Exhibit 10.3
INTERWOVEN, INC.
EMPLOYEE STOCK PURCHASE PLAN
As
Amended and Restated by the Board on April 17, 2008
1. Establishment of
Plan. Interwoven, Inc. (the “ Company
”) originally established this Employee Stock Purchase Plan
(this “ Plan ”) in 1999 and amended and
restated the Plan in 2008. For purposes of this Plan, “
Parent Corporation ” and “
Subsidiary ” 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
Subsidiaries ” are Parent Corporations or
Subsidiaries that the Board of Directors of the Company (the
“ Board ”) designates from time to time
as corporations that shall participate in this Plan. 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 3,000,000 shares of the
Company’s Common Stock were reserved for issuance under this
amended and restated Plan when originally adopted (taking into
account splits of the Company’s Common Stock). In addition,
on each January 1, the aggregate number of shares of the
Company’s Common Stock reserved for issuance under the Plan
shall be increased automatically by a number of shares equal to 1%
of the total number of outstanding shares of the Company Common
Stock on the immediately preceding December 31;
provided that the aggregate number of shares issued over the
term of this Plan shall not exceed 6,000,000 shares. Such number
shall be subject to adjustments effected in accordance with
Section 14 of this Plan.
2. Purpose. The purpose
of this Plan is to provide eligible employees of the Company and
Participating Subsidiaries 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 Subsidiaries, and to provide an
incentive for continued employment.
3. Administration. This
Plan shall be administered by the Compensation Committee of the
Board, and subject to applicable law, the Committee may delegate
authority under the plan to a committee to administer certain
provisions of the Plan as the Committee deems appropriate (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 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.
4. Eligibility. Any
employee of the Company or the Participating Subsidiaries is
eligible to participate in an Offering Period (as hereinafter
defined) under this Plan except the following:
(a) employees
who are not employed by the Company or a Participating Subsidiary
(10) days before the beginning of such Offering Period;
(b) employees
who are customarily employed for twenty (20) hours or less per
week;
(c) employees
who are customarily employed for five (5) months or less in a
calendar year;
(d) 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 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 Subsidiaries 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 voting power or value of all classes of stock of the
Company or any of its Participating Subsidiaries; and
(e) individuals
who provide services to the Company or any of its Participating
Subsidiaries as independent contractors who are reclassified as
common law employees for any reason except for
federal income and employment tax purposes.
5. Offering Dates. The
offering periods of this Plan (each, an “ Offering
Period ”) shall be of six (6) months duration
commencing on May 1 and November 1 of each year and ending on
April 30 and October 31 of each year. Each Offering
Period shall consist of one (1) six month purchase period (a
“ Purchase Period ”) during which payroll
deductions of the participants are accumulated under this Plan. The
first business day of each Offering Period is referred to as the
“ Offering Date ”. The last business day
of each Purchase Period is referred to as the “
Purchase Date ”. The Committee shall have the
power to change the duration of Offering Periods with respect to
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.
6. Participation in this
Plan. Eligible employees may become participants in an Offering
Period under this Plan on the first Offering Date after satisfying
the eligibility requirements by delivering a subscription agreement
to the Company’s Legal Department (the “ Legal
Department ”) not later than five (5) days
before such Offering Date. Notwithstanding the foregoing, the
Committee may set a later time for filing the subscription
agreement authorizing payroll deductions for all eligible employees
with respect to a given Offering Period. An eligible employee who
does not deliver a subscription agreement to the Legal Department
by such date after becoming eligible to participate in such
Offering Period shall not participate in that Offering Period or
any subsequent Offering Period unless such employee enrolls in this
Plan by filing a subscription agreement with the Legal Department
not later than five (5) days preceding a subsequent Offering
Date. 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. Such participant is
not required to file any additional subscription agreement in order
to continue participation in this Plan.
7. Grant of Option on
Enrollment. Enrollment by an eligible employee in this Plan
with respect to an Offering Period will constitute the grant (as of
the Offering Date) 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 employee’s payroll deduction account
during such Purchase Period by (b) the lower of
(i) eighty-five percent (85%) of the fair market value of a
share of the Company’s Common Stock on the Offering Date (but
in no event less than the par value of a share of the
Company’s Common Stock), or (ii) eighty-five percent
(85%) of the fair market value of a share of the Company’s
Common Stock on the Purchase Date (but in no event less than the
par value of a share of the Company’s Common Stock),
provided , however , that the number of shares of the
Company’s Common Stock subject to any option granted pursuant
to this Plan shall not exceed the lesser of (x) the maximum
number of shares set by the Committee pursuant to Section 10(c)
below with respect to the applicable Purchase Date, or (y) the
maximum number of shares which may be purchased pursuant to Section
10(b) below with respect to the applicable Purchase Date. The fair
market value of a share of the Company’s Common Stock shall
be determined as provided in Section 8 below.
8. Purchase Price. The
purchase price per share 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 .
For
purposes of this Plan, the term “ Fair Market
Value ” means, as of any Offering Date, the value of
a share of the Company’s Common Stock determined as
follows:
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(a) |
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if such Common Stock is then quoted on the NASDAQ Global
Market, its closing price on the NASDAQ Global Market on the
business day immediately prior to the Offering Date as reported in
The Wall Street Journal ; |
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(b) |
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if such Common Stock is publicly traded and is then listed on a
national securities exchange, its closing price on the business day
immediately prior to the Offering Date on the principal national
securities exchange on which the Common Stock is listed or admitted
to trading as reported in The Wall Street Journal ; |
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(c) |
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if such Common Stock is publicly traded but is not quoted on
the NASDAQ Global Market nor listed or admitted to trading on a
national securities exchange, the average of the closing bid and
asked prices on the business day immediately prior to the Offering
Date as reported in The Wall Street Journal ; or |
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(d) |
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if none of the foregoing is applicable, then by the Board in
good faith. |
9. Payment of Purchase
Price; Changes in Payroll Deductions; Issuance of Shares.
(a) The
purchase price of the shares is accumulated by regular payroll
deductions made during each Offering Period. The deductions are
made as a percentage of the participant’s compensation in one
percent (1%) increments not less than two percent (2%), nor greater
than fifteen percent (15%) or such lower limit set by the
Committee. Compensation shall mean all W-2 cash compensation,
including, but not limited to, base salary, wages, commissions,
overtime, shift premiums and bonuses, plus draws against
commissions, provided , however , that for purposes
of determining a participant’s 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. 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 decrease the rate of payroll deductions during an
Offering Period by filing with the Legal Department a new
authorization for payroll deductions, in which case the new rate
shall become effective for the next payroll period commencing more
than fifteen (15) days after the Legal Department’s
receipt of the authorization 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) change
may be made effective during any Purchase Period. A participant may
increase or decrease the rate of payroll deductions for any
subsequent Offering Period by filing with the Legal Department a
new authorization for payroll deductions not later than fifteen
(15) days before the beginning of such Offering Period.
(c) A
participant may reduce his or her payroll deduction percentage to
zero during an Offering Period by filing with the Legal Department
a request for cessation of payroll deductions. Such reduction shall
be effective beginning with the next payroll period commencing more
than fifteen (15) days after the Legal Department’s
receipt of the request and no further payroll deductions will be
made for the duration of the Offering Period. Payroll deductions
credite
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