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EXHIBIT 99.2
SYNTHETECH, INC.
2000 EMPLOYEE STOCK PURCHASE PLAN
SECTION 1. PURPOSE
The purposes of the Synthetech, Inc. 2000 Employee Stock
Purchase Plan (the "Plan") are (a) to assist employees of
Synthetech, Inc., an Oregon corporation (the "Company"), and its
designated subsidiaries in acquiring a stock ownership interest
in the Company pursuant to a plan that is intended to qualify as
an "employee stock purchase plan" under Section 423 of the
Internal Revenue Code of 1986, as amended, and (b) to encourage
employees to remain in the employ of the Company and its
subsidiaries.
SECTION 2. DEFINITIONS
For purposes of the Plan, the following terms shall be
defined as set forth below:
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended.
"Committee" means the Company's Compensation Committee or
any other Board committee appointed by the Board to administer
the Plan.
"Common Stock" means the common stock, par value $0.001 per
share, of the Company.
"Company" means Synthetech, Inc., an Oregon corporation.
"Corporate Transaction" means either of the following
events:
(a) Consummation of any merger or consolidation of the
Company with or into another corporation or
(b) Consummation of any sale, lease, exchange or other
transfer in one transaction or a series of related transactions
of all or substantially all of the Company's outstanding
securities or all or substantially all the Company's assets other
than a transfer of the Company's assets to a majority-owned
Subsidiary Corporation of the Company;
provided that a Corporation Transaction shall not include (i) a
merger of the Company in which the holders of shares of Common
Stock immediately prior to the merger hold at least a majority of
the shares of Common Stock in the Successor Corporation
immediately after the merger, (ii) a mere reincorporation of the
Company or (iii) a transaction undertaken for the sole purpose of
creating a holding company.
"Designated Subsidiary" has the meaning set forth under the
definition of "Eligible Employee" in this Section 2.
"Eligible Compensation" means all salary and wages,
including overtime, cash bonuses and commissions. Regular cash
compensation does not include severance pay, hiring and
relocation bonuses, pay in lieu of vacations, sick leave, gain
from stock option exercises or any other special payments.
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"Eligible Employee" means any employee of the Company or a
domestic Subsidiary Corporation or any other Subsidiary
Corporation designated by the Board or the Committee (each, a
"Designated Subsidiary"), who is in the employ of the Company (or
any Designated Subsidiary) on one or more Offering Dates and who
meets the following criteria:
(a) the employee does not, immediately after the
Option is granted, own stock (as defined by the Code) possessing
5% or more of the total combined voting power or value of all
classes of stock of the Company or of a Parent Corporation or
Subsidiary Corporation of the Company;
(b) the employee's customary employment is for 20
hours or more per week; provided, however, that the Plan
Administrator may decrease this minimum hours requirement for a
future Offering;
(c) if specified by the Plan Administrator for a
future Offering, the employee customarily works a minimum of five
months per year or any lesser number of months established by the
Plan Administrator;
(d) if specified by the Plan Administrator for a
future Offering, the employee has been employed for a certain
minimum period of time as of an Offering Date; provided, however,
that any such minimum employment period may not exceed two years;
and
(e) the employee is not a highly compensated employee.
For purposes of the Plan, a "highly compensated employee" is any
employee of the Company or a Designated Subsidiary who has a base
salary in excess of $100,000 per year; provided, however, that
any salary increases that occur during an Offering shall not
disqualify an Eligible Employee from continuing participation in
a current Offering but shall disqualify such Eligible Employee
from participating in future Offerings; and provided further,
that the Plan Administrator may increase or decrease this amount
for any future Offerings within the limitations imposed by Code
Section 423.
If the Company permits any employee of a Designated Subsidiary to
participate in the Plan, then all employees of that Designated
Subsidiary who meet the requirements of this paragraph shall also
be considered Eligible Employees.
"Enrollment Period" has the meaning set forth in Section 7.1.
"ESPP Broker" has the meaning set forth in Section 10.1.
"Fair Market Value" shall be as established in good faith by
the Plan Administrator or (a) if the Common Stock is listed on
the Nasdaq National Market, the closing sales price for the
Common Stock as reported by the Nasdaq National Market on the
Offering Date or the Purchase Date, as applicable, unless the
Plan Administrator determines otherwise for a future Offering or
(b) if the Common Stock is listed on the New York Stock Exchange
or the American Stock Exchange, the closing sales price for the
Common Stock as such price is officially quoted in the composite
tape of transactions on such exchange on the Offering Date or the
Purchase Date, as applicable, unless the Plan Administrator
determines otherwise for a future Offering. If there is no such
reported price for the Common Stock for the date in question,
then such price on the last preceding date for which such price
exists shall be determinative of Fair Market Value.
"Offering" has the meaning set forth in Section 5.1.
"Offering Date" means the first day of an Offering.
"Option" means an option granted under the Plan to an
Eligible Employee to purchase shares of Common Stock.
"Parent Corporation" means any corporation, other than the
Company, in an unbroken chain of corporations ending with the
Company, if, at the time of the granting of the Option, each of
the corporations,
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other than the Company, owns stock possessing 50% or more of the
total combined voting power of all classes of stock in one of the
other corporations in such chain.
"Participant" means any Eligible Employee who has elected to
participate in an Offering in accordance with the procedures set
forth in Section 7.1 and who has not withdrawn from the Plan or
whose participation in the Plan is not otherwise terminated.
"Plan" means the Synthetech, Inc. 2000 Employee Stock
Purchase Plan.
"Purchase Date" means the last day of each Purchase Period.
"Purchase Period" has the meaning set forth in Section 5.2.
"Purchase Price" has the meaning set forth in Section 6.
"Securities Act" means the Securities Act of 1933, as
amended.
"Subscription" has the meaning set forth in Section 7.1.
"Subsidiary Corporation" means any corporation, other than
the Company, in an unbroken chain of corporations beginning with
the Company, if, at the time of the granting of the Option, each
of the corporations, other than the last corporation in the
unbroken chain, owns stock possessing 50% or more of the total
combined voting power of all classes of stock in one of the other
corporations in such chain.
SECTION 3. ADMINISTRATION
3.1 Plan Administrator
The Plan shall be administered by the Board and/or the
Committee or, if and to the extent the Board or the Committee
designates an executive officer of the Company to administer the
Plan, by such executive officer (each, the "Plan Administrator").
Any decisions made by the Plan Administrator shall be applicable
equally to all Eligible Employees.
3.2 Administration and Interpretation by the Plan Administrator
Subject to the provisions of the Plan, the Plan
Administrator shall have the authority, in its sole discretion,
to determine all matters relating to Options granted under the
Plan, including all terms, conditions, restrictions and
limitations of Options; provided, however, that all Participants
granted Options pursuant to the Plan shall have the same rights
and privileges within the meaning of Code Section 423. The Plan
Administrator shall also have exclusive authority to interpret
the Plan and may from time to time adopt, and change, rules and
regulations of general application for the Plan's administration.
The Plan Administrator's interpretation of the Plan and its rules
and regulations, and all actions taken and determinations made by
the Plan Administrator pursuant to the Plan, unless reserved to
the Board or the Committee, shall be conclusive and binding on
all parties involved or affected. The Plan Administrator may
delegate administrative duties to such of the Company's other
officers or employees as the Plan Administrator so determines.
SECTION 4. STOCK SUBJECT TO PLAN
Subject to adjustment from time to time as provided in
Section 19.1, the maximum number of shares of Common Stock that
shall be available for issuance under the Plan shall be 200,000
shares. Shares issued under the Plan shall be drawn from
authorized and unissued shares or shares subsequently acquired by
the Company.
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SECTION 5. OFFERING DATES
5.1 Offerings
(a) Except as otherwise set forth below, the Plan shall be
implemented by a series of Offerings of six months' duration
(each, an "Offering"). Offerings shall commence on February 1
and August 1 of each year and end on the next July 31 and January
31, respectively, occurring thereafter; provided, however, that
the first Offering shall begin on September 1, 2000 and shall end
on January 31, 2001.
(b) Notwithstanding the foregoing, the Plan Administrator
may establish (i) a different term for one or more future
Offerings and (ii) different commencing and ending dates for such
future Offerings; provided, however, that an Offering may not
exceed five years; and provided, further, that if the Purchase
Price may be less than 85% of the Fair Market Value of the Common
Stock on the Purchase Date, the Offering may not exceed 27
months.
(c) In the event the first or the last day of an Offering
is not a regular business day, then the first day of the Offering
shall be deemed to be the next regular business day and the last
day of the Offering shall be deemed to be the last preceding
regular business day.
5.2 Purchase Periods
(a) Each Offering shall consist of one or more consecutive
purchase periods (each, a "Purchase Period"). The last day of
each Purchase Period shall be the Purchase Date for such Purchase
Period. Except as otherwise set forth below, a Purchase Period
shall commence on [February 1 and August 1 of each year and end
on the next July 31 and January 31, respectively, occurring
thereafter; provided, however, that the Purchase Period for the
first Offering shall commence on September 1, 2000 and shall end
on January 31, 2001.
(b) Notwithstanding the foregoing, the Plan Administrator
may establish for a future Offering (i) a different term for one
or more future Purchase Periods and (ii) different commencing and
ending dates for any such Purchase Period.
(c) In the event the first or last day of a Purchase Period
is not a regular business day, then the first day of the Purchase
Period shall be deemed to be the next regular business day and
the last day of the Purchase Period shall be deemed to be the
last preceding regular business day.
5.3 Governmental Approval; Shareholder Approval
Notwithstanding any other provision of the Plan to the
contrary, an Option granted pursuant to the Plan shall be subject
to (a) obtaining all necessary governmental approvals and
qualifications for the Plan, the issuance of Options and the sale
of Common Stock pursuant to the Plan and (b) obtaining
shareholder approval of the Plan.
SECTION 6. PURCHASE PRICE
(a) The purchase price (the "Purchase Price") at which
Common Stock may be acquired in an Offering pursuant to the
exercise of all or any portion of an Option shall be 85% of the
lesser of (i) the Fair Market Value of the Common Stock on the
Offering Date of such Offering and (ii) the Fair Market Value of
the Common Stock on the Purchase Date.
(b) Notwithstanding the foregoing, if an increase in the
number of shares authorized for issuance under the Plan is
approved and all or a portion of such additional shares are to be
issued during one or more Offerings that are underway at the time
of shareholder approval of such increase (the "Additional
Shares"), then, if as of the date of such shareholder approval,
the Fair Market Value of a share of Common Stock is higher than
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the Fair Market Value on the Offering Date for any such Offering,
the Purchase Price for the Additional Shares shall be 85% of the
lesser of (i) the Common Stock's Fair Market Value on the date of
such shareholder approval and (ii) the Fair Market Value of the
Common Stock on the Purchase Date.
SECTION 7. PARTICIPATION IN THE PLAN
7.1 Initial Participation
An Eligible Employee shall become a Participant on the first
Offering Date after satisfying the eligibility requirements and
delivering to the Plan Administrator during the enrollment period
established by the Plan Administrator (the "Enrollment Period") a
subscription (the "Subscription"):
(a) indicating the Eligible Employee's election to
participate in the Plan;
(b) authorizing payroll deductions and stating the amount
to be deducted regularly from the Participant's pay; and
(c) authorizing the purchase of Common Stock for the
Participant in each Purchase Period.
An Eligible Employee who does not deliver a Subscription as
provided above during the Enrollment Period shall not participate
in the Plan for that Offering or for any subsequent Offering
unless such Eligible Employee subsequently enrolls in the Plan by
filing a Subscription with the Company during the Enrollment
Period for such subsequent Offering. The Company may, from time
to time, change the Enrollment Period for a future Offering as
deemed advisable by the Plan Administrator, in its sole
discretion, for the proper administration of the Plan.
Except as provided in Section 7.2, an employee who becomes
eligible to participate in the Plan after an Offering has
commenced shall not be eligible to participate in such Offering
but may participate in any subsequent Offering, provided that
such employee is still an Eligible Employee as of the
commencement of any such subsequent Offering. Eligible Employees
may not participate in more than one Offering at a time.
7.2 Alternative Initial Participation
Notwithstanding any other provision of the Plan, the Board
or the Committee may provide for a future Offering that any
employee of the Company or any Designated Subsidiary who first
meets the requirements of subparagraphs (b) through (d) of the
paragraph "Eligible Employee" in Section 2 during the course of
an Offering shall, on a date or dates specified in the Offering
which coincide with the day on which such person first meets such
requirements or which occurs on a specified date thereafter,
receive an Option under that Offering which Option shall
thereafter be deemed to be a part of that Offering. Such Option
shall have the same characteristics as any Options originally
granted under that Offering, except that
(a) the date on which such Option is granted shall be the
"Offering Date" of such Option for all purposes, including
determining the Purchase Price of such Option; provided, however,
that if the Fair Market Value of the Common Stock on the date on
which such Option is granted is less than the Fair Market Value
of Common Stock on the first day of the Offering, then, solely
for the purpose of determining the Purchase Price of such Option,
the first day of the Offering shall be the "Offering Date" for
such Option;
(b) the Purchase Period(s) for such Option shall begin on
its Offering Date and end coincident with the remaining Purchase
Date(s) for such Offering; and
(c) the Board or the Committee may provide that if such
person first meets such requirements within a specified period of
time before the end of a Purchase Period for such Offering, he or
she will not receive an Option for that Purchase Period.
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7.3 Continued Participation
A Participant shall automatically participate in the next
Offering until such time as such Participant ceases payroll
contributions to the Plan, withdraws from the Plan pursuant to
Section 11.3 or terminates employment as provided in Section 12.
SECTION 8. LIMITATIONS ON RIGHT TO PURCHASE SHARES
8.1 Number of Shares Purchased
(a) No Participant shall be entitled to purchase Common
Stock under the Plan (or any other employee stock purchase plan
that is intended to meet the requirements of Code Section 423
sponsored by the Company, a Parent Corporation or a Subsidiary
Corporation) with a Fair Market Value exceeding $25,000 (such
value determined as of the Offering Date for each Offering or
such other limit as may be imposed by the Code) in any calendar
year in which a Participant participates in the Plan (or other
employee stock purchase plan described in this Section 8.1).
(b) No Participant shall be entitled to purchase Common
Stock with a Fair Market Value exceeding $25,000 (or such other
amount as the Board or the Committee shall specify for a future
Offering) under the Plan in any single Purchase Period (such
value determined as of the Offering Date for each Offering). In
addition, no more than an aggregate of 50,000 shares may be
purchased by all Participants in any single calendar year under
the Plan.
(c) For a future Offering, the Board or the Committee may
specify a different maximum aggregate amount of shares that may
be purchased by all Participants, as well as a maximum amount of
shares that may be purchased by any Participant, pursuant to such
Offering. In addition, for a future Offering with more than one
Purchase Date, the Board or the Committee may specify a maximum
aggregate number of shares that may be purchased by all
Participants on any given Purchase Date under the Offering.
8.2 Pro Rata Allocation
In the event the number of shares of Common Stock that might
be purchased by all Participants exceeds the number of shares of
Common Stock available in the Plan, in a single calendar year or
in an Offering, the Plan Administrator shall make a pro rata
allocation of the remaining shares of Common Stock in as uniform
a manner as shall be practicable and as the Plan Administrator
shall determine to be equitable. Fractional shares may not be
issued under the Plan unless the Plan Administrator determines
otherwise for a future Offering.
SECTION 9. PAYMENT OF PURCHASE PRICE
9.1 General Rules
Subject to Section 9.11, Common Stock that is acquired
pursuant to the exercise of all or any portion of an Option may
be paid for only by means of payroll deductions from the
Participant's Eligible Compensation. Except as set forth in this
Section 9, the amount of compensation to be withheld from a
Participant's Eligible Compensation during each pay period shall
be determined by the Participant's Subscription.
9.2 Percent Withheld
The amount of payroll withholding for each Participant for
purchases pursuant to the Plan during any pay period shall be at
least 1% but shall not exceed 15% of the Participant's Eligible
Compensation for such pay period (or such other higher percentage
as the Plan Administrator may establish from time to time for a
future Offering). Amounts shall be withheld in whole percentages
only.
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9.3 Payroll Deductions
Payroll deductions shall commence on the first payday
following the Offering Date and shall continue through the last
payday of the Offering unless sooner altered or terminated as
provided in the Plan.
9.4 Memorandum Accounts
Individual accounts shall be maintained for each Participant
for memorandum purposes only. All payroll deductions from a
Participant's compensation shall be credited to such account but
shall be deposited with the general funds of the Company. All
payroll deductions received or held by the Company may be used by
the Company for any corporate purpose.
9.5 No Interest
No interest shall be paid on payroll deductions received or
held by the Company.
9.6 Acquisition of Common Stock
On each Purchase Date of an Offering, each Participant shall
automatically acquire, pursuant to the exercise of the
Participant's Option, the number of shares of Common Stock
arrived at by dividing the total amount of the Participant's
accumulated payroll deductions for the Purchase Period by the
Purchase Price; provided, however, that the number of shares of
Common Stock purchased by the Participant shall not exceed the
number of whole shares of Common Stock so determined, unless the
Plan Administrator has determined for a future Offering that
fractional shares may be issued under the Plan; and provided,
further, that the number of shares of Common Stock purchased by
the Participant shall not exceed the number of shares for which
Options have been granted to the Participant pursuant to
Section 8.1.
9.7 Refund of Excess Amounts
Any cash balance remaining in the Participant's account at
the termination of a Purchase Period that is not sufficient to
purchase a whole share of Common Stock shall be applied to the
purchase of Common Stock in the next Purchase Period, provided
the Participant participates in the next Purchase Period and the
purchase complies with Section 8.1. Any other amounts remaining
in a Participant's account after a Purchase Date shall be
refunded to the Participant as soon as practical after the
Purchase Date without the payment of any interest.
9.8 Withholding Obligations
At the time the Option is exercised, in whole or in part, or
at the time some or all the Common Stock is disposed of, the
Participant shall make adequate provision for federal, state,
local and foreign withholding obligations of the Company, if any,
that arise upon exercise of the Option or upon disposition of the
Common Stock. The Company may withhold from the Participant's
compensation the amount necessary to meet such withholding
obligations.
9.9 Termination of Participation
No Common Stock shall be purchased on behalf of a
Participant on a Purchase Date if his or her participation in the
Offering or the Plan has terminated on or before such Purchase
Date.
9.10 Procedural Matters
The Company may, from time to time, establish
(a) limitations on the frequency and/or number of any permitted
changes in the amount withheld during an Offering, as set forth
in Section 11.1, (b) an exchange ratio applicable to amounts
withheld in a currency other than U.S. dollars, (c) payroll
withholding in excess of the
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amount designated by a Participant in order to adjust for delays
or mistakes in the Company's processing of properly completed
withholding elections, and (d) such other limitations or
procedures as deemed advisable by the Company in the Company's
sole discretion that are consistent with the Plan and in
accordance with the requirements of Code Section 423.
9.11 Leaves of Absence
During leaves of absence approved by the Company and meeting
the requirements of the applicable Treasury Regulations
promulgated under the Code, a Participant may elect to continue
participation in the Plan by delivering cash payments to the
Company on the Participant's normal paydays equal to the amount
of his or her payroll deduction under the Plan had the
Participant not taken a leave of absence. Currently, the
Treasury Regulations provide that a Participant may continue
participation in the Plan only during the first 90 days of a
leave of absence unless the Participant's reemployment rights are
guaranteed by statute or contract.
SECTION 10. COMMON STOCK PURCHASED UNDER THE PLAN
10.1 ESPP Broker
If the Plan Administrator designates or approves a stock
brokerage or other financial services firm (the "ESPP Broker") to
hold shares purchased under the Plan for the accounts of
Participants, the following procedures shall apply. Promptly
following each Purchase Date, the number of shares of Common
Stock purchased by each Participant shall be deposited into an
account established in the Participant's name with the ESPP
Broker. Each Participant shall be the beneficial owner of the
Common Stock purchased under the Plan and shall have all rights
of beneficial ownership in such Common Stock. A Participant
shall be free to undertake a disposition of the shares of Common
Stock in his or her account at any time, but, in the absence of
such a disposition, the shares of Common Stock must remain in the
Participant's account at the ESPP Broker until the holding period
set forth in Code Section 423 has been satisfied. With respect
to shares of Common Stock for which the holding period set forth
above has been satisfied, the Participant may move those shares
of Common Stock to another brokerage account of the Participant's
choosing or request that a stock certificate be issued and
delivered to him or her. Dividends paid in the form of shares of
Common Stock with respect to Common Stock in a Participant's
account shall be credited to such account. A Participant who is
not subject to payment of U.S. income taxes may move his or her
shares of Common Stock to another brokerage account of his or her
choosing or request that a stock certificate be delivered to him
or her at any time, without regard to the Code Section 423
holding period.
10.2 Notice of Disposition
By entering the Plan, each Participant agrees to promptly
give the Company notice of any Common Stock disposed of within
the later of one year from the Purchase Date and two years from
the Offering Date for such Common Stock, showing the number of
such shares disposed of and the Purchase Date and Offering Date
for such Common Stock. This notice shall not be required if and
so long as the Company has a designated ESPP Broker.
SECTION 11. CHANGES IN WITHHOLDING AMOUNTS AND
VOLUNTARY WITHDRAWAL
11.1 Changes in Withholding Amounts
(a) Unless the Plan Administrator establishes otherwise for
a future Offering, during a Purchase Period, a Participant may
elect to reduce payroll contributions to 0% by completing and
filing with the Company an amended Subscription authorizing
cessation of payroll deductions. The change in rate shall be
effective as of the beginning of the next calendar month
following the date of filing the amended Subscription if the
amended Subscription is filed at least ten days prior to such
date (the "Change Notice Date") and, if not, as of the
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beginning of the next succeeding calendar month. All payroll
deductions accrued by a Participant as of a Change Notice Date
shall continue to be applied toward the purchase of Common Stock
on the Purchase Date, unless a Participant withdraws from an
Offering or the Plan, pursuant to Section 11.2 or Section 11.3
below. An amended Subscription shall remain in effect until the
Participant changes such Subscription in accordance with the
terms of the Plan.
(b) Unless the Plan Administrator determines otherwise for
a future Offering, a Participant may elect to increase or
decrease the amount to be withheld from his or her compensation
for future Purchase Periods by filing with the Plan Administrator
an amended Subscription; provided, however, that notice of such
election must be delivered to the Plan Administrator at least ten
days prior to such Purchase Period in such form and in accordance
with such terms as the Plan Administrator may establish for an
Offering. An amended Subscription shall remain in effect until
the Participant changes such Subscription in accordance with the
terms of the Plan.
(c) Notwithstanding the foregoing, to the extent necessary
to comply with Code Section 423 and Section 8.1, a Participant's
payroll deductions may be decreased to 0% during any Purchase
Period if the aggregate of all payroll deductions accumulated
with respect to one or more Purchase Periods ending within the
same calendar year exceeds (i) $25,000 of Fair Market Value of
the Common Stock determined as of the first day of an Offering
($21,250 to the extent the Purchase Price may be 85% of the Fair
Market Value of the Common Stock on the Offering Date of the
Offering) or (ii) the aggregate amount of shares of Common Stock
available for purchase by all Participants in any single calendar
year. Payroll deductions shall re-commence at the rate provided
in such Participant's Subscription at the beginning of the first
Purchase Period that is scheduled to end in the following
calendar year, unless the Participant terminates participation in
an Offering or the Plan as provided in Section 11.2 or
Section 11.3 below or indicates otherwise in an amended
Subscription. Also notwithstanding the foregoing, a
Participant's payroll deductions may be decreased to 0% at such
time that the aggregate of all payroll deductions accumulated
with respect to a Purchase Period exceeds the amount necessary to
purchase $25,000 in value of shares of Common Stock for such
Purchase Period. Payroll deductions shall re-commence at the
rate provided in such Participant's Subscription at the beginning
of the next Purchase Period, provided the Participant continues
to participate in an Offering or the Plan and such participation
complies with Section 8.1.
11.2 Withdrawal from an Offering
A Participant may withdraw from an Offering by signing and
delivering to the Plan Administrator a written notice of
withdrawal on a form provided by the Plan Administrator for such
purpose. Such withdrawal must be elected prior to the end of the
Purchase Period for which such withdrawal is to be effective or
by any other date specified by the Plan Administrator for a
future Offering. Unless otherwise indicated, withdrawal from an
Offering shall not result in a withdrawal from the Plan or any
succeeding Offering therein.
11.3 Withdrawal From the Plan
A Participant may withdraw from the Plan by signing and
delivering to the Plan Administrator a written notice of
withdrawal on a form provided by the Plan Administrator for such
purpose. Such notice must be delivered prior to the end of the
Purchase Period for which such withdrawal is to be effective or
by any other date specified by the Plan Administrator for a
future Offering.
11.4 Notice of Withdrawal; Effect of Withdrawal on Prior
Purchase Periods; Re-enrollment in the Plan
(a) The Company may, from time to time, impose a requirement
that the notice of withdrawal from an Offering or the Plan be on
file with the Plan Administrator for a reasonable period prior to
the effectiveness of the Participant's withdrawal.
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(b) If a Participant withdraws from an Offering or the Plan
after the Purchase Date for a Purchase Period of an Offering, the
withdrawal shall not affect Common Stock acquired by the
Participant in any earlier Purchase Periods.
(c) In the event a Participant voluntarily elects to
withdraw from an Offering or from the Plan, the Participant may
not resume participation in the Plan during the same Offering,
but may participate in any subsequent Offering under the Plan by
again satisfying the definition of Eligible Employee. In the
event of withdrawal from the Plan, the Participant shall also
deliver to the Plan Administrator a new Subscription in
accordance with Section 7.
11.5 Return of Payroll Deductions
Upon withdrawal from an Offering pursuant to Section 11.2 or
from the Plan pursuant to Section 11.3, the withdrawing
Participant's accumulated payroll deductions that have not been
applied to the purchase of Common Stock shall be returned as soon
as practical after the withdrawal, without the payment of any
interest, to the Participant and the Participant's interest in
the Offering shall terminate. Such accumulated payroll
deductions may not be applied to any other Offering under the
Plan.
SECTION 12. TERMINATION OF EMPLOYMENT
Termination of a Participant's employment with the Company
for any reason, including retirement, death or the failure of a
Participant to remain an Eligible Employee, shall immediately
terminate the Participant's participation in the Plan. The
payroll deductions credited to the Participant's account since
the last Purchase Date shall, as soon as practical, be returned
to the Participant or, in the case of a Participant's death, to
the Participant's legal representative or designated beneficiary
as provided in Section 13.2, and all the Participant's rights
under the Plan shall terminate. Interest shall not be paid on
sums returned to a Participant pursuant to this Section 12.
SECTION 13. RESTRICTIONS ON ASSIGNMENT
13.1 Transferability
An Option granted under the Plan shall not be transferable
and such Option shall be exercisable during the Participant's
lifetime only by the Participant. The Company will not
recognize, and shall be under no duty to recognize, any
assignment or purported assignment by a Participant of the
Participant's interest in the Plan, of his or her Option or of
any rights under his or her Option.
13.2 Beneficiary Designation
The Plan Administrator may permit a Participant to designate
a beneficiary who is to receive any shares and cash, if any, from
the Participant's account under the Plan in the event the
Participant dies after the Purchase Date for an Offering but
prior to delivery to such Participant of such shares and cash.
In addition, the Plan Administrator may permit a Participant to
designate a beneficiary who is to receive any cash from the
Participant's account under the Plan in the event that the
Participant dies before the Purchase Date for an Offering. Such
designation may be changed by the Participant at any time by
written notice to the Plan Administrator.
SECTION 14 NO RIGHTS AS SHAREHOLDER UNTIL SHARES ISSUED
With respect to shares of Common Stock subject to an Option,
a Participant shall not be deemed to be a shareholder of the
Company, and he or she shall not have any of the rights or
privileges of a shareholder. A Participant shall have the rights
and privileges of a shareholder of the Company when, but not
until, a certificate or its equivalent has been issued to the
Participant for the shares following exercise of the
Participant's Option.
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SECTION 15. LIMITATIONS ON SALE OF COMMON STOCK
PURCHASED UNDER THE PLAN
The Plan is intended to provide Common Stock for investment
and not for resale. The Company does not, however, intend to
restrict or influence any Participant in the conduct of his or
her own affairs. A Participant, therefore, may sell Common Stock
purchased under the Plan at any time he or she chooses, subject
to Company policies and any applicable federal and state
securities laws. A Participant assumes the risk of any market
fluctuations in the price of the Common Stock.
SECTION 16. AMENDMENT OR TERMINATION OF THE PLAN
(a) The Board may amend the Plan in such respects as it
shall deem advisable; provided, however, that, to the extent
required for compliance with Code Section 423 or any applicable
law or regulation, shareholder approval will be required for any
amendment that will (i) increase the total number of shares as to
which Options may be granted under the Plan, (ii) modify the
class of employees eligible to receive Options, or
(iii) otherwise require shareholder approval under any applicable
law or regulation; and provided further, that except as provided
in Section 19 and this Section 16, no amendment to the Plan shall
make any change in any Option previously granted which adversely
affects the rights of any Participant.
(b) The Plan shall continue in effect for ten years after
the date of its adoption by the Board. Notwithstanding the
foregoing, the Board may at any time and for any reason terminate
or suspend the Plan. During any period of suspension or upon
termination of the Plan, no Options shall be granted.
(c) Except as provided in Section 19, no such termination
of the Plan may affect Options previously granted, provided that
the Plan or an Offering may be terminated by the Board on a
Purchase Date or by the Board's setting a new Purchase Date with
respect to an Offering and a Purchase Period then in progress if
the Board determines that termination of the Plan and/or the
Offering is in the best interests of the Company and the
shareholders or if continuation of the Plan and/or the Offering
would cause the Company to incur adverse accounting charges as a
result of a change after the effective date of the Plan in the
generally accepted accounting rules applicable to the Plan.
SECTION 17. NO RIGHTS AS AN EMPLOYEE
Nothing in the Plan shall be construed to give any person
(including any Eligible Employee or Participant) the right to
remain in the employ of the Company or a Parent Corporation or
Subsidiary Corporation or to affect the right of the Company or a
Parent Corporation or Subsidiary Corporation to terminate the
employment of any person (including any Eligible Employee or
Participant) at any time with or without cause.
SECTION 18. EFFECT UPON OTHER PLANS
The adoption of the Plan shall not affect any other
compensation or incentive plans in effect for the Company or any
Parent Corporation or Subsidiary Corporation. Nothing in the
Plan shall be construed to limit the right of the Company, any
Parent Corporation or Subsidiary Corporation to (a) establish any
other forms of incentives or compensation for employees of the
Company, a Parent Corporation or Subsidiary Corporation or
(b) grant or assume options otherwise than under the Plan in
connection with any proper corporate purpose, including, but not
by way of limitation, the grant or assumption of options in
connection with the acquisition, by purchase, lease, merger,
consolidation or otherwise, of the business, stock or assets of
any corporation, firm or association.
<PAGE>
SECTION 19. ADJUSTMENTS
19.1 Adjustment of Shares
In the event that, at any time or from time to time, a stock
dividend, stock split, spin-off, combination or exchange of
shares, recapitalization, merger, consolidation, distribution to
shareholders other than a normal cash dividend, or other change
in the Company's corporate or capital structure results in
(a) the outstanding shares, or any securities exchanged therefor
or received in their place, being exchanged for a different
number or kind of securities of the Company or of any other
corporation or (b) new, different or additional securities of the
Company or of any other corporation being received by the holders
of shares of Common Stock, then (subject to any required action
by the Company's shareholders), the Board or the Committee, in
its sole discretion, shall make such equitable adjustments as it
shall deem appropriate in the circumstances in (i) the maximum
number and kind of shares of Common Stock subject to the Plan as
set forth in Section 4, (ii) the number and kind of securities
that are subject to any outstanding Option and the per share
price of such securities and (iii) the maximum number of shares
of Common Stock that may be purchased by a Participant in a
Purchase Period or by all Participants in a single calendar year.
The determination by the Board or the Committee as to the terms
of any of the foregoing adjustments shall be conclusive and
binding. Notwithstanding the foregoing, a merger, asset sale,
dissolution or liquidation of the Company shall not be governed
by this Section 19.1 but shall be governed by Sections 19.2 and
19.3, respectively.
19.2 Corporate Transaction
In the event of a proposed Corporate Transaction, each
outstanding Option shall be assumed or an equivalent option
substituted by the successor corporation or parent thereof (the
"Successor Corporation"). In the event that the Successor
Corporation refuses to assume or substitute for the Option, the
Offering then in progress shall be shortened by setting a new
Purchase Date. The new Purchase Date shall be a specified date
before the date of the proposed Corporate Transaction. The Board
shall notify each Participant in writing, prior to the new
Purchase Date, that the Purchase Date for the Participant's
Option has been changed to the new Purchase Date and that the
Participant's Option shall be exercised automatically on the new
Purchase Date, unless prior to such date the Participant has
withdrawn from the Offering or the Plan as provided in
Section 11.
19.3 Dissolution or Liquidation of the Company
In the event of the proposed dissolution or liquidation of
the Company, the Offering then in progress shall be shortened by
setting a new Purchase Date and shall terminate immediately prior
to the consummation of such proposed dissolution or liquidation,
unless provided otherwise by the Board. The new Purchase Date
shall be a specified date before the date of the Company's
proposed dissolution or liquidation. The Board shall notify each
Participant in writing, at least ten business days prior to the
new Purchase Date, that the Purchase Date for the Participant's
Option has been changed to the new Purchase Date and that the
Participant's Option shall be exercised automatically on the new
Purchase Date, unless prior to such date the Participant has
withdrawn from the Offering or the Plan as provided in
Section 11.
19.4 Limitations
The grant of Options shall in no way affect the Company's
right to adjust, reclassify, reorganize or otherwise change its
capital or business structure or to merge, consolidate, dissolve,
liquidate or sell or transfer all or any part of its business or
assets.
SECTION 20. REGISTRATION; CERTIFICATES FOR SHARES
Notwithstanding any other provision of the Plan, the
Company shall have no obligation to issue or deliver any shares
of Common Stock under the Plan or make any other distribution of
benefits under the Plan unless such issuance, delivery or
distribution would comply with all applicable laws (including,
without
<PAGE>
limitation, the requirements of the Securities Act), and the
applicable requirements of any securities exchange or similar
entity.
The Company shall be under no obligation to any Participant
to register for offering or resale or to qualify for exemption
under the Securities Act, or to register or qualify under state
securities laws, any shares of Common Stock, security or interest
in a security paid or issued under, or created by, the Plan, or
to continue in effect any such registrations or qualifications if
made. The Company may issue certificates for shares with such
legends and subject to such restrictions on transfer and
stop-transfer instructions as counsel for the Company deems
necessary or desirable for compliance by the Company with federal
and state securities laws.
To the extent that the Plan or any instrument evidencing
shares of Common Stock provides for issuance of stock
certificates to reflect the issuance of such shares, the issuance
may be effected on a noncertificated basis, to the extent not
prohibited by applicable law or the applicable rules of any stock
exchange.
SECTION 21. EFFECTIVE DATE
The Plan will become effective on the date the Plan is
approved by the Company's shareholders, so long as such approval
is within 12 months of the date on which the Plan was adopted by
the Board.
