Exhibit 10.39


 


HEXCEL CORPORATION


2009
EMPLOYEE STOCK PURCHASE PLAN


 


1.             Purpose.  The Plan is intended to provide Employees (as
defined herein) of the Company and its Designated Subsidiaries, with the
opportunity to apply a portion of their compensation to the purchase of Common
Stock of the Company in accordance with the terms of the Plan, to promote and
increase the ownership of Common Stock by such Employees and to better align
the interests of the Employees and the Company’s stockholders and to thereby increase
overall stockholder
value.  The Plan is intended to be
qualified for purposes of Section 423 of the Code.  The provisions of the Plan shall,
accordingly, be construed so as to extend and limit participation in a manner
consistent with the requirements of that section of the Code.


 


2.             Definitions.


 


(a)           “Board” means the Board of Directors
of the Company.


 


(b)           “Code” means the Internal Revenue
Code of 1986, as amended.


 


(c)           “Committee” means the Compensation Committee
of the Board or its authorized delegate.


 


(d)           “Common Stock” means the Common
Stock, $0.01 par value, of the Company.


 


(e)           “Company” means Hexcel Corporation, a
Delaware corporation.


 


(f)            “Compensation”
means the base salary, straight time gross earnings, overtime, shift premium,
cash bonuses and commissions paid to an Employee, including an Employee’s
portion of any elective deferral contributed on the Employee’s behalf to a plan
described in Section 401(k) of the Code, any amount excludable
pursuant to Section 125 or 132(f) of the Code and any compensation
deferral made under the Hexcel Nonqualified Deferred Compensation Plan.


 


(g)           “Continuous Status as an Employee”
means the absence of any interruption or termination of service as an Employee
other than ordinary vacation and short-term disability absences. Continuous
Status as an Employee shall not be considered interrupted in the case of a
leave of absence agreed to in writing by the Company, provided that such leave
is for a period of not more than 90 days or reemployment upon the expiration of
such leave is guaranteed by contract or statute.


 


(h)           “Contributions” means all amounts
credited to the Plan Account of a Participant pursuant to the Plan.


 

















 


(i)            “Custodial Account” means a master
custodial account at the Custodian that is established to hold title to all
shares of Common Stock purchased for the benefit of all Participants under the
Plan.


 


(j)            “Custodian” means any custodian
selected by the Company, from time to time, to manage the Custodial Account for
the Participants under the Plan.


 


(k)           “Designated Subsidiaries” means the
Subsidiaries, if any, which have been designated by the Committee from time to
time in its sole discretion as eligible to participate in the Plan and which
are listed in Appendix A.


 


(l)            “Employee” means any employee of the
Company or one of its Designated Subsidiaries (as determined under Code section
3401(c) and the regulations thereunder) who is customarily employed by the
Company or one of its Designated Subsidiaries for more than (20) hours per week
and more than five months in a calendar year. 
Notwithstanding the foregoing, any employee who is a citizen or resident
of a foreign jurisdiction (without regard to whether he or she is also a
citizen or resident alien of the United States) shall be excluded from coverage
under the Plan if the grant of an option under the Plan to such employee is
prohibited under the laws of such jurisdiction or if compliance with the laws
of the foreign jurisdiction would cause the plan to violate the requirements of
Code section 423.


 


(m)          “Enrollment Date” means the first
business day of each Offering Period under the Plan.


 


(n)           “Exchange Act” means the Securities
Exchange Act of 1934, as amended.


 


(o)           “Exercise Date” means the last business
day of each Offering Period of the Plan.


 


(p)           “Offering” means the offer for sale
to eligible Employees of the Company and its Designated Subsidiaries of shares
of Common Stock at the price and subject to the other terms and conditions
determined by the Committee in accordance with the terms of the Plan.  The right to purchase shares of Common Stock
pursuant to an Offering is sometimes referred to below as an option, and the
commencement of an individual’s participation in an Offering is sometimes
referred to as the granting of an option to such individual.


 


(q)           “Offering Date” means, with respect
to an Offering, the date on which the Company completes the corporate action
constituting an offer of stock for sale to an Employee, as determined under Section 1.421-1(c) of
the U.S. Treasury Regulations, but without regard to the requirement that the
minimum exercise price must be fixed or determinable in order for the corporate
action to be considered complete.  The
Offering Date with respect to an Offering will be the same as the Enrollment
Date for such Offering, provided the terms of the Offering designate, as of the
Enrollment Date, a maximum number of shares of Common Stock or a formula for
establishing the maximum number of shares of Common Stock that may be purchased
by each Employee during the Offering.  Unless
the Committee specifies otherwise with respect to an Offering, the maximum
number of shares of Common Stock that may be purchased by each Employee during
an Offering shall be two thousand five hundred (2500) shares, subject to the
limitation described in Section 5(c) below.  If the terms of an Offering do not designate,
as of the Enrollment Date, a maximum number of shares of Common Stock or a
formula for establishing the maximum number of shares of Common Stock that may
be purchased by 


 


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each Employee during the Offering, the Offering Date will be the same
as the Exercise Date.


 


(r)            “Offering Period” means a period of up
to twenty-seven (27) calendar months commencing on the Enrollment Date during
which an Offering is made.  The length of
an Offering Period with respect to a particular Offering under the Plan shall
be determined by the Committee in its discretion.


 


(s)           “Participant” means any Employee who
is eligible to participate in an Offering pursuant to Section 3, who has
delivered a Subscription Agreement to the Company with respect to such
Offering, whose Continuous Status as an Employee has not terminated prior to the
Exercise Date with respect to such Offering and who has not delivered to the
Company a Participation Termination Notice at least ten (10) days prior to
the Exercise Date with respect to such Offering.


 


(t)            “Participation Termination Notice”
has the meaning given thereto in Section 10 hereof.


 


(u)           “Plan” means this Employee Stock
Purchase Plan.


 


(v)           “Plan Account” means, with respect to
each Participant, an account established by the Custodian to record
Contributions to the Plan made by such Participant and the use of such
Contributions as they are either (i) applied by the Company for the
purchase of Common Stock under the Plan for the account of such Participant or (ii) repaid
to such Participant pursuant to the Plan.


 


(w)          “Subsidiary”
shall mean any corporation (other than the Company) in an unbroken chain of
corporations beginning with the Company if, at the time of granting an option,
each of the corporations other than the last corporation in the unbroken chain
owns shares possessing fifty percent (50%) or more of the total combined voting
power of all classes of shares in one of the other corporations in such chain.


 


3.             Eligibility.


 


(a)           With respect to any Offering under
the Plan, any person whose Continuous Status as an Employee has been
uninterrupted for the six (6)-month period immediately prior to the Enrollment
Date with respect to such Offering and who has reached the age of majority in
the state of his or her residence as of the Enrollment Date with respect to
such Offering shall be eligible to participate in such Offering, subject to the
requirements of Section 5(a).  An
otherwise eligible Employee who has acquired less than six (6) months of
uninterrupted Continuous Status as an Employee as of any Enrollment Date shall
not be eligible to participate until the start of the next available Offering,
even if such person should acquire six (6) months of uninterrupted
Continuous Status as an Employee during the course of the current Offering.


 


(b)           Notwithstanding Section 3(a) or
any provision of the Plan to the contrary, no Employee shall be granted an
option under the Plan to the extent that immediately after the 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 stock and/or hold
outstanding options to purchase stock possessing five percent (5%) or more of
the total combined voting power or value of all classes of stock of the Company
or of any Subsidiary of the Company.


 


4.             Offering Periods; Terms Relating
to Offerings.


 


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(a)           The Plan shall be implemented by a
series of consecutive Offering Periods. 
The first Offering Period shall be for a period of three (3) consecutive
months and shall commence on July 1, 2009. 
Unless otherwise determined by the Committee, each subsequent Offering
Period shall also be a for a period of three (3) consecutive months and
shall commence on the first day of each succeeding calendar quarter.  The Committee shall have the power to change
the duration and/or the frequency of Offering Periods with respect to future
Offerings and shall use its best efforts to announce such change at least
fifteen (15) calendar days prior to the scheduled Enrollment Date of the first
Offering Period to be affected.  The Plan
shall continue until terminated in accordance with Section 22 below.


 


(b)           The Committee shall set the terms and
conditions of the Offering with respect to each Offering Period, consistent
with the terms of the Plan.  The terms
and conditions of each Offering shall be communicated to the Employees eligible
to participate in the Offering at least fifteen (15) calendar days in advance
of the Enrollment Date with respect to the Offering.  With respect to any Offering, options may be
granted under the Offering only to eligible Employees and only to purchase
Common Stock.  With respect to any
Offering, if any eligible Employee of the Company is granted an option under
the Offering then all eligible Employees of the Company shall be granted options
under the same Offering, and if any eligible Employee of a Designated
Subsidiary is granted an option under the Offering then all eligible Employees
of such Designated Subsidiary shall be granted options under the same Offering.  Except as otherwise specifically permitted under
Section 1.423-2(f) of the U.S. Treasury Regulations and the Plan, all
Employees granted options under any Offering shall have the same rights and
privileges, and the
provisions applying to any one option under an Offering (including without
limitation the provisions relating to the method of payment for the Common
Stock and the determination of the applicable exercise price) shall be the same
as the provisions which apply to any other option granted under the same
Offering.


 


5.             Participation.


 


(a)           An Employee who is eligible to
participate in the Plan pursuant to Section 3 hereof may become a
participant in the Plan by completing a subscription agreement in the form
provided by the Company (a “Subscription Agreement”) and filing it with the
appropriate representative of the Company or the Designated Subsidiary that
employs such Employee in accordance with the terms of the Subscription
Agreement not later than fifteen (15) calendar days prior to any Enrollment
Date, unless a later time for filing Subscription Agreements is established by
the Committee for all eligible Employees with respect to a given Offering. Each
Subscription Agreement shall authorize the payroll deductions to be made by the
Company (if the Company is the Employee’s employer) or Designated Subsidiary
(if the Designated Subsidiary is the Employee’s employer) from the Employee’s
Compensation as Contributions to the Plan
as provided in Section 6(a).  Each
Subscription Agreement shall constitute the Employee’s (i) election to
participate in the Plan for the current and all subsequent Offering Periods
until such time as (1) the Company has received Participation Termination
Notice from such Employee pursuant to Section 10, (2) a new
Subscription Agreement designating a different level of participation is
delivered to the Company by such Employee or (3) the termination of such
Employee’s Continuous Status as an Employee, and (ii) authorization for
the Company to withhold (in the manner determined by the Company or the
applicable Designated Subsidiary) any taxes or other payroll deductions that
are required to be withheld by the Company or the applicable Designated Subsidiary
due to the Employee’s participation in the Plan or the exercise of any option
or purchase of any Common Stock under the Plan.


 


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(b)           Payroll deductions with respect to
each Participant shall commence on the first payday following the first Enrollment
Date following the Company’s receipt of the applicable Subscription Agreement
and shall end on the last payday on or prior to the termination of such
Employee’s Continuous Status as an Employee, unless sooner terminated by the
Participant as provided in Section 10.  To the extent that the Participant elects to have
a percentage of his or her Compensation deducted, payroll deductions shall automatically be increased or
decreased to reflect changes in Compensation during such Offering Period, but a
Participant shall not otherwise be entitled to increase or decrease his or her
contribution rate during an Offering Period.


 


(c)           Notwithstanding the foregoing or any
other provision of the Plan to the contrary, no Employee shall be granted an
option under the Plan to the extent that such Employee’s right to purchase
stock under all employee stock purchase plans of the Company and any Subsidiary of Company, including this Plan, accrues at a
rate which exceeds twenty-five thousand dollars ($25,000) of the Fair Market
Value of such stock for any calendar year in which such option would be
outstanding at any time.  For purposes of
this limit, the Fair Market Value of the stock shall equal
the closing price of the stock as determined from the New York Stock Exchange
Consolidated Transaction Tape on the Offering Date on which the option is
granted.  To the extent necessary to
comply with the preceding sentence, the Committee may reduce or stop a
Participant’s Contributions at any time during an Offering Period.  The Participant’s Contributions shall
recommence at the rate provided in such Participant’s Subscription Agreement at
the beginning of the first Offering Period which is scheduled to end in the
following calendar year, unless terminated earlier as provided in Section 10
hereof.


 


6.             Method of Payment of
Contributions.


 


(a)           The Participant shall elect to have
payroll deductions made on each payday
during the Offering Period either (1) in a whole percentage amount
of between one percent (1%) and not more than ten percent (10%) of such
Participant’s Compensation on each such payday or (2) in a whole dollar
amount (that shall be not less than $5.00 and not more than an amount equal to
10% of such Participant’s Compensation) of such Participant’s Compensation on
each such payday. All payroll deductions made with respect to a Participant
shall be credited to his or her Plan Account. A Participant may not make any
additional payments into his or her Plan Account.


 


(b)           A Participant may discontinue his or
her participation in an Offering as provided in Section 10. A Participant
may increase or decrease the rate of his or her Contributions for future
Offerings by completing and filing with the Company a new Subscription
Agreement no later than fifteen (15) calendar days prior to the Enrollment Date
for the Offering for which such  change will become effective. Subject to the prior
sentence, the change in rate shall be effective as of the first pay period
ending in the first new Offering Period following the date of filing of the new
Subscription Agreement.


 


7.             Grant of Option. On the
Enrollment Date with respect to each Offering, each eligible Employee
participating in such Offering shall be granted an option to purchase on the
Exercise Date with respect to such Offering a number of shares of Common Stock
determined by dividing such Employee’s Contributions accumulated during the
Offering Period prior to such Exercise Date and retained in the Participant’s
Plan Account as of the Exercise Date by the applicable option exercise price
for the Offering, as determined by the Committee.  The applicable option exercise price with
respect to the first Offering shall be eighty-five percent (85%) of the closing
price of the Common Stock as determined from the New York Stock Exchange
Consolidated Transaction Tape on the Offering Date or the Exercise Date for
that Offering, whichever is


 


5

















 


lower,
or, if there were no sales of Common Stock on one or both of such dates, on the
next preceding date prior to either such date on which such closing price was
recorded.  Unless otherwise determined by the Committee,
the applicable option exercise price for each subsequent Offering shall be the
same as described in the preceding sentence. 
The Committee shall have the power to change the option exercise price
with respect to future Offerings and shall use its best efforts to announce
such change at least fifteen (15) calendar days prior to the scheduled
Enrollment Date of the first Offering Period to be affected.  Notwithstanding the foregoing, the applicable
option exercise price with respect to any Offering shall not be less than eighty-five
percent (85%) of the closing price of the Common Stock as determined from the
New York Stock Exchange Consolidated Transaction Tape on the Offering Date (if
different than the Exercise Date) or the Exercise Date for that Offering,
whichever is lower, or, if there were no sales of Common Stock on one or both
of such dates, on the next preceding date prior to either such date on which
such closing price was recorded.


 


8.             Exercise of Option.


 


(a)           Unless a Participant withdraws from
the Plan as provided in Section 10, each Participant’s option for the
purchase of shares for a particular Offering will be exercised automatically on
the Exercise Date of the Offering Period with respect to such Offering, and the
maximum number of whole and fractional shares subject to the option will be
purchased for the Participant at the applicable exercise price described in Section 7
with the Contributions which were made to the Participant’s Plan Account during
such Offering Period.  The shares of
Common Stock purchased upon exercise of an option hereunder shall be deemed to
be transferred to the Participant’s Plan Account on the Exercise Date.  Any amounts remaining in a Participant’s Plan
Account not applied to the purchase of Common Stock pursuant to this Section 8
shall be refunded on or promptly after the applicable Exercise Date.  Participants will have no interest (including
any interest in any ordinary or special dividends) or voting right in shares of
Common Stock that are subject to any option until such option has been
exercised.


 


(b)           As promptly as reasonably practicable following each Exercise
Date, the Company shall cause the shares purchased by each Participant to be
credited to such Participant’s Plan Account. The Company will deliver to the
Custodian or its nominee appropriate documentation or other evidence
representing all of the full and fractional shares that are to be allocated to
each Participant’s Plan Account.  New
fractional shares shall be added to fractional shares previously allocated to the
Participant’s Plan Account to form new whole shares.  Upon delivery to the Participant pursuant to Section 9,
any fractional shares then allocated to the Participant’s Plan Account shall be
paid to the Participant in cash, based on the closing price per share of the
Common Stock on the date on which the shares are delivered.  The Company shall pay to the Custodian an
amount in cash equal to the value of the fractional share that would otherwise
be delivered for payment to the Participant. 
Upon termination of the Plan, the Custodian shall redeliver to the
Company all shares (including fractional shares) of Common Stock and any other
asserts in the Custodial Account that have not been allocated to Participants’
Plan Accounts. The whole shares of Common Stock in each Participant’s Plan
Account shall be voted in accordance with the Participant’s signed proxy
instructions duly delivered to the Custodian by mail or otherwise, in
accordance with the rules applicable to stock listed on the New York Stock
Exchange.


 


9.             Delivery.  Upon the written request of a Participant
delivered to the Custodian, the Custodian will (i) cause any number of
whole shares held in the Participant’s Plan Account at the time of such notice
that the Participant has requested to receive to be (a) issued to an
account established in the Participant’s name with the


 


6

















 


Company’s
transfer agent via the Direct Registration System (“DRS”), or (b) transferred
electronically to a brokerage account designated by the Participant and, (ii) pay
to the Participant in cash an amount equal to the value of any fractional
shares held in the Participant’s Plan Account at the time of such notice that
the Participant has requested to receive. 
Upon termination of a Participant’s Continuous Status as an Employee
with the Company or one of its Designated Subsidiaries for any reason, the
Company will (i) cause any number of whole shares held in the Participant’s
Plan Account as of the date of such termination to be (a) issued to an
account established in the Participant’s name with the Company’s transfer agent
via DRS, or (b) transferred electronically to a brokerage account
designated by the Participant and, (ii) pay to the Participant in cash an
amount equal to the value of any fractional shares held in the Participant’s
Plan Account as of the date of such termination.  All amounts to be paid to an Employee
pursuant to this Section 9 with respect to fractional shares shall be
determined by reference to the closing price of the Common Stock determined
from the New York Stock Exchange Consolidated Transaction Tape on the date of
the Participant’s notice to the Company or termination, as applicable, or, if
there were no sales of the Common Stock on such date, on the next preceding day
on which such closing price was recorded.


 


10.           Withdrawal; Termination of
Employment.


 


(a)           A Participant may cease participation
in any Offering by withdrawing all but not less than all the Contributions
credited to his or her Plan Account, which have not been applied to the
purchase of Common Stock, prior to the Exercise Date of the Offering Period, by
giving written notice to the Company (a “Participation Termination Notice”) not
less than ten (10) calendar days prior to the Exercise Date of the
Offering Period. Any Participation Termination Notice delivered subsequent to
the tenth calendar day prior to any Exercise Date shall not be effective during
the Offering Period during which it was delivered, but will be effective as of
the first day of the immediately succeeding Offering Period. Upon the
effectiveness of an Employee’s Participation Termination Notice, all of the
Participant’s Contributions credited to his or her Plan Account, which have not
been applied to the purchase of Common Stock, and any taxes that the Company or
a Designated Subsidiary withheld in connection therewith, will be paid promptly
to the Participant, without interest, and his or her outstanding option will
automatically terminate. An Employee who terminates his or her participation in
an Offering will not be again eligible to participate until the Enrollment Date
for the first Offering Period following the expiration of the Offering Period during
which the Participant’s Participation Termination Notice becomes effective.


 


(b)           Upon termination of a Participant’s
Continuous Status as an Employee prior to the Exercise Date of the then current
Offering Period for any reason, including retirement or death, the
Contributions credited to his or her Plan Account which have not been applied
to the purchase of Common Stock, together with all taxes that the Company or a
Designated Subsidiary has withheld in connection therewith, will be returned to
him or her or, in the case of his or her death, to the person or persons
entitled thereto under Section 14, without interest, and his or her
outstanding option and future participation in the Plan will automatically
terminate.


 


(c)           Other than as set forth in Section 10(a),
a Participant’s withdrawal from an Offering under the Plan, whether voluntary
or involuntary, will not affect his or her eligibility to participate in any
Offering under the Plan in the future should he or she again qualify for
participation in the Offering or in any offering under a similar plan which may
hereafter be adopted by the Company.


 


11.           Interest and Dividends.  No interest shall accrue on the Contributions
of a


 


7

















 


Participant in the plan or any taxes withheld in
connection therewith.  A Participant
shall not be entitled to any ordinary or special dividends paid with respect to
shares of Common Stock that are subject to any option until such option has
been exercised.  The Company shall cause
any ordinary or special dividends paid with respect to shares of Common Stock
credited to Participants’ Plan Accounts to be credited to each Participant’s
Plan Account as promptly as reasonably practicable following the dividend
record date, and shall deliver appropriate documentation or pay appropriate
cash amounts to the Custodian representing the shares of Common Stock or cash
amounts, respectively, creditable with respect to any such dividend.


 


12.           Stock.  The maximum number of shares of Common Stock
which shall be reserved for sale under the Plan shall be two hundred and fifty
thousand (250,000) shares, subject, however, to adjustment upon changes in
capitalization of the Company as provided in Section 18.  Such shares shall be reserved from the Company’s
authorized but unissued shares and/or treasury shares that are not otherwise
reserved for issuance under any other plan or with respect to any convertible
security.  If the total number of shares
which would otherwise be subject to options granted pursuant to Section 7
hereof on the Enrollment Date of an Offering Period exceeds the number of
shares then available under the Plan (after deduction of all shares for which
options have been exercised or are then outstanding), the Committee shall make
a pro rata allocation of the shares remaining available for option grants in as
uniform a manner as shall be practicable and as it shall determine to be
equitable.  In such event, the Company
shall give written notice of such reduction of the number of shares subject to
the option to each Employee affected thereby and shall reduce or cease future
withholdings and Contributions under the Plan, if necessary.  Only the number of shares that are issued
pursuant to exercised options shall reduce the number of shares available under
the Plan. Shares that become subject to options which are later terminated
shall again be available under the Plan.


 


13.           Administration.


 


(a)           Except as otherwise determined by the
Board, the Committee shall administer the Plan. The Committee shall have the
authority in its discretion, subject to and not inconsistent with the express
provisions of the Plan and the determinations of the Board, to administer the
Plan and to exercise all powers and authorities either specifically granted to
it under the Plan or necessary or advisable in the administration of the Plan,
including, without limitation, the authority to determine, from time to time,
eligible Employees; to interpret and construe the Plan and the provisions of
the Subscription Agreements; to prescribe, amend and rescind rules and
regulations relating to the Plan; to determine the terms and provisions of the Offerings
and Subscription Agreements and to cancel or suspend the participation of any
Employee or group of Employees, and to make all other determinations deemed
necessary or advisable for the administration of the Plan.


 


(b)           The Board shall fill all vacancies,
however caused, in the Committee. The Board may from time to time appoint
additional members to the Committee, and may at any time remove one or more
Committee members and substitute others. The Committee may appoint a
chairperson and a secretary and make such rules and regulations for the
conduct of its business as it shall deem advisable, and shall keep minutes of
its meetings. The Committee shall hold its meetings at such times and places
(and its telephonic meetings at such times) as it shall deem advisable. The
Committee may delegate to one or more of its members or to one or more agents
such administrative duties as it may deem advisable, and the Committee or any
person to whom it has delegated duties as aforesaid may employ one or more
persons to render advice with respect to any responsibility the Committee or
such person may have under the Plan. Except to the extent otherwise determined
by the Board, all decisions, determinations and interpretations of the


 


8

















 


Committee
shall be final and binding on all persons, including, without limitation, the
Company, the Participants (or any person claiming any rights under the Plan
from or through any Participant) and any stockholder.


 


(c)           No member of the Board or of the
Committee shall be liable for any action or determination made in good faith,
and the members of the Board or of the Committee shall be entitled to
indemnification and reimbursement in the manner provided in the Company’s
Certificate of Incorporation, as it may be amended from time to time.


 


14.           Designation of Beneficiary.


 


(a)           A Participant may file a written
designation of a beneficiary who is to receive any shares of Common Stock and
cash, if any, from the Participant’s Plan Account in the event of such
Participant’s death by delivering notice of such beneficiary to the Company. If
a Participant is married and the designated beneficiary is not the spouse,
spousal consent shall be required for such designation to be effective.


 


(b)           The Participant (subject to spousal
consent) may change such designation of beneficiary at any time by written
notice delivered to the Company. In the event of the death of a Participant and
in the absence of a beneficiary validly designated under the Plan who is living
at the time of such Participant’s death, the Company shall deliver such shares
and/or cash to the executor or administrator of the estate of the Participant,
or if no such executor or administrator has been appointed (to the knowledge of
the Company), the Company, in its discretion, may 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 Company may designate or as may be required by
law.


 


15.           Transferability. Neither
Contributions credited to a Participant’s Plan Account nor any rights with
regard to the exercise of an option or to receive shares under the Plan may be
assigned, transferred, pledged or otherwise disposed of in any way (other than
by will, the laws of descent and distribution or as provided in Section 14
hereof) by the Participant. Any such attempt at assignment, transfer, pledge or
other disposition shall be without effect, except that the Company may treat
such act as an election to withdraw funds in accordance with Section 10.
No Contribution made under this Plan or amount representing a Participant’s
Plan Account balance shall be subject to execution, attachment or process.  A Participant’s option to purchase shares of
Common Stock under the Plan may be exercised during the Participant’s lifetime only by the Participant.


 


16.           Use of Funds.  The Participants’ rights with respect to Contributions
made to the Plan and the balances, from time to time, in their respective Plan
Accounts shall be those of general creditors of the Company or of the
applicable Designated Subsidiary.  All
Contributions received or held by the Company or a Designated Subsidiary under
the Plan may be used for any corporate purpose, and the Company or Designated
Subsidiary, as applicable, shall not be obligated to segregate such
Contributions.


 


17.           Reports and Fees of Plan Accounts.
Individual Plan Accounts will be maintained for each Participant. Statements of
account will be given to Participants promptly following each Exercise Date,
which statements will set forth the total amount of Contributions to the Plan
Account during the most recently completed Offering Period, the per share
purchase price and the number of shares purchased on the most recent Exercise
Date, and the total number of shares and fractional shares represented by such
Participant’s Plan Account. The Company shall pay the annual and any extraordinary
maintenance fees for the Custodial Account and each Plan Account.  The Participant will be responsible for


 


9

















 


paying
all transaction fees not paid by the Company pursuant to the preceding sentence.


 


18.           Adjustments Upon Changes in
Capitalization.


 


(a)           The number of shares of Common Stock
covered by each unexercised option under the Plan and the number of shares of
Common Stock which have been authorized for issuance under the Plan but which
have not yet been issued and are not subject of an unexercised option
(collectively, the “Reserves”), as well as the price per share of Common Stock
covered by each option under the Plan for which the exercise price has been
determined but which has not yet been exercised, 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; provided, however, that conversion of any
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 in that respect shall be final, binding and conclusive.
Except as expressly provided herein, no issue 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.


 


(b)           In the event of the proposed
dissolution or liquidation of the Company, the then current Offering Period
will terminate immediately prior to the consummation of such proposed action,
unless otherwise provided by the Committee. 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, each option under the Plan shall be
assumed or an equivalent option shall be substituted by such successor
corporation or a parent or subsidiary of such successor corporation, unless the
Committee determines, in the exercise of its sole discretion and in lieu of
such assumption or substitution, to shorten the Offering Period then in
progress by setting a new Exercise Date (the “New Exercise Date”). If the
Committee shortens the Offering Period then in progress in lieu of assumption
or substitution in the event of a merger or sale of assets, the Committee shall
use its best efforts to notify each participant in writing, at least ten (10) days
prior to the New Exercise Date, that the Exercise Date for his or her option
has been changed to the New Exercise Date and that his or her option will be
exercised automatically on the New Exercise Date, unless prior to such date he
or she has withdrawn from the Offering Period as provided in Section 10.
For purposes of this Section, an option granted under the Plan shall be deemed
to be assumed if, following the sale of assets or merger, the option confers
the right to purchase, for each share of Common Stock subject to the option
immediately prior to the sale of assets or merger, the consideration (whether
stock, cash or other securities or property) received in the sale of assets or
merger by holders of Common Stock for each share of Common Stock held on the
effective date of the transaction (and if such holders were offered a choice of
consideration, the type of consideration chosen by the holders of a majority of
the outstanding shares of Common Stock).


 


19.           Amendment or Termination.


 


(a)           The Committee may at any time
terminate the Plan or from time to time make such modifications or amendments
of the Plan as it may deem advisable; provided, however, that no amendments to
the Plan which require stockholder approval under applicable law, rule or
regulation shall become effective unless the same shall be approved by the
requisite vote of the Company’s stockholders. 
The Committee or the Board may make any modification or amendment to the
Plan that it deems necessary or advisable in 


 


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order
to implement the Plan in a manner consistent with any law or regulation
applicable to the Company or any Designated Subsidiary. The Committee shall
inform all Participants and Employees eligible to participate in the Plan, who
would be affected thereby, of any such modification or amendment. Except as
provided in Section 18, no such termination may affect options previously
granted, nor may an amendment make any change in any option theretofore granted
which adversely affects the rights of any Participant.


 


(b)           Without stockholder consent and
without regard to whether any Participant rights may be considered to have been
adversely affected, the Committee shall be entitled to change the Offering
Periods, limit the frequency and/or number of changes in the amounts withheld
during an Offering 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 Company’s processing of properly completed withholding
elections, establish reasonable waiting and adjustment periods and/or
accounting and crediting procedures to ensure that amounts applied toward the
purchase of shares of Common Stock for each Participant properly correspond with
amounts withheld from the Participant’s Compensation, and establish such other
limitations or procedures as the Committee determines in its sole discretion
advisable and consistent with the Plan.


 


20.           Notices. All notices or other
communications by a Participant to the Company under or in connection with the
Plan shall be deemed to have been duly given when received in the form
specified by the Company at the location, or by the person, designated by the
Company for the receipt thereof.


 


21.           Conditions Upon Issuance of
Shares.


 


(a)           Shares shall not be issued with
respect to an option unless the exercise of such option and the issuance and
delivery of such shares pursuant thereto shall comply with all applicable
provisions of law, domestic or foreign, including, without limitation, the
Securities Act of 1933, as amended (the “Securities Act”), the Exchange Act,
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.


 


(b)           As a condition to the exercise of an
option, the Company may require the person exercising such option to represent
and warrant at the time of any such exercise that the shares are being
purchased only for investment and without any present intention to sell or
distribute such shares if, in the opinion of counsel for the Company, such a
representation is required by any of the aforementioned applicable provisions
of law. If the issuance of any shares of Common Stock pursuant to the Plan is
not so registered under the Securities Act, certificates for such shares shall
bear a legend reciting the fact that such shares may only be transferred
pursuant to an effective registration statement under the Securities Act or an
opinion of counsel to the Company that such registration is not required. The
Company may also issue “stop transfer” instructions with respect to such shares
while they are subject to such restrictions.


 


(c)           The Company shall use its best
efforts to have the shares issued under the Plan listed on each securities
exchange on which the Common Stock is then listed as promptly as possible. The
Company shall not be obligated to issue or sell any shares under the Plan until
they have been listed on each securities exchange on which the Common Stock is
then listed.


 


(d)           The Company will promptly file with
the Securities and Exchange


 


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Commission a registration statement on Form S-8
covering the issuance of the shares of Common Stock pursuant to this Plan,
cause such registration statement to become effective, and keep such
registration statement effective for the period that this Plan is in effect.


 


22.           Term of Plan. The Plan became
effective upon its approval by the shareholders of the Company on May 7,
2009 and shall continue in effect until the earliest to occur of (i) purchase
of all shares of Common Stock subject to the Plan, (ii) May 7, 2019,
and (iii) the date the Plan is terminated pursuant to Section 19.


 


23.           No Employment Rights.  Nothing in the Plan (or in any Subscription
Agreement or other document related to this Plan) will confer upon any Employee
or Participant any right to continue in the employ or other service of the
Company or any Subsidiary, constitute any contract or agreement of employment
or other service or effect an Employee’s status as an Employee at will, nor
shall interfere in any way with the right of the Company or any Subsidiary to
change such person’s compensation or other benefits or to terminate his or her
employment or other service, with or without cause. Nothing contained in this Section 23,
however, is intended to adversely affect any express independent right of any such
person under a separate employment or service contract other than a
Subscription Agreement.


 


24.           No Right to Assets of the Company.
No Participant or other person will have any right, title or interest in any
fund or in any specific asset (including shares of Common Stock) of the Company
or any Subsidiary by reason of any option granted hereunder. Neither the
provisions of the Plan (or of any Subscription Agreement or other document
related to the Plan), nor the creation or adoption of the Plan, nor any action
taken pursuant to the provisions of the Plan will create, or be construed to
create, a trust of any kind or a fiduciary relationship between the Company or
any Subsidiary and any Participant, beneficiary or other person. To the extent
that a Participant, beneficiary or other person acquires a right to receive
payment pursuant to the Plan, such right will be no greater than the right of
any unsecured general creditor of the Company.


 


25.           Governing Law. To the extent
that federal laws do not otherwise control, the Plan shall be construed in
accordance with and governed by the laws of the State of Delaware.


 


26.           Savings Clause. This Plan is
intended to comply in all aspects with applicable laws and regulations. In case
any one or more of the provisions of this Plan shall be held invalid, illegal
or unenforceable in any respect under applicable law and regulations, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby and the invalid, illegal or
unenforceable provisions shall be deemed null and void; however, to the extent
permissible by law, any provision which could be deemed null and void shall
first be construed, interpreted or revised retroactively to permit this Plan to
be construed in compliance with all applicable laws so as to foster the intent
of this Plan.


 


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