Form of Agiliti, Inc. Employee Stock Purchase Plan
EMPLOYEE STOCK PURCHASE PLAN
(Adopted on [●], 2021)
SECTION 1. PURPOSE
The purposes of the Plan are to provide employees of the Company and its Designated Companies with an opportunity to acquire an equity ownership interest in the Company and to encourage employees to remain in the employ of the Company and its Designated Companies.
The Company intends the Plan to qualify as an employee stock purchase plan under Section 423 of the Code but makes no representation of such status nor undertaking to maintain such status. The provisions of the Plan will be construed so as to extend and limit Plan participation in a uniform and nondiscriminatory basis consistent with the requirements of Section 423 of the Code.
SECTION 2. DEFINITIONS
Certain capitalized terms used in the Plan have the meanings set forth in Appendix A.
SECTION 3. OFFERINGS
3.1 Offering Periods
(a) Except as otherwise set forth below, the Plan shall be implemented by a series of Offerings (each, an Offering) during which shares of Common Stock may be purchased by Participants. Offering Periods shall begin on May 1 and November 1 of each year and shall end on the next October 31 and April 30, respectively, occurring thereafter.
(b) Notwithstanding the foregoing, the Committee may establish (i) a different term for one or more Offerings and (ii) different commencing and ending dates for such Offerings; provided, however, that an Offering Period may not exceed five years; and provided, further, that if the Purchase Price may be less than 85% of the Fair Market Value of the Common Stock on the Purchase Date because, pursuant to Section 6.1, the Committee utilized its discretion to look-back to the Fair Market Value of the Common Stock on the first day of the Offering Period, the Offering Period may not exceed 27 months.
(c) The Committee may further designate separate Offerings under the Plan (the terms of which need not be identical and which may be overlapping or consecutive) in which Eligible Employees of one or more Employers may participate, and the provisions of the Plan will separately apply to each Offering, including the limitations set forth in Section 3.1(b) regarding the maximum length of Offering Periods. An Offering Period may but need not be the same length as a Purchase Period, as determined by the Committee.
(d) In the event the first or the last day of an Offering Period is not a regular business day, then the first day of the Offering Period shall be deemed to be the next regular business day and the last day of the Offering Period shall be deemed to be the last preceding regular business day.
3.2 Purchase Periods
(a) Each Offering Period shall consist of one or more consecutive purchase periods (each, a Purchase Period). The last day of each Purchase Period shall be the purchase date (a Purchase Date) for such Purchase Period. Purchase Periods shall begin on May 1 and November 1 of each year and shall end on the next October 31 and April 30, respectively, occurring thereafter.
(b) Notwithstanding the foregoing, the Committee may establish (i) a different term for one or more Purchase Periods and (ii) different commencing and ending dates for any such Purchase Period.
(c) In the event the first or the last day of a Purchase Period is not a regular business day, then the first day of the Purchase Period shall be deemed to be the next regular business day and the last day of the Purchase Period shall be deemed to be the last preceding regular business day.
SECTION 4. ENROLLMENT
4.1 Initial Enrollment
An Eligible Employee may enroll in the Plan for an Offering Period by completing an enrollment election form, electronic or otherwise (an Enrollment Agreement) provided by the Company or a third party designated by the Company, and completing such other procedures as the Committee or its designee shall prescribe for enrollment. Enrollment in the Plan must be completed on or before the Cut-Off Date applicable to an Offering Period to participate in such Offering Period. Participation in the Plan is entirely voluntary.
4.2 Continuing Effectiveness of Enrollment Agreement; Enrollment Agreement Changes
Unless otherwise determined by the Committee, a Participants Enrollment Agreement and the designated rate of payroll deduction or contribution by a Participant shall continue for future Offering Periods unless the Participant changes or cancels, in accordance with procedures established by the Committee, the enrollment election or the designated rate of payroll deduction or contribution prior to the Cut-Off Date with respect to a future Offering Period or elects to withdraw from the Plan in accordance with Section 7.1. Unless otherwise determined by the Committee for an Offering Period, a Participant may withdraw from the Plan in accordance with Section 7.1 but, while participating in an Offering Period, may not otherwise change his or rate of payroll deduction or contribution for such Offering Period.
4.3 Initial Eligibility During Offering Period; Participation in Multiple Offering Periods
An employee who becomes eligible to participate in the Plan after an Offering Period has begun shall not be eligible to participate in that Offering Period but may participate in any subsequent Offering Period, provided that such employee is still an Eligible Employee as of the commencement of any such subsequent Offering Period and completes the enrollment procedures set forth in this Section 4. Eligible Employees may not participate in more than one Offering at a time.
SECTION 5. GRANT OF OPTIONS
5.1 Option Grant
(a) Enrollment by an Eligible Employee in the Plan as of the first day of an Offering Period in accordance with the requirements of Section 4 will constitute the grant by the Company to such Participant of an Option on such date to purchase shares of Common Stock from the Company pursuant to the Plan.
(b) Notwithstanding any other provision of the Plan to the contrary, no Eligible Employee shall be granted an Option under the Plan to the extent that, immediately after the grant, such Eligible Employee would own directly or indirectly, an aggregate of 5% or more of the total combined voting power or value of all classes of stock of the Company or any Parent or Subsidiary (as determined under Section 423(b)(3) of the Code, and for purposes of this paragraph, the rules of Section 424(d) of the Code shall apply, and stock which the employee may purchase under outstanding options shall be treated as stock owned by the employee). In addition, no Eligible Employee shall be entitled to purchase stock under the Plan (and under all other employee stock purchase plans of the Company and any Parent or Subsidiary of the Company that are intended to meet the requirements of Section 423 of the Code) at a rate that exceeds $25,000 in fair market value of the stock (based on the Fair Market Value of the stock at the time such option is granted) for each calendar year in which any such option to purchase stock is outstanding at any time, as determined in accordance with Section 423 of the Code.
5.2 Share Purchase Limits
Notwithstanding any other provision of the Plan to the contrary, unless the Committee determines otherwise for a future Offering Period or Purchase Period, no Participant may purchase during a single Purchase Period more than 5,000 shares of Common Stock, subject to adjustment as provided in the Plan.
5.3 Adjustments to Contributions
The Company shall have the authority to take all necessary action, including, but not limited to, suspending the payroll deductions or contributions of any Participant, in order to ensure compliance with this Section 5. Any payroll deductions or contributions suspended as a result of the limits of this Section 5 shall automatically resume for Eligible Employees at the beginning of the earliest Purchase Period for which the foregoing limits will not be exceeded, provided that when the Company automatically resumes such payroll deductions or contributions, the Company shall apply the contribution rate in effect immediately prior to such suspension or in effect pursuant to an amended or new Enrollment Agreement that satisfies the requirements of Section 4.
SECTION 6. PURCHASE PRICE; PAYMENT
6.1 Purchase Price
The purchase price (Purchase Price) at which shares of Common Stock may be acquired in an Offering Period pursuant to the exercise of all or any portion of an Option granted under the Plan shall be 85% of the Fair Market Value of the Common Stock on the Purchase Date; provided, however, that the Committee may change the Purchase Price to be anywhere from 85% to 100% of the Fair Market Value of a share of Common Stock on the first day of an Offering Period or the Purchase Date for a future Offering Period, subject to compliance with Section 423 of the Code as applicable.
6.2 Purchase of Shares
(a) An Option held by a Participant that was granted under the Plan and that remains outstanding as of a Purchase Date shall be deemed to have been exercised on such Purchase Date for the number of whole shares of Common Stock (rounded down to the nearest whole share) that the funds accumulated in the Participants Account as of the Purchase Date will purchase at the applicable Purchase Price (but not in excess of the number of shares for which Options have been granted to the Participant pursuant to Section 5).
(b) During the Purchase Period, shares of Common Stock that are to be acquired pursuant to the exercise of all or any portion of an Option shall be paid for by means of payroll deductions from a Participants Eligible Compensation or, if payroll deductions are not permitted under local law, through another means of contribution specified by the Committee. Unless the Committee determines otherwise for a future Purchase Period, any payroll deductions must be in whole percentages comprising not less than 1% and not more than 10% of a Participants Eligible Compensation received on each applicable pay day during the Purchase Period. Payment amounts shall be credited on a bookkeeping basis to a Participants Account under the Plan. All payroll deductions or contributions received or held by the Company may be used by the Company for any purpose and the Company shall have no obligation to segregate such funds, except as may be required by local law. No interest shall accrue on payroll deductions or contributions by Participants, except as may be required by local law.
(c) Any payroll deductions for a Participant shall commence on the first pay day following the first day of an Offering Period and shall end on the last pay day on or prior to the Purchase Date to which an Enrollment Agreement applies.
(d) Notwithstanding any provision in the Plan to the contrary, the Committee may allow Eligible Employees to participate in the Plan via cash contributions instead of payroll deductions if (i) payroll deductions are not permitted under applicable local law or (ii) the Committee determines that cash contributions are permissible under Section 423 of the Code.
6.3 Refund of Excess Amount
Unless otherwise determined by the Committee, if, after a Participants exercise of an Option under Section 6.2, an amount remains credited to the Participants Account as of a Purchase Date (including as a result of the share purchase limit in Section 5.2), then the remaining amount shall be returned to the Participant, except that any amounts that are not sufficient to purchase a full share of Common Stock shall be retained in the Participants Account for the subsequent Purchase Period or Offering Period, subject to earlier withdrawal by the Participant as provided in Section 7.1.
6.4 Pro Rata Allocation
If the total number of shares for which Options are or could be exercised on any Purchase Date in accordance with this Section 6, when aggregated with all shares for which Options have been previously exercised under the Plan, exceeds the maximum number of shares reserved in Section 11, the Company may allocate the shares available for delivery and distribution in the ratio that the balance in each Participants Account bears to the aggregate balances of all Participants Accounts, and the remaining balance of the amount credited to the Account of each Participant under the Plan shall be returned to him or her as promptly as possible.
6.5 Holding Requirements and Notice of Disposition
Unless the Committee determines otherwise or sets other parameters, Participants are required to hold shares of Common Stock acquired upon the exercise of an Option for at least twelve months from the Purchase Date. If a Participant or former Participant who is subject to United States federal income tax sells, transfers, or otherwise makes a disposition of shares of Common Stock purchased pursuant to an Option granted under the Plan prior to the later of: (i) two years after the first day of the Offering Period during which the shares were purchased and (ii) one year after the Purchase Date, then such Participant or former Participant shall notify the Company or the Employer in writing of such sale, transfer or other disposition within ten days of the consummation of such sale, transfer, or other disposition, unless the Committee or its designee determines otherwise.
SECTION 7. WITHDRAWAL FROM THE PLAN, TERMINATION OF EMPLOYMENT AND LEAVE OF ABSENCE
7.1 Withdrawal from the Plan
A Participant may withdraw all but not less than all of the funds accumulated in the Participants Account from the Plan during any Purchase Period by delivering a notice of withdrawal to the Company or the Employer (in a manner prescribed by the Committee or its designee) at any time up to but not including the fifteen days prior to the Purchase Date for such Purchase Period, or by such other time period in advance of the Purchase Date as the Committee or its designee may require. If notice of complete withdrawal from the Plan as described in the preceding sentence is timely received, the Participant will no longer be deemed a Participant in the Plan and the Company or the Employer will cease the Participants payroll withholding, or other contributions to the Plan, and all funds then accumulated in the Participants Account shall not be used to purchase shares of Common Stock, but shall instead be distributed to the Participant as soon as administratively feasible without interest. An Eligible Employee who has withdrawn from a Purchase Period may not return funds to the Company or the Employer during that or any other Purchase Period and require the Company or the Employer to apply those funds to the purchase of shares. Any Eligible Employee who has withdrawn from the Plan in accordance with this Section 7.1 may, however, choose to re-enroll in the Plan for a future Offering Period in accordance with Section 4. Unless otherwise determined by the Committee, during an Offering Period, a Participant may not otherwise change the rate of his or her contributions to the Plan.
7.2 Termination of Employment
Participation in the Plan terminates immediately on the date on which a Participant ceases to be employed by the Company or the Employer for any reason whatsoever or otherwise ceases to be an Eligible Employee. In the event of termination of employment, all funds then accumulated in the Participants Account shall not be used to purchase shares of Common Stock but shall instead be distributed to the Participant (or in case of the Participants death to his or her estate, beneficiary or heirs, as applicable) as soon as administratively feasible without interest, except as otherwise required by local law.
7.3 Leave of Absence
If a Participant takes a leave of absence, the Participant shall have the right, in accordance with procedures prescribed by the Committee, to elect to withdraw from the Plan in accordance with Section 7.1. The employment relationship will be treated as continuing intact while the individual is on sick leave or other leave of absence that the Employer approves or is legally protected under applicable laws. If a leave of absence exceeds three months and the individuals right to reemployment is not guaranteed by statute or contract, the employment relationship will be deemed to have terminated on the first day immediately following the end of the three-month period.
SECTION 8. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, DISSOLUTION, LIQUIDATION, MERGER OR ASSET SALE
8.1 Adjustments upon Changes in Capitalization
In the event, at any time or from time to time, a stock dividend, stock split, spin off, combination or exchange of shares, recapitalization, merger, consolidation, statutory share exchange, distribution to shareholders other than a normal cash dividend, or other change in the Companys corporate or capital structure results in (a) the outstanding shares of Common Stock, or any securities exchanged therefor or received in their place, being exchanged for a different number or kind of securities of the Company or of any other company or (b) new, different or additional securities of the Company or of any other company being received by the holders of shares of Common Stock, then the Committee shall make proportional adjustments in (i) the maximum number and kind of securities available for issuance under the Plan, including without limitation, the number and kind of securities available for issuance under the Plan because of the annual increase of shares permitted pursuant to Section 11; (ii) the aggregate maximum number and kind of securities that may be issued with respect to any Purchase Period; and (iii) the number and kind of securities that are subject to any outstanding Option and the per share price of such securities. The determination by the Committee as to the terms of any of the foregoing adjustments shall be conclusive and binding.
8.2 Adjustment upon Dissolution, Liquidation, Merger or Asset Sale
Without limitation on the preceding provisions, in the event of any dissolution, liquidation, merger, consolidation, sale of all or substantially all of the Companys outstanding securities, sale, lease, exchange or other transfer of all or substantially all of the Companys assets, or any similar transaction as determined by the Committee in its sole discretion, the Committee may make such adjustments it deems appropriate to prevent dilution or enlargement of rights in the number and class of shares which may be delivered under Section 11, in the number, class of shares or price of shares available for purchase under the Plan and in the number of shares which a Participant is entitled to purchase and any other adjustments it deems appropriate. Without limiting the Committees authority under the Plan, in the event of any such transaction, the Committee may elect to have the Options hereunder assumed or such Options converted or substituted by a successor entity (or its Parent), to terminate all outstanding Options either prior to their expiration or upon completion of the purchase of shares on the next Purchase Date, to shorten the Offering Period by setting a new Purchase Date, or to take such other action deemed appropriate by the Committee.
8.3 No Limitations
The grant of Options will in no way affect the Companys right to adjust, reclassify, reorganize or otherwise change its capital or business structure or to merger, consolidate, dissolve, liquidate or sell or transfer all or any part of its business or assts.
SECTION 9. MARKET STANDOFF
In the event of an underwritten public offering by the Company of its equity securities pursuant to an effective registration statement filed under the Securities Act, including the Companys initial public offering, no person may sell, make any short sale of, loan, hypothecate, pledge, assign, grant any option for the purchase of, or otherwise dispose of or transfer for value or otherwise agree to engage in any of the foregoing transactions with respect to any shares issued pursuant to an Option granted under the Plan without the prior written consent of the Company or its underwriters. Such limitations shall be in effect for such period of time as may be requested by the Company or such underwriters; provided, however, that in no event shall such period exceed (a) 180 days after the effective date of the registration statement for such public offering or (b) such longer period requested by the underwriters as is necessary to comply with regulatory restrictions on the publication of research reports. The limitations of this Section 9 shall in all events terminate two years after the effective date of the Companys initial public offering.
SECTION 10. DESIGNATION OF BENEFICIARY
To the extent provided by the Committee, each Participant under the Plan may, from time to time, name any beneficiary or beneficiaries (who may be named contingently or successively) to whom the amount in his or her Account is to be paid in case of his or her death before he or she receives any or all of such benefit. Each such designation shall revoke all prior designations by the same Participant, shall be in a form prescribed by the Company, and shall be effective only when filed by the Participant in writing with the Company during the Participants lifetime. In the absence of any such designation, any Account balance remaining unpaid at the Participants death shall be paid to the executor or administrator of the Participants estate.
SECTION 11. NUMBER OF SHARES
Subject to adjustment from time to time as provided in Section 8, the initial number of shares of Common Stock available for issuance under the Plan shall be 2,000,000 shares. The number of shares of Common Stock available for issuance under the Plan shall be subject to an annual increase on the first day of each calendar year beginning on January 1, 2022 equal to the lesser of (a) 0.5% of the aggregate number of shares of Common Stock outstanding on the final day of the immediately preceding calendar year and (b) such smaller number of shares of Common Stock as is determined by the Board. The maximum number of shares of Common Stock that may be issued under the Plan shall be 20,000,000 shares.
If any Option granted under the Plan shall for any reason terminate without having been exercised, the shares of Common Stock not purchased under such Option shall again become available for issuance under the Plan. The shares purchased under the Plan may be authorized but unissued shares, shares held in or acquired for the treasury of the Company, shares purchased on the open market or shares from any other proper source.
SECTION 12. ADMINISTRATION
12.1 Administration by Committee
The Plan shall be administered by the Committee. The Committee shall have the authority to delegate duties to officers, directors or employees of the Company as it deems advisable.
12.2 Authority of Committee
Subject to the provisions of the Plan, the Committee shall have the full and exclusive discretionary authority (i) to construe and interpret the Plan and Options granted under it; (ii) to establish, amend, and revoke rules and regulations for administration and operation of the Plan (including, without limitation, the determination of Offering Periods, Purchase Periods and payment procedures, the requirement that shares of Common Stock be held for a specific period after the Purchase Date or by a specified broker or other designated agent, and the establishment of an exchange ratio applicable to amounts withheld in a currency other than U.S. dollars); (iii) to determine all questions of eligibility, disputed claims and policy that may arise in the administration of the Plan; and (iv) to generally exercise such powers, perform such acts and make such determinations as the Committee deems necessary or expedient to administer and operate the Plan, including, but not limited to, designating from time to time which Subsidiaries of the Company shall be Designated Companies. The determinations of the Committee or any others to whom it has delegated authority to administer the Plan shall be final and conclusive and each action of the Committee or its designee shall be binding on all persons.
SECTION 13. MISCELLANEOUS
13.1 Restrictions on Transfer
Options granted under the Plan to a Participant may not be exercised during the Participants lifetime other than by the Participant. Neither amounts credited to a Participants Account nor any rights with respect to the exercise of an Option or to receive shares of Common Stock under the Plan may be assigned, transferred, pledged, or otherwise disposed of in any way by the Participant other than by will or the laws of descent and distribution or by a beneficiary designation as permitted by Section 10. Any such attempted 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 7.1.
13.2 Administrative Assistance
If the Committee so elects, it may retain a brokerage firm, bank, or other financial institution to assist in the purchase of shares of Common Stock, delivery of reports, or other administrative aspects of the Plan. Unless the Committee determines otherwise, each Participant shall (unless prohibited by applicable law) be deemed upon enrollment in the Plan to have authorized the establishment of an account on his or her behalf at such institution. Shares purchased by a Participant under the Plan shall be held in such account in the Participants name, or if the Participant so indicates in the Enrollment Agreement and permitted by the Committee, in the Participants name together with the name of his or her spouse in joint tenancy with right of survivorship or spousal community property, or in certain forms of trust permitted by the Committee. The Company may require that shares be retained with a broker or agent for a designated period of time following purchase and/or may establish other procedures to permit tracking of disqualifying dispositions of such shares.
13.3 Treatment of Non-U.S. Participants
Participants who are employed by non-U.S. Designated Companies, who are paid in foreign currency, and who contribute foreign currency to the Plan through contributions or payroll deductions will have such contributions converted to U.S. dollars. The exchange rate and method for such conversion will be determined as prescribed by the Committee. In no event will any procedure implemented for dealing with exchange rate fluctuations that may occur during an Offering Period result in a purchase price below the Purchase Price permitted under the Plan. Each Participant shall bear the risk of any currency exchange fluctuations (if applicable) between the date on which any Participant contributions are converted to U.S. dollars and the following Purchase Date.
The Company or any Employer shall have the power and the right to deduct or withhold, or require a Participant to remit to the Company or any Employer, an amount sufficient to satisfy federal, state and local taxes, domestic or foreign, required by law or regulation to be withheld with respect to any taxable event arising as a result of participation by a Participant in the Plan.
13.5 Equal Rights and Privileges
Except as provided in Section 13.6, all Eligible Employees shall have equal rights and privileges with respect to the Plan so that the Plan qualifies as an employee stock purchase plan within the meaning of Section 423 or any successor provision of the Code and the related regulations. Notwithstanding the express terms of the Plan, any provision of the Plan other than Section 13.6 that is inconsistent with Section 423 or any successor provision of the Code shall without further act or amendment by the Company or the Committee be reformed to comply with the requirements of Section 423 of the Code. This Section 13.5 shall take precedence over all other provisions in the Plan except Section 13.6.
13.6 Eligible Employees in Other Countries
Without amending the Plan, the Committee may grant Options or establish other procedures to provide benefits to Eligible Employees of Designated Companies with non-U.S. employees on such terms and conditions different from those specified in this Plan as may, in the judgment of the Committee, be necessary or desirable to foster and promote achievement of the purposes of the Plan and shall have the authority to adopt such modifications, procedures, subplans and the like as may be necessary or desirable (a) to comply with provisions of the laws or regulations or conform to the requirements to operate the Plan in a qualified or tax or accounting advantageous manner in other countries or jurisdictions in which the Company or any Designated Company may operate or have employees, (b) to ensure the viability of the benefits from the Plan to Eligible Employees employed in such countries or jurisdictions and (c) to meet the objectives of the Plan. Notwithstanding anything to the contrary herein, any such actions taken by the Committee with respect to Eligible Employees of any Designated Company may be treated as a subplan outside of an employee stock purchase plan under Section 423 of the Code and not subject to the requirements of Section 423 set forth in the Code and this Plan.
13.7 Choice of Law and Venue
The Plan, all Options granted thereunder, and all determinations made and actions taken pursuant hereto, to the extent not otherwise governed by the laws of the United States, shall be governed by the laws of the State of Delaware without giving effect to principles of conflicts of law. Participants irrevocably consent to the nonexclusive jurisdiction and venue of the state and federal courts located in the State of Delaware.
13.8 Amendment, Suspension and Termination
The Board or the Compensation Committee may amend, suspend or terminate the Plan at any time; provided, however, that no amendment that would amend or modify the Plan in a manner requiring shareholder approval under Section 423 of the Code or the requirements of any securities exchange on which the shares are traded shall be effective unless such shareholder approval is obtained. No Options may be granted during any period of suspension of the Plan.
If the Plan is terminated, the Board or the Compensation Committee may elect to terminate all outstanding Options either prior to their expiration or upon completion of the purchase of shares on the next Purchase Date or may elect to permit Options to expire in accordance with their terms (and participation to continue through such expiration dates). If the Options are terminated prior to expiration, all funds accumulated in Participants Accounts as of the date the Options are terminated shall be returned to the Participants as soon as administratively feasible without interest.
13.9 No Right of Employment
Neither the grant nor the exercise of any rights to purchase shares of Common Stock under the Plan nor anything in the Plan shall impose upon the Company or any Employer any obligation to employ or continue to employ any employee or Participant or limit in any way the right of the Company or any Employer to terminate a Participants employment, with or without cause. The right of the Company or any Employer to terminate any employee shall not be diminished or affected because any rights to purchase shares of Common Stock have been granted to such employee. The grant of an Option hereunder during any Offering Period shall not give a Participant any right to similar grants thereafter.
13.10 Rights as Shareholder
No Participant shall have any rights as shareholder with respect to shares of Common Stock acquired under the Plan unless and until such shares of Common Stock have been issued to him or her (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company). Until such shares of Common Stock are issued, a Participant will only have the rights of an unsecured creditor with respect to such shares.
13.11 Issuance of Shares
(a) Notwithstanding any other provision of the Plan, the Company shall have no obligation to issue or deliver any shares of Common Stock under the Plan or make any other distribution of benefits under the Plan unless, (i) the Company has an effective registration statement on Form S-8 with respect to the issuance of Common Stock under the Plan and (ii) in the opinion of the Companys counsel, such issuance, delivery or distribution would comply with all applicable laws (including, without limitation, the requirements of the Securities Act or the laws of any state or foreign jurisdiction) and the applicable requirements of any securities exchange or similar entity.
(b) The Company shall be under no obligation to any Participant to register for offering or resale or to qualify for exemption under the Securities Act, or to register or qualify under the laws of any state or foreign jurisdiction, any shares of Common Stock, security or interest in a security paid or issued under, or created by, the Plan, or to continue in effect any such registrations or qualifications if made.
(c) As a condition to the exercise of an Option, the Company may require (i) the Participant to represent and warrant at the time of any such exercise that such shares are being purchased only for the Participants own account and without any present intention to sell or distribute such shares and (ii) such other action or agreement by the Participant as may from time to time be necessary to comply with federal, state and foreign securities laws. At the option of the Company, a stop-transfer order against any such shares may be placed on the official stock books and records of the Company, and a legend indicating that such shares may not be pledged, sold or otherwise transferred, unless an opinion of counsel is provided (concurred in by counsel for the Company) stating that such transfer is not in violation of any applicable law or regulation, may be stamped on stock certificates to ensure exemption from registration.
13.12 Code Section 409A
The Plan is intended to be exempt from the application of Section 409A of the Code and any ambiguities herein will be interpreted to so be exempt from Section 409A of the Code. In furtherance of the foregoing and notwithstanding any other provision in the Plan to the contrary, if the Committee determines that an Option granted under the Plan may be subject to Section 409A of the Code or that any provision of the Plan would cause an Option under the Plan to be subject to Section 409A of the Code, the Committee may amend the terms of the Plan and/or of an outstanding Option, or take such other action the Committee determines is necessary or appropriate, in each case, without the Participants consent, to exempt any outstanding Option or future Option that may be granted under the Plan or to allow any such Option to comply with Section 409A of the Code. Notwithstanding the foregoing, the Company shall have no liability to a Participant or any other party if an Option that is intended to be exempt from or compliant with Section 409A of the Code is not so exempt or compliant or for any action taken by the Committee with respect thereto. The Company makes no representation that any Option to purchase Common Stock under the Plan is exempt from or compliant with Section 409A of the Code or otherwise qualifies for special tax treatment under the laws of the United Shares or jurisdictions outside the United States.
13.13 Condition for Participation
As a condition to participation in the Plan, Eligible Employees agree to be bound by the terms of the Plan (including, without limitation, the notification and holding requirements of Section 6) and the determinations of the Committee.
13.14 Term of Plan
The Plan shall be in effect until the tenth anniversary of the date of the initial adoption of the Plan by the Board, unless sooner terminated under Section 13.8 hereof. No rights may be granted under the Plan during any period of suspension of the Plan or after termination of the Plan.
If any provision of the Plan or any Option is determined to be invalid, illegal or unenforceable in any jurisdiction, or as to any person, or would disqualify the Plan or any Option under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to applicable laws, or, if it cannot be so construed or deemed amended without, in the Committees determination, materially altering the intent of the Plan or the Option, such provision shall be stricken as to such jurisdiction, person or option, and the remainder of the Plan and any such Option shall remain in full force and effect.
SECTION 14. EFFECTIVE DATE
The Plan is effective as of the Effective Date, subject to shareholder approval within 12 months after the date the Plan is adopted by the Board. No right may be granted under the Plan prior to such shareholder approval.
As used in the Plan,
Account means a recordkeeping account maintained for a Participant to which the Participants payroll deductions or contributions, if applicable, shall be credited for the purchase of shares of Common Stock. No interest shall be paid on any contributions credited to such Account, unless required by local law.
Board means the Board of Directors of the Company.
Code means the U.S. Internal Revenue Code of 1986, as amended. Any reference to a section of the Code will be deemed to include a reference to any regulations promulgated thereunder.
Committee means the Board and/or the Compensation, Nominating and Governance Committee or any other committee (which committee need not be comprised of members of the Board) appointed by the Board or the Compensation, Nominating and Governance Committee to administer the Plan.
Common Stock means the common stock of the Company.
Company means Agiliti, Inc., a Delaware corporation.
Cut-Off Date means the date established by the Committee or its designee from time to time by which Enrollment Agreements must be received to participate in an Offering Period.
Designated Company means any Subsidiary that has been designated by the Committee from time to time in its sole discretion as eligible to participate in the Plan. A Designated Company shall cease to be a Designated Company on the earlier of (a) the date the Committee determines that such entity is no longer a Designated Company or (b) such Designated Company ceases for any reason to be a subsidiary corporation as defined in Sections 424(f) of the Code.
Effective Date means the date on which shares of Common Stock are first offered to the public in an underwritten initial public offering of the Common Stock pursuant to a registration statement filed with and declared effective by the Securities and Exchange Commission (such day, for this purpose, being the first trading day for the Common Stock on the New York Stock Exchange, the Nasdaq Stock Market or other applicable trading market).
Eligible Compensation means all base straight time gross earnings, cash bonuses, commissions and overtime, including such amounts of gross earnings that are deferred by an Eligible Employee (a) under a qualified cash or deferred arrangement described in Section 401(k) of the Code or (b) to a plan qualified under Section 125 of the Code. Eligible Compensation does not include severance pay, hiring and relocation bonuses, pay in lieu of vacation, sick leave, gain from stock option exercises and other equity compensation income, imputed income arising under any Company group insurance or benefit program or any other special payments. The Committee, in its discretion, may establish a different definition of Eligible Compensation for a future Offering Period.
Eligible Employee means an employee providing services to the Company or a Designated Company who (a) has been employed by the Company or a Designated Company for at least 90 days and (b) is not a temporary/on demand employee who is customarily employed 20 hours or less per week or customarily employed not more than five months in any calendar year.
The Committee, in its discretion, may determine from time to time, prior to the first day of an Offering Period (on a uniform and nondiscriminatory basis or as otherwise permitted by Treasury Regulation Section 1.423-2), that the definition of Eligible Employee shall be subject to alternative eligibility requirements, consistent with the eligibility requirements permitted under Section 423 of the Code. For purposes of the foregoing, alternative eligibility requirements may include or exclude an individual if he or she (a) has been employed less than two years; (b) is customarily employed 20 hours or less per week; (c) is not customarily employed more than five months in any calendar year; and (d) is a highly compensated employee, within the meaning of Section 414(q) of the Code, or subject to the disclosure requirements of Section 16(a) of the Exchange Act, each such eligibility requirement to be applied with respect to an Offering in a manner complying with Section 423 of the Code to the extent required.
Employer means the Company or any Designated Company by which an employee is employed.
Enrollment Agreement has the meaning set forth in Section 4.
Exchange Act means the U.S. Securities Exchange Act of 1934, as amended from time to time.
Fair Market Value means, with respect to the Common Stock, as of any date, the closing trading prices for the Common Stock on any given date during regular trading, or if not trading on that date, such price on the last preceding date on which the Common Stock was traded, unless determined otherwise by the Committee using such methods or procedures as it may establish.
Offering means an offer under the Plan of an Option that may be exercised during an Offering Period as further described in Section 3.
Offering Period means each period designated by the Committee as further described in Section 3.
Option means an option granted under the Plan to a Participant to purchase shares of Common Stock.
Parent means a parent corporation, whether now or hereafter existing, as defined in Section 424(e) of the Code.
Participant means an Eligible Employee who has enrolled in the Plan pursuant to Section 4 and who has not withdrawn from the Plan or otherwise terminated participation in the Plan.
Plan means the Agiliti, Inc. Employee Stock Purchase Plan, as amended from time to time.
Purchase Date means the last day of a Purchase Period.
Purchase Period means each period designated by the Committee as further described in Section 3.
Purchase Price has the meaning set forth in Section 6.1.
Securities Act means the U.S. Securities Act of 1933, as amended from time to time.
Subsidiary means a corporation, domestic or foreign, whether now or hereafter existing, as defined in Section 424(f) of the Code.