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EXHIBIT 10.9
EMERALD-DELAWARE, INC.
2000 EMPLOYEE STOCK PURCHASE PLAN
The following constitute the provisions of the 2000 Employee
Stock Purchase Plan of Emerald-Delaware, Inc.
1. Purpose. The purpose of the Plan is to provide employees of
the Company and its Designated Parents or Subsidiaries with an opportunity to
purchase Common Stock of the Company through accumulated payroll deductions. It
is the intention of the Company to have the Plan qualify as an "Employee Stock
Purchase Plan" under Section 423 of the Code. The provisions of the Plan,
accordingly, shall be construed so as to extend and limit participation in a
manner consistent with the requirements of that section of the Code.
2. Definitions. As used herein, the following definitions shall
apply:
(a) "Administrator" means either the Board or a committee of the
Board that is responsible for the administration of the Plan as is designated
from time to time by resolution of the Board.
(b) "Applicable Laws" means the legal requirements relating to
the administration of employee stock purchase plans, if any, under applicable
provisions of federal securities laws, state corporate and securities laws, the
Code, the rules of any applicable stock exchange or national market system, and
the rules of any foreign jurisdiction applicable to participation in the Plan by
residents therein.
(c) "Board" means the Board of Directors of the Company.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Common Stock" means the common stock of the Company.
(f) "Company" means Emerald-Delaware, Inc., a Delaware
corporation.
(g) "Compensation" means an Employee's base salary, overtime,
commissions, and cash bonuses from the Company or one or more Designated Parents
or Subsidiaries, including such amounts of base salary, overtime, commissions,
and cash bonuses as are deferred by the Employee (i) under a qualified cash or
deferred arrangement described in Section 401(k) of the Code, or (ii) to a plan
qualified under Section 125 of the Code. Compensation does not include annual
awards, other incentive payments, reimbursements or other expense allowances,
fringe benefits (cash or noncash), moving expenses, deferred compensation,
contributions (other than contributions described in the first sentence) made on
the Employee's behalf by the Company or one or more Designated Parents or
Subsidiaries under any employee benefit or welfare plan now or hereafter
established, and any other payments not specifically referenced in the first
sentence.
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(h) "Corporate Transaction" means any of the following
transactions:
(1) a merger or consolidation in which the Company is not
the surviving entity, except for a transaction the principal
purpose of which is to change the state in which the Company is
incorporated;
(2) the sale, transfer or other disposition of all or
substantially all of the assets of the Company (including the
capital stock of the Company's subsidiary corporations) in
connection with complete liquidation or dissolution of the
Company;
(3) any reverse merger in which the Company is the
surviving entity but in which securities possessing more than
sixty-six and two-thirds percent (66 2/3%) of the total combined
voting power of the Company's outstanding securities are
transferred to a person or persons different from those who held
such securities immediately prior to such merger; or
(4) acquisition by any person or related group of persons
(other than the Company or by a Company-sponsored employee
benefit plan) of beneficial ownership (within the meaning of Rule
13d-3 of the Exchange Act) of securities possessing more than
sixty-six and two-thirds percent (66 2/3%) of the total combined
voting power of the Company's outstanding securities, but
excluding any such transaction that the Administrator determines
shall not be a Corporate Transaction
(i) "Designated Parents or Subsidiaries" means the Parents or
Subsidiaries which have been designated by the Administrator from time to time
as eligible to participate in the Plan.
(j) "Effective Date" means the effective date of the Registration
Statement relating to the Company's initial public offering of its Common Stock.
However, should any Designated Parent or Subsidiary become a participating
company in the Plan after such date, then such entity shall designate a separate
Effective Date with respect to its employee-participants.
(k) "Employee" means any individual, including an officer or
director, who is an employee of the Company or a Designated Parent or Subsidiary
for purposes of Section 423 of the Code. For purposes of the Plan, the
employment relationship shall be treated as continuing intact while the
individual is on sick leave or other leave of absence approved by the
individual's employer. Where the period of leave exceeds ninety (90) days and
the individual's right to reemployment is not guaranteed either by statute or by
contract, the employment relationship will be deemed to have terminated on the
ninety-first (91st) day of such leave, for purposes of determining eligibility
to participate in the Plan.
(l) "Enrollment Date" means the first day of each Offer Period.
(m) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
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(n) "Exercise Date" means the last day of each Purchase Period.
(o) "Fair Market Value" means, as of any date, the value of
Common Stock determined as follows:
(1) Where there exists a public market for the Common
Stock, the Fair Market Value shall be (A) the closing price for a
share of Common Stock for the last market trading day prior to
the time of the determination (or, if no closing price was
reported on that date, on the last trading date on which a
closing price was reported) on the stock exchange determined by
the Administrator to be the primary market for the Common Stock
or the Nasdaq National Market, whichever is applicable or (B) if
the Common Stock is not traded on any such exchange or national
market system, the average of the closing bid and asked prices of
a share of Common Stock on the Nasdaq Small Cap Market for the
day prior to the time of the determination (or, if no such prices
were reported on that date, on the last date on which such prices
were reported), in each case, as reported in The Wall Street
Journal or such other source as the Administrator deems reliable;
or
(2) In the absence of an established market of the type
described in (1), above, for the Common Stock, and subject to
(3), below, the Fair Market Value thereof shall be determined by
the Administrator in good faith; or
(3) On the initial Effective Date of the Plan, the Fair
Market Value shall be the price at which the Board, or if
applicable, the Pricing Committee of the Board, and the
underwriters agree to offer the Common Stock to the public in the
initial public offering of the Common Stock.
(p) "Offer Period" means an Offer Period established pursuant to
Section 4 hereof.
(q) "Parent" means a "parent corporation," whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(r) "Participant" means an Employee of the Company or Designated
Parent or Subsidiary who is actively participating in the Plan.
(s) "Plan" means this Employee Stock Purchase Plan.
(u) "Purchase Period" means a period specified as such pursuant
to Section 4(b) hereof.
(v) "Purchase Price" shall mean an amount equal to 85% of the
Fair Market Value of a share of Common Stock on the Enrollment Date or on the
Exercise Date, whichever is lower.
(w) "Reserves" means the sum of the number of shares of Common
Stock covered by each option under the Plan which have not yet been exercised
and the number of
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shares of Common Stock which have been authorized for issuance under the Plan
but not yet placed under option.
(x) "Subsidiary" means a "subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Code.
3. Eligibility.
(a) General. Any individual who is an Employee on a given
Enrollment Date shall be eligible to participate in the Plan for the Offer
Period commencing with such Enrollment Date.
(b) Limitations on Grant and Accrual. Any provisions of the Plan
to the contrary notwithstanding, no Employee shall be granted an option under
the Plan (i) if, immediately after the grant, such Employee (taking into account
stock owned by any other person whose stock would be attributed to such Employee
pursuant to Section 424(d) of the Code) would own stock and/or hold outstanding
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 of any
Parent or Subsidiary, or (ii) which permits the Employee's rights to purchase
stock under all employee stock purchase plans of the Company and its Parents or
Subsidiaries to accrue at a rate which exceeds Twenty-Five Thousand Dollars
($25,000) worth of stock (determined at the Fair Market Value of the shares at
the time such option is granted) for each calendar year in which such option is
outstanding at any time. The determination of the accrual of the right to
purchase stock shall be made in accordance with Section 423(b)(8) of the Code
and the regulations thereunder.
(c) Other Limits on Eligibility. Notwithstanding Subsection (a),
above, the following Employees shall not be eligible to participate in the Plan
for any relevant Offer Period: (i) Employees whose customary employment is 20
hours or less per week; (ii) Employees whose customary employment is for not
more than 5 months in any calendar year; (iii) Employees who have been employed
for fewer than 10 business days; and (iv) Employees who are subject to rules or
laws of a foreign jurisdiction that prohibit or make impractical the
participation of such Employees in the Plan.
4. Offer Periods.
(a) The Plan shall be implemented through consecutive Offer
Periods until such time as (i) the maximum number of shares of Common Stock
available for issuance under the Plan shall have been purchased or (ii) the Plan
shall have been sooner terminated in accordance with Section 19 hereof. The
maximum duration of an Offer Period shall be six (6) months. Initially, the Plan
shall be implemented through Offer Periods of six (6) months' duration
commencing each February 15 and August 15 following the Effective Date (except
that the initial Offer Period shall commence on the Effective Date and shall end
on February 14, 2001).
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(b) A Participant shall be granted a separate option for each
Offer Period in which he or she participates. The option shall be granted on the
Enrollment Date and shall be automatically exercised on the last day of the
Offer Period. However, with respect to any Offer Period, the Administrator may
specify shorter Purchase Periods within an Offer Period, such that the option
granted on the Enrollment Date shall be automatically exercised in successive
installments on the last day of each Purchase Period ending within the Offer
Period.
(c) Except as specifically provided herein, the acquisition of
Common Stock through participation in the Plan for any Offer Period shall
neither limit nor require the acquisition of Common Stock by a Participant in
any subsequent Offer Period.
5. Participation.
(a) An eligible Employee may become a Participant in the Plan by
completing a subscription agreement authorizing payroll deductions in the form
of Exhibit A to this Plan and filing it with the designated payroll office of
the Company at least ten (10) business days prior to the Enrollment Date for the
Offer Period in which such participation will commence, unless a later time for
filing the subscription agreement is set by the Administrator for all eligible
Employees with respect to a given Offer Period.
(b) Payroll deductions for a Participant shall commence with the
first partial or full payroll period beginning on the Enrollment Date and shall
end on the last complete payroll period during the Offer Period, unless sooner
terminated by the Participant as provided in Section 10.
6. Payroll Deductions.
(a) At the time a Participant files a subscription agreement, the
Participant shall elect to have payroll deductions made during the Offer Period
in amounts between one percent (1%) and not exceeding fifteen percent (15%) of
the Compensation which the Participant receives during the Offer Period.
(b) All payroll deductions made for a Participant shall be
credited to the Participant's account under the Plan and will be withheld in
whole percentages only. A Participant may not make any additional payments into
such account.
(c) A Participant may discontinue participation in the Plan as
provided in Section 10, or may increase or decrease the rate of payroll
deductions during the Offer Period by completing and filing with the Company a
change of status notice in the form of Exhibit B to this Plan authorizing an
increase or decrease in the payroll deduction rate. Any increase or decrease in
the rate of a Participant's payroll deductions shall be effective with the first
full payroll period commencing ten (10) business days after the Company's
receipt of the change of status notice unless the Company elects to process a
given change in participation more quickly. A Participant's subscription
agreement (as modified by any change of status notice) shall remain in effect
for successive Offer Periods unless terminated as provided in Section 10. The
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Administrator shall be authorized to limit the number of payroll deduction rate
changes during any Offer Period.
(d) Notwithstanding the foregoing, to the extent necessary to
comply with Section 423(b)(8) of the Code and Section 3(b) herein, a
Participant's payroll deductions shall be decreased to 0%. Payroll deductions
shall recommence at the rate provided in such Participant's subscription
agreement, as amended, at the time when permitted under Section 423(b)(8) of the
Code and Section 3(b) herein, unless such participation is sooner terminated by
the Participant as provided in Section 10.
7. Grant of Option. On the Enrollment Date, each Participant
shall be granted an option to purchase (at the applicable Purchase Price) seven
hundred fifty (750) shares of the Common Stock, subject to adjustment as
provided in Section 18 hereof (except that, on the Enrollment Date of the
initial Offer Period, each Participant shall be granted an option to purchase
eighteen hundred (1800) shares of the Common Stock); provided that such option
shall be subject to the limitations set forth in Sections 3(b), 6 and 12 hereof.
Exercise of the option shall occur as provided in Section 8, unless the
Participant has withdrawn pursuant to Section 10, and the option, to the extent
not exercised, shall expire on the last day of the Offer Period.
8. Exercise of Option. Unless a Participant withdraws from the
Plan as provided in Section 10, below, the Participant's option for the purchase
of shares will be exercised automatically on each Exercise Date, by applying the
accumulated payroll deductions in the Participant's account to purchase the
number of full shares subject to the option by dividing such Participant's
payroll deductions accumulated prior to such Exercise Date and retained in the
Participant's account as of the Exercise Date by the applicable Purchase Price.
No fractional shares will be purchased; any payroll deductions accumulated in a
Participant's account which are not sufficient to purchase a full share shall be
carried over to the next Offer Period or returned to the Participant, if the
Participant withdraws from the Plan. Notwithstanding the foregoing, any amount
remaining in a Participant's account following the purchase of shares on the
Exercise Date due to the application of Section 423(b)(8) of the Code or Section
7, above, shall be returned to the Participant and shall not be carried over to
the next Offer Period. During a Participant's lifetime, a Participant's option
to purchase shares hereunder is exercisable only by the Participant.
9. Delivery. Upon receipt of a request from a Participant after
each Exercise Date on which a purchase of shares occurs, the Company shall
arrange the delivery to such Participant, as promptly as practicable, of a
certificate representing the shares purchased upon exercise of the Participant's
option.
10. Withdrawal; Termination of Employment.
(a) A Participant may either (i) withdraw all but not less than
all the payroll deductions credited to the Participant's account and not yet
used to exercise the Participant's option under the Plan or (ii) terminate
future payroll deductions, but allow accumulated payroll deductions to be used
to exercise the Participant's option under the Plan at any time by giving
written notice to the Company in the form of Exhibit B to this Plan. If the
Participant elects
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withdrawal alternative (i) described above, all of the Participant's payroll
deductions credited to the Participant's account will be paid to such
Participant as promptly as practicable after receipt of notice of withdrawal,
such Participant's option for the Offer Period will be automatically terminated,
and no further payroll deductions for the purchase of shares will be made during
the Offer Period. If the Participant elects withdrawal alternative (ii)
described above, no further payroll deductions for the purchase of shares will
be made during the Offer Period, all of the Participant's payroll deductions
credited to the Participant's account will be applied to the exercise of the
Participant's option on the next Exercise Date, and after such Exercise Date,
such Participant's option for the Offer Period will be automatically terminated.
If a Participant withdraws from an Offer Period, payroll deductions will not
resume at the beginning of the succeeding Offer Period unless the Participant
delivers to the Company a new subscription agreement.
(b) Upon termination of a Participant's employment relationship
(as described in Section 2(k)) at a time more than three (3) months from the
next scheduled Exercise Date, the payroll deductions credited to such
Participant's account during the Offer Period but not yet used to exercise the
option will be returned to such Participant or, in the case of his/her death, to
the person or persons entitled thereto under Section 14, and such Participant's
option will be automatically terminated. Upon termination of a Participant's
employment relationship (as described in Section 2(k)) within three (3) months
of the next scheduled Exercise Date, the payroll deductions credited to such
Participant's account during the Offer Period but not yet used to exercise the
option will be applied to the purchase of Common Stock on the next Exercise
Date, unless the Participant (or in the case of the Participant's death, the
person or persons entitled to the Participant's account balance under Section
14) withdraws from the Plan by submitting a change of status notice in
accordance with subsection (a) of this Section 10. In such a case, no further
payroll deductions will be credited to the Participant's account following the
Participant's termination of employment and the Participant's option under the
Plan will be automatically terminated after the purchase of Common Stock on the
next scheduled Exercise Date.
11. Interest. No interest shall accrue on the payroll deductions
credited to a Participant's account under the Plan.
12. Stock.
(a) Subject to adjustment upon changes in capitalization of the
Company as provided in Section 18, the maximum number of shares of Common Stock
which shall be made available for sale under the Plan shall be 1,000,000 shares,
plus an annual increase to be added on January 1 of each year beginning in 2001
equal to the lesser of (i) 2,500,000 shares, (ii) five percent (5%) of the
outstanding shares of Common Stock on such date, or (iii) a lesser number of
shares determined by the Administrator. If the Administrator determines that on
a given Exercise Date the number of shares with respect to which options are to
be exercised may exceed (x) the number of shares then available for sale under
the Plan or (y) the number of shares available for sale under the Plan on the
Enrollment Date(s) of one or more of the Offer Periods in which such Exercise
Date is to occur, the Administrator may make a pro rata allocation of the shares
remaining available for purchase on such Enrollment Dates or Exercise Date, as
applicable, in as
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uniform a manner as shall be practicable and as it shall determine to be
equitable, and shall either continue all Offer Periods then in effect or
terminate any one or more Offer Periods then in effect pursuant to Section 19,
below.
(b) A Participant will have no interest or voting right in shares
covered by the Participant's option until such shares are actually purchased on
the Participant's behalf in accordance with the applicable provisions of the
Plan. No adjustment shall be made for dividends, distributions or other rights
for which the record date is prior to the date of such purchase.
(c) Shares to be delivered to a Participant under the Plan will
be registered in the name of the Participant or in the name of the Participant
and his or her spouse.
13. Administration. The Plan shall be administered by the
Administrator which shall have full and exclusive discretionary authority to
construe, interpret and apply the terms of the Plan, to determine eligibility
and to adjudicate all disputed claims filed under the Plan. Every finding,
decision and determination made by the Administrator shall, to the full extent
permitted by Applicable Law, be final and binding upon all persons.
14. Designation of Beneficiary.
(a) Each Participant will file a written designation of a
beneficiary who is to receive any shares and cash, if any, from the
Participant's account under the Plan in the event of such Participant's death.
If a Participant is married and the designated beneficiary is not the spouse,
spousal consent shall be required for such designation to be effective.
(b) Such designation of beneficiary may be changed by the
Participant (and the Participant's spouse, if any) 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 (or in existence) at
the time of such Participant's death, the Company shall deliver such shares
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 Administrator), the Administrator shall deliver such shares and/or cash to
the spouse (or domestic partner, as determined by the Administrator) of the
Participant, or if no spouse (or domestic partner) is known to the
Administrator, then to the issue of the Participant, such distribution to be
made per stirpes (by right of representation), or if no issue are known to the
Administrator, then to the heirs at law of the Participant determined in
accordance with Section 27.
15. Transferability. 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 the 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 14 hereof) by the Participant. Any such
attempt at assignment, transfer, pledge or other disposition shall be without
effect, except that the Administrator may treat such act as an election to
withdraw funds from an Offer Period in accordance with Section 10.
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16. Use of Funds. All payroll deductions received or held by the
Company under the Plan may be used by the Company for any corporate purpose, and
the Company shall not be obligated to segregate such payroll deductions.
17. Reports. Individual accounts will be maintained for each
Participant in the Plan. Statements of account will be given to Participants at
least annually, which statements will set forth the amounts of payroll
deductions, the Purchase Price, the number of shares purchased and the remaining
cash balance, if any.
18. Adjustments Upon Changes in Capitalization; Corporate
Transactions.
(a) Adjustments Upon Changes in Capitalization. Subject to any
required action by the stockholders of the Company, the Reserves, the Purchase
Price, the maximum number of shares that may be purchased in any Offer Period or
Purchase Period, as well as any other terms that the Administrator determines
require adjustment shall be proportionately adjusted for (i) any increase or
decrease in the number of issued shares of Common Stock resulting from a stock
split, reverse stock split, stock dividend, combination or reclassification of
the Common Stock, (ii) any other increase or decrease in the number of issued
shares of Common Stock effected without receipt of consideration by the Company,
or (iii) as the Administrator may determine in its discretion, any other
transaction with respect to Common Stock to which Section 424(a) of the Code
applies; provided, however that conversion of any convertible securities of the
Company shall not be deemed to have been "effected without receipt of
consideration." Such adjustment shall be made by the Administrator and its
determination shall be final, binding and conclusive. Except as the
Administrator determines, no issuance 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 hereof shall be made with respect to, the
Reserves and the Purchase Price.
(b) Corporate Transactions. In the event of a proposed Corporate
Transaction, each option under the Plan shall be assumed by such successor
corporation or a parent or subsidiary of such successor corporation, unless the
Administrator determines, in the exercise of its sole discretion and in lieu of
such assumption, to shorten the Offer Period then in progress by setting a new
Exercise Date (the "New Exercise Date"). If the Administrator shortens the Offer
Period then in progress in lieu of assumption in the event of a Corporate
Transaction, the Administrator shall notify each Participant in writing, at
least ten (10) days prior to the New Exercise Date, that the Exercise Date for
the Participant's option has been changed to the New Exercise Date and that the
Participant's option will be exercised automatically on the New Exercise Date,
unless prior to such date the Participant has withdrawn from the Offer Period as
provided in Section 10. For purposes of this Subsection, an option granted under
the Plan shall be deemed to be assumed if, in connection with the Corporate
Transaction, the option is replaced with a comparable option with respect to
shares of capital stock of the successor corporation or Parent thereof. The
determination of option comparability shall be made by the Administrator prior
to the Corporate Transaction and its determination shall be final, binding and
conclusive on all persons.
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19. Amendment or Termination.
(a) The Administrator may at any time and for any reason
terminate or amend the Plan. Except as provided in Section 18, no such
termination can affect options previously granted, provided that the Plan or any
one or more Offer Periods may be terminated by the Administrator on any Exercise
Date or by the Administrator establishing a new Exercise Date with respect to
any Offer Period and/or any Purchase Period then in progress if the
Administrator determines that the termination of the Plan or such one or more
Offer Periods is in the best interests of the Company and its stockholders.
Except as provided in Section 18 and this Section 19, no amendment may make any
change in any option theretofore granted which adversely affects the rights of
any Participant without the consent of affected Participants. To the extent
necessary to comply with Section 423 of the Code (or any successor rule or
provision or any other Applicable Law), the Company shall obtain stockholder
approval in such a manner and to such a degree as required.
(b) Without stockholder consent and without regard to whether any
Participant rights may be considered to have been "adversely affected," the
Administrator shall be entitled to limit the frequency and/or number of changes
in the amount withheld during Offer Periods, change the length of Purchase
Periods within any Offer Period, determine the length of any future Offer
Period, determine whether future Offer Periods shall be consecutive or
overlapping, establish the exchange ratio applicable to amounts withheld in a
currency other than U.S. dollars, establish additional terms, conditions, rules
or procedures to accommodate the rules or laws of applicable foreign
jurisdictions, permit payroll withholding in excess of the amount designated by
a Participant in order to adjust for delays or mistakes in the Company's
processing of properly completed withholding elections, establish reasonable
waiting and adjustment periods and/or accounting and crediting procedures to
ensure that amounts applied toward the purchase of Common Stock for each
Participant properly correspond with amounts withheld from the Participant's
Compensation, and establish such other limitations or procedures as the
Administrator determines in its sole discretion advisable and which are
consistent with the Plan.
20. Notices. All notices or other communications by a Participant
to the Company under or in connection with the Plan shall be deemed to have been
duly given when received in the form specified by the Administrator at the
location, or by the person, designated by the Administrator for the receipt
thereof.
21. Conditions Upon Issuance 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 Laws and shall be further subject to the approval of counsel for the
Company with respect to such compliance. As a condition to the exercise of an
option, the Company may require the Participant to represent and warrant at the
time of any such exercise that the shares are being purchased only for
investment and without any present intention to sell or distribute such shares
if, in the opinion of counsel for the Company, such a representation is required
by any of the aforementioned Applicable Laws. In addition, no options shall be
exercised or shares issued hereunder before the Plan shall have been approved by
stockholders of the Company as provided in Section 23.
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22. Term of Plan. The Plan shall become effective upon the
earlier to occur of its adoption by the Board or its approval by the
stockholders of the Company. It shall continue in effect for a term of twenty
(20) years unless sooner terminated under Section 19.
23. Stockholder Approval. Continuance of the Plan shall be
subject to approval by the stockholders of the Company within twelve (12) months
before or after the date the Plan is adopted. Such stockholder approval shall be
obtained in the degree and manner required under Applicable Laws.
24. No Employment Rights. The Plan does not, directly or
indirectly, create any right for the benefit of any employee or class of
employees to purchase any shares under the Plan, or create in any employee or
class of employees any right with respect to continuation of employment by the
Company or a Designated Parent or Subsidiary, and it shall not be deemed to
interfere in any way with such employer's right to terminate, or otherwise
modify, an employee's employment at any time.
25. No Effect on Retirement and Other Benefit Plans. Except as
specifically provided in a retirement or other benefit plan of the Company or a
Designated Parent or Subsidiary, participation in the Plan shall not be deemed
compensation for purposes of computing benefits or contributions under any
retirement plan of the Company or a Designated Parent or Subsidiary, and shall
not affect any benefits under any other benefit plan of any kind or any benefit
plan subsequently instituted under which the availability or amount of benefits
is related to level of compensation. The Plan is not a "Retirement Plan" or
"Welfare Plan" under the Employee Retirement Income Security Act of 1974, as
amended.
26. Effect of Plan. The provisions of the Plan shall, in
accordance with its terms, be binding upon, and inure to the benefit of, all
successors of each Participant, including, without limitation, such
Participant's estate and the executors, administrators or trustees thereof,
heirs and legatees, and any receiver, trustee in bankruptcy or representative of
creditors of such Participant.
27. Governing Law. The Plan is to be construed in accordance with
and governed by the internal laws of the State of Washington without giving
effect to any choice of law rule that would cause the application of the laws of
any jurisdiction other than the internal laws of the State of Washington to the
rights and duties of the parties, except to the extent the internal laws of the
State of Washington are superseded by the laws of the United States. Should any
provision of the Plan be determined by a court of law to be illegal or
unenforceable, the other provisions shall nevertheless remain effective and
shall remain enforceable.
28. Dispute Resolution. The provisions of this Section 28 (and as
restated in the Subscription Agreement) shall be the exclusive means of
resolving disputes arising out of or relating to the Plan. The Company and the
Participant, or their respective successors (the "parties"), shall attempt in
good faith to resolve any disputes arising out of or relating to the Plan by
negotiation between individuals who have authority to settle the controversy.
Negotiations shall be commenced by either party by notice of a written statement
of the party's position and the name and title of the individual who will
represent the party. Within thirty (30) days of the
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written notification, the parties shall meet at a mutually acceptable time and
place, and thereafter as often as they reasonably deem necessary, to resolve the
dispute. If the dispute has not been resolved by negotiation, the parties agree
that any suit, action, or proceeding arising out of or relating to the Plan
shall be brought in the United States District Court for the District of
Washington (or should such court lack jurisdiction to hear such action, suit or
proceeding, in a Washington state court in King County) and that the parties
shall submit to the jurisdiction of such court. The parties irrevocably waive,
to the fullest extent permitted by law, any objection the party may have to the
laying of venue for any such suit, action or proceeding brought in such court.
THE PARTIES ALSO EXPRESSLY WAIVE ANY RIGHT THEY HAVE OR MAY HAVE TO A JURY TRIAL
OF ANY SUCH SUIT, ACTION OR PROCEEDING. If any one or more provisions of this
Section 28 shall for any reason be held invalid or unenforceable, it is the
specific intent of the parties that such provisions shall be modified to the
minimum extent necessary to make it or its application valid and enforceable.
12
<PAGE> 13
EXHIBIT A
Emerald - Delaware, Inc. 2000 Employee Stock Purchase Plan
SUBSCRIPTION AGREEMENT
Effective with the Offer Period beginning on:
[ ] ESPP Effective Date [ ] FEBRUARY 15, 200__ [ ] AUGUST 15, 200__
1. PERSONAL INFORMATION
<TABLE>
<S> <C>
Legal Name (Please Print) __________________________________________ _______________ ___________
(Last) (First) (MI) Location Department
Street Address______________________________________________________ ___________________________
Daytime Telephone
City, State/Country, Zip____________________________________________ ___________________________
E-Mail Address
Social Security No. __ __ __ - __ __ - __ __ __ __ Employee I.D. No. ___________________________
Manager Mgr. Location
</TABLE>
2. ELIGIBILITY Any Employee whose customary employment is more than 20
hours per week and more than 5 months per calendar year, who has been an
Employee for ten (10) business days or more, and who does not hold
(directly or indirectly) five percent (5%) or more of the combined
voting power of the Company, a parent or a subsidiary, whether in stock
or options to acquire stock, is eligible to participate in the
Emerald-Delaware, Inc. 2000 Employee Stock Purchase Plan (the "ESPP");
provided, however, that Employees who are subject to the rules or laws
of a foreign jurisdiction that prohibit or make impractical the
participation of such Employees in the ESPP are not eligible to
participate.
3. DEFINITIONS Each capitalized term in this Subscription Agreement shall
have the meaning set forth in the ESPP.
4. SUBSCRIPTION I hereby elect to participate in the ESPP and subscribe to
purchase shares of the Company's Common Stock in accordance with this
Subscription Agreement and the ESPP. I have received a complete copy of
the ESPP and a prospectus describing the ESPP and understand that my
participation in the ESPP is in all respects subject to the terms of the
ESPP. The effectiveness of this Subscription Agreement is dependent on
my eligibility to participate in the ESPP.
5. PAYROLL DEDUCTION AUTHORIZATION I hereby authorize payroll deductions
from my Compensation during the Offer Period in the percentage specified
below (payroll reductions may not exceed 15% of Compensation nor $21,250
per calendar year):
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Percentage to Deduct (circle one) 1% 2% 3% 4% 5% 6% 7% 8% 9% 10% 11% 12% 13% 14% 15%
</TABLE>
6. ESPP ACCOUNTS AND PURCHASE PRICEI understand that all payroll deductions
will be credited to my account under the ESPP. No additional payments
may be made to my account. No interest will be credited on funds held in
the account at any time including any refund of the account caused by
withdrawal from the ESPP. All payroll deductions shall be accumulated
for the purchase of Company Common Stock at the applicable Purchase
Price determined in accordance with the ESPP.
7. WITHDRAWAL AND CHANGES IN PAYROLL DEDUCTION I understand that I may
discontinue my participation in the ESPP at any time prior to an
Exercise Date as provided in Section 10 of the ESPP, but if I do not
withdraw from the ESPP, any accumulated payroll deductions will be
applied automatically to purchase Company Common Stock. I may increase
or decrease the rate of my payroll deductions in whole percentage
increments to not less than one percent (1%) by completing and timely
filing a Change of Status Notice. Any increase or decrease will be
effective for the full payroll period occurring after ten (10) business
days from the Company's receipt of the Change of Status Notice.
8. PERPETUAL SUBSCRIPTION I understand that this Subscription Agreement
shall remain in effect for successive Offer Periods until I withdraw
from participation in the ESPP, or termination of the ESPP.
9. TAXES I have reviewed the ESPP prospectus discussion of the federal tax
consequences of participation in the ESPP and consulted with tax
consultants as I deemed advisable prior to my participation in the ESPP.
I hereby agree to notify
A-1
<PAGE> 14
the Company in writing within thirty (30) days of any disposition
(transfer or sale) of any shares purchased under the ESPP if such
disposition occurs within two (2) years of the Enrollment Date (the
first day of the Offer Period during which the shares were purchased) or
within one (1) year of the Exercise Date (the date I purchased such
shares), and I will make adequate provision to the Company for foreign,
federal, state or other tax withholding obligations, if any, which arise
upon the disposition of the shares. In addition, the Company may
withhold from my Compensation any amount necessary to meet applicable
tax withholding obligations incident to my participation in the ESPP,
including any withholding necessary to make available to the Company any
tax deductions or benefits contingent on such withholding.
10. DISPUTE RESOLUTION The provisions of this Section 10 and Section 28 of
the ESPP shall be the exclusive means of resolving disputes arising out
of or relating to the Plan. The Company and I, or our respective
successors (the "parties"), shall attempt in good faith to resolve any
disputes arising out of or relating to the Plan by negotiation between
individuals who have authority to settle the controversy. Negotiations
shall be commenced by either party by notice of a written statement of
the party's position and the name and title of the individual who will
represent the party. Within thirty (30) days of the written
notification, the parties shall meet at a mutually acceptable time and
place, and thereafter as often as they reasonably deem necessary, to
resolve the dispute. If the dispute has not been resolved by
negotiation, the Company and I agree that any suit, action, or
proceeding arising out of or relating to the Plan shall be brought in
the United States District Court for the District of Washington (or
should such court lack jurisdiction to hear such action, suit or
proceeding, in a Washington state court in King County) and that we
shall submit to the jurisdiction of such court. The Company and I
irrevocably waive, to the fullest extent permitted by law, any objection
we may have to the laying of venue for any such suit, action or
proceeding brought in such court. THE COMPANY AND I ALSO EXPRESSLY WAIVE
ANY RIGHT WE HAVE OR MAY HAVE TO A JURY TRIAL OF ANY SUCH SUIT, ACTION
OR PROCEEDING. If any one or more provisions of this Section 10 or
Section 28 of the ESPP shall for any reason be held invalid or
unenforceable, it is the specific intent of the Company and I that such
provisions shall be modified to the minimum extent necessary to make it
or its application valid and enforceable.
11. DESIGNATION OF BENEFICIARY In the event of my death, I hereby designate
the following person or trust as my beneficiary to receive all payments
and shares due to me under the ESPP: [ ] I am single [ ] I am married
Beneficiary (please print) ____________________________________________
(Last) (First) (MI)
Relationship to Beneficiary (if any)
Street Address ______________________________ ______________________
City, State/Country, Zip________________________________________________
12. TERMINATION OF ESPP I understand that the Company has the right,
exercisable in its sole discretion, to amend or terminate the ESPP at
any time, and a termination may be effective as early as an Exercise
Date, including the establishment of an alternative date for an Exercise
Date within each outstanding Offer Period.
Date: __________________________ Employee Signature:___________________
________________________________________________________
spouse's signature (if beneficiary is other than spouse)
A-2
<PAGE> 15
EXHIBIT B
Emerald-Delaware, Inc. 2000 Employee Stock Purchase Plan
CHANGE OF STATUS NOTICE
_________________________________________________
Participant Name (Please Print)
_________________________________________________
Social Security Number
================================================================================
WITHDRAWAL FROM ESPP
I hereby withdraw from the Emerald-Delaware Inc. 2000 Employee Stock
Purchase Plan (the "ESPP") and agree that my option under the applicable
Offer Period will be automatically terminated and all accumulated
payroll deductions credited to my account will be refunded to me or
applied to the purchase of Common Stock depending on the alternative
indicated below. No further payroll deductions will be made for the
purchase of shares in the applicable Offer Period and I shall be
eligible to participate in a future Offer Period only by timely delivery
to the Company of a new Subscription Agreement.
[ ] WITHDRAWAL AND PURCHASE OF COMMON STOCK
Payroll deductions will terminate, but your account balance will be
applied to purchase Common Stock on the next Exercise Date. Any
remaining balance will be refunded.
[ ] WITHDRAWAL WITHOUT PURCHASE OF COMMON STOCK
Entire account balance will be refunded to me and no Common Stock will
be purchased on the next Exercise Date provided this notice is submitted
to the Company ten (10) business days prior to the next Exercise Date.
================================================================================
[ ] CHANGE IN PAYROLL DEDUCTION
I hereby elect to change my rate of payroll deduction under the ESPP as
follows (select one):
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Percentage to Deduct (circle one) 1% 2% 3% 4% 5% 6% 7% 8% 9% 10% 11% 12% 13% 14% 15%
</TABLE>
An increase or a decrease in payroll deduction will be effective for the
first full payroll period commencing no fewer than ten (10) business
days following the Company's receipt of this notice, unless this change
is processed more quickly.
================================================================================
B-1
<PAGE> 16
================================================================================
[ ] CHANGE OF BENEFICIARY [ ] I am single [ ] I am married
This change of beneficiary shall terminate my previous beneficiary
designation under the ESPP. In the event of my death, I hereby designate
the following person or trust as my beneficiary to receive all payments
and shares due to me under the ESPP:
Beneficiary (please print) _________________________________________________
(Last) (First) (MI)
Relationship to Beneficiary (if any)
Street Address_________________________________ ___________________________
City, State/Country, Zip ______________________
================================================================================
Date: __________________________ Employee Signature:________________________
____________________________________________________________
spouse's signature (if new beneficiary is other than spouse)
B-2
