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EXHIBIT 10.4
JDS UNIPHASE CORPORATION
1998 EMPLOYEE STOCK PURCHASE PLAN
AS AMENDED OCTOBER 12, 2000
I. PURPOSE
The JDS Uniphase Corporation 1998 EMPLOYEE STOCK PURCHASE PLAN (the "Plan")
is intended to provide eligible employees of the Company and one or more of its
Corporate Affiliates with the opportunity to acquire a proprietary interest in
the Company through participation in a plan designed to qualify as an employee
stock purchase plan under Section 423 of the Internal Revenue Code (the "Code").
II. DEFINITIONS
For purposes of administration of the Plan, the following terms shall have
the meanings indicated:
Compensation means the (i) regular base salary paid to a Participant by one
or more Participating Companies during such individual's period of participation
in the Plan, plus (ii) any amounts contributed by the Corporation or any
Corporate Affiliate pursuant to a salary reduction agreement which are not
includible in the gross income of the Participant by reason of Code Sections
402(e)(3) or 125, plus (iii) all of the following amounts to the extent paid in
cash: overtime payments, bonuses, commissions, profit-sharing distributions and
other incentive-type payments. However, Eligible Earnings shall not include any
contributions (other than those excludible from the Participant's gross income
under Code Sections 402(e)(3) or 125) made on the Participant's behalf by the
Corporation or any Corporate Affiliate to any deferred compensation plan or
welfare benefit program now or hereafter established.
Board means the Board of Directors of the Company.
Company means JDS Uniphase Corporation, a Delaware corporation, and any
corporate successor to all or substantially all of the assets or voting stock of
JDS Uniphase Corporation, which shall by appropriate action adopt the Plan.
Corporate Affiliate means any company which is either the parent
corporation or a subsidiary corporation of the Company (as determined in
accordance with Section 424 of the Code), including any parent or subsidiary
corporation which becomes such after the Effective Date.
Effective Date means August 1, 1998. However, should any Corporate
Affiliate
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become a Participating Company in the Plan after such applicable date, then such
entity shall designate a separate Effective Date with respect to its
employee-Participants.
Employee means any person who is regularly engaged, for a period of more
than 20 hours per week and more than 5 months per calendar year, in the
rendition of personal services to the Company or any other Participating Company
for earnings considered wages under Section 3121(a) of the Code.
Quarter means any three-month period commencing August 1, November 1
February 1 or May 1, during each calendar year during the term of the Plan.
Participant means any Employee of a Participating Company who is actively
participating in the Plan.
Participating Company means the Company and such Corporate Affiliate or
Affiliates as may be designated from time to time by the Board.
Plan Administrator means either the Board or a Committee of the Board that
is responsible for administration of the Plan.
Stock means shares of the common stock of the Company.
III. ADMINISTRATION
(a) The Plan shall be administered by the Plan 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 Plan Administrator shall, to the full extent permitted by Applicable Law, be
final and binding upon all persons.
(b) No member of the Committee while serving as such shall be eligible to
participate in the Plan.
IV. PURCHASE PERIODS
(a) Stock shall be offered for purchase under the Plan through a series of
successive purchase periods until such time as (i) the maximum number of shares
of Stock available for issuance under the Plan shall have been purchased or (ii)
the Plan shall have been sooner terminated in accordance with Article X or
Article XI.
(b) The Plan shall be implemented in a series of overlapping purchase
periods, each to be of such duration (not to exceed twenty-four (24) months per
purchase period) as
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determined by the Plan Administrator prior to the commencement date of the
purchase period. The initial purchase period will begin on the Effective Date
and subsequent purchase periods will commence, at the Plan Administrator's
discretion, either on the first day of each succeeding Quarter or of each
alternate succeeding Quarter. Accordingly, either four (4) or two (2) separate
purchase periods may commence in each subsequent calendar year during which the
Plan remains in existence. The Plan Administrator shall have the authority to
change the length of any purchase period by announcement at least thirty (30)
days prior to the commencement of such purchase period and to determine whether
subsequent purchase periods shall be consecutive or overlapping. A purchase
period may be terminated by the Plan Administrator on any date of exercise if
the Plan Administrator determines that the termination of the purchase period is
in the best interests of the Company and its stockholders.
(c) The Participant shall be granted a separate purchase right for each
purchase period in which he/she participates. The purchase right shall be
granted on the first day of the purchase period and shall be automatically
exercised in (i) successive quarterly installments on the last day of each
Quarter such purchase right remains outstanding, in the case of quarterly
purchase periods, or (ii) successive semi-annual installments on the last day of
each alternate Quarter such purchase right remains outstanding, in the case of
semi-annual purchase periods.
(d) An Employee may participate in only one purchase period at a time.
Accordingly, an Employee who wishes to join a new purchase period must withdraw
from the current purchase period in which he/she is participating and must also
enroll in the new purchase period prior to the commencement date for that
period.
(e) The acquisition of Stock through participation in the Plan for any
purchase period shall neither limit nor require the acquisition of Stock by the
Participant in any subsequent purchase period.
(f) Under no circumstances shall any purchase rights granted under the
Plan be exercised, nor shall any shares of Stock be issued hereunder, until such
time as (i) the Plan shall have been approved by the Company's stockholders and
(ii) the Company shall have complied with all applicable requirements of the
Securities Act of 1933 (as amended), all applicable listing requirements of any
securities exchange on which the Stock is listed and all other applicable
requirements established by law or regulation.
V. ELIGIBILITY AND PARTICIPATION
(a) Every Employee of a Participating Company shall be eligible to
participate in the Plan on the first day of the first purchase period following
the Employee's commencement of service with the Company or any Corporate
Affiliate, but in no event shall participation commence prior to the Effective
Date.
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(b) In order to participate in the Plan for a particular purchase period,
the Employee must complete the enrollment forms prescribed by the Plan
Administrator (including a purchase agreement and a payroll deduction
authorization) and file such forms with the Plan Administrator (or its
designate) prior to the commencement date of the purchase period.
(c) The payroll deduction authorized by a Participant for purposes of
acquiring Stock under the Plan may be any multiple of 1% of Compensation paid to
the Participant during the relevant purchase period, up to a maximum of 10%. The
deduction rate so authorized shall continue in effect for the entire purchase
period unless the Participant shall, prior to the end of the purchase period for
which the purchase right is in effect, reduce the rate by filing the appropriate
form with the Plan Administrator (or its designate). The reduced rate shall
become effective as soon as practicable following the filing of such form. Each
Participant shall be permitted such a rate reduction only four (4) times in each
purchase period. The reduced rate shall continue in effect for the entire
purchase period and for each subsequent purchase period, unless the Participant
shall, prior to the commencement of any subsequent purchase period, designate a
different rate (up to the 10% maximum) by filing the appropriate form with the
Plan Administrator (or its designate). The new rate shall become effective for
the first purchase period commencing after the filing of such form. Payroll
deductions, however, will automatically cease upon the termination of the
Participant's purchase right in accordance with Section VII(d) or (e) below.
VI. STOCK SUBJECT TO PLAN
(a) The Stock purchasable by Participants under the Plan shall, solely in
the Board's discretion, be made available from either authorized but unissued
Stock or from reacquired Stock, including shares of Stock purchased on the open
market. The total number of shares of Stock which may be issued under the Plan
shall not exceed 25,000,000 shares (subject to adjustment under Section VI(b).
(b) In the event any change is made to the Stock purchasable under the
Plan by reason of any recapitalization, stock dividend, stock split, combination
of shares or other change affecting the outstanding common stock of the Company
as a class without receipt of consideration, then appropriate adjustments shall
be made by the Plan Administrator to the class and maximum number of shares
purchasable under the Plan, the class and maximum number of shares purchasable
per Participant under any purchase right outstanding at the time or purchasable
per Participant over the term of the Plan, and the class and number of shares
and the price per share of the Stock subject to outstanding purchase rights held
by Participants under the Plan.
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VII. PURCHASE RIGHTS
An Employee who participates in the Plan for a particular purchase period
shall have the right to purchase Stock on the purchase dates designated by the
Plan Administrator for such purchase period upon the terms and conditions set
forth below and shall execute a purchase agreement embodying such terms and
conditions and such other provisions (not inconsistent with the Plan) as the
Plan Administrator may deem advisable.
(a) Purchase Price. The purchase price per share shall be the lesser of
(i) 85% of the fair market value of a share of Stock on the date on which the
purchase right is granted or (ii) 85% of the fair market value of a share of
Stock on the date the purchase right is exercised. For purposes of determining
such fair market value (and for all other valuation purposes under the Plan),
the fair market value per share of Stock on any date shall be the closing
selling price per share on such date, as officially quoted on the principal
exchange on which the Stock is at the time traded or, if not traded on any
exchange, the mean of the highest bid and the lowest asked prices (or, if such
information is available, the closing price per share) of the Stock on such
date, as reported on the NASDAQ system. If there are no sales of Stock on such
day, then the closing selling price (or, to the extent applicable, the mean of
the highest bid and lowest asked prices) for the Stock on the next preceding day
for which there do exist such quotations shall be determinative of fair market
value.
(b) Number of Purchasable Shares. The number of shares purchasable by a
Participant on any particular purchase date shall be the number of whole shares
obtained by dividing the amount collected from the Participant through payroll
deductions during the quarterly or semi-annual period beginning with the start
of the purchase period or the most recent purchase date in the same purchase
period (whichever is applicable), together with any amount carried over from the
preceding purchase date in the same purchase period pursuant to the provisions
of Section VII(f), by the purchase price in effect for such purchase date.
However, the maximum number of shares purchasable by the Participant pursuant to
any one outstanding purchase right shall not exceed 5,000 shares (subject to
adjustment under Section VI(b)).
Under no circumstances shall purchase rights be granted under the Plan to
any Employee if such Employee would, immediately after the grant, own (within
the meaning of Section 424(d) of the Code), or hold outstanding options or other
rights to purchase, stock possessing 5% or more of the total combined voting
power or value of all classes of stock of the Company or any of its Corporate
Affiliates.
(c) Payment. Payment for Stock purchased under the Plan shall be effected
by means of the Participant's authorized payroll deductions. Such deductions
shall begin on the first pay day coincident with or immediately following the
commencement date of the relevant purchase period and shall terminate with the
pay day ending with or immediately prior to the last day of the purchase period.
The amounts so collected shall be credited to the Participant's individual
account under the Plan, but no interest shall be paid on the balance from time
to time
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outstanding in the account. The amounts collected from a Participant may be
commingled with the general assets of the Company and may be used for general
corporate purposes.
(d) Termination of Purchase Rights.
(i) A Participant may, prior to any purchase date, terminate his/her
outstanding purchase right under the Plan by filing the prescribed
notification form with the Plan Administrator (or its designate). The
Company will then refund the payroll deductions which the Participant made
with respect to the terminated purchase right, and no further amounts will
be collected from the Participant with respect to such terminated right.
(ii) The termination shall be irrevocable with respect to the
particular purchase period to which it pertains and shall also require the
Participant to re-enroll in the Plan (by making a timely filing of a new
purchase agreement and payroll deduction authorization) if the Participant
wishes to resume participation in a subsequent purchase period.
(e) Termination of Employment. If a Participant ceases Employee status
during any purchase period, then the Participant's outstanding purchase right
under the Plan shall immediately terminate and all sums previously collected
from the Participant and not previously applied to the purchase of stock during
such purchase period shall be promptly refunded. However, should the Participant
die or become permanently disabled while in Employee status, then the
Participant or the person or persons to whom the rights of the deceased
Participant under the Plan are transferred by will or by the laws of descent and
distribution (the "successor") will have the election, exercisable at any time
prior to the purchase date for the quarterly or semi-annual period in which the
Participant dies or becomes permanently disabled, to (i) withdraw all of the
funds in the Participant's payroll account at the time of his/her cessation of
Employees status or (ii) have such funds held for purchase of shares of Stock on
the purchase date. In no event, however, shall any further payroll deductions be
added to the Participant's account following his/her cessation of Employee
status.
For purposes of the Plan: (a) a Participant shall be considered to be an
Employee for so long as such Participant remains in the employ of the Company or
any other Participating Company under the Plan and (b) a Participant shall be
deemed to be permanently disabled if he/she is unable, by reason of any
medically determinable physical or mental impairment expected to result in death
or to be of continuous duration of at least twelve (12) months, to engage in any
substantial gainful employment.
(f) Stock Purchase. Outstanding purchase rights shall be automatically
exercised in a series of successive installments as provided in Section IV(c).
The exercise shall be effected by applying the amount credited to the
Participant's account on the last date of the Quarter, in the case of a purchase
period in which purchases are effected quarterly, or the last
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date of the alternate Quarter, in the case of a purchase period in which
purchases are effected semi-annually, to the purchase of whole shares of Stock
(subject to the limitations on the maximum number of purchasable shares set
forth in Section VII(b)) at the purchase price in effect for such purchase date.
Any amount remaining in the Participant's account after such exercise shall be
held for the purchase of Stock on the next quarterly or semi-annual purchase
date within the purchase period; provided, however, that any amount not applied
to the purchase of Stock at the end of a purchase period shall be refunded
promptly after the close of the purchase period and any amount not applied to
the purchase of stock by reason by the Section VII(b) limitations on the maximum
number of purchasable shares shall be refunded promptly after the quarterly or
semi-annual purchase date.
(g) Proration of Purchase Rights. Should the total number of shares of
Stock which are to be purchased pursuant to outstanding purchase rights on any
particular date exceed the number of shares then available for issuance under
the Plan, the Plan Administrator shall make a pro-rata allocation of the
available shares on a uniform and nondiscriminatory basis, and any amounts
credited to the accounts of Participants shall, to the extent not applied to the
purchase of Stock, be refunded to the Participants.
(h) Rights as Stockholder. A Participant shall have no rights as a
stockholder with respect to shares covered by the purchase rights granted to the
Participant under the Plan until the shares are actually purchased on the
Participant's behalf in accordance with Section VII(f). No adjustments shall be
made for dividends, distributions or other rights for which the record date is
prior to the date of such purchase.
A Participant shall be entitled to receive, as soon as practicable after
the date of each purchase, stock certificates for the number of shares purchased
on the Participant's behalf.
(i) Assignability. No purchase rights granted under the Plan shall be
assignable or transferable by a Participant except by will or by the laws of
descent and distribution, and the purchase rights shall, during the lifetime of
the Participant, be exercisable only by such Participant.
(j) Merger or Liquidation of Company. In the event the Company or its
stockholders enter into an agreement to dispose of all or substantially all of
the assets or outstanding capital stock of the Company by means of a sale,
merger or reorganization in which the Company will not be the surviving
corporation (other than a reorganization effected primarily to change the State
in which the Company is incorporated) or in the event the Company is liquidated,
then all outstanding purchase rights under the Plan shall automatically be
exercised immediately prior to such sale, merger, reorganization or liquidation
by applying all sums previously collected from Participants pursuant to their
payroll deductions in effect for such rights to the purchase of whole shares of
Stock, subject, however, to the applicable limitations of Section VII(b).
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VIII. ACCRUAL LIMITATIONS
(a) No Participant shall be entitled to accrue rights to acquire Stock
pursuant to any purchase right under this Plan if and to the extent such
accrual, when aggregated with (I) Stock rights accrued under other purchase
rights outstanding under this Plan and (II) similar rights accrued under other
employee stock purchase plans (within the meaning of Section 423 of the Code) of
the Company or its Corporate Affiliates, would otherwise permit such Participant
to purchase more than $25,000 worth of stock of the Company or any Corporate
Affiliate (determined on the basis of the fair market value of such stock on the
date or dates such rights are granted to the Participant) for each calendar year
such rights are at any time outstanding.
(b) For purposes of applying the accrual limitations of Section VIII(a),
the right to acquire Stock pursuant to each purchase right outstanding under the
Plan shall accrue as follows:
(i) The right to acquire Stock under each such purchase right shall
accrue in a series of successive quarterly or semi-annual installments as
and when the purchase right first becomes exercisable for each installment
as provided in Section IV(c).
(ii) No right to acquire Stock under any outstanding purchase right
shall accrue to the extent the Participant has already accrued in the same
calendar year the right to acquire $25,000 worth of Stock (determined on
the basis of the fair market value on the date or dates of grant) pursuant
to that purchase right or one or more other purchase rights which may have
been held by the Participant during such calendar year.
(iii) If by reason of the Section VIII(a) limitations, the
Participant's outstanding purchase right does not accrue for a particular
purchase date of any purchase period, then the payroll deductions which the
Participant made during that quarterly or semi-annual period with respect
to such purchase right shall be promptly refunded.
(c) In the event there is any conflict between the provisions of this
Article VIII and one or more provisions of the Plan or any instrument issued
thereunder, the provisions of this Article VIII shall be controlling.
IX. STATUS OF PLAN UNDER FEDERAL TAX LAWS
(a) The Plan is designed to qualify as an employee stock purchase plan
under Section 423 of the Code. However, after the Effective Date, the Plan
Administrator may, at its discretion, cease to administer the Plan as a
qualified employee stock purchase plan under Code
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Section 423. Accordingly, share purchases effected under the Plan at any time
after the Plan ceases to be administered as a qualified employee stock purchase
plan under Code Section 423 (whether pursuant to purchase rights granted before
or after the Plan ceases to be qualified) shall result in taxable income to each
Participant equal to the excess of (i) the fair market value of the purchased
shares on the purchase date over (ii) the purchase price paid for such shares.
(b) To the extent required by law, the Company's obligation to deliver
shares to the Participant upon the exercise of any outstanding purchase right
shall be subject to the Participant's satisfaction of all applicable federal,
state and local income and employment tax withholding requirements.
X. AMENDMENT AND TERMINATION
(a) The Board may from time to time alter, amend, suspend or discontinue
the Plan; provided, however, that no such action shall become effective prior to
the exercise of outstanding purchase rights at the end of the quarterly or
semi-annual period in which such action is authorized. To the extent necessary
to comply with Code Section 423, the Company shall obtain stockholder approval
in such a manner and to such a degree as required.
(b) The Company shall have the right, exercisable in the sole discretion
of the Plan Administrator, to terminate the Plan immediately following the end
of a quarterly or semi-annual purchase date. Should the Company elect to
exercise such right, then the Plan shall terminate in its entirety, and no
further purchase rights shall thereafter be granted, and no further payroll
deductions shall thereafter be collected, under the Plan.
XI. GENERAL PROVISIONS
(a) The Plan shall terminate upon the earlier of (i) August 1, 2008 or
(ii) the date on which all shares available for issuance under the Plan shall
have been sold pursuant to purchase rights exercised under the Plan.
(b) All costs and expenses incurred in the administration of the Plan
shall be paid by the Company.
(c) Neither the action of the Company in establishing the Plan, nor any
action taken under the Plan by the Plan Administrator, nor any provision of the
Plan itself shall be construed so as to grant any person the right to remain in
the employ of the Company or any of its Corporate Affiliates for any period of
specific duration, and such person's employment may be terminated at any time,
with or without cause.
(d) Governing Law. The Plan is to be construed in accordance with 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
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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 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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