Exhibit 4.1


 


XYRATEX LTD


 


2004
EMPLOYEE STOCK PURCHASE PLAN 

(AS AMENDED AND RESTATED EFFECTIVE AS OF MAY 11, 2010)


 


1.                                       Purpose.  This Plan is intended to provide Employees of
the Company’s Designated Subsidiaries an opportunity to purchase Stock through accumulated
payroll deductions, and to constitute an “employee stock purchase plan” within
the meaning of Section 423 of the Code. 
It shall be deemed for all purposes a continuation of the Prior Plan,
which will be terminated by XGL at the Effective Time.


 


2.                                       Definitions.


 


(a)                                  “Administrator”
means the Board or the committee of the Board or persons appointed by the Board
from time to time to administer this Plan pursuant to Section 13.


 


(b)                                 “Anticipated
Pay Dates” means the 26 bi-weekly pay dates during a calendar year ending
on a Friday.


 


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


 


(d)                                 “Code”
means the United States Internal Revenue Code of 1986, as amended.


 


(e)                                  “Company”
means Xyratex Ltd, a Bermuda exempted company (no. 31989).


 


(f)                                    “Compensation”
means, except as otherwise determined by the Board from time to time, all
regular, straight-time gross earnings of a Participant, including commissions
but exclusive of payments for overtime, shift premium, long-term disability,
worker’s compensation, automobile allowances, relocation, gross-ups,
recognition awards and expense reimbursements (including without limitation
automobile, travel, entertainment and moving expenses) and of incentive
payments, bonuses, and any other form of compensation.


 


(g)                                 “Continuous
Employment” means the absence of any interruption in or termination of
service as an Employee.  Continuous
Employment shall not be considered interrupted in the case of a leave of
absence agreed to in writing by the Company, provided that either (i) the leave
does not exceed 90 days or (ii) re-employment upon expiration of the leave is
guaranteed by contract or statute.


 


(h)                                 “Designated
Subsidiaries” means the Subsidiaries that have been designated by the Board
from time to time in its sole discretion to participate in this Plan.


 


(i)                                     “Different
Pay Date” means any Pay Date in a series of Pay Dates that differs from the
Anticipated Pay Dates.


 

















 


(j)                                     “Effective
Date” means the date the Scheme of Arrangement becomes effective.


 


(k)                                  “Effective Time”
means the time on the Effective Date at which the Scheme of Arrangement becomes
effective.


 


(l)                                     “Employee”
means, as of any date, any person, including a person who is an officer of the
Company or any Subsidiary on such date, who both (i) was employed by any of the
Company’s Designated Subsidiaries throughout the one-month period ending on
such date, and (ii) is customarily employed, as of such date, by any of the
Company’s Designated Subsidiaries for at least 20 hours per week and for at
least 5 months per calendar year. 
Whether an individual qualifies as an Employee shall be determined by
the Administrator, in its sole discretion, by reference to Section 3401(c) of
the Code and the regulations promulgated thereunder; unless the Administrator
makes a contrary determination, the Employees shall, for all purposes of this
Plan, be those individuals who satisfy the employment criteria set forth above
and are carried as employees by any of the Company’s Designated Subsidiaries
for regular payroll purposes or are on a leave of absence described in the
definition of “Continuous Employment” in this Section 2.  Employment at any time prior to the Effective
Time by a corporation that becomes a Designated Subsidiary at the Effective
Time shall constitute employment by a Designated Subsidiary at such prior time
for all purposes of this Plan.


 


(m)                               “Offering
Date” means the first Trading Day of an Offering Period, provided that it
means June 1, 2004 with respect to the Offering Period beginning on
that date.


 


(n)                                 “Offering
Period” means a period established by the Administrator, or otherwise
established, pursuant to Section 4 during which payroll deductions are
accumulated from one or more Participants and applied to the purchase of Stock.


 


(o)                                 “Participant”
means an Employee who is a participant in the Prior Plan immediately prior to
the Effective Time or has elected to participate in this Plan pursuant to
Section 5.


 


(p)                                 “Pay Date”
means, as to any Designated Subsidiary, any date on which the employees of the
Designated Subsidiary receive their regular payments of Compensation, which,
for each Designated Subsidiary throughout the period of its status as such
during the term of this Plan, is anticipated to be the Anticipated Pay Dates.


 


(q)                                 “Plan”
means this Xyratex Ltd 2004 Employee Stock Purchase Plan.


 


(r)                                    “Prior Plan”
means that certain Xyratex Group Limited 2002 Employee Stock Purchase Plan
adopted on April 16, 2002 for the benefit of eligible employees of
certain designated subsidiaries of XGL, as amended and restated on
April 15, 2004.


 


(s)                                  “Purchase
Date” means such Trading Days during each Offering Period of this Plan as
may be established by the Administrator, or are otherwise established, pursuant
to Section 8 or Section 17.


 


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(t)                                    “Purchase
Price” shall mean, for any Offering Period, the per-share price of the
shares subject to a Purchase Right exercised during such Offering Period
determined pursuant to Section 7(b)(iv).


 


(u)                                 “Purchase
Right” means a right to purchase Stock granted or issued in substitution
for a right to purchase shares of XGL stock pursuant to Section 7.


 


(v)                                 “Scheme of
Arrangement” means that certain scheme of arrangement under
Section 425 of the Companies Act 1985 of the United Kingdom, which
contemplates the cancellation of the outstanding shares of Xyratex Group
Limited in consideration of the issuance of common shares of the Company to the
former shareholders of Xyratex Group Limited and the issuance of new shares of
Xyratex Group Limited to the Company, for the purpose of establishing a new
Bermuda parent company for Xyratex Group Limited’s business.


 


(w)                               “Stock”
means the Company’s common shares of U.S.$0.01 par value of the capital of the
Company.


 


(x)                                   “Subsidiary”
means, from time to time, any corporation, domestic or foreign, of which not
less than 50% of the voting shares are held by the Company or another
Subsidiary of the Company.


 


(y)                                 “Trading Day”
means any day on which regular trading occurs on any established stock exchange
or market system on which the Stock is traded.


 


(z)                                   “XGL”
means Xyratex Group Limited, a private company limited by shares registered in
England and Wales under the Companies Act 1985, as amended.


 


3.                                       Eligibility.


 


(a)                                  Regular
Participation.  Any person
who is, or will be, an Employee on an Offering Date shall be eligible to
participate in this Plan in the corresponding Offering Period, subject to the
requirements of Section 5.


 


(b)                                 No
Participation by 5% Shareholders.  Notwithstanding subsection (a), an Employee
shall not participate in this Plan during an Offering Period if immediately
after the grant of a Purchase Right on the corresponding Offering Date, the
Employee (or any other person whose stock would be attributed to the Employee
under Section 424(d) of the Code) would own stock possessing 5% or more of the
total combined voting power or value of all classes of stock of the Company or
of any Subsidiary.  For this purpose, an
Employee is treated as owning stock that he or she could purchase by the exercise
of Purchase Rights or other options.


 


4.                                       Offering
Periods.  The first Offering Period
under this Plan shall begin on June 1, 2004 (even though this Plan
shall become effective after that date) and shall end on
August 31, 2004.  Beginning
June 1, 2010, unless otherwise determined by the Administrator:


 


(a)                                  a new Offering
Period shall begin on the first Trading Day after the last Purchase Date for an
Offering Period;


 


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(b)                                 with the
exception of the Offering Period beginning on June 1, 2010, which
will last eleven months, the duration of each Offering Period shall be 12
months (measured from the first Trading Day of the first month to the last
Trading Day of the twelfth month);


 


(c)                                  an Offering
Period shall terminate on the first date that no Participants are enrolled in
it; and


 


(d)                                 to the extent
permitted by Section 1.423-2(a)(1) of the Treasury regulations issued
under Section 423 of the Code, the terms of each offering need not be
identical provided that the terms of the Plan and the offering together satisfy
Section 1.423-2(a)(2) and (a)(3) of such Treasury regulations.


 


5.                                       Participation.


 


(a)                                  Any person who
is, or will be, an Employee on an Offering Date on or after
September 1, 2004 may become a Participant in this Plan by completing
a subscription agreement, in such form or forms as the Administrator may
approve from time to time, and delivering it to the Administrator not later
than the 10th business day preceding such Offering Date,
unless another time for filing the subscription agreement is set by the
Administrator for all Employees with respect to the Offering Period beginning
on such Offering Date.  The subscription
agreement shall authorize payroll deductions pursuant to this Plan equal to a
specified whole dollar amount (which shall not be less than $10 or more than
$200) per Pay Date (but in no event greater than 20% of the amount of
Compensation received by the Participant on the Pay Date), and shall have such
other terms as the Administrator may specify from time to time.


 


(b)                                 At the end of
an Offering Period, each Participant enrolled in the Offering Period who
remains an Employee shall be automatically enrolled in the next succeeding
Offering Period (a “Re-enrollment”) unless, in a manner specified by the
Administrator and not less than one business day before the Offering Date for
such succeeding Offering Period (unless another time for notifying the
Administrator is set by the Administrator for all Employees with respect to
such succeeding Offering Period), the Participant notifies the Administrator in
writing that the Participant does not wish to be re-enrolled.  Re-enrollment shall be at the withholding
amount specified in the Participant’s most recent subscription agreement unless
the Participant changes that amount to an amount permitted by subsection (a) by
timely written notice.  No Participant
whose participation has terminated by operation of Section 10 shall be
automatically re-enrolled.


 


(c)                                  Each Employee
who is a participant in the Prior Plan immediately prior to the Effective Time
shall be automatically enrolled in the Offering Period beginning on
June 1, 2004 and ending on August 31, 2004, with
participation beginning at the Effective Time, which will be after June 1, 2004.  Such Employee’s subscription agreement for
purposes of this Plan shall be the subscription agreement that was in effect
for purposes of the Prior Plan immediately prior to the Effective Time.


 


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6.                                       Payroll
Deductions.


 


(a)                                  Each
Participant shall have withheld from his or her Compensation received on each
Pay Date during each Offering Period (excluding any Pay Date prior to the
Effective Date) the lesser of (i) 20% of the amount of such Compensation
received by the Participant on such Pay Date, or (ii) such fixed amount,
expressed in United States dollars, as is specified by the Participant in his
or her applicable subscription agreement, as determined pursuant to subsection
(c), which shall not be less than $10 or more than $200.  With appropriate notice to Participants, the
Administrator may revise the minimum and maximum dollar amounts set forth in
Section 5(a) and this Section 6(a) on a prospective basis at any time
and from time to time.  In addition, such
minimum and maximum dollar amounts reflect the Company’s anticipation that the
Pay Dates for each Participant, throughout the term of this Plan, will be the
Anticipated Pay Dates.  If at any time or
from time to time during the term of this Plan any Pay Date for any Participant
is a Different Pay Date, the Administrator may increase or decrease the dollar
amount specified by such Participant in his or her applicable subscription
agreement, as determined pursuant to subsection (c), as well as the minimum and
maximum dollar amounts otherwise applicable to such Participant pursuant to
Section 5(a) and this Section 6(a), to such amounts as may be
necessary or appropriate to generate pursuant to this Section 6
approximately the same total amount of payroll deductions with respect to such
Participant for each Offering Period ending after the date of the first
Different Pay Date as would have resulted if the Pay Dates had been the
Anticipated Pay Dates rather than the Different Pay Dates, assuming no change
in such Participant’s Compensation, no withdrawal of payroll deductions and no
termination of such Participant’s employment at any time during any such
Offering Period.  Notwithstanding the
foregoing provisions of this Section 6(a), payroll deductions pursuant to
this Section 6(a) shall terminate with respect to a Participant prior to
the end of an Offering Period to the extent provided in Section 10.


 


(b)                                 All payroll
deductions made by a Participant shall be made in United States dollars and
credited to the Participant’s account under this Plan as soon as
administratively feasible after the withholding occurs.  For each Participant who is a participant in
the Prior Plan immediately prior to the Effective Time, the entire balance in the
Participant’s account under the Prior Plan immediately prior to the Effective
Time, including any payroll deduction made by the Participant as of the latest
pay date under the Prior Plan that precedes the Effective Date, shall be
transferred and credited to the Participant’s account under this Plan as of the
Effective Time.  A Participant may not
make any additional payments into his or her account under this Plan.


 


(c)                                  A Participant
may reduce the amount of his or her payroll deductions to zero at any time
during an Offering Period, effective 15 days after the Participant files with
the Administrator a new subscription agreement authorizing the change.  A Participant may make any other change in
the amount of his or her payroll deductions to an amount permitted by
Section 5(a), effective on an Offering Date, by completing a new
subscription agreement authorizing the change, in such form or forms as the
Administrator may approve from time to time, and delivering it to the
Administrator not less than one business day before such Offering Date.


 


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7.                                       Purchase Rights.


 


(a)                                  Grant of
Purchase Rights.  On the
Offering Date for each Offering Period beginning after the Effective Date, each
Participant shall be granted a Purchase Right to purchase shares of Stock on
each Purchase Date for such Offering Period.


 


(b)                                 Terms of
Purchase Rights.  Except as
otherwise provided in subsection (c) or, if subsection (c) does not apply,
except as otherwise determined by the Administrator, beginning
June 1, 2010 each Purchase Right shall have the following terms:


 


(i)                                     Except as
otherwise provided in Section 7(b)(ii), a Purchase Right granted to a
Participant to purchase shares of Stock on each Purchase Date for an Offering
Period shall be for a number of shares of Stock determined by dividing (A) the
Participant’s payroll deductions accumulated on or prior to such Purchase Date
and retained in the Participant’s account as of the Purchase Date, expressed in
United States dollars, by (B) the per-share purchase price determined pursuant
to Section 7(b)(iv) for the shares of Stock subject to such Purchase
Right.


 


(ii)                                  In no event
will any Purchase Right (taken together with all other rights then outstanding
to purchase stock of the Company or any Subsidiary under this and all other
similar stock purchase plans of the Company and any of its Subsidiaries) give
any Participant the right to purchase stock of the Company or any Subsidiary at
a rate per calendar year which accrues in excess of $25,000 of fair market
value of such stock, determined at the applicable Offering Date.


 


(iii)                               On the Offering
Date, each Participant shall be granted a Purchase Right to purchase during the
Offering Period the number of shares of Stock determined by dividing (A)
$25,000 multiplied by the number of (whole or part) calendar years in the
Offering Period, by (B) the fair market value of a share of Stock on the
Offering Date.


 


(iv)                              The per-share
purchase price of the shares subject to a Purchase Right shall be 85% of the
fair market value of a share of Stock on the Offering Date on which the
Purchase Right was granted, rounded to the next higher whole cent.  The fair market value of a share of Stock on
a given date shall be the closing price of a share of Stock on the NASDAQ
Global Select Market (or, if determined by the Administrator to be the primary
market on which the Stock is traded, a stock exchange or other market system on
which the Stock is traded) for such date, as reported in The Wall Street Journal or a similar
publication, or the fair market value per share determined by the Administrator
for such date if no such price is reported, provided that if the fair market
value of any share so determined for such date is expressed in British pounds
sterling or any other currency that is not United States dollars, the fair
market value of such share on such date shall instead be the United States
dollars equivalent of the fair market value so determined, based on a currency
exchange rate selected by the Administrator in its sole and absolute discretion
with reference to one or more currency exchange rates applicable on such date,
and rounded to the next higher whole cent. 
In no event shall the per-share purchase price of the shares subject to
a Purchase Right be less than 85% of the fair market value of a share of stock
on the Offering Date on which the Purchase Right was granted.


 


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(v)                                 Payment for
shares purchased by the exercise of Purchase Rights shall be made only through
payroll deductions under Section 6.


 


(vi)                              Upon purchase
or disposition of shares acquired by the exercise of a Purchase Right, the
Participant shall pay, or make provision adequate to the Administrator for
payment of, all federal, state and other tax (and similar) withholdings that the
Administrator determines, in its discretion, are required due to the
acquisition or disposition, including without limitation any such withholding
that the Administrator determines in its discretion is necessary to allow the
Company and/or the Designated Subsidiaries to claim tax deductions or other
benefits in connection with the acquisition or disposition.


 


(vii)                           During his or
her lifetime, a Participant’s Purchase Right is exercisable only by the
Participant.


 


(viii)                        The Purchase
Rights will in all respects be subject to the terms and conditions of this
Plan, as interpreted by the Administrator from time to time.


 


(ix)                                All shares
purchased by the exercise of Purchase Rights pursuant to this Plan shall be
subject (A) to a prohibition against transfer during a period of 180 days after
the effective date of the registration statement filed under the United States
Securities Act of 1933, as amended, with respect to the initial public offering
of the Stock, and (B) if and to the extent requested by the Company or a
representative of an underwriter of its securities, to a prohibition against
transfer during a period not to exceed 180 days after the effective date of any
other registration statement or similar document filed under the laws of any
country with respect to a public offering of any class of the Company’s shares.


 


(c)                                  Substitution of
Purchase Rights for the Offering Period Beginning on June 1, 2004.  At the Effective Time, each Participant who
is a participant in the Prior Plan immediately prior to the Effective Time
shall be issued a Purchase Right to purchase shares of Stock on the Purchase
Date for the Offering Period beginning on June 1, 2004 in
substitution for such Participant’s right (as it existed immediately prior to
the Effective Time) to purchase shares of XGL stock on the last business day of
the same offering period under the Prior Plan. 
The terms of such Purchase Right shall be as set forth in subsection
(b), subject to the following adjustments:


 


(i)                                     Section 7(b)(i)
shall be applied to such Purchase Right in the manner indicated therein even
though such Purchase Right is issued in substitution for a pre-existing
purchase right rather than being granted under this Plan.


 


(ii)                                  Section 7(b)(iii)
shall not apply to the Offering Period beginning on June 1, 2004 or
to the Offering Date for such Offering Period.


 


(iii)                               Notwithstanding
Section 7(b)(iv), the per-share purchase price determined pursuant to
Section 7(b)(iv) for the shares of Stock subject to such Purchase Right
shall be the lower of (a) 85% of the fair market value of an A preferred
ordinary share of XGL on June 1, 2004 (as determined pursuant to the
Prior Plan) divided by 1.036378, rounded to the next higher whole cent, or (b)
85% of the closing price of a share of Stock on the Nasdaq National Market (or,
if determined by the Administrator to be the primary market on which the


 


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Stock is traded, a stock
exchange or other market system on which the Stock is traded) for
August 31, 2004, as reported in The
Wall Street Journal or a similar publication, or of the fair market
value per share determined by the Administrator for such date if no such price
is reported, rounded in either case to the next higher whole cent and provided
that if the fair market value of any share so determined for either date is
expressed in British pounds sterling or any other currency that is not United
States dollars, the fair market value of such share on such date shall instead
be the United States dollars equivalent of the fair market value so determined,
based on a currency exchange rate selected by the Administrator in its sole and
absolute discretion with reference to one or more currency exchange rates
applicable on such date, and rounded to the next higher whole cent.


 


(iv)                              Notwithstanding
Section 7(b)(v), payment for shares purchased by the exercise of such
Purchase Right may also be made from the portion of the balance in the
Participant’s account transferred from the Participant’s account under the Prior
Plan pursuant to Section 6(b).


 


(v)                                 Notwithstanding
any other provision in this Plan, the terms of such Purchase Right shall be
adjusted pursuant to this Section 7(c)(v) to the extent, if any, necessary
for the substitution of such Purchase Right for the applicable outstanding
purchase right under the Prior Plan to qualify as “issuing or assuming a stock
option in a transaction to which section 424(a) applies” within the meaning of
Section 424(a) of the Code and Section 1.424-1(a) of the Treasury Regulations.


 


8.                                       Purchase Dates;
Purchase of Shares; Refund of Excess Cash.


 


(a)                                  The
Administrator shall establish one or more Purchase Dates for each Offering
Period beginning after the Effective Date, and may revise or add Purchase Dates
from time to time prior to the Offering Date for any such Offering Period.  Beginning June 1, 2010, unless
otherwise determined by the Administrator, the last Trading Day of each May
during the term of this Plan shall be a Purchase Date.


 


(b)                                 Except as
otherwise determined by the Administrator, each Participant’s Purchase Right
shall be exercised automatically on each Purchase Date during each Offering
Period, to purchase the maximum number of full shares at the applicable price
using the Participant’s accumulated payroll deductions.


 


(c)                                  The shares
purchased upon exercise of a Purchase Right shall be deemed to be transferred
to the Participant on the Purchase Date.


 


(d)                                 Any amounts
remaining 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.


 


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9.                                       Registration
and Share Statements.


 


(a)                                  Shares
purchased by a Participant under this Plan will be registered in the name of
the Participant.


 


(b)                                 Statements
evidencing the shares purchased upon the exercise of Purchase Rights on any
Purchase Date shall be delivered to the Participants as soon as
administratively feasible thereafter.


 


10.                                 Withdrawal of
Payroll Deductions; Termination of Employment.


 


(a)                                  A Participant
may withdraw all, but not less than all, of the payroll deductions credited to
his or her account under this Plan by giving written notice to the
Administrator thereof not less than ten (10) business days before any
Purchase Date for an Offering Period and in a form the Administrator prescribes
from time to time.  All payroll
deductions for the Participant will cease within 15 days after such notice is
given, all payroll deductions credited to the Participant’s account will be
refunded as soon as administratively feasible after such notice is given, the
Participant’s Purchase Right will automatically terminate on the date of
receipt of the notice and no purchase of shares will be made for the
Participant on such Purchase Date or any subsequent Purchase Date for such
Offering Period.  A Participant’s
withdrawal of payroll deductions during an offering will not affect the
Participant’s eligibility to participate in a succeeding offering or in any
similar plan that may be adopted by the Company.


 


(b)                                 Upon
termination of a Participant’s Continuous Employment for any reason, including
retirement, disability or death, all payroll deductions credited to the
Participant’s account will be refunded, as soon as administratively feasible
after termination, to the Participant or, in the case of death, to the person
or persons entitled thereto under Section 14, the Participant’s Purchase
Right will automatically terminate and no further purchase of shares will be
made for the Participant, and any funds remaining after such purchase shall be
refunded to the Participant as soon as administratively feasible thereafter.


 


11.                                 Use of Funds .  Amounts withheld from Participants’
Compensation under this Plan or transferred to their accounts under this Plan
from their accounts under the Prior Plan shall constitute general funds of the
Company, may be used for any corporate purpose and need not be segregated from
other funds.


 


12.                                 Number of
Shares Reserved.


 


(a)                                  The following
number of shares of Stock are reserved for issuance under this Plan, and such
number may be issued at any time before termination of this Plan:


 


(i)                                     Beginning on
the Effective Date, 100,000 shares of Stock; and


 


(ii)                                  Beginning on
December 1, 2004 and on each anniversary of such date up to and
including December 1, 2023, an additional number of shares of Stock
equal to the least of (A) 500,000,
(B) 1% of the aggregate
number of shares of capital stock of the Company outstanding on such
anniversary, or (C) such
number of shares of Stock as is determined by the Board for such anniversary at
any time before such anniversary.


 


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(b)                                 If the total
number of shares that would otherwise be subject to Purchase Rights granted on
an Offering Date exceeds the number of shares then available under this Plan
(after deduction of all shares for which Purchase Rights have been exercised or
are then outstanding), the Administrator shall make a pro-rata allocation of
the available shares in a manner that it determines to be as uniform and
equitable as practicable.  In such event,
the Administrator shall give written notice of the reduction and allocation to
each Participant.


 


(c)                                  The
Administrator may, in its discretion, transfer shares reserved for issuance
under this Plan into a plan or plans of similar terms, as approved by the
Board, providing for the purchase of shares of Stock to employees of
Subsidiaries designated by the Board that do not (or do not thereafter)
participate in this Plan.  Such
additional plans may, without limitation, provide for variances from the terms
of this Plan to take into account special circumstances (such as foreign legal
restrictions) affecting the employees of the designated Subsidiaries.


 


13.                                 Administration.


 


(a)                                  This Plan shall
be administered by an Administrator, who shall be the Board or such committee
of the Board or such directors, officers, and/or employees of the Company as
the Board may appoint from time to time. 
All costs and expenses incurred in administering this Plan shall be paid
by the Company, provided that any taxes applicable to an Employee’s
participation in this Plan may be charged to the Employee by the Company.  Any brokerage fees for the purchase of shares
by a Participant shall be paid by the Company, but brokerage fees for the
resale of shares by a Participant shall be borne by the Participant.  Subject to the express provisions of this
Plan, to the overall supervision of the Board and to the limitations of Section 423
of the Code, (i) the Administrator may administer and interpret this Plan
in any manner it believes to be desirable, (ii) any determination,
decision or action of the Administrator in connection with the administration,
interpretation or application of this Plan or any right granted under this Plan
shall be final, conclusive and binding on the Company and all persons, (iii) the
Administrator shall have all powers necessary to accomplish the purposes of
this Plan and discharge its duties hereunder and (iv) no member of the
Administrator shall be liable for any such determination, decision or action.


 


(b)                                 If the
Administrator in its discretion so elects, it may engage a brokerage firm, bank
or other financial institution to assist in the purchase of shares, delivery of
reports, or other administrative aspects of this Plan.  If the Administrator so elects, each
Participant shall be deemed upon enrollment in the Plan to have authorized the
establishment of an account on his or her behalf at such institution.  Shares purchased by a Participant under the
Plan shall be held in the account in the name in which the share certificate
would otherwise be issued.


 


14.                                 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 this Plan in the event
of the Participant’s death.


 


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(b)                                 A designation
of beneficiary may be changed by the Participant 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 this
Plan who is living at the time of the Participant’s death, the Administrator
shall deliver such shares and/or cash to the executor or administrator of the
Participant’s estate, or if no such executor or administrator has been
appointed (to the Administrator’s knowledge), the Administrator, 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 Administrator, then to such other person as the Administrator
may designate.  Such delivery shall
relieve the Company of further liability with respect to this Plan on account
of the deceased Participant.  If more
than one beneficiary is designated, each beneficiary shall receive an equal
portion of the account unless the Participant has given express contrary
written instructions.


 


15.                                 Assignment.


 


(a)                                  Neither payroll
deductions credited to a Participant’s account nor any rights with regard to
the exercise of a Purchase Right or to receive shares under this 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 Administrator may treat such act as an election
to withdraw payroll deductions in accordance with Section 10.


 


(b)                                 A Participant’s
right to purchase shares under this Plan shall be exercisable only during the Participant’s
lifetime and only by him or her.


 


16.                                 Reports.  Individual accounts will be maintained for
each Participant in this Plan. 
Statements of account will be given to Participants as soon as
administratively feasible following each Purchase Date, setting forth the
amounts of the payroll deductions, per-share purchase price, number of shares
purchased, and remaining cash balance, if any.


 


17.                                 Adjustments in
Event of Certain Corporate Transactions.


 


(a)                                  In the event of
any reorganization, recapitalization, stock split, reverse stock split, stock
dividend, spin-off, split-off, split-up, combination of shares, offering of
rights, or other similar change in the capital structure of the Company
(excluding, however, the conversion of any convertible securities of the
Company and any transaction or event described in Section 17(b)), the
Board, subject to any required action by the shareholders of the Company, may
make such adjustment, if any, as it deems appropriate in the number, class, and
per-share purchase price of the shares subject to Purchase Rights under this
Plan and in the number of shares reserved for issuance under this Plan, and/or
may provide for an additional Purchase Date, on such date before, on or after
the date of such corporate transaction and in conjunction with such other terms
as the Board shall deem appropriate, and promptly so notify all Participants in
writing.  The Board’s determination as to
any such adjustment or provision shall be final, binding, and conclusive.  Unless the Board specifies otherwise, any
shares issuable as a result of any such adjustment shall be rounded to the next
lower whole share.  Except as expressly
provided herein, no issue by the Company of shares of stock of any class, or
securities 


 


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convertible into shares of
stock of any class, shall affect, and no adjustment by reason thereof shall be
made with respect to, the number or price of shares of Stock subject to a
Purchase Right.


 


(b)                                 In the event of
the sale of all or substantially all of the assets of the Company, or the
merger or amalgamation of the Company with another entity in a transaction in
which the Company is not the surviving entity, or any other transaction(s) or
event(s) as a result of which other shares are substituted for the shares
of Stock or shares of Stock may no longer be issued, or the dissolution or
liquidation of the Company, the Board shall arrange for (i) each
Participant as of the date of such transaction or event to become a participant
as of such date in a new employee stock purchase plan adopted by the successor
or surviving corporation, or a parent or subsidiary thereof, and effective as
of such date, with the same elections, designations and account balance in
effect under the new plan immediately after such transaction or event as were
in effect under this Plan immediately prior to such transaction or event
(except for any modifications thereto that may be necessary to reflect any
differences in provisions between this Plan and the new plan), and (ii) the
substitution pursuant to such new plan of purchase rights with respect to
shares of the successor or surviving corporation, or a parent or subsidiary
thereof, for the Purchase Rights, unless the Board decides to take such other
action as it deems appropriate, including without limitation providing for the
termination of this Plan and for a Purchase Date to occur on the Trading Day
immediately preceding the date of such termination (and promptly so notifying
all Participants in writing).


 


18.                                 Equal Rights
and Privileges.  All
Employees shall have equal rights and privileges with respect to this Plan so
that the Plan qualifies as an “employee stock purchase plan” within the meaning
of Section 423 of the Code and the related Treasury Regulations.  Any provision of this Plan which is
inconsistent with Section 423 of the Code shall without further act or
amendment by the Company or the Board be reformed to comply with the
requirements of Section 423.  This
Section 18 shall take precedence over all other provisions of this Plan.


 


19.                                 Amendment or
Termination.


 


(a)                                  The Board may
modify, amend, alter or terminate this Plan at any time, including without
limitation an amendment to outstanding Purchase Rights and an amendment which
does not cause unfavorable financial accounting treatment for the Company or
any Designated Subsidiary (including changes with respect to the current
Offering Period or any Purchase Date therein) if the continuation of the Plan
or any Offering Period would result in financial accounting treatment for the
Plan that is different from the financial accounting treatment in effect on the
Effective Date.  No amendment shall be
effective unless it is approved by the shareholders of the Company within 12
months after the date it is adopted by the Board if it would:


 


(i)                                     Increase the
number of shares of Stock reserved for issuance under this Plan; or


 


(ii)                                  Change the
designation of the employees (or class of employees) eligible for participation
in this Plan.


 


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(b)                                 The Board may
elect to terminate all outstanding Purchase Rights at any time, except to the
extent that exercisability of such Purchase Rights has been accelerated
pursuant to Section 17(b).  If this
Plan is terminated, the Board may elect to terminate all outstanding Purchase
Rights either immediately or upon completion of the purchase of shares on the
next Purchase Date, or may elect to permit Purchase Rights to expire in
accordance with their terms (with participation to continue through such
expiration dates).  If Purchase Rights
are terminated before expiration, all funds contributed to this Plan that have
not been used to purchase shares shall be refunded to Participants as soon as
administratively feasible.


 


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


 


21.                                 Shareholder
Approval.  This Plan
shall be submitted to the shareholders of the Company for their approval within
12 months after the date this Plan is adopted by the Board.


 


22.                                 Rights as an
Employee.  Nothing in
this Plan shall be construed to give any person the right to remain in the
employ of the Company or any Subsidiary or to affect the Company’s or any
Subsidiary’s right to terminate the employment of any person at any time with
or without cause.


 


23.                                 Conditions upon
Issuance of Shares.


 


(a)                                  Shares shall
not be issued with respect to a Purchase Right unless and until the exercise of
such Purchase Right 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 United States Securities Act of 1933,
as amended, the United States Securities Exchange Act of 1934, as amended, the rules and
regulations promulgated thereunder, and the requirements of any stock exchange
or stock quotation system upon which the shares may then be listed, and shall
be further subject to the approval of counsel for the Company with respect to
such compliance.


 


(b)                                 As a condition
to the exercise of a Purchase Right, the Company may require the person
exercising such Purchase Right 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.


 


(c)                                  The terms and
conditions of Purchase Rights granted hereunder to, and the purchase of Stock
by, persons subject to Section 16 of the United States Securities Exchange
Act of 1934, as amended, shall comply with the applicable provisions of Rule 16b-3
of such Act.  This Plan shall be deemed
to contain, and such Purchase Rights shall contain, and the Stock 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 United States Securities Exchange Act of 1934, as amended, with respect
to Plan transactions.


 


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24.                                 Term of Plan.  This Plan shall become effective as of the
Effective Time and continue in effect for a term of 20 years unless sooner
terminated under any other provision of this Plan.


 


This
Plan was adopted by the Board of Directors of the Company on
May 28, 2004.


This
Plan was approved by the shareholders of the Company on June 6, 2004.


This
Plan was amended and restated by the Board of Directors of the Company on
May 11, 2010.


 


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