-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, DScaowAsKRp4iO8NxJTMB+LG9eLAQn79fpRia0P3+yUrR1CBULEQ1wT5hatN1Fng 2ok8yZdx3T56mVJYlNKo1A== /in/edgar/work/20000602/0000912057-00-027238/0000912057-00-027238.txt : 20000919 0000912057-00-027238.hdr.sgml : 20000919 ACCESSION NUMBER: 0000912057-00-027238 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20000602 EFFECTIVENESS DATE: 20000602 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SOUTHWALL TECHNOLOGIES INC /DE/ CENTRAL INDEX KEY: 0000813619 STANDARD INDUSTRIAL CLASSIFICATION: [3081 ] IRS NUMBER: 942551470 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-38530 FILM NUMBER: 648796 BUSINESS ADDRESS: STREET 1: 1029 CORPORATION WAY CITY: PALO ALTO STATE: CA ZIP: 94303 BUSINESS PHONE: 4159629111 S-8 1 s-8.txt FORM S-8 As filed with the Securities and Exchange Commission on June 2, 2000. Registration No. 333-______ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------ FORM S-8 REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933 SOUTHWALL TECHNOLOGIES INC. (Exact name of registrant as specified in its charter) 94-2251470 (I.R.S. employer identification no.) DELAWARE (State or other jurisdiction of incorporation or organization) 1029 CORPORATION WAY, PALO ALTO, CALIFORNIA 94303 (Address of principal executive offices) (Zip Code) 1997 EMPLOYEE STOCK PURCHASE PLAN (Full title of the plans) BILL R. FINLEY VICE PRESIDENT OF FINANCE, CHIEF FINANCIAL OFFICER AND SECRETARY SOUTHWALL TECHNOLOGIES INC. 1029 CORPORATION WAY PALO ALTO, CALIFORNIA 94303 (Name and address of agent for service) (650) 962-9111 (Telephone number, including area code, of agent for service) CALCULATION OF REGISTRATION FEE
========================================================================================= Proposed Proposed Title of securities Amount maximum maximum Amount to be to be registered offering aggregate of registered (1) price per offering registration share (2) price (2) fee ------------------- ---------------- --------- --------- ------------ COMMON STOCK, 75,000 $7.75 $581,250 $153.45 $.001 PAR VALUE ==========================================================================================
(1) This registration statement shall also cover any additional number of shares as may be required pursuant to the plans in the event of a stock dividend, split-up of shares, recapitalization or other similar change in the Common Stock. (2) Estimated solely for the purpose of calculating the registration fee, in accordance with Rule 457(h)(1), on the basis of the average of the high and low prices of the Common Stock as reported on the NASDAQ National Market on May 25, 2000. EXPLANATORY NOTE This Registration Statement has been prepared in accordance with the requirements of Form S-8, as amended, and relates to 75,000 shares of Common Stock, $.001 par value per share, of Southwall Technologies Inc. (the "Company"), which represent the increase in the number of shares issuable under the Company's 1997 Employee Stock Purchase Plan (the "Plan") approved by the Board of Directors of the Company on May 25, 2000. The Company previously filed with the Securities and Exchange Commission (the "Commission"), on August 25, 1997, a Registration Statement on Form S-8 (File No. 333-34287), covering 100,000 shares of the Company's Common Stock then reserved for issuance under the Plan. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION BY REFERENCE. The following documents are hereby incorporated by reference in this Registration Statement: (a) The Company's Annual Report on Form 10-K for the year ended December 31, 1999, containing the Company's audited financial statements for the fiscal year then ended; (b) The Company's Quarterly Report on Form 10-Q for the quarter ending April 2, 2000; and (c) The description of the Company's Common Stock contained in (i) the Company's registration statement No. 0-15930 on Form 8-A filed with the Commission on July 6, 1987, under Section 12 of the Securities Exchange Act of 1934 (the "1934 Act"), including any amendment or report filed for the purpose of updating such description. In addition, all documents filed by the Company after the initial filing date of this Registration Statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and prior to the filing of a post-effective amendment which indicates that all shares registered hereunder have been sold or which de-registers all shares then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Not applicable. ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS Section 145 of the Delaware General Corporation Law authorizes a court to award or a corporation's Board of Directors to grant indemnification to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act of 1933 (the "1933 Act"). Southwall's Bylaws provide for mandatory indemnification of its directors and permissible indemnification of officers, employees and other agents to the maximum extent permitted by the Delaware General Corporation Law. Southwall's Certificate of Incorporation provides that, under the Delaware law, its directors shall not be liable for monetary damages for breach of their fiduciary duty as directors to Southwall and its stockholders. This provision in the Certificate of Incorporation does II-1 not eliminate the fiduciary duty of the directors, and, in appropriate circumstances, equitable remedies such as injunctive or other forms of non-monetary relief will remain available under Delaware law. In addition, each director will continue to be subject to liability for breach of the director's duty of loyalty to Southwall for acts or omissions not in good faith or involving intentional misconduct, for knowing violations of law, for actions leading to improper personal benefit to the director and for payment of dividends or approval of stock repurchases or redemptions that are unlawful under Delaware law. The provision also does not affect a director's responsibilities under any other law, such as the federal securities laws or state or federal environmental laws. Southwall has entered into Indemnification Agreements with its officers and directors. The Indemnification Agreements provide Southwall's officers and directors with further indemnification to the maximum extent permitted by the Delaware General Corporation Law. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. 4 Instrument Defining Rights of Stockholders. Reference is made to Registrant's Registration Statement No. 0-15930 on Form 8-A, which is incorporated herein by reference under the Item 3(c) of this Registration Statement. 5 Opinion and consent of Choate, Hall & Stewart 23.1 Consent of PricewaterhouseCoopers LLP. 23.2 Consent of Choate, Hall & Stewart is contained in Exhibit 5. 24 Power of Attorney. 99.1 The Company's 1997 Employee Stock Purchase Plan (as amended and restated as of May 25, 2000). ITEM 9. UNDERTAKINGS (a) The Company hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; (2) that, for the purpose of determining any liability under the Securities Act of 1933, as amended (the "Securities Act"), each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and (3) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The Company hereby undertakes that, for purpose of determining any liability under II-2 the Securities Act, each filing of the Company's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-3 SIGNATURE Pursuant to the requirements of the Securities Act of 1933, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Palo Alto in the State of California, on June 2, 2000. SOUTHWALL TECHNOLOGIES INC. (Registrant) By: Thomas G. Hood President, Chief Executive Officer, and Director EX-5 2 ex-5.txt EXHIBIT 5 EXHIBIT 5 CHOATE, HALL & STEWART A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS EXCHANGE PLACE 53 STATE STREET BOSTON, MASSACHUSETTS 02109 TELEPHONE (617) 248-5000 FACSIMILE (617) 248-4000 TELEX 49615860 June 2, 2000 Southwall Technologies Inc. 1029 Corporation Way Palo Alto, California 94303 Ladies and Gentlemen: This opinion is delivered to you in connection with the registration statement on Form S-8 (the "Registration Statement") to be filed on June 2, 2000 by Southwall Technologies, Inc. (the "Company") under the Securities Act of 1933, as amended, for registration under said Act of 75,000 shares (the "Additional Shares") of common stock, $.001 par value (the "Common Stock"), of the Company. We are familiar with the Company's Restated Certificate of Incorporation, its Amended and Restated By-Laws, and its corporate minute book, as well as the Registration Statement. We have also examined such other documents, records and certificates and made such further investigation as we have deemed necessary for the purposes of this opinion. Based upon and subject to the foregoing, we are of the opinion that the Additional Shares to be sold by the Company under its 1997 Employee Stock Purchase Plan, as in effect on the date hereof, when issued against receipt of the agreed purchase price therefor, will be legally issued, fully paid and nonassessable. We understand that this opinion is to be used in connection with the Registration Statement and consent to the filing of this opinion as an exhibit to the Registration Statement and to all references to this Firm included therein. Very truly yours, CHOATE, HALL & STEWART EX-23.1 3 ex-23_1.txt EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS ---------------------------------- We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 3, 2000 relating to the financial statements, which appears in the 1999 Annual Report to Shareholders of Southwall Technologies Inc., which is incorporated by reference in Southwall Technologies Inc.'s Annual Report on Form 10-K for the year ended December 31, 1999. We also consent to the incorporation by reference of our report dated March 3, 2000 relating to the financial statement schedules, which appears in such Annual Report on Form 10-K. PricewaterhouseCoopers LLP San Jose, California June 2, 2000 EX-24 4 ex-24.txt EXHIBIT 24 EXHIBIT 24 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints Thomas G. Hood and Bill R. Finley, jointly and severally, his true and lawful attorneys-in-fact and agents with full powers of substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue thereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below on June 2, 2000 by the following persons in the capacities indicated.
NAME CAPACITY - ---- -------- Thomas G. Hood President, Chief Executive Officer and Director (Principal Executive Officer) Bill R. Finley Vice President of Finance, Chief Financial Officer and Secretary (Principal Financial and Accounting Officer) Tadahiro Murakami Director Bruce J. Alexander Director Dr. Joseph B. Reagan Director Walter C. Sedgwick Director Robert C. Stempel Director
EX-99.1 5 ex-99_1.txt EXHIBIT 99.1 EXHIBIT 99.1 SOUTHWALL TECHNOLOGIES INC. 1997 EMPLOYEE STOCK PURCHASE PLAN I. PURPOSE The Southwall Technologies Inc. 1997 Employee Stock Purchase Plan (the "Plan") is intended to provide eligible employees of the Company and one or more of its Corporate Affiliates with the opportunity to acquire a proprietary interest in the Company through participation in a plan designed to qualify as an employee stock purchase plan under Section 423 of the Internal Revenue Code. The Plan supersedes the Company's 1987 Employee Stock Purchase Plan (the "Predecessor Plan") effective June 1, 1997. II. DEFINITIONS For purposes of administration of the Plan, the following terms have the meanings indicated: BOARD means the Board of Directors of the Company. CODE means the Internal Revenue Code of 1986, as amended. COMMON STOCK means shares of the common stock, $.001 par value, of the Company. COMPANY means Southwall Technologies Inc., a Delaware corporation, and any corporate successor to all or substantially all of the assets or voting stock of Southwall Technologies Inc. which by appropriate action adopts the Plan. COMPENSATION means (i) all payments received by a Participant as compensation for services rendered to the Company or one or more other Participating Companies, including all wages, salaries, overtime payments, bonuses, commissions and incentive payments, and (ii) all contributions made on the Participant's behalf pursuant to any qualified cafeteria plan or salary deferral arrangement under Code Section 125 or 401(k) established by the Company, but excluding all other contributions made by the Company or its Corporate Affiliates for the benefit of the Participant to any employee benefit or welfare plan now or hereafter established. CORPORATE AFFILIATE means any company which is a parent or subsidiary corporation of the Company (as determined in accordance with Code Section 425), including any parent or subsidiary corporation which becomes such after the Effective Date. EFFECTIVE DATE of the Plan means June 1, 1997; PROVIDED, however, that any Corporate Affiliate which becomes a Participating Company in the Plan after that date shall designate a subsequent Effective Date with respect to its employee-Participants. EMPLOYEE means any person who is regularly engaged, for a period of more than 20 hours per week and more than 5 months per calendar year, in the rendition of personal services to the Company or any other Participating Company for earnings considered wages under Code Section 3121(a). PARTICIPANT means any Employee of a Participating Company who (i) has satisfied the service requirement set forth in Article V and (ii) is actively participating in the Plan. PARTICIPATING COMPANY means the Company and those Corporate Affiliate or Affiliates as may be designated from time to time by the Board. III. ADMINISTRATION The Plan will be administered by the Board or by a committee (the "Committee") comprised of members appointed from time to time by the Board or a delegate of either. The Plan Administrator (whether the Board or the Committee or a delegate) has full authority to administer the Plan, including authority to interpret and construe any provision of the Plan and to adopt such rules and regulations for administering the Plan as it may deem necessary. Decisions of the Plan Administrator are final and binding on all parties who have an interest in the Plan. IV. PURCHASE PERIODS (a) Common Stock will be offered for purchase under the Plan through a series of six (6) month purchase periods. The first purchase period will begin on June 1, 1997 and subsequent purchase periods will begin on each December 1 and June 1 thereafter until (i) all shares available under the Plan have been purchased or (ii) the Plan terminates in accordance with Article IX. (b) Under no circumstances may any purchase rights granted under the Plan be exercised, nor may any shares of Common Stock be issued hereunder, until the Company has complied with all applicable requirements of the Securities Act of 1933 (as amended), all applicable listing requirements of any securities exchange on which the Common Stock is listed and all other applicable requirements established by law or regulation. V. ELIGIBILITY AND PARTICIPATION (a) An Employee of a Participating Company is eligible to participate in the Plan for a purchase period if he or she has completed at least one (1) year of continuous service with the Company or any Corporate Affiliate on or before the first day of that purchase period. (b) In order to participate in the Plan for a particular purchase period, the Employee must complete the enrollment forms prescribed by the Plan Administrator (including a purchase agreement and payment authorization) and file those forms with the Plan Administrator (or its designate) during the designated enrollment period. In the payment authorization form, the Employee may choose one of the following methods of payment for the shares to be acquired on his/her behalf during the purchase period: (i) periodic payroll deduction; or (ii) lump sum payment; provided that the Administrator may, for any purchase period, prohibit lump sum payments. (c) If periodic payroll deductions are selected, those deductions must be made in a multiple of 1% of the Compensation paid to the Participant during the purchase period, up to a maximum of 15%. The deduction rate chosen will continue in effect for the entire purchase period, unless the Participant, before the beginning of any payroll period within that purchase period, designates a lower rate (including a 0% rate) by filing the appropriate form with the Plan Administrator (or its designate). The new rate will become effective on the first day of the payroll period following the filing of the form and may not be increased during the remainder of the purchase period. Payroll deductions, however, will automatically stop upon the termination of the Participant's purchase right in accordance with Section VII(d) or (e) below. (d) If the lump-sum alternative is selected, the lump sum payment may not exceed 15% of the Compensation paid to the Participant during the purchase period and must be paid within the first fifteen (15) days of the final month of the purchase period. However, no lump-sum payment may be made with respect to a purchase right terminated in accordance with Section VII(d) or (e) below. VI. STOCK SUBJECT TO PLAN (a) The Common Stock issuable under the Plan shall, solely in the Board's discretion, be made available from either authorized but unissued shares of Common Stock or from reacquired shares, including shares purchased on the open market. The total number of shares which may be issued under the Plan shall not exceed 100,000 shares (subject to adjustment under subparagraph (b) below). If any right granted under the Plan terminates without having been exercised, the shares not purchased under that right will again be available for issuance under the Plan. (b) If any change is made to the Common Stock issuable under the Plan by reason of (I) any merger, consolidation or reorganization or (II) any stock dividend, stock split, combination of shares or other change affecting the outstanding Common Stock as a class without receipt of consideration, appropriate adjustments will be made by the Plan Administrator to (i) the class and maximum number of shares issuable under the Plan, (ii) the class and maximum number of shares purchasable per Participant under any one purchase right, and (iii) the class and number of shares and the price per share of the Common Stock subject to each purchase right at the time outstanding under the Plan. VII. PURCHASE RIGHT An Employee who participates in the Plan for a particular purchase period will have the right to purchase Common Stock on the terms and conditions set forth below and must execute a purchase agreement embodying such terms and conditions and such other provisions (not inconsistent with the Plan) as the Plan Administrator may deem advisable. (a) PURCHASE PRICE. The purchase price per share will be the LESSER of (i) 85% of the fair market value per share of Common Stock on the date on which the purchase right is granted or (ii) 85% of the fair market value per share of Common Stock on the date the purchase right is exercised. The fair market value per share of Common Stock on any relevant date will be the closing selling price of a share of Common Stock on that date, as officially quoted on the principal exchange on which the Common Stock is at the time traded or, if not traded on any exchange, the closing selling price per share of Common Stock on that date, as reported on the NASDAQ National Market System. If there are no sales of Common Stock on that day, then the closing selling price for the Common Stock on the next preceding day for which quotations do exist will be determinative of fair market value. (b) NUMBER OF PURCHASABLE SHARES. The number of shares that a Participant may purchase for a particular purchase period is the number of whole shares obtained by dividing the payments made by the Participant for that purchase period, together with any amount carried over from the preceding purchase period pursuant to the provisions of Section VII(f), by the purchase price in effect for the purchase period. However, a Participant may not purchase more than 600 shares (subject to adjustment under Section VI(b)) in any purchase period. Under no circumstances may purchase rights be granted under the Plan to any Employee who would, immediately after the grant, own (within the meaning of Code Section 425(d)), or otherwise hold outstanding options or other rights to purchase, stock possessing 5% or more of the total combined voting power or value of all classes of stock of the Company or any of its Corporate Affiliates. (c) PAYMENT. Payment for the Common Stock purchased under the Plan must be made in accordance with the method of payment authorized by the Participant. Each payment made by the Participant will be credited to his/her individual account under the Plan, but no interest will be paid on the balance from time to time outstanding in the account. All payments may be commingled with the general assets of the Company and may be used for general corporate purposes. (d) TERMINATION OF PURCHASE RIGHTS. (i) A Participant may, before the last ten (10) days of the purchase period, terminate his/her outstanding purchase right by filing the prescribed notification form with the Plan Administrator (or its designate). All payments previously collected from the Participant for that purchase period will be promptly refunded and no further payments may be made for that purchase period. (ii) The termination will be irrevocable for the purchase right in which it is made and the Participant must re-enroll in the Plan (by making a timely filing of a new purchase agreement and payment authorization) if the Participant wishes to resume participation in a subsequent purchase period. (e) TERMINATION OF SERVICE. If a Participant leaves the Service of the Company before the end of a Purchase Period, the purchase right for that purchase Period will immediately terminate and all payments collected from the Participant during that purchase period will be promptly refunded to the Participant. A Participant will be considered to be in the Service of the Company for so long as the Participant remains in the active employ of the Company or any other Participating Company under the Plan. (f) STOCK PURCHASE. Outstanding purchase rights (other than purchase rights previously terminated in accordance with Section VII(d) or (e) above) will be automatically exercised on the last day of the purchase period. The exercise will be made by applying the amount credited to each Participant's account on the last date of the purchase period to the purchase of whole shares of Common Stock (subject to the limitations on the maximum number of purchasable shares set forth in Section VII(b)) at the purchase price in effect for that purchase period. Any amount remaining in the Participant's account will be held for the purchase of Common Stock in the next purchase period, PROVIDED the Participant continues in the Plan for that purchase period. However, any amount not applied to the purchase of Common Stock by reason of the Section VII(b) limitation on the maximum number of purchasable shares will be refunded promptly after the close of the purchase period. (g) PRORATION OF PURCHASE RIGHTS. Should the total number of shares to be purchased pursuant to outstanding purchase rights exceed on the exercise date the number of shares then available for issuance under the Plan, the Plan Administrator will make a pro-rata allocation of the available shares on a uniform and nondiscriminatory basis, and any amounts credited to the accounts of Participants will, to the extent not applied to the purchase of Common Stock, be refunded to the Participants. (h) RIGHTS AS STOCKHOLDER. A Participant has no rights as a stockholder with respect to shares covered by the purchase right granted to the Participant until the shares are actually purchased on the Participant's behalf in accordance with Section VII(f). No adjustments will be made for dividends, distributions or other rights for which the record date is before the date of purchase. A Participant will to receive, as soon as practicable after the date of each purchase, stock certificates for the number of shares purchased on his/her behalf. The certificates may, upon the Participant's request, be issued in the names of the Participant and his/her spouse as community property or as joint tenants with right of survivorship. The Plan Administrator has full power and authority to implement an immediate sale program under the Plan with one or more selected broker/dealers which will allow Participants to sell their purchased shares of Common Stock on the open market immediately after the close of the purchase period and prior to the actual issuance of the stock certificates for the purchased shares. (i) ASSIGNABILITY. Purchase rights are not assignable or transferable by a Participant and may be exercised only by the Participant. (j) MERGER OR LIQUIDATION OF COMPANY. If one or more of the following transactions occurs during a purchase period: (a) a dissolution or liquidation of the Company; (b) a merger or consolidation in which the Company is not the surviving corporation; (c) a reverse merger in which the Company is the surviving corporation but in which fifty percent (50%) or more of the Company's outstanding voting stock is transferred to holders different from those who held the stock immediately prior to the merger, then at the Plan Administrator's discretion (I) all purchase rights outstanding under the Plan immediately before the consummation of the transaction will be exercised by applying the sums previously collected from Participants during the purchase period to the purchase of whole shares of Common Stock, subject, however, to the applicable limitations of Section VII(b) or (II) all sums previously collected from Participants during that purchase period will be refunded upon the consummation of the transaction. VIII. ACCRUAL LIMITATIONS No Participant may accrue rights to acquire Common Stock under this Plan if and to the extent that such accrual, when aggregated with (I) stock rights accrued under other purchase rights outstanding under this Plan and (II) similar rights accrued under other employee stock purchase plans (within the meaning of Code Section 423) of the Company or its Corporate Affiliates, would otherwise permit the Participant to purchase more than $25,000 worth of stock of the Company or any Corporate Affiliate (determined on the basis of the fair market value of the stock on the date or dates that the rights are granted to the Participant) for each calendar year that the rights are at any time outstanding. IX. AMENDMENT AND TERMINATION The Board may from time to time alter, amend, suspend or discontinue the Plan; PROVIDED, however, that no such action may adversely affect purchase rights at the time outstanding under the Plan; and PROVIDED, FURTHER, no such action may be taken without the approval of the Company's stockholders if and to the extent that the Board determines that such approval is necessary to satisfy regulatory requirements. X. GENERAL PROVISIONS (a) The Plan will terminate on the EARLIER of (i) May 31, 2007 or (ii) the date on which all shares available under the Plan have been sold. (b) All costs and expenses incurred in the administration of the Plan will be paid by the Company. (c) Neither the action of the Company in establishing the Plan, nor any action taken under the Plan by the Board or the Plan Administrator, nor any provision of the Plan itself shall confer upon the Participant any right to continue in the employ of the Company or any of its Corporate Affiliates for any period of specific duration or interfere with or otherwise restrict in any way the rights of the Company (or any of its Corporate Affiliates employing Participant) to terminate the Employee status of the Participant at any time and for any reason, with or without cause. (d) The provisions of the Plan shall be governed by the laws of the State of California. -----END PRIVACY-ENHANCED MESSAGE-----