Exhibit 10.1
June 2004 (includes Plan Amendment on March 25, 1999, GTSI Name Change Amendment
of May 16, 2000, and Plan Amendment on April 29, 2004)
GTSI CORP.
EMPLOYEE STOCK PURCHASE PLAN
The following constitutes the provisions of the Employee Stock Purchase
Plan (the "Plan") of GTSI Corp. (the "Company").
1. Purpose. The purpose of the Plan is to provide employees of the Company
and its subsidiaries with an opportunity to purchase Common Stock of the Company
through payroll deductions. It is the intention of the Company that the Plan
qualify as an "Employee Stock Purchase Plan" under Section 423 of the Internal
Revenue Code of 1986, as amended (the "Code"). The provisions of the Plan shall,
accordingly, be construed so as to extend and limit participation in a manner
consistent with the requirements of that section of the Code.
2. Definitions.
(a) "Compensation," unless otherwise determined by the Board of
Directors, means total cash compensation from employment reportable on
Form W-2 including, without limitation, regular straight-time gross
earnings, overtime pay, shift premium, incentive compensation, bonuses,
commissions and automobile allowances.
(b) "Employee" means any person, including an officer, who is
customarily employed for more than 20 hours per week and five months or
more per calendar year by the Company or its subsidiaries. For purposes of
the Plan, the employment relationship shall be treated as continuing
intact while he person is on military leave, sick leave or other leave of
absence approved by the Company; provided that where the period of leave
exceeds 90 days and the person's right to reemployment is not guaranteed
either by statute or by contract, the employment relationship will be
deemed to have terminated on the 91st day of such leave.
(c) "Subsidiary" means any corporation described in Section 424 of the
Code in which the Company owns, directly or indirectly, 50% or more of the
voting shares.
(d) "Offering date" means the first business day of an offering period
of the Plan.
(e) "Termination date" means the last business day of an offering
period of the Plan.
3. Eligibility.
(a) General Rule. An Employee, as defined in Section 2, shall be
eligible to participate in the Plan (subject to the limitations imposed by
Section 423(b) of the Code) on the first day of the month following the
commencement of his or her employment by the Company or its Subsidiaries.
(b) Exceptions. Any provisions of the Plan to the contrary
notwithstanding, no Employee shall be granted an option under the Plan if:
(i) immediately after the grant such Employee (or any other person
whose stock ownership would be attributed to such Employee pursuant
to Section 424(d) of the Code) would own shares and/or hold
outstanding options to purchase shares possessing five percent or
more of the total combined voting power or value of all classes of
stock of the Company or of any Subsidiary; or
(ii) such option would permit the Employee's rights to purchase
stock under all employee stock purchase plans (within the meaning
of Section 423 of the Code and any successor provision) of the
Company and its Subsidiaries to accrue (i.e., become exercisable)
at a rate which exceeds $25,000 of fair market value of such stock
(determined at the time such option is granted) for each calendar
year in which such option is outstanding at any time.
4. Offerings. The Plan shall be implemented by two offerings during each
twelve-month period during the term of the Plan commencing on January 1, 1992.
Each offering shall be of six months duration. Offering I shall commence on
January 1 and end on June 30 of each year of the Plan; Offering II shall
commence on July 1 and end on December 31 of each year of the Plan.
Participation in one offering under the Plan shall neither limit nor require
participation in any other offering.
5. Participation. An eligible Employee may become a participant in one or
more offerings under the Plan by completing and signing a subscription agreement
authorizing payroll deductions on a form provided by the Company (the
"Subscription Agreement") and by filing it with the Company's payroll office not
less than 15 days prior to the first offering date with respect to which it is
to be effective, unless a later time for filing the Subscription Agreement has
been set by the Company with respect to a given offering. An Employee's
authorization and participation in the Plan shall become effective on the first
offering date following the timely filing of his Subscription Agreement and
shall remain effective until revoked by the participant by the filing of a
notice of cancellation of option and withdrawal from the Plan as described in
Section 10(a) hereof or until changed by the filing of a Payroll Deduction
Authorization Change or Withdrawal form providing for a change in the
participant's payroll deduction rate. An Employee who becomes eligible to
participate in the Plan after the commencement of an offering period may not
become a participant in the Plan until the commencement of the next offering.
6. Payroll Deductions.
(a) At the time a participant files his or her Subscription Agreement,
he or she shall elect to have payroll deductions made on each Payday
during the next offering period at a percentage rate equal to a whole
number and not exceeding 15%, or such other maximum rate as may be
determined from time to time by the Company's Board of Directors (herein
sometimes referred to as the "Board") subject to the provisions of Section
19 hereof, of the Compensation which he or she receives on each Payday
during the offering period, and the aggregate of such payroll deductions
during the offering period shall not exceed a total of 15%, or such other
percentage determined by the Board, of the participant's Compensation
during such offering period.
(b) Payroll deductions for a participant shall commence on the first
payday following the date when a participant's payroll deduction
authorization becomes effective and shall automatically continue from
offering period to offering period until terminated by the participant in
accordance with the terms hereof.
(c) All payroll deductions authorized by a participant shall be
credited to the participant's individual account under the Plan. A
participant may not make any additional payments into such account.
(d) A participant may terminate his participation in the Plan at any
time prior to the termination of the offering period as provided in
Section 10, but may not change the rate of his payroll deductions with
respect to an offering period during such offering period.
7. Grant of Option.
(a) On each offering date with respect to which a participant's payroll
deduction authorization is effective, each participant in the Plan shall
automatically be granted an option to purchase (at the option price as
provided in Section 7(b) hereof) up to the number of whole shares of the
Company's Common Stock arrived at by dividing (i) an amount equal to 5% of
such participant's Compensation for the 12 calendar months prior to the
offering date, by (ii) 85% of the fair market value of a share of the
Company's Common Stock at the offering date, subject to the limitations
set forth in Sections 3(b) and 12 hereof. If a participant has been
employed for less than 12 calendar months immediately prior to the
offering date, then for purposes of this Section 7(a) such participant's
Compensation for the 12 calendar months prior to the offering date shall
be deemed equal to the amount determined by annualizing the Compensation
paid to such participant prior to such offering date based on the actual
number of whole months that he or she has been an Employee during such
12-month period. The fair market value of a share of the Company's Common
Stock shall be determined as provided in Section 7(c) hereof.
(b) The option price per share of the shares to be sold during each
offering shall be the lower of (i) 85% of the fair market value of a share
of the Common Stock of the Company at the offering date or (ii) 85% of the
fair market value of a share of the Common Stock of the Company at the
termination date.
(c) The fair market value of the Company's Common Stock shall be
determined by the Company's Board of Directors, acting in its sole
discretion, and based upon such factors as the Board determines relevant;
provided, however, if there is a public market for the Common Stock, the
fair market value of a share of Common Stock on a given date shall be the
mean of the closing bid and asked prices for the Common Stock on such
date, as reported in The Wall Street Journal (or, if not so reported, as
otherwise reported by the National Association of Securities Dealers
Automated Quotation ("NASDAQ") System), or, in the event the Common Stock
is listed on a national securities exchange or on the NASDAQ National
Market System, the fair market value per share shall be the closing price
on such exchange or on the NASDAQ National Market System, as reported in
The Wall Street Journal.
8. Exercise of Option. Unless a participant cancels his or her option and
withdraws from the Plan as provided in Section 10, his option for the purchase
of shares shall be exercised automatically at the termination date of the
offering period, and the accumulated payroll deductions credited to a
participant's account on the termination date will be applied to purchase whole
shares of the Company's Common Stock (up to the maximum number subject to option
as determined in Section 7(a) hereof) at the applicable option price. Any amount
credited to a participant's account and not applied to the purchase of Common
Stock by reason of the limitation on the number of shares subject to option
shall be refunded promptly to such participant after the termination date,
provided that any amount remaining in a participant's account and representing a
fractional share shall be carried over and applied to the purchase of shares in
the subsequent offering period if the participant participates in the subsequent
offering. During his or her lifetime, a participant's option to purchase shares
hereunder is exercisable only by such participant.
9. Delivery. After the six (6) month anniversary of the end of each offering
period, the Company as promptly as practicable will arrange the delivery to each
participant, as appropriate, of a certificate representing the shares purchased
upon exercise of his or her option.
10. Withdrawal; Termination of Employment.
(a) A participant may terminate his or her participation in the Plan
and withdraw all, but not less than all, the payroll deductions credited
to his or her account under the Plan at any time prior to a termination
date by giving written notice of withdrawal to the Company on a Payroll
Deduction Authorization Change or Withdrawal form provided for such
purpose. All of the participant's payroll deductions credited to his or
her account shall be paid to him or her promptly after receipt of his or
her notice of withdrawal, and his or her option for the current period
shall be automatically cancelled, and no further payroll deductions for
the purchase of shares shall be made except pursuant to a new Subscription
Agreement filed in accordance with Section 5 hereof.
(b) Upon termination of a participant's employment for any reason,
including retirement or death, as soon as practicable after such
termination, the payroll deductions credited to his or her account shall
be returned to him or her or, in the case of his or her death, to the
person or persons entitled thereto under Section 14, and his or her option
shall be automatically cancelled.
(c) In the event an Employee fails to remain in the continuous employ
of the Company or its Subsidiaries for more than 20 hours per week during
the offering period in which the Employee is a participant, he or she will
be deemed to have elected to withdraw from the Plan and the payroll
deductions credited to his or her account will be returned to him or her
and his or her option will be cancelled.
(d) A participant's withdrawal from an offering shall not have any
effect upon his or her eligibility to participate in a subsequent offering
or in any similar plan which may hereafter be adopted by the Company.
11. Interest. No interest shall accrue on the payroll deductions of a
participant in the Plan.
12. Stock.
(a) The maximum number of shares of the Company's Common Stock which
shall be made available for sale under the Plan shall be Seven Hundred
Fifty Thousand (750,000) shares, subject to adjustment upon changes in
capitalization of the Company as provided in Section 18. The shares to be
sold to participants in the Plan will be authorized but unissued shares.
If the total number of shares which would otherwise be subject to options
granted pursuant to Section 7(a) hereof at the offering date exceeds the
number of shares then available under the Plan (after deduction of all
shares for which options have been exercised or are then outstanding), the
Company shall make a pro rata allocation of the shares remaining available
for option grant in as uniform and equitable a manner as is practicable.
In such event, the Company shall give written notice of such reduction of
the number of shares subject to the option to each participant affected
thereby and shall reduce the rate of payroll deductions, if necessary.
(b) A participant will have no interest or voting right in shares
covered by his or her option until such option has been exercised.
(c) Shares to be delivered to a participant under the Plan shall, as
specified in the participant's Subscription Agreement, 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 Board or a committee
of members of the Board appointed by the Board, as necessary to comply with Rule
16b-3 under the Securities Exchange Act of 1934. The Board or its committee
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; provided, however, that to the extent
necessary to comply with Rule 16b-3 no discretion concerning decisions regarding
the Plan shall be afforded to a person who is not a "disinterested person" as
that term is defined and interpreted under Rule 16b-3. Every finding, decision
and determination made by the Board or its committee shall, to the full extent
permitted by law, be final and binding upon all parties.
14. Designation of Beneficiary.
(a) A participant may 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 subsequent to the
termination date of an offering period but prior to delivery to him of
such shares and cash. In addition, a participant may file a written
designation of a beneficiary who is to receive any cash from the
participant's account under the Plan in the event of such participant's
death prior to the termination date of an offering period.
(b) Such designation of beneficiary may be changed by the participant
at any time by written notice. In the event of the death of a participant
and in the absence of a valid designation of a beneficiary who is living
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 Company), the Company, in its discretion, may deliver
such shares and/or cash to the spouse or to any one or more dependents or
relatives of the participant; or if no spouse, dependent or relative is
known to the Company, then to such other person as the Company may
designate.
15. Transferability. Neither payroll deductions credited to a 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, pursuant to a qualified domestic relations order as defined by the
Code, 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 Company may treat such act as an election to withdraw funds in
accordance with Section 10 hereof.
16. Use of Funds. All payroll deductions received or held by the Company on
behalf of a participant 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 participant in
the Plan. Individual statements of account will be given to participating
Employees semi-annually as promptly as practicable following the termination
date of an offering period, which statements shall set forth the amounts of
payroll deductions, the per share option price, the number of shares purchased
and the remaining cash balance, if any, in a participant's account.
18. Adjustments Upon Changes in Capitalization.
(a) Subject to any required action by the stockholders of the Company,
the number of shares of Common Stock covered by each option under the Plan
which has not yet been exercised and the number of shares of Common Stock
which have been authorized for issuance under the Plan but have not yet
been placed under option or which has been returned to the Plan upon the
cancellation of an option, as well as the option price per share of Common
Stock covered by each option under the Plan which has not yet been
exercised, shall be proportionately adjusted for any increase or decrease
in the number of issued shares of Common Stock resulting from a stock
split, stock dividend, spin-off, reorganization, recapitalization, merger,
consolidation, exchange of shares or the like. Such adjustment shall be
made by the Board, whose determination in that respect shall be final,
binding and conclusive. Except as expressly provided herein, 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 thereof shall be made with respect to, the number or price of
shares of Common Stock subject to option.
(b) In the event of the proposed dissolution or liquidation of the
Company, or in the event of a proposed sale of all or substantially all of
the assets of the Company, or the merger or consolidation of the Company
with or into another corporation, the Board shall (i) make provision for
the assumption of all outstanding options by the successor corporation or
(ii) declare that any option shall terminate as of a date fixed by the
Board which is at least 30 days after the notice thereof and unless a
participant terminates his participation in the Plan prior to such date,
his option for the purchase of shares will be exercised automatically on
such date and the accumulated payroll deductions credited to a
participant's account on such date will be applied to purchase whole
shares of the Company's Common Stock (up to the maximum number subject to
option as determined in accordance with Section 7(a) hereof) at the
applicable option price.
(c) No fractional shares of Common Stock shall be issuable on account
of any adjustment described herein, and the aggregate number of shares
into which shares then covered by an option, when changed as the result of
such adjustment, shall be reduced to the largest number of whole shares
resulting from such adjustment, unless the Board, in its sole discretion,
shall determine to issue scrip certificates in respect to any fractional
shares, which scrip certificates, in such event, shall be in a form and
have such terms and conditions as the Board in its discretion shall
prescribe.
19. Amendment or Termination. The Board of Directors of the Company may at any
time terminate or amend the Plan in such respects as the Board may deem
advisable. No such termination will affect options previously granted, nor may
an amendment make any change in any option theretofore granted which adversely
affects the rights of any participant without the prior written consent of such
participant, nor may an amendment be made without prior approval of the
stockholders of the Company if such amendment would:
(a) Increase the number of shares that may be issued under the Plan;
(b) Materially modify the requirements as to eligibility for
participation in the Plan; or
(c) Materially increase the benefits which accrue to participants under
the Plan.
20. Term of Plan. The Plan shall become effective upon the earlier to occur of
its adoption by the Board or its approval by vote of a majority of the
outstanding shares of the Company entitled to vote on the adoption of the Plan.
The Plan shall continue in effect until November 1, 2011 unless sooner
terminated under Sections 19 or 22 of the Plan.
21. Notices. All notices or other communications by a participant to the
Company in connection with the Plan shall be deemed to have been duly given when
received in the form specified by the Company at the location, or by the person,
designated by the Company for the receipt thereof.
22. Stockholder Approval. Notwithstanding anything to the contrary herein, the
continuance of the Plan and the effectiveness of any option granted hereunder
shall be subject to approval by the affirmative vote of the holders of a
majority of the outstanding shares of stock of the Company present or
represented and entitled to vote thereon at a meeting, within 12 months before
or after the date the Plan is adopted by the Board. No options granted before
such stockholder approval has been obtained shall be exercisable unless such
stockholder approval is obtained. If the Plan is not approved by the
stockholders of the Company within the above-referenced 12-month period, the
Plan and any options granted thereunder shall terminate and all payroll
deductions credited to a participant's account shall be promptly returned to him
or her.
23. No Enlargement of Employee Rights. The Plan is purely voluntary on the
part of the Company, and the continuance of the Plan shall not be deemed to
constitute a contract
between the Company and any Employee, or to be consideration for or a condition
of the employment of any Employee. Nothing contained in this Plan shall be
deemed to give any Employee the right to be retained in the employ of the
Company, its parent, subsidiary or a successor corporation, or to interfere with
the right of the Company or any such corporations to discharge or retire any
Employee thereof at any time. No Employee shall have any right to or interest in
options authorized hereunder prior to the grant of an option to such Employee,
and upon such grant he shall have only such rights and interests as are
expressly provided herein, subject, however, to all applicable provisions of the
Company's Certificate of Incorporation, as the same may be amended from time to
time.
24. Information to Participants. The Company shall provide without charge to
each participant in the Plan copies of such annual and periodic reports as are
provided by the Company to its stockholders generally.
25. Governing Law. To the extent that Federal laws do not otherwise control,
the Plan and all determinations made or actions taken pursuant hereto shall be
governed by the laws of the state of Delaware, without regard to the conflicts
of laws rules thereof, and construed accordingly.
26. Tax Withholding. If, at any time, the Company or any Subsidiary is
required, under applicable laws and regulations, to withhold, or to make any
deduction of, any taxes or take any other action in connection with any exercise
of an option made hereunder or transfer of shares of Common Stock, the Company
or such Subsidiary shall have the right to deduct from all amounts paid in cash
any taxes required by law to be withheld therefrom, and in the case of shares of
Common Stock, the participant or his or her estate or beneficiary shall be
required to pay the Company or such Subsidiary the amount of taxes required to
be withheld, or, in lieu thereof, the Company or such Subsidiary shall have the
right to retain, or sell without notice, a sufficient number of shares of Common
Stock to cover the amount required to be withheld, or to make other arrangements
with respect to withholding as it shall deem appropriate.
27. Securities Law Compliance. No shares of Common Stock may be issued upon
the exercise of any option under the Plan until all requirements of applicable
Federal, state, foreign or other securities laws, with respect to the purchase,
sale and issuance of shares of Common Stock shall have been satisfied. If any
action must be taken because of such requirements, then the purchase, sale and
issuance of shares shall be postponed until such action can reasonably be taken.
Upon demand by the Company, an Employee shall deliver to the Company a
representation in writing that the purchase of shares pursuant to the exercise
of an option hereunder is being made for investment only and not for resale or
with a view to distribution, or such other information, representations or
undertakings as the Company may reasonably require in order to comply with any
registration requirements or exemptions therefrom of applicable securities laws.
The Company may require any securities so issued to bear a legend, may give its
transfer agent instructions, and may take such other steps as in its judgment
are reasonably required to prevent any such violation of applicable securities
laws.
[End]
CERTIFICATE OF SECRETARY
THIS IS TO CERTIFY:
That I am the duly elected, qualified and acting Corporate Secretary of
GTSI Corp., and that the foregoing plan is a true and complete copy of the
Employee Stock Purchase Plan of the Company as authorized, adopted and approved
by the Company's Board of Directors on November 7, 1991 as amended by
resolutions of the Board of Directors through April, 29, 2004.
IN WITNESS WHEREOF, this 3rd day of May, 2004.
/s/ CHARLES DE LEON
------------------------------------
Charles De Leon, Corporate Secretary