Attached files
file | filename |
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EX-12.1 - EX-12.1 - CIENA CORP | w80261exv12w1.htm |
EX-31.2 - EX-31.2 - CIENA CORP | w80261exv31w2.htm |
EX-31.1 - EX-31.1 - CIENA CORP | w80261exv31w1.htm |
EX-32.1 - EX-32.1 - CIENA CORP | w80261exv32w1.htm |
EX-21.1 - EX-21.1 - CIENA CORP | w80261exv21w1.htm |
EX-23.1 - EX-23.1 - CIENA CORP | w80261exv23w1.htm |
EX-32.2 - EX-32.2 - CIENA CORP | w80261exv32w2.htm |
EX-10.24 - EX-10.24 - CIENA CORP | w80261exv10w24.htm |
EX-10.23 - EX-10.23 - CIENA CORP | w80261exv10w23.htm |
EXCEL - IDEA: XBRL DOCUMENT - CIENA CORP | Financial_Report.xls |
10-K - FORM 10-K - CIENA CORP | w80261e10vk.htm |
Exhibit 10.11
AMENDED AND RESTATED CIENA CORPORATION
2003 EMPLOYEE STOCK PURCHASE PLAN
2003 EMPLOYEE STOCK PURCHASE PLAN
TABLE OF CONTENTS
Page | ||||
1. SHARES SUBJECT TO THE PLAN |
1 | |||
2. ADMINISTRATION |
1 | |||
3. INTERPRETATION |
1 | |||
4. ELIGIBLE EMPLOYEES |
1 | |||
5. PARTICIPATION IN THE PLAN |
2 | |||
6. PAYROLL DEDUCTIONS |
2 | |||
7. RECORD OF PAYROLL DEDUCTIONS |
2 | |||
8. OFFERING AND PURCHASE PERIODS |
3 | |||
9. RIGHTS TO PURCHASE COMMON STOCK; PURCHASE PRICE |
3 | |||
10. TIMING OF PURCHASE; PURCHASE LIMITATION |
3 | |||
11. ISSUANCE OF STOCK CERTIFICATES |
4 | |||
12. WITHHOLDING OF TAXES |
4 | |||
13. ACCOUNT STATEMENTS |
4 | |||
14. PARTICIPATION ADJUSTMENT |
5 | |||
15. CHANGES IN ELECTIONS TO PURCHASE |
5 | |||
16. TERMINATION OF EMPLOYMENT |
5 | |||
17. RETIREMENT |
5 | |||
18. LAY-OFF, AUTHORIZED LEAVE OF ABSENCE OR DISABILITY |
6 | |||
19. DEATH |
7 | |||
20. TERMINATION OF PARTICIPATION |
7 | |||
21. ASSIGNMENT |
7 |
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Page | ||||
22. APPLICATION OF FUNDS |
7 | |||
23. NO RIGHT TO CONTINUED EMPLOYMENT |
8 | |||
24. AMENDMENT OF PLAN |
8 | |||
25. EFFECTIVE DATE; TERM AND TERMINATION OF THE PLAN |
8 | |||
26. EFFECT OF CHANGES IN CAPITALIZATION |
8 | |||
(a) Changes in Stock |
8 | |||
(b) Reorganization in Which the Company Is the Surviving Corporation |
9 | |||
(c) Reorganization in Which the Company Is Not the Surviving Corporation or Sale of Assets or Stock |
9 | |||
(d) Adjustments |
9 | |||
(e) No Limitations on Company |
10 | |||
27. GOVERNMENTAL REGULATION |
10 | |||
28. STOCKHOLDER RIGHTS |
10 | |||
29. RULE 16B-3 |
10 | |||
30. PAYMENT OF PLAN EXPENSES |
10 |
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AMENDED AND RESTATED CIENA CORPORATION
2003 EMPLOYEE STOCK PURCHASE PLAN
2003 EMPLOYEE STOCK PURCHASE PLAN
The Board of Directors of Ciena Corporation (the Company) has adopted this Amended and
Restated 2003 Employee Stock Purchase Plan (the Plan) to enable eligible employees of the Company
and its participating Affiliates (as defined below), through payroll deductions, to purchase shares
of the Companys common stock, par value $0.01 per share (the Common Stock). The Plan is for
the benefit of the employees of the Company and any participating Affiliates. The Plan is intended
to benefit the Company by increasing the employees interest in the Companys growth and success
and encouraging employees to remain in the employ of the Company or its participating Affiliates.
The provisions of the Plan are set forth below:
1. SHARES SUBJECT TO THE PLAN.
Subject to adjustment as provided in Section 26 below, the aggregate number of shares of
Common Stock that may be made available for purchase by participating employees under the Plan is
3,571,428 shares; provided, that, beginning on December 31, 2005 and on each December 31
thereafter (the Determination Date) there shall be added to the Plan an additional 571,428 shares;
and provided further that, the number of shares so added on the Determination Date each year shall
be reduced to the extent necessary that the total number of shares available for purchase under the
Plan shall not at any time exceed 3,571,428 shares. Share amounts in Section 1 of
the Plan have been adjusted to reflect the Companys 1-for-7 reverse stock split on September 22,
2006. The shares issuable under the Plan may, in the discretion of the Board of Directors of the
Company (the Board), be authorized but unissued shares, treasury shares or issued and outstanding
shares that are purchased in the open market.
2. ADMINISTRATION.
The Plan shall be administered under the direction of the Compensation Committee of the Board
(the Committee). No member of the Board or the Committee shall be liable for any action or
determination made in good faith with respect to the Plan.
3. INTERPRETATION.
It is intended that the Plan will meet the requirements for an employee stock purchase plan
under Section 423 of the Internal Revenue Code of 1986 (the Code), and it is to be so applied and
interpreted. Subject to the express provisions of the Plan, the Committee shall have authority to
interpret the Plan, to prescribe, amend and rescind rules relating to it, and to make all other
determinations necessary or advisable in administering the Plan, all of which determinations will
be final and binding upon all persons.
4. ELIGIBLE EMPLOYEES.
Any employee of the Company and its designated Affiliates as determined by the Board of
Directors may participate in the Plan, except the following, who are ineligible to participate:
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(a) an employee who has been employed by the Company or any of its participating Affiliates for
less than three months as of the beginning of an Offering Period (as defined in Section 7 below);
(b) an employee whose customary employment is for less than five months in any calendar year; (c)
an employee whose customary employment is less than 21 hours per week; and (d) an employee who,
after exercising his or her rights to purchase shares under the Plan, would own shares of Common
Stock (including shares that may be acquired under any outstanding options) representing five
percent or more of the total combined voting power of all classes of stock of the Company. The
term participating Affiliate means any company or other trade or business that is a subsidiary of
the Company (determined in accordance with the principles of Sections 424(e) and (f) of the Code
and the regulations thereunder). The Board may at any time in its sole discretion, if it deems it
advisable to do so, terminate the participation of the employees of a particular participating
Affiliate. The Committee may at any time in its sole discretion, if it deems it advisable to do
so, restrict the participation of officers, highly compensated employees or such other employees
whose principal duties consist of supervising the work of other employees.
5. PARTICIPATION IN THE PLAN.
An eligible employee may become a participating employee in the Plan by completing an election
to participate in the Plan on a form provided by the Company and submitting that form to the
Benefits Department of the Company. The form will authorize payroll deductions (as provided in
Section 6 below) and authorize the purchase of shares of Common Stock for the employees account in
accordance with the terms of the Plan. Enrollment will become effective upon the first day of the
first Offering Period. Enrollment in this Plan is limited to one Offering Period at a time.
6. PAYROLL DEDUCTIONS.
At the time an eligible employee submits his or her election to participate in the Plan (as
provided in Section 5 above), the employee shall elect to have deductions made from his or her pay,
on each pay day following his or her enrollment in the Plan, and for as long as he or she shall
participate in the Plan. The Committee shall have discretion to establish limitations on the
amount of any such deductions. As determined by the Committee, such deductions may be either as a
percentage or as a maximum dollar amount, but in either case such deductions shall not exceed ten
percent (10%) of such employees base salary allocable to the Offering Period. The deductions will
be credited to the participating employees account under the Plan. An employee may not during any
Offering Period change his or her amount or percentage of payroll deduction for that Offering
Period, nor may an employee withdraw any contributed funds, other than in accordance with Sections
15 through 20 below.
7. RECORD OF PAYROLL DEDUCTIONS.
The Company and participating Affiliates will cause to be maintained a record of amounts
credited to each participating employee authorizing a payroll deduction pursuant to
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Section 6. The Company will not credit interest on the balance of the employees accounts during
the Offering Period.
8. OFFERING AND PURCHASE PERIODS.
The Offering Periods and Purchase Periods shall be determined by the Committee.
9. RIGHTS TO PURCHASE COMMON STOCK; PURCHASE PRICE.
Rights to purchase shares of Common Stock will be deemed granted to participating employees as
of the first trading day of each Offering Period. The purchase price of each share of Common Stock
(the Purchase Price) shall be the lesser of 85 percent of the fair market value of the Common
Stock (i) on the trading day immediately preceding the first day of the Offering Period or (ii) on
the last trading day of the Purchase Period, unless the Purchase Price is otherwise established by
the Committee; provided that in no event shall the Purchase Price be less than the amount
determined pursuant to subparagraphs (i) and (ii) above, or the par value of the Common Stock For
purposes of the Plan, fair market value means the value of each share of Common Stock subject to
the Plan determined as follows: if on the determination date the shares of Common Stock are listed
on an established national or regional stock exchange, are admitted to quotation on the National
Association of Securities Dealers Automated Quotation System, or are publicly traded on an
established securities market, the fair market value of the shares of Common Stock shall be the
closing price of the shares of Common Stock on such exchange or in such market (the exchange
designated by the Board if there is more than one such exchange or market) on the determination
date (or if there is no such reported closing price, the fair market value shall be the mean
between the highest bid and lowest asked prices or between the high and low sale prices on such
trading day) or, if no sale of the shares of Common Stock is reported for such trading day, on the
next preceding day on which any sale shall have been reported. If the shares of Common Stock are
not listed on such an exchange, quoted on such System or traded on such a market, fair market value
shall be determined by the Board in good faith.
10. TIMING OF PURCHASE; PURCHASE LIMITATION.
Unless a participating employee has given prior written notice terminating such employees
participation in the Plan, or the employees participation in the Plan has otherwise been
terminated as provided in Sections 16 through 20 below, such employee will be deemed to have
exercised automatically his or her right to purchase Common Stock on the last trading day of the
Purchase Period (except as provided in Section 15 below) for the number of shares of Common Stock
which the accumulated funds in the employees account at that time will purchase at the Purchase
Price, subject to the participation adjustment provided for in Section 14 below and subject to
adjustment under Section 26 below. Notwithstanding any other provision of the Plan, no employee
may purchase in any one Offering Period and in any one calendar year under the Plan and all other
employee stock purchase plans of the Company and its participating Affiliates shares of Common
Stock having an aggregate fair market value in excess of $25,000, determined as of the last trading
date preceding the Offering Period as to shares
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purchased during such period. Notwithstanding any other provision of the Plan, the Committee may
specify a maximum number of shares of Common Stock that may be purchased by any participating
employee for such Offering Period and/or a maximum aggregate number of shares of Common Stock that
may be purchased by all participating employees for such Offering Period. Effective upon the last
trading day of the Purchase Period, a participating employee will become a stockholder with respect
to the shares purchased during such period, and will thereupon have all dividend, voting and other
ownership rights incident thereto. Notwithstanding the foregoing, no shares shall be sold pursuant
to the Plan unless the Plan is approved by the Companys stockholders in accordance with Section 25
below.
11. ISSUANCE OF STOCK CERTIFICATES.
As of the last trading day of the Purchase Period, a participating employee will be credited
with the number of shares of Common Stock purchased for his or her account under the Plan during
such Offering Period. Shares purchased under the Plan will be held in the custody of an agent (the
Agent) appointed by the Committee. The Agent may hold the shares purchased under the Plan in
stock certificates in nominee names and may commingle shares held in its custody in a single
account or stock certificate without identification as to individual participating employees. A
participating employee may, at any time following his or her purchase of shares under the Plan and
after the expiration of the qualifying holding period, by written notice instruct the Agent to have
all or part of such shares reissued in the participating employees own name and have the stock
certificate delivered to the employee.
12. WITHHOLDING OF TAXES.
To the extent that a participating employee realizes ordinary income in connection with a sale
or other transfer of any shares of Common Stock purchased under the Plan, the Company may withhold
amounts needed to cover such taxes from any payments otherwise due and owing to the participating
employee or from shares that would otherwise be issued to the participating employee hereunder.
Any participating employee who sells or otherwise transfers shares purchased under the Plan within
two years after the beginning of the Offering Period in which the shares were purchased must within
30 days of such transfer notify the Payroll Department of the Company in writing of such transfer.
13. ACCOUNT STATEMENTS.
The Company will cause the Agent to deliver to each participating employee a statement for
each Purchase Period during which the employee purchases Common Stock under the Plan, but no more
frequently than every six months, reflecting the amount of payroll deductions during the Purchase
Period, the number of shares purchased for the employees account, the price per share of the
shares purchased for the employees account and the number of shares held for the employees
account at the end of the Purchase Period.
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14. PARTICIPATION ADJUSTMENT.
If in any Purchase Period the number of unsold shares that may be made available for purchase
under the Plan pursuant to Section 1 above (or, as determined by the Committee, pursuant to any
limitation on the aggregate number of shares purchasable in any Offering Period) is insufficient to
permit exercise of all rights deemed exercised by all participating employees pursuant to Section 9
above, a participation adjustment will be made, and the number of shares purchasable by all
participating employees will be reduced proportionately. Any funds then remaining in a
participating employees account after such exercise will be refunded to the employee.
15. CHANGES IN ELECTIONS TO PURCHASE.
(a) A participating employee may, at any time prior to the fifth business day before the last
day of the Purchase Period, by written notice to the Company, direct the Company to cease payroll
deductions (or, if the payment for shares is being made through periodic cash payments, notify the
Company that such payments will be terminated), in accordance with the following alternatives:
(i) The employees option to purchase shall be reduced to the number of shares which may be
purchased, as of the last day of the Purchase Period, with the amount then credited to the
employees account; or
(ii) Withdraw the amount in such employees account and terminate such employees option to
purchase.
(b) Any participating employee may decrease his or her payroll deduction or periodic cash
payments, to take effect as soon as administratively practicable by delivering to the Company a new
form regarding election to participate in the Plan under Section 5 above.
(c) Any participating employee may increase his or her payroll deduction or periodic cash
payments, to take effect on the first day of the next following Offering Period by delivering to
the Company a new form regarding election to participate in the Plan under Section 5 above.
16. TERMINATION OF EMPLOYMENT.
In the event a participating employee voluntarily leaves the employ of the Company or a
participating Affiliate, otherwise than by retirement under a plan of the Company or a
participating Affiliate, or is terminated by the Company prior to the last day of the Purchase
Period, the amount in the employees account will be distributed and the employees option to
purchase will terminate.
17. RETIREMENT.
In the event a participating employee who has an option to purchase shares leaves the employ
of the Company or a participating Affiliate because of retirement under a plan of the
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Company or a participating Affiliate the participating employee may elect, within 60 days after the
date of such retirement or termination, but, in no event, later than the end of the current
Purchase Period, one of the following alternatives:
(a) The employees option to purchase shall be reduced to the number of shares which may be
purchased, as of the last day of the Purchase Period, with the amount then credited to the
employees account; or
(b) Withdraw the amount in such employees account and terminate such employees option to
purchase.
In the event the participating employee does not make an election within the aforesaid 60-day
period, he or she will be deemed to have elected subsection 17(b) above.
18. LAY-OFF, AUTHORIZED LEAVE OF ABSENCE OR DISABILITY.
Payroll deductions for shares for which a participating employee has an option to purchase may
be suspended during any period of absence of the employee from work due to lay-off, authorized
leave of absence or disability or, if the employee so elects, periodic payments for such shares may
continue to be made in cash.
If such employee returns to active service prior to the last day of the Purchase Period, the
employees payroll deductions will be resumed and if said employee did not make periodic cash
payments during the employees period of absence, the employee shall, by written notice to the
Companys Payroll Department within 10 days after the employees return to active service, but not
later than the last day of the Purchase Period, elect one of the following alternatives:
(a) The employees option to purchase shall be reduced to the number of shares that can be
purchased with the amount, if any, then credited to the employees account plus the aggregate
amount, if any, of all payroll deductions to be made thereafter; or
(b) Withdraw the amount in the employees account and terminate the employees option to
purchase.
A participating employee on lay-off, authorized leave of absence or disability on the last day
of the Purchase Period shall deliver written notice to his or her employer on or before the last
day of the Purchase Period, electing one of the alternatives provided in the foregoing clauses (a)
or (b) of this Section 18. If any employee fails to deliver such written notice within 10 days
after the employees return to active service or by the last day of the Purchase Period, whichever
is earlier, the employee shall be deemed to have elected subsection 18(b) above.
If the period of a participating employees lay-off, authorized leave of absence or disability
shall terminate on or before the last day of the Purchase Period, and the employee shall not resume
active employment with the Company or a participating Affiliate, the employee shall receive a
distribution in accordance with the provisions of Section 17 of this Plan.
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19. DEATH.
In the event of the death of a participating employee while the employees option to purchase
shares is in effect, the legal representatives of such employee may, within 60 days after the
employees death (but no later than the last day of the Purchase Period) by written notice to the
Company or participating Affiliate, elect one of the following alternatives:
(a) The employees option to purchase shall be reduced to the number of shares which may be
purchased, as of the last day of the Purchase Period, with the amount then credited to the
employees account; or
(b) Withdraw the amount in such employees account and terminate such employees option to
purchase.
In the event the legal representatives of such employee fail to deliver such written notice to
the Company or participating Affiliate within the prescribed period, the election to purchase
shares shall terminate and the amount, then credited to the employees account shall be paid to
such legal representatives.
20. TERMINATION OF PARTICIPATION.
A participating employee will be refunded all moneys in his or her account, and his or her
participation in the Plan will be terminated if either (a) the Board elects to terminate the Plan
as provided in Section 25 below, or (b) the employee ceases to be eligible to participate in the
Plan under Section 4 above. As soon as practicable following termination of an employees
participation in the Plan, the Company will deliver to the employee a check representing the amount
in the employees account and a stock certificate representing the number of whole shares held in
the employees account. Once terminated, participation may not be reinstated for the then current
Offering Period, but, if otherwise eligible, the employee may elect to participate in any
subsequent Offering Period.
21. ASSIGNMENT.
No participating employee may assign his or her rights to purchase shares of Common Stock
under the Plan, whether voluntarily, by operation of law or otherwise. Any payment of cash or
issuance of shares of Common Stock under the Plan may be made only to the participating employee
(or, in the event of the employees death, to the employees estate). Once a stock certificate has
been issued to the employee or for his or her account, such certificate may be assigned the same as
any other stock certificate.
22. APPLICATION OF FUNDS.
All funds received or held by the Company under the Plan shall be deposited with the Agent for
the account of the participating employees. Participating employees accounts will not be
segregated.
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23. NO RIGHT TO CONTINUED EMPLOYMENT.
Neither the Plan nor any right to purchase Common Stock under the Plan confers upon any
employee any right to continued employment with the Company or any of its participating Affiliates,
nor will an employees participation in the Plan restrict or interfere in any way with the right of
the Company or any of its participating Affiliates to terminate the employees employment at any
time.
24. AMENDMENT OF PLAN.
The Board may, at any time, amend the Plan in any respect (including an increase in the
percentage specified in Section 9 above used in calculating the Purchase Price). An amendment to
the Plan shall be contingent on approval of the stockholders of the Company only to the extent
required by applicable law, regulations or rules or as provided by the Board.
25. EFFECTIVE DATE; TERM AND TERMINATION OF THE PLAN.
The Plan shall be effective as of the date of adoption by the Board, which date is set forth
below, subject to approval of the Plan by a majority of the votes present and entitled to vote at a
duly held meeting of the shareholders of the Company at which a quorum representing a majority of
all outstanding voting stock is present, either in person or by proxy; provided, however, that upon
approval of the Plan by the shareholders of the Company as set forth above, all rights to purchase
shares granted under the Plan on or after the effective date shall be fully effective as if the
shareholders of the Company had approved the Plan on the effective date. If the shareholders fail
to approve the Plan on or before one year after the effective date, the Plan shall terminate, any
rights to purchase shares granted hereunder shall be null and void and of no effect and all
contributed funds shall be refunded to participating employees. The Board may terminate the Plan
at any time and for any reason or for no reason, provided that such termination shall not impair
any rights of participating employees that have vested at the time of termination. In any event,
the Plan shall, without further action of the Board, terminate ten (10) years after the date of
adoption of the Plan by the Board or, if earlier, at such time as all shares of Common Stock that
may be made available for purchase under the Plan pursuant to Section 1 above have been issued.
26. EFFECT OF CHANGES IN CAPITALIZATION.
(a) | Changes in Stock. |
If the number of outstanding shares of Common Stock is increased or decreased or the shares
of Common Stock are changed into or exchanged for a different number or kind of shares or other
securities of the Company by reason of any recapitalization, reclassification, stock split, reverse
split, combination of shares, exchange of shares, stock dividend, or other distribution payable in
capital stock, or other increase or decrease in such shares effected without receipt of
consideration by the Company occurring after the effective date of the Plan, the number and kinds
of shares that may be purchased under the Plan shall be adjusted proportionately and accordingly by
the Company. In addition, the number and kind of shares for which rights are outstanding shall be
similarly adjusted so that the proportionate interest of a participating
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employee immediately following such event shall, to the extent practicable, be the same as
immediately prior to such event. Any such adjustment in outstanding rights shall not change the
aggregate Purchase Price payable by a participating employee with respect to shares subject to such
rights, but shall include a corresponding proportionate adjustment in the Purchase Price per share.
(b) | Reorganization in Which the Company Is the Surviving Corporation. |
Subject to Subsection (c) of this Section 26, if the Company shall be the surviving
corporation in any reorganization, merger or consolidation of the Company with one or more other
corporations, all outstanding rights under the Plan shall pertain to and apply to the securities to
which a holder of the number of shares of Common Stock subject to such rights would have been
entitled immediately following such reorganization, merger or consolidation, with a corresponding
proportionate adjustment of the Purchase Price per share so that the aggregate Purchase Price
thereafter shall be the same as the aggregate Purchase Price of the shares subject to such rights
immediately prior to such reorganization, merger or consolidation.
(c) | Reorganization in Which the Company Is Not the Surviving Corporation or Sale of Assets or Stock. |
Upon any dissolution or liquidation of the Company, or upon a merger, consolidation or
reorganization of the Company with one or more other corporations in which the Company is not the
surviving corporation, or upon a sale of all or substantially all of the assets of the Company to
another corporation, or upon any transaction (including, without limitation, a merger or
reorganization in which the Company is the surviving corporation) approved by the Board that
results in any person or entity owning more than 80 percent of the combined voting power of all
classes of stock of the Company, the Plan and all rights outstanding hereunder shall terminate,
except to the extent provision is made in writing in connection with such transaction for the
continuation of the Plan and/or the assumption of the rights theretofore granted, or for the
substitution for such rights of new rights covering the stock of a successor corporation, or a
parent or subsidiary thereof, with appropriate adjustments as to the number and kinds of shares and
exercise prices, in which event the Plan and rights theretofore granted shall continue in the
manner and under the terms so provided. In the event of any such termination of the Plan, all
current Purchase Periods and Offering Periods shall be deemed to have ended on the last trading day
prior to such termination, and in accordance with Section 10 above the rights of each participating
employee then outstanding shall be deemed to be automatically exercised on such last trading day.
The Board shall send written notice of an event that will result in such a termination to all
participating employees not later than the time at which the Company gives notice thereof to its
stockholders.
(d) | Adjustments. |
Adjustments under this Section 26 related to stock or securities of the Company shall be made
by the Committee, whose determination in that respect shall be final, binding, and conclusive.
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(e) | No Limitations on Company. |
The grant of a right pursuant to the Plan shall not affect or limit in any way the right or
power of the Company to make adjustments, reclassifications, reorganizations or changes of its
capital or business structure or to merge, consolidate, dissolve or liquidate, or to sell or
transfer all or any part of its business or assets.
27. GOVERNMENTAL REGULATION.
The Companys obligation to issue, sell and deliver shares of Common Stock pursuant to the
Plan is subject to such approval of any governmental authority and any national securities exchange
or other market quotation system as may be required in connection with the authorization, issuance
or sale of such shares.
28. STOCKHOLDER RIGHTS.
Any dividends paid on shares held by the Company for a participating employees account will
be transmitted to the employee. The Company will deliver to each participating employee who
purchases shares of Common Stock under the Plan, as promptly as practicable by mail or otherwise,
all notices of meetings, proxy statements, proxies and other materials distributed by the Company
to its stockholders. Any shares of Common Stock held by the Agent for an employees account will
be voted in accordance with the employees duly delivered and signed proxy instructions. There
will be no charge to participating employees in connection with such notices, proxies and other
materials.
29. RULE 16B-3.
Transactions under this Plan are intended to comply with all applicable conditions of Rule
16b-3 or any successor provision under the Securities Exchange Act of 1934, as amended. If any
provision of the Plan or action by the Board fails to so comply, it shall be deemed null and void
to the extent permitted by law and deemed advisable by the Board. Moreover, in the event the Plan
does not include a provision required by Rule 16b-3 to be stated herein, such provision (other than
one relating to eligibility requirements, or the price and amount of awards) shall be deemed
automatically to be incorporated by reference into the Plan.
30. PAYMENT OF PLAN EXPENSES.
The Company will bear all costs of administering and carrying out the Plan; provided however,
participating employees shall bear all costs incurred subsequent to the issuance of stock
certificates pursuant to Section 11.
* * *
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This Plan was duly adopted and approved by the Board of Directors on January 24, 2003 and
amended by action of the Board or a committee thereof on December 8, 2004, March 3, 2005, May 30,
2006 and September 10, 2010. This Plan, as amended, was approved by action of the stockholders on
March 12, 2003 and March 16, 2005.
/s/ David M. Rothenstein | ||||
Secretary of the Company | ||||
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