2009
EMPLOYEE STOCK PURCHASE PLAN
2009
Employee Stock Purchase Plan
The purpose of
this Plan is to give Employees wishing to do so a convenient means
of purchasing Common Stock of the Company through payroll
deductions. The Company believes that ownership of Common Stock by
Employees will foster greater Employee interest in the
Company’s growth and development.
This Plan was
adopted by the Board on February 27, 2009. 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 in a manner consistent with the requirements of that Code
section.
As used in this
Plan, the following terms shall have the following
meanings:
2.1. Board
means the Company’s Board of Directors.
2.2. Code
means the Internal Revenue Code of 1986, as amended from time to
time, or any successor statute thereto, and any regulations issued
from time to time thereunder.
2.3.
Committee means the Compensation Committee of the Board or
such other committee delegated responsibility by the Board for the
administration of the Plan, as provided in Section 5 of the
Plan. For any period during which no such committee is in existence
“Committee” shall mean the Board and all authority and
responsibility assigned to the Committee under the Plan shall be
exercised, if at all, by the Board.
2.4. Common
Stock or Stock means the common stock, par value $.01
per share, of the Company.
2.5.
Company means Waters Corporation, a corporation organized
under the laws of the State of Delaware.
2.6.
Compensation means an Employee’s regular earnings plus
commissions, lump sum cash payments of merit pay increases,
overtime, short-term disability pay, unused vacation pay, and
certain management-approved incentive bonuses.
2.7.
Continuous Status as an Employee
means 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 (i) sick leave;
(ii) military leave; (iii) any other leave of absence
approved by the Plan administrator, provided that such leave is for
a period of not more than three (3) months, unless
reemployment upon the expiration of such leave is guaranteed by
contract or statute, or unless provided otherwise pursuant to
Company policy adopted from time to time; or (iv) transfers
between locations of the Company or between the Company and a
Covered Entity.
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2.8.
Contributions means all amounts credited to the account of a
Participating Employee pursuant to the Plan.
2.9. Corporate
Transaction means (1) any merger or consolidation of the
Company with or into another entity as a result of which the Stock
of the Company is converted into or exchanged for the right to
receive cash, securities or other property or is cancelled,
(2) any sale or exchange of all of the Stock of the Company
for cash, securities or other property, (3) any sale,
transfer, or other disposition of all or substantially all of the
Company’s assets to one or more other persons in a single
transaction or series of related transactions or (4) any
liquidation or dissolution of the Company.
2.10. Covered
Entity means any Subsidiary that may adopt the Plan from time
to time in accordance with the procedures set forth in
Section 14 hereof with the Company’s consent.
2.11.
Effective Date means February 27,
2009.
2.12.
Employee means an employee of the Company or a Covered
Entity who is customarily employed for at least twenty
(20) hours per week and more than five (5) months in a
calendar year.
2.13.
Exchange Act means the Securities Exchange Act of
1934, as amended.
2.14. Fair
Market Value has the meaning set forth in
Section 6.4(c), below.
2.15. New
Plan Period Termination Date has the
meaning set forth in Section 12.4, below.
2.16.
Participating Employee means an Employee who elects
to participate in the Plan pursuant to Section 6.2,
below.
2.17.
Payroll Deduction means a payroll deduction specified
by a Participating Employee to be made from each paycheck during
the Plan Period for the purchase of Shares under this
Plan.
2.18. Plan
means this Waters Corporation 2009 Employee Stock Purchase
Plan.
2.19. Plan
Period Commencement Date means the first day
of each Plan Period.
2.20. Plan
Period Termination Date means the last day of
each Plan Period.
2.21. Plan
Period means each period described in Section 6.1, at
the end of which each Participating Employee shall purchase
Shares.
2.22.
Purchase Price means with respect to a Plan Period an
amount equal to (a) ninety percent (90%) of the Fair Market
Value (as defined in Section 6.4(c) below) of a Share on the
Plan Period Commencement Date or (b) the Fair Market Value of
a Share on the Plan Period Termination Date, whichever is lower;
provided, however , that if (i) there is an increase in
the number of Shares available for issuance under the Plan as a
result of a stockholder-approved amendment to the Plan,
(ii) all or a portion of such additional Shares are to be
issued with respect to the Plan Period underway at the time of such
increase (“Additional Shares”), and (iii) the Fair
Market Value of a Share of Common Stock on the date of such
increase (the “Approval Date Fair
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Market
Value”) is higher than the Fair Market Value described in
clause (a) above, then in such instance the Purchase Price
with respect to Additional Shares shall be (x) ninety percent
(90%) of the Approval Date Fair Market Value or (b) the Fair
Market Value of a Share on the Plan Period Termination Date,
whichever is lower.
2.23. Share
means a share of Common Stock, as adjusted in accordance with
Section 12 of the Plan.
2.24.
Subsidiary means a corporation, 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 fifty
percent (50%) or more of the total combined voting power of all
classes of stock in one of the other corporations in such
chain.
3. Shares
Reserved For The Plan
Subject to
adjustment as provided in Section 12 hereof, the number of
Shares reserved for issuance hereunder shall be eight hundred
eighty six thousand four hundred fifty six (886,456) which is the
sum of: (i) seven hundred fifty thousand (750,000), plus
(ii) the number of shares reserved for issuance pursuant to
the Company’s 1996 Employee Stock Purchase Plan but not
issued thereunder as of January 1, 2009. For purposes of
applying the foregoing limitation, if any option expires,
terminates or is cancelled for any reason without having been
exercised in full, the Shares not purchased or received by the
Employee shall again be available for options to be granted under
the Plan. Shares issued pursuant to the Plan may be either
authorized but unissued shares or shares held by the Company in its
treasury.
The Plan shall be
administered by the Committee, provided, however , that at
any time and on any one or more occasions the Board may itself
exercise any of the powers and responsibilities assigned the
Committee under the Plan and when so acting shall have the benefit
of all of the provisions of the Plan pertaining to the
Committee’s exercise of its authorities hereunder; and
provided, further , that the Committee may delegate its
duties in order to facilitate the purchase and transfer of Shares
and to provide for the day-to-day administration of the Plan with
all powers necessary to enable the delegate to carry out its duties
in that respect. Subject to the provisions of the Plan, the
Committee shall have complete authority, in its discretion, to make
or to select the manner of making all determinations with respect
to each option to be granted by the Company under the Plan. In
making such determinations, the Committee may take into account
such factors as the Committee in its discretion shall deem
relevant. Subject to the provisions of the Plan, the Committee
shall also have complete authority to interpret the Plan, to
prescribe, amend and rescind rules and regulations relating to it
and to make all other determinations necessary or advisable for the
administration of the Plan. The Committee’s determinations
made in good faith on matters referred to in the Plan shall be
final, binding and conclusive on all persons having or claiming any
interest under the Plan or an option granted pursuant to
hereto.
5.
Eligibility for Awards
Subject to the
requirements of Section 6.2 and the limitations imposed by
Section 423(b) of the Code, any Employee shall be eligible to
participate in a Plan Period under the Plan as of the
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applicable Plan
Period Commencement Date. Notwithstanding any provision of the Plan
to the contrary, no Employee shall be granted an option under the
Plan (i) if, immediately after the grant, such Employee
(taking into account stock which would be attributed to such
Employee pursuant to Section 424(d) of the Code) would own capital
stock of the Company 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) if such option would
permit his or her 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 the Fair Market Value of
such stock (determined on the basis of the Fair Market Value of
such stock on the date or dates such option was granted) for each
calendar year in which such option is outstanding at any
time.
6. Terms of
Participation
6.1. Plan
Periods . Each calendar year shall be have four Plan
Periods, beginning on the first day of each January, April, July
and October for which a closing price for the Company Common Stock
is available, and ending on the last day of the immediately
following March, June, September and December for which a closing
price for the Company Common Stock is available, respectively. Each
such period is referred to herein as a “Plan
Period.”
6.2. Election
to Participate and Plan Deductions .
(a) Shares
shall be offered for purchase under the Plan through a series of
successive, non-overlapping Plan Periods until such time as
(i) the maximum number of Shares available for issuance under
the Plan shall have been purchased or (ii) the Plan shall have
been sooner terminated. At any time and from time to time, the
Committee may change the duration and/or the frequency of Plan
Periods or suspend operation of the Plan with respect to Plan
Periods not yet commenced.
(b) An
eligible Employee may become a Participating Employee in the Plan
by completing an enrollment agreement on the form provided by the
company and filing it with the Company prior to the Company’s
enrollment deadline for the Plan Period in which such Employee
desires to participate, unless a later time for filing the
subscription agreement is set by the Committee for all eligible
Employees with respect to a given Plan Period. The enrollment
agreement shall set forth the percentage of the Employee’s
Compensation (subject to Section 6.2(c) below) to be paid as
Contributions pursuant to the Plan. Payroll deductions shall
commence on the first payroll following the Plan Period
Commencement Date and shall end on the last payroll paid on or
prior to the Plan Period Termination Date, unless sooner terminated
by the Participating Employee as provided in
Section 6.7.
(c) A
Participating Employee may elect to have payroll deductions taken
from each payroll during any Plan Period in an amount not less than
one percent (1%) and not more than fifteen percent (15%) (or such
other percentage as the Committee may establish from time to time
before any Plan Period Commencement Date) of such Participating
Employee’s Compensation on each payroll date during the Plan
Period. All payroll deductions made by a Participating Employee
shall be credited to his or her account under the Plan. No interest
shall accrue on Contributions to the Plan. A Participating Employee
may not make any additional payments into such account.
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(d) Unless
the Committee announces otherwise before the start of a particular
Plan Period, an eligible Employee’s enrollment agreement in
effect at the end of one Plan Period will remain in effect for each
subsequent Plan Period.
(e) A
Participating Employee may discontinue his or her participation in
the Plan as provided in Section 6.7. In addition, a
Participating Employee may, on one occasion only during each Plan
Period, reduce the rate of his or her Contributions to zero percent
(0%) with respect to the Plan Period by completing and filing with
the Company a new enrollment agreement authorizing a change in the
payroll deduction rate. Any such change in payroll deduction rate
shall be effective as of the first payroll period following the
date of filing of the new enrollment agreement, if the agreement is
filed at least ten (10) business days prior to such period
and, if not, as of the second following payroll period.
(f) Notwithstanding
the foregoing, to the extent necessary to comply with
Section 423(b)(8) of the Code and Section 5 herein, a
Participating Employee’s Payroll Deductions may be decreased
during any Plan Period to zero percent (0%). Payroll Deductions
reduced to zero percent (0%) in compliance with this
Section 6.2(f) shall re-commence automatically at the rate
provided in such Participating Employee’s enrollment
agreement at the beginning of the next Plan Period, unless
terminated by the Participating Employee as provided in
Section 6.7.
(g) Any
amounts left over in a Participating Employee’s account upon
expiration or termination of the Plan (or upon a withdrawal by a
Participating Employee or upon a Participating Employee purchasing
the maximum dollar amount or number of shares hereunder) shall be
returned to the Participating Employee.
(a) If
the Committee determines that, on a given Plan Period Termination
Date, the number of shares with respect to which options are to be
exercised may exceed (i) the number of Shares that were
available for sale under the Plan on the Plan Period Commencement
Date, or (ii) the number of shares available for sale under
the Plan on such Plan Period Termination Date, then the Company
shall make a pro rata allocation of the Shares available for
purchase on
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