8x8 2009 Annual Report Download - page 95

Download and view the complete annual report

Please find page 95 of the 2009 8x8 annual report below. You can navigate through the pages in the report by either clicking on the pages listed below, or by using the keyword search tool below to find specific information within the annual report.

Page out of 161

  • 1
  • 2
  • 3
  • 4
  • 5
  • 6
  • 7
  • 8
  • 9
  • 10
  • 11
  • 12
  • 13
  • 14
  • 15
  • 16
  • 17
  • 18
  • 19
  • 20
  • 21
  • 22
  • 23
  • 24
  • 25
  • 26
  • 27
  • 28
  • 29
  • 30
  • 31
  • 32
  • 33
  • 34
  • 35
  • 36
  • 37
  • 38
  • 39
  • 40
  • 41
  • 42
  • 43
  • 44
  • 45
  • 46
  • 47
  • 48
  • 49
  • 50
  • 51
  • 52
  • 53
  • 54
  • 55
  • 56
  • 57
  • 58
  • 59
  • 60
  • 61
  • 62
  • 63
  • 64
  • 65
  • 66
  • 67
  • 68
  • 69
  • 70
  • 71
  • 72
  • 73
  • 74
  • 75
  • 76
  • 77
  • 78
  • 79
  • 80
  • 81
  • 82
  • 83
  • 84
  • 85
  • 86
  • 87
  • 88
  • 89
  • 90
  • 91
  • 92
  • 93
  • 94
  • 95
  • 96
  • 97
  • 98
  • 99
  • 100
  • 101
  • 102
  • 103
  • 104
  • 105
  • 106
  • 107
  • 108
  • 109
  • 110
  • 111
  • 112
  • 113
  • 114
  • 115
  • 116
  • 117
  • 118
  • 119
  • 120
  • 121
  • 122
  • 123
  • 124
  • 125
  • 126
  • 127
  • 128
  • 129
  • 130
  • 131
  • 132
  • 133
  • 134
  • 135
  • 136
  • 137
  • 138
  • 139
  • 140
  • 141
  • 142
  • 143
  • 144
  • 145
  • 146
  • 147
  • 148
  • 149
  • 150
  • 151
  • 152
  • 153
  • 154
  • 155
  • 156
  • 157
  • 158
  • 159
  • 160
  • 161

Acquiror in connection with the Change in Control nor exercised as of the time of consummation
of the Change in Control shall terminate and cease to be outstanding effective as of the date of
the Change in Control. Notwithstanding the foregoing, shares acquired upon exercise of a Stock
Purchase Right prior to the Change in Control and any consideration received pursuant to the
Change in Control with respect to such shares shall continue to be subject to all applicable
provisions of the Stock Purchase Agreement evidencing such Stock Purchase Right except as
otherwise provided in such Stock Purchase Agreement.
9.3 Federal Excise Tax Under Section 4999 of the Code.
(a) Excess Parachute Payment. In the event that any acceleration of
vesting pursuant to an Award and any other payment or benefit received or to be received by a
Participant would subject the Participant to any excise tax pursuant to Section 4999 of the Code
due to the characterization of such acceleration of vesting, payment or benefit as an “excess
parachute payment” under Section 280G of the Code, the Participant may elect, in his or her sole
discretion, to reduce the amount of any acceleration of vesting called for under the Award in
order to avoid such characterization.
(b) Determination by Independent Accountants. To aid the
Participant in making any election called for under Section 9.3(a), no later than the date of the
occurrence of any event that might reasonably be anticipated to result in an “excess parachute
payment” to the Participant as described in Section 9.3(a), the Company shall request a
determination in writing by independent public accountants selected by the Company (the
“Accountants”). As soon as practicable thereafter, the Accountants shall determine and report
to the Company and the Participant the amount of such acceleration of vesting, payments and
benefits which would produce the greatest after-tax benefit to the Participant. For the purposes
of such determination, the Accountants may rely on reasonable, good faith interpretations
concerning the application of Sections 280G and 4999 of the Code. The Company and the
Participant shall furnish to the Accountants such information and documents as the Accountants
may reasonably request in order to make their required determination. The Company shall bear
all fees and expenses the Accountants may reasonably charge in connection with their services
contemplated by this Section 9.3(b).
10. TAX WITHHOLDING.
10.1 Tax Withholding in General. The Company shall have the right to
deduct from any and all payments made under the Plan, or to require the Participant, through
payroll withholding, cash payment or otherwise, including by means of a Cashless Exercise of an
Option, to make adequate provision for, the federal, state, local and foreign taxes (including any
social insurance tax), if any, required by law to be withheld by the Participating Company Group
with respect to an Award or the shares acquired pursuant thereto. The Company shall have no
obligation to deliver shares of Stock or to release shares of Stock from an escrow established
pursuant to an Option Agreement or Stock Purchase Agreement until the Participating Company
Group’ s tax withholding obligations have been satisfied by the Participant.
10.2 Withholding in Shares. The Company shall have the right, but not the
obligation, to deduct from the shares of Stock issuable to a Participant upon the exercise of an
15