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Exhibit A
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SYNTHETECH, INC.
2000 EMPLOYEE STOCK PURCHASE PLAN
SECTION 1. PURPOSE
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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
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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
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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.
"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.
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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, 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.
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"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
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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
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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.
SECTION 5. OFFERING DATES
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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,
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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
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(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.
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(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 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
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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
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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.
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
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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
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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
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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.
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.
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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 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.
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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
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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.
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SECTION 11. CHANGES IN WITHHOLDING AMOUNTS AND VOLUNTARY WITHDRAWAL
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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 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.
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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.
(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
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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,
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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
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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.
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.
<PAGE> 14
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> 15
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,
<PAGE> 16
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 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.
