Exhibit 10.1
R IVERBED T ECHNOLOGY , I NC .
2006 E MPLOYEE S TOCK P URCHASE P LAN
A DOPTED E FFECTIVE S EPTEMBER 20, 2006
A MENDED AND R ESTATED E FFECTIVE A PRIL 11, 2007
A MENDED AND R ESTATED E FFECTIVE A PRIL 28, 2009
TABLE OF
CONTENTS
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Page
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SECTION 1. PURPOSE OF THE PLAN
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1
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SECTION 2. ADMINISTRATION OF THE
PLAN
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1
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(a) Committee
Composition
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1
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(b) Committee
Responsibilities
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1
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SECTION 3. STOCK OFFERED UNDER THE
PLAN
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1
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(a) Authorized
Shares
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1
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(b) Anti-Dilution
Adjustments
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1
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(c) Reorganizations
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2
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SECTION 4. ENROLLMENT AND
PARTICIPATION
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2
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(a) Offering
Periods
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2
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(b) Accumulation
Periods
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2
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(c) Enrollment
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2
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(d) Duration of
Participation
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2
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(e) Applicable Offering
Period
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3
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SECTION 5. EMPLOYEE CONTRIBUTIONS
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3
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(a) Commencement of
Payroll Deductions
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3
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(b) Amount of Payroll
Deductions
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3
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(c) Changing Withholding
Rate
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3
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SECTION 6. WITHDRAWAL FROM THE PLAN
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4
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(a) Withdrawal
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4
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(b) Enrollment After
Withdrawal
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4
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SECTION 7. CHANGE IN EMPLOYMENT
STATUS
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4
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(a) Termination of
Employment
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4
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(b) Leave of
Absence
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4
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(c) Death
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4
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SECTION 8. PLAN ACCOUNTS AND PURCHASE OF
SHARES
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5
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(a) Plan
Accounts
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5
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(b) Purchase
Price
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5
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(c) Number of Shares
Purchased
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5
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(d) Available Shares
Insufficient
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5
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(e) Issuance of
Stock
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5
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(f) Tax
Withholding
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6
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(g) Unused Cash
Balances
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6
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(h) Stockholder
Approval
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6
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i
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SECTION 9. LIMITATIONS ON STOCK
OWNERSHIP
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6
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(a) Five Percent
Limit
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6
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(b) Dollar
Limit
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6
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SECTION 10. RIGHTS NOT TRANSFERABLE
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7
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SECTION 11. NO RIGHTS AS AN EMPLOYEE
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7
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SECTION 12. NO RIGHTS AS A
STOCKHOLDER
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7
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SECTION 13. SECURITIES LAW
REQUIREMENTS.
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7
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SECTION 14. SEVERABILITY.
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8
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SECTION 15. CODE SECTION 409A.
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8
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SECTION 16. AMENDMENT OR
DISCONTINUANCE
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8
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(a) General
Rule
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8
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(b) Impact on Purchase
Price
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8
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SECTION 17. GOVERNING LAW
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9
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SECTION 18. DEFINITIONS
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9
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(a) Accumulation
Period
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9
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(b) Affiliate
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9
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(c) Board
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9
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(d) Code
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9
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(e) Code
Section 423(b) Component
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9
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(f) Committee
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9
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(g) Company
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9
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(h) Compensation
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9
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(i) Corporate
Reorganization
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10
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(j) Eligible
Employee
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10
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(k) Exchange
Act
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10
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(l) Fair Market
Value
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10
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(m) IPO
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11
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(n) Non-423(b)
Component
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11
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(o) Offering
Period
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11
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(p) Participant
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11
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(q) Participating
Company
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11
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(r) Plan
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11
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(s) Plan
Account
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11
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(t) Purchase
Price
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11
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(u) Stock
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11
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(v) Subsidiary
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11
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(w) U.S. Eligible
Employee
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11
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ii
R IVERBED T ECHNOLOGY , I NC .
2006 E MPLOYEE S TOCK P URCHASE P LAN
SECTION 1. PURPOSE OF THE
PLAN.
The Board adopted the Plan effective
as of the date of the IPO. The purpose of the Plan is to provide
Eligible Employees with an opportunity to increase their
proprietary interest in the success of the Company by purchasing
Stock from the Company on favorable terms. The Plan is intended to
qualify for favorable tax treatment under section 423 of the
Code and shall be administered, interpreted and construed
accordingly, although the Company makes no undertaking or
representation to maintain such qualification. In addition, the
Plan authorizes the purchase of Stock under a Non-423(b) Component,
pursuant to rules, procedures or sub-plans adopted by the Board or
the Committee and designed to achieve tax, securities law or other
objectives, provided, however, that U.S. Eligible Employees will
not be permitted to purchase Stock under the Non-423(b)
Component.
SECTION 2. ADMINISTRATION OF THE
PLAN.
(a) Committee Composition .
The Committee shall administer the Plan. The Committee shall
consist exclusively of one or more directors of the Company, who
shall be appointed by the Board.
(b) Committee
Responsibilities . The Committee shall interpret the Plan and
make all other policy decisions relating to the operation of the
Plan. The Committee may adopt such rules, procedures, sub-plans,
guidelines and forms as it deems appropriate to implement the Plan,
including relating to the operation and administration of the Plan
to accommodate the specific requirements of local laws and
procedures for jurisdictions outside of the United States. The
Committee’s determinations under the Plan shall be final and
binding on all persons.
SECTION 3. STOCK OFFERED UNDER
THE PLAN.
(a) Authorized Shares . The
number of shares of Stock available for purchase under the Plan
shall be 1,500,000 (subject to adjustment pursuant to
Subsection (b) below). On January 1 of each year,
commencing with January 1, 2007, the aggregate number of
shares of Stock available for purchase during the life of the Plan
shall automatically be increased by a number equal to the lowest of
(i) 1% of the total number of shares of Stock then
outstanding, (ii) 750,000 shares of Stock (subject to
adjustment pursuant to Subsection (b) below) or (iii) the
number of shares of Stock determined by the Board. Any or all of
such shares of Stock may be granted under the Code
Section 423(b) Component.
(b) Anti-Dilution Adjustments
. The aggregate number of shares of Stock offered under the Plan,
the number of shares of Stock set forth in Subsection (a)(ii)
above, the 2,000-share limitation described in Section 8(c)
and the price of shares that any Participant has
elected to purchase shall be adjusted
proportionately for any increase or decrease in the number of
outstanding shares of Stock resulting from a subdivision or
consolidation of shares or the payment of a stock dividend, any
other increase or decrease in such shares effected without receipt
or payment of consideration by the Company, the distribution of the
shares of a Subsidiary to the Company’s stockholders, or a
similar event.
(c) Reorganizations . Any
other provision of the Plan notwithstanding, immediately prior to
the effective time of a Corporate Reorganization, the Offering
Period and Accumulation Period then in progress shall terminate and
shares shall be purchased pursuant to Section 8, unless the
Plan is continued or assumed by the surviving corporation or its
parent corporation. The Plan shall in no event be construed to
restrict in any way the Company’s right to undertake a
dissolution, liquidation, merger, consolidation or other
reorganization.
SECTION 4. ENROLLMENT AND
PARTICIPATION.
(a) Offering Periods . While
the Plan is in effect, the Committee shall determine the duration
and commencement date of each Offering Period, provided that an
Offering Period shall in no event be longer than 27 months.
Offering Periods may be consecutive or overlapping.
(b) Accumulation Periods .
While the Plan is in effect, the Committee shall determine the
duration and commencement date of each Accumulation Period,
provided that an Accumulation Period shall in no event end later
than the close of the Offering Period in which it begins.
Accumulation Periods shall be consecutive.
(c) Enrollment . In the case
of any individual who qualifies as an Eligible Employee on the
first day of any Offering Period, he or she may elect to become a
Participant on such day by filing the prescribed enrollment form
with the Company or a third party designated by the Company. The
enrollment form shall be filed at the prescribed location not later
than the commencement date of such Offering Period.
(d) Duration of Participation
. Once enrolled in the Plan, a Participant shall continue to
participate in the Plan until he or she:
(i) May no longer contribute to the
Plan under Section 9(b);
(ii) Withdraws from the Plan under
Section 6(a); or
(iii) Ceases to be an Eligible
Employee.
A Participant whose employee
contributions were discontinued automatically under
Section 9(b) shall automatically resume participation at the
beginning of the earliest Accumulation Period ending in the next
calendar year, if he or she then is an Eligible Employee. In all
other cases, a former Participant may again become a Participant,
if he or she then is an Eligible Employee, by following the
procedure described in Subsection (c) above.
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(e) Applicable Offering
Period . For purposes of calculating the Purchase Price under
Section 8(b), the applicable Offering Period shall be
determined as follows:
(i) Once a Participant is enrolled
in the Plan for an Offering Period, such Offering Period shall
continue to apply to him or her until the earliest of (A) the
end of such Offering Period, (B) the end of his or her
participation under Subsection (d) above or
(C) enrollment for a subsequent Offering Period under
Paragraph (ii), (iii) or (iv) below, provided that
the Committee has determined that there will be a subsequent
Offering Period.
(ii) In the event that the Fair
Market Value of Stock on the first trading day in the Offering
Period for which the Participant is enrolled is higher than on the
first trading day in any subsequent Offering Period, the
Participant shall automatically be enrolled for such subsequent
Offering Period.
(iii) If Section 14(b) applies,
the Participant shall automatically be enrolled for a new Offering
Period.
(iv) Any other provision of the Plan
notwithstanding, the Company (at its sole discretion) may determine
prior to the commencement of any new Offering Period that all
Participants shall be enrolled for such new Offering
Period.
(v) When a Participant reaches the
end of an Offering Period but his or her participation is to
continue, then such Participant shall automatically be enrolled for
the Offering Period that commences immediately after the end of the
prior Offering Period.
SECTION 5. EMPLOYEE
CONTRIBUTIONS.
(a) Commencement of Payroll
Deductions . A Participant may purchase shares of Stock under
the Plan by means of payroll deductions. To the extent required by
local law, the Committee, in its discretion, may decide that an
Eligible Employee may contribute to the Plan by means other than
payroll deductions, provided that contributions other than payroll
deductions will be permissible only for Eligible Employees
participating in the Non-423(b) Component. Payroll deductions shall
commence as soon as reasonably practicable after the Company has
received the prescribed enrollment form.
(b) Amount of Payroll
Deductions/Contributions . An Eligible Employee shall designate
on the enrollment form the portion of his or her Compensation that
he or she elects to have withheld/contribute for the purchase of
Stock. Such portion shall be a whole percentage of the Eligible
Employee’s Compensation, but not less than 1% nor more than
15%.
(c) Changing Withholding Rate
. When the Committee adopts an Offering Period under
Section 4(a), it shall also prescribe the rules that will
apply if a Participant wishes to change his or her rate of payroll
deductions/contributions during such Offering Period. A Participant
may change his or her rate of payroll deductions/contributions,
only if and to the
3
extent permitted by such rules, by filing a new
enrollment form with the Company or a third party designated by the
Company at the prescribed location. The new withholding rate shall
be effective as soon as reasonably practicable after the Company or
a third party designated by the Company has received such form. The
rules prescribed by the Committee may also provide that a
Participant’s rate of payroll deductions/contributions will
automatically revert to a prior rate as of the commencement date of
a new Accumulation Period.
SECTION 6. WITHDRAWAL FROM THE
PLAN.
(a) Withdrawal . A
Participant may elect to withdraw from the Plan by filing the
prescribed form with the Company or a third party designated by the
Company at the prescribed location at any time before the last day
of an Accumulation Period. As soon as reasonably practicable
thereafter, payroll deductions/contributions shall cease and
the