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EXHIBIT 4.03
AT HOME CORPORATION
1997 EMPLOYEE STOCK PURCHASE PLAN
As Adopted May 15, 1997 and
Amended March 18, 1998 and April 18, 2000
1. ESTABLISHMENT OF PLAN. At Home Corporation (the "COMPANY") proposes
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to grant options for purchase of the Company's Series A Common Stock to eligible
employees of the Company and its Participating Subsidiaries (as hereinafter
defined) pursuant to this Employee Stock Purchase Plan (this "PLAN"). For
purposes of this Plan, "PARENT CORPORATION" and "SUBSIDIARY" (collectively,
"PARTICIPATING SUBSIDIARIES") shall have the same meanings as "parent
corporation" and "subsidiary corporation" in Sections 424(e) and 424(f),
respectively, of the Internal Revenue Code of 1986, as amended (the "CODE").
"PARTICIPATING SUBSIDIARIES" are Parent Corporations or Subsidiaries that the
Board of Directors of the Company (the "BOARD") designates from time to time as
corporations that shall participate in this Plan. The Company intends this Plan
to qualify as an "employee stock purchase plan" under Section 423 of the Code
(including any amendments to or replacements of such Section), and this Plan
shall be so construed. Any term not expressly defined in this Plan but defined
for purposes of Section 423 of the Code shall have the same definition herein. A
total of 5,000,000 shares/*/ of the Company's Series A Common Stock is reserved
for issuance under this Plan. Such number shall be subject to adjustments
effected in accordance with Section 14 of this Plan.
2. PURPOSE. The purpose of this Plan is to provide eligible employees of
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the Company and Participating Subsidiaries with a convenient means of acquiring
an equity interest in the Company through payroll deductions, to enhance such
employees' sense of participation in the affairs of the Company and
Participating Subsidiaries, and to provide an incentive for continued
employment.
3. ADMINISTRATION. This Plan shall be administered by the Compensation
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Committee of the Board (the "COMMITTEE"). Subject to the provisions of this
Plan and the limitations of Section 423 of the Code or any successor provision
in the Code, all questions of interpretation or application of this Plan shall
be determined by the Committee and its decisions shall be final and binding upon
all participants. Members of the Committee shall receive no compensation for
their services in connection with the administration of this Plan, other than
standard fees as established from time to time by the Board for services
rendered by Board members serving on Board committees. All expenses incurred in
connection with the administration of this Plan shall be paid by the Company.
4. ELIGIBILITY. Any employee of the Company or the Participating
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Subsidiaries is eligible to participate in an Offering Period (as hereinafter
defined) under this Plan except the following:
(a) employees who are not employed by the Company or Participating
Subsidiaries fifteen (15) days before the beginning of such Offering
Period, except that employees who are employed on the effective date
of the registration statement filed by the Company with the Securities
and Exchange Commission ("SEC") under the Securities Act of 1933, as
amended (the "SECURITIES ACT") registering the initial public offering
of the Company's Series A Common Stock shall be eligible to
participate in the first Offering Period under the Plan;
(b) employees who are customarily employed for twenty (20) hours or less
per week;
(c) employees who are customarily employed for five (5) months or less in
a calendar year;
(d) employees who, together with any other person whose stock would be
attributed to such employee pursuant to Section 424(d) of the Code,
own stock or hold options to purchase
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/*/ Reflects an increase of 3,000,000 shares on April 18, 2000.
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stock possessing five percent (5%) or more of the total combined
voting power or value of all classes of stock of the Company or any of
its Participating Subsidiaries or who, as a result of being granted an
option under this Plan with respect to such Offering Period, would own
stock or hold options to purchase stock possessing five percent (5%)
or more of the total combined voting power or value of all classes of
stock of the Company or any of its Participating Subsidiaries; and
(e) individuals who provide services to the Company or any of its
Participating Subsidiaries as independent contractors whether or not
reclassified as common law employees, unless the Company or a
Participating Subsidiary withholds or is required to withhold U.S.
Federal employment taxes for such individuals pursuant to Section 3402
of the Code.
5. OFFERING DATES. The offering periods of this Plan (each, an "OFFERING
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PERIOD") shall be of twenty-four (24) months duration commencing on February 15
and August 15 of each year and ending on August 14 and February 14 of each year;
provided, however, that notwithstanding the foregoing, the first such Offering
Period shall commence on the first business day on which price quotations for
the Company's Series A Common Stock are available on the Nasdaq National Market
(the "FIRST OFFERING DATE") and shall end on August 14, 1999. Except for the
first Offering Period, each Offering Period shall consist of four (4) six-month
purchase periods (individually, a "PURCHASE PERIOD") during which payroll
deductions of the participants are accumulated under this Plan. The first
Offering Period shall consist of no fewer than three Purchase Periods, any of
which may be greater or less than six months as determined by the Committee. The
first business day of each Offering Period is referred to as the "OFFERING
DATE". The last business day of each Purchase Period is referred to as the
"PURCHASE DATE". The Committee shall have the power to change the duration of
Offering Periods or Purchase Periods with respect to offerings without
stockholder approval if such change is announced at least fifteen (15) days
prior to the scheduled beginning of the first Offering Period or Purchase Period
to be affected.
6. PARTICIPATION IN THIS PLAN. Eligible employees may become
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participants in an Offering Period under this Plan on the first Offering Date
after satisfying the eligibility requirements by delivering a subscription
agreement to the Company's treasury department (the "TREASURY DEPARTMENT") not
later than fifteen (15) days before such Offering Date unless a later time for
filing the subscription agreement authorizing payroll deductions is set by the
Committee for all eligible employees with respect to a given Offering Period. An
eligible employee who does not deliver a subscription agreement to the Treasury
Department by such date after becoming eligible to participate in such Offering
Period shall not participate in that Offering Period or any subsequent Offering
Period unless such employee enrolls in this Plan by filing a subscription
agreement with the Treasury Department not later than fifteen (15) days
preceding a subsequent Offering Date. Once an employee becomes a participant in
an Offering Period, such employee will automatically participate in the Offering
Period commencing immediately following the last day of the prior Offering
Period unless the employee withdraws or is deemed to withdraw from this Plan or
terminates further participation in the Offering Period as set forth in Section
11 below. Such participant is not required to file any additional subscription
agreement in order to continue participation in this Plan.
7. GRANT OF OPTION ON ENROLLMENT. Enrollment by an eligible employee in
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this Plan with respect to an Offering Period will constitute the grant (as of
the Offering Date) by the Company to such employee of an option to purchase on
the Purchase Date up to that number of shares of Series A Common Stock of the
Company determined by dividing (a) the amount accumulated in such employee's
payroll deduction account during such Purchase Period by (b) the lower of (i)
eighty-five percent (85%) of the fair market value of a share of the Company's
Series A Common Stock on the Offering Date (but in no event less than the par
value of a share of the Company's Series A Common Stock), or (ii) eighty-five
percent (85%) of the fair market value of a share of the Company's Series A
Common Stock on the Purchase Date (but in no event less than the par value of a
share of the Company's Series A Common Stock), provided, however, that the
number of shares of the Company's Series A Common Stock subject to any option
granted pursuant to this Plan shall not exceed the lesser of (a) the maximum
number of shares set by the Committee pursuant to Section 10(c) below with
respect to the
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applicable Purchase Date, or (b) the maximum number of shares which may be
purchased pursuant to Section 10(b) below with respect to the applicable
Purchase Date. The fair market value of a share of the Company's Series A Common
Stock shall be determined as provided in Section 8 hereof.
8. PURCHASE PRICE. The purchase price per share at which a share of
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Series A Common Stock will be sold in any Offering Period shall be eighty-five
percent (85%) of the lesser of:
(a) The fair market value on the Offering Date; or
(b) The fair market value on the Purchase Date.
For purposes of this Plan, the term "FAIR MARKET VALUE" means, as of any
date, the value of a share of the Company's Series A Common Stock
determined as follows:
(a) if such Series A Common Stock is then quoted on the Nasdaq National
Market, its closing price on the Nasdaq National Market on the date of
determination as reported in The Wall Street Journal;
(b) if such Series A Common Stock is publicly traded and is then listed on
a national securities exchange, its closing price on the date of
determination on the principal national securities exchange on which
the Series A Common Stock is listed or admitted to trading as reported
in The Wall Street Journal;
(c) if such Series A Common Stock is publicly traded but is not quoted on
the Nasdaq National Market nor listed or admitted to trading on a
national securities exchange, the average of the closing bid and asked
prices on the date of determination as reported in The Wall Street
Journal; or
(d) if none of the foregoing is applicable, by the Board in good faith,
which in the case of the First Offering Date will be the price per
share at which shares of the Company's Series A Common Stock are
initially offered for sale to the public by the Company's underwriters
in the initial public offering of the Company's Series A Common Stock
pursuant to a registration statement filed with the SEC under the
Securities Act.
9. PAYMENT OF PURCHASE PRICE; CHANGES IN PAYROLL DEDUCTIONS; ISSUANCE OF
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SHARES.
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(a) The purchase price of the shares is accumulated by regular payroll
deductions made during each Offering Period. The deductions are made
as a percentage of the participant's compensation in one percent (1%)
increments not less than two percent (2%), nor greater than ten
percent (10%) or such lower limit set by the Committee. Compensation
shall mean base salary, commissions, bonuses, and shift premiums not
to exceed $250,000 per calendar year, provided however, that for
purposes of determining a participant's compensation, any election by
such participant to reduce his or her regular cash remuneration under
Sections 125 or 401(k) of the Code shall be treated as if the
participant did not make such election. Except for the first Offering
Period, payroll deductions shall commence on the first payday of the
Offering Period and shall continue to the end of the Offering Period
unless sooner altered or terminated as provided in this Plan. Payroll
deductions for the first Offering Period shall commence at the end of
the first full pay period following the First Offering Date.
(b) A participant may lower (but not increase) the rate of payroll
deductions during an Offering Period by filing with the Treasury
Department a new authorization for payroll deductions, in which case
the new rate shall become effective for the next payroll period
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commencing more than fifteen (15) days after the Treasury Department's
receipt of the authorization and shall continue for the remainder of
the Offering Period unless changed as described below. Such change in
the rate of payroll deductions may be made at any time during an
Offering Period, but not more than one (1) change may be made
effective during any Offering Period. A participant may increase or
decrease the rate of payroll deductions for any subsequent Offering
Period by filing with the Treasury Department a new authorization for
payroll deductions not later than fifteen (15) days before the
beginning of such Offering Period.
(c) All payroll deductions made for a participant are credited to his or
her account under this Plan and are deposited with the general funds
of the Company. No interest accrues on the payroll deductions. All
payroll deductions received or held by the Company may be used by the
Company for any corporate purpose, and the Company shall not be
obligated to segregate such payroll deductions.
(d) On each Purchase Date, so long as this Plan remains in effect and
provided that the participant has not submitted a signed and completed
withdrawal form before that date which notifies the Company that the
participant wishes to withdraw from that Offering Period under this
Plan and have all payroll deductions accumulated in the account
maintained on behalf of the participant as of that date returned to
the participant, the Company shall apply the funds then in the
participant's account to the purchase of whole shares of Series A
Common Stock reserved under the option granted to such participant
with respect to the Offering Period to the extent that such option is
exercisable on the Purchase Date. The purchase price per share shall
be as specified in Section 8 of this Plan. Any cash remaining in a
participant's account after such purchase of shares shall be refunded
to such participant in cash, without interest; provided, however that
any amount remaining in such participant's account on a Purchase Date
which is less than the amount necessary to purchase a full share of
Series A Common Stock of the Company shall be carried forward, without
interest, into the next Purchase Period or Offering Period, as the
case may be. In the event that this Plan has been oversubscribed, all
funds not used to purchase shares on the Purchase Date shall be
returned to the participant, without interest. No Series A Common
Stock shall be purchased on a Purchase Date on behalf of any employee
whose participation in this Plan has terminated prior to such Purchase
Date.
(e) As promptly as practicable after the Purchase Date, the Company shall
issue shares for the participant's benefit representing the shares
purchased upon exercise of his or her option.
(f) During a participant's lifetime, such participant's option to purchase
shares hereunder is exercisable only by him or her. The participant
will have no interest or voting right in shares covered by his or her
option until such option has been exercised.
10. LIMITATIONS ON SHARES TO BE PURCHASED.
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(a) No participant shall be entitled to purchase stock under this Plan at
a rate which, when aggregated with his or her rights to purchase stock
under all other employee stock purchase plans of the Company or any
Subsidiary, exceeds $25,000 in fair market value, determined as of the
Offering Date (or such other limit as may be imposed by the Code) for
each calendar year in which the employee participates in this Plan.
(b) No more than two hundred percent (200%) of the number of shares
determined by using eighty-five percent (85%) of the fair market value
of a share of the Company's Series A Common Stock on the Offering Date
as the denominator may be purchased by a participant on any single
Purchase Date.
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(c) No participant shall be entitled to purchase more than the Maximum
Share Amount (as defined below) on any single Purchase Date. Not less
than thirty (30) days prior to the commencement of any Offering
Period, the Committee may, in its sole discretion, set a maximum
number of shares which may be purchased by any employee at any single
Purchase Date (hereinafter the "MAXIMUM SHARE AMOUNT"). Until
otherwise determined by the Committee, there shall be no Maximum Share
Amount. In no event shall the Maximum Share Amount exceed the amounts
permitted under Section 10(b) above. If a new Maximum Share Amount is
set, then all participants must be notified of such Maximum Share
Amount prior to the commencement of the next Offering Period. Once
the Maximum Share Amount is set, it shall continue to apply with
respect to all succeeding Purchase Dates and Offering Periods unless
revised by the Committee as set forth above.
(d) If the number of shares to be purchased on a Purchase Date by all
employees participating in this Plan exceeds the number of shares then
available for issuance under this Plan, then the Company will make a
pro rata allocation of the remaining shares in as uniform a manner as
shall be reasonably practicable and as the Committee shall determine
to be equitable. In such event, the Company shall give written notice
of such reduction of the number of shares to be purchased under a
participant's option to each participant affected thereby.
(e) Any payroll deductions accumulated in a participant's account which
are not used to purchase stock due to the limitations in this Section
10 shall be returned to the participant as soon as practicable after
the end of the applicable Purchase Period, without interest.
11. WITHDRAWAL.
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(a) Each participant may withdraw from an Offering Period under this Plan
by signing and delivering to the Treasury Department a written notice
to that effect on a form provided for such purpose. Such withdrawal
may be elected at any time at least fifteen (15) days prior to the end
of an Offering Period.
(b) Upon withdrawal from this Plan, the accumulated payroll deductions
shall be returned to the withdrawn participant, without interest, and
his or her interest in this Plan shall terminate. In the event a
participant voluntarily elects to withdraw from this Plan, he or she
may not resume his or her participation in this Plan during the same
Offering Period, but he or she may participate in any Offering Period
under this Plan which commences on a date subsequent to such
withdrawal by filing a new authorization for payroll deductions in the
same manner as set forth above for initial participation in this Plan.
(c) If the purchase price on the first day of any current Offering Period
in which a participant is enrolled is higher than the purchase price
on the first day of any subsequent Offering Period, the Company will
automatically enroll such participant in the subsequent Offering
Period. Any funds accumulated in a participant's account prior to the
first day of such subsequent Offering Period will be applied to the
purchase of shares on the Purchase Date immediately prior to the first
day of such subsequent Offering Period. A participant does not need
to file any forms with the Company to automatically be enrolled in the
subsequent Offering Period
12. TERMINATION OF EMPLOYMENT. Termination of a participant's employment
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for any reason, including retirement, death or the failure of a participant to
remain an eligible employee of the Company or of a Participating Subsidiary,
immediately terminates his or her participation in this Plan. In such event,
the payroll deductions credited to the participant's account will be returned to
him or her or, in the case of his or her death, to his or her legal
representative, without interest. For purposes of this Section 12, an employee
will not be deemed to have terminated employment or failed to remain in the
continuous employ of the Company or of a Participating Subsidiary in the case of
sick leave, military leave, or any
<PAGE>
other leave of absence approved by the Board; provided that such leave is for a
period of not more than ninety (90) days or reemployment upon the expiration of
such leave is guaranteed by contract or statute.
13. RETURN OF PAYROLL DEDUCTIONS. In the event a participant's interest
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in this Plan is terminated by withdrawal, termination of employment or
otherwise, or in the event this Plan is terminated by the Board, the Company
shall promptly deliver to the participant all payroll deductions credited to
such participant's account. No interest shall accrue on the payroll deductions
of a participant in this Plan.
14. CAPITAL CHANGES. Subject to any required action by the stockholders
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of the Company, the number of shares of Series A Common Stock covered by each
option under this Plan which has not yet been exercised and the number of shares
of Series A Common Stock which have been authorized for issuance under this Plan
but have not yet been placed under option (collectively, the "RESERVES"), as
well as the price per share of Series A Common Stock covered by each option
under this Plan which has not yet been exercised, shall be proportionately
adjusted for any increase or decrease in the number of issued and outstanding
shares of Series A Common Stock of the Company resulting from a stock split or
the payment of a stock dividend (but only on the Series A Common Stock) or any
other increase or decrease in the number of issued and outstanding shares of
Common Stock effected without receipt of any consideration by the Company;
provided, however, that conversion of any convertible securities of the Company
shall not be deemed to have been "effected without receipt of consideration".
Such adjustment shall be made by the Committee, whose determination shall be
final, binding and conclusive. Except as expressly provided herein, no issue by
the Company of shares of stock of any class, or securities convertible into
shares of stock of any class, shall affect, and no adjustment by reason thereof
shall be made with respect to, the number or price of shares of Series A Common
Stock subject to an option.
In the event of the proposed dissolution or liquidation of the Company, the
Offering Period will terminate immediately prior to the consummation of such
proposed action, unless otherwise provided by the Committee. The Committee may,
in the exercise of its sole discretion in such instances, declare that the
options under this Plan shall terminate as of a date fixed by the Committee and
give each participant the right to exercise his or her option as to all of the
optioned stock, including shares which would not otherwise be exercisable. In
the event of (i) a merger or consolidation in which the Company is not the
surviving corporation (other than a merger or consolidation with a wholly-owned
subsidiary, a reincorporation of the Company in a different jurisdiction, or
other transaction in which there is no substantial change in the stockholders of
the Company or their relative stock holdings and the options under this Plan are
assumed, converted or replaced by the successor corporation, which assumption
will be binding on all participants), (ii) a merger in which the Company is the
surviving corporation but after which the stockholders of the Company
immediately prior to such merger (other than any stockholder that merges, or
which owns or controls another corporation that merges, with the Company in such
merger) cease to own their shares or other equity interest in the Company, (iii)
the sale of substantially all of the assets of the Company or (iv) the
acquisition, sale, or transfer of more than 50% of the outstanding shares of the
Company by tender offer or similar transaction, each option under this Plan may
be assumed or an equivalent option may be substituted by such successor
corporation or a parent or subsidiary of such successor corporation. In the
event such surviving corporation refuses to assume or substitute options under
this Plan, (i) this Plan will terminate upon the consummation of such
transaction, unless otherwise provided by the Committee and (ii) the Committee
may declare that the options under this Plan shall terminate as of a date fixed
by the Committee and give each participant the right to exercise his or her
option as to all of the optioned stock. If the Committee makes an option fully
exercisable in the event of a merger, consolidation or sale of assets, the
Committee shall notify the participant that the option shall be fully
exercisable for a certain period, and the option and this Plan will terminate
upon the expiration of such period.
The Committee may, if it so determines in the exercise of its sole
discretion, also make provision for adjusting the Reserves, as well as the price
per share of Series A Common Stock covered by each outstanding option, in the
event that the Company effects one or more reorganizations, recapitalizations,
rights offerings or other increases or reductions of shares of its outstanding
Series A Common Stock, or in the event of the Company being consolidated with or
merged into any other corporation.
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15. NONASSIGNABILITY. Neither payroll deductions credited to a
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participant's account nor any rights with regard to the exercise of an option or
to receive shares under this Plan may be assigned, transferred, pledged or
otherwise disposed of in any way (other than by will, the laws of descent and
distribution or as provided in Section 22 hereof) by the participant. Any such
attempt at assignment, transfer, pledge or other disposition shall be void and
without effect.
16. REPORTS. Individual accounts will be maintained for each participant
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in this Plan. Each participant shall receive promptly after the end of each
Purchase Period a report of his or her account setting forth the total payroll
deductions accumulated, the number of shares purchased, the per share price
thereof and the remaining cash balance, if any, carried forward to the next
Purchase Period or Offering Period, as the case may be.
17. NOTICE OF DISPOSITION. Each participant shall notify the Company if
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the participant disposes of any of the shares purchased in any Offering Period
pursuant to this Plan if such disposition occurs within two (2) years from the
Offering Date or within one (1) year from the Purchase Date on which such shares
were purchased (the "NOTICE PERIOD"). Unless such participant is disposing of
any of such shares during the Notice Period, such participant shall keep the
certificates representing such shares in his or her name (and not in the name of
a nominee) during the Notice Period. The Company may, at any time during the
Notice Period, place a legend or legends on any certificate representing shares
acquired pursuant to this Plan requesting the Company's transfer agent to notify
the Company of any transfer of the shares. The obligation of the participant to
provide such notice shall continue notwithstanding the placement of any such
legend on the certificates.
18. NO RIGHTS TO CONTINUED EMPLOYMENT. Neither this Plan nor the grant of
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any option hereunder shall confer any right on any employee to remain in the
employ of the Company or any Participating Subsidiary, or restrict the right of
the Company or any Participating Subsidiary to terminate such employee's
employment.
19. EQUAL RIGHTS AND PRIVILEGES. All eligible employees shall have equal
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rights and privileges with respect to this Plan so that this Plan qualifies as
an "employee stock purchase plan" within the meaning of Section 423 or any
successor provision of the Code and the related regulations. Any provision of
this Plan which is inconsistent with Section 423 or any successor provision of
the Code shall, without further act or amendment by the Company, the Committee
or the Board, be reformed to comply with the requirements of Section 423. This
Section 19 shall take precedence over all other provisions in this Plan.
20. NOTICES. All notices or other communications by a participant to the
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Company under or in connection with this Plan shall be deemed to have been duly
given when received in the form specified by the Company at the location, or by
the person, designated by the Company for the receipt thereof.
21. TERM; STOCKHOLDER APPROVAL. After this Plan is adopted by the Board,
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this Plan will become effective on the date that is the First Offering Date (as
defined above). This Plan shall be approved by the stockholders of the Company,
in any manner permitted by applicable corporate law, within twelve (12) months
before or after the date this Plan is adopted by the Board. No purchase of
shares pursuant to this Plan shall occur prior to such stockholder approval.
This Plan shall continue until the earlier to occur of (a) termination of this
Plan by the Board (which termination may be effected by the Board at any time),
(b) issuance of all of the shares of Series A Common Stock reserved for issuance
under this Plan, or (c) ten (10) years from the adoption of this Plan by the
Board.
22. DESIGNATION OF BENEFICIARY.
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(a) A participant may file a written designation of a beneficiary who is
to receive any shares and cash, if any, from the participant's account
under this Plan in the event of such participant's death subsequent to
the end of an Purchase Period but prior to delivery to
<PAGE>
him of such shares and cash. In addition, a participant may file a
written designation of a beneficiary who is to receive any cash from
the participant's account under this Plan in the event of such
participant's death prior to a Purchase Date.
(b) Such designation of beneficiary may be changed by the participant at
any time by written notice. In the event of the death of a
participant and in the absence of a beneficiary validly designated
under this Plan who is living at the time of such participant's death,
the Company shall deliver such shares or cash to the executor or
administrator of the estate of the participant, or if no such executor
or administrator has been appointed (to the knowledge of the Company),
the Company, in its discretion, may deliver such shares or cash to the
spouse or to any one or more dependents or relatives of the
participant, or if no spouse, dependent or relative is known to the
Company, then to such other person as the Company may designate.
23. CONDITIONS UPON ISSUANCE OF SHARES; LIMITATION ON SALE OF SHARES.
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Shares shall not be issued with respect to an option unless the exercise of such
option 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, 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,
and shall be further subject to the approval of counsel for the Company with
respect to such compliance.
24. APPLICABLE LAW. The Plan shall be governed by the substantive laws
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(excluding the conflict of laws rules) of the State of California.
25. AMENDMENT OR TERMINATION OF THIS PLAN. The Board may at any time
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amend, terminate or extend the term of this Plan, except that any such
termination cannot affect options previously granted under this Plan, nor may
any amendment make any change in an option previously granted which would
adversely affect the right of any participant, nor may any amendment be made
without approval of the stockholders of the Company obtained in accordance with
Section 21 hereof within twelve (12) months of the adoption of such amendment
(or earlier if required by Section 21) if such amendment would:
(a) increase the number of shares that may be issued under this Plan; or
(b) change the designation of the employees (or class of employees)
eligible for participation in this Plan.
