EXPRESSJET
HOLDINGS, INC.
2009 EMPLOYEE STOCK PURCHASE PLAN
1. Purpose. The ExpressJet
Holdings, Inc. 2009 Employee Stock Purchase Plan (the
“Plan”) is intended to provide an incentive for
employees of ExpressJet Holdings, Inc. (the “Company”)
and any Participating Company (as defined in paragraph 3) to
acquire or increase a proprietary interest in the Company through
the purchase of shares of the Company’s common stock, par
value $.01 per share (the “Stock”). The Plan is
intended to qualify as an “Employee Stock Purchase
Plan” under Section 423 of the Internal Revenue Code of 1986,
as amended (the “Code”). The provisions of the Plan
shall be construed in a manner consistent with the requirements of
that section of the Code.
The Plan as set forth herein constitutes an
amendment and restatement of the ExpressJet Holdings, Inc. 2003
Employee Stock Purchase Plan previously adopted by the Company (the
“2003 Plan”), and shall supersede and replace in its
entirety such plan.
2. Administration of the Plan. The
Plan shall be administered by the Human Resources Committee (the
“Committee”) of the Board of Directors of the Company
(the “Board”). Subject to the provisions of the Plan,
the Committee shall interpret the Plan and all options granted
under the Plan, make such rules as it deems necessary for the
proper administration of the Plan and make all other determinations
necessary or advisable for the administration of the Plan. In
addition, the Committee shall correct any defect, supply any
omission or reconcile any inconsistency in the Plan, or in any
option granted under the Plan, in the manner and to the extent that
the Committee deems desirable to carry the Plan or any option into
effect. The Committee shall, in its sole discretion, make such
decisions or determinations and take such actions, and all such
decisions, determinations and actions taken or made by the
Committee pursuant to this and the other paragraphs of the Plan
shall be conclusive on all parties. The Committee shall not be
liable for any decision, determination or action taken in good
faith in connection with the administration of the Plan. The
Committee shall have the authority to delegate routine day-to-day
administration of the Plan to such officers and employees of the
Company as the Committee deems appropriate, and such persons shall
not be liable for any decision, determination or action taken in
good faith in connection with such delegated
administration.
3. Participating Companies. The
Committee may designate any present or future parent or subsidiary
corporation of the Company that is eligible by law to participate
in the Plan as a “Participating Company” by written
instrument delivered to the designated Participating Company. Such
written instrument shall specify the effective date of such
designation and shall become, as to such designated Participating
Company and persons in its employment, a part of the Plan. The
terms of the Plan may be modified as applied to the Participating
Company only to the extent permitted under Section 423 of the
Code. Transfer of employment among the Company and Participating
Companies (and among any other parent or subsidiary corporation of
the Company) shall not be considered a termination of employment
hereunder. Any Participating Company may, by appropriate action of
its Board of Directors, terminate its participation in the Plan.
Moreover, the Committee may, in its discretion, terminate a
Participating Company’s Plan participation at any
time.
4. Eligibility. Subject to the
provisions hereof, all employees of the Company and the
Participating Companies who are employed by the Company or any
Participating Company as of a Date of Grant (as defined in
subparagraph 6(a)) shall be eligible to participate in the Plan;
provided, however, that no option shall be granted to an employee
if such employee, immediately after the option is granted, owns
stock possessing five percent or more of the total combined voting
power or value of all classes of stock of the Company or of its
parent or subsidiary corporations (within the meaning of
Sections 423(b)(3) and 424(d) of the Code).
5. Stock Subject to the Plan. Prior
to the effective date of this amendment and restatement, 10,585
shares of Stock (determined after giving effect to the
Company’s one-for-ten reverse Stock split that occurred on
October 1, 2008) have been sold pursuant to options granted
under the 2003 Plan. Subject to the provisions of paragraph 12, the
aggregate number of shares that may be sold pursuant to options
granted under the Plan from and after the effective date of this
amendment and restatement shall not exceed 510,585 shares of the
authorized Stock, which shares may be unissued or reacquired
shares, including shares bought on the market or otherwise for
purposes of the Plan. Should any option granted under the Plan
expire or terminate prior to its exercise in full, the shares
theretofore subject to such option may again be subject to an
option granted under the Plan. Any shares that are not subject to
outstanding options upon the termination of the Plan shall cease to
be subject to the Plan.
(a) General Statement; “Date of
Grant”; “Option Period”; “Date of
Exercise”. Following the effective date of the Plan and
continuing while the Plan remains in force, the Company shall offer
options under the Plan to purchase shares of Stock to all eligible
employees who elect to participate in the Plan. Except as otherwise
determined by the Committee, these options shall be granted on
July 1, 2009, and, thereafter, on the first day of each
successive January and July (each of which dates is herein referred
to as a “Date of Grant”). Except as provided in
paragraph 12, the term of each option shall be for six months (each
such six-month period is herein referred to as an “Option
Period”), which shall begin on a Date of Grant and end on the
last day of each Option Period (herein referred to as a “Date
of Exercise”). Subject to subparagraph 6(e), the number of
shares subject to an option for a participant shall be equal to the
quotient of (i) the aggregate payroll deductions withheld on
behalf of such participant during the Option Period in accordance
with subparagraph 6(b), divided by (ii) the Option Price (as
defined in subparagraph 7(b)) of the Stock applicable to the Option
Period, including fractions; provided, however, that the maximum
number of shares that may be subject to any option for a
participant may not exceed 1000 (subject to adjustment as provided
in paragraph 12).
(b) Election to Participate; Payroll
Deduction Authorization. An eligible employee may participate
in the Plan only by means of payroll deduction. Except as provided
in subparagraph 6(g), each eligible employee who elects to
participate in the Plan shall deliver to the Company or any third
party administrator designated by the Company, within the time
period prescribed by the Committee, a written payroll deduction
authorization in a form prepared by the Company (which may be in
electronic or telephonic form) whereby he gives notice of his
election to participate in the Plan as of the next following Date
of Grant, and whereby he designates an integral percentage of his
Eligible Compensation (as defined in subparagraph 6(d)) to be
deducted from his compensation for each pay period and paid into
the Plan for his account. The designated percentage may not be less
than 1% nor exceed 10% (or such other percentage as the Board or
the Committee may establish from time to time prior to a Date of
Grant).
(c) Changes in Payroll
Authorization. A participant may withdraw from the Plan as
provided in paragraph 8. In addition, a participant may decrease
the percentage rate of his payroll deduction authorization referred
to in subparagraph 6(b) or suspend or resume payroll deductions
during the relevant Option Period by delivering to the Company or
any third party administrator designated by the Company a new
payroll deduction authorization in a form prepared by the Company
(which may be in electronic or telephonic form). Such decrease,
suspension or resumption will be effective as soon as
administratively feasible after receipt of the participant’s
new payroll deduction authorization form.
(d) “Eligible Compensation”
Defined. The term “Eligible Compensation” means
regular straight-time earnings or base salary, except that such
term shall not include payments for overtime, incentive
compensation, bonuses or other special payments.
(e) $25,000 Limitation. No employee
shall be granted an option under the Plan which permits his rights
to purchase Stock under the Plan and under all other employee stock
purchase plans of the Company and its parent and subsidiary
corporations to accrue at a rate which exceeds $25,000 of fair
market value of such Stock (determined at the time such option is
granted) for each calendar year in which such option is outstanding
at any time (within the meaning of Section 423(b)(8) of the
Code). Any payroll deductions in excess of the amount specified in
the foregoing sentence shall be returned to the participant as soon
as administratively feasible after the next following Date of
Exercise.
(f) Leaves of Absence . During a
paid leave of absence approved by the Company and meeting the
requirements of Treasury Regulation Section1.421-1(h)(2), a
participant’s elected payroll deductions shall continue. A
participant may not contribute to the Plan during an unpaid leave
of absence. If a participant takes an unpaid leave of absence that
is approved by the Company and meets the requirements of Treasury
Regulation Section1.421-1(h)(2), then such participant’s
payroll deductions for such Option Period that were made prior to
such leave may remain in the Plan and be used to purchase Stock
under the Plan on the Date of Exercise relating to such Option
Period. If a participant takes a leave of absence that is not
described in the first or third sentence of this subparagraph 6(f),
then he shall be considered to have terminated his employment and
withdrawn from the Plan pursuant to the provisions of paragraph 8
hereof. Further, notwithstanding the preceding provisions of this
subparagraph 6(f), if a participant takes a leave of absence that
is described in the first or third sentence of this subparagraph
6(f) and such leave of absence exceeds the Maximum Period, then he
shall be considered to have withdrawn from the Plan pursuant to the
provisions of paragraph 8 hereof and terminated his employment for
purposes of the Plan on the day immediately following the last day
of the Maximum Period. For purposes of the preceding sentence, the
term “Maximum Period” shall mean, with respect to a
participant, the three-month period beginning on the first day of
the participant’s leave of absence; provided, however, that
if the participant’s right to reemployment by the Company (or
a parent or subsidiary corporation of the Company) is provided
either by statute or contract, then such three-month period shall
be extended until the last day upon which such reemployment rights
are so provided.
(g) Continuing Election. Subject to
the limitation set forth in subparagraph 6(e), a participant
(i) who has elected to participate in the Plan pursuant to
subparagraph 6(b) as of a Date of Grant and (ii) who takes no
action to change or revoke such election as of the next following
Date of Grant and/or as of any subsequent Date of Grant prior to
any such respective Date of Grant shall be deemed to have made the
same election, including the same attendant payroll deduction
authorization, for such next following and/or subsequent Date(s) of
Grant as was in effect immediately prior to such respective Date of
Grant. Payroll deductions that are limited by subparagraph 6(e)
shall re-commence at the rate provided in such participant’s
payroll deduction authorization at the beginning of the first
Option Period that is scheduled to end in the following calendar
year, unless the participant changes the amount of his payroll
deduction authorization pursuant to paragraph 6, withdraws from the
Plan as provided in paragraph 8 or is terminated from the Plan as
provided in paragraph 9.
(a) General Statement. Subject to
the limitation set forth in subparagraph 6(e), each participant in
the Plan automatically and without any act on his part shall be
deemed to have exercised his option on each Date of Exercise to the
extent of his unused payroll deductions under the Plan and to the
extent the issuance of Stock to such participant upon such exercise
is lawful. If the total number of shares of Stock for which options
are exercised on any Date of Exercise exceeds the maximum number of
shares then available for sale under the Plan, the Company shall
allocate the remaining shares by reducing participants’
designated payroll deduction authorization percentages in order of
the highest percentages until the excess is eliminated, and any
remaining balance of payroll deductions credited to the account of
a participant under the Plan shall be refunded to him
promptly.
(b) “Option Price”
Defined
|
