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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): October 31, 2006
Commission File Number 0-14112
JACK HENRY & ASSOCIATES, INC.
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(Exact name of registrant as specified in its charter)
Delaware 43-1128385
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(State or other jurisdiction of incorporation (I.R.S. Employer
or organization) Identification Number)
663 Highway 60, P.O. Box 807, Monett, MO 65708
(417) 235-6652
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(Address of principal executive offices and telephone number)
N/A
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(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any
of the following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange
Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240-13e-4(c))
ITEM 1.01. Entry into a Material Definitive Agreement
On October 31, 2006, the stockholders of Jack Henry & Associates, Inc. (the
"Company"), acting at their annual meeting, approved the Company's 2006
Employee Stock Purchase Plan (the "Plan"). The summary of the Plan set
forth in this Item 1.01 is qualified in its entirety by reference to the
Plan, a copy of which is filed as exhibit 10.29 to this Current Report on
Form 8-K and incorporated herein by reference. All definitions not otherwise
defined in the following summary of the Plan are set forth in the Plan.
The purpose of the Plan is to provide employees of the Company with an
opportunity to purchase shares of the Company's Common Stock, thereby
linking the interests of employees and stockholders. One million shares of
the Common Stock are authorized for purchase under the Plan. If the number
of issued shares of the Common Stock increases or decreases due to a stock
split, reverse stock split, stock dividend, combination, reclassification or
any other increase or decrease in the number of shares of the Common Stock
without receipt of consideration by the Company, the number of shares
available for purchase under the Plan, and the price for any shares subject
to outstanding options, shall be proportionately adjusted.
The Plan is administered by the Board of Directors or a committee appointed
by the Board which consists of members of the Board. The Board or the
committee has full and exclusive discretionary authority to interpret the
provisions of the Plan, determine eligibility and adjudicate disputed claims
under the Plan.
Employees of the Company, including employees of the Company's wholly-owned
subsidiaries and other subsidiaries as designated by the Board (other than
stockholders who, immediately after the grant of any option under the Plan,
would own or have the right to acquire 5% or more of the Company's common
stock) are eligible to participate under the Plan if (i) their customary
employment with the Company is at least twenty hours per week and more than
five months in any calendar year, and (ii) they have been employed by the
Company for at least one year. Employees' eligibility is determined on the
enrollment date for each offering period.
Offering periods begin on the first trading day which is on or after the
16th day of each calendar month, and end on the last trading day which is on
or before the 15th day of the following calendar month. A trading day is a
day on which national stock exchanges and the Nasdaq system are open for
trading. The Board of Directors can change the duration of offering periods
for future offerings at least 15 days prior to the scheduled beginning of
the first offering period to be affected.
Payroll deductions for participants begin on the first payday following the
enrollment day. Participants select payroll deduction rates in whole dollar
amounts or whole percentage of compensation, not less than $10 per pay
period, and not greater than 10% of total W-2 compensation during the pay
period. The payroll deduction rate elected by a participant is irrevocable
during the offering period, and remains in effect until changed or
terminated by the participant. Participants may increase, decrease or
discontinue their payroll deductions for subsequent offering periods by
filing a change or withdrawal form with the Company at least 10 business
days prior to an enrollment date.
When a participant enrolls in the Plan, the participant receives an option
to purchase shares of the Common Stock on the last trading day of the
offering period at 95% of the fair market value of the shares on that day.
The number of shares a participant will be able to purchase will generally
be equal to the payroll deductions during the offering period divided by the
purchase price per share and will include fractional shares (to the fourth
decimal place). The Plan limits each participant's share purchases in order
to stay within the Code's $25,000 per year purchase limitation (based on the
fair market value of the shares on the first day of the offering period).
The fair market value of the common stock for a given date is equal to the
closing sales price (or, if no sales were reported, the closing bid) for the
immediately preceding trading day on The Nasdaq Stock Market, as reported in
The Wall Street Journal or such other source as the Board deems reliable.
A participant may terminate participation in the Plan as of the first day of
any offering period by filing a change or withdrawal form with the Company.
The participant's payroll deductions will continue through the end of the
offering period in which the form is filed, and those amounts will be
applied to the purchase of shares of the Common Stock in accordance with the
terms of the Plan. As soon as administratively practicable thereafter, the
participant will receive a stock certificate for the number of whole shares,
and a cash payment equal to the fair market value of any fractional share,
credited to the participant under the Plan.
The Board of Directors may amend or terminate the Plan at any time.
However, amendments to the Plan to increase the number the number of shares
available for purchase require stockholder approval. Generally no changes
affecting existing purchase rights may be made without the consent of the
affected participants. However, the Board may amend the Plan in the event
that the Board determines that the ongoing operation of the Plan may result
in unfavorable financial accounting consequences.
ITEM 5.03. Amendments to Articles of Incorporation or Bylaws; Change in
Fiscal Year
On October 31, 2006, the Board of Directors of the Company approved certain
amendments to the Company's Restated and Amended Bylaws. Notice provisions
in Sections 2.4 and 3.5 of the Bylaws were amended to reflect changes in the
technologies used to deliver notices, and to reflect changes in related
Delaware law. Section 3.5 was also amended to clarify the power of the
chairman of the board of directors to call special meetings of the board.
Article VII of the Bylaws was amended to implement a book-entry direct
registration system, which allows shares of stock to be owned, reported, and
transferred electronically without the need for physical stock certificates.
The amendments became effective upon adoption. The Company's Restated and
Amended Bylaws, as amended and restated, are attached hereto as Exhibit 3.2
and are incorporated herein by reference.
ITEM 9.01. Financial Statements and Exhibits
(d) Exhibits.
Exhibit 3.2 Restated and Amended Bylaws of Jack Henry & Associates, Inc.,
as amended and restated October 31, 2006
Exhibit 10.29 Jack Henry & Associates, Inc. 2006 Employee Stock Purchase
Plan
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
JACK HENRY & ASSOCIATES, INC.
(Registrant)
Date: November 6, 2006 By: /s/ Kevin D. Williams
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Kevin D. Williams
Chief Financial Officer
Exhibit 3.2
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RESTATED AND AMENDED
BYLAWS OF
JACK HENRY & ASSOCIATES, INC.
(Effective October 31, 2006)
ARTICLE I
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Section 1.1 Registered Office. The registered office of the corporation
shall be Corporation Trust Center, 1209 Orange Street, City of Wilmington,
County of New Castle, State of Delaware.
Section 1.2 Corporate Office. The corporation may have its office (or
offices) at such place (or places) as the board of directors, in its
discretion, may from time to time determine, or wherever the business of the
corporation may require.
ARTICLE II
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Meeting of Stockholders
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Section 2.1 Time and Place. Any meeting of the stockholders may be held
at such time and place, either within or outside the State of Delaware, as
shall be designated from time to time by resolution of the board of
directors or as shall be stated in a duly authorized notice, or in a
duly executed waiver of notice, of the meeting.
Section 2.2 Annual Meeting. The annual meeting of the stockholders,
commencing with the year 1986, shall be held on the second Tuesday in
November of each year or on such other date as the board of directors may
determine, for the purpose of electing a board of directors and transacting
such other business as may properly be brought before the meeting.
Section 2.3 Special Meetings. Special meetings of the stockholders, for
any purpose or purposes, may be called by the chairman of the board or the
president, and shall be called by the chairman of the board, the president
or any vice-President or the secretary, when directed to do so by resolution
of the board of directors. A special meeting of the stockholders shall also
be called by the president or secretary at the request in writing of
stockholders owning at least two-thirds of the stock of the corporation
entitled to vote. Any request of the stockholders for a special meeting
shall state the purpose or purposes of the proposed meeting. Business
transacted at any special meeting of the stockholders shall be limited to
the purposes stated in the notice
Section 2.4 Notices. Written notice stating the place, date and hour of
the meeting and, in case of a special meeting, the purpose or purposes for
which the meeting is called, shall be given not less than 10 nor more than
60 days before the date of the meeting, except as otherwise required by
statute or the certificate of incorporation, either personally, by mail,
courier service, electronic mail, facsimile transmission, or by any other
lawful means, to each stockholder of record entitled to vote at such
meeting.
Section 2.5 Record Date. In order that the corporation may determine
the stockholders entitled to notice of or to vote at any meeting, or any
adjournment of a meeting, of stockholders, or to express consent to
corporate action in writing without a meeting, or entitled to receive
payment of any dividend or other distribution or allotment of any rights,
or entitled to exercise any rights in respect of any change, conversion or
exchange of stock or for the purpose of any other lawful action, the board
of directors may fix, in advance, a record date, which shall not be more
than 60 nor less than 15 days before the date of such meeting, nor more than
60 days prior to any other action. If no record date is fixed, the record
date for determining stockholders shall be at the close of business on the
day next preceding the day on which notice is given, and the record date
for determining stockholders for any other purpose shall be at the close of
business on the day on which the board of directors adopts the resolution
relating to such other purpose. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply
to any adjournment of the meeting; provided, however, that the board of
directors may fix a new record date for the adjourned meeting.
Section 2.6 Voting List. The secretary of the corporation shall prepare
and make, at least ten days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order and showing the address and the number of shares
registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to
the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if
not so specified, at the place where the meeting is to be held. The list
shall be produced and kept at the time and place of the meeting during the
whole time thereof to be open to the inspection of any stockholder who is
present.
Section 2.7 Quorum. The holders of a majority of the stock issued and
outstanding and entitled to vote at the meeting, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise provided by
statute or by the Certificate of Incorporation. If, however, such a quorum
shall not be present at any meeting of stockholders, the stockholders
entitled to vote, present in person or represented by proxy, shall have the
power to adjourn the meeting from time to time, without notice if the time
and place are announced at the meeting, until a quorum shall be present. At
such adjourned meeting at which a quorum shall be present any business may
be transacted which might have been transacted at the original meeting. If
the adjournment is for more than 30 days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
Section 2.8 Voting and Proxies. Each stockholder shall at every meeting
of the stockholders be entitled to one vote in person or by proxy for each
share of the capital stock having voting power held by such stockholder, but
no proxy shall be voted on after three years from its date, unless the proxy
provides for a longer period. When a quorum is present at any meeting, the
vote of the holders of a majority of the stock having voting power present
in person or represented by proxy shall decide any question brought before
such meeting, unless the question is one upon which, by express provision of
the statutes or of the Certificate of Incorporation, a different vote is
required, in which case such express provision shall govern.
Section 2.9 Waiver. Attendance of a stockholder of the corporation,
either in person or by proxy, at any meeting, either annual or special,
shall constitute waiver of notice of such meeting, except where a
stockholder attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened. A written waiver of notice of
any such meeting signed by a stockholder or stockholders entitled to such
notice, whether before, at or after the time stated in such notice, shall
be equivalent to notice.
Section 2.10 Conduct of Stockholder Meetings. At every meeting of
stockholders, the chairman of the board, or in his absence, the president,
or in his absence, a vice-president, or if none be present, the appointee of
the meeting, shall act as chairman of the meeting, the secretary, or in the
absence an assistant secretary, or if none be present, the appointee of the
chairman of the meeting shall act as secretary of the meeting. The chairman
of the meeting shall call the meeting to order, and shall make such rulings
and determinations as shall be necessary or convenient for the orderly
conduct of the meeting, including but not limited to setting the place and
agenda, imposing reasonable time limits on speakers, determining when the
polls shall open and close, the method of voting and the manner in which
votes are counted, the sufficiency and interpretation of any proxy, the
propriety of any matter submitted for stockholder action, and the time of
adjournment.
Section 2.11 Notice of Stockholder Business and Nominations.
(A) Annual Meeting of Stockholders.
(1) Nominations of persons for election to the board of
directors of the corporation and the proposal of business to be
considered by the stockholders may be made at an annual meeting of
stockholders (a) by or at the direction of the board of directors
or (b) by any stockholder of the corporation who is entitled to
vote at the meeting, who complies with the notice procedures set
forth in clauses (2) and (3) of paragraph (A) of this Section 2.11
and who is a stockholder of record at the time such notice is
delivered to the secretary of the corporation.
(2) For nominations or other business to be properly brought
before the annual meeting by a stockholder pursuant to clause (b)
of paragraph (A)(1) of this Section 2.11, the stockholder must
have given timely notice thereof in writing to the secretary of
the corporation and such business must be a proper subject for
stockholder action under the Delaware General Corporation Law.
To be timely, a stockholder's notice shall be delivered to the
secretary at the principal executive offices of the corporation
not less than 70 days nor more than 90 days prior to the first
anniversary of the preceding year's annual meeting; provided,
however, that in the event that the date of the annual meeting is
advanced by more than 20 days, or delayed by more than 70 days,
from such anniversary notice by the stockholder to be timely must
be so delivered not earlier than the 90th day prior to such annual
meeting and not later than the close of business following the day
on which public announcement of the date of such meeting is first
made. Such stockholder's notice shall set forth (a) as to each
person whom the stockholder proposes to nominate for election or
reelection as a director all information relating to such person
that is required to be disclosed in solicitations of proxies for
election of directors, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), including such person's
written consent to being named in the proxy statement as a nominee
and to serving as a director if elected; (b) as to any other
business that the stockholder proposes to bring before the
meeting, a brief description of the business desired to be brought
before the meeting, the reasons for conducting such business at
the meeting and any material interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf the
proposal is made; and (c) as to the stockholder giving the notice
and the beneficial owner, if any, on whose behalf the nomination
or proposal is made (I) the name and address of such stockholder,
as they appear on the corporation's books, and of such beneficial
owner and (ii) the class and number of shares of the corporation
which are owned beneficially and of record by such stockholder and
such beneficial owner.
(3) Notwithstanding anything in the second sentence of
paragraph (A)(2) of this Section 2.11 to the contrary, in the
event that the number of directors to be elected to the board of
directors is increased and there is no public announcement naming
all of the nominees for director or specifying the size of the
increased board of directors made by the corporation at least 80
days prior to the first anniversary of the preceding year's annual
meeting, a stockholder's notice required by this paragraph (A)(2)
of this Section 2.11 shall also be considered timely, but only
with respect to nominees for any new positions created by such
increase, if it shall be delivered to the secretary at the
principal executive offices of the corporation not later than the
close of business on the 10th day following the day on which such
public announcement is first made by the corporation.
(B) Special Meeting of the Stockholders. Nominations of persons
for election to the board of directors may be made at a special
meeting of stockholders at which directors are to be elected (I)
by or at the direction of the board of directors or (ii) by any
stockholder of the corporation who is entitled to vote at the
meeting, who complies with the notice procedures set forth in this
paragraph (B) and who is a stockholder of record at the time such
notice is delivered to the secretary of the corporation.
Nominations by stockholders of persons for election to the board
of directors may be made at such a special meeting of stockholders
if the stockholder's notice as required by paragraph (A)(2) of
this Section 2.11 shall be delivered to the secretary at the
principal executive offices of the corporation not earlier than
the 90th day prior to such special meeting and not later than the
close of business on the later of the 70th day prior to such
special meeting or the 10th day following the date on which public
announcement is first made of the date of the special meeting and
of the nominees proposed by the board of directors to be elected
at such meeting.
(C) General.
(1) Only persons who are nominated in accordance with the
procedures set forth in this Section 2.11 shall be eligible to
serve as directors and only such business shall be conducted at
a meeting of stockholders as shall have been brought before the
meeting in accordance with the procedures set forth in this
Section 2.11.
(2) Except as otherwise provided by law, the Certificate of
Incorporation or this Section 2.11, the chairman of the meeting
shall have the power and duty to determine whether a nomination or
any business proposed to be brought before the meeting was made in
accordance with the procedures set forth in this Section 2.11 and,
if any proposed nomination or business is not in compliance with
this Section 2.11 to declare that such defective proposal or
nomination shall be disregarded.
(3) For purposes of this Section 2.11, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press or comparable national news service
or in a document publicly filed by the corporation with the
Securities and Exchange Commission pursuant to Section 13, 14 or
15(d) of the Exchange Act.
(4) Notwithstanding the foregoing provisions of this Section
2.11, a stockholder shall also comply with all applicable
requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this Section
2.11. Nothing in this Section 2.11 shall be deemed to affect any
rights of stockholders to request inclusion of proposals in the
corporation's proxy statement pursuant to Rule 14a-8 under
Exchange Act.
ARTICLE III
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Directors
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Section 3.1 Number. The number of directors shall be eight, or such
other number (one or more), as fixed from time to time by resolution of the
board of directors.
Section 3.2 Elections. Except as provided in Section 3.3 of this
Article, the board of directors shall be elected at the annual meeting
of the stockholders or at a special meeting called for that purpose. Each
director shall be elected to serve until the next annual meeting of
stockholders or until his successor shall be elected and qualified.
Section 3.3 Vacancies. Any vacancy occurring on the board of directors
and any directorship to be filled by reason of an increase in the board of
directors may be filled only by the affirmative vote of a majority of the
remaining directors, though less than a quorum of the board of directors.
Such newly elected director shall hold office until the next annual meeting
of stockholders or until his successor shall be elected and qualified.
Section 3.4 Meetings. The first meeting of each newly elected board of
directors shall be held immediately after, and at the same place as, the
annual meeting of the stockholders. No notice of such meeting shall be
necessary to the newly elected directors in order to legally constitute the
meeting, provided a quorum shall be present. The board of directors may, by
resolution, establish a place and time for regular meetings which may
thereafter be held without call or notice.
Section 3.5 Notice of Special Meetings. Special meetings may be called
by the chairman or any two members of the board of directors. Such notice
may be given to each member of the board of directors by mail by the
secretary, the president or the members of the board calling the meeting
by depositing the same in the mail at least 7 days before the meeting,
addressed to the director at the last address he has furnished to the
corporation for this purpose, and any notice so mailed shall be deemed to
have been given at the time when mailed. Notice may also be given at least
48 hours before the meeting in person, or by telephone, overnight mail or
courier service, hand delivery, electronic mail, facsimile transmission, or
by any other lawful means, addressed as stated above; and such notice shall
be deemed to have been given at the time when such is delivered to the last
address of the director for this purpose, or when such personal or telephone
conversation occurs.
Section 3.6 Quorum. At all meetings of the board, a majority of the
directors then in office shall constitute a quorum for the transaction of
business, and the act of a majority of the directors present at any meeting
at which a quorum is present shall be the act of the board of directors,
except as otherwise specifically required by statute, the certificate of
incorporation, or these bylaws. If less than a quorum be present, the
director or directors present may adjourn the meeting from time to time
without further notice. Voting by proxy is not permitted at meetings of
the board of directors.
Section 3.7 Waiver. Attendance of a director at a meeting of the board
of directors shall constitute a waiver of notice of such meeting, except
where a director attends a meeting for the express purpose of objecting to
the transaction of any business because the meeting is not lawfully called
or convened. A written waiver of notice or manner of calling any such
meeting signed by a director entitled to such notice, whether before, at, or
after the time stated in such notice, shall be equivalent to the giving of
such notice.
Section 3.8 Action Without Meeting. Any action required or permitted
to be taken at a meeting of the board of directors may be taken without a
meeting if a consent in writing setting forth the action so taken shall be
signed by all of the directors and filed with the minutes of proceedings of
the board of directors.
Section 3.9 Attendance by Telephone. Members of the board of directors
or any committee of the corporation may participate in a meeting of
such board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
Section 3.10 Removal. Any director may be removed from office at any
time, but only for cause or upon the affirmative vote of the holders of
at least two-thirds of the corporation's stock entitled to vote thereon.
ARTICLE IV
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Officers
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Section 4.1 Election. The corporation shall have such officers with
such duties as the board of directors determines by resolution. The officers
shall be elected or appointed at least annually by the board of directors at
its first meeting after each annual meeting of stockholders.
Section 4.2 Removal, Resignation and Vacancies. Any officer elected
or appointed by the board of directors may be removed at any time by the
affirmative vote of a majority of the board of directors. Any officer may
resign at any time by giving written notice of his resignation to the
president or to the secretary, and acceptance of such resignation shall
not be necessary to make it effective, unless the notice so provides. Any
vacancy occurring in any office may be filled by the board of directors.
Section 4.3 Chairman of the Board. The board of directors may, in its
sole discretion, elect a chairman of the board. If elected, the chairman of
the board shall preside at all meetings of shareholders and of the board of
directors. In the event a chief executive officer (CEO) of the corporation
is not elected or appointed by the board of directors, the chairman of the
board shall be the chief executive officer of the corporation. Subject to
the direction and control of the board of directors, the chairman of the
board, coextensively with the president, the CEO, and the chief operating
officer (COO), shall have the general and active management of the business
of the corporation and shall see that all orders and resolutions of the
board of directors are carried into effect, and he/she may execute
contracts, deeds and other instruments on behalf of the corporation as are
necessary and appropriate. He/she shall perform such additional functions
and duties as are appropriate and customary for the office of the chairman
of the board and as the board of directors may prescribe from time to time.
Section 4.4 Vice Chairman of the Board. In the absence, disability or
vacancy of the chairman of the board, the vice chairman of the board shall
serve as chairman of the board.
Section 4.5 Chief Executive Officer. The board of directors, in its
sole discretion, may elect a chief executive officer (CEO). Subject to the
direction and control of the board of directors, the CEO coextensively with
the chairman of the board, the president, and the COO, shall have the
general and active management of the business of the corporation and shall
see that all orders and resolutions of the board of directors are carried
into effect; and he/she may execute contracts, deeds and other instruments
on behalf of the corporation as are necessary and appropriate. He/she
shall perform such additional functions and duties as are appropriate and
customary for the office of COO and as the board of directors may prescribe
from time to time.
Section 4.6 President. In the absence, disability or vacancy of the
chairman of the board and the vice chairman of the board, the President
shall preside at all meetings of the shareholders and of the board of
directors. In the absence, disability or vacancy of the CEO, the president
shall serve as CEO. Subject to the direction and control of the board of
directors, the president, coextensively with the chairman of the board,
the CEO, and the COO, shall have the general and active management of the
business of the corporation and shall see that all orders and resolutions
of the board of directors are carried into effect; and he/she may execute
contracts, deeds and other instruments on behalf of the corporation as are
necessary and appropriate. He/she shall perform such additional functions
and duties as are appropriate and customary for the office of president and
as the board of directors may prescribe from time to time.
Section 4.7 Chief Operating Officer. The board of directors, in its
sole discretion, may elect a chief operating officer (COO). Subject to the
direction and control of the board of directors, the COO, coextensively with
the chairman of the board, the CEO, and the president, shall have the
general and active management of the business of the corporation and shall
see that all orders and resolutions of the board of directors are carried
into effect; and he/she may execute contracts, deeds and other instruments
on behalf of the corporation as are necessary and appropriate. He/she
shall perform such additional functions and duties as are appropriate and
customary for the office of COO and as the board of directors may prescribe
from time to time.
Section 4.8 Executive Vice President. The board of directors, in its
sole discretion, may elect an executive vice president, who shall report to
and assist the president, and who shall serve as president in the absence,
disability or vacancy of the president.
Section 4.9 Senior Vice President. The board of directors, in its sole
discretion, may elect one or more senior vice presidents, who shall report
to and assist the president and executive vice president.
Section 4.10 Vice President. The board of directors, in its sole
discretion, may elect one or more vice presidents, who shall report to and
assist the president, executive vice president and senior vice presidents.
Section 4.11 Assistant Vice President. The board of directors, in its
sole discretion, may elect one or more assistant vice presidents, who shall
report to and assist the president, executive vice president, senior vice
presidents and vice presidents.
Section 4.12 Secretary. The secretary shall give, or cause to be given,
notice of all meetings of the stockholders and special meetings of the
board of directors, keep the minutes of such meetings, have charge of the
corporate seal and stock records, be responsible for the maintenance of all
corporate files and records and the preparation and filing of reports to
governmental agencies, other than tax returns, have authority to affix the
corporate seal to any instrument requiring it (and, when so affixed, it may
be attested by his or her signature), and perform such other duties as may
from time to time be prescribed by the board of directors and the president.
Section 4.13 Assistant Secretary. The assistant secretary or, if there
be more than one, the assistant secretaries in the order determined by the
president shall, in the absence or disability of the secretary, or in case
such duties are specifically delegated to him/her by the board of directors,
the president or the secretary, perform the duties and exercise the powers
of the secretary and shall, under the supervision of the secretary, perform
such other duties and have such other powers as the secretary, the board of
directors or the president may from time to time prescribe.
Section 4.14 Chief Financial Officer. The chief financial officer (CFO)
shall have control of the funds and the care custody of all the stocks,
bonds, and other securities of the corporation, and be responsible for the
preparation and filing of tax returns. He/she shall receive all moneys paid
to the corporation and shall have authority to give receipts and vouchers,
to sign and endorse checks and warrants in its name and on its behalf, and
give full discharge for the same. He/she shall also have charge of the
disbursement of the funds of the corporation, and shall keep full and
accurate records of the receipts and disbursements. He/she shall deposit
all moneys and other valuable effects in the name and to the credit of the
corporation in such depositories as shall be designated by the board of
directors, and shall perform such other duties and have such other powers
as the board of directors or the president may from time to time prescribe.
Section 4.15 Treasurer. The treasurer shall report to and assist the CFO,
and the board of directors, chairman of the board, CEO, president and COO.
Section 4.16 Assistant Treasurer. The assistant treasurer or, if there
be more than one, the assistant treasurers in the order determined by the
president shall, in the absence or disability of the treasurer, or in case
such duties are specifically delegated to him/her by the board of directors,
president or treasurer, perform the duties and exercise the powers of the
treasurer and shall, under the supervision of the treasurer, perform such
other duties and have such other powers as the treasurer, the board of
directors or the president may from time to time prescribe.
Section 4.17 Compensation. Officers shall receive such compensation for
their services as may be authorized or ratified by the board of directors.
Election or appointment of an officer shall not of itself create a contract
right to compensation for services performed as
such officer.
ARTICLE V
---------
Committees
----------
The board of directors may establish committees for the performance of
delegated or designated functions to the extent permitted by law. The board
of directors may provide, by resolution or amendment to the bylaws, such
powers, limitations, and procedures for committees as the board of directors
deems advisable.
ARTICLE VI
----------
Contracts
---------
Section 6.1 Financial Interest. No contract or transaction between the
corporation and one or more of its directors and officers, or between the
corporation and any other corporation, partnership, association, or other
organization in which one or more of the directors or officers are directors
or officers, or have a financial interest, shall be void or voidable solely
for this reason, or solely because the director or officer is present at
or participates in the meeting of the board or committee thereof which
authorizes the contract or transaction, or solely because his or their votes
are counted for such purpose, if:
(a) The material facts as to his relationship or interest and as
to the contract or transaction are disclosed or are known to
the board of directors or the committee, and the board or
committee in good faith authorizes the contract or transaction
by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less
than a quorum; or
(b) The material facts as to his relationship or interest and as
to the contract or transaction are disclosed or are known to
the stockholders entitled to vote thereon, and the contract
or transaction is specifically approved in good faith by
vote of the stockholders; or
(c) The contract or transaction is fair as to the corporation
as of the time it is authorized, approved or ratified by
the board of directors, or a committee thereof, or the
stockholders.
Section 6.2 Quorum. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the board or of a
committee which authorizes the contract or transaction.
ARTICLE VII
-----------
Stock
-----
Section 7.1 Certificated or Uncertificated Shares. The shares of stock
of the corporation may be evidenced by certificates for shares of stock or
may be issued in uncertificated form, or a combination of both. The
issuance of shares in uncertificated form shall not affect shares already
represented by a certificate. To the extent that shares are represented
by certificates, such certificates whenever authorized by the board of
directors, shall be in such form as shall be approved by the board. Every
holder of stock in the corporation shall be entitled to have a certificate,
signed by or in the name of the corporation by the president or a vice
president and the secretary or an assistant secretary of the corporation,
certifying the number of shares owned by such holder in the corporation.
Any or all such signatures may be facsimiles if countersigned by a transfer
agent or registrar. Although any officer, transfer agent or registrar whose
manual or facsimile signature is affixed to such a certificate ceases to be
such officer, transfer agent or registrar before such certificate has been
issued, it may nevertheless be issued by the corporation with the same
effect as if such officer, transfer agent or registrar were still such at
the date of its issue.
Section 7.2 Lost Certificates. The board of directors may direct a new
certificate or certificates or uncertificated shares to be issued in place
of any certificate or certificates issued by the corporation alleged to
have been lost or destroyed, upon the making of an affidavit of that fact
by the person claiming the certificate of stock to be lost or destroyed.
When authorizing such issue of a new certificate or certificates or
uncertificated shares, the board of directors may, in its discretion and as
a condition precedent to the issuance of a new certificate or certificates
or uncertificated shares, require the owner of such lost or destroyed
certificate or certificates, or his legal representative, to advertise the
same in such manner as it shall require and to give the corporation a bond
in such sum as it may direct as indemnity against any claim that may be made
against the corporation with respect to the certificate alleged to have been
lost or destroyed.
Section 7.3 Transfer of Stock. Transfers of shares of capital stock
of the corporation shall be made on the books of the corporation upon
authorization by the registered holder thereof, or by such holder's attorney
thereunto authorized by a power of attorney duly executed and filed with the
secretary or a transfer agent for such stock, if any, and if such shares of
stock are represented by a certificate, only upon presentation of the
certificate or certificates representing such shares properly endorsed or
accompanied by a proper instrument of assignment, except as may otherwise
be expressly provided by the laws of the State of Delaware or by order by
a court of competent jurisdiction. The officers or transfer agents of the
corporation may, in their discretion, require a signature guaranty before
making any transfer. The corporation shall be entitled to recognize and
enforce any lawful restriction on transfer.
Section 7.4 Registered Stockholders. The corporation shall be entitled
to treat the person in whose name any shares of stock are registered on its
books as the owner of such shares for all purposes, and shall not be bound
to recognize any equitable or other claim or interest in such shares on the
part of any other person, whether or not the corporation shall have notice
of such claim or interest, except as expressly provided by the laws of
Delaware.
ARTICLE VIII
------------
Seal
----
The board of directors may adopt and provide a seal which shall be circular
in form and shall bear the name of the corporation and the words "SEAL" and
"DELAWARE," and which, when adopted, shall constitute the corporate seal of
the corporation. The seal may be used by causing it or a facsimile thereof
to be impressed or affixed or manually reproduced.
ARTICLE IX
----------
Fiscal Year
-----------
The board of directors, by resolution, may adopt a fiscal year for the
corporation.
ARTICLE X
---------
Amendment
---------
These bylaws may at any time and from time to time be amended, altered or
repealed by the board of directors. These bylaws may also be amended,
altered or repealed at any special meeting of the stockholders if duly
called for that purpose or at any annual meeting, by the affirmative vote of
the holders of at least two-thirds of the corporation's stock entitled to
vote thereon.
Exhibit 10.29
-------------
JACK HENRY & ASSOCIATES, INC.
2006 EMPLOYEE STOCK PURCHASE PLAN
---------------------------------
The following constitutes the provisions of the Jack Henry &
Associates, Inc. 2006 Employee Stock Purchase Plan.
1. Purpose. The purpose of the Plan is to provide employees of the
Company and Designated Subsidiaries with an opportunity to purchase Common
Stock through accumulated payroll deductions. It is the intention of the
Company that the Plan qualify as an "Employee Stock Purchase Plan" under
Section 423 of the Code. The provisions of the Plan, accordingly, shall 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 or
any committee thereof designated by the Board of Directors of the Company in
accordance with Section 14.
(b) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(c) "Common Stock" shall mean the common stock of the Company,
$0.01 par value.
(d) "Company" shall mean Jack Henry & Associates, Inc.
(e) "Compensation," unless otherwise determined by the Board,
shall mean all cash compensation reportable on Form W-2, including without
limitation base straight time gross earnings, commissions, payments for
overtime, shift premium, incentive compensation, and bonuses, plus any
amounts contributed by the Participant pursuant to a salary reduction
agreement to a qualified deferred compensation plan described in Section
401(k) of the Code or a cafeteria plan described in Section 125 of the Code
maintained by the Employer, but excluding expense reimbursements, equity-
based compensation, gains realized in connection with the exercise of stock
options or participation in stock option or purchase programs and
contributions by the Employer to a qualified deferred compensation plan.
(f) "Designated Subsidiary" shall mean any wholly-owned
Subsidiary or any other Subsidiary that has been designated by the Board
from time to time in its sole discretion as eligible to participate in the
Plan.
(g) "Effective Date" shall mean the date the Plan becomes
effective as described in Section 23.
(h) "Employee" shall mean any person (i) who is an employee of an
Employer within the meaning of Section 3401(c) of the Code, (ii) whose
customary employment with the Employer is at least 20 hours per week and
more than 5 months in any calendar year, and (iii) who, as of the Enrollment
Date, has been employed by the Employer for at least one year. For purposes
of the Plan, the employment relationship shall be treated as continuing
intact while the individual is on sick leave or other leave of absence
approved by the Employer and meeting the requirements of Treasury Regulation
Section 1.421-7(h)(2). Where the period of leave exceeds 90 days and the
individual's right to reemployment is not guaranteed either by statute or by
contract, the employment relationship shall be deemed to have terminated on
the 91st day of such leave.
(i) "Employer" shall mean the Company or a Designated Subsidiary,
as applicable.
(j) "Enrollment Date" shall mean the first Trading Day of each
Offering Period.
(k) "Exercise Date" shall mean the last Trading Day of each
Offering Period.
(l) "Fair Market Value" shall mean, as of any date, the value of
Common Stock determined as follows:
(i) If the Common Stock is listed on any established
stock exchange or a national market system, including without
limitation the Nasdaq National Market or The Nasdaq Small Cap Market of
The Nasdaq Stock Market, its Fair Market Value shall be the closing
sales price for such stock (or the closing bid, if no sales were
reported) as quoted on such exchange or system for the last market
trading day prior to the date of determination, as reported in The Wall
Street Journal or such other source as the Board deems reliable;
(ii) If the Common Stock is regularly quoted by a
recognized securities dealer but selling prices are not reported, its
Fair Market Value shall be the mean of the closing bid and asked prices
for the Common Stock prior to the date of determination, as reported in
The Wall Street Journal or such other source as the Board deems
reliable; or
(iii) In the absence of an established market for
the Common Stock, the Fair Market Value thereof shall be determined in
good faith by the Board.
(m) "Offering Periods" shall mean the periods of approximately
one month beginning on or after the Effective Date during which an option
granted pursuant to the Plan may be exercised as described more fully in
Section 4.
(n) "Participant" shall mean an Employee who participates in the
Plan.
(o) "Plan" shall mean this Jack Henry & Associates, Inc. 2006
Employee Stock Purchase Plan.
(p) "Purchase Price" shall mean 95% of the Fair Market Value of a
share of Common Stock on the Exercise Date, provided, however, that in no
event shall the Purchase Price be less than $0.01 per share, and provided
further that the Purchase Price may be adjusted by the Board pursuant to
Section 20.
(q) "Subsidiary" shall mean any corporation other than the
Company, in an unbroken chain of corporations beginning with the Company if,
at the time of granting an option under the Plan, 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.
(r) "Trading Day" shall mean a day on which national stock
exchanges and the Nasdaq System are open for trading.
3. Eligibility.
(a) Any Employee who shall be employed by an Employer on a given
Enrollment Date for an Offering Period shall be eligible to participate in
the Plan during such Offering Period, subject to the limitations imposed by
Section 423(b) of the Code.
(b) Any provisions of the Plan to the contrary notwithstanding,
no Participant shall be granted an option under the Plan (i) to the extent
that, immediately after the grant, such Participant (or any other person
whose stock would be attributed to such Participant pursuant to Section
424(d) of the Code) would own stock of the Company or any Subsidiary and/or
hold outstanding options to purchase such stock possessing 5% or more of the
total combined voting power or value of all classes of stock of the Company
or any Subsidiary, or (ii) to the extent that his or her rights to purchase
stock under all employee stock purchase plans of the Company and its
Subsidiaries accrue at a rate which exceeds $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 at any time.
4. Offering Periods. The Plan shall be implemented by consecutive
Offering Periods with a new Offering Period commencing on the first Trading
Day which is on or after the 16th day of each calendar month and ending on
the last Trading Day which is on or before the 15th day of the following
calendar month and continuing thereafter until terminated in accordance with
Section 20. The Board shall have the power to change the duration of
Offering Periods (including the commencement dates thereof) with respect to
future offerings without stockholder approval if such change is announced at
least 15 days prior to the scheduled beginning of the first Offering Period
to be affected thereafter.
5. Participation.
(a) An eligible Employee may become a Participant in the Plan by
completing a Subscription Agreement authorizing payroll deductions in the
form required by the Company and filing it with the Human Resources
Department of the Company at least 10 calendar days prior to the applicable
Enrollment Date or by such other date as the Board may prescribe.
Participation in the Plan shall be voluntary.
(b) An Employee's Subscription Agreement and participation in the
Plan shall become effective on the first Enrollment Date following the
timely filing of his or her Subscription Agreement and, provided the
Participant continues to be an eligible Employee, shall remain effective
until changed or revoked by the Participant by filing a Payroll Deduction
Authorization Change or Withdrawal in the form required by the Company
pursuant to Section 6(d) or 10(a). An Employee who becomes eligible to
participate in the Plan after the commencement of an Offering Period or who
is eligible but declines to participate prior to the commencement of such
Offering Period may not become a participant in the Plan until the
commencement of the next Offering Period.
6. Payroll Deductions.
(a) Payroll deductions for a Participant shall commence on the
first payday following the Enrollment Date and shall continue on each payday
during the Offering Period as to which the Participant's Subscription
Agreement is applicable.
(b) At the time a Participant files his or her Subscription
Agreement, he or she shall elect to have payroll deductions, determined as a
whole dollar amount or a whole percentage of Compensation, made on each
payday during the Offering Period in an amount (i) not less than $10.00 per
pay period, and (ii) not greater than 10% of the Compensation which he or
she receives on each payday during the Offering Period, or such other
minimum or maximum rate as may be determined from time to time by the Board
subject to the provisions of Section 20. Except for the foregoing sentence,
all eligible Employees shall have the same rights and privileges under the
Plan.
(c) All payroll deductions made for a Participant shall be
credited to an individual account established under the Plan for such
Participant. A Participant may not make any additional payments into such
account.
(d) A Participant may increase or decrease the rate of his or her
payroll deductions with respect to a subsequent Offering Period by filing a
Payroll Deduction Authorization Change or Withdrawal Form with the Human
Resources Department of the Company, provided that such form is received at
least 10 business days prior to such Offering Period and the Participant is
an eligible Employee as of the Enrollment Date of such Offering Period. A
Participant may suspend or discontinue his or her participation in the Plan
as provided in Section 10, effective at the time described in Section 10. A
Participant may only file one Payroll Deduction Authorization Change or
Withdrawal Form with respect to any Offering Period.
(e) Notwithstanding the foregoing, to the extent necessary to
comply with Section 423(b)(8) of the Code and Section 3(b) of the Plan, a
Participant's payroll deductions may be terminated at any time during an
Offering Period. Payroll deductions shall recommence at the rate provided
in such Participant's Subscription Agreement or Payroll Deduction
Authorization Change or Withdrawal Form, as applicable, at the beginning of
the first Offering Period which ends in the following calendar year, unless
terminated by the Participant as provided in Section 10.
7. Grant of Option. On the Enrollment Date of each Offering Period,
each Participant participating in the Plan for such Offering Period shall be
granted an option to purchase on the Exercise Date of such Offering Period
(at the applicable Purchase Price) the number of shares of Common Stock
determined by dividing such Participant's payroll deductions accumulated in
the Participant's account as of the Exercise Date by the applicable Purchase
Price; provided that in no event shall a Participant be permitted to
purchase for the calendar year in which the option is outstanding, more than
the number of shares obtained by dividing the "applicable dollar amount" by
the Fair Market Value on the Enrollment Date of a share of Common Stock
(subject to any adjustment pursuant to Section 19), and provided further
that such purchase shall be subject to the limitations set forth in
Sections 3(b) and 13. For this purpose, the "applicable dollar amount" is
$25,000, reduced by the Fair Market Value on the applicable Enrollment Date
of Common Stock previously purchased by the Participant under this Plan
during the calendar year. Exercise of the option shall occur as provided in
Section 8. The option shall expire on the last day of the Offering Period.
8. Exercise of Option.
(a) A Participant's option for the purchase of shares shall be
exercised automatically on the Exercise Date, and the maximum number of full
and fractional (to the fourth decimal place) shares of Common Stock subject
to the option shall be purchased for such Participant at the applicable
Purchase Price with the accumulated payroll deductions in his or her
account. Any other monies left over in a Participant's account after the
Exercise Date shall be retained in the Participant's account for the
subsequent Offering Period. During a Participant's lifetime, a Participant's
options are exercisable only by him or her.
(b) If, on a given Exercise Date, the number of shares of Common
Stock with respect to which options are to be exercised may exceed the
number of shares available for sale under the Plan on such Exercise Date,
the Company shall make a pro rata allocation of the shares of Common Stock
available for purchase on such Exercise Date in as uniform a manner as shall
be practicable among all Participants exercising options to purchase Common
Stock on such Exercise Date on the basis of their payroll deductions for
such Offering Period. The balance of the amount credited to the account of
each Participant which has not been applied to the purchase of shares of
Common Stock shall be paid to such Participant in one lump sum in cash as
soon as reasonably practicable after the Exercise Date, without any interest
thereon.
(c) No option shall be exercised to purchase shares of Common
Stock, and no shares shall be issued by the Company under this Plan, unless
such shares are covered by an effective registration statement under the
Securities Act of 1933, as amended, or by an exemption therefrom.
9. Delivery of Stock. As promptly as practicable after each Exercise
Date on which a purchase of shares occurs, the Company shall arrange for the
issuance and delivery to, or credit to the account of, each Participant, as
appropriate, of the shares purchased upon exercise of his or her option. At
the election of the Company, the issuance and delivery of the shares
purchased upon exercise of a participant's option may be effected by
transfer (electronic or otherwise in the discretion of the Company) of such
shares to a securities account maintained in the Participant's name. Stock
certificates will be issued to the Participant when he or she requests by
filing a Stock Certificate Request in the form required by the Company;
provided, however, that the Company shall not be obligated to issue stock
certificates to Participants in an amount less than 25 shares of Common
Stock, except in cases of the Participant's withdrawal from the Plan or
termination of employment or termination of the Plan by the Company.
10. Withdrawal.
(a) A Participant may terminate his or her participation in the
Plan effective as of the first day of the next Offering Period by filing a
Payroll Deduction Authorization Change or Withdrawal Form with the Human
Resources Department of the Company. In such case, the Participant's
payroll deductions will continue through the end of the Offering Period in
which such form is filed, all amounts deducted from the Participant's
Compensation during such Offering Period will be applied to the purchase of
Common Stock pursuant to the Plan, and following such termination of
participation no further payroll deductions for the purchase of shares of
Common Stock shall be made except pursuant to a new Subscription Agreement
delivered in accordance with Section 5.
(b) Upon a Participant's withdrawal from the Plan, a stock
certificate for the number of whole shares of Common Stock credited to the
Participant's account will be issued by the Company to the Participant, and
any fractional share credited to the Participant's account shall be payable
to the Participant in cash in an amount equal to the Fair Market Value
thereof, as soon as administratively practicable following such withdrawal.
11. Termination of Employment.
(a) Upon a Participant ceasing to be an Employee, for any reason,
the payroll deductions credited to such Participant's account during the
Offering Period and, unless no further payroll deductions would be made
because the Participant (or, in the event of death, the beneficiary under
Section 15) withdraws from the Plan, the payroll deductions to be credited
to such Participant's account from his or her final paycheck but not yet
used to exercise the option shall remain credited or be credited, as
applicable, in the Participant's account and applied toward his or her
option for the purchase of shares as provided herein, provided that the
Participant is an employee of the Employer within the meaning of Section
3401(c) of the Code at all times during the period beginning with the date
of the granting of the option and ending on the day three (3) months before
the Exercise Date. The preceding sentence notwithstanding, a Participant
who receives payment in lieu of notice of termination of employment shall be
treated as continuing to be an Employee for the Participant's customary
number of hours per week of employment during the period in which the
Participant is subject to such payment in lieu of notice.
(b) Upon a Participant ceasing to be an Employee, for any reason,
a stock certificate for the number of whole shares of Common Stock credited
to the Participant's account will be issued by the Company to the
Participant (or, in the case of his or her death, to the person or persons
entitled thereto under Section 15), and any fractional share credited to the
Participant's account shall be payable to the Participant (or, in the case
of his or her death, to the person or persons entitled thereto under Section
15) in cash in an amount equal to the Fair Market Value thereof, as soon as
administratively practicable following such termination of employment.
12. Interest. No interest shall accrue on the payroll deductions of a
Participant in the Plan.
13. Stock.
(a) The Common Stock subject to issuance under the terms of the
Plan shall be authorized but unissued shares, previously issued shares
reacquired and held by the Company, or shares acquired on the public market.
Subject to adjustment upon changes in capitalization of the Company as
provided in Section 19, the maximum number of shares of Common Stock which
shall be made available for sale under the Plan shall be 1,000,000 shares.
(b) The Participant shall have no interest or voting rights in
shares covered by his or her option until such option has been exercised.
(c) Shares to be credited to a Participant's account or delivered
to the Participant under the Plan shall, as specified in the Participant's
Subscription Agreement, be registered in the name of the Participant or in
the name of the Participant and his or her spouse.
(d) All cash dividends on shares of Common Stock credited to a
Participant's account, including a fractional share, on the dividend record
date will be credited on the pay date to the Participant's account.
Such dividends shall be reinvested in shares of Common Stock for the
Participant's account on the next Exercise Date.
14. Administration. The Plan shall be administered by the Board or a
committee of members of the Board appointed by the Board. The Board or its
committee shall have full and exclusive discretionary authority to construe,
interpret and apply the terms of the Plan, to determine eligibility and to
adjudicate all disputed claims filed under the Plan. Every finding,
decision and determination made by the Board or its committee shall, to the
full extent permitted by law, be final and binding upon all parties. All
costs and expenses incurred in connection with the administration of the
Plan shall be paid by the Company. No member of the Board shall be
personally liable for any action, determination or interpretation made in
good faith with respect to the Plan or the options, and all members of the
Board shall be fully protected by the Company with respect to any such
action, determination or interpretation.
15. Designation of Beneficiary.
(a) A Participant may file a written designation of a beneficiary
who is to receive any shares of Common Stock and cash, if any, from the
Participant's account under the Plan in the event of such Participant's
death. If a Participant is married and the designated beneficiary is not
the spouse, spousal consent shall be required for such designation to be
effective.
(b) Such designation of beneficiary may be changed by the
Participant at any time by written notice. In the event of the death of a
Participant and in the absence of a beneficiary validly designated under the
Plan who is living at the time of such Participant's death, the Company
shall deliver such shares and/or cash to the executor or administrator of
the estate of the Participant, or if no such executor or administrator has
been appointed (to the knowledge of the Company), the Company, in its
discretion and in full satisfaction of its obligations with respect to such
Participant, may deliver such shares and/or cash to the spouse or to any one
or more dependents or relatives of the Participant, or if no spouse,
dependent or relative is known to the Company, then to such other person as
the Company may designate.
16. Transferability. Neither payroll deductions credited to a
Participant's account nor any option or rights with regard to the exercise
of an option may be assigned, transferred, pledged or otherwise disposed of
in any way (other than by will, the laws of descent and distribution or as
provided in Section 15) by the Participant. Any such attempt at assignment,
transfer, pledge or other disposition shall be without effect, except that
the Company may treat such act as an election to withdraw from the Plan in
accordance with Section 10.
17. Use of Funds. All payroll deductions received or held by the
Company under the Plan may be used by the Company for any corporate purpose,
and the Company shall not be obligated to segregate such payroll deductions.
18. Reports. Individual accounts shall be maintained for each
Participant in the Plan. Statements of account shall be given to
Participants at least annually, which statements shall set forth the amounts
of payroll deductions, the Purchase Price, the number of shares purchased
and the remaining cash balance, if any, in the Participant's account.
19. Adjustments upon Changes in Capitalization, Dissolution,
Liquidation, Merger or Asset Sale.
(a) Changes in Capitalization. Subject to any required action by
the stockholders of the Company, the number of shares of Common Stock
covered by each option under the Plan which has not yet been exercised and
the number of shares of Common Stock which has been authorized for issuance
under the Plan but has not yet been placed under option or which has been
returned to the Plan upon the cancellation of an option, as well as the
price per share of Common Stock covered by each option under the Plan which
has not yet been exercised, shall be proportionately adjusted for any
increase or decrease in the number of issued shares of Common Stock
resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other increase
or decrease in the number of shares of Common Stock effected without receipt
of consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been
"effected without receipt of consideration." Such adjustment shall be made
by the Board, whose determination in that respect shall be final, binding
and conclusive. Except as expressly provided herein, no issuance by the
Company of shares of stock of any class, or securities convertible into
shares of stock of any class, shall affect, and no adjustment by reason
thereof shall be made with respect to, the number or price of shares of
Common Stock subject to an option.
(b) Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Company, the Offering Period then in
progress shall be shortened by setting a new Exercise Date (the "New
Exercise Date"), and shall terminate immediately prior to the consummation
of such proposed dissolution or liquidation, unless provided otherwise by
the Board (or a committee of the Board). The New Exercise Date shall be
before the date of the Company's proposed dissolution or liquidation. The
Board (or a committee of the Board) shall notify each Participant in
writing, at least 10 business days prior to the New Exercise Date, that the
Exercise Date for the Participant's option has been changed to the New
Exercise Date and that the Participant's option shall be exercised
automatically on the New Exercise Date.
(c) Merger or Asset Sale. In the event of a proposed sale of all
or substantially all of the assets of the Company, or the merger of the
Company with or into another corporation, each outstanding option shall be
assumed or an equivalent option substituted by the successor corporation or
a parent or subsidiary of the successor corporation. In the event that the
successor corporation refuses to assume or substitute for the option, any
Offering Period then in progress shall be shortened by setting a new
Exercise Date (the "New Exercise Date") and any Offering Period then in
progress shall end on the New Exercise Date. The New Exercise Date shall be
before the date of the Company's proposed sale or merger. The Board shall
notify each Participant in writing, at least 10 business days prior to the
New Exercise Date, that the Exercise Date for the Participant's option has
been changed to the New Exercise Date and that the Participant's option
shall be exercised automatically on the New Exercise Date.
20. Amendment or Termination.
(a) The Board may at any time and for any reason terminate or
amend the Plan. Except as provided in Section 19, no such termination can
affect options previously granted, provided that an Offering Period may be
terminated by the Board on any Exercise Date if the Board determines that
the termination of the Offering Period or the Plan is in the best interests
of the Company and its stockholders. Except as provided in Section 19 and
this Section 20, no amendment may make any change in any option theretofore
granted which adversely affects the rights of any Participant without the
prior written consent of such Participant. To the extent necessary to
comply with Section 423 of the Code (or any successor rule or provision or
any other applicable law, regulation or stock exchange rule), the Company
shall obtain stockholder approval in such a manner and to such a degree as
required.
(b) Without stockholder consent and without regard to whether any
Participant rights may be considered to have been "adversely affected," the
Board shall, in its absolute discretion, be entitled to change the Offering
Periods, limit the frequency and/or number of changes in the amount withheld
during an Offering Period, establish the exchange ratio applicable to
amounts withheld in a currency other than U.S. dollars, permit payroll
withholding in excess of the amount designated by a Participant in order to
adjust for delays or mistakes in the Company's processing of properly
completed withholding elections, establish reasonable waiting and adjustment
periods and/or accounting and crediting procedures to ensure that amounts
applied toward the purchase of Common Stock for each Participant properly
correspond with amounts withheld from the Participant's Compensation,
increase or decrease the maximum number of shares of Common Stock a
Participant may purchase, subject to the limits of Section 7, during each
Offering Period, establish and/or modify time frames, forms and procedures
with respect to administration of the Plan, and establish such other
limitations or procedures as the Board (or a committee of the Board)
determines in its sole discretion advisable which are consistent with the
Plan.
(c) In the event the Board determines that the ongoing operation
of the Plan may result in unfavorable financial accounting consequences, the
Board may, in its discretion and, to the extent necessary or desirable,
modify or amend the Plan to reduce or eliminate such accounting consequence
including, but not limited to:
(i) altering the Purchase Price for any Offering Period
including an Offering Period underway at the time of the change in
Purchase Price;
(ii) shortening any Offering Period so that Offering
Period ends on a new Exercise Date, including an Offering Period
underway at the time of the action of the Board (or a committee of the
Board); and
(iii) allocating shares.
Such modifications or amendments shall not require stockholder
approval or the consent of any Plan Participants.
21. Notices. All notices or other communications by a Participant to
the Company or any Employer under or in connection with the Plan shall be
deemed to have been duly given when received in the form specified by the
Company at the location, or by the person, designated by the Company for the
receipt thereof.
22. Conditions Upon Issuance of Shares. Shares shall not be issued
with respect to an option unless the exercise of such option and the
issuance and delivery of such shares pursuant thereto shall comply with this
Plan and all applicable provisions of law, domestic or foreign, including,
without limitation, the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, the rules and regulations promulgated
thereunder, and the requirements of any stock exchange upon which the shares
may then be listed, and shall be further subject to the approval of counsel
for the Company with respect to such compliance.
As a condition to the exercise of an option, the Company may require
the person exercising such option to represent and warrant at the time of
any such exercise that the shares are being purchased only for investment
and without any present intention to sell or distribute such shares if, in
the opinion of counsel for the Company, such a representation is required by
any of the aforementioned applicable provisions of law.
23. Term of Plan. The Plan shall become effective upon the first day
of the month following the last to occur of its adoption by the Board and
its approval by the stockholders of the Company. The Plan shall continue in
effect for a term of 10 years unless sooner terminated under Section 20.
24. Shareholder Approval. Notwithstanding anything to the contrary
herein, the effectiveness of the Plan shall be expressly subject to approval
by the Company's stockholders within 12 months before or after the date the
Plan is adopted by the Board by the affirmative vote of the holders of a
majority of the outstanding shares of stock of the Company present or
represented and entitled to vote thereon at a shareholder meeting duly held
or by written consent in accordance with applicable law
25. Equal Rights and Privileges. All Employees will have equal rights
and privileges under the Plan so that the Plan qualifies as an "employee
stock purchase plan" within the meaning of Section 423 of the Code or
applicable Treasury regulations thereunder. Any provision of the Plan that
is inconsistent with Section 423 of the Code or applicable Treasury
regulations will, without further act or amendment by the Company or the
Board, be reformed to comply with the equal rights and privileges
requirement of Section 423 of the Code or applicable Treasury regulations.
26. No Employment Rights. Nothing in the Plan shall be construed to
give any person (including any Employee or Participant) the right to remain
in the employ of the Company, or a Subsidiary or to affect the right of the
Company, or any Subsidiary to terminate the employment of any person
(including any Employee or Participant) at any time, with or without cause.
27. Notice of Disposition of Shares. Each Participant shall give
prompt notice to the Company of any disposition or other transfer of any
shares of Common Stock purchased upon exercise of an option if such
disposition or transfer is made (i) within two years from the Enrollment
Date of the Offering Period in which the shares were purchased or
(ii) within one year after the Exercise Date on which such shares were
purchased. Such notice shall specify the date of such disposition or other
transfer and the amount realized, in cash, other property, assumption of
indebtedness or other consideration, by the Participant in such disposition
or other transfer.
28. Governing Law. To the extent that Federal laws do not otherwise
control, the Plan and all determinations made or actions taken pursuant
hereto shall be governed by the laws of the state of Delaware, without
regard to the conflicts of laws rules thereof.
29. Tax Withholding. If at any time the Company or any Subsidiary is
required, under applicable laws and regulations, to withhold, or to make any
deduction of, any taxes or take any other action in connection with any
exercise of an option granted hereunder or any disposition of shares of
Common Stock issued hereunder, the Participant must make adequate provision
for the Company's or such Subsidiary's federal, state or other tax
withholding obligations which arise from such exercise or disposition. The
Company or such Subsidiary shall have the right to deduct or withhold from
the Participant's compensation the amount necessary for the Company or such
Subsidiary to meet applicable withholding obligations.
The foregoing Plan was approved and adopted by the Board of Directors on
August 25, 2006.