ex10-2.htm


     

     

    
      

      

    

    EXHIBIT
10.2



     

     

    EMCORE
CORPORATION

     

    2000
EMPLOYEE STOCK PURCHASE PLAN

     

    AMENDED
APRIL 30, 2009

     

    ARTICLE
I

     

    ESTABLISHMENT

     

     

     

    Purpose

     

    The
EMCORE Corporation 2000 Employee Stock Purchase Plan (the “Plan”) is hereby
established by EMCORE Corporation (the “Company”), the purpose of which is to
provide a method whereby employees of the Company or any Designated Subsidiary
(as defined herein), will have an opportunity to acquire a proprietary interest
in the Company through the purchase of shares of Common Stock.  The
Plan is also established to help promote the overall financial objectives of the
Company’s stockholders by promoting those persons participating in the Plan to
achieve long-term growth in stockholder equity. The Plan is intended to qualify
as an “employee stock purchase plan” under Section 423 of the Internal Revenue
Code of 1986, as amended (the “Code”).  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 and the regulations
promulgated thereunder.

     

     

     

    ARTICLE
II

     

    DEFINITIONS

     

     

               The
following words and phrases, as used herein, shall have the meanings indicated
unless the context clearly indicates to the contrary:

     

    2.01               Account
shall mean the bookkeeping account established on behalf of a Participant to
which is credited all contributions paid for the purpose of purchasing Common
Stock under the Plan, and to which shall be charged all purchases of Common
Stock, or withdrawals, pursuant to the Plan.  Such Account shall
remain unfunded as described in Section 8.11 of the Plan.

     

    2.02               Affiliate
shall mean, with respect to any Person, any other Person that, directly or
indirectly, controls, is controlled by, or is under common control with, such
Person.  Any “Relative” (for this purpose, “Relative” means a spouse,
child, parent, parent of spouse, sibling or grandchild) of an individual shall
be deemed to be an Affiliate of such individual for this
purpose.  Neither the Company nor any Person controlled by the Company
shall be deemed to be an Affiliate of any holder of Common Stock.

     

    2.03               Agreement
shall mean, either individually or collectively, any subscription, enrollment
and/or withholding agreement, in the form prescribed by the Committee, entered
into pursuant to the Plan between the Company or a Designated Subsidiary and a
Participant.  Such Agreement shall be an authorization for the Company
or a Designated Subsidiary to withhold amounts from such Participant’s
Compensation, at the Contribution Rate specified in the Agreement, to be applied
to purchase Common Stock.

     

    2.04               Beneficial
Ownership (including correlative terms) shall have the meaning given such
term in Rule 13d-3 promulgated under the Exchange Act.

     

        2.05               Beneficiary
shall mean the person specified by a Participant in his or her most recent
written designation that is filed with the Committee to receive any benefits
under the Plan in the event of such Participant’s death, in accordance with
Section 8.01.

     

        2.06      
Board
shall mean the Board of Directors of the Company


     

        2.07               Change
in Control shall mean the occurrence of any of the
following:

        

        (a)
an acquisition in one transaction or a series of related transactions (other
than directly from the Company or pursuant to awards granted under the Plan or
compensatory options or other similar awards granted by the Company) of any
Voting Securities by any Person, immediately after which such Person has
Beneficial Ownership of fifty percent (50%) or more of the combined voting power
of the Company’s then outstanding Voting Securities; provided,
however,
in determining whether a Change in Control has occurred pursuant to
this  Section 2.07(a), Voting Securities which are acquired in a
Non-Control Acquisition shall not constitute an acquisition that would cause a
Change in Control;

        

        (b)
the individuals who, immediately prior to the Effective Date, are members of the
Board (the “Incumbent
Board”), cease for any reason to constitute at least a majority of the
members of the Board; provided,
however,
that if the election, or nomination for election, by the Company’s common
stockholders, of any new director was approved by a vote of at least a majority
of the Incumbent Board, such new director shall, for purposes of the Plan, be
considered as a member of the Incumbent Board; provided
further, however,
that no individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened “Election Contest” (as described in Rule 14a-11 promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies or consents
by or on behalf of a Person other than the Board (a “Proxy
Contest”) including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest; or

     

        (c)
the consummation of:

     

        (1)
a merger, consolidation or reorganization involving the Company
unless:

     

    (A) the
stockholders of the Company, immediately before such merger, consolidation or
reorganization, own, directly or indirectly, immediately following such merger,
consolidation or reorganization, more than fifty percent (50%) of the combined
voting power of the outstanding voting securities of the corporation resulting
from such merger or consolidation or reorganization (the “Surviving
Corporation”) in substantially the same proportion as their ownership of
the Voting Securities immediately before such merger, consolidation or
reorganization,

     

    (B) the
individuals who were members of the Incumbent Board immediately prior to the
execution of the agreement providing for such merger, consolidation or
reorganization constitute at least a majority of the members of the board of
directors of the Surviving Corporation, or a corporation Beneficially Owning,
directly or indirectly, a majority of the voting securities of the Surviving
Corporation, and

     

    (C) no
Person, other
than (i) the Company, (ii) any Related Entity (as defined in Section
2.20), (iii) any employee benefit plan (or any trust forming a part thereof)
that, immediately prior to such merger, consolidation or reorganization, was
maintained by the Company, the Surviving Corporation, or any Related Entity or
(iv) any Person who, together with its Affiliates, immediately prior to such
merger, consolidation or reorganization had Beneficial Ownership of fifty
percent (50%) or more of the then outstanding Voting Securities, owns, together
with its Affiliates, Beneficial Ownership of fifty percent (50%) or more of the
combined voting power of the Surviving Corporation’s then outstanding voting
securities

     

    (a
transaction described in clauses (A) through (C) above is referred to herein as
a “Non-Control
Transaction”);

     

        (2)
a complete liquidation or dissolution of the Company;
or

     

        (3)
an agreement for the sale or other disposition of all or substantially all of
the assets or business of the Company to any Person (other than a transfer to a
Related Entity or the distribution to the Company’s stockholders of the stock of
a Related Entity or any other assets).

     

                Notwithstanding
the foregoing, a Change in Control shall not be deemed to occur solely because
any Person (the “Subject
Person”) acquired Beneficial Ownership of fifty percent (50%) or more of
the combined voting power of the then outstanding Voting Securities as a result
of the acquisition of Voting Securities by the Company which, by reducing the
number of Voting Securities then outstanding, increases the proportional number
of shares Beneficially Owned by the Subject Persons, provided
that if a Change in Control would occur (but for the operation of this sentence)
as a result of the acquisition of Voting Securities by the Company, and (1)
before such share acquisition by the Company the Subject Person becomes the
Beneficial Owner of any new or additional Voting Securities in a related
transaction or (2) after such share acquisition by the Company the Subject
Person becomes the Beneficial Owner of any new or additional Voting Securities
which in either case increases the percentage of the then outstanding Voting
Securities Beneficially Owned by the Subject Person, then a Change in Control
shall be deemed to occur.

     

    2.08               Commission
shall mean the Securities and Exchange Commission or any successor entity or
agency.

     

    2.09               Committee
shall mean the Plan Committee of the Board as described in Article
VII.

     

    2.10               Compensation
shall mean, for the relevant period, (a) the total compensation paid in
cash to a Participant by the Company and/or a Designated Subsidiary, including
salaries, wages, commissions, overtime pay, shift premiums, bonuses, and
incentive compensation, plus (b) any pre-tax  contributions made by a
Participant under Section 401(k) or 125 of the Code.  Compensation
shall exclude non-cash items, moving or relocation allowances, geographic
hardship pay, car allowances, tuition reimbursements, imputed income
attributable to cars or life insurance, severance or notice pay, fringe
benefits, contributions (except as provided in clause (b) of the immediately
preceding sentence) or benefits received under employee benefit or deferred
compensation plans or arrangements, income attributable to stock options and
similar items.

     

    2.11               Common
Stock shall mean shares of common stock of the Company, without par
value, or the common stock of any successor to the Company, which is designated
for the purposes of the Plan.

     

    2.12               Contribution
Rate shall be that rate of contribution of Compensation to the Plan
stated in the Agreement, subject to determination in accordance with Article
IV.

     

    2.13               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.

     

    2.14               Effective
Date shall mean April 1, 2000.

     

    2.15               Eligible
Employee shall mean any individual who is employed on a full-time or
part-time basis by the Company or a Designated Subsidiary on an Enrollment Date,
except that the Committee in its sole discretion may exclude:

     

                    (i)
employees
whose customary employment is not more than 20 hours per
week;

                

                    (ii)
employees
whose customary employment is for not more than five months in any calendar
year; and

     

                    (iii)
employees who are considered to be a highly compensated employee of the Company
or Designated Subsidiary within the meaning of Section 414(q) of the
Code.

     

                    As
of the Effective Date, and unless and until the Committee determines otherwise,
only those employees described in Section 2.15(i) and (ii) are excluded from the
class of Eligible Employees.

      

        2.16           Enrollment
Date shall mean the first day of each Offering
Period.

        

        2.17           Exchange
Act means the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated by the Commission
thereunder.

     

        2.18           Exercise
Date shall mean the last day of each Offering
Period.

     

        2.19           Fair
Market Value of a share of Common Stock as of a given date shall
mean:  (i) if the Common Stock is listed or admitted to trading on an
established stock exchange (including, for this purpose, the Nasdaq National
Market), the mean of the highest and lowest sale prices for a share of the
Common Stock on the composite tape or in Nasdaq National Market trading as
reported in The
Wall Street Journal (or, if not so reported, such other nationally
recognized reporting source as the Committee shall select) for such date, or, if
no such prices are reported for such date, the most recent day for which such
prices are available shall be used; (ii) if the Common Stock is not then listed
or admitted to trading on such a stock exchange, the mean of the closing
representative bid and asked prices for the Common Stock on such date as
reported by the Nasdaq Small Cap Market or, if not so reported, by the OTC
Bulletin Board (or any successor or similar quotation system regularly reporting
the market value of the Common Stock in the over-the-counter market), or, if no
such prices are reported for such date, the most recent day for which such
prices are available shall be used; or (iii) in the event neither of the
valuation methods provided for in clauses (i) and (ii) above
are  practicable, the fair market value of a share of Common Stock
determined by such other reasonable valuation method as the Committee shall, in
its discretion, select and apply in good faith as of such
date.

     

        2.20           Non-Control
Acquisition shall mean an acquisition by (1) an employee benefit plan (or
a trust forming a part thereof) maintained by (x) the Company or (y) any
corporation or other Person of which a majority of its voting power or its
voting equity securities or equity interest is owned, directly or indirectly, by
the Company (a “Related
Entity”), (2) the Company or any Related Entity, (3) any of Thomas
Russell, The AER Trust 1997, Robert Louis-Dreyfus, Gallium Enterprises, Inc. and
Reuben Richards, or (4) any Person in connection with a Non-Control
Transaction.

     

        2.21           Offering
Period shall mean a period as determined by the Committee during which a
Participant’s Option may be exercised and the accumulated value of the
Participant’s Account may be applied to purchase Common Stock.  Unless
otherwise specified by the Committee, the initial Offering Period will begin on
the Effective Date and end on the last Trading Day on or before December 31st of the
same calendar year.   Thereafter, each successive Offering Period
shall consist of twelve-month periods commencing on the first Trading Day on or
after January 1st of each
calendar year and ending on the last Trading Day on or before December 31st of such
year.  The duration of Offering Periods may be changed by the
Committee or the Board pursuant to Section 3.06 or
5.04.

     

        2.22           Option
shall mean the right to purchase the number of shares of Common Stock specified
in accordance with the Plan at a price and for a term fixed in accordance with
the Plan, and subject to such other limitations and restrictions as may be
imposed by the Plan or the Committee in accordance with the
Plan.

     

        2.23           Option
Price shall mean an amount equal to 85% of the Fair Market Value of a
share of Common Stock on the Enrollment Date or Exercise Date, whichever is
lower.

     

        2.24           Participant
shall mean an Eligible Employee who satisfies the eligibility conditions of
Article III, and to whom an Option has been granted by the Committee under the
Plan.

     

        2.25           Person
shall mean “person” as such term is used for purposes of Section 13(d) or 14(d)
of the Exchange Act, including, without limitation, any individual, corporation,
limited liability company, partnership, trust, unincorporated organization,
government or any agency or political subdivision thereof, or any other entity
or any group of Persons.

     

        2.26           Plan
Year shall mean the period of twelve (12) or fewer consecutive months
commencing on the Effective Date and ending on December 31st of the
same calendar year, and the twelve (12) consecutive month period ending the last
day of each December of each calendar year thereafter.  The Committee
may at any time designate another period as the Plan
Year.

     

        2.27           Reserves
shall mean the number of shares of Common Stock covered by each Option under the
Plan that have not yet been exercised and the number of shares of Common Stock
that have been authorized for issuance under the Plan but not yet placed under
an Option.

     

        2.28           Securities
Act shall mean the Securities Act of 1933, as amended, and the rules and
regulations promulgated by the Commission thereunder.

     

        2.29           Subsidiary
shall mean any present or future corporation, domestic or foreign, which is or
would be a “subsidiary corporation,” as defined under Section 424(f) of the
Code, of the Company.

     

        2.30           Trading
Day shall mean a day on which national stock exchanges are open for
trading.

     

        2.31           Voting
Securities shall mean all outstanding voting securities of the Company
entitled to vote generally in the election of the
Board.

     

     

     

    ARTICLE
III

     

    ELIGIBILITY
AND PARTICIPATION

    
          3.01    Initial
Eligibility

    

     

              Any
individual who is otherwise an Eligible Employee and who is employed with the
Company or a Designated Subsidiary on the Effective Date or becomes employed
with the Company or a Designated Subsidiary after the Effective Date and is
otherwise an Eligible Employee, may participate in the Plan immediately
beginning with the first Offering Period that occurs concurrent with or next
following either the Effective Date or that individual’s initial date of such
employment.

     

        3.02           Leave
of Absence

     

              For
purposes of the Plan, an individual’s employment relationship is still
considered to be continuing intact while such individual is on sick leave, or
other leave of absence approved by the Committee or the Participant’s
supervisor; provided,
however,
that if the period of leave of absence exceeds ninety (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
ninety-first (91st) day of
such leave.

     

    
           3.03    
Eligibility
Restrictions

       

              Notwithstanding
any provisions of the Plan to the contrary, no employee of the Company or a
Designated Subsidiary shall be granted an Option under the
Plan:

    

     

                    (a)
if,
immediately after the Option is granted, applying the rules under Section 424(d)
of the Code to determine Common Stock ownership, such employee would own,
immediately after the Option is granted, five percent (5%) or more of the total
combined voting power or value of all classes of stock of the Company or any
Subsidiary; or

     

                    (b)
which
permits such employee’s rights to purchase stock under the Plan and any other
employee stock purchase plans of the Company or any Subsidiary to accrue at a
rate that exceeds $25,000 (or such other amount as may be adjusted from time to
time under applicable provisions of the Code or Regs) in Fair Market Value of
Common Stock (determined at the time such Option is granted) for each calendar
year in which such Option is outstanding.

     

    
          3.04   Participation

    

     

                    (a) An
Eligible Employee may commence participation by completing an Agreement
authorizing payroll deductions and filing it with the payroll office of the
Company prior to the applicable Enrollment Date.  Such an Eligible
Employee is referred to as a Participant.

     

                    (b) Any
payroll deductions for a Participant shall commence on the first payroll date
following the Enrollment Date and shall end on the last payroll date in the
Offering Period to which such authorization is applicable, unless sooner
terminated by the Participant as provided in Article
VI.

     

    
          3.05  
Option
Grant

    

     

              On
the Enrollment Date of each Offering Period, each Participant participating in
the Offering Period shall be granted an Option to purchase on the Exercise Date
of such Offering Period (at the appropriate Option Price) up to a number of
shares of Common Stock as determined by dividing the particular Participant’s
payroll deductions that have accumulated prior to such Exercise Date and
retained in such Participant’s Account as of that Exercise Date by the
appropriate Option Price.  Such purchase of shares of Common Stock
shall be subject to the limitations under Sections 3.03 and
3.09.  Exercise of the Option shall occur as provided in Section 3.07,
unless the Participant has withdrawn as provided in Article VI.  The
Option shall expire on the last day of the Offering Period.  The
Committee may determine that there shall be no Options granted under the Plan
for any particular Plan Year.

     

    
          3.06   Offering
Period

    

     

         The
Plan shall be implemented by consecutive Offering Periods of Common
Stock.  Each Agreement shall specify the Offering Period for which the
Option is granted, which shall be determined by the Committee in accordance with
the Plan.  The Committee shall have the authority to change the
duration of Offering Periods, including the commencement dates thereof, with
respect to future offerings without approval of the Company’s
stockholders.  Under such circumstances, any change to the Offering
Periods shall be announced at least ten (10) days prior to the scheduled
beginning of the initial Offering Period to be affected.  In no event,
however, shall an Offering Period extend beyond the period permitted under
Section 423(b)(7) of the Code.

     

    
          3.07   Exercise
of Option

       

    

         Unless
a Participant provides written notice to the Company, or withdraws from the Plan
as provided in Article VI, his Option for the purchase of shares shall be
exercised automatically on the Exercise Date, and the maximum number of full
shares subject to the Option shall be purchased for such Participant at the
applicable Option Price, using the accumulated payroll deductions in his
Account, subject to the limitations under Sections 3.03 and 3.09.  No
fractional shares shall be purchased.  Any payroll deductions
accumulated in an Account that are not sufficient to purchase a full share of
Common Stock shall be retained in the Account for the subsequent Offering
Period, subject to earlier withdrawal by the Participant as provided in Article
VI.  Any other monies remaining in a Participant’s Account after the
Exercise Date shall be returned to the Participant or his Beneficiary in cash,
without interest.  During a Participant’s lifetime, such Participant’s
Option is exercisable only by such Participant.

     

        3.08   Delivery
of Stock

     

            (a) As
promptly as practical after each Exercise Date on which a purchase of Common
Stock occurs, the Company shall arrange the delivery to each Participant, or his
Beneficiary, of a certificate representing the shares of Common Stock purchased
upon exercise of such Participant’s Option, except that the Committee may
determine that such shares shall be held for each Participant’s benefit by a
broker designated by the Committee unless the Participant has delivered to the
Committee a written election that certificates representing such shares be
issued to him.  Shares of Common Stock issued upon exercise of an
Option and delivered to or for the benefit of a Participant or Beneficiary will
be registered in the name of such Participant or Beneficiary, as the case may
be.  Alternatively, at the direction of a Participant through written
notice to the Committee at least ten (10) days prior to the applicable Exercise
Date, such shares shall be registered in the names of such Participant and one
other person as may be designated by the Participant, as joint tenants with
rights of survivorship, community property or as tenants by the entirety, to the
extent permitted by applicable law.

     

            (b) The
Committee may require a Participant or his Beneficiary to give prompt written
notice to the Company concerning any disposition of shares of Common Stock
received upon the exercise of such Participant’s Option within:  (i)
two (2) years from the date of granting of such Option to such Participant, (ii)
one (1) year from the transfer of such shares of Common Stock to such
Participant, or (iii) such other period as the Committee may from time to time
determine.

     

        3.09          Maximum
Number of Shares

     

         In
no event shall the number of shares of Common Stock that a Participant may
purchase during any one Offering Period under the Plan exceed the number of
shares determined by (a) multiplying twenty percent (20%) of the amount of the
Participant’s Compensation for the payroll period immediately preceding the date
he is first granted an Option for such Offering Period by the number of payroll
periods from such date to the end of such Offering Period, and (b) dividing that
product by 85% of the Fair Market Value of a share of Common Stock on such
date.

        

        3.10         Withholding

     

        At
the time an Option is exercised, or at the time some or all of the Common Stock
that is issued under the Plan is disposed of, the Company may withhold from any
Compensation or other amount payable to the applicable Participant, or require
such Participant to remit to the Company (or make other arrangements
satisfactory to the Company, as determined in the Committee’s discretion,
regarding payment to the Company of), the amount necessary for the Company to
satisfy any Federal, state or local taxes required by law to be withheld with
respect to the shares of Common Stock subject to such Option or disposed of, as
a condition to delivery of any certificate or certificates for any such shares
of Common Stock.  Whenever under the Plan payments are to be made in
cash, such payments shall be made net of an amount sufficient to satisfy any
Federal, state or local tax or withholding obligations with respect to such
payments.

     

     

    ARTICLE
IV

     

    PAYROLL
DEDUCTIONS

     

    
          4.01   Contribution
Rate

       

    

            (a) At
the time a Participant files an Agreement with the Committee authorizing payroll
deduction, he may elect to have payroll deductions made on each payday during
the Offering Period, and such Contribution Rate shall be a minimum of one
percent (1%) and a maximum of ten percent (10%) of the Participant’s
Compensation in effect on each payroll period during the Offering Period, unless
the Committee determines otherwise in a manner applicable uniformly to all
Participants.  The payroll deductions shall only be made in whole
percentages of the Participant’s Compensation.  Participants may not
make any separate cash payments outside payroll deductions under the Plan except
as otherwise provided in Section 5.04(d) in the event of a Change in
Control.

     

            (b) A
Participant may discontinue his participation in the Plan as provided in Article
VI, or may elect to decrease the rate of his payroll deductions during the
Offering Period by filing a new Agreement with the Committee that authorizes a
change in his Contribution Rate.  Such election by the Participant to
decrease his Contribution Rate shall only be permitted once during each Offering
Period.  The Committee may, in its discretion, in a fair and equitable
manner, limit the number of Participants who change their Contribution Rate
during any Offering Period.  Any such change in Contribution Rate
accepted by the Committee shall be effective with the first full payroll period
following ten (10) business days after the Committee’s receipt of the new
Agreement authorizing the new Contribution Rate, unless the Committee elects to
process a change in the Contribution Rate more quickly.  A
Participant’s authorization to change his Contribution Rate shall remain in
effect for successive Offering Periods unless terminated as provided in Article
VI.

     

            (c) Notwithstanding
the foregoing provisions of this Section 4.01, the Committee may decrease a
Participant’s Contribution Rate, but not below zero percent, at any time during
an Offering Period to the extent necessary to comply with Section 423(b)(8) of
the Code or Section 3.03 of the Plan.  To the extent necessary in such
case, payroll deductions shall recommence at the rate provided in such
Participant’s Agreement at the beginning of the first Offering Period that is
scheduled to begin in the following Plan Year, unless the Participant withdraws
from the Plan in accordance with Article VI.

     

        4.02          Participant
Account

     

        All
payroll deductions made for a Participant shall be credited to his Account under
the Plan.

     

        4.03   Interest

     

        No
interest shall accrue on the payroll deductions of a Participant under the
Plan.  In addition, no interest shall be paid on any and all money
that is distributed to a Participant, or his Beneficiary, pursuant to the
provisions of Sections 6.01 and/or 6.03.

     

     

    ARTICLE
V

     

    COMMON
STOCK

     

    
          5.01   Shares
Provided

            (a) The
maximum number of shares of Common Stock that may be issued under the Plan shall
be 4,500,000 shares.  This number is subject to an adjustment upon any
changes in capitalization of the Company as provided in Section
5.04.

     

            (b) The
Committee may determine, in its sole discretion, to include in the number of
shares of Common Stock available under the Plan any shares of Common Stock that
cease to be subject to an Option or are forfeited or any shares subject to an
Option that terminates without issuance of shares of Common Stock actually being
made to the Participant.

     

            (c) If
the number of shares of Common Stock that Participants become entitled to
purchase under the Plan is greater than the shares of Common Stock offered in a
particular Offering Period or remaining available under the Plan, the available
shares of Common Stock shall be allocated by the Committee among such
Participants in such manner as the Committee determines is fair and
equitable.

     

        5.02           Participant
Interest

     

         The
Participant shall have no interest as a shareholder, including, without
limitation, voting or dividend rights, with respect to shares of Common Stock
covered by his Option until such Option has been exercised in accordance with
the Plan and his Agreement.

     

        


          5.03   Restriction
of Shares Upon Exercise\

       

    

         The
Committee may, in its discretion, require as conditions to the exercise of any
Option that the shares of Common Stock reserved for issuance upon the exercise
of the Option shall have been duly listed upon a stock exchange, and that
either:

     

    
                    (a)
a
registration statement under the Securities Act with respect to the shares shall
be effective, or 

         

                      (b)
the
Participant shall have represented at the time of purchase, in form and
substance satisfactory to the Company, that it is his intention to purchase the
shares for investment and not for resale or
distribution.

      

    

     

    
          5.04   Changes
in Capital

    

     

                  (a)  Subject
to any required action by the shareholders of the Company, upon changes in the
outstanding Common Stock by reason of a stock split, reverse stock split, stock
dividend, combination or exchange of shares, merger, recapitalization,
consolidation, corporate separation or division of the Company (including, but
not limited to, a split-up, spin-off, split-off or distribution to Company
stockholders other than a normal cash dividend), reorganization,
reclassification, or increase or decrease in the number of shares of capital
stock of the Company effected without receipt of full consideration therefor, or
any other similar change affecting the Company’s capital structure, the
Committee shall make appropriate adjustments, in its discretion, to, or
substitute, as applicable, the number, class and kind of shares of stock
available for Options under the Plan, outstanding Options and the Reserves, the
maximum number of shares that a Participant may purchase per Offering Period,
the Option Prices of outstanding Options and any other characteristics or terms
of the Options or the Plan as the Committee shall determine are necessary or
appropriate to reflect equitably the effects of such changes to the
Participants; provided,
however,
that any fractional shares resulting from any such adjustment shall be
eliminated by rounding to the next lower whole number of shares with appropriate
payment for such fractional shares as shall be reasonably determined by the
Committee.  Notice of any such adjustment shall be given by the
Committee to each Participant whose Option has been adjusted and such
adjustment, whether or not such notice has been given, shall be effective and
binding for all purposes of the Plan.

     

                  (b) The
existence of the Plan and any Options granted hereunder shall not affect in any
way the right or power of the Board or the shareholders of the Company to make
or authorize any adjustment, recapitalization, reorganization or other change in
the Company’s capital structure or its business, any merger or consolidation of
the Company or a Subsidiary, any issue of debt, preferred or prior preference
stock ahead of or affecting Common Stock, the authorization or issuance of
additional shares of Common Stock, the dissolution or liquidation of the Company
or any Subsidiary, any sale or transfer of all or part of the Company’s or a
Subsidiary’s assets or business or any other corporate act or
proceeding.

     

                  (c) The
Board may at any time terminate an Offering Period then in progress and provide,
in its discretion, that Participants’ then outstanding Account balances shall be
used to purchase shares pursuant to Article III or returned to the applicable
Participants.

     

                  (d) In
the event of a Change in Control, the Committee may, in its
discretion:

     

                        (i)
permit
each Participant to make a single sum payment with respect to his outstanding
Option before the Exercise Date equal to the amount the Participant would have
contributed as determined by the Committee for the payroll periods remaining
until the Exercise Date, and provide for termination of the Offering Period then
in progress and purchase of shares pursuant to Article III;
or


                        (ii)
provide
for payment in cash to each Participant of the amount standing to his Account
plus an amount equal to the highest value of the consideration to be received in
connection with such transaction for one share of Common Stock, or, if higher,
the highest Fair Market Value of the Common Stock during the 30 consecutive
Trading Days immediately prior to the closing date or expiration date of such
transaction, less the Option Price of the Participant’s Option (determined for
all purposes of this Section 5.04(d)(ii) using such closing or termination date
as the Exercise Date in applying Section 2.23), multiplied by the number of full
shares of Common Stock that could have been purchased for such Participant
immediately prior to the Change in Control with the amount standing to his
Account at the Option Price, and that all Options so paid shall
terminate.

     

     

    ARTICLE
VI

     

    WITHDRAWAL

     

    
          6.01    General

       

    

         By
written notice to the Committee, at any time prior to the last day of any
particular Offering Period, a Participant may elect to withdraw all of the
accumulated payroll deductions in his Account at such time.  All of
the accumulated payroll deductions credited to such withdrawing Participant’s
Account shall be paid to such Participant promptly after receipt of his written
notice of withdrawal.  In addition, upon the Participant’s written
notice of withdrawal, the Participant’s Option for the Offering Period shall be
automatically terminated, and no further payroll deductions for the purchase of
shares on behalf of such Participant shall be made for such Offering
Period.  If a Participant withdraws from an Offering Period, payroll
deductions shall not resume at the beginning of the succeeding Offering Period
unless the Participant delivers to the Committee a new Agreement authorizing
payroll deductions.

     

        6.02           Effect
on Subsequent Participation

            

              A
Participant’s withdrawal from an Offering Period shall not have any effect upon
his eligibility to participate in any similar plan that may hereafter be adopted
by the Company or a Subsidiary or in succeeding Offering Periods that commence
after the termination of the Offering Period from which the Participant
withdraws.

     

    
          6.03   Termination
of Employment

          Upon
termination of employment as an Eligible Employee, for any reason, a Participant
shall be deemed to have elected to withdraw from the Plan and the payroll
deductions credited to such Participant’s Account during the Offering Period but
not yet used to exercise the Option shall be returned to such Participant, or,
in the case of a Participant’s death, the payroll deductions credited to such
deceased Participant’s Account shall be paid to his Beneficiary or
Beneficiaries, and the Participant’s Option shall be automatically
terminated.  A transfer of a Participant’s employment between or among
the Company and any Designated Subsidiary or Designated Subsidiaries shall not
be treated as a termination of employment for purposes of the
Plan.

     


     

    ARTICLE
VII

     

    ADMINISTRATION

     

    
          7.01    Generally

          The
Plan shall be administered by a committee the members of which are appointed by
the Board.  The Committee shall consist of no fewer than three (3)
members.  Notwithstanding the foregoing, the Board, in its absolute
discretion, may at any time and from time to time exercise any and all rights,
duties and responsibilities of the Committee under the Plan, including, but not
limited to, establishing procedures to be followed by the Committee, except with
respect to any matters which under any applicable law, regulation or rule are
required to be determined in the sole discretion of the Committee.  If
and to the extent that no Committee exists which has the authority to administer
the Plan, the functions of the Committee shall be exercised by the
Board.  In addition, the Board shall have discretionary authority to
designate, from time to time, without approval of the Company’s stockholders,
those Subsidiaries that shall be Designated Subsidiaries, the employees of which
are eligible to participate in the Plan.

     

        7.02    Authority
of the Committee

    
          The
Committee shall have all authority that may be necessary or helpful to enable it
to discharge its responsibilities with respect to the Plan.  Without
limiting the generality of the foregoing sentence or Section 7.01, subject to
the express provisions of the Plan, the Committee shall have full and exclusive
discretionary authority to interpret and construe any and all provisions of the
Plan and any Agreements, determine eligibility to participate in the Plan, adopt
rules and regulations for administering the Plan, adjudicate and determine all
disputes arising under or in connection with the Plan, determine whether a
particular item is included in “Compensation,” and make all other determinations
deemed necessary or advisable for administering the Plan.  Decisions,
actions and determinations by the Committee with respect to the Plan or any
Agreement shall be final, conclusive and binding on all
parties.  Except to the extent prohibited by applicable law or the
rules of a stock exchange, the Committee may, in its discretion, from time to
time, delegate all or any part of its responsibilities and powers under the Plan
to any member or members of the management of the Company, and revoke any such
delegation.

     

    
          7.03   Appointment

          The
Board may from time to time appoint members to the Committee in substitution for
or in addition to members previously appointed and may fill vacancies, however
caused, on the Committee.  The Committee may select one member as its
Chair and shall hold its meetings at such times and places as it shall deem
advisable.  It may also 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 or any Agreement in the manner and to the extent the Committee
determines to be 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.

     

     

    ARTICLE
VIII

     

    MISCELLANEOUS

     

    
          8.01    Designation
of Beneficiary

       

    

                (a) A
Participant may file with the Committee a written designation of a Beneficiary
who is to receive any Common Stock and/or cash from the Participant’s Account in
the event of such Participant’s death subsequent to an Exercise Date on which
the Option is exercised but prior to delivery to such Participant of such Common
Stock and cash.  Unless a Participant’s written Beneficiary
designation states otherwise, the designated Beneficiary shall also be entitled
to receive any cash from the Participant’s Account in the event of such
Participant’s death prior to exercise of his Option.

     

                (b) A
Participant’s designation of Beneficiary may be changed by the Participant at
any time by written notice to the Committee.  In the event of the
death of a Participant and in the absence of a valid Beneficiary designation
under the Plan at the time of such Participant’s death, the Company shall
deliver the shares and/or cash to which the deceased Participant was entitled
under the Plan to the executor or administrator of the estate of such
Participant.  If no such executor or administrator has been appointed
as can be determined by the Committee, the Company shall deliver such shares
and/or cash to the spouse or to any one or more dependents or relatives of the
Participant, or if no spouse, dependent or relative is known to the Company,
then to such other person as the Committee may designate.  Any such
delivery or payment shall be a complete discharge of the obligations and
liabilities of the Company, the Subsidiaries, the Committee and the Board under
the Plan.

     

    
          8.02   Transferability

                

                Neither
payroll deductions credited to the Participant’s Account nor any rights with
regard to the exercise of an Option or to receive Common Stock under the Plan
may be assigned, transferred, pledged, or otherwise disposed of in any way other
than by will, the laws of descent and distribution, or as provided under Section
8.01.  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 funds from an Offering Period in accordance with
Article VI.

    

     

        8.03           Conditions
Upon Issuance of Shares

     

                 (a) If
at any time the Committee shall determine, in its discretion, that the listing,
registration and/or qualification of shares of Common Stock upon any securities
exchange or under any state or Federal law, or the consent or approval of any
governmental regulatory body, is necessary or desirable as a condition of, or in
connection with, the sale or purchase of shares of Common Stock hereunder, no
Option may be exercised or paid in whole or in part unless and until such
listing, registration, qualification, consent and/or approval shall have been
effected or obtained, or otherwise provided for, free of any conditions not
acceptable to the Committee.

     

                 (b) If
at any time counsel to the Company shall be of the opinion that any sale or
delivery of shares of Common Stock pursuant to an Option is or may be in the
circumstances unlawful, contravene the requirements of any stock exchange, or
result in the imposition of excise taxes on the Company or any Subsidiary under
the statutes, rules or regulations of any applicable jurisdiction, the Company
shall have no obligation to make such sale or delivery, or to make any
application or to effect or to maintain any qualification or registration under
the Securities Act, or otherwise with respect to shares of Common Stock or
Options and the right to exercise any Option shall be suspended until, in the
opinion of such counsel, such sale or delivery shall be lawful or will not
result in the imposition of excise taxes on the Company or any
Subsidiary.

     

                 (c) The
Committee, in its absolute discretion, may impose such restrictions on the
ownership and transferability of the shares of Common Stock purchasable or
otherwise receivable by any person under any Option as it deems
appropriate.  The certificates evidencing such shares may include any
legend that the Committee deems appropriate to reflect any such
restrictions.

        

        8.04          Participants
Bound by Plan

     

         By
accepting any benefit under the Plan, each Participant and each person claiming
under or through such Participant shall be conclusively deemed to have indicated
their acceptance and ratification of, and consent to, all of the terms and
conditions of the Plan and any action taken under the Plan by the Committee, the
Company or the Board, in any case in accordance with the terms and conditions of
the Plan.

     

        8.05          Use
of Funds

     

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

     

    
          8.06  
Amendment
or Termination

          The
Board may terminate, discontinue, amend or suspend the Plan at any time, with or
without notice to Participants.  No such termination or amendment of
the Plan may materially adversely affect the existing rights of any Participant
with respect to any outstanding Option previously granted to such Participant,
without the consent of such Participant, except for any amendment or termination
permitted by Section 5.04.  In addition, no amendment of the Plan by
the Board shall, without the approval of the shareholders of the Company, (i)
increase the maximum number of shares that may be issued under the Plan or that
any Participant may purchase under the Plan in any Offering Period, except
pursuant to Section 5.04; (ii) change the class of employees eligible to receive
Options under the Plan, except as provided by the Board pursuant to the last
sentence of Section 7.01; or (iii) change the formula by which the Option Price
is determined under the Plan.

     

    
          8.07    No
Employment Rights

          The
Plan does not, either directly or indirectly, create an independent right for
the benefit of any employee or class of employees to purchase any shares of
Common Stock under the Plan.  In addition, the Plan does not create in
any employee or class of employees any right with respect to continuation of
employment by the Company or any Subsidiary, and the Plan shall not be deemed to
interfere in any way with the Company’s or any Subsidiary’s employment at will
relationship with the employee and/or interfere in any way with the Company’s or
any Subsidiary’s right to terminate, or otherwise modify, an employee’s
employment at any time or for any or no reason.

    
       

          8.08    Indemnification

    

    
          No
current or previous member of the Board, or the Committee, nor any officer or
employee of the Company acting on behalf of the Board, or the Committee, shall
be personally liable for any action, determination, or interpretation taken or
made in good faith with respect to the Plan.  All such members of the
Board or the Committee and each and every officer or employee of the Company
acting on their behalf shall, to the extent permitted by law, be fully
indemnified and protected by the Company in respect of any such action,
determination or interpretation of the Plan.  The foregoing right of
indemnification shall not be exclusive of any other rights of indemnification to
which such individuals may be entitled under the Company’s Certificate of
Incorporation, or Bylaws, as a matter of law or
otherwise.

     

    
          8.09    Construction
of Plan

          Whenever
the context so requires, the masculine shall include the feminine and neuter,
and the singular shall also include the plural, and conversely.  The
words “Article” and “Section” herein shall refer to provisions of the Plan,
unless expressly indicated otherwise.

     

        8.10    Term
of Plan

    
          Following
the adoption of the Plan by the Board, and approval of the Plan by the
shareholders of the Company who are present and represented at a special or
annual meeting of the shareholders where a quorum is present, which approval
must occur not earlier than one (1) year before, and not later than one (1) year
after, the date the Plan is adopted by the Board, the Plan shall become
effective on the Effective Date.

     

        8.11           Unfunded
Status of Plan

     

         The
Plan shall be an unfunded plan.  The
Committee may authorize the creation of trusts or other arrangements to meet the
obligations created under the Plan to deliver Common Stock or make payments,
provided
that the existence of such trusts or other arrangements is consistent with the
unfunded status of the Plan.

     

    
          8.12  
Governing
Law

       

    

         The
law of the State of New Jersey will govern all matters relating to the Plan
except to the extent such law is superseded by the laws of the United
States.