EXHIBIT 10.4
CASCADE MICROTECH,
INC.
AMENDED AND
RESTATED
2004 EMPLOYEE STOCK PURCHASE
PLAN
The following constitute the
provisions of the 2004 Employee Stock Purchase Plan of Cascade
Microtech, Inc. The Plan was adopted by the Board on
February 27, 2004, effective as of the date of the
Company’s IPO, and was amended and restated on
February 6, 2009, effective as of April 30,
2009.
1. Purpose . The purpose of
the Plan is to provide employees of the Company and its Designated
Subsidiaries with an opportunity to purchase Common Stock of the
Company through accumulated payroll deductions. It is the intention
of the Company to have the Plan qualify as an “Employee Stock
Purchase Plan” under Section 423 of the Internal Revenue
Code of 1986, as amended. The provisions of the Plan, accordingly,
shall be construed so as to extend and limit participation in a
manner consistent with the requirements of that section of the
Code.
2. Definitions .
(a) “Board” shall mean
the Board of Directors of the Company.
(b) “Code” shall mean
the Internal Revenue Code of 1986, as amended.
(c) “Common Stock” shall
mean the common stock of the Company.
(d) “Company” shall mean
Cascade Microtech, Inc. an Oregon corporation, and any Designated
Subsidiary of the Company.
(e) “Compensation” shall
mean all base straight time gross earnings and commissions, but
exclusive of payments for overtime, shift premium, incentive
compensation, incentive payments, bonuses and other
compensation.
(f) “Designated
Subsidiary” shall mean any Subsidiary which has been
designated by the Board from time to time in its sole discretion as
eligible to participate in the Plan.
(g) “Employee” shall
mean any individual who is an Employee of the Company for tax
purposes whose customary employment with the Company is at least
twenty (20) hours per week and more than five (5) months
in any calendar year. For purposes of the Plan, the employment
relationship shall be treated as continuing intact while the
individual is on sick leave or other leave of absence approved by
the Company. Where the period of leave exceeds 90 days and the
individual’s right to re-employment is not guaranteed either
by statute or by contract, the employment relationship shall be
deemed to have terminated on the 91st day of such leave.
(h) “Enrollment Date”
shall mean the first Trading Day of each Offering
Period.
(i) “Fair Market Value”
shall mean, as of any date, the value of Common Stock determined as
follows:
(1) If the Common Stock is listed on
any established stock exchange or a national market system,
including without limitation the Nasdaq National Market or The
Nasdaq SmallCap Market of The Nasdaq Stock Market, its Fair Market
Value shall be the closing sales price for such stock (or the
closing bid, if no sales were reported) as quoted on such exchange
or system for the last market trading day on or before the date of
such determination, as reported in The Wall Street Journal or such
other source as the Board deems reliable;
1
(2) If the Common Stock is regularly
quoted by a recognized securities dealer but selling prices are not
reported, its Fair Market Value shall be the mean of the closing
bid and asked prices for the Common Stock for the last quotation
day on or before the date of such determination, as reported in The
Wall Street Journal or such other source as the Board deems
reliable; or
(3) In the absence of an established
market for the Common Stock, the Fair Market Value thereof shall be
determined in good faith by the Board.
(j) “IPO” shall mean the
initial offering of Common Stock to the public pursuant to a
registration statement filed by the Company with the Securities and
Exchange Commission.
(k) “Offering Periods”
shall mean the periods of approximately six (6) months
commencing on the first Trading Day on or after May 1 and
November 1 of each year and terminating on the last Trading
Day in the period ending six (6) months later. The duration
and timing of Offering Periods may be changed pursuant to
Section 4 of this Plan.
(l) “Plan” shall mean
this 2004 Employee Stock Purchase Plan.
(m) “Purchase Date”
shall mean the last day of each Offering Period.
(n) “Purchase Price”
shall mean an amount equal to 85% of the Fair Market Value of a
share of Common Stock on the Enrollment Date or on the Purchase
Date, whichever is lower.
(o) “Reserves” shall
mean the number of shares of Common Stock covered by each option
under the Plan which have not yet been exercised and the number of
shares of Common Stock which have been authorized for issuance
under the Plan but not yet placed under option.
(p) “Subsidiary” shall
mean a corporation, domestic or foreign, of which not less than 50%
of the voting shares are held by the Company or a Subsidiary,
whether or not such corporation now exists or is hereafter
organized or acquired by the Company or a Subsidiary.
(q) “Trading Day” shall
mean a day on which national stock exchanges and the Nasdaq System
are open for trading.
(r) “Valuation Date”
shall mean the date on which the Fair Market Value of Common Stock
is to be determined for purposes of setting the price of Shares of
Common Stock under Section 2(n) (that is, the Enrollment Date
or the applicable Purchase Date). If the Enrollment Date is not a
date on which the Fair Market Value may be determined in accordance
with Section 2(i), the Valuation Date shall be the first day
after the Enrollment Date for which such Fair Market Value may be
determined. If the Purchase Date is not a date on which the Fair
Market Value may be determined in accordance with Section 2(i)
the Valuation Date shall be the first date prior to the Purchase
Date on which such Fair Market Value may be determined.
3. Eligibility .
(a) Any Employee who shall be
employed by the Company on a given Enrollment Date shall be
eligible to participate in the Plan.
(b) Any provisions of the Plan to
the contrary notwithstanding, no Employee shall be granted an
option under the Plan (i) to the extent that, immediately
after the grant, such Employee (or any other person whose stock
would be attributed to such Employee pursuant to
Section 424(d) of the Code) would own capital stock of the
Company and/or hold outstanding options to purchase such stock
possessing five percent (5%) or more of the total combined
voting power or value of all classes of the capital stock of the
Company or of any Subsidiary, or (ii) to the extent that his
or her rights to purchase stock under all employee stock purchase
plans of the Company and its subsidiaries accrues at a rate which
exceeds Twenty-Five Thousand Dollars ($25,000) worth of stock
(determined at the fair market value of the shares at the time such
option is granted) for each calendar year in which such option is
outstanding at any time.
2
4. Offering Periods . The
Plan shall be implemented by consecutive Offering Periods with a
new Offering Period commencing on the first Trading Day on or after
May 1 and November 1 each year, or on such other date as
the Board shall determine, and continuing for six-month periods
thereafter until terminated in accordance with Section 20
hereof. The Board shall have the power to change the duration of
Offering Periods (including the commencement dates thereof) with
respect to future offerings without shareholder approval if such
change is announced at least five (5) days prior to the
scheduled beginning of the first Offering Period to be affected
thereafter.
5. Participation . An
eligible Employee may become a participant in the Plan by
completing a subscription agreement authorizing payroll deductions
in the form of Exhibit A to this Plan and filing it with the
Company’s payroll office prior to the applicable Enrollment
Date.
6. Payroll Deductions
.
(a) A participant may purchase
shares of Common Stock under the Plan solely by means of payroll
deductions. At the time a participant files his or her subscription
agreement, he or she shall elect to have payroll deductions made on
each pay day during the Offering Period in one percent
(1%) increments of not less than two percent (2%) or
greater than fifteen percent (15%) of the Compensation which
he or she receives on each pay day during the Offering Period.
Payroll deductions for a participant shall commence on the first
payroll following the Enrollment Date and shall end on the last
payroll in the Offering Period to which such authorization is
applicable, unless sooner terminated by the participant as provided
in Section 10 hereof
(b) All payroll deductions made for
a participant shall be credited to his or her account under the
Plan and shall be withheld in whole percentages only. A participant
may not make any additional payments into such account.
(c) A participant may discontinue
his or her participation in the Plan as provided in Section 10
hereof, or may increase or decrease the rate of his or her payroll
deductions during the Offering Period by completing or filing with
the Company a new subscription agreement authorizing a change in
payroll deduction rate. The Board may, in its discretion, limit the
number of participation rate changes during any Offering Period.
The change in rate shall be effective with the first full payroll
period following five (5) business days after the
Company’s receipt of the new subscription agreement unless
the Company elects to process a given change in participation more
quickly. A participant’s subscription agreement shall remain
in effect for successive Offering Periods unless terminated as
provided in Section 10 hereof.
(d) Notwithstanding the foregoing,
to the extent necessary to comply with Section 423(b)(8) of
the Code and Section 3(b) hereof, a participant’s
payroll deductions may be decreased to zero percent (0%) at any
time during any Offering Period. Payroll deductions shall
recommence at the rate provided in such participant’s
subscription agreement at the beginning of the first Offering
Period which is scheduled to end in the following calendar year,
unless terminated by the participant as provided in Section 10
hereof.
(e) At the time the option is
exercised, in whole or in part, or at the time some or all of the
Company’s Common Stock issued under the Plan is disposed of,
the participant must make adequate provision for the
Company’s federal, state, or other tax withholding
obligations, if any, which arise upon the exercise of the option or
the disposition of the Common Stock. At any time, the Company may,
but shall not be obligated to, withhold from the
participant’s compensation the amount necessary for the
Company to meet applicable withholding obligations, including any
withholding required to make available to the Company any tax
deductions or benefits attributable to sale or early disposition of
Common Stock by the Employee.
7. Grant of Option . On the
Enrollment Date of each Offering Period, each eligible Employee
participating in such Offering Period shall be granted an option to
purchase on the Purchase Date of such Offering Period (at the
applicable Purchase Price) up to a number of shares of the
Company’s Common Stock determined by dividing such
Employee’s payroll deductions accumulated prior to and during
the Offering Period and retained in the Participant’s account
as of the Purchase Date by the applicable Purchase Price; provided
that in no event shall an Employee be permitted to purchase during
each Offering Period more than the number of shares of the
Company’s
3
Common Stock determined by dividing $12,500 by
the fair market value of a share of the Company’s Common
Stock on the Enrollment Date, and provided further that such
purchase shall be subject to the limitations set forth in Sections
3(b) and 8(b) hereof. Exercise of the option shall occur as
provided in Section 8 hereof, unless the participant has
withdrawn pursuant to Section 10 hereof. The option shall
expire on the last day of the Offering Period.
8. Exercise of Option
.
(a) Unless a participant withdraws
from the Plan as provided in Section 10 hereof, his or her
option for the purchase of shares of the Company’s Common
Stock shall be exercised automatically on the Purchase Date, and
the maximum number of full shares subject to the option shall be
purchased for such participant at the applicable Purchase Price
with the accumulated payroll deductions in his or her account. No
fractional shares shall be purchased; any payroll deductions
accumulated in a participant’s account which are not
sufficient to purchase a full share shall be retained in the
participant’s account for the subsequent Offering Period,
subject to earlier withdrawal by the participant as provided in
Section l0 hereof. During a participant’s lifetime, a
participant’s option to purchase shares hereunder is
exercisable only by him or her.
(b) If the Board determines that, on
a given Purchase Date, the number of shares with respect to which
options are to be exercised may exceed (i) the number of
shares of Common Stock that were available for sale under the Plan
on the Enrollment Date of the applicable Offering Period, or
(ii) the number of shares available for sale under the Plan on
such Purchase Date, the Board may in its sole discretion provide
that the Company shall make a pro rata allocation of the shares of
Common Stock available for purchase on such Enrollment Date or
Purchase Date, as applicable, in as uniform a manner as shall be
practicable and as it shall determine in its sole discretion to be
equitable among all participants exercising options to purchase
Common Stock on such Purchase Date.
9. Delivery . As promptly as
practicable after each Purchase Date, the Company shall arrange the
delivery to each participant, as appropriate, of a certificate
representing the shares purchased upon exerc
