PURPOSE OF THE PLAN
ADMINISTRATION OF THE PLAN
STOCK SUBJECT TO PLAN
EFFECTIVE DATE AND TERM OF THE PLAN
AMENDMENT OF THE PLAN
XPLORE TECHNOLOGIES CORP.
2009 EMPLOYEE STOCK PURCHASE PLAN
I. PURPOSE OF THE PLAN
2009 Employee Stock Purchase Plan is intended to promote the interests of
Xplore Technologies Corp., a Delaware corporation, by providing eligible
employees with the opportunity to acquire a proprietary interest in the
Corporation through participation in a payroll deduction-based employee stock
purchase plan designed to qualify under Section 423 of the Code.
terms herein shall have the meanings assigned to such terms in the attached
II. ADMINISTRATION OF THE
Plan Administrator shall have full authority to interpret and construe any
provision of the Plan and to adopt such rules and regulations for
administering the Plan as it determines are necessary or appropriate in order
to comply with the requirements of Code Section 423. Decisions of the Plan Administrator shall be
final and binding on all parties having an interest in the Plan.
III. STOCK SUBJECT TO PLAN
stock purchasable under the Plan shall be shares of authorized but unissued or
reacquired Common Stock, including shares of Common Stock purchased on the open
market. The number of shares of Common
Stock initially reserved for issuance over the term of the Plan shall be
limited to 5,000,000 shares.
any change be made to the Common Stock by reason of any stock split, stock
dividend, recapitalization, combination of shares, exchange of shares or
similar change affecting the outstanding Common Stock as a class without the
Corporations receipt of consideration, appropriate adjustments shall be made
to (i) the maximum number and class of securities issuable under the Plan,
(ii) the maximum number and class of securities purchasable per
Participant on any one Purchase Date, (iii) the maximum number and class
of securities purchasable in total by all Participants on any one Purchase
Date, (iv) the number and class of securities and the price per share in
effect under each outstanding purchase right in order to prevent the dilution
or enlargement of benefits thereunder.
IV. OFFERING PERIODS
of Common Stock shall be offered for purchase under the Plan through a series
of offering periods until such time as (i) the maximum number of shares of
Common Stock available for issuance under the Plan shall have been purchased or
(ii) the Plan shall have been sooner terminated.
offering period shall be of such duration (not to exceed twenty-seven (27)
months) as determined by the Plan Administrator prior to the start date of such
offering period. Offering periods other
than the initial offering period shall commence at annual intervals on a date
determined by the Plan Administrator each year over the term of the Plan. Accordingly, one separate offering period may
commence, as determined by the Plan Administrator, in each calendar year the
Plan remains in existence. However, the
initial offering period shall commence on January 1, 2009 and terminate on
March 31, 2010.
individual who is an Eligible Employee on the start date of any offering period
under the Plan may enter that offering period on such start date. However, an Eligible Employee may participate
in only one offering period at a time.
order to participate in the Plan for a particular offering period, an Eligible
Employee must complete the enrollment forms prescribed by the Plan
Administrator on or before the start date of that offering period and file such
forms with the Plan Administrator (or its designee).
VI. PAYROLL DEDUCTIONS
payroll deduction authorized by the Participant for purposes of acquiring
shares of Common Stock during an offering period may be any multiple of one
percent (1%) of the Cash Earnings paid to the Participant during each offering
period, up to a maximum of twenty percent (20%). The deduction rate so authorized shall
continue in effect throughout the offering period, except that the Participant
may, at any time during the offering period, reduce his or her rate of payroll
deduction (or, to the extent applicable, the percentage of Cash Earnings to
serve as his or her lump sum contribution for the initial offering period) to
become effective as soon as possible after filing the appropriate form with the
Plan Administrator. The Participant may
not, however, effect more than one (1) such reduction per offering period
nor reduce the payroll deduction to less than one percent (1%).
deductions shall begin on the first pay day administratively feasible following
the start date of the offering period and shall (unless sooner terminated by
the Participant) continue through the pay day ending with or immediately prior
to the last day of that offering period.
The amounts so collected shall be credited to the Participants book
account under the Plan, but no interest shall be paid on the balance from time
to time outstanding in such account. The
amounts collected from the Participant shall not be required to be held in any
segregated account or trust fund and may be commingled with the general assets
of the Corporation and used for general corporate purposes.
to the first Purchase Date for the first offering period under the Plan, no
payroll deductions shall be required of the Participant until such time as the
Participant affirmatively elects to commence such payroll deductions following
his or her receipt of the 1933 Act prospectus for the Plan.
deductions shall automatically cease upon the termination of the Participants
purchase right in accordance with the provisions of the Plan.
Participants acquisition of Common Stock under the Plan on any Purchase Date
shall neither limit nor require the Participants acquisition of Common Stock
on any subsequent Purchase Date, whether within the same or a different
VII. PURCHASE RIGHTS
OF PURCHASE RIGHTS. A Participant shall
be granted a separate purchase right for each offering period in which he or
she is enrolled. The purchase right
shall be granted on the start date of the offering period and shall provide the
Participant with the right to purchase shares of Common Stock during the
offering period upon the terms set forth below.
The Participant shall execute a stock purchase agreement embodying such
terms and such other provisions (not inconsistent with the Plan) as the Plan
Administrator may deem advisable.
no circumstances shall purchase rights be granted under the Plan to any
Eligible Employee if such individual would, immediately after the grant, own
(within the meaning of Code Section 424(d)) or hold outstanding options or
other rights to purchase, stock possessing five percent (5%) or more of the
total combined voting power or value of all classes of stock of the Corporation
or any Corporate Affiliate.
OF THE PURCHASE RIGHT. Each purchase
right shall be automatically exercised on the Purchase Date for the offering
period, and shares of Common Stock shall accordingly be purchased on behalf of
each Participant on each such Purchase Date. The purchase shall be effected by applying the
Participants payroll deductions (or, to the extent applicable, his or her lump
sum contribution) for the offering period ending on such Purchase Date to the
purchase of whole shares of Common Stock at the purchase price in effect for
the Participant for that Purchase Date.
PRICE. The purchase price per share at
which Common Stock will be purchased on the Participants behalf on each
Purchase Date for the particular offering period in which he or she is enrolled
shall be equal to ninety-five percent (95%) of the Fair Market Value per share
of Common Stock on the start date of that offering period.
OF PURCHASABLE SHARES. The number of
shares of Common Stock purchasable by a Participant on each Purchase Date for
the particular offering period in which he or she is enrolled shall be the
number of whole shares obtained by dividing the amount collected from the
Participant through payroll deductions during the offering period ending with that
Purchase Date (or, to the extent applicable, his or her lump sum contribution
for that offering period) by the purchase price in effect for the Participant
for that Purchase Date. The Plan
Administrator shall have the discretionary authority, exercisable prior to the
start of any offering period under the Plan, to set limitations on the number
of shares purchasable per Participant and in total by all Participants on any Purchase
Date for that offering period.
PAYROLL DEDUCTIONS. Any payroll deductions
not applied to the purchase of shares of Common Stock on the final Purchase
Date of an Offering Period because they are not sufficient to purchase a whole
share of Common Stock or because of the limitation on the maximum number of
shares purchasable per Participant or in total by all Participants on the
Purchase Date shall be promptly refunded.
OF PAYROLL DEDUCTIONS. In the event that
a Participant is, by reason of the accrual limitations in Article VIII,
precluded from purchasing additional shares of Common Stock on one or more
Purchase Dates during the offering period in which he or she is enrolled, then
no further payroll deductions shall be collected from such Participant with respect
to those Purchase Dates except as described in Article VIII, Section C. The suspension of such deductions shall not
terminate the Participants purchase right for the offering period in which he
or she is enrolled, and payroll deductions shall automatically resume on behalf
of such Participant once he or she is again able to purchase shares during that
offering period in compliance with the accrual limitations of Article VIII.
FROM OFFERING PERIOD. The following
provisions shall govern the Participants withdrawal from an offering period:
Participant may prospectively withdraw from the offering period in which he or
she is enrolled at any time prior to the next scheduled Purchase Date by filing
the appropriate form with the Plan Administrator (or its designate), and no
further payroll deductions shall be collected from the Participant with respect
to that offering period. Any payroll
deductions collected during the offering period in which such withdrawal occurs
shall be held for the purchase of shares on the Purchase Date for that offering
Participants withdrawal from a particular offering period shall be
irrevocable, and the Participant may not subsequently rejoin that offering
period at a later date. In order to
resume participation in any subsequent offering period, such individual must
re-enroll in the Plan (by making a timely filing of the prescribed enrollment
forms) on or before the start date of that offering period.
OF PURCHASE RIGHT. The following
provisions shall govern the termination of outstanding purchase rights:
the Participant cease to remain an Eligible Employee for any reason (including
death, disability or change in status as an Eligible Employee) while his or her
purchase right remains outstanding, then that purchase right shall be
automatically exercised on the Purchase Date for the offering period in which
the Participant ceased to be an Eligible Employee. No payroll deductions shall be permitted on
behalf of a Participant who has ceased to be an Eligible Employee.
should the Participant cease to remain in active service by reason of an
approved unpaid leave of absence, then the Participant shall have the right,
exercisable up until the last business day preceding the next purchase date
after such leave commences, to (a) withdraw all the payroll deductions
collected to date on his or her behalf for that offering period or (b) have
such funds held for the purchase of shares on his or her behalf on the next
Purchase Date. In no event, however,
shall any further payroll deductions be collected on the Participants behalf
during such leave. Upon the Participants
return to active service (x) within ninety (90) days following the
commencement of such leave or (y) prior to the expiration of any longer
period for which such Participants right to reemployment with the Corporation
is guaranteed by statute or contract, his or her payroll deductions under the
Plan shall automatically resume at the rate in effect at the time the leave
began, unless the Participant withdraws from the
Plan prior to his or her return.
An individual who returns to active employment following a leave of
absence that exceeds in duration the applicable (x) or (y) time
period will be treated as a new Employee for purposes of subsequent
participation in the Plan and must accordingly re-enroll in the Plan (by making
a timely filing of the prescribed enrollment forms) on or before the start date
of any subsequent offering period in which he or she wishes to participate.
IN CONTROL. Each outstanding purchase
right shall automatically be exercised, immediately prior to the effective date
of any Change in Control, by applying the payroll deductions of each
Participant for the offering period in which such Change in Control occurs to
the purchase of whole shares of Common Stock at a purchase price per share
equal to ninety-five percent (95%) of the lower of (i) the Fair Market Value
per share of Common Stock on the start date of the offering period in which
such individual is enrolled at the time of such Change in Control or (ii) the
Fair Market Value per share of Common Stock immediately prior to the effective
date of such Change in Control. However,
the applicable limitation on the number of shares of Common Stock purchasable
per Participant shall continue to apply to any such purchase, but not the
limitation applicable to the maximum number of shares of Common Stock
purchasable in total by all Participants on any one Purchase Date.
Corporation shall, to the extent practicable, provide at least ten (10) days
prior written notice of the occurrence of any Change in Control, and
Participants shall, following the receipt of such notice, have the right to
terminate their outstanding purchase rights prior to the effective date of the
Change in Control.
OF PURCHASE RIGHTS. Should the total
number of shares of Common Stock to be purchased pursuant to outstanding purchase
rights on any particular date exceed the number of shares then available for
issuance under the Plan, the Plan Administrator shall make a pro-rata
allocation of the available shares on a uniform and nondiscriminatory basis,
and the payroll deductions of each Participant, to the extent in excess of the
aggregate purchase price payable for the Common Stock pro-rated to such
individual, shall be refunded.
K. ASSIGNABILITY. The purchase right shall be exercisable only
by the Participant and shall not be assignable or transferable by the
RIGHTS. A Participant shall have no
stockholder rights with respect to the shares subject to his or her outstanding
purchase right until the shares are purchased on the Participants behalf in
accordance with the provisions of the Plan and the Participant has become a
holder of record of the purchased shares.
VIII. ACCRUAL LIMITATIONS
Participant shall be entitled to accrue rights to acquire Common Stock pursuant
to any purchase right outstanding under this Plan if and to the extent such
accrual, when aggregated with (i) rights to purchase Common Stock accrued
under any other purchase right granted under this Plan and (ii) similar
rights accrued under other employee stock purchase plans (within the meaning of
Code Section 423)) of the Corporation or any Corporate Affiliate, would
otherwise permit such Participant to purchase more than Twenty-Five Thousand
Dollars ($25,000.00) worth of stock of the Corporation or any Corporate
Affiliate (determined on the
basis of the Fair Market Value per share on the date or dates such
rights are granted) for each calendar year such rights are at any time
purposes of applying such accrual limitations to the purchase rights granted
under the Plan, the following provisions shall be in effect:
right to acquire Common Stock under each outstanding purchase right shall
accrue on each Purchase Date during the offering period in which such right
right to acquire Common Stock under any outstanding purchase right shall accrue
to the extent the Participant has already accrued in the same calendar year the
right to acquire Common Stock under one or more other purchase rights at a rate
equal to Twenty-Five Thousand Dollars ($25,000.00) worth of Common Stock
(determined on the basis of the Fair Market Value per share on the date or
dates of grant) for each calendar year such rights were at any time outstanding.
by reason of such accrual limitations, any purchase right of a Participant does
not accrue for a particular offering period, then the payroll deductions that
the Participant made during that offering period with respect to such purchase
right shall be promptly refunded.
the event there is any conflict between the provisions of this Article and
one or more provisions of the Plan or any instrument issued thereunder, the
provisions of this Article shall be controlling.
IX. EFFECTIVE DATE AND TERM
OF THE PLAN
Plan was adopted by the Board on November 5, 2008, and shall become
effective at the Effective Time, provided no purchase rights granted under the
Plan shall be exercised, and no shares of Common Stock shall be issued
hereunder, until the Corporation shall have complied with all applicable
requirements of the 1933 Act (including the registration of the shares of
Common Stock issuable under the Plan on a Form S-8 registration statement
filed with the Securities and Exchange Commission), all applicable listing
requirements of any stock exchange on which the Common Stock is listed for
trading and all other applicable requirements established by law or
regulation. In the event such
stockholder approval is not obtained, or such compliance is not effected,
within twelve (12) months after the date on which the Plan is adopted by the
Board, the Plan shall terminate and have no further force or effect, and all
sums collected from Participants during the initial offering period hereunder
shall be refunded.
sooner terminated by the Board, the Plan shall terminate upon the earliest of (i) the
last business day in December 2018, (ii) the date on which all shares
available for issuance under the Plan shall have been sold pursuant to purchase
rights exercised under the Plan or (iii) the date on which all purchase
rights are exercised in connection with a Change in Control. No further purchase rights shall be granted
or exercised, and no further payroll deductions shall be collected, under the
Plan following such termination.
X. AMENDMENT OF THE PLAN
Board may alter, amend, suspend or terminate the Plan at any time to become
effective immediately following the close of any offering period. However, the Plan may be amended or
terminated immediately upon Board action, if and to the extent necessary to
assure that the Corporation will not recognize, for financial reporting
purposes, any compensation expense in connection with the shares of Common
Stock offered for purchase under the Plan, should the financial accounting rules applicable
to the Plan at the Effective Time be subsequently revised so as to require the
Corporation to recognize compensation expense in the absence of such amendment
no event may the Board effect any of the following amendments or revisions to
the Plan without the approval of the Corporations stockholders: (i) increase
the number of shares of Common Stock issuable under the Plan, except for
permissible adjustments in the event of certain changes in the Corporations
capitalization, (ii) alter the purchase price formula so as to reduce the
purchase price payable for the shares of Common Stock purchasable under the
Plan or (iii) modify the eligibility requirements for participation in the
XI. GENERAL PROVISIONS
costs and expenses incurred in the administration of the Plan shall be paid by
the Corporation; however, each Plan Participant shall bear all costs and
expenses incurred by such individual in the sale or other disposition of any
shares purchased under the Plan.
eligible employees shall have equal rights and privileges with respect to the
Plan. The Section 423 component of
the Plan is intended to qualify as an employee stock purchase plan within the
meaning of Section 423 or any successor provision of the Code and the
related regulations. Any provision of
the Section 423 component of the Plan which is inconsistent with Section 423
or any successor provision of the Code shall without further act or amendment
by the Company or the Board be reformed to comply with the requirements of Section 423. This Section shall take precedence over
all other provisions in the Plan.
Corporation intends that no payments under this Plan will be subject to the tax
imposed by Code Section 409A. If
the Plan Administrator grants an option or purchase right subject to U.S.
taxation (1) the Plan Administrator may not modify or amend the option or
purchase right to the extent that the modification or amendment adds a feature
that is not exempt from Code Section 409A or otherwise allows for deferred
compensation within the meaning of Code Section 409A, and (2) any
adjustment pursuant to Section III.B of this Plan will be done in a manner
consistent with Code Section 409A and Treasury Regulations Section 1.409A-1
et. seq. to the extent Code Section 409A applies to such adjustment. The Administrator will interpret and
administer the Plan in a manner that avoids the imposition of any increase in
tax under Code Section 409A(a)(1)(B), and any ambiguities herein will be
interpreted to satisfy the requirements of Code Section 409A or any
in the Plan shall confer upon the Participant any right to continue in the
employ of the Corporation or any Corporate Affiliate for any period of specific
duration or interfere with or otherwise restrict in any way the rights of the
Corporation (or any Corporate Affiliate employing such person) or of the
Participant, which rights are hereby expressly
reserved by each, to terminate such persons employment at any time for
any reason, with or without cause.
provisions of the Plan shall be governed by the laws of the State of Delaware
without resort to that States conflict-of-laws rules.
The following definitions
shall be in effect under the Plan:
shall mean the Corporations Board of Directors.
EARNINGS shall mean (i) the regular base salary paid to a Participant by
one or more Participating Companies during such individuals period of
participation in one or more offering periods under the Plan plus (ii) all
overtime payments, bonuses, commissions, profit-sharing distributions or other
incentive-type payments received during such period. Such Cash Earnings shall be calculated before
deduction of (A) any income or employment tax withholdings or (B) any
contributions made by the Participant to any Code Section 401(k) salary
deferral plan or any Code Section 125 cafeteria benefit program now or
hereafter established by the Corporation or any Corporate Affiliate. However, Cash Earnings shall NOT include any
contributions made by the Corporation or any Corporate Affiliate on the
Participants behalf to any employee benefit or welfare plan now or hereafter
established (other than Code Section 401(k) or Code Section 125
contributions deducted from such Cash Earnings).
IN CONTROL shall mean a change in ownership of the Corporation pursuant to any
of the following transactions:
merger, consolidation or other reorganization approved by the Corporations
stockholders, UNLESS securities representing more than fifty percent (50%) of
the total combined voting power of the voting securities of the successor
corporation are immediately thereafter beneficially owned, directly or
indirectly and in substantially the same proportion, by the persons who
beneficially owned the Corporations outstanding voting securities immediately
prior to such transaction, or
sale, transfer or other disposition of all or substantially all of the assets
of the Corporation in complete liquidation or dissolution of the Corporation,
(iii) the acquisition, directly or indirectly, by a
person or related group of persons (other than the Corporation or a person that
directly or indirectly controls, is controlled by or is under common control
with the Corporation) of beneficial ownership (within the meaning of Rule 13d-3
of the 1934 Act) of securities possessing more than fifty percent (50%) of the
total combined voting power of the Corporations outstanding securities
pursuant to a tender or exchange offer made directly to the Corporations
shall mean the Internal Revenue Code of 1986, as amended.
STOCK shall mean the Corporations common stock, $0.001 par value per share.
AFFILIATE shall mean any parent or subsidiary corporation of the Corporation
(as determined in accordance with Code Section 424), whether now existing
or subsequently established.
shall mean Xplore Technologies Corp., a Delaware corporation, and any corporate
successor to all or substantially all of the assets or voting stock of Xplore
Technologies Corp. that shall by appropriate action adopt the Plan.
TIME shall mean the 1st day of January in 2009. Any Corporate Affiliate that becomes a
Participating Corporation after such Effective Time shall designate a
subsequent Effective Time with respect to its employee-Participants.
EMPLOYEE shall mean any person who is employed by a Participating Corporation
for earnings considered wages under Code Section 3401(a) and is not
an Excluded Employee.
EMPLOYEE shall mean any employee whose customary employment is twenty (20)
hours or less per week, whose customary employment is not for more than five (5) months
in any calendar year, or who is a citizen or resident of a foreign country if
the grant is prohibited under foreign law or if compliance with foreign law
would cause the plan to violate Code Section 423.
MARKET VALUE per share of Common Stock on any relevant date shall be determined
by the Plan Administrator in accordance with the following provisions:
(i) If the
Common Stock is listed on the New York Stock Exchange, Nasdaq Global Select Market,
Nasdaq Global Market, Nasdaq Capital Market or another national securities
exchange and sales prices are regularly reported for the Common Stock, then the
Fair Market Value shall be equal to the closing selling price as quoted on such
exchange (or the exchange with the greatest volume of trading in the Common
Stock) on such date, or if such date is not a trading day, on the most recent
trading day immediately prior to such date;
closing selling prices are not regularly reported for the Common Stock as
described in clause (i), but bid and asked prices for the Common Stock are
regularly reported on the OTC Bulletin Board or another regulated quotation
service, then the Fair Market Value shall be the arithmetic mean between the
closing or last bid and asked prices for the Common Stock on such date, or if
such date is not a trading day or there are no bid and asked prices for such
date, on the most recent trading day immediately prior to such date on which
bid and asked prices are available; or
(iii) If the foregoing
provisions are not applicable, then the Fair Market Value shall be determined
by the Plan Administrator in good faith on such basis as it deems appropriate.
The Plan Administrators determination of Fair Market
Value shall be conclusive and binding on all persons.
ACT shall mean the Securities Act of 1933, as amended.
shall mean any Eligible Employee of a Participating Corporation who is actively
participating in the Plan.
CORPORATION shall mean the Corporation and such Corporate Affiliate or Affiliates
as may be authorized from time to time by the Board to extend the benefits of
the Plan to their Eligible Employees.
The Participating Corporations in the Plan are listed in attached
shall mean the Corporations 2008 Employee Stock Purchase Plan, as set forth in
ADMINISTRATOR shall mean the committee of two (2) or more Board members
appointed by the Board to administer the Plan.
To the extent consistent with applicable law, the committee may delegate
its duties as Plan Administrator to a sub-committee, person, or group of
persons, whose members need not be members of the Board.
DATE shall mean the last business day of each quarter.