exv10w23



 





Exhibit 10.23




FORM OF




ECHOSTAR HOLDING CORPORATION




2008 EMPLOYEE STOCK PURCHASE PLAN





	1.	 	PURPOSE. The EchoStar Holding Corporation 2008 Employee Stock Purchase Plan (the “Plan”) is
established to provide eligible employees of EchoStar Holding Corporation, a Nevada
Corporation, and any successor corporation thereto (collectively, “EHC”), and any current or
future parent corporation or subsidiary corporations of EHC which the Board of Directors of
EHC (the “Board”) determines should be included in the Plan (collectively referred to as the
“Company”), with an opportunity to acquire a proprietary interest in the Company by the
purchase of common stock of EHC (NASDAQ trading symbol “___”). EHC and any parent or
subsidiary corporation designated by the Board as a corporation included in the Plan shall be
individually referred to herein as a “Participating Company.” The Board shall have the sole
and absolute discretion to determine from time to time what parent corporations and/or
subsidiary corporations shall be Participating Companies. For purposes of the Plan, a parent
corporation and a subsidiary corporation shall be as defined in sections 424(e) and 424(f),
respectively, of the Internal Revenue Code of 1986, as amended (the “Code”). The Company
intends that the Plan shall qualify as an “employee stock purchase plan” under section 423 of
the Code (including any amendments or replacements of such section), and the Plan shall be so
construed. Any term not expressly defined in the Plan but defined for purposes of section 423
of the Code shall have the same definition herein.






	2.	 	ADMINISTRATION. The Plan shall be administered by the Board and/or by a duly appointed
committee or representative of the Board having such powers as shall be specified by the
Board. Any subsequent references to the Board shall also mean the committee or representative
if a committee or representative has been appointed. All questions of interpretation of the
Plan shall be determined by the Board and shall be final and binding upon all persons having
an interest in the Plan. Subject to the provisions of the Plan, the Board shall determine all
of the relevant terms and conditions of the Plan; provided, however, that all Participants
shall have the same rights and privileges within the meaning of section 423(b)(5) of the Code.
All expenses incurred in connection with administration of the Plan shall be paid by the
Company.






	3.	 	SHARE RESERVE. The maximum number of shares which may
be issued under the Plan shall be 360,000 shares of EHC’s authorized but unissued Class A Common Stock or Class A Common Stock
which are treasury shares (the “Shares”).






	4.	 	ELIGIBILITY. Any full-time employee of a Participating Company is eligible to participate in
the Plan after completion of one entire calendar quarter of employment, except employees who
own or hold options to purchase or who, as a result of participation in the Plan, would own or
hold options to purchase, stock of the Company possessing five percent (5%) or more of the
total combined voting power or value of all classes of stock of the Company within the meaning
of Section 423(b)(3) of the Code. A full-time employee is defined as one who is regularly
scheduled to work more than 20 hours per week. Notwithstanding anything herein to the




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	 	 	contrary, any individual performing services for a Participating Company solely through a leasing
agency or employment agency shall not be deemed an “employee” of such Participating Company. In
certain circumstances, eligibility may be restricted pursuant to a withdrawal under Section 10(d)
of the Plan.






	5.	 	OFFERING DATES.






	 	(a)	 	OFFERING PERIODS. Except as otherwise set forth below, the Plan shall initially be
implemented by offerings (individually, an “Offering”) of two (2) years duration (an “Offering
Period”). The first Offering will commence on [___, 2008] and subsequent Offerings
would commence every two years thereafter until the Plan terminates, unless earlier modified
in the Board’s discretion. The first day of an Offering Period shall be the “Offering Date”
for such Offering Period. In the event the Offering Date would fall on a holiday or weekend,
the Offering Date shall instead be the first business day after such day. Notwithstanding the
foregoing, the Board may establish a different term for one or more Offerings and/or different
commencing and/or ending dates for such Offerings. Eligible employees may not participate in
more than one Offering at a time.
	 
	 	(b)	 	PURCHASE PERIODS. Each Offering Period shall initially consist of eight (8) purchase periods
of three (3) months duration (individually, a “Purchase Period”). The last day of the
Purchase Period shall be the “Purchase Date” for such Purchase Period. A Purchase Period
commencing on January 1 shall end on March 31. A Purchase Period commencing on April 1 shall
end on June 30. A Purchase Period commencing on July 1 shall end on September 30. A Purchase
Period commencing on October 1 shall end on December 31. In the event the Purchase Date would
fall on a holiday or weekend, the Purchase Date shall instead be the last business day prior
to such day. Notwithstanding the foregoing, the Board may establish a different term for one
or more Purchase Periods and/or different commencement dates and/or Purchase Dates for such
Purchase Periods. An employee who becomes eligible to participate in an Offering after the
initial Purchase Period has commenced shall not be eligible to participate in such Purchase
Period but may participate in any subsequent Purchase Period during that Offering Period
provided such employee is still eligible to participate in the Plan as of the commencement of
any such subsequent Purchase Period.
	 
	 	(c)	 	GOVERNMENTAL APPROVAL; STOCKHOLDER APPROVAL. Notwithstanding any other provision of this
Plan to the contrary, all transactions pursuant to the Plan shall be subject to (i) obtaining
all necessary governmental approvals and/or qualifications for the sale and/or issuance of the
Shares (including compliance with the Securities Act of 1933 and any applicable state
securities laws), and (ii) obtaining stockholder approval of the Plan. Notwithstanding the
foregoing, stockholder approval shall not be necessary in order to commence the Plan’s initial
Offering Period; provided, however, that the purchase of Shares at the end of such Offering
Period shall be subject to obtaining stockholder approval of the Plan.





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	6.	 	PARTICIPATION IN THE PLAN.






	 	(a)	 	INITIAL PARTICIPATION. An eligible employee shall become a Participant on the first
Offering Date after satisfying the eligibility requirements and delivering to the Company’s
payroll office (at Company headquarters) not later than the close of business for such payroll
office on the last business day before such Offering Date (the “Subscription Date”) a
subscription agreement indicating the employee’s election to participate in the Plan and
authorizing payroll deductions. An eligible employee who does not deliver a subscription
agreement to the Company’s payroll office on or before the Subscription Date shall not
participate in the Plan for the initial Purchase Period or for any subsequent Purchase Period
unless such employee subsequently enrolls in the Plan by filing a subscription agreement with
the Company by the last business day before the commencement of a subsequent Purchase Period or
Offering Date. EHC may, from time to time, change the Subscription Date as deemed advisable by
EHC in its sole discretion for proper administration of the Plan.
	 
	 	(b)	 	CONTINUED PARTICIPATION. A Participant shall automatically participate in the Purchase
Period commencing immediately after the first Purchase Date of the initial Offering Period in
which the Participant participates, and all subsequent Purchase Periods within that Offering,
until such time as such Participant (i) ceases to be eligible as provided in paragraph 4, (ii)
withdraws from the Offering or Plan pursuant to paragraphs 10(a) or 10(b) or (iii) terminates
employment as provided in paragraph 11. Similarly, except as provided in the preceding
sentence, a Participant shall automatically participate in the Offering Period commencing
immediately after the last Purchase Date of the prior Offering Period in which the Participant
participates, and all subsequent Offering Periods pursuant to this Plan. However, a
Participant may deliver a subscription agreement with respect to a subsequent Purchase or
Offering Period if the Participant desires to change any of the Participant’s elections
contained in the Participant’s then effective subscription agreement.






	7.	 	PURCHASE PRICE. The purchase price at which Shares may be acquired in a given Purchase
Period pursuant to the Plan (the “Offering Exercise Price”) shall be set by the Board;
provided, however, that the per share Offering Exercise Price shall not be less than
eighty-five percent (85%) of the lesser of (a) the per share fair market value of the Shares
on the Offering Date of the Offering Period of which the Purchase Period is a part, or (b) the
per share fair market value of the Shares on the Purchase Date for such Purchase Period.
Unless otherwise provided by the Board prior to the commencement of an Offering Period, the
Offering Exercise Price for each Purchase Period in that Offering Period shall be eighty-five
percent (85%) of the fair market value of the Shares on the given Purchase Date. The fair
market value of the Shares on the applicable dates shall be the closing price quoted on the
National Association of Securities Dealers Automated Quotation System for the Purchase Date
(or the average of the closing bid and asked prices), or as reported on such other stock
exchange or market system if the Shares are traded on such other exchange or system instead,
or as determined by the Board if the Shares are not so reported.






	8.	 	PAYMENT OF PURCHASE PRICE. Shares which are acquired pursuant to the Plan may be paid for
only by means of payroll deductions from the Participant’s Compensation accumulated during the
Offering Period. For purposes of the Plan, a Participant’s “Compensation” with respect to an
Offering (a) shall include all wages, salaries, commissions and bonuses after deduction for
any contributions to any plan maintained by a Participating Company and described in Section
401(k) or Section 125 of the Code, and (b) shall not include occasional awards such as EHC
Launch Bonus awards, stock option exercise compensation or any other payments not specifically
referenced in (a). Except as set forth below, the deduction amount to




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	 	 	be withheld from a Participant’s Compensation during each pay period shall be determined by the
Participant’s subscription agreement, and the amount of such payroll deductions shall be given the
lowest priority so that all other required and voluntary payroll deductions from a Participant’s
Compensation are withheld prior to subscription agreement amounts.






	 	(a)	 	LIMITATIONS ON PAYROLL WITHHOLDING. The amount of payroll withholding with respect to the
Plan for any Participant during any Offering Period shall be elected by the Participant and
shall be stated as a dollar amount. Amounts withheld shall be reduced by any amounts
contributed by the Participant and applied to the purchase of Company stock pursuant to any
other employee stock purchase plan qualifying under section 423 of the Code.
	 
	 	(b)	 	PAYROLL WITHHOLDING. Payroll deductions shall commence on the first pay date beginning after
the Offering Date, as designated by EHC, and shall continue to the last pay date before the
end of the Offering Period, as designated by EHC, unless sooner altered or terminated as
provided in the Plan.
	 
	 	(c)	 	PARTICIPANT ACCOUNTS. Individual accounts shall be maintained for each Participant. All
payroll deductions from a Participant’s Compensation shall be credited to such account and
shall be deposited with the general funds of the Company. All payroll deductions received or
held by the Company may be used by the Company for any corporate purpose.
	 
	 	(d)	 	NO INTEREST PAID. Interest shall not be paid on sums withheld from a Participant’s
Compensation.
	 
	 	(e)	 	PURCHASE OF SHARES. On each Purchase Date of an Offering Period, each Participant whose
participation in the Offering has not terminated on or before such Purchase Date shall
automatically acquire the number of Shares arrived at by dividing the total amount of the
Participant’s accumulated payroll deductions for the Purchase Period by the Offering Exercise
Price. No shares shall be purchased on a Purchase Date on behalf of a Participant whose
participation in the Offering or the Plan has terminated on or before such Purchase Date.
	 
	 	(f)	 	RETURN OF CASH BALANCE. Any cash balance remaining in the Participant’s account shall be
refunded to the Participant as soon as practicable after the Purchase Date. Any cash balance
remaining upon a Participant’s termination of participation in the Plan or termination of the
Plan itself shall be refunded as soon as practicable after such event.
	 
	 	(g)	 	TAX WITHHOLDING. At the time the Shares are purchased, in whole or in part, or at the time
some or all of the Shares are disposed of, the Participant shall make adequate provision for
the foreign, federal and state tax withholding obligations of the Company, if any, which arise
upon the purchase of Shares and/or upon disposition of Shares, respectively. The Company may,
but shall not be obligated to, withhold from the Participant’s Compensation the amount
necessary to meet such withholding obligations.





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	 	(h)	 	COMPANY ESTABLISHED PROCEDURES. The Board may, from time to time, establish (i) a minimum
required withholding amount for participation in an Offering, (ii)
limitations on the frequency and/or number of changes in the amount withheld during an Offering;
(iii) an exchange ratio applicable to amounts withheld in a currency other than U.S. dollars,
(iv) payroll withholding in excess of or less than the amount designated by a Participant in
order to adjust for delays or mistakes in the Company’s processing of subscription agreements,
and/or (v) such other limitations or procedures as deemed advisable by the Company in the
Company’s sole discretion which are consistent with the Plan and in accordance with the
requirements of Section 423 of the Code. Notice of new or amended procedures pursuant to this
section shall be communicated to all eligible participants in a manner reasonably determined by
the Board to reach all participants in a cost efficient manner.






	9.	 	LIMITATIONS ON PURCHASE OF SHARES: RIGHTS AS A STOCKHOLDER.






	 	(a)	 	FAIR MARKET VALUE LIMITATION. Notwithstanding any other provision of the Plan, no
Participant shall be entitled to purchase Shares under the Plan (or any other employee stock
purchase plan which is intended to meet the requirements of section 423 of the Code sponsored
by EHC or a parent or subsidiary corporation of EHC) in an amount which exceeds $25,000 in
fair market value, which fair market value is determined for Shares purchased during a given
Offering Period as of the Offering Date for such Offering Period (or such other limit as may
be imposed by the Code), for any calendar year in which the Participant participates in the
Plan (or any other employee stock purchase plan described in this sentence).
	 
	 	(b)	 	PRO RATA ALLOCATION. In the event the number of Shares which might be purchased by all
Participants in the Plan exceeds the number of Shares available in the Plan, the Company shall
make a pro rata allocation of the remaining Shares in as uniform a manner as shall be
practicable and as the Company shall determine to be equitable. Any cash balance remaining
after such allocation shall be refunded to Participants as soon as practicable.
	 
	 	(c)	 	RIGHTS AS A STOCKHOLDER AND EMPLOYEE. A Participant shall have no rights as a stockholder by
virtue of the Participant’s participation in the Plan until the date of issuance of stock for
the Shares being purchased pursuant to the Plan. Moreover, Shares shall not be issued and a
Participant shall not be permitted to purchase Shares unless and until such Shares have been
registered under the Securities Act of 1933 on an effective S-8 registration and any
applicable registration requirements under the National Association of Securities Dealers
rules are satisfied. No adjustment shall be made for cash dividends or distributions or other
rights for which the record date is prior to the date such stock is issued. Nothing herein
shall confer upon a Participant any right to continue in the employ of the Company or
interfere in any way with any right of the Company to terminate the Participant’s employment
at any time.
	 
	 	(d)	 	USE OF A CAPTIVE STOCK BROKER. In order to reduce paperwork and properly track and report
Participant’s acquisition and disposition of Shares purchased pursuant to the Plan, the
Company may, in its discretion, designate one or more stock brokers as a “captive” broker
(“Broker”) for receiving Participants’ shares and maintaining individual accounts for each
Participant. The Company and the Broker may establish such account procedures and
restrictions as are necessary to carry out their respective functions and properly administer
the Plan (see, for example, Section 19).





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	 	(e)	 	RIGHT TO ISSUANCE OF SHARE CERTIFICATES. Initially, Participants will not receive share
certificates from EHC representing the Shares purchased pursuant to the Plan. Instead, the
Company shall issue one or share certificate to the Broker for all Shares purchased on a
Purchase Date, followed by an electronic allocation by the Broker among all Participants
according to their respective contributions. A Participant may obtain a share certificate for
his or her actual share amount only from the Broker according to such Broker’s procedures.
This limitation may be modified by the Board in its discretion at any time.






	10.	 	WITHDRAWAL.






	 	(a)	 	WITHDRAWAL FROM AN OFFERING. A Participant may not withdraw from an Offering and stop
payroll deductions during a Purchase Period. Any notice of withdrawal submitted by a
Participant (on a form provided by the Company for such purpose) to EHC’s payroll office after
the commencement of a Purchase Period but prior to a Purchase Date shall only be effective for
the next subsequent Purchase Period. No cash refunds of payroll deduction amounts from a
Participant’s account shall be made prior to the next scheduled Purchase Period. After the
next scheduled Purchase Period, refund of any excess dollar amount(s) in a Participant’s
account will be made in accordance with section 8(f) of this Plan. Withdrawals made after a
Purchase Date for a Purchase Period shall not affect Shares acquired by the Participant on
such Purchase Date. A Participant who withdraws from an Offering for one or more Purchase
Periods may not resume participation in the Plan during the same Purchase Period, but may
participate in any subsequent Offering, or in any subsequent Purchase Period within the same
Offering, by again satisfying the requirements of paragraphs 4 and 6(a) above.
	 
	 	(b)	 	WITHDRAWAL FROM THE PLAN. A Participant may voluntarily withdraw from the Plan by signing a
written notice of withdrawal on a form provided by the Company for such purpose and delivering
such notice to the Company’s payroll office. The effect of withdrawal from the Plan shall be
in accordance with Section 10(a) above.
	 
	 	(c)	 	RETURN OF PAYROLL DEDUCTIONS. Upon withdrawal from an Offering or the Plan pursuant to
paragraphs 10(a) or 10(b), respectively, the withdrawn Participant’s accumulated payroll
deductions will first be applied toward the purchase of Shares at the Purchase Date and any
balance remaining shall be returned as soon as practicable after the withdrawal, in accordance
with Section 8(f) of this Plan. The Participant’s interest in the Offering and/or the Plan,
as applicable, shall terminate.
	 
	 	(d)	 	PARTICIPATION FOLLOWING WITHDRAWAL. An employee who is also an officer or director of the
Company subject to Section 16 of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), and who is deemed to “cease participation” in the Plan within the meaning of
Rule 16b-3 promulgated under the Exchange Act and amended from time to time or any successor
rule or regulation (“Rule 16b-3”) as a consequence of his or her withdrawal from an Offering
pursuant to paragraph 10(a) above or withdrawal from the Plan
pursuant to paragraph 10(b) above shall not again participate in the Plan for at least six
months after the date of such withdrawal.





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	 	(e)	 	MODIFICATION OF WITHDRAWAL RIGHTS. The Company may, from time to time, establish a procedure
pursuant to which a Participant may elect (i) to withdraw from the Offering or the Plan during
a Purchase or Offering Period pursuant to this paragraph 10, and (ii) to increase, decrease,
or cease payroll deductions from his or her Compensation for such Offering during the time
such election is in effect. If established, any such election shall be made in writing on a
form provided by the Company for such purpose and must be delivered to the Company within a
reasonable period of time prior to the effective date thereof.






	11.	 	TERMINATION OF EMPLOYMENT. Termination of a Participant’s employment with the Company for
any reason, including retirement, disability or death or the failure of a Participant to
remain an employee eligible to participate in the Plan, shall terminate the Participant’s
participation in the Plan immediately. In such event, the payroll deductions credited to the
Participant’s account since the last Purchase Date shall, as soon as practicable, be returned
to the Participant or, in the case of the Participant’s death, to the Participant’s legal
representative, and all of the Participant’s rights under the Plan shall terminate. Interest
shall not be paid on sums returned to a Participant pursuant to this paragraph 11. EHC may
establish a date which is a reasonable number of days prior to the Purchase Date as a cutoff
for return of a Participant’s payroll deductions in the form of cash. After the cutoff date,
Shares will be purchased for the terminated employee in accordance with paragraph 10(c),
above. A Participant whose participation has been so terminated may again become eligible to
participate in the Plan by again satisfying the requirements of paragraphs 4 and 6(a) above.






	12.	 	TRANSFER OF CONTROL. A “Transfer of Control” shall be deemed to have occurred in the event
any of the following occurs with respect to EHC:






	 	(a)	 	a merger or consolidation in which EHC is not the surviving corporation;
	 
	 	(b)	 	a reverse triangular merger or consolidation in which EHC is the surviving corporation where
the stockholders of EHC before such merger or consolidation do not retain, directly or
indirectly, at least a majority of the beneficial interest in the voting stock of EHC;
	 
	 	(c)	 	the sale, exchange, or transfer of all or substantially all of EHC’s assets (other than a
sale, exchange, or transfer to one (1) or more corporations where the stockholders of EHC
before the sale, exchange, or transfer retain, directly or indirectly, at least a majority of
the beneficial interest in the voting stock of the corporation(s) to which the assets were
transferred).






	 	 	In the event of a Transfer of Control, the Board, in its sole discretion, may arrange with the
surviving, continuing, successor, or purchasing corporation, as the case may be, that such
corporation assume the Company’s rights and obligations under the Plan. All Purchase Rights shall
terminate effective as of the date of the Transfer of Control to the extent that the Purchase Right
is neither exercised as of the date of the Transfer of Control nor assumed by the surviving,
continuing, successor, or purchasing corporation, as the case may be.




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	13.	 	CAPITAL CHANGES. In the event that the Board determines that any dividend or other
distribution (whether in the form of cash, shares, other securities or other property),
recapitalization, stock split, reverse stock split, reorganization, merger, consolidation,
split-up, spin-off, combination, repurchase or exchange of shares or other securities of the
Company, issuance of warrants or other rights to purchase shares or other securities of the
Company or other similar corporate transaction or event affects the Shares such that an
adjustment is determined by the Committee to be appropriate in order to prevent dilution or
enlargement of the benefits or potential benefits intended to be made available under the
Plan, then the Committee shall, in such manner as it may deem equitable, adjust any or all of
(a) the Offering Exercise Price, (b) the number of shares subject to purchase by Participants,
and (c) the Plan’s share reserve amount.






	14.	 	NON-TRANSFERABILITY. Prior to a Purchase Date, a Participant’s rights under the Plan may not
be transferred in any manner otherwise than by will or the laws of descent and distribution
and shall be exercisable during the lifetime of the Participant only by the Participant.
Subsequent to a Purchase Date, a Participant shall be allowed to sell or otherwise dispose of
the Shares in any manner that he or she deems fit. However, the Company, in its absolute
discretion, may impose such restrictions on the transferability of Shares purchased by a
Participant pursuant to the Plan as it deems appropriate and any such restriction may be
placed on the certificates evidencing such Shares (see also Sections 9(d) and 19).






	15.	 	REPORTS. Each Participant shall receive, within a reasonable period after the Purchase Date,
a report of such Participant’s account setting forth the total payroll deductions accumulated,
the number of Shares purchased, the fair market value of such Shares, the date of purchase and
the remaining cash balance to be refunded or retained in the Participant’s account pursuant to
paragraph 8(f) above, if any. Each Participant who acquires shares pursuant to the Plan shall
be provided information concerning the Company equivalent to that information generally made
available to the Company’s common stockholders.






	16.	 	PLAN TERM. This Plan shall continue until terminated by the Board or until all of the Shares
reserved for issuance under the Plan have been issued, whichever shall first occur.






	17.	 	RESTRICTIONS ON ISSUANCE OF SHARES. The issuance of shares under the Plan shall be subject
to compliance with all applicable requirements of federal or state law with respect to such
securities. A Purchase Right may not be exercised if the issuance of shares upon such
exercise would constitute a violation of any applicable federal or state securities laws or
other law or regulations. In addition, no Purchase Right may be exercised unless (i) a
registration statement under the Securities Act of 1933, as amended, shall at the time of
exercise of the Purchase Right be in effect with respect to the shares issuable upon exercise
of the Purchase Right, or (ii) in the opinion of legal counsel to the Company, the shares
issuable upon exercise of the Purchase Right may be issued in accordance with the terms of an
applicable exemption from the registration requirements of said Act. As a condition to the
exercise of a Purchase Right, the Company may require the Participant to satisfy any
qualifications that may be necessary or appropriate to evidence compliance with any applicable
law or regulation, and to make any representation or warranty with respect thereto as may be
requested by the Company.




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	18.	 	LEGENDS. The Company may at any time place legends or other identifying symbols referencing
any applicable federal and/or state securities restrictions or any provision(s) convenient in
the administration of the Plan on some or all of the certificates representing shares of stock
issued under the Plan. The Participant shall, at the request of the Company, promptly present
to the Company any and all certificates representing shares acquired pursuant to a Purchase
Right in the possession of the Participant in order to carry out the provisions of this
paragraph. Unless otherwise specified by the Company, legends placed on such certificates may
include but shall not be limited to any legend required to be placed thereon by the Colorado
Secretary of State.






	19.	 	NOTIFICATION OF SALE OF SHARES. The Company may require the Participant to give the Company
prompt notice of any disposition of Shares acquired under the Plan within two years from the
date of commencement of an Offering Period or one year from the Purchase Date. The Company
may direct that the certificates evidencing Shares acquired by the Participant refer to such
requirement to give prompt notice of disposition. Additionally, the Company and the Broker
may impose such restrictions or procedures related to transfer of shares acquired under the
Plan as are necessary for the Company to obtain sufficient notice of disposition, in order to
comply with governmental requirements related to Form W-2 reporting, payroll tax withholding,
employment tax liability and corporate income taxes.






	20.	 	AMENDMENT OR TERMINATION OF THE PLAN. The Board may at any time amend or terminate the Plan,
except that such amendment or termination shall not affect Shares purchased under the Plan
(except as may be necessary to qualify the Plan as an employee stock purchase plan pursuant to
section 423 of the Code or to obtain qualification or registration of the Shares under
applicable federal or state securities laws). In addition, an amendment to the Plan must be
approved by the stockholders of the Company within twelve (12) months of the adoption of such
amendment if such amendment would authorize the sale of more shares than are authorized for
issuance under the Plan or would change the definition of the corporations that may be
designated by the Board as Participating Companies. Furthermore, the approval of the
Company’s stockholders shall be sought for any amendment to the Plan for which the Board deems
stockholder approval necessary in order to comply with Rule 16b-3 promulgated under Section 16
of the Exchange Act.




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