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ESOFT, INC.
2000 EMPLOYEE STOCK PURCHASE PLAN
ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 17, 2000
APPROVED BY STOCKHOLDERS ____________, 2001
1. PURPOSE.
(a) The purpose of the Plan is to provide a means by which Employees
of the Company and certain designated Related Corporations may be given an
opportunity to purchase shares of the Common Stock of the Company.
(b) The Company, by means of the Plan, seeks to retain the services
of such Employees, to secure and retain the services of new Employees and to
provide incentives for such persons to exert maximum efforts for the success
of the Company and its Related Corporations.
(c) The Company intends that the Purchase Rights granted under the
Plan be considered options issued under an Employee Stock Purchase Plan.
2. DEFINITIONS.
(a) "BOARD" means the Board of Directors of the Company.
(b) "CODE" means the Internal Revenue Code of 1986, as amended.
(c) "COMMITTEE" means a committee appointed by the Board in
accordance with Section 3(c) of the Plan.
(d) "COMMON STOCK" means the Common Stock of the Company.
(e) "COMPANY" means eSoft, Inc., a Delaware corporation.
(f) "CORPORATE TRANSACTION" means the occurrence of any one or more
of the following:
(i) a sale, exchange or other disposition of all or
substantially all of the assets of the Company;
(ii) a sale, exchange or other disposition of all or
substantially all of the outstanding securities of the Company;
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(iii) a merger or consolidation following which the Company
is not the surviving corporation;
(iv) a merger following which the Company is the surviving
corporation but the shares of Common Stock outstanding immediately preceding
the merger are converted by virtue of the merger into other property, whether
in the form of securities, cash or otherwise; or
(v) any other transaction described as a "corporate
transaction" in Treasury Regulations Section 1.425-1(a)(1)(ii), as amended from
time to time.
(g) "DIRECTOR" means a member of the Board.
(h) "ELIGIBLE EMPLOYEE" means an Employee who meets the requirements
set forth in the Offering for eligibility to participate in the Offering,
provided that such Employee also meets the requirements for eligibility to
participate set forth in the Plan.
(i) "EMPLOYEE" means any person, including Officers and Directors,
who is employed for tax purposes by the Company or a Related Corporation.
Neither service as a Director nor payment of a director's fee shall be
sufficient to constitute "employment" by the Company or the Related
Corporation.
(j) "EMPLOYEE STOCK PURCHASE PLAN" means a plan that grants Purchase
Rights intended to be options issued under an "employee stock purchase plan,"
as that term is defined in Section 423(b) of the Code.
(k) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
(l) "FAIR MARKET VALUE" means the value of a security, as determined
in good faith by the Board. If the security is listed on any established
stock exchange or traded on the Nasdaq National Market or the Nasdaq SmallCap
Market, the Fair Market Value of the security, unless otherwise determined
by the board, shall be the closing sales price (rounded up where necessary to
the nearest whole cent) for such security (or the closing bid, if no sales were
reported) as quoted on such exchange or market (or the exchange or market with
the greatest volume of trading in the relevant security of the Company) on the
Trading Day prior to the relevant determination date, as reported in THE WALL
STREET JOURNAL or such other source as the Board deems reliable.
(m) "OFFERING" means the grant of Purchase Rights to purchase shares
of Common Stock under the Plan to Eligible Employees.
(n) "OFFERING DATE" means a date selected by the Board for an
Offering to commence.
(o) "OFFICER" means a person who is an officer of the Company within
the meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder.
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(p) "PARTICIPANT" means an Eligible Employee who holds an
outstanding Purchase Right granted pursuant to the Plan.
(q) "PLAN" means this eSoft, Inc. 2000 Employee Stock Purchase Plan.
(r) "PURCHASE DATE" means one or more dates during an Offering
established by the Board on which Purchase Rights granted under the Plan
shall be exercised and as of which purchases of shares of Common Stock shall
be carried out in accordance with such Offering.
(s) "PURCHASE PERIOD" means a period of time specified within an
Offering beginning on the Offering Date or on the next day following a
Purchase Date within an Offering and ending on a Purchase Date, at the end of
which there shall be purchased shares of Common Stock on behalf of
Participants. An Offering may consist of one or more Purchase Periods.
(t) "PURCHASE RIGHT" means an option to purchase shares of Common
Stock granted pursuant to the Plan.
(u) "RELATED CORPORATION" means any parent corporation or subsidiary
corporation, whether now or hereafter existing, as those terms are defined in
Sections 424(e) and (f), respectively, of the Code.
(v) "SECURITIES ACT" means the Securities Act of 1933, as amended.
(w) "TRADING DAY" means any day the exchange(s) or market(s) on
which shares of Common Stock are listed, whether it be any established stock
exchange, the Nasdaq National Market, the Nasdaq SmallCap Market or
otherwise, is open for trading.
3. ADMINISTRATION.
(a) The Board shall administer the Plan unless and until the Board
delegates administration to a Committee, as provided in Section 3(c). Whether
or not the Board has delegated administration, the Board shall have the final
power to determine all questions of policy and expediency that may arise in
the administration of the Plan.
(b) The Board (or the Committee) shall have the power, subject to,
and within the limitations of, the express provisions of the Plan:
(i) To determine when and how Purchase Rights to purchase
shares of Common Stock shall be granted and the provisions of each Offering
of such Purchase Rights (which need not be identical).
(ii) To designate from time to time which Related
Corporations of the Company shall be eligible to participate in the Plan.
(iii) To construe and interpret the Plan and Purchase
Rights granted under the Plan, and to establish, amend and revoke rules and
regulations for the administration of the Plan. The Board, in the exercise of
this power, may correct any defect, omission or inconsistency in
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the Plan, in a manner and to the extent it shall deem necessary or expedient
to make the Plan fully effective.
(iv) To amend the Plan as provided in Section 15.
(v) Generally, to exercise such powers and to perform
such acts as it deems necessary or expedient to promote the best interests of
the Company and its Related Corporations and to carry out the intent that the
Plan be treated as an Employee Stock Purchase Plan.
(c) The Board may delegate administration of the Plan to a Committee
of the Board composed of one (1) or more members of the Board. If
administration is delegated to a Committee, the Committee shall have, in
connection with the administration of the Plan, the powers theretofore
possessed by the Board, subject, however, to such resolutions, not
inconsistent with the provisions of the Plan, as may be adopted from time to
time by the Board. The Board may abolish the Committee at any time and revest
in the Board the administration of the Plan. If administration is delegated
to a Committee, references to the Board in this Plan and in the Offering
document shall thereafter be deemed to be to the Board or the Committee, as
the case may be.
4. SHARES OF COMMON STOCK SUBJECT TO THE PLAN.
(a) Subject to the provisions of Section 14 relating to adjustments
upon changes in stock, the shares of Common Stock that may be sold pursuant
to Purchase Rights granted under the Plan shall not exceed in the aggregate
three hundred and eleven thousand one hundred and forty eight (311,148)
shares of Common Stock, plus an annual increase to be added on the last day
of each calendar year, commencing on December 31, 2001 and ending on (and
including) December 31, 2003, equal to the greater of (i) two percent (2%) of
the shares of Common Stock outstanding on each December 31 (rounded to the
nearest whole share and calculated on a fully diluted basis, that is assuming
the exercise of all outstanding stock options and warrants to purchase
shares); (ii) the number of shares of Common Stock that have been issued
under the Plan during the prior twelve-month period, or (iii) such number of
shares of Common Stock as determined by the Board, which number shall be less
than each of (i) and (ii); PROVIDED, HOWEVER, that any such automatic share
reserve increases in the aggregate shall not exceed nine hundred and thirty
three thousand four hundred and forty four (933,444) shares of Common Stock
over a three-year period. If any Purchase Right granted under the Plan shall
for any reason terminate without having been exercised, the shares not
purchased under such Purchase Right shall again become available for issuance
under the Plan.
(b) The shares of Common Stock subject to the Plan may be unissued
shares or shares that have been bought on the open market at prevailing
market prices or otherwise.
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5. GRANT OF PURCHASE RIGHTS; OFFERING.
(a) The Board may from time to time grant or provide for the grant
of Purchase Rights to purchase shares of Common Stock under the Plan to
Eligible Employees in an Offering (consisting of one or more Purchase
Periods) on an Offering Date or Offering Dates selected by the Board. Each
Offering shall be in such form and shall contain such terms and conditions as
the Board shall deem appropriate, which shall comply with the requirement of
Section 423(b)(5) of the Code that all Employees granted Purchase Rights to
purchase shares of Common Stock under the Plan shall have the same rights and
privileges. The terms and conditions of an Offering shall be incorporated by
reference into the Plan and treated as part of the Plan. The provisions of
separate Offerings need not be identical, but each Offering shall include
(through incorporation of the provisions of this Plan by reference in the
document comprising the Offering or otherwise) the period during which the
Offering shall be effective, which period shall not exceed twenty-seven (27)
months beginning with the Offering Date, and the substance of the provisions
contained in Sections 6 through 9, inclusive.
(b) If a Participant has more than one Purchase Right outstanding
under the Plan, unless he or she otherwise indicates in agreements or notices
delivered hereunder: (i) each agreement or notice delivered by that
Participant shall be deemed to apply to all of his or her Purchase Rights
under the Plan, and (ii) a Purchase Right with a lower exercise price (or an
earlier-granted Purchase Right, if different Purchase Rights have identical
exercise prices) shall be exercised to the fullest possible extent before a
Purchase Right with a higher exercise price (or a later-granted Purchase
Right, if different Purchase Rights have identical exercise prices) shall be
exercised.
6. ELIGIBILITY.
(a) Purchase Rights may be granted only to Employees of the Company
or, as the Board may designate as provided in Section 3(b), to Employees of a
Related Corporation. Except as provided in Section 6(b), an Employee shall
not be eligible to be granted Purchase Rights under the Plan unless, on the
Offering Date, such Employee has been in the employ of the Company or the
Related Corporation, as the case may be, for such continuous period preceding
such Offering Date as the Board may require, but in no event shall the
required period of continuous employment be greater than two (2) years. In
addition, the Board may provide that no Employee shall be eligible to be
granted Purchase Rights under the Plan unless, on the Offering Date, such
Employee's customary employment with the Company or the Related Corporation
is more than twenty (20) hours per week and more than five (5) months per
calendar year.
(b) The Board may provide that each person who, during the course of
an Offering, first becomes an Eligible Employee shall, on a date or dates
specified in the Offering which coincides with the day on which such person
becomes an Eligible Employee or which occurs thereafter, receive a Purchase
Right under that Offering, which Purchase Right shall thereafter be deemed to
be a part of that Offering. Such Purchase Right shall have the same
characteristics as any Purchase Rights originally granted under that
Offering, as described herein, except that:
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(i) the date on which such Purchase Right is granted
shall be the "Offering Date" of such Purchase Right for all purposes,
including determination of the exercise price of such Purchase Right;
(ii) the period of the Offering with respect to such
Purchase Right shall begin on its Offering Date and end coincident with the
end of such Offering; and
(iii) the Board may provide that if such person first
becomes an Eligible Employee within a specified period of time before the end
of the Offering, he or she shall not receive any Purchase Right under that
Offering.
(c) No Employee shall be eligible for the grant of any Purchase
Rights under the Plan if, immediately after any such Purchase Rights are
granted, such Employee owns stock possessing five percent (5%) or more of the
total combined voting power or value of all classes of stock of the Company
or of any Related Corporation. For purposes of this Section 6(c), the rules
of Section 424(d) of the Code shall apply in determining the stock ownership
of any Employee, and stock which such Employee may purchase under all
outstanding Purchase Rights and options shall be treated as stock owned by
such Employee.
(d) An Eligible Employee may be granted Purchase Rights under the
Plan only if such Purchase Rights, together with any other rights granted
under all Employee Stock Purchase Plans of the Company and any Related
Corporations, as specified by Section 423(b)(8) of the Code, do not permit
such Eligible Employee's rights to purchase stock of the Company or any
Related Corporation to accrue at a rate which exceeds twenty five thousand
dollars ($25,000) of Fair Market Value of such stock (determined at the time
such rights are granted) for each calendar year in which such rights are
outstanding at any time.
(e) Officers of the Company and any designated Related Corporation,
if they are otherwise Eligible Employees, shall be eligible to participate in
Offerings under the Plan. Notwithstanding the foregoing, the Board may
provide in an Offering that Employees who are highly compensated Employees
within the meaning of Section 423(b)(4)(D) of the Code shall not be eligible
to participate.
7. PURCHASE RIGHTS; PURCHASE PRICE.
(a) On each Offering Date, each Eligible Employee, pursuant to an
Offering made under the Plan, shall be granted a Purchase Right to purchase
up to that number of shares of Common Stock purchasable either with a
percentage or with a maximum dollar amount, as designated by the Board, but
in either case not exceeding ten percent (10%), of such Employee's Earnings
(as defined by the Board in each Offering) during the period that begins on
the Offering Date (or such later date as the Board determines for a
particular Offering) and ends on the date stated in the Offering, which date
shall be no later than the end of the Offering.
(b) The Board shall establish one (1) or more Purchase Dates during
an Offering as of which Purchase Rights granted under the Plan and pursuant
to that Offering shall be exercised and purchases of shares of Common Stock
shall be carried out in accordance with such Offering.
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(c) In connection with each Offering made under the Plan, the Board
may specify a maximum number of shares of Common Stock that may be purchased
by any Participant as well as a maximum aggregate number of shares of Common
Stock that may be purchased by all Participants pursuant to such Offering. In
addition, in connection with each Offering that contains more than one
Purchase Date, the Board may specify a maximum aggregate number of shares of
Common Stock that may be purchased by all Participants on any given Purchase
Date under the Offering. If the aggregate purchase of shares of Common Stock
issuable upon exercise of Purchase Rights granted under the Offering would
exceed any such maximum aggregate number, then, in the absence of any Board
action otherwise, a pro rata allocation of the shares of Common Stock
available shall be made in as nearly a uniform manner as shall be practicable
and equitable.
(d) The purchase price of shares of Common Stock acquired pursuant
to Purchase Rights granted under the Plan shall be not less than the lesser
of:
(i) an amount equal to eighty-five percent (85%) of
the Fair Market Value of the shares of Common Stock on the Offering Date; or
(ii) an amount equal to eighty-five percent (85%) of
the Fair Market Value of the shares of Common Stock on the Purchase Date.
8. PARTICIPATION; WITHDRAWAL; TERMINATION.
(a) An Eligible Employee may become a Participant in the Plan
pursuant to an Offering by delivering a participation agreement to the
Company within the time specified in the Offering, in such form as the
Company provides. Each such agreement shall authorize payroll deductions of
up to the maximum percentage specified by the Board of such Participant's
Earnings (as defined in each Offering) during the Offering. The payroll
deductions made for each Participant shall be credited to a bookkeeping
account for such Participant under the Plan and shall be deposited with the
general funds of the Company. To the extent provided in the Offering, a
Participant may reduce (including to zero) or increase such payroll
deductions. To the extent provided in the Offering, a Participant may begin
such payroll deductions after the beginning of the Offering. A Participant
may make additional payments into his or her account only if specifically
provided for in the Offering and only if the Participant has not already had
the maximum permitted amount withheld during the Offering.
(b) At any time during an Offering, a Participant may terminate his
or her payroll deductions under the Plan and withdraw from the Offering by
delivering to the Company a notice of withdrawal in such form as the Company
may provide. Such withdrawal may be elected at any time prior to the end of
the Offering, except as provided in the Offering. Upon such withdrawal from
the Offering by a Participant, the Company shall distribute to such
Participant all of his or her accumulated payroll deductions (reduced to the
extent, if any, such deductions have been used to acquire shares of Common
Stock for the Participant) under the Offering, without interest (unless
otherwise specified in the Offering), and such Participant's interest in that
Offering shall be automatically terminated. A Participant's withdrawal from
an Offering shall have no effect upon such Participant's eligibility to
participate in any other
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Offerings under the Plan, but such Participant shall be required to deliver a
new participation agreement in order to participate in subsequent Offerings
under the Plan.
(c) Purchase Rights granted pursuant to any Offering under the Plan
shall terminate immediately upon a Participant ceasing to be an Employee for
any reason or for no reason (subject to any post-employment participation
period required by law) or other lack of eligibility. The Company shall
distribute to such terminated or otherwise ineligible Employee all of his or
her accumulated payroll deductions (reduced to the extent, if any, such
deductions have been used to acquire shares of Common Stock for the
terminated or otherwise ineligible Employee) under the Offering, without
interest (unless otherwise specified in the Offering).
(d) Purchase Rights granted under the Plan shall not be transferable
by a Participant otherwise than by will or the laws of descent and
distribution, or by a beneficiary designation as provided in Section 13 and,
during a Participant's lifetime, shall be exercisable only by such
Participant.
9. EXERCISE.
(a) On each Purchase Date during an Offering, each Participant's
accumulated payroll deductions and other additional payments specifically
provided for in the Offering (without any increase for interest) shall be
applied to the purchase of shares of Common Stock up to the maximum number of
shares of Common Stock permitted pursuant to the terms of the Plan and the
applicable Offering, at the purchase price specified in the Offering. No
fractional shares shall be issued upon the exercise of Purchase Rights
granted under the Plan unless specifically provided for in the Offering.
(b) The amount, if any, of accumulated payroll deductions remaining
in each Participant's account after the purchase of shares of Common Stock
that is less than the amount required to purchase one share of Common Stock
on the final Purchase Date of an Offering shall be held in each such
Participant's account for the purchase of shares of Common Stock under the
next Offering under the Plan, unless such Participant withdraws from such
next Offering, as provided in Section 8(b), or is not eligible to participate
in such Offering, as provided in Section 6, in which case such amount shall
be distributed to the Participant after said final Purchase Date, without
interest (unless otherwise specified in the Offering). The amount, if any, of
accumulated payroll deductions remaining in a Participant's account after the
purchase of shares of Common Stock that is equal to the amount required to
purchase one (1) or more whole shares of Common Stock on the final Purchase
Date of the Offering shall be distributed in full to the Participant at the
end of the Offering without interest (unless otherwise specified in the
Offering).
(c) No Purchase Rights granted under the Plan may be exercised to
any extent unless the shares of Common Stock to be issued upon such exercise
under the Plan are covered by an effective registration statement pursuant to
the Securities Act and the Plan is in material compliance with all applicable
federal, state, foreign and other securities and other laws applicable to the
Plan. If on a Purchase Date during any Offering hereunder the shares of
Common Stock are not so registered or the Plan is not in such compliance, no
Purchase Rights granted under the Plan or any Offering shall be exercised on
such Purchase Date, and the
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Purchase Date shall be delayed until the shares of Common Stock are subject
to such an effective registration statement and the Plan is in such
compliance, except that the Purchase Date shall not be delayed more than
twelve (12) months and the Purchase Date shall in no event be more than
twenty-seven (27) months from the Offering Date. If, on the Purchase Date
under any Offering hereunder, as delayed to the maximum extent permissible,
the shares of Common Stock are not registered and the Plan is not in such
compliance, no Purchase Rights granted under the Plan or any Offering shall
be exercised and all payroll deductions accumulated during the Offering
(reduced to the extent, if any, such deductions have been used to acquire
shares of Common Stock) shall be distributed to the Participants, without
interest (unless otherwise specified in the Offering).
10. COVENANTS OF THE COMPANY.
(a) During the terms of the Purchase Rights granted under the Plan,
the Company shall ensure that the amount of shares of Common Stock required
to satisfy such Purchase Rights are available.
(b) The Company shall seek to obtain from each federal, state,
foreign or other regulatory commission or agency having jurisdiction over the
Plan such authority as may be required to issue and sell shares of Common
Stock upon exercise of the Purchase Rights granted under the Plan. If, after
reasonable efforts, the Company is unable to obtain from any such regulatory
commission or agency the authority that counsel for the Company deems
necessary for the lawful issuance and sale of shares of Common Stock under
the Plan, the Company shall be relieved from any liability for failure to
issue and sell shares of Common Stock upon exercise of such Purchase Rights
unless and until such authority is obtained.
11. USE OF PROCEEDS FROM SHARES OF COMMON STOCK.
Proceeds from the sale of shares of Common Stock pursuant to Purchase
Rights granted under the Plan shall constitute general funds of the Company.
12. RIGHTS AS A STOCKHOLDER.
A Participant shall not be deemed to be the holder of, or to have any
of the rights of a holder with respect to, shares of Common Stock subject to
Purchase Rights granted under the Plan unless and until the Participant's shares
of Common Stock acquired upon exercise of Purchase Rights granted under the Plan
are recorded in the books of the Company (or its transfer agent).
13. DESIGNATION OF BENEFICIARY.
(a) A Participant may file a written designation of a beneficiary
who is to receive any shares of Common Stock and/or cash, if any, from the
Participant's account under the Plan in the event of such Participant's death
subsequent to the end of an Offering but prior to delivery to the Participant
of such shares of Common Stock or cash. In addition, a Participant may file a
written
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designation of a beneficiary who is to receive any cash from the
Participant's account under the Plan in the event of such Participant's death
during an Offering.
(b) The Participant may change such designation of beneficiary 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 the Plan who is living
at the time of such Participant's death, the Company shall deliver such
shares of Common Stock and/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 sole
discretion, may deliver such shares of Common Stock and/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.
14. ADJUSTMENTS UPON CHANGES IN SECURITIES; CORPORATE TRANSACTIONS.
(a) If any change is made in the shares of Common Stock, subject to
the Plan, or subject to any Purchase Right, without the receipt of
consideration by the Company (through merger, consolidation, reorganization,
recapitalization, reincorporation, stock dividend, dividend in property other
than cash, stock split, liquidating dividend, combination of shares, exchange
of shares, change in corporate structure or other transaction not involving
the receipt of consideration by the Company), the Plan shall be appropriately
adjusted in the type(s), class(es) and maximum number of shares of Common
Stock subject to the Plan pursuant to Section 4(a), and the outstanding
Purchase Rights granted under the Plan shall be appropriately adjusted in the
type(s), class(es), number of shares and purchase limits of such outstanding
Purchase Rights. The Board shall make such adjustments, and its determination
shall be final, binding and conclusive. (The conversion of any convertible
securities of the Company shall not be treated as a "transaction not
involving the receipt of consideration by the Company.")
(b) In the event of a Corporate Transaction, then: (i) any surviving
or acquiring corporation may continue or assume Purchase Rights outstanding
under the Plan or may substitute similar rights (including a right to acquire
the same consideration paid to stockholders in the transaction described in
this Section 14(b)) for those outstanding under the Plan, or (ii) if any
surviving or acquiring corporation does not assume such Purchase Rights or
does not substitute similar rights for Purchase Rights outstanding under the
Plan, then, the Participants' accumulated payroll deductions (exclusive of
any accumulated interest which cannot be applied toward the purchase of
shares of Common Stock under the terms of the Offering) shall be used to
purchase shares of Common Stock immediately prior to the Corporate
Transaction under the ongoing Offering, and the Participants' Purchase Rights
under the ongoing Offering shall terminate immediately after such purchase.
15. AMENDMENT OF THE PLAN.
(a) The Board at any time, and from time to time, may amend the
Plan. However, except as provided in Section 14 relating to adjustments upon
changes in securities and except as to amendments solely to benefit the
administration of the Plan, to take account of a change in legislation or to
obtain or maintain favorable tax, exchange control or regulatory treatment
for
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Participants or the Company or any Related Corporation, no amendment shall be
effective unless approved by the stockholders of the Company to the extent
stockholder approval is necessary for the Plan to satisfy the requirements of
Section 423 of the Code, any Nasdaq or other securities exchange listing
requirements or other applicable laws or regulations. Currently under the
Code, stockholder approval within twelve (12) months before or after the
adoption of the amendment is required where the amendment shall increase the
amount of shares of Common Stock reserved for issuance pursuant to Purchase
Rights under the Plan or make certain modifications to the provisions as to
eligibility for participation in the Plan.
(b) It is expressly contemplated that the Board may amend the Plan
in any respect the Board deems necessary or advisable to provide Employees
with the maximum benefits provided or to be provided under the provisions of
the Code and the regulations promulgated thereunder relating to Employee
Stock Purchase Plans and/or to bring the Plan and/or Purchase Rights granted
under the Plan into compliance therewith.
(c) The rights and obligations under any Purchase Rights granted
before amendment of the Plan shall not be impaired by any amendment of the
Plan except (i) with the consent of the person to whom such Purchase Rights
were granted, (ii) as necessary to comply with any laws or governmental
regulations, or (iii) as necessary to ensure that the Plan and/or Purchase
Rights granted under the Plan comply with the requirements of Section 423 of
the Code.
16. TERMINATION OR SUSPENSION OF THE PLAN.
(a) The Board in its discretion may suspend or terminate the Plan at
any time. Unless sooner terminated, the Plan shall terminate at the time that
all of the shares of Common Stock reserved for issuance under the Plan, as
increased and/or adjusted from time to time, have been issued under the terms
of the Plan. No Purchase Rights may be granted under the Plan while the Plan
is suspended or after it is terminated.
(b) Any benefits, privileges, entitlements and obligations under any
Purchase Rights granted under the Plan while the Plan is in effect shall not
be impaired by suspension or termination of the Plan except (i) as expressly
provided in the Plan or with the consent of the person to whom such Purchase
Rights were granted, (ii) as necessary to comply with any laws, regulations,
or listing requirements, or (iii) as necessary to ensure that the Plan and/or
Purchase Rights granted under the Plan comply with the requirements of
Section 423 of the Code.
17. EFFECTIVE DATE OF PLAN.
The Plan shall become effective as determined by the Board, but no
Purchase Rights granted under the Plan shall be exercised unless and until
the Plan has been approved by the stockholders of the Company within twelve
(12) months before or after the date the Plan is adopted by the Board, which
date may be prior to the effective date set by the Board.
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