exv4w5








Exhibit
4.5








EXPRESSJET HOLDINGS, INC.

2009 EMPLOYEE STOCK PURCHASE PLAN




1. Purpose. The ExpressJet Holdings, Inc. 2009 Employee Stock Purchase Plan (the “Plan”) is
intended to provide an incentive for employees of ExpressJet Holdings, Inc. (the “Company”) and any
Participating Company (as defined in paragraph 3) to acquire or increase a proprietary interest in
the Company through the purchase of shares of the Company’s common stock, par value $.01 per share
(the “Stock”). The Plan is intended to qualify as an “Employee Stock Purchase Plan” under Section
423 of the Internal Revenue Code of 1986, as amended (the “Code”). The provisions of the Plan shall
be construed in a manner consistent with the requirements of that section of the Code.



The Plan as set forth herein constitutes an amendment and restatement of the ExpressJet
Holdings, Inc. 2003 Employee Stock Purchase Plan previously adopted by the Company (the “2003
Plan”), and shall supersede and replace in its entirety such plan.



2. Administration of the Plan. The Plan shall be administered by the Human Resources Committee
(the “Committee”) of the Board of Directors of the Company (the “Board”). Subject to the provisions
of the Plan, the Committee shall interpret the Plan and all options granted under the Plan, make
such rules as it deems necessary for the proper administration of the Plan and make all other
determinations necessary or advisable for the administration of the Plan. In addition, the
Committee shall correct any defect, supply any omission or reconcile any inconsistency in the Plan,
or in any option granted under the Plan, in the manner and to the extent that the Committee deems
desirable to carry the Plan or any option into effect. The Committee shall, in its sole discretion,
make such decisions or determinations and take such actions, and all such decisions, determinations
and actions taken or made by the Committee pursuant to this and the other paragraphs of the Plan
shall be conclusive on all parties. The Committee shall not be liable for any decision,
determination or action taken in good faith in connection with the administration of the Plan. The
Committee shall have the authority to delegate routine day-to-day administration of the Plan to
such officers and employees of the Company as the Committee deems appropriate, and such persons
shall not be liable for any decision, determination or action taken in good faith in connection
with such delegated administration.



3. Participating Companies. The Committee may designate any present or future parent or
subsidiary corporation of the Company that is eligible by law to participate in the Plan as a
“Participating Company” by written instrument delivered to the designated Participating Company.
Such written instrument shall specify the effective date of such designation and shall become, as
to such designated Participating Company and persons in its employment, a part of the Plan. The
terms of the Plan may be modified as applied to the Participating Company only to the extent
permitted under Section 423 of the Code. Transfer of employment among the Company and Participating
Companies (and among any other parent or subsidiary corporation of the Company) shall not be
considered a termination of employment hereunder. Any Participating Company may, by appropriate
action of its Board of Directors, terminate its participation in the Plan. Moreover, the Committee
may, in its discretion, terminate a Participating Company’s Plan participation at any time.



4. Eligibility. Subject to the provisions hereof, all employees of the Company and the
Participating Companies who are employed by the Company or any Participating Company as of a Date
of Grant (as defined in subparagraph 6(a)) shall be eligible to participate in the Plan; provided,
however, that no option shall be granted to an employee if such employee, immediately after the
option is granted, owns stock possessing five percent or more of the total combined voting power or
value of all classes of stock of the Company or of its parent or subsidiary corporations (within
the meaning of Sections 423(b)(3) and 424(d) of the Code).



5. Stock Subject to the Plan. Prior to the effective date of this amendment and restatement,
10,585 shares of Stock (determined after giving effect to the Company’s one-for-ten reverse Stock
split that occurred on October 1, 2008) have been sold pursuant to options granted under the 2003
Plan. Subject to the provisions of paragraph 12, the aggregate number of shares that may be sold
pursuant to options granted under the Plan from and after the effective date of this amendment and
restatement shall not exceed 510,585 shares of the authorized Stock, which shares may be unissued
or reacquired shares, including shares bought on the market or otherwise for purposes of the Plan.
Should any option granted under the Plan expire or terminate prior to its exercise in full, the
shares theretofore subject to such option may again be subject to an option granted under the Plan.
Any shares that are not subject to outstanding options upon the termination of the Plan shall cease
to be subject to the Plan.


 


 









 





6. Grant of Options.


(a) General Statement; “Date of Grant”; “Option Period”; “Date of Exercise”. Following
the effective date of the Plan and continuing while the Plan remains in force, the Company
shall offer options under the Plan to purchase shares of Stock to all eligible employees who
elect to participate in the Plan. Except as otherwise determined by the Committee, these
options shall be granted on July 1, 2009, and, thereafter, on the first day of each
successive January and July (each of which dates is herein referred to as a “Date of Grant”).
Except as provided in paragraph 12, the term of each
option shall be for six months (each such six-month period is herein referred to as an
“Option Period”), which shall begin on a Date of Grant and end on the last day of each Option
Period (herein referred to as a “Date of Exercise”). Subject to subparagraph 6(e), the number
of shares subject to an option for a participant shall be equal to the quotient of (i) the
aggregate payroll deductions withheld on behalf of such participant during the Option Period
in accordance with subparagraph 6(b), divided by (ii) the Option Price (as defined in
subparagraph 7(b)) of the Stock applicable to the Option Period, including fractions;
provided, however, that the maximum number of shares that may be subject to any option for a
participant may not exceed 1000 (subject to adjustment as provided in paragraph 12).



(b) Election to Participate; Payroll Deduction Authorization. An eligible employee may
participate in the Plan only by means of payroll deduction. Except as provided in
subparagraph 6(g), each eligible employee who elects to participate in the Plan shall deliver
to the Company or any third party administrator designated by the Company, within the time
period prescribed by the Committee, a written payroll deduction authorization in a form
prepared by the Company (which may be in electronic or telephonic form) whereby he gives
notice of his election to participate in the Plan as of the next following Date of Grant, and
whereby he designates an integral percentage of his Eligible Compensation (as defined in
subparagraph 6(d)) to be deducted from his compensation for each pay period and paid into the
Plan for his account. The designated percentage may not be less than 1% nor exceed 10% (or
such other percentage as the Board or the Committee may establish from time to time prior to
a Date of Grant).



(c) Changes in Payroll Authorization. A participant may withdraw from the Plan as
provided in paragraph 8. In addition, a participant may decrease the percentage rate of his
payroll deduction authorization referred to in subparagraph 6(b) or suspend or resume payroll
deductions during the relevant Option Period by delivering to the Company or any third party
administrator designated by the Company a new payroll deduction authorization in a form
prepared by the Company (which may be in electronic or telephonic form). Such decrease,
suspension or resumption will be effective as soon as administratively feasible after receipt
of the participant’s new payroll deduction authorization form.



(d) “Eligible Compensation” Defined. The term “Eligible Compensation” means regular
straight-time earnings or base salary, except that such term shall not include payments for
overtime, incentive compensation, bonuses or other special payments.



(e) $25,000 Limitation. No employee shall be granted an option under the Plan which
permits his rights to purchase Stock under the Plan and under all other employee stock
purchase plans of the Company and its parent and subsidiary corporations to accrue at a rate
which exceeds $25,000 of fair market value of such Stock (determined at the time such option
is granted) for each calendar year in which such option is outstanding at any time (within
the meaning of Section 423(b)(8) of the Code). Any payroll deductions in excess of the amount
specified in the foregoing sentence shall be returned to the participant as soon as
administratively feasible after the next following Date of Exercise.



(f) Leaves of Absence. During a paid leave of absence approved by the Company and
meeting the requirements of Treasury Regulation Section1.421-1(h)(2), a participant’s elected
payroll deductions shall continue. A participant may not contribute to the Plan during an
unpaid leave of absence. If a participant takes an unpaid leave of absence that is approved
by the Company and meets the requirements of Treasury Regulation Section1.421-1(h)(2), then
such participant’s payroll deductions for such Option Period that were made prior to such
leave may remain in the Plan and be used to purchase Stock under the Plan on the Date of
Exercise relating to such Option Period. If a participant takes a leave of absence that is
not described in the first or third sentence of this subparagraph 6(f), then he shall be
considered to have terminated his employment and withdrawn from the Plan pursuant to the
provisions of paragraph 8 hereof. Further, notwithstanding the preceding provisions of this
subparagraph 6(f), if a participant takes a leave of absence that is described in the first
or third sentence of this subparagraph 6(f) and such leave of absence exceeds the Maximum
Period, then he shall be considered to have withdrawn from the Plan pursuant to the
provisions of paragraph 8 hereof and terminated his employment for purposes of the Plan on
the day immediately following the last day of the Maximum Period. For purposes of the
preceding sentence, the term “Maximum Period” shall mean, with respect to a participant, the
three-month period beginning on the first day of the participant’s leave of absence;
provided, however, that if the participant’s right to reemployment by the Company (or a
parent or subsidiary corporation of the Company) is provided either by statute or contract,
then such three-month period shall be extended until the last day upon which such
reemployment rights are so provided.



(g) Continuing Election. Subject to the limitation set forth in subparagraph 6(e), a
participant (i) who has elected to participate in the Plan pursuant to subparagraph 6(b) as
of a Date of Grant and (ii) who takes no action to change or revoke such election as of the
next following Date of Grant and/or as of any subsequent Date of Grant prior to any such
respective Date of Grant shall be deemed to have made the same election, including the same
attendant payroll deduction authorization, for such next following and/or subsequent Date(s)
of Grant as was in effect immediately prior to such respective Date of Grant. Payroll
deductions that are limited by subparagraph 6(e) shall re-commence at the rate provided in
such participant’s payroll deduction authorization at the beginning of the first Option
Period that is scheduled to end in the
following calendar year, unless the participant changes the amount of his payroll
deduction authorization pursuant to paragraph 6, withdraws from the Plan as provided in
paragraph 8 or is terminated from the Plan as provided in paragraph 9.



 


 








 




7. Exercise of Options.


(a) General Statement. Subject to the limitation set forth in subparagraph 6(e), each
participant in the Plan automatically and without any act on his part shall be deemed to have
exercised his option on each Date of Exercise to the extent of his unused payroll deductions
under the Plan and to the extent the issuance of Stock to such participant upon such exercise
is lawful. If the total number of shares of Stock for which options are exercised on any
Date of Exercise exceeds the maximum number of shares then available for sale under the Plan,
the Company shall allocate the remaining shares by reducing participants’ designated payroll
deduction authorization percentages in order of the highest percentages until the excess is
eliminated, and any remaining balance of payroll deductions credited to the account of a
participant under the Plan shall be refunded to him promptly.



(b) “Option Price” Defined. The term “Option Price” shall mean the per share price of
Stock to be paid by each participant on each exercise of his option, which price shall be
equal to 85% of the fair market value of the Stock on the Date of Exercise or on the Date of
Grant, whichever amount is lesser. Notwithstanding the provisions of the preceding sentence
or any other provision in the Plan to the contrary, if the Option Price for any Option Period
is less than $1.00 per share (subject to adjustment as provided in paragraph 12), then (i)
the participant’s option relating to such Option Period shall automatically terminate and
shall not be exercised, (ii) the Company shall promptly refund to each participant the amount
of his payroll deductions under the Plan which have not yet been otherwise returned to him or
used upon exercise of options, and (ii) the participant shall have no further interest in the
unexercised option relating to such Option Period. For all purposes under the Plan, the fair
market value of a share of Stock on a particular date shall be equal to the closing price of
the Stock on the New York Stock Exchange, Inc. on that date as reported by The Wall Street
Journal in the New York Stock Exchange Composite Transactions (or, if no shares of Stock have
been traded on that date, on the next regular business date with respect to the Date of
Grant, or on the preceding regular business day with respect to the Date of Exercise, on
which shares of the Stock are so traded). Notwithstanding the preceding sentence, in the
event the Stock is not listed on the New York Stock Exchange, Inc. at the time a
determination of its value is required to be made hereunder, the determination of its fair
market value shall be made by the Committee in such manner as it deems appropriate.



(c) Delivery of Shares; Restrictions on Transfer. As soon as practicable after each Date
of Exercise, the Company shall deliver to a custodian selected by the Committee one or more
certificates representing (or shall otherwise cause to be credited to the account of such
custodian) the total number of whole shares of Stock respecting options exercised on such
Date of Exercise in the aggregate (for both whole and fractional shares) of all of the
participating eligible employees hereunder. Any remaining amount representing a fractional
share shall not be certificated (or otherwise so credited) and shall be carried forward to
the next Date of Exercise for certification (or credit) as part of a whole share. Such
custodian shall keep accurate records of the beneficial interests of each participating
employee in such shares by means of participant accounts under the Plan, and shall provide
each eligible employee with quarterly or such other periodic statements with respect thereto
as may be directed by the Committee. If the Company is required to obtain from any U.S.
commission or agency authority to issue any such shares, the Company shall seek to obtain
such authority. Inability of the Company to obtain from any commission or agency (whether
U.S. or foreign) authority which the Company’s General Counsel or his designee deems
necessary for the lawful issuance of any such shares shall relieve the Company from liability
to any participant in the Plan except to return to him the amount of his payroll deductions
under the Plan which would have otherwise been used upon exercise of the relevant option.
Except as hereinafter provided, for a period of six months (or such other period as the
Committee may from time to time specify with respect to a particular grant of options) after
the Date of Exercise of an option (the “Restriction Period”), the shares of Stock issued in
connection with such exercise may not be sold, assigned, pledged, exchanged, hypothecated or
otherwise transferred, encumbered or disposed of by the optionee who has purchased such
 shares; provided, however, that such restriction shall not apply to the transfer, exchange or
conversion of such shares of Stock pursuant to a merger, consolidation or other plan of
reorganization of the Company, but the stock, securities or other property (other than cash)
received upon any such transfer, exchange or conversion shall also become subject to the same
transfer restrictions applicable to the original shares of Stock, and shall be held by the
custodian, pursuant to the provisions hereof. Upon the expiration of such Restriction Period,
the transfer restrictions set forth in this subparagraph 7(c) shall cease to apply and the
optionee may, pursuant to procedures established by the Committee and the custodian, direct
the sale of some or all of the whole shares of Stock in his Company stock account that are
not then subject to transfer restrictions and request payment of the net proceeds from such
sale. Unless sold by the custodian, the shares of Stock in an optionee’s Company stock
account shall be held by the custodian for a period of two years following the date of grant.
Further, upon the termination of the optionee’s employment with the Company and its parent
or subsidiary corporations by reason of death or permanent and total disability (within the
meaning of Section 22(e)(3) of the Code), the transfer restrictions set forth in this
subparagraph 7(c) shall cease to apply and the custodian shall, upon the request of such
optionee (or as applicable, such optionee’s personal representative), deliver to such
optionee a certificate issued in his name representing (or otherwise credit to an account of
such optionee) the aggregate whole number of shares of Stock in his Company stock account
under the Plan.
At the time of distribution of such shares, any fractional share in such Company stock
account shall be converted to cash based on the fair market value of the Stock on the date of
distribution and such cash shall be paid to the optionee. The Committee may cause the Stock
issued in connection with the exercise of options under the Plan to bear such legends or
other appropriate restrictions, and the Committee may take such other actions, as it deems
appropriate in order to reflect the transfer restrictions set forth in this subparagraph 7(c)
and to assure compliance with applicable laws.



 


 








 




8. Withdrawal from the Plan.


(a) General Statement. Any participant may withdraw in whole from the Plan at any time
prior to the Date of Exercise relating to a particular Option Period. Partial withdrawals
shall not be permitted. A participant who wishes to withdraw from the Plan must timely
deliver to the Company or any third party administrator designated by the Company a notice of
withdrawal in a form prepared by the Company (which may be in electronic or telephonic form).
The Company, promptly following the time when the notice of withdrawal is delivered, shall
refund to the participant the amount of his payroll deductions under the Plan which have not
yet been otherwise returned to him or used upon exercise of options; and thereupon,
automatically and without any further act on his part, his payroll deduction authorization
and his interest in unexercised options under the Plan shall terminate.


(b) Eligibility Following Withdrawal. A participant who withdraws from the Plan shall be
eligible to participate again in the Plan upon expiration of the Option Period during which
he withdrew (provided that he is otherwise eligible to participate in the Plan at such time).


9. Termination of Employment.


(a) General Statement. Except as provided in subparagraph 9(b), if the employment of a
participant terminates for any reason whatsoever, then his participation in the Plan
automatically and without any act on his part shall terminate as of the date of the
termination of his employment. The Company shall promptly refund to him the amount of his
payroll deductions under the Plan which have not yet been otherwise returned to him or used
upon exercise of options, and thereupon his interest in unexercised options under the Plan
shall terminate.


(b) Termination by Death. If the employment of a participant terminates due to death,
the participant’s designated beneficiary will have the right to elect, no later than 10 days
prior to the last day of the Option Period during which such death occurred, either to:


(1) withdraw all of the accumulated unused payroll deductions and shares of Stock
credited to the participant’s account under the Plan (whether or not the Restriction
Period with respect to such shares has expired); or


(2) exercise the participant’s option for the purchase of Stock on the last day
of the Option Period during which such death occurred for the purchase of the number
of full shares of Stock which the accumulated payroll deductions at the date of the
participant’s death will purchase at the applicable Option Price (subject to
subparagraph 6(e)), with any excess cash in such account to be returned to the
participant’s designated beneficiary.


Such designated beneficiary must make such election by giving written notice to the Committee
in such manner as the Committee prescribes. In the event that no such written notice of
election is timely received by the Committee, the designated beneficiary will automatically
be deemed to have elected as set forth in clause (2) above, and promptly after the exercise
so described in clause (2) above, all shares of Stock in such participant’s account under the
Plan will be distributed to such designated beneficiary.


(c) Beneficiary Designation. Each participant shall have the right to designate a
beneficiary to exercise the rights specified in subparagraph 9(b) in the event of such
participant’s death. Any designation (or change in designation) of a beneficiary must be
filed with the Committee in a time and manner designated by the Committee in order to be
effective. Any such designation of a beneficiary may be revoked by the participant by filing
a later valid designation or an instrument of revocation with the Committee in a time and
manner designated by the Committee. If no beneficiary is designated, the designated
beneficiary will be deemed to be the participant’s personal representative.


10. Restriction Upon Assignment of Option. An option granted under the Plan shall not be
transferable otherwise than by will or the laws of descent and distribution. Subject to
subparagraph 9(b), each option shall be exercisable, during his lifetime, only by the employee to
whom granted. The Company shall not recognize and shall be under no duty to recognize any
assignment or purported assignment by an employee of his option or of any rights under his option
or under the Plan.


11. No Rights of Stockholder Until Exercise of Option. With respect to shares of Stock subject
to an option, an optionee shall not be deemed to be a stockholder, and he shall not have any of the
rights or privileges of a stockholder, until such
option has been exercised. With respect to an individual’s Stock held by the custodian
pursuant to subparagraph 7(c), the custodian shall, as soon as practicable, pay the individual any
cash dividends attributable thereto and shall, in accordance with procedures adopted by the
custodian, facilitate the individual’s voting rights attributable thereto.


 


 








 





12. Changes in Stock; Adjustments. Whenever any change is made in the Stock, by reason of a
stock dividend or by reason of subdivision, stock split, reverse stock split, recapitalization,
reorganization, combination, reclassification of shares or other similar change, appropriate action
will be taken by the Committee to prevent the dilution or enlargement of rights by adjusting
accordingly the number of shares subject to the Plan, the maximum number of shares that may be
subject to any option, the number and Option Price of shares subject to options outstanding under
the Plan, and the minimum Option Price established pursuant to subparagraph 7(b) with respect to
both future and outstanding options.



If the Company shall not be the surviving corporation in any merger or consolidation (or
survives only as a subsidiary of another entity), or if the Company is to be dissolved or
liquidated, then, unless a surviving corporation assumes or substitutes new options (within the
meaning of Section 424(a) of the Code) for all options then outstanding, (i) the Date of Exercise
for all options then outstanding shall be accelerated to a date fixed by the Committee prior to the
effective date of such merger or consolidation or such dissolution or liquidation and (ii) upon
such effective date any unexercised options shall expire and the Company promptly shall refund to
each participant the amount of such participant’s payroll deductions under the Plan which have not
yet been otherwise returned to him or used upon exercise of options.



13. Use of Funds; No Interest Paid. All funds received or held by the Company under the Plan
shall be included in the general funds of the Company free of any trust or other restriction, and
may be used for any corporate purpose. No interest shall be paid or credited to any participant.



14. Term of the Plan. The 2003 Plan was effective on the date provided therein. This
amendment and restatement shall be effective upon the date of its adoption by the Board, provided
this amendment and restatement is approved by the stockholders of the Company at a duly called
meeting of the Company’s stockholders held on May 12, 2009. If this amendment and restatement is
not so approved by the stockholders, then this amendment and restatement shall be void ab initio,
and the 2003 Plan shall continue in effect as if this amendment and restatement had not occurred.
Except with respect to options then outstanding, if not sooner terminated under the provisions of
paragraph 15, the Plan shall terminate upon and no further payroll deductions shall be made and no
further options shall be granted after December 31, 2018.



15. Amendment or Termination of the Plan. The Board in its discretion may terminate the Plan
at any time with respect to any Stock for which options have not theretofore been granted. The
Board and the Committee shall each have the right to alter or amend the Plan or any part thereof
from time to time; provided, however, that no change in any option theretofore granted may be made
that would impair the rights of the optionee without the consent of such optionee.



16. Securities Laws. The Company shall not be obligated to issue any Stock pursuant to any
option granted under the Plan at any time when the offer, issuance or sale of shares covered by
such option has not been registered under the Securities Act of 1933, as amended, or does not
comply with such other state, federal or foreign laws, rules or regulations, or the requirements of
any stock exchange upon which the Stock may then be listed, as the Company or the Committee deems
applicable and, in the opinion of legal counsel for the Company, there is no exemption from the
requirements of such laws, rules, regulations or requirements available for the offer, issuance and
sale of such shares. Further, all Stock acquired pursuant to the Plan shall be subject to the
Company’s policies concerning compliance with securities laws and regulations, as such policies may
be amended from time to time. The terms and conditions of options granted hereunder to, and the
purchase of shares by, persons subject to Section 16 of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), shall comply with any applicable provisions of Rule 16b-3. As to such
persons, this Plan shall be deemed to contain, and such options shall contain, and the shares
issued upon exercise thereof shall be subject to, such additional conditions and restrictions as
may be required from time to time by Rule 16b-3 to qualify for the maximum exemption from Section
16 of the Exchange Act with respect to Plan transactions.



17. No Restriction on Corporate Action. Nothing contained in the Plan shall be construed to
prevent the Company or any subsidiary from taking any corporate action that is deemed by the
Company or such subsidiary to be appropriate or in its best interest, whether or not such action
would have an adverse effect on the Plan or any option granted under the Plan. No employee,
beneficiary or other person shall have any claim against the Company or any subsidiary as a result
of any such action.


 


 









 





18. Miscellaneous Provisions.


(a) Parent and Subsidiary Corporations. For all purposes of the Plan, a corporation
shall be considered to be a parent or subsidiary corporation of the Company only if such
corporation is a parent or subsidiary corporation of the Company within the meaning of
Sections 424(e) or (f) of the Code.



(b) Number and Gender. Wherever appropriate herein, words used in the singular shall be
considered to include the plural and words used in the plural shall be considered to include
the singular. The masculine gender, where appearing in the Plan, shall be deemed to include
the feminine gender.



(c) Headings. The headings and subheadings in the Plan are included solely for
convenience, and if there is any conflict between such headings or subheadings and the text
of the Plan, the text shall control.



(d) Not a Contract of Employment; No Acquired Rights. The adoption and maintenance of
the Plan shall not be deemed to be a contract between the Company or any Participating
Company and any person or to be consideration for the employment of any person. Participation
in the Plan at any given time shall not be deemed to create the right to participate in the
Plan, or any other arrangement permitting an employee of the Company or any Participating
Company to purchase Stock at a discount, in the future. The rights and obligations under any
participant’s terms of employment with the Company or any Participating Company shall not be
affected by participation in the Plan. Nothing herein contained shall be deemed to give any
person the right to be retained in the employ of the Company or any Participating Company or
to restrict the right of the Company or any Participating Company to discharge any person at
any time, nor shall the Plan be deemed to give the Company or any Participating Company the
right to require any person to remain in the employ of the Company or such Participating
Company or to restrict any person’s right to terminate his employment at any time. The Plan
shall not afford any participant any additional right to compensation as a result of the
termination of such participant’s employment for any reason whatsoever.



(e) Compliance with Applicable Laws. The Company’s obligation to offer, issue, sell or
deliver Stock under the Plan is at all times subject to all approvals of and compliance with
any governmental authorities (whether domestic or foreign) required in connection with the
authorization, offer, issuance, sale or delivery of Stock as well as all federal, state,
local and foreign laws. Without limiting the scope of the preceding sentence, and
notwithstanding any other provision in the Plan, the Company shall not be obligated to grant
options or to offer, issue, sell or deliver Stock under the Plan to any employee who is a
citizen or resident of a jurisdiction the laws of which, for reasons of its public policy,
prohibit the Company from taking any such action with respect to such employee.



(f) Severability. If any provision of the Plan shall be held illegal or invalid for any
reason, said illegality or invalidity shall not affect the remaining provisions hereof;
instead, each provision shall be fully severable and the Plan shall be construed and enforced
as if said illegal or invalid provision had never been included herein.



(g) Electronic and/or Telephonic Documentation and Submission. Any of the payroll
deduction authorizations, enrollment documents and any other forms and designations
referenced in the Plan and their submission may be electronic and/or telephonic, as directed
by the Committee.



(h) Governing Law. All provisions of the Plan shall be construed in accordance with the
laws of Texas except to the extent preempted by federal law.