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8-K - FORM 8-K - MOLINA HEALTHCARE, INC. | a59372e8vk.htm |
EX-10.1 - EX-10.1 - MOLINA HEALTHCARE, INC. | a59372exv10w1.htm |
Exhibit 10.2
MOLINA
HEALTHCARE, INC.
2011
EMPLOYEE STOCK PURCHASE PLAN
1. Establishment of
Plan. Molina Healthcare, Inc., a Delaware
corporation (the Company), proposes to grant
options to purchase shares of the Companys common stock,
$0.001 par value per share (the Common
Stock), to eligible employees of the Company and its
Participating Affiliates (as defined below) pursuant to this
2011 Employee Stock Purchase Plan (this
Plan). For purposes of this Plan,
Parent Corporation and Subsidiary
Corporation shall have the same meanings as
parent corporation and subsidiary
corporation in Sections 424(e) and 424(f),
respectively, of the Internal Revenue Code of 1986, as amended
(the Code). Participating
Affiliates are Parent Corporations or Subsidiary
Corporations that the Board of Directors of the Company (the
Board) designates from time to time as
corporations that shall participate in this Plan. Affiliates may
be designated as Participating Affiliates either before or after
this Plan is approved by the Companys stockholders as
provided in Section 22. The Company intends this Plan to
qualify as an employee stock purchase plan under
Section 423 of the Code (including any amendments to or
replacements of such Section), and this Plan shall be so
construed. Any term not expressly defined in this Plan but
defined for purposes of Section 423 of the Code shall have
the same definition herein. A total of two million (2,000,000)
shares of the Common Stock are reserved for issuance under this
Plan.
2. Purpose. The
purpose of this Plan is to provide eligible employees of the
Company and Participating Affiliates with a convenient means of
acquiring an equity interest in the Company through payroll
deductions, to enhance such employees sense of
participation in the affairs of the Company and Participating
Affiliates, and to provide an incentive for continued employment.
3. Administration
(a) This Plan shall be administered
by the Compensation Committee of the Board (the
Committee). Subject to the provisions of this
Plan and the limitations of Section 423 of the Code or any
successor provision in the Code, all questions of interpretation
or application of this Plan shall be determined by the Committee
in its sole discretion and its decisions shall be final and
binding upon all participants. Members of the Committee shall
receive no compensation for their services in connection with
the administration of this Plan, other than standard fees as
established from time to time by the Board for services rendered
by Board members serving on Board committees. All expenses
incurred in connection with the administration of this Plan
shall be paid by the Company.
(b) The Committee may, from time to
time, consistent with this Plan and the requirements of
Section 423 of the Code, establish, change or terminate
such rules, guidelines, policies, procedures, limitations, or
adjustments as deemed advisable by the Company, in its sole
discretion, for the proper administration of this Plan,
including, without limitation: (a) a minimum payroll
deduction amount required for participation in an Offering
Period, (b) a limitation on the frequency or number of
changes permitted in the rate of payroll deduction during an
Offering Period, (c) a payroll deduction greater or less
than the amount designated by a participant in order to adjust
for the Companys delay or mistake in processing an
Enrollment Form or in otherwise effecting a participants
election under this Plan or as advisable to comply with the
requirements of Section 423 of the Code,
(d) determination of the date and manner by which the Fair
Market Value of the Common Stock is determined for purposes of
administration of this Plan, (e) delegate responsibility
for Plan operation, management and administration, subject to
the Committees oversight and control, on such terms as the
Committee may establish, and (f) delegate to other persons
the responsibility for performing appropriate functions as
necessary, desirable or appropriate to further the purposes of
this Plan.
4. Eligibility. Any
individual employed by the Company or the Participating
Affiliates on the Offering Date of an Offering
Period (each as defined in Section 5 below) is
eligible to participate in such Offering Period except the
following:
(a) employees who are customarily
employed for twenty (20) hours or less per week; and
(b) employees who, together with
any other person whose stock would be attributed to such
employee pursuant to Section 424(d) of the Code, own stock
or hold options to purchase stock
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possessing five percent (5%) or more of the total combined
voting power or value of all classes of stock of the Company or
any of its Participating Affiliates or who, as a result of being
granted an option under this Plan with respect to such Offering
Period, would own stock or hold options to purchase stock
possessing five percent (5%) or more of the total combined power
or value of all classes of stock of the Company or any of its
Participating Affiliates; and
(c) individuals who provide
services to the Company or any of its Participating Affiliates
as independent contractors who are reclassified as common law
employees for any reason except for federal income
and employment tax purposes.
5. Offering
Periods. The offering periods of this Plan (each,
an Offering Period) shall be of six
(6) months duration commencing on January 1 and July 1 of
the Companys fiscal year. The first day of each Offering
Period is referred to as the Offering Date.
The last day of each Offering Period is referred to as the
Purchase Date. The Committee shall have the
power to change the Offering Dates or Purchase Dates and the
duration of Offering Periods without stockholder approval if
such change is announced prior to the start of the relevant
Offering Period, or prior to such other time period as specified
by the Committee; provided, however, that no Offering Period may
have a duration exceeding twenty-seven (27) months. If the
first or last day of an Offering Period is not a day on which
the New York Stock Exchange is open for trading, the Company
shall specify the trading day that will be deemed the first or
last day, as the case may be, of the Offering Period.
6. Participation in this
Plan. An employee may participate during an
Offering Period on the first Offering Date after such employee
satisfies the eligibility requirements set forth in
Section 4 above and delivers an appropriate enrollment form
(the Enrollment Form) to the Company prior to
such Offering Date, or such other time period as specified by
the Committee. Notwithstanding the foregoing, the Committee may
set a later time for filing the Enrollment Form authorizing
payroll deductions for all eligible employees with respect to a
given Offering Period. An eligible employee who does not timely
deliver an Enrollment Form to the Company after becoming
eligible to participate in such Offering Period shall not
participate in that Offering Period or any subsequent Offering
Period until filing an Enrollment Form with the Company prior to
the applicable Offering Date, or such other time period as
specified by the Committee. Once an employee becomes a
participant in an Offering Period, such employee will
automatically participate in the Offering Period commencing
immediately following the last day of the prior Offering Period
unless the employee withdraws or is deemed to withdraw from this
Plan or terminates further participation in the Offering Period
as set forth in Section 11 below. A participant who has not
otherwise withdrawn from this Plan under Section 11 is not
required to file any additional Enrollment Form in order to
continue participation in this Plan. However a participant may
deliver a new Enrollment Form for a subsequent Offering Period
in accordance with applicable rules and procedures if the
participant wishes to change any of the elections contained in
the participants then effective Enrollment Form.
7. Grant of Option on
Enrollment. Enrollment by an eligible employee in
an Offering Period under this Plan will constitute the grant (as
of the Offering Date for such Offering Period) by the Company to
such employee of an option to purchase on the Purchase Date up
to that number of shares of Common Stock of the Company
determined by dividing (a) the amount accumulated in such
employees payroll deduction account during such Offering
Period by (b) the Per Share Purchase Price as determined
pursuant to Section 8 below (but in no event less than the
par value of a share of Companys Common Stock),
provided, however, that the number of shares of
the Companys Common Stock subject to any option granted
pursuant to this Plan shall not exceed the maximum number of
shares which may be purchased pursuant to Section 10 below
with respect to the applicable Purchase Date. The Fair Market
Value of a share of the Companys Common Stock shall be
determined as provided in Section 8 below.
8. Purchase
Price. The purchase price per share (Per
Share Purchase Price) at which a share of Common Stock
will be sold in any Offering Period shall be eighty-five percent
(85%) of the lesser of:
(a) The Fair Market Value on the
Offering Date; or
(b) The Fair Market Value on the
Purchase Date.
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For purposes of this Plan, the term Fair Market
Value of the Common Stock on any given date means
(i) the last reported closing price for a share of Stock on
the New York Stock Exchange or, (ii) in the absence of
reported sales on the New York Stock Exchange on a given date,
the closing price of the New York Stock Exchange on the last
date on which a sale occurred prior to such date; or
(iii) if the stock is no longer publicly traded on the New
York Stock Exchange, the Committee in good faith shall determine
Fair Market Value; provided that, if the date for
which the Fair Market Value is determined is the first day when
trading prices for the Stock are reported on the New York Stock
Exchange, the Fair Market Value shall be the public offering
price set forth on the cover page for the final prospectus
relating to the Companys Initial Public Offering.
9. Payment of Purchase Price;
Changes in Payroll Deductions; Issuance of Shares.
(a) The purchase price of the
shares shall be accumulated by regular payroll deductions made
during each Offering Period. The deductions are made as a
percentage of the participants Compensation in one percent
(1%) increments not less than one percent (1%) (except as a
result of an election pursuant to Section 9(c) to stop
payroll deductions during an Offering Period), nor greater than
fifteen percent (15%) or such lower limit set by the Committee.
Compensation shall mean all
W-2 cash
compensation, including base salary, wages, commissions,
overtime, shift premiums and bonuses, provided,
however, that for purposes of determining a
participants compensation, any election by such
participant to reduce his or her regular cash remuneration under
Sections 125 or 401(k) of the Code shall be treated as if
the participant did not make such election. Notwithstanding the
foregoing, Compensation shall not include reimbursements of
expenses, allowances, long-term disability, workers
compensation or any amount deemed received without the actual
transfer of cash or any amounts directly or indirectly paid
pursuant to this Plan or any other stock purchase or stock
option plan, or any other compensation not included above.
Payroll deductions shall commence on the first payday of the
Offering Period and shall continue to the end of the Offering
Period unless sooner altered or terminated as provided in this
Plan.
(b) A participant may increase or
decrease the rate of payroll deductions during an Offering
Period by providing to the Company a new Enrollment Form, in
which case the new rate shall become effective for the next
payroll period commencing after the Companys receipt of
the Enrollment Form and shall continue for the remainder of the
Offering Period unless changed as described below. Such change
in the rate of payroll deductions may be made at any time during
an Offering Period, but not more than one (1) increase and
one (1) decrease in the rate of payroll deductions may be
made during any Offering Period. A participant may increase or
decrease the rate of payroll deductions for any subsequent
Offering Period by filing with the Company a new Enrollment Form
prior to the beginning of such Offering Period, or prior to such
other time period as specified by the Committee.
(c) A participant may reduce his or
her payroll deduction percentage to zero during an Offering
Period by providing to the Company a revised Enrollment Form.
Such reduction shall be effective beginning with the next
payroll period after the Companys receipt of the request
and no further payroll deductions will be made for the duration
of the Offering Period. Payroll deductions credited to the
participants account prior to the effective date of the
request shall be used to purchase shares of Common Stock in
accordance with Section (e) below. Notwithstanding
Section 9(b), a participant may not resume making payroll
deductions during the Offering Period in which he or she reduced
his or her payroll deductions to zero.
(d) All payroll deductions made for
a participant are credited to his or her account under this Plan
and are deposited with the general funds of the Company. No
interest accrues on the payroll deductions. All payroll
deductions received or held by the Company may be used by the
Company for any corporate purpose, and the Company shall not be
obligated to segregate such payroll deductions.
(e) On each Purchase Date, so long
as this Plan remains in effect and provided that the participant
has not submitted a revised Enrollment Form withdrawing from
this Plan before such Purchase Date in accordance with
Section 11, the Company shall apply the funds then in the
participants account (or, if applicable, the lump sum cash
payment received from the participant) to the purchase of whole
shares of Common Stock reserved under the option granted to such
participant with respect to the Offering Period to the extent
that such option is exercisable on the Purchase Date. The Per
Share Purchase Price shall be as specified
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in Section 8. Any cash remaining in such participants
account on a Purchase Date which is less than the amount
necessary to purchase a full share of Common Stock of the
Company shall be carried forward, without interest, into the
next Offering Period. If this Plan has been oversubscribed, all
funds not used to purchase shares on the Purchase Date shall be
returned to the participant, without interest. No Common Stock
shall be purchased on a Purchase Date on behalf of any employee
whose participation in this Plan has terminated prior to such
Purchase Date.
(f) As promptly as practicable
after the Purchase Date, the Company shall issue shares for the
participants benefit representing the shares purchased
upon exercise of his or her option, subject to compliance with
Section 24 below.
(g) During a participants
lifetime, his or her option to purchase shares hereunder is
exercisable only by him or her. The participant will have no
interest or voting right in shares covered by his or her option
until such option has been exercised.
10. Limitations on Shares to be
Purchased.
(a) No participant shall be
entitled to purchase Common Stock under this Plan at a rate
which, when aggregated with his or her rights to purchase stock
under all other employee stock purchase plans of the Company or
any Parent Corporation or Subsidiary Corporation, exceeds
$25,000 in Fair Market Value, determined as of the Offering Date
(or such other limit as may be imposed by the Code) for each
calendar year in which the employee participates in this Plan.
The Company shall automatically suspend the payroll deductions
of any participant as necessary to enforce such limit;
provided that when the Company automatically resumes such
payroll deductions, the Company must apply the rate in effect
immediately prior to such suspension.
(b) No participant shall be
entitled to purchase more than the Maximum Share Amount (as
defined below) on any single Purchase Date. Prior to the
commencement of any Offering Period or before such time period
as specified by the Committee, the Committee may, in its sole
discretion, set a maximum number of shares which may be
purchased by any employee at any single Purchase Date (the
Maximum Share Amount). Until otherwise
determined by the Committee, there shall be no Maximum Share
Amount. If a new Maximum Share Amount is set, then all
participants must be notified of such Maximum Share Amount
before commencing the next Offering Period. The Maximum Share
Amount shall continue to apply with respect to all succeeding
Purchase Dates and Offering Periods unless revised by the
Committee as set forth above.
(c) If the number of shares to be
purchased on a Purchase Date by all employees participating in
this Plan exceeds the number of shares then available for
issuance under this Plan, then the Company will make a pro rata
allocation of the remaining shares in as uniform a manner as
shall be reasonably practicable and as the Committee shall
determine to be equitable.
(d) Any payroll deductions
accumulated in a participants account which are not used
to purchase stock due to the limitations in this Section 10
shall be returned to the participant as soon as practicable
after the end of the applicable Offering Period, without
interest, provided that, any amount remaining in such
participants account which is less than the amount
necessary to purchase a full share of Common Stock of the
Company shall be carried forward, without interest, into the
next Offering Period or Offering Period.
11. Withdrawal.
(a) Each participant may withdraw
from an Offering Period under this Plan by signing and
delivering to the Company a revised Enrollment Form indicating
such participants intention to withdraw. Such withdrawal
may be elected at any time prior to the end of an Offering
Period, or such other time period as specified by the Committee.
(b) Upon withdrawal from this Plan,
the accumulated payroll deductions shall be returned to the
withdrawn participant, without interest, and his or her interest
in this Plan shall terminate. If a participant voluntarily
elects to withdraw from this Plan, he or she may not resume his
or her participation in this Plan
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during the same Offering Period, but he or she may participate
in any Offering Period under this Plan commencing after such
withdrawal by filing a new authorization for payroll deductions
in the same manner as set forth in Section 6 above for
initial participation in this Plan.
12. Termination of
Employment. Termination of a participants
employment for any reason, including retirement, death or the
failure of a participant to remain an eligible employee of the
Company or of a Participating Affiliate, immediately terminates
his or her participation in this Plan. In such event, the
payroll deductions credited to the participants account
will be returned to him or her or, in the case of his or her
death, to his or her legal representative, without interest. For
purposes of this Section 12, an employee will not be deemed
to have terminated employment or failed to remain in the
continuous employ of the Company or of a Participating Affiliate
in the case of sick leave, military leave, or any other leave of
absence approved by the Board; provided that such leave
is for a period of not more than ninety (90) days or
reemployment upon the expiration of such leave is guaranteed by
contract or statute.
13. Return of Payroll
Deductions. If a participants interest in
this Plan is terminated by withdrawal, termination of employment
or otherwise, or if this Plan is terminated by the Board, the
Company shall deliver to the participant all payroll deductions
credited to such participants account. No interest shall
accrue on the payroll deductions of a participant in this Plan.
14. Capital
Changes. Subject to any required action by the
stockholders of the Company, the number of shares of Common
Stock covered by each option under this Plan which has not yet
been exercised and the number of shares of Common Stock which
have been authorized for issuance under this Plan but have not
yet been placed under option (collectively, the
Reserves), as well as the price per share of
Common Stock covered by each option under this Plan which has
not yet been exercised, shall be proportionately adjusted for
any increase or decrease in the number of issued and outstanding
shares of Common Stock resulting from a stock split or the
payment of a stock dividend (but only on the Common Stock) or
any other increase or decrease in the number of issued and
outstanding shares of Common Stock effected without receipt of
any consideration by the Company; provided,
however, that conversion of any convertible securities of
the Company shall not be deemed to have been effected
without receipt of consideration. Notwithstanding the
foregoing, any fractional shares resulting from an adjustment
pursuant to this Section 14 shall be rounded down to the
nearest whole number, and in no event may the Per Share Purchase
Price be decreased to an amount less than the par value, if any,
of the Common Stock. Such adjustment shall be made by the
Committee, whose determination shall be final, binding and
conclusive.
In the event of the proposed dissolution or liquidation of the
Company, the Offering Period will terminate immediately prior to
the consummation of such proposed action, unless otherwise
provided by the Committee. The Committee may, in its sole
discretion in such instances, declare that this Plan shall
terminate as of a date fixed by the Committee and either give
each participant the right to purchase shares under this Plan
prior to such termination or return all accumulated payroll
deductions to each participant, without interest. In the event
of (i) a merger or consolidation in which the Company is
not the surviving corporation (other than a merger or
consolidation with a wholly-owned subsidiary, a reincorporation
of the Company in a different jurisdiction, or other transaction
in which there is no substantial change in the stockholders of
the Company or their relative stock holdings, provided that the
options under this Plan are assumed, converted or replaced by
the successor corporation, which assumption will be binding on
all participants), (ii) a merger in which the Company is
the surviving corporation but after which the stockholders of
the Company immediately prior to such merger (other than any
stockholder that merges, or which owns or controls another
corporation that merges, with the Company in such merger) cease
to own their shares or other equity interest in the Company,
(iii) the sale of all or substantially all of the assets of
the Company or (iv) the acquisition, sale, or transfer of
more than 50% of the outstanding shares of the Company by tender
offer or similar transaction, (each a Sale
Event) the Company shall apply the funds contributed
under this Plan to the purchase of shares of Common Stock
pursuant to the provisions of Section 9 immediately prior
to the effective date of such Sale Event. Notwithstanding the
foregoing, the surviving, continuing, successor or purchasing
corporation or parent corporation thereof (the
Acquiring Corporation), may elect to assume
the Companys rights and obligations under ths Plan and, in
that event, there shall be no purchase before the end of the
Offering Period in which the Sale Event occurs.
B-5
The Committee may, if it so determines in its sole discretion,
also make provision for adjusting the share reserve set forth in
Section 1, as well as the price per share of Common Stock
covered by each outstanding option, solely in the event that the
Company effects one or more reorganizations, recapitalizations,
rights offerings or other increases or reductions of shares of
its outstanding Common Stock, or in the event of the Company
being consolidated with or merged into any other corporation.
15. Withholding. The
participant shall make adequate provision for the foreign,
federal, state and local tax withholding obligations of the
Company or any of its Participating Affiliates, if any, which
arise in connection with participation in this Plan. The Company
and its Participating Affiliates shall, to the extent permitted
by law, have the right to deduct any such taxes from any payment
of any kind otherwise due to the participant.
16. Nonassignability. Neither
payroll deductions credited to a participants account nor
any rights with regard to the exercise of an option or to
receive shares under this Plan may be assigned, transferred,
pledged or otherwise disposed of in any way (other than by will,
the laws of descent and distribution or as provided in
Section 23 below) by the participant. Any such attempt at
assignment, transfer, pledge or other disposition shall be void
and without effect.
17. Reports. Individual
accounts will be maintained for each participant in this Plan.
Each participant shall receive as soon as practicable after the
end of each Offering Period a report of his or her account
setting forth the total payroll deductions accumulated, the
number of shares purchased, the per share price thereof and the
remaining cash balance, if any, carried forward to the next
Offering Period.
18. Notice of Disqualifying
Disposition. Each participant shall notify the
Company in writing if the participant disposes of any of the
shares purchased in any Offering Period pursuant to this Plan if
such disposition occurs within two (2) years from the
Offering Date or within one (1) year from the Purchase Date
on which such shares were purchased (the Notice
Period). The Company may, at any time during the
Notice Period, place a legend or legends on any certificate
representing shares acquired pursuant to this Plan requesting
the Companys transfer agent to notify the Company of any
transfer of the shares. The obligation of the participant to
provide such notice shall continue notwithstanding the placement
of any such legend on the certificates.
19. No Rights as Stockholder or
to Continued Employment. A participant shall have
no rights as a stockholder by virtue of participation in this
Plan until the date of the issuance of a certificate for the
shares purchased pursuant to the exercise of the
participants purchase right (as evidenced by the
appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company). No adjustment shall
be made for dividends, distributions or other rights for which
the record date is prior to the date such certificate is issued,
except as provided in Section 14. Neither this Plan nor the
grant of any option hereunder shall confer any right on any
employee to remain in the employ of the Company or any
Participating Affiliate, or restrict the right of the Company or
any Participating Affiliate to terminate such employees
employment at any time.
20. Equal Rights and
Privileges. All eligible employees shall have
equal rights and privileges with respect to this Plan so that
this Plan qualifies as an employee stock purchase
plan within the meaning of Section 423 or any
successor provision of the Code and the related regulations. Any
provision of this Plan which is inconsistent with
Section 423 or any successor provision of the Code shall,
without further act or amendment by the Company, the Committee
or the Board, be reformed to comply with the requirements of
Section 423. This Section 20 shall take precedence
over all other provisions in this Plan.
21. Notices. All
notices or other communications by a participant to the Company
under or in connection with this Plan shall be deemed to have
been duly given when received in the form specified by the
Company at the location, or by the person, designated by the
Company for the receipt thereof.
22. Term; Stockholder
Approval. This Plan was adopted by the Board of
Directors of the Company on March 18, 2011, effective as of
July 1, 2011 (the Effective Date), and
shall apply to any purchase right granted, or stock transferred
pursuant to any purchase right granted, on or after the
Effective Date. This Plan shall continue until the earlier to
occur of (a) termination of this Plan by the Board (which
B-6
termination may be effected by the Board at any time),
(b) issuance of all of the shares of Common Stock reserved
for issuance under this Plan, or (c) April 27, 2021.
23. Designation of
Beneficiary
(a) A participant may file a
written designation of a beneficiary who is to receive any
shares and cash, if any, from the participants account
under this Plan in the event of such participants death
subsequent to the end of any Offering Period but prior to
delivery to him of such shares and cash. In addition, a
participant may file a written designation of a beneficiary who
is to receive any cash from the participants account under
this Plan in the event of such participants death prior to
a Purchase Date.
(b) Such designation of beneficiary
may be changed by the participant at any time by written notice.
In the event of the death of a participant and in the absence of
a beneficiary validly designated under this Plan who is living
at the time of such participants death, the Company shall
deliver such shares or cash to the executor or administrator of
the estate of the participant, or if no such executor or
administrator has been appointed (to the knowledge of the
Company), the Company, in its discretion, may deliver such
shares or cash to the spouse or to any one or more dependents or
relatives of the participant, or if no spouse, dependent or
relative is known to the Company, then to such other person as
the Company may designate.
24. Conditions Upon Issuance of
Shares; Limitation on Sale of Shares. Shares
shall not be issued with respect to an option unless the
exercise of such option and the issuance and delivery of such
shares pursuant thereto shall comply with all applicable
provisions of law, domestic or foreign, including, without
limitation, the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, the rules and
regulations promulgated thereunder, and the requirements of any
stock exchange or automated quotation system upon which the
shares may then be listed, and shall be further subject to the
approval of counsel for the Company with respect to such
compliance.
25. Applicable
Law. This Plan shall be governed by the
substantive laws (excluding the conflict of laws rules) of the
State of California.
26. Amendment or Termination of
this Plan. The Board may at any time amend,
terminate or extend the term of this Plan, except that
(i) any such termination cannot affect options previously
granted under this Plan unless the Board determines that the
termination of this Plan immediately following any Purchase Date
is in the best interests of the Company and its stockholders,
(ii) any amendment may not adversely affect the previously
granted purchase right of any participant unless permitted by
this Plan or as may be necessary to qualify this Plan as an
employee stock purchase plan pursuant to Section 423 of the
Code or to obtain qualification or registration of the Common
Stock under applicable federal, state or foreign securities
laws, and (iii) any amendment must be approved by the
stockholders of the Company in accordance with Section 2
above within twelve (12) months of the adoption of such
amendment (or earlier if required by Section 22) if
such amendment would:
(a) increase the number of shares
that may be issued under this Plan;
(b) change the designation of the
employees (or class of employees) eligible for participation in
this Plan; or
(c) any other action taken by the
Board that, by its terms, is contingent on stockholder approval.
Notwithstanding the foregoing, the Board may make such
amendments to this Plan as the Board determines to be advisable,
if the continuation of this Plan or any Offering Period would
result in financial accounting treatment for this Plan that is
different from the financial accounting treatment in effect on
the Effective Date.
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