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EXHIBIT 10.4
SUREBEAM CORPORATION
2000 EMPLOYEE STOCK PURCHASE PLAN
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TABLE OF CONTENTS
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PAGE
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1. SHARES SUBJECT TO THE PLAN...............................................................................1
2. ADMINISTRATION...........................................................................................1
3. INTERPRETATION...........................................................................................1
4. ELIGIBLE EMPLOYEES.......................................................................................1
5. PARTICIPATION IN THE PLAN................................................................................2
6. OFFERINGS................................................................................................2
7. OFFERING PERIODS.........................................................................................2
8. RIGHTS TO PURCHASE COMMON STOCK; PURCHASE PRICE..........................................................2
9. TIMING OF PURCHASE; PURCHASE LIMITATION..................................................................3
10. ISSUANCE OF STOCK CERTIFICATES...........................................................................3
11. WITHHOLDING OF TAXES.....................................................................................4
12. ACCOUNT STATEMENTS.......................................................................................4
13. PARTICIPATION ADJUSTMENT.................................................................................4
14. CHANGES IN ELECTIONS TO PURCHASE.........................................................................4
15. TERMINATION, DISCHARGE, RETIREMENT OR SEVERANCE..........................................................5
16. LAY-OFF, AUTHORIZED LEAVE OF ABSENCE OR DISABILITY.......................................................5
17. DEATH....................................................................................................6
18. FAILURE TO MAKE PERIODIC CASH PAYMENTS...................................................................6
19. TERMINATION OF PARTICIPATION.............................................................................6
20. ASSIGNMENT...............................................................................................6
21. APPLICATION OF FUNDS.....................................................................................7
22. NO RIGHT TO CONTINUED EMPLOYMENT.........................................................................7
23. AMENDMENT OF PLAN........................................................................................7
24. EFFECTIVE DATE; TERM AND TERMINATION OF THE PLAN.........................................................7
25. EFFECT OF CHANGES IN CAPITALIZATION......................................................................8
(a) Changes in Stock................................................................................8
(b) Reorganization in Which the Company Is the Surviving Corporation................................8
(c) Reorganization in Which the Company Is Not the Surviving Corporation or Sale of Assets
or Stock........................................................................................8
(d) Adjustments.....................................................................................9
i.
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TABLE OF CONTENTS
(CONTINUED)
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(e) No Limitations on Company.......................................................................9
26. GOVERNMENTAL REGULATION..................................................................................9
27. STOCKHOLDER RIGHTS.......................................................................................9
28. RULE 16B-3...............................................................................................9
29. PAYMENT OF PLAN EXPENSES................................................................................10
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ii.
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SUREBEAM CORPORATION
2000 EMPLOYEE STOCK PURCHASE PLAN
The Board of Directors of SureBeam Corporation (the "COMPANY") has
adopted this 2000 Employee Stock Purchase Plan (the "PLAN") to enable
eligible employees of the Company and its participating Affiliates (as
defined below), through payroll deductions, to purchase shares of the
Company's Class A Common Stock, par value $0.001 per share (the "COMMON
STOCK"). The Plan is for the benefit of the employees of SureBeam Corporation
and any participating Affiliates. The Plan is intended to benefit the Company
by increasing the employees' interest in the Company's growth and success and
encouraging employees to remain in the employ of the Company or its
participating Affiliates. The provisions of the Plan are set forth below:
1. SHARES SUBJECT TO THE PLAN.
Subject to adjustment as provided in Section 25 below, the aggregate
number of shares of Common Stock that may be made available for purchase by
participating employees under the Plan is Two Hundred Fifty Thousand
(250,000). The shares issuable under the Plan may, in the discretion of the
Board of Directors of the Company (the "BOARD"), be either authorized but
unissued shares or treasury shares.
2. ADMINISTRATION.
The Plan shall be administered under the direction of the
Compensation Committee of the Board (the "COMMITTEE"). No member of the Board
or the Committee shall be liable for any action or determination made in good
faith with respect to the Plan.
3. INTERPRETATION.
It is intended that the Plan will meet the requirements for an
"employee stock purchase plan" under Section 423 of the Internal Revenue Code
of 1986 (the "CODE"), and it is to be so applied and interpreted. Subject to
the express provisions of the Plan, the Committee shall have authority to
interpret the Plan, to prescribe, amend and rescind rules relating to it, and
to make all other determinations necessary or advisable in administering the
Plan, all of which determinations will be final and binding upon all persons.
4. ELIGIBLE EMPLOYEES.
Any employee of the Company or any of its participating Affiliates
may participate in the Plan, except the following, who are ineligible to
participate: (a) an employee who has been employed by the Company or any of
its participating Affiliates for less than three months as of the beginning
of an Offering Period (as defined in Section 7 below); (b) an employee whose
customary employment is for less than five months in any calendar year; (c)
an employee whose customary employment is 20 hours or less per week; and (d)
an employee who, after exercising his or her rights to purchase shares under
the Plan, would own shares of Common Stock (including shares that may be
acquired under any outstanding options) representing five percent or more of
the total combined voting power of all classes of stock of the Company.
1.
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Notwithstanding the previous sentence, subject to the provisions of Section
423 of the Code and the regulations thereunder the Board may choose to
exclude from participation one or more of the following categories of
employees: (i) officers, (ii) persons whose principal duties consist of
supervising the work of other employees, and (iii) highly compensated
employees. The term "participating Affiliate" means any company or other
trade or business that is a subsidiary of the Company (determined in
accordance with the principles of Sections 424(e) and (f) of the Code and the
regulations thereunder). The Board may at any time in its sole discretion, if
it deems it advisable to do so, terminate the participation of the employees
of a particular participating Affiliate.
5. PARTICIPATION IN THE PLAN.
An eligible employee may become a participating employee in the Plan
by completing an election to participate in the Plan on a form provided by
the Company and submitting that form to the Payroll Department of the
Company. The form will authorize payroll deductions (as provided in Section 6
below) and authorize the purchase of shares of Common Stock for the
employee's account in accordance with the terms of the Plan. Enrollment will
become effective upon the first day of the first Offering Period.
6. OFFERINGS.
At the time an eligible employee submits his or her election to
participate in the Plan (as provided in Section 5 above), the employee shall
elect to have deductions made from his or her pay subject to a maximum of
fifteen percent (15%) of Total Compensation (as defined by the Board in each
Offering Period), on each pay day following his or her enrollment in the
Plan, and for as long as he or she shall participate in the Plan. The
deductions will be credited to the participating employee's account under the
Plan. An employee may not during any Offering Period change his or her
percentage of payroll deduction for that Offering Period, nor may an employee
withdraw any contributed funds, other than in accordance with Sections 14
through 19 below.
7. OFFERING PERIODS.
The Offering Periods shall be determined by the Committee. The first
Offering Period under the Plan shall commence on the date determined by the
Committee.
8. RIGHTS TO PURCHASE COMMON STOCK; PURCHASE PRICE.
Rights to purchase shares of Common Stock will be deemed granted to
participating employees as of the first trading day of each Offering Period.
The purchase price of each share of Common Stock (the "PURCHASE PRICE") shall
be determined by the Committee; PROVIDED, HOWEVER, the Purchase Price shall
not be less than the lesser of 85 percent of the fair market value of the
Common Stock (i) on the first trading day of the Offering Period or (ii) on
the last trading day of such Offering Period; PROVIDED, FURTHER, that in no
event shall the Purchase Price be less than the par value of the Common
Stock. For purposes of the Plan, "fair market value" means the value of each
share of Common Stock subject to the Plan on a given date determined as
follows: if on such date the shares of Common Stock are listed on an
established national or regional stock exchange, are admitted to quotation on
The Nasdaq Stock Market, Inc., or are
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publicly traded on an established securities market, the fair market value of
the shares of Common Stock shall be the closing price of the shares of Common
Stock on such exchange or in such market (the Board shall determine the
appropriate exchange or market if there is more than one such exchange or
market) on such date or, if such date is not a trading day, on the trading
day immediately preceding such date (or if there is no such reported closing
price, the fair market value shall be the mean between the highest bid and
lowest asked prices or between the high and low sale prices on such trading
day) or, if no sale of the shares of Common Stock is reported for such
trading day, on the next preceding day on which any sale shall have been
reported. If the shares of Common Stock are not listed on such an exchange,
quoted on such System or traded on such a market, fair market value shall be
determined by the Board in good faith.
9. TIMING OF PURCHASE; PURCHASE LIMITATION.
(a) Unless a participating employee has given prior written notice
terminating such employee's participation in the Plan, or the employee's
participation in the Plan has otherwise been terminated as provided in
Sections 14 through 19 below, such employee will be deemed to have exercised
automatically his or her right to purchase Common Stock on the last trading
day of the Offering Period (except as provided in Section 14 below) for the
number of shares of Common Stock which the accumulated funds in the
employee's account at that time will purchase at the Purchase Price, subject
to the participation adjustment provided for in Section 13 below and subject
to adjustment under Section 25 below. Notwithstanding any other provision of
the Plan, an Eligible Employee may be granted rights to purchase shares under
the Plan only if such rights, together with any other rights granted under
all Employee Stock Purchase Plans of the Company and any Affiliates, as
specified by Section 423(b)(8) of the Code, do not permit such employee's
rights to purchase shares of the Company or any Affiliate to accrue at a rate
which exceeds twenty five thousand dollars ($25,000) of the fair market value
of such shares (determined at the time such rights are granted) for each
calendar year in which such rights are outstanding at any time.
Effective upon the last trading day of the Offering Period, a
participating employee will become a stockholder with respect to the shares
purchased during such period, and will thereupon have all dividend, voting
and other ownership rights incident thereto. Notwithstanding the foregoing,
no shares shall be sold pursuant to the Plan unless the Plan is approved by
the Company's stockholders in accordance with Section 24 below.
10. ISSUANCE OF STOCK CERTIFICATES.
On the last trading day of the Offering Period, a participating
employee will be credited with the number of shares of Common Stock purchased
for his or her account under the Plan during such Offering Period. Shares
purchased under the Plan will be held in the custody of an agent (the
"AGENT") appointed by the Board of Directors. The Agent may hold the shares
purchased under the Plan in stock certificates in nominee names and may
commingle shares held in its custody in a single account or stock certificate
without identification as to individual participating employees. A
participating employee may, at any time following his or her purchase of
shares under the Plan, by written notice instruct the Agent to have all or
part of such
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shares reissued in the participating employee's own name and have the stock
certificate delivered to the employee.
11. WITHHOLDING OF TAXES.
To the extent that a participating employee realizes ordinary income
in connection with a sale or other transfer of any shares of Common Stock
purchased under the Plan, the Company may withhold amounts needed to cover
such taxes from any payments otherwise due and owing to the participating
employee or from shares that would otherwise be issued to the participating
employee hereunder. Any participating employee who sells or otherwise
transfers shares purchased under the Plan within two years after the
beginning of the Offering Period in which the shares were purchased must
within 30 days of such transfer notify the Payroll Department of the Company
in writing of such transfer.
12. ACCOUNT STATEMENTS.
The Company will cause the Agent to deliver to each participating
employee a statement for each Offering Period during which the employee
purchases Common Stock under the Plan, reflecting the amount of payroll
deductions during the Offering Period, the number of shares purchased for the
employee's account, the price per share of the shares purchased for the
employee's account and the number of shares held for the employee's account
at the end of the Offering Period.
13. PARTICIPATION ADJUSTMENT.
If in any Offering Period the number of unsold shares that may be
made available for purchase under the Plan pursuant to Section 1 above is
insufficient to permit exercise of all rights deemed exercised by all
participating employees pursuant to Section 9 above, a participation
adjustment will be made, and the number of shares purchasable by all
participating employees will be reduced proportionately. Any funds then
remaining in a participating employee's account after such exercise will be
refunded to the employee.
14. CHANGES IN ELECTIONS TO PURCHASE.
(a) A participating employee may, at any time prior to the last
trading day of the Offering Period, by written notice to the Company, direct
the Company to cease payroll deductions (or, if the payment for shares is
being made through periodic cash payments, notify the Company that such
payments will be terminated), in accordance with the following alternatives:
(i) The employee's option to purchase shall be reduced to
the number of shares which may be purchased, as of the last day of the
Offering Period, with the amount then credited to the employee's account; or
(ii) Withdraw the amount in such employee's account and
terminate such employee's option to purchase.
4.
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(b) Any participating employee may increase or decrease his or her
payroll deduction or periodic cash payments, to take effect on the first day
of the next Offering Period, by delivering to the Company a new form
regarding election to participate in the Plan under Section 5 above.
15. TERMINATION, DISCHARGE, RETIREMENT OR SEVERANCE.
In the event a participating employee voluntarily leaves the employ
of the Company or a participating Affiliate, or is terminated by the Company
or a participating Affiliate for any reason, including discharge for cause,
prior to the last day of the Offering Period, the amount in the employee's
account will be distributed and the employee's option to purchase will
terminate.
16. LAY-OFF, AUTHORIZED LEAVE OF ABSENCE OR DISABILITY.
Payroll deductions for shares for which a participating employee has
an option to purchase may be suspended during any period of absence of the
employee from work due to lay-off, authorized leave of absence or disability
or, if the employee so elects, periodic payments for such shares may continue
to be made in cash.
If such employee returns to active service prior to the last day of
the Offering Period, the employee's payroll deductions will be resumed and if
said employee did not make periodic cash payments during the employee's
period of absence, the employee shall, by written notice to the Company's
Payroll Department within 10 days after the employee's return to active
service, but not later than the last day of the Offering Period, elect:
(a) To make up any deficiency in the employee's account resulting
from a suspension of payroll deductions by an immediate cash payment;
(b) Not to make up such deficiency, in which event the number of
shares to be purchased by the employee shall be reduced to the number of
whole shares which may be purchased with the amount, if any, then credited to
the employee's account plus the aggregate amount, if any, of all payroll
deductions to be made thereafter; or
(c) Withdraw the amount in the employee's account and terminate the
employee's option to purchase.
A participating employee on lay-off, authorized leave of absence or
disability on the last day of the Offering Period shall deliver written
notice to his or her employer on or before the last day of the Offering
Period, electing one of the alternatives provided in the foregoing clauses
(a), (b) and (c) of this Section 16. If any employee fails to deliver such
written notice within 10 days after the employee's return to active service
or by the last day of the Offering Period, whichever is earlier, the employee
shall be deemed to have elected subsection 16(c) above.
If the period of a participating employee's lay-off, authorized
leave of absence or disability shall terminate on or before the last day of
the Offering Period, and the employee shall not resume active employment with
the Company or a participating Affiliate, the employee shall receive a
distribution in accordance with the provisions of Section 16 of this Plan.
5.
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17. DEATH.
In the event of the death of a participating employee while the
employee's option to purchase shares is in effect, the legal representatives
of such employee may, within three months after the employee's death (but no
later than the last day of the Offering Period) by written notice to the
Company or participating Affiliate, elect one of the following alternatives:
(a) The employee's option to purchase shall be reduced to the number
of shares which may be purchased, as of the last day of the Offering Period,
with the amount then credited to the employee's account; or
(b) Withdraw the amount in such employee's account and terminate
such employee's option to purchase.
In the event the legal representatives of such employee fail to
deliver such written notice to the Company or participating Affiliate within
the prescribed period, the election to purchase shares shall terminate and
the amount, then credited to the employee's account shall be paid to such
legal representatives.
18. FAILURE TO MAKE PERIODIC CASH PAYMENTS.
Under any of the circumstances contemplated by this Plan, where the
purchase of shares is to be made through periodic cash payments in lieu of
payroll deductions, the failure to make any such payments shall reduce, to
the extent of the deficiency in such payments, the number of shares
purchasable under this Plan.
19. TERMINATION OF PARTICIPATION.
A participating employee will be refunded all moneys in his or her
account, and his or her participation in the Plan will be terminated if
either (a) the Board elects to terminate the Plan as provided in Section 24
below, or (b) the employee ceases to be eligible to participate in the Plan
under Section 0 above. As soon as practicable following termination of an
employee's participation in the Plan, the Company will deliver to the
employee a check representing the amount in the employee's account and a
stock certificate representing the number of whole shares held in the
employee's account. Once terminated, participation may not be reinstated for
the then current Offering Period, but, if otherwise eligible, the employee
may elect to participate in any subsequent Offering Period.
20. ASSIGNMENT.
No participating employee may assign his or her rights to purchase
shares of Common Stock under the Plan, whether voluntarily, by operation of
law or otherwise. Any payment of cash or issuance of shares of Common Stock
under the Plan may be made only to the participating employee (or, in the
event of the employee's death, to the employee's estate). Once a stock
certificate has been issued to the employee or for his or her account, such
certificate may be assigned the same as any other stock certificate.
6.
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21. APPLICATION OF FUNDS.
All funds received or held by the Company under the Plan may be used
for any corporate purpose until applied to the purchase of Common Stock
and/or refunded to participating employees. Participating employees' accounts
will not be segregated.
22. NO RIGHT TO CONTINUED EMPLOYMENT.
Neither the Plan nor any right to purchase Common Stock under the
Plan confers upon any employee any right to continued employment with the
Company or any of its participating Affiliates, nor will an employee's
participation in the Plan restrict or interfere in any way with the right of
the Company or any of its participating Affiliates to terminate the
employee's employment at any time.
23. AMENDMENT OF PLAN.
The Board may, at any time, amend the Plan in any respect (including
an increase in the percentage specified in Section 8 above used in
calculating the Purchase Price); PROVIDED, HOWEVER, that without approval of
the stockholders of the Company no amendment shall be made (a) increasing the
number of shares specified in Section 1 above that may be made available for
purchase under the Plan (except as provided in Section 25 below) or (b)
changing the eligibility requirements for participating in the Plan. No
amendment may be made that impairs the vested rights of participating
employees.
24. EFFECTIVE DATE; TERM AND TERMINATION OF THE PLAN.
The Plan shall be effective as of the date of adoption by the Board,
which date is set forth below, subject to approval of the Plan by a majority
of the votes present and entitled to vote at a duly held meeting of the
shareholders of the Company at which a quorum representing a majority of all
outstanding voting stock is present, either in person or by proxy; PROVIDED,
HOWEVER, that upon approval of the Plan by the shareholders of the Company as
set forth above, all rights to purchase shares granted under the Plan on or
after the effective date shall be fully effective as if the shareholders of
the Company had approved the Plan on the effective date. If the shareholders
fail to approve the Plan on or before one year after the effective date, the
Plan shall terminate, any rights to purchase shares granted hereunder shall
be null and void and of no effect, and all contributed funds shall be
refunded to participating employees. The Board may terminate the Plan at any
time and for any reason or for no reason, provided that such termination
shall not impair any rights of participating employees that have vested at
the time of termination. In any event, the Plan shall, without further action
of the Board, terminate ten (10) years after the date of adoption of the Plan
by the Board or, if earlier, at such time as all shares of Common Stock that
may be made available for purchase under the Plan pursuant to Section 1 above
have been issued.
7.
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25. EFFECT OF CHANGES IN CAPITALIZATION.
(a) CHANGES IN STOCK.
If the number of outstanding shares of Common Stock is increased or
decreased or the shares of Common Stock are changed into or exchanged for a
different number or kind of shares or other securities of the Company by
reason of any recapitalization, reclassification, stock split, reverse split,
combination of shares, exchange of shares, stock dividend, or other
distribution payable in capital stock, or other increase or decrease in such
shares effected without receipt of consideration by the Company occurring
after the effective date of the Plan, the number and kinds of shares that may
be purchased under the Plan shall be adjusted proportionately and accordingly
by the Company. In addition, the number and kind of shares for which rights
are outstanding shall be similarly adjusted so that the proportionate
interest of a participating employee immediately following such event shall,
to the extent practicable, be the same as immediately prior to such event.
Any such adjustment in outstanding rights shall not change the aggregate
Purchase Price payable by a participating employee with respect to shares
subject to such rights, but shall include a corresponding proportionate
adjustment in the Purchase Price per share.
(b) REORGANIZATION IN WHICH THE COMPANY IS THE SURVIVING
CORPORATION.
Subject to Subsection (c) of this Section 25, if the Company shall
be the surviving corporation in any reorganization, merger or consolidation
of the Company with one or more other corporations, all outstanding rights
under the Plan shall pertain to and apply to the securities to which a holder
of the number of shares of Common Stock subject to such rights would have
been entitled immediately following such reorganization, merger or
consolidation, with a corresponding proportionate adjustment of the Purchase
Price per share so that the aggregate Purchase Price thereafter shall be the
same as the aggregate Purchase Price of the shares subject to such rights
immediately prior to such reorganization, merger or consolidation.
(c) REORGANIZATION IN WHICH THE COMPANY IS NOT THE SURVIVING
CORPORATION OR SALE OF ASSETS OR STOCK.
Upon any dissolution or liquidation of the Company, or upon a
merger, consolidation or reorganization of the Company with one or more other
corporations in which the Company is not the surviving corporation, or upon a
sale of all or substantially all of the assets of the Company to another
corporation, or upon any transaction (including, without limitation, a merger
or reorganization in which the Company is the surviving corporation) approved
by the Board that results in any person or entity owning more than 80 percent
of the combined voting power of all classes of stock of the Company, the Plan
and all rights outstanding hereunder shall terminate, except to the extent
provision is made in writing in connection with such transaction for the
continuation of the Plan and/or the assumption of the rights theretofore
granted, or for the substitution for such rights of new rights covering the
stock of a successor corporation, or a parent or subsidiary thereof, with
appropriate adjustments as to the number and kinds of shares and exercise
prices, in which event the Plan and rights theretofore granted shall continue
in the manner and under the terms so provided. In the event of any such
termination of the Plan, the Offering Period shall be deemed to have ended on
the last trading day prior to such termination,
8.
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and in accordance with Section 10 above the rights of each participating
employee then outstanding shall be deemed to be automatically exercised on
such last trading day. The Board shall send written notice of an event that
will result in such a termination to all participating employees not later
than the time at which the Company gives notice thereof to its stockholders.
(d) ADJUSTMENTS.
Adjustments under this Section 25 related to stock or securities of
the Company shall be made by the Committee, whose determination in that
respect shall be final, binding, and conclusive.
(e) NO LIMITATIONS ON COMPANY.
The grant of a right pursuant to the Plan shall not affect or limit
in any way the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge, consolidate, dissolve or liquidate, or to sell or
transfer all or any part of its business or assets.
26. GOVERNMENTAL REGULATION.
The Company's obligation to issue, sell and deliver shares of Common
Stock pursuant to the Plan is subject to such approval of any governmental
authority and any national securities exchange or other market quotation
system as may be required in connection with the authorization, issuance or
sale of such shares.
27. STOCKHOLDER RIGHTS.
Any dividends paid on shares held by the Company for a participating
employee's account will be transmitted to the employee. The Company will
deliver to each participating employee who purchases shares of Common Stock
under the Plan, as promptly as practicable by mail or otherwise, all notices
of meetings, proxy statements, proxies and other materials distributed by the
Company to its stockholders. Any shares of Common Stock held by the Agent for
an employee's account will be voted in accordance with the employee's duly
delivered and signed proxy instructions. There will be no charge to
participating employees in connection with such notices, proxies and other
materials.
28. RULE 16b-3.
Transactions under this Plan are intended to comply with all
applicable conditions of Rule 16b-3 or any successor provision under the
Securities Exchange Act of 1934, as amended. If any provision of the Plan or
action by the Board fails to so comply, it shall be deemed null and void to
the extent permitted by law and deemed advisable by the Board. Moreover, in
the event the Plan does not include a provision required by Rule 16b-3 to be
stated herein, such provision (other than one relating to eligibility
requirements, or the price and amount of awards) shall be deemed
automatically to be incorporated by reference into the Plan.
9.
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29. PAYMENT OF PLAN EXPENSES.
The Company will bear all costs of administering and carrying out
the Plan.
* * *
10.
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This Plan was duly adopted and approved by the Board of Directors of
the Company on the 4th of August, 2000.
/s/ Nicholas J. Costanza
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Nicholas J. Costanza
Senior Vice President, General Counsel
This Plan was duly approved by the stockholders of the Company on
the ___ of _______, ______.
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Nicholas J. Costanza
Senior Vice President, General Counsel
11.
