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EXHIBIT 4.2
XPEDIOR INCORPORATED
EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE. The XPEDIOR INCORPORATED EMPLOYEE STOCK PURCHASE PLAN (the
"Plan") is intended to provide an incentive for employees of XPEDIOR
INCORPORATED, a Delaware corporation (the "Company") and its participating
subsidiaries (as defined in Paragraph 4) to acquire or increase a proprietary
interest in the Company through the purchase of shares of the Company's common
stock, and to encourage eligible employees to remain in the employ of the
Company and its participating subsidiaries. The Plan is intended to constitute
an "employee stock purchase plan" within the meaning of Section 423 (b) of the
Internal Revenue Code of 1986, as amended (the "Code"). The provisions of the
Plan shall, accordingly, be construed so as to extend and limit participation in
the Plan in a manner consistent with the requirements of that section of the
Code.
2. DEFINITIONS AND CONSTRUCTION.
2.1 DEFINITIONS. Where the following words and phrases are used in the
Plan, they shall have the respective meanings set forth below, unless the
context clearly indicates to the contrary:
(i) "BOARD" means the Board of Directors of the Company.
(ii) "CODE" means the Internal Revenue Code of 1986, as amended.
(iii) "COMMITTEE" means a committee appointed from time to time by the
Board to administer the Plan as provided in Paragraph 3 and
constituted so as to permit the Plan to comply with Rule 16b-3, as
currently in effect or as hereafter modified, promulgated under the
Securities Exchange Act of 1934, as amended.
(iv) "COMPANY" means Xpedior Incorporated, a Delaware corporation.
(v) "DATE OF EXERCISE" means the last day of each Option Period.
(vi) "DATE OF GRANT" means August 1, 2000, and, thereafter, the first day
of each successive October, January, April and July.
(vii) "ELIGIBLE COMPENSATION" means regular straight-time earnings or base
salary, plus overtime pay, incentive compensation, bonuses, and
commissions.
(viii) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
(ix) "OPTION PERIOD" means the three-month period beginning on each Date
of Grant.
(x) "OPTION PRICE" shall have the meaning assigned to such term in
Paragraph 8.2.
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(xi) "PARTICIPATING COMPANY" means any present or future parent or
subsidiary corporation of the Company that participates in the Plan
pursuant to Paragraph 4.
(xii) "PLAN" means this Xpedior Incorporated Employee Stock Purchase Plan,
as amended from time to time.
(xiii)"RESTRICTION PERIOD" means the period of time, if any, during which
shares of Stock acquired by a participant in the Plan may not be
sold, assigned, pledged, exchanged, hypothecated, or otherwise
transferred, encumbered, or disposed of by such participant as
provided in Paragraph 8.4.
(xiv) "STOCK" means the shares of the Company's Common Stock, par value
$.01 per share.
2.2 NUMBER AND GENDER. Wherever appropriate herein, words used in the
singular shall be considered to include the plural, and words used in the
plural shall be considered to include the singular. The masculine gender,
where appearing in the Plan, shall be deemed to include the feminine
gender.
2.3 HEADINGS. The headings and subheadings in the Plan are included
solely for convenience, and, if there is any conflict between such headings
or subheadings and the text of the Plan, the text shall control.
2.4 SEVERABILITY. If any provision of the Plan shall be held illegal
or invalid for any reason, said illegality or invalidity shall not affect
the remaining provisions hereof; instead, each provision shall be fully
severable, and the Plan shall be construed and enforced as if said illegal
or invalid provision had never been included herein.
2.5 GOVERNING LAW. All provisions of the Plan shall be construed in
accordance with the laws of the state of Delaware, except to the extent
preempted by federal law.
2.6 SECTION 423 OF THE CODE. The Plan is intended to qualify as an
"employee stock purchase plan" under Section 423 of the Code. The
provisions of the Plan shall be construed in a manner consistent with the
requirements of that section of the Code.
3. ADMINISTRATION OF THE PLAN. The Plan shall be administered by the
Committee, the members of which shall be appointed from time to time by the
Board. Each member of the Committee shall serve for a term commencing on a date
specified by the Board and continuing until he dies, resigns, or is removed from
office by the Board. Subject to the provisions of the Plan, the Committee shall
interpret the Plan and all options granted under the Plan, make such rules as it
deems necessary for the proper administration of the Plan, and make all other
determinations necessary or advisable for the administration of the Plan. In
addition, the Committee shall correct any defect or supply any omission or
reconcile any inconsistency in the Plan, or in any option granted under the
Plan, in the manner and to the extent that the Committee deems desirable to
carry the Plan or any option into effect. The Committee shall, in its sole
discretion, make such decisions or determinations and take such actions, and all
such decisions, determinations, and actions taken or made by the Committee
pursuant to this and the other Paragraphs of the Plan shall be conclusive on all
parties. The Committee shall not be liable for any
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decision, determination, or action taken in good faith in connection with the
administration of the Plan. The Committee shall have the authority to delegate
routine day-to-day administration of the Plan to such officers and employees of
the Company as the Committee deems appropriate.
4. PARTICIPATING COMPANIES. The Committee may from time to time designate
any present or future parent or subsidiary corporation of the Company that is
eligible by law to participate in the Plan as a Participating Company. The terms
of the Plan may be modified as applied to a Participating Company only to the
extent permitted under Section 423 of the Code. Transfer of employment among the
Company and Participating Companies (and among any other parent or subsidiary
corporation of the Company) shall not be considered a termination of employment
hereunder. Any Participating Company may, by appropriate action of its Board of
Directors, terminate its participation in the Plan. Moreover, the Committee may,
in its discretion, terminate a Participating Company's Plan participation at any
time.
5. ELIGIBILITY TO PARTICIPATE. Subject to the provisions hereof, all
employees of the Company and the Participating Companies who are employed by the
Company or any Participating Company as of a Date of Grant shall be eligible to
participate in the Plan. The preceding notwithstanding, no option shall be
granted to an employee if such employee, immediately after the option is
granted, 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 its parent or
subsidiary corporations (within the meaning of Sections 423(b)(3) and 424(d) of
the Code).
6. STOCK SUBJECT TO THE PLAN. Subject to the provisions of Paragraph 13
hereof, the aggregate number of shares which may be sold pursuant to options
granted under the Plan shall not exceed 2,000,000 shares of the authorized
Stock, which shares may be unissued shares or reacquired shares, including
shares bought on the market or otherwise for purposes of the Plan. Should any
option granted under the Plan expire or terminate prior to its exercise in full,
the shares theretofore subject to such option may again be subject to an option
granted under the Plan. Any shares that are not subject to outstanding options
upon the termination of the Plan shall cease to be subject to the Plan.
7. GRANT OF OPTIONS.
7.1 IN GENERAL. Following the effective date of the Plan and
continuing while the Plan remains in force, the Company shall offer options
under the Plan to purchase shares of Stock to all eligible employees who
elect to participate in the Plan. Except as otherwise determined by the
Committee, these options shall be granted on each Date of Grant. Except as
provided in Paragraph 14, the term of each option shall be for three
months, which shall begin on the Date of Grant and end on the last day of
such three-month period. Subject to Subparagraph 7.4, the number of shares
of Stock subject to an option for a participant shall be equal to the
quotient of (i) the aggregate payroll deductions withheld on behalf of such
participant during the Option Period in accordance with Subparagraph 7.2,
divided by (ii) the Option Price of the Stock applicable to the Option
Period, including fractions.
7.2 ELECTION TO PARTICIPATE; PAYROLL DEDUCTION AUTHORIZATION. Except
as provided in Subparagraph 7.6, each eligible employee may elect to
participate in the Plan by delivering to the Company, within the time
period prescribed by the Committee, a written payroll deduction
authorization in a form prepared by the Company, whereby such employee
gives notice of his election to participate in the Plan as of the next
following Date of Grant, and whereby such
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employee designates an integral percentage of his Eligible Compensation to
be deducted from his compensation for each pay period and paid into the
Plan for his account. The designated percentage may not be less than 1% nor
exceed 15% of Eligible Compensation. An eligible employee may participate
in the Plan only by means of payroll deduction.
7.3 CHANGES IN PAYROLL AUTHORIZATION. The payroll deduction
authorization referred to in Subparagraph 7.2 may not be changed during the
Option Period. However, a participant may withdraw from the Plan as
provided in Paragraph 9.
7.4 $25,000 LIMITATION. No employee shall be granted any option under
the Plan that permits his rights to purchase Stock under the Plan and under
all other employee stock purchase plans of the Company and its parent and
subsidiary corporations to accrue at a rate which exceeds $25,000 of fair
market value of Stock (determined at the time such option is granted) for
each calendar year in which such option is outstanding at any time (within
the meaning of Section 423(b)(8) of the Code). Any payroll deductions in
excess of the amount specified in the foregoing sentence shall be returned
to the participant as soon as administratively feasible after the next
following Date of Exercise.
7.5 LEAVES OF ABSENCE. During a paid leave of absence approved by the
Company and meeting the requirements of Treasury Regulation ss.
1.421-7(h)(2), a participant's elected payroll deductions shall continue. A
participant may not contribute to the Plan during an unpaid leave of
absence. If a participant takes an unpaid leave of absence that is approved
by the Company and meets the requirements of Treasury Regulation ss.
1.421-7(h)(2), then such participant's payroll deductions for such Option
Period that were made prior to such leave may remain in the Plan and be
used to purchase Stock under the Plan on the Date of Exercise relating to
such Option Period. If a participant takes a leave of absence that is not
described in the first or third sentence of this Subparagraph 7.5, then he
shall be considered to have withdrawn from the Plan pursuant to the
provisions of Paragraph 9 hereof. Furthermore, notwithstanding the
preceding provisions of this Subparagraph 7.5, if a participant takes a
leave of absence that is described in the first or third sentence of this
Subparagraph 7.5 and such leave of absence exceeds 30 days, then he shall
be considered to have withdrawn from the Plan pursuant to the provisions of
Paragraph 9 hereof on the 31st day of such leave of absence.
7.6 CONTINUING ELECTION. Subject to the limitation set forth in
Subparagraph 7.4, a participant (i) who has elected to participate in the
Plan pursuant to Subparagraph 7.2 as of a Date of Grant and (ii) who takes
no action to change or revoke such election as of the next following Date
of Grant and/or as of any subsequent Date of Grant prior to any such
respective Date of Grant shall be deemed to have made the same election,
including the same attendant payroll deduction authorization, for such next
following and/or subsequent Date(s) of Grant as was in effect immediately
prior to such respective Date of Grant. Payroll deductions that are limited
by Subparagraph 7.4 shall recommence at the rate provided in such
participant's payroll deduction authorization at the beginning of the first
Option Period that is scheduled to end in the following calendar year,
unless the participant changes the amount of his payroll deduction
authorization pursuant to Paragraph 7, withdraws from the Plan as provided
in Paragraph 9, or is terminated from participation in the Plan as provided
in Paragraph 10.
8. EXERCISE OF OPTIONS.
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8.1 GENERAL STATEMENT. Subject to the limitation set forth in
Subparagraph 7.4, each participant in the Plan automatically, and without
any act on his part, shall be deemed to have exercised his option on each
Date of Exercise to the extent of his unused payroll deductions under the
Plan and to the extent the issuance of Stock to such participant upon such
exercise is lawful.
8.2 "OPTION PRICE" DEFINED. The term "Option Price" shall mean the per
share price of Stock to be paid by each participant on each exercise of his
option, which price shall be equal to 85% of the lesser of (i) the fair
market value of the Stock on the Date of Exercise or (ii) the fair market
value of the Stock on the Date of Grant. For all purposes under the Plan,
the fair market value of a share of Stock on a particular date shall be
equal to the closing price of the Stock on the NASDAQ National Market on
that date (or, if no shares of Stock have been traded on that date, on the
next regular business date on which shares of the Stock are so traded).
8.3 DELIVERY OF SHARE CERTIFICATES. As soon as practicable after each
Date of Exercise, the Company shall deliver to a custodian selected by the
Committee one or more certificates representing (or shall otherwise cause
to be credited to the account of such custodian) the total number of whole
shares of Stock respecting options exercised on such Date of Exercise in
the aggregate (for both whole and fractional shares) of all of the
participating employees hereunder. Any remaining amount representing a
fractional share shall not be certificated (or otherwise so credited), and
such remaining amount shall be paid in cash to the custodian. Such
custodian shall keep accurate records of the beneficial interests of each
participating employee in such shares by means of participant accounts
under the Plan, and shall provide each eligible employee with quarterly or
such other periodic statements with respect thereto as may be directed by
the Committee. If the Company is required to obtain from any U.S.
commission or agency authority to issue any such shares, the Company shall
seek to obtain such authority. Inability of the Company to obtain from any
commission or agency (whether U.S. or foreign) authority, which counsel for
the Company deems necessary for the lawful issuance of any such shares,
shall relieve the Company from liability to any participant in the Plan
except to return to him the amount of his payroll deductions under the Plan
that would have otherwise been used upon exercise of the relevant option.
8.4 RESTRICTIONS ON TRANSFER. The Committee may from time to time
specify with respect to a particular grant of options a Restriction Period
that shall apply to the shares of Stock acquired pursuant to such options.
In the event the Committee has specified that a Restriction Period will
apply with respect to a particular grant of options, unless another
Restriction Period is specified by the Committee, the Restriction Period
applicable to shares of Stock acquired pursuant to such grant shall be a
period of six months after the Date of Exercise of the options pursuant to
which such shares were acquired. Except as hereinafter provided, during the
Restriction Period applicable to shares of Stock acquired under the Plan,
such shares may not be sold, assigned, pledged, exchanged, hypothecated, or
otherwise transferred, encumbered, or disposed of by the participant who
has purchased such shares; provided, however, that such Restriction shall
not apply to the transfer, exchange, or conversion of such shares of Stock
pursuant to a merger, consolidation, or other plan of reorganization of the
Company, but the stock, securities, or other property (other than cash)
received upon any such transfer, exchange or conversion shall also become
subject to the same transfer restrictions applicable to the original shares
of Stock, and shall be held by the custodian, pursuant to the provisions
hereof. Upon the
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expiration of such Restriction Period, if any, the transfer restrictions
set forth in this Subparagraph 8.4 shall cease to apply and the optionee
may, pursuant to procedures established by the Committee and the custodian,
direct the sale or distribution of some or all of the whole shares of Stock
in his Company stock account that are not then subject to transfer
restrictions and, in the event of a sale, request payment of the net
proceeds from such sale. Further, upon the termination of the participant's
employment with the Company and its parent or subsidiary corporations for
any reason whatsoever, the transfer restrictions set forth in this
Subparagraph 8.4 shall cease to apply and the custodian shall, upon the
request of such participant, deliver to such participant a certificate
issued in his name representing (or otherwise credit to an account of such
participant) the aggregate whole number of shares of Stock in his Company
stock account under the Plan. At the time of distribution of such shares,
any fractional share in such Company stock account shall be converted to
cash based on the fair market value of the Stock on the date of
distribution and such cash shall be paid to the participant. The Committee
may cause the Stock issued in connection with the exercise of options under
the Plan to bear such legends or other appropriate restrictions, and the
Committee may take such other actions, as it deems appropriate in order to
reflect the transfer restrictions set forth in this Subparagraph 8.4 and to
assure compliance with applicable laws.
9. WITHDRAWAL FROM THE PLAN.
9.1 GENERAL STATEMENT. Any participant may withdraw in whole from the
Plan at any time prior to the Date of Exercise relating to a particular
Option Period. Partial withdrawals shall not be permitted. A participant
who wishes to withdraw from the Plan must timely deliver to the Company a
notice of withdrawal in a form prepared by the Company. The Company,
promptly following the time when the notice of withdrawal is delivered,
shall refund to the participant the amount of his payroll deductions under
the Plan which have not yet been otherwise returned to him or used upon
exercise of options, and thereupon, automatically and without any further
act on his part, his payroll deduction authorization and his interest in
unexercised options under the Plan shall terminate.
9.2 ELIGIBILITY FOLLOWING WITHDRAWAL. A participant who withdraws from
the Plan shall be eligible to participate again in the Plan upon expiration
of the Option Period during which he withdrew (provided that he is
otherwise eligible to participate in the Plan at such time in accordance
with Paragraph 5 hereof).
10. TERMINATION OF EMPLOYMENT AND OF PARTICIPATION.
10.1 GENERAL STATEMENT. Except as provided in Subparagraph 10.2, if
the employment of a participant terminates for any reason whatsoever, then
his participation in the Plan automatically, and without any act on his
part, shall terminate as of the date of the termination of his employment.
The Company shall promptly refund to him the amount of his payroll
deductions under the Plan which have not yet been otherwise returned to him
or used upon exercise of options, and thereupon his interest in unexercised
options under the Plan shall terminate.
10.2 TERMINATION BY RETIREMENT, DEATH, OR DISABILITY. If the
employment of a participant terminates after such participant has attained
age 65 or due to such participant's death
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or permanent and total disability (within the meaning of Section 22(e)(3)
of the Code), then such participant, or such participant's personal
representative, as applicable, shall have the right to elect either to:
(i) Withdraw all of such participant's accumulated unused payroll
deductions under the Plan; or
(ii) Exercise such participant's option for the purchase of Stock
on the last day of the Option Period during which termination of
employment occurs for the purchase of the number of full shares of
Stock that the accumulated payroll deductions at the date of such
participant's termination of employment will purchase at the
applicable Option Price (subject to Subparagraph 7.4), with any excess
payroll deduction amounts to be returned to such participant or such
personal representative.
The participant or, if applicable, such personal representative, must make such
election by giving written notice to the Committee at such time and in such
manner as the Committee prescribes. In the event that no such written notice of
election is timely received by the Committee, the participant or personal
representative will automatically be deemed to have elected as set forth in
Clause (ii) above, and promptly after the exercise so described in Clause (ii)
above, all shares of Stock in such participant's account under the Plan shall be
distributed to the participant or such personal representative.
11. RESTRICTION UPON ASSIGNMENT OF OPTION. An option granted under the Plan
shall not be transferable otherwise than by will or the laws of descent and
distribution. Each option shall be exercisable, during his lifetime, only by the
employee to whom such option is granted. The Company shall not recognize, and
shall be under no duty to recognize, any assignment or purported assignment by
an employee of his option or of any rights under his option or under the Plan.
12. NO RIGHTS OF STOCKHOLDER UNTIL EXERCISE OF OPTION. With respect to
shares of Stock subject to an option, an optionee shall not be deemed to be a
stockholder, and he shall not have any of the rights or privileges of a
stockholder, until such option has been exercised. With respect to an
individual's Stock held by the custodian pursuant to Subparagraph 8.4, the
custodian shall, as soon as practicable, pay the individual any cash dividends
attributable thereto and shall, in accordance with procedures adopted by the
custodian, facilitate the individual's voting rights attributable thereto.
13. ADJUSTMENTS. Whenever any change is made in the Stock, by reason of a
stock dividend or by reason of subdivision, stock split, reverse stock split,
recapitalization, reorganization, combination, reclassification of shares, or
other similar change, appropriate action will be taken by the Committee to
adjust accordingly the number of shares subject to the Plan, the maximum number
of shares that may be subject to any option, and the number and Option Price of
shares subject to options outstanding under the Plan.
14. MERGER, CONSOLIDATION, OR LIQUIDATION OF COMPANY. If the Company shall
not be the surviving corporation in any merger or consolidation (or survives
only as a subsidiary of another entity), or if the Company is to be dissolved or
liquidated, then, unless a surviving corporation assumes or substitutes new
options (within the meaning of Section 424(a) of the Code) for all options then
outstanding, (i) the Date of Exercise for all options then outstanding shall be
accelerated to a date fixed by the Committee prior to the effective date of such
merger or consolidation or such dissolution or
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liquidation and (ii) upon such effective date, any unexercised options shall
expire, and the Company promptly shall refund to each participant the amount of
such participant's payroll deductions under the Plan that have not yet been
returned to him or used upon exercise of options.
15. USE OF FUNDS; NO INTEREST PAID. All funds received or held by the
Company under the Plan shall be included in the general funds of the Company,
free of any trust or other restriction, and may be used for any corporate
purpose. No interest shall be paid to any participant.
16. EFFECTIVE DATE AND TERM OF THE PLAN. The Plan shall be effective on
August 1, 2000, provided the Plan is approved by the stockholders of the Company
within twelve months of such date. Notwithstanding any provision in the Plan, no
option granted under the Plan shall be exercisable prior to such stockholder
approval, and, if the stockholders of the Company do not approve the Plan by the
Date of Exercise of the first option granted hereunder, then the Plan will have
no force and effect. Except with respect to options then outstanding, if not
sooner terminated under the provisions of Paragraph 17, the Plan shall terminate
upon, and no further payroll deductions shall be made and no further options
shall be granted after July 31, 2010.
17. AMENDMENT OR TERMINATION OF THE PLAN. The Board in its discretion may
terminate the Plan at any time with respect to any Stock for which options have
not theretofore been granted. The Board and the Committee shall each have the
right to alter or amend the Plan or any part thereof from time to time;
provided, however, that no change in any option theretofore granted may be made
that would impair the rights of the optionee without the consent of such
optionee.
18. SECURITIES LAWS. The Company shall not be obligated to issue any Stock
pursuant to any option granted under the Plan at any time when the offer,
issuance, or sale of shares covered by such option has not been registered under
the Securities Act of 1933, as amended, or does not comply with such other
state, federal, or foreign laws, rules, or regulations, or the requirements of
any stock exchange upon which the Stock may then be listed, as the Company or
the Committee deems applicable and, in the opinion of legal counsel for the
Company, there is no exemption from the requirements of such laws, rules,
regulations, or requirements available for the offer, issuance, and sale of such
shares. Furthermore, all Stock acquired pursuant to the Plan shall be subject to
the Company's policies concerning compliance with securities laws and
regulations, as such policies may be amended from time to time. The terms and
conditions of options granted hereunder to, and the purchase of shares by,
persons subject to Section 16 of the Exchange Act shall comply with any
applicable provisions of Rule 16b-3 promulgated thereunder. As to such persons,
the Plan shall be deemed to contain, and such options shall contain, and the
shares issued upon exercise thereof shall be subject to, such additional
conditions and restrictions as may be required from time to time by Rule 16b-3
to qualify for the maximum exemption from Section 16 of the Exchange Act with
respect to Plan transactions.
19. NO RESTRICTION ON CORPORATE ACTION. Nothing contained in the Plan shall
be construed to prevent the Company or any subsidiary from taking any corporate
action that is deemed by the Company or such subsidiary to be appropriate or in
its best interest, whether or not such action would have an adverse effect on
the Plan or any option granted under the Plan. No employee, beneficiary, or
other person shall have any claim against the Company or any subsidiary as a
result of any such action.
20. MISCELLANEOUS PROVISIONS.
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20.1 PARENT AND SUBSIDIARY CORPORATIONS. For all purposes of the Plan, a
corporation shall be considered to be a parent or subsidiary corporation of the
Company only if such corporation is a parent or subsidiary corporation of the
Company within the meaning of Sections 424(e) and 424(f) of the Code.
20.2 NOT A CONTRACT OF EMPLOYMENT. The adoption and maintenance of the Plan
shall not be deemed to be a contract between the Company or any Participating
Company and any person or to be consideration for the employment of any person.
Participation in the Plan at any given time shall not be deemed to create the
right to participate in the Plan or in any other arrangement permitting an
employee of the Company or any Participating Company to purchase Stock at a
discount in the future. The rights and obligations under any participant's terms
of employment with the Company or any Participating Company shall not be
affected by participation in the Plan. Nothing herein contained shall be deemed
to give any person the right to be retained in the employ of the Company or any
Participating Company or to restrict the right of the Company or any
Participating Company to discharge any person at any time, nor shall the Plan be
deemed to give the Company or any Participating Company the right to require any
person to remain in the employ of the Company or such Participating Company or
to restrict any person's right to terminate his employment at any time. The Plan
shall not afford any participant any additional right to compensation as a
result of the termination of such participant's employment for any reason
whatsoever.
20.3 COMPLIANCE WITH APPLICABLE LAWS. The Company's obligation to offer,
issue, sell, or deliver Stock under the Plan is at all times subject to all
approvals of and compliance with any governmental authorities (whether domestic
or foreign) required in connection with the authorization, offer, issuance,
sale, or delivery of Stock as well as all federal, state, local, and foreign
laws. Without limiting the scope of the preceding sentence, and notwithstanding
any other provision in the Plan, the Company shall not be obligated to grant
options or to offer, issue, sell, or deliver Stock under the Plan to any
employee who is a citizen or resident of a jurisdiction the laws of which, for
reasons of its public policy, prohibit the Company from taking any such action
with respect to such employee.
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