Exhibit 10.47
KLA-TENCOR
CORPORATION
AMENDED AND RESTATED 1997
EMPLOYEE STOCK PURCHASE PLAN
(as amended and restated as of
November 17, 1998
and as subsequently amended to date (December
11, 2008))
The following constitute the
provisions of the 1997 Employee Stock Purchase Plan, as amended,
(the “Plan”) of KLA-Tencor Corporation (the
“Company”). Certain definitions of terms used in the
Plan are provided in Section 2 below.
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 (or other methods, to the extent
permitted by the Board pursuant to Section 6(a) below). It is
the Company’s intention that the Plan qualify as an
“Employee Stock Purchase Plan” under Section 423
of the Code. The provisions of the Plan shall, accordingly, be
construed so as to extend and limit participation in a manner
consistent with the requirements of that section of the Code. The
Plan will also be extended to Employees of foreign Subsidiaries
subject to adjustments, in the sole discretion of the Board of
Directors, to take into account the requirements of the local laws
associated with the particular Subsidiary. These local requirements
may not provide the same favorable tax consequences as are
available to participants in the United States.
(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, $.001 par value, of the Company.
(d) “COMPANY” shall mean
KLA-Tencor Corporation, a Delaware corporation.
(e) “COMPENSATION”
Compensation shall mean all amounts includable as
“wages” subject to tax under Section 3101(a) of
the Code without applying the dollar limitation of
Section 3121(a) of the Code. Accordingly, Compensation shall
include, without limitation, salaries, commissions, bonuses and
overtime. Compensation shall not include reimbursements of
expenses, allowances, or any amount deemed received without the
actual transfer of cash or any Company contributions or payments to
any trust, fund, or plan to provide retirement, pension, profit
sharing, health, welfare, death, insurance or similar benefits to
or on behalf of such Participant or any other payments not
specifically referenced above, except to the extent that the
inclusion of any such item with respect to all Participants on a
nondiscriminatory basis is specifically approved by the
Board.
(f) “CONTINUOUS STATUS AS AN
EMPLOYEE” shall mean the absence of any interruption or
termination of service as an Employee. Continuous Status as an
Employee shall not be considered interrupted in the case of a leave
of absence agreed to in writing by the Company, provided that such
leave is for a period of not more than ninety (90) days or
re-employment upon the expiration of such leave is guaranteed by
contract or statute.
(g) “DESIGNATED
SUBSIDIARIES” shall mean the Subsidiaries which have been
designated by the Board from time to time in its sole discretion as
eligible to participate in the Plan.
(h) “EMPLOYEE” shall
mean any person, including an officer, who is customarily employed
for at least 20 hours per week and more than five months in a
calendar year by the Company or one of its Designated
Subsidiaries.
(i) “ENROLLMENT DATE”
shall mean the first day of each Offering Period.
(j) “EXERCISE DATE”
shall mean June 30 of each year for each Offering Period that
commences on January 1 and December 31 of each year for
each Offering Period that commences on July 1.
(k) “OFFERING PERIOD”
shall mean a period of six (6) months commencing on
January 1 and July 1 of each year during which an option
granted pursuant to the Plan may be exercised.
(l) “PLAN” shall mean
this 1997 Employee Stock Purchase Plan.
(m) “SUBSIDIARY” shall
mean a corporation, domestic or foreign, of which not less than
fifty percent (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.
(a) Any Employee who shall be
employed by the Company or one of its Designated Subsidiaries on a
given Enrollment Date and who has been so employed for at least 30
consecutive days immediately prior to such date shall be eligible
to participate in the Plan, subject to limitations imposed by
Section 423(b) of the Code or other applicable local law. The
Board, in its discretion, from time to time, may, prior to an
Enrollment Date for all options to be granted on such Enrollment
Date, determine (on a uniform and nondiscriminatory basis) the
Employees who will or will not be eligible to participate in the
Plan consistent with Section 423(b)(4) of the Code.
(b) Any provisions of the Plan to
the contrary notwithstanding, no Employee shall be granted an
option under the Plan (i) if, 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 stock and/or hold outstanding options to purchase stock
possessing five percent or more of the total combined voting power
or value of all classes of stock of the Company or of any
Subsidiary, or (ii) which permits such Employee’s rights
to purchase stock under all employee stock purchase plans of the
Company and its Subsidiaries to accrue at a rate which exceeds
US$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.
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The Plan shall be implemented by
consecutive Offering Periods with a new Offering Period commencing
on January 1 and July 1 of each year, or as otherwise
determined by the Board, until the Plan is terminated in accordance
with Section 19 hereof. The Board shall have the power to
change the duration of Offering Periods, not to exceed twenty-seven
(27) months, with respect to future offerings without
stockholder approval if such change is announced at least fifteen
(15) days prior to the scheduled beginning of the first
Offering Period to be affected.
(a) An eligible Employee may become
a participant in the Plan by completing a subscription agreement
authorizing payroll deductions on the form provided by the Company
and filing it with the Company’s Plan administrator (or its
designate) during the open enrollment period prior to the
applicable Enrollment Date, unless a later time for filing the
subscription agreement is set by the Board for all eligible
Employees with respect to a given Offering Period.
(b) Payroll deductions for a
participant shall commence on the first payroll date following the
Enrollment Date and shall end on the last payroll date in the
Offering Period to which such authorization is applicable, unless
sooner terminated by the participant as provided in
Section 10.
(a) At the time a participant files
his subscription agreement, he shall elect to have payroll
deductions made on each pay date during the Offering Period in an
amount not exceeding ten percent (10%) of the Compensation
which he receives on each pay date during the Offering Period, and
the aggregate of such payroll deductions during the Offering Period
shall not exceed ten percent (10%) of his aggregate
Compensation during said Offering Period. If the Board determines
that payroll deductions are not feasible in a particular country
outside the United States, the Board may permit an eligible
participant to participate in the Plan by an alternative means,
such as by check; however, the rate of contributions may not exceed
any whole number percentage (as determined by the Board) of the
participant’s aggregate Compensation up to ten percent
(10%) (or such greater percentage, as specified by the Board)
to apply to an Offering Period.
(b) All payroll deductions made by a
participant shall be credited to his account under the Plan. A
participant may not make any additional payments into such account,
except as provided under Section 6(a).
(c) The deduction rate so authorized
shall continue in effect for the entire Offering Period, unless the
participant shall reduce such rate by filing the appropriate form
with the Plan Administrator (or its designate). The reduced rate
shall become effective as soon as practicable following the filing
of such form.
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(d) Notwithstanding the foregoing,
to the extent necessary to comply with Section 423(b)(8) of
the Code and Section 3(b) herein, the Company may
automatically decrease a participant’s payroll deductions to
zero percent (0%) at such time during any Offering Period which is
scheduled to end during the current calendar year. 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.
(a) On the Enrollment Date of each
Offering Period, each eligible Employee participating in such
Offering Period shall be granted an option to purchase the
applicable Exercise Date for the Offering Period (at the per share
option price) up to a number of shares of the Company’s
Common Stock determined by dividing such Employee’s payroll
deductions accumulated during such Offering Period by eighty-five
percent (85%) of the fair market value of a share of the
Company’s Common Stock on the Enrollment Date or on the
Exercise Date, whichever is lower, provided that the number of
shares subject to the option shall not exceed two hundred percent
(200%) of the number of shares determined by dividing ten
percent (10%) of the Employee’s Compensation over the
Offering Period by eighty-five percent (85%) of the fair
market value of a share of the Company’s Common Stock on the
Enrollment Date, subject to the limitations set forth in
Sections 3(b) and 12 hereof. Fair market value of a share of
the Company’s Common Stock shall be determined as provided in
Section 7(b) herein.
(b) The option price per share of
the shares offered in a given Offering Period shall be the lower
of: (i) eighty-five percent (85%) of the fair market
value of a share of the Common Stock of the Company on the
Enrollment Date; or (ii) eighty-five percent (85%) of the
fair market va
