Exhibit 10.4
NOVELLUS SYSTEMS,
INC.
AMENDED AND RESTATED 1992
EMPLOYEE STOCK PURCHASE PLAN
(Amended and Restated Effective
May 12, 2009)
The following constitute the
provisions of the Amended and Restated 1992 Employee Stock Purchase
Plan of Novellus Systems, Inc.
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 shall,
accordingly, 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, no par value, of the
Company.
(d) “ Company ”
shall mean Novellus Systems, Inc., a California
corporation.
(e) “ Compensation
” shall mean all regular straight time gross earnings,
exclusive of payments for overtime, shift premium, incentive
compensation, incentive payments, bonuses, commissions or other
compensation.
(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 three (3) months or
reemployment upon the expiration of such leave is guaranteed by
contract or statute. Where the period of leave exceeds three
(3) months and the individual’s right to reemployment is
not guaranteed either by statute or by contract, the employment
relationship will be deemed to have terminated on the first day
after such three (3) month leave, for purposes of determining
eligibility to participate in the Plan.
(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 twenty (20) hours per week and more than
five (5) months in a calendar year by the Company or one of
its Designated Subsidiaries.
(i) “ Exercise Date
” shall mean the last day of each offering period of the
Plan.
(j) “ Offering Date
” shall mean the first day of each offering period of the
Plan.
(k) “ Plan ”
shall mean this 1992 Employee Stock Purchase Plan, as amended and
restated.
(l) “ 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.
3. Eligibility .
(a) Any person who is an Employee as
of the Offering Date of a given offering period shall be eligible
to participate in such offering period under the Plan, subject to
the requirements of paragraph 5(a) and the limitations imposed
by Section 423(b) 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 (5%) or more of the total combined
voting power or value of all classes of stock of the Company or of
any subsidiary of the Company, or (ii) which permits his
rights to purchase stock under all employee stock purchase plans
(described in Section 423 of the Code) of the Company and its
subsidiaries to accrue at a rate which exceeds Twenty-five Thousand
dollars ($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 and exercisable at any time.
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4. Offering Periods . The
Plan shall be implemented by overlapping or consecutive offering
periods of no more than six (6) months duration until the Plan
is terminated in accordance with paragraph 19 hereof. The Board of
Directors of the Company shall have the power to change the
duration of offering periods with respect to future offerings
without shareholder approval if such change is announced at least
fifteen (15) days prior to the scheduled beginning of the
first offering period to be affected.
5. Participation .
(a) An eligible Employee may become
a participant in the Plan by completing a subscription agreement
authorizing payroll deduction on the form provided by the Company
and filing it with the Company’s Human Resource department
during the open enrollment period prior to the applicable Offering
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.
(b) Payroll deductions for a
participant shall commence on the first payroll following the
Offering Date and shall end on the Exercise Date of the offering to
which such authorization is applicable, unless sooner terminated by
the participant as provided in paragraph 10.
6. Payroll Deductions
.
(a) At the time a participant files
his subscription agreement, he shall elect to have payroll
deductions made on each payday during the offering period in an
amount not exceeding fifteen percent (15%) of the Compensation
which he received on the payday immediately preceding the Offering
Date, and the aggregate of such payroll deductions during the
offering period shall not exceed the lesser of (i) 15% of his
aggregate Compensation during said offering period,
(ii) $5,000 or (iii) such lesser amount determined by the
Board at least fifteen (15) days prior to the scheduled
beginning of the first offering period to be affected.
(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.
(c) A participant may discontinue
his participation in the Plan as provided in paragraph 10, or
may lower, but not increase, the rate of his payroll deductions
during the offering period by completing or filing with the Company
a new authorization for payroll deduction. The change in rate shall
be effective fifteen (15) days following the Company’s
receipt of the new authorization.
7. Grant of Option
.
(a) On the Offering Date of each
offering period, each eligible Employee participating in the Plan
shall be granted an option to purchase (at the per share option
price determined in accordance with paragraph 7(b), below) a number
of shares of the Company’s Common Stock determined by
dividing such Employee’s payroll deductions to be accumulated
during such offering period (not to exceed the amount determined in
accordance with paragraph 6(a), above) by the option price per
share determined in accordance with paragraph 7(b), below,
subject to the limitations set forth in paragraphs 3(b)
and 12 hereof; provided, however, that the maximum number of
shares that may be purchased by any Employee under any offering
period is 1,000 shares.
(b) The option price per share of
the shares offered in a given offering period shall be the lower
of: (i) 85% of the fair market value of a share of the Common
Stock of the Company on the Offering Date; or (ii) 85% of the
fair market value of a share of the Common Stock of the Company on
the Exercise Date. The fair market value of the Company’s
Common Stock on a given date shall be determined by the Board in
its good faith discretion; provided, however, that where there is a
public market for the Common Stock, the fair market value per share
shall be the closing bid price or last sale price of the Common
Stock for such date (or, if no closing bid or last sales price was
reported on such date, on the last trading date such closing bid or
last sales price was reported), as reported in the Wall Street
Journal (or, if not so reported, as reported in such other
source as the Board deems reliable).
8. Exercise of Option .
Unless a participant withdraws from the Plan as provided in
paragraph 10, his option for the purchase of shares will be
exercised automatically on the Exercise Date of the offering
period, and the maximum number of full shares subject to option
will be purchased for him at the applicable option price with the
accumulated payroll deductions in his account. The shares purchased
upon exercise of an option hereunder shall be deemed to be
transferred to the participant on the Exercise Date. During his
lifetime, a participant’s option to purchase shares hereunder
is exercisable only by him.
9. Delivery . After the
Exercise Date of each offering period, the Company shall arrange
the delivery to each participant, or to a broker designated by the
Company, as appropriate, of the shares purchased upon exercise of
his option. Any cash remaining to the credit of a
participant’s account under the Plan after a purchase by him
of shares at the termination of each offering period, or which is
insufficient to purchase a full share of Common Stock of the
Company, shall be returned to said participant.
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10. Withdrawal; Termination of
Employment .
(a) A participant may withdraw all
but not less than all the payroll deductions credited to his
account under the Plan at any time up to fifteen (15) days
prior to the Exercise Date of the offering period by giving written
notice to the Company. All of the participant’s payroll
deductions credited to his account will be paid to him after
receipt of his notice of withdrawal and his option for the current
period will be automatically terminated, and no further payroll
deductions for the purchase of shares will be made during the
offering period.
(b) Upon termination of the
participant’s Continuous Status as an Employee prior to the
Exercise Date of the offering period for any reason, including
retirement or death, the payroll deductions credited to his account
will be returned to him or, in the case of his death, to the person
or persons entitled thereto under paragraph 14, and his option
will be automatically terminated.
(c) In the event an Employee fails
to remain in Continuous Status as an Employee of the Company for at
least twenty (20) hours per week during the offering period in
which the employee is a participant, he will be deemed to have
elected to withdraw from the Plan and the payroll deductions
credited to his account will be returned to him and his option
terminated.
(d) A participant’s
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