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Exhibit 4.1
THE TITAN 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................................................3
9. TIMING OF PURCHASE; PURCHASE LIMITATION........................................................3
10. ISSUANCE OF STOCK CERTIFICATES.................................................................4
11. WITHHOLDING OF TAXES...........................................................................4
12. ACCOUNT STATEMENTS.............................................................................4
13. PARTICIPATION ADJUSTMENT.......................................................................4
14. CHANGES IN ELECTIONS TO PURCHASE...............................................................5
15. VOLUNTARY TERMINATION OF EMPLOYMENT OR DISCHARGE...............................................5
16. RETIREMENT OR SEVERANCE........................................................................5
17. LAY-OFF, AUTHORIZED LEAVE OF ABSENCE OR DISABILITY.............................................6
18. DEATH..........................................................................................7
19. FAILURE TO MAKE PERIODIC CASH PAYMENTS.........................................................7
20. TERMINATION OF PARTICIPATION...................................................................7
21. ASSIGNMENT.....................................................................................7
</TABLE>
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<TABLE>
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22. APPLICATION OF FUNDS...........................................................................8
23. NO RIGHT TO CONTINUED EMPLOYMENT...............................................................8
24. AMENDMENT OF PLAN..............................................................................8
25. EFFECTIVE DATE; TERM AND TERMINATION OF THE PLAN...............................................8
26. EFFECT OF CHANGES IN CAPITALIZATION............................................................9
a. Changes in Stock......................................................................9
b. Reorganization in Which the Company Is the Surviving Corporation......................9
c. Reorganization in Which the Company Is Not the Surviving Corporation or Sale of
Assets or Stock.......................................................................10
d. Adjustments...........................................................................10
e. No Limitations on Company.............................................................10
27. GOVERNMENTAL REGULATION........................................................................10
28. STOCKHOLDER RIGHTS.............................................................................11
29. RULE 16b-3.....................................................................................11
30. PAYMENT OF PLAN EXPENSES.......................................................................11
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THE TITAN CORPORATION
2000 EMPLOYEE STOCK PURCHASE PLAN
The Board of Directors of The Titan 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 Common Stock,
par value $0.01 per share (the "Common Stock"). The Plan is for the benefit of
the employees of The Titan 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 26 below, the aggregate
number of shares of Common Stock that may be made available for purchase by
participating employees under the Plan is one million five hundred thousand
(1,500,000). 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
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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. 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, 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 20 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.
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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
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.
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 20 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 26 below. Notwithstanding any other provision of the Plan, no employee
may purchase in any one calendar year under the Plan and all other "employee
stock purchase plans" of the Company and its participating Affiliates shares of
Common Stock having an aggregate fair market value in excess of $25,000,
determined as of the first trading date of the Offering Period as to shares
purchased during such period. 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
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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 25 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 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
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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.
(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. VOLUNTARY TERMINATION OF EMPLOYMENT OR DISCHARGE.
In the event a participating employee voluntarily leaves the employ of
the Company or a participating Affiliate, otherwise than by retirement under a
plan of the Company or a participating Affiliate, or is discharged 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. RETIREMENT OR SEVERANCE.
In the event a participating employee who has an option to purchase
shares leaves the employ of the Company or a participating Affiliate because of
retirement under a plan of the Company or a participating Affiliate, or because
of termination of the employee's employment by the Company or a participating
Affiliate for any reason except discharge for cause, the participating employee
may elect, within 10 days after the date of such retirement or termination, 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
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(b) Withdraw the amount in such employee's account and terminate such
employee's option to purchase.
In the event the participating employee does not make an election
within the aforesaid 10-day period, he or she will be deemed to have elected
subsection 16(b) above.
17. 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 17. 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 17(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
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Affiliate, the employee shall receive a distribution in accordance with the
provisions of Section 16 of this Plan.
18. 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.
19. 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.
20. 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 25 below, or
(b) the employee ceases to be eligible to participate in the Plan under Section
4 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.
21. ASSIGNMENT.
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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.
22. 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.
23. 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.
24. 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 26 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.
25. 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
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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.
26. 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 26, 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.
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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, 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 26 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.
27. 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.
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28. 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.
29. 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.
30. PAYMENT OF PLAN EXPENSES.
The Company will bear all costs of administering and carrying out the
Plan.
* * *
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This Plan was duly adopted and approved by the Board of Directors of
the Company on the __ of March, 2000.
/s/ Nicholas J. Costanza
---------------------------
Nicholas J. Costanza
Secretary
This Plan was duly approved by the stockholders of the Company on the
___ of _______, 2000.
/s/ Nicholas J. Costanza
---------------------------
Nicholas J. Costanza
Secretary
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