<PAGE> 1
As filed with the Securities and Exchange Commission on February 5, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________
SIGMA CIRCUITS, INC.
(Exact name of registrant as specified in its charter)
________________
Delaware 77-0107167
(State of Incorporation) (I.R.S. Employer Identification No.)
________________
393 Mathew Street
Santa Clara, California 95050
(408) 727-9169
(Address and telephone number of principal executive offices)
________________
Amended and Restated 1997 Stock Option Plan
1994 Employee Stock Purchase Plan
(Full title of the plans)
________________
B. Kevin Kelly
President and Chief Executive Officer
Sigma Circuits, Inc.
393 Mathew Street
Santa Clara, California 95050
(408) 727-9169
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
_______________
Copies to:
Mark P. Tanoury, Esq.
Cooley Godward llp
3000 Sand Hill Road
Building 3, Suite 230
Menlo Park, California 94025-7116
(415) 843-5000
________________
</PAGE>
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
Proposed Proposed
Title of Maximum Maximum
Securities Amount to Offering Aggregate Amount of
to be be Price Per Offering Registration
Registered Registered Share (1) Price (1) Fee
<C> <C> <C> <C> <C>
Stock
Options and
Common Stock
(par value
$.001) 359,092 $6.00-$7.06 $2,348,714 $693
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c). The price per share and
aggregate offering price are based upon (a) the actual exercise price
for shares subject to outstanding stock options granted under the
Amended and Restated 1997 Stock Option Plan; (b) the average of the
high and low price of Registrant's Common Stock on January 30, 1998 as
reported on the NASDAQ National Market System; or (c) for shares
issuable under the Company's Employee Stock Purchase Plan calculated
on the basis of 85% of the average of the high and low price of
Registrant's Common Stock on January 21, 1998 as reported on the
NASDAQ National Market System.
<TABLE>
Number of Offering Aggregate
Securities Shares Price Per Share Offering Price
<S> <C> <C> <C>
Common Stock
issuable pursuant
to outstanding
options under the
Amended and Restated
Stock Option Plan 96,424 $6.875 $662,915
Common Stock available
for grant under the
Amended and Restated
1997 Stock Option Plan 103,576 $7.06 $731,247
Common Stock available
for grant under the
Employee Stock Purchase
Plan 159,092 $6.00 $954,552
</TABLE>
Approximate date of commencement of proposed sale to the public: As
soon as practicable after this Registration Statement becomes effective.
</PAGE>
<PAGE> 3
INCORPORATION BY REFERENCE OF CERTAIN DOCUMENTS
The contents of Registration Statements on Form S-8 No. 33-81506
and No, 33-29041 filed with the Securities and Exchange Commission on
July 15, 1994 and June 11, 1997, respectively, are incorporated by
reference herein.
EXHIBITS
<TABLE>
Exhibit
Number
<C> <S>
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement.
24.1 Power of Attorney. Reference is made to the signature page.
99.1 Amended and Restated 1997 Stock Option Plan.
99.2 1994 Employee Stock Purchase Plan, as amended as of December 16th, 1997.
</TABLE>
</PAGE>
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8
and has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of
Santa Clara, State of California, on February 4, 1998.
SIGMA CIRCUITS, INC.
By: /s/ B. Kevin Kelly
B. Kevin Kelly, President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints B. Kevin Kelly and
Philip S. Bushnell, and each or any one of them, his true and lawful
attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and
all capacities, to sign any and all amendments (including post-
effective amendments) to this Registration Statement, and to file the
same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them,
or their or his substitutes or substitute, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
Signature Title Date
<S> <C> <C>
/s/ B. Kevin Kelly President and Chief February 4, 1998
B. Kevin Kelly Executive Officer
/s/ Philip S. Bushnell Chief Financial Officer, February 4, 1998
Philip S. Bushnell Senior Vice President
Finance and Administration,
Secretary and Director
(Principal Financial and
Accounting Officer)
/s/ Robert P. Cummins Chairman of the Board February 4, 1998
Robert P. Cummins
/s/ Carl Brockl Director February 4, 1998
Carl Brockl
/s/ William W. Boyle Director February 4, 1998
William W. Boyle
</PAGE>
<PAGE> 5
EXHIBIT INDEX
</TABLE>
<TABLE>
Exhibit Sequential
Number Description Page Number
<S> <C> <C>
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Cooley Godward LLP is contained
in Exhibit 5.1 to this Registration Statement.
24.1 Power of Attorney. Reference is made to the
signature page.
99.1 Amended and Restated 1997 Stock Option Plan.
99.2 1994 Employee Stock Purchase Plan, as amended.
</TABLE>
</PAGE>
<PAGE> 6
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement of Sigma Circuits, Inc. on Form S-8 of our report on the
financial statements of Sigma Circuits, Inc. for the year ended June
30, 1997 and 1996 appearing in the Registrant's annual report on Form
10-K for the year ended June 30, 1997, filed pursuant to the Exchange
Act.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
San Jose, California
February 4, 1998
</PAGE>
<PAGE> 7
Exhibit 5.1
[Cooley Letterhead]
ATTORNEYS AT LAW San Francisco, CA
415 693-2000
3000 Sand Hill Road Palo Alto, CA
Building 3, Suite 230 415 843-5000
Menlo Park, CA San Diego, CA
94025-7116 619 550-6000
Main 415 843-5000 Boulder, CO
Fax 415 854-2691 303 546-4000
WEB http:www.cooley.com Denver, CO
303 606-4800
February 4, 1998
Sigma Circuits, Inc.
393 Mathew Street
Santa Clara, CA 95050
Re: Sigma Circuits, Inc.
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in
connection with the filing by Sigma Circuits, Inc. (the
"Company") of a Registration Statement on Form S-8 (the
"Registration Statement") with the Securities and Exchange
Commission covering the offering of up to 359,092 shares of the
Company's Common Stock, $.001 par value, (the "Shares") pursuant
to its Amended and Restated 1997 Stock Option Plan and the
Employee Stock Purchase Plan (the "Plans").
In connection with this opinion, we have examined the
Registration Statement and related Prospectus, your Certificate
of Incorporation and By-laws, as amended, and such other
documents, records, certificates, memoranda and other instruments
as we deem necessary as a basis for this opinion. We have
assumed the genuineness and authenticity of all documents
submitted to us as originals, the conformity to originals of all
documents submitted to us as copies thereof, and the due
execution and delivery of all documents where due execution and
delivery are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of
the opinion that the Shares, when sold and issued in accordance
with the Plans, the Registration Statement and related
Prospectuses, will be validly issued, fully paid, and
nonassessable (except as to shares issued pursuant to certain
deferred payment arrangements, which will be fully paid and
nonassessable when such deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
COOLEY GODWARD LLP
By: /s/ Mark P. Tanoury
Mark P. Tanoury
</PAGE>
SIGMA CIRCUITS, INC.
AMENDED AND RESTATED
1997 STOCK OPTION PLAN
ADOPTED BY THE BOARD OF DIRECTORS ON MAY 19, 1988
APPROVED BY THE STOCKHOLDERS ON AUGUST 4, 1988
AMENDED BY THE BOARD OF DIRECTORS ON OCTOBER 20, 1993
AMENDED BY THE BOARD OF DIRECTORS ON MARCH 11, 1994
APPROVED BY THE STOCKHOLDERS ON MARCH 14, 1994
AMENDED BY THE BOARD OF DIRECTORS IN JUNE 1995
AND ON SEPTEMBER 30, 1995
APPROVED BY THE STOCKHOLDERS ON DECEMBER 21, 1995
AMENDED AND RESTATED BY THE BOARD OF DIRECTORS
ON OCTOBER 2, 1997
APPROVED BY THE STOCKHOLDERS ON DECEMBER 16, 1997
1. ESTABLISHMENT AND PURPOSE.
(a) The Plan initially was established effective as of
May 19, 1988 as the Sigma Circuits, Inc. 1988 Stock Option Plan
(the "Initial Plan"). The Initial Plan hereby is amended and
restated in its entirety as the Sigma Circuits, Inc. Amended and
Restated 1997 Stock Option Plan effective as of October 2, 1997.
The terms of the Initial Plan (other than the aggregate number of
shares issuable thereunder) shall remain in effect and apply to
all options granted pursuant to the Initial Plan.
(b) The purpose of the Plan is to provide a means by
which selected key employees and directors (if declared eligible
under paragraph 5) of and consultants to the Company and its
Affiliates may be given an opportunity to purchase common stock
of the Company.
(c) The Company, by means of the Plan, seeks to retain
the services of persons now employed by or serving as consultants
or directors to the Company, to secure and retain the services of
new employees/persons capable of filling such positions, and to
provide incentives for such persons to exert maximum efforts for
the success of the Company.
(d) The Company intends that the options issued under
the Plan shall, in the discretion of the Board, be either
Incentive Stock Options or Supplemental Stock Options. All
options shall be separately designated Incentive Stock Options or
Supplemental Stock Options at the time of grant, and in such form
as issued pursuant to paragraph 6, and a separate certificate or
certificates shall be issued for shares purchased on exercise of
each type of option. An option designated as a Supplemental
Stock Option shall not be treated as an Incentive Stock Option.
2. DEFINITIONS.
(a) "Affiliate" means any parent corporation or
subsidiary corporation, whether now or hereafter existing, as
those terms are defined in Sections 424(e) and (f) respectively,
of the Code.
(b) "Board" means the Board of Directors of the
Company.
(c) "Code" means the Internal Revenue Code of 1986, as
amended.
(d) "Committee" means a committee appointed by the
Board in accordance with subparagraph 3(c) of the Plan.
(e) "Company" means Sigma Circuits, Inc., a Delaware
corporation.
(f) "Consultant" means any person, including an
advisor, engaged by the Company or an Affiliate to render
consulting services and who is compensated for such services,
provided that the term "Consultant" shall not include Directors
who are paid only a director's fee by the Company or who are not
compensated by the Company for their services as Directors.
(g) "Continuous Service" means that the optionee's
employment or service with the Company or an Affiliate of the
Company, whether in the capacity of an Employee, a Director or a
Consultant, is not interrupted or terminated. The optionee's
Continuous Service shall not be deemed to have terminated merely
because of a change in the capacity in which the optionee renders
employment or service to the Company or an Affiliate or the
Company or a change in the entity for which the optionee renders
such employment or service, provided that there is no
interruption or termination of the optionee's Continuous Service.
The Board or the Chief Executive Officer of the Company, in that
party's sole discretion, may determine whether Continuous Service
shall be considered interrupted in the case of: (1) any leave of
absence approved by the Board or the Chief Executive Officer of
the Company, including sick leave, military leave, or any other
personal leave; or (2) transfers between locations of the Company
or between the Company, Affiliates or their successors.
(h) "Covered employee" means the Chief Executive
Officer and the four (4) other highest compensated officers of
the Company for whom total compensation is required to be
reported to stockholders under the Exchange Act, as determined
for purposes of Section 162(m) of the Code.
(i) "Director" means a member of the Board.
(j) "Disability" means the permanent and total
disability of the optionee within the meaning of Section 22(e)(3)
of the Code.
(k) "Employee" means any person, including Officers
and Directors, employed by the Company or any Affiliate of the
Company. Neither service as a Director nor payment of a
director's fee by the Company shall be sufficient to constitute
"employment" by the Company.
(l) "Exchange Act" means the Securities Exchange Act
of 1934, as amended.
(m) "Fair Market Value" means, as of any date, the
value of the common stock of the Company determined in good faith
by the Board.
(n) "Incentive Stock Option" means an option intended
to qualify as an incentive stock option within the meaning of
Section 422 of the Code and the regulations promulgated
thereunder.
(o) "Non-Employee Director" means a Director who
either (1) is not a current Employee or Officer of the Company or
its parent or subsidiary, does not receive compensation (directly
or indirectly) from the Company or its parent or subsidiary for
services rendered as a consultant or in any capacity other than
as a Director (except for an amount as to which disclosure would
not be required under Item 404(a) of Regulation S-K promulgated
pursuant to the Securities Act), does not possess an interest in
any other transaction as to which disclosure would be required
under Item 404(a) of Regulation S-K, and is not engaged in a
business relationship as to which disclosure would be required
under Item 404(b) of Regulation S-K; or (2) is otherwise
considered a "non-employee director" for purposes of Rule 16b-3.
(p) "Officer" means a person who is an officer of the
Company within the meaning of Section 16 of the Exchange Act and
the rules and regulations promulgated thereunder.
(q) "Option" means a stock option granted pursuant to
the Plan.
(r) "Option agreement" means a written agreement
between the Company and an optionee evidencing the terms and
conditions of an individual option grant. Each option agreement
shall be subject to the terms and conditions of the Plan.
(s) "Optionee" means a person to whom an option is
granted pursuant to the Plan.
(t) "Outside Director" means a Director who either (1)
is not a current employee of the Company or an "affiliated
corporation" (within the meaning of Treasury regulations
promulgated under Section 162(m) of the Code), is not a former
employee of the Company or an "affiliated corporation" receiving
compensation for prior services (other than benefits under a tax
qualified pension plan), was not an officer of the Company or an
"affiliated corporation" at any time, and is not currently
receiving direct or indirect remuneration from the Company or an
"affiliated corporation" for services in any capacity other than
as a Director, or (2) is otherwise considered an "outside
director" for purposes of Section 162(m) of the Code.
(u) "Plan" means this Sigma Circuits, Inc. Amended and
Restated 1997 Stock Option Plan.
(v) "Rule 16b-3" means Rule 16b-3 of the Exchange Act
or any successor to Rule 16b-3, as in effect when discretion is
being exercised with respect to the Plan.
(w) "Securities Act" means the Securities Act of 1933,
as amended.
(x) "Supplemental Stock Option" means an option not
intended to qualify as an Incentive Stock
3. ADMINISTRATION.
(a) The Plan shall be administered by the Board unless
and until the Board delegates administration to a Committee, as
provided in subparagraph 3(c). Whether or not the Board has
delegated administration, the Board shall have the final power to
determine all questions of policy and expediency that may arise
in the administration of the Plan.
(b) The Board shall have the power, subject to, and
within the limitations of, the express provisions of the Plan:
(1) To determine from time to time which of the
persons eligible under the Plan shall be granted options; when
and how the option shall be granted; whether the option will be
an Incentive Stock Option or a Supplemental Stock Option; the
provisions of each option granted (which need not be identical),
including the time or times during the term of each option within
which all or portions of such option may be exercised; and the
number of shares for which an option shall be granted to each
such person.
(2) To construe and interpret the Plan and
options granted under it, and to establish, amend and revoke
rules and regulations for its administration. The Board, in the
exercise of this power, may correct any defect, omission or
inconsistency in the Plan or in any option agreement, in a manner
and to the extent it shall deem necessary or expedient to make
the Plan fully effective.
(3) To amend the Plan and options as provided in
paragraph 11.
(4) Generally, to exercise such powers and to
perform such acts as the Board deems necessary or expedient to
promote the best interests of the Company.
(c) The Board may delegate some or all of the
administration of the Plan to a Committee or Committees of one or
more members of the Board. In the discretion of the Board, a
Committee may consist solely of two or more Outside Directors, in
accordance with Code Section 162(m), or solely of two or more Non-
Employee Directors, in accordance with Rule 16b-3. If
administration is delegated to a Committee, the Committee shall
have, in connection with the administration of the Plan, the
powers theretofore possessed by the Board (and references in this
Plan to the Board shall thereafter be to the Committee), subject,
however, to such resolutions, not inconsistent with the
provisions of the Plan, as may be adopted from time to time by
the Board. The Board may abolish the Committee at any time and
revest in the Board the administration of the Plan.
Additionally, notwithstanding anything in this paragraph 3 to the
contrary, the Board or the Committee may delegate to a Committee
of one or more members of the Board the authority to grant
options to eligible persons who (1) are not then subject to
Section 16 of the Exchange Act and/or (2) are either (i) not then
covered employees and are not expected to be covered employees at
the time of recognition of income resulting from such option, or
(ii) not persons with respect to whom the Company wishes to
comply with Section 162(m) of the Code.
4. SHARES SUBJECT TO THE PLAN.
(a) Subject to the provisions of paragraph 10 relating
to adjustments upon
changes in stock, the stock that may be sold pursuant to options
granted under the Plan shall not exceed in the aggregate one
million five hundred thousand (1,500,000) shares of the Company's
common stock. If any option granted under the Plan shall for any
reason expire or otherwise terminate without having been
exercised in full, the stock not purchased under such option
shall again become available for the Plan.
(b) The stock subject to the Plan may be unissued
shares or reacquired shares, bought on the market or otherwise.
(c) An Incentive Stock Option may be granted to an
eligible person under the Plan only if the aggregate fair market
value (determined at the time the option is granted) of the stock
with respect to which incentive stock options granted after 1986
are exercisable for the first time by such optionee during any
calendar year under all incentive stock option plans of the
Company and its Affiliates does not exceed one hundred thousand
dollars ($100,000). Should it be determined that an option
granted under the Plan exceeds such maximum for any reason other
than the failure of a good faith attempt to value the stock
subject to the option, such option shall be considered a
Supplemental Stock Option to the extent, but only to the extent,
of such excess; provided, however, that should it be determined
that an entire option or any portion thereof does not qualify for
treatment as an incentive stock option by reason of exceeding
such maximum, such option or the applicable portion shall be
considered a Supplemental Stock Option.
5. ELIGIBILITY.
(a) Incentive Stock Options may be granted only to key
employees (including officers) of the Company or its Affiliates.
A director of the Company shall not be eligible to receive
Incentive Stock Options unless such director is also a key
employee (including officers) of the Company or any Affiliate.
Supplemental Stock Options may be granted only to employees
(including officers) of, directors of or consultants or advisors
to the Company or its Affiliates. A director of the Company
shall not be eligible for a Supplemental Stock Option unless such
director is also a key employee (including an officer) of or
consultant or advisor to the Company or any Affiliate.
(b) A director shall in no event be eligible for the
benefits of the Plan unless and until such director is expressly
declared eligible to participate in the Plan by action of the
Board, and only if, at any time discretion is exercised by the
Board in the selection of a director as a person to whom options
may be granted, or in the determination of the number of shares
which may be covered by options granted to a director, the Plan
complies with the requirements of Rule 16b-3. The Board shall
otherwise comply with the requirements of Rule 16b-3.
(c) No person shall be eligible for the grant of an
Incentive Stock Option under the Plan if, at the time of grant,
such person owns (or is deemed to own pursuant to Section 424(d)
of the Code) stock possessing more than ten percent (10%) of the
total combined voting power of all classes of stock of the
Company or of any of its Affiliates unless the exercise price of
such option is at least one hundred ten percent (110%) of the
fair market value of such stock at the date of grant and the term
of the option does not exceed five (5) years from the date of
grant.
(d) Subject to the provisions of paragraph 10 relating
to adjustments upon changes in stock, no person, in any calendar
year, shall be granted options covering more than one hundred
thousand (100,000) shares of the Company's common stock.
6. OPTION PROVISIONS.
Each option shall be in such form and shall contain
such terms and conditions as the Board shall deem appropriate.
The provisions of separate options need not be identical, but
each option shall include (through incorporation of provisions
hereof by reference in the option or otherwise) the substance of
each of the following provisions:
(a) The term of any option shall not be greater than
ten (10) years from the date it was granted.
(b) The exercise price of each Incentive Stock Option
shall be not less than one hundred percent (100%) of the fair
market value of the stock subject to the option on the date the
option is granted. The exercise price of each Supplemental Stock
Option shall be determined by the Board.
(c) The purchase price of stock acquired pursuant to
an option shall be paid, to the extent permitted by applicable
statutes and regulations, either (1) in cash at the time the
option is exercised, or (2) at the discretion of the Board at the
time of the grant or, with respect to Supplemental Stock Options,
at the time of the exercise of the option, (i) by delivery to the
Company of other common stock of the Company, (ii) according to a
deferred payment or other arrangement (which may include, without
limiting the generality of the foregoing, the use of other common
stock of the Company) with the person to whom the option is
granted or to whom the option is transferred pursuant to
subparagraph 7(d), or (iii) in any other form of legal
consideration that may be acceptable to the Board. In the case
of any deferred payment arrangement, payment of the common
stock's "par value", as defined in the Delaware General
Corporation Law, shall not be made by deferred payment, and
interest shall be compounded at least annually and shall be
charged at the minimum rate of interest necessary to avoid the
treatment as interest, under any applicable provisions of the
Code, of any amounts other than amounts stated to be interest
under the deferred payment arrangement.
(d) An Incentive Stock Option shall not be
transferable except by will or by the laws of descent and
distribution, and shall be exercisable during the lifetime of the
person to whom the option is granted only by such person. A
Supplemental Stock Option may be transferred to the extent
provided in the option agreement; provided that if the option
agreement does not expressly permit the transfer of a
Supplemental Stock Option, the Supplemental Stock Option shall
not be transferable except by will, by the laws of descent and
distribution or pursuant to a domestic relations order satisfying
the requirements of Rule 16 of the Exchange Act and shall be
exercisable during the lifetime of the person to whom the option
is granted only by such person or any transferee pursuant to a
domestic relations order.
(e) The total number of shares of stock subject to an
option may, but need not, be allotted in periodic installments
(which may, but need not, be equal). From time to time during
each of such installment periods, the option may become
exercisable ("vest") with respect to some or all of the shares
allotted to that period, and may be exercised with respect to
some or all of the shares allotted to such period and/or any
prior period as to which the option was not fully exercised.
During the remainder of the term of the option (if its term
extends beyond the end of the installment periods), the option
may be exercised from time to time with respect to any shares
then remaining subject to the option. The provisions of this
subparagraph 6(e) are subject to any option provisions governing
the minimum number of shares as to which an option may be
exercised.
(f) The Company may require any optionee, or any
person to whom an option is transferred under subparagraph 6(d),
as a condition of exercising any such option, (1) to give written
assurances satisfactory to the Company as to the optionee's
knowledge and experience in financial and business matters and/or
to employ a purchaser representative reasonably satisfactory to
the Company who is knowledgeable and experienced in financial and
business matters, and that he or she is capable of evaluating,
alone or together with the purchaser representative, the merits
and risks of exercising the option; and (2) to give written
assurances satisfactory to the Company stating that such person
is acquiring the stock subject to the option for such person's
own account and not with any present intention of selling or
otherwise distributing the stock. These requirements, and any
assurances given pursuant to such requirements, shall be
inoperative if (1) the issuance of the shares upon the exercise
of the option has been registered under a then currently
effective registration statement under the Securities Act, or (2)
as to any particular requirement, a determination is made by
counsel for the Company that such requirement need not be met in
the circumstances under the then applicable securities laws.
(g) An option shall terminate three (3) months after
termination of the optionee's Continuous Service unless (1) such
termination is due to such person's disability, in which case the
option may, but need not, provide that it may be exercised at any
time within one (1) year following such termination of the
optionee's Continuous Service or (2) the optionee dies while in
the employ of or while serving as a consultant or director to the
Company or an Affiliate, or within not more than three (3) months
after termination of such relationship, in which case the option
may, but need not, provide that it may be exercised at any time
within eighteen (18) months following the death of the optionee
by the person or persons to whom the optionee's rights under such
option pass by will or by the laws of descent and distribution;
or (3) the option by its terms specifies either (i) that it shall
terminate sooner than three (3) months after termination of the
optionee's Continuous Service, or (ii) that it may be exercised
more than three (3) months after termination of the relationship
with the Company or an Affiliate. This subparagraph 6(g) shall
not be construed to extend the term of any option or to permit
anyone to exercise the option after expiration of its term, nor
shall it be construed to increase the number of shares as to
which any option is exercisable from the amount exercisable on
the date of termination of the optionee's Continuous Service.
(h) The option may, but need not, include a provision
whereby the optionee may elect at any time during the term of his
or her Continuous Service to exercise the option as to any part
or all of the shares subject to the option prior to the stated
vesting date of the option or of any installment or installments
specified in the option. Any shares so purchased from any
unvested installment or option may be subject to a repurchase
right in favor of the Company or to any other restriction the
Board determines to be appropriate.
(i) To the extent provided by the terms of an option,
the optionee may satisfy any federal, state or local tax
withholding obligation relating to the exercise of such option by
any of the following means or by a combination of such means:
(1) tendering a cash payment; (2) authorizing the Company to
withhold from the shares of the common stock otherwise issuable
to the participant as a result of the exercise of the stock
option a number of shares having a fair market value less than or
equal to the amount of the withholding tax obligation; or
(3) delivering to the Company owned and unencumbered shares of
the common stock having a fair market value less than or equal to
the amount of the withholding tax obligation.
7. COVENANTS OF THE COMPANY.
(a) During the terms of the options granted under the
Plan, the Company shall keep available at all times the number of
shares of stock required to satisfy such options.
(b) The Company shall seek to obtain from each
regulatory commission or agency having jurisdiction over the Plan
such authority as may be required to issue and sell shares of
stock upon exercise of the options granted under the Plan;
provided, however, that this undertaking shall not require the
Company to register under the Securities Act either the Plan, any
option granted under the Plan or any stock issued or issuable
pursuant to any such option. If, after reasonable efforts, the
Company is unable to obtain from any such regulatory commission
or agency the authority which counsel for the Company deems
necessary for the lawful issuance and sale of stock under the
Plan, the Company shall be relieved from any liability for
failure to issue and sell stock upon exercise of such options
unless and until such authority is obtained.
8. USE OF PROCEEDS FROM STOCK.
Proceeds from the sale of stock pursuant to options
granted under the Plan shall constitute general funds of the
Company.
9. MISCELLANEOUS.
(a) The Board shall have the power to accelerate the
time during which an option may be exercised or the time during
which an option or any part thereof will vest pursuant to
subparagraph 6(e), notwithstanding the provisions in the option
stating the time during which it may be exercised or the time
during which it will vest.
(b) Neither an optionee nor any person to whom an
option is transferred under subparagraph 6(d) shall be deemed to
be the holder of, or to have any of the rights of a holder with
respect to, any shares subject to such option unless and until
such person has satisfied all requirements for exercise of the
option pursuant to its terms.
(c) Throughout the term of any option granted pursuant
to the Plan, the Company shall make available to the holder of
such option, not later than one hundred twenty (120) days after
the close of each of the Company's fiscal years during the option
term, upon request, such financial and other information
regarding the Company as comprises the annual report to the
stockholders of the Company provided for in the bylaws of the
Company.
(d) Nothing in the Plan or any instrument executed or
option granted pursuant thereto shall confer upon any eligible
employee or optionee any right to continue in the employ of the
Company or any Affiliate (or to continue acting as a consultant
or director) or shall affect the right of the Company or any
Affiliate to terminate the employment or consulting relationship
or directorship of any eligible employee or optionee with or
without cause. In the event that an optionee is permitted or
otherwise entitled to take a leave of absence, the Company shall
have the unilateral right to (1) determine whether such leave of
absence will be treated as a termination of the optionee's
Continuous Service for purposes of subparagraph 6(g) hereof and
corresponding provisions of any outstanding options, and (2)
suspend or otherwise delay the time or times at which the shares
subject to the option would otherwise vest.
10. ADJUSTMENTS UPON CHANGES IN STOCK.
(a) If any change is made in the stock subject to the
Plan, or subject to any option granted under the Plan (through
merger, consolidation, reorganization, recapitalization, stock
dividend, dividend in property other than cash, stock split,
liquidating dividend, combination of shares, exchange of shares,
change in corporate structure or other transaction not involving
the receipt of consideration by the Company), the Plan and
outstanding options will be appropriately adjusted in the
class(es) and maximum number of shares subject to the Plan and
the class(es) and number of shares and price per share of stock
subject to outstanding options, and the maximum number of shares
subject to award to any person during any calendar year pursuant
to subparagraph 5(d). Such adjustments shall be made by the
Board, the determination of which shall be final, binding and
conclusive. (The conversion of any convertible securities of the
Company shall not be treated as a "transaction not involving the
receipt of consideration by the Company".)
(b) In the event of: (1) a dissolution, liquidation
or sale of substantially all of the assets of the Company; (2) a
merger or consolidation in which the Company is not the surviving
corporation; (3) a reverse merger in which the Company is the
surviving corporation but the shares of the Company's common
stock outstanding immediately preceding the merger are converted
by virtue of the merger into other property, whether in the form
of securities, cash or otherwise; or (4) the acquisition by any
person, entity or group within the meaning of Section 13(d)(3) or
14(d)(2) of the Exchange Act, or any comparable successor
provisions (excluding any employee benefit plan, or related
trust, sponsored or maintained by the Company or any Affiliate of
the Company) of the beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act, or comparable
successor rule) of securities of the Company representing at
least fifty percent (50%) of the combined voting power entitled
to vote in the election of directors (collectively, a "Change in
Control"), then to the extent permitted by applicable law:
(i) any surviving corporation shall assume any options
outstanding under the Plan or shall substitute similar options
for those outstanding under the Plan, or (ii) such options
shall continue in full force and effect.
In the event any surviving corporation refuses to assume or
continue such options, or to substitute similar options for those
outstanding under the Plan, then, with respect to options held by
persons whose Continuous Service has not terminated, the time
during which such options vest and may be exercised shall be
accelerated to fifteen (15) days prior to the Change in Control
and the options terminated if not exercised prior to the Change
in Control.
(c) In the event an optionee's Continuous Service is
involuntarily terminated at any time without Cause either at the
time of or within thirteen (13) months following the occurrence
of a Change in Control, then the time during which such
optionee's option may be exercised immediately shall be
accelerated. "Cause" means misconduct, including but not limited
to: (i) conviction of any felony or any crime involving moral
turpitude or dishonesty, (ii) participation in a fraud or act of
dishonesty against the Company, (iii) conduct by the optionee
which based upon a good faith and reasonable factual
investigation and determination by the Board demonstrates gross
unfitness to serve, or (iv) intentional, material violation by
the optionee of any contract between the optionee and the Company
or any statutory duty of the optionee to the Company that is not
corrected within thirty (30) days after written notice to the
optionee thereof. Physical or mental disability shall not
constitute "Cause."
(d) In the event an optionee voluntarily terminates
the optionee's Continuous Service for Good Reason either at the
time of or within thirteen (13) months following the occurrence
of a Change in Control, then the time during which such
optionee's option may be exercised immediately shall be
accelerated. "Good Reason" means (i) reduction of the optionee's
rate of compensation as in effect immediately prior to the
occurrence of a Change in Control, (ii) failure to provide a
package of welfare benefit plans which, taken as a whole,
provides substantially similar benefits to those in which the
optionee is entitled to participate immediately prior to the
occurrence of the Change in Control (except that employee
contributions may be raised to the extent of any cost increases
imposed by third parties) or any action by the Company which
would adversely affect the optionee's participation or reduce the
optionee's benefits under any of such plans, (iii) change in the
optionee's responsibilities, authority, title or office resulting
in diminution of position, excluding for this purpose an
isolated, insubstantial and inadvertent action not taken in bad
faith which is remedied by the Company promptly after notice
thereof is given by the optionee, (iv) request that the optionee
relocate to a worksite that is more than 35 miles from the
optionee's prior worksite, unless the optionee accepts such
relocation opportunity, (v) failure or refusal of a successor to
the Company to assume the Company's obligations under the
optionee's option, or (vi) material breach by the Company or any
successor to the Company of any of the material provisions of the
optionee's option.
11. AMENDMENT OF THE PLAN AND OPTIONS.
(a) The Board at any time, and from time to time, may
amend the Plan. However, except as provided in paragraph 10
relating to adjustments upon changes in stock, no amendment shall
be effective unless approved by the stockholders of the Company
to the extent stockholder approval is necessary for the Plan to
satisfy the requirements of Section 422 of the Code, Rule 16b-3
or any Nasdaq or securities exchange listing requirements.
(b) The Board may in its sole discretion submit any
other amendment to the Plan for stockholder approval, including,
but not limited to, amendments to the Plan intended to satisfy
the requirements of Section 162(m) of the Code and the
regulations promulgated thereunder regarding the exclusion of
performance-based compensation from the limit on corporate
deductibility of compensation paid to certain executive officers.
(c) It is expressly contemplated that the Board may
amend the Plan in any respect the Board deems necessary or
advisable to provide optionees with the maximum benefits provided
or to be provided under the provisions of the Code and the
regulations promulgated thereunder relating to employee incentive
stock options and/or to bring the Plan and/or incentive stock
options granted under it into compliance therewith.
(d) Rights and obligations under any option granted
before amendment of the Plan shall not be altered or impaired by
any amendment of the Plan unless (1) the Company requests the
consent of the person to whom the option was granted and (2) such
person consents in writing.
(e) The Board at any time, and from time to time, may
amend the terms of any one or more options; provided, however,
that the rights under any option shall not be impaired by any
such amendment unless (1) the Company requests the consent of the
person to whom the option was granted and (2) such person
consents in writing.
12. TERMINATION OR SUSPENSION OF THE PLAN.
(a) The Board may suspend or terminate the Plan at any
time. Unless sooner terminated, the Plan shall terminate on
October 1, 2007, which date is ten (10) years from the date the
Plan was adopted by the Board. No options may be granted under
the Plan while the Plan is suspended or after it is terminated.
(b) Rights and obligations under any option granted
while the Plan is in effect shall not be altered or impaired by
suspension or termination of the Plan, except with the consent of
the person to whom the option was granted.
13. EFFECTIVE DATE OF PLAN.
The Plan shall become effective as determined by the
Board, but no options granted under the Plan shall be exercised
unless and until the Plan has been approved by the vote or
written consent of the holders of the outstanding shares of the
Company entitled to vote, to the degree necessary under
applicable laws to obtain incentive stock option treatment under
Section 422 of the Code.
SIGMA CIRCUITS,INC.
EMPLOYEE STOCK PURCHASE PLAN
Adopted March 11, 1994
Approved by Stockholders on March 14, 1994
Amended on May 4, 1994
Approved by Stockholders on May 4, 1994
Amended on May 26, 1994
Approved by Stockholders on May 26, 1994
Amended on October 2, 1997
Approved by Stockholders on December 16, 1997
1. PURPOSE.
(a) The purpose of the Employee Stock Purchase Plan (the
"Plan") is to provide a means by which employees of Sigma
Circuits, Inc., a Delaware corporation (the "Company"), and its
Affiliates, as defined in subparagraph 1(b), which are designated
as provided in subparagraph 2(b), may be given an opportunity to
purchase stock of the Company.
(b) The word "Affiliate" as used in the Plan means any
parent corporation or subsidiary corporation of the Company, as
those terms are defined in Sections 424(e) and (f), espectively,
of the Internal Revenue Code of 1986, as amended (the "Code").
(c) The Company, by means of the Plan, seeks to retain the
services of its employees, to secure and retain the services of
new employees, and to provide incentives for such persons to
exert maximum efforts for the success of the Company.
(d) The Company intends that the rights to purchase stock
of the Company granted under the Plan be considered options
issued under an "employee stock purchase plan" as that term is
defined in Section 423(b) of the Code.
2. ADMINISTRATION.
(a) The Plan shall be administered by the Board of
Directors (the "Board") of the Company unless and until the Board
delegates administration to a Committee, as provided in
subparagraph 2(c). Whether or not the Board has delegated
administration, the Board shall have the final power to determine
all questions of policy and expediency that may arise in the
administration of the Plan.
(b) The Board shall have the power, subject to, and within
the limitations of, the express provisions of the Plan:
(i) To determine when and how rights to purchase stock
of the Company shall be granted and the provisions of each
offering of such rights (which need not be identical).
(ii) To designate from time to time which Affiliates of
the Company shall be eligible to participate in the Plan.
(iii) To construe and interpret the Plan and rights
granted under it, and to establish, amend and revoke rules and
regulations for its administration. The Board, in the exercise
of this power, may correct any defect, omission or inconsistency
in the Plan, in a manner and to the extent it shall deem
necessary or expedient to make the Plan fully effective.
(iv) To amend the Plan as provided in paragraph 13.
(v) Generally, to exercise such powers and to perform
such acts as the Board deems necessary or expedient to promote
the best interests of the Company.
(c) The Board may delegate administration of the Plan to a
Committee composed of not fewer than two (2) members of the Board
(the "Committee"). If administration is delegated to a
Committee, the Committee shall have, in connection with the
administration of the Plan, the powers theretofore possessed by
the Board, subject, however, to such resolutions, not
inconsistent with the provisions of the Plan, as may be adopted
from time to time by the Board. The Board may abolish the
Committee at any time and revest in the Board the administration
of the Plan.
3. SHARES SUBJECT TO THE PLAN.
(a) Subject to the provisions of paragraph 12 relating to
adjustments upon changes in stock, the stock that may be sold
pursuant to rights granted under the Plan shall not exceed in the
aggregate four hundred fifty thousand (450,000) shares of the
Company's common stock ("Common Stock"). If any right granted
under the Plan shall for any reason terminate without having been
exercised, the Common Stock not purchased under such right shall
again become available for the Plan.
(b) The stock subject to the Plan may be unissued shares or
reacquired shares, bought on the market or otherwise.
4. GRANT OF RIGHTS; OFFERING.
The Board or the Committee may from time to time grant or
provide for the grant of rights to purchase Common Stock of the
Company under the Plan to eligible employees (an "Offering") on a
date or dates (the "Offering Date(s)") selected by the Board or
the Committee. Each Offering shall be in such form and shall
contain such terms and conditions as the Board or the Committee
shall deem appropriate. The provisions of separate Offerings
need not be identical, but each Offering shall include (through
incorporation of the provisions of this Plan by reference in the
Offering or otherwise) the substance of the provisions contained
in paragraphs 5 through 8, inclusive.
5. ELIGIBILITY.
(a) Rights may be granted only to employees of the Company
or, as the Board or the Committee may designate as provided in
subparagraph 2(b), to employees of any Affiliate of the Company.
Except as provided in subparagraph 5(b), an employee of the
Company or any Affiliate shall not be eligible to be granted
rights under the Plan, unless, on the Offering Date, such
employee has been in the employ of the Company or any Affiliate
for such continuous period preceding such grant as the Board or
the Committee may require, but in no event shall the required
period of continuous employment be equal to or greater than two
(2) years. In addition, unless otherwise determined by the Board
or the Committee and set forth in the terms of the applicable
Offering, no employee of the Company or any Affiliate shall be
eligible to be granted rights under the Plan, unless, on the
Offering Date, such employee's customary employment with the
Company or such Affiliate is at least twenty (20) hours per week
and at least five (5) months per calendar year.
(b) The Board or the Committee may provide that each person
who, during the course of an Offering, first becomes an eligible
employee of the Company or designated Affiliate will, on a date
or dates specified in the Offering which coincides with the day
on which such person becomes an eligible employee or occurs
thereafter, receive a right under that Offering, which right
shall thereafter be deemed to be a part of that Offering. Such
right shall have the same characteristics as any rights
originally granted under that Offering, as described herein,
except that:
(i) the date on which such right is granted shall be
the "Offering Date" of such right for all purposes, including
determination of the exercise price of such right;
(ii) the Offering Period for such right shall begin on
its Offering Date and end coincident with the end of such
Offering; and
(iii) the Board or the Committee may provide that if
such person first becomes an eligible employee within a specified
period of time before the end of the Offering Period for such
Offering, he or she will not receive any right under that
Offering.
(c) No employee shall be eligible for the grant of any
rights under the Plan if, immediately after any such rights are
granted, such employee owns stock possessing five percent (5%) or
more of the total combined voting power or value of all classes
of stock of the Company or of any Affiliate. For purposes of
this subparagraph 5(c), the rules of Section 424(d) of the Code
shall apply in determining the stock ownership of any employee,
and stock which such employee may purchase under all outstanding
rights and options shall be treated as stock owned by such
employee.
(d) An eligible employee may be granted rights under the
Plan only if such rights, together with any other rights granted
under "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 stock of the Company or
any Affiliate to accrue at a rate which exceeds twenty-five
thousand dollars ($25,000) of fair market value of such stock
(determined at the time such rights are granted) for each
calendar year in which such rights are outstanding at any time.
(e) Officers of the Company and any designated Affiliate
shall be eligible to participate in Offerings under the Plan,
provided, however, that the Board may provide in an Offering that
certain employees who are highly compensated employees within the
meaning of Section 423(b)(4)(D) of the Code shall not be eligible
to participate.
6. RIGHTS; PURCHASE PRICE.
(a) On each Offering Date, each eligible employee, pursuant
to an Offering made under the Plan, shall be granted the right to
purchase up to the number of shares of Common Stock of the
Company purchasable with a percentage designated by the Board or
the Committee not exceeding fifteen percent (15%) of such
employee's Earnings (as defined in Section 7(a)) during the
period which begins on the Offering Date (or such later date as
the Board or the Committee determines for a particular Offering)
and ends on the date stated in the Offering, which date shall be
no more than twenty-seven (27) months after the Offering Date
(the "Offering Period"). In connection with each Offering made
under this Plan, the Board or the Committee shall specify a
maximum number of shares which may be purchased by any employee
as well as a maximum aggregate number of shares which may be
purchased by all eligible employees pursuant to such Offering. In
addition, in connection with each Offering which contains more
than one Purchase Date (as defined in the Offering), the Board or
the Committee may specify a maximum aggregate number of shares
which may be purchased by all eligible employees on any given
Purchase Date under the Offering. If the aggregate purchase of
shares upon exercise of rights granted under the Offering would
exceed any such maximum aggregate number, the Board or the
Committee shall make a pro rata allocation of the shares
available in as nearly a uniform manner as shall be practicable
and as it shall deem to be equitable.
(b) The purchase price of stock acquired pursuant to rights
granted under the Plan shall be not less than the lesser of:
(i) an amount equal to eighty-five percent (85%) of
the fair market value of the stock on the Offering Date; or
(ii) an amount equal to eighty-five percent (85%) of
the fair market value of the stock on the Purchase Date.
7. PARTICIPATION; WITHDRAWAL; TERMINATION.
(a) An eligible employee may become a participant in an
Offering by delivering a participation agreement to the Company
within the time specified in the Offering, in such form as the
Company provides. Each such agreement shall authorize payroll
deductions of up to the maximum percentage specified by the Board
or the Committee of such employee's Earnings during the Offering
Period. "Earnings" is defined as the total compensation paid to
an employee, including all salary, wages (including amounts
elected to be deferred by the employee, that would otherwise have
been paid, under any cash or deferred arrangement established by
the Company), overtime pay, commissions, bonuses, and other
remuneration paid directly to the employee, but excluding profit
sharing, the cost of employee benefits paid for by the Company,
education or tuition reimbursements, imputed income arising under
any Company group insurance or benefit program, traveling
expenses, business and moving expense reimbursements, income
received in connection with stock options, contributions made by
the Company under any employee benefit plan, and similar items of
compensation. The payroll deductions made for each participant
shall be credited to an account for such participant under the
Plan and shall be deposited with the general funds of the
Company. A participant may reduce (including to zero), increase
or begin such payroll deductions after the beginning of any
Purchase Period only as provided for in the Offering.
(b) At any time during an Offering Period a participant may
terminate his or her payroll deductions under the Plan and
withdraw from the Offering by delivering to the Company a notice
of withdrawal in such form as the Company provides. Such
withdrawal may be elected at any time prior to the end of the
Offering Period except as provided by the Board or the Committee
in the Offering. Upon such withdrawal from the Offering by a
participant, the Company shall distribute to such participant all
of his or her accumulated payroll deductions (reduced to the
extent, if any, such deductions have been used to acquire stock
for the participant) under the Offering, without interest, and
such participant's interest in that Offering shall be
automatically terminated. A participant's withdrawal from an
Offering will have no effect upon such participant's eligibility
to participate in any other Offerings under the Plan but such
participant will be required to deliver a new participation
agreement in order to participate in subsequent Offerings under
the Plan.
(c) Rights granted pursuant to any Offering under the Plan
shall terminate immediately upon cessation of any participating
employee's employment with the Company and any designated
Affiliate, for any reason, and the Company shall distribute to
such terminated employee all of his or her accumulated payroll
deductions (reduced to the extent, if any, such deductions have
been used to acquire stock for the terminated employee), under
the Offering, without interest.
(d) Rights granted under the Plan shall not be
transferable, and, except as provided in Section 14, shall be
exercisable only by the person to whom such rights are granted.
8. EXERCISE.
(a) On each purchase date, as defined in the relevant
Offering (a "Purchase Date"), each participant's accumulated
payroll deductions and other additional payments specifically
provided for in the Offering (without any increase for interest)
will be applied to the purchase of whole shares of stock of the
Company, up to the maximum number of shares permitted pursuant to
the terms of the Plan and the applicable Offering, at the
purchase price specified in the Offering. No fractional shares
shall be issued upon the exercise of rights granted under the
Plan. The amount, if any, of accumulated payroll deductions
remaining in each participant's account after the purchase of
shares which is less than the amount required to purchase one
share of stock on the final Purchase Date of an Offering shall be
held in each such participant's account for the purchase of
shares under the next Offering under the Plan, unless such
participant withdraws from such next Offering, as provided in
subparagraph 7(b), or is no longer eligible to be granted rights
under the Plan, as provided in paragraph 5, in which case such
amount shall be distributed to the participant after the final
Purchase Date of the Offering, without interest. The amount, if
any, of accumulated payroll deductions remaining in any
participant's account after the purchase of shares which is equal
to the amount required to purchase whole shares of stock on the
final Purchase Date of an Offering shall be distributed in full
to the participant after such Purchase Date, without interest.
(b) No rights granted under the Plan may be exercised to
any extent unless the Plan (including rights granted thereunder)
is covered by an effective registration statement pursuant to the
Securities Act of 1933, as amended (the "Securities Act"). If on
a Purchase Date of any Offering hereunder the Plan is not so
registered, no rights granted under the Plan or any Offering
shall be exercised on said Purchase Date and the Purchase Date
shall be delayed until the Plan is subject to such an effective
registration statement, except that the Purchase Date shall not
be delayed more than two (2) months and the Purchase Date shall
in no event be more than twenty-seven (27) months from the
Offering Date. If on the Purchase Date of any Offering
hereunder, as delayed to the maximum extent permissible, the Plan
is not registered, no rights granted under the Plan or any
Offering shall be exercised and all payroll deductions
accumulated during the Offering Period (reduced to the extent, if
any, such deductions have been used to acquire stock) shall be
distributed to the participants, without interest.
9. COVENANTS OF THE COMPANY.
(a) During the terms of the rights granted under the Plan,
the Company shall keep available at all times the number of
shares of stock required to satisfy such rights.
(b) The Company shall seek to obtain from each regulatory
commission or agency having jurisdiction over the Plan such
authority as may be required to issue and sell shares of stock
upon exercise of the rights granted under the Plan. If, after
reasonable efforts, the Company is unable to obtain from any such
regulatory commission or agency the authority which counsel for
the Company deems necessary for the lawful issuance and sale of
stock under the Plan, the Company shall be relieved from any
liability for failure to issue and sell stock upon exercise of
such rights unless and until such authority is obtained.
10. USE OF PROCEEDS FROM STOCK.
Proceeds from the sale of stock pursuant to rights granted
under the Plan shall constitute general funds of the Company.
11. RIGHTS AS A STOCKHOLDER.
A participant shall not be deemed to be the holder of, or to
have any of the rights of a holder with respect to, any shares
subject to rights granted under the Plan unless and until the
participant's shareholdings acquired upon exercise of rights
hereunder are recorded in the books of the Company.
12. ADJUSTMENTS UPON CHANGES IN STOCK.
(a) If any change is made in the stock subject to the Plan,
or subject to any rights granted under the Plan (through merger,
consolidation, reorganization, recapitalization, stock dividend,
dividend in property other than cash, stock split, liquidating
dividend, combination of shares, exchange of shares, change in
corporate structure or otherwise), the Plan and outstanding
rights will be appropriately adjusted in the class(es) and
maximum number of shares subject to the Plan and the class(es)
and number of shares and price per share of stock subject to
outstanding rights.
(b) In the event of: (1) a dissolution or liquidation of
the Company; (2) a merger or consolidation in which the Company
is not the surviving corporation; (3) a reverse merger in which
the Company is the surviving corporation but the shares of the
Company's Common Stock outstanding immediately preceding the
merger are converted by virtue of the merger into other property,
whether in the form of securities, cash or otherwise; or (4) any
other capital reorganization in which more than fifty percent
(50%) of the shares of the Company entitled to vote are
exchanged, then, as determined by the Board in its sole
discretion (i) any surviving corporation may assume outstanding
rights or substitute similar rights for those under the Plan,
(ii) such rights may continue in full force and effect, or (iii)
participants' accumulated payroll deductions may be used to
purchase Common Stock immediately prior to the transaction
described above and the participants' rights under the ongoing
Offering terminated.
13. AMENDMENT OF THE PLAN.
(a) The Board at any time, and from time to time, may amend
the Plan. However, except as provided in paragraph 12 relating
to adjustments upon changes in stock, no amendment shall be
effective unless approved by the stockholders of the Company
within twelve (12) months before or after the adoption of the
amendment, where the amendment will:
(i) Increase the number of shares reserved for rights
under the Plan;
(ii) Modify the provisions as to eligibility for
participation in the Plan (to the extent such modification
requires stockholder approval in order for the Plan to obtain
employee stock purchase plan treatment under Section 423 of the
Code or to comply with the requirements of Rule 16b-3 promulgated
under the Securities Exchange Act of 1934, as amended ("Rule 16b-
3")); or
(iii) Modify the Plan in any other way if such
modification requires stockholder approval in order for the Plan
to obtain employee stock purchase plan treatment under Section
423 of the Code or to comply with the requirements of Rule 16b-3.
It is expressly contemplated that the Board may amend the Plan in
any respect the Board deems necessary or advisable to provide
eligible employees with the maximum benefits provided or to be
provided under the provisions of the Code and the regulations
promulgated thereunder relating to employee stock purchase plans
and/or to bring the Plan and/or rights granted under it into
compliance therewith.
(b) Rights and obligations under any rights granted before
amendment of the Plan shall not be altered or impaired by any
amendment of the Plan, except with the consent of the person to
whom such rights were granted or except as necessary to comply
with any laws or governmental regulation.
14. DESIGNATION OF BENEFICIARY.
(a) A participant may file a written designation of a
beneficiary who is to receive any shares and cash, if any, from
the participant's account under the Plan in the event of such
participant's death subsequent to the end of an Offering but
prior to delivery to him of such shares and cash. In addition, a
participant may file a written designation of a beneficiary who
is to receive any cash from the participant's account under the
Plan in the event of such participant's death during an Offering
Period.
(b) Such designation of beneficiary may be changed by the
participant at any time by written notice. In the event of the
death of a participant and in the absence of a beneficiary
validly designated under the Plan who is living 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 Company), the Company, in its
discretion, may deliver such shares and/or cash to the spouse or
to any one or more dependents or relatives of the participant, or
if no spouse, dependent or relative is known to the Company, then
to such other person as the Company may designate.
15. TERMINATION OR SUSPENSION OF THE PLAN.
(a) The Board may suspend or terminate the Plan at any
time. Unless sooner terminated, the Plan shall terminate on
December 31, 2004. No rights may be granted under the Plan while
the Plan is suspended or after it is terminated.
(b) Rights and obligations under any rights granted while
the Plan is in effect shall not be altered or impaired by
suspension or termination of the Plan, except with the consent of
the person to whom such rights were granted or except as
necessary to comply with any laws or governmental regulation.
16. EFFECTIVE DATE OF PLAN.
The Plan shall become effective as determined by the Board,
but no rights granted under the Plan shall be exercised unless
and until the Plan has been approved by the stockholders of the
Company.
