amended2000espp.htm


    Exhibit 10.4

     

    ONVIA,
INC.

     

    AMENDED

     

    2000 EMPLOYEE STOCK PURCHASE
PLAN

     

     

    The
following constitute the provisions of the 2000 Employee Stock Purchase Plan of
Onvia, Inc. as amended and restated, effective November 1,
2005.

     

    1. Purpose.  The purpose of
the Plan is to provide employees of the Company and its Designated Subsidiaries
with an opportunity to purchase Common Stock of the Company.  It is
the intention of the Company to have the Plan qualify as an “Employee Stock
Purchase Plan” under 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) “Common
Stock” means the
Common Stock of the Company.

     

    (d) “Company” means Onvia, Inc., a
Delaware corporation.

     

    (e) “Compensation” means all regular straight
time gross earnings, and shall not include commissions, payments for overtime,
shift premium, incentive compensation, incentive payments, bonuses and other
compensation.

     

    (f) “Continuous
Status as an Employee” means the absence of any
interruption or termination of service as an Employee.  Continuous
Status as an Employee shall not be considered interrupted in the case of
(i) sick leave; (ii)military leave; (iii) any other leave of absence
approved by the Administrator, provided that such leave is for a period of not
more than 90 days, unless reemployment upon the expiration of such leave is
guaranteed by contract or statute, or unless provided otherwise pursuant to
Company policy adopted from time to time; or (iv) in the case of transfers
between locations of the Company or between the Company and its Designated
Subsidiaries.

     

    (g) “Contributions” means all amounts credited
to the account of a participant pursuant to the Plan.

     

    (h) “Corporate
Transaction”
means a sale of all or substantially all of the Company’s assets, or a merger,
consolidation or other capital reorganization of the Company with or into
another corporation.

     

    (i) “Designated
Subsidiaries”
means the Subsidiaries which have been designated by the Board from time to time
in its sole discretion as eligible to participate in the Plan; provided however
that the Board shall only have the discretion to designate Subsidiaries
if

     


    
      
        
           

           

        

         


      

      
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    (j) the
issuance of options to such Subsidiary’s Employees pursuant to the Plan would
not cause the Company to incur adverse accounting charges.

     

    (k) “Employee” means any person, including
an Officer, who is customarily employed for at least twenty (20) hours per
week and more than five (5) months in a calendar year by the Company or one
of its Designated Subsidiaries.

     

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

     

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

     

    (n) “Offering
Period” means a
period of six (6) months commencing on May 1 and November 1 of
each year.

     

    (o) “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.

     

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

     

    (q) “Purchase
Date” means the
last day of each Offering Period of the Plan.

     

    (r) “Purchase
Price” means with
respect to an Offering Period an amount equal to 85% of the Fair Market Value
(as defined in Section 7(b) below) of a Share of Common Stock on the
Offering Date or on the Purchase Date, whichever is lower; provided, however,
that in the event (i) of any increase in the number of Shares available for
issuance under the Plan as a result of a stockholder-approved amendment to the
Plan, and (ii) all or a portion of such additional Shares are to be issued
with respect to one or more Offering Periods that are underway at the time of
such increase (“Additional Shares”),
and (iii) the Fair Market Value of a Share of Common Stock on the date of
such increase (the “Approval Date Fair Market
Value”) is higher than the Fair Market Value on the Offering Date for any
such Offering Period, then in such instance the Purchase Price with respect to
Additional Shares shall be 85% of the Approval Date Fair Market Value or the
Fair Market Value of a Share of Common Stock on the Purchase Date, whichever is
lower.

     

    (s) “Share” means a share of Common
Stock, as adjusted in accordance with Section 18 of the Plan.

     

    (t) “Subsidiary” means a corporation,
domestic or foreign, of which not less than 50% of the voting shares are held by
the Company or a Subsidiary, whether or not such corporation now exists or is
hereafter organized or acquired by the Company or a Subsidiary.

     


    
      
        
           

           

        

         


      

      
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    (u) Eligibility.

     

    (v) Any
person who is an Employee as of the Offering Date of a given Offering Period
shall be eligible to participate in such Offering Period under the Plan, subject
to the requirements of Section 5(a) and the limitations imposed by
Section 423(b) of the Code.

     

    (w) Any
provisions of the Plan to the contrary notwithstanding, no Employee shall be
granted an option under the Plan (i) if, 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 capital stock of the
Company 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, or
(ii) if such option would permit his or her rights to purchase stock under
all employee stock purchase plans (described in Section 423 of the Code) of
the Company and its Subsidiaries to accrue at a rate which exceeds Twenty-Five
Thousand Dollars ($25,000) of the Fair Market Value (as defined in
Section 7(b) below) of such stock (determined at the time such option is
granted) for each calendar year in which such option is outstanding at any
time,

     

    3. Offering Periods and
Purchase Dates.

     

    (a) Restart
of Offering Periods.  All outstanding
Offering Periods in progress shall terminate on the Purchase Date on
October 31, 2005, and all Offering Periods commencing on or after
November 1, 2005 shall be governed by this Section 4.

     

    (b) Offering
Periods.  Effective
November 1, 2005, the Plan shall be implemented by a series of Offering
Periods of six (6) months duration, with new Offering Periods commencing on
or about May 1 and November 1 of each year (or at such other time or
times as may be determined by the Board of Directors).  The Plan shall
continue until terminated in accordance with Section 19
hereof.  The Board of Directors of the Company shall have the power to
change the duration and/or the frequency of Offering Periods with respect to
future offerings without stockholder approval if such change is announced at
least five (5) days prior to the scheduled beginning of the first Offering
Period to be affected.

     

    (c) Purchase
Dates.  The last day of
each Offering Period shall be the Purchase Date for such Offering
Period.  An Offering Period commencing on May I shall end on the next
October 31.  An Offering Period commencing on November 1
shall end on the next April 30.

     

    4. Participation.

     

    (a) An
eligible Employee may become a participant in the Plan by completing a
subscription agreement on the form provided by the Company and filing it with
the Company’s payroll office prior to the applicable Offering Date, unless a
later time for filing the subscription agreement is set by the Board for all
eligible Employees with respect to a given Offering Period.  The
subscription agreement shall set forth the percentage of the participant’s
Compensation (subject to Section 6(a) below) to be paid as Contributions
pursuant to the Plan.

     


    
      
        
           

           

        

         


      

      
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    (b) Payroll
deductions shall commence on the first payroll following the Offering Date and
shall end on the last payroll paid on or prior to the Purchase Date of the
Offering Period to which the subscription agreement is applicable, unless sooner
terminated by the participant as provided in Section 10.

     

    5. Method of Payment of
Contributions.

     

    (a) A
participant shall elect to have payroll deductions made on each payday during
the Offering Period in an amount not less than one percent (1%) and not more
than fifteen percent (15%) (or such greater percentage as the Board may
establish from time to time before an Offering Date) of such participant’s
Compensation on each payday during the Offering Period.  All payroll
deductions made by a participant shall be credited to his or her account under
the Plan.  A participant may not make any additional payments into
such account.

     

    (b) A
participant may discontinue his or her participation in the Plan as provided in
Section 10, or, on one occasion only during an Offering Period may increase
and on one occasion only during an Offering Period may decrease the rate of his
or her Contributions with respect to the Offering Period by completing and
filing with the Company a new subscription agreement authorizing a change in the
payroll deduction rate.  The change in rate shall be effective as of
the beginning of the next calendar month following the date of filing of the new
subscription agreement, if the agreement is filed at least ten (10)
business days prior to such date and, if not, as of the beginning of the next
succeeding calendar month.

     

    (c) Notwithstanding
the foregoing, to the extent necessary to comply with Section 423(b)(8) of
the Code and Section 3(b), a participant’s payroll deductions may be
decreased by the Company to 0% at any time during an Offering
Period.  Payroll deductions shall re-commence 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 by the participant as provided in Section 10.  In
addition, a participant’s payroll deductions may be decreased by the Company to
0% at any time during an Offering Period in order to avoid unnecessary payroll
contributions as a result of application of the maximum share limit set forth in
Section 7(a), in which case payroll deductions shall re-commence at the
rate provided in such participant’s subscription agreement at the beginning of
the next Offering Period, unless terminated by the participant as provided in
Section 10.

     

    6. Grant of
Option.

     

    (a) On the
Offering Date of each Offering Period, each eligible Employee participating in
such Offering Period shall be granted an option to purchase on the Purchase Date
a number of Shares of the Company’s Common Stock determined by dividing such
Employee’s Contributions accumulated prior to such Purchase Date and retained in
the participant’s account as of the Purchase Date by the applicable Purchase
Price; provided however that the maximum number
of Shares an Employee may purchase during each Offering Period shall be 300
Shares (subject to any adjustment pursuant to Section 18 below), and
provided further that such purchase shall be subject to the limitations set
forth in Sections 3(b) and 12.

     


    
      
        
           

           

        

         


      

      
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    (b) The fair
market value of the Company’s Common Stock on a given date (the “Fair Market Value”)
shall be determined by the Board in its discretion based on the closing sales
price of the Common Stock for such date (or, in the event that the Common Stock
is not traded on such date, on the immediately preceding trading, date), as
reported by the National Association of Securities Dealers Automated Quotation
(Nasdaq) National Market or, if such price is not reported, the mean of the bid
and asked prices per share of the Common Stock as reported by Nasdaq or, in the
event the Common Stock is listed on a stock exchange, the Fair Market Value per
share shall be the closing sales price on such exchange on such date (or, in the
event that the Common Stock is not traded on such date, on the immediately
preceding trading date), as reported in The Wall Street
Journal.

     

    7. Exercise
of Option.  Unless a
participant withdraws from the Plan as provided in Section 10, his or her
option for the purchase of Shares will be exercised automatically on the
Purchase Date of an Offering Period, and the maximum number of full Shares
subject to the option will be purchased at the applicable Purchase Price with
the accumulated Contributions in his or her account.  No fractional
Shares shall be issued.  The Shares purchased upon exercise of an
option hereunder shall be deemed to be transferred to the participant on the
Purchase Date.  During his or her lifetime, a participant’s option to
purchase Shares hereunder is exercisable only by him or her.

     

    8. Delivery.  As promptly as
practicable after the Purchase Date of an Offering Period, the Company shall
arrange the delivery to each participant, as appropriate, the Shares purchased
upon exercise of his or her option.  No fractional Shares shall be
purchased; any payroll deductions accumulated in a participant’s account which
are not sufficient to purchase a full Share shall be retained in the
participant’s account for the subsequent Offering Period, subject to earlier
withdrawal by the participant as provided in Section 10
below.  Any other amounts left over in a participant’s account after a
Purchase Date shall be returned to the participant.

     

    9. Voluntary Withdrawal;
Termination of Employment.

     

    (a) A
participant may withdraw all but not less than all the Contributions credited to
his or her account under the Plan at any time prior to each Purchase Date by
giving written notice to the Company.  All of the participant’s
Contributions credited to his or her account will be paid to him or her promptly
after receipt of his or her notice of withdrawal and his or her option for the
current period will be automatically terminated, and no further Contributions
for the purchase of Shares will be made during the Offering Period.

     

    (b) Upon
termination of the participant’s Continuous Status as an Employee prior to the
Purchase Date of an Offering Period for any reason, including retirement or
death, the Contributions credited to his or her account 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, and his or her option will be automatically
terminated.

     

    (c) In the
event an Employee fails to remain in Continuous Status as an Employee of the
Company for at least twenty (20) hours per week during the Offering Period
in which the employee is a participant, he or she will be deemed to have elected
to withdraw from the Plan and the Contributions credited to his or her account
will be returned to him or her and his or her option terminated.

     


    
      
        
           

           

        

         


      

      
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    (d) A
participant’s withdrawal from an offering will not have any effect upon his or
her eligibility to participate in a succeeding offering or in any similar plan
which may hereafter be adopted by the Company.

     

    10. Interest.  No interest shall
accrue on the Contributions of a participant in the Plan.

     

    11. Stock.

     

    (a) As
adjusted as provided in Section 18, the maximum number of Shares which
shall be made available for sale under the Plan shall be 60,000 Shares as of
March 1, 2000, plus an annual increase on the first day of each of the
Company’s fiscal years during the term of the Plan beginning in 2001 and ending
in 2010 equal to the lesser of (i) 60,000 Shares (as adjusted),
(ii) one percent (1%) of the Shares outstanding on the last day of the
immediately preceding fiscal year, or (iii) such lesser number of Shares as
is determined by the Board.  If the Board determines that, on a given
Purchase Date, the number of shares with respect to which options are to be
exercised may exceed (i) the number of shares of Common Stock that were
available for sale under the Plan on the Offering Date of the applicable
Offering Period, or (ii) the number of shares available for sale under the
Plan on such Purchase Date, the Board may in its sole discretion provide
(x) that the Company shall make a pro rata allocation of the Shares of
Common Stock available for purchase on such Offering Date or Purchase Date, as
applicable, in as uniform a manner as shall be practicable and as it shall
determine in its sole discretion to be equitable among all participants
exercising options to purchase Common Stock on such Purchase Date, or
(y) that the Company shall make a pro rata allocation of the shares
available for purchase on such Offering Date or Purchase Date, as applicable, in
as uniform a manner as shall be practicable and as it shall determine in its
sole discretion to be equitable among all participants exercising options to
purchase Common Stock on such Purchase Date.  The Company may make pro
rata allocation of the Shares available on the Offering Date of any applicable
Offering Period pursuant to the preceding sentence, notwithstanding any
authorization of additional Shares for issuance under the Plan by the Company’s
stockholders subsequent to such Offering Date.

     

    (b) The
participant shall have no interest or voting right in Shares covered by his or
her option until such option has been exercised.

     

    (c) Shares to
be delivered to a participant under the Plan will be registered in the name of
the participant or in the name of the participant and his or her
spouse.

     

    12. Administration.  The Board, or a
committee named by the Board, shall supervise and administer the Plan and shall
have full power to adopt, amend and rescind any rules deemed desirable and
appropriate for the administration of the Plan and not inconsistent with the
Plan, to construe and interpret the Plan, and to make all other determinations
necessary or advisable for the administration of the Plan.

     


    
      
        
           

           

        

         


      

      
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    13. Designation of
Beneficiary.

     

    (a) A
participant may file a written designation of a beneficiary who is to receive,
any Shares and cash, if any, from the participant’s account under the Plan in
the event of such participant’s death subsequent to the end of an Offering
Period but prior to delivery to him or her of such Shares and
cash.  In addition, a participant may file a written designation of a
beneficiary who is to receive any cash from the participant’s account under the
Plan in the event of such participant’s death prior to the Purchase Date of an
Offering Period.  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) Such
designation of beneficiary may be changed by the participant (and his or her
spouse, if any) at any time by written notice.  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.

     

    14. Transferability.  Neither
Contributions credited to a participant’s 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) 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.

     

    15. Use of
Funds.  All Contributions
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
Contributions.

     

    16. Reports.  Individual
accounts will be maintained for each participant in the
Plan.  Statements of account will be given to participating Employees
at least annually, which statements will set forth the amounts of Contributions,
the per Share Purchase Price, the number of Shares purchased and the remaining
cash balance, if any.

     

    17. Adjustments Upon Changes in
Capitalization; Corporate.  Transactions.

     

    (a) Adjustment.  Subject to any
required action by the stockholders of the Company, the number of Shares covered
by each option under the Plan which has not yet been exercised and the number of
Shares which have been authorized for issuance under the Plan but have not yet
been placed under option (collectively, the “Reserves”), as well
as the maximum number of shares of Common Stock which may be purchased by a
participant in an Offering Period, the number of shares of Common Stock set
forth in Section 12(a) above, and the price per Share of Common Stock
covered by each option under the Plan which has not yet been exercised, shall be
proportionately adjusted for any increase or decrease in the number of
issued

     


    
      
        
           

           

        

         


      

      
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    (b) Shares
resulting from a stock split, reverse stock split, stock dividend, combination
or reclassification of the Common Stock (including any such change in the number
of Shares of Common Stock effected in connection with a change in domicile of
the Company), or any other increase or decrease in the number of Shares 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 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 subject to an
option.

     

    (c) Corporate
Transactions.  In the event of a
dissolution or liquidation of the Company, the Offering Period then in progress
will terminate immediately prior to the consummation of such action, unless
otherwise provided by the Board.  In the event of a Corporate
Transaction, each option outstanding under the Plan shall be assumed or an
equivalent option shall be substituted by the successor corporation or a parent
or Subsidiary of such successor corporation.  In the event that the
successor corporation refuses to assume or substitute for outstanding options,
the Offering Period then in progress shall be shortened and a new Purchase Date
shall be set (the “New
Purchase Date”), as of which date the Offering Period then in progress
will terminate.  The New Purchase Date shall be on or before the date
of consummation of the transaction and the Board shall notify each participant
in writing, at least ten (10) days prior to the New Purchase Date, that the
Purchase Date for his or her option has been changed to the New Purchase Date
and that his or her option will be exercised automatically on the New Purchase
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 18,
an option granted under the Plan shall be deemed to be assumed, without
limitation, if, at the time of issuance of the stock or other consideration upon
a Corporate Transaction, each holder of an option under the Plan would be
entitled to receive upon exercise of the option the same number and kind of
shares of stock or the same amount of property, cash or securities as such
holder would have been entitled to receive upon the occurrence of the
transaction if the holder had been, immediately prior to the transaction, the
holder of the number of Shares of Common Stock covered by the option at such
time (after giving effect to any adjustments in the number of Shares covered by
the option as provided for in this Section 18); provided however that if
the consideration received in the transaction is not solely common stock of the
successor corporation or its parent (as defined in Section 424(e) of the
Code), the Board may, with the consent of the successor corporation, provide for
the consideration to be received upon.  exercise of 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 transaction.

     

    The Board
may, if it so determines in the exercise of its sole discretion, also make
provision for adjusting the Reserves, as well as the price per Share of Common
Stock covered by each outstanding option, in the event that the Company effects
one or more reorganizations, recapitalizations, rights offerings or other
increases or reductions of Shares of its outstanding Common Stock, and in the
event of the Company’s being consolidated with or merged into any other
corporation.

     

    18. Amendment or
Termination.

     

    (a) The Board
may at any time and for any reason terminate or amend the
Plan.  Except as provided in Section 18, no such termination of
the Plan may affect options previously granted, provided that the Plan or an
Offering Period may be terminated by the Board on a Purchase Date or by the
Board’s setting a new Purchase Date with respect to an Offering Period then in
progress if the Board determines that termination of the Plan and/or the
Offering Period is in the best interests of the Company and the stockholders or
if continuation of the Plan and/or the Offering Period would cause the Company
to incur adverse accounting charges as a result of a change after the effective
date of the Plan in the generally accepted accounting rules applicable to the
Plan.  Except as provided in Section 18 and in this
Section 19, no amendment to the Plan shall make any change in any option
previously granted which adversely affects the rights of any
participant.  In addition, to the extent necessary to comply with
Rule 16b-3 under the Exchange Act, or under Section 423 of the Code
(or any successor rule or provision or any applicable law or regulation), the
Company shall obtain stockholder approval in such a manner and to such a degree
as so required.

     

    (b) Without
stockholder consent and without regard to whether any participant rights may be
considered to have been adversely affected, the Board (or its committee) shall
be entitled to change the Offering Periods, limit the frequency and/or number of
changes in the amount 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 Common Stock
for each participant properly correspond with amounts withheld from the
participant’s Compensation, and establish such other limitations or procedures
as the Board (or its committee) determines in its sole discretion advisable
which are consistent with the Plan.

     

    19. 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.

     

    20. Conditions
Upon Issuance of Shares.  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 Exchange Act, the rules
and regulations promulgated thereunder, applicable state securities laws 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.

     

    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.

     

    21. Term of
Plan; Effective Date.  The Plan was
effective March 1, 2000.  It shall continue in effect for a term
of ten (10) years unless sooner terminated under
Section 19.

     

    22. Additional
Restrictions of Rule 16b-3.  The terms and
conditions of options granted hereunder to, and the purchase of Shares by,
persons subject to Section 16 of the Exchange Act shall comply with the
applicable provisions of Rule 16b-3.  This Plan shall be deemed
to contain, and such options shall contain, and the Shares issued upon exercise
thereof shall be subject to, such additional conditions and restrictions as may
be required by Rule 16b-3 to qualify for the maximum exemption from
Section 16 of the Exchange Act with respect to Plan
transactions.

     

    


     


    
      
        
           

           

        

         


      

      
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