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EXHIBIT 4.5
ELASTIC NETWORKS INC.
EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE.
The purpose of the Elastic Networks Inc. Employee Stock Purchase Plan is to
provide employees of the Company and selected subsidiary corporations within the
meaning of Code Section 424(f) with an opportunity to become owners of the
Company through the purchase of shares of Common Stock of the Company. The
Company intends the Plan to qualify as an employee stock purchase plan under
Code Section 423. Accordingly, the provisions of the Plan shall be construed in
a manner consistent with the requirements of Code Section 423.
2. DEFINITIONS.
(a) "Code" means the Internal Revenue Code of 1986, as amended.
(b) "Company" means Elastic Networks Inc.
(c) "Common Stock" means the common stock, $.01 par value per share, of the
Company.
(d) "Compensation" means the regular compensation, including overtime,
bonuses and commissions that the Company or a Designated Subsidiary pays to an
Employee during an Offering Period.
(e) "Committee" means the committee described in Paragraph 12.
(f) "Designated Subsidiary" means a Subsidiary that has adopted the Plan
pursuant to Paragraph 12.
(g) "Employee" means any person who customarily works as a common law
employee for the Company or a Designated Subsidiary for more than 20 hours per
week and for more than five months during any calendar year.
(h) "Offering Periods" means each successive six month period beginning on
January 1 and July 1, with the first such period commencing on January 1, 2001.
(i) "Participant" means an Employee who has completed an authorization form
under Paragraph 5 and elected to contribute to the Plan through payroll
deductions.
(j) "Plan" means the Elastic Networks Inc. Employee Stock Purchase Plan.
(k) "Subsidiary" means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company if, at the time an
option is granted to a Participant under the Plan, each of the corporations
other than the last corporation in the unbroken chain owns
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stock possessing 50 percent or more of the total combined voting power of all
classes of stock in one of the other corporations in such chain.
3. ELIGIBILITY.
An Employee whom the Company or a Designated Subsidiary has employed
continuously for one year as of the first day of an Offering Period shall be
eligible to participate in the Plan for that Offering Period.
4. OFFERING PERIOD.
The Committee will send to each Employee upon fulfilling the eligibility
requirements of Paragraph 3 a notice advising the Employee of his or her right
to participate in the Plan for the ensuing Offering Period.
5. PARTICIPATION.
An Employee who meets the eligibility requirements of Paragraph 3 may
become a Participant for an Offering Period by completing an authorization
notice and delivering it to the Committee within a reasonable period of time
prior to the first day of such Offering Period. All Participants receiving
options under the Plan shall have the same rights and privileges.
6. METHOD OF PAYMENT.
A Participant may contribute to the Plan through payroll deductions, as
follows:
(a) The Participant shall elect on an authorization notice to have
deductions made from his or her Compensation for each payroll period during the
Offering Period at a rate which shall be at least 1% but not in excess of 15% of
his or her Compensation.
(b) All payroll deductions shall be credited to the Participant's account
under the Plan. No interest or earnings shall accrue on any payroll deductions
credited to such accounts.
(c) Payroll deductions shall commence on the first payday coinciding with
or following the first day of each Offering Period and shall end with the last
payday preceding or coinciding with the end of that Offering Period, unless the
Participant sooner withdraws as authorized under Paragraph 10 below.
(d) A Participant may not alter the rate of payroll deductions during the
Offering Period.
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7. GRANTING OF OPTION.
(a) On the first day of each Offering Period, a Participant shall receive
options to purchase a number of shares of Common Stock with funds withheld from
his or her Compensation, subject to the adjustments provided for in Paragraph 16
below. Such number or shares shall be determined at the end of the Offering
Period according to the following procedure:
Step 1 -- Determine the amount the Company withheld from Compensation since the
beginning of the Offering Period;
Step 2 -- Determine the amount which represents 85% of the lower of fair market
value of a share of Common Stock on the (I) first day of the Offering
Period, or (II) the last day of the Offering Period; and
Step 3 -- Divide the amount determined in Step 1 by the amount determined in
Step 2 and round down the quotient to the nearest whole number.
(b) For purposes of the immediately preceding Subparagraph (a), the fair
market value of a share of Common Stock as of each date described in Step 2
shall be determined as follows: (i) if the Common Stock is traded on a national
securities exchange, the closing sale price on that date; (ii) if the Common
Stock is not traded on any such exchange, the closing sale price as reported by
the National Association of Securities Dealers, Inc. Automated Quotation System
("Nasdaq") for such date; (iii) if no such closing sale price information is
available, the average of the closing bid and asked prices as reported by Nasdaq
for such date; or (iv) if there are no such closing bid and asked prices, the
average of the closing bid and asked prices as reported by any other commercial
service for such date. If any date described in Step 2 is not a trading day, the
fair market value of a share of Common Stock for such date shall be determined
by using the closing sale price or the average of the closing bid and asked
prices, as appropriate, for the immediately preceding trading day.
(c) No Participant shall receive options:
(i) if, immediately after the grant, that Participant would own
shares, or hold outstanding options to purchase shares, or both, possessing
five percent or more of the total combined voting power or value of all
classes of shares of the Company or any Subsidiaries; or
(ii) which permits the Participant to purchase shares under all
employee stock purchase plans of the Company and any Subsidiary with a fair
market value (determined at the time the options are granted) that exceeds
$25,000 in any calendar year.
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8. EXERCISE OF OPTION.
(a) Unless a Participant effects a timely withdrawal pursuant to Paragraph
10 below, his or her option for the purchase of shares of Common Stock during an
Offering Period will be automatically exercised on the day following the last
day of that Offering Period for the purchase of the maximum number of full
shares which the sum of the payroll deductions credited to the Participant's
account during such Offering Period can purchase pursuant to the formula
specified in Paragraph 7(a) hereof.
(b) The disposition of any payroll deductions credited to a Participant's
account during the Offering Period which are not used for the purchase of shares
shall be as follows:
(i) If the Participant has elected to withdraw from the Plan as of the
end of the Offering Period, the Company shall deliver the amount of
the payroll deductions to the Participant.
(ii) The amount of any excess payroll deductions shall be applied to
the purchase of shares in the immediately succeeding Offering Period.
9. DELIVERY OF COMMON STOCK.
As soon as administratively feasible after the end of each Offering Period,
the Company shall deliver to each Participant or, in the alternative, to a
custodian that the Committee designates, the shares of Common Stock the
Participant purchased upon the exercise of the option. In the event of the
delivery of the shares to a custodian, the Participant may elect at any time
thereafter to take possession of the shares or to have the Committee deliver the
shares to any brokerage firm.
10. WITHDRAWAL FROM THE PLAN.
(a) A Participant will be deemed to have elected to participate in each
subsequent Offering Period following his or her initial election to participate
in the Plan, unless the Participant files a written withdrawal notice with the
Committee at least ten days prior to the beginning of the Offering Period as of
which the Participant desires to withdraw from the Plan.
(b) A Participant may withdraw all, but not less than all, payroll
deductions credited to his account for an Offering Period at any time during
such Offering Period by delivering a written notice to the Committee at least
ten days prior to the end of such Offering Period. A Participant who for any
reason, including retirement, termination of employment or death, ceases to be
an Employee prior to the last day of any Offering Period will be deemed to have
withdrawn from the Plan as of the date of such cessation.
(c) Upon the withdrawal of a Participant from the Plan under the terms of
Subparagraph
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(b) above, his or her outstanding options under this Plan shall immediately
terminate.
(d) In the event a Participant withdraws from the Plan for any reason, the
Company will pay to the Participant all payroll deductions credited to his or
her account or, in the event of death, to the persons entitled thereto under the
terms of Paragraph 14, as soon as administratively feasible after the date of
such withdrawal and no further deductions will be made from the Participant's
Compensation.
(e) A Participant who has elected to withdraw from the Plan may resume
participation in the same manner and pursuant to the same rules as any Employee
making an initial election to participate in the Plan; provided, however, that
any Participant who is an officer or director of the Company or any Subsidiary
and who withdraws from the Plan for any reason shall not be permitted to resume
participation any earlier than the first day of an Offering Period which is more
than six months after the effective date of the withdrawal or any earlier date
that will permit transactions under the Plan to continue to be exempt within the
meaning of Rule 16b-3, as promulgated under the Securities Exchange Act of 1934,
as amended.
11. STOCK.
(a) The shares of Common Stock that the Company shall sell to Participants
under the Plan may, at the election of the Company, be either treasury shares or
shares originally issued for such purpose. The maximum number of shares made
available for sale under the Plan shall be 500,000 subject to adjustment upon
changes in capitalization of the Company as provided in Paragraph 16 below. If
the total number of shares for which options are to be exercised in accordance
with Paragraph 8 exceeds the number of shares then available under the Plan, the
Company shall make a pro rata allocation of the shares available in as nearly a
uniform manner as shall be practicable and as it shall determine to be
equitable.
(b) A Participant will have no interest in shares covered by his or her
option until the Participant exercises the option.
(c) Shares that a Participant purchases under the Plan will be registered
in the name of the Participant, or if the Participant so directs by written
notice to the Committee prior to the last day of the Offering Period, in the
names of the Participant and one other person the Participant designates, as
joint tenants with rights of survivorship.
(d) A Participant may not sell or transfer shares he or she acquired
pursuant to the exercise of options granted during an Offering Period prior to
the expiration of one year from the last day of such Offering Period, except in
the event of disability or death.
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12. ADOPTION OF PLAN BY SUBSIDIARIES.
Any Subsidiary, if authorized to do so by the Company, may adopt the Plan
by action of its board of directors. Such action shall state the effective date
of the adoption of the Plan.
13. ADMINISTRATION.
The compensation committee of the Board of Directors of the Company shall
administer the Plan. The Board of Directors of the Company shall determine the
composition of the Committee and may at any time remove members from, or add
members to, or fill vacancies therein. The Committee shall be vested with full
authority to make, administer and interpret such rules and regulations as it
deems necessary to administer the Plan, and any determination or action of the
Committee in connection with the administration or interpretation of the Plan
shall be final and binding upon each Employee, Participant and all persons
claiming under or through any Employee or Participant.
14. DESIGNATION OF BENEFICIARY.
(a) A Participant may file with the Committee a written designation of a
beneficiary who is to receive any payroll deductions credited to the
Participant's account under the Plan or any shares of Common Stock owed to the
Participant under the Plan in the event of the Participant's death. A
Participant may change a beneficiary at any time by filing a notice in writing
with the Committee.
(b) Upon the death of a Participant and upon receipt by the Committee of
proof of the identity and existence of the Participant's designated beneficiary,
the Committee shall deliver such cash or shares, or both, to the beneficiary. In
the event a Participant dies and is not survived by a beneficiary that the
Participant designated in accordance with the immediately preceding Subparagraph
(a), the Committee shall deliver such cash or shares, or both, to the personal
representative of the estate of the deceased Participant. If to the knowledge of
the Committee no personal representative has been appointed within 90 days
following the date of the Participant's death, the Committee, in its discretion,
may deliver such cash or shares, or both, to the surviving spouse of the
deceased Participant, or to any one or more dependents or relatives of the
deceased Participant, or if no spouse, dependent or relative is known to the
Committee, then to such other person as the Committee may designate.
(c) No designated beneficiary shall acquire any interest in such cash or
shares prior to the death of the Participant.
15. TRANSFERABILITY.
A Participant may not assign, pledge or otherwise dispose of payroll
deductions credited to the Participant's account nor any rights to exercise an
option or to receive shares of Common Stock
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under the Plan other than by will or the laws of descent and distribution or
pursuant to a qualified domestic relations order, as defined in the Employee
Retirement Income Security Act. Any other attempted assignment, pledge or other
disposition shall be without effect, except that the Company may treat such act
as an election to withdraw in accordance with Paragraph 10 above.
16. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION.
In the event that, by reason of a recapitalization, reclassification,
stock split, combination of shares or dividend payable in shares of Common
Stock, the outstanding shares of Common Stock of the Company are hereafter
increased or decreased or changed into or exchanged for a different number or
kind of securities of the Company, the Committee shall make an appropriate
adjustment to the number and kind of shares available for the granting of
options, and as to which outstanding options shall be exercisable, and to the
option price.
Subject to any required action by the shareholders, if the Company shall be
a party to any reorganization involving a merger, consolidation or acquisition
of the stock or the assets of the Company, the Committee in its discretion (a)
may declare the Plan's termination in the same manner as if the Board of
Directors had terminated the Plan pursuant to Paragraph 17 below, or (b) may
declare that any option shall apply to the securities of the resulting
corporation and each option to purchase one share of the Common Stock shall
entitle the Participant to purchase the same number of securities of the
resulting corporation as a holder of a share of common Stock would be entitled
to receive for such share.
Any issue by the Company of any class of preferred stock, or securities
convertible into shares of common or preferred stock of any class, shall not
affect, and no adjustment by reason thereof shall be made with respect to, the
number of shares of Common Stock subject to any option or the option price
except as this Paragraph 16 specifically provides. The grant of an option
pursuant to the Plan shall not affect in any way the right or power of the
Company to make adjustments, reclassifications, reorganizations or changes of
its capital or business structure, or to merge or to consolidate, or to
dissolve, liquidate, sell or transfer all or any part of its business or assets.
17. AMENDMENT OR TERMINATION.
The Board of Directors of the Company may at any time terminate or amend
the Plan. Any amendment of the Plan that (i) materially increases the benefits
to Participants, (ii) materially increases the number of securities that may be
issued under the Plan, or (iii) materially modifies the eligibility requirements
for participation in the Plan shall be subject to approval of the shareholders
of the Company. The Company shall refund to each Participant the amount of
payroll deductions credited to his or her account as of the date of termination
as soon as administratively feasible following the effective date of the
termination.
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18. NOTICES.
All notices or other communications by a Participant to the Committee or
the Company shall be deemed to have been duly given when the Secretary of the
Company receives them or when any other person the Company designates receives
the notice or other communication in the form the Company specifies.
19. NO CONTRACT.
This Plan shall not be deemed to constitute a contract between the Company
or any Subsidiary and any Employee or to be a consideration or an inducement for
the employment of any Employee. Nothing contained in this Plan shall be deemed
to give any Employee the right to be retained in the service of the Company or
any Subsidiary or to interfere with the right of the Company or any Subsidiary
to discharge any Employee at any time regardless of the effect which such
discharge shall have upon him or her or any options granted hereunder.
20. APPROVAL OF SHAREHOLDERS.
The Plan shall be submitted to the shareholders of the Company for their
approval within 12 months after the Board of Directors of the Company adopts the
Plan. The adoption of the Plan is conditioned upon the approval of the
shareholders of the Company, and failure to receive their approval shall render
the Plan and all outstanding options thereunder void and of no effect.
IN WITNESS WHEREOF, the Company has caused this Plan to be executed as of
this _____ day of August, 2000.
ELASTIC NETWORKS INC.
By:___________________________________
Title:________________________________
[CORPORATE SEAL]
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ELASTIC NETWORKS INC.
EMPLOYEE STOCK PURCHASE PLAN
PARTICIPATION AGREEMENT AND AUTHORIZATION NOTICE
Name: ____________________________________________
Address: _________________________________________
Telephone Number: ________________________________
Social Security Number: __________________________
Date of Employment: ______________________________
Elastic Networks Inc. (the "Company") is pleased to inform you that you are now
eligible to participate in the Company's Employee Stock Purchase Plan (the
"Plan"). This means that you may authorize the Company to deduct money from you
paycheck each pay period and to use that money to purchase shares of stock in
the Company.
By signing this Participation Agreement and Authorization Notice, you agree that
you have read and understand the Elastic Networks Inc. Employee Stock Purchase
Plan.
1. PAYROLL DEDUCTION
When do you want your enrollment in the Plan to become effective? [check one]
_____ Beginning with the January 1, 20__, offering period.
_____ Beginning with the July 1, 20__, offering period.
What percentage of your pay do you want the Company to deduct each pay period
for deposit into your Plan account?
_____ Percent [1% to 15% in whole number percentages]
Before any six-month period beginning on any January 1 or July 1, you may change
the percentage that is deducted from your pay. If you choose to change the
percentage deducted, you must contact the Company and complete a Notice to
Change Payroll Deductions prior to the beginning of the six-month period.
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2. BENEFICIARY DESIGNATION
Your beneficiary is the person you want to receive any payroll deductions
credited to your account under the Plan or any shares of stock you are owed
under the Plan in the event of your death. You may change the person you
designate as your beneficiary at any time by giving the Company written notice.
To designate someone to be your beneficiary, please provide the following
information:
Name of Beneficiary: ____________________________________
Beneficiary's Address: __________________________________
__________________________________
Beneficiary's Telephone Number: _________________________
Beneficiary's Relationship to Me: ______________________
3. REGISTRATION OF SHARES
You may have your shares of stock registered in your name only or in the names
of you and your beneficiary jointly. If you elect to register your stock jointly
with your beneficiary, this means that, upon your death, that person
automatically will be the sole owner of the shares of stock.
How do you want to have your shares of stock registered? [check one]
_____ In my name only
_____ Jointly in my name and in the name of my beneficiary designated in
paragraph 2 above
You understand that you will be enrolled in subsequent six-month offering
periods automatically, unless you submit to the Company a Participation
Withdrawal Notice at least ten days prior to the beginning of the next six-month
offering period.
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Signature Date
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ELASTIC NETWORKS INC.
EMPLOYEE STOCK PURCHASE PLAN
PARTICIPATION WITHDRAWAL NOTICE
Name: __________________________________________
Address: _______________________________________
Telephone Number: ______________________________
Social Security Number: ________________________
Date of Employment: ____________________________
I withdraw from participation in the Elastic Networks Inc. Employee Stock
Purchase Plan (the "Plan") effective on the ____ day of _________ [January or
July], 20__. I understand that Elastic Networks Inc. (the "Company") will return
to me, as soon as possible, all payroll deductions credited to my account, and
that no further deductions will be made from my pay under the Plan. I also
understand that any outstanding options I may have to purchase stock under the
Plan will terminate immediately upon my withdrawal from the Plan.
I also understand that I may resume participation in the Plan, beginning
with the next six-month offering period, by completing a new Participation
Agreement and Authorization Notice prior to the next period; except that, if I
am an officer or director of the Company or its subsidiary, generally I may not
resume participation in the Plan for at least six months after the effective
date of my withdrawal unless the federal securities laws permit the resumption
of participation at an earlier date.
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Signature Date
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ELASTIC NETWORKS INC.
EMPLOYEE STOCK PURCHASE PLAN
NOTICE TO CHANGE PAYROLL DEDUCTIONS
Name: __________________________________________
Address: _______________________________________
Telephone Number: ______________________________
Social Security Number: ________________________
Date of Employment: ____________________________
I request that Elastic Networks Inc. (the "Company") change the percentage
that the Company deducts from my pay each pay period, under the Company's
Employee Stock Purchase Plan, from ___% to ___%. I understand that this change
will become effective at the beginning of the next six-month offering period
after the date of this notice.
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Signature Date
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