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Exhibit 4.4
2000 PEAK INTERNATIONAL LIMITED
EMPLOYEE STOCK PURCHASE PLAN
1. Purpose of the Plan
The purpose of the Plan is to give eligible employees of the Company
and its Subsidiaries the ability to share in Peak's future success. The Company
expects that it will benefit from the added interest which such employees will
have in the welfare of the Company as a result of their increased equity
interest in the Company's success.
2. Definitions
The following capitalized terms used in the Plan have the respective
meanings set forth in this Section:
(a) Act: The Securities Exchange Act of 1934, as amended, or
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any successor thereto.
(b) Beneficial Owner: As such term is defined in Rule 13d-3 under
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the Act (or any successor rule thereto).
(c) Board: The Board of Directors of the Company.
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(d) Change in Control: The occurrence of any of the following
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events:
(i) any Person (other than the Permitted Holders, the Company,
any trustee or other fiduciary holding securities under an
employee benefit plan of the Company, or any company owned,
directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock
of the Company), becomes the Beneficial Owner, directly or
indirectly, of securities of the Company representing 50% or
more of the combined voting power of the Company's then-
outstanding securities;
(ii) the consummation of any transaction or series of
transactions under which the Company is merged or consolidated
with any other company, other than a merger or consolidation
which would result in the shareholders of the Company
immediately prior thereto continuing to own (either by
remaining outstanding or by being converted into voting
securities of the surviving entity) more than 50% of the
combined voting power of the voting securities of the Company
or such surviving entity outstanding immediately after such
merger or consolidation; or
(iii) the stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the
sale or disposition by the Company of all or substantially all
of the Company's assets.
(e) Code: The Internal Revenue Code of 1986, as amended, or any
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successor thereto.
(f) Committee: The Compensation Committee of the Board.
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(g) Company: Peak International Limited, a Bermuda company.
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(h) Compensation: All remuneration received by a Participant
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from the Company or from a Participating Subsidiary during a calendar year that
is considered, in the U.S., as wages reportable under Section
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6051(a)(3) of the Code or, outside the U.S., wages in such jurisdiction;
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 not be taken into
account.
(i) Disability: Inability to engage in any substantial gainful
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activity by reason of a medically determinable physical or mental impairment
which constitutes a permanent and total disability, as defined in Section
22(e)(3) of the Code (or any successor section thereto). The determination
whether a Participant has suffered a Disability shall be made by the Committee
based upon such evidence as it deems necessary and appropriate. A Participant
shall not be considered disabled unless he or she furnishes such medical or
other evidence of the existence of the Disability as the Committee, in its sole
discretion, may require.
(j) Disqualifying Disposition: As such term is defined in Section
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10(f) of the Plan.
(k) Effective Date: The date on which the Plan takes effect, as
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defined pursuant to Section 22 of the Plan.
(l) Fair Market Value: On a given date, the average of the high and
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low prices of the Shares as reported on such date on the Composite Tape of the
principal national securities exchange on which such Shares are listed or
admitted to trading, or, if no Composite Tape exists for such national
securities exchange on such date, then on the principal national securities
exchange on which such Shares are listed or admitted to trading, or, if the
Shares are not listed or admitted on a national securities exchange, the average
of the per Share closing bid price and per Share closing asked price on such
date as quoted on the National Association of Securities Dealers Automated
Quotation System (or such market in which such prices are regularly quoted), or,
if there is no market on which the Shares are regularly quoted, the Fair Market
Value shall be the value established by the Committee in good faith. If no sale
of Shares shall have been reported on such Composite Tape or such national
securities exchange on such date or quoted on the National Association of
Securities Dealer Automated Quotation System on such date, then the immediately
preceding date on which sales of the Shares have been so reported or quoted
shall be used.
(m) Maximum Share Amount: Subject to Section 423 of the Code and
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Section 10(a) of the Plan, the maximum number of Shares that a Participant may
purchase on any given Purchase Date, as determined by the Committee in its sole
discretion.
(n) Offering Date: The first date of an Offering Period.
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(o) Offering Period: An offering period described in Section 5 of
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the Plan.
(p) Option: A stock option granted pursuant to Section 8 of the Plan.
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(q) Participant: An individual who is eligible to participate in the
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Plan pursuant to Section 6 of the Plan.
(r) Participating Subsidiary: A Subsidiary of the Company that is
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selected to participate in the Plan by the Committee in its sole discretion.
(s) Payroll Deduction Account: An account to which payroll deductions
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of Participants are credited under Section 10(c) of the Plan.
(t) Permitted Holders: Luckygold 18A Limited, a British Virgin
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Islands company, and its affiliates.
(u) Person: As such term is used for purposes of Section 13(d) or 14
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(d) of the Act (or any successor section thereto).
(v) Plan: The 2000 Peak International Limited Employee Stock Purchase
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Plan.
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(w) Plan Broker: A stock brokerage or other financial services firm
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designated by the Committee in its sole discretion.
(x) Purchase Date: The last date of an Offering Period.
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(y) Purchase Price: The purchase price per Share, as determined
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pursuant to Section 9 of the Plan.
(z) Retirement: Termination of employment with the Company or a
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Subsidiary after such Participant has attained age 55 and five years of service
with the Company; or, with the prior written consent of the Committee that such
termination be treated as a Retirement hereunder, termination of employment
under other circumstances.
(aa) Shares: Shares of common stock of the Company.
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(bb) Subsidiary: A subsidiary corporation, as defined in Section
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424(f) of the Code or any successor section thereto.
3. Shares Subject to the Plan
The total number of Shares which may be issued under the Plan is
200,000. The Shares may consist, in whole or in part, of unissued Shares,
treasury Shares or Shares purchased on the open market. The issuance of Shares
pursuant to the Plan shall reduce the total number of Shares available under the
Plan.
4. Administration of the Plan
The Plan shall be administered by the Committee. The Committee is
authorized to interpret the Plan, to establish, amend and rescind any rules and
regulations relating to the Plan, and to make any other determinations that it
deems necessary or desirable for the administration of the Plan. The Committee
may correct any defect or supply any omission or reconcile any inconsistency in
the Plan in the manner and to the extent the Committee deems necessary or
desirable. Any decision of the Committee in the interpretation and
administration of the Plan, as described herein, shall lie within its sole and
absolute discretion and shall be final, conclusive and binding on all parties
concerned (including, but not limited to, Participants and their beneficiaries
or successors). Subject to applicable law, the Committee may delegate its duties
and powers under the Plan to such individuals as it designates in it sole
discretion.
5. Offering Periods
Offering Periods shall be of three month's duration and shall commence
on a quarterly basis. Subject to Section 22 of the Plan, the first Offering
Period shall commence on January 1, 2001 and end on March 31, 2001, and the
final Offering Period under the Plan shall commence on September 1, 2010 and end
on December 31, 2010. Notwithstanding the foregoing, the Committee may change
the duration of any Offering Period in its sole discretion.
6. Eligibility
Any individual who is an employee of the Company or of a Participating
Subsidiary or of its parent is eligible to participate in the Plan, except for
the following employees:
(a) employees whose customary employment is twenty (20) hours or less
per week within the meaning of Section 423(b)(4)(B) of the Code;
(b) employees whose customary employment is for not more than five (5)
months in any calendar year within the meaning of Section 423(b)(4)(C) of the
Code;
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(c) employees who, if granted an option would immediately thereafter
own stock possessing five percent (5%) or more of the total combined voting
power or value of all classes of stock of the employer corporation or of its
parent or Subsidiary corporation within the meaning of Section 423(b)(3) of the
Code. For purposes of this Section 6(c) of the Plan, the rules of Section 424(d)
of the Code shall apply in determining stock ownership of an individual, and
stock which the employee may purchase under outstanding options shall be treated
as stock owned by the employee; and
(d) employees who have been employed less than three months.
7. Participation in the Plan
The Committee shall set forth procedures pursuant to which
Participants may elect to participate in a given Offering Period under the Plan.
Once a Participant elects to participate in an Offering Period, such employee
shall automatically participate in all subsequent Offering Periods, unless the
employee (a) makes a new election or (b) withdraws from an Offering Period or
from the Plan pursuant to Section 11 of the Plan.
8. Grant of Option on Enrollment
Each Participant who elects to participate in a given Offering Period
shall be granted (as of the Offering Date) an Option to purchase (as of the
Purchase Date) a number of Shares equal to the lesser of (i) the Maximum Share
Amount or (ii) the number determined by dividing the amount accumulated in such
employee's payroll deduction account during such Offering Period by the Purchase
Price.
9. Purchase Price
The Purchase Price at which a Share will be sold for a given Offering
Period, as of the Purchase Date, shall be eighty-five percent (85%) of the
lesser of:
(a) the Fair Market Value of a Share on the Offering Date; or
(b) the Fair Market Value of a Share on the Purchase Date.
10. Payment of Purchase Price; Changes in Payroll Deductions; Issuance of
Shares
Subject to Sections 11 and 12 of the Plan:
(a) Payroll deductions shall be made on each day that Participants are
paid during an Offering Period with respect to all Participants who elect to
participate in such Offering Period. The deductions shall be made as a
percentage of the Participant's Compensation in one percent (1%) increments,
from one percent (1%) to twenty percent (20%) of such Participant's
Compensation, as elected by the Participant; provided, however, that no
Participant shall be permitted to purchase Shares under this Plan (or under any
other "employee stock purchase plan" within the meaning of Section 423(b) of the
Code, of the Company or its parent or any of its Subsidiaries) with an aggregate
Fair Market Value (as determined as of each Offering Date) in excess of
$25,000.00 for any one calendar year within the meaning of Section 423(b)(8) of
the Code. For a given Offering Period, payroll deductions shall commence on the
Offering Date and shall end on the related Purchase Date, unless sooner altered
or terminated as provided in the Plan.
(b) A Participant shall not change the rate of payroll deductions once
an Offering Period has commenced. The Committee shall specify procedures by
which a Participant may increase or decrease the rate of payroll deductions for
subsequent Offering Periods.
(c) All payroll deductions made with respect to a Participant shall be
credited to his or her Payroll Deduction Account under the Plan and shall be
deposited with the general funds of the Company, and no interest shall accrue on
the amounts credited to such Payroll Deduction Accounts. 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
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obligated to segregate such payroll deductions. A Participant may not make any
separate cash payment into his or her Payroll Deduction Account, and payment for
Shares purchased under the Plan may not be made in any form other than by
payroll deduction.
(d) On each Purchase Date, the Company shall exercise all Options
granted hereunder by applying all funds then in the Participant's Payroll
Deduction Account to purchase Shares (in whole and/or fractional Shares, as the
case may be) pursuant to the Option granted on the Offering Date. In the event
that the number of Shares to be purchased by all Participants in one Offering
Period exceeds the number of Shares then available for issuance under the Plan,
(i) the Company shall make a pro rata allocation of the remaining Shares in as
uniform a manner as shall be practicable and as the Committee shall determine to
be equitable and (ii) all funds not used to purchase Shares on the Purchase Date
shall be returned, without interest, to the Participant.
(e) As soon as practicable following the end of each Offering Period,
the number of Shares purchased by each Participant shall be deposited into an
account established in the Participant's name with the Plan Broker. Unless
otherwise permitted by the Committee in its sole discretion, dividends that are
declared on the Shares held in such account shall be reinvested in whole or
fractional Shares.
(f) Once the holding period set forth in Section 423(a) of the Code
has been satisfied with respect to a Participant's Shares, the Participant may
(i) transfer his or her Shares to another brokerage account of Participant's
choosing or (ii) request in writing that a stock certificate be issued to him or
her with respect to the whole Shares in his or her Plan Broker account and that
any fractional Shares remaining in such account be paid in cash to him or her.
The Committee may require, in its sole discretion, that the Participant bear the
cost of transferring such Shares or issuing certificates for such Shares. Any
Participant who engages in a "Disqualifying Disposition" of his or her Shares
within the meaning of Section 421(b) of the Code shall notify the Company of
such Disqualifying Disposition in accordance with Section 20 of the Plan.
(g) The Participant shall have no interest or voting right in the
Shares covered by his or her Option until the Participant"s Shares shall have
been deposited in the Participant"s account with the Plan Broker.
11. Withdrawal
Each Participant may withdraw from an Offering Period or from the Plan
under such terms and conditions as are established by the Committee in its sole
discretion. Upon a Participant's withdrawal from an Offering Period or from the
Plan, all accumulated payroll deductions in the Payroll Deduction Account shall
be returned, without interest, to such Participant, and he or she shall not be
entitled to any Shares on the Purchase Date or thereafter with respect to the
Offering Period in effect at the time of such withdrawal. Such Participant shall
be permitted to participate in subsequent Offering Periods pursuant to such
terms and conditions established by the Committee in its sole discretion.
12. Termination of Employment
A Participant shall cease to participate in the Plan upon his or her
termination of employment for any reason (including, but not limited to,
Retirement, death or Disability). In such event, all payroll deductions credited
to the Participant's Payroll Deduction Account shall be returned, without
interest, to such Participant or to his or her designated beneficiary, as the
case may be, and such Participant or beneficiary shall have no future rights in
any unexercised Options under the Plan.
13. Adjustments Upon Certain Events
Notwithstanding any other provisions in the Plan to the contrary, the
following provisions shall apply to all Options granted under the Plan:
(a) Generally. In the event of any change in the outstanding Shares by
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reason of any Share dividend or split, reorganization, recapitalization, merger,
consolidation, spin-off, combination or exchange of Shares or other corporate
exchange, or any distribution to stockholders of Shares other than regular cash
dividends,
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the Committee in its sole discretion and without liability to any person may
make such substitution or adjustment, if any, as it deems to be equitable, as to
(i) the number or kind of Shares or other securities issued or reserved for
issuance pursuant to the Plan, (ii) the Purchase Price and/or (iii) any other
affected terms of such Options.
(b) Change in Control. In the event of a Change in Control, the
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Committee in its sole discretion and without liability to any person may take
such actions, if any, as it deems necessary or desirable with respect to any
Option as of the date of the consummation of the Change in Control.
14. Nontransferability
No Options granted under the Plan shall be transferable or assignable
by the Participant otherwise than by will or by the laws of descent and
distribution, and Options shall only be exercisable, during the Participant"s
lifetime, by the Participant.
15. No Right to Employment
The granting of an Option under the Plan shall impose no obligation on
the Company or any Subsidiary to continue the employment of a Participant and
shall not lessen or affect the Company's or Subsidiary's right to terminate the
employment of such Participant.
16. Section 423 of the Code
The Plan is intended to qualify as an "employee stock purchase plan"
within the meaning of Section 423 of the Code or any successor section thereto.
Accordingly, all Participants shall have the same rights and privileges under
the Plan, subject to any exceptions that are permitted under Section 423(b)(5)
of the Code. Any provision of the Plan that is inconsistent with Section 423 of
the Code or any successor provision shall, without further act or amendment, be
reformed to comply with the requirements of Section 423. This Section 16 shall
take precedence over all other provisions in the Plan.
17. Amendment or Termination of the Plan
The Plan shall continue until the earliest to occur of the following:
(a) termination of the Plan by the Board, (b) issuance of all of the Shares
reserved for issuance under the Plan, (c) December 31, 2010, or (d) failure to
satisfy the conditions of Section 22 of the Plan. The Board may amend, alter or
discontinue the Plan, but no amendment, alteration or discontinuation shall be
made which, (a) without the approval of the stockholders of the Company, would
(except as is provided in Section 13 of the Plan), increase the total number of
Shares reserved for the purposes of the Plan or (b) without the consent of a
Participant, would impair any of the rights or obligations under any Option
theretofore granted to such Participant under the Plan; provided, however, that
the Committee may amend the Plan in such manner as it deems necessary to permit
the granting of Options meeting the requirements of the Code or other applicable
laws.
18. Tax Withholding
The Participant's employer shall have the right to withhold from such
Participant such withholding taxes as may be required by federal, state, local
or other law, or to otherwise require the Participant to pay such withholding
taxes. Unless the Committee specifies otherwise, a Participant may elect to pay
a portion or all of such withholding taxes by (a) delivery of Shares or (b)
having Shares withheld by the Company from the Shares otherwise to be received.
The Shares so delivered or withheld shall have an aggregate Fair Market Value
equal to the amount of such withholding taxes.
19. International Participants
With respect to Participants who reside or work outside the United
States of America, the Committee may, in its sole discretion, amend the terms of
the Plan or Awards with respect to such Participants in order to conform such
terms with the requirements of local law.
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20. Notices
All notices and other communications hereunder shall be in writing and
hand delivered or mailed by registered or certified mail (return receipt
requested) or sent by any means of electronic message transmission with delivery
confirmed (by voice or otherwise) to the parties at the following addresses (or
at such other addresses for a party as shall be specified by like notice) and
will be deemed given on the date on which such notice is received:
Peak International Limited
Stock Administration
PO Box 1767
44091 Nobel Drive
Fremont, CA 94538
Or
Peak International Limited
Stock Administration
Peak International, Limited
Units 3, 4, 5 and 7, 37th Floor, Cable TV Tower,
9 Hoi Shing Road, Tsuen Wan N.T., Hong Kong
21. Choice of Law
The Plan shall be governed by and construed in accordance with the
laws of the State of California applicable to contracts made and to be performed
in the State of California, without regard to conflicts of laws principles
thereof.
22. Effectiveness of the Plan
The Plan shall become effective on the date on which it is adopted by
the Board (the "Effective Date"); provided, however, that the Plan must be
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approved within twelve (12) months before or after the Effective Date by the
stockholders of the Company. The Company may commence payroll deductions on
behalf of Participants pursuant to the Plan prior to such stockholder approval;
provided, however, that the use of such payroll deductions to purchase Shares
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pursuant to the exercise of Options hereunder is contingent upon stockholder
approval of the Plan. If stockholder approval of the Plan is not obtained prior
to the first Purchase Date, the Plan shall terminate and all amounts withheld
through payroll deduction or held in a Participant's Payroll Deduction Account
shall be returned to such Participant, without interest.
