-----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, ML8GB9wrW/X8r0wpuJumTTJNyvRoAreo7zT+YzbL0bFlHKFsizVbztJsrsmsKPK/ z0n7IvVGz4wcyX/K14jwcA== 0001012870-00-000357.txt : 20000204 0001012870-00-000357.hdr.sgml : 20000204 ACCESSION NUMBER: 0001012870-00-000357 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20000203 EFFECTIVENESS DATE: 20000203 FILER: COMPANY DATA: COMPANY CONFORMED NAME: IXYS CORP /DE/ CENTRAL INDEX KEY: 0000945699 STANDARD INDUSTRIAL CLASSIFICATION: SEMICONDUCTORS & RELATED DEVICES [3674] IRS NUMBER: 770140882 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-96081 FILM NUMBER: 522710 BUSINESS ADDRESS: STREET 1: 3540 BASSETT STREET CITY: SANTA CLARA STATE: CA ZIP: 95054 BUSINESS PHONE: 4089540500 MAIL ADDRESS: STREET 1: 3540 BASSETT STREET CITY: SANTA CLARA STATE: CA ZIP: 95054 FORMER COMPANY: FORMER CONFORMED NAME: PARADIGM TECHNOLOGY INC /DE/ DATE OF NAME CHANGE: 19951031 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on February 3, 2000 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ----------------------------- IXYS Corporation ------------------------------------------------------------ (Exact name of registrant as specified in its charter) Delaware 770140882-5 (State of Incorporation) (I.R.S. Employer Identification No.) 3540 Bassett Street, Santa Clara, California 95054-2704 ----------------------------------------------------------------------- (Address of principal executive offices) (Zip Code) 1999 Equity Incentive Plan 1999 Employee Stock Purchase Plan 1999 Non-Employee Directors' Equity Incentive Plan --------------------------------------------------------- (Full title of the plan) NATHAN ZOMMER President and Chief Executive Officer IXYS CORPORATION 3540 Bassett Street, Santa Clara, California 95054-2704 (404) 982-0700 - ------------------------------------------------------------------------------- (Name, address, including zip code, and telephone number, including area code, of agent for service) ---------------------------- Copy to: James R. Jones, Esq. Cooley Godward LLP Five Palo Alto Square 3000 El Camino Real Palo Alto, California 94306 (650) 843-5000 ---------------------------- Approximate date of commencement of proposed sale to the public: As soon as possible after this Registration Statement becomes effective.
CALCULATION OF REGISTRATION FEE ==================================================================================================================================== Title of Securities to Amount to be Proposed Maximum Proposed Maximum Amount of be Registered Registered (1) Offering Price Per Aggregate Offering Registration Fee Share (2) Price (2) - ------------------------------------------------------------------------------------------------------------------------------------ Common Stock par value 3,500,000 shares $7.375 $25,812,500 $6,814.50 $.01 per share ====================================================================================================================================
(1) Consists of (i) 3,000,000 shares that are being registered pursuant to the 1999 Equity Incentive Plan; (ii) 250,000 shares that are being registered pursuant to the 1999 Employee Stock Purchase Plan; and (iii) 250,000 shares that are being registered pursuant to the 1999 Non-Employee Directors' Equity Incentive Plan. (2) Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c) and (h)(1) of the Securities Act of 1933, as amended. The price is based upon the average of the high and low prices of the Registrant's Common Stock as reported on the NASDAQ SmallCap Market on January 28, 2000. PART II INCORPORATION REQUIRED IN THE REGISTRATION STATEMENTS ----------------------------------------------------- ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents filed by the Registrant with the Securities and Exchange Commission (the "Commission") are incorporated by reference into this Registration Statement: 1. Registrant's Report on Form 10-K405 for the year ended March 31, 1999, filed on or about July 8, 1999, as amended; 2. Registrant's Quarterly Reports on Form 10-Q, filed on August 16, 1999 and November 12, 1999. 3. Registrant's Proxy Statement for the 1999 Annual Meeting of Stockholders, filed October 1, 1999; 5. The description of the Registrant's Common Stock contained in its Registration Statement on Form 8-A, as filed with the Commission, pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), including any amendment or report filed for the purpose of updating such description. 5. All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this registration statement and prior to the filing of a post-effective amendment that indicates that all securities offered have been sold or the deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to part hereof from the date of filing such documents. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED AND EXPERT COUNSEL. As of January 20, 2000, attorneys of Cooley Godward LLP held 15,000 shares of Common Stock of Registrant. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 ("Section 145") of the Delaware General Corporation Law ("DGCL") provides generally and in pertinent part that a Delaware corporation may indemnify its directors, officers, employees and agents against expenses(including attorneys' fees), judgments, fines and settlements actually and reasonably incurred by them in connection with any civil, criminal, administrative or investigative action, suit or proceeding (except actions by or in the right of the corporation), if, they acted in good faith and in a manner they reasonably believed to be in, or not opposed to, the best interests of the corporation, and, with respect to any criminal suit or proceeding, they had no reasonable cause to believe their conduct was unlawful. Section 145 further provides that, in connection with the defense or settlement of any action by or in the right of the corporation, a Delaware corporation may indemnify its directors, officers, employees and agents against expenses actually and reasonably incurred by them if they acted in good faith and in a manner they reasonably believed to be in, or not opposed to, the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation, absent a determination by a court that such indemnity is proper. Section 145 further permits a Delaware corporation to grant its directors, officers, employees and agents additional rights of indemnification through bylaw provisions and otherwise. Section 145 further permits a Delaware corporation to purchase and maintain insurance on behalf of any persons who are or were directors, officers, employees or agents of the corporation, or are ore were serving at the request of the corporation as directors, officers, employees or agents of the corporation, or are or were serving at the request of the corporation as directors, officers, employees or agents of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against them and incurred by them in any such capacity, or arising out of their status as such, whether or not the corporation would have the power to indemnify them against such liability under the other provisions of Section 145. Section 102(b)(7) of the DGCL provides that a certificate of incorporation may contain a provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL (relating to liability for unauthorized acquisitions or redemptions of, or dividends on, capital stock) or (iv) for any transaction from which the director derived an improper personal benefit. The Restated Certificate of Incorporation of the Registrant provides for the indemnification of its directors and officers to the fullest extent provided by the DGCL. In addition, Article VII of the Registrant's Restated Certificate of Incorporation provides, in part, as follows: "To the fullest extent permitted by the Delaware General Corporation law, a director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit." ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. Exhibit Number - ------ 5.1 Opinion of Cooley Godward llp. 23.1 Consent of PricewaterhouseCoopers LLP. 23.2 Consent of Cooley Godward llp. Reference is made to Exhibit 5.1 of this Registration Statement. 24.1 Power of Attorney follows the signature page. 99.1 1999 Equity Incentive Plan (1) 99.2 1999 Employee Stock Purchase Plan. (1) 99.3 Employee Stock Purchase Plan Offering Document. 99.4 1999 Non-Employee Directors' Equity Incentive Plan (1) (1) Filed as exhibits with the Registrant's Report on Form 10-K405 for the year ended March 31 and incorporated herein by reference. ITEM 9. UNDERTAKINGS. (a) The undersigned registrant 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. (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 undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to 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 registrant pursuant to the foregoing provisions, or otherwise, the Registrant 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 Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant 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 registrant will, unless in the opinion of its 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. SIGNATURES ---------- The Registrant. Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant 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 Santa Clara, State of California, on January 28, 2000. IXYS Corporation By: /s/ Nathan Zommer ----------------------------------- Nathan Zommer President and Chief Executive Officer (Principal executive officer) By: /s/ Arnold Agbayani ----------------------------------- Arnold Agbayani Chief Financial Officer (Principal financial and accounting officer) POWER OF ATTORNEY ----------------- KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Nathan Zommer and Arnold Agbayani and each of them., his or her attorneys-in-fact, with full power of substitution and resubstitution, 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 other 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 done in connection therewith, 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 substitutes or substitute, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated. Signature Title Date - --------- ----- ---- /s/ Nathan Zommer President, Chief Executive Officer January 28, 2000 - ------------------- (Principal Executive Officer) and Nathan Zommer Chairman of the Board /s/ Arnold Agbayani Chief Financial Officer (Principal January 28, 2000 - ------------------- Financial and Accounting Officer) Arnold Agbayani and Director Director _______________ - ------------------ Andreas Hartman /s/ Samuel Kory Director January 28, 2000 - ------------------ Samuel Kory EXHIBIT INDEX Exhibit Number Description 5.1 Opinion of Cooley Godward LLP. 23.1 Consent of PricewaterhouseCoopers LLP. 23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1 of this Registration Statement. 24.1 Power of Attorney follows the signature page. 99.1 1999 Equity Incentive Plan (1) 99.2 1999 Employee Stock Purchase Plan. (1) 99.3 1999 Employee Stock Purchase Plan Offering Document. 99.4 1999 Non-Employee Directors' Equity Incentive Plan (1) (1) Filed as exhibits with the Registrant's Report on Form 10-K405 for the year ended March 31 and incorporated herein by reference. EX-5.1 2 OPINION OF COOLEY GODWARD LLP EXHIBIT 5.1 January 28, 2000 IXYS Corporation 3540 Bassett Street Santa Clara, California 95054-2704 Ladies and Gentlemen: You have requested our opinion with respect to certain matters in connection with the filing by IXYS Corporation (the "Company") of a Registration Statement on Form S-8 (the "Registration Statement") with the Securities and Exchange Commission covering the offering of up to 3,500,000 shares of the Company's Common Stock, par value $0.01, (the "Shares") pursuant to its 1999 Equity Incentive Plan, 1999 Employee Stock Purchase Plan, 1999 Non-Employee Directors' Equity Incentive Plan (collectively, the "1999 Equity Plans"). In connection with this opinion, we have examined the Registration Statement, the 1999 Equity Plans and related Prospectuses, the Company's Certificate of Incorporation and By-laws, as amended, and such other documents, records, certificates, memoranda and other instruments as we deemed necessary as a basis for this opinion. We have assumed the genuineness and authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies thereof, and the due execution and delivery of all documents where due execution and delivery are a prerequisite to the effectiveness thereof. On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the 1999 Equity Plans, the Registration Statement and related Prospectuses, will be validly issued, fully paid, and nonassessable. We consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, Cooley Godward llp By: /s/ Alan C. Mendelson ----------------------- Alan C. Mendelson EX-23.1 3 CONSENT OF PRICEWATERHOUSECOOPERS LLP EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in the registration statement of IXYS Corporation on Form S-8 (to register shares under the Paradigm Technology, Inc. Amended and Restated 1994 Stock Option Plan and IXYS Corporation Amended and Restated 1989 Common Stock Option Plan) of our reports dated February 21, 1998, except as to Note 13, which is as of March 9, 1998, and except as to the first paragraph of Note 2, which is as of May 1, 1998 of the financial statements of Paradigm Technology, Inc. as of December 31, 1996 and 1997, and for the three years in the period ended December 31, 1997 which reports appear in the registration statement of Paradigm Technology, Inc. on Form S-4 filed with the Securities and Exchange Commission pursuant to the Securities Act of 1933, and our report dated May 10, 1999, on our audits of the consolidated financial statements of IXYS Corporation as of March 31, 1999 and 1998, and the three years in the period ended March 31, 1999, which report appears the IXYS Corporation Annual Report on Form 10-K/A. /s/ PricewaterhouseCoopers LLP San Jose, California January 28, 2000 EX-99.3 4 1999 EMPLOYEE STOCK PURCHASE PLAN OFFERING EXHIBIT 99.3 IXYS Corporation EMPLOYEE STOCK PURCHASE PLAN OFFERING Adopted May 7, 1999 1. Grant; Offering Date. (a) The Board of Directors of IXYS Corporation (the "Company"), pursuant to the Company's 1999 Employee Stock Purchase Plan (the "Plan"), hereby authorizes the grant of rights to purchase shares of the common stock of the Company ("Common Stock") to all Eligible Employees (an "Offering"). Subject to subsection 1(b) below, the first Offering shall begin on December 1, 1999 and shall end on May 31, 2000 (the "Initial Offering"). Thereafter, subject to subsection 1(b) below, an Offering shall begin on June 1 every year, beginning on June 1, 2000. An Offering shall end on the day prior to the first day of the subsequent Offering. The first day of an Offering is that Offering's "Offering Date." If an Offering Date would fall on a day during which the Company's Common Stock is not actively traded, then the Offering Date shall be the next subsequent day during which the Company's Common Stock is actively traded. (b) Prior to the commencement of any Offering, the Board of Directors (or the Committee described in subparagraph 2(c) of the Plan, if any) may change any or all terms of such Offering and any subsequent Offerings. The granting of rights pursuant to each Offering hereunder shall occur on each respective Offering Date unless, prior to such date (a) the Board of Directors (or such Committee) determines that such Offering shall not occur, or (b) no shares remain available for issuance under the Plan in connection with the Offering. 2. Eligible Employees. (a) All employees of the Company and each of its Affiliates (as defined in the Plan) incorporated in the United States, shall be granted rights to purchase Common Stock under each Offering on the Offering Date of such Offering, provided that each such employee otherwise meets the employment requirements of subparagraph 5(a) of the Plan (an "Eligible Employee"). Notwithstanding the foregoing, the following employees shall not be Eligible Employees or be granted rights under an Offering: (i) part-time or seasonal employees whose customary employment is less than 20 hours per week or 5 months per calendar year or (ii) 5% stockholders (including ownership through unexercised options) described in subparagraph 5(c) of the Plan. (b) Each person who first becomes an Eligible Employee during any Offering will, on the first business day of the month of June or on the first business day of the month of December during the Offering, which coincides with the day on which such person becomes an Eligible Employee or which occurs thereafter, receive a right under such Offering, which right shall thereafter be deemed to be a part of the Offering. Such right shall have the same characteristics as any rights originally granted under the Offering except that: (i) the date on which such right is granted shall be the "Offering Date" of such right for all purposes, including determination of the exercise price of such right; and (ii) the Offering for such right shall begin on its Offering Date and end coincident with the end of the ongoing Offering. 3. Rights. (a) Subject to the limitations contained herein and in the Plan, on each Offering Date each Eligible Employee shall be granted the right to purchase the number of shares of Common Stock purchasable with up to ten percent (10%) of such Eligible Employee's Earnings paid during such Offering after the Eligible Employee first commences participation; provided, however, that no employee may purchase Common Stock on a particular Purchase Date that would result in more than ten percent (10%) of such employee's Earnings in the period from the Offering Date to such Purchase Date having been applied to purchase shares under all ongoing Offerings under the Plan and all other Company plans intended to qualify as "employee stock purchase plans" under Section 423 of the Internal Revenue Code of 1986, as amended (the "Code"). For this Offering, "Earnings" means the total compensation paid to an employee, including all salary, wages (including amounts elected to be deferred by the employee, that would otherwise have been paid, under any cash or deferred arrangement or other deferred compensation program established by the Company), overtime pay, commissions, bonuses, and other remuneration paid directly to the employee, but excluding profit sharing, the cost of employee benefits paid for by the Company, education or tuition reimbursements, imputed income arising under any Company group insurance or benefit program, traveling expenses, business and moving expense reimbursements, income received in connection with stock options, contributions made by the Company under any employee benefit plan, and similar items of compensation. (b) Notwithstanding the foregoing, the maximum number of shares of Common Stock an Eligible Employee may purchase on a Purchase Date in an Offering is such number of shares as has a fair market value (determined as of the Offering Date for such Offering) equal to (x) $25,000 multiplied by the number of calendar years in which the right under such Offering has been outstanding any time, minus (y) the fair market value of any other shares of Common Stock (determined as of the relevant Offering Date with respect to such shares) which, for purposes of the limitation of Section 423(b)(8) of the Code, are attributed to any of such calendar years in which the right is outstanding. The amount in clause (y) of the previous sentence shall be determined in accordance with regulations under Section 423(b)(8) of the Code based on (i) the number of shares previously purchased with respect to such calendar years pursuant to such Offering or any other Offering under the Plan, or pursuant to any other Company plans intended to qualify as "employee stock purchase plans" under Section 423 of the Code, and (ii) the number of shares subject to other rights outstanding on the Offering Date for such Offering pursuant to the Plan or any other such Company plan. (c) The maximum aggregate number of shares available to be purchased by all Eligible Employees under an Offering shall be the number of shares remaining available under the Plan on the Offering Date. If the aggregate purchase of shares of Common Stock upon exercise of rights granted under the Offering would exceed the maximum aggregate number of shares available under the limit set forth in this subsection 3(c), the Board shall make a pro rata allocation of the shares available in a uniform and equitable manner. 4. Purchase Price. The purchase price of the Common Stock under the Offering shall be the lesser of eighty-five percent (85%) of the fair market value of the Common Stock on the Offering Date or eighty-five percent (85%) of the fair market value of the Common Stock on the Purchase Date, in each case rounded up to the nearest whole cent per share. 5. Participation. (a) Except as otherwise provided in this paragraph 5, an Eligible Employee may elect to participate in an Offering only at the beginning of the Offering; provided, however, that a person who first becomes an Eligible Employee during an Offering may elect to participate at the Offering Date applicable to such Eligible Employee in accordance with subparagraph 2(b). An Eligible Employee shall become a participant in an Offering by delivering an agreement authorizing payroll deductions. Such deductions may be in whole percentages only, with a minimum percentage of one percent (1%) and maximum percentage of ten percent (10%) of Earnings. A participant may not make additional payments into his or her account. The agreement shall be made on such enrollment form as the Company provides, and must be delivered to the Company before the date of participation to be effective for such Offering, as determined by the Company and communicated to Eligible Employees. As to the Initial Offering, the time for filing an enrollment form and commencing participation for individuals who are Eligible Employees on the Offering Date for the Initial Offering shall be determined by the Company and communicated to such Eligible Employees. (b) Generally, a participant may increase or reduce (including to zero) his or her participation level only as of each June 1 and December 1 during any Offering (except not during the ten (10) days immediately preceding a Purchase Date). Any such change in participation shall be made by delivering a notice to the Company or a designated Affiliate in such form and at such time as the Company provides. Notwithstanding the foregoing, a participant may reduce his or her participation level to zero once at any time during the six (6) month period ending on a Purchase Date (except not during the ten (10) days immediately preceding a Purchase Date). Additionally, a participant may withdraw from an Offering and receive his or her accumulated payroll deductions from the Offering (reduced to the extent, if any, such deductions have been used to acquire Common Stock for the participant on any prior Purchase Dates), without interest at any time prior to the end of the Offering, excluding only each ten (10) day period immediately preceding a Purchase Date (or such shorter period of time determined by the Company and communicated to participants), by delivering a withdrawal notice to the Company in such form as the Company provides. A participant who has withdrawn from an Offering shall not be entitled to again participate in such Offering, but may participate in other Offerings under the Plan by submitting a new participation agreement in accordance with the terms thereof. 6. Purchases. Subject to the limitations contained herein, on each Purchase Date, each participant's accumulated payroll deductions (without any increase for interest) shall be applied to the purchase of whole shares of Common Stock, up to the maximum number of shares permitted under the Plan and the Offering. "Purchase Date" shall be defined as the last day of each May and of each November. If a Purchase Date would not fall on a day during which the Company's Common Stock is actively traded, then the Purchase Date shall be the nearest prior day during which the Company's Common Stock is actively traded. 7. Notices and Agreements. Any notices or agreements provided for in an Offering or the Plan shall be given in writing, in a form provided by the Company, and unless specifically provided for in the Plan or this Offering shall be deemed effectively given upon receipt or, in the case of notices and agreements delivered by the Company, five (5) days after deposit in the United States mail, postage prepaid. 8. Exercise Contingent on Stockholder Approval. The rights granted under an Offering are subject to the approval of the Plan by the shareholders as required for the Plan to obtain treatment as a tax- qualified employee stock purchase plan under Section 423 of the Code. 9. Offering Subject to Plan. Each Offering is subject to all the provisions of the Plan, and its provisions are hereby made a part of the Offering, and is further subject to all interpretations, amendments, rules and regulations which may from time to time be promulgated and adopted pursuant to the Plan. In the event of any conflict between the provisions of an Offering and those of the Plan (including interpretations, amendments, rules and regulations which may from time to time be promulgated and adopted pursuant to the Plan), the provisions of the Plan shall control. -----END PRIVACY-ENHANCED MESSAGE-----