1
EXHIBIT 10.16
INFINITY FINANCIAL TECHNOLOGY, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
The following constitute the provisions of the 1996 Employee
Stock Purchase Plan of Infinity Financial Technology, Inc.
1. Purpose. The purpose of the Plan is to provide employees of
the Company and its Designated Parents or Subsidiaries with an opportunity to
purchase Common Stock of the Company through accumulated payroll deductions. It
is the intention of the Company to have the Plan qualify as an "Employee Stock
Purchase Plan" under Section 423 of the Code. The provisions of the Plan,
accordingly, shall be construed so as to extend and limit participation in a
manner consistent with the requirements of that section of the Code.
2. Definitions. As used herein, the following definitions
shall apply:
(a) "Accrual Period" shall mean a period of approximately six
months, commencing on February 1 and August 1 of each year and terminating on
the next following January 31 or July 31, respectively; provided, however, that
the first Accrual Period shall commence on the Effective Date and shall end on
January 31, 1997.
(b) "Board" shall mean the Board of Directors of the Company.
(c) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(d) "Common Stock" shall mean the common stock of the Company.
(e) "Company" shall mean Infinity Financial Technology, Inc.,
a Delaware corporation.
(f) "Compensation" shall mean an Employee's base salary from
the Company or one or more Designated Parents or Subsidiaries, including such
amounts of base salary as are deferred by the Employee (i) under a qualified
cash or deferred arrangement described in Section 401(k) of the Code, or (ii) to
a plan qualified under Section 125 of the Code. Compensation does not include
overtime, bonuses, annual awards, other incentive payments, reimbursements or
other expense allowances, fringe benefits (cash or noncash), moving expenses,
deferred compensation, contributions (other than contributions described in the
first sentence) made on the Employee's behalf by the Company or one or more
Designated Parents or Subsidiaries under any employee benefit or welfare plan
now or hereafter established, and any other payments not specifically referenced
in the first sentence.
(g) "Corporate Transaction" shall mean any of the following
stockholder- approved transactions to which the Company is a party:
1
2
(1) a merger or consolidation in which the Company is
not the surviving entity, except for a transaction the
principal purpose of which is to change the state in which the
Company is incorporated;
(2) the sale, transfer or other disposition of all or
substantially all of the assets of the Company (including the
capital stock of the Company's subsidiary corporations) in
connection with complete liquidation or dissolution of the
Company; or
(3) any reverse merger in which the Company is the
surviving entity but in which securities possessing more than
fifty percent (50%) of the total combined voting power of the
Company's outstanding securities are transferred to a person
or persons different from those who held such securities
immediately prior to such merger.
(h) "Designated Parents or Subsidiaries" shall mean the
Parents or Subsidiaries which have been designated by the Board from time to
time in its sole discretion as eligible to participate in the Plan.
(i) "Effective Date" shall mean the effective date of the
Registration Statement relating to the Company's initial public offering of its
Common Stock. However, should any Designated Parent or Subsidiary become a
participating company in the Plan after such date, then such entity shall
designate a separate Effective Date with respect to its employee- participants.
(j) "Employee" shall mean any individual who is engaged in the
rendition of personal services to the Company or a Designated Parent or
Subsidiary for Compensation. For purposes of the Plan, the employment
relationship shall be treated as continuing intact while the individual is on
sick leave or other leave of absence approved by the individual's employer.
Where the period of leave exceeds ninety (90) days and the individual's right to
reemployment is not guaranteed either by statute or by contact, the employment
relationship will be deemed to have terminated on the ninety-first (91st) day of
such leave.
(k) "Enrollment Date" shall mean the first day of each
Purchase Period.
(l) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
(m) "Exercise Date" shall mean the last day of each Accrual
Period.
(n) "Fair Market Value" shall mean, as of any date, the value
of Common Stock determined as follows:
(1) Where there exists a public market for the Common
Stock, the Fair Market Value shall be (A) the closing sales
price for a share of Common Stock for the last market trading
day prior to the time of the determination (or, if no sales
2
3
were reported on that date, on the last trading date on which
sales were reported) on the stock exchange determined by the
Plan Administrator to be the primary market for the Common
Stock or the Nasdaq National Market, whichever is applicable
or (B) if the Common Stock is not traded on any such exchange
or national market system, the average of the closing bid and
asked prices of a share of Common Stock on the Nasdaq Small
Cap Market, in each case, as reported in The Wall Street
Journal or such other source as the Plan Administrator deems
reliable; or
(2) In the absence of an established market of the
type described in (1), above, for the Common Stock, the Fair
Market Value thereof shall be determined by the Plan
Administrator in good faith.
(o) "Parent" means a "parent corporation," whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(p) "Participant" means an Employee of the Company or
Designated Parent or Subsidiary who is actively participating in the Plan.
(q) "Plan" shall mean this Employee Stock Purchase Plan.
(r) "Plan Administrator" shall mean either the Board or a
committee of the Board that is responsible for the administration of the Plan.
(s) "Purchase Period" shall mean a purchase period established
pursuant to paragraph 4 hereof.
(t) "Purchase Price" shall mean an amount equal to 85% of the
Fair Market Value of a share of Common Stock on the Enrollment Date or on the
Exercise Date, whichever is lower.
(u) "Reserves" shall mean the number of shares of Common Stock
covered by each option under the Plan which have not yet been exercised and the
number of shares of Common Stock which have been authorized for issuance under
the Plan but not yet placed under option.
(v) "Rule 16b-3" means Rule 16b-3 promulgated under the
Exchange Act or any successor thereto.
(w) "Subsidiary" shall mean a "subsidiary corporation,"
whether now or hereafter existing, as defined in Section 424(f) of the Code.
3
4
3. Eligibility.
(a) General. Any individual who is an Employee on a given
Enrollment Date shall be eligible to participate in the Plan for the Purchase
Period commencing with such Enrollment Date.
(b) Limitations on Grant and Accrual. Any provisions of the
Plan to the contrary notwithstanding, no Employee shall be granted an option
under the Plan (i) if, immediately after the grant, such Employee (taking into
account stock owned by any other person whose stock would be attributed to such
Employee pursuant to Section 424(d) of the Code) would own stock and/or hold
outstanding options to purchase stock possessing five percent (5%) or more of
the total combined voting power or value of all classes of stock of the Company
or of any Parent or Subsidiary, or (ii) which permits his/her rights to purchase
stock under all employee stock purchase plans of the Company and its Parents or
Subsidiaries to accrue at a rate which exceeds Twenty-Five Thousand Dollars
($25,000) worth of stock (determined at the Fair Market Value of the shares at
the time such option is granted) for each calendar year in which such option is
outstanding at any time. The determination of the accrual of the right to
purchase stock shall be made in accordance with Section 423(b)(8) of the Code
and the regulations thereunder.
(c) Other Limits on Eligibility. Notwithstanding subparagraph
(a), above, the following Employees shall not be eligible to participate in the
Plan for any relevant Purchase Period: (i) Employees whose customary employment
is twenty (20) hours or less per week; (ii) Employees whose customary employment
is for not more than five (5) months in any calendar year; (iii) Employees who
have been employed for fewer than three (3) months; and (iv) Employees who are
subject to rules or laws of a foreign jurisdiction that prohibit or make
impractical the participation of such Employees in the Plan.
4. Purchase Periods.
(a) The Plan shall be implemented through overlapping or
consecutive Purchase Periods until such time as (i) the maximum number of shares
of Common Stock available for issuance under the Plan shall have been purchased
or (ii) the Plan shall have been sooner terminated in accordance with paragraph
19 hereof. The maximum duration of a Purchase Period shall be twenty-seven (27)
months. Initially, the Plan shall be implemented through overlapping Purchase
Periods of twenty-four (24) months' duration commencing each February 1 and
August 1 following the Effective Date (except that the initial Purchase Period
shall commence on the Effective Date and shall end on July 31, 1998). The Plan
Administrator shall have the authority to change the length of any Purchase
Period and the length of Accrual Periods within any such Purchase Period
subsequent to the initial Purchase Period by announcement at least thirty (30)
days prior to the commencement of the Purchase Period and to determine whether
subsequent Purchase Periods shall be consecutive or overlapping.
(b) A Participant shall be granted a separate purchase right
for each Purchase Period in which he/she participates. The purchase right shall
be granted on the Enrollment Date
4
5
and shall be automatically exercised in successive installments on the Exercise
Dates ending within the Purchase Period.
(c) An Employee may participate in only one Purchase Period at
a time. Accordingly, except as provided in paragraph 4(d), an Employee who
wishes to join a new Purchase Period must withdraw from the current Purchase
Period in which he/she is participating and must also enroll in the new Purchase
Period prior to the Enrollment Date for that Purchase Period.
(d) If on the first day of any Accrual Period in a Purchase
Period in which a Participant is participating, the Fair Market Value of the
Common Stock is less than the Fair Market Value of the Common Stock on the
Enrollment Date of the Purchase Period (after taking into account any adjustment
during the Purchase Period pursuant to paragraph 18(a)), the Purchase Period
shall be terminated automatically and the Participant shall be enrolled
automatically in the new Purchase Period which has its first Accrual Period
commencing on that date, provided the Participant is eligible to participate in
the Plan on that date and has not elected to terminate participation in the
Plan.
(e) Except as specifically provided herein, the acquisition of
Common Stock through participation in the Plan for any Purchase Period shall
neither limit nor require the acquisition of Common Stock by a Participant in
any subsequent Purchase Period.
5. Participation.
(a) An eligible Employee may become a Participant in the Plan
by completing a subscription agreement authorizing payroll deductions in the
form of Exhibit A to this Plan and filing it with the Company's payroll office
at least fifteen (15) business days prior to the Enrollment Date for the
Purchase Period in which such participation will commence, unless a later time
for filing the subscription agreement is set by the Plan Administrator for all
eligible Employees with respect to a given Purchase Period.
(b) Payroll deductions for a Participant shall commence with
the first payroll period following the Enrollment Date and shall end on the last
complete payroll period during the Purchase Period, unless sooner terminated by
the Participant as provided in paragraph 10.
6. Payroll Deductions.
(a) At the time a Participant files his/her subscription
agreement, he/she shall elect to have payroll deductions made during the
Purchase Period in an amount not exceeding ten percent (10%) of the Compensation
which he/she receives during the Purchase Period.
(b) All payroll deductions made for a Participant shall be
credited to his/her account under the Plan and will be withheld in whole
percentages only. A Participant may not make any additional payments into such
account.
5
6
(c) A Participant may discontinue his/her participation in the
Plan as provided in paragraph 10, or may decrease the rate of his/her payroll
deductions during the Purchase Period by completing or filing with the Company a
new subscription agreement authorizing a decrease in the payroll deduction rate.
The decrease in rate shall be effective with the first full payroll period
commencing ten (10) business days after the Company's receipt of the new
subscription agreement unless the Company elects to process a given change in
participation more quickly. A Participant may increase the rate of his/her
payroll deductions for a future Purchase Period by filing with the Company a new
subscription agreement authorizing an increase in the payroll deduction rate
within ten (10) business days (unless the Company elects to process a given
change in participation more quickly) before the commencement of the upcoming
Purchase Period. A Participant's subscription agreement shall remain in effect
for successive Purchase Periods unless terminated as provided in paragraph 10.
The Plan Administrator shall be authorized to limit the number of payroll
deduction rate changes during any Purchase Period.
(d) Notwithstanding the foregoing, to the extent necessary to
comply with Section 423(b)(8) of the Code and paragraph 3(b) herein, a
Participant's payroll deductions may be decreased to 0% at such time during any
Accrual Period which is scheduled to end during the current calendar year (the
"Current Accrual Period") that the aggregate of all payroll deductions which
were previously used to purchase stock under the Plan in a prior Accrual Period
which ended during that calendar year plus all payroll deductions accumulated
with respect to the Current Accrual Period equal $21,250. Payroll deductions
shall recommence at the rate provided in such Participant's subscription
agreement at the beginning of the first Accrual Period which is scheduled to end
in the following calendar year, unless terminated by the Participant as provided
in paragraph 10.
7. Grant of Option. On the Enrollment Date, each Participant
in such Purchase Period shall be granted an option to purchase on each Exercise
Date of such Purchase Period (at the applicable Purchase Price) up to a number
of shares of the Common Stock determined by dividing such Participant's payroll
deductions accumulated prior to such Exercise Date and retained in the
Participant's account as of the Exercise Date by the applicable Purchase Price;
provided (i) that such purchase shall be subject to the limitations set forth in
paragraphs 3(b) and 12 hereof, and (ii) the maximum number of shares of Common
Stock a Participant shall be permitted to purchase in any Accrual Period shall
be two thousand (2,000) (POST-SPLIT) shares, subject to adjustment as provided
in paragraph 18 hereof. Exercise of the option shall occur as provided in
paragraph 8, unless the Participant has withdrawn pursuant to paragraph 10, and
the option, to the extent not exercised, shall expire on the last day of the
Purchase Period.
8. Exercise of Option. Unless a Participant withdraws from the
Plan as provided in paragraph 10, below, his/her option for the purchase of
shares will be exercised automatically on each Exercise Date, and the maximum
number of full shares subject to the option shall be purchased for such
Participant at the applicable Purchase Price with the accumulated payroll
deductions in his/her account. No fractional shares will be purchased; any
payroll deductions accumulated in a Participant's account which are not
sufficient to purchase a full share shall be carried over to the next Purchase
Period or returned to the Participant, if the
6
7
Participant withdraws from the Plan. Any amount remaining in a Participant's
account following the purchase of shares on the Exercise Date which exceeds the
cost of one full share of Common Stock on the Exercise Date shall be returned to
the Participant and shall not be carried over to the next Purchase Period.
During a Participant's lifetime, a Participant's option to purchase shares
hereunder is exercisable only by him/her.
9. Delivery. Upon receipt of a request from a Participant
after each Exercise Date on which a purchase of shares occurs, the Company shall
arrange the delivery to such Participant, as appropriate, of a certificate
representing the shares purchased upon exercise of his/her option.
10. Withdrawal; Termination of Employment.
(a) A Participant may withdraw all but not less than all the
payroll deductions credited to his/her account and not yet used to exercise
his/her option under the Plan at any time by giving written notice to the
Company in the form of Exhibit B to this Plan. All of the Participant's payroll
deductions credited to his/her account will be paid to such Participant promptly
after receipt of notice of withdrawal, such Participant's option for the
Purchase Period will be automatically terminated, and no further payroll
deductions for the purchase of shares will be made during the Purchase Period.
If a Participant withdraws from a Purchase Period, payroll deductions will not
resume at the beginning of the succeeding Purchase Period unless the Participant
delivers to the Company a new subscription agreement.
(b) Upon a Participant's ceasing to be an Employee for any
reason or upon termination of a Participant's employment relationship (as
described in paragraph 2(j)), the payroll deductions credited to such
Participant's account during the Purchase Period but not yet used to exercise
the option will be returned to such Participant or, in the case of his/her
death, to the person or persons entitled thereto under paragraph 14, and such
Participant's option will be automatically terminated.
11. Interest. No interest shall accrue on the payroll
deductions credited to a Participant's account under the Plan.
12. Stock.
(a) The maximum number of shares of Common Stock which shall
be made available for sale under the Plan shall be three hundred thousand
(300,000) shares, subject to adjustment upon changes in capitalization of the
Company as provided in paragraph 18. If on a given Exercise Date the number of
shares with respect to which options are to be exercised exceeds the number of
shares then available under the Plan, the Plan Administrator shall make a pro
rata allocation of the shares remaining available for purchase in as uniform a
manner as shall be practicable and as it shall determine to be equitable.
(b) A Participant will have no interest or voting right in
shares covered by his/her option until such shares are actually purchased on the
Participant's behalf in accordance
7
8
with the applicable provisions of the Plan. No adjustment shall be made for
dividends, distributions or other rights for which the record date is prior to
the date of such purchase.
(c) Shares to be delivered to a Participant under the Plan
will be registered in the name of the Participant or in the name of the
Participant and his/her spouse.
13. Administration.
(a) Administrative Body. The Plan shall be administered by the
Board or a committee of members of the Board appointed by the Board. The Board
or its committee shall have full and exclusive discretionary authority to
construe, interpret and apply the terms of the Plan, to determine eligibility
and to adjudicate all disputed claims filed under the Plan. Every finding,
decision and determination made by the Board or its committee shall, to the full
extent permitted by law, be final and binding upon all persons. Members of the
Board who are eligible Employees are permitted to participate in the Plan except
to the extent limited by subparagraph (b) of this paragraph 13.
(b) Rule 16b-3 Limitations. Notwithstanding the provisions of
subparagraph (a), above, in the event that Rule 16b-3 provides specific
requirements for the administrators of plans of this type, the Plan shall be
administered only by such a body and in such a manner as shall comply with the
applicable requirements of Rule 16b-3.
14. Designation of Beneficiary.
(a) Each Participant will file a written designation of a
beneficiary who is to receive any shares and cash, if any, from the
Participant's account under the Plan in the event of such Participant's death.
If a Participant is married and the designated beneficiary is not the spouse,
spousal consent shall be required for such designation to be effective.
(b) Such designation of beneficiary may be changed by the
Participant (and his/her spouse, if any) at any time by written notice. In the
event of the death of a Participant and in the absence of a beneficiary validly
designated under the Plan who is living at the time of such Participant's death,
the Company shall deliver such shares and/or cash to the executor or
administrator of the estate of the Participant, or if no such executor or
administrator has been appointed (to the knowledge of the Plan Administrator),
the Plan Administrator, in its discretion, may deliver such shares and/or cash
to the spouse or to any one or more dependents or relatives of the Participant,
or if no spouse, dependent or relative is known to the Plan Administrator, then
to such other person as the Plan Administrator may designate.
15. Transferability. Neither payroll deductions credited to a
Participant's account nor any rights with regard to the exercise of an option or
to receive shares under the Plan may be assigned, transferred, pledged or
otherwise disposed of in any way (other than by will, the laws of descent and
distribution or as provided in paragraph 14 hereof) by the Participant. Any such
attempt at assignment, transfer, pledge or other disposition shall be without
effect, except that the Plan Administrator may treat such act as an election to
withdraw funds from a Purchase Period in accordance with paragraph 10.
8
9
16. Use of Funds. All payroll deductions received or held by
the Company under the Plan may be used by the Company for any corporate purpose,
and the Company shall not be obligated to segregate such payroll deductions.
17. Reports. Individual accounts will be maintained for each
Participant in the Plan. Statements of account will be given to Participants at
least annually, which statements will set forth the amounts of payroll
deductions, the Purchase Price, the number of shares purchased and the remaining
cash balance, if any.
18. Adjustments Upon Changes in Capitalization; Corporate
Transactions.
(a) Adjustments Upon Changes in Capitalization. Subject to any
required action by the stockholders of the Company, the Reserves, as well as the
Purchase Price, shall be proportionately adjusted for any increase or decrease
in the number of issued shares of Common Stock resulting from a stock split,
reverse stock split, stock dividend, combination or reclassification of the
Common Stock, or any other similar event resulting in an increase or decrease in
the number of issued shares of Common Stock. Such adjustment shall be made by
the Plan Administrator, whose determination in that respect shall be final,
binding and conclusive. Except as expressly provided herein, no issue by the
Company of shares of stock of any class, or securities convertible into shares
of stock of any class, shall affect, and no adjustment by reason thereof shall
be made with respect to, the number or price of shares of Common Stock subject
to an option. The Plan Administrator may, if it so determines in the exercise of
its sole discretion, make provision for adjusting the Reserves, as well as the
price per share of Common Stock covered by each outstanding option, in the event
the Company effects one or more reorganizations, recapitalizations, rights
offerings or other increases or reductions of shares of its outstanding Common
Stock.
(b) Corporate Transactions. In the event of a proposed
Corporate Transaction, each option under the Plan shall be assumed or an
equivalent option shall be substituted by such successor corporation or a parent
or subsidiary of such successor corporation, unless the Plan Administrator
determines, in the exercise of its sole discretion and in lieu of such
assumption or substitution, to shorten the Purchase Period then in progress by
setting a new Exercise Date (the "New Exercise Date"). If the Plan Administrator
shortens the Purchase Period then in progress in lieu of assumption or
substitution in the event of a Corporate Transaction, the Plan Administrator
shall notify each Participant in writing, at least ten (10) days prior to the
New Exercise Date, that the Exercise Date for his/her option has been changed to
the New Exercise Date and that his/her option will be exercised automatically on
the New Exercise Date, unless prior to such date he/she has withdrawn from the
Purchase Period as provided in paragraph 10. For purposes of this subparagraph,
an option granted under the Plan shall be deemed to be assumed if, following the
Corporate Transaction, the option confers the right to purchase, for each share
of Common Stock subject to the option immediately prior to the Corporate
Transaction, the consideration (whether stock, cash or other securities or
property) received in the Corporate Transaction by holders of Common Stock for
each share of Common stock held on the effective date of the Corporate
Transaction (and if such holders were offered a choice of consideration, the
type of consideration chosen by the holders of a majority of the outstanding
9
10
shares of Common Stock); provided, however, that if such consideration received
in the Corporate Transaction was not solely common stock of the successor
corporation or its Parent, the Plan Administrator may, with the consent of the
successor corporation and the Participant, provide for the consideration to be
received upon exercise of the option to be solely common stock of the successor
corporation or its Parent equal in fair market value to the per share
consideration received by holders of Common Stock in the Corporate Transaction.
19. Amendment or Termination.
(a) The Plan Administrator may at any time and for any reason
terminate or amend the Plan. Except as provided in paragraph 18, no such
termination can affect options previously granted, provided that a Purchase
Period may be terminated by the Plan Administrator on any Exercise Date if the
Plan Administrator determines that the termination of the Plan is in the best
interests of the Company and its stockholders. Except as provided in paragraph
18, no amendment may make any change in any option theretofore granted which
adversely affects the rights of any Participant. To the extent necessary to
comply with Rule 16b-3 or Section 423 of the Code (or any successor rule or
provision or any other applicable law or regulation), the Company shall obtain
stockholder approval in such a manner and to such a degree as required.
(b) Without stockholder consent and without regard to whether
any Participant rights may be considered to have been "adversely affected," the
Plan Administrator shall be entitled to change the Purchase Periods, limit the
frequency and/or number of changes in the amount withheld during Purchase
Periods, establish the exchange ratio applicable to amounts withheld in a
currency other than U.S. dollars, establish additional terms, conditions, rules
or procedures to accommodate the rules or laws of applicable foreign
jurisdictions, permit payroll withholding in excess of the amount designated by
a Participant in order to adjust for delays or mistakes in the Company's
processing of properly completed withholding elections, establish reasonable
waiting and adjustment periods and/or accounting and crediting procedures to
ensure that amounts applied toward the purchase of Common Stock for each
Participant properly correspond with amounts withheld from the Participant's
Compensation, and establish such other limitations or procedures as the Plan
Administrator determines in its sole discretion advisable and which are
consistent with the Plan.
20. Notices. All notices or other communications by a
Participant to the Company under or in connection with the Plan shall be deemed
to have been duly given when received in the form specified by the Plan
Administrator at the location, or by the person, designated by the Plan
Administrator for the receipt thereof.
21. Conditions Upon Issuance of Shares. Shares shall not be
issued with respect to an option unless the exercise of such option and the
issuance and delivery of such shares pursuant thereto shall comply with all
applicable provisions of law, domestic or foreign, including, without
limitation, the Securities Act of 1933, as amended, the Exchange Act, the rules
and regulations promulgated thereunder, and the requirements of any stock
exchange upon which the shares may then be listed, and shall be further subject
to the approval of counsel for the Company with respect to such compliance. As a
condition to the exercise of an option, the
10
11
Company may require the Participant to represent and warrant at the time of any
such exercise that the shares are being purchased only for investment and
without any present intention to sell or distribute such shares if, in the
opinion of counsel for the Company, such a representation is required by any of
the aforementioned applicable provisions of law. In addition, no options shall
be exercised or shares issued hereunder before the Plan shall have been approved
by stockholders of the Company as provided in paragraph 24.
22. Term of Plan. The Plan shall become effective upon the
earlier to occur of its adoption by the Board or its approval by the
stockholders of the Company. It shall continue in effect for a term of ten (10)
years unless sooner terminated under paragraph 19.
23. Additional Restrictions of Rule 16b-3. The terms and
conditions of options granted hereunder to, and the purchase of shares by,
persons subject to Section 16 of the Exchange Act shall comply with the
applicable provisions of Rule 16b-3. This Plan shall be deemed to contain, such
options shall contain, and the shares issued upon exercise thereof shall be
subject to, such additional conditions and restrictions as may be required by
Rule 16b-3 to qualify for the maximum exemption from Section 16 of the Exchange
Act with respect to Plan transactions.
24. Stockholder Approval. Continuance of the Plan shall be
subject to approval by the stockholders of the Company within twelve (12) months
before or after the date the Plan is adopted. If such stockholder approval is
obtained at a duly held stockholders' meeting, the Plan must be approved by a
majority of the votes cast at such stockholders' meeting at which a quorum
representing a majority of all outstanding voting stock of the Company is,
either in person or by proxy, present and voting on the Plan. If such
stockholder approval is obtained by written consent, it must be obtained by the
written consent of the holders of a majority of all outstanding voting stock of
the Company. However, approval at a meeting or by written consent may be
obtained by a lesser degree of stockholder approval if the Plan Administrator
determines, in its discretion after consultation with the Company's legal
counsel, that such a lesser degree of stockholder approval will comply with all
applicable laws and will not adversely affect the qualification of the Plan
under Section 423 of the Code.
25. No Employment Rights. The Plan does not, directly or
indirectly, create any right for the benefit of any employee or class of
employees to purchase any shares under the Plan, or create in any employee or
class of employees any right with respect to continuation of employment by the
Company or a Designated Parent or Subsidiary, and it shall not be deemed to
interfere in any way with such employer's right to terminate, or otherwise
modify, an employee's employment at any time.
26. Effect of Plan. The provisions of the Plan shall, in
accordance with its terms, be binding upon, and inure to the benefit of, all
successors of each Participant, including, without limitation, such
Participant's estate and the executors, administrators or trustees thereof,
heirs and legatees, and any receiver, trustee in bankruptcy or representative of
creditors of such Participant.
11
12
27. Applicable Law. The laws of the State of California will
govern all matters relating to this Plan except to the extent it is superseded
by the laws of the United States.
12
13
EXHIBIT A
INFINITY FINANCIAL TECHNOLOGY, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
SUBSCRIPTION AGREEMENT
___ Original Application Enrollment Date:_____________
___ Change in Payroll Deduction Rate
___ Change of Beneficiary(ies)
1. I,________________________, hereby elect to participate in
the Infinity Financial Technology, Inc., 1996 Employee Stock Purchase Plan (the
"Employee Stock Purchase Plan") and subscribe to purchase shares of the
Company's Common Stock in accordance with this Subscription Agreement and the
Employee Stock Purchase Plan.
2. I hereby authorize payroll deductions from each paycheck in
the amount of ______% of my Compensation on each payday (not to exceed 10%)
during the Purchase Period in accordance with the Employee Stock Purchase Plan.
(Please note that no fractional percentages are permitted.)
3. I understand that the payroll deductions shall be
accumulated for the purchase of shares of Common Stock at the applicable
Purchase Price determined in accordance with the Employee Stock Purchase Plan. I
understand that if I do not withdraw from a Purchase Period, any accumulated
payroll deductions will be used to automatically exercise my option.
4. I have received a copy of the complete "Infinity Financial
Technology, Inc., 1996 Employee Stock Purchase Plan." I understand that my
participation in the Employee Stock Purchase Plan is in all respects subject to
the terms of the Plan. I understand that the grant of the option by the Company
under this Subscription Agreement is subject to obtaining stockholder approval
of the Employee Stock Purchase Plan.
5. Shares purchased for me under the Employee Stock Purchase
Plan should be issued in the name(s) of:
----------------------------
----------------------------
6. I understand that if I dispose of any shares received by me
pursuant to the Employee Stock Purchase Plan within 2 years after the Enrollment
Date (the first day of the Purchase Period during which I purchased such shares)
or within 1 year after the Exercise Date (the date I purchased such shares), I
will be treated for federal income tax purposes as having received ordinary
income at the time of such disposition in an amount equal to the excess of the
fair market value of the shares at the time such shares were delivered to me
over the price which
A-1
14
I paid for the shares. I hereby agree to notify the Company in writing within 30
days after the date of any such disposition and I will make adequate provision
for foreign, federal, state or other tax withholding obligations, if any which
arise upon the disposition of the Common Stock. The Company may, but will not be
obligated to, withhold from my compensation the amount necessary to meet any
applicable withholding obligation including any withholding necessary to make
available to the Company any tax deductions or benefits attributable to sale or
early disposition of Common Stock by me. If I dispose of such shares at any time
after the expiration of the 2-year and 1-year holding periods described above, I
understand that I will be treated for federal income tax purposes as having
received income only at the time of such disposition, and that such income will
be taxed as ordinary income only to the extent of an amount equal to the lesser
of (1) the excess of the fair market value of the shares at the time of such
disposition over the purchase price which I paid for the shares, or (2) 15% of
the fair market value of the shares on the first day of the Purchase Period. The
remainder of the gain, if any, recognized on such disposition will be taxed as
capital gain. I also understand that the foregoing income tax consequences are
based on current federal income tax law and that the Company is not responsible
for advising me of any changes in the applicable tax rules.
7. I hereby agree to be bound by the terms of the Employee
Stock Purchase Plan. The effectiveness of this Subscription Agreement is
dependent upon my eligibility to participate in the Employee Stock Purchase
Plan.
8. In the event of my death, I hereby designate the following
as my beneficiary(ies) to receive all payments and shares due me under the
Employee Stock Purchase Plan.
NAME: (Please print)
----------------------------------------------------
(First) (Middle) (Last)
Relationship:
----------------------------------------------------
Address:
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
Employee's Social
Security Number:
----------------------------------------------------
Employee's Address:
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
A-2
15
I UNDERSTAND THAT THIS SUBSCRIPTION AGREEMENT SHALL REMAIN IN EFFECT THROUGHOUT
SUCCESSIVE PURCHASE PERIODS UNLESS TERMINATED BY ME
Employee's Signature:
----------------------------------------------------
Dated:
----------------------------------------------------
Signature of spouse
if beneficiary is other
than spouse:
----------------------------------------------------
Dated:
----------------------------------------------------
A-3
16
EXHIBIT B
INFINITY FINANCIAL TECHNOLOGY, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
SUBSCRIPTION AGREEMENT
NOTICE OF WITHDRAWAL
The undersigned participant in the Purchase Period of the
Infinity Financial Technology, Inc., 1996 Employee Stock Purchase Plan which
began on _________________, 19___, hereby notifies the Company that he or she
hereby withdraws from the Purchase Period. He or she hereby directs the Company
to pay to the undersigned as promptly as practicable all the payroll deductions
credited to his or her account with respect to such Purchase Period. The
undersigned understands and agrees that his or her option for such Purchase
Period will be automatically terminated. The undersigned understands further
that no further payroll deductions will be made for the purchase of shares in
the current Purchase Period and the undersigned shall be eligible to participate
in succeeding Purchase Periods only by delivering to the Company a new
Subscription Agreement.
Name and Address
of Participant:
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
Signature:
----------------------------------------------------
Date:
----------------------------------------------------
B-1