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EXHIBIT 99.1
MCK COMMUNICATIONS, INC.
AMENDED AND RESTATED
2000 EMPLOYEE STOCK PURCHASE PLAN
1. ESTABLISHMENT OF PLAN. MCK Communications, Inc. (the "COMPANY")
proposes to grant options to purchase shares of the Company's common stock,
$.001 par value per share (the "COMMON STOCK"), to eligible employees of the
Company and its Participating Affiliates (as defined below) pursuant to this
Employee Stock Purchase Plan (this "PLAN"). For purposes of this Plan, "PARENT
CORPORATION" and "SUBSIDIARY CORPORATION" shall have the same meanings as
"parent corporation" and "subsidiary corporation" in Sections 424(e) and 424(f),
respectively, of the Internal Revenue Code of 1986, as amended (the "CODE").
"PARTICIPATING AFFILIATES" are Parent Corporations or Subsidiaries that the
Board of Directors of the Company (the "BOARD") designates from time to time as
corporations that shall participate in this Plan. Affiliates may be designated
as Participating Affiliates either before or after this Plan is approved by the
Company's stockholders as provided in Section 22. The Company intends this Plan
to qualify as an "employee stock purchase plan" under Section 423 of the Code
(including, any amendments to or replacements of such Section), and this Plan
shall be so construed. Any term not expressly defined in this Plan but defined
for purposes of Section 423 of the Code shall have the same definition herein. A
total of 250,000 shares of the Company's Common Stock are reserved for issuance
under this Plan. In addition, on each June 1, the aggregate number of shares
of the Company's Common Stock reserved for issuance under this Plan shall be
increased automatically by a number of shares equal to 0.5% of the total number
of outstanding shares of the Company's Common Stock on the immediately preceding
April 30; PROVIDED, that the Board or the Committee may in its sole discretion
reduce the amount of the increase in any particular year. Notwithstanding
anything to the contrary in this Section 1, the aggregate number of shares that
may be issued over the term of this Plan shall not exceed 500,000 shares. The
share limits set forth in this Section 1 shall be subject to adjustments
effected in accordance with Section 14 of this Plan.
2. PURPOSE. The purpose of this Plan is to provide eligible employees of
the Company and Participating Affiliates with a convenient means of acquiring an
equity interest in the Company through payroll deductions, to enhance such
employees' sense of participation in the affairs of the Company and
Participating Affiliates, and to provide an incentive for continued employment.
3. ADMINISTRATION.
(a) This Plan shall be administered by the Compensation Committee of
the Board (the "COMMITTEE"). Subject to the provisions of this Plan and the
limitations of Section 423 of the Code or any successor provision in the Code,
all questions of interpretation or application of this Plan shall be determined
by the Committee in its sole discretion and its decisions shall be final and
binding upon all participants. Members of the Committee shall receive no
compensation for their services in connection with the administration of this
Plan, other than standard fees as established from time to time by the Board for
services rendered by Board
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members serving on Board committees. All expenses incurred in connection with
the administration of this Plan shall be paid by the Company.
(b) The Committee may, from time to time, consistent with the Plan
and the requirements of Section 423 of the Code, establish, change or terminate
such rules, guidelines, policies, procedures, limitations, or adjustments as
deemed advisable by the Company, in its sole discretion, for the proper
administration of the Plan, including, without limitation: (a) a minimum payroll
deduction amount required for participation in an Offering Period, (b) a
limitation on the frequency or number of changes permitted in the rate of
payroll deduction during an Offering Period, (c) an exchange ratio applicable to
amounts withheld in currency other than United States dollars, (d) a payroll
deduction greater or less than the amount designated by a participant in order
to adjust for the Company's delay or mistake in processing an Enrollment Form or
in otherwise effecting a participant's election under the Plan or as advisable
to comply with the requirements of Section 423 of the Code, (e) determination of
the date and manner by which the Fair Market Value of the Common Stock is
determined for purposes of administration of the Plan, (f) delegate
responsibility for Plan operation, management and administration, subject to the
Committee's oversight and control, on such terms as the Committee may establish,
and (g) delegate to other persons the responsibility for performing appropriate
functions as necessary, desirable or appropriate to further the purposes of this
Plan.
4. ELIGIBILITY. Any individual employed by the Company or the
Participating Affiliates is eligible to participate in an Offering Period (as
hereinafter defined) under this Plan except the following:
(a) employees who are not employed by the Company or a Participating
Subsidiary Corporation before the beginning of such Offering Period or prior to
such other time period as specified by the Committee;
(b) employees who are customarily employed for twenty (20) hours or
less per week;
(c) employees who are customarily employed for five (5) months or
less in a calendar year;
(d) employees who, together with any other person whose stock would
be attributed to such employee pursuant to Section 424(d) of the Code, own stock
or hold options to purchase stock possessing five percent (5%) or more of the
total combined voting power or value of all classes of stock of the Company or
any of its Participating Affiliates or who, as a result of being granted an
option under this Plan with respect to such Offering Period, would own stock or
hold options to purchase stock possessing five percent (5%) or more of the total
combined power or value of all classes of stock of the Company or any of its
Participating Affiliates; and
(e) individuals who provide services to the Company or any of its
Participating Affiliates as independent contractors who are reclassified as
common law employees for any reason EXCEPT FOR federal income and employment tax
purposes.
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5. OFFERING DATES. The offering periods of this Plan (each, an "OFFERING
PERIOD") shall be of six (6) months duration commencing on June 1 and December 1
of each year and ending on November 30 and May 31, respectively, of each year,
during which payroll deductions of the participants are accumulated under this
Plan. The first Offering Period shall begin on December 1, 2000. The first
business day of each Offering Period is referred to as the "OFFERING DATE". The
last business day of each Offering Period is referred to as the "PURCHASE DATE".
The Committee shall have the power to change the Offering Dates, the Purchase
Dates and the duration of Offering Periods without stockholder approval;
PROVIDED, HOWEVER, that no Offering Period may have a duration exceeding
twenty-seven (27) months. If the first of last day of an Offering Period is not
a day on which the national securities exchanges or Nasdaq Stock Market are open
for trading, the Company shall specify the trading day that will be deemed the
first or last day, as the case may be, of the Offering Period.
6. PARTICIPATION IN THIS PLAN. Eligible employees may become participants
in an Offering Period under this Plan on the first Offering Date after
satisfying the eligibility requirements by delivering an enrollment form in
substantially the form attached hereto as EXHIBIT A (the "ENROLLMENT FORM") to
the Company prior to such Offering Date, or such other time period as specified
by the Committee. Notwithstanding the foregoing, the Committee may set a later
time for filing the Enrollment Form authorizing payroll deductions for all
eligible employees with respect to a given Offering Period. An eligible employee
who does not deliver an Enrollment Form to the Company by such date after
becoming eligible to participate in such Offering Period shall not participate
in that Offering Period or any subsequent Offering Period until filing an
Enrollment Form with the Company prior to such Offering Date, or such other time
period as specified by the Committee. Once an employee becomes a participant in
an Offering Period, such employee will automatically participate in the Offering
Period commencing immediately following the last day of the prior Offering
Period unless the employee withdraws or is deemed to withdraw from this Plan or
terminates further participation in the Offering Period as set forth in Section
11 below. A participant who has not otherwise withdrawn from this Plan under
Section 11 is not required to file any additional Enrollment Form in order to
continue participation in this Plan. However a participant may deliver a new
Enrollment Form for a subsequent Offering Period in accordance with the
procedures set forth in this Section 6 if the participant wishes to change any
of the elections contained in the participant's then effective Enrollment Form.
7. GRANT OF OPTION ON ENROLLMENT. Enrollment by an eligible employee in
an Offering Period under this Plan will constitute the grant (as of the Offering
Date for such Offering Period) by the Company to such employee of an option to
purchase on the Purchase Date up to that number of shares of Common Stock of the
Company determined by dividing (a) the amount accumulated in such employee's
payroll deduction account during such Offering Period by (b) the Per Share
Purchase Price as determined pursuant to Section 8 below (but in no event less
than the par value of a share of Company's Common Stock), PROVIDED, HOWEVER,
that the number of shares of the Company's Common Stock subject to any option
granted pursuant to this Plan shall not exceed the maximum number of shares
which may be purchased pursuant to Section 10 below with respect to the
applicable Purchase Date. The Fair Market Value of a share of the Company's
Common Stock shall be determined as provided in Section 8 below.
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8. PURCHASE PRICE. The purchase price per share ("PER SHARE PURCHASE
PRICE") at which a share of Common Stock will be sold in any Offering Period
shall be eighty-five percent (85%) of the lesser of:
(a) The Fair Market Value on the Offering Date; or
(b) The Fair Market Value on the Purchase Date.
For purposes of this Plan, the term "FAIR MARKET VALUE" of the Common
Stock on any given date means (i) if the Common Stock is admitted to quotation
on the National Association of Securities Dealers Automated Quotation System
("NASDAQ"), the Fair Market Value on any given date shall not be less than the
average of the highest bid and lowest asked prices of the Common Stock reported
for such date or, if no bid and asked prices were reported for such date, for
the last day preceding such date for which such prices were reported; or (ii) if
the Common Stock is admitted to trading on a national securities exchange or the
NASDAQ National Market System, then clause (i) shall not apply and the Fair
Market Value on any date shall not be less than the closing price reported for
the Common Stock on such exchange or system for such date or, if no sales were
reported for such date, for the last date preceding such date for which a sale
was reported; or (iii) if the Common Stock is not publicly traded on a
securities exchange or traded in the over-the-counter market or, if traded or
quoted, there are no transactions or quotations within the last ten trading days
or trading has been halted for extraordinary reasons, the Fair Market Value on
any given date shall be determined in good faith by the Committee with reference
to the rules and principles of valuation set forth in Section 20.2031-2 of the
Treasury Regulations.
9. PAYMENT OF PURCHASE PRICE; CHANGES IN PAYROLL DEDUCTIONS; ISSUANCE OF
SHARES.
(a) The purchase price of the shares is accumulated by regular
payroll deductions made during each Offering Period. The deductions are made as
a percentage of the participant's compensation in one percent (1%) increments
not less than one percent (1%) (except as a result of an election pursuant to
Section 9(c) to stop payroll deductions during an Offering Period), nor greater
than ten percent (10%) or such lower limit set by the Committee. Compensation
shall mean all W-2 cash compensation, including, base salary, wages,
commissions, overtime, shift premiums and bonuses, plus draws against
commissions, PROVIDED, HOWEVER, that for purposes of determining a participant's
compensation, any election by such participant to reduce his or her regular cash
remuneration under Sections 125 or 401(k) of the Code shall be treated as if the
participant did not make such election. Notwithstanding the foregoing,
Compensation shall not include reimbursements of expenses, allowances, long-term
disability, workers' compensation or any amount deemed received without the
actual transfer of cash or any amounts directly or indirectly paid pursuant to
the Plan or any other stock purchase or stock option plan, or any other
compensation not included above. Payroll deductions shall commence on the first
payday of the Offering Period and shall continue to the end of the Offering
Period unless sooner altered or terminated as provided in this Plan.
(b) A participant may increase or decrease the rate of payroll
deductions for any subsequent Offering Period by filing with the Company a new
Enrollment Form prior to the
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beginning of such Offering Period, or prior to such other time period as
specified by the Committee.
(c) A participant may reduce his or her payroll deduction percentage
to zero during an Offering Period by filing with the Company a revised
Enrollment Form. Such reduction shall be effective beginning with the next
payroll period after the Company's receipt of the request and no further payroll
deductions will be made for the duration of the Offering Period. Payroll
deductions credited to the participant's account prior to the effective date of
the request shall be used to purchase shares of Common Stock in accordance with
Section (e) below. A participant may not resume making payroll deductions during
the Offering Period in which he or she reduced his or her payroll deductions to
zero.
(d) All payroll deductions made for a participant are credited to his
or her account under this Plan and are deposited with the general funds of the
Company. No interest accrues on the payroll deductions. All payroll deductions
received or held by the Company may be used by the Company for any corporate
purpose, and the Company shall not be obligated to segregate such payroll
deductions.
(e) On each Purchase Date, so long as this Plan remains in effect and
provided that the participant has not submitted a revised Enrollment Form
withdrawing from the Plan before such Purchase Date in accordance with Section
11, the Company shall apply the funds then in the participant's account to the
purchase of whole shares of Common Stock reserved under the option granted to
such participant with respect to the Offering Period to the extent that such
option is exercisable on the Purchase Date. The Per Share Purchase Price shall
be as specified in Section 8. Any cash remaining in such participant's account
on a Purchase Date which is less than the amount necessary to purchase a full
share of Common Stock of the Company shall be carried forward, without interest,
into the next Offering Period. If this Plan has been oversubscribed, all funds
not used to purchase shares on the Purchase Date shall be returned to the
participant, without interest. No Common Stock shall be purchased on a Purchase
Date on behalf of any employee whose participation in this Plan has terminated
prior to such Purchase Date.
(f) As promptly as practicable after the Purchase Date, the Company
shall issue shares for the participant's benefit representing the shares
purchased upon exercise of his or her option, subject to compliance with Section
24 below.
(g) During a participant's lifetime, his or her option to purchase
shares hereunder is exercisable only by him or her. The participant will have no
interest or voting right in shares covered by his or her option until such
option has been exercised.
10. LIMITATIONS ON SHARES TO BE PURCHASED.
(a) No participant shall be entitled to purchase Common Stock under
this Plan at a rate which, when aggregated with his or her rights to purchase
stock under all other employee stock purchase plans of the Company or any
Subsidiary Corporation, exceeds $25,000 in Fair Market Value, determined as of
the Offering Date (or such other limit as may be imposed
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by the Code) for each calendar year in which the employee participates in this
Plan. The Company shall automatically suspend the payroll deductions of any
participant as necessary to enforce such limit; PROVIDED that when the Company
automatically resumes such payroll deductions, the Company must apply the rate
in effect immediately prior to such suspension.
(b) No participant shall be entitled to purchase more than the
Maximum Share Amount (as defined below) on any single Purchase Date. Prior to
the commencement of any Offering Period or before such time period as specified
by the Committee, the Committee may, in its sole discretion, set a maximum
number of shares which may be purchased by any employee at any single Purchase
Date (the "MAXIMUM SHARE AMOUNT"). Until otherwise determined by the Committee,
there shall be no Maximum Share Amount. If a new Maximum Share Amount is set,
then all participants must be notified of such Maximum Share Amount before
commencing the next Offering Period. The Maximum Share Amount shall continue to
apply with respect to all succeeding Purchase Dates and Offering Periods unless
revised by the Committee as set forth above.
(c) If the number of shares to be purchased on a Purchase Date by all
employees participating in this Plan exceeds the number of shares then available
for issuance under this Plan, then the Company will make a pro rata allocation
of the remaining shares in as uniform a manner as shall be reasonably
practicable and as the Committee shall determine to be equitable.
(d) Any payroll deductions accumulated in a participant's account
which are not used to purchase stock due to the limitations in this Section 10
shall be returned to the participant as soon as practicable after the end of the
applicable Offering Period, without interest, provided that, any amount
remaining in such participant's account which is less than the amount necessary
to purchase a full share of Common Stock of the Company shall be carried
forward, without interest, into the next Offering Period.
11. WITHDRAWAL.
(a) Each participant may withdraw from an Offering Period under this
Plan by signing and delivering to the Company a revised Enrollment Form
indicating such participant's intention to withdraw. Such withdrawal may be
elected at any time prior to the end of an Offering Period, or such other time
period as specified by the Committee.
(b) Upon withdrawal from this Plan, the accumulated payroll
deductions shall be returned to the withdrawn participant, without interest, and
his or her interest in this Plan shall terminate. If a participant voluntarily
elects to withdraw from this Plan, he or she may not resume his or her
participation in this Plan during the same Offering Period, but he or she may
participate in any Offering Period under this Plan commencing after such
withdrawal by filing a new authorization for payroll deductions in the same
manner as set forth in Section 6 above for initial participation in this Plan.
12. TERMINATION OF EMPLOYMENT. Termination of a participant's employment
for any reason, including retirement, death or the failure of a participant to
remain an eligible employee
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of the Company or of a Participating Subsidiary Corporation, immediately
terminates his or her participation in this Plan. In such event, the payroll
deductions credited to the participant's account will be returned to him or her
or, in the case of his or her death, to his or her legal representative, without
interest. For purposes of this Section 12, an employee will not be deemed to
have terminated employment or failed to remain in the continuous employ of the
Company or of a Participating Subsidiary Corporation in the case of sick leave,
military leave, or any other leave of absence approved by the Board; PROVIDED
that such leave is for a period of not more than ninety (90) days or
reemployment upon the expiration of such leave is guaranteed by contract or
statute.
13. RETURN OF PAYROLL DEDUCTIONS. If a participant's interest in this Plan
is terminated by withdrawal, termination of employment or otherwise, or if this
Plan is terminated by the Board, the Company shall deliver to the participant
all payroll deductions credited to such participant's account. No interest shall
accrue on the payroll deductions of a participant in this Plan.
14. CAPITAL CHANGES. Subject to any required action by the stockholders of
the Company, the number of shares of Common Stock covered by each option under
this Plan which has not yet been exercised and the number of shares of Common
Stock which have been authorized for issuance under this Plan but have not yet
been placed under option (collectively, the "RESERVES"), as well as the price
per share of Common Stock covered by each option under this Plan which has not
yet been exercised, shall be proportionately adjusted for any increase or
decrease in the number of issued and outstanding shares of Common Stock
resulting from a stock split or the payment of a stock dividend (but only on the
Common Stock) or any other increase or decrease in the number of issued and
outstanding shares of Common Stock effected without receipt of any consideration
by the Company; PROVIDED, HOWEVER, that conversion of any convertible securities
of the Company shall not be deemed to have been "effected without receipt of
consideration". Notwithstanding the foregoing, any fractional shares resulting
from an adjustment pursuant to this Section 14 shall be rounded down to the
nearest whole number, and in no event may the Per Share Purchase Price be
decreased to an amount less than the par value, if any, of the Common Stock.
Such adjustment shall be made by the Committee, whose determination shall be
final, binding and conclusive. Except as expressly provided herein, no issue by
the Company of shares of stock of any class, or securities convertible into
shares of stock of any class, shall affect, and no adjustment by reason thereof
shall be made with respect to, the number or price of shares of Common Stock
subject to an option.
In the event of the proposed dissolution or liquidation of the
Company, the Offering Period will terminate immediately prior to the
consummation of such proposed action, unless otherwise provided by the
Committee. The Committee may, in its sole discretion in such instances, declare
that this Plan shall terminate as of a date fixed by the Committee and give each
participant the right to purchase shares under this Plan prior to such
termination. In the event of (i) a merger or consolidation in which the Company
is not the surviving corporation (other than (A) a merger or consolidation with
a wholly-owned subsidiary, a reincorporation of the Company in a different
jurisdiction, or other transaction in which there is no substantial change in
the stockholders of the Company or their relative stock holdings, and (B) the
options under this Plan are assumed, converted or replaced by the successor
corporation, which assumption
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will be binding on all participants), (ii) a merger in which the Company is the
surviving corporation but after which the stockholders of the Company
immediately prior to such merger (other than any stockholder that merges, or
which owns or controls another corporation that merges, with the Company in such
merger) cease to own their shares or other equity interest in the Company, (iii)
the sale of all or substantially all of the assets of the Company or (iv) the
acquisition, sale, or transfer of more than 50% of the outstanding shares of the
Company by tender offer or similar transaction, (each a "SALE EVENT") the
Company shall apply the funds contributed under the Plan to the purchase of
shares of Common Stock pursuant to the provisions of Section 9 immediately prior
to the effective date of such Sale Event. Notwithstanding the foregoing, the
surviving, continuing, successor or purchasing corporation or parent corporation
thereof (the "ACQUIRING CORPORATION"), may elect to assume the Company's rights
and obligations under the Plan. All purchase rights which are neither exercised
nor assumed as of the date of the Sale Event shall terminate and cease to be
outstanding effective as of the effective date of the Sale Event.
The Committee may, if it so determines in its sole discretion, also
make provision for adjusting the Reserves, as well as the price per share of
Common Stock covered by each outstanding option, in the event that the Company
effects one or more reorganizations, recapitalizations, rights offerings or
other increases or reductions of shares of its outstanding Common Stock, or in
the event of the Company being consolidated with or merged into any other
corporation.
15. WITHHOLDING. The participant shall make adequate provision for the
foreign, federal, state and local tax withholding obligations of the Company or
any of its Subsidiaries, if any, which arise in connection with participation in
the Plan. The Company and its Subsidiaries shall, to the extent permitted by
law, have the right to deduct any such taxes from any payment of any kind
otherwise due to the participant.
16. NONASSIGNABILITY. Neither payroll deductions credited to a
participant's account nor any rights with regard to the exercise of an option or
to receive shares under this Plan may be assigned, transferred, pledged or
otherwise disposed of in any way (other than by will, the laws of descent and
distribution or as provided in Section 23 below) by the participant. Any such
attempt at assignment, transfer, pledge or other disposition shall be void and
without effect.
17. REPORTS. Individual accounts will be maintained for each participant
in this Plan. Each participant shall receive as soon as practicable after the
end of each Offering Period a report of his or her account setting forth the
total payroll deductions accumulated, the number of shares purchased, the per
share price thereof and the remaining cash balance, if any, carried forward to
the next Offering Period.
18. NOTICE OF DISQUALIFYING DISPOSITION. Each participant shall notify the
Company in writing if the participant disposes of any of the shares purchased in
any Offering Period pursuant to this Plan if such disposition occurs within two
(2) years from the Offering Date or within one (1) year from the Purchase Date
on which such shares were purchased (the "NOTICE PERIOD"). The Company may, at
any time during the Notice Period, place a legend or legends on any certificate
representing shares acquired pursuant to this Plan requesting the Company's
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transfer agent to notify the Company of any transfer of the shares. The
obligation of the participant to provide such notice shall continue
notwithstanding the placement of any such legend on the certificates.
19. NO RIGHTS AS SHAREHOLDER OR TO CONTINUED EMPLOYMENT. A participant
shall have no rights as a shareholder by virtue of participation in the Plan
until the date of the issuance of a certificate for the shares purchased
pursuant to the exercise of the participant's purchase right (as evidenced by
the appropriate entry on the books of the Company or of a duly authorized
transfer agent of the Company). No adjustment shall be made for dividends,
distributions or other rights for which the record date is prior to the date
such certificate is issued, except as provided in Section 14. Neither this Plan
nor the grant of any option hereunder shall confer any right on any employee to
remain in the employ of the Company or any Participating Subsidiary Corporation,
or restrict the right of the Company or any Participating Subsidiary Corporation
to terminate such employee's employment at any time.
20. EQUAL RIGHTS AND PRIVILEGES. All eligible employees shall have equal
rights and privileges with respect to this Plan so that this Plan qualifies as
an "employee stock purchase plan" within the meaning of Section 423 or any
successor provision of the Code and the related regulations. Any provision of
this Plan which is inconsistent with Section 423 or any successor provision of
the Code shall, without further act or amendment by the Company, the Committee
or the Board, be reformed to comply with the requirements of Section 423. This
Section 20 shall take precedence over all other provisions in this Plan.
21. NOTICES. All notices or other communications by a participant to the
Company under or in connection with this Plan shall be deemed to have been duly
given when received in the form specified by the Company at the location, or by
the person, designated by the Company for the receipt thereof.
22. TERM; STOCKHOLDER APPROVAL. This Plan will become effective on
December 1, 2000, subject to approval by the stockholders of the Company, in any
manner permitted by applicable corporate law, within twelve (12) months before
or after August 15, 2000, the date on which the Board adopted this Plan. No
purchase of shares pursuant to this Plan shall occur prior to such stockholder
approval. This Plan shall continue until the earlier to occur of (a) termination
of this Plan by the Board (which termination may be effected by the Board at any
time), (b) issuance of all of the shares of Common Stock reserved for issuance
under this Plan, or (c) ten (10) years from the adoption of this Plan by the
Board.
23. DESIGNATION OF BENEFICIARY.
(a) A participant may file a written designation of a beneficiary who
is to receive any shares and cash, if any, from the participant's account under
this Plan in the event of such participant's death subsequent to the end of any
Offering Period but prior to delivery to him of such shares and cash. In
addition, a participant may file a written designation of a beneficiary who is
to receive any cash from the participant's account under this Plan in the event
of such participant's death prior to a Purchase Date.
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(b) Such designation of beneficiary may be changed by the participant
at any time by written notice. In the event of the death of a participant and in
the absence of a beneficiary validly designated under this Plan who is living at
the time of such participant's death, the Company shall deliver such shares or
cash to the executor or administrator of the estate of the participant, or if no
such executor or administrator has been appointed (to the knowledge of the
Company), the Company, in its discretion, may deliver such shares or cash to the
spouse or to any one or more dependents or relatives of the participant, or if
no spouse, dependent or relative is known to the Company, then to such other
person as the Company may designate.
24. CONDITIONS UPON ISSUANCE OF SHARES; LIMITATION ON SALE OF SHARES.
Shares shall not be issued with respect to an option unless the exercise of such
option and the issuance and delivery of such shares pursuant thereto shall
comply with all applicable provisions of law, domestic or foreign, including,
without limitation, the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, the rules and regulations promulgated
thereunder, and the requirements of any stock exchange or automated quotation
system upon which the shares may then be listed, and shall be further subject to
the approval of counsel for the Company with respect to such compliance.
25. APPLICABLE LAW. The Plan shall be governed by the substantive laws
(excluding the conflict of laws rules) of the Commonwealth of Massachusetts.
26. AMENDMENT OR TERMINATION OF THIS PLAN. The Board may at any time
amend, terminate or extend the term of this Plan, except that (i) any such
termination cannot affect options previously granted under this Plan unless the
Board determines that the termination of the Plan immediately following any
Purchase Date is in the best interests of the Company and its shareholders, (ii)
any amendment may not adversely affect the previously granted purchase right of
any participant unless permitted by the Plan or as may be necessary to qualify
the Plan as an employee stock purchase plan pursuant to Section 423 of the Code
or to obtain qualification or registration of the Common Stock under applicable
federal, state or foreign securities laws, and (iii) any amendment must be
approved by the stockholders of the Company in accordance with Section 22 above
within twelve (12) months of the adoption of such amendment (or earlier if
required by Section 22) if such amendment would:
(a) increase the number of shares that may be issued under this Plan;
(b) change the designation of the employees (or class of employees)
eligible for participation in this Plan; or
(c) any other action taken by the Board that, by its terms, is
contingent on stockholder approval.
Notwithstanding the foregoing, the Board may make such amendments to
the Plan as the Board determines to be advisable, if the continuation of the
Plan or any Offering Period would result in financial accounting treatment for
the Plan that is different from the financial accounting treatment in effect on
August 15, 2000.
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