ex10_3.htm


    Exhibit
10.3

     

     

    
      CKE
RESTAURANTS, INC.

       

      AMENDED
AND RESTATED 1994 EMPLOYEE STOCK PURCHASE PLAN

       

      This
Amended and Restated 1994 Employee Stock Purchase Plan (the “Plan”) is hereby
adopted by CKE Restaurants, Inc., a Delaware corporation (the “Company”)
effective as of February 26, 2009.

       

      1. Purpose of
Plan.  The purpose of the Plan is to encourage a sense of
proprietorship on the part of employees of the Company and its Subsidiary
corporations (as defined below) by assisting them in making regular purchases of
shares of the Company, and thus to benefit the Company by increasing such
employees’ interest in the growth of the Company and its Subsidiary corporations
and in such entities’ financial success.  Participation in the Plan is
entirely voluntary, and the Company makes no recommendations to its employees,
or the employees of its Subsidiary corporations, as to whether they should
participate.

       

      2. Definitions.

       

      2.1 “Base Earnings” shall mean the
Employee’s regular salary rate before deductions required by law and deductions
authorized by the Employee.  Base Earnings do not include: pay for
overtime, extended workweek schedules, or any other form of extra compensation;
payments by the Company or its Subsidiary corporations, as applicable, of social
security, worker’s compensation, unemployment compensation, any disability
payments or other payments required by statute; or contributions by the Company
or its Subsidiary corporations, as applicable, for insurance, annuity, or other
employee benefit plans.

       

      2.2 “Board” shall mean the Board of
Directors of the Company.

       

      2.3 “Broker” shall mean the
financial institution designated to act as Broker under the Plan pursuant to
Paragraph 17 hereof.

       

      2.4 “Brokerage Account” shall mean
an account established on behalf of each Participant pursuant to
Paragraph 9.1 hereof.

       

      2.5 “Committee” shall mean a stock
purchase committee appointed by the Board.

       

      2.6 “Common Stock” shall mean the
common stock, par value $0.01 per share, of the Company.

       

      2.7 “Company Account” shall mean
the account established in the name of the Company pursuant to
Paragraph 7.2 hereof.

       

      2.8 “Effective Date” shall mean the
original effective date of the CKE Restaurants, Inc. Employee Stock Purchase
Plan, which was September 27, 1994.

       

      2.9 “Employee” shall mean any
person who has reached the age of majority and who is currently employed by the
Company or one of its Subsidiary corporations (i) on an hourly basis as a
restaurant employee and has been so employed continuously during the preceding
one (1) year (provided that the Board or the Committee may in its discretion
waive such one (1) year requirement), excluding non-employees and persons on
leave of absence; (ii) on an hourly basis as a non-restaurant employee and
has been so employed continuously during the preceding 90 days (provided that
the Board or the Committee may in its discretion waive such 90-day requirement),
excluding non-employees and persons on leave of absence, or (iii) is exempt
from the overtime and minimum wage requirements under federal and state laws and
has been so employed continuously during the preceding 90 days (provided that
the Board or the Committee may in its discretion waive such 90-day requirement)
, excluding non-employees and persons on leave of absence.  An
Employee may also be referred to herein as a Participant.

       

      2.10 “Incentive Compensation” shall
mean compensation received by any Employee of the Company, or its Subsidiary
corporations, as a bonus or performance-based award, which is in addition to
such Employee’s regular salary.

       

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

       

      3. Administration.  The
Plan shall be administered by the Board or, in the discretion of the Board, by
the Committee which shall consist of not less than two (2) persons to be
appointed by, and to serve at the pleasure of, the Board.  No member
of the Board or Committee who is not an Employee shall be eligible to
participate in the Plan.  An aggregate of 5,407,500 shares of Common
Stock shall be subject to the Plan, provided that such number shall be
automatically adjusted to reflect any stock split, reverse stock split, stock
dividend, recapitalization, merger, consolidation, combination, reclassification
or similar corporate change.  The Board or the Committee shall have
full authority to construe, interpret, apply and administer the Plan and to
establish and amend such rules and procedures as it deems necessary or
appropriate from time to time for the proper administration of the
Plan.  In addition, the Board or the Committee may engage or hire such
persons, including without limitation, the Broker, to provide administrative,
recordkeeping and other similar services in connection with its administration
of the Plan, as it may deem necessary or appropriate from time to
time.  The members of the Board and the Committee and the officers of
the Company shall be entitled to rely upon all certificates and reports made by
such persons, including the Broker, and upon all opinions given by any legal
counsel or investment adviser selected or approved by the Board or the
Committee.  The members of the Board and the Committee and the
officers of the Company shall be fully protected in respect of any action taken
or suffered to be taken by them in good faith in reliance upon any such
certificates, reports, opinions or other advice of any such person, and all
action so taken or suffered shall be conclusive upon each of them and upon all
Participants.  The Company shall indemnify each member of the Board
and the Committee and any other officer or employee of the Company who is
designated to carry out any responsibilities under the Plan for any liability
arising out of or connected with his or her duties hereunder, except such
liability as may arise from such person’s gross negligence or willful
misconduct.

       

      4. Eligibility.  Any
Employee as defined in Paragraph 2.9 shall be eligible to participate in
the Plan.  Any Employee participating in the Plan who, after the
commencement of a particular Offering Period (as defined in Paragraph 5)
shall for any reason fail to meet the standards of eligibility shall be
considered to have withdrawn from the Plan, effective as of the date upon which
the Participant shall have become ineligible.  Any reference in this
Plan to withdrawal by a Participant from the Plan shall include ineligibility as
described in this Paragraph 4.

       

      5. Offering
Periods.  Shares shall be offered pursuant to this Plan in
periods which coincide with the Company’s fiscal quarters (“Offering Periods”),
commencing on the Effective Date and continuing thereafter until terminated in
accordance with Paragraph 15.  The Board shall have the power to
change the timing or duration of Offering Periods upon giving reasonable notice
of such changes to Participants prior to the scheduled beginning of the first
Offering Period to be affected.

       

      6. Participation.  Participation
in the Plan is voluntary.  An eligible Employee may apply to
participate in the Plan by utilizing the enrollment procedure agreed upon by the
Company and the Broker at the time of such enrollment.  Enrollments
must occur during an approved enrollment window (“Enrollment
Window”).  An eligible Employee may contact the Broker or the
Company’s benefits department to determine the next available Enrollment Window
or to obtain information about the then-current enrollment
procedures.  Participation in the Plan shall not be effective until
the Broker and the Company have determined that the eligible Employee has
complied with all applicable enrollment procedures (including confirming that
the enrollment is occurring during an appropriate Enrollment Window) and the
Company has provided written notice to the Employee confirming such
enrollment.  Participation in the Plan shall commence immediately upon
the Company’s delivery of such notice.

       

      7. Payroll
Deductions.

       

      7.1 Election.  At the
time a Participant enrolls in the Plan as set forth in Paragraph 6, the
Participant shall elect to have payroll deductions made on each payday during
the Offering Period of a whole percentage from three to fifteen percent (3% to
15%) of the Base Earnings that the Participant is to receive on such
payday.  In addition to the deduction from Base Earnings, or in lieu
of the deduction from Base Earnings, a Participant may elect to have payroll
deductions made at a whole percentage from three to fifteen percent (3% to 15%)
of the Incentive Compensation that the Participant is to receive.  A
Participant may authorize deductions to be made with respect to such Incentive
Compensation by contacting the Broker or the Company’s benefits department and
following the enrollment instructions provided.

       

      7.2 Holding of
Funds.  All payroll deductions authorized by each Participant
shall be held in a non-interest account in the name of the Plan (the “Company
Account”) until used to purchase Common Stock and shall not be used for any
other purpose.  The Company shall maintain records reflecting the
amount in the Company Account of each Participant.  All withholding
taxes in connection with a Participant’s payroll deduction shall be deducted
from the remainder of the Base Earnings and/or Incentive Compensation paid to
the Participant and not from the amount to be placed in the Company
Account.  A Participant may not make any additional payments into the
Company Account except as provided in Paragraph 18.  The
aggregate amount in the Company Account contributed by  Participants
(whether from payroll deductions or lump sum payments as provided in Section 18)
shall be referred to as the “Participant Contributions.”

       

      7.3 Changes in
Election.  Participation in the Plan will continue until the
Participant withdraws from the Plan, is no longer eligible to participate or the
Plan is terminated.  Such participation shall be on the basis of the
payroll deduction information submitted by such Employee to the Company and then
currently in effect.  Each such election shall remain in effect until
the effective date of any change in the amount of payroll deduction as requested
by the Participant and accepted by the Company.  To be effective in
any Offering Period, a change in the amount of payroll deduction must be
requested in accordance with the procedures agreed upon by the Company and the
Broker.  A Participant may change his or her withholding percentage at
any time during an Offering Period.  If a Participant’s Base Earnings
change during an Offering Period, the amount of the payroll deduction will be
changed to the figure reflecting the Participant’s previously elected deduction
percentage applied to his or her new Base Earnings (but will not in any event be
in excess of fifteen percent (15%) of the Participant’s Base
Earnings).

       

      8. Contribution by the Company or a
Subsidiary.  The Company or a Subsidiary shall make matching
contributions (the “Matching Contribution”) as follows:

       

      8.1 Officers and Directors as
Participants.  For each officer or director of the Company or a
Subsidiary who participates in the Plan and remains an Employee of the Company
or a Subsidiary for at least one (1) year after the termination of a particular
Offering Period, the Company or the relevant Subsidiary shall make upon the one
(1) year anniversary date after such Offering Period a Matching Contribution in
cash equal to one-half (1/2) of the dollar amount contributed by such
Participant during such one (1) year earlier Offering Period less all
withholding taxes in connection with such Matching
Contribution.  “Officer” shall mean those individuals elected as
Officers by the Board of Directors of the Company or its Subsidiary
corporations, and shall be determined as of the end of an Offering
Period.  “Director” shall mean an employee and a member of the Board
of Directors of the Company and its subsidiaries.  “Director” shall
also mean employees of the Company and its subsidiaries who hold the title
Director.  Withholding taxes as and when required in connection with
such Matching Contribution shall be withheld based upon the person’s existing
withholding percentages or as otherwise required by law from the Participant’s
base earnings.

       

      8.2 Other
Participants.  For each Participant in the Plan (other than an
officer or director) who remains an Employee of the Company or a Subsidiary for
at least one (1) year after the termination of a particular Offering Period, the
Company or the relevant Subsidiary shall make upon the one (1) year anniversary
date after such Offering Period a Matching Contribution in cash equal to
one-third (1/3) of the dollar amount contributed by such Participant during such
one (1) year earlier Offering Period.  Withholding taxes as and when
required in connection with such Matching Contribution shall be withheld based
upon the person’s existing withholding percentages or as otherwise required by
law from the Participant’s base earnings.

       

      8.3 Tax
Withholding.  The Company is required to withhold taxes with
respect to any Matching Contribution paid to a Participant.  Such
withholding amount shall be deducted from Participant’s base earnings received
following the date on which the Matching Contribution is made and in accordance
with the Company’s then-current withholding practices.

       

      9. Purchase of Shares Regarding
Participant’s Contribution.

       

      9.1 Brokerage
Account.  Following Participant’s enrollment in the Plan in
accordance with Paragraph 6, the Company shall direct the Broker to open and
maintain an account (the “Brokerage Account”) in the name of such Participant
and to purchase shares of Common Stock on behalf of such Participant as
permitted under this Plan.

       

      9.2 Delivery of Funds to Broker from
Company.  The Company, from time to time during an Offering
Period, shall deliver to the Broker an amount equal to the total of all
Participant Contributions together with a list of the amount of such Participant
Contributions from each Participant.

       

      9.3 Broker’s Purchase of
Shares.  From time to time, the Broker, as agent for the
Participants, shall purchase as many full shares or fractional shares of Common
Stock as the Participant Contributions will permit.  The shares shall
be purchased on the open market at the then-current fair market
value.  The Broker shall not be entitled to purchase authorized but
previously unissued shares or  treasury shares from the
Company.  The amount of Common Stock purchased by the Broker pursuant
to this Paragraph 9.3 shall be allocated to the respective Brokerage
Account of each Participant on the basis of the average cost of the Common Stock
so purchased, in proportion to the amount allocable to each
Participant.  At the end of each Offering Period under the Plan, each
Participant shall acquire full ownership of all full shares and fractional
shares of Common Stock purchased for his or her Brokerage
Account.  Unless otherwise requested by the Participant, all such full
shares and fractional shares so purchased shall be registered in the name of the
Broker and will remain so registered until delivery is requested in accordance
with Paragraph 9.5.

       

      9.4 Fees and
Commissions.  The Company shall pay the Broker’s administrative
charges for opening and maintaining the Brokerage Accounts for active
Participants and the brokerage commissions on purchases made for such Brokerage
Accounts which are attributable to Participant Contributions and Matching
Contributions under the Plan.  Such Brokerage Accounts may be utilized
for other transactions as described in Paragraph 9.5 below, but any fees,
commissions or other charges by the Broker in connection with such other
transactions shall, in certain circumstances described in Paragraph 9.5, be
payable directly to the Broker by the Participant.

       

      9.5 Participant Accounts with
Broker.  Each Participant’s Brokerage Account shall be credited
with all cash dividends paid with respect to full shares and fractional shares
of Common Stock purchased pursuant to Paragraphs 9.3 and 10 unless such shares
are registered in the Participant’s name.  Unless otherwise instructed
by the Participant, dividends on such Common Stock shall automatically be
reinvested in Common Stock as soon as practicable following receipt of such
dividends by the Broker.  Applicable fees and brokerage commissions on
the reinvestment of such dividends will be payable by the
Participant.  Any stock dividends or stock splits which are made with
respect to shares of Common Stock purchased pursuant to Paragraphs 9.3 and 10
shall be credited to the Participant’s Brokerage Account without
charge.  Any Participant may request that a certificate for any or all
of the full shares of Common Stock credited to his or her Brokerage Account be
delivered to him at any time; provided, however, the Participant shall be
charged by the Broker for any fees applicable to such requests.  A
Participant may request the Broker at any time to sell any or all of the full
shares or fractional shares of Common Stock credited to his or her Brokerage
Account.  Unless otherwise instructed by the Participant, upon such
sale the Broker will mail to the Participant a check for the proceeds, less any
applicable fees and brokerage commissions and any transfer taxes, registration
fees or other normal charges which shall be payable by the
Participant.  Except as provided in Paragraph 13, a request by
the Participant to the Broker to sell shares of Common Stock or for delivery of
certificates shall not affect an Employee’s status as a
Participant.  A Participant who has a Brokerage Account with the
Broker may purchase additional shares of Common Stock of the Company for his or
her Brokerage Account at any time by separate purchases arranged through the
Broker.  When any such purchases are made, the Participant will be
charged by the Broker for any and all fees and brokerage commissions applicable
to such transactions.  In addition, any subsequent transactions with
respect to such shares acquired including, but not limited to, purchases, sales,
reinvestment of dividends, requests for certificates, and crediting of stock
dividends or stock splits, shall be at the expense of the Participant and the
Broker shall charge the Participant directly for any and all fees and brokerage
commissions applicable to such transactions.

       

      10. Issuance of Shares Regarding Matching
Contribution.  Subject to Paragraph 20, on the tenth
(10th) day
after the first anniversary of an Offering Period, each Participant’s direct
employer shall make the Matching Contribution for each qualified Participant in
an amount described in Paragraph 8 by delivering to the Broker an amount in
cash equal to the total funds necessary to make the Matching Contributions
described in Paragraph 8 together with a list of the Participants to whom
the Matching Contributions are to be paid.  As soon as practicable
thereafter, the Broker shall utilize the Matching Contributions to purchase
shares of Common Stock on behalf of the Participants.  The shares
shall be purchased on the open market at the then-current fair market
value.  The Broker shall not be entitled to purchase authorized but
previously unissued shares or treasury shares from the Company.  At
the time of such allocation, each Participant shall immediately acquire full
ownership of all full and fractional shares of Common Stock
purchased.  Unless otherwise requested by the Participant, all such
shares so purchased shall be registered in the name of the Broker and will
remain so registered until delivery is requested in accordance with
Paragraph 9.5.

       

      11. Voting and
Shares.  All voting rights with respect to the full and
fractional shares of Common Stock held in the Brokerage Account of each
Participant may be exercised by each Participant and the Broker shall exercise
such voting rights in accordance with the Participant’s signed proxy instruction
duly delivered to the Broker.

       

      12. Statement of
Account.  As soon as practicable after the end of each Offering
Period, the Broker shall deliver to each Participant a statement regarding all
activity in his or her Brokerage Account, including his or her participation in
the Plan for such Offering Period.  Such statement will show the
number of shares acquired or sold, the price per share, the transaction date,
stock splits, dividends paid, dividends reinvested and the total number of
shares held in the Brokerage Account.  The Broker shall also deliver
to each Participant as promptly as practicable, by mail or otherwise, all
notices of meetings, proxy statements and other material distributed by the
Company to its stockholders, including the Company’s annual report to its
stockholders containing audited financial statements.

       

      13. Notice of Withdrawal from the
Plan.  A Participant may withdraw from the Plan during any
Enrollment Window by giving written notice to the Company, which withdrawal
shall be effective as of the beginning of the next Offering
Period.  Upon any such withdrawal, the Participant shall be entitled
to receive as promptly as possible from the Company all of the Participant’s
payroll deductions credited to the Company Account in his or her name during the
applicable Offering Period.  In addition, as long as the Participant
continues to be employed by the Company or a Subsidiary corporation as of the
date of such withdrawal, the Participant shall continue to be entitled to
receive any Matching Contributions earned but not yet received.  In
the event a Participant withdraws from the Plan pursuant to this
Paragraph 13, the Company shall notify the Broker as soon as practicable
and the Broker shall maintain or close the Participant’s Brokerage Account in
accordance with the procedures set forth in Paragraph 16.  A
Participant who withdraws from the Plan may not reenter the Plan except by
complying with the enrollment procedures established in Paragraph 6, and his or
her participation shall be effective upon the Company’s delivery of written
notice to the Employee confirming such enrollment.

       

      14. Termination of
Employment.  In the event of the termination of a Participant’s
employment with the Company or a Subsidiary corporation for any reason during an
Offering Period, including, but not limited to, the death or disability of a
Participant, participation in the Plan shall terminate
immediately.  The Participant (or the personal representative of the
Participant) shall be entitled to receive an amount of cash determined in the
same manner and payable at the same time as if the Participant had withdrawn
from the Plan by giving notice of withdrawal effective as of the date such
termination occurs, provided, however, that such Participant (or the personal
representative of such Participant) shall not be entitled to receive any
Matching Contributions.  Notwithstanding the foregoing, termination of
employment by one employer for the purpose of being re-employed immediately by
the Company or one of its Subsidiary corporations shall not be considered
termination under this Paragraph 14.  Any reference in this Plan
to withdrawal by a Participant from the Plan shall include termination as
described in this Paragraph 14.  In the event of the termination
of a Participant’s employment pursuant to this Paragraph 14, the Company
shall notify the Broker as soon as practicable and the Broker shall maintain or
close the Participant’s Brokerage Account in accordance with the procedures set
forth in Paragraph 16.

       

      15. Amendment, Suspension and Termination
of Plan.  This Plan may be amended or terminated by the Board
at any time and such amendment or termination shall be communicated in writing
to all Participants as soon as practicable after the date of such Board
action.  If the Plan is terminated, each Participant shall be entitled
to receive as promptly as possible from the Company all payroll deductions
attributable to him or her which have not been used for purchase of Common Stock
pursuant to Paragraph 9, (“Account Balance”), but he or she shall not be
entitled to the benefit of any future Matching Contributions with respect to
such deductions or interest or otherwise for any past Offering
Periods.  In any event, this Plan shall terminate twenty (20) years
from the Effective Date.  In the event that the Company terminates the
Plan pursuant to this Paragraph 15, the Broker shall maintain or close the
Participant’s Brokerage Accounts in accordance with the procedures set forth in
Paragraph 16.  If there are any changes in the capitalization of
the Company, such as through mergers, consolidations, reorganizations,
recapitalizations, stock splits or stock dividends, appropriate adjustments will
be made by the Company in the number of shares of its Common Stock subject to
purchase under the Plan.

       

      16. Disposition of Brokerage Account
Following Withdrawal, Death, Termination of Employment or Termination of
Plan.  As soon as practicable following the notification of the
withdrawal of a Participant from the Plan, the notification of the termination
of a Participant’s employment with the Company or a Subsidiary corporation
(which includes the death or disability of the Participant) or of the
notification that the Plan is terminated pursuant to Paragraph 15 hereof,
the Broker shall notify the former Participant, or in the event of his or her
death, his or her designated beneficiary, if any, or if no designated
beneficiary the estate of the deceased Participant (collectively, an “Interested
Party”), regarding the disposition of the former Participant’s or deceased
Participant’s Brokerage Account.  As soon as practicable following
receipt of the notification set forth in the preceding sentence, the Interested
Party may request the Broker to dispose of the former Participant’s or deceased
Participant’s Brokerage Account, at the Interested Party’s expense, by any one
of the following means:

       

      (a) The
Interested Party may request the Broker to maintain the former Participant’s or
deceased Participant’s Brokerage Account for the benefit of the Interested Party
or any other person.  If this option is elected, the Interested Person
shall be charged by the Broker for all costs and fees charged by the Broker in
connection with operating and maintaining the  Brokerage
Account.

       

      (b) The
Interested Party may request the Broker to sell all of the full shares and
fractional shares of Common Stock, if any, held in the former Participant’s or
deceased Participant’s Brokerage Account.  Upon such sale, the Broker
will mail to the Interested Party a check for the proceeds, less any applicable
fees and brokerage commissions and any transfer taxes, registration fees or
other charges, which shall be payable by the Interested Party.

       

      (c) The
Interested Party may request the Broker to provide a certificate for all of the
full shares of Common Stock, if any, together with a check in an amount equal to
the proceeds of the sale of any fractional shares of Common Stock held in the
former Participant’s or deceased Participant’s Brokerage Account, less any
applicable fees and brokerage commissions and any transfer taxes, registration
fees or other charges, which are payable by the Participant.

       

      17. Broker.  The Broker
shall be Computershare, Inc. (or an entity affiliated with Computershare, Inc.)
which has agreed to act as Broker for such period as is determined by the
Company.  Either the Company or the Broker may terminate such
designation at any time upon thirty (30) days’ written notice.  In the
event of such termination of the Broker, the Company may administer the Plan
without the use of a Broker or may appoint a successor Broker.  Any
successor Broker shall be vested with all the powers, rights, duties and
immunities of the Broker hereunder to the same extent as if originally named as
the Broker hereunder.  The relationship between the Broker and the
Participant will be the normal relationship of a broker and its client, and the
Company assumes no responsibility in this respect.

       

      18. Lump Sum
Contribution.  The Board and/or Committee may from time to time
in its discretion allow any Participant in the Plan to make a lump sum
contribution (“Lump Sum Contribution”) to be credited to him or her in the
Company Account, by check payable to the Company, in any amount up to fifteen
percent (15%) of his or her Base Earnings, for a period prescribed by the Board
and/or Committee.  The amount of the Lump Sum Contribution shall be
matched as provided in Paragraph 5, and withholding taxes in connection
with such Matching Contributions shall be deducted in the same manner as
provided in Paragraph 8.

       

      19. Conditions to Issuance of
Shares.  Shares shall not be issued under the Plan unless
issuance and delivery of such shares complies with all applicable provisions of
law, domestic or foreign, including, without limitation, the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder; the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder; the securities laws of the state in which any
Participant resides; the rules and regulations of the Financial Industry
Regulatory Authority;  and the rules and regulations of any stock
exchange upon which the Common Stock may then be listed.  In addition,
the Plan  shall be further subject to the approval of counsel for the
Company with respect to compliance with any of the foregoing.  By
enrolling in the Plan in accordance with Paragraph 6, the Participant covenants
and agrees that all shares are being purchased only for investment and without
any present intention to sell or distribute such shares.

       

      20. Notices.

       

      20.1 To Company or any Subsidiary
Corporation.  Any notice hereunder to the Company or to its
Subsidiary corporations shall be in writing and such notice shall be deemed made
only when delivered or three (3) days after being mailed by certified mail,
return receipt requested, to the Company’s principal office at 6307 Carpinteria
Avenue, Suite A, Carpinteria, California 93013 or to such other address as the
Company may designate by notice to the Participants.

       

      20.2 To Participant.  Any
notice to a Participant hereunder shall be in writing and any such communication
and any delivery to a Participant shall be deemed made if mailed or delivered to
the Participant at such address as the Participant may have on file with the
Company and with the Broker.  The delivery of any such communication
to the Participant’s email address shall satisfy the delivery requirement of
this Section 20.2 so long as the communication is sent to the email address that
was established on behalf of the Participant in connection with his or her
employment with the Company or any Subsidiary corporation.

       

      21. Miscellaneous.

       

      21.1 No Limitation on Termination of
Employment.  Nothing in the Plan shall in any manner be
construed to limit in any way the right of the Company or any of its Subsidiary
corporations to terminate an Employee’s employment at any time, without regard
to the effect of such termination on any right such Employee would otherwise
have under the Plan, or give any right to an Employee to remain employed by the
Company in any particular position or at any particular rate of
remuneration.

       

      21.2 Liability.  The
Company, its Subsidiary corporations, any member of the Board or Committee and
any other person participating in any determination of any question under the
Plan, or in the interpretation, administration or application of the Plan, shall
have no liability to any party for any action taken or not taken in good faith
under the Plan, or based on or arising out of a determination of any question
under the Plan or an interpretation, administration or application of the Plan
made in good faith.

       

      21.3 Captions.  The
captions of the paragraphs of this Plan are for convenience only and shall not
control or affect the meaning or construction of any of its
provisions.

       

      21.4 Assignment.  Any
rights of Employees hereunder shall be nonforfeitable, and no Account Balance or
contribution made by any employer may revert or inure to the benefit of the
Company or any Subsidiary corporation, provided that no Participant shall be
entitled to sell, assign, pledge or hypothecate any right or interest in his or
her Account Balance.

       

      21.5 Governing
Law.  Delaware law governs this Plan.

       

      21.6 Severability.  In
case any provision of this Plan shall be held illegal or invalid for any reason,
said illegality or invalidity shall not affect the remaining parts hereof, but
this Plan shall be construed and enforced as if such illegal and invalid
provision had never been inserted herein.

       

      21.7 Successors.  The
provisions of this Plan shall bind and inure to the benefit of the Company and
its successors and assigns.  The term “successors” as used herein
shall include any corporate or other business entity which shall by merger,
consolidation, purchase or otherwise acquire all or substantially all of the
business and assets of the Company, and successors of any such corporation or
other business entity.