EXHIBIT 10.8
WHITE PINE SOFTWARE, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
(Amended and Restated as of December 16, 1998)
SECTION 1. PURPOSE
This White Pine Software, Inc. 1996 Employee Stock Purchase Plan, as
amended and restated as of December 16, 1998 (the "Plan"), is intended to
provide a method whereby employees of White Pine Software, Inc. and certain of
its subsidiaries will have an opportunity to acquire ownership interests (or
increase their existing ownership interests) in White Pine Software, Inc.
through the purchase of shares of common stock, $.01 par value, of White Pine
Software, Inc. ("Common Stock"). It is the intention of White Pine Software,
Inc. that 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
provisions of the Plan shall be construed so as to extend and limit
participation in a manner consistent with the requirements of Section 423 of the
Code.
SECTION 2. DEFINITIONS
As used herein, the following terms shall have the indicated meanings:
(a) "Board" means the Board of Directors of the Company.
(b) "Committee" means the Compensation Committee of the Board.
(c) "Company" means White Pine Software, Inc., as well as any
Subsidiary designated as a participant in the Plan by the
Board, unless the context otherwise requires.
(d) "Compensation" means, for the purpose of any Offering pursuant
to the Plan, base pay in effect as of the Offering
Commencement Date, provided that "Compensation" shall not
include any deferred compensation other than contributions by
an individual through a salary reduction agreement to a cash
or deferred plan pursuant to Section 401(k) of the Code or to
a cafeteria plan pursuant to Section 125 of the Code.
(e) "Designated Officer" means the Treasurer of White Pine
Software, Inc. or, if there is no person serving as Treasurer,
the chief financial officer of White Pine Software, Inc.
(whether or not the person serving in such capacity has the
title of Chief Financial Officer).
(f) "Employee" means any person who is customarily employed by the
Company for more than twenty hours per week and more than five
months in any calendar year.
(g) "Offering," "Offering Commencement Date" and "Offering
Termination Date" have the respective meanings set forth in
Section 4.
(h) "Subsidiary" means any present or future corporation that is
or would constitute a "subsidiary corporation" of White Pine
Software, Inc., as that term is defined in Section 424(f) of
the Code.
SECTION 3. ELIGIBILITY
(a) Participation in the Plan is completely voluntary. Participation in
any one or more of the Offerings under the Plan shall neither limit nor require
participation in any other Offering.
(b) Each employee of the Company shall be eligible to participate in the
Plan on the first Offering Commencement Date following the completion of six
months of continuous service with the Company. Notwithstanding the foregoing, no
employee shall be granted an option under the Plan:
(i) if, immediately after the grant, such employee would own stock,
and/or hold outstanding options to purchase stock, possessing three
percent or more of the total combined voting power or value of all classes
of stock of the Company or any Subsidiary (it being understood that, for
purposes of this Section, the rules of Section 424(d) of the Code shall
apply in determining the stock ownership of any employee); and
(ii) that permits his rights to purchase stock under all Section 423
employee stock purchase plans of the Company and its Subsidiaries to
exceed $25,000 of the fair market value of the stock (determined at the
time such option is granted) for each calendar year in which such option
is outstanding (it being understood that, for purposes of this Section,
the rules of Section 423(b)(8) of the Code shall apply).
SECTION 4. OFFERING DATES
The right to purchase stock hereunder shall be made available by a series
of six-month offerings (each an "Offering" and collectively "Offerings") to
employees eligible in accordance with Section 3. The Committee will, in its
discretion, determine the applicable date of commencement ("Offering
Commencement Date") and termination date ("Offering Termination Date") for each
Offering. Participation in any one or more of the Offerings shall neither limit
nor require participation in any other Offering.
SECTION 5. PARTICIPATION
Any eligible employee may become a participant in an Offering by
completing a payroll deduction authorization form provided by the Company and
filing it with the Designated Officer of the Company at least five business days
prior to the applicable Offering Commencement Date, as determined by the
Committee pursuant to Section 4. A participant who obtains shares of Common
Stock in one Offering will be deemed to have elected to participate in each
subsequent Offering, provided such participant is eligible to participate in the
subsequent Offering and has not specifically elected not to participate in the
Offering. Such participant will also be deemed to have authorized the same
payroll deductions under Section 6 for each such subsequent Offering as in the
immediately preceding Offering; provided, however, that, during the enrollment
period prior to each new Offering, the participant may elect to change such
participant's payroll deductions by submitting a new payroll deduction
authorization form.
SECTION 6. PAYROLL DEDUCTIONS
(a) At the time a participant files a payroll deduction authorization form
with respect to an Offering, the participant shall elect to have deductions made
from the participant's pay on each payday during the Offering in which he or she
is a participant, at a specified percentage of the participant's Compensation as
determined on the applicable Offering Commencement Date. The specified
percentage shall be in increments of one percent up to a maximum percentage of
six percent.
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(b) Payroll deductions for a participant shall commence on the Offering
Commencement Date when the applicable authorization for a payroll deduction
becomes effective and, subject to the last sentence of Section 6, shall end on
the Offering Termination Date of the Offering to which such authorization is
applicable, unless sooner terminated by the participant as provided in Section
9.
(c) All payroll deductions made for a participant shall be credited to the
participant's account under the Plan. A participant may not make any separate
cash payment into such account.
SECTION 7. GRANTING OF OPTION
(a) Except as provided in Section 3(b)(ii), on the Offering Commencement
Date of each Offering, a participating employee shall be deemed to have been
granted an option to purchase a maximum number of shares of the Common Stock
determined as follows: (i) 85% of the market value per share of the Common Stock
(determined as provided in Section 7(b)(i)) on the applicable Offering
Commencement Date shall be divided into the percentage of the employee's
Compensation which the employee has elected to have withheld (multiplied by the
employee's Compensation over the Offering Period), multiplied by (ii) two.
(b) The option price of the Common Stock purchased with payroll deductions
made during each such Offering for a participant therein shall be the lower of:
(i) 85% of the average of the bid and asked prices as reported by
Nasdaq Stock Market, Inc. in The Wall Street Journal, or, if the Common
Stock is designated as a Nasdaq National Market security, the last trading
price of the Common Stock as reported on the Nasdaq National Market in The
Wall Street Journal, or, if the Common Stock is listed on an exchange, the
closing price of the Common Stock on the exchange on the Offering
Commencement Date applicable to such Offering (or on the next regular
business date on which shares of the Common Stock shall be traded, in the
event that no shares of the Common Stock have been traded on the Offering
Commencement Date); or if the Common Stock is not quoted by Nasdaq Stock
Market, Inc., not designated as a Nasdaq National Market security and not
listed on an exchange, 85% of the fair market value on the Offering
Commencement Date as determined by the Committee; and
(ii) 85% of the average of the bid and asked prices as reported by
Nasdaq Stock Market, Inc. in The Wall Street Journal, or, if the Common
Stock is designated as a Nasdaq National Market security, the last trading
price of the Common Stock as reported by the Nasdaq National Market in The
Wall Street Journal, or, if the Common Stock is listed on an exchange, the
closing price of the Common Stock on the exchange on the Offering
Termination Date applicable to such Offering (or on the next regular
business date on which shares of the Common Stock shall be traded, in the
event that no shares of the Common Stock shall have been traded on the
Offering Termination Date); or if the Common Stock is not quoted by Nasdaq
Stock Market, Inc., not designated as a Nasdaq National Market security
and not listed on an exchange, 85% of the fair market value on the
Offering Termination Date as determined by the Committee.
SECTION 8. EXERCISE OF OPTION
(a) Unless a participant gives written notice to the Designated Officer
as hereinafter provided, the participant's option for the purchase of Common
Stock with payroll deductions made during any Offering will be deemed to have
been exercised automatically on the Offering Termination Date applicable to
such Offering for the purchase of the number of full shares of Common Stock
which the accumulated payroll deductions in the participant's account at that
time will purchase at the applicable option price (but not in excess of the
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number of shares for which options have been granted to the participant
pursuant to Section 7(a)), and any excess in the participant's account at
that time will be returned to the participant, without interest.
(b) Fractional shares will not be issued under the Plan and any
accumulated payroll deductions that would have been used to purchase fractional
shares shall be automatically carried forward to the next Offering unless the
participant elects, by written notice to the Designated Officer, to have the
excess cash returned to the participant.
SECTION 9. WITHDRAWAL AND TERMINATION
(a) Prior to the Offering Termination Date for an Offering, any
participant may withdraw the payroll deductions credited to the participant's
account for such Offering under the Plan by giving written notice to the
Designated Officer. All of the participant's payroll deductions credited to such
account will be paid to the participant promptly after receipt of notice of
withdrawal, without interest, and no future payroll deductions will be made from
the participant's pay during such Offering. The Company will treat any attempt
to borrow by a participant on the security of accumulated payroll deductions as
an election to withdraw such deductions.
(b) A participant's election not to participate in, or withdrawal from,
any Offering will not have any effect upon the participant's eligibility to
participate in any succeeding Offering or in any similar plan which may
hereafter be adopted by the Company.
(c) Upon termination of the participant's employment for any reason,
including retirement but excluding death, the payroll deductions credited to the
participant's account will be returned to the participant, or, in the case of
the participant's death, to the person or persons entitled thereto under Section
13.
(d) Upon termination of the participant's employment because of death, the
participant's beneficiary (as designated pursuant to Section 13) shall have the
right to elect, by written notice given to the Designated Officer prior to the
expiration of a period of ninety days commencing with the date of the death of
the participant, either:
(i) to withdraw all of the payroll deductions credited to the
participant's account under the Plan; or
(ii) to exercise the participant's option for the purchase of stock
on the Offering Termination Date next following the date of the
participant's death for the purchase of the number of full shares which
the accumulated payroll deductions in the participant's account at the
date of the participant's death will purchase at the applicable option
price (subject to the limitation contained in Section 7(a)), and any
excess in such account will be returned to said beneficiary. In the event
that no such written notice of election shall be duly received by the
office of the Designated Officer, the beneficiary shall automatically be
deemed to have elected to withdraw the payroll deductions credited to the
participant's account at the date of the participant's death and the same
will be paid promptly to said beneficiary.
SECTION 10. INTEREST
No interest will be paid or allowed on any money paid into the Plan or
credited to the account of any participating employee.
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SECTION 11. STOCK
(a) The maximum number of shares of Common Stock available for issuance
and purchase by employees under the Plan (including shares issued prior to the
amendment and restatement hereof on December 16, 1998), subject to adjustment
upon changes in capitalization of the Company as provided in Section 16, shall
be 200,000 shares. If the total number of shares for which options are exercised
on any Offering Termination Date in accordance with Section 8 exceeds the number
of shares that remain available for issuance and purchase by employees under the
Plan, the Company shall make a pro rata allocation of the shares available for
delivery and distribution in an equitable manner, with the balances of payroll
deductions credited to the account of each participant under the Plan returned
to each participant.
(b) The participant will have no interest in the stock covered by the
participant's option until such option has been exercised.
SECTION 12. ADMINISTRATION
The Plan shall be administered by the Committee. The interpretation and
construction of any provision of the Plan and adoption of rules and regulations
for administering the Plan shall be made by the Committee. Determinations made
by the Committee with respect to any matter or provision contained in the Plan
shall be final, conclusive and binding upon the Company and upon all
participants, their heirs or legal representatives. Any rule or regulation
adopted by the Committee shall remain in full force and effect unless and until
altered, amended or repealed by the Committee.
SECTION 13. DESIGNATION OF BENEFICIARY
A participant shall file with the Designated Officer a written designation
of a beneficiary who is to receive any Common Stock and/or cash under the Plan.
Such designation of beneficiary may be changed by the participant at any time by
written notice. Upon the death of a participant and upon receipt by the Company
of proof of the identity and existence of a beneficiary validly designated by
the participant under the Plan, the Company shall deliver such Common Stock
and/or cash to such beneficiary. In the event of the death of a participant and
in the absence of a beneficiary validly designated under the Plan who is living
at the time of such participant's death, the Company shall deliver such Common
Stock and/or cash to the executor or administrator of the estate of the
participant. No beneficiary shall, prior to the death of the participant by whom
he or she has been designated, acquire any interest in the Common Stock and/or
cash credited to the participant under the Plan.
SECTION 14. TRANSFERABILITY
Neither payroll deductions credited to a participant's account nor any
rights with regard to the exercise of an option or to receive Common Stock under
the Plan may be assigned, transferred, pledged or otherwise disposed of in any
way by the participant other than by will or the laws of descent and
distribution. Any such attempted 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 9(a).
SECTION 15. USE OF FUNDS
All payroll deductions received or held by the 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.
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SECTION 16. EFFECT OF CHANGES OF COMMON STOCK
If at any time after the effective date of the Plan the Company shall
subdivide or reclassify the Common Stock which has been or may be optioned under
the Plan, or shall declare thereon any dividend payable in shares of such Common
Stock, or shall take any other action of a similar nature affecting such Common
Stock, then the number and class of shares of Common Stock which may thereafter
be optioned (in the aggregate and to any participant) shall be adjusted
accordingly and in the case of each option outstanding at the time of any such
action, the number and class of shares which may thereafter be purchased
pursuant to such option and the option price per share shall be adjusted to such
extent as may be determined by the Committee, following consultation with the
Company's independent public accountants and counsel, to be necessary to
preserve the rights of the holder of such option.
SECTION 17. AMENDMENT OR TERMINATION
The Board may at any time terminate or amend the Plan. No such termination
shall affect options previously granted, nor may an amendment make any change in
any option theretofore granted which would adversely affect the rights of any
participant holding options under the Plan.
SECTION 18. NOTICES
All notices or other communications by a participant to the Company under
or in connection with the Plan shall be deemed to have been duly given when
received by the Designated Officer.
SECTION 19. MERGER OR CONSOLIDATION
If the Company shall at any time merge into or consolidate with another
corporation, the holder of each option then outstanding will thereafter be
entitled to receive at the next Offering Termination Date, upon the exercise of
such option and for each share as to which such option shall be exercised, the
securities or property which a holder of one share of the Common Stock was
entitled to upon and at the time of such merger or consolidation. In accordance
with this Section and Section 16, the Committee shall determine the kind and
amount of such securities or property which such holder of an option shall be
entitled to receive. A sale of all or substantially all of the assets of the
Company shall be deemed a merger or consolidation for the foregoing purposes.
SECTION 20. APPROVAL OF STOCKHOLDERS
The Plan is subject to the approval of the stockholders of the Company by
written consent or at their next annual meeting or at any special meeting of the
stockholders for which one of the purposes of such a special meeting shall be to
act upon the Plan.
SECTION 21. GOVERNMENTAL AND OTHER REGULATIONS
The Plan, and the grant and exercise of the rights to purchase shares
hereunder, and the Company's obligation to sell and deliver shares upon the
exercise of rights to purchase shares, shall be subject to all applicable
federal, state and foreign laws, rules and regulations, and to such approvals by
any regulatory or governmental agency as may, in the opinion of counsel for the
Company, be required. The Plan shall be governed by, and construed and enforced
in accordance with, the provisions of Sections 421, 423 and 424 of the Code and
the substantive laws of the State of New Hampshire. In the event of any
inconsistency between such provisions of the Code and any such laws, the
provisions of the Code shall govern to the extent necessary
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to preserve the favorable federal income tax treatment afforded employee stock
purchase plans under Section 423 of the Code.
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