AMENDED AND RESTATED QUALCOMM INCORPORATED
2001 EMPLOYEE STOCK PURCHASE PLAN
Originally Effective February 27, 2001
Amended and Restated Effective November 12, 2007
Includes First Amendment Adopted on February 11, 2009
Amended and Restated Effective April 26, 2010
SECTION 1 Establishment, Purpose and Term of Plan.
1.1 Establishment. The Qualcomm Incorporated 2001 Employee Stock Purchase Plan, which
was originally established as of February 27, 2001, is hereby amended and restated by the Committee
as of April 26, 2010.
1.2 Purpose. The purpose of the Plan is to advance the interests of the Company and
its stockholders by providing an incentive to attract, retain and reward Eligible Employees of the
Participating Company Group and by motivating such persons to contribute to the growth and
profitability of the Participating Company Group. The Plan provides such Eligible Employees with
an opportunity to acquire a proprietary interest in the Company through the purchase of Stock. The
Company intends that the Plan qualify as an employee stock purchase plan under Section 423 of the
Code (including any amendments or replacements of such section), and the Plan shall be so
construed, although the Company makes no undertaking nor representation to maintain such
qualification. In addition, this Plan document authorizes the grant of rights to purchase Stock
under a Non-423(b) Plan which do not qualify under Section 423(b) of the Code, pursuant to rules,
procedures or sub-plans adopted by the Board or Committee designed to achieve tax, securities law
or other Company compliance objectives in particular locations outside the United States.
1.3 Term of Plan. The Plan shall continue in effect until the earlier of its
termination by the Board or the date on which all of the shares of Stock available for issuance
under the Plan have been issued.
SECTION 2 Definitions and Construction.
2.1 Definitions. Any term not expressly defined in the Plan but defined for purposes
of Section 423 of the Code shall have the same definition herein for purposes of the Code Section
423(b) Plan. Whenever used herein, the following terms shall have their respective meanings set
(a) Board means the Board of Directors of the Company. If one or more Committees have been
appointed by the Board to administer the Plan, Board also means such Committee(s).
(b) Code means the U.S. Internal Revenue Code of 1986, as amended, and any applicable
regulations promulgated thereunder.
(c) Code Section 423(b) Plan means an employee stock purchase plan which is designed to meet
the requirements set forth in Section 423(b) of the Code. The provisions of the Code Section
423(b) Plan shall be construed, administered and enforced in accordance with Section 423(b) of the
(d) Committee means the Compensation Committee or other committee of the Board duly
appointed to administer the Plan and having such powers as shall be specified by the Board. Unless
the powers of the Committee have been specifically limited, the
Committee shall have all of the powers of the Board granted herein, including, without
limitation, the power to amend or terminate the Plan at any time, subject to the terms of the Plan
and any applicable limitations imposed by law. To the extent determined by the Board or the
Compensation Committee, the term Committee shall also mean such officers of the Company as the
Board or Compensation Committee shall specify.
(e) Company means Qualcomm Incorporated, a Delaware corporation, or any Successor.
(f) Compensation means, with respect to any Offering Period, all salary, wages (including
amounts elected to be deferred by the employee, that would otherwise have been paid, under any cash
or deferred arrangement established by the Company) and overtime pay, but excluding commissions,
bonuses, payments under the 2-for-1 vacation program, profit sharing, the cost of employee benefits
paid for by the Company, education or tuition reimbursements, imputed income arising under any
Company group insurance or benefit program, traveling expenses, business and moving expense
reimbursements, income received in connection with stock options, contributions made by the Company
under any employee benefit plan, and similar items of compensation. Compensation shall also
include payments while on a leave of absence during which participation continues pursuant to
Section 2.1(g) to such extent as may be provided by the Companys leave policy.
(g) Eligible Employee means an Employee who meets the requirements set forth in Section 5
for eligibility to participate in the Plan. Eligible Employee shall also mean any other employee
of a Participating Company to the extent that local law requires participation in the Plan to be
extended to such employee.
(h) Employee means a person treated as an employee of a Participating Company for purposes
of Section 423 of the Code. A Participant shall be deemed to have ceased to be an Employee either
upon an actual termination of employment or upon the corporation employing the Participant ceasing
to be a Participating Company. For purposes of the Plan, an individual shall not be deemed to have
ceased to be an Employee while on any military leave or other leave of absence approved by the
Company of three (3) months or less. If an individuals leave of absence exceeds three (3) months,
the individual shall be deemed to have ceased to be an Employee on the first day immediately
following such three-month period unless the individuals right to reemployment with the
Participating Company Group is guaranteed either by statute or by contract.
(i) Fair Market Value means, as of any date:
(i) If the Stock is listed on any established stock exchange or traded on the Nasdaq Global
Select Market or the Nasdaq Global Market, the Fair Market Value of a share of Stock shall be the
closing sales price for such stock (or the closing bid, if no sales were reported) as quoted on
such exchange or market (or if the stock is traded on more than one exchange or market, the
exchange or market with the greatest volume of trading in the Stock) on the day of determination,
in any case as reported in The Wall Street Journal or such other source as the Board deems
reliable. In the absence of such markets for the Stock, the Fair Market Value shall be determined
in good faith by the Board.
(ii) For purposes of this Plan, if the date as of which the Fair Market Value is to be
determined is not a market trading day, then solely for the purpose of determining Fair Market
Value such date shall be: (A) in the case of the Offering Date, the first market trading day
following the Offering Date; (B) in the case of the Purchase Date, the last market trading day
prior to the Purchase Date.
(j) Non-423(b) Plan means an employee stock purchase plan which does not meet the
requirements set forth in Section 423(b) of the Code, as amended.
(k) Offering means an offering of Stock as provided in Section 6.
(l) Offering Date means, for any Offering, the first day of the Offering Period.
(m) Offering Period means a period established in accordance with Section 6.
(n) Parent Corporation means any present or future parent corporation of the Company, as
defined in Section 424(e) of the Code.
(o) Participant means an Eligible Employee who has become a participant in an Offering
Period in accordance with Section 7 and remains a participant in accordance with the Plan.
(p) Participating Company means the Company and any Parent Corporation or Subsidiary
Corporation. The Board or Committee may determine that some or all employees of any Participating
Company shall participate in the Non-423(b) Plan.
(q) Participating Company Group means, at any point in time, the Company and all other
corporations collectively which are then Participating Companies.
(r) Plan shall mean the Amended and Restated Qualcomm Incorporated 2001 Employee Stock
Purchase Plan, as amended from time to time, which includes a Code Section 423(b) Plan and a
Non-423(b) Plan component.
(s) Purchase Date means, for any Offering, the last day of the Offering Period; provided,
however, that the Board in its discretion may establish one or more additional Purchase Dates
during any Offering Period.
(t) Purchase Price means the price at which a share of Stock may be purchased under the
Plan, as determined in accordance with Section 9.
(u) Purchase Right means an option granted to a Participant pursuant to the Plan to purchase
such shares of Stock as provided in Section 8, which the Participant may or may not exercise during
the Offering Period in which such option is outstanding. Such option arises from the right of a
Participant to withdraw any accumulated payroll deductions of the Participant not previously
applied to the purchase of Stock under the Plan and to terminate
participation in the Plan during an Offering Period, in accordance with such rules and
procedures as may be established by Board.
(v) Spinoff Transaction means a transaction in which the voting stock of an entity in the
Participating Company Group is distributed to the stockholders of a parent corporation as defined
by Section 424(e) of the Code, of such entity.
(w) Stock means the common stock of the Company, as adjusted from time to time in accordance
with Section 4.2.
(x) Subscription Agreement means an agreement in such form as specified by the Company which
is delivered in written form or by communicating with the Company in such other manner as the
Company may authorize, stating an Employees election to participate in the Plan and authorizing
payroll deductions under the Plan from the Employees Compensation.
(y) Subscription Date means the Offering Date of an Offering Period, or such earlier date as
the Company shall establish.
(z) Subsidiary Corporation means any present or future subsidiary corporation of the
Company, as defined in Section 424(f) of the Code.
(aa) Successor means a corporation into or with which the Company is merged or consolidated
or which acquires all or substantially all of the assets of the Company and which is designated by
the Board as a Successor for purposes of the Plan.
2.2 Construction. Captions and titles contained herein are for convenience only and
shall not affect the meaning or interpretation of any provision of the Plan. Except when otherwise
indicated by the context, the singular shall include the plural and the plural shall include the
singular. Use of the term or is not intended to be exclusive, unless the context clearly
SECTION 3 Administration.
3.1 Administration by the Board. The Plan shall be administered by the Board and its
designees. Subject to the provisions of the Plan, the Board shall determine all of the relevant
terms and conditions of Purchase Rights; provided, however, that all Participants granted Purchase
Rights pursuant to an Offering under the Code Section 423(b) Plan shall have the same rights and
privileges within the meaning of Section 423(b)(5) of the Code in such Offering. All expenses
incurred in connection with the administration of the Plan shall be paid by the Company.
3.2 Authority of Officers. Any officer of the Company shall have the authority to act
on behalf of the Company with respect to any matter, right, obligation, determination or election
that is the responsibility of or that is allocated to the Company herein, provided that the officer
has actual authority with respect to such matter, right, obligation, determination or election.
Any decision or determination of the Company made by an officer having actual authority with
respect thereto, shall be final, binding and conclusive on the Participating
Company Group, any Participant, and all persons having an interest in the Plan, or any
Purchase Right granted hereunder, unless such officers decision or determination is arbitrary or
capricious, fraudulent, or made in bad faith.
3.3 Policies and Procedures Established by the Company. The Company may, from time to
time, consistent with the Plan and, for purposes of the Code Section 423(b) Plan, the requirements
of Section 423 of the Code, establish, interpret change or terminate such rules, guidelines,
policies, procedures, limitations, or adjustments as deemed advisable by the Company, in its
discretion, for the proper administration of the Plan, including, without limitation, (a) a minimum
payroll deduction amount required for participation in an Offering, (b) a limitation on the
frequency or number of changes permitted in the rate of payroll deduction during an Offering, (c)
an exchange ratio applicable to amounts withheld in a currency other than United States dollars,
(d) a payroll deduction greater than or less than the amount designated by a Participant in order
to adjust for the Companys delay or mistake in processing a Subscription Agreement or in otherwise
effecting a Participants election under the Plan or, for purposes of the Code Section 423(b) Plan,
as advisable to comply with the requirements of Section 423 of the Code, and (e) determination of
the date and manner by which the Fair Market Value of a share of Stock is determined for purposes
of administration of the Plan.
The Boards determination of the construction and interpretation of any provision of the Plan, and
any actions taken, and any decisions or determinations made pursuant to the terms of the Plan,
shall be final, binding and conclusive on the Participating Company Group, any Participant, and any
person having an interest in the Plan or any Purchase Right granted hereunder unless the Boards
action, decision or determination is arbitrary or capricious, fraudulent, or made in bad faith.
3.4 Indemnification. In addition to such other rights of indemnification as they may
have as members of the Board or officers or Employees of the Participating Company Group, members
of the Board and any officers or Employees of the Participating Company Group to whom authority to
act for the Board or the Company is delegated shall be indemnified by the Company against all
reasonable expenses, including attorneys fees, actually and necessarily incurred in connection
with the defense of any action, suit or proceeding, or in connection with any appeal therein, to
which they or any of them may be a party by reason of any action taken or failure to act under or
in connection with the Plan, or any right granted hereunder, and against all amounts paid by them
in settlement thereof (provided such settlement is approved by independent legal counsel selected
by the Company) or paid by them in satisfaction of a judgment in any such action, suit or
proceeding, except in relation to matters as to which it shall be adjudged in such action, suit or
proceeding that such person is liable for gross negligence, bad faith or intentional misconduct in
duties; provided, however, that within sixty (60) days after the institution of such action, suit
or proceeding, such person shall offer to the Company, in writing, the opportunity at its own
expense to handle and defend the same and to retain complete control over the litigation and/or
settlement of such suit, action or proceeding.
4 Shares Subject to Plan.1
4.1 Maximum Number of Shares Issuable. Subject to adjustment as provided in Section
4.2, the maximum aggregate number of shares of Stock that may be issued under the Plan shall be
46,709,466; provided, however that no more than an aggregate of 46,309,466
||The amendment of the Amended and Restated Qualcomm Incorporated 2001 Employee Stock Purchase
Plan (the Plan) to increase the maximum number of shares issuable under the Plan
by 22,000,000 to 46,709,466 is subject to stockholder approval pursuant to Section
21 of the Plan. As a result, such amendment will not take effect until such approval is received,
which is expected to be at the next annual stockholders meeting.
shares of Stock may be issued under the Code Section 423(b) Plan. The maximum aggregate
number of shares of Stock available under the Code Section 423(b) Plan and the Non-423(b) Plan
shall consist of authorized but unissued or reacquired shares of Stock, or any combination thereof.
If an outstanding Purchase Right for any reason expires or is terminated or canceled, the shares
of Stock allocable to the unexercised portion of that Purchase Right shall again be available for
issuance under the Plan; provided, however, that any such shares of Stock allocable to a Purchase
Right that has expired, terminated or been canceled under the Non-423(b) Plan shall only be
available again for issuance under the Non-423(b) Plan.
4.2 Adjustments for Changes in Capital Structure. In the event of any stock dividend,
stock split, reverse stock split, recapitalization, combination, reclassification or similar change
in the capital structure of the Company, or in the event of any merger (including a merger effected
for the purpose of changing the Companys domicile), sale of assets or other reorganization in
which the Company is a party, appropriate adjustments shall be made in the number and class of
shares subject to the Plan, each Purchase Right, and in the Purchase Price. If a majority of the
shares of the same class as the shares subject to outstanding Purchase Rights are exchanged for,
converted into, or otherwise become (whether or not pursuant to an Ownership Change Event) shares
of another corporation (the New Shares), the Board may unilaterally amend the outstanding
Purchase Rights to provide that such Purchase Rights are exercisable for New Shares. In the event
of any such amendment, the number of shares subject to, and the Purchase Price of, the outstanding
Purchase Rights shall be adjusted in a fair and equitable manner, as determined by the Board, in
its discretion. Notwithstanding the foregoing, any fractional share resulting from an adjustment
pursuant to this Section 4.2 shall be rounded down to the nearest whole number, and in no event may
the Purchase Price be decreased to an amount less than the par value, if any, of the stock subject
to the Purchase Right.
SECTION 5 Eligibility.
5.1 Employees Eligible to Participate. Except as otherwise provided in this Section
5, an Employee shall be eligible to participate in an Offering if such Employee, as of the Offering
Date, is employed by the Company or any other Participating Company designated by the Board as a
corporation whose Employees may participate in the Offering. However, unless otherwise required
under applicable local law, an Employee may not be eligible to participate in an Offering if the
Employee, as of the Offering Date, either: (a) is customarily employed by the Participating
Company Group for twenty (20) hours or less per week, (b) is customarily employed by the
Participating Company Group for not more than five (5) months in any calendar year or (c) has not
completed thirty (30) days of service with a Participating Company, or such other service
requirement, up to a maximum of two (2) years, which the Board may require. Employees of a
Participating Company designated to participate in the Non-423(b) Plan are eligible to participate
in the Non-423(b) Plan only if they are selected to participate by the Board or Committee, which
selection shall be in the sole discretion of the Board or Committee. Notwithstanding the foregoing,
no employee of the Company or a Participating Company designated to participate in the Non-423(b)
Plan shall be eligible to participate in the Non-423(b) Plan if he or she is an officer or director
of the Company subject to the requirements of Section 16 of the U.S. Securities Exchange Act of
1934, as amended (the Exchange Act) with respect to the Companys securities.
5.2 Exclusion of Certain Stockholders. Notwithstanding any provision of the Plan to
the contrary, no Employee shall be treated as an Eligible Employee and granted a Purchase Right
under the Plan if, immediately after such grant, the Employee would own or hold options to purchase
stock of the Company or of any Parent Corporation or Subsidiary Corporation possessing five percent
(5%) or more of the total combined voting power or value of all classes of stock of such
corporation, as determined in accordance with Section 423(b)(3) of the Code. For purposes of this
Section 5.2, the attribution rules of Section 424(d) of the Code shall apply in determining the
stock ownership of such Employee.
5.3 Determination by Company. The Company shall determine in good faith and in the
exercise of its discretion whether an individual has become or has ceased to be an Employee or an
Eligible Employee and the effective date of such individuals attainment or termination of such
status, as the case may be. For purposes of an individuals eligibility to participate in or other
rights, if any, under the Plan as of the time of the Companys determination, all such
determinations by the Company shall be final, binding and conclusive, unless the Companys
determination is arbitrary or capricious, fraudulent, or made in bad faith notwithstanding that the
Company or any court of law or governmental agency subsequently makes a contrary determination.
SECTION 6 Offerings.
The Plan shall be implemented by sequential Offerings of approximately six (6) months duration
or such other duration as the Board shall determine (an Offering Period). Offering Periods shall
be established by the Board, in its sole and absolute discretion, and such Offering Periods may
have different durations or different commencing or ending dates; provided, however, that no
Offering Period may have a duration exceeding twenty-seven (27) months.
SECTION 7 Participation in the Plan.
7.1 Initial Participation. An Eligible Employee may become a Participant in an
Offering Period by delivering a properly completed Subscription Agreement, in accordance with such
rules and procedures as may be specified by the Company. An Eligible Employee who does not deliver
a properly completed Subscription Agreement to the Company in the required time period shall not
participate in the Plan for that Offering Period. Furthermore, the Eligible Employee may not
participate in a subsequent Offering Period unless a properly completed Subscription Agreement is
delivered to the Company on or before the Subscription Date for such subsequent Offering Period.
7.2 Continued Participation. A Participant shall automatically participate in the
next Offering Period commencing immediately after the Purchase Date of each Offering Period in
which the Participant participates provided that the Participant remains an Eligible Employee on
the Offering Date of the new Offering Period and has not either (a) withdrawn from the Plan
pursuant to Section 12.1 or (b) terminated employment as provided in Section 13. A Participant who
may automatically participate in a subsequent Offering Period, as provided in this Section, is not
required to deliver any additional Subscription Agreement for the subsequent Offering Period in
order to continue participation in the Plan. However, a Participant may deliver a new
Subscription Agreement for a subsequent Offering Period in accordance with the procedures set
forth in Section 7.1 if the Participant desires to change any of the elections contained in the
Participants then effective Subscription Agreement.
SECTION 8 Right to Purchase Shares.
8.1 Grant of Purchase Right.
(a) Except as set forth below (or as otherwise specified by the Board prior to the Offering
Date), on the Offering Date of each Offering Period, each Participant in that Offering Period shall
be granted automatically a Purchase Right consisting of an option to purchase that number of whole
shares of Stock determined by dividing Twelve Thousand Five Hundred Dollars ($12,500) by the Fair
Market Value of a share of Stock on such Offering Date. In connection with any Offering made under
this Plan, the Board or the Committee may specify a maximum number of shares of Stock which may be
purchased by any employee as well as a maximum aggregate number of shares of Stock which may be
purchased by all eligible employees pursuant to such Offering. In addition, in connection with any
Offering which contains more than one Purchase Date, the Board or the Committee may specify a
maximum aggregate number of shares which may be purchased by all eligible employees on any given
Purchase Date under the Offering.
(b) If the aggregate purchase of shares of Stock upon exercise of rights granted under the
Offering would exceed any such maximum aggregate number, the Board or the Committee shall make a
pro rata allocation of the shares of Stock available in as nearly a uniform manner as shall be
practicable and as it shall deem to be equitable. No Purchase Right shall be granted on an
Offering Date to any person who is not, on such Offering Date, an Eligible Employee.
8.2 Substitution of Rights. The grant of rights under an Offering may be done to
carry out the substitution of rights under the Plan for pre-existing rights granted under another
employee stock purchase plan, if such substitution is pursuant to a transaction described in
Section 424(a) of the Code (or any successor provision thereto) and the characteristics of such
substitute rights conform to the requirements of Section 424(a) of the Code (or any successor
provision thereto) and will not cause the disqualification of the Code Section 423(b) Plan under
Section 423 of the Code. Notwithstanding the other terms of the Plan, such substitute rights shall
have the same characteristics as the characteristics associated with such pre-existing rights,
including, but not limited to, the following:
(a) the date on which such pre-existing right was granted shall be the Offering Date of such
substitute right for purposes of determining the date of grant of the substitute right;
(b) the Offering for such substitute right shall begin on its Offering Date and end coincident
on the applicable Purchase Date, but no later than the end of the offering (as determined under the
terms of such offering) under which the pre-existing right was granted.
8.3 Pro Rata Adjustment of Purchase Right. If the Board establishes an Offering
Period of any duration other than six months, then any limitation on the number of shares of
Stock subject to each Purchase Right granted on the Offering Date of such Offering Period set
forth in Section 8.1(a) shall be prorated based upon the ratio which the number of months in such
Offering Period bears to six (6).
8.4 Calendar Year Purchase Limitation. Notwithstanding any provision of the Plan to
the contrary, no Participant shall be granted a Purchase Right which permits his or her right to
purchase shares of Stock under the Plan to accrue at a rate which, when aggregated with such
Participants rights to purchase shares under all other employee stock purchase plans of a
Participating Company intended to meet the requirements of Section 423 of the Code, exceeds
Twenty-Five Thousand Dollars ($25,000) in Fair Market Value (or such other limit, if any, as may be
imposed by the Code) for each calendar year in which such Purchase Right is outstanding at any
time. For purposes of the preceding sentence, the Fair Market Value of shares purchased during a
given Offering Period shall be determined as of the Offering Date for such Offering Period. The
limitation described in this Section shall be applied in conformance with applicable regulations
under Section 423(b)(8) of the Code.
SECTION 9 Purchase Price.
The Purchase Price for an Offering Period shall be eighty-five percent (85%) of the lesser of
(a) the Fair Market Value of a share of Stock on the Offering Date of the Offering Period, or (b)
the Fair Market Value of a share of Stock on the Purchase Date. Notwithstanding the foregoing, the
Board, in its sole discretion, may establish the Purchase Price at which each share of Stock may be
acquired in an Offering Period upon the exercise of all or any portion of a Purchase Right;
provided, however, that the Purchase Price shall not be less than eighty-five percent (85%) of the
lesser of (a) the Fair Market Value of a share of Stock on the Offering Date of the Offering Period
or (b) the Fair Market Value of a share of Stock on the Purchase Date.
SECTION 10 Accumulation of Purchase Price Through Payroll Deduction.
Shares of Stock acquired pursuant to the exercise of all or any portion of a Purchase Right
may be paid for only by means of payroll deductions from the Participants Compensation accumulated
during the Offering Period for which such Purchase Right was granted, and, if a payroll deduction
is not permitted under a statute, regulation, rule of a jurisdiction, or is not administratively
feasible, such other payments as may be approved by the Company, subject to the following:
10.1 Amount of Payroll Deductions. Except as otherwise provided herein, the amount to
be deducted under the Plan from a Participants Compensation on each payday during an Offering
Period shall be determined by the Participants Subscription Agreement. The Subscription Agreement
shall set forth the percentage of the Participants Compensation to be deducted on each payday
during an Offering Period in whole percentages, up to fifteen percent (15%). The Board may change
the foregoing limits on payroll deductions effective as of any Offering Date.
10.2 Commencement of Payroll Deductions. Payroll deductions shall commence on the
first payday following the Offering Date and shall continue through the last
payday prior to the end of the Offering Period unless sooner altered or terminated as provided
10.3 Election to Change or Stop Payroll Deductions. During an Offering Period, to the
extent provided for in the Offering, a Participant may elect to decrease the rate of, or to stop,
deductions from his or her Compensation by delivering to the Company an amended Subscription
Agreement, in such form and manner as specified by the Company, authorizing such change on or
before the Change Notice Date, as defined below. A Participant who elects, effective following the
first payday of an Offering Period, to decrease the rate of his or her payroll deductions to zero
percent (0%) shall nevertheless remain a Participant in the current Offering Period unless such
Participant withdraws from the Plan as provided in Section 12.1. The Change Notice Date shall be
the day established in accordance with procedures established by the Company.
10.4 Companys Holding of Deductions. All payroll deductions from a Participants
Compensation shall be deposited with the general funds of the Company, and to the extent permitted
by applicable law, may be used by the Company for any corporate purpose. No interest will accrue
on the payroll deductions from a Participant under this Plan, except as otherwise required by
applicable law. If such interest is required, all accrued interest will not be used to purchase
additional shares of Stock on a Purchase Date, and such accrued interest shall be refunded to the
Participant following such Purchase Date (or, if applicable, the Participants withdrawal from the
Plan pursuant to Section 12.1 or termination of employment or eligibility as described in Section
10.5 Voluntary Withdrawal of Deductions. A Participant may withdraw payroll
deductions credited to the Plan and not previously applied toward the purchase of Stock only as
provided in Section 12.1.
10.6 Contributions Under Non-423(b) Plan. In the sole discretion of the Board or
Committee and if specified in the terms of the Offering, a Participant at a Participating Company
designated to participate in the Non-423(b) Plan may make additional payments into his or her
account, provided that such Participant has not had the maximum amount withheld during the Offering
pursuant to Section 10.1 above.
SECTION 11 Purchase of Shares.
11.1 Exercise of Purchase Right. On each Purchase Date, each Participants
accumulated payroll deductions and other additional payments specifically permitted by the Plan
(without any increase for interest), will be applied to the purchase of whole shares of Stock, up
to the maximum number of shares permitted pursuant to the terms of the Plan and the applicable
Offering, at the Purchase Price for such Offering. No fractional shares shall be issued upon the
exercise of Purchase Rights granted under the Plan. The amount, if any, of each Participants
accumulated payroll deductions remaining after the purchase of shares on the Purchase Date of an
Offering shall be refunded in full to the Participant after such Purchase Date.
11.2 Pro Rata Allocation of Shares. If the number of shares of Stock which might be
purchased by all Participants in the Plan on a Purchase Date exceeds the number of
shares of Stock available in the Plan as provided in Section 4.1, the Company shall make a pro
rata allocation of the remaining shares in as uniform a manner as practicable and as the Company
determines to be equitable. Any fractional share resulting from such pro rata allocation to any
Participant shall be disregarded.
11.3 Delivery of Shares. As soon as practicable after each Purchase Date, the Company
shall arrange the delivery to each Participant of the shares acquired by the Participant on such
Purchase Date; provided that the Company may deliver such shares to a broker designated by the
Company that will hold such shares for the benefit of the Participant. Shares to be delivered to a
Participant under the Plan shall be registered, or held in an account, in the name of the
Participant, or, if requested by the Participant, such other name or names as the Company may
permit under rules established for the operation and administration of the Plan.
11.4 Tax Withholding. At the time a Participants Purchase Right is exercised, in
whole or in part, or at the time a Participant disposes of some or all of the shares of Stock he or
she acquires under the Plan, the Participant shall make adequate provision for the federal, state,
local and foreign tax withholding obligations, if any, of the Participating Company Group which
arise upon exercise of the Purchase Right or upon such disposition of shares, respectively. The
Participating Company Group may, but shall not be obligated to, withhold from the Participants
compensation the amount necessary to meet such withholding obligations.
11.5 Expiration of Purchase Right. A Purchase Right shall expire immediately upon the
end of the Offering Period to the extent it exceeds the number of shares of Stock which are
purchased with a Participants accumulated payroll deductions or other permitted contribution
during any Offering Period.
11.6 Provision of Reports and Stockholder Information to Participants. Each
Participant who has exercised all or part of his or her Purchase Right shall receive, as soon as
practicable after the Purchase Date, a report of such Participants account setting forth the total
payroll deductions accumulated prior to such exercise, the number of shares of Stock purchased, the
Purchase Price for such shares, the date of purchase and the cash balance, if any, remaining
immediately after such purchase that is to be refunded. The report required by this Section may be
delivered in such form and by such means, including by electronic transmission, as the Company may
determine. In addition, each Participant shall be given access to information concerning the
Company equivalent to that information provided generally to the Companys common stockholders.
SECTION 12 Withdrawal from Plan.
12.1 Voluntary Withdrawal from the Plan. A Participant may withdraw from the Plan by
signing and delivering to the Companys designated office a written notice of withdrawal on a form
provided by the Company for this purpose or by communicating with the Company in such other manner
as the Company may authorize. A Participant who voluntarily withdraws from the Plan is prohibited
from resuming participation in the Plan in the same Offering from which he or she withdrew, but may
participate in any subsequent Offering by again satisfying the requirements of Section 5 and
Section 7.1. The Company may impose, from time to time, a requirement that the notice of
withdrawal from the Plan be on file with the
Companys designated office for a reasonable period prior to the effectiveness of the
12.2 Return of Payroll Deductions. Upon a Participants voluntary withdrawal from the
Plan pursuant to Section 12.1, the Participants accumulated payroll deductions which have not been
applied toward the purchase of shares shall be refunded to the Participant as soon as practicable
after the withdrawal (and except as otherwise provided in Section 10.4, without the payment of any
interest), and the Participants participation in the Plan shall terminate. Such accumulated
payroll deductions to be refunded in accordance with this Section may not be applied to any other
Offering under the Plan.
SECTION 13 Termination of Employment.
13.1 General. Upon a Participants ceasing, prior to a Purchase Date, to be an
Employee of the Participating Company Group for any reason, the Participants participation in the
Plan shall terminate immediately, except as otherwise provided in Section 2.1(g) and Section 13.3.
13.2 Return of Payroll Deductions. Upon termination of participation, the terminated
Participants accumulated payroll deductions which have not been applied toward the purchase of
shares shall, as soon as practicable, be returned to the Participant or, in the case of the
Participants death, to the Participants legal representative, and all of the Participants rights
under the Plan shall terminate. Except as otherwise provided in Section 10.4, interest shall not
be paid on sums returned pursuant to this Section 13. A Participant whose participation has been
so terminated may again become eligible to participate in future Offerings under the Plan by
satisfying the requirements of Section 5 and Section 7.1.
13.3 Continued Participation upon Release of Claims. Upon a Participants ceasing,
prior to a Purchase Date, to be an Employee of the Participating Company Group for any reason, the
Participants participation in the Plan shall continue, subject to the Participants execution of a
general release of claims satisfactory to the Company, for an additional three (3) months;
provided, however, this Section shall not apply in the event of the Participants death, a Spinoff
Transaction, or to any Participant on a leave of absence governed by Section 2.1(g).
SECTION 14 Change in Control.
(a) An Ownership Change Event shall be deemed to have occurred if any of the following
occurs with respect to the Company: (i) the direct or indirect sale or exchange in a single or
series of related transactions by the stockholders of the Company of more than fifty percent (50%)
of the voting stock of the Company; (ii) a merger or consolidation in which the Company is a party;
(iii) the sale, exchange, or transfer of all or substantially all, as determined by the Board in
its sole discretion, of the assets of the Company; or (iv) a liquidation or dissolution of the
(b) A Change in Control shall mean an Ownership Change Event or a series of related
Ownership Change Events (collectively, a Transaction) wherein the
stockholders of the Company immediately before the Transaction do not retain immediately after
the Transaction, in substantially the same proportions as their ownership of shares of the
Companys voting stock immediately before the Transaction, direct or indirect beneficial ownership
of more than fifty percent (50%) of the total combined voting power of the outstanding voting
securities of the Company or, in the case of a Transaction described in Section 14.1(a)(iii), the
corporation or other business entity to which the assets of the Company were transferred (the
Transferee), as the case may be. The Board shall determine in its sole discretion whether
multiple sales or exchanges of the voting securities of the Company or multiple Ownership Change
Events are related. Notwithstanding the preceding sentence, a Change in Control shall not include
any Transaction in which the voting stock of an entity in the Participating Company Group is
distributed to the stockholders of a parent corporation, as defined in Section 424(e) of the Code,
of such entity. Any Ownership Change Event resulting from an underwritten public offering of the
Companys Stock or the stock of any Participating Company shall not be deemed a Change in Control
for any purpose hereunder.
14.2 Effect of Change in Control on Purchase Rights. In the event of a Change in
Control, the surviving, continuing, successor, or purchasing corporation or parent corporation
thereof, as the case may be (the Acquiring Corporation), may assume the Companys rights and
obligations under the Plan. If the Acquiring Corporation elects not to assume the Companys rights
and obligations under outstanding Purchase Rights, the Purchase Date of the then current Offering
Period shall be accelerated to a date before the date of the Change in Control specified by the
Board, but the number of shares of Stock subject to outstanding Purchase Rights shall not be
adjusted, provided, however, that the Purchase Date with respect to Purchase Rights granted
pursuant to a Non-423(b) Plan shall be accelerated as contemplated by the foregoing sentence only
to the extent the event constituting the Change in Control qualifies as a change in ownership or
change in effective control of the Company or a change in ownership of a substantial portion of
the assets of the Company, as these concepts are defined in U.S. Treas. Reg. § 1.409A-3(i)(5) or
successor provisions. All Purchase Rights which are neither assumed by the Acquiring Corporation
in connection with the Change in Control nor exercised as of the date of the Change in Control
shall terminate and cease to be outstanding effective as of the date of the Change in Control.
SECTION 15 Nontransferability of Purchase Rights.
Neither payroll deductions nor a Participants Purchase Right may be assigned, transferred,
pledged or otherwise disposed of in any manner other than as provided by the Plan or by will or the
laws of descent and distribution. Any such attempted assignment, transfer, pledge or other
disposition shall be without effect, except that the Company may treat such act as an election to
withdraw from the Plan as provided in Section 12.1. A Purchase Right shall be exercisable during
the lifetime of the Participant only by the Participant.
SECTION 16 Compliance with Securities Law and Other Applicable Requirements.
The issuance of shares under the Plan shall be subject to compliance with all applicable
requirements of federal, state and foreign law with respect to such securities. A Purchase Right
may not be exercised if the issuance of shares upon such exercise would constitute a violation of
any applicable federal, state or foreign securities laws or other law or
regulations or the requirements of any securities exchange or market system upon which the
Stock may then be listed. In addition, no Purchase Right may be exercised unless (a) a
registration statement under the U.S. Securities Act of 1933, as amended, shall at the time of
exercise of the Purchase Right be in effect with respect to the shares issuable upon exercise of
the Purchase Right, or (b) in the opinion of legal counsel to the Company, the shares issuable upon
exercise of the Purchase Right may be issued in accordance with the terms of an applicable
exemption from the registration requirements of said Act. The inability of the Company to obtain
from any regulatory body having jurisdiction the authority, if any, deemed by the Companys legal
counsel to be necessary to the lawful issuance and sale of any shares under the Plan shall relieve
the Company of any liability in respect of the failure to issue or sell such shares as to which
such requisite authority shall not have been obtained. Anything in the foregoing to the contrary
notwithstanding, Purchase Rights granted under a Non-423(b) Plan may be suspended, delayed or
otherwise deferred for any of the reasons contemplated in this Section 16 only to the extent such
suspension, delay or deferral is permitted under U.S. Treas. Reg. §§ 1.409A-2(b)(7),
1.409A-1(b)(4)(ii) or successor provisions, or as otherwise permitted under Section 409A of the
Code. As a condition to the exercise of a Purchase Right, the Company may require the Participant
to satisfy any qualifications that may be necessary or appropriate, to evidence compliance with any
applicable law or regulation, and to make any representation or warranty with respect thereto as
may be requested by the Company.
SECTION 17 Rules for Foreign Jurisdictions.
17.1 Compliance with Foreign Law. The Board or Committee may adopt rules or
procedures relating to the operation and administration of the Plan to accommodate the specific
requirements of local laws and procedures. Without limiting the generality of the foregoing, the
Board or Committee is specifically authorized to adopt rules and procedures regarding handling of
payroll deductions, payment of interest, conversion of local currency, payroll tax, withholding
procedures and handling of stock certificates which vary with local requirements.
17.2 Non-423(b) Plan Component. The Board or Committee may also adopt rules,
procedures or sub-plans applicable to particular Participating Companies or locations, which
sub-plans may be designed to be outside the scope of Code Section 423. The rules of such sub-plans
may take precedence over other provisions of this Plan, with the exception of Section 4.1, but
unless otherwise superseded by the terms of such sub-plan, the provisions of this Plan shall govern
the operation of such sub-plan. To the extent inconsistent with the requirements of Section 423,
such sub-plan shall be considered part of the Non-423(b) Plan, and rights granted thereunder shall
not be considered to comply with Code Section 423.
SECTION 18 Rights as a Stockholder and Employee.
A Participant shall have no rights as a stockholder by virtue of the Participants
participation in the Plan until the date of the issuance of shares purchased pursuant to the
exercise of the Participants Purchase Right (as evidenced by the appropriate entry on the books of
the Company or of a duly authorized transfer agent of the Company). No adjustment shall be made
for dividends, distributions or other rights for which the record date is prior to the date such
share is issued, except as provided in Section 4.2. Nothing herein shall confer upon a
Participant any right to continue in the employ of the Participating Company Group or
interfere in any way with any right of the Participating Company Group to terminate the
Participants employment at any time.
SECTION 19 Distribution on Death.
If a Participant dies, the Company shall deliver any shares or cash credited to the
Participant to the Participants legal representative.
SECTION 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
Company at the location, or by the person, designated by the Company for the receipt thereof.
SECTION 21 Amendment or Termination of the Plan.
The Board may at any time amend or terminate the Plan, except that (a) such termination shall
not affect Purchase Rights previously granted under the Plan, except as permitted under the Plan,
and (b) no amendment may adversely affect a Purchase Right previously granted under the Plan
(except to the extent permitted by the Plan or as may be necessary to qualify the Code Section
423(b) Plan as an employee stock purchase plan pursuant to Section 423 of the Code or to obtain
qualification or registration of the shares of Stock under applicable federal, state or foreign
securities laws). In addition, an amendment to the Plan must be approved by the stockholders of
the Company within twelve (12) months of the adoption of such amendment if such amendment would
increase the maximum aggregate number of shares of Stock that may be issued under the Plan (except
by operation of the provisions of Section 4.1 or Section 4.2) or would change the definition of the
corporations that may be designated by the Board as Participating Companies.
||SECTION 22 Code Section 409A.
The Code Section 423(b) Plan is exempt from the application of Section 409A. The Non-423(b)
Plan is intended to comply and shall be administered in a manner that is intended to comply with
Section 409A of the Code and shall be construed and interpreted in accordance with such intent. To
the extent a Purchase Right or the vesting, payment, settlement or deferral thereof is subject to
Section 409A of the Code, the Purchase Right shall be granted, paid, exercised, settled or deferred
in a manner that will comply with Section 409A of the Code, including the final regulations and
other guidance issued with respect thereto, except as otherwise determined by the Committee. Any
provision of the Non-423(b) Plan that would cause the grant of a Purchase Right or the payment,
settlement or deferral thereof to fail to satisfy Section 409A of the Code shall be amended to
comply with Section 409A of the Code on a timely basis, which amendment may be made on a
retroactive basis, in accordance with the final regulations and guidance issued under Section 409A
of the Code. Notwithstanding the foregoing, the Company shall have no liability to a Participant
or any other party if the Purchase Right that is intended to be exempt from, or compliant with
Section 409A of the Code is not so exempt or compliant or for any action taken by the Committee
with respect thereto.