELIGIBLE TO PARTICIPATE
4.1 GENERAL RULE. Any person, including any officer but not a
person who is solely a director, who is in the employment of the Company or any
Subsidiary on the first day of an Offering Period is eligible to participate in
the Plan with respect to that Offering Period, except: (a) a person who has been
employed less than one year; (b) a person whose customary employment is 20 hours
or less per week; and (c) a person whose customary employment is for not more
than five months in any calendar year. The Committee shall have the sole power
to determine who is and who is not an Eligible Employee.
4.2 SPECIAL RULES. Notwithstanding any provision of the Plan to
the contrary, no employee shall be eligible to subscribe for any shares of
Common Stock under the Plan if:
4.2.1 immediately after the subscription, the employee
would own stock and/or hold outstanding options to purchase stock possessing 5%
or more of the total combined voting power or value of all classes of stock of
the Company or of any Subsidiary (as determined in accordance with the
provisions of Section 423(b)(3) of the Code);
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4.2.2 the subscription would permit the employee's rights
to purchase shares under all stock purchase plans of the Company and its parent
and subsidiary corporations to accrue at a rate that exceeds $25,000 of fair
market value of such shares (determined at the time such right to subscribe
accrues) for each calendar year in which such right to subscribe is outstanding
at any time;
4.2.3 the subscription is otherwise prohibited by law; or
4.2.4 except with respect to the first Offering Period, the
employee's employment is terminated for any reason prior to the time revocation
or cancellation of participation in an offering is prohibited under Section 6.2,
and with respect to the first Offering Period, his or her employment is
terminated for any reason prior to the time he elects to participate in such
offering by satisfying the conditions of Section 6.1.
ARTICLE 5
OFFERS
5.1 OFFERING PERIODS. There shall be twenty-one (21) offering
periods under the Plan: the first offering period shall commence on the closing
of the initial public offering for the Common Stock and shall conclude 45 days
after such closing; thereafter, separate offering periods shall commence on the
fifteenth day of January and July and conclude on the fourteenth day of February
and August, respectively, in each of the years 1998 to 2007, inclusive (each an
"Offering Period"). Except for the maximum number of shares of Common Stock to
be offered under the Plan, except for a lack of available shares of Common
Stock, and except for the limitation on the number of shares of Common Stock for
which each Eligible Employee may subscribe, there shall be no limit on the
aggregate number of shares of Common Stock for which subscriptions may be made
with respect to any particular Offering Period. The right of an Eligible
Employee to subscribe for shares of Common Stock in an Offering Period shall not
be deemed to accrue until the first day of that Offering Period.
5.2 PRICE. The purchase price per share of Common Stock for an
Offering Period shall be 85% of the Fair Market Value of the Common Stock
immediately prior to the beginning of the Offering Period (the "Purchase
Price"); provided, however, that with respect to the first Offering Period, the
Purchase Price per share shall be 85% of the lesser of (a) the Fair Market Value
of the Common Stock immediately prior to the beginning of the Offering Period or
(b) the Fair Market Value of the Common Stock immediately prior to the last day
of the Offering Period.
5.3 NUMBER OF SHARES TO BE OFFERED.
5.3.1 The maximum number of shares of Common Stock that may
be offered under the Plan is 200,000, subject to adjustment as provided in
Section 8.1.
5.3.2 During each Offering Period, an Eligible Employee
shall be entitled to subscribe for a total number of shares of Common Stock not
to exceed the number determined by dividing 3% of the Eligible Employee's
Compensation for the preceding calendar year by the Purchase Price. For example,
if the Purchase Price of the shares is $10, an Eligible Employee who
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receives Compensation of $30,000 for the preceding calendar year would be able
to subscribe for a maximum of 90 shares ($30,000 x 3% = $900/$10 = 90). For
those Eligible Employees who are entitled to purchase at least ten (10) shares
during an Offering Period, no subscriptions shall be made for fewer than ten
(10) shares.
5.3.3 Subscriptions shall be allowed for full shares only.
Any rights to subscribe for fractional shares shall be void; and any computation
relating to fractional shares shall be rounded down to the next lowest whole
number of shares.
5.3.4 If with respect to an Offering Period the available
shares are oversubscribed, the aggregate of the subscriptions allowable under
Section 5.3.2 shall be reduced to such lower figure as may be necessary to
eliminate the oversubscription. Such reduction shall be effected on a
proportionate basis as equitably as possible; but in no event shall such
reduction result in a subscription for fractional shares. In the event of an
oversubscription and cutback as provided in this Section 5.3.4, the Company will
refund to the participating Eligible Employees any excess payment for subscribed
Shares as soon as practicable after the end of the Offering Period.
ARTICLE 6
PARTICIPATION AND PAYMENT
6.1 ELECTION TO PARTICIPATE. An Eligible Employee may become a
participant in an offering: (a) by completing a subscription agreement,
indicating the number of shares of Common Stock to be purchased, and such other
documents as the Company may require (the "Purchase Documents"); and (b) by
tendering the Purchase Documents and cash or a check (payable in U.S. funds) for
the full subscription price (less the amount to be withdrawn from such Eligible
Employee's Account pursuant to Section 7.3) to the Secretary of the Company (or
such other person as may be designated by the Committee) at any time during the
offering. With respect to the first Offering Period, the Eligible Employee shall
tender an amount equal to the purchase price based on the Fair Market Value of
the Common Stock immediately prior to the beginning of the Offering Period. If
the final purchase price is less, the Company shall refund the excess amount to
the Eligible Employee as soon as practicable after the close of the Offering
Period. Purchase Documents and cash or check received by the Secretary of the
Company (or other designated person) before or after the offering shall be void
and shall be given no effect with respect to the offering; and the Secretary
shall return such documents and cash or check to the involved employee as soon
as practicable after receipt.
6.2 NO REVOCATION OF ELECTION. No election to participate in an
offering may be revoked or canceled by an Eligible Employee once the Purchase
Documents and full payment have been tendered to the Company; provided, however,
that with respect to the first Offering Period, an Eligible Employee may revoke
his election to participate in the offering by providing written notice thereof
to the Secretary of the Company (or other designated person) on or before the
last day of such Offering Period. Such revocation may be with respect to all or
less than all of the shares of Common Stock originally elected to be purchased.
In the event of any such revocation, the Company shall refund to such Eligible
Employee, as soon as practicable after such revocation, the amount previously
tendered for the shares to which the revocation relates.
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6.3 NO INTEREST. No interest shall be payable on the purchase
price of the shares of Common Stock subscribed for or on the funds returned to
employees as a result of an oversubscription or an overpayment, pursuant to
Section 6.1 for early or late delivery, or pursuant to Section 6.2 after a
revocation, or otherwise.
6.4 DELIVERY OF CERTIFICATES REPRESENTING SHARES.
6.4.1 As soon as practicable after the completion of each
offering, the Company shall deliver or cause to be delivered to each
participating employee a certificate or certificates representing the shares of
Common Stock purchased in the offering.
6.4.2 Certificates representing shares of Common Stock to
be delivered to a participating employee under the Plan will be registered in
the name of the participating employee, or if the participating employee so
directs, by written notice to the Company prior to the termination date of the
offering, and to the extent permitted by applicable law, in the names of the
participating employee and one such other person as may be designated by the
participating employee, as joint tenants with rights of survivorship.
6.5 RIGHTS AS STOCKHOLDER. No participating employee shall have
any right as a stockholder of the Company until after the completion of the
offering in which the employee participated and the date on which the employee
becomes a record owner of the shares purchased under the Plan (the "record
ownership date"). No adjustment shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property), distributions, or
other rights for which the record date is prior to the record ownership date.
6.6 TERMINATION OF EMPLOYMENT. An employee whose employment is
terminated for any reason shall have no right to participate in the Plan after
termination. However, the termination shall not affect any election to
participate in the Plan that is made prior to termination in accordance with the
provisions of Section 6.1.
6.7 RIGHTS NOT TRANSFERABLE. The right of an Eligible Employee to
participate in the Plan shall not be transferable by the employee, and no right
of an Eligible Employee under this Plan may be exercised after his death, by his
Personal Representative or anyone else, or during his lifetime by any person
other than the Eligible Employee.
ARTICLE 7
PAYROLL DEDUCTION
7.1 ELECTION OF PAYROLL DEDUCTION. As permitted in the discretion
of the Committee from time to time, each Eligible Employee may elect (on such
form as may be provided from time to time by the Company) to have a portion of
the employee's Compensation deducted from each paycheck (or, if the Company so
permits, from only the first paycheck in each month), which amounts shall not
exceed in the aggregate such amount as determined by the Committee from time to
time. An Eligible Employee may change the amount to be withheld from time to
time in accordance with rules
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established by the Committee, which rules may include, among other things,
limitations on the number of times changes are permitted and when changes are
permitted. A change shall be effective no earlier than the first full payroll
period following receipt of the new form by the Committee. The Committee may,
however, on a uniform and non-discriminatory basis delay the effective date of a
change if it determines that such a delay is either necessary or appropriate for
the proper administration of the Plan.
7.2 MAINTENANCE OF ACCOUNTS. A separate Account shall be
maintained for each Eligible Employee who has amounts withheld from the
employee's Compensation under this Article 7. The maintenance of separate
Accounts shall not require the segregation of any assets from any other assets
held under this Article 7. The Accounts shall not bear interest. Each Account
shall be adjusted from time to time to reflect the amounts withheld from the
Compensation of the Eligible Employee to whom the Account relates, the amounts
withdrawn by such Eligible Employee for purchases of shares of Common Stock
under the Plan, and for other amounts withdrawn by such Eligible Employee from
the Account.
7.3 USE OF ACCOUNTS TO PURCHASE COMMON STOCK. At the time that an
Eligible Employee elects to participate in an offering under Section 6.1, the
Eligible Employee may elect to have a specified amount from his or her Account
(up to the whole amount thereof) used to pay all or a portion of the Purchase
Price for the shares of Common Stock purchased.
7.4 OTHER USE OF ACCOUNTS. At any time that a person is no longer
an employee (including by reason of death) or an Eligible Employee, the balance
in such person's Account shall be paid to such person or his legal
representative. In addition, the Committee may also permit the complete
withdrawal of the amounts in an Account under such uniform and
non-discriminatory conditions as it may impose from to time to time (including,
without limitation, not permitting the Eligible Employee making such withdrawal
from again electing payroll deductions for a specified period of time). Except
as otherwise provided in Section 7.3 and this Section 7.4, an Eligible Employee
shall not withdraw any amount from his Account, in whole or in part.
ARTICLE 8
MISCELLANEOUS
8.1 STOCK ADJUSTMENTS.
8.1.1 In the event of any increase or decrease in the
number of issued shares of Common Stock resulting from a stock split or other
division or consolidation of shares or the payment of a stock dividend (but only
on Common Stock) or any other increase or decrease in the number of such shares
effected without any receipt of consideration by the Company, then, in any such
event, the number of shares of Common Stock that remain available under the
Plan, and the number of shares of Common Stock and the purchase price per share
of Common Stock then subject to subscription by Eligible Employees, shall be
proportionately and appropriately adjusted for any such increase or decrease.
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8.1.2 Subject to any required action by the stockholders,
if any change occurs in the Common Stock by reason of any recapitalization,
reorganization, merger, consolidation, split-up, combination or exchange of
shares, or of any similar change affecting Common Stock, then, in any such
event, the number and type of shares then subject to subscription by Eligible
Employees, and the purchase price thereof, shall be proportionately and
appropriately adjusted for any such change.
8.1.3 In the event of a change in the Common Stock as
presently constituted that is limited to a change of all of its authorized
shares with par value into the same number of shares with a different par value
or without par value, the shares resulting from any change shall be deemed to be
Common Stock within the meaning of the Plan.
8.1.4 To the extent that the foregoing adjustments relate
to stock or securities of the Company, such adjustments shall be made by, and in
the discretion of, the Committee, whose determination in that respect shall be
final, binding and conclusive.
8.1.5 Except as hereinabove expressly provided in this
Section 8.1, an Eligible Employee shall have no rights by reason of any division
or consolidation of shares of stock of any class or the payment of any stock
dividend or any other increase or decrease in the number of shares of stock of
any class or by reason of any dissolution, liquidation, merger or consolidation,
or spin-off of assets or stock of another corporation; and any issuance by the
Company of shares of stock of any class, securities convertible into shares of
stock of any class, or warrants or options for shares of stock of any class
shall not affect, and no adjustment by reason thereof shall be made with respect
to, the number or price of shares of Common Stock subject to any subscription.
8.1.6 The existence of the Plan, and any subscription for
shares of Common Stock hereunder, shall not affect in any way the right or power
of the Company to make adjustments, reclassifications, reorganizations or
changes of its capital or business structure or to merge or to consolidate, or
to dissolve, to liquidate, to sell, or to transfer all or any part of its
business or assets.
8.2 LISTING AND REGISTRATION OF COMMON STOCK. If at any time the
Board of Directors shall determine, in its discretion, that the listing,
registration or qualification of the Common Stock covered by the Plan upon any
securities exchange or under any state or federal law, or the consent or
approval of any governmental regulatory body, is necessary or desirable as a
condition of, or in connection with, the Plan or the offering, issue or purchase
of shares thereunder, the Plan shall not be effective as to later offerings
unless and until such listing, registration, qualification, consent or approval
shall have been effected or obtained free of any conditions not acceptable to
the Board of Directors. Notwithstanding anything in the Plan to the contrary, if
the provisions of this Section 8.2 become operative and if, as a result thereof,
an offering is missed in whole or in part, then and in that event, the missed
portion of the offering shall be passed and the term of the Plan shall not be
affected. Notwithstanding the foregoing or any other provision in the Plan, the
Company shall have no obligation under the Plan to cause any shares of Common
Stock to be registered or qualified under any federal or state law or listed on
any stock exchange or admitted to any national marketing system.
8.3 TERM OF PLAN. The Plan, unless sooner terminated as provided
in Section 8.4, shall commence upon the satisfaction of the conditions of
Section 8.9 and shall terminate on the conclusion of the last Offering Period on
August 14, 2007.
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8.4 AMENDMENT OF THE PLAN; TERMINATION. The Board shall have the
right to revise, amend or terminate the Plan at any time without notice,
provided that no Eligible Employee's existing rights are adversely affected
thereby without the consent of the Eligible Employee, and provided further that,
without approval of the stockholders of the Company, no such revision or
amendment shall: (a) increase the total number of shares of Common Stock to be
offered; or (b) materially modify the requirements as to eligibility for
participation in the Plan. The foregoing prohibitions of this Section 8.4 shall
not be affected by adjustments in shares and purchase price made in accordance
with the provisions of Section 8.1.
8.5 APPLICATION OF FUNDS. The proceeds received by the Company
from the sale of shares of Common Stock pursuant to the Plan will be used for
general corporate purposes.
8.6 NO OBLIGATION TO PARTICIPATE. The offering of any shares of
Common Stock under the Plan shall impose no obligation upon any Eligible
Employee to subscribe to purchase any such shares.
8.7 NO IMPLIED RIGHTS TO EMPLOYEES. The existence of the Plan, and
the offering of shares of Common Stock under the Plan, shall in no way give any
employee the right to continued employment, give any employee the right to
receive any Common Stock or any additional Common Stock under the Plan, or
otherwise provide any employee any rights not specifically set forth in the
Plan.
8.8 WITHHOLDING. Whenever the Company proposes or is required to
issue or transfer shares of Common Stock under the Plan, the Company shall have
the right to require a participating employee to remit to the Company an amount
sufficient to satisfy any federal, state or local withholding tax liability
prior to the delivery of any certificate or certificates for such shares.
Whenever under the Plan payments are to be made in cash, such payments shall be
made net of an amount sufficient to satisfy any federal, state or local
withholding tax liability.
8.9 CONDITIONS PRECEDENT TO EFFECTIVENESS. The Plan shall become
effective upon the satisfaction of all the following conditions, with the
effective date of the Plan being the date that the last such condition is
satisfied:
8.9.1 the adoption of the Plan by the Board of Directors;
8.9.2 the approval of the Plan by the stockholders of the
Company within twelve (12) months after its adoption by the Board; and
8.9.3 the closing of the initial public offering of the
Common Stock.
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