Exhibit 10.20
ITRON, INC.
AMENDED AND
RESTATED
2002 EMPLOYEE STOCK PURCHASE
PLAN
As adopted by
the board on February 28, 2005 and approved by the shareholders on
May 3, 2005
and amended by the board on
December 16, 2008
SECTION
1. PURPOSE
The purposes of the Itron, Inc. Amended and
Restated 2002 Employee Stock Purchase Plan (the “Plan”)
are to (a) assist employees of Itron, Inc., a Washington
corporation (the “Company”), and its parent and
subsidiary corporations in acquiring a stock ownership interest in
the Company, and (b) help employees provide for their future
security and to encourage them to remain in the employment of the
Company and its subsidiary corporations. It is the
intention of the Company that the Plan qualify as an
“employee stock purchase plan” under Section 423 of the
Internal Revenue Code of 1986, as amended (the “Code”)
(the “Section 423 Plan”), although the Company makes no
undertaking nor representation to maintain such
qualification. In addition, the Plan authorizes the
grant of Options (as defined below) that do not qualify under
Section 423 of the Code (the “Non-423 Plan”) pursuant
to rules, procedures or sub-plans adopted by the Plan Administrator
(as defined below) designed to achieve favorable taxation,
compliance with securities laws or other legal requirements or
other objectives of the Company in particular locations outside the
United States. Except as otherwise indicated, the
Section 423 Plan and the Non-423 Plan will operate and be
administered in the same manner.
SECTION
2. DEFINITIONS
For purposes of the Plan, the following terms
shall be defined as set forth below.
“ Additional Shares” has the
meaning set forth in Section 8.2.
“Board” means the Board of Directors of the
Company.
“Change Notice Date”
has the meaning set forth in Section
11.1.
“Code” means the Internal Revenue Code of 1986, as
amended.
“Company” means Itron, Inc., a Washington
corporation.
“Company Transaction”
means any of the following
events:
(a) Consummation of any merger or consolidation
of the Company with or into another corporation;
(b) Consummation of any sale, lease, exchange or
other transfer in one transaction or a series of related
transactions of all or substantially all the Company’s
outstanding securities or all or substantially all the
Company’s assets other than a transfer of the Company’s
assets to a majority-owned Subsidiary Corporation; or
(c) Acquisition by a person, within the meaning
of Section 3(a)(9) or of Section 13(d)(3) (as in effect on the date
of adoption of the Plan) of the Exchange Act of a majority or more
of the Company’s outstanding voting securities (whether
directly or indirectly, beneficially or of record). Ownership of
voting securities shall take into account and shall include
ownership as determined by applying Rule 13d-3(d)(1)(i) (as in
effect on the date of adoption of the Plan) under the Exchange
Act.
“Designated Corporation”
has the meaning set forth under the
definition of “Eligible Employee” in this Section
2.
“Eligible Compensation”
means all regular cash compensation,
including overtime, cash bonuses and commissions. Regular cash
compensation does not include severance pay, hiring and relocation
bonuses, pay in lieu of vacations, sick leave or any other special
payments.
“Eligible Employee”
means any employee of the Company
(or any Parent Corporation or Subsidiary Corporation designated by
the Plan Administrator (a “Designated Corporation”))
who is in the employ of the Company (or any such Designated
Corporation) on one or more Offering Dates and who meets the
following criteria:
(a) the employee does not, immediately after the
Option is granted, own stock (as defined by Code Sections 423(b)(3)
and 424(d)) possessing 5% or more of the total combined voting
power or value of all classes of stock of the Company or of a
Parent or Subsidiary Corporation;
(b) the employee’s customary employment is
for 20 hours or more per week or any lesser number of hours
established by the Plan Administrator for a future Offering;
and
(c) the employee’s customary employment is
for more than five months in any calendar year or any lesser number
of months established by the Plan Administrator for a future
Offering.
If the Company permits employees of a Designated
Corporation to participate in the Plan, the Plan Administrator
shall determine whether such employees of a Designated Corporation
shall participate in the Section 423 Plan or the Non-423
Plan.
“ESPP Broker”
has the meaning set forth in Section
10.
“Exchange Act”
means the Securities Exchange Act of
1934, as amended.
“Fair Market Value”
shall be as established in good
faith by the Plan Administrator or, if the Stock is listed on the
Nasdaq National Market (or any national stock exchange (an
“exchange”) on which the Stock is at the time listed or
admitted to trading), Fair Market Value shall mean the closing
price of the Stock on the Offering Date or on the Purchase Date, as
applicable. If no sales of the Stock were made on the Nasdaq
National Market (or an exchange) on the applicable date, Fair
Market Value shall mean the closing price of a share of the Stock
as reported for the next preceding day on which sales of the Stock
were made on the Nasdaq National Market (or an
exchange).
“Offering”
has the meaning set forth in Section
5.1.
“Offering Date”
means the first day of an
Offering.
“Option” means an option granted under the Plan to an
Eligible Employee to purchase shares of Stock.
“Non-423 Plan”
means an employee stock purchase
plan which does not meet the requirements set forth in Section 423
of the Code.
“Parent Corporation”
means any corporation, other than
the Company, in an unbroken chain of corporations ending with the
Company if, at the time of the granting of the Option, each of the
corporations, other than the Company, owns stock possessing 50% or
more of the total combined voting power of all classes of stock in
one of the other corporations in such chain.
“Participant”
means any Eligible Employee who has
elected to participate in an Offering in accordance with the
procedures set forth in Section 6.1 and who has not withdrawn from
the Plan or whose participation in the Plan is not
terminated.
“Plan” means the Itron, Inc. Amended and Restated 2002
Employee Stock Purchase Plan, as set forth herein, and as amended
from time to time, which includes a Section 423 Plan and a Non-423
Plan.
“Plan Administrator”
means any committee of the Board
designated to administer the Plan under
Section 3.1.
“Purchase Date”
means the last day of each Purchase
Period.
“Purchase Period”
has the meaning set forth in Section
5.2.
“Purchase Price”
has the meaning set forth in Section
8.
“Section 423 Plan”
means an employee stock purchase
plan which is designed to meet the requirements set forth in
Section 423 of the Code. The provisions of the Section
423 Plan shall be construed, administered and enforced in
accordance with Section 423 of the Code.
“Stock” means the common stock, no par value, of the
Company.
“Subscription Date”
means the last day on which an
Eligible Employee may enroll in an Offering Period.
“Subsidiary Corporation”
means any corporation, other than
the Company, in an unbroken chain of corporations beginning with
the Company if, at the time of the granting of the Option, each of
the corporations, other than the last corporation in the unbroken
chain, owns stock possessing 50% or more of the total combined
voting power of all classes of stock in one of the other
corporations in such chain.
“Successor Corporation”
has the meaning set forth in Section
20.3.
SECTION
3. ADMINISTRATION
3.1 Plan
Administrator
The Plan shall be administered by the
Compensation Committee of the Board, except to the extent that the
Board appoints another committee or committees (which term includes
subcommittees) consisting of one or more members of the Board to
administer the Plan. Committee members shall serve for such terms
as the Board may determine, subject to removal by the Board at any
time.
3.2 Administration and
Interpretation by the Plan Administrator
Subject to the provisions of the Plan, the Plan
Administrator shall have exclusive authority, in its discretion, to
determine all matters relating to Options granted under the Plan,
including all terms, conditions, restrictions and limitations of
Options; provided, however, that all Participants granted Options
pursuant to the Plan shall have the same rights and privileges
within the meaning of Code Section 423(b)(5). The Plan
Administrator shall also have exclusive authority to interpret the
Plan and may from time to time adopt, and change, rules and
regulations of general application for the Plan’s
administration. The Plan Administrator’s interpretation of
the Plan and its rules and regulations, and all actions taken and
determinations made by the Plan Administrator pursuant to the Plan,
shall be conclusive and binding on all parties involved or
affected. The Plan Administrator may delegate administrative duties
to such of the Company’s officers or employees as it so
determines.
SECTION
4. STOCK SUBJECT TO PLAN
Subject to adjustment from time to time as
provided in Section 20, the maximum number of shares of Stock that
shall be available for issuance under the Plan shall be 704,411
shares.
Shares issued under the Plan shall be drawn from
authorized and unissued shares or shares now held or subsequently
acquired by the Company.
SECTION
5. OFFERING DATES
5.1 Offerings
Except as otherwise set forth below, the Plan
shall be implemented by a series of Offerings (each, an
“Offering”). Offerings shall commence on January 1,
April 1, July 1 and October 1 of each year and end on the next
March 31, June 30, September 30 and December 31, respectively,
occurring thereafter. Notwithstanding the foregoing, the Plan
Administrator may establish (a) a different term for one or more
future Offerings and (b) different commencing and ending dates for
such Offerings; provided, however, that an Offering may not exceed
five years. In the event the first or the last day of an Offering
is not a regular business day, then the first day of the Offering
shall be deemed to be the next regular business day and the last
day of the Offering shall be deemed to be the last preceding
regular business day.
5.2 Purchase
Periods
Each Offering shall consist of one Purchase
Period (a “Purchase Period”). The last day of each
Purchase Period shall be the Purchase Date for such Purchase
Period. Purchase Periods shall commence on January 1, April 1, July
1 and October 1 of each year and shall end on the next March 31,
June 30, September 30 and December 31, respectively, occurring
thereafter. Notwithstanding the foregoing, the Plan Administrator
may establish (a) a different term for one or more future Purchase
Periods and (b) different commencing dates and Purchase Dates for
any such Purchase Period. In the event the first or last day of a
Purchase Period is not a regular business day, then the first day
of the Purchase Period shall be deemed to be the next regular
business day and the last day of the Purchase Period shall be
deemed to be the last preceding regular business day.
SECTION
6. PARTICIPATION IN THE PLAN
6.1 Initial
Participation
An Eligible Employee shall become a Participant
on the first Offering Date after satisfying the eligibility
requirements and delivering to the Company’s payroll office
not later than the last business day before such Offering Date (the
“Subscription Date”) a subscription agreement
indicating the Eligible Employee’s election to participate in
the Plan and authorizing payroll deductions or other contributions.
An Eligible Employee who does not deliver a subscription agreement
to the Company’s payroll office on or before the Subscription
Date shall not participate in the Plan for that Offering or for any
subsequent Offering, unless such Eligible Employee subsequently
enrolls in the Plan by filing a subscription agreement with the
Company by the Subscription Date for such subsequent Offering. The
Plan Administrator may, from time to time, change the Subscription
Date as deemed advisable by the Plan Administrator in its sole
discretion for the proper administration of the Plan.
An employee who becomes eligible to participate
in the Plan after an Offering has commenced shall not be eligible
to participate in such Offering but may participate in any
subsequent Offering, provided that such employee is still an
Eligible Employee as of the commencement of any such subsequent
Offering. Eligible Employees may not participate in more than one
Offering at a time.
6.2 Continued
Participation
If a Participant withdraws from an Offering
pursuant to Section 11.2, the Participant is required to file a new
subscription agreement, as provided in Section 6.1, for the next
Offering in which the Participant wishes to participate.
SECTION
7. LIMITATIONS ON RIGHT TO PURCHASE
SHARES
7.1 $25,000
Limitation
No Participant shall be entitled to purchase
Stock under the Plan (or any other employee stock purchase plan
that is intended to meet the requirements of Code Section 423
sponsored by the Company, a Parent Corporation or a Subsidiary
Corporation) at a rate that exceeds $25,000 in Fair Market Value,
determined as of the Offering Date for each Offering (or such other
limit as may be imposed by the Code), for each calendar year in
which a Participant participates in the Plan (or any other employee
stock purchase plan described in this Section 7.1).
7.2 Number of Shares
Purchased
No Participant shall be entitled to purchase
more than 250 shares of Stock (or such other number as the Plan
Administrator shall specify for a future Offering) under the Plan
in any Purchase Period.
7.3 Pro Rata
Allocation
In the event the number of shares of Stock that
might be purchased by all Participants in the Plan exceeds the
number of shares of Stock available in the Plan, the Plan
Administrator shall make a pro rata allocation of the remaining
shares of Stock in as uniform a manner as shall be practicable and
as the Plan Administrator shall determine to be equitable.
Fractional shares may be issued under the Plan only to the extent
permitted by the Board or the Plan Administrator.
SECTION
8. PURCHASE PRICE
The purchase price (the “Purchase
Price”) at which Stock may be acquired in an Offering
pursuant to the exercise of all or any portion of an Option granted
under the Plan shall be 85% of the Fair Market Value of the Stock
on the Purchase Date. Notwithstanding the foregoing, the Plan
Administrator may establish a different Purchase Price for any
Offering, which shall not be less than the Purchase Price set forth
in the preceding sentence.
SECTION
9. PAYMENT OF PURCHASE PRICE
9.1 General
Rules
Subject to Section 9.11, Stock that is acquired
pursuant to the exercise of all or any portion of an Option may be
paid for only by means of payroll deductions from the
Participant’s Eligible Compensation, except that eligible
employees participating in the Non-423 Plan (or the Section 423
Plan if permitted under Code Section 423 regulations) may
participate in the Plan through other means specified by the Plan
Administrat
