{"id":38245,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/1996-employee-stock-purchase-plan-onsale-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"1996-employee-stock-purchase-plan-onsale-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/1996-employee-stock-purchase-plan-onsale-inc.html","title":{"rendered":"1996 Employee Stock Purchase Plan &#8211; Onsale Inc."},"content":{"rendered":"<pre>\n                 ONSALE, INC. 1996 EMPLOYEE STOCK PURCHASE PLAN\n\n                   As Amended and Restated March 16, 1998\n\n\n     1.  ESTABLISHMENT OF PLAN.  ONSALE, Inc. (the \"COMPANY\") proposes to grant\noptions for purchase of the Company's Common Stock to eligible employees of the\nCompany and its Subsidiaries (as hereinafter defined) pursuant to this Employee\nStock Purchase Plan (this \"PLAN\").  For purposes of this Plan, \"PARENT\nCORPORATION\" and \"SUBSIDIARY\" (collectively, \"SUBSIDIARIES\") shall have the same\nmeanings as \"parent corporation\" and \"subsidiary corporation\" in Sections 424(e)\nand 424(f), respectively, of the Internal Revenue Code of 1986, as amended (the\n\"CODE\").  The Company intends this Plan to qualify as an \"employee stock\npurchase plan\" under Section 423 of the Code (including any amendments to or\nreplacements of such Section), and this Plan shall be so construed.  Any term\nnot expressly defined in this Plan but defined for purposes of Section 423 of\nthe Code shall have the same definition herein.  A total of 300,000 shares of\nthe Company's Common Stock is reserved for issuance under this Plan.  In\naddition, on each January 1, the aggregate number of shares of the Company's\nCommon Stock reserved for issuance under the Plan shall be increased\nautomatically by a number of shares equal to one and one-half percent (1.5%) of\nthe total outstanding shares of the Company as of the immediately preceding\nDecember 31; provided, however, that the aggregate amount of shares reserved for\nissuance under this Plan shall not exceed 1,500,000 shares of the Company's\nCommon Stock.  Such total number of shares shall be subject to adjustments\neffected in accordance with Section 14 of this Plan.\n\n     2.  PURPOSE.  The purpose of this Plan is to provide employees of the\nCompany and Subsidiaries designated by the Board of Directors of the Company\n(the \"BOARD\") as eligible to participate in this Plan with a convenient means of\nacquiring an equity interest in the Company through payroll deductions, to\nenhance such employees' sense of participation in the affairs of the Company and\nSubsidiaries, and to provide an incentive for continued employment.\n\n     3.  ADMINISTRATION.  This Plan shall be administered by the Board or by a\ncommittee of not less than two members of the Board appointed to administer this\nPlan (the \"COMMITTEE\").  As used in this Plan, references to the \"Committee\"\nshall mean either such committee or the Board if no committee has been\nestablished.  Subject to the provisions of this Plan and the limitations of\nSection 423 of the Code or any successor provision in the Code, all questions of\ninterpretation or application of this Plan shall be determined by the Board and\nits decisions shall be final and binding upon all participants.  Members of the\nBoard shall receive no compensation for their services in connection with the\nadministration of this Plan, other than standard fees as established from time\nto time by the Board for services rendered by Board members serving on Board\ncommittees.  All expenses incurred in connection with the administration of this\nPlan shall be paid by the Company.\n\n     4.  ELIGIBILITY.  Any employee of the Company or the Subsidiaries is\neligible to participate in an Offering Period (as hereinafter defined) under\nthis Plan except the following:\n\n       (a)  employees who are not employed by the Company or Subsidiaries\nfifteen (15) days before the beginning of such Offering Period, except that\nemployees who are employed on the effective date of the registration statement\nfiled by the Company with the Securities and Exchange Commission (\"SEC\") under\nthe Securities Act of 1933, as amended (the \"SECURITIES ACT\") registering the\ninitial public offering of the Company's Common Stock shall be eligible to\nparticipate in the first Offering Period under the Plan;\n\n       (b)  employees who are customarily employed for less than twenty (20)\nhours per week;\n\n       (c)  employees who are customarily employed for less than five (5) months\nin a calendar year;\n\n       (d)  employees who, together with any other person whose stock would be\nattributed to such employee pursuant to Section 424(d) of the Code, own stock or\nhold options to purchase stock possessing five percent (5%) or more of the total\ncombined voting power or value of all classes of stock of the Company or any of\nits Subsidiaries or \n\n---------------\n* Subject to stockholder approval scheduled for May 18, 1998.\n\n \nwho, as a result of being granted an option under this Plan with respect to such\nOffering Period, would own stock or hold options to purchase stock possessing\nfive percent (5%) or more of the total combined voting power or value of all\nclasses of stock of the Company or any of its Subsidiaries; and\n\n       (e)  individuals who provide services to the Company as independent\ncontractors whether or not reclassified as common law employees, unless the\nCompany withholds or is required to withhold U.S. Federal employment taxes for\nsuch individuals pursuant to Section 3402 of the Code.\n\n         5.  OFFERING DATES.  The offering periods of this Plan (each, an\n\"OFFERING PERIOD\") shall be of twenty-four (24) months duration commencing on\nFebruary 1 and August 1 of each year and ending on January 31 and July 31 of\neach year; provided, however, that notwithstanding the foregoing, the first such\n           -----------------                                                    \nOffering Period shall commence on the first business day on which price\nquotations for the Company's Common Stock are available on the Nasdaq National\nMarket (the \"FIRST OFFERING DATE\") and shall end on January 31, 1999.  Except\nfor the first Offering Period, each Offering Period shall consist of four (4)\nsix-month purchase periods (individually, a \"PURCHASE PERIOD\") during which\npayroll deductions of the participants are accumulated under this Plan.  The\nfirst Offering Period shall consist of no fewer than three Purchase Periods, any\nof which may be greater or less than six months as determined by the Committee.\nThe first business day of each Offering Period is referred to as the \"OFFERING\nDATE\".  The last business day of each Purchase Period is referred to as the\n\"PURCHASE DATE\".  The Board shall have the power to change the duration of\nOffering Periods or Purchase Periods with respect to offerings without\nshareholder approval if such change is announced at least fifteen (15) days\nprior to the scheduled beginning of the first Offering Period or Purchase Period\nto be affected.\n\n     6.  PARTICIPATION IN THIS PLAN.  Eligible employees may become participants\nin an Offering Period under this Plan on the first Offering Date after\nsatisfying the eligibility requirements by delivering a subscription agreement\nto the Company's treasury department (the \"TREASURY DEPARTMENT\") not later than\nfifteen (15) days before such Offering Date unless a later time for filing the\nsubscription agreement authorizing payroll deductions is set by the Board for\nall eligible employees with respect to a given Offering Period.  An eligible\nemployee who does not deliver a subscription agreement to the Treasury\nDepartment by such date after becoming eligible to participate in such Offering\nPeriod shall not participate in that Offering Period or any subsequent Offering\nPeriod unless such employee enrolls in this Plan by filing a subscription\nagreement with the Treasury Department not later than fifteen (15) days\npreceding a subsequent Offering Date.  Once an employee becomes a participant in\nan Offering Period, such employee will automatically participate in the Offering\nPeriod commencing immediately following the last day of the prior Offering\nPeriod unless the employee withdraws or is deemed to withdraw from this Plan or\nterminates further participation in the Offering Period as set forth in Section\n11 below.  Such participant is not required to file any additional subscription\nagreement in order to continue participation in this Plan.\n\n     7.  GRANT OF OPTION ON ENROLLMENT.  Enrollment by an eligible employee in\nthis Plan with respect to an Offering Period will constitute the grant (as of\nthe Offering Date) by the Company to such employee of an option to purchase on\nthe Purchase Date up to that number of shares of Common Stock of the Company\ndetermined by dividing (a) the amount accumulated in such employee's payroll\ndeduction account during such Purchase Period by (b) the lower of (i) eighty-\nfive percent (85%) of the fair market value of a share of the Company's Common\nStock on the Offering Date (but in no event less than the par value of a share\nof the Company's Common Stock), or (ii) eighty-five percent (85%) of the fair\nmarket value of a share of the Company's Common Stock on the Purchase Date (but\nin no event less than the par value of a share of the Company's Common Stock),\nprovided, however, that the number of shares of the Company's Common Stock\n-----------------                                                         \nsubject to any option granted pursuant to this Plan shall not exceed the lesser\nof (a) the maximum number of shares set by the Board pursuant to Section 10(c)\nbelow with respect to the applicable Purchase Date, or (b) the maximum number of\nshares which may be purchased pursuant to Section 10(b) below with respect to\nthe applicable Purchase Date.  The fair market value of a share of the Company's\nCommon Stock shall be determined as provided in Section 8 hereof.\n\n     8.  PURCHASE PRICE.  The purchase price per share at which a share of\nCommon Stock will be sold in any Offering Period shall be eighty-five percent\n(85%) of the lesser of:\n\n       (a)  The fair market value on the Offering Date; or\n\n       (b)  The fair market value on the Purchase Date.\n\n                                      -2-\n\n \n       For purposes of this Plan, the term \"FAIR MARKET VALUE\" means, as of any\ndate, the value of a share of the Company's Common Stock determined as follows:\n\n         (a)  if such Common Stock is then quoted on the Nasdaq National Market,\n              its closing price on the Nasdaq National Market on the date of\n              determination as reported in The Wall Street Journal;\n                                           ----------------------- \n\n         (b)  if such Common Stock is publicly traded and is then listed on a\n              national securities exchange, its closing price on the date of\n              determination on the principal national securities exchange on\n              which the Common Stock is listed or admitted to trading as\n              reported in The Wall Street Journal;\n                          ----------------------- \n\n         (c)  if such Common Stock is publicly traded but is not quoted on the\n              Nasdaq National Market nor listed or admitted to trading on a\n              national securities exchange, the average of the closing bid and\n              asked prices on the date of determination as reported in The Wall\n                                                                       --------\n              Street Journal; or\n              --------------    \n\n         (d)  if none of the foregoing is applicable, by the Board in good\n              faith, which in the case of the First Offering Date will be the\n              price per share at which shares of the Company's Common Stock are\n              initially offered for sale to the public by the Company's\n              underwriters in the initial public offering of the Company's\n              Common Stock pursuant to a registration statement filed with the\n              SEC under the Securities Act.\n\n     9.  PAYMENT OF PURCHASE PRICE; CHANGES IN PAYROLL DEDUCTIONS; ISSUANCE OF\nSHARES.\n\n       (a)  The purchase price of the shares is accumulated by regular payroll\ndeductions made during each Offering Period.  The deductions are made as a\npercentage of the participant's compensation in one percent (1%) increments not\nless than two percent (2%), nor greater than fifteen percent (15%) or such lower\nlimit set by the Committee.  Compensation shall mean base salary, provided\nhowever, that for purposes of determining a participant's base salary, any\nelection by such participant to reduce his or her regular cash remuneration\nunder Sections 125 or 401(k) of the Code shall be treated as if the participant\ndid not make such election.  Payroll deductions shall commence on the first\npayday following the Offering Date and shall continue to the end of the Offering\nPeriod unless sooner altered or terminated as provided in this Plan.\n\n       (b)  A participant may lower (but not increase) the rate of payroll\ndeductions during an Offering Period by filing with the Treasury Department a\nnew authorization for payroll deductions, in which case the new rate shall\nbecome effective for the next payroll period commencing more than fifteen (15)\ndays after the Treasury Department's receipt of the authorization and shall\ncontinue for the remainder of the Offering Period unless changed as described\nbelow.  Such change in the rate of payroll deductions may be made at any time\nduring an Offering Period, but not more than one (1) change may be made\neffective during any Offering Period.  A participant may increase or decrease\nthe rate of payroll deductions for any subsequent Offering Period by filing with\nthe Treasury Department a new authorization for payroll deductions not later\nthan fifteen (15) days before the beginning of such Offering Period.\n\n       (c)  All payroll deductions made for a participant are credited to his or\nher account under this Plan and are deposited with the general funds of the\nCompany.  No interest accrues on the payroll deductions.  All payroll deductions\nreceived or held by the Company may be used by the Company for any corporate\npurpose, and the Company shall not be obligated to segregate such payroll\ndeductions.\n\n       (d)  On each Purchase Date, so long as this Plan remains in effect and\nprovided that the participant has not submitted a signed and completed\nwithdrawal form before that date which notifies the Company that the participant\nwishes to withdraw from that Offering Period under this Plan and have all\npayroll deductions accumulated in the account maintained on behalf of the\nparticipant as of that date returned to the participant, the Company shall apply\nthe funds then in the participant's account to the purchase of whole shares of\nCommon Stock reserved under the option granted to such participant with respect\nto the Offering Period to the extent that such option is exercisable on the\nPurchase Date.  The purchase price per share shall be as specified in Section 8\nof this Plan.  Any cash remaining in a \n\n                                      -3-\n\n \nparticipant's account after such purchase of shares shall be refunded to such\nparticipant in cash, without interest; provided, however that any amount\nremaining in such participant's account on a Purchase Date which is less than\nthe amount necessary to purchase a full share of Common Stock of the Company\nshall be carried forward, without interest, into the next Purchase Period or\nOffering Period, as the case may be. In the event that this Plan has been\noversubscribed, all funds not used to purchase shares on the Purchase Date shall\nbe returned to the participant, without interest. No Common Stock shall be\npurchased on a Purchase Date on behalf of any employee whose participation in\nthis Plan has terminated prior to such Purchase Date.\n\n       (e)  As promptly as practicable after the Purchase Date, the Company\nshall issue shares for the participant's benefit representing the shares\npurchased upon exercise of his or her option.\n\n       (f)  During a participant's lifetime, such participant's option to\npurchase shares hereunder is exercisable only by him or her.  The participant\nwill have no interest or voting right in shares covered by his or her option\nuntil such option has been exercised.\n\n     10.  LIMITATIONS ON SHARES TO BE PURCHASED.\n\n       (a)  No participant shall be entitled to purchase stock under this Plan\nat a rate which, when aggregated with his or her rights to purchase stock under\nall other employee stock purchase plans of the Company or any Subsidiary,\nexceeds $25,000 in fair market value, determined as of the Offering Date (or\nsuch other limit as may be imposed by the Code) for each calendar year in which\nthe employee participates in this Plan.\n\n       (b)  No more than two hundred percent (200%) of the number of shares\ndetermined by using eighty-five percent (85%) of the fair market value of a\nshare of the Company's Common Stock on the Offering Date as the denominator may\nbe purchased by a participant on any single Purchase Date.\n\n       (c)  No participant shall be entitled to purchase more than the Maximum\nShare Amount (as defined below) on any single Purchase Date.  Not less than\nthirty (30) days prior to the commencement of any Offering Period, the Committee\nmay, in its sole discretion, set a maximum number of shares which may be\npurchased by any employee at any single Purchase Date (hereinafter the \"MAXIMUM\nSHARE AMOUNT\").  Until otherwise determined by the Committee, the Maximum Share\nAmount shall be 1,500 shares.  In no event shall the Maximum Share Amount exceed\nthe amounts permitted under Section 10(b) above.  If a new Maximum Share Amount\nis set, then all participants must be notified of such Maximum Share Amount not\nless than fifteen (15) days prior to the commencement of the next Offering\nPeriod.  Once the Maximum Share Amount is set, it shall continue to apply with\nrespect to all succeeding Purchase Dates and Offering Periods unless revised by\nthe Committee as set forth above.\n\n       (d)  If the number of shares to be purchased on a Purchase Date by all\nemployees participating in this Plan exceeds the number of shares then available\nfor issuance under this Plan, then the Company will make a pro rata allocation\nof the remaining shares in as uniform a manner as shall be reasonably\npracticable and as the Committee shall determine to be equitable.  In such\nevent, the Company shall give written notice of such reduction of the number of\nshares to be purchased under a participant's option to each participant affected\nthereby.\n\n       (e)  Any payroll deductions accumulated in a participant's account which\nare not used to purchase stock due to the limitations in this Section 10 shall\nbe returned to the participant as soon as practicable after the end of the\napplicable Purchase Period, without interest.\n\n     11.  WITHDRAWAL.\n\n       (a)  Each participant may withdraw from an Offering Period under this\nPlan by signing and delivering to the Treasury Department a written notice to\nthat effect on a form provided for such purpose.  Such withdrawal may be elected\nat any time at least fifteen (15) days prior to the end of an Offering Period.\n\n       (b)  Upon withdrawal from this Plan, the accumulated payroll deductions\nshall be returned to the withdrawn participant, without interest, and his or her\ninterest in this Plan shall terminate.  In the event a participant voluntarily\nelects to withdraw from this Plan, he or she may not resume his or her\nparticipation in this Plan during the same Offering Period, but he or she may\nparticipate in any Offering Period under this Plan which commences on a date\n\n                                      -4-\n\n \nsubsequent to such withdrawal by filing a new authorization for payroll\ndeductions in the same manner as set forth above for initial participation in\nthis Plan.\n\n       (c)  If the purchase price on the first day of any current Offering\nPeriod in which a participant is enrolled is higher than the purchase price on\nthe first day of any subsequent Offering Period, the Company will automatically\nenroll such participant in the subsequent Offering Period.  Any funds\naccumulated in a participant's account prior to the first day of such subsequent\nOffering Period will be applied to the purchase of shares on the Purchase Date\nimmediately prior to the first day of such subsequent Offering Period.  A\nparticipant does not need to file any forms with the Company to automatically be\nenrolled in the subsequent Offering Period\n\n     12.  TERMINATION OF EMPLOYMENT.  Termination of a participant's employment\nfor any reason, including retirement, death or the failure of a participant to\nremain an eligible employee, immediately terminates his or her participation in\nthis Plan.  In such event, the payroll deductions credited to the participant's\naccount will be returned to him or her or, in the case of his or her death, to\nhis or her legal representative, without interest.  For purposes of this Section\n12, an employee will not be deemed to have terminated employment or failed to\nremain in the continuous employ of the Company in the case of sick leave,\nmilitary leave, or any other leave of absence approved by the Board; provided\n                                                                     --------\nthat such leave is for a period of not more than ninety (90) days or\nreemployment upon the expiration of such leave is guaranteed by contract or\nstatute.\n\n     13.  RETURN OF PAYROLL DEDUCTIONS.  In the event a participant's interest\nin this Plan is terminated by withdrawal, termination of employment or\notherwise, or in the event this Plan is terminated by the Board, the Company\nshall promptly deliver to the participant all payroll deductions credited to\nsuch participant's account.  No interest shall accrue on the payroll deductions\nof a participant in this Plan.\n\n     14.  CAPITAL CHANGES.  Subject to any required action by the shareholders\nof the Company, the number of shares of Common Stock covered by each option\nunder this Plan which has not yet been exercised and the number of shares of\nCommon Stock which have been authorized for issuance under this Plan but have\nnot yet been placed under option (collectively, the \"RESERVES\"), as well as the\nprice per share of Common Stock covered by each option under this Plan which has\nnot yet been exercised, shall be proportionately adjusted for any increase or\ndecrease in the number of issued and outstanding shares of Common Stock of the\nCompany resulting from a stock split or the payment of a stock dividend (but\nonly on the Common Stock) or any other increase or decrease in the number of\nissued and outstanding shares of Common Stock effected without receipt of any\nconsideration by the Company; provided, however, that conversion of any\n                              -----------------                        \nconvertible securities of the Company shall not be deemed to have been \"effected\nwithout receipt of consideration\".  Such adjustment shall be made by the\nCommittee, whose determination shall be final, binding and conclusive.  Except\nas expressly provided herein, no issue by the Company of shares of stock of any\nclass, or securities convertible into shares of stock of any class, shall\naffect, and no adjustment by reason thereof shall be made with respect to, the\nnumber or price of shares of Common Stock subject to an option.\n\n    In the event of the proposed dissolution or liquidation of the Company, the\nOffering Period will terminate immediately prior to the consummation of such\nproposed action, unless otherwise provided by the Committee.  The Committee may,\nin the exercise of its sole discretion in such instances, declare that the\noptions under this Plan shall terminate as of a date fixed by the Committee and\ngive each participant the right to exercise his or her option as to all of the\noptioned stock, including shares which would not otherwise be exercisable.  In\nthe event of (i) a merger or consolidation in which the Company is not the\nsurviving corporation (other than a merger or consolidation with a wholly-owned\nsubsidiary, a reincorporation of the Company in a different jurisdiction, or\nother transaction in which there is no substantial change in the stockholders of\nthe Company or their relative stock holdings and the options under this Plan are\nassumed, converted or replaced by the successor corporation, which assumption\nwill be binding on all participants), (ii) a merger in which the Company is the\nsurviving corporation but after which the stockholders of the Company\nimmediately prior to such merger (other than any stockholder that merges, or\nwhich owns or controls another corporation that merges, with the Company in such\nmerger) cease to own their shares or other equity interest in the Company, (iii)\nthe sale of substantially all of the assets of the Company, or (iv) the\nacquisition, sale, or transfer of more than 50% of the outstanding shares of the\nCompany by tender offer or similar transaction, each option under this Plan\nshall be assumed or an equivalent option shall be substituted by such successor\ncorporation or a parent or subsidiary of such successor corporation, unless the\nCommittee determines, in the exercise of its sole discretion and in lieu of such\nassumption or substitution, that the participant shall have the right to\nexercise the option as to all of the optioned stock.  If the Committee makes an\noption exercisable in lieu of assumption or substitution in the event of a\nmerger, \n\n                                      -5-\n\n \nconsolidation or sale of assets, the Committee shall notify the participant that\nthe option shall be fully exercisable for a period of twenty (20) days from the\ndate of such notice, and the option will terminate upon the expiration of such\nperiod.\n\n    The Committee may, if it so determines in the exercise of its sole\ndiscretion, also make provision for adjusting the Reserves, as well as the price\nper share of Common Stock covered by each outstanding option, in the event that\nthe Company effects one or more reorganizations, recapitalizations, rights\nofferings or other increases or reductions of shares of its outstanding Common\nStock, or in the event of the Company being consolidated with or merged into any\nother corporation.\n\n     15.  NONASSIGNABILITY.  Neither payroll deductions credited to a\nparticipant's account nor any rights with regard to the exercise of an option or\nto receive shares under this Plan may be assigned, transferred, pledged or\notherwise disposed of in any way (other than by will, the laws of descent and\ndistribution or as provided in Section 22 hereof) by the participant.  Any such\nattempt at assignment, transfer, pledge or other disposition shall be void and\nwithout effect.\n\n     16.  REPORTS.  Individual accounts will be maintained for each participant\nin this Plan.  Each participant shall receive promptly after the end of each\nPurchase Period a report of his or her account setting forth the total payroll\ndeductions accumulated, the number of shares purchased, the per share price\nthereof and the remaining cash balance, if any, carried forward to the next\nPurchase Period or Offering Period, as the case may be.\n\n     17.  NOTICE OF DISPOSITION.  Each participant shall notify the Company if\nthe participant disposes of any of the shares purchased in any Offering Period\npursuant to this Plan if such disposition occurs within two (2) years from the\nOffering Date or within one (1) year from the Purchase Date on which such shares\nwere purchased (the \"NOTICE PERIOD\").  Unless such participant is disposing of\nany of such shares during the Notice Period, such participant shall keep the\ncertificates representing such shares in his or her name (and not in the name of\na nominee) during the Notice Period.  The Company may, at any time during the\nNotice Period, place a legend or legends on any certificate representing shares\nacquired pursuant to this Plan requesting the Company's transfer agent to notify\nthe Company of any transfer of the shares.  The obligation of the participant to\nprovide such notice shall continue notwithstanding the placement of any such\nlegend on the certificates.\n\n     18.  NO RIGHTS TO CONTINUED EMPLOYMENT.  Neither this Plan nor the grant of\nany option hereunder shall confer any right on any employee to remain in the\nemploy of the Company or any Subsidiary, or restrict the right of the Company or\nany Subsidiary to terminate such employee's employment.\n\n     19.  EQUAL RIGHTS AND PRIVILEGES.  All eligible employees shall have equal\nrights and privileges with respect to this Plan so that this Plan qualifies as\nan \"employee stock purchase plan\" within the meaning of Section 423 or any\nsuccessor provision of the Code and the related regulations.  Any provision of\nthis Plan which is inconsistent with Section 423 or any successor provision of\nthe Code shall, without further act or amendment by the Company or the Board, be\nreformed to comply with the requirements of Section 423.  This Section 19 shall\ntake precedence over all other provisions in this Plan.\n\n     20.  NOTICES.  All notices or other communications by a participant to the\nCompany under or in connection with this Plan shall be deemed to have been duly\ngiven when received in the form specified by the Company at the location, or by\nthe person, designated by the Company for the receipt thereof.\n\n     21.  TERM; SHAREHOLDER APPROVAL.  After this Plan is adopted by the Board,\nthis Plan will become effective on the date that is the First Offering Date (as\ndefined above); provided, however, that if the First Offering Date does not\n                --------  -------                                          \noccur on or before December 31, 1997, this Plan will terminate having never\nbecome effective.  This Plan shall be approved by the shareholders of the\nCompany, in any manner permitted by applicable corporate law, within twelve (12)\nmonths before or after the date this Plan is adopted by the Board.  No purchase\nof shares pursuant to this Plan shall occur prior to such shareholder approval.\nThis Plan shall continue until the earlier to occur of (a) termination of this\nPlan by the Board (which termination may be effected by the Board at any time),\n(b) issuance of all of the shares of Common Stock reserved for issuance under\nthis Plan, or (c) ten (10) years from the adoption of this Plan by the Board.\n\n                                      -6-\n\n \n     22.  DESIGNATION OF BENEFICIARY.\n\n         (a)  A participant may file a written designation of a beneficiary who\nis to receive any shares and cash, if any, from the participant's account under\nthis Plan in the event of such participant's death subsequent to the end of an\nPurchase Period but prior to delivery to him of such shares and cash.  In\naddition, a participant may file a written designation of a beneficiary who is\nto receive any cash from the participant's account under this Plan in the event\nof such participant's death prior to a Purchase Date.\n\n         (b)  Such designation of beneficiary may be changed by the participant\nat any time by written notice.  In the event of the death of a participant and\nin the absence of a beneficiary validly designated under this Plan who is living\nat the time of such participant's death, the Company shall deliver such shares\nor cash to the executor or administrator of the estate of the participant, or if\nno such executor or administrator has been appointed (to the knowledge of the\nCompany), the Company, in its discretion, may deliver such shares or cash to the\nspouse or to any one or more dependents or relatives of the participant, or if\nno spouse, dependent or relative is known to the Company, then to such other\nperson as the Company may designate.\n\n     23.  CONDITIONS UPON ISSUANCE OF SHARES; LIMITATION ON SALE OF SHARES.\nShares shall not be issued with respect to an option unless the exercise of such\noption and the issuance and delivery of such shares pursuant thereto shall\ncomply with all applicable provisions of law, domestic or foreign, including,\nwithout limitation, the Securities Act, the Securities Exchange Act of 1934, the\nrules and regulations promulgated thereunder, and the requirements of any stock\nexchange or automated quotation system upon which the shares may then be listed,\nand shall be further subject to the approval of counsel for the Company with\nrespect to such compliance.\n\n     24.  APPLICABLE LAW.  The Plan shall be governed by the substantive laws\n(excluding the conflict of laws rules) of the State of California.\n\n     25.  AMENDMENT OR TERMINATION OF THIS PLAN.  The Board may at any time\namend, terminate or extend the term of this Plan, except that any such\ntermination cannot affect options previously granted under this Plan, nor may\nany amendment make any change in an option previously granted which would\nadversely affect the right of any participant, nor may any amendment be made\nwithout approval of the shareholders of the Company obtained in accordance with\nSection 21 hereof within twelve (12) months of the adoption of such amendment\n(or earlier if required by Section 21) if such amendment would:\n\n         (a)  increase the number of shares that may be issued under this Plan;\nor\n\n         (b)  change the designation of the employees (or class of employees)\neligible for participation in this Plan.\n\n                                      -7-\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8416],"corporate_contracts_industries":[9497],"corporate_contracts_types":[9539,9545],"class_list":["post-38245","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-onsale-inc","corporate_contracts_industries-retail__electronics","corporate_contracts_types-compensation","corporate_contracts_types-compensation__esp"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/38245","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=38245"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38245"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38245"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38245"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}