Employee Stock Purchase Plan Amended and Restated as of May 8, 2002


  Exhibit 10.15
 SONIC AUTOMOTIVE,
INC.
 EMPLOYEE STOCK PURCHASE PLAN
 AMENDED AND
RESTATED
 AS OF
 MAY 8, 2002
 
 





  SONIC AUTOMOTIVE, INC.
EMPLOYEE STOCK PURCHASE PLAN

AMENDED AND
RESTATED
AS OF
MAY 8, 2002
 TABLE OF CONTENTS
  

	  
 	  
 	  
 	 Page
 
	  
 	  
 	  
 	  
 
	 
ARTICLE I. PURPOSE; EFFECTIVE DATE; DEFINITIONS; CONSTRUCTION
 	 1
 
	  
 	 1.1
 	 
Purpose of Plan; Effective Date
 	 1
 
	  
 	 1.2
 	 
Definitions
 	 1
 
	  
 	  
 	 (a)    “
Account”
 	 1
 
	  
 	  
 	 (b)    “
Base Pay”
 	 1
 
	  
 	  
 	 (c)    “
Board of Directors”
 	 1
 
	  
 	  
 	 (d)    “
Business Day”
 	 1
 
	  
 	  
 	 (e)    “
Cause”
 	 1
 
	  
 	  
 	 (f)    “
Code”
 	 2
 
	  
 	  
 	 (g)   “
Committee”
 	 2
 
	  
 	  
 	 (h)   “
Company”
 	 2
 
	  
 	  
 	 (i)    “
Company Stock”
 	 2
 
	  
 	  
 	 (j)    “
Contributions”
 	 2
 
	  
 	  
 	 (k)   “
Employee”
 	 2
 
	  
 	  
 	 (l)    “
Employer”
 	 2
 
	  
 	  
 	 (m)  “
Exercise Date”
 	 2
 
	  
 	  
 	 (n)   “
Grant Date”
 	 2
 
	  
 	  
 	 (o)   “
Option”
 	 2
 
	  
 	  
 	 (p)   “
Participant”
 	 2
 
	  
 	  
 	 (q)   “
Plan”
 	 2
 
	  
 	 1.3
 	 
Construction
 	 3
 
	  
 	  
 	  
 	  
 
	 
ARTICLE II. ADMINISTRATION
 	 3
 
	  
 	 2.1
 	 
Appointment and Procedures of Committee
 	 3
 
	  
 	 2.2
 	 
Authority of Committee
 	 3
 
	  
 	  
 	  
 	  
 
	 
ARTICLE III. PARTICIPATION
 	 3
 
	  
 	 3.1
 	 
Eligibility to Participate
 	 3
 
	  
 	 3.2
 	 
Restrictions on Participation
 	 4
 
	  
 	 3.3
 	 
Leave of Absence
 	 4
 
	  
 	  
 	  
 	  
 
	 
ARTICLE IV. CONTRIBUTIONS
 	 4
 
	  
 	 4.1
 	 
Payroll Deductions
 	 4
 
	  
 	 4.2
 	 
Direct Payment
 	 5
 

  
 
 





   

	  
 	 4.3
 	 
Leave of Absence
 	 5
 
	  
 	 4.4
 	 
Contributions to Accounts
 	 5
 
	  
 	 4.5
 	 
Withdrawal of Contributions from Plan
 	 5
 
	  
 	 4.6
 	 
Termination of Employment
 	 6
 
	  
 	  
 	  
 	  
 
	 
ARTICLE V. OPTIONS
 	 6
 
	  
 	 5.1
 	 
Company Stock Available for Options
 	 6
 
	  
 	 5.2
 	 
Granting of Options
 	 6
 
	  
 	 5.3
 	 
Option Price
 	 6
 
	  
 	 5.4
 	 
Option Period
 	 7
 
	  
 	 5.5
 	 
Exercise of Options
 	 7
 
	  
 	  
 	 (a)    
Automatic Exercise
 	 7
 
	  
 	  
 	 (b)    
Nontransferability of Options
 	 7
 
	  
 	  
 	 (c)    
Effect of Termination of Employment
 	 7
 
	  
 	  
 	          (i)    
Termination of Employment Related to Cause
 	 7
 
	  
 	  
 	          (ii)    
Termination of Employment Due to Death
 	 7
 
	  
 	  
 	          (iii)    
Other Termination of Employment
 	 8
 
	  
 	  
 	 (d)    
Leave of Absence
 	 8
 
	  
 	  
 	 (e)    
Delivery of Stock
 	 9
 
	  
 	  
 	 (f)    
Acceleration of Exercisability of Options Upon Occurrence of Certain Events
 	 9
 
	  
 	  
 	 (g)    
Registration, Listing and Qualification of Shares of Stock
 	 9
 
	  
 	  
 	  
 	  
 
	 
ARTICLE VI. MISCELLANEOUS
 	 9
 
	  
 	 6.1
 	 
Adjustments Upon Changes in Capitalization
 	 9
 
	  
 	 6.2
 	 
Approval of Shareholders
 	 10
 
	  
 	 6.3
 	 
Amendment, Suspension and Termination
 	 10
 
	  
 	 6.4
 	 
Intent to Comply With Code Section 423
 	 10
 
	  
 	 6.5
 	 
Equal Rights and Privileges
 	 10
 
	  
 	 6.6
 	 
Use of Funds
 	 10
 
	  
 	 6.7
 	 
Withholding
 	 10
 
	  
 	 6.8
 	 
Effect of Plan
 	 11
 
	  
 	 6.9
 	 
No Employment Rights
 	 11
 
	  
 	 6.10
 	 
Governing Law
 	 11
 
	  
 	 6.11
 	 
Other Actions
 	 11
 

 
 
 





  SONIC AUTOMOTIVE, INC.
EMPLOYEE STOCK PURCHASE PLAN

AMENDED AND
RESTATED
AS OF
MAY 8, 2002
 
ARTICLE I.  PURPOSE; EFFECTIVE DATE; DEFINITIONS; CONSTRUCTION
 1.1               
Purpose of Plan; Effective Date.  The purpose of the Plan, which shall be known as the Sonic Automotive, Inc. Employee Stock Purchase Plan (the “Plan”), is to provide
employees of Sonic Automotive, Inc. (the “Company”) and its participating subsidiaries, within the meaning of Section 424(f) of the Internal Revenue Code of 1986, as amended (the “Code”) (which hereinafter shall be referred to
collectively with the Company as the “Employer”), an opportunity to acquire a proprietary interest in the Company through the purchase of the Class A Common Stock, $.01 par value per share, of the Company. This Plan is intended to qualify
as an “employee stock purchase plan” within the meaning of Section 423 of the Code. 
 The Plan became effective when it was adopted and approved by
the Board of Directors and the shareholders of the Company on October 9, 1997. The Plan was subsequently amended and restated as of December 3, 1998, again amended and restated as of June 8, 1999, and again amended and restated as of June 5, 2000.
The Company hereby amends and restates the Plan as of May 8, 2002 as set forth herein.
 1.2               
Definitions.  Throughout this Plan, the following terms shall have the meanings indicated:
 (a)         “
Account” shall mean a memorandum account maintained to record each Participant’s Contributions pending purchase of Company Stock.
 (b)        “
Base Pay” shall mean the Participant’s regular cash compensation (excluding overtime pay, bonuses, shift premiums, commissions, fringe benefits, other special payments and imputed income) determined without reduction
for Contributions made under this Plan or contributions to any Code Section 401(k) or Section 125 Plan.
 (c)         “
Board of Directors” shall mean the Board of Directors of the Company.
 (d)        “
Business Day” shall mean any day other than a Saturday, Sunday or holiday.
 (e)         “
Cause” shall mean any act, action or series of acts or actions or any omission, omissions or series of omissions which, in the opinion of the Committee, result in, or which have the effect of resulting in, (i) the
commission of a crime by the Participant involving moral turpitude, which crime has a material adverse impact on the Employer, (ii) gross negligence or willful misconduct which is continuous and results in
 
 





  material damage to the Employer, or (iii) the continuous, willful failure of the person in question to follow the reasonable directives of the
Employer.
 (f)         “
Code” shall mean the Internal Revenue Code of 1986, as amended, any successor revenue laws of the United States, and the rules and regulations promulgated thereunder.
 (g)        “
Committee” shall mean the committee of directors of the Company appointed by the Board of Directors in accordance with Section 2.1 to administer this Plan, or in the event that no such committee exists or is appointed,
“Committee” shall mean the Board of Directors.
 (h)        “
Company” shall mean Sonic Automotive, Inc., a corporation organized and existing under the laws of the State of Delaware.
 (i)         “
Company Stock” shall mean the Class A Common Stock, $.01 par value per share, of the Company.
 (j)         “
Contributions” shall mean the after-tax payroll deductions or other permissible contributions made by Participants to the Plan pursuant to Article IV.
 (k)        “
Employee” shall mean any person who (i) is employed on a full-time or part-time basis by a participating Employer, (ii) is regularly scheduled to work more than twenty hours per week for a participating Employer, and
(iii) is customarily employed more than five months in any calendar year by a participating Employer. Independent contractors and outside directors shall not be included in the definition of Employee for purposes of this Plan.
 (l)         “
Employer” shall mean the Company and any of its present or future subsidiaries (within the meaning of Section 424(f) of the Code) which the Committee may designate from time to time as participating Employers under this
Plan.
 (m)       “
Exercise Date” shall mean the last Business Day of March, June, September and December on which the principal trading market for Company Stock is open for trading, plus any other interim dates during the year which the
Committee designates as Exercise Dates.
 (n)        “
Grant Date” shall mean (i) initially, January 1, 1998, and (ii) each January 1 thereafter during the term of the Plan.
 (o)        “
Option” shall mean an option to purchase shares of Company Stock granted by the Committee to a Participant pursuant to this Plan.
 (p)        “
Participant” shall mean an Employee participating in this Plan in accordance with Article III.
 (q)        “
Plan” shall mean this Sonic Automotive, Inc. Employee Stock Purchase Plan, as amended from time to time.
 
 





  1.3               
Construction.  The masculine gender, where appearing in the Plan, shall be deemed to include the feminine gender, unless the context clearly indicates to the contrary. The words
“hereof,” “herein,” “hereunder” and other similar compounds of the word “here” shall mean and refer to the entire Plan and not to any particular provision or Section.
 
ARTICLE II.  ADMINISTRATION
 2.1               
Appointment and Procedures of Committee .  The Plan shall be administered by the Board of Directors or a Committee appointed from time to time by the Board of Directors. The Committee shall
consist of not fewer than two members of the Board of Directors. No member of the Board of Directors who serves on the Committee shall be eligible to participate in the Plan. The Committee shall hold its meetings at such times and places as it may
determine. A majority of its members shall constitute a quorum. All determinations of the Committee shall be made by a majority of its members. Any decision or determination reduced to writing and signed by all members shall be as effective as if it
had been made by a majority vote at a meeting duly called and held. The Committee may appoint a secretary (who need not be a member of the Committee).
 2.2               
Authority of Committee .  The Committee, subject to the terms of the Plan, shall have plenary authority in its discretion to interpret and construe the Plan (including, without limitation, any
of its terms which are uncertain, doubtful or disputed); to decide all questions of Employee eligibility hereunder; to determine the amount, manner and timing of all Options and purchases of Company Stock hereunder (unless otherwise determined by
the Board of Directors); to establish, amend and rescind rules and regulations pertaining to the administration of the Plan; and to make determinations and interpretations and take such other administrative actions as it deems necessary or advisable
for the administration of this Plan. The express grant in the Plan of any specific power to the Committee shall not be construed as limiting any power or authority of the Committee. No member of the Committee shall be liable for any act,
determination or omission with respect to his service on the Committee, if he acts in good faith and in a manner he reasonably believes to be in or not opposed to the best interests of the Employer. All expenses of administering this Plan shall be
borne by the Employer.
 
ARTICLE III.  PARTICIPATION
 3.1               
Eligibility to Participate.  Subject to the restrictions of Section 3.2 below, any Employee employed on the date of the closing of the Company’s initial public offering shall be eligible
to participate in this Plan as of the initial Grant Date under the Plan (provided that the Employee is still employed on such Grant Date). Each other Employee shall be eligible to participate in the Plan with respect to a Grant Date if, as of such
Grant Date, the Employee has completed a year of service with the Employer (provided that the Employee is still employed on such Grant Date). 
 Effective for
Grant Dates on or after January 1, 2003 (or such later date as may be specified by the Committee), if an Employee has previously elected to become a
 
 





  Participant with respect to a Grant Date and annual offering under Section 5.2 of the Plan, but fails to return an enrollment/election form on or before the
specified due date for any subsequent Grant Date and annual offering for which the Employee is eligible, then that Employee shall be deemed to have made the same participation election (including his payroll deduction and/or direct payment
contribution elections under Sections 4.1 and 4.2) as was in effect for him as of the last Exercise Date of the immediately preceding annual offering (or, if applicable, as of the Exercise Date during that immediately preceding annual offering as of
which the Employee had purchased all shares of Company Stock subject to his Option). Such participation election (including his payroll deduction and/or direct payment contribution elections under Sections 4.1 and/or 4.2) shall remain in effect
unless and until the Employee changes or revokes such participation election (and/or his payroll deduction and/or direct payment contribution elections under Sections 4.1 and 4.2) in writing by filing the proper forms in accordance with the terms of
the Plan.
 For purposes of eligibility to participate in this Plan, the following service shall be recognized: (a) service with an entity prior to the
acquisition by the Company, or one of its subsidiaries, of a controlling interest in or substantially all of the assets of such entity, and (b) service with an affiliate of the Company which directly, or indirectly through one or more
intermediaries, controls or is controlled by, or is under common control with, the Company.
 3.2               
Restrictions on Participation.  Notwithstanding the foregoing Section 3.1, no Employee shall be eligible to participate in the Plan if such Employee owns or holds options to purchase (or upon
participation in this Plan would own or hold options to purchase) stock possessing an aggregate of 5% or more of the total combined voting power or value of all classes of stock of the Company or any other Employer (as determined in accordance with
the rules of Section 424(d) of the Code relating to attribution of stock ownership).
 3.3               
Leave of Absence.  For purposes of participation in the Plan, an Employee on a leave of absence shall be deemed to continue to be an Employee for the first ninety days of such leave of absence
and such Employee’s employment shall be deemed to have terminated at the close of business on the ninetieth day of such leave of absence unless such Employee shall have returned to regular full-time or part-time employment prior to the close of
business on such ninetieth day (or unless the Employee’s reemployment is guaranteed by statute or contract). Termination by the Company of any Employee’s leave of absence, other than termination of such leave of absence on return to
regular full-time or part-time employment, shall terminate an Employee’s employment for all purposes of the Plan.
 
ARTICLE IV.  CONTRIBUTIONS
 4.1               
Payroll Deductions.  By written election, made and filed with the Committee pursuant to the Committee’s rules and procedures, a Participant may elect to designate a whole percentage
between one percent and ten percent (or such higher or lower percentage as may be allowed by the Committee’s rules and procedures) of his
 
 





  Base Pay to be deferred by payroll deduction as a Contribution to the Plan. Payroll deductions shall commence as soon as administratively practicable
following the filing of such written election with the Committee. The Committee in its discretion may develop additional rules and procedures regarding payroll deduction elections.
 A Participant may change or revoke his payroll deduction amount by filing, on such forms and in accordance with such rules and procedures as the Committee in its discretion may prescribe, a revised written election with
the Committee. Such modification or revocation shall take effect as soon as administratively practicable after the Committee’s receipt of such revised election. Notwithstanding the foregoing, a Participant may change his payroll deduction
election only once each calendar quarter, or as otherwise specifically allowed by the Committee’s rules and procedures. If payroll deductions are discontinued, payroll deductions may not be resumed by the Participant until the payroll period
which begins on or after the next Exercise Date, or as otherwise specifically allowed by the Committee’s rules and procedures. Under no circumstances may a Participant’s payroll deduction election be made, modified or revoked
retroactively.
 4.2               
Direct Payment.  In accordance with such rules and procedures as the Committee may prescribe in its discretion and in lieu of payroll deductions pursuant to Section 4.1, a Participant may
elect to make Contributions by direct cash payment (including by check, subject to the Committee’s rules and procedures) to the Plan rather than by payroll deduction. Such direct payments must be received by the Plan at least ten Business Days
prior to an Exercise Date in order for such payments to be applied in the exercise of an Option for the purchase of Company Stock on such Exercise Date.
 4.3               
Leave of Absence.  If a Participant is on a leave of absence, such Participant shall have the right to elect to (a) withdraw from the Plan and receive a distribution of the balance in his
Account pursuant to Section 4.5, (b) discontinue Contributions to the Plan but remain a Participant in the Plan, or (c) subject to Section 3.3(c), remain a Participant in the Plan during such leave of absence, authorizing deductions to be made from
payments by the Company to the Participant during such leave of absence, or making direct cash payments to the Plan pursuant to Section 4.2.
 4.4               
Contributions to Accounts.  A memorandum Account shall be established by the Committee for each Participant for the purpose of accounting for Contributions. Contributions shall be credited to
Accounts as soon as administratively practicable following payroll withholding or receipt of other permissible direct cash payment. Amounts credited to Accounts will not accrue interest.
 4.5               
Withdrawal of Contributions from Plan.  Prior to the end of a calendar quarter, a Participant may elect to withdraw the Contributions credited to his Account for that quarter by filing written
notice thereof with the Committee on such forms and in accordance with such procedures as the Committee may prescribe. The Participant’s Contributions shall be distributed to him as soon as administratively practicable after the
Committee’s receipt of his notice of withdrawal and, if applicable, no further payroll deductions shall be made from his Base Pay.
 
 





  4.6               
Termination of Employment.  Upon termination of a Participant’s employment for any reason, such Participant may no longer make Contributions to the Plan or be granted Options under the
Plan. A Participant’s right, if any, to exercise any unexpired Option he holds as of his termination of employment shall be determined in accordance with Section 5.5(c).
 
ARTICLE V.  OPTIONS
 5.1               
Company Stock Available for Options.  There shall be available for Options under the Plan an aggregate maximum of Three Million (3,000,000) shares of Company Stock, subject to any adjustments
which may be made pursuant to Section 6.1 of the Plan in connection with changes in capitalization of the Company. Shares of Company Stock used for purposes of the Plan may be either authorized and unissued shares, or previously issued shares held
in the treasury of the Company, or both. Shares of Company Stock covered by Options which have expired prior to exercise shall be available for further Options granted hereunder.
 5.2               
Granting of Options.  The Plan shall be implemented by annual offerings of approximately twelve months duration (except as otherwise provided in Section 5.4). As of each Grant Date, all
eligible Participants shall be granted an Option to purchase shares of Company Stock. The Board of Directors or the Committee shall determine the number of shares of Company Stock available for purchase under each Option to be granted as of such
Grant Date; provided that, the same number of shares must be available under each Option granted as of such Grant Date. No Participant may be granted an Option which permits his rights to purchase stock under this Plan and all other employee stock
purchase plans of the Company or Employer to accrue at a rate which exceeds $25,000 of the 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.
 5.3               
Option Price.  The purchase price per share of Company Stock which may be acquired pursuant to the exercise of all or any portion of an Option granted under this Plan shall be eighty-five
percent of the lesser of (i) the fair market value per share of Company Stock on the applicable Grant Date, and (ii) the fair market value per share of Company Stock on the applicable Exercise Date. For purposes of this Section 5.3, the fair market
value per share of Company Stock shall be the closing price on the last Business Day prior to the date of reference, or in the event that no sales take place on such date, the average of the closing high bid and low asked prices, in either case on
the principal national securities exchange on which the Company Stock is listed or admitted to trading, or if the Company Stock is not listed or admitted to trading on any national securities exchange, the last sale price reported on the National
Market System of the National Association of Securities Dealers Automated Quotation system (“NASDAQ”) on such date, or the average of the closing high bid and low asked prices of the Company Stock in the over-the-counter market reported on
NASDAQ on such date, as furnished to the Committee by any New York Stock Exchange member selected from time to time by the Committee for such purposes. If there is no bid or asked price reported on any such date, the fair market value shall be
determined by the Committee in accordance with the
 
 





  regulations promulgated under Section 2031 of the Code, or by any other appropriate method selected by the Committee.
 5.4               
Option Period.  Each Option granted to a Participant under the Plan shall expire on the earliest of (a) the last Exercise Date of the calendar year in which the Option was granted, (b) the
Participant’s voluntary withdrawal from the Plan following termination of employment, and (c) the date of the Participant’s termination of employment related to Cause, or the Exercise Date immediately following the Participant’s
termination of employment for any reason unrelated to Cause. In no event will the duration of an Option period exceed twenty-seven months (or such other applicable period permitted under Section 423(b)(7) of the Code) from the date on which such
Option is granted.
 5.5               
Exercise of Options.
 (a)    
Automatic Exercise.  Any Option granted to a Participant shall be exercised automatically on each Exercise Date during the calendar year of the Option’s Grant Date in whole or in part
such that the Participant’s accumulated Contributions as of such Exercise Date shall be applied to the purchase of the maximum number of whole shares of Company Stock that his Contributions will allow at the applicable Option price (determined
in accordance with Section 5.3), limited to the number of shares subject to such Option. In the event that the number of shares of Company Stock that may be purchased by all Participants in the Plan exceeds the number of shares then available for
issuance under the Plan, the Committee shall make a pro rata allocation of the available shares in as uniform a manner as it determines to be practicable and equitable. Any remaining Contributions in the Participant’s Account amounting to less
than the Option price of a whole share of Company Stock shall be carried forward and applied on the next Exercise Date; provided that, Contributions remaining after the last Exercise Date of the calendar year may be distributed to the Participant at
his election.
 (b)    
Nontransferability of Options.  During a Participant’s lifetime, Options held by such Participant shall be exercisable only by that Participant. No Option shall be transferable other than
by will or the laws of descent and distribution.
 (c)    
Effect of Termination of Employment.
 (i)         
Termination of Employment Related to Cause.  Upon termination of a Participant’s employment related to Cause, the Participant’s participation in the Plan also shall terminate. Any
unexpired Option he holds will expire as of the date of his termination of employment. Remaining contributions credited to his Account shall be distributed to the Participant as soon as administratively practicable following termination of
employment.
 (ii)        
Termination of Employment Due to Death.  In the event of the death of the Participant while employed, or during the period following his termination of employment for any reason unrelated to
Cause but prior to the next Exercise Date, the Participant’s estate shall have the right to elect by written notice to the
 
 





  Committee prior to the earlier of the expiration of sixty days commencing with the date of the Participant’s death and the Exercise Date next following
the date of the Participant’s death:
 (A)            To withdraw all of the Contributions then credited to the Participant’s Account under the Plan, or
 (B)            To allow any unexercised Option held by the Participant as of the date of his death to be exercised for the purchase of Company Stock on the Exercise
Date next following the date of the Participant’s death in accordance with Section 5.5(a), but only to the extent such Option was exercisable on the date of the Participant’s death, with any remaining Contributions credited to the
Participant’s Account being distributed to the Participant’s estate as soon as administratively practicable after such Exercise Date.
 In the event that no such written
election is timely and properly received by the Committee, all Contributions credited to the Participant’s Account shall be distributed to the Participant’s estate. In no event shall any Option be exercisable beyond the applicable exercise
period specified in Section 5.4 of the Plan.
 (iii)       
Other Termination of Employment.  Upon termination of a Participant’s employment for any reason unrelated to Cause or death, the Participant may at his election:
 (A)            Withdraw from the Plan pursuant to Section 4.5 and request the
return of the remaining Contributions then credited to his Account, or
 (B)            Continue participation in the Plan, subject to the provisions of Section 4.6, until the Exercise Date next following his date of termination of
employment for the limited purpose of allowing any unexpired Option he holds as of his termination of employment to be exercised automatically in accordance with Section 5.5(a) on the Exercise Date next following his termination of employment, but
only to the extent such Option was exercisable on the date of the Participant’s termination of employment, with any remaining Contributions credited to the Participant’s Account being distributed to the Participant as soon as
administratively practicable after such Exercise Date.
 (d)    
Leave of Absence.  A Participant on a leave of absence shall, subject to the election made by such Participant pursuant to Section 4.3 and subject to this Section 5.5(d), continue to be a
Participant in the Plan so long as such Participant is on continuous leave of absence. A Participant who has been on leave of absence for more than ninety days and who therefore is not an Employee for purposes of the Plan (unless the right to
reemployment is guaranteed by statute or contract) shall not be entitled to participate in any offering commencing on any Grant Date following the ninetieth day of such leave of absence. Notwithstanding any other provisions of the Plan, unless a
Participant on a leave of absence returns to eligible regular full-time or part-time employment with the Employer at the earlier of (i) the termination of such leave of
 
 





  absence, or (ii) the day after the ninetieth day of such leave of absence, such Participant’s employment shall be deemed to have terminated for purposes
of the Plan on whichever of such dates first occurs (unless the Participant’s right to reemployment is guaranteed by statute or contract).
 (e)    
Delivery of Stock.  As soon as administratively practicable after each Exercise Date, the Company or the Committee will deliver to each Participant, as applicable, certificates evidencing
shares of Company Stock purchased under this Plan.
 (f)     
Acceleration of Exercisability of Options Upon Occurrence of Certain Events.  In connection with any merger or consolidation in which the Company is not the surviving corporation and which
results in the holders of the outstanding voting securities of the Company (determined immediately prior to such merger or consolidation) owning less than a majority of the outstanding voting securities of the surviving corporation (determined
immediately following such merger or consolidation), or any sale or transfer by the Company of all or substantially all of its assets or any tender offer or exchange offer for or the acquisition, directly or indirectly, by any person or group of all
or a majority of the then-outstanding voting securities of the Company, all outstanding Options under the Plan shall become exercisable in full, notwithstanding any other provision of the Plan or of any outstanding Options granted thereunder, on and
after (i) the fifteenth day prior to the effective date of such merger, consolidation, sale, transfer or acquisition or (ii) the date of commencement of such tender offer or exchange offer, as the case may be. Notwithstanding the foregoing, in no
event shall any Option be exercisable after the date of termination of the exercise period of such Option specified in Section 5.4.
 (g)    
Registration, Listing and Qualification of Shares of Stock.  Each Option shall be subject to the requirement that if at any time the Board of Directors shall determine that the registration,
listing or qualification of shares of Company Stock covered thereby upon any securities exchange or under any federal or state law, or the consent or approval of any governmental regulatory body, is necessary or desirable as a condition of, or in
connection with, the granting of such option or the purchase of shares of Company Stock thereunder, no such Option may be exercised unless and until such registration, listing, qualification, consent or approval shall have been effected or obtained
free of any conditions not acceptable to the Board of Directors. The Employer may require that any person exercising an Option shall make such representations and agreements and furnish such information as it deems appropriate to assure compliance
with the foregoing or any other applicable legal requirement.
 
ARTICLE VI.  MISCELLANEOUS
 6.1               
Adjustments Upon Changes in Capitalization.  In the event of a reorganization, recapitalization, stock split, stock dividend, combination of shares, merger, consolidation, rights offering or
any other change in the corporate structure or shares of the Company, unless the Committee should determine otherwise, corresponding adjustments automatically shall be made to the number and kind of shares of Company Stock available for issuance
under this Plan, the number and kind of shares of Company
 
 





  Stock covered by outstanding Options under this Plan, and the exercise price per share for outstanding Options. In addition, the Committee may make such
other adjustments as it determines to be equitable. Any adjustments made pursuant to this Section 6.1 remain subject to the limitations of Section 423 of the Code (including its $25,000 annual limitations).
 6.2               
Approval of Shareholders.  The original adoption of the Plan was subject to the approval, within twelve months before or after the adoption of the Plan by the Board of Directors, by a majority
of the votes cast thereon by the stockholders of the Company at a meeting of stockholders duly called and held for such purpose or by unanimous written consent of such stockholders, and no Option granted hereunder was exercisable prior to such
approval. Such approval was obtained on October 9, 1997.
 6.3               
Amendment, Suspension and Termination.  The Board of Directors may at any time amend, suspend or terminate this Plan; provided, however, that the Board of Directors shall not increase the
maximum number of shares of Company Stock for which Options may be granted under the Plan except as provided in Section 6.1, without obtaining approval of the stockholders in the manner described in Section 6.2. The Plan will continue until
terminated by the Board of Directors or until all of the shares of Company Stock reserved for issuance under the Plan have been issued, whichever first occurs. No amendment, suspension or termination of the Plan may, without the consent of the
Participants then holding Options to purchase Company Stock, adversely affect the rights of such Participants under such Options.
 6.4               
Intent to Comply With Code Section 423.  It is intended that this Plan qualify as an “employee stock purchase plan” under Section 423 of the Code. The provisions of this Plan shall
be construed so as to extend and limit participation in a manner consistent with the requirements of that Section of the Code. In the event of an inconsistency between the Plan and Section 423 of the Code, the Plan shall be interpreted in a manner
which complies with the requirements of Section 423 of the Code and the regulations thereunder, without further act or amendment by the Company or the Board of Directors unless otherwise required pursuant to Section 6.3 of this Plan.
 6.5               
Equal Rights and Privileges.  All Participants granted Options under this Plan shall have equal rights and privileges within the meaning of Section 423(b)(5) of the Code and the regulations
thereunder. The provisions applying to one Option granted on a Grant Date must apply in the same manner to all other Options granted on such Grant Date.
 6.6               
Use of Funds.  All Contributions received and held by the Employer under this Plan may be used by the Employer for any corporate purpose and the Employer shall not be obligated to segregate
such Contributions.
 6.7               
Withholding.  An Employee granted Options under this Plan shall be conclusively deemed to have authorized the Company and his Employer to withhold from the salary, commissions or other
compensation of such Employee funds in amounts or property (including Company Stock) in value equal to any federal, state and local
 
 





  income, employment or other withholding taxes applicable to the income recognized by such Employee and attributable to the Options as, when and to the
extent, if any, required by law; provided; however, that, in lieu of the withholding of federal, state and local taxes as herein provided, the Company may require the Participant (or his estate pursuant to Section 5.5(c)(ii)) to pay to the Company,
upon its demand, such amount as may be requested by the Company for the purpose of satisfying taxes, including taxes that may be owed by the Participant due to the disposition of Company Stock by the Participant prior to the expiration of the
holding periods described in Section 423(a) of the Code. If the amount requested is not paid, the Company may refuse to issue the shares of Company Stock attributable to the Option’s exercise.
 6.8               
Effect of Plan.  This Plan shall be binding upon each Participant and his successors, including, without limitation, such Participant’s estate and the executors, administrators or
trustees thereof, heirs and legatees, and any receiver, trustee in bankruptcy or representative of creditors of such Participant.
 6.9               
No Employment Rights.  Nothing in this Plan or in any Option granted pursuant to the Plan shall be construed as a contract of employment between the Employer and any employee, or as a right of
any employee to continue in the employ of the Employer, or as a limitation of the right of the Employer to discharge any of its employees, with or without cause.
 6.10             
Governing Law.  This Plan and all rights and obligations hereunder shall be construed in accordance with and governed by the laws of the State of North Carolina, except to the extent such laws
are preempted by the laws of the United States.
 6.11             
Other Actions.  Nothing contained in the Plan shall be construed to limit the authority of the Company to exercise its corporate rights and powers, including, but not by way of limitation, the
right of the Company to grant or assume options for proper corporate purposes other than under the Plan with respect to any employee or other person, firm, corporation or association.