EXHIBIT 10.13
PERICOM SEMICONDUCTOR CORPORATION
2000 EMPLOYEE STOCK PURCHASE PLAN
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The following constitute the provisions of the 2000 Employee Stock
Purchase Plan of Pericom Semiconductor Corporation.
1. Purpose. The purpose of the Plan is to provide employees of the
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Company and its Designated Parents or Subsidiaries with an opportunity to
purchase Common Stock of the Company through accumulated payroll deductions. It
is the intention of the Company to have the Plan qualify as an "Employee Stock
Purchase Plan" under Section 423 of the Code. 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.
2. Definitions. As used herein, the following definitions shall
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apply:
(a) "Administrator" means either the Board or a committee of the
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Board that is responsible for the administration of the Plan as is designated
from time to time by resolution of the Board.
(b) "Applicable Laws" means the legal requirements relating to the
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administration of employee stock purchase plans, if any, under applicable
provisions of federal securities laws, state corporate and securities laws, the
Code, the rules of any applicable stock exchange or national market system, and
the rules of any foreign jurisdiction applicable to participation in the Plan by
residents therein.
(c) "Board" means the Board of Directors of the Company.
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(d) "Change in Control" means a change in ownership or control of the
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Company effected through the direct or indirect acquisition by any person or
related group of persons (other than an acquisition from or by the Company or by
a Company-sponsored employee benefit plan or by a person that directly or
indirectly controls, is controlled by, or is under common control with, the
Company) of beneficial ownership (within the meaning of Rule 13d-3 of the
Exchange Act) of securities possessing more than fifty percent (50%) of the
total combined voting power of the Company's outstanding securities.
(e) "Code" means the Internal Revenue Code of 1986, as amended.
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(f) "Common Stock" means the common stock of the Company.
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(g) "Company" means Pericom Semiconductor Corporation, a California
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corporation.
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(h) "Compensation" means an Employee's base salary from the Company
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or one or more Designated Parents or Subsidiaries, including such amounts of
base salary as are deferred by the Employee (i) under a qualified cash or
deferred arrangement described in Section 401(k) of the Code, or (ii) to a plan
qualified under Section 125 of the Code. Compensation does not include overtime,
bonuses, annual awards, other incentive payments, reimbursements or other
expense allowances, fringe benefits (cash or noncash), moving expenses, deferred
compensation, contributions (other than contributions described in the first
sentence) made on the Employee's behalf by the Company or one or more Designated
Parents or Subsidiaries under any employee benefit or welfare plan now or
hereafter established, and any other payments not specifically referenced in the
first sentence.
(i) "Corporate Transaction" means any of the following transactions:
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(1) a merger or consolidation in which the Company is not the
surviving entity, except for a transaction the principal purpose of
which is to change the state in which the Company is incorporated;
(2) the sale, transfer or other disposition of all or
substantially all of the assets of the Company (including the capital
stock of the Company's subsidiary corporations) in connection with
complete liquidation or dissolution of the Company;
(3) any reverse merger in which the Company is the surviving
entity but in which securities possessing more than fifty percent
(50%) of the total combined voting power of the Company's outstanding
securities are transferred to a person or persons different from those
who held such securities immediately prior to such merger; or
(4) acquisition by any person or related group of persons (other
than the Company or by a Company-sponsored employee benefit plan) of
beneficial ownership (within the meaning of Rule 13d-3 of the Exchange
Act) of securities possessing more than fifty percent (50%) of the
total combined voting power of the Company's outstanding securities
(whether or not in a transaction also constituting a Change in
Control), but excluding any such transaction that the Administrator
determines shall not be a Corporate Transaction
(j) "Designated Parents or Subsidiaries" means the Parents or
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Subsidiaries which have been designated by the Administrator from time to time
as eligible to participate in the Plan.
(k) "Effective Date" means November 1, 2000. However, should any
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Designated Parent or Subsidiary become a participating company in the Plan after
such date, then such entity shall designate a separate Effective Date with
respect to its employee-participants.
(l) "Employee" means any individual, including an officer or
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director, who is an employee of the Company or a Designated Parent or Subsidiary
for purposes of Section 423 of
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the Code. For purposes of the Plan, the employment relationship shall be treated
as continuing intact while the individual is on sick leave or other leave of
absence approved by the individual's employer. Where the period of leave exceeds
ninety (90) days and the individual's right to reemployment is not guaranteed
either by statute or by contract, the employment relationship will be deemed to
have terminated on the ninety-first (91st) day of such leave, for purposes of
determining eligibility to participate in the Plan.
(m) "Enrollment Date" means the first day of each Offer Period.
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(n) "Exchange Act" means the Securities Exchange Act of 1934, as
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amended.
(o) "Exercise Date" means the last day of each Purchase Period.
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(p) "Fair Market Value" means, as of any date, the value of Common
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Stock determined as follows:
(1) Where there exists a public market for the Common Stock, the
Fair Market Value shall be (A) the closing price for a share of Common
Stock for the last market trading day prior to the time of the
determination (or, if no closing price was reported on that date, on
the last trading date on which a closing price was reported) on the
stock exchange determined by the Administrator to be the primary
market for the Common Stock or the Nasdaq National Market, whichever
is applicable or (B) if the Common Stock is not traded on any such
exchange or national market system, the average of the closing bid and
asked prices of a share of Common Stock on the Nasdaq Small Cap Market
for the day prior to the time of the determination (or, if no such
prices were reported on that date, on the last date on which such
prices were reported), in each case, as reported in The Wall Street
Journal or such other source as the Administrator deems reliable; or
(2) In the absence of an established market of the type described
in (1), above, for the Common Stock, the Fair Market Value thereof
shall be determined by the Administrator in good faith.
(q) "Offer Period" means an Offer Period established pursuant to
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Section 4 hereof.
(r) "Parent" means a "parent corporation," whether now or hereafter
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existing, as defined in Section 424(e) of the Code.
(s) "Participant" means an Employee of the Company or Designated
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Parent or Subsidiary who is actively participating in the Plan.
(t) "Plan" means this Employee Stock Purchase Plan.
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(u) "Purchase Period" means a period of approximately three months,
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commencing on November 1, February 1, May 1 and August 1 of each year and
terminating on the next following January 31, April 30, July 31 or October 31,
respectively.
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(v) "Purchase Price" shall mean an amount equal to 85% of the Fair
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Market Value of a share of Common Stock on the Enrollment Date or on the
Exercise Date, whichever is lower.
(w) "Reserves" means the sum of the number of shares of Common Stock
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covered by each option under the Plan which have not yet been exercised and the
number of shares of Common Stock which have been authorized for issuance under
the Plan but not yet placed under option.
(x) "Subsidiary" means a "subsidiary corporation," whether now or
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hereafter existing, as defined in Section 424(f) of the Code.
3. Eligibility.
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(a) General. Any individual who is an Employee on a given Enrollment
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Date shall be eligible to participate in the Plan for the Offer Period
commencing with such Enrollment Date.
(b) Limitations on Grant and Accrual. Any provisions of the Plan to
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the contrary notwithstanding, no Employee shall be granted an option under the
Plan (i) if, immediately after the grant, such Employee (taking into account
stock owned by any other person whose stock would be attributed to such Employee
pursuant to Section 424(d) of the Code) would own stock and/or hold outstanding
options to purchase 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 or Subsidiary, or (ii) which permits the Employee's rights to purchase
stock under all employee stock purchase plans of the Company and its Parents or
Subsidiaries to accrue at a rate which exceeds Twenty-Five Thousand Dollars
($25,000) worth of stock (determined at the Fair Market Value of the shares at
the time such option is granted) for each calendar year in which such option is
outstanding at any time. The determination of the accrual of the right to
purchase stock shall be made in accordance with Section 423(b)(8) of the Code
and the regulations thereunder.
(c) Other Limits on Eligibility. Notwithstanding Subsection (a),
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above, the following Employees shall not be eligible to participate in the Plan
for any relevant Offer Period: (i) Employees whose customary employment is 20 or
fewer hours or less per week; (ii) Employees whose customary employment is for
not more than 5 or fewer months in any calendar year; and (iii) Employees who
are subject to rules or laws of a foreign jurisdiction that prohibit or make
impractical the participation of such Employees in the Plan.
4. Offer Periods.
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(a) The Plan shall be implemented through overlapping or consecutive
Offer Periods until such time as (i) the maximum number of shares of Common
Stock available for issuance under the Plan shall have been purchased or (ii)
the Plan shall have been sooner terminated in accordance with Section 19 hereof.
The maximum duration of an Offer Period shall be twenty-four (24) months.
Initially, the Plan shall be implemented through overlapping
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Offer Periods of twenty-four (24) months' duration commencing each November 1,
February 1, May 1 and August 1 following the Effective Date.
(b) A Participant shall be granted a separate option for each Offer
Period in which he or she participates. The option shall be granted on the
Enrollment Date and shall be automatically exercised in successive installments
on the Exercise Dates ending within the Offer Period.
(c) An Employee may participate in only one Offer Period at a time.
Accordingly, except as provided in Section 4(d), an Employee who wishes to join
a new Offer Period must withdraw from the current Offer Period in which the
Employee is participating and must also enroll in the new Offer Period prior to
the Enrollment Date for that Offer Period.
(d) If on the first day of any Purchase Period in an Offer Period in
which a Participant is participating, the Fair Market Value of the Common Stock
is less than the Fair Market Value of the Common Stock on the Enrollment Date of
the Offer Period (after taking into account any adjustment during the Offer
Period pursuant to Section 18(a)), the Offer Period shall be terminated
automatically and the Participant shall be enrolled automatically in the new
Offer Period which has its first Purchase Period commencing on that date,
provided the Participant is eligible to participate in the Plan on that date and
has not elected to terminate participation in the Plan.
(e) Except as specifically provided herein, the acquisition of Common
Stock through participation in the Plan for any Offer Period shall neither limit
nor require the acquisition of Common Stock by a Participant in any subsequent
Offer Period.
5. Participation.
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(a) An eligible Employee may become a Participant in the Plan by
completing a subscription agreement authorizing payroll deductions in the form
of Exhibit A to this Plan and filing it with the designated payroll office of
the Company at least ten (10) business days prior to the Enrollment Date for the
Offer Period in which such participation will commence, unless a later time for
filing the subscription agreement is set by the Administrator for all eligible
Employees with respect to a given Offer Period.
(b) Payroll deductions for a Participant shall commence with the
first partial or full payroll period beginning on the Enrollment Date and shall
end on the last complete payroll period during the Offer Period, unless sooner
terminated by the Participant as provided in Section 10.
6. Payroll Deductions.
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(a) At the time a Participant files a subscription agreement, the
Participant shall elect to have payroll deductions made during the Offer Period
in amounts between one percent (1%) and not exceeding ten percent (10%) of the
Compensation which the Participant receives during the Offer Period.
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(b) All payroll deductions made for a Participant shall be credited
to the Participant's account under the Plan and will be withheld in whole
percentages only. A Participant may not make any additional payments into such
account.
(c) A Participant may discontinue participation in the Plan as
provided in Section 10, or may increase or decrease the rate of payroll
deductions during the Offer Period by completing and filing with the Company a
change of status notice in the form of Exhibit B to this Plan authorizing an
increase or decrease in the payroll deduction rate. Any increase or decrease in
the rate of a Participant's payroll deductions shall be effective with the first
full payroll period commencing ten (10) business days after the Company's
receipt of the change of status notice unless the Company elects to process a
given change in participation more quickly. A Participant's subscription
agreement (as modified by any change of status notice) shall remain in effect
for successive Offer Periods unless terminated as provided in Section 10. The
Administrator shall be authorized to limit the number of payroll deduction rate
changes during any Offer Period.
(d) Notwithstanding the foregoing, to the extent necessary to comply
with Section 423(b)(8) of the Code and Section 3(b) herein, a Participant's
payroll deductions may be decreased to 0% at such time during any Purchase
Period which is scheduled to end during the current calendar year (the "Current
Purchase Period") that the aggregate of all payroll deductions which were
previously used to purchase stock under the Plan in a prior Purchase Period
which ended during that calendar year plus all payroll deductions accumulated
with respect to the Current Purchase Period equal $21,250. Payroll deductions
shall recommence at the rate provided in such Participant's subscription
agreement, as amended, at the beginning of the first Purchase Period which is
scheduled to end in the following calendar year, unless terminated by the
Participant as provided in Section 10.
7. Grant of Option. On the Enrollment Date, each Participant shall
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be granted an option to purchase (at the applicable Purchase Price) up to eight
thousand (8,000) shares of the Common Stock, subject to adjustment as provided
in Section 18 hereof; provided (i) that such option shall be subject to the
limitations set forth in Sections 3(b), 6 and 12 hereof, and (ii) the maximum
number of shares of Common Stock a Participant shall be permitted to purchase in
any Purchase Period shall be one thousand (1,000) shares, subject to adjustment
as provided in Section 18 hereof. Exercise of the option shall occur as
provided in Section 8, unless the Participant has withdrawn pursuant to Section
10, and the option, to the extent not exercised, shall expire on the last day of
the Offer Period.
8. Exercise of Option. Unless a Participant withdraws from the Plan
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as provided in Section 10, below, the Participant's option for the purchase of
shares will be exercised automatically on each Exercise Date, by applying the
accumulated payroll deductions in the Participant's account to purchase the
number of full shares subject to the option by dividing such Participant's
payroll deductions accumulated prior to such Exercise Date and retained in the
Participant's account as of the Exercise Date by the applicable Purchase Price.
No fractional shares will be purchased; any payroll deductions accumulated in a
Participant's account which are not sufficient to purchase a full share shall be
carried over to the next Purchase Period or Offer Period, whichever applies, or
returned to the Participant, if the Participant
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withdraws from the Plan. Notwithstanding the foregoing, any amount remaining in
a Participant's account following the purchase of shares on the Exercise Date
due to the application of Section 423(b)(8) of the Code or Section 7, above,
shall be returned to the Participant and shall not be carried over to the next
Offer Period. During a Participant's lifetime, a Participant's option to
purchase shares hereunder is exercisable only by the Participant.
9. Delivery. Upon receipt of a request from a Participant after
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each Exercise Date on which a purchase of shares occurs, the Company shall
arrange the delivery to such Participant, as promptly as practicable, of a
certificate representing the shares purchased upon exercise of the Participant's
option.
10. Withdrawal; Termination of Employment.
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(a) A Participant may either (i) withdraw all but not less than all
the payroll deductions credited to the Participant's account and not yet used to
exercise the Participant's option under the Plan or (ii) terminate future
payroll deductions, but allow accumulated payroll deductions to be used to
exercise the Participant's option under the Plan at any time by giving written
notice to the Company in the form of Exhibit B to this Plan. If the Participant
elects withdrawal alternative (i) described above, all of the Participant's
payroll deductions credited to the Participant's account will be paid to such
Participant as promptly as practicable after receipt of notice of withdrawal,
such Participant's option for the Offer Period will be automatically terminated,
and no further payroll deductions for the purchase of shares will be made during
the Offer Period. If the Participant elects withdrawal alternative (ii)
described above, no further payroll deductions for the purchase of shares will
be made during the Offer Period, all of the Participant's payroll deductions
credited to the Participant's account will be applied to the exercise of the
Participant's option on the next Exercise Date, and after such Exercise Date,
such Participant's option for the Offer Period will be automatically terminated.
If a Participant withdraws from an Offer Period, payroll deductions will not
resume at the beginning of the succeeding Offer Period unless the Participant
delivers to the Company a new subscription agreement.
(b) Upon termination of a Participant's employment relationship (as
described in Section 2(k)) at a time more than three (3) months from the next
scheduled Exercise Date, the payroll deductions credited to such Participant's
account during the Offer Period but not yet used to exercise the option will be
returned to such Participant or, in the case of his/her death, to the person or
persons entitled thereto under Section 14, and such Participant's option will be
automatically terminated. Upon termination of a Participant's employment
relationship (as described in Section 2(k)) within three (3) months of the next
scheduled Exercise Date, the payroll deductions credited to such Participant's
account during the Offer Period but not yet used to exercise the option will be
applied to the purchase of Common Stock on the next Exercise Date, unless the
Participant (or in the case of the Participant's death, the person or persons
entitled to the Participant's account balance under Section 14) withdraws from
the Plan by submitting a change of status notice in accordance with subsection
(a) of this Section 10. In such a case, no further payroll deductions will be
credited to the Participant's account following the Participant's termination of
employment and the Participant's option under the Plan will be
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automatically terminated after the purchase of Common Stock on the next
scheduled Exercise Date.
11. Interest. No interest shall accrue on the payroll deductions
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credited to a Participant's account under the Plan.
12. Stock.
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(a) Subject to adjustment upon changes in capitalization of the
Company as provided in Section 18, the maximum number of shares of Common Stock
which shall be made available for sale under the Plan shall be 600,000 shares,
plus an annual increase to be added on the first day of the Company's fiscal
year beginning in 2001 equal to the lesser of (i) 300,000 shares, (ii) one and
one-half percent (1.5%) of the outstanding shares on such date, or (iii) a
lesser number of shares determined by the Administrator. If on a given Exercise
Date the number of shares with respect to which options are to be exercised
exceeds the number of shares then available under the Plan, the Administrator
shall make a pro rata allocation of the shares remaining available for purchase
in as uniform a manner as shall be practicable and as it shall determine to be
equitable.
(b) A Participant will have no interest or voting right in shares
covered by the Participant's option until such shares are actually purchased on
the Participant's behalf in accordance with the applicable provisions of the
Plan. No adjustment shall be made for dividends, distributions or other rights
for which the record date is prior to the date of such purchase.
(c) Shares to be delivered to a Participant under the Plan will be
registered in the name of the Participant or in the name of the Participant and
his or her spouse.
13. Administration. The Plan shall be administered by the
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Administrator which shall have full and exclusive discretionary authority to
construe, interpret and apply the terms of the Plan, to determine eligibility
and to adjudicate all disputed claims filed under the Plan. Every finding,
decision and determination made by the Administrator shall, to the full extent
permitted by Applicable Law, be final and binding upon all persons.
14. Designation of Beneficiary.
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(a) Each Participant will file a written designation of a beneficiary
who is to receive any shares and cash, if any, from the Participant's account
under the Plan in the event of such Participant's death. If a Participant is
married and the designated beneficiary is not the spouse, spousal consent shall
be required for such designation to be effective.
(b) Such designation of beneficiary may be changed by the Participant
(and the Participant's spouse, if any) at any time by written notice. In the
event of the death of a Participant and in the absence of a beneficiary validly
designated under the Plan who is living (or in existence) at the time of such
Participant's death, the Company shall deliver such shares and/or cash to the
executor or administrator of the estate of the Participant, or if no such
executor or administrator has been appointed (to the knowledge of the
Administrator), the Administrator
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shall deliver such shares and/or cash to the executor or administrator of the
estate of the Participant, or if no such executor or administrator has been
appointed (to the knowledge of the Administrator), the Administrator shall
deliver such shares and/or cash to the spouse (or domestic partner, as
determined by the Administrator) of the Participant, or if no spouse (or
domestic partner) is known to the Administrator, then to the issue of the
Participant, such distribution to be made per stirpes (by right of
representation), or if no issue are known to the Administrator, then to the
heirs at law of the Participant determined under in accordance with Section 27.
15. Transferability. Neither payroll deductions credited to a
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Participant's account nor any rights with regard to the exercise of an option or
to receive shares under the Plan may be assigned, transferred, pledged or
otherwise disposed of in any way (other than by will, the laws of descent and
distribution or as provided in Section 14 hereof) by the Participant. Any such
attempt at assignment, transfer, pledge or other disposition shall be without
effect, except that the Administrator may treat such act as an election to
withdraw funds from an Offer Period in accordance with Section 10.
16. Use of Funds. All payroll deductions received or held by the
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Company under the Plan may be used by the Company for any corporate purpose, and
the Company shall not be obligated to segregate such payroll deductions.
17. Reports. Individual accounts will be maintained for each
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Participant in the Plan. Statements of account will be given to Participants at
least annually, which statements will set forth the amounts of payroll
deductions, the Purchase Price, the number of shares purchased and the remaining
cash balance, if any.
18. Adjustments Upon Changes in Capitalization; Corporate
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Transactions.
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(a) Adjustments Upon Changes in Capitalization. Subject to any
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required action by the stockholders of the Company, the Reserves, the Purchase
Price, as well as any other terms that the Administrator determines require
adjustment shall be proportionately adjusted for (i) any increase or decrease in
the number of issued shares of Common Stock resulting from a stock split,
reverse stock split, stock dividend, combination or reclassification of the
Common Stock, (ii) any other increase or decrease in the number of issued shares
of Common Stock effected without receipt of consideration by the Company, or
(iii) as the Administrator may determine in its discretion, any other
transaction with respect to Common Stock to which Section 424(a) of the Code
applies; provided, however that conversion of any convertible securities of the
Company shall not be deemed to have been "effected without receipt of
consideration." Such adjustment shall be made by the Administrator and its
determination shall be final, binding and conclusive. Except as the
Administrator determines, no issuance by the Company of shares of stock of any
class, or securities convertible into shares of stock of any class, shall
affect, and no adjustment by reason hereof shall be made with respect to, the
Reserves and the Purchase Price.
(b) Corporate Transactions. In the event of a proposed Corporate
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Transaction, each option under the Plan shall be assumed by such successor
corporation or a parent or subsidiary of such successor corporation, unless the
Administrator determines, in the exercise of its sole discretion and in lieu of
such assumption, to shorten the Offer Period then in progress by setting a new
Exercise Date (the "New Exercise Date"). If the Administrator shortens the
Offer Period then in progress in lieu of assumption in the event of a Corporate
Transaction, the
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Administrator shall notify each Participant in writing, at least ten (10) days
prior to the New Exercise Date, that the Exercise Date for the Participant's
option has been changed to the New Exercise Date and that the Participant's
option will be exercised automatically on the New Exercise Date, unless prior to
such date the Participant has withdrawn from the Offer Period as provided in
Section 10. For purposes of this Subsection, an option granted under the Plan
shall be deemed to be assumed if, in connection with the Corporate Transaction,
the option is replaced with a comparable option with respect to shares of
capital stock of the successor corporation or Parent thereof. The determination
of option comparability shall be made by the Administrator prior to the
Corporate Transaction and its determination shall be final, binding and
conclusive on all persons.
19. Amendment or Termination.
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(a) The Administrator may at any time and for any reason terminate or
amend the Plan. Except as provided in Section 18, no such termination can
affect options previously granted, provided that an Offer Period may be
terminated by the Administrator on any Exercise Date if the Administrator
determines that the termination of the Offer Period is in the best interests of
the Company and its stockholders. Except as provided in Section 18, no
amendment may make any change in any option theretofore granted which adversely
affects the rights of any Participant without the consent of affected
Participants. To the extent necessary to comply with Section 423 of the Code
(or any successor rule or provision or any other Applicable Law), the Company
shall obtain stockholder approval in such a manner and to such a degree as
required.
(b) Without stockholder consent and without regard to whether any
Participant rights may be considered to have been "adversely affected," the
Administrator shall be entitled to limit the frequency and/or number of changes
in the amount withheld during Offer Periods, change the length of Purchase
Periods within any Offer Period, determine the length of any future Offer
Period, whether future Offer Periods shall be consecutive or overlapping,
establish the exchange ratio applicable to amounts withheld in a currency other
than U.S. dollars, establish additional terms, conditions, rules or procedures
to accommodate the rules or laws of applicable foreign jurisdictions, permit
payroll withholding in excess of the amount designated by a Participant in order
to adjust for delays or mistakes in the Company's processing of properly
completed withholding elections, establish reasonable waiting and adjustment
periods and/or accounting and crediting procedures to ensure that amounts
applied toward the purchase of Common Stock for each Participant properly
correspond with amounts withheld from the Participant's Compensation, and
establish such other limitations or procedures as the Administrator determines
in its sole discretion advisable and which are consistent with the Plan.
20. Notices. All notices or other communications by a Participant to
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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 Administrator at the
location, or by the person, designated by the Administrator for the receipt
thereof.
21. Conditions Upon Issuance of Shares. Shares shall not be issued
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with respect to an option unless the exercise of such option and the issuance
and delivery of such shares pursuant thereto shall comply with all Applicable
Laws and shall be further subject to the
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approval of counsel for the Company with respect to such compliance. As a
condition to the exercise of an option, the Company may require the Participant
to represent and warrant at the time of any such exercise that the shares are
being purchased only for investment and without any present intention to sell or
distribute such shares if, in the opinion of counsel for the Company, such a
representation is required by any of the aforementioned Applicable Laws. In
addition, no options shall be exercised or shares issued hereunder before the
Plan shall have been approved by stockholders of the Company as provided in
Section 23.
22. Term of Plan. The Plan shall become effective upon the earlier
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to occur of its adoption by the Board or its approval by the stockholders of the
Company. It shall continue in effect for a term of ten (10) years unless sooner
terminated under Section 19.
23. Stockholder Approval. Continuance of the Plan shall be subject
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to approval by the stockholders of the Company within twelve (12) months before
or after the date the Plan is adopted. Such stockholder approval shall be
obtained in the degree and manner required under Applicable Laws.
24. No Employment Rights. The Plan does not, directly or indirectly,
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create any right for the benefit of any employee or class of employees to
purchase any shares under the Plan, or create in any employee or class of
employees any right with respect to continuation of employment by the Company or
a Designated Parent or Subsidiary, and it shall not be deemed to interfere in
any way with such employer's right to terminate, or otherwise modify, an
employee's employment at any time.
25. No Effect on Retirement and Other Benefit Plans. Except as
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specifically provided in a retirement or other benefit plan of the Company or a
Designated Parent or Subsidiary, participation in the Plan shall not be deemed
compensation for purposes of computing benefits or contributions under any
retirement plan of the Company or a Designated Parent or Subsidiary, and shall
not affect any benefits under any other benefit plan of any kind or any benefit
plan subsequently instituted under which the availability or amount of benefits
is related to level of compensation. The Plan is not a "Retirement Plan" or
"Welfare Plan" under the Employee Retirement Income Security Act of 1974, as
amended.
26. Effect of Plan. The provisions of the Plan shall, in accordance
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with its terms, be binding upon, and inure to the benefit of, all successors of
each Participant, including, without limitation, such Participant's estate and
the executors, administrators or trustees thereof, heirs and legatees, and any
receiver, trustee in bankruptcy or representative of creditors of such
Participant.
27. Governing Law. The Plan is to be construed in accordance with
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and governed by the internal laws of the State of California (as permitted by
Section 1646.5 of the California Civil Code, or any similar successor provision)
without giving effect to any choice of law rule that would cause the application
of the laws of any jurisdiction other than the internal laws of the State of
California to the rights and duties of the parties, except to the extent the
internal laws of the State of California are superseded by the laws of the
United States. Should
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any provision of the Plan be determined by a court of law to be illegal or
unenforceable, the other provisions shall nevertheless remain effective and
shall remain enforceable.
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Pericom Semiconductor Corporation 2000 Employee Stock Purchase Plan
SUBSCRIPTION AGREEMENT
Effective with the Offer Period beginning on:
[_] November 1, 20__ [_] February 1, 20__ [_] May 1, 20__ [_] August 1,20__
Personal Information <modify data requested as appropriate>
Legal Name (Please Print) ____________________________________________________ ________________________ ________________________
(Last) (First) (MI) Location Department
Street Address________________________________________________________________ __________________________________________________
Daytime Telephone
City, State/Country, Zip _____________________________________________________ __________________________________________________
E-Mail Address
Social Security No. __ __ __ - __ __ - __ __ __ __ Employee I.D. No. ________ __________________________________________________
Manager Mgr. Location
Eligibility Any Employee whose customary employment is more than 20 hours per
week and more than 5 months per calendar year and who does not hold (directly or
indirectly) five percent (5%) or more of the combined voting power of the
Company, a parent or a subsidiary, whether in stock or options to acquire stock
is eligible to participate in the Pericom Semiconductor Corporation 2000
Employee Stock Purchase Plan (the "ESPP"); provided, however, that Employees who
are subject to the rules or laws of a foreign jurisdiction that prohibit or make
impractical the participation of such Employees in the ESPP are not eligible to
participate.
Definitions Each capitalized term in this Subscription Agreement shall have
the meaning set forth in the ESPP.
Subscription I hereby elect to participate in the ESPP and subscribe to
purchase shares of the Company's Common Stock in accordance with this
Subscription Agreement and the ESPP. I have received a complete copy of the ESPP
and a prospectus describing the ESPP and understand that my participation in the
ESPP is in all respects subject to the terms of the ESPP. The effectiveness of
this Subscription Agreement is dependent on my eligibility to participate in the
ESPP.
Payroll Deduction Authorization I hereby authorize payroll deductions from my
Compensation during the Offer Period in the percentage specified below (payroll
deductions may not exceed 10% of Compensation nor $21,250 per calendar year):
- --------------------------------------------------------------------------------
Percentage to be Deducted (circle one) 1% 2% 3% 4% 5% 6% 7% 8% 9% 10%
- --------------------------------------------------------------------------------
ESPP Accounts and Purchase Price I understand that all payroll deductions will
be credited to my account under the ESPP. No additional payments may be made to
my account. No interest will be credited on funds held in the account at any
time including any refund of the account caused by withdrawal from the ESPP. All
payroll deductions shall be accumulated for the purchase of Company Common Stock
at the applicable Purchase Price determined in accordance with the ESPP.
Withdrawal and Changes in Payroll Deduction I understand that I may
discontinue my participation in the ESPP at any time prior to an Exercise Date
as provided in Section 10 of the ESPP, but if I do not withdraw from the ESPP,
any accumulated payroll deductions will be applied automatically to purchase
Company Common Stock. I may decrease the rate of my payroll deductions in whole
percentage increments to not less than one percent (1%) during any Offer Period
by completing and timely filing a Change of Status Notice. Any decrease will be
effective for the full payroll period occurring after ten (10) business days
from the Company's receipt of the Change of Status Notice. I may increase the
rate of my payroll deductions in whole percentage increments to not more than
ten percent (10%) during any Offer Period by completing and timely filing a
Change of Status Notice. Any increase will be effective for the next Purchase
Period after the Company's receipt of the Change of Status Notice. Perpetual
Subscription I understand that this Subscription Agreement shall remain in
effect for successive Offer Periods until I withdraw from participation in the
ESPP, or termination of the ESPP. Taxes I have reviewed the ESPP prospectus
discussion of the federal tax consequences of participation in the ESPP and
consulted with tax consultants as I deemed advisable prior to my participation
in the ESPP. I hereby agree to notify the Company in writing within thirty (30)
days of any disposition (transfer or sale) of any shares purchased under the
A-1
ESPP if such disposition occurs within two (2) years of the Enrollment Date (the
first day of the Offer Period during which the shares were purchased) or within
one (1) year of the Exercise Date (the date I purchased such shares), and I will
make adequate provision to the Company for foreign, federal, state or other tax
withholding obligations, if any, which arise upon the disposition of the shares.
In addition, the Company may withhold from my Compensation any amount necessary
to meet applicable tax withholding obligations incident to my participation in
the ESPP, including any withholding necessary to make available to the Company
any tax deductions or benefits contingent on such withholding.
Designation of Beneficiary In the event of my death, I hereby designate the
following person or trust as my beneficiary to receive all payments and shares
due to me under the ESPP: [_] I am single [_] I am married
Beneficiary (please print) ___________________________________________________ Relationship to Beneficiary (if any)
(Last) (First) (MI)
Street Address _______________________________________________________________ ____________________________________
City, State/Country, Zip _____________________________________________________
Termination of ESPP I understand that the Company has the right, exercisable
in its sole discretion, to amend or terminate the ESPP at any time, and a
termination may be effective as early as an Exercise Date (after purchase of
shares on such date) within each outstanding Offer Period.
Date:_____________________ Employee Signature:_________________________
_________________________
spouse's signature (if
beneficiary is other than spouse)
A-2
Pericom Semiconductor Corporation 2000 Employee Stock Purchase Plan
CHANGE OF STATUS NOTICE
___________________________________________
Participant Name (Please Print)
___________________________________________
Social Security Number
================================================================================
Withdrawal From ESPP
I hereby withdraw from the Pericom Semiconductor Corporation 2000
Employee Stock Purchase Plan (the "ESPP") and agree that my option under
the applicable Offer Period will be automatically terminated and all
accumulated payroll deductions credited to my account will be refunded to
me or applied to the purchase of Common Stock depending on the
alternative indicated below. No further payroll deductions will be made
for the purchase of shares in the applicable Offer Period and I shall be
eligible to participate in a future Offer Period only by timely delivery
to the Company of a new Subscription Agreement.
[_] Withdrawal and Purchase of Common Stock
Payroll deductions will terminate, but your account balance will be
applied to purchase Common Stock on the next Exercise Date. Any remaining
balance will be refunded.
[_] Withdrawal Without Purchase of Common Stock
Entire account balance will be refunded to me and no Common Stock will be
purchased on the next Exercise Date provided this notice is submitted to
the Company ten (10) business days prior to the next Exercise Date.
================================================================================
[_] Change in Payroll Deduction
I hereby elect to change my rate of payroll deduction under the ESPP as
follows (select one):
- --------------------------------------------------------------------------------
Percentage to be Deducted (circle one) 1% 2% 3% 4% 5% 6% 7% 8% 9% 10%
- --------------------------------------------------------------------------------
A decrease in payroll deduction will be effective for the first full
payroll period commencing no fewer than ten (10) business days following
the Company's receipt of this notice, unless this change is processed
more quickly.
Any increase will be effective for the next Purchase Period after the
Company's receipt of the Change of Status Notice.
================================================================================
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[_] Change of Beneficiary [_] I am single [_] I am married
This change of beneficiary shall terminate my previous beneficiary
designation under the ESPP. In the event of my death, I hereby designate
the following person or trust as my beneficiary to receive all payments
and shares due to me under the ESPP:
Beneficiary (please print) ___________________________________________________ Relationship to Beneficiary (if any)
(Last) (First) (MI)
Street Address _______________________________________________________________ ____________________________________
City, State/Country, Zip ____________________________________________________
================================================================================
Date:__________________ Employee Signature:______________________________
______________________________
spouse's signature (if
beneficiary is other than spouse)
B-1