<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 9, 1999.
REGISTRATION NO. ______
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DIGITAL MICROWAVE CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 77-0016028
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
170 ROSE ORCHARD WAY, SAN JOSE, CA 95134
(Address of Principal Executive Offices) (Zip Code)
DIGITAL MICROWAVE CORPORATION
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
CHARLES D. KISSNER
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
DIGITAL MICROWAVE CORPORATION
170 ROSE ORCHARD WAY
SAN JOSE, CA 95134
(Name and Address of Agent For Service)
408/943-0777
(Telephone Number, Including Area Code,
of Agent For Service)
With a copy to:
Bruce Alan Mann, Esq.
Morrison & Foerster LLP
425 Market Street
San Francisco, CA 94105
- --------------------------------------------------------------------------------
Calculation of Registration Fee
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
Number of Proposed Maximum Proposed Maximum
Title of Securities to shares to be Offering Price Per Aggregate Amount of
be Registered Registered Share Offering Price Registration Fee
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 900,000 $12.16* $10,944,000 $3,042.43
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
* Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933 on the basis of the average of the high and low price
per share of Digital Microwave Corporation's Common Stock on the Nasdaq
National Market on June 2, 1999.
<PAGE>
Part I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I of
Form S-8 (plan information and registrant information and employee plan annual
information) will be sent or given to employees as specified by Rule 428(b)(1)
of the Securities Act of 1933, as amended (the "Securities Act"). Such document
need not be filed with the Securities and Exchange Commission either as part of
this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 of the Securities Act. These documents and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Form S-8 (Part II hereof), taken together, constitute a prospectus that meets
the requirements of Section 10(a) of the Securities Act.
I-1
<PAGE>
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Digital Microwave Corporation (the "Registrant") hereby
incorporates by reference into this Registration Statement the following
documents previously filed with the Securities and Exchange Commission (the
"SEC").
(a) The Registrant's latest prospectus filed with the SEC on
September 9, 1998, pursuant to Rule 424(b) under the
Securities Act of 1933, as amended (the "Securities Act").
(b) The Registrant's latest Annual Report on Form 10-K and on
Form 10-K/A for the fiscal year ended March 31, 1998 filed
with the SEC on June 29, 1998 and July 20, 1998,
respectively, pursuant to Section 13(a) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
(c) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 1998 filed with the SEC on August 14,
1998, pursuant to Section 13(a) of the Exchange Act.
(d) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended September 30, 1998 filed with the SEC on
November 16, 1998, pursuant to Section 13(a) of the Exchange
Act.
(e) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended December 31, 1998 filed with the SEC on
February 16, 1999, pursuant to Section 13(a) of the Exchange
Act.
(f) The Registrant's Current Reports on Form 8-K dated April 3,
1998, July 29, 1998 and October 20, 1998, each filed pursuant
to Section 13(a) of the Exchange Act.
(g) The Registrant's Registration Statement No. 0-15895 on Form
8-A filed with the SEC on May 22, 1987, in which there is
described the terms, rights and provisions applicable to the
Registrant's outstanding Common Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the
date of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration
II-1
<PAGE>
Statement to the extent that a statement contained herein or in any subsequently
filed document which also is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTOR AND OFFICERS
The Registrant's Restated Certificate of Incorporation provides
that no director of the Registrant will be personally liable to the Registrant
or any of its stockholders for monetary damages arising from the director's
breach of his fiduciary duties. However, such exemption from liability does not
apply with respect to any action in which the director would be liable under
Section 174 of Title 8 of the Delaware General Corporation Law ("Delaware Law"),
nor does it apply with respect to any liability in which the director (i)
breached his duty of loyalty to the Registrant; (ii) did not act in good faith
or, in failing to act, did not act in good faith; (iii) acted in a manner
involving intentional misconduct or knowing violation of law or, in failing to
act, acted in a manner involving intentional misconduct or knowing violation of
law; or (iv) derived an improper personal benefit.
Pursuant to the provisions of Section 145 of Delaware Law, the
Registrant as a Delaware corporation has the power to indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding (other than an action by or in the right
of the Registrant) by reason of the fact that he or she is or was a director,
officer, employee or agent of the Registrant or of any corporation, partnership,
joint venture, trust or other enterprise for which he or she is or was serving
in such capacity at the request of the Registrant, against any and all expenses,
judgments, fines and amounts paid in settlement which were reasonably incurred
by him or her in connection with such action, suit or proceeding. The power to
indemnify applies only if such person acted in good faith and in a manner he or
she reasonably believed to be in the best interests, or not opposed to the best
interests, of the Registrant and, with respect to any criminal action or
proceeding, if he or she had no reasonable cause to believe his or her conduct
was unlawful.
The power to indemnify also applies to actions brought by or in
the right of the Registrant, but only to the extent of defense and settlement
expenses and not to the satisfaction of a judgment or settlement of the claim
itself. In such actions, however, no indemnification will be made if there is
any adjudication of negligence or misconduct, unless the court, in its
discretion, finds that in the light of all the circumstances indemnification
should apply.
II-2
<PAGE>
To the extent any such person is successful in the defense of the
actions referred to above, such person is entitled pursuant to Section 145 of
Delaware Law to indemnification as described above. Section 145 also grants the
power to advance litigation expenses upon receipt of an undertaking to reply
such advances in the event no right to indemnification is subsequently shown. A
corporation may also obtain insurance at its expense to protect anyone who might
be indemnified, or has a right to insist on indemnification, under the statute.
The Registrant has entered into indemnification agreements with
its directors and certain officers which provide for indemnification to the
fullest extent permitted by Delaware Law, including Section 145 thereof. The
Registrant may also enter into similar agreements from time to time with future
directors and/or present or future officers of the Registrant.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<C> <C>
5.1 Opinion of Morrison & Foerster LLP as to the legality of the
securities being registered.
23.1 Consent of Arthur Andersen LLP, Independent Public
Accountants.
23.2 Consent of Morrison & Foerster LLP (contained in the opinion
of counsel filed as Exhibit 5.1 to this Registration
Statement).
24.1 Power of Attorney (set forth on the signature page of this
Registration Statement).
99.1 Digital Microwave Corporation 1999 Employee Stock Purchase
Plan.
</TABLE>
ITEM 9. UNDERTAKINGS
A. The undersigned Registrant hereby undertakes: (1) to file,
during any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement (i) to include any prospectus required
by Section 10(a)(3) of the Securities Act, (ii) to reflect in the prospectus any
facts or events arising after the effective date of this Registration Statement
(or the most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth in
this Registration Statement, and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement, provided, however, that clauses (1)(i) and (1)(ii) shall
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of
II-3
<PAGE>
the Exchange Act that are incorporated by reference into this Registration
Statement; (2) that for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and (3) to remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold upon the termination of the Registrant's 1999 Non-Officer Employee
Restricted Stock Purchase Plan.
B. The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference into this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or controlling persons of
the Registrant pursuant to the indemnity provisions summarized in Item 6 above
or otherwise, the Registrant has been informed that in the opinion of the SEC
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 San Jose, State of California, on June 9, 1999.
DIGITAL MICROWAVE CORPORATION
By: /s/ CHARLES D. KISSNER
----------------------------------
Charles D. Kissner
Chairman of the Board and
Chief Executive Officer
II-4
<PAGE>
POWER OF ATTORNEY AND ADDITIONAL SIGNATURES
Each person whose signature appears below constitutes and appoints
Charles D. Kissner and Carl A. Thomsen, and each of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments to this Registration Statement,
including post-effective amendments, 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 full power
and authority to do so and perform each and every act and thing requisite and
necessary to be done in and about the premises, 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 their substitutes, may lawfully do or
cause to be done by virtue thereof.
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 date indicated.
<TABLE>
<CAPTION>
Signature Title Date
- -------------------------------------- --------------------------------------- ---------------------
<S> <C> <C>
/s/ CHARLES D. KISSNER
- --------------------------------------
Charles D. Kissner Chairman of the Board and June 9, 1999
Chief Executive Officer
/s/ RICHARD C. ALBERDING
- --------------------------------------
Richard C. Alberding Director June 9, 1999
/s/ PAUL S. BACHOW
- --------------------------------------
Paul S. Bachow Director June 9, 1999
/s/ JOHN W. COMBS
- --------------------------------------
John W. Combs Director June 9, 1999
/s/ CLIFFORD H. HIGGERSON
- --------------------------------------
Clifford H. Higgerson Director June 9, 1999
/s/ JAMES D. MEINDL
- --------------------------------------
James D. Meindl Director June 9, 1999
/s/ V. FRANK MENDICINO
- --------------------------------------
V. Frank Mendicino Director June 9, 1999
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
- -------------------------------------- --------------------------------------- ---------------------
<S> <C> <C>
/s/ BILLY B. OLIVER
- --------------------------------------
Billy B. Oliver Director June 9, 1999
/s/ HOWARD ORINGER
- --------------------------------------
Howard Oringer Director June 9, 1999
/s/ CARL A. THOMSEN
- --------------------------------------
Carl A. Thomsen Vice President, Chief Financial Officer June 9, 1999
and Secretary (Principal Financial and
Accounting Officer)
</TABLE>
II-6
<PAGE>
EXHIBIT 5.1
June 9, 1999
Digital Microwave Corporation
170 Rose Orchard Way
San Jose, California 95134
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on
Form S-8 to be filed by Digital Microwave Corporation, a Delaware corporation
(the "Company"), with the Securities and Exchange Commission in connection with
the registration under the Securities Act of 1933, as amended, of 900,000 shares
of the Company's common stock, $0.01 par value per share (the "Common Stock").
As counsel to the Company, we have examined the proceedings taken
by the Company in connection with the reservation of the 900,000 additional
shares of the Common Stock to be reserved for issuance under the Company's 1999
Employee Stock Purchase Plan.
It is our opinion that the 900,000 shares of Common Stock which
may be issued and sold by the Company, when issued and sold in the manner
referred to in the Registration Statement, will be legally and validly issued,
fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the
Registration Statement and further consent to all references to us in the
Registration Statement and any further amendments thereto.
Very truly yours,
/s/ MORRISON & FOERSTER LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our reports dated
April 21, 1998 included in or incorporated by reference in Digital Microwave
Corporation's Form 10-K for the year ended March 31, 1998.
/s/ ARTHUR ANDERSEN LLP
San Jose, California
June 8, 1999
<PAGE>
DIGITAL MICROWAVE CORPORATION
1999 EMPLOYEE STOCK PURCHASE PLAN
The following constitute the provisions of the 1999 Employee Stock
Purchase Plan of Digital Microwave Corporation.
1. PURPOSE. The purpose of the Plan is to provide employees of the
Company and its Designated Parents or Subsidiaries with an opportunity to
purchase Common Stock of the Company through accumulated payroll deductions. It
is the intention of the Company to have the Plan qualify as an "Employee Stock
Purchase Plan" under Section 423 of the Code. The provisions of the Plan,
accordingly, shall be construed so as to extend and limit participation in a
manner consistent with the requirements of that section of the Code.
2. DEFINITIONS. As used herein, the following definitions shall apply:
(a) "APPLICABLE LAWS" means the legal requirements relating to the
administration of employee stock purchase plans, if any, under applicable
provisions of federal securities laws, state corporate and securities laws, the
Code, the rules of any applicable stock exchange or national market system, and
the rules of any foreign jurisdiction applicable to participation in the Plan by
residents therein.
(b) "BOARD" means the Board of Directors of the Company.
(c) "CHANGE IN CONTROL" means a change in ownership or control of
the Company effected through the direct or indirect acquisition by any person or
related group of persons (other than an acquisition from or by the Company or by
a Company-sponsored employee benefit plan or by a person that directly or
indirectly controls, is controlled by, or is under common control with, the
Company) of beneficial ownership (within the meaning of Rule 13d-3 of the
Exchange Act) of securities possessing more than fifty percent (50%) of the
total combined voting power of the Company's outstanding securities.
(d) "CODE" means the Internal Revenue Code of 1986, as amended.
(e) "COMMON STOCK" means the common stock of the Company.
(f) "COMPANY" means Digital Microwave Corporation, a Delaware
corporation.
(g) "COMPENSATION" means an Employee's base salary from the Company
or one or more Designated Parents or Subsidiaries, including such amounts of
base salary as are deferred by the Employee (i) under a qualified cash or
deferred arrangement described in Section 401(k) of the Code, or (ii) to a plan
qualified under Section 125 of the Code. Compensation does not include
overtime, bonuses, annual awards, other incentive payments, reimbursements or
other expense allowances, fringe benefits (cash or noncash), moving expenses,
deferred
1
<PAGE>
compensation, contributions (other than contributions described in the first
sentence) made on the Employee's behalf by the Company or one or more Designated
Parents or Subsidiaries under any employee benefit or welfare plan now or
hereafter established, and any other payments not specifically referenced in the
first sentence.
(h) "CORPORATE TRANSACTION" means any of the following
transactions:
(1) a merger or consolidation in which the Company is not the
surviving entity, except for a transaction the principal
purpose of which is to change the state in which the
Company is incorporated;
(2) the sale, transfer or other disposition of all or
substantially all of the assets of the Company (including
the capital stock of the Company's subsidiary
corporations) in connection with complete liquidation or
dissolution of the Company;
(3) any reverse merger in which the Company is the surviving
entity but in which securities possessing more than fifty
percent (50%) of the total combined voting power of the
Company's outstanding securities are transferred to a
person or persons different from those who held such
securities immediately prior to such merger; or
(4) an acquisition by any person or related group of persons
(other than the Company or by a Company-sponsored
employee benefit plan) of beneficial ownership (within
the meaning of Rule 13d-3 of the Exchange Act) of
securities possessing more than fifty percent (50%) of
the total combined voting power of the Company's
outstanding securities (whether or not in a transaction
also constituting a Change in Control), but excluding any
such transaction that the Plan Administrator determines
shall not be a Corporate Transaction.
(i) "DESIGNATED PARENTS OR SUBSIDIARIES" means the Parents or
Subsidiaries which have been designated by the Plan Administrator from time to
time as eligible to participate in the Plan.
(j) "EFFECTIVE DATE" means the date the stockholders approve the
Plan. However, should any Designated Parent or Subsidiary become a
participating company in the Plan after such date, then such entity shall
designate a separate Effective Date with respect to its employee-participants.
(k) "EMPLOYEE" means any individual, including an officer or
director, who is an employee of the Company or a Designated Parent or Subsidiary
for purposes of Section 423 of the Code. For purposes of the Plan, the
employment relationship shall be treated as continuing intact while the
individual is on sick leave or other leave of absence approved by the
2
<PAGE>
individual's employer. Where the period of leave exceeds ninety (90) days and
the individual's right to reemployment is not guaranteed either by statute or by
contract, the employment relationship will be deemed to have terminated on the
ninety-first (91st) day of such leave, for purposes of determining eligibility
to participate in the Plan.
(l) "ENROLLMENT DATE" means the first day of each Offer Period.
(m) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
(n) "EXERCISE DATE" means the last day of each Purchase Period.
(o) "FAIR MARKET VALUE" means, as of any date, the value of Common
Stock determined as follows:
(1) Where there exists a public market for the Common Stock,
the Fair Market Value shall be (A) the closing price for a share of
Common Stock for the last market trading day prior to the time of the
determination (or, if no closing price was reported on that date, on
the last trading date on which a closing price was reported) on the
stock exchange determined by the Plan Administrator to be the primary
market for the Common Stock or the Nasdaq National Market, whichever
is applicable or (B) if the Common Stock is not traded on any such
exchange or national market system, the average of the closing bid and
asked prices of a share of Common Stock on the Nasdaq Small Cap Market
for the day prior to the time of the determination (or, if no such
prices were reported on that date, on the last date on which such
prices were reported), in each case, as reported in THE WALL STREET
JOURNAL or such other source as the Plan Administrator deems reliable;
or
(2) In the absence of an established market of the type
described in (1), above, for the Common Stock, the Fair Market Value
thereof shall be determined by the Plan Administrator in good faith.
(p) "OFFER PERIOD" means an Offer Period established pursuant to
Section 4 hereof.
(q) "PARENT" means a "parent corporation," whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(r) "PARTICIPANT" means an Employee of the Company or Designated
Parent or Subsidiary who is actively participating in the Plan.
(s) "PLAN" means this Employee Stock Purchase Plan.
(t) "PLAN ADMINISTRATOR" means either the Board or a committee of
the Board that is responsible for the administration of the Plan as is
designated from time to time by resolution of the Board.
3
<PAGE>
(u) "PURCHASE PERIOD" means a period specified as such pursuant to
Section 4(b).
(v) "PURCHASE PRICE" shall mean an amount equal to 85% of the Fair
Market Value of a share of Common Stock on the Enrollment Date or on the
Exercise Date, whichever is lower.
(w) "RESERVES" means the sum of the number of shares of Common
Stock covered by each option under the Plan which have not yet been exercised
and the number of shares of Common Stock which have been authorized for issuance
under the Plan but not yet placed under option.
(x) "SUBSIDIARY" means a "subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Code.
3. ELIGIBILITY.
(a) GENERAL. Any individual who is an Employee on a given
Enrollment Date shall be eligible to participate in the Plan for the Offer
Period commencing with such Enrollment Date.
(b) LIMITATIONS ON GRANT AND ACCRUAL. Any provisions of the Plan
to the contrary notwithstanding, no Employee shall be granted an option under
the Plan (i) if, immediately after the grant, such Employee (taking into account
stock owned by any other person whose stock would be attributed to such Employee
pursuant to Section 424(d) of the Code) would own stock and/or hold outstanding
options to purchase 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
Parent or Subsidiary, or (ii) which permits the Employee's rights to purchase
stock under all employee stock purchase plans of the Company and its Parents or
Subsidiaries to accrue at a rate which exceeds Twenty-Five Thousand Dollars
($25,000) worth of stock (determined at the Fair Market Value of the shares at
the time such option is granted) for each calendar year in which such option is
outstanding at any time. The determination of the accrual of the right to
purchase stock shall be made in accordance with Section 423(b)(8) of the Code
and the regulations thereunder.
(c) OTHER LIMITS ON ELIGIBILITY. Notwithstanding Subsection (a),
above, the following Employees shall not be eligible to participate in the Plan
for any relevant Offer Period: (i) Employees whose customary employment is
twenty (20) hours or less per week; (ii) Employees whose customary employment is
for not more than five (5) months in any calendar year; (iii) Employees who have
been employed for fewer than ten (10) days; (iv) Employees whose annual
Compensation is in excess of the greater of One-Hundred Seventy-Five Thousand
Dollars ($175,000) and the amount specified in Code Section 414(q)(1)(B)(i), as
adjusted by the U.S. Treasury Department from time to time; and (v) Employees
who are subject to rules or laws of a foreign jurisdiction that prohibit or make
impractical the participation of such Employees in the Plan.
4
<PAGE>
4. OFFER PERIODS.
(a) The Plan shall be implemented through overlapping or
consecutive Offer Periods until such time as (i) the maximum number of shares of
Common Stock available for issuance under the Plan shall have been purchased or
(ii) the Plan shall have been terminated in accordance with Section 19 hereof.
The maximum duration of an Offer Period shall be twenty-seven (27) months.
Initially, the Plan shall be implemented through consecutive Offer Periods of
approximately six (6) months' duration. The initial Offer Period shall commence
on a date specified by the Plan Administration and shall end on January 31,
2000. The subsequent Offer Period shall commence on February 1, 2000 and shall
end on July 31, 2000. Thereafter, the Plan shall be implemented through
consecutive Offer Periods of approximately three (3) months' duration commencing
each August 1, November 1, February 1, and May 1 with the initial such
three-month Offer Period commencing on August 1, 2000 and terminating on
October 31, 2000.
(b) A Participant shall be granted a separate option for each Offer
Period in which he or she participates. The option shall be granted on the
Enrollment Date and shall be automatically exercised on the last day of the
Offer Period. However, with respect to any Offer Period, the Plan Administrator
may specify shorter Purchase Periods within any Offer Period, such that the
option granted on the Enrollment Date shall be automatically exercised in
successive installments on the last day of each Purchase Period ending within
the Offer Period.
(c) Except as specifically provided herein, the acquisition of
Common Stock through participation in the Plan for any Offer Period shall
neither limit nor require the acquisition of Common Stock by a Participant in
any subsequent Offer Period.
5. PARTICIPATION.
(a) An eligible Employee may become a Participant in the Plan by
completing a subscription agreement authorizing payroll deductions in the form
of EXHIBIT A to this Plan and filing it with the designated payroll office of
the Company at least ten (10) business days prior to the Enrollment Date for the
Offer Period in which such participation will commence, unless a later time for
filing the subscription agreement is set by the Plan Administrator for all
eligible Employees with respect to a given Offer Period.
(b) Payroll deductions for a Participant shall commence with the
first partial or full payroll period beginning on the Enrollment Date.
6. PAYROLL DEDUCTIONS.
(a) At the time a Participant files a subscription agreement, the
Participant shall elect to have payroll deductions made during the Offer Period
in amounts between one percent (1%) and not exceeding ten percent (10%) of the
Compensation which the Participant receives during the Offer Period; provided,
however, that payroll deductions for a Participant for any six (6) month Offer
Period or Purchase Period may not exceed $5,000 and for any three (3) month
Offer Period or Purchase Period may not exceed $2,500.
5
<PAGE>
(b) All payroll deductions made for a Participant shall be credited
to the Participant's account under the Plan and will be withheld in whole
percentages only. A Participant may not make any additional payments into such
account.
(c) A Participant may discontinue participation in the Plan as
provided in Section 10, or may increase or decrease the rate of payroll
deductions during the Offer Period by completing and filing with the Company a
change of status notice in the form of EXHIBIT B to this Plan authorizing an
increase or decrease in the payroll deduction rate. Any increase or decrease in
the rate of a Participant's payroll deductions shall be effective with the first
full payroll period commencing ten (10) business days after the Company's
receipt of the change of status notice unless the Company elects to process a
given change in participation more quickly. A Participant's subscription
agreement (as modified by any change of status notice) shall remain in effect
for successive Offer Periods unless terminated as provided in Section 10. The
Plan Administrator shall be authorized to limit the number of payroll deduction
rate changes during any Offer Period.
(d) Notwithstanding the foregoing, to the extent necessary to
comply with Section 423(b)(8) of the Code and Section 3(b) herein, a
Participant's payroll deductions may be decreased to 0% at such time during any
Offer or Purchase Period which is scheduled to end during the current calendar
year (the "Current Offer or Purchase Period") that the aggregate of all payroll
deductions which were previously used to purchase stock under the Plan in a
prior Offer or Purchase Period which ended during that calendar year plus all
payroll deductions accumulated with respect to the Current Offer or Purchase
Period equal $21,250. Payroll deductions shall recommence at the rate provided
in such Participant's subscription agreement, as amended, at the beginning of
the first Offer or Purchase Period which is scheduled to end in the following
calendar year, unless terminated by the Participant as provided in Section 10.
7. GRANT OF OPTION. On the Enrollment Date, each Participant shall be
granted an option to purchase (at the applicable Purchase Price) up to a number
of shares of the Common Stock determined by dividing ten percent (10%) of such
Participant's Compensation receivable during the Offer Period by the applicable
Purchase Price; provided (i) that such option shall be subject to the
limitations set forth in Sections 3(b), 6(a) and 12 hereof, and (ii) the maximum
number of shares of Common Stock a Participant shall be permitted to purchase in
any calendar year is two thousand (2,000), shares subject to adjustment as
provided in Section 18 hereof. Exercise of the option shall occur as provided
in Section 8, unless the Participant has withdrawn pursuant to Section 10, and
the option, to the extent not exercised, shall expire on the last day of the
Offer Period.
8. EXERCISE OF OPTION. Unless a Participant withdraws from the Plan as
provided in Section 10, below, the Participant's option for the purchase of
shares will be exercised automatically on the last day of each Offer Period or
on each Exercise Date (as applicable), by applying the accumulated payroll
deductions in the Participant's account to purchase the maximum number of full
shares subject to the option by dividing such Participant's payroll deductions
accumulated prior to such date and retained in the Participant's account as of
the such date by the applicable Purchase Price. No fractional shares will be
purchased; any payroll
6
<PAGE>
deductions accumulated in a Participant's account which are not sufficient to
purchase a full share shall be carried over to the next Purchase Period or Offer
Period, whichever applies, or returned to the Participant, if the Participant
withdraws from the Plan. Notwithstanding the foregoing, any amount remaining in
a participant's account following the purchase of shares due to the application
of Section 423(b)(8) of the Code or Section 7, above, shall be returned to the
Participant and shall not be carried over to the next Offer Period. During a
Participant's lifetime, a Participant's option to purchase shares hereunder is
exercisable only by the Participant.
9. DELIVERY. Upon receipt of a request from a Participant after each
date on which a purchase of shares occurs, the Company shall arrange the
delivery to such Participant, as promptly as practicable, of a certificate
representing the shares purchased upon exercise of the Participant's option.
10. WITHDRAWAL; TERMINATION OF EMPLOYMENT.
(a) A Participant may withdraw all but not less than all the
payroll deductions credited to the Participant's account and not yet used to
exercise the Participant's option under the Plan at any time by giving written
notice to the Company in the form of EXHIBIT B to this Plan. If the Participant
elects to withdraw, all of the Participant's payroll deductions credited to the
Participant's account will be paid to such Participant as promptly as
practicable after receipt of notice of withdrawal, such Participant's option for
the Offer Period will be automatically terminated, and no further payroll
deductions for the purchase of shares will be made during the Offer Period. If
a Participant withdraws from an Offer Period, payroll deductions will not resume
at the beginning of the succeeding Offer Period unless the Participant delivers
to the Company a new subscription agreement.
(b) Upon termination of a Participant's employment relationship (as
described in Section 2(k)), the payroll deductions credited to such
Participant's account during the Offer Period but not yet used to exercise the
option will be returned to such Participant or, in the case of his/her death, to
the person or persons entitled thereto under Section 14, and such Participant's
option will be automatically terminated.
11. INTEREST. No interest shall accrue on the payroll deductions credited
to a Participant's account under the Plan.
12. STOCK.
(a) Subject to adjustment upon changes in capitalization of the
Company as provided in Section 18, the maximum number of shares of Common Stock
which shall be made available for sale under the Plan shall be 900,000 shares,
plus an annual increase to be added on the first trading day of each calendar
year, beginning with the 2000 calendar year, by an amount equal to the lesser of
(i) 250,000 shares, (ii) one quarter of one percent (0.25%) of the outstanding
shares on such date, or (iii) a lesser number of shares determined by the Plan
Administrator. If on a given Exercise Date the number of shares with respect to
which options are to be exercised exceeds the number of shares then available
under the Plan, the Plan
7
<PAGE>
Administrator shall make a pro rata allocation of the shares remaining available
for purchase in as uniform a manner as shall be practicable and as it shall
determine to be equitable.
(b) A Participant will have no interest or voting right in shares
covered by the Participant's option until such shares are actually purchased on
the Participant's behalf in accordance with the applicable provisions of the
Plan. No adjustment shall be made for dividends, distributions or other rights
for which the record date is prior to the date of such purchase.
(c) Shares to be delivered to a Participant under the Plan will be
registered in the name of the Participant or in the name of the Participant and
his or her spouse.
13. ADMINISTRATION. The Plan shall be administered by the Plan
Administrator which shall have full and exclusive discretionary authority to
construe, interpret and apply the terms of the Plan, to determine eligibility
and to adjudicate all disputed claims filed under the Plan. Every finding,
decision and determination made by the Plan Administrator shall, to the full
extent permitted by Applicable Law, be final and binding upon all persons.
14. DESIGNATION OF BENEFICIARY.
(a) Each Participant will 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.
If a Participant is married and the designated beneficiary is not the spouse,
spousal consent shall be required for such designation to be effective.
(b) Such designation of beneficiary may be changed by the
Participant (and the Participant's spouse, if any) 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 (or in existence) 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 Plan Administrator), the Plan Administrator shall deliver such shares and/or
cash to the spouse (or domestic partner, as determined by the Plan
Administrator) of the Participant, or if no spouse (or domestic partner) is
known to the Plan Administrator, then to the issue of the Participant, such
distribution to be made per stirpes (by right of representation).
15. TRANSFERABILITY. Neither payroll deductions credited to a
Participant's account nor any rights with regard to the exercise of an option or
to receive shares under the Plan may be assigned, transferred, pledged or
otherwise disposed of in any way (other than by will, the laws of descent and
distribution or as provided in Section 14 hereof) by the Participant. Any such
attempt at assignment, transfer, pledge or other disposition shall be without
effect, except that the Plan Administrator may treat such act as an election to
withdraw funds from an Offer Period in accordance with Section 10.
8
<PAGE>
16. USE OF FUNDS. All payroll deductions received or held by the Company
under the Plan may be used by the Company for any corporate purpose, and the
Company shall not be obligated to segregate such payroll deductions.
17. REPORTS. Individual accounts will be maintained for each Participant
in the Plan. Statements of account will be given to Participants at least
annually, which statements will set forth the amounts of payroll deductions, the
Purchase Price, the number of shares purchased and the remaining cash balance,
if any.
18. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION; CORPORATE TRANSACTIONS.
(a) ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. Subject to any
required action by the stockholders of the Company, the Reserves, the Purchase
Price, as well as any other terms that the Plan Administrator determines require
adjustment shall be proportionately adjusted for (i) any increase or decrease in
the number of issued shares of Common Stock resulting from a stock split,
reverse stock split, stock dividend, combination or reclassification of the
Common Stock, (ii) any other increase or decrease in the number of issued shares
of Common Stock effected without receipt of consideration by the Company, or
(iii) as the Plan Administrator may determine in its discretion, any other
transaction with respect to Common Stock to which Section 424(a) of the Code
applies or any similar transaction; provided, however that conversion of any
convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration." Such adjustment shall be made by the Plan
Administrator and its determination shall be final, binding and conclusive.
Except as the Plan Administrator determines, no issuance by the Company of
shares of stock of any class, or securities convertible into shares of stock of
any class, shall affect, and no adjustment by reason hereof shall be made with
respect to, the Reserves and the Purchase Price.
(b) CORPORATE TRANSACTIONS. In the event of a proposed Corporate
Transaction, each option under the Plan shall be assumed by such successor
corporation or a parent or subsidiary of such successor corporation, unless the
Plan Administrator determines, in the exercise of its sole discretion and in
lieu of such assumption, to shorten the Offer Period then in progress by setting
a new Exercise Date or an earlier date for termination of the Offer Period (the
"New Exercise Date"). If the Plan Administrator shortens the Offer Period then
in progress in lieu of assumption in the event of a Corporate Transaction, the
Plan Administrator shall notify each Participant in writing, at least ten (10)
days prior to the New Exercise Date, that the Exercise Date (or last day of the
Offer Period) for the Participant's option has been changed to the New Exercise
Date and that the Participant's option will be exercised automatically on the
New Exercise Date, unless prior to such date the Participant has withdrawn from
the Offer Period as provided in Section 10. For purposes of this subsection, an
option granted under the Plan shall be deemed to be assumed if, in connection
with the Corporate Transaction, the option is replaced with a comparable option
with respect to shares of capital stock of the successor corporation or Parent
thereof. The determination of option comparability shall be made by the Plan
Administrator prior to the Corporate Transaction and its determination shall be
final, binding and conclusive on all persons.
9
<PAGE>
19. AMENDMENT OR TERMINATION.
(a) The Plan Administrator may at any time and for any reason
terminate or amend the Plan. Except as provided in Section 18, no such
termination can affect options previously granted, provided that an Offer Period
may be terminated by the Plan Administrator on any Exercise Date if the Plan
Administrator determines that the termination of the Offer Period is in the best
interests of the Company and its stockholders. Except as provided in Section
18, no amendment may make any change in any option theretofore granted which
adversely affects the rights of any Participant without the consent of affected
Participants. To the extent necessary to comply with Section 423 of the Code
(or any successor rule or provision or any other Applicable Law), the Company
shall obtain stockholder approval in such a manner and to such a degree as
required.
(b) Without stockholder consent and without regard to whether any
Participant rights may be considered to have been "adversely affected," the Plan
Administrator shall be entitled to limit the frequency and/or number of changes
in the amount withheld during Offer Periods, change the length of Purchase
Periods within any Offer Period, change the length of subsequent Offer Periods,
determine whether subsequent Offer Periods shall be consecutive or overlapping,
establish the exchange ratio applicable to amounts withheld in a currency other
than U.S. dollars, establish additional terms, conditions, rules or procedures
to accommodate the rules or laws of applicable foreign jurisdictions, permit
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, establish reasonable waiting and adjustment
periods and/or accounting and crediting procedures to ensure that amounts
applied toward the purchase of Common Stock for each Participant properly
correspond with amounts withheld from the Participant's Compensation, and
establish such other limitations or procedures as the Plan Administrator
determines in its sole discretion advisable and which are consistent with the
Plan.
20. NOTICES. All notices or other communications by a Participant to the
Company under or in connection with the Plan shall be deemed to have been duly
given when received in the form specified by the Plan Administrator at the
location, or by the person, designated by the Plan Administrator for the receipt
thereof.
21. CONDITIONS UPON ISSUANCE OF SHARES. Shares shall not be issued with
respect to an option unless the exercise of such option and the issuance and
delivery of such shares pursuant thereto shall comply with all Applicable Laws
and shall be further subject to the approval of counsel for the Company with
respect to such compliance. As a condition to the exercise of an option, the
Company may require the Participant to represent and warrant at the time of any
such exercise that the shares are being purchased only for investment and
without any present intention to sell or distribute such shares if, in the
opinion of counsel for the Company, such a representation is required by any of
the aforementioned Applicable Laws. In addition, no options shall be exercised
or shares issued hereunder before the Plan shall have been approved by
stockholders of the Company as provided in Section 23.
10
<PAGE>
22. TERM OF PLAN. The Plan shall become effective upon the earlier to
occur of its adoption by the Board or its approval by the stockholders of the
Company. It shall continue in effect for a term of ten (10) years unless sooner
terminated under Section 19.
23. STOCKHOLDER APPROVAL. Continuance of the Plan shall be subject to
approval by the stockholders of the Company within twelve (12) months before or
after the date the Plan is adopted. Such stockholder approval shall be obtained
in the degree and manner required under Applicable Laws.
24. NO EMPLOYMENT RIGHTS. The Plan does not, directly or indirectly,
create any right for the benefit of any employee or class of employees to
purchase any shares under the Plan, or create in any employee or class of
employees any right with respect to continuation of employment by the Company or
a Designated Parent or Subsidiary, and it shall not be deemed to interfere in
any way with such employer's right to terminate, or otherwise modify, an
employee's employment at any time.
25. NO EFFECT ON RETIREMENT AND OTHER BENEFIT PLANS. Except as
specifically provided in a retirement or other benefit plan of the Company or a
Designated Parent or Subsidiary, participation in the Plan shall not be deemed
compensation for purposes of computing benefits or contributions under any
retirement plan of the Company or a Designated Parent or Subsidiary, and shall
not affect any benefits under any other benefit plan of any kind or any benefit
plan subsequently instituted under which the availability or amount of benefits
is related to level of compensation. The Plan is not a "Retirement Plan" or
"Welfare Plan" under the Employee Retirement Income Security Act of 1974, as
amended.
26. EFFECT OF PLAN. The provisions of the Plan shall, in accordance with
its terms, be binding upon, and inure to the benefit of, all successors of each
Participant, including, without limitation, such Participant's estate and the
executors, administrators or trustees thereof, heirs and legatees, and any
receiver, trustee in bankruptcy or representative of creditors of such
Participant.
27. GOVERNING LAW. The Plan is to be construed in accordance with and
governed by the internal laws of the State of California (as permitted by
Section 1646.5 of the California Civil Code, or any similar successor provision)
without giving effect to any choice of law rule that would cause the application
of the laws of any jurisdiction other than the internal laws of the State of
California to the rights and duties of the parties, except to the extent the
internal laws of the State of California are superseded by the laws of the
United States. Should any provision of the Plan be determined by a court of law
to be illegal or unenforceable, the other provisions shall nevertheless remain
effective and shall remain enforceable.
11
<PAGE>
EXHIBIT A
Digital Microwave Corporation 1999 Employee Stock Purchase Plan
SUBSCRIPTION AGREEMENT
Effective with the Offer Period beginning on:
/ / ESPP Effective Date / / FEBRUARY 1, 199__ or / / AUGUST 1, 199__
<TABLE>
<S> <C>
1. PERSONAL INFORMATION
Legal Name (Please Print)
--------------------------------------------------- ----------------- ----------------
(Last) (First) (MI) Location Department
Street Address
------------------------------------------------------------- -----------------------------------
Daytime Telephone
City, State/Country, Zip
--------------------------------------------------- -----------------------------------
E-Mail Address
Social Security No. __ __ __ - __ __ - __ __ __ __ Employee I.D. No.
------ -----------------------------------
Manager Mgr. Location
</TABLE>
2. ELIGIBILITY Any Employee whose customary employment is more than 20 hours
per week and more than 5 months per calendar year, who has been an Employee
for more than ten days, whose annual Compensation is less than $175,000,
and who does not hold (directly or indirectly) five percent (5%) or more of
the combined voting power of the Company, a parent or a subsidiary, whether
in stock or options to acquire stock is eligible to participate in the
Digital Microwave Corporation 1999 Employee Stock Purchase Plan (the
"ESPP"); provided, however, that Employees who are subject to the rules or
laws of a foreign jurisdiction that prohibit or make impractical the
participation of such Employees in the ESPP are not eligible to
participate.
3. DEFINITIONS Each capitalized term in this Subscription Agreement shall
have the meaning set forth in the ESPP.
4. SUBSCRIPTION I hereby elect to participate in the ESPP and subscribe to
purchase shares of the Company's Common Stock in accordance with this
Subscription Agreement and the ESPP. I have received a complete copy of
the ESPP and a prospectus describing the ESPP and understand that my
participation in the ESPP is in all respects subject to the terms of the
ESPP. The effectiveness of this Subscription Agreement is dependent on my
eligibility to participate in the ESPP.
5. PAYROLL DEDUCTION AUTHORIZATION I hereby authorize payroll deductions
from my Compensation during the Offer Period in the percentage specified
below (payroll reductions may not exceed 10% of Compensation nor $5,000 per
any six-month Offer or Purchase Period nor $2,500 per any three-month Offer
or Purchase Period):
----------------------------------------------------------------------------
Percentage to be Deducted (circle one) 1% 2% 3% 4% 5%
6% 7% 8% 9% 10%
----------------------------------------------------------------------------
6. ESPP ACCOUNTS AND PURCHASE PRICE I understand that all payroll deductions
will be credited to my account under the ESPP. No additional payments may
be made to my account. No interest will be credited on funds held in the
account at any time including any refund of the account caused by
withdrawal from the ESPP. All payroll deductions shall be accumulated for
the purchase of Company Common Stock at the applicable Purchase Price
determined in accordance with the ESPP.
7. WITHDRAWAL AND CHANGES IN PAYROLL DEDUCTION I understand that I may
discontinue my participation in the ESPP at any time prior to an Exercise
Date as provided in Section 10 of the ESPP, but if I do not withdraw from
the ESPP, any accumulated payroll deductions will be applied automatically
to purchase Company Common Stock. I may increase or decrease the rate of
my payroll deductions in whole percentage increments to not less than one
percent (1%) on one occasion during any Purchase Period by completing and
timely filing a Change of Status Notice. Any increase or decrease will be
effective for the full payroll period occurring after ten (10) business
days from the Company's receipt of the Change of Status Notice.
8. PERPETUAL SUBSCRIPTION I understand that this Subscription Agreement
shall remain in effect for successive Offer Periods until I withdraw from
participation in the ESPP, or termination of the ESPP.
A-1
<PAGE>
9. TAXES I have reviewed the ESPP prospectus discussion of the federal tax
consequences of participation in the ESPP and consulted with tax
consultants as I deemed advisable prior to my participation in the ESPP. I
hereby agree to notify the Company in writing within thirty (30) days of
any disposition (transfer or sale) of any shares purchased under the ESPP
if such disposition occurs within two (2) years of the Enrollment Date (the
first day of the Offer Period during which the shares were purchased) or
within one (1) year of the date I purchased such shares, and I will make
adequate provision to the Company for foreign, federal, state or other tax
withholding obligations, if any, which arise upon the disposition of the
shares. In addition, the Company may withhold from my Compensation any
amount necessary to meet applicable tax withholding obligations incident to
my participation in the ESPP, including any withholding necessary to make
available to the Company any tax deductions or benefits contingent on such
withholding.
10. DESIGNATION OF BENEFICIARY In the event of my death, I hereby designate
the following person or trust as my beneficiary to receive all payments and
shares due to me under the ESPP: / / I am single / / I am married
<TABLE>
<S> <C>
Beneficiary (please print) Relationship to Beneficiary (if any)
-------------------------------------------------
(Last) (First) (MI)
Street Address
------------------------------------------------------------- --------------------------------------
City, State/Country, Zip
--------------------------------------------------
11. TERMINATION OF ESPP I understand that the Company has the right,
exercisable in its sole discretion, to amend or terminate the ESPP at any
time, and a termination may be effective as early as an Exercise Date
(after purchase of shares on such date) within each outstanding Offer
Period.
Date: Employee Signature:
--------------------------- ----------------------------------------------------------
----------------------------------------------------------
spouse's signature (if beneficiary is other than spouse)
</TABLE>
A-2
<PAGE>
EXHIBIT B
Digital Microwave Corporation 1999 Employee Stock Purchase Plan
CHANGE OF STATUS NOTICE
- ---------------------------------------------
Participant Name (Please Print)
- ---------------------------------------------
Social Security Number
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
/ / WITHDRAWAL FROM ESPP
I hereby withdraw from the Digital Microwave Corporation 1999 Employee
Stock Purchase Plan (the "ESPP") and agree that my option under the
applicable Offer Period will be automatically terminated and all
accumulated payroll deductions credited to my account will be refunded to
me. No further payroll deductions will be made for the purchase of shares
in the applicable Offer Period and I shall be eligible to participate in a
future Offer Period only by timely delivery to the Company of a new
Subscription Agreement. My entire account balance will be refunded to me
and no Common Stock will be purchased on the next Exercise Date provided
this notice is submitted to the Company ten (10) business days prior to the
next Exercise Date.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
/ / CHANGE IN PAYROLL DEDUCTION
I hereby elect to change my rate of payroll deduction under the ESPP as
follows (select one):
- --------------------------------------------------------------------------------
Percentage to be Deducted (circle one) 1% 2% 3% 4% 5%
6% 7% 8% 9% 10%
- --------------------------------------------------------------------------------
An increase or decrease in payroll deduction will be effective for the
first full payroll period commencing no fewer than ten (10) business days
following the Company's receipt of this notice, unless this change is
processed more quickly.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
B-1
<PAGE>
<TABLE>
<S> <C>
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
/ / CHANGE OF BENEFICIARY / / I am single / / I am married
This change of beneficiary shall terminate my previous beneficiary designation under the ESPP. In the event of my
death, I hereby designate the following person or trust as my beneficiary to receive all payments and shares due to
me under the ESPP:
Beneficiary (please print) Relationship to Beneficiary (if any)
-------------------------------------------------
(Last) (First) (MI)
Street Address
------------------------------------------------------------- --------------------------------------
City, State/Country, Zip
---------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
Date: Employee Signature:
--------------------------- ----------------------------------------------------------
----------------------------------------------------------
spouse's signature (if beneficiary is other than spouse)
</TABLE>
B-1
