exe4-2_0410.htm


 


 




EXHIBIT 4.2









 


3COM CORPORATION


 


1994 STOCK OPTION PLAN


(Amendment and restatement, effective April 30, 2002)












   Purposes of the Plan.  The purposes of this 1994 Stock Option Plan are:


 



	
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to attract and retain the best available personnel for positions of substantial responsibility,







 



	
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to provide additional incentive to Employees, and







 



	
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to promote the success of the Company’s business.







 


Only Nonstatutory Stock Options are granted under the Plan.


 


   Definitions.  As used herein, the following definitions shall apply:


 


 “Administrator” means the Board or any of its Committees as shall be administering the Plan, in accordance with Section 4 of the Plan.


 


 “Applicable Laws” means the requirements relating to the administration of stock option plans under U. S. state corporate laws, U.S. federal and state securities laws, the Code, any stock exchange or quotation system on which the Common Stock is listed or quoted and the applicable laws of any foreign country or jurisdiction where Options are, or will be, granted under the Plan.


 


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


 


 “Cause” means (i) an act of personal dishonesty taken by the Optionee in connection with his or her responsibilities as an employee and intended to result in substantial personal enrichment of the Optionee, (ii) Optionee being convicted of a felony, (iii) a willful act by the Optionee which constitutes gross misconduct and which is injurious to the Company,  (iv) following delivery to the Optionee of a written demand for performance from the Company which describes the basis for the Company’s reasonable belief that the Optionee has not substantially performed his or her duties, continued violations by the Optionee of the Optionee’s obligations to the Company which are demonstrably willful and deliberate on the Optionee’s part.


 


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


 


 “Committee” means a committee of Directors appointed by the Board in accordance with Section 4 of the Plan.


 


 “Common Stock” means the common stock of the Company.


 


 “Company” means 3Com Corporation. 



                                 “Control Company” means the Participating Company whose stock is subject to this Option.


 


 “Director” means a member of the Board.


 




  





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 “Disability” means total and permanent disability as defined in Section 22(e)(3) of the Code.


 


 “Employee” means any person, including Officers and Directors, employed by the Company or any Parent or Subsidiary of the Company.  An Employee shall not cease to be an Employee in the case of (i) any leave of absence approved by the Company or (ii) transfers between locations of the Company or between the Company, its Parent, any Subsidiary, or any successor.  Neither service as a Director nor payment of a director’s fee by the Company shall be sufficient to constitute “employment” by the Company.


 


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


 


 “Fair Market Value” means, as of any date, the value of Common Stock determined as follows:


 


 If the Common Stock is listed on any estab­lished stock exchange or a national market system, including without limitation the Nasdaq National Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its Fair Market Value shall be the closing sales price for such stock (or the closing bid, if no sales were reported) as quoted on such exchange or system for the last market trading day occurring prior to the time of determination, as reported in The Wall Street Journal or such other source as the Administrator deems reliable;


 


 If the Common Stock is regularly quoted by a recognized securities dealer but selling prices are not reported, the Fair Market Value of a Share of Common Stock shall be the mean between the high bid and low asked prices for the Common Stock on the last market trading day occurring prior to the time of determination, as reported in The Wall Street Journal or such other source as the Administrator deems reliable; or


 


 In the absence of an established market for the Common Stock, the Fair Market Value shall be determined in good faith by the Administrator.


 


 “Incentive Stock Option” means an Option intended to qualify as an incentive stock option within the meaning of Section 422 of the Code and the regulations promulgated thereunder.


 


 “Nonstatutory Stock Option” means an Option not intended to qualify as an Incentive Stock Option.


 


 “Notice of Grant” means a written or electronic notice evidencing certain terms and conditions of an individual Option grant.  The Notice of Grant is part of the Option Agreement.


 


 “Officer” means a person who is an officer of the Company within the meaning of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder.


 


 “Option” means a stock option granted pursuant to the Plan.


 


 “Option Agreement” means an agreement between the Company and an Optionee evidencing the terms and conditions of an individual Option grant.  The Option Agreement is subject to the terms and conditions of the Plan.


 


 “Optioned Stock” means the Common Stock subject to an Option.


 




  





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 “Optionee” means the holder of an outstanding Option granted under the Plan.


 


 “Ownership Change” means any of the following occurs with respect to the Control Company.


 


 the direct or indirect sale or exchange by the shareholders of the Control Company of all or substantially all of the stock of the Control Company;


 


 a merger in which the Control Company is a party; or


 


 the sale, exchange, or transfer of all or substantially all of the Control Company’s assets (other than a sale, exchange, or transfer to one or more corporations where the shareholders of the Control Company before such sale, exchange, or transfer retain, directly or indirectly, at least a majority of the beneficial interest in the voting stock of the corporation(s) to which the assets were transferred).


 


 “Parent” means a “parent corporation,” whether now or hereafter existing, as defined in Section 424(e) of the Code.


 


 “Participating Company” means (i) the Company and (ii) any present or future Parent and/or Subsidiary corporation while such corporation is a Parent or Subsidiary.


 


 “Plan” means this 3Com Corporation 1994 Stock Option Plan.


 


 “Rule 16b-3” means Rule 16b-3 of the Exchange Act or any successor to Rule 16b-3, as in effect when discretion is being exercised with respect to the Plan.


 


 “Section 16(b)” means Section 16(b) of the Exchange Act.


 


 “Share” means a share of the Common Stock, as adjusted in accordance with Section 12 of the Plan.


 


 “Subsidiary” means a “subsidiary corporation”, whether now or hereafter existing, as defined in Section 424(f) of the Code.


 


 “Transfer of Control” means an Ownership Change in which the stockholders of the Control Company before such Ownership Change do not retain, directly or indirectly, at least a majority of the beneficial interest in the voting stock of the Control Company.


 


 Stock Subject to the Plan.  Subject to the provisions of Section 12 of the Plan, the maximum aggregate number of Shares that may be optioned and sold under the Plan is One Hundred and Eighty Three Million, Six Hundred and Eighty Three Thousand Nine Hundred and Twenty Six (183,683,926) Shares, as adjusted for stock splits, stock dividends and similar events.  The Shares may be authorized, but unissued, or reacquired Common Stock.


 


If an Option expires or becomes unexercisable without having been exercised in full, the unpurchased Shares which were subject thereto shall become available for future grant or sale under the Plan (unless the Plan has terminated); provided, however, that Shares that have actually been issued under the Plan shall not be returned to the Plan and shall not become available for future distribution under the Plan.


 




  





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   Administration of the Plan.


 


 Procedure.


 


 Multiple Administrative Bodies.  Different Committees with respect to different groups of Employees may administer the Plan.


 


 Section 162(m).  To the extent that the Administrator determines it to be desirable to qualify Options granted hereunder as “performance-based compensation” within the meaning of Section 162(m) of the Code, the Plan shall be administered by a Committee of two or more “outside directors” within the meaning of Section 162(m) of the Code.


 


 Rule 16b-3.  To the extent desirable to qualify transactions hereunder as exempt under Rule 16b-3, the transactions contemplated hereunder shall be structured to satisfy the requirements for exemption under Rule 16b-3.


 


 Other Administration.  Other than as provided above, the Plan shall be administered by (A) the Board or (B) a Committee, which committee shall be constituted to satisfy Applicable Laws.


 


 Powers of the Administrator.  Subject to the provisions of the Plan, and in the case of a Committee, subject to the specific duties delegated by the Board to such Committee, the Administrator shall have the authority, in its discre­tion:


 


 to determine the Fair Market Value;


 


 to select the Employees to whom Options may be granted hereunder;


 


 to determine the number of shares of Common Stock to be covered by each Option granted hereunder;


 


 to approve forms of agreement for use under the Plan;


 


 to determine the terms and conditions, not inconsistent with the terms of the Plan, of any Option granted hereunder.  Such terms and conditions include, but are not limited to, the exercise price, the time or times when Options may be exercised (which may be based on performance criteria), any vesting acceleration, and any restriction or limitation regarding any Option or the shares of Common Stock relating thereto, based in each case on such factors as the Administrator, in its sole discretion, shall determine;


 


 to construe and interpret the terms of the Plan and awards granted pursuant to the Plan;


 


 to prescribe, amend and rescind rules and regulations relating to the Plan, including rules and regulations relating to sub-plans established for the purpose of qualifying for preferred tax treatment under foreign tax laws;


 


 to modify or amend each Option (subject to Section 15(c) of the Plan), including the discretionary authority to extend the post-termination exercisability period of Options longer than is otherwise provided for in the Plan;


 




  





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 to allow Optionees to satisfy withholding tax obligations by electing to have the Company withhold from the Shares to be issued upon exercise of an Option that number of Shares having a Fair Market Value equal to the minimum amount required to be withheld (but in no event any more than the minimum amount).  The Fair Market Value of the Shares to be withheld shall be determined on the date that the amount of tax to be withheld is to be determined.  All elections by an Optionee to have Shares withheld for this purpose shall be made in such form and under such conditions as the Administrator may deem necessary or advisable;


 


 to authorize any person to execute on behalf of the Company any instrument required to effect the grant of an Option previously granted by the Administrator;


 


 to make all other determinations deemed necessary or advisable for administering the Plan.


 


 Effect of Administrator’s Decision.  The Administrator’s decisions, determinations and interpretations shall be final and binding on all Optionees and any other holders of Options.


 


   Eligibility.  Options may be granted to Employees and individuals to whom substituted options are granted under this Plan in connection with a merger or other corporate transaction; however, no Options may be granted to (i) a person who, at the time of such grant, is an officer or director of the Company or a beneficial owner of more than ten percent (10%) of any class of equity securities of the Company registered pursuant to section 12 of the Securities Exchange Act of 1934, as amended, or (ii) any person whose eligibility to participate in the Plan would require the Company to obtain shareholder approval of the Plan pursuant to the Bylaws of the National Association of Securities Dealers (and any schedules thereto) or the provisions contained in the New York Stock Exchange Listed Company Manual.  


 


   Limitations.


 


 Neither the Plan nor any Option shall confer upon an Optionee any right with respect to continuing the Optionee’s relationship as an Employee with the Company, nor shall they interfere in any way with the Optionee’s right or the Company’s right to terminate such relationship at any time, with or without cause.


 


 The following limitations shall apply to grants of Options:


 


 No Employee shall be granted, in any fiscal year of the Company, Options to purchase more than one million Shares.


 


 In connection with his or her initial service, an Employee may be granted Options to purchase up to an additional one million Shares, which shall not count against the limit set forth in subsection (i) above.


 


 The foregoing limitations shall be adjusted proportionately in connection with any change in the Company’s capitalization as described in Section 12.


 


   Term of Plan.  Subject to Section 19 of the Plan, the amendment and restatement of the Plan shall become effective upon April 30, 2002.  Thereafter, the Plan shall continue in effect for a term of ten (10) years unless terminated earlier under Section 15 of the Plan.


 




  





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   Term of Option.  The term of each Option shall be stated in the Option Agreement.


 


   Option Exercise Price and Consideration.


 


                                Exercise Price.  The per share exercise price for the Shares to be issued pursuant to exercise of an Option shall be no less than 100% of the Fair Market Value per Share on the date of grant.  Notwithstanding the foregoing, Options may be granted with a per Share exercise price of less than 100% of the Fair Market Value per Share on the date of grant pursuant to a merger or other corporate transaction.


 


 Waiting Period and Exercise Dates.  At the time an Option is granted, the Administrator shall fix the period within which the Option may be exercised and shall determine any con­ditions that must be satisfied before the Option may be exercised.


 


 Form of Consideration.  The Administrator shall determine the acceptable form of consideration for exercising an Option, including the method of payment.  Such consideration may consist entirely of:


 


 cash;


 


 check;


 


 other Shares which (A) in the case of Shares acquired upon exercise of an option, have been owned by the Optionee for more than six months on the date of surrender, and (B) have a Fair Market Value on the date of surrender equal to the aggregate exercise price of the Shares as to which said Option shall be exercised;


 


 consideration (including immediate sales proceeds) received by the Company under a cashless exercise program implemented by the Company in connection with the Plan;


 


 any combination of the foregoing methods of payment; or


 


 such other consideration and method of payment for the issuance of Shares to the extent permitted by Applicable Laws.


 


   Exercise of Option.


 


 Procedure for Exercise; Rights as a Stockholder.  Any Option granted hereunder shall be exercisable according to the terms of the Plan and at such times and under such conditions as determined by the Administrator and set forth in the Option Agreement.  Unless the Administrator provides otherwise, vesting of Options granted hereunder shall be tolled during any unpaid leave of absence.  An Option may not be exercised for a fraction of a Share.


 


                                 An Option shall be deemed exercised when the Company receives: (i) written or electronic notice of exercise (in accordance with the Option Agreement) from the person entitled to exercise the Option, and (ii) full payment for the Shares with respect to which the Option is exercised.  Full payment may consist of any consideration and method of payment authorized by the Administrator and permitted by the Option Agreement and the Plan.  Shares issued upon exercise of an Option shall be issued in the name of the Optionee or, if requested by the Optionee, in the name of the Optionee and his or her spouse.  Until the Shares are issued (as evidenced by the appropriate entry on the books of the 


 




  





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Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder shall exist with respect to the Optioned Stock, notwithstanding the exercise of the Option.  The Company shall issue (or cause to be issued) such Shares promptly after the Option is exercised.  No adjustment will be made for a dividend or other right for which the record date is prior to the date the Shares are issued, except as provided in Section 12 of the Plan.


 


                                 Exercising an Option in any manner shall decrease the number of Shares thereafter available, both for purposes of the Plan and for sale under the Option, by the number of Shares as to which the Option is exercised.


 


 Termination of Relationship as an Employee.  If an Optionee ceases to be an Employee, other than upon the Optionee’s death or Disability, the Optionee may exercise his or her Option within such period of time as is specified in the Option Agreement to the extent that the Option is vested on the date of termination (but in no event later than the expiration of the term of such Option as set forth in the Option Agreement).  In the absence of a specified time in the Option Agreement, the Option shall remain exercisable for three (3) months following the Optionee’s termination.  If, on the date of termination, the Optionee is not vested as to his or her entire Option, the Shares covered by the unvested portion of the Option shall revert to the Plan.  If, after termination, the Optionee does not exercise his or her Option within the time specified by the Administrator, the Option shall terminate, and the Shares covered by such Option shall revert to the Plan.


 


 Disability of Optionee.  If an Optionee ceases to be an Employee as a result of the Optionee’s Disability, the Optionee may exercise his or her Option within such period of time as is specified in the Option Agreement to the extent the Option is vested on the date of termination (but in no event later than the expiration of the term of such Option as set forth in the Option Agreement).  In the absence of a specified time in the Option Agreement, the Option shall remain exercisable for twelve (12) months following the Optionee’s termination.  If, on the date of termination, the Optionee is not vested as to his or her entire Option, the Shares covered by the unvested portion of the Option shall revert to the Plan.  If, after termination, the Optionee does not exercise his or her Option within the time specified herein, the Option shall terminate, and the Shares covered by such Option shall revert to the Plan.


 


 Death of Optionee.  If an Optionee dies while an Employee, the Option may be exercised within such period of time as is specified in the Option Agreement (but in no event later than the expiration of the term of such Option as set forth in the Notice of Grant), by the Optionee’s estate or by a person who acquires the right to exercise the Option by bequest or inheritance, but only to the extent that the Option is vested on the date of death.  In the absence of a specified time in the Option Agreement, the Option shall remain exercisable for twelve (12) months following the Optionee’s termination.  If, at the time of death, the Optionee is not vested as to his or her entire Option, the Shares covered by the unvested portion of the Option shall immediately revert to the Plan.  The Option may be exercised by the executor or administrator of the Optionee’s estate or, if none, by the person(s) entitled to exercise the Option under the Optionee’s will or the laws of descent or distribution.  If the Option is not so exercised within the time specified herein, the Option shall terminate, and the Shares covered by such Option shall revert to the Plan.


 


 Buyout Provisions.  The Administrator may at any time offer to buy out for a payment in cash or Shares an Option previously granted based on such terms and conditions as the Administrator shall establish and communicate to the Optionee at the time that such offer is made.


 


 Non-Transferability of Options. Unless determined otherwise by the Administrator, an Option may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in any manner other than by will or by the laws of descent or distribution and may be exercised, during the lifetime of the Optionee, only by the Optionee.  If the Administrator makes an Option transferable, such Option shall contain such additional terms and conditions as the Administrator deems appropriate.


 




  





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   Adjustments Upon Changes in Capitalization, Dissolution, Merger or Asset Sale.


 


 Changes in Capitalization.  Subject to any required action by the stockholders of the Company, the number of shares of Common Stock covered by each outstanding Option, and the number of shares of Common Stock which have been authorized for issuance under the Plan but as to which no Options have yet been granted or which have been returned to the Plan upon cancellation or expiration of an Option, as well as the price per share of Common Stock covered by each such outstanding Option, shall be proportionately adjusted for any increase or decrease in the number of issued shares of Common Stock resulting from a stock split, reverse stock split, stock dividend, spin-off, combination or reclassification of the Common Stock, or any other like increase or decrease in the number of issued 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 adjustment shall be made by the Board, whose determination in that respect shall be final, binding and conclusive.  Except as expressly provided herein, no issuance by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number or price of shares of Common Stock subject to an Option.


 


 Dissolution or Liquidation.  In the event of the proposed dissolution or liquidation of the Company, the Administrator shall notify each Optionee as soon as practicable prior to the effective date of such proposed transaction.  The Administrator in its discretion may provide for an Optionee to have the right to exercise his or her Option until ten (10) days prior to such transaction as to all of the Optioned Stock covered thereby, including Shares as to which the Option would not otherwise be exercisable. To the extent it has not been previously exercised, an Option will terminate immediately prior to the consummation of such proposed action.


 


 Merger or Asset Sale.  In the event of a merger of the Company with or into another corporation, or the sale of substantially all of the assets of the Company, each outstanding Option shall be assumed or an equivalent option substituted by the successor corporation or a Parent or Subsidiary of the successor corporation.  In the event that the successor corporation refuses to assume or substitute for the Option, the Optionee shall fully vest in and have the right to exercise the Option as to all of the Optioned Stock, including Shares as to which it would not otherwise be vested or exercisable.  If an Option becomes fully vested and exercisable in lieu of assumption or substitution in the event of a merger or sale of assets, the Administrator shall notify the Optionee in writing or electronically that the Option shall be fully vested and exercisable for a period of at least fifteen (15) days from the date of such notice, and the Option shall terminate upon the expiration of such period.  For the purposes of this paragraph, the Option shall be considered assumed if, following the merger or sale of assets, the Option confers the right to purchase or receive, for each Share of Optioned Stock subject to the Option immediately prior to the merger or sale of assets, the consideration (whether stock, cash, or other securities or property) received in the merger or sale of assets by holders of Common Stock for each Share held on the effective date of the transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding Shares); provided, however, that if such consideration received in the merger or sale of assets is not solely common stock of the successor corporation or its Parent, the Administrator may, with the consent of the successor corporation, provide for the consideration to be received upon the exercise of the Option, for each Share of Optioned Stock subject to the Option, to be solely common stock of the successor corporation or its Parent equal in fair market value to the per share consideration received by holders of Common Stock in the merger or sale of assets.


 




  





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           Certain Terminations Within Twelve Months Following a Transfer of Control.  In the event that, within twelve (12) months following a Transfer of Control an Optionee’s employment with the Participating Company is terminated involuntarily by his or her employer other than for Cause, then such Optionee’s Options shall have their vesting accelerated as to fifty percent (50%) of the unvested Shares of the date of such termination of employment.


 


   Date of Grant.  The date of grant of an Option shall be, for all purposes, the date on which the Administrator makes the determination granting such Option, or such other later date as is determined by the Administrator.  For purposes of determining the Fair Market Value under Section 2(n) of the Plan, in the event that the date of grant is a market trading day, the grant shall be deemed to occur after the close of trading on the date of grant and the Fair Market Value shall be determined using the trading data for the date of grant.  Notice of the determination shall be provided to each Optionee within a reasonable time after the date of such grant.


 


   Amendment and Termination of the Plan.


 


 Amendment and Termination.  The Board may at any time amend, alter, suspend or terminate the Plan.


 


 Effect of Amendment or Termination.  No amendment, alteration, suspension or termination of the Plan shall impair the rights of any Optionee, unless mutually agreed otherwise between the Optionee and the Administrator, which agreement must be in writing and signed by the Optionee and the Company.  Termination of the Plan shall not affect the Administrator’s ability to exercise the powers granted to it hereunder with respect to Options granted under the Plan prior to the date of such termination.


 


   Conditions Upon Issuance of Shares.


 


 Legal Compliance.  Shares shall not be issued pursuant to the exercise of an Option unless the exercise of such Option and the issuance and delivery of such Shares shall comply with Applicable Laws and shall be further subject to the approval of counsel for the Company with respect to such compliance.


 


 Investment Representations.  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.


 


   Inability to Obtain Authority.  The inability of the Company to obtain authority from any regulatory body having jurisdiction, which authority is deemed by the Company’s counsel to be necessary to the lawful issuance and sale of any Shares hereunder, shall relieve the Company of any liability in respect of the failure to issue or sell such Shares as to which such requisite authority shall not have been obtained.


 


   Reservation of Shares.  The Company, during the term of this Plan, will at all times reserve and keep available such number of Shares as shall be sufficient to satisfy the requirements of the Plan.


 




  





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