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1.
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Purpose. The
purpose of the Plan is to provide eligible employees of the Company and
its Designated Subsidiaries with an opportunity to purchase Common Stock
of the Company through accumulated payroll deductions and Interest accrued
thereon. It is the intention of the Company to have the Plan
qualify as an “Employee Stock Purchase Plan” under Section 423 of the
Code. Accordingly, the provisions of the Plan shall be
construed so as to extend and limit participation in a manner consistent
with the requirements of Section 423 of the
Code.
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2.
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Definitions.
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(a)
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“Board” shall
mean the Board of Directors of the Company or, as applicable, one or more
individuals or a committee to which the Board has delegated authority or
responsibility hereunder pursuant to Section
13(b).
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(b)
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“Code” shall
mean the Internal Revenue Code of 1986, as
amended.
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(c)
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“Common Stock”
shall mean the common stock of the
Company.
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(d)
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“Company” shall
mean Cree, Inc., a North Carolina
corporation.
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(e)
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“Compensation”
shall mean the total cash remuneration paid, during the period of
reference, to an Employee by the Employer, including but not limited to
salary, wages, performance bonuses, commissions, incentive compensation
and overtime, and including any amounts the Employee elects to defer or
exclude from income under a deferred compensation Plan or an employee
benefit Plan of an Employer, but excluding relocation, equalization,
patent, sign-on and make-up bonuses, expense reimbursements of all types,
payments in lieu of expenses, meal allowances, commuting or automobile
allowances, any payments (such as guaranteed bonuses in certain foreign
jurisdictions) with respect to which salary reductions are not permitted
by the laws of the applicable jurisdiction, income realized as a result of
participation in any stock Plan, including without limitation any stock
option, stock award, stock purchase, or similar Plan, of an Employer,
Employer contributions to any qualified retirement Plan or other program
of deferred compensation (except as provided above), Employer
contributions to Social Security or workers’ compensation, costs paid by
an Employer in connection with fringe benefits and relocation, including
gross-ups, and any amounts accrued for the benefit of the Employee, but
not paid, during the period of
reference.
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(f)
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“Designated
Subsidiary” shall mean any Subsidiary that has been designated by
the Board from time to time in its sole discretion as eligible to
participate in the Plan.
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(g)
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“Employee” shall
mean any individual who is an employee of an Employer for tax purposes,
other than such an individual who is subject to the laws of a country that
would prohibit the Employee’s participation in the Plan. 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 Employer. Where the period of leave
exceeds 90 days and the individual’s right to reemployment is not
guaranteed either by statute or by contract, the employment relationship
shall be deemed to have terminated on the 91st day of such
leave.
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(h)
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“Employer” shall
mean the Company and any Designated Subsidiary of the
Company.
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(i)
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“Enrollment
Date” shall mean the first day of a Participation
Period.
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(j)
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“Fair Market
Value” shall mean, as of any date, the value of the Common Stock
determined as follows:
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(i)
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If
the Common Stock is listed on any established stock exchange or national
market system, including without limitation the Nasdaq National Market or
The Nasdaq SmallCap Market of The Nasdaq Stock Market, its Fair Market
Value shall be the closing price for such stock quoted on such exchange on
the date of determination, as reported by the Nasdaq-Amex Reporting
Service or such other source as the Board deems reliable, unless such date
is not a Trading Day, in which case it shall be the closing price quoted
on such exchange on the last Trading Day immediately preceding the date of
determination, and
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(ii)
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If
the Common Stock is regularly quoted by a recognized securities dealer but
selling prices are not reported, its Fair Market Value shall be the
closing price for such stock on the date of determination, as quoted by
such source as the Board deems reliable, unless such date is not a Trading
Day, in which case it shall be the closing price quoted on the last
Trading Day immediately preceding the date of determination,
and
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(iii)
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In
the absence of an established market for the Common Stock, the Fair Market
Value shall be determined in good faith by the
Board.
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(k)
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“Interest” shall
mean interest accrued on payroll deductions under the
Plan.
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(l)
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“Interest Rate”
shall mean the rate at which payroll deductions accrue
Interest. The interest rate in effect during a Participation
Period shall be determined by the Board in its sole
discretion.
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(m)
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“Participant”
shall mean an eligible Employee who has enrolled in the
Plan.
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(n)
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“Participation
Period” shall mean the period during which an option granted
pursuant to the Plan may be exercised, beginning November 1 and May 1 of
each year and ending the next following April 30 and October 31,
respectively; provided, however, that the first Participation Period under
the Plan shall begin November 3, 2005 and shall end April 30,
2006. The Board may change the duration and timing of
Participation Periods, provided that any such change is announced at least
10 days prior to the scheduled beginning of the first Participation Period
to be affected thereafter. As used herein, “Participation
Period” shall also mean “Special Participation Period,” where
applicable.
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(o)
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“Plan” shall
mean this 2005 Employee Stock Purchase Plan, as it may be amended from
time to time.
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(p)
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“Purchase Date”
shall mean the last day of a Participation Period. The Board
may change the timing of Purchase Dates, provided that any such change is
announced at least 10 days prior to the scheduled beginning of the first
Participation Period to be affected
thereafter.
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(q)
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“Purchase Price”
shall mean an amount equal to the sum of (a) 85% of the Fair Market Value
of a share of Common Stock on the Purchase Date, and (b) any transfer,
excise, or similar tax imposed on the transaction pursuant to which such
share of Stock is purchased. The Purchase Price may be adjusted
by the Board pursuant to Section 18
hereof.
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(r)
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“Reserves” shall
mean the number of shares of Common Stock covered by options under the
Plan that have not been exercised and the number of shares of Common Stock
that have been authorized for issuance under the Plan but not placed under
option.
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(s)
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“Special Participation
Periods” shall mean interim Participation Periods enabling
Employees of Subsidiaries that become Designated Subsidiaries of the
Company after an Enrollment Date but more than three (3) months prior to
the next succeeding Enrollment Date to participate in the
Plan. The Enrollment Date of a Special Participation Period
shall be a date specified by the Board, and the last day of a Special
Participation Period shall be the next succeeding Purchase Date under the
Plan.
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(t)
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“Subsidiary”
shall mean a corporation, domestic or foreign, other than the Company, in
an unbroken chain of corporations beginning with the Company, if, at the
time of grant of an option under the Plan, each of the corporations other
than the last corporation in the unbroken chain owns stock possessing 50%
or more of the total combined voting power of all classes of stock in one
of the other corporations in such
chain.
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(u)
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“Trading Day”
shall mean a day on which national stock exchanges and the Nasdaq System
are open for trading.
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3.
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Eligibility.
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(a)
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Any
Employee employed by an Employer for 30 continuous days prior to a given
Enrollment Date shall be eligible to participate in the
Plan. The foregoing notwithstanding, only employees of the
applicable Designated Subsidiary shall be eligible to participate in a
Special Participation Period.
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(b)
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Any
provisions of the Plan to the contrary notwithstanding, no Employee shall
be granted an option under the Plan to the extent that (i) immediately
after such grant, such Employee (or any other person whose stock would be
attributed to such Employee pursuant to Section 424(d) of the Code) would
own capital stock (and/or hold outstanding options to purchase capital
stock) representing 5% or more of the total combined voting power or value
of all classes of the capital stock of the Company or of any Subsidiary,
or (ii) the Employee’s rights to purchase stock under all employee stock
purchase plans of the Company and its Subsidiaries accrues at a rate that
exceeds $25,000 of stock (determined at the Fair Market Value of the
shares on the date of grant) for each calendar year in which such option
is outstanding at any time (or such lower limitations that may be imposed
with respect to eligible Employees who are subject to laws of a foreign
jurisdiction where lower limitations are
required).
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4.
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Participation.
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(a)
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An
eligible Employee may become a Participant in the Plan by completing a
subscription agreement in a form provided by the Board authorizing payroll
deductions and contributions of Interest and filing it with the Company’s
stock plan administrator at such time in advance of the applicable
Enrollment Date as the Board may prescribe, or through telephone or other
electronic arrangements as the Board may prescribe. To the
extent an Employer is subject to rules of a foreign country that prohibit
payroll deductions with respect to any eligible Employee, the Company may
authorize alternative methods by which such eligible Employee can elect to
participate in the Plan.
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(b)
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Payroll
deductions for a Participant shall begin with the first pay day following
the Enrollment Date and shall end with the last pay day in the
Participation Period to which such authorization is applicable, unless
sooner terminated by the Participant as provided in Section 9
hereof.
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5.
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Payroll Deductions and
Interest.
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(a)
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At
the time a Participant files a subscription agreement, the Participant
shall elect to have payroll deductions made on each pay day during the
Participation Period not exceeding 15% of the
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Compensation
that the Participant receives on each pay day during the Participation
Period. In addition, Interest shall accrue on the Participant’s
account and be used to purchase shares of Common Stock under the Plan each
Purchase Date.
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(b)
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All
payroll deductions made for a Participant shall be credited to the
Participant’s account under the Plan and shall be withheld in whole
percentages only. All Interest accrued under the Plan shall be
credited to a Participant’s account under the
Plan.
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(c)
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A
Participant may discontinue his or her participation in the Plan as
provided in Section 9 hereof or may decrease to as low as 0% the rate of
his or her payroll deductions by completing and filing with the Company a
new subscription agreement authorizing a change in payroll deduction
rate. A change in rate shall be effective with the first full
payroll period that begins after the Company receives the new subscription
agreement.
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(d)
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A
Participant’s subscription agreement shall remain in effect for successive
Participation Periods unless specified otherwise or changed or terminated
as provided in Section 9 hereof.
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(e)
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Notwithstanding
the foregoing, to the extent necessary to comply with the $25,000
calendar-year accrual and the 5% ownership limitations set forth in
Section 3(b), a Participant’s payroll deductions may be decreased to 0%
and the Participant’s Interest accruals may cease at any time prior to a
Purchase Date. Payroll deductions at the rate provided in such
Participant’s subscription agreement and Interest accruals shall resume
immediately following such Purchase Date, unless terminated by the
Participant as provided in Section 9
hereof.
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6.
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Grant of
Option. On the Enrollment Date of each Participation
Period, each Participant shall be granted an option to purchase on the
Purchase Date of the Participation Period at the applicable Purchase Price
up to the number of shares of Common Stock determined by dividing the sum
of the Participant’s payroll deductions accumulated prior to such Purchase
Date and retained in the Participant’s account plus the Interest accrued
on such payroll deductions, by the applicable Purchase Price; provided,
however, that in no event shall a Participant be permitted to purchase on
any Purchase Date more than 2,000 shares of Common Stock (subject to
adjustment pursuant to Section 17), and provided further that such
purchase shall be subject to the limitations set forth in Sections 3(b)
and 12. The Board may, in its absolute discretion, for future
Participation Periods increase or decrease the maximum number of shares of
Common Stock a Participant may purchase on a Purchase
Date. Exercise of an option shall occur as provided in Section
7, unless the Participant has withdrawn pursuant to Section
9.
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7.
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Exercise of
Option.
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(a)
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Unless
a Participant withdraws from the Plan as provided in Section 9, the
Participant’s option shall be exercised automatically on each Purchase
Date, and the maximum number of full shares subject to the option shall be
purchased for the Participant at the applicable Purchase Price with the
accumulated payroll deductions and Interest in the Participant’s
account. No fractional shares shall be
purchased. Any payroll deductions and Interest accumulated in a
Participant’s account that are not sufficient to purchase a full share or
that exceed the amount necessary to purchase the maximum number of shares
specified in Section 6 shall be retained in the Participant’s account
until the next Purchase Date, subject to earlier withdrawal by the
Participant as provided in Section
9.
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(b)
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If
the Board determines that on a given Purchase Date the number of shares
with respect to which options are to be exercised exceed the number of
shares of Common Stock available for sale under the Plan as of such
Purchase Date, the Board may, in its sole discretion, provide that the
Company shall make a pro rata allocation of the shares of Common Stock
available for purchase on such Purchase Date in as uniform a manner as
shall be practicable and as it shall determine in its sole discretion to
be equitable among all Participants. With respect to any payroll
deductions and Interest accumulated in a Participant’s account that are
not used to purchase shares of Common
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Stock
in a Participation Period pursuant to the preceding sentence, the Board
shall, in its sole discretion, (i) direct payment of such payroll
deductions and Interest to the Participant, or (ii) retain such deductions
and Interest in a Participant’s account in anticipation of authorization
of additional shares for issuance under the Plan by the Company’s
stockholders with respect to a subsequent Participation
Period. In the event the Board, in its sole discretion,
determines that it shall not seek authorization from the Company’s
stockholders for additional shares for issuance under the Plan with
respect to a subsequent Participation Period, the Plan shall automatically
terminate.
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(c)
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All
rights to purchase Common Stock offered on a Purchase Date must be
exercised within five (5) years of such Purchase
Date.
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8.
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Delivery.
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(a)
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As
promptly as practicable after each Purchase Date, the Company shall
arrange the delivery, electronically or otherwise, to accounts in the
Participants’ names at a brokerage company selected by the Company of the
shares purchased upon exercise of options. At the election of
the Participant, such account shall be set up in the name of the
Participant or the names of the Participant and his or her
spouse.
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(b)
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A
Participant may withdraw certificates from his or her shares of Common
Stock credited to his or her brokerage account at any time (subject to
reasonable costs, which are the responsibility of the Participant) by a
written request for such withdrawal delivered to the Board or through
telephone or other electronic arrangements as may be established by the
Board. Any stock certificate distributed to a Participant may
contain a legend requiring notification to the Company of any transfer or
sale of the shares of Common Stock prior to the date two years after the
beginning date of a Participation Period pursuant to which the shares were
purchased.
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9.
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Withdrawal.
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(a)
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A
Participant may withdraw all, but not less than all, of the payroll
deductions and Interest credited to the Participant’s account at any time
by giving written notice to the Company in a form provided by the
Company. Such payroll deductions and Interest shall be paid to
the Participant promptly after receipt of the Participant’s notice of
withdrawal. The Participant’s option for the Participation
Period shall automatically terminate, and no further payroll deductions
for the purchase of shares shall be made and no further Interest shall
accrue for such Participation Period. If a Participant
withdraws from a Participation Period, payroll deductions for the
Participant’s account and Interest accruals shall not resume at the
beginning of the next succeeding Participation Period unless the
Participant delivers to the Company a new subscription
agreement.
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(b)
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A
Participant’s withdrawal from a Participation Period shall not have any
effect upon the Participant’s eligibility to participate in any similar
Plan that may thereafter be adopted by an Employer or in any succeeding
Participation Period that begins after the Participation Period from which
the Participant withdraws.
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10.
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Termination of
Employment. Upon a Participant’s ceasing to be an
Employee for any reason, the Participant shall be deemed to have withdrawn
from the Plan, and the payroll deductions and Interest credited to the
Participant’s account under the Plan during the Participation Period but
not yet used to exercise the Participant’s option shall be returned and
paid to the Participant.
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11.
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Interest. Interest
shall accrue on the payroll deductions of a Participant in the
Plan. The Interest rate and the manner of crediting Interest to
Participant’s accounts under the Plan shall be determined by the Board in
its sole discretion.
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12.
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Stock.
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(a)
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Subject
to adjustment pursuant to Section 17, the maximum number of shares of the
Common Stock authorized for issuance under the Plan is one million five
hundred thousand (1,500,000) shares. Such shares shall be made
available from Common Stock currently authorized but
unissued.
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(b)
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Participants
shall have no interest or voting rights in shares covered by options until
such options have been exercised.
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13.
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Administration.
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(a)
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The
Plan shall be administered by the Board. The Board shall have
the authority and power to administer the Plan and to make, adopt,
construe, and enforce rules and regulations not inconsistent with the
provisions of the Plan. The Board shall adopt and prescribe the
contents of all forms required in connection with the administration of
the Plan, including, but not limited to, the subscription agreement,
payroll withholding authorizations, withdrawal documents, and all other
notices required hereunder. The Board 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 Board shall, to the full extent permitted by
law, be final and binding upon all
parties.
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(b)
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Notwithstanding
the foregoing, the Board may delegate, by resolutions adopted prior to or
after the effective date of this Plan, any or all of its authority and
responsibilities hereunder to such individual(s) or committee (which may
be comprised of Employees, members of the Board, or a combination thereof)
as the Board shall designate, to the extent such delegation is permitted
by applicable law, the articles and bylaws of the Company and the
applicable stock exchange or national market system rules. In
the event of such delegation, all references herein to the Board shall, to
the extent applicable, be deemed to refer to and include such
individual(s) or committee.
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14.
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Transferability. No
payroll deductions or Interest credited to a Participant’s account under
the Plan and no rights with regard to the exercise of an option under the
Plan may be assigned, transferred, pledged or otherwise disposed of in any
way by the Participant (other than by will or the laws of descent and
distribution). Any such attempt at 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 in accordance with
Section 9 hereof.
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15.
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Use of
Funds. Payroll deductions and Interest received or held
by an Employer under the Plan may be used by such Employer for any
corporate purpose. The Employer shall not be obligated to
segregate such payroll deductions and
Interest.
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16.
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Reports. Individual
accounts shall be maintained for each Participant in the
Plan. Statements of account shall be given to Participants
following each Purchase Date, which statements shall set forth the amounts
of payroll deductions and Interest, the Purchase Price, the number of
shares purchased and the remaining cash balance, if
any.
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17.
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Adjustments Upon
Changes in Capitalization, Dissolution, Liquidation, Merger or Asset
Sale.
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(a)
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Subject
to any required action by the stockholders of the Company, the Reserves,
the maximum number of shares each Participant may purchase on a Purchase
Date and the price per share and the number of shares of Common Stock
covered by each outstanding option shall be proportionately adjusted for
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 or any other increase
or decrease in the number of shares of Common Stock effected without
receipt of consideration by the Company. The conversion of
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convertible
securities of the Company shall not be deemed to have been “effected
without receipt of consideration.” Such adjustments shall be
made by the Board, whose determination shall be final, binding and
conclusive. Except as expressly provided herein, 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 thereof shall be made with respect to, the number or price of
shares of Common Stock subject to an
option.
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(b)
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In
the event of the proposed dissolution or liquidation of the Company, the
Participation Periods then in progress shall be shortened by setting a new
Purchase Date (the “New Purchase Date”) and shall terminate immediately
prior to the consummation of such proposed dissolution or liquidation,
unless provided otherwise by the Board. The New Purchase Date
shall be prior to the date of the Company’s proposed dissolution or
liquidation. The Board shall notify each Participant in writing
at least 10 business days prior to the New Purchase Date that the Purchase
Date for the Participant’s option has been changed to the New Purchase
Date and that the Participant’s option shall be exercised automatically on
the New Purchase Date, unless prior to such date the Participant has
withdrawn from the Participation Period as provided in Section
9.
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(c)
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In
the event of a proposed sale of all or substantially all of the assets of
the Company, or the merger of the Company with or into another
corporation, outstanding options shall be assumed or equivalent options
substituted by the successor corporation or a parent or Subsidiary of the
successor corporation. In the event that the successor
corporation refuses to assume or substitute for the options, the
Participation Periods then in progress shall be shortened by setting a New
Purchase Date. The New Purchase Date shall be prior to the date
of the Company’s proposed sale or merger. The Board shall
notify each Participant in writing at least 10 business days prior to the
New Purchase Date that the Purchase Date for the Participant’s option has
been changed to the New Purchase Date and that the Participant’s option
shall be exercised automatically on the New Purchase Date, unless prior to
such date the Participant has withdrawn from the Participation Period as
provided in Section 9.
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18.
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Amendment or
Termination.
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(a)
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The
Board may at any time and for any reason amend the Plan without the
consent of stockholders or Participants, except that any such action shall
be subject to the approval of the Company’s stockholders at or before the
next annual meeting of stockholders for which the record date is set after
such Board action if such stockholder approval is required by any federal
or state law or regulation or the rules of any stock exchange or automated
quotation system on which the Stock may then be listed or quoted, and the
Board may otherwise in its discretion determine to submit other such
changes to the Plan to stockholders for approval; provided, however, that
no such action may (i) without the consent of an affected Participant,
materially impair the rights of such Participant with respect to any
shares of Common Stock theretofore purchased for him or her under the
Plan, or (ii) disqualify the Plan under Section 423 of the
Code.
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(b)
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Without
stockholder consent and without regard to whether any Participant rights
may be considered to have been adversely affected, the Board shall be
entitled to change the Participation Periods, limit the frequency and/or
number of changes permitted in the amount withheld during a Participation
Period, establish the exchange ratio applicable to amounts withheld in a
currency other than U. S. Dollars, permit payroll withholding in excess of
the amount designated by a Participant in order to adjust for delays or
mistakes in the Employer’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 to
amounts withheld from the Participant’s Compensation, change the Interest
Rate and the manner of crediting Interest to a Participant’s account, and
establish such other limitations and procedures that the Board determines
in its sole discretion advisable and that are consistent with the
Plan.
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(c)
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If
the Board determines that the ongoing operation of the Plan may result in
unfavorable financial accounting consequences, the Board may, in its
discretion and to the extent necessary or desirable, modify or amend the
Plan to reduce or eliminate such accounting consequences, including, but
not limited to:
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(i)
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Increasing
the Purchase Price for any Participation Period, including a Participation
Period underway at the time of the change in Purchase
Price;
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(ii)
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Shortening
any Participation Period so that the Participation Period ends on a new
Purchase Date, including a Participation Period underway at the time of
the Board action; and
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(iii)
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Allocating
shares.
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Such
modifications or amendments shall not require stockholder approval or the
consent of any Plan Participants.
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(d)
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Subject
to Section 7(b), the Plan shall continue in effect unless terminated
pursuant to action by the Board, which shall have the right to terminate
the Plan at any time without prior notice to any Participant and without
liability to any Participant. Upon the termination of the Plan,
the balance, if any, then standing to the credit of each Participant in
his or her Plan account shall be paid to the Participant and shares of
Common Stock theretofore purchased for the Participant under the Plan
shall continue to be handled in the manner provided in Section
8.
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19.
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Rules for Foreign
Jurisdictions. Notwithstanding anything in the Plan to
the contrary, the Board may, in its sole discretion, amend or vary the
terms of the Plan in order to conform such terms to the requirements of a
jurisdiction outside of the United States in which an eligible Employee is
located in order to meet the goals and objective of the Plan; establish
one or more sub-plans for these purposes; and/or establish administrative
rules and procedures to facilitate the operation of the Plan in such
jurisdictions. For purposes of clarity, the terms and
conditions contained herein that are subject to variation in jurisdiction
outside of the United States shall be reflected in a written addendum to
the Plan for each Employer of an eligible Employee located in such a
jurisdiction.
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20.
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Administrative
Costs. The Company will pay the expenses incurred in the
administration of the Plan other than any fees or transfer, excise, or
similar taxes imposed on the transaction pursuant to which any shares of
Stock are purchased. The Participant will pay any transaction
fees or commissions on any sale of the shares of Common Stock and may also
be charged the reasonable costs associated with issuing a stock
certificate.
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21.
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Tax
Obligations. To the extent any (i) grant of an option to
purchase Common Stock hereunder, (ii) purchase of Common Stock hereunder,
or (iii) disposition of Common Stock purchased hereunder gives rise to any
tax withholding obligation (including, without limitation, income and
payroll withholding taxes imposed by any jurisdiction), the Board may
implement appropriate procedures to ensure that such tax withholding
obligations are met. Such procedures may include, without limitation,
increased withholding from an Employee’s current compensation, cash
payments to an Employer by an Employee, or a sale of a portion of the
Common Stock purchased under the Plan, which sale may be required and
initiated by the Company. Any such procedure, including offering choices
among procedures, will be applied consistently with respect to all
similarly situated Employees participating in the Plan (or in an offering
under the Plan), except to the extent any procedure may not be permitted
under the laws of the applicable
jurisdiction.
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22.
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Notices. All
notices or other communications by a Participant to the Company 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.
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23.
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Conditions Upon
Issuance of Shares. Shares shall not be issued with
respect to an option unless the exercise of such option and the delivery
of such shares complies with all applicable provisions of law, domestic or
foreign, including, without limitation, the Code, the Securities Act of
1933, as amended, the Securities Exchange Act of 1934, as amended, the
rules and regulations promulgated thereunder, and the requirements of any
stock exchange upon which the shares may then be listed, and shall be
further subject to the approval of counsel for the Company with respect to
such compliance.
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24.
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Term of
Plan. The Plan shall become effective on November 3,
2005, subject to and conditioned upon the stockholders of the Company
approving the Plan at their annual meeting on such date. It
shall continue in effect for a term of 10 years unless sooner terminated
under Section 18 hereof.
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25.
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Severability of
Provisions; Prevailing Law. The provisions of the Plan
shall be deemed severable. If any such provision is determined
to be unlawful or unenforceable by a court of competent jurisdiction or by
reason of a change in an applicable statute, the Plan shall continue to
exist as though such provision had never been included therein (or, in the
case of a change in an applicable statute, had been deleted as of the date
of such change). The Plan shall be governed by the laws of the
State of North Carolina, to the extent such laws are not in conflict with,
or superseded by, federal law.
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26.
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Authorization to
Release Necessary Personal
Information.
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(a)
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As
a condition of participating in the Plan, each Employee hereby authorizes
and directs Employee’s employer to collect, use and transfer in electronic
or other form, any personal information (the “Data”) regarding Employee’s
employment, the nature and amount of Employee’s compensation and the fact
and conditions of Employee’s participation in the Plan (including, but not
limited to, Employee’s name, home address, telephone number, date of
birth, social security number (or any other social or national
identification number), salary, nationality, job title, number of shares
of Common Stock held and the details of all options or any other
entitlement to shares of Common Stock awarded, cancelled, exercised or
outstanding) for the purpose of implementing, administering and managing
Employee’s participation in the Plan. Employee understands that the Data
may be transferred to the Company or any of its Subsidiaries, or to any
third parties assisting in the implementation, administration and
management of the Plan, including any requisite transfer to a broker or
other third party assisting with the exercise of options under the Plan or
with whom shares of Common Stock acquired upon exercise of this option or
cash from the sale of such shares may be deposited. Employee acknowledges
that recipients of the Data may be located in different countries, and
those countries may have data privacy laws and protections different from
those in the country of Employee’s residence. Furthermore, Employee
acknowledges and understands that the transfer of the Data to the Company
or any of its Subsidiaries, or to any third parties is necessary for
Employee’s participation in the
Plan.
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(b)
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Employee
may at any time withdraw the consents herein, by contacting Employee’s
local human resources representative in writing. Employee further
acknowledges that withdrawal of consent may affect Employee’s ability to
exercise or realize benefits from the option, and Employee’s ability to
participate in the Plan.
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