Exhibit 4.11


 


AGA MEDICAL
HOLDINGS, INC.

2008 EMPLOYEE STOCK PURCHASE PLAN


 


ARTICLE I — PURPOSE


 


1.01.  Purpose


 


The AGA Medical Holdings, Inc.
2008 Employee Stock Purchase Plan is intended to provide a method whereby
employees of the Company and its Corporate Affiliates will have an opportunity
to acquire a proprietary interest in the Company through the purchase of Stock.
It is the intention of the Company to have the Plan qualify as an “employee
stock purchase plan” under Section 423 of the Internal Revenue Code of
1986, as amended. The provisions of the Plan shall be construed so as to extend
and limit participation in a manner consistent with the requirements of Code Section 423.


 


The Plan was adopted by the Board
and ratified by the Company’s stockholders on October 20, 2009 (the “Effective
Date”).


 


ARTICLE II — DEFINITIONS


 


2.01.  Base Pay


 


“Base Pay” shall mean regular
straight time earnings annualized as of the relevant Offering Commencement
Date, excluding payments, if any, for overtime, incentive compensation,
commissions, incentive payments, premiums, bonuses, and any other special
remuneration; provided, however, that for a Participant for whom Sales-related
Compensation accounts for 35% or more of total compensation (regular straight
time earnings plus Sales-related Compensation) of the Participant as of the
Offering Commencement Date of the relevant Offering, “Base Pay” shall mean 65%
of the sum of regular straight time earnings annualized as of the relevant
Offering Commencement Date, excluding payments, if any, for overtime, incentive
compensation, commissions, incentive payments, premiums, bonuses and any other
special remuneration, plus Sales-related Compensation.


 


2.02  Beneficial Owner


 


“Beneficial Owner” shall have the
meaning ascribed to such term in Rule 13d-3 under the Exchange Act (or any
successor rule thereto).


 


2.03  Board


 


“Board” means the Board of Directors
of the Company.


 


2.04.  Change in
Control


 


“Change in Control” of the Company
shall mean the occurrence of any of the following events after the date of the
Company’s Initial Public Offering:


 


(a)          the
sale or disposition, in one or a series of related transactions, of all or
substantially all, of the assets of the Company to any “person” or “group” (as
such terms are defined in Sections 13(d)(3) or 14(d)(2) of the
Exchange Act) other than the Permitted Holders;


 


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(b)         any
person or group, other than the Permitted Holders, is or becomes the Beneficial
Owner (except that a person shall be deemed to have “beneficial ownership” of
all shares of Stock that any such person has the right to acquire, whether such
right is exercisable immediately or only after the passage of time), directly
or indirectly, of more than 50% of the total voting power of the voting stock
of the Company (or any entity which controls the Company), including by way of
merger, consolidation, tender or exchange offer or otherwise;


 


(c)          a
reorganization, recapitalization, merger or consolidation (a “Corporate
Transaction”) involving the Company, unless securities representing more than
50% of the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors of the Company or the
corporation resulting from such Corporate Transaction (or the parent of such
corporation) are held subsequent to such transaction by the person or persons
who were the Beneficial Owners of the outstanding voting securities entitled to
vote generally in the election of directors of the Company immediately prior to
such Corporate Transaction, in substantially the same proportions as their
ownership immediately prior to such Corporate Transaction; or


 


(d)         during
any twelve-month period, individuals who at the beginning of such period
constituted the Board (together with any new directors whose election by such
Board or whose nomination for election by the shareholders of the Company was
approved by a vote of a majority of the directors of the Company, then still in
office, who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for any
reason to constitute a majority of the Board, then in office.


 


2.05.  Code


 


“Code” shall mean the Internal
Revenue Code of 1986, as amended.


 


2.06.  Committee


 


“Committee” shall mean the
individuals appointed by the Company to administer the Plan as described in Article IX.


 


2.07.  Company


 


“Company” shall mean AGA Medical
Holdings, Inc.


 


2.08.  Corporate
Affiliate


 


“Corporate Affiliate” shall mean any
parent or subsidiary corporation or limited liability company of the Company
(as determined in accordance with Code section 424), whether now existing or
subsequently established, and as designated as a ‘Corporate Affiliate’ by the
Committee.


 


2.09.  Eligible
Employee


 


“Eligible Employee” means, unless
local laws prohibit such employee’s participation in the Plan, and unless the
Committee determines otherwise, any regular employee of a Participating Company
who is scheduled to work 20 or more hours per week.


 


2.10.  Enrollment
Period


 


“Enrollment Period” shall mean with
respect to all Offerings other than the First Offering, the period designated
by the Committee prior to such Offering during which Eligible Employees may
authorize payroll deductions through a Subscription.  Unless the Committee
determines otherwise, the Enrollment Period with respect to any Offering shall
end on the fifteenth day of the month immediately preceding the Offering
Commencement Date and any 


 


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Subscription received after such
date shall be deemed to be an enrollment in the next following Offering. In the
case of the First Offering, all Eligible Employees shall be automatically
deemed to have entered a Subscription, as provided in Section 3.01.


 


2.11.  Exchange Act


 


“Exchange Act” shall mean the
Securities Exchange Act of 1934, as amended from time to time, or any successor
thereto.


 


2.12.  Fair Market
Value


 


The “Fair Market Value” of a share
of Stock on a given day shall be determined as follows:  (i) if the
Stock is listed on any established stock exchange or a national market system (a) for
any date of determination except the Purchase Date, Fair Market Value shall be
the closing sales price for such stock (or the closing bid, if no sale is
reported) as quoted on such exchange or system for the last market trading day
prior to the time of determination, as reported in The Wall Street Journal or such other source as the
Committee deems reliable; (b) for the Purchase Date, Fair Market Value
shall be the closing sales price for such stock (or the closing bid, if no sale
is reported) as quoted on such exchange or system on the Purchase Date, as
reported in The Wall Street Journal or
such other source as the Committee deems reliable, or (ii) in the absence
of an established market for the Stock, the Fair Market Value thereof shall be
determined in good faith by the Committee. Notwithstanding any other provision
of this Plan, the Fair Market Value of a share of Stock on the date of the
Company’s Initial Public Offering shall equal the opening price on such day
offered by the Company in connection with the Initial Public Offering.


 


2.13  First Offering


 


“First
Offering” shall mean the first Offering under this Plan, starting on the date
of the Company’s Initial Public Offering.


 


2.14.  Initial Public Offering


 


“Initial Public Offering” shall mean the Company’s initial public
offering of shares of Stock on the NASDAQ Global Market.


 


2.15.  Offering


 


“Offering” shall mean the offerings
of the Company’s Stock under this Plan (including the First Offering), the
duration of which shall generally be six (6) months, but shall not exceed
twenty seven (27) months.


 


2.16.  Offering
Commencement Date


 


“Offering Commencement Date” shall
mean the day the underwriting agreement is executed in connection the Company’s
Initial Public Offering and, unless determined otherwise by the Committee, the
first day of each Offering thereafter, as established by the Committee.


 


2.17.  Offering End
Date


 


“Offering End Date” shall mean, with
respect to the First Offering, June 30, 2010, and with respect to each
successive Offering under this Plan, such date as is established by the
Committee.


 


2.18.  Participant


 


“Participant” shall mean an Eligible
Employee who has elected to participate in an Offering by entering a
Subscription during the Enrollment Period for such Offering. In the case of the
First Offering, “Participant” shall 


 


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mean an Eligible Employee who does
not timely file an election to terminate his or her automatic Subscription in
the First Offering as provided in Section 3.04(a).


 


2.19.  Participating
Company


 


“Participating Company” shall mean
the Company and each Corporate Affiliate as may be authorized from time to time
by the Committee to extend the benefits of the Plan to their Eligible
Employees.


 


2. 20  Permitted Holder


 


“Permitted Holder” means, as of the
date of determination, any and all of: (i) an employee benefit plan (or
trust forming a part thereof) maintained by (A) the Company or (B) any
corporation or other Person of which a majority of its voting power of its
voting equity securities or equity interest is owned, directly or indirectly,
by the Company; (ii) WCAS; (iii) Franck L. Gougeon; (iv) any
trust or other entity created by Franck L. Gougeon, the principal beneficiaries
of which are Franck L. Gougeon and/or members of his family; (v) any
spouse of Franck L. Gougeon or any lineal descendants (whether natural or
adopted) of Franck L. Gougeon’s grandparents and their spouses; (vi) any
personal representative of Franck L. Gougeon or any of the Persons referred to
in (v) above acting within that capacity; and (vii) any Person which
is directly or indirectly controlled by any Person referred to in (iii) through
(vi) above or by any combination of them.


 


2. 21.  Person


 


“Person” shall have the meaning
ascribed to such term in Section 13(d) or 14(d) of the Exchange
Act (or any successor section thereto).


 


2.22.  Plan


 


“Plan” shall mean the AGA Medical
Holdings, Inc. 2009 Employee Stock Purchase Plan, as amended from time to
time.


 


2.23.  Purchase Date


 


“Purchase Date” shall mean with
respect to any Offering, the Offering End Date associated with such Offering
(or such other dates determined by the Committee prior to the Offering
Commencement Date or pursuant to Section 6.04); provided, however, if any
such day is not a business day, the Purchase Date shall be the next preceding
business date on which shares of Stock are traded.


 


2.24.  Sales-Related Compensation


 


“Sales-Related
Compensation” shall mean a Participant’s targeted level (at “plan”) of
commission-based incentive pay related directly to sales volume credited to an
Employee, measured as of the Offering Commencement Date for the relevant
Offering.


 


2.25.  Stock


 


“Stock” shall mean the common stock,
par value $1.00, of the Company.


 


2.26.  Subscription


 


“Subscription” shall mean an
Eligible Employee’s authorization for payment to be made by the Eligible
Employee for Stock purchases under this Plan in the form and manner specified
by the Committee (which may include enrollment by submitting forms, by voice
response, internet access or other electronic means).  Except as provided
in Section 3.04, and unless withdrawn earlier in accordance with Section 6.02,
each Subscription shall be in effect 


 


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for the duration of the Offering to
which it applies.  No more than one Subscription may be in effect for an
Eligible Employee with respect to any Offering.


 


2. 27.  WCAS


 


“WCAS” means Welsh, Carson, Anderson &
Stowe IX, L.P., a Delaware limited partnership, and any of its Corporate
Affiliates.


 


ARTICLE III — ELIGIBILITY AND
PARTICIPATION


 


3.01.  Initial
Eligibility


 


Except as provided otherwise by the
Committee, any individual who is an Eligible Employee as of the first Offering
Commencement Date (in conjunction with the Initial Public Offering) shall be
deemed eligible to participate in the First Offering, and shall further be
deemed to have entered a Subscription for the First Offering equal to 2% of the
Participant’s Base Pay, according to the terms and provisions of Section 3.04(a) .
Except as provided otherwise by the Committee, any individual who is an
Eligible Employee on an Offering Commencement Date with respect to Offerings
after the First Offering shall be eligible to participate in the Offering
commencing on such date, subject to the terms and conditions of the Plan.


 


3.02.  Leave of
Absence


 


For purposes of participation in the
Plan, a Participant on a leave of absence shall be deemed to be an employee for
a period of up to 90 days or, if longer, during the period the Participant’s
right to reemployment is guaranteed by statute or contract.  If the leave
of absence is paid, deductions authorized under any Subscription in effect at
the time the leave began will continue.  If the leave of absence is
unpaid, no deductions or contributions will be permitted during the
leave.  If such a Participant returns to active status within 90 days or the
guaranteed reemployment period, as applicable, payroll deductions under the
Subscription in effect at the time the leave began will automatically begin
again upon the Participant’s return to active status, unless the Subscription
has expired.  If the Participant does not return to active status within
90 days or the guaranteed reemployment period, as applicable, the Participant
shall be treated as having terminated employment for all purposes of the
Plan.  If such terminated Participant later returns to active employment
as an Eligible Employee or if a Participant returns to active employment as an
Eligible Employee after the Subscription has expired, such individual will be
treated as a new employee and will be eligible to participate in Offerings commencing
after his or her reemployment date by filing a Subscription during the
applicable Enrollment Period for such Offering.


 


3.03.  Restrictions
on Participation


 


Notwithstanding any provisions of
the Plan to the contrary, no Eligible Employee shall be granted a right to
purchase Stock:


 


(a)                                  if,
immediately after the grant, such employee would own Stock, and/or hold
outstanding options to purchase Stock, possessing 5% or more of the total
combined voting power or value of all classes of the Company’s stock (for
purposes of this paragraph, the rules of Section 424(d) of the
Code shall apply in determining stock ownership of any employee); or


 


(b)                                 which
permits the employee’s rights to purchase Stock under  all  employee
stock purchase plans of the Company to accrue at a rate which exceeds $25,000  in Fair Market Value of the Stock
(determined at the time such right to purchase Stock is granted) for each
calendar year in which such right is outstanding.


 


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3.04.  Commencement
of Participation


 


(a)                                  Participation in First Offering: Except as otherwise
provided by the Committee prior to the Offering Commencement Date associated
with the First Offering, all Eligible Employees shall be deemed a Participant
in the First Offering. Each Participant’s Subscription for the First Offering
shall automatically be deemed to equal 2% of Base Pay. At any point prior to
the Offering End Date of the First Offering, Participants may elect to
terminate their Subscriptions for such First Offering, in which case, such
Participants will no longer be eligible to participate in the First Offering.
Participants who do not timely elect to terminate their Subscriptions for the
First Offering shall continue to be treated as a Participant through the entire
First Offering. Payment of the Purchase Price for Stock purchased in the First
Offering shall be made by continuing Participants prior to the end of the First
Offering, according to terms established by the Committee.


 


(b)                                 Participation in Offerings after the First Offering: An
Eligible Employee may become a Participant in any Offering following the First
Offering by entering a Subscription during the Enrollment Period for such
Offering. Payroll deductions for such Offering shall commence on the applicable
Offering Commencement Date and shall end on the applicable Offering End Date
unless withdrawn by the Participant or sooner terminated in accordance with Article VII. 
Only one Subscription may be in effect with respect to any Participant at any one
time. A Participant may terminate his or her Subscription associated with an
Offering according to the provisions of Section 6.02.


 


3.05.  Participation
After Rehire


 


An Eligible Employee’s Subscription
will automatically terminate on the date he or she is no longer an employee of
any Participating Company.  If the Eligible Employee terminates employment
with a Subscription in effect with respect to an Offering and is rehired prior
to the Offering End Date for that Offering, the Subscription will not be reinstated
and the Eligible Employee will not be allowed to again make payroll deductions
under such Offering.  The Eligible Employee may elect to participate in
Offerings commencing after his or her reemployment date by entering a
Subscription during the applicable Enrollment Period for such Offering. 
Notwithstanding any other provision of this Plan, an Eligible Employee’s
transfer from one Participating Company to another shall not terminate such
Eligible Employee’s Subscription.


 


3.06.  International
Employees/International Transfers


 


Eligible Employees who transfer to a
Participating Company may not participate in Offerings which had an Offering
Commencement Date prior to such transfer.  Subject to Section 10.07,
such Eligible Employee may participate in Offerings commencing after such
transfer by entering a Subscription during the applicable Enrollment Period for
such Offering.


 


A Participant who transfers from a
Participating Company to either a Corporate Affiliate that is not a
Participating Company or a location that, by local law, prohibits participation
in any of the Company’s stock purchase plans will be treated as a terminated
Participant under this Plan.


 


ARTICLE IV — OFFERINGS


 


4.01.  Offering
Periods


 


The Plan will commence with the
First Offering and, unless determined otherwise by the Committee, will continue
in operation with new Offerings commencing after the Offering End Date for the
First Offering and successive Offerings, upon such schedule as is established
by the Committee. Eligible Employees may not have in effect more than one
Subscription with respect to any Offering.


 


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With respect to the First Offering,
Eligible Employees will be deemed to have entered a Subscription equal to 2% of
their Base Pay. In subsequent Offerings, Participants may subscribe to any
Offering by entering a Subscription during the Enrollment Period for such
Offering in such manner as the Committee may prescribe (which may include
enrollment by submitting forms, by voice response, internet access or other
electronic means).


 


A Subscription that is in effect on
an Offering End Date will automatically be deemed to be a Subscription for the
Offering that commences immediately following such Offering End Date, provided that
the Participant is still an Eligible Employee and has not withdrawn the
Subscription.  Under the foregoing automatic enrollment provisions,
payroll deductions will continue at the level in effect immediately prior to
the new Offering Commencement Date, unless changed in advance by the
Participant in accordance with Section 5.03.


 


4.02.  Purchase Price


 


The purchase price per share of
Stock under each Offering shall be the lower of:


 


(a)                                  85%
of the Fair Market Value of the Stock on the Offering Commencement Date; or


 


(b)                                 85%
of the Fair Market Value of the Stock on the Purchase Date.


 


Except as provided in Section 3.04(a) in
connection with the First Offering, such purchase price may only be paid with
accumulated payroll deductions in accordance with Article V.


 


ARTICLE V — PAYROLL DEDUCTIONS


 


5.01.  Amount of
Deduction


 


Except as provided otherwise in
connection with the First Offering, an Eligible Employee’s Subscription shall
authorize payroll deductions at a rate, in whole percentages, of no less than
1% and no more than 10% of Base Pay on each payday that the Subscription is in
effect.


 


5.02.  Participant’s
Account


 


All payroll deductions made with
respect to a Participant shall be credited to his or her recordkeeping account
under the Plan.  A Participant may not make any separate cash payment into
such account.  No interest will accrue or be paid on any amount withheld
from a Participant’s pay under the Plan or credited to the Participant’s
account.  Except as otherwise provided in this Section 5.02, all
amounts in a Participant’s account will be used to purchase whole shares of
Stock and no cash refunds shall be made from such account.  Any amounts
that are insufficient to purchase whole shares shall be credited to the
Participant’s account, and added to any fractional amounts resulting on
subsequent Purchase Dates.  Upon liquidation or other closing of a
Participant’s account, any fractional amounts shall be paid in cash to the
Participant based on the then current Fair Market Value of the Stock.  In
addition, any amounts that are withheld but unable to be applied to the
purchase of Stock because of the limitations of Section 3.03 shall be
returned to the Participant without interest and will not be used to purchase
shares with respect to any other Offering under the Plan.


 


5.03.  No Changes in Payroll Deductions


 


Following the Offering Commencement
Date associated with an Offering, a Participant may withdraw from the Offering
(pursuant to Section 7.01), but may not otherwise change his or her level
of payroll deduction with respect to such Offering (other than the ability to
terminate Subscriptions within the First Offering, as set forth in Section 3.04(a)).
Any such withdrawal shall only be deemed effective if executed pursuant to
procedures established by the Committee.


 


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ARTICLE VI — EXERCISE OF  RIGHTS TO PURCHASE
STOCK


 


6.01.  Automatic
Exercise


 


A Participant’s right to purchase
Stock with respect to any Offering will be automatically exercised on each
Purchase Date for the Offering.  Except as provided otherwise in
connection with the First Offering, the right to purchase Stock will be
exercised by using the accumulated payroll deductions in the Participant’s
account as of each such Purchase Date to purchase the number of whole shares of
Stock that may be purchased at the purchase price on such date, determined in
accordance with Section 4.02.


 


6.02.  Termination of
Subscription


 


Following the Offering Commencement
Date associated with an Offering, a Participant may terminate his or her
Subscription for the Offering (but may not otherwise reduce or increase the
scope of elected payroll deductions under the Subscription) prior to the
Offering End Date associated with such Offering. Any such termination shall be
executed in conformity with rules established by the Committee or its
designee. If a Participant terminates his or her Subscription with respect to
any Offering, the accumulated payroll deductions in the Participant’s account
at the time the Subscription is withdrawn will be used to purchase shares of
Stock at the next Purchase Date for the Offering to which the Subscription
related, in accordance with Section 6.01.


 


6.03.  Delivery of
Stock


 


Stock purchases under the Plan will
be held in an account in the Participant’s name in uncertificated form unless
certification is requested by the Participant.  Furthermore, Stock to be
delivered to a Participant under the Plan will be registered in the name of the
Participant.


 


6.04.  Change in
Control


 


If pursuant to a Change in Control
rights to purchase Stock are not assumed or otherwise continued in full force
and effect, then each right to purchase Stock under each Offering in effect at
the time of the Change in Control shall automatically be exercised, immediately
prior to the effective date of any Change in Control, by applying the payroll
deductions of each Participant for the Offering in which such Change in Control
occurs to the purchase of whole shares of Stock at a purchase price per share
equal to eighty-five percent (85%) of the lower of (i) the Fair Market
Value per share of Stock on the start date of the applicable Offering or (ii) the
Fair Market Value per share of Stock immediately prior to the effective date of
such Change in Control.


 


ARTICLE VII — WITHDRAWAL


 


7.01.  Procedures for Withdrawal


 


A Participant may withdraw all, but
not less than all, of the accumulated payroll deductions credited to the
Participant’s recordkeeping account at any time before a Purchase Date by
notifying the Committee or its designee of the Participant’s election to
withdraw, pursuant to rules prescribed by the Committee. If a Participant
elects to withdraw, all of the Participant’s accumulated payroll deductions
credited to the Participant’s recordkeeping account will be returned to the
Participant and the Participant may not elect to direct further payroll
deductions under the Plan for the purchase of Stock during that Offering.


 


7.02.  Effect on
Subsequent Participation


 


The Committee shall have the
authority to decide the Participant’s eligibility to participate in any
succeeding Offering if Participant withdraws from any Offering.


 


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7.03.  Termination of
Employment


 


(a)                                  Termination other than for Death, Disability, or Retirement: If
a Participant’s employment with the Company or a Corporate Affiliate terminates
for any reason other than death, Disability or Retirement, the Participant will
cease to participate in the Plan and the Company will refund the balance of
accumulated payroll deductions in the Participant’s recordkeeping account.


 


For purposes of this Plan, a
Participant in the Plan shall be deemed to have a “Disability” if the
Participant: (i) is unable to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can
be expected by the Company, in its reasonable determination, to result in death
or can be expected by the Company, in its reasonable determination, to last for
a continuous period of not less than 12 months, or (ii) is, by reason of
any medically determinable physical or mental impairment which can be expected
to result in death or can be expected to last for a continuous period of not
less than 12 months, receiving income replacement benefits for a period of not
less than three months under an accident and health plan covering employees of
the Company. The term “Retirement” shall have the meaning ascribed to it by the
Committee according to administrative rules promulgated under the Plan.


 


(b)                                 Termination for Death, Disability, or Retirement:
Subject to the following provisions of this Section 7.03, upon termination
of a Participant’s employment for death, Disability, or Retirement, any
Subscription then in effect will be deemed to have been withdrawn and any
payroll deductions credited to the Participant’s account will be used to
purchase Stock on the next Purchase Date for the Offering with respect to which
such deductions relate.  Notwithstanding the foregoing, if the Participant
has a Subscription in effect on the Participant’s termination of employment,
payroll deductions (at the rate in effect on the termination date) shall
continue to be made from Base Pay earned prior to termination of employment, if
any, that is paid to the Participant after such termination of employment and
before the earlier of (i) the three-month anniversary of such termination
of employment, or (ii) the Offering End Date of such Offering.  Any
such payroll deduction shall be used to purchase Stock on the next Purchase
Date for the Offering after the deduction is made.


 


ARTICLE VIII — STOCK


 


8.01.  Maximum Shares


 


The maximum number of shares which
may be issued under the Plan, subject to adjustment upon changes in
capitalization of the Company as provided in Section 10.03, shall be
4,000,000 shares (with such number of shares based on the Company’s
capitalization prior to the anticipated reverse Stock split scheduled to occur
prior to the Initial Public Offering). If the total number of shares for which
rights to purchase Stock are exercised on any Purchase Date exceeds the maximum
number of shares available for issuance, the Company shall make a pro rata
allocation of the shares available for delivery and distribution in as nearly a
uniform manner as shall be practicable and as it shall determine to be
equitable, and the balance of payroll deductions credited to the account of
each Participant under the Plan shall be returned to him or her as promptly as
possible.


 


8.02.  Participant’s
Interest in Rights to Purchase Stock


 


The Participant will have no
interest in Stock covered by a right to purchase Stock under the Plan until
such right has been exercised.


 


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ARTICLE IX — ADMINISTRATION


 


9.01.  Appointment of
Committee


 


The Company’s Board of Directors
shall appoint a Committee to administer the Plan. No member of the Committee
who is not an Eligible Employee shall be eligible to purchase Stock under the
Plan.


 


9.02.  Authority of
Committee


 


Subject to the express provisions of
the Plan, the Committee shall have plenary authority in its discretion to
interpret and construe any and all provisions of the Plan, to adopt rules and
regulations for administering the Plan, and
to make all other determinations deemed necessary or advisable for
administering the Plan. The Committee’s determination on the foregoing matters
shall be conclusive.  The Committee shall also have the authority to
determine if and when the employees of Corporate Affiliates organized or
acquired after the Effective Date shall be eligible for participation in the
Plan.  The Committee may delegate to an officer its authority under this Section 9.02
to determine if and when the employees of a Corporate Affiliate shall be
eligible or ineligible for participation in the Plan.


 


9.03.  Rules Governing
the Administration of the Committee


 


The Company’s Board of Directors may
from time to time appoint members of the Committee in substitution for or in
addition to members previously appointed and may fill vacancies, however
caused, in the Committee. The Committee may select one of its members as its
Chairman and shall hold its meetings at such times and places as it shall deem
advisable and may hold telephonic meetings. A majority of its members shall
constitute a quorum. All determinations of the Committee shall be made by a
majority of its members. The Committee may correct any defect or omission or
reconcile any inconsistency in the Plan, in the manner and to the extent it
shall deem desirable. Any decision or determination reduced to writing and
signed by a majority of the members of the Committee shall be as fully
effective as if it had been made by a majority vote at a meeting duly called
and held. The Committee may appoint a secretary and shall make such rules and
regulations for the conduct of its business as it shall deem advisable.


 


9.04.  Statements


 


Each Participant shall receive a
statement of his or her account showing the number of shares of Stock held and
the amount of cash credited to such account.  Such statements will be
provided as soon as administratively feasible following the end of each
calendar quarter.


 


ARTICLE X — MISCELLANEOUS


 


10.01.  Transferability


 


Neither payroll deductions credited
to a Participant’s account nor any rights with regard to the exercise of a
right to purchase Stock or to receive Stock 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 attempted
assignment, transfer, pledge or other disposition shall be without
effect.  During a Participant’s
lifetime, rights to purchase Stock that are held by such Participant shall be
exercisable only by that Participant.


 


10.02.  Use of Funds


 


All payroll deductions received or
held by the Participating Company under this Plan may be used by the
Participating Company for any corporate purpose and the Participating Company
shall not be obligated to segregate such payroll deductions.


 


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10.03.  Adjustment
Upon Changes in Capitalization


 


In the event of a stock split, stock
dividend, recapitalization, reclassification or combination of shares, merger,
spin-off or similar event, the Committee shall adjust equitably (a) the
number and class of shares or other securities that are reserved for sale under
the Plan, (b) the number and class of shares or other securities that are
subject to outstanding rights to purchase Stock, (c) the maximum number of
shares of Stock that can be purchased by a Participant with respect to any
Offering and (d) the appropriate market value and other price
determinations applicable to rights to purchase Stock.  The Committee
shall make all determinations under this Section 10.03, and all such determinations
shall be conclusive and binding.


 


10.04.  Amendment and
Termination


 


The Company’s Board of Directors
shall have complete power and authority to terminate or amend the Plan at any
time and for any reason; provided, however, that the Company’s Board of
Directors shall not, without the approval of the stockholders of the Company in
accordance with Section 423 of the Code, (i) increase the maximum
number of shares which may be issued under any Offering (except pursuant to Section 10.03);
(ii) amend the requirements as to the class of employees eligible to
purchase stock under the Plan; or (iii) permit members of the Committee
who are not Eligible Employees to purchase stock under the Plan.


 


Upon termination of the Plan, the
date of termination shall be considered a Purchase Date, and any cash remaining
in Participant accounts will be applied to the purchase of Stock, unless
determined otherwise by the Company’s Board of Directors.  Upon
termination of the Plan, the Company’s Board of Directors shall have authority
to establish administrative procedures regarding the exercise of outstanding
rights to purchase Stock or to determine that such rights shall not be
exercised.


 


10.05.  No Employment
Rights


 


The Plan does not, directly or
indirectly, create in any employee or class of employees any right with respect
to continuation of employment with the Company or any Corporate Affiliate, and
it shall not be deemed to interfere in any way with the right of the Company or
any Corporate Affiliate employing such person to terminate, or otherwise
modify, an employee’s employment at any time.


 


10.05.  Effect of
Plan


 


The provisions of the Plan shall, in
accordance with its terms, be binding upon, and inure to the benefit of, all
successors of each employee participating in the Plan, including, without
limitation, such employee’s estate and the executors, administrators or
trustees thereof, heirs and legatees, and any receiver, trustee in bankruptcy
or representative of creditors of such employee.


 


10.07.  International Employees


 


With respect to Employees who reside
or work outside the United States of America, the Committee may, in its sole
discretion, amend the terms of the Plan or Subscription rights with respect to
such Employees in order to conform such terms with the requirements of local
law, to obtain more favorable tax or other treatment for an Employee, the
Company or a Corporate Affiliate, or, subject to the provisions of this Plan,
conform such rights more closely to normative pay and incentive practices and
conventions in the region. The Committee’s authority to amend the Plan and such
rights with respect to these Employees may be exercised with respect to any one
or more Offerings, and with respect to any Employee or group of Employees at
the discretion of the Committee, and need not be uniform across Offerings or
across Employees or groups of Employees.


 


10.08.  Governing Law


 


The law of the State of Minnesota
will govern all matters relating to this Plan except to the extent it is
superseded by the laws of the United States.


 


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