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EXHIBIT 10.1
METRO INFORMATION SERVICES, INC.
EMPLOYEE STOCK PURCHASE PLAN
AMENDED AND RESTATED THROUGH JANUARY 1, 2000
1. PURPOSE.
THE METRO INFORMATION SERVICES, INC. EMPLOYEE STOCK PURCHASE PLAN (THE "PLAN")
IS INTENDED TO PROVIDE CERTAIN EMPLOYEES ("PARTICIPANTS") OF METRO INFORMATION
SERVICES, INC. (THE "COMPANY") WITH AN OPPORTUNITY TO ACQUIRE A PROPRIETARY
INTEREST IN THE COMPANY THROUGH THEIR PARTICIPATION IN A PLAN DESIGNED TO
QUALIFY AS AN EMPLOYEE STOCK PURCHASE PLAN UNDER SECTION 423 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
2. ADMINISTRATION.
(a) COMMITTEE. This Plan shall be administered by a committee (the "Committee")
composed of at least two (2) members of the Board of Directors of the Company
(the "Board"). No person shall serve as a member of the Committee, or if a
member of the Committee, shall not participate in decisions concerning the
timing, pricing or amount of Stock to be made available for purchase hereunder,
unless such person is a disinterested person as described in Rule 16b-3
promulgated pursuant to Section 16(b) of the Securities Exchange Act of 1934, as
amended, or any successor rule ("Rule 16b-3"). This Plan is intended to meet the
requirements of Rule 16b-3 and shall be interpreted and administered so as to
comply with such rule. The Committee shall have full authority to administer
this Plan and to adopt such rules and regulations for administering this Plan as
it may deem necessary to comply with the requirements of Section 423 of the
Code. The Committee may delegate to an agent or agents any of its
responsibilities under this Plan except its responsibilities to: (1) establish
the number of shares available for purchase by employees during any purchase
period; (2) establish the maximum and minimum percentage of base compensation to
be paid by any single employee for the purchase of stock during any purchase
period and its authority and (3) construe and interpret the provisions of this
Plan.
(b) ACTIONS OF THE COMMITTEE. All actions taken and all interpretations and
determinations made by the Committee in good faith (including determinations of
fair market value) shall be final and binding on all Participants, the Company
and all other interested persons. No member of the Committee shall be personally
liable for any action, determination or interpretation made in good faith with
respect to this Plan and all members of the Committee shall, in addition to
their rights as directors, be fully protected by the Company with respect to any
such action, determination or interpretation.
3. PURCHASE PERIODS.
The first purchase period under this Plan shall commence on the effective date
of the Company's registration statement filed with the Securities and Exchange
Commission and shall terminate on March 31, 1997. Unless otherwise determined by
the Committee, a purchase period shall commence on the first day of each
succeeding calendar quarter and shall terminate on the last day of each such
quarter. The Committee may, from time to time, establish purchase periods with
differing commencement dates and durations. No two purchase periods shall run
concurrently.
4. ELIGIBILITY AND PARTICIPATION.
(a) Subject to Section 6(c)(iii), effective July 1, 1998, every employee of the
Company who, on the commencement date of the purchase period, has been employed
by the Company for at least three (3) months without a break in service of more
than thirty (30) calendar days is eligible to participate in this Plan during a
purchase period. Contingent workers, including temporary or leased employees and
independent contractors, are not eligible to participate in the Plan.
(b) An employee may become a Participant in this Plan for a particular purchase
period only by completing the enrollment forms prescribed by the Committee
(including a purchase agreement and a payroll deduction authorization)
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and filing such forms before the commencement of the purchase period with the
person designated by the Committee. No enrollment forms will be accepted from an
individual who is not on the active payroll of the Company on the filing date,
unless such individual is temporarily off the payroll by reason of illness,
vacation, jury duty or other employer-sponsored absence.
5. STOCK SUBJECT TO PLAN.
(a) COMMON STOCK. The stock that is purchasable by Participants shall be the
Company's authorized but unissued Common Stock, par value $.01 per share (the
"Common Stock"). To have sufficient shares available for sale under this Plan,
the Company may repurchase shares of Common Stock on the open market, issue
authorized but unissued stock or otherwise. The maximum number of shares that
may be sold to employees during any single purchase period shall be established
by the Committee before the beginning of the purchase period; provided, however,
that the total number of shares that may be sold to Participants throughout the
entire duration of this Plan shall not exceed 500,000 shares (subject to
adjustment under subparagraph (b) below).
(b) CHANGES IN CAPITAL STRUCTURE. If any change is made to the Common Stock
purchasable under this Plan (whether by reason of merger, consolidation,
reorganization, recapitalization, stock dividend in excess of twenty percent
(20%) at any single time, stock splits, combination of shares, exchange of
shares, changes in corporate structure or otherwise), then appropriate
adjustments shall be made to the maximum number of shares purchasable under this
Plan and the number of shares and price per share of stock subject to rights to
purchase stock outstanding under this Plan.
6. PURCHASE OF COMMON STOCK.
(a) RIGHT TO PURCHASE. An employee who becomes a Participant for a particular
purchase period shall have the right, as of the beginning of the purchase
period, to purchase Common Stock on the terms and conditions set forth in this
Plan and shall execute a purchase agreement embodying such terms and conditions
and such other provisions, not inconsistent with this Plan, as the Committee may
deem advisable.
(b) PURCHASE PRICE PER SHARE. Except as provided in Section 6(j), the purchase
price per share shall be eighty-five percent (85%) of the fair market value of a
share of Common Stock on the commencement date of the purchase period. The fair
market value of a share of Common Stock on any date shall be the closing sales
price, as quoted by the National Association of Securities Dealers through the
NASDAQ National Market System for the date in question, or, if the Common Stock
is listed on a national stock exchange, the officially-quoted closing sales
price on such exchange on the date in question. If the Common Stock is not
traded publicly, the fair market value of a share of Common Stock on any date
shall be determined, in good faith, by the Board or the Committee after
consultation with outside legal, accounting or other experts as the Board or the
Committee may deem advisable. If the Common Stock is not traded publicly, the
Board or the Committee shall maintain a written record of its method of
determining such value.
(c) TOTAL PURCHASE PRICE. Each Participant shall, for any purchase period, have
the right to purchase Common Stock with a total purchase price equal to a
designated percentage of his Compensation. A Participant's "Compensation" for a
particular purchase period shall be the amount of the Participant's (i) base
salary or wages or (ii) base salary or wages, plus overtime, bonuses and other
compensation, that is payable to the Participant at any time or from time to
time during the purchase period. Each Participant shall designate in his
purchase agreement the whole percentage of the Participant's Compensation the
Participant wishes to use to pay for the purchase of Common Stock for the
particular purchase period, subject to the provisions set forth below which
shall be uniformly applied to all Participants in a particular purchase period:
(i) The maximum percentage of a Participant's Compensation that may be used to
pay for the Common Stock in a particular purchase period shall be five percent
(5%); provided, however, that the Committee shall establish before the beginning
of the purchase period a maximum number of shares (subject to adjustment under
Section 6(b)) that may be purchased during the purchase period by each
Participant.
(ii) The minimum percentage of a Participant's Compensation that may be used to
pay for the purchase of Common Stock in a particular period shall be one percent
(1%).
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(iii) No right to purchase shares under this Plan shall be granted to an
employee if such employee would, immediately after the grant, own stock
possessing five percent (5%) or more of the total combined voting power or value
of all classes of stock of the Company. An employee's stock ownership shall be
determined under Section 424(d) of the Code and stock that an employee may
purchase under any outstanding options shall be treated as stock owned by the
employee.
Notwithstanding the provisions of paragraphs (i) and (ii) above, the Committee
may, in its discretion, establish any other maximum and minimum percentages of
Compensation to be used to pay for Common Stock under this Plan.
(d) ALLOCATION OF AVAILABLE SHARES. If the total number of shares of Common
Stock that may be purchased under the purchase agreements of all Participants
for a particular purchase period exceeds the number of shares available for sale
under this Plan, then the Committee shall make a pro rata allocation of the
available shares and shall notify each Participant of such allocation.
(e) PAYMENT. Payment of the purchase price for Common Stock under this Plan
shall be effected by means of payroll deductions, which shall begin with the
first pay period, the payment date for which occurs coincident with or
immediately following the commencement date of the relevant purchase period and
shall terminate with the last pay period, the payment date for which occurs on
or before the last day of the purchase period. Each payroll deduction shall be
an amount equal to the percentage of the Compensation included in that payroll
payment that was designated by the Participant in his purchase agreement
(subject to reduction as provided in Section 6(g)).
(f) TERMINATION OF RIGHT TO PURCHASE. A Participant may, at any time before the
last day of the purchase period, terminate his right to purchase stock under
this Plan by filing the prescribed notification form with the Committee or its
delegate. Any amounts deducted from the Participant's pay or otherwise collected
from him by reason of his participation in this Plan for such purchase period
shall be refunded and no further amounts will be collected from the Participant
(by payroll deduction or otherwise) during the remainder of the purchase period.
A Participant's termination of his right to purchase shall be irrevocable with
respect to the purchase period to which it pertains.
(g) REDUCTION OF COMPENSATION PERCENTAGE. A Participant may, once and only once
during a purchase period, other than after his termination of employment with
the Company, reduce the percentage of his Compensation to be paid for shares of
Common Stock under the purchase agreement to a lesser whole percentage by giving
written notice to the Committee.
(h) TERMINATION OF EMPLOYMENT. If a Participant ceases to be an employee of the
Company for any reason (including, without limitation, death or retirement)
during a purchase period, the Participant or his personal representative will
receive a cash refund of all sums previously collected from the Participant
during the purchase period.
(i) EXERCISE. Each right to purchase stock under this Plan, other than a right
to purchase Common Stock that has been accelerated under this Plan or that has
previously terminated under this Plan, shall be exercised automatically on the
last day of the purchase period. Promptly after the date of exercise, the
Participant or the Participant's nominee, shall be issued a stock certificate
for the number of whole and fractional shares for which the Participant's right
to purchase has been exercised. Not more than one certificate shall be issued
pursuant to the exercise of any right to purchase Common Stock under this Plan.
Any excess of amounts collected during the purchase period, plus any beginning
balance over the purchase price of the issued shares, shall be, at the sole
option of the Company, promptly refunded or left on deposit for the ensuing
quarterly period, and, in any case, refunded after termination.
(j) REDUCTION OF PURCHASE PRICE. If the fair market value of a share of Common
Stock on the last day of the purchase period is less than the fair market value
of such share on the commencement date of the purchase period, then the purchase
price per share under this Plan on the last day of the purchase period shall be
reduced to eighty-five percent (85%) of the fair market value of such share on
the last day of the purchase period. Each right to purchase stock under this
Plan not previously exercised or terminated shall be automatically exercised on
the last day of the purchase period for the number of whole and fractional
shares obtained by dividing the sum on deposit from the Participant (and not
refunded) by the purchase price per share determined under this Section 6(j),
but in no event shall any right to purchase
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stock under this Plan be exercised for more than the specified number of shares,
if any, (subject to adjustment under Section 5(b)) established by the Committee
pursuant to Section 6(c)(i) before the beginning of the purchase period, and the
balance shall be, at the sole option of the Company, promptly refunded or left
on deposit for the ensuing quarterly period.
(k) RIGHTS AS STOCKHOLDER. A Participant shall have no rights as a stockholder
with respect to shares subject to a right to purchase Common Stock granted under
this Plan until such right to purchase is exercised and a share certificate is
delivered to the Participant. No adjustments shall be made for dividends,
distributions or other rights for which the record date is before the date of
exercise.
(l) ASSIGNABILITY. No right to purchase Common Stock granted under this Plan
shall be assignable or transferable by a Participant other than by will or by
the laws of descent and distribution, and, during the lifetime of the
Participant, such rights to purchase Common Stock shall be exercisable only by
the Participant.
(m) ACCRUAL LIMITATIONS. No Participant shall be entitled to accrue rights to
purchase Common Stock under this Plan that, when aggregated with purchase rights
accruable by him under other qualified employee stock purchase plans (within the
meaning of Section 423 of the Code) of the Company, would permit such
Participant to purchase more than $25,000 worth of Common Stock (determined on
the basis of the fair market value of such Common Stock on the date the
Participant accrues purchase rights under the Plan) for each calendar year such
purchase rights are at any time outstanding.
(n) MERGER OR LIQUIDATION OF THE COMPANY. If the Company or its shareholders
enter into an agreement to dispose of all or substantially all of the assets of
the Company or to dispose of greater than fifty percent (50%) of the outstanding
capital stock of the Company by means of sale, merger, reorganization or
liquidation, each Participant shall be entitled to receive, as nearly as
reasonably may be determined, the cash, securities or property (or any
combination thereof) that a holder of one share of the Common Stock was entitled
to receive at the time of such transaction. The Board or the Committee shall
take such steps in connection with such transactions as the Board or the
Committee shall deem necessary to assure that the provisions of this Section
shall thereafter be applicable, as nearly as reasonably may be determined, to
the said cash, securities or property (or any combination thereof) as to which
such Participant might thereafter be entitled to receive.
(o) NO INTEREST. No interest shall be paid on any monies refunded to
Participants pursuant to the provisions of this Plan.
(p) WITHHOLDING. The Company may withhold any taxes required by any law or
regulation of any governmental authority, whether federal, state or local, in
connection with the purchase of Common Stock under this Plan or the sale of such
stock that is not held for at least two (2) years after the beginning of the
purchase period during which the Common Stock was purchased. Such withholding
may include all or any portion of any payment or other compensation payable to
the Participant, unless the Participant reimburses the Company for such amount.
7. AMENDMENT.
THE BOARD MAY FROM TIME TO TIME ALTER, AMEND, SUSPEND OR DISCONTINUE THIS PLAN;
PROVIDED, HOWEVER, THAT NO SUCH ACTION SHALL ADVERSELY AFFECT RIGHTS AND
OBLIGATIONS WITH RESPECT TO RIGHTS TO PURCHASE STOCK AT THE TIME OUTSTANDING
UNDER THIS PLAN AND PROVIDED, FURTHER, THAT NO SUCH ACTION OF THE BOARD MAY,
WITHOUT THE APPROVAL OF THE SHAREHOLDERS OF THE COMPANY, INCREASE THE NUMBER OF
SHARES SUBJECT TO THIS PLAN OR THE MAXIMUM NUMBER OF SHARES FOR WHICH A RIGHT TO
PURCHASE COMMON STOCK UNDER THIS PLAN MAY BE EXERCISED (UNLESS NECESSARY TO
EFFECT THE ADJUSTMENTS REQUIRED BY SECTION 5(B)), EXTEND THE TERM OF THIS PLAN,
ALTER THE PER SHARE PURCHASE PRICE FORMULA SO AS TO REDUCE THE PURCHASE PRICE
PER SHARE SPECIFIED IN THIS PLAN, OTHERWISE MATERIALLY INCREASE THE BENEFITS
ACCRUING TO PARTICIPANTS UNDER THE PLAN OR MATERIALLY MODIFY THE REQUIREMENTS
FOR ELIGIBILITY TO PARTICIPATE IN THIS PLAN. FURTHERMORE, THE PLAN MAY NOT,
WITHOUT THE APPROVAL OF THE SHAREHOLDERS OF THE COMPANY, BE AMENDED IN ANY
MANNER THAT WILL CAUSE THIS PLAN TO FAIL TO MEET THE REQUIREMENTS OF AN
"EMPLOYEE STOCK PURCHASE PLAN" UNDER SECTION 423 OF THE CODE.
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8. EFFECTIVE DATE
This Plan, as amended and restated, supersedes all prior versions of this Plan.
Amendments to Section 4.a of this Plan have been approved by the Board pursuant
to its authority under Section 7 and shall become effective as of January 1,
2000.
Date: As amended through January 1, 2000
METRO INFORMATION SERVICES, INC.
By: /s/ JOHN H. FAIN
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John H. Fain, President
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