Exhibit 10.5
ONESTREAM SOFTWARE LLC
2019 Common Unit Option Plan
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Plan Document
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Adopted by the Board of Managers: September 17, 2019
Termination Date: September 17, 2029
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Within the limitations of this Plan, the Committee may modify an Award to accelerate the rate at which an Option may be exercised, to accelerate the vesting of any Award, to extend or renew outstanding Awards, to accept the cancellation of outstanding Awards to the extent not
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previously exercised, or to make any change that this Plan would permit for a new Award. Notwithstanding the foregoing, no modification of an outstanding Award may materially and adversely affect a Participant’s rights thereunder unless (a) the Participant provides written consent to the modification, (b) before a Change in Control, the Committee determines in good faith that the modification is not materially adverse to the Participant, or (c) such modification is permitted by another Section of this Plan. Notwithstanding the foregoing, subject to the limitations of Applicable Law, if any, and without the affected Participant’s consent, the Board may amend the terms of any one or more Awards if necessary to bring the Award into compliance with Section 409A of the Code.
The Board may amend or terminate this Plan as it shall deem advisable unless such change is authorized by the members of the Company to the extent required by Applicable Law. A termination or amendment of this Plan shall not materially and adversely affect a Participant’s vested rights under an Award previously granted to him or her, unless the Participant consents in writing to such termination or amendment. Notwithstanding the foregoing, the Committee may amend this Plan to comply with changes in tax or securities laws or regulations, or in the interpretation thereof.
If not sooner terminated by the Board, this Plan shall terminate at the close of business on the date 10 years after the earlier of Board approval of this Plan and its Effective Date. No Awards shall be made under this Plan after its termination.
The terms of this Plan and all agreements hereunder shall be governed by the laws of the State of Delaware, without regard to the State’s conflict of laws rules.
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Neither a Participant nor any transferee or Beneficiary of a Participant shall have any rights as a member of the Company with respect to any Units underlying any Award until the date of issuance of a Unit certificate to such Participant, transferee, or Beneficiary for such Units in accordance with the Company’s governing instruments and Applicable Law. Prior to the issuance of Units pursuant to an Award, a Participant shall not have the right to vote or to receive distributions or any other rights as a member with respect to the Units underlying the Award, notwithstanding its exercise in the case of Options. No adjustment will be made for a dividend, distribution or other right that is determined based on a record date prior to the date the unit certificate is issued, except as otherwise specifically provided for in this Plan or an Award Agreement. For all purposes herein, if Units are not certificated, the recording of the Participant as the holder of applicable Units in the books and records of the Company shall be deemed to be the issuance of a Unit certificate in respect of those Units so recorded.
The Company and the Committee shall have no duty or obligation to any Participant to advise such holder as to the time or manner of exercising an Award. Furthermore, the Company and the Committee shall have no duty or obligation to warn or otherwise advise such holder of a pending termination or expiration of an Award or a possible period in which the Award may not be exercised.
Subject to any contrary terms set forth in any Award Agreement, for any period preceding the date of an initial public offering, this Section shall be applicable to any Units subject to or issued pursuant to Awards. The provisions set forth below shall become null and void upon the occurrence of an initial public offering.
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“Affiliate” means, with respect to any Person, any other Person that directly or indirectly controls or is controlled by or under common control with such Person. For the purposes of this definition, “control,” when used with respect to any Person, means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such Person or the power to elect Managers, whether through the ownership of voting securities, by contract or otherwise; and the terms “affiliated,” “controlling” and “controlled” have meanings correlative to the foregoing.
“Applicable Law” means the legal requirements as shall be in place from time to time under any statute, law, ordinance, regulation, rule, code, executive order, injunction, judgment, decree or order of any governmental authority, whether of the United States, any other country, and any provincial, state, or local subdivision, that relate to the administration of equity plans or equity awards, as well as any applicable stock exchange or automated quotation system rules or regulations.
“Award” means any award made, in writing or by an electronic medium, pursuant to this Plan. All Awards shall be in the form of Options.
“Award Agreement” means any written document (including in any electronic medium) setting forth the terms of an Award that has been authorized by the Committee. The Committee shall determine the form or forms of documents to be used, and may change them from time to time for any reason.
“Beneficiary” means the person or entity designated by the Participant, in a form approved by the Company, to exercise the Participant’s rights with respect to an Award or receive payment or settlement under an Award after the Participant’s death.
“Board” means the Board of Managers of the Company.
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“Cause” has the same meaning as set forth in any unexpired employment agreement or independent contractor agreement between the Company and the Participant for purposes of providing severance upon a termination without “Cause” or, in the absence of such agreement, as set forth in the Participant’s Award Agreement. If no such alternative definitions for “Cause” exist, “Cause” means that the Company determines in its reasonable discretion that any of the following situations gave rise to a Participant’s termination from Continuous Service: (a) the Participant committed, was convicted, or pled no contest or any similar plea to a misdemeanor involving acts of dishonesty or breach of fiduciary duty or any felony; (b) the Participant willfully or negligently failed to substantially perform his or her duties and responsibilities to the Company or deliberately violated a Company policy; (c) the Participant committed any act or acts of fraud, embezzlement, dishonesty, or other willful misconduct; (d) without authorization, the Participant used or disclosed any proprietary information or trade secrets of the Company or any other party to whom the Participant owes an obligation of nondisclosure as a result of his or her relationship with the Company; or (e) the Participant breached any of his or her material obligations under any written agreement with the Company. The foregoing definition does not in any way limit the Company’s ability to terminate a Participant’s employment or other service relationship at any time, and the term “the Company” will be interpreted herein to include any Affiliate or successor thereto, if appropriate. Furthermore, a Participant’s Continuous Service shall be deemed to have terminated for Cause within the meaning hereof if, at any time (whether before, on, or after termination of the Participant’s Continuous Service), facts or circumstances are discovered that would have justified a termination for Cause, regardless of whether the Participant initiated the termination of the Participant’s Continuous Service.
“Change in Control” means, unless otherwise defined in the applicable Award Agreement, the consummation of (i) a sale or other disposition of all or substantially all of the assets of the Company or (ii) a sale, merger or other transaction that results in the transfer of 80% or more of the outstanding equity interests of the Company.
“Code” means the Internal Revenue Code of 1986, as amended.
“Committee” means the Compensation Committee of the Board or its successor; provided that the term “Committee” means (a) the Board when acting at any time in lieu of the Committee, and (b) with respect to any decision relating to a Reporting Person, a committee consisting solely of two or more Managers who are disinterested within the meaning of Rule 16b-3 promulgated under the Exchange Act, as amended from time to time, or any successor provision. The mere fact that a Committee member shall fail to qualify as a “disinterested director” within the meaning of Rule 16b-3, respectively, shall not invalidate any Award made by the Committee which Award is otherwise validly made under this Plan.
“Company” means OneStream Software LLC, a Delaware limited liability company; provided that in the event the Company reincorporates to another jurisdiction, all references to the term “Company” shall refer to the Company in such new jurisdiction.
“Conditions” has the meaninging set forth in Section 9(a).
“Confidentiality Agreement” has the meaning set forth in Section 9(a).
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“Consultant” means any natural person (other than an Employee or Manager), including an advisor, who provides bona fide services to the Company, its parents, its majority-owned subsidiaries or majority-owned subsidiaries of the Company’s parent, if such services are not in connection with the offer or sale of securities in a capital-raising transaction, and do not directly or indirectly promote or maintain a market for the Company’s securities.
“Continuous Service” means a Participant’s period of service in the absence of any interruption or termination as an Employee, Manager, or Consultant. Continuous Service shall not be considered interrupted in the case of: (a) sick leave; (b) military leave; (c) any other leave of absence approved by the Committee, provided that such leave is for a period of not more than 90 days, unless reemployment upon the expiration of such leave is guaranteed by contract or statute, or unless provided otherwise pursuant to Company policy adopted from time to time; (d) changes in status from Manager to advisory Manager or emeritus status; or (e) transfers between locations of the Company or between the Company and its Affiliates.
“Data” has the meaning set forth in Section 16(c) of the Plan.
“Disabled” or “Disability” means a physical or mental condition under which the Participant is receiving benefits under the Company’s long-term disability plan applicable to such Participant, and in the absence of such a plan that the Participant is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which is expected to result in death or is expected to last for a continuous period of not less than 12 months.
“Effective Date” means the date determined in accordance with Section 1(d) of this Plan.
“Eligible Persons” has the meaning set forth in Section 1(b).
“Employee” means any person whom the Company or any Affiliate classifies as an employee (including an officer) for employment tax purposes or, if in a jurisdiction that does not have employment taxes, any person whom the Company or any Affiliate classifies as an employee (including an officer), in either case whether or not that classification is correct. The payment by the Company of a manager’s fee to a Manager shall not be sufficient to constitute “employment” of such Manager by the Company.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Fair Market Value” means, for purposes of this Plan and unless otherwise determined or provided by the Committee in the circumstances:
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The Committee also may adopt a different methodology for determining Fair Market Value with respect to one or more Awards if a different methodology is necessary or advisable to secure any intended favorable tax, legal or other treatment for the particular Awards (for example, and without limitation, the Committee may provide that Fair Market Value for purposes of one or more Awards will be based on an average of closing prices (or the average of high and low daily trading prices) for a specified period preceding the relevant date). Any determination as to Fair Market Value made pursuant to this Plan shall be made without regard to any restriction other than a restriction which, by its terms, will never lapse, and shall be final, binding and conclusive on all persons with respect to Awards granted under this Plan.
“Good Reason” has the same meaning as set forth in any unexpired employment agreement or independent contractor agreement between the Company and the Participant for purposes of providing severance upon a resignation for Good Reason or, in the absence of such agreement, as set forth in the Participant’s Award Agreement. If no such alternative definitions for “Good Reason” exist, “Good Reason” means, with respect to a Participant, (A) a material reduction in the Participant’s authority, duties, and responsibilities, provided that a mere change in the Participant’s title shall not trigger Good Reason and Participant continuing in the same role on a divisional or business unit basis following the acquisition of the Company by a larger entity shall not trigger Good Reason, (B) the Participant being required to relocate his place of employment, other than a relocation within 50 miles of the Participant’s prior principal work site, or (C) a material reduction in the Participant’s base salary other than any such reduction consistent with a general reduction of pay for similarly-situated Participants; provided, however, that Good Reason shall exist only if the Participant provides the Company with written notice of the existence of one of the events, arising without the Participant’s consent, listed in the foregoing clauses (A) through (C) below within 30 days of the initial existence of such event; (2) the Company fails to cure such event within 30 days following the date such notice is given; and (3) the Participant elects to voluntarily terminate employment within the 90 day period immediately following such event.
“Grant Date” means the date designated as the “Grant Date” in the applicable Award Agreement.
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“Immediate Family” means any child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, and shall include adoptive relationships. “Immediate Family” also shall include a trust in which these persons have more than 50% of the beneficial interest, a foundation in which these persons (or the employee) control the management of assets, any other entity in which these persons (or the employee) own more than 50% of the voting interests, and any person sharing the employee’s household (other than a tenant or employee).
“Manager” means a member of the Board, or a member of the board of Managers of an Affiliate.
“Market Stand-Off” has the meaning set forth in Section 20(b).
“Operating Agreement” means the Company’s Amended and Restated Operating Agrement, dated as of March 15, 2019.
“Option” means any right to buy Units that is granted to a Participant pursuant to Section 4.
“Person” means any natural person, association, trust, business trust, cooperative, corporation, general partnership, joint venture, joint-stock company, limited partnership, limited liability company, real estate investment trust, regulatory body, governmental agency or instrumentality, unincorporated organization or organizational entity.
“Plan” means this 2019 Common Unit Option Plan.
“Recapture” has the meaning set forth in Section 9(a).
“Rescission” has the meaning set forth in Section 9(a).
“Reimbursement” has the meaning set forth in Section 10(a) of this Plan.
“Reporting Person” means an Employee, Manager, or Consultant who is required to file reports with the Securities and Exchange Commission pursuant to Section 16(a) of the Exchange Act and the rules promulgated thereunder.
“Section 409A Award” has the meaning set forth in Section 4(a)(i) of this Plan.
“Unit” means a Common Unit of the Company, as adjusted in accordance with Section 8 of this Plan.
“Unit Reserve” has the meaning set forth in Section 2(a).
“Termination” has the meaning set forth in Section 9(a) of this Plan.
“Successor Company” has the meanining set forth in Section 8(c).
“U.S. Taxpayer” means an Eligible Person who is subject to U.S. taxation.
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“Withholding Taxes” means the aggregate amount of federal, state, local and foreign income, social insurance, payroll, and other taxes that the Company and any Affiliates are required or permitted to withhold in connection with any Award.
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ONESTREAM SOFTWARE LLC
GDPR Notice for EU Participants
RE: 2019 Common Unit Option Plan (the “Plan”)
Dear Participant:
The EU General Data Protection Regulation (also known as the “GDPR”) came into force on May 28, 2018. For the purposes of the GDPR, OneStream Software LLC (the “Company”) wants to make EU-based participants in the Plan aware that the Company holds certain Data (as defined below) about the participants. The Company also wants to explain why the Company holds this Data and to let each participant know how to raise any questions regarding the Company’s use of the Data. The purpose of this communication is to provide participants with this information.
This document constitutes a Notice under the GDPR. Copies of this Notice are also available by request using the contact details set out below.
This communication supplements information relating to the use of your Data set out in the relevant agreement, or agreements issued to you under the Plan (the “Agreements”). Should there be any inconsistency between the terms of this Notice and the Agreements relating to the Company’s use of your Data, then this Notice is the document that will apply.
The term “Data” as used in this Notice includes your name, home address, email address and telephone number, date of birth, social insurance number, passport number or other identification number, salary, nationality and job title, as well as details of any units, directorships, awards or any other equity or unit rights you may have in the Company (whether awarded, canceled, exercised, vested, unvested or outstanding).
Data Controller Entity: The Company is the Data Controller. The Company is a Delaware limited liability company, with its principal United States office at Rochester, Michigan, USA.
Purposes: Data is held for the exclusive purpose of implementing, administering and managing your participation in the Plan.
Legitimate Interests: The Company holds the Personal Data for the legitimate interests of implementing, administering and maintaining the Plan and each participant’s participation in the Plan.
International Transfers of Data: As the Company is based in the United States and the Agreements are performed in the United States, the Company can only meet its contractual obligations to you under the Agreements if the Data is transferred to the United States. The performance of the contractual obligations of the Company to you is one of the legal bases for the transfer of the Data from the European Union to the United States. You should be aware that the United States may have different data privacy laws and protections than the data privacy laws in place in the European Union.
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Retention Period: Records relating to the Plan are kept on an indefinite basis, as they are part of the statutory records of the Company.
Other Recipients: To fulfill its obligations under the Agreements, the Company may share Data with its subsidiary companies who employ participants in the Plan. In addition, Data may be transferred to certain third parties assisting in the implementation, administration and management of the Plan, such as equity plan administrators and transfer agents. At your instruction, the Data will be shared with a broker or other third party whom you have instructed the Company to deposit units or other securities acquired upon the vesting of any awards under the Agreements.
Data Subject Rights: Participants have a number of rights under the GDPR. Depending upon the circumstances, these may include the right of data portability (where the Company helps a participant move Data to someone else at the participant’s request), the right to object to the processing of the Data, the right to require the Company to update and correct the Data, the right to require erasure of the Data and the right for the participant to review the Data held by the Company and to require the Company to cease processing it. You must understand, however, that any such request may affect your ability to participate in the Plan. For more information on the consequences of your refusal to consent or your withdrawal of consent, please contact the Company using the contact details below.
Data Security: The Company recognizes the importance of treating Data in a lawful, fair and transparent manner. The Company will apply reasonable organizational and security measures to prevent the unlawful processing and/or the accidental loss or destruction of these materials and, in particular, the personal data contained in them.
Contact: If you have any questions concerning this Notice, you should contact by using the following contact details:
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UK Sub-Plan
under the OneStream Software LLC 2019 Common Unit Option Plan
This Sub-Plan, adopted under the OneStream Software LLC 2019 Common Unit Option Plan (the “Plan”), is effective as of September 17, 2019. Capitalized terms used but not defined herein will have the meanings given to them in the Plan.
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ONESTREAM SOFTWARE LLC
Common Unit Option Agreement
This Agreement (this “Agreement”) is made as of [____________], 2019 (the “Grant Date”) by and between OneStream Software LLC, a Delaware limited liability company (the “Company”), and [____________] (“Optionee”). As a condition precedent to Optionee’s exercise of the Option (as defined in Section 2 of this Agreement) to Optionee, Optionee agrees to execute and deliver a counterpart of the Second Amended and Restated Operating Agreement of OneStream Software LLC, dated and effective as of August 24, 2019, as the same may be amended from time to time (the “Operating Agreement”) and thereby will be bound by the Operating Agreement as a “Member” thereunder.
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Immediately following any termination of Optionee’s employment with the Company or any of its Affiliates, any portion of the Option that has not become exercisable as of the date of such termination of employment (the “Unvested Options”) shall thereupon automatically and without further action be cancelled and forfeited by Optionee, and Optionee shall have no further right or interest in or with respect to such Unvested Options. In the event that Optionee’s employment terminates in the circumstances described in Section 7(a) hereof, this Agreement shall
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terminate at the time of such termination of employment notwithstanding any other provision of this Agreement and Optionee’s Option will cease to be exercisable to the extent exercisable as of such termination and will not be or become exercisable after such termination.
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[Signature Page Follows]
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed on its behalf by its duly authorized officer and Optionee has executed this Agreement, as of the day and year first above written.
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ONESTREAM SOFTWARE LLC
Common Unit Option Agreement
This Agreement (this “Agreement”) is made as of [____________], 2019 (the “Grant Date”) by and between OneStream Software LLC, a Delaware limited liability company (the “Company”), and [____________] (“Optionee”). As a condition precedent to Optionee’s exercise of the Option (as defined in Section 2 of this Agreement) to Optionee, Optionee agrees to execute and deliver a counterpart of the Second Amended and Restated Operating Agreement of OneStream Software LLC, dated and effective as of August 24, 2019, as the same may be amended from time to time (the “Operating Agreement”) and thereby will be bound by the Operating Agreement as a “Member” thereunder.
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Immediately following any termination of Optionee’s Continuous Service with the Company or any of its Affiliates, any portion of the Option that has not become exercisable as of the date of such termination of Continuous Service (the “Unvested Options”) shall thereupon automatically and without further action be cancelled and forfeited by Optionee, and Optionee shall have no further right or interest in or with respect to such Unvested Options. In the event that Optionee’s Continuous Service terminates in the circumstances described in Section 7(a) hereof,
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this Agreement shall terminate at the time of such termination of Continuous Service notwithstanding any other provision of this Agreement and Optionee’s Option will cease to be exercisable to the extent exercisable as of such termination and will not be or become exercisable after such termination.
By accepting the grant of this Option, Optionee acknowledges and agrees that:
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Prior to the taxable or tax withholding event, as applicable, Optionee shall pay, or make adequate arrangements satisfactory to the Company or to the Employer (in their sole discretion) to satisfy all Tax-Related Items. In this regard, Optionee authorizes the Company or Employer to withhold all applicable Tax-Related Items legally payable by Optionee by (1) withholding a number of Units otherwise deliverable equal to the Retained Unit Amount (as defined below); (2) withholding from Optionee’s wages or other cash compensation paid by the Company and/or Employer; and/or (3) withholding from proceeds of the sale of Units acquired upon settlement of the Option, either through a voluntary sale or through a sale arranged by the Company (on Optionee’s behalf pursuant to this authorization), to the extent permitted by the Plan administrator. The “Retained Unit Amount” shall mean a number of Units equal to the quotient of the minimum statutory tax withholding obligation of the Company triggered by the Option on the relevant date, divided by the fair market value of one Unit on the relevant date or as otherwise provided in the Plan. If the obligation for Tax-Related Items is satisfied by withholding a number of Units as described herein, Optionee understands that he or she shall be deemed to have been issued the full number of applicable Units, notwithstanding that a number of Units are held back solely for the purpose of paying the Tax-Related Items.
Optionee acknowledges and understands that Optionee should consult a tax advisor regarding Optionee’s tax obligations.
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For optionees inside the EU, please consult the GDPR notice in Appendix B.
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[Signature Page Follows]
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed on its behalf by its duly authorized officer and Optionee has executed this Agreement, as of the day and year first above written.
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APPENDIX A
onestream software llc common unit Option Agreement
Under the 2019 common unit option plan
Terms For Non-U.S. Optionees
TERMS AND CONDITIONS
This Appendix A, which is part of the Agreement, includes additional terms and conditions of the Agreement that will apply to you if you are a resident in one of the countries listed below. Capitalized terms used but not defined herein shall have the same meanings assigned to them in the Plan and the Agreement.
NOTIFICATIONS
This Appendix A also includes information regarding exchange control and certain other issues of which you should be aware with respect to your participation in the Plan. The information is based on the securities, exchange control and other laws in effect in the respective countries as of September 2019. Such laws are often complex and change frequently. As a result, the Company strongly recommends that you not rely on the information in this Appendix A as the only source of information relating to the consequences of your participation in the Plan because such information may be out-of-date when your Options vest and/or you sell any Units acquired under the Plan.
In addition, the information contained herein is general in nature and may not apply to your particular situation. As a result, the Company is not in a position to assure you of any particular result. You are therefore advised to seek appropriate professional advice as to how the relevant laws in your country may apply to your situation.
Finally, if you are a citizen or resident of a country other than that in which you are currently working, the information contained herein may not apply to you.
FINLAND
There are no country-specific provisions.
FRANCE
Reporting Information. If Optionee imports or exports cash (e.g., sales’ proceeds received under the Plan) with a value equal to or exceeding €10,000 and does not use a financial institution to do so, Optionee must submit a report to the customs and excise authorities. If Optionee maintains a foreign bank account, Optionee is required to report such account to the French tax authorities when filing Optionee’s annual tax return.
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GERMANY
Exchange Control Information. Cross-border payments in excess of €12,500 must be reported monthly to the German Federal Bank. If Optionee uses a German bank to transfer a cross-border payment in excess of €12,500 in connection with the sale of Units acquired under the Plan, the bank will file the report for Optionee. In addition, Optionee must report any receivables, payables, or debts in foreign currency exceeding an amount of €5,000,000 on a monthly basis.
MEXICO
In accepting the awards granted under the Plan, Optionee expressly recognizes that OneStream Software LLC, with registered offices at 362 South Street, Rochester, MI, 48307, USA, is solely responsible for the administration of the Plan and that Optionee’s participation in the Plan and Optionee’s acquisition of Units does not constitute an employment relationship between Optionee and the Company since Optionee is participating in the Plan on a wholly commercial basis and Optionee’s sole employer is the applicable Company affiliate in Mexico (“OneStream-Mexico”). Based on the foregoing, Optionee expressly recognizes that the Plan and the benefits that Optionee may derive from Optionee’s participation in the Plan do not establish any rights between Optionee and Optionee’s employer, OneStream-Mexico, and do not form part of the employment conditions and/or benefits provided by OneStream-Mexico, and any modification of the Plan or its termination shall not constitute a change or impairment of the terms and conditions of Optionee’s employment.
Al aceptar los premios bajo el Plan, usted expresamente reconoce que OneStream Software LLC, con sus oficinas registradas en 362 South Street, Rochester, MI, 48307, USA., es el único responsable de la administración del Plan y que su participación en el Plan y su adquisición de acciones no constituyen una relación de empleo entre usted y OneStream. Usted está participando en el Plan a nivel comercial y su único empleador es la compañía correspondiente afiliada a OneStream en México (“OneStream-México”). Basado en lo anterior, usted expresamente reconoce que el Plan y los beneficios que le corresponden a usted por su participación en el Plan no establecen derechos entre usted y su empleador, OneStream-México, y no forman parte de las condiciones de empleo ni de los beneficios otorgados a usted por OneStream-México. Cualquier cambio en el Plan o la suspensión del mismo no constituye un cambio ni un impedimento de sus términos y condiciones de empleo.
THE NETHERLANDS
Insider-Trading Notification. Optionees should be aware of the Dutch insider-trading rules, which may impact the sale of Units acquired upon exercise of the Option. In particular, Optionees may be prohibited from effectuating certain transactions involving Units if they have inside information about the Company. Optionees should consult their personal legal advisor if they are uncertain whether the insider-trading rules apply to them. By accepting the Agreement and participating in the Plan, Optionee acknowledges having read and understood this notification and acknowledges that it is his or her responsibility to comply with the Dutch insider-trading rules.
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SPAIN
No Special Employment or Similar Rights. Optionee understands that the Company has unilaterally, gratuitously, and discretionally decided to distribute awards under the Plan to individuals who may be employees of the Company or its subsidiaries throughout the world. The decision is a temporary decision that is entered into upon the express assumption and condition that any grant will not economically or otherwise bind the Company or any of its subsidiaries presently or in the future, other than as specifically set forth in the Plan and the terms and conditions of Optionee’s Option grant. Consequently, Optionee understands that any grant is given on the assumption and condition that it shall not become a part of any employment or service contract (either with the Company or any of its subsidiaries) and shall not be considered a mandatory benefit, salary for any purpose (including severance compensation) or any other right whatsoever. Further, Optionee understands and freely accepts that there is no guarantee that any benefit whatsoever shall arise from any gratuitous and discretionary grant since the future value of the awards and underlying Units is unknown and unpredictable. In addition, Optionee understands that this grant would not be made but for the assumptions and conditions referred to above; thus, Optionee acknowledges and freely accepts that should any or all of the assumptions be mistaken or should any of the conditions not be met for any reason, then any grant of awards shall be null and void and the Plan shall not have any effect whatsoever.
Further, the Option provides a conditional right to Units and may be forfeited or affected by Optionee’s termination of Continuous Service, as set forth in the Agreement. For avoidance of doubt, Optionee’s rights, if any, to the Options upon termination of Continuous Service shall be determined as set forth in the Agreement, including, without limitation, where (i) Optionee is considered to be unfairly dismissed without good cause; (ii) Optionee is dismissed for disciplinary or objective reasons or due to a collective dismissal; (iii) Optionee terminates service due to a change of work location, duties or any other employment or contractual condition; or (iv) Optionee terminates service due to the Company’s or any of its subsidiaries’ unilateral breach of contract.
Securities Law Notice. The Options granted under the Plan do not qualify as securities under Spanish regulations. By the grant of the Options, no “offer of securities to the public”, as defined under Spanish law, has taken place or will take place in Spanish territory. The present document and any other document relating to the offer of Options under the Plan has not been nor will it be registered with the Comisión Nacional del Mercado de Valores (Spanish Securities Exchange Commission), and it does not constitute a public offering prospectus.
Foreign Asset and Account Reporting. To the extent that Spanish residents hold rights or assets (e.g., Units, cash, etc.) in a bank or brokerage account outside of Spain with a value in excess of €50,000 per type of right or asset as of December 31 each year, such residents are required to report information on such rights and assets on their tax return for such year. Units constitute securities for purposes of this requirement, but Options (whether vested or unvested) are generally not considered assets or rights for purposes of this requirement.
If applicable, Spanish residents must report the assets or rights on Form 720 by no later than March 31 following the end of the relevant year. After such assets or rights are initially reported, the reporting obligation will only apply for subsequent years if the value of any
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previously-reported assets or rights increases by more than €20,000. Failure to comply with this reporting requirement may result in penalties.
Spanish residents are also required to electronically declare to the Bank of Spain any securities accounts (including brokerage accounts held abroad), as well as the securities held in such accounts, if the value of the transactions for all such accounts during the prior tax year or the balances in such accounts as of December 31 of the prior tax year exceeds €1,000,000. More frequent reporting is required if such transaction value or account balance exceeds €1,000,000.
Spanish residents should consult with their personal tax and legal advisors to ensure compliance with their personal reporting obligations.
Exchange Control Information. All acquisitions of foreign Units by Spanish residents must comply with exchange control regulations in Spain. Because of foreign investments requirements, the acquisition of Units under the Plan must be declared for statistical purposes to the Spanish Direccion General de Politica Comercial y de Inversiones Extranjeras (the “DGPCIE”). If Optionee acquires the Units through the use of a Spanish financial institution, that institution will automatically make the declaration to the DGPCIE for Optionee. Otherwise, Optionee must make the declaration by filing a form with the DGPCIE.
If Optionee imports the Units acquired under the Plan into Spain, he or she must declare the importation of the Unit certificates to the DGPCIE.
In addition, Optionee must also file a declaration of the ownership of the Units with the Directorate of Foreign Transactions each January while the Units are owned. These filings are made on standard forms furnished by the Directorate of Foreign Transactions.
When Optionee receives any foreign currency payments (i.e., as a result of the sale of the Units), he or she must inform the institution receiving the payment of the basis upon which such payment is made and provide certain specific information (e.g., name, address, and fiscal identification number; the name and corporate domicile of the company; the amount of the payment; the type of foreign currency received; the country of origin; and the reason for the payment).
SWEDEN
There are no country-specific provisions.
SWITZERLAND
There are no country-specific provisions.
UNITED KINGDOM
UK Sub-Plan. The Option is granted under the “UK Sub-Plan,” which contains additional terms and conditions that govern the Option. Optionees should review the UK Sub-Plan carefully.
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