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Exhibit 4.1
DAOU SYSTEMS, INC.
EMPLOYEE STOCK PURCHASE PLAN
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DAOU SYSTEMS, INC.
EMPLOYEE STOCK PURCHASE PLAN
TABLE OF CONTENTS
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PAGE
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I. PURPOSE..................................................................................................1
2. DEFINITIONS..............................................................................................1
3. ELIGIBILITY..............................................................................................3
4. PARTICIPATION AND WITHDRAWAL.............................................................................4
5. OFFERING.................................................................................................5
6. PURCHASE OF STOCK........................................................................................7
7. PAYMENT AND DELIVERY.....................................................................................7
8. RECAPITALIZATION.........................................................................................7
9. MERGER, LIQUIDATION, OTHER CORPORATION TRANSACTIONS......................................................8
10. TRANSFERABILITY..........................................................................................8
11. AMENDMENT OR TERMINATION OF THE PLAN.....................................................................8
12. ADMINISTRATION...........................................................................................9
13. COMMITTEE RULES FOR FOREIGN JURISDICTIONS...............................................................10
14. SECURITIES LAWS REQUIREMENTS............................................................................10
15. GOVERNMENT REGULATIONS..................................................................................10
16. NO ENLARGEMENT OF EMPLOYEE RIGHTS.......................................................................10
17. GOVERNING LAW...........................................................................................11
18. EFFECTIVE DATE..........................................................................................11
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DAOU SYSTEMS, INC.
EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE.
The purpose of this Plan is to provide an opportunity for Employees of
DAOU Systems, Inc. (the "Corporation") and its Designated Subsidiaries, to
purchase Common Stock of the Corporation and thereby to have an additional
incentive to contribute to the prosperity of the Corporation. It is the
intention of the Corporation that the Plan qualify as an "Employee Stock
Purchase Plan" under section 423 of the Internal Revenue Code of 1986, as
amended (the "Code"), although the Corporation makes no undertaking nor
representation to maintain such qualification. Accordingly, the provisions of
the Plan shall be construed so as to extend and limit participation in a manner
consistent with the requirements of that section of the Code.
2. DEFINITIONS.
(a) "BOARD" shall mean the Board of Directors of the Corporation.
(b) "CODE" shall mean the Internal Revenue Code of 1986, of the U.S.A.,
as amended.
(c) "COMMITTEE" shall mean the committee appointed by the Board in
accordance with Section 12 of the Plan.
(d) "COMMON STOCK" shall mean the Common Stock, .001 par value, of the
Corporation, or any stock into which such Common Stock may be converted.
(e) "COMPENSATION" shall mean all regular straight time gross earnings,
and shall not include payments for overtime, shift premium, incentive
compensation, incentive payments, commissions, bonuses, and other compensation.
The Committee shall have the authority to determine and approve all forms of
compensation (such as commissions) to be included in the definition of
compensation and may change the definition on a prospective basis.
(f) "CORPORATION" shall mean DAOU Systems, Inc., a Delaware
corporation.
(g) "DESIGNATED SUBSIDIARY" shall mean any Subsidiary that has been
designated by the Committee as eligible to participate in the Plan with respect
to its Employees.
(h) "EMPLOYEE" shall mean an individual classified as an employee by
the Corporation or a Designated Subsidiary on the payroll records of the
Corporation or the Designated Subsidiary during the relevant participation
period.
(i) "FAIR MARKET VALUE" shall mean the value of one (1) share of Common
Stock on the relevant date, determined as follows:
(1) If the principal market for trading of the Common Stock is
an exchange, the Nasdaq National Market System or other market system
that reports a closing price, the reported "closing price" on the
trading day which precedes the relevant day (E.G., the Offering Date or
Purchase Date);
(2) If the principal market for trading the Common Stock does
not report a closing price, the mean between the closing bid and the
closing asked price on the trading day which precedes the relevant day;
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and
(3) If neither (1) nor (2) applies, the fair market value as
determined by the Committee in good faith. Such determination shall be
conclusive and binding on all persons.
(j) "OFFERING DATE" shall mean the first business day of each Purchase
Period.
(k) "PARTICIPANT" shall mean a participant in the Plan as described in
Section 4 of the Plan.
(l) "PLAN" shall mean this DAOU Systems, Inc. Employee Stock Purchase
Plan.
(m) "PURCHASE DATE" shall mean the last business day of each Purchase
Period.
(n) "PURCHASE PERIOD" shall mean a six-month period or other period as
determined by the Committee. The first Purchase Period shall commence on the
Plan's Effective Date. Subsequent Purchase Periods, if any, shall run
consecutively after the termination of the preceding Purchase Period.
(o) "SHAREHOLDER" shall mean a record holder of shares entitled to vote
shares of Common Stock under the Corporation's by-laws.
(p) "SUBSIDIARY" shall mean any subsidiary corporation (other than the
Corporation) in an unbroken chain of corporations beginning with the
Corporation, as described in Code section 424(f).
3. ELIGIBILITY.
Any Employee regularly employed on a full-time or part-time basis by
the Corporation or by any Designated Subsidiary on an Offering Date shall be
eligible to participate in the Plan with respect to the Purchase Period
commencing on such Offering Date, provided that employment commence one month
prior to the Purchase Period beginning on that Offering Date. The Board also may
determine that a designated group of highly compensated Employees are ineligible
to participate in the Plan so long as the excluded category fits within the
definition of "highly compensated employee" in Code section 414(g). An Employee
shall be considered employed on a full-time basis unless his or her customary
employment is less than 20 hours per week or five months per year. No Employee
may participate in the Plan if immediately after an option is granted the
Employee owns or is considered to own (within the meaning of Code section
424(d)), shares of capital stock, including stock which the Employee may
purchase by conversion of convertible securities or under outstanding options
granted by the Corporation, possessing five percent (5%) or more of the total
combined voting power or value of all classes of stock of the Corporation or of
any of its Subsidiaries. All Employees who participate in the Plan shall have
the same rights and privileges under the Plan except for differences which may
be mandated by local law and which are consistent with Code section 423(b)(5).
The Board may impose restrictions on eligibility and participation of Employees
who are officers and directors to facilitate compliance with federal or state
securities laws or foreign laws.
4. PARTICIPATION AND WITHDRAWAL.
4.1 An Employee who is eligible to participate in the Plan in
accordance with Section 3 may become a Participant by filing, on a date
prescribed by the Committee prior to an applicable Offering Date, a completed
payroll deduction authorization and Plan enrollment form provided by the
Corporation or by following an electronic or other enrollment process as
prescribed by the Committee. Participation may be conditioned on an eligible
Employee's consent to transfer and process personal data and on acknowledgment
and agreement to Plan terms and other specified conditions. An eligible Employee
may authorize payroll deductions to pay for shares of Common Stock pursuant to
the Plan (the "Payroll Deductions") at the rate of any whole percentage of the
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Compensation, not to exceed fifteen percent (15%) of the Employee's
Compensation, or such greater percentage, as specified by the Committee, as
applied to a Purchase Period. All Payroll Deductions may be held by the
Corporation and commingled with its other corporate funds. No interest shall be
paid or credited to the Participant with respect to such Payroll Deductions
except where required by local law as determined by the Committee. A separate
bookkeeping account for each Participant shall be maintained by the Corporation
under the Plan and the amount of each Participant's Payroll Deductions shall be
credited to such account. A Participant may not make any additional payments
into such account. If applicable, Payroll Deductions made with respect to
employees paid in currencies other than U.S. dollars shall be converted to U.S.
dollars as of each Purchase Date using the then applicable exchange rate, as
determined by the Committee.
4.2 A Participant may decrease his or her rate of payroll
deductions only once during each Purchase Period, unless other procedures are
prescribed by the Committee. A Participant may increase his or her rate of
payroll deductions only effective on the first payroll date following the next
Purchase Date by filing a new payroll deduction authorization and Plan
enrollment form or by following electronic or other procedures prescribed by the
Committee. If a Participant has not followed such procedures to change the rate
of payroll deductions, the rate of payroll deductions shall continue at the
originally elected rate throughout the Purchase Period and future Purchase
Periods unless the Committee determines to change the maximum permissible rate.
4.3 (a) Under procedures established by the Committee, a
Participant may discontinue participation in the Plan at any time during a
Purchase Period by completing and filing a new payroll deduction authorization
and Plan enrollment form with the Corporation or by following electronic or
other procedures prescribed by the Committee. If a Participant has not followed
such procedures to discontinue the payroll deductions, the rate of payroll
deductions shall continue at the originally elected rate throughout the Purchase
Period and future Purchase Periods unless the Committee determines to change the
maximum permissible rate.
(b) If a Participant discontinues participation during
a Purchase Period, such Participant may: 1) have his or her accumulated Payroll
Deductions during such Purchase Period remain in the Plan for purchase of shares
as specified in Section 6 on the following Purchase Date; or 2) receive an
amount equal to his or her aggregate Payroll Deductions during such Purchase
Period. The Participant will not again participate until he or she re-enrolls in
the Plan. The Committee may establish rules limiting the frequency with which
Participants may discontinue and resume payroll deductions under the Plan and
may impose a waiting period on Participants wishing to resume payroll deductions
following discontinuance. The Committee also may change the rules regarding
discontinuance of participation or changes in participation in the Plan.
(c) In the event any Participant terminates employment
with the Corporation or any Subsidiary for any reason (including death) prior to
the expiration of a Purchase Period, the Participant's participation in the Plan
shall terminate and all amounts credited to the Participant's account shall be
paid to the Participant or the Participant's estate without interest (except
where required by local law). Whether a termination of employment has occurred
shall be determined by the Committee. The Committee also may establish rules
regarding when leaves of absence or change of employment status (E.G., from
full-time to part-time) will be considered to be a termination of employment,
and the Committee may establish termination of employment procedures for this
Plan which are independent of similar rules established under other benefit
plans of the Corporation and its Subsidiaries. In the event of a Participant's
death, any accumulated Payroll Deductions will be paid, without interest, to the
estate or legal representative of the Participant.
5. OFFERING.
5.1 The maximum number of shares of Common Stock which may be issued
pursuant to the Plan shall be one million five hundred thousand (1,500,000)
shares.
5.2 Each Purchase Period shall be determined by the Committee. Unless
otherwise determined by
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the Committee, the Plan will operate with successive semi-annual Purchase
Periods commencing at the Plan Effective Date. The Committee shall have the
power to change the duration of future Purchase Periods, without shareholder
approval, and without regard to the expectations of any Participants.
5.3 With respect to each Purchase Period, each eligible Employee who
has elected to participate as provided in Section 4.1 shall be granted an option
to purchase the number of shares of Common Stock which may be purchased with the
Payroll Deductions accumulated in an account maintained on behalf of such
Employee (assuming payroll deductions at a rate of 15% of wages or base salary
or such greater percentage of base salary as determined by the Committee) during
each Purchase Period at the purchase price specified in Section 5.4 below,
subject to the following additional limitations:
(a) The number of shares which may be purchased by any eligible
Employee on the first Purchase Date to occur in any calendar year may not exceed
the number of shares determined by dividing $25,000 by the Fair Market Value of
a share of Common Stock on the first day of the Purchase Period in which such
Purchase Date occurs.
(b) The number of shares which may be purchased by an Eligible
Employee on any subsequent Purchase Date which occurs in the same calendar year
(as referred to in subsection (a) above) shall not exceed the number of shares
determined by performing the calculation below:
STEP ONE: The number of shares purchased by the Employee during any
Purchase Period whose Purchase Date occurred in the same calendar year
shall be multiplied by the Fair Market Value of a share of Common Stock
on the first day of such previous Purchase Period in which such shares
were purchased.
STEP TWO: The amount determined in Step One shall be subtracted from
$25,000.
STEP THREE: The amount determined in Step Two shall be divided by the
Fair Market Value of a share of Common Stock on the first day of the
Purchase Period in which the subsequent Purchase Date (for which the
maximum number of shares which may be purchased is being determined by
this calculation) occurs. The quotient thus obtained shall be the
maximum number of shares which may be purchased by any eligible
Employee on such subsequent Purchase Date.
5.4 The option price under each option shall be the lower of:
(i) a percentage (not less than eighty-five percent (85%)) established by the
Committee ("Designated Percentage") of the Fair Market Value of the Common Stock
on the Offering Date on which an option is granted, or (ii) the Designated
Percentage of the Fair Market Value on the Purchase Date on which the Common
Stock is purchased. The Committee may change the Designated Percentage with
respect to any future Purchase Period, but not below eighty-five percent (85%),
and the Committee may determine with respect to any prospective Purchase Period
that the option price shall be the Designated Percentage of the Fair Market
Value of the Common Stock on the Purchase Date.
5.5 If the total number of shares of Common Stock for which
options granted under the Plan are exercisable exceeds the maximum number of
shares offered on any Offering Date, the number of shares which may be purchased
under options granted on the Offering Date shall be reduced on a pro rata basis
in as nearly a uniform manner as shall be practicable and equitable. In this
event, Payroll Deductions shall also be reduced or refunded accordingly. If an
Employee's Payroll Deductions during any Exercise Period exceeds the purchase
price for the maximum number of shares permitted to be purchased under Section
5.3, the excess shall be refunded to the Participant without interest (except
where otherwise required by local law).
5.6 Notwithstanding any other provision of the Plan to the
contrary, no Employee participating in the
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Code section 423 Plan shall be granted an option to purchase Common Stock under
the Plan and all employee stock purchase plans of the Corporation and its
Subsidiaries at a rate which exceeds $25,000 of the Fair Market Value of such
Common Stock (determined at the time such option is granted) for each calendar
year in which such option is outstanding at any time. The foregoing sentence
shall be interpreted so as to comply with Code section 423(b)(8).
6. PURCHASE OF STOCK.
Upon the expiration of each Purchase Period, a Participant's option
shall be exercised automatically for the purchase of that number of whole shares
of Common Stock which the accumulated Payroll Deductions credited to the
Participant's account at that time shall purchase at the applicable price
specified in Section 5.4. No fractional shares of Common Stock will be purchased
under the Plan. Any funds insufficient to purchase an additional whole share of
Common Stock will remain in the Participant's account until the next Purchase
Period.
7. PAYMENT AND DELIVERY.
Upon the exercise of an option on each Purchase Date, the Corporation
shall deliver (by electronic or other means) to the Participant a record of the
Common Stock purchased, except as specified below. The Committee may permit or
require that shares be deposited directly with a broker designated by the
Committee (or a broker selected by the Participant) or to a designated agent of
the Company, and the Committee may utilize electronic or automated methods of
share transfer. The Corporation shall retain the amount of Payroll Deductions
used to purchase Common Stock as full payment for the Common Stock and the
Common Stock shall then be fully paid and non-assessable. No Participant shall
have any voting, dividend, or other shareholder rights with respect to shares
subject to any option granted under the Plan until the shares subject to the
option have been purchased and delivered to the Participant as provided in
Section 7.
8. RECAPITALIZATION.
8.1 If after the grant of an option, but prior to the purchase
of Common Stock under the option, there is any increase or decrease in the
number of outstanding shares of Common Stock because of a stock split, stock
dividend, combination or recapitalization of shares subject to options, the
number of shares to be purchased pursuant to an option, the share limit of
Section 5.3 and the maximum number of shares specified in Section 5.1 shall be
proportionately increased or decreased, the terms relating to the purchase price
with respect to the option shall be appropriately adjusted by the Board, and the
Board shall take any further actions which, in the exercise of its discretion,
may be necessary or appropriate under the circumstances.
8.2 The Board, if it so determines in the exercise of its sole
discretion, also may adjust the number of shares specified in Section 5.1, as
well as the price per share of Common Stock covered by each outstanding option
and the maximum number of shares subject to any individual option, in the event
the Corporation effects one or more reorganizations, recapitalizations,
spin-offs, split-ups, rights offerings or reductions of shares of its
outstanding Common Stock.
8.3 The Board's determinations under this Section 8 shall be
conclusive and binding on all parties.
9. MERGER, LIQUIDATION, OTHER CORPORATION TRANSACTIONS.
9.1 In the event of the proposed liquidation or dissolution of the
Corporation, the Purchase Period then in progress will terminate immediately
prior to the consummation of such proposed liquidation or dissolution, unless
otherwise provided by the Board in its sole discretion, and all outstanding
options shall automatically terminate and the amounts of all Payroll Deductions
will be refunded without interest to the Participants.
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9.2 In the event of a proposed sale of all or substantially all of the
assets of the Corporation, or the merger or consolidation of the Corporation
with or into another corporation, then in the sole discretion of the Board, (1)
each option shall be assumed or an equivalent option shall be substituted by the
successor corporation or parent or subsidiary of such successor corporation, (2)
a date established by the Board on or before the date of consummation of such
merger, consolidation or sale shall be treated as a Purchase, and all
outstanding options shall be deemed exercisable on such date or (3) all
outstanding options shall terminate and the accumulated Payroll Deductions shall
be returned to the Participants, without interest.
10. TRANSFERABILITY.
Options granted to Participants may not be voluntarily or involuntarily
assigned, transferred, pledged, or otherwise disposed of in any way, and any
attempted assignment, transfer, pledge, or other disposition shall be null and
void and without effect. If a Participant in any manner attempts to transfer,
assign or otherwise encumber his or her rights or interest under the Plan, other
than as permitted by the Code, such act shall be treated as an election by the
Participant to discontinue participation in the Plan pursuant to Section 4.2.
11. AMENDMENT OR TERMINATION OF THE PLAN.
11.1 The Plan shall continue for a ten (10) year period from the
initial effective date (reference section 18.0), unless previously terminated in
accordance with Section 11.2.
11.2 The Board may, in its sole discretion, insofar as permitted by
law, terminate or suspend the Plan, or revise or amend it in any respect
whatsoever, except that, without approval of the shareholders, no such revision
or amendment shall:
(a) materially increase the number of shares subject to the
Plan, other than an adjustment under Section 8 of the Plan;
(b) materially modify the requirements as to eligibility for
participation in the Plan, except as otherwise specified in this Plan;
(c) materially increase the benefits accruing to Participants;
(d) reduce the purchase price specified in Section 5.4,
except as specified in Section 8;
(e) extend the term of the Plan beyond the date specified in
Section 11.1; or
(f) amend this Section 11.2 to defeat its purpose.
12. ADMINISTRATION.
The Board shall appoint a Committee consisting of at least two members
who will serve for such period of time as the Board may specify and who may be
removed by the Board at any time. The Committee will have the authority and
responsibility for the day-to-day administration of the Plan, the authority and
responsibility specifically provided in this Plan and any additional duties,
responsibility and authority delegated to the Committee by the Board, which may
include any of the functions assigned to the Board in this Plan. The Committee
may delegate to one or more individuals the day-to-day administration of the
Plan. The Committee shall have full power and authority to promulgate any rules
and regulations which it deems necessary for the proper administration of the
Plan, to interpret the provisions and supervise the administration of the Plan,
to make factual determinations relevant to Plan entitlements, to adopt sub-plans
applicable to specified Subsidiaries or locations and to take all action in
connection with administration of the Plan as it deems necessary or advisable,
consistent
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with the delegation from the Board. Decisions of the Board and the Committee
shall be final and binding upon all participants. Any decision reduced to
writing and signed by a majority of the members of the Committee shall be fully
effective as if it had been made at a meeting of the Committee duly held. The
Corporation shall pay all expenses incurred in the administration of the Plan.
No Board or Committee member shall be liable for any action or determination
made in good faith with respect to the Plan or any option granted thereunder.
13. COMMITTEE RULES FOR FOREIGN JURISDICTIONS.
13.1 The Committee may adopt rules or procedures relating to the
operation and administration of the Plan to accommodate the specific
requirements of local laws and procedures. Without limiting the generality of
the foregoing, the Committee is specifically authorized to adopt rules and
procedures regarding handling of payroll deductions, payment of interest,
conversion of local currency, payroll tax, withholding procedures and handling
of stock certificates which vary with local requirements.
13.2 The Committee may also adopt sub-plans applicable to particular
Subsidiaries or locations, which sub-plans may be designed to be outside the
scope of Code section 423. The rules of such sub-plans may take precedence over
other provisions of this Plan, with the exception of Section 5.1, but unless
otherwise superseded by the terms of such sub-plan, the provisions of this Plan
shall govern the operation of such sub-plan.
14. SECURITIES AND EXCHANGE CONTROL LAWS REQUIREMENTS.
The Corporation shall not be under any obligation to issue Common Stock
upon the exercise of any option unless and until the Corporation has determined
that: (i) it and the Participant have taken all actions required to register the
Common Stock under the Securities Act of 1933, or to perfect an exemption from
the registration requirements thereof; (ii) any applicable listing requirement
of any stock exchange on which the Common Stock is listed has been satisfied;
and (iii) all other applicable provisions of state, federal and applicable
foreign law have been satisfied.
15. GOVERNMENTAL REGULATIONS.
This Plan and the Corporation's obligation to sell and deliver shares
of its stock under the Plan shall be subject to the approval of any governmental
authority required in connection with the Plan or the authorization, issuance,
sale, or delivery of stock hereunder.
16. NO ENLARGEMENT OF EMPLOYEE RIGHTS.
Nothing contained in this Plan shall be deemed to give any Employee the
right to be retained in the employ of the Corporation or any Designated
Subsidiary or to interfere with the right of the Corporation or Designated
Subsidiary to discharge any Employee at any time. It is not intended that any
rights or benefits provided under this Plan shall be considered part of normal
or expected compensation for purposes of calculating any severance, resignation,
redundancy, end of service payments, bonuses, long service awards, pension,
retirement or similar payments.
17. GOVERNING LAW.
This Plan shall be governed by California law.
18. EFFECTIVE DATE.
This Plan shall be effective [[ _______________________ ]], 2000,
subject to approval of the shareholders of the Corporation within 12 months of
its adoption by the Board of Directors.
