Exhibit 4.7
GIGAMEDIA LIMITED
EMPLOYEE SHARE PURCHASE PLAN
ARTICLE I
PURPOSE; EFFECTIVE DATE
1.01 The purpose of this GigaMedia Limited Employee Share Purchase Plan
(the "Plan") is to provide employees of GigaMedia Limited (the "Company") and
its Subsidiary Corporations with an opportunity to acquire a proprietary
interest in the Company through the purchase of Company Stock (as defined
below). It is the intention of the Company that the Plan qualifies as an
"employee stock purchase plan" under Section 423 of the Code. Accordingly, the
provisions of the Plan shall be construed in a manner consistent with the
requirements of that Section of the Code. The Plan is effective as of July 1,
2004, subject to approval by the Company's shareholders.
ARTICLE II
DEFINITIONS
2.01 "Account" means the account maintained on behalf of each Participant
by the Custodian for the purpose of investing in Company Stock.
2.02 "Beneficiary" means a person designated as a beneficiary pursuant to
Section 9.01.
2.03 "Board" means the Board of Directors of the Company.
2.04 "Code" means the United States Internal Revenue Code of 1986, as
amended from time to time, including regulations issued thereunder and successor
provisions and regulations thereto.
2.05 "Committee" means the individuals appointed by the Board to administer
the Plan.
2.06 "Company Stock" means Company ordinary shares, par value NT$10 per
share.
2.07 "Contribution" means an amount not to exceed two months of the
Employee's Salary that the Employee elects to contribute to his or her Account.
2.08 "Custodian" means the person or entity designated by the Company to
act as custodian for the Plan or any successor thereto.
2.09 "Employee" means any person who is employed by the Company or a
Subsidiary Corporation.
2.10 "Exercise Date" means the last day of the Offering Period.
2.11 "Fair Market Value" means the fair market value of a share of Company
Stock, which, as of any given date, shall be the closing price of a share of
Company Stock reported on a consolidated basis for securities listed on the
NASDAQ Stock Market for trades on the date as of which such value is being
determined or, if that day is not a Trading Day, then on the latest previous
Trading Day.
2.12 "Holding Period" means the period beginning on the Exercise Date and
ending on the date on which all shares and cash have been distributed from a
Participant's Account.
2.13 "Offering Period" means the one-month period to be determined by the
Committee.
2.14 "Participant" means any Employee who (i) is eligible to participate in
the Plan under Section 3.01 hereof and (ii) elects to participate.
2.15 "Plan" means this GigaMedia Limited Employee Share Purchase Plan.
2.16 "Purchase Price" means an amount equal to the lesser of (a) 85% of the
Fair Market Value of a share of Company Stock on the first day of the Offering
Period or (b) 85% of the Fair Market Value of a share of Company Stock on the
Exercise Date.
2.17 "Salary" means base cash remuneration that is paid to the Employee,
whether on a salaried or hourly basis, by the Company or any Subsidiary
Corporation during the calendar year for the performance of services and
includible in gross income.
2.18 "Subsidiary Corporation" means any corporation (other than the
Company) in an unbroken chain of corporations beginning with the Company if, at
the time of granting a purchase right, each of the corporations (other than the
last corporation in the unbroken chain) owns stock possessing more than 50% of
the total combined voting power of all classes of stock in one of the other
corporations in such chain.
2.19 "Subscription Period" means the two-week period beginning 21 days
prior to the first day of the Offering Period.
2.20 "Trading Day" means a day on which the NASDAQ Stock Market is open for
trading.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
3.01 All Employees who are employed by the Company on the last day of the
Subscription Period shall be eligible to participate in the Plan.
3.02 An eligible Employee may become a Participant in the Plan by giving
telephonic (or, if so permitted or prescribed by the Committee, another form of)
notice to the Custodian in such manner and form as prescribed by the Committee
prior to or during the Subscription Period; provided, however, that any Employee
whose employment begins during the Subscription Period may elect to participate
in the Plan by giving notice to the Custodian in such form as the Committee
shall determine at any time prior to the first day of the Offering Period.
3.03 Notwithstanding any provisions of the Plan to the contrary, no
Employee shall be granted a purchase right under the Plan to the extent that:
(a) immediately after the grant, such Employee would own stock, and/or hold
outstanding options, possessing 5% or more of the total combined voting power or
value of all classes of stock of the Company or a Subsidiary Corporation
(determined under the rules of Section 424(d) of the Code);
(b) immediately after the grant, such Employee's right to purchase Company
Stock under all employee stock purchase plans (as defined in Section 423 of the
Code) of the Company and any Subsidiary Corporation would accrue at a rate which
exceeds $25,000 in fair market value of such Company Stock (determined at the
time such purchase right is granted) for each calendar year in which such
purchase right would be outstanding at any time; or
(c) such Employee's customary employment is less than 20 hours per week.
ARTICLE IV
CONTRIBUTIONS
4.01 No later than the first day of the Offering Period, each Employee who
has given notice to the Custodian shall deliver to the Custodian his or her
Contribution in the form of cash or cash equivalents. If the Employee does not
deliver the Contribution to the Custodian on or prior to the first day of the
Offering Period, the Custodian will not accept the Contribution and the Employee
will not be permitted to participate in the Plan.
4.02 An individual Account shall be maintained by the Custodian for each
Participant in the Plan. Each Participant's Contribution shall be credited to
his or her Account. No interest shall accrue or be paid on any Contributions or
any other amounts credited to a Participant's Account.
4.03 A Participant may discontinue his or her participation in the Plan
during the Offering Period by giving telephonic (or, if so permitted or
prescribed by the Committee, another form of) instructions authorizing the
Participant's withdrawal and requesting a full refund of his or her
Contribution. A Participant may not discontinue his or her participation in part
during the Offering Period. Any such partial discontinuation shall be deemed a
discontinuation in full and such Participant's Contribution shall be refunded in
full.
4.04 If the number of shares of Company Stock available for purchase under
the Plan is insufficient to grant to each Participant the right to purchase the
full number of shares to which he or she otherwise would be entitled, then each
Participant will have the right to purchase that number of available shares of
Company Stock that is equal to the total number of available shares of Company
Stock multiplied by a fraction, the numerator of which is the Contribution
credited to the Participant's Account and the denominator of which is the total
amount of Contributions credited to the Accounts of all Participants. In such
event, the Committee shall give written notice to each Participant of such
reduction of the number of purchase rights affected thereby and shall refund any
Contributions in excess of the Fair Market Value of the shares of Company Stock
credited to a Participant's Account.
ARTICLE V
GRANT AND EXERCISE OF PURCHASE RIGHT
5.01 On the first day of the Offering Period, each Participant shall be
deemed to have been granted a purchase right on the Exercise Date, at the
applicable Purchase Price, of a number of shares of Company Stock determined by
dividing such Participant's Contribution credited to his or her Account by the
applicable Purchase Price; provided that such purchase shall be subject to the
limitations set forth in Sections 3.03 and 7.01. Exercise of the purchase right
shall occur as provided in Section 5.02, unless the Participant has withdrawn
the amount credited to his or her Account upon withdrawal from the Plan pursuant
to Section 4.03 or such amount has been distributed to the Participant or the
Beneficiary upon termination of employment pursuant to Section 6.01 or upon
authorized leave of absence pursuant to Section 6.02. To the extent not
exercised, the purchase right shall expire at the end of the business day on the
Exercise Date.
5.02 A Participant's purchase right shall be exercised automatically on the
Exercise Date, and the maximum number of whole shares subject to the purchase
right shall be purchased for such Participant at the applicable Purchase Price
with the Contribution credited to his or her Account. Participants will receive
cash in lieu of fractional shares based on the Fair Market Value of a share of
Company Stock on the Exercise Date, which amounts will be paid within 30 days
following the Exercise Date. On the offering date, this Plan shall be deemed to
have granted to the participant an option for as many full shares as he/she will
be able to purchase with the payroll deductions credited to his/her account
during his participation in that offering. Notwithstanding the foregoing, no
participant may purchase more than 50,000 shares of stock during any single
offering period.
5.03 During a Participant's lifetime, purchase rights held by such
Participant shall be exercisable only by that Participant and are not
transferable other than by will or by the laws of descent and distribution.
(a) At or as promptly as practicable after the Exercise Date, the Company
shall deliver the shares of Company Stock purchased to the Custodian for deposit
into the Participants' Accounts. Such shares shall be held in such Accounts for
no less than six months following the Exercise Date. Any attempt to sell or
otherwise transfer such shares shall be without effect.
(b) Each Participant will be entitled to vote the number of shares of
Company Stock credited to his or her Account on any matter as to which the
approval of the Company's stockholders is sought. If a Participant does not vote
or grant a valid proxy with respect to shares credited to his or her Account,
such shares will be voted by the Custodian in accordance with any stock exchange
or other rules governing the Custodian in the voting of shares held for customer
accounts. Similar procedures will apply in the case of any consent solicitation
of the Company's stockholders. Each Participant shall be entitled to receive
dividends payable on the number of shares of Company Stock credited to his or
her Account.
5.04 Following the completion of six months following the Exercise Date, a
Participant may elect to withdraw from his or her Account shares of Company
Stock acquired during the Offering Period or may elect to transfer such shares
from his or her Account to an account of the Participant maintained with a
broker-dealer or financial institution. If a Participant elects to withdraw
shares from his or her Account, one or more certificates for whole shares shall
be issued in the name of, and delivered to, the Participant, with such
Participant receiving cash in lieu of fractional shares based on the Fair Market
Value of a share of Company Stock on the date of withdrawal. If shares of
Company Stock are transferred from a Participant's Account to a broker-dealer or
financial institution that maintains an account for the Participant, only whole
shares shall be transferred and cash in lieu of any fractional share shall be
paid to such Participant based on the Fair Market Value of a share of Company
Stock on the date of transfer. A Participant seeking to withdraw or transfer
shares of Company Stock must give telephonic (or, if so permitted or prescribed
by the Committee, another form of) instructions to the Custodian in such form
and manner as may be prescribed by the Custodian, which instructions will be
acted upon as promptly as practicable. Withdrawals and transfers will be subject
to any fees imposed in accordance with Section 8.04.
ARTICLE VI
WITHDRAWAL FROM PLAN AND TERMINATION OF EMPLOYMENT
6.01 Upon a Participant's termination of employment with the Company and
all Subsidiary Corporations for any reason (including termination because of the
Participant's death) during the Offering Period, Contributions credited to such
Participant's Account but not yet used to exercise the purchase right shall be
returned to such Participant or, in the case of his or her death, to the
Participant's Beneficiary, and such Participant's purchase right shall be
automatically terminated. Upon a Participant's termination of employment with
the Company and all Subsidiary Corporations for any reason (including
termination because of the Participant's death) during the Holding Period, the
shares of Company Stock in the Participant's Account shall be transferred: (a)
in certificated form to the Participant or, in the case of his or her death, the
Beneficiary, or (b) into to an account of the Participant (or the Participant's
Beneficiary) maintained with a broker-dealer or financial institution. The
provisions of Section 5.04 shall apply to a distribution of shares of Company
Stock on termination of employment under this Section 6.01.
6.02 If a Participant goes on an authorized leave of absence for any
reason, such Participant shall have the right to elect to: (a) withdraw from the
Plan and receive a refund of his or her Contribution or (b) remain a Participant
in the Plan during such leave of absence.
6.03 For the purposes of the Plan, a Participant's employment with the
Company or a Subsidiary Corporation shall be considered to have terminated
effective on the last day of the Participant's actual and active employment with
the Company or Subsidiary Corporation, whether such day is selected by agreement
with the Participant or unilaterally by the Company or Subsidiary Corporation
and whether with or without advance notice to the
Participant. For the avoidance of doubt, no period of notice that is given or
ought to have been given under applicable law in respect of such termination of
employment will be taken into account in determining entitlement under the Plan.
ARTICLE VII
COMPANY STOCK
7.01 Subject to adjustment as provided in Section 7.02 hereof, the maximum
number of shares of Company Stock which shall be reserved for sale under the
Plan shall be 2,000,000 shares. Such shares shall be either authorized and
unissued shares or shares which have been reacquired by the Company. The
provisions of Section 4.04 shall apply if the total number of shares which would
otherwise be subject to purchase rights granted during the Offering Period
exceeds the number of shares of Company Stock available under the Plan.
7.02 The Committee shall proportionately adjust (a) the number of shares of
Company Stock reserved for sale under the Plan and (b) the price per share and
the number of shares of Company Stock covered by each purchase right under the
Plan which has not yet been exercised to appropriately take into account any
increase or decrease in the number of issued shares of Company Stock resulting
from a stock split, reverse stock split, spinoff, stock dividend, combination or
reclassification of the Company Stock, or other extraordinary corporate event
which affects the Company Stock in order to prevent dilution or enlargement of
the rights of Participants. The determination of the Committee with respect to
any such adjustment shall be final, binding and conclusive.
7.03 The Participant will have no interest in Company Stock covered by his
or her purchase right until such purchase right has been exercised.
ARTICLE VIII
ADMINISTRATION
8.01 The Plan shall be administered by the Committee. Subject to the
express provisions of the Plan, the Committee shall have full and discretionary
authority to interpret and construe all provisions of the Plan, to adopt rules
and regulations for administering the Plan, and to make all other determinations
deemed necessary or advisable for administering the Plan. The Committee's
determination on the foregoing matters shall be final and conclusive. The
Committee may, in its discretion, delegate some or all of its authority to one
or more Employees or officers of the Company or a Subsidiary Corporation.
8.02 Members of the Committee, and any officer or Employee of the Company
or a Subsidiary Corporation acting at the direction, or on behalf, of the
Committee shall not be personally liable for any action or determination taken
or made in good faith with respect to the Plan, and shall, to the extent
permitted by law, be fully indemnified and protected by the Company with respect
to any such action or determination.
8.03 The Custodian will act as custodian under the Plan, and will perform
such duties as are set forth in the Plan and in any agreement between the
Company and the Custodian. The Custodian will establish and maintain, as agent
for each Participant, an Account and any subaccounts as may be necessary or
desirable for the administration of the Plan.
8.04 The costs and expenses incurred in the administration of the Plan and
maintenance of Accounts will be paid by the Company, including fees of the
Custodian. The foregoing notwithstanding, the Custodian may impose or pass
through to the Participants a reasonable fee for the withdrawal of Company Stock
in the form of stock certificates and reasonable fees for other services
unrelated to the purchase of Company Stock under the Plan, to the extent
approved in writing by the Company and communicated to Participants. Under no
circumstances shall the Company pay any brokerage fees and commissions for the
sale of Company Stock acquired under the Plan by a Participant.
ARTICLE IX
MISCELLANEOUS
9.01 Subject to applicable law, a Participant may file with the Company a
written designation of a beneficiary who is to receive any shares and cash from
the Participant's Account under the Plan in the event of such Participant's
death after making a Contribution but prior to the end of the Holding Period.
Such designation of beneficiary may be changed by the Participant at any time by
written notice to the Company. In the event of the death of a Participant and in
the absence of a validly designated Beneficiary who is living at the time of
such Participant's death, any shares or cash to be distributed on the
Participant's death shall be delivered to the Participant's estate.
9.02 Neither Contributions credited to a Participant's Account nor any
rights with regard to the exercise of a purchase right 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 as
provided in Section 9.01. Any such attempted assignment, transfer, pledge or
other disposition shall be without effect, except that the Company may, in its
sole discretion, treat such action as an election to withdraw funds.
9.03 The Company or any designated Subsidiary Corporation is authorized to
withhold from any payment to be made to a Participant, including any payroll and
other payments not related to the Plan, amounts of withholding and other taxes
due in connection with any transaction under the Plan, including any disposition
of shares acquired under the Plan, and a Participant's enrollment in the Plan
will be deemed to constitute his or her consent to such withholding. At the time
of a Participant's exercise of a purchase right or disposition of shares
acquired under the Plan, the Company may require the Participant to make other
arrangements to meet tax withholding obligations as a condition to exercise of
rights or distribution of shares or cash from the Participant's Account. In
addition, a Participant may be required to advise the Company of sales and other
dispositions of Company Stock acquired under the Plan in order to permit the
Company to comply with tax laws and to claim any tax deductions to which the
Company may be entitled with respect to the Plan.
9.04 All Contributions received or held by the Company under this Plan may
be used by the Company for any corporate purpose, and the Company shall not be
obligated to segregate such Contributions.
9.05 The Board shall have the complete power and authority to terminate or
amend the Plan; provided, however, that the Board shall not, without the
approval of the shareholders of the Company, increase the maximum number of
shares which may be issued under any offering (except pursuant to Section 7.02)
or amend the requirements as to the class of employees eligible to purchase
stock under the Plan. No termination, modification, or amendment of the Plan
may, without the consent of an employee then having a purchase right under the
Plan to purchase stock, adversely affect the rights of such employee under such
purchase right. In the event the Plan is terminated, the balance, if any, in
each Participant's Account shall be refunded to him or her, or otherwise
disposed of in accordance with policies and procedures prescribed by the
Committee in cases where such a refund may not be possible.
9.06 The Plan does not, directly or indirectly, create any right for the
benefit of any Employee or class of Employees to purchase any shares of Company
Stock under the Plan, or create in any Employee or class of Employees any right
with respect to continuation of employment by the Company, and it shall not be
deemed to interfere in any way with the Company's right to terminate, or
otherwise modify, an Employee's employment at any time. Any benefits granted
hereunder are not part of the a Participant's ordinary salary or wages, and
shall not be considered as part of such salary or wages for purposes of any
other employee plan, program, policy or arrangement maintained by the Company or
in the event of severance, redundancy or resignation. If the Participant's
employment is terminated for any reason, whether lawfully or unlawfully, the
Participant shall not be entitled by way of damages for breach of contract,
dismissal or compensation for loss of office or otherwise to any sum, shares or
other benefits to compensate him or her for the loss or diminution in value of
any actual or prospective right, benefits or expectation under or in relation to
the Plan. Benefits granted under the Plan are entirely at the grace and
discretion of the Company.
9.07 All notices or other communications by a Participant to the Company
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.
9.08 The Company shall not be obligated to issue shares of Company Stock
with respect to a purchase right unless the exercise of such purchase right and
the issuance and delivery of such shares pursuant thereto shall comply with all
applicable provisions of law, domestic or foreign, including, without
limitation, the Securities Act of 1933, as amended, the Securities Exchange Act
of 1934, the rules and regulations promulgated thereunder, and the requirements
of any stock exchange or automated quotation system upon which the shares may
then be listed or quoted.
9.09 The provisions of the Plan shall, in accordance 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.
9.10 The Plan shall continue in effect until all amounts have been
distributed from all Participants' Accounts at which time it shall automatically
terminate without any additional action required.
9.11 To the extent permitted under Section 423 of the Code, the Committee
may provide for such special terms for Participants who are foreign nationals,
or who are employed by the Company or Subsidiary Corporation outside of the
United States of America, as the Committee may consider necessary or appropriate
to accommodate differences in local law, tax policy or custom. Moreover, the
Committee may approve such supplements to or amendments, restatements, or
alternative versions of, this Plan as it may consider necessary or appropriate
for such purposes without thereby affecting the terms of this Plan as in effect
for any other purpose; provided, however, that no such supplements, amendments,
restatements or alternative versions will include any provisions that are
inconsistent with the terms of this Plan, as then in effect, unless this Plan
could have been amended to eliminate such inconsistency without further approval
by the shareholders of the Company, or which would cause the Plan to fail to
meet the requirements of Section 423 of the Code.
9.12 For the reasons described below, the Company and its Subsidiary
Corporations may process sensitive personal data about each Participant. Such
data may include but is are not limited to: (a) personal data (e.g., name,
address, telephone number, fax number, email address, family size, marital
status, sex, beneficiary information, emergency contacts, passport/visa
information, age, language skills, drivers license information, birth
certificate, and employee number), (b) employment information (e.g., C.V. (or
resume), wage history, employment references, job title, employment or severance
contract, plan or benefit enrollment forms and elections, and purchase right or
benefit statements), and (c) financial information (e.g., wage and benefit
information, personal bank account
number, tax related information, and tax identification number). The Company may
from time to time process and transfer this or other information for internal
compensation and benefit planning (specifically, participation in the Plan); to
determine training needs; to develop a global human resource database; and to
evaluate skill utilization. The legal persons for whom the Participant's
personal data is intended are the Company, and any outside Plan administrator or
Custodian as selected by the Company from time to time, and any other person
that the Company may find in its administration of the Plan appropriate. The
Company shall ensure that all personal data and/or sensitive data transmitted
shall be kept confidential and used only for legitimate Company purposes as
described above.
9.13 The law of the Republic of Singapore will govern all matters relating
to this Plan to the extent such law is not inconsistent with Section 423 of the
Code and any regulations or rules promulgated thereunder or case law
interpreting Section 423 of the Code.