exv10w21



 





Exhibit 10.21




PACKETEER, INC.

1999 EMPLOYEE STOCK PURCHASE PLAN




As Amended and Restated Effective as of December 12, 2007




     I. PURPOSE OF THE PLAN



          This Employee Stock Purchase Plan is intended to promote the interests of Packeteer, Inc., a
Delaware corporation, by providing eligible employees with the opportunity to acquire a proprietary
interest in the Corporation through participation in a payroll-deduction based employee stock
purchase plan designed to qualify under Section 423 of the Code.




          Capitalized terms herein shall have the meanings assigned to such terms in the attached
Appendix.




     II. ADMINISTRATION OF THE PLAN



          The Plan Administrator shall have full authority to interpret and construe any provision of
the Plan and to adopt such rules and regulations for administering the Plan as it may deem
necessary in order to comply with the requirements of Code Section 423. Decisions of the Plan
Administrator shall be final and binding on all parties having an interest in the Plan.




     III. STOCK SUBJECT TO PLAN



          A. The stock purchasable under the Plan shall be shares of authorized but unissued or
reacquired Common Stock, including shares of Common Stock purchased on the open market. The number
of shares of Common Stock initially reserved for issuance over the term of the Plan shall be
limited to 500,000 shares.




          B. The number of shares of Common Stock available for issuance under the Plan shall
automatically increase on the first trading day of January each calendar year during the term of
the Plan, beginning with calendar year 2000, by an amount equal to two percent (2%) of the total
number of shares of Common Stock outstanding on the last trading day in December of the immediately
preceding calendar year, but in no event shall any such annual increase exceed 1,000,000 shares.




          C. Should any change be made to the Common Stock by reason of any stock split, stock dividend,
recapitalization, combination of shares, exchange of shares or other change affecting the
outstanding Common Stock as a class without the Corporation’s receipt of consideration, appropriate
adjustments shall be made to (i) the maximum number and class of securities issuable under the
Plan, (ii) the maximum number and class of securities purchasable per Participant on any one
Purchase Date, (iii) the maximum number and class of securities purchasable by all Participants in
the aggregate on any one Purchase Date, (iv) the maximum number and/or class of securities by which
the share reserve is to increase automatically each calendar year pursuant to the provisions of
Section III.B of this Article One and (v) the number



 









 






and class of securities and the price per share in effect under each outstanding purchase
right in order to prevent the dilution or enlargement of benefits thereunder.




     IV. OFFERING PERIODS



          A. Shares of Common Stock shall be offered for purchase under the Plan through a series of
successive offering periods until such time as (i) the maximum number of shares of Common Stock
available for issuance under the Plan shall have been purchased or (ii) the Plan shall have been
sooner terminated.




          B. Each offering period shall be of such duration (not to exceed twenty-four (24) months) as
determined by the Plan Administrator prior to the start date of such offering period. However, the
initial offering period shall commence at the Effective Time and terminate on the last business day
in July 2001. The next offering period shall commence on the first business day in August 2001,
and subsequent offering periods shall commence as designated by the Plan Administrator.




          C. Each offering period shall be comprised of a series of one or more successive Purchase
Intervals. Unless otherwise determined by the Plan Administrator, Purchase Intervals shall run
from the first business day in February to the last business day in July each year and from the
first business day in August each year to the last business day in January in the following year.
However, the first Purchase Interval in effect under the initial offering period shall commence at
the Effective Time and terminate on the last business day in January 31, 2000. Subsequent Purchase
Intervals shall commence and be of such duration as designated by the Plan Administrator.




          D. Should the Fair Market Value per share of Common Stock on the next business day following
any Purchase Date (the “Subject Purchase Date”), other than the last Purchase Date within an
offering period, be less than the Fair Market Value per share of Common Stock on any Semi-Annual
Entry Date within that offering period (including the start date of the offering period), then each
Participant whose participation in that offering period commenced on such Semi-Annual Entry Date
(the “Subject Entry Date”) shall automatically be deemed to have (i) terminated in accordance with
Section VII.F(i) his or her outstanding purchase right immediately following the purchase of shares
of Common Stock on the Subject Purchase Date and (ii) enrolled and been granted a purchase right in
a new offering period commencing on such next business day following the Subject Purchase Date.
Unless a shorter duration is established by the Plan Administrator within five (5) business days
following the start date of the new offering period, the new offering period shall have a duration
equal to (i) twenty-four (24) months if the Subject Entry Date was the start date of the old
offering period or (ii) the number of Purchase Intervals that remained following the Subject
Purchase Date in the old offering period if the Subject Entry Date was other than the start date of
the old offering period. Any payroll deductions of a Participant enrolled in a new offering period
in accordance with this Section which were withheld on or before the Subject Purchase Date and not
applied to the purchase of shares of Common Stock on the Subject Purchase Date (unless such
unapplied amount was insufficient to purchase a whole share of Common Stock) shall be promptly



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refunded. This Section shall be effective for each offering period commencing on or after
July 16, 2003 and having a duration of twenty-four
(24) months.1




     V. ELIGIBILITY AND ENROLLMENT



          A. Each individual who is an Eligible Employee on the start date of any offering period under
the Plan may enter that offering period on such start date or on any subsequent Periodic Entry Date
within that offering period, provided he or she remains an Eligible Employee.




          B. Each individual who first becomes an Eligible Employee after the start date of an offering
period may enter that offering period on any subsequent Periodic Entry Date within that offering
period on which he or she is an Eligible Employee.




          C. The date an individual enters an offering period shall be designated his or her Entry Date
for purposes of that offering period.




          D. To participate in the Plan for a particular offering period, an Eligible Employee must
complete the enrollment forms prescribed by the Plan Administrator (including a stock purchase
agreement and a payroll deduction authorization) and file such forms with the Plan Administrator
(or its designee) on or before his or her scheduled Entry Date. Each Eligible Employee who has
become a Participant shall automatically participate in the next offering period commencing
immediately after the final Purchase Date of each offering period in which the Participant
participates, provided that the Participant remains an Eligible Employee on the start date of the
new offering period and has not terminated his or her purchase right as provided in Section VII.F.
A Participant who may automatically participate in a subsequent offering period as provided in this
Section is not required to deliver any additional enrollment form or stock purchase agreement for
the subsequent offering period in order to continue participation in the Plan. However, a
Participant may deliver a new enrollment form for a subsequent offering period in accordance with
the procedures set forth in Section VI if the Participant desires to change any of the elections
contained in the Participant’s then effective enrollment form.




     VI. PAYROLL DEDUCTIONS



          A. The payroll deduction authorized by the Participant for purposes of acquiring shares of
Common Stock during an offering period may be any multiple of one percent (1%) of the Cash
Compensation paid to the Participant during each Purchase Interval within that offering period, up
to a maximum not to exceed fifteen percent (15%). The Plan Administrator shall designate the
maximum payroll deduction in effect under the Plan prior to the start of any Purchase Interval; if
no designation is made, the maximum shall be fifteen percent (15%) of Cash Compensation. The
deduction rate so authorized by the Participant shall continue in effect throughout the offering
period, except to the extent such rate is changed in accordance with the following guidelines:






 




			
	1	 	Section IV.D of the Plan as in effect prior to July 16, 2003 shall
apply to each offering period having a start date prior to such date.





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               (i) The Participant may, at any time during the offering period, reduce his or
her rate of payroll deduction to become effective as soon as possible after filing
the appropriate form with the Plan Administrator. The Participant may not, however,
effect more than one (1) such reduction per Purchase Interval.




               (ii) The Participant may, prior to the commencement of any new Purchase
Interval within the offering period, increase the rate of his or her payroll
deduction by filing the appropriate form with the Plan Administrator. The new rate
(which may not exceed the fifteen percent (15%) maximum) shall become effective on
the start date of the first Purchase Interval following the filing of such form.



          B. Payroll deductions shall begin on the first pay day administratively feasible following the
Participant’s Entry Date into the offering period and shall (unless sooner terminated by the
Participant) continue through the pay day ending with or immediately prior to the last day of that
offering period. The amounts so collected shall be credited to the Participant’s book account
under the Plan, but no interest shall be paid on the balance from time to time outstanding in such
account. The amounts collected from the Participant shall not be required to be held in any
segregated account or trust fund and may be commingled with the general assets of the Corporation
and used for general corporate purposes.




          C. Payroll deductions shall automatically cease upon the termination of the Participant’s
purchase right in accordance with the provisions of the Plan.




          D. The Participant’s acquisition of Common Stock under the Plan on any Purchase Date shall
neither limit nor require the Participant’s acquisition of Common Stock on any subsequent Purchase
Date, whether within the same or a different offering period.




     VII. PURCHASE RIGHTS



          A. Grant of Purchase Right. A Participant shall be granted a separate purchase right
for each offering period in which he or she participates. The purchase right shall be granted on
the Participant’s Entry Date into the offering period and shall provide the Participant with the
right to purchase shares of Common Stock on each Purchase Date during the remainder of such
offering period, upon the terms set forth below. The Participant shall execute a stock purchase
agreement embodying such terms and such other provisions (not inconsistent with the Plan) as the
Plan Administrator may deem advisable.




          Under no circumstances shall purchase rights be granted under the Plan to any Eligible
Employee if such individual would, immediately after the grant, own (within the meaning of Code
Section 424(d)) or hold outstanding options or other rights to purchase, stock possessing five
percent (5%) or more of the total combined voting power or value of all classes of stock of the
Corporation or any Corporate Affiliate.




          B. Exercise of the Purchase Right. Each purchase right shall be automatically
exercised on each successive Purchase Date within the offering period, and shares of Common Stock
shall accordingly be purchased on behalf of each Participant on each such



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Purchase Date. The purchase shall be effected by applying the Participant’s payroll
deductions for the Purchase Interval ending on such Purchase Date to the purchase of whole shares
of Common Stock at the purchase price in effect for the Participant for that Purchase Date.




          C. Purchase Price. The purchase price per share at which Common Stock will be
purchased on the Participant’s behalf on each Purchase Date within any offering period shall be
established by the Plan Administrator; provided, however, the purchase price on each Purchase Date
shall not be less than eighty-five percent (85%) of the lower of (i) the Fair Market Value
per share of Common Stock on the Participant’s Entry Date into that offering period or (ii) the
Fair Market Value per share of Common Stock on that Purchase Date.




          D. Number of Purchasable Shares. The number of shares of Common Stock purchasable by
a Participant on each Purchase Date during the offering period shall be the number of whole shares
obtained by dividing the amount collected from the Participant through payroll deductions during
the Purchase Interval ending with that Purchase Date by the purchase price in effect for the
Participant for that Purchase Date. However, the maximum number of shares of Common Stock
purchasable per Participant on any one Purchase Date shall not exceed 1,000 shares, subject to
periodic adjustments in the event of certain changes in the Corporation’s capitalization. In
addition, the maximum aggregate number of shares of Common Stock purchasable by all Participants on
any one Purchase Date shall not exceed 250,000 shares, subject to periodic adjustments in the event
of certain changes in the Corporation’s capitalization. However, the Plan Administrator shall have
the discretionary authority, exercisable prior to the start of any offering period under the Plan,
to increase or decrease the limitations to be in effect for the number of shares purchasable per
Participant and in the aggregate by all Participants on each Purchase Date during that offering
period.




          E. Excess Payroll Deductions. Any payroll deductions not applied to the purchase of
shares of Common Stock on any Purchase Date because they are not sufficient to purchase a whole
share of Common Stock shall be held for the purchase of Common Stock on the next Purchase Date.
However, any payroll deductions not applied to the purchase of Common Stock by reason of the
limitation on the maximum number of shares purchasable per Participant or in the aggregate on the
Purchase Date shall be promptly refunded.




          F. Termination of Purchase Right. The following provisions shall govern the
termination of outstanding purchase rights:





               (i) A Participant may, at any time prior to the next scheduled Purchase Date in
the offering period, terminate his or her outstanding purchase right by filing the
appropriate form with the Plan Administrator (or its designate), and no further
payroll deductions shall be collected from the Participant with respect to the
terminated purchase right. Any payroll deductions collected during the Purchase
Interval in which such termination occurs shall, at the Participant’s election, be
immediately refunded or held for the purchase of shares on the next Purchase Date.
If no such election is made at the time such purchase right is terminated, then the
payroll deductions collected with respect to the terminated right shall be refunded
as soon as possible.



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               (ii) The termination of such purchase right shall be irrevocable, and the
Participant may not resume participation in the offering period for which the
terminated purchase right was granted unless he or she re-enrolls in the Plan (by
making a timely filing of the prescribed enrollment forms) on or before a
regularly-scheduled Periodic Entry Date into that offering period. In such event,
the Participant shall be granted a new purchase right with a new purchase price
based upon the Fair Market Value per share on Common Stock on his or her new Entry
Date, if applicable.




               (iii) Should the Participant cease to remain an Eligible Employee for any
reason (including death, disability or change in status) while his or her purchase
right remains outstanding, then that purchase right shall immediately terminate, and
all of the Participant’s payroll deductions for the Purchase Interval in which the
purchase right so terminates shall be immediately refunded. For purposes of the
Plan, a Participant shall be deemed to remain an Eligible Employee while on any
military leave, sick leave or other bona fide leave of absence approved by the
Company so long as the period of such leave does not exceed ninety (90) days or such
longer period during which the Participant’s right to reemployment with the
Corporation is guaranteed by statute or contract. However, should a Participant’s
approved leave of absence exceed ninety (90) days or such longer period during which
the Participant’s right to reemployment with the Corporation is guaranteed by
statute or contract, the Participant shall be deemed to have ceased to be an
Eligible Employee on the ninety-first (91st) day of such leave or the day
immediately following the end of the period during which the Participant’s right to
reemployment with the Corporation is guaranteed by statute or contract, whichever is
later. A Participant who has ceased to be in active service by reason of an
approved leave of absence shall, for so long as such Participant remains an
Eligible Employee, have the right, exercisable up until the last business day of the
Purchase Interval in which such leave commences, to (a) withdraw all the payroll
deductions collected to date on his or her behalf for that Purchase Interval or (b)
have such funds held for the purchase of shares on his or her behalf on the next
scheduled Purchase Date. In no event, however, shall any further payroll deductions
be collected on the Participant’s behalf during such leave other than from such
Participant’s Cash Earnings. Upon the Participant’s return to active service (x)
within ninety (90) days following the commencement of such approved leave of absence
or (y) prior to the expiration of any longer period for which such Participant’s
right to reemployment with the Corporation is guaranteed by statute or contract, his
or her payroll deductions under the Plan shall automatically resume at the rate in
effect at the time the leave began, unless the Participant withdraws from the Plan
prior to his or her return. An individual who returns to active employment
following a leave of absence which exceeds in duration the applicable (x) or (y)
time period will be treated as a new employee for purposes of subsequent
participation in the Plan and must accordingly qualify as an Eligible Employee and
re-enroll in the Plan (by making a timely filing of the prescribed enrollment forms)
on or before his or her scheduled Entry Date into the offering period.



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          G. Change in Control. Each outstanding purchase right shall automatically be
exercised, immediately prior to the effective date of any Change in Control and the date of such
exercise shall be treated as the Purchase Date for the purposes of this Section, by applying the
payroll deductions of each Participant for the Purchase Interval in which such Change in Control
occurs to the purchase of whole shares of Common Stock at a purchase price per share determined in
accordance with Section VII.C as of such Purchase Date. However, the applicable limitation on the
number of shares of Common Stock purchasable per Participant shall continue to apply to any such
purchase, but not the limitation applicable to the maximum number of shares of Common Stock
purchasable in the aggregate.




          The Corporation shall use its best efforts to provide at least ten (10)-days prior written
notice of the occurrence of any Change in Control, and Participants shall, following the receipt of
such notice, have the right to terminate their outstanding purchase rights prior to the Purchase
Date established for the purposes of this Section.




          H. Proration of Purchase Rights. Should the total number of shares of Common Stock to
be purchased pursuant to outstanding purchase rights on any particular date exceed the number of
shares then available for issuance under the Plan, the Plan Administrator shall make a pro-rata
allocation of the available shares on a uniform and nondiscriminatory basis, and the payroll
deductions of each Participant, to the extent in excess of the aggregate purchase price payable for
the Common Stock pro-rated to such individual, shall be refunded.




          I. Assignability. The purchase right shall be exercisable only by the Participant and
shall not be assignable or transferable by the Participant.




          J. Stockholder Rights. A Participant shall have no stockholder rights with respect to
the shares subject to his or her outstanding purchase right until the shares are purchased on the
Participant’s behalf in accordance with the provisions of the Plan and the Participant has become a
holder of record of the purchased shares.




     VIII. ACCRUAL LIMITATIONS



          A. No Participant shall be entitled to accrue rights to acquire Common Stock pursuant to any
purchase right outstanding under this Plan if and to the extent such accrual, when aggregated with
(i) rights to purchase Common Stock accrued under any other purchase right granted under this Plan
and (ii) similar rights accrued under other employee stock purchase plans (within the meaning of
Code Section 423) of the Corporation or any Corporate Affiliate, would otherwise permit such
Participant to purchase more than Twenty-Five Thousand Dollars ($25,000.00) worth of stock of the
Corporation or any Corporate Affiliate (determined on the basis of the Fair Market Value per share
on the date or dates such rights are granted) for each calendar year such rights are at any time
outstanding.




          B. For purposes of applying such accrual limitations to the purchase rights granted under the
Plan, the following provisions shall be in effect:





               (i) The right to acquire Common Stock under each outstanding purchase right
shall accrue in a series of installments on each



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successive Purchase Date during the offering period on which such right remains
outstanding.




               (ii) No right to acquire Common Stock under any outstanding purchase right
shall accrue to the extent the Participant has already accrued in the same calendar
year the right to acquire Common Stock under one or more other purchase rights at a
rate equal to Twenty-Five Thousand Dollars ($25,000.00) worth of Common Stock
(determined on the basis of the Fair Market Value per share on the date or dates of
grant) for each calendar year such rights were at any time outstanding.



          C. If by reason of such accrual limitations, any purchase right of a Participant does not
accrue for a particular Purchase Interval, then the payroll deductions which the Participant made
during that Purchase Interval with respect to such purchase right shall be promptly refunded.




          D. In the event there is any conflict between the provisions of this Article and one or more
provisions of the Plan or any instrument issued thereunder, the provisions of this Article shall be
controlling.




     IX. EFFECTIVE DATE AND TERM OF THE PLAN



          A. The Plan was adopted by the Board on May 19, 1999 and shall become effective at the
Effective Time, provided no purchase rights granted under the Plan shall be exercised, and
no shares of Common Stock shall be issued hereunder, until (i) the Plan shall have been approved by
the stockholders of the Corporation and (ii) the Corporation shall have complied with all
applicable requirements of the 1933 Act (including the registration of the shares of Common Stock
issuable under the Plan on a Form S-8 registration statement filed with the Securities and Exchange
Commission), all applicable listing requirements of any stock exchange (or the Nasdaq National
Market, if applicable) on which the Common Stock is listed for trading and all other applicable
requirements established by law or regulation. In the event such stockholder approval is not
obtained, or such compliance is not effected, within twelve (12) months after the date on which the
Plan is adopted by the Board, the Plan shall terminate and have no further force or effect, and all
sums collected from Participants during the initial offering period hereunder shall be refunded.




          B. Unless sooner terminated by the Board, the Plan shall terminate upon the earliest
of (i) the last business day in July 2009, (ii) the date on which all shares available for issuance
under the Plan shall have been sold pursuant to purchase rights exercised under the Plan or (iii)
the date on which all purchase rights are exercised in connection with a Change in Control. No
further purchase rights shall be granted or exercised, and no further payroll deductions shall be
collected, under the Plan following such termination.




     X. AMENDMENT OF THE PLAN



          A. The Board may alter, amend, suspend or terminate the Plan at any time to become effective
immediately following the close of any Purchase Interval. However, the Plan may be amended or
terminated immediately upon Board action, if and to the extent necessary to



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assure that the Corporation will not recognize, for financial reporting purposes, any
compensation expense in connection with the shares of Common Stock offered for purchase under the
Plan, should the financial accounting rules applicable to the Plan at the Effective Time be
subsequently revised so as to require the recognition of compensation expense in the absence of
such amendment or termination.




          B. In no event may the Board effect any of the following amendments or revisions to the Plan
without the approval of the Corporation’s stockholders: (i) increase the number of shares of Common
Stock issuable under the Plan, except for permissible adjustments in the event of certain changes
in the Corporation’s capitalization, (ii) alter the purchase price formula so as to reduce the
purchase price payable for the shares of Common Stock purchasable under the Plan or (iii) modify
the eligibility requirements for participation in the Plan.




     XI. GENERAL PROVISIONS



          A. All costs and expenses incurred in the administration of the Plan shall be paid by the
Corporation; however, each Plan Participant shall bear all costs and expenses incurred by such
individual in the sale or other disposition of any shares purchased under the Plan.




          B. Nothing in the Plan shall confer upon the Participant any right to continue in the employ
of the Corporation or any Corporate Affiliate for any period of specific duration or interfere with
or otherwise restrict in any way the rights of the Corporation (or any Corporate Affiliate
employing such person) or of the Participant, which rights are hereby expressly reserved by each,
to terminate such person’s employment at any time for any reason, with or without cause.




          C. The provisions of the Plan shall be governed by the laws of the State of California without
resort to that State’s conflict-of-laws rules.





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Schedule A




Corporations Participating in

Employee Stock Purchase Plan

As of the Effective Time




Packeteer, Inc.

Packeteer Europe, b.v.

Packeteer Asia Pacific Limited

Packeteer K.K. (Kabushiki Kaisha)




 









 





APPENDIX




          The following definitions shall be in effect under the Plan:




          A. Board shall mean the Corporation’s Board of Directors.




          B. Cash Earnings shall mean the (i) regular base salary paid to a Participant by one
or more Participating Companies during such individual’s period of participation in one or more
offering periods under the Plan plus (ii) all overtime payments, bonuses, commissions,
profit-sharing distributions and other incentive-type payments received during such period. Such
Cash Earnings shall be calculated before deduction of (A) any income or employment tax withholdings
or (B) any and all contributions made by the Participant to any Code Section 401(k) salary deferral
plan or Code Section 125 cafeteria benefit program now or hereafter established by the Corporation
or any Corporate Affiliate. However, Cash Earnings shall not include any contributions made on
the Participant’s behalf by the Corporation or any Corporate Affiliate to any employee benefit or
welfare plan now or hereafter established (other than Code Section 401(k) or Code Section 125
contributions deducted from such Cash Earnings).




          C. Change in Control shall mean a change in ownership of the Corporation pursuant to
any of the following transactions:





          (i) a merger or consolidation in which securities possessing more than fifty
percent (50%) of the total combined voting power of the Corporation’s outstanding
securities are transferred to a person or persons different from the persons holding
those securities immediately prior to such transaction, or




          (ii) the sale, transfer or other disposition of all or substantially all of the
assets of the Corporation in complete liquidation or dissolution of the Corporation,
or




          (iii) the acquisition, directly or indirectly by an person or related group of
persons (other than the Corporation or a person that directly or indirectly
controls, is controlled by or is under common control with the Corporation) of
beneficial ownership (within the meaning of Rule 13d-3 of the 1934 Act) of
securities possessing more than fifty percent (50%) of the total combined voting
power of the Corporation’s outstanding securities pursuant to a tender or exchange
offer made directly to the Corporation’s stockholders.



          D. Code shall mean the Internal Revenue Code of 1986, as amended, and any applicable
regulations promulgated thereunder.




          E. Common Stock shall mean the Corporation’s common stock.




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          F. Corporate Affiliate shall mean any parent or subsidiary corporation of the
Corporation (as determined in accordance with Code Section 424), whether now existing or
subsequently established.




          G. Corporation shall mean Packeteer, Inc., a Delaware corporation, and any corporate
successor to all or substantially all of the assets or voting stock of Packeteer, Inc., which shall
by appropriate action adopt the Plan.




          H. Effective Time shall mean the time at which the Underwriting Agreement is executed
and the Common Stock priced for the initial public offering. Any Corporate Affiliate which becomes
a Participating Corporation after such Effective Time shall designate a subsequent Effective Time
with respect to its employee-Participants.




          I. Eligible Employee shall mean any person who is employed by a Participating
Corporation on a basis under which he or she is regularly expected to render more than twenty (20)
hours of service per week for more than five (5) months per calendar year for earnings considered
wages under Code Section 3401(a).




          J. Entry Date shall mean the Periodic Entry Date on which an Eligible Employee first
commences participation in the offering period in effect under the Plan. The earliest Entry Date
under the Plan shall be the Effective Time.




          K. Fair Market Value per share of Common Stock on any relevant date shall be
determined in accordance with the following provisions:





          (i) If the Common Stock is at the time traded on the Nasdaq National Market,
then the Fair Market Value shall be the closing selling price per share of Common
Stock on the date in question, as such price is reported by the National Association
of Securities Dealers on the Nasdaq National Market. If there is no closing selling
price for the Common Stock on the date in question, then the Fair Market Value shall
be the closing selling price on the last preceding date for which such quotation
exists.




          (ii) If the Common Stock is at the time listed on any Stock Exchange, then the
Fair Market Value shall be the closing selling price per share of Common Stock on
the date in question on the Stock Exchange determined by the Plan Administrator to
be the primary market for the Common Stock, as such price is officially quoted in
the composite tape of transactions on such exchange. If there is no closing selling
price for the Common Stock on the date in question, then the Fair Market Value shall
be the closing selling price on the last preceding date for which such quotation
exists.




          (iii) For purposes of the initial offering period which begins at the Effective
Time, the Fair Market Value shall be deemed to be equal to the price per share at
which the Common Stock is sold in the initial public offering pursuant to the
Underwriting Agreement.



          L. 1933 Act shall mean the Securities Act of 1933, as amended.




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          M. Participant shall mean any Eligible Employee of a Participating Corporation who is
actively participating in the Plan.




          N. Participating Corporation shall mean the Corporation and such Corporate Affiliate
or Affiliates as may be authorized from time to time by the Board to extend the benefits of the
Plan to their Eligible Employees. The Participating Corporations in the Plan are listed in
attached Schedule A.




          O. Periodic Entry Date shall mean the first business day of each Purchase Interval
contained in an offering period and which shall be a day on which an Eligible Employee may enter
such offering period.




          P. Plan shall mean the Corporation’s 1999 Employee Stock Purchase Plan, as set forth
in this document.




          Q. Plan Administrator shall mean the committee of two (2) or more Board members
appointed by the Board to administer the Plan.




          R. Purchase Date shall mean the last business day of each Purchase Interval. The
initial Purchase Date shall be January 31, 2000.




          S. Purchase Interval shall mean a period, as determined by the Plan Administrator, at
the end of which there shall be purchased shares of Common Stock on behalf of each Participant. An
offering period may contain one or more Purchase Intervals.




          T. Semi-Annul Entry Date shall mean a Periodic Entry Date commencing on the first
business day in February and August each year pursuant to an offering period of at least twelve
(12) months in duration.




          U. Stock Exchange shall mean either the American Stock Exchange or the New York Stock
Exchange.




          V. Underwriting Agreement shall mean the agreement between the Corporation and the
underwriter or underwriters managing the initial public offering of the Common Stock.





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