EXHIBIT 99.5
COMPS.COM, INC.
1999 EMPLOYEE STOCK PURCHASE PLAN
---------------------------------
I. PURPOSE OF THE PLAN
This Employee Stock Purchase Plan is intended to promote the
interests of COMPS.COM, INC., a Delaware Corporation, by providing eligible
employees with the opportunity to acquire a proprietary interest in the
Corporation through participation in a payroll-deduction based employee stock
purchase plan designed to qualify under Section 423 of the Code.
Capitalized terms herein shall have the meanings assigned to such
terms in the attached Appendix.
II. ADMINISTRATION OF THE PLAN
The Plan Administrator shall have full authority to interpret and
construe any provision of the Plan and to adopt such rules and regulations for
administering the Plan as it may deem necessary in order to comply with the
requirements of Code Section 423. Decisions of the Plan Administrator shall be
final and binding on all parties having an interest in the Plan.
III. STOCK SUBJECT TO PLAN
A. The stock purchasable under the Plan shall be shares of
authorized but unissued or reacquired Common Stock, including
shares of Common Stock purchased on the open market. The number
of shares of Common Stock initially reserved for issuance over
the term of the Plan shall be limited to three hundred thousand
(300,000) shares.
B. The number of shares of Common Stock available for issuance under
the Plan shall automatically increase on the first trading day in
January each calendar year during the term of the Plan, beginning
with calendar year 2000, by an amount equal to two percent (2%)
of the total number of shares of Common Stock outstanding on the
last trading day in December of the immediately preceding
calendar year, but in no event shall any such annual increase
exceed three hundred thousand (300,000) shares.
C. Should any change be made to the Common Stock by reason of any
stock split, stock dividend, recapitalization, combination of
shares, exchange of shares or other change affecting the
outstanding Common Stock as a class without the Corporation's
receipt of consideration, appropriate adjustments shall be made
to (i) the maximum number and class of securities issuable under
the Plan, (ii) the maximum number and class of securities
purchasable per Participant on any one Purchase Date, (iii) the
maximum number and class of securities purchasable by all
Participants in the aggregate on any one Purchase Date, (iv) the
maximum number and/or class of securities by which the share
reserve is to increase automatically each calendar year pursuant
to the provisions of Section III.B of this Article One and (v)
the number and class of securities and the price per share in
effect under each outstanding purchase right in order to prevent
the dilution or enlargement of benefits thereunder.
IV. OFFERING PERIODS
A. Shares of Common Stock shall be offered for purchase under the
Plan through a series of successive offering 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.
B. Each offering period shall be of such duration (not to exceed
twenty-four (24) months) as determined by the Plan Administrator
prior to the start date of such offering period. However, the
initial offering period shall commence at the Effective Time and
terminate on the last business day in July 2001. The next
offering period shall commence on the first business day in
August 2001, and subsequent offering periods shall commence as
designated by the Plan Administrator.
C. Each offering period shall be comprised of a series of one or
more successive Purchase Intervals. Purchase Intervals shall run
from the first business day in February each year to the last
business day in July of the same year and from the first business
day in August each year to the last business day in January of
the following year. However, the first Purchase Interval in
effect under the initial offering period shall commence at the
Effective Time and terminate on the last business day in July
1999.
D. Should the Fair Market Value per share of Common Stock on any
Purchase Date within an offering period be less than the Fair
Market Value per share of Common Stock on the start date of that
offering period, then that offering period shall automatically
terminate immediately after the purchase of shares of Common
Stock on such Purchase Date, and a new offering period shall
commence on the next business day following such Purchase Date.
The new offering period shall have a duration of twenty (24)
months, unless a shorter duration is established by the Plan
Administrator within five (5) business days following the start
date of that offering period.
V. ELIGIBILITY
A. Each individual who is an Eligible Employee on the start date of
any offering period under the Plan may enter that offering period
on such start date or on any subsequent Semi-Annual Entry Date
within that offering period, provided he or she remains an
Eligible Employee.
B. Each individual who first becomes an Eligible Employee after the
start date of an offering period may enter that offering period
on any subsequent Semi-Annual Entry Date within that offering
period on which he or she is an Eligible Employee.
C. The date an individual enters an offering period shall be
designated his or her Entry Date for purposes of that offering
period.
D. To participate in the Plan for a particular offering period, the
Eligible Employee must complete the enrollment forms prescribed
by the Plan Administrator (including a stock purchase agreement
and a payroll deduction authorization) and file such forms with
the Plan Administrator (or its designate) on or before his or her
scheduled Entry Date.
VI. PAYROLL DEDUCTIONS
A. The payroll deduction authorized by the Participant for purposes
of acquiring shares of Common Stock during an offering period may
be any multiple of one percent (1%) of the Cash Earnings paid to
the Participant during each Purchase Interval within that
offering period, up to a maximum of ten percent (10%). The
deduction rate so authorized shall continue in effect throughout
the offering period, except to the extent such rate is changed in
accordance with the following guidelines:
(i) The Participant may, at any time during the offering period,
reduce his or her rate of payroll deduction to become
effective as soon as possible after filing the appropriate
form with the Plan Administrator. The Participant may not,
however, effect more than one (1) such reduction per
Purchase Interval.
2.
(ii) The Participant may, prior to the commencement of any new
Purchase Interval within the offering period, increase the
rate of his or her payroll deduction by filing the
appropriate form with the Plan Administrator. The new rate
(which may not exceed the ten percent (10%) maximum) shall
become effective on the start date of the first Purchase
Interval following the filing of such form.
B. Payroll deductions shall begin on the first pay day
administratively feasible following the Participant's Entry Date
into the offering period and shall (unless sooner terminated by
the Participant) continue through the pay day ending with or
immediately prior to the last day of that offering period. The
amounts so collected shall be credited to the Participant's book
account under the Plan, but no interest shall be paid on the
balance from time to time outstanding in such account. The
amounts collected from the Participant shall not be required to
be held in any segregated account or trust fund and may be
commingled with the general assets of the Corporation and used
for general corporate purposes.
C. Payroll deductions shall automatically cease upon the termination
of the Participant's purchase right in accordance with the
provisions of the Plan.
D. The Participant's acquisition of Common Stock under the Plan on
any Purchase Date shall neither limit nor require the
Participant's acquisition of Common Stock on any subsequent
Purchase Date, whether within the same or a different offering
period.
VII. PURCHASE RIGHTS
A. GRANT OF PURCHASE RIGHT. A Participant shall be granted a
-----------------------
separate purchase right for each offering period in which he or
she participates. The purchase right shall be granted on the
Participant's Entry Date into the offering period and shall
provide the Participant with the right to purchase shares of
Common Stock, in a series of successive installments over the
remainder of such offering period, upon the terms set forth
below. The Participant shall execute a stock purchase agreement
embodying such terms and such other provisions (not inconsistent
with the Plan) as the Plan Administrator may deem advisable.
Under no circumstances shall purchase rights be granted under the Plan
to any Eligible Employee if such individual would, immediately after the grant,
own (within the meaning of Code Section 424(d)) or hold outstanding options or
other rights to purchase, stock possessing five percent (5%) or more of the
total combined voting power or value of all classes of stock of the Corporation
or any Corporate Affiliate.
B. EXERCISE OF THE PURCHASE RIGHT. Each purchase right shall be
------------------------------
automatically exercised in installments on each successive Purchase Date within
the offering period, and shares of Common Stock shall accordingly be purchased
on behalf of each Participant on each such Purchase Date. The purchase shall be
effected by applying the Participant's payroll deductions for the Purchase
Interval ending on such Purchase Date to the purchase of whole shares of Common
Stock at the purchase price in effect for the Participant for that Purchase
Date.
C. PURCHASE PRICE. The purchase price per share at which Common
--------------
Stock will be purchased on the Participant's behalf on each Purchase Date within
the offering period shall be equal to eighty-five percent (85%) of the lower of
-----
(i) the Fair Market Value per share of Common Stock on the Participant's Entry
Date into that offering period or (ii) the Fair Market Value per share of Common
Stock on that Purchase Date.
D. NUMBER OF PURCHASABLE SHARES. The number of shares of Common
----------------------------
Stock purchasable by a Participant on each Purchase Date during the offering
period shall be the number of whole shares obtained by dividing the amount
collected from the Participant through payroll deductions during the Purchase
Interval ending with that Purchase Date by the purchase price in effect for the
Participant for that Purchase Date. However, the maximum number of shares of
Common Stock purchasable per Participant on any one Purchase Date shall not
exceed one thousand five hundred (1,500) shares, subject to periodic adjustments
in the event of certain changes in
3.
the Corporation's capitalization. In addition, the maximum aggregate number of
shares of Common Stock purchasable by all Participants on any one Purchase Date
shall not exceed seventy five thousand (75,000) shares, subject to periodic
adjustments in the event of certain changes in the Corporation's capitalization.
However, the Plan Administrator shall have the discretionary authority,
exercisable prior to the start of any offering period under the Plan, to
increase or decrease the limitations to be in effect for the number of shares
purchasable per Participant and in the aggregate by all Participants on each
Purchase Date during that offering period.
E. EXCESS PAYROLL DEDUCTIONS. Any payroll deductions not applied to
-------------------------
the purchase of shares of Common Stock on any Purchase Date because they are
not sufficient to purchase a whole share of Common Stock shall be held for the
purchase of Common Stock on the next Purchase Date. However, any payroll
deductions not applied to the purchase of Common Stock by reason of the
limitation on the maximum number of shares purchasable per Participant or in the
aggregate on the Purchase Date shall be promptly refunded.
(i) TERMINATION OF PURCHASE RIGHT. The following provisions
-----------------------------
shall govern the termination of outstanding purchase
rights:
(ii) A Participant may, at any time prior to the next scheduled
Purchase Date in the offering period, terminate his or her
outstanding purchase right by filing the appropriate form
with the Plan Administrator (or its designate), and no
further payroll deductions shall be collected from the
Participant with respect to the terminated purchase right.
Any payroll deductions collected during the Purchase
Interval in which such termination occurs shall, at the
Participant's election, be immediately refunded or held
for the purchase of shares on the next Purchase Date. If
no such election is made at the time such purchase right
is terminated, then the payroll deductions collected with
respect to the terminated right shall be refunded as soon
as possible.
(iii) The termination of such purchase right shall be
irrevocable, and the Participant may not subsequently
rejoin the offering period for which the terminated
purchase right was granted. In order to resume
participation in any subsequent offering period, such
individual must re-enroll in the Plan (by making a timely
filing of the prescribed enrollment forms) on or before
his or her scheduled Entry Date into that offering period.
(iv) Should the Participant cease to remain an Eligible
Employee for any reason (including death, disability or
change in status) while his or her purchase right remains
outstanding, then that purchase right shall immediately
terminate, and all of the Participant's payroll deductions
for the Purchase Interval in which the purchase right so
terminates shall be immediately refunded. However, should
the Participant cease to remain in active service by
reason of an approved unpaid leave of absence, then the
Participant shall have the right, exercisable up until the
last business day of the Purchase Interval in which such
leave commences, to (a) withdraw all the payroll
deductions collected to date on his or her behalf for that
Purchase Interval or (b) have such funds held for the
purchase of shares on his or her behalf on the next
scheduled Purchase Date. In no event, however, shall any
further payroll deductions be collected on the
Participant's behalf during such leave. Upon the
Participant's return to active service (x) within ninety
(90) days following the commencement of such leave or (y)
the expiration of any longer period for which such
Participant's right to reemployment with the Corporation
is guaranteed by either statute or contract, his or her
payroll deductions under the Plan shall automatically
resume at the rate in effect at the time the leave began,
unless the Participant withdraws from the Plan prior to
his or her return. An individual who returns to active
employment following a leave of absence which exceeds in
duration the applicable (x) or (y) time period will be
treated as a new Employee for purposes of subsequent
participation in the Plan and must accordingly re-enroll
in the
4.
Plan (by making a timely filing of the prescribed
enrollment forms) on or before his or her scheduled Entry
Date into the offering period.
F. CHANGE IN CONTROL. Each outstanding purchase right shall
-----------------
automatically be exercised, immediately prior to the effective date of any
Change in Control, by applying the payroll deductions of each Participant for
the Purchase Interval in which such Change in Control occurs to the purchase of
whole shares of Common Stock at a purchase price per share equal to eighty-five
percent (85%) of the lower of (i) the Fair Market Value per share of Common
-----
Stock on the Participant's Entry Date into the offering period in which such
Change in Control occurs or (ii) the Fair Market Value per share of Common Stock
immediately prior to the effective date of such Change in Control. However, the
applicable limitation on the number of shares of Common Stock purchasable per
Participant shall continue to apply to any such purchase, but not the limitation
applicable to the maximum number of shares of Common Stock purchasable in the
aggregate.
The Corporation shall use its best efforts to provide at least ten
(10)-days prior written notice of the occurrence of any Change in Control, and
Participants shall, following the receipt of such notice, have the right to
terminate their outstanding purchase rights prior to the effective date of the
Change in Control.
G. PRORATION OF PURCHASE RIGHTS. Should the total number of shares
----------------------------
of Common Stock to be purchased pursuant to outstanding purchase rights on any
particular date exceed the number of shares then available for issuance under
the Plan, the Plan Administrator shall make a pro-rata allocation of the
available shares on a uniform and nondiscriminatory basis, and the payroll
deductions of each Participant, to the extent in excess of the aggregate
purchase price payable for the Common Stock pro-rated to such individual, shall
be refunded.
H. ASSIGNABILITY. The purchase right shall be exercisable only by
-------------
the Participant and shall not be assignable or transferable by the Participant.
I. STOCKHOLDER RIGHTS. A Participant shall have no stockholder
------------------
rights with respect to the shares subject to his or her outstanding purchase
right until the shares are purchased on the Participant's behalf in accordance
with the provisions of the Plan and the Participant has become a holder of
record of the purchased shares.
VIII. ACCRUAL LIMITATIONS
A. No Participant shall be entitled to accrue rights to acquire
Common Stock pursuant to any purchase right outstanding under
this Plan if and to the extent such accrual, when aggregated with
(i) rights to purchase Common Stock accrued under any other
purchase right granted under this Plan and (ii) similar rights
accrued under other employee stock purchase plans (within the
meaning of Code Section 423) of the Corporation or any Corporate
Affiliate, would otherwise permit such Participant to purchase
more than Twenty-Five Thousand Dollars ($25,000.00) worth of
stock of the Corporation or any Corporate Affiliate (determined
on the basis of the Fair Market Value per share on the date or
dates such rights are granted) for each calendar year such rights
are at any time outstanding.
B. For purposes of applying such accrual limitations to the purchase
rights granted under the Plan, the following provisions shall be
in effect:
(i) The right to acquire Common Stock under each outstanding
purchase right shall accrue in a series of installments on
each successive Purchase Date during the offering period on
which such right remains outstanding.
(ii) No right to acquire Common Stock under any outstanding
purchase right shall accrue to the extent the Participant
has already accrued in the same calendar year the right to
acquire Common Stock under one or more other purchase
rights at a rate equal to Twenty-Five Thousand Dollars
($25,000.00) worth of Common
5.
Stock (determined on the basis of the Fair Market Value per
share on the date or dates of grant) for each calendar year
such rights were at any time outstanding.
C. If by reason of such accrual limitations, any purchase right of a
Participant does not accrue for a particular Purchase Interval,
then the payroll deductions which the Participant made during
that Purchase Interval with respect to such purchase right shall
be promptly refunded.
D. In the event there is any conflict between the provisions of this
Article and one or more provisions of the Plan or any instrument
issued thereunder, the provisions of this Article shall be
controlling.
IX. EFFECTIVE DATE AND TERM OF THE PLAN
A. The Plan was adopted by the Board on February 19, 1999, and shall
become effective at the Effective Time, provided no purchase
--------
rights granted under the Plan shall be exercised, and no shares
of Common Stock shall be issued hereunder, until (i) the Plan
shall have been approved by the stockholders of the Corporation
and (ii) the Corporation shall have complied with all applicable
requirements of the 1933 Act (including the registration of the
shares of Common Stock issuable under the Plan on a Form S-8
registration statement filed with the Securities and Exchange
Commission), all applicable listing requirements of any stock
exchange (or the Nasdaq National Market, if applicable) on which
the Common Stock is listed for trading and all other applicable
requirements established by law or regulation. In the event such
stockholder approval is not obtained, or such compliance is not
effected, within twelve (12) months after the date on which the
Plan is adopted by the Board, the Plan shall terminate and have
no further force or effect, and all sums collected from
Participants during the initial offering period hereunder shall
be refunded.
B. Unless sooner terminated by the Board, the Plan shall terminate
upon the earliest of (i) the last business day in July, 2009,
--------
(ii) the date on which all shares available for issuance under
the Plan shall have been sold pursuant to purchase rights
exercised under the Plan or (iii) the date on which all purchase
rights are exercised in connection with a Corporate Transaction.
No further purchase rights shall be granted or exercised, and no
further payroll deductions shall be collected, under the Plan
following such termination.
X. AMENDMENT OF THE PLAN
A. The Board may alter, amend, suspend or terminate the Plan at any
time to become effective immediately following the close of any
Purchase Interval. However, the Plan may be amended or
terminated immediately upon Board action, if and to the extent
necessary to assure that the Corporation will not recognize, for
financial reporting purposes, any compensation expense in
connection with the shares of Common Stock offered for purchase
under the Plan, should the financial accounting rules applicable
to the Plan at the Effective Time be subsequently revised so as
to require the recognition of compensation expense in the absence
of such amendment or termination.
B. In no event may the Board effect any of the following amendments
or revisions to the Plan without the approval of the
Corporation's stockholders: (i) increase the number of shares of
Common Stock issuable under the Plan, except for permissible
adjustments in the event of certain changes in the Corporation's
capitalization, (ii) alter the purchase price formula so as to
reduce the purchase price payable for the shares of Common Stock
purchasable under the Plan or (iii) modify the eligibility
requirements for participation in the Plan.
6.
XI. GENERAL PROVISIONS
A. All costs and expenses incurred in the administration of the Plan
shall be paid by the Corporation; however, each Plan Participant
shall bear all costs and expenses incurred by such individual in
the sale or other disposition of any shares purchased under the
Plan.
B. Nothing in the Plan shall confer upon the Participant any right
to continue in the employ of the Corporation or any Corporate
Affiliate for any period of specific duration or interfere with
or otherwise restrict in any way the rights of the Corporation
(or any Corporate Affiliate employing such person) or of the
Participant, which rights are hereby expressly reserved by each,
to terminate such person's employment at any time for any
reason, with or without cause.
C. The provisions of the Plan shall be governed by the laws of the
State of California without resort to that State's conflict-of-
laws rules.
7.
SCHEDULE A
----------
CORPORATIONS PARTICIPATING IN
EMPLOYEE STOCK PURCHASE PLAN
AS OF THE EFFECTIVE TIME
------------------------
COMPS.COM, INC.
APPENDIX
--------
The following definitions shall be in effect under the Plan:
A. BOARD shall mean the Corporation's Board of Directors.
-----
B. CASH EARNINGS shall mean the (i) regular base salary paid to a
-------------
Participant by one or more Participating Companies during such individual's
period of participation in one or more offering periods under the Plan plus (ii)
all overtime payments, bonuses, commissions, profit-sharing distributions and
other incentive-type payments. Such Cash Earnings shall be calculated before
deduction of (A) any income or employment tax withholdings or (B) any and all
contributions made by the Participant to any Code Section 401(k) salary deferral
plan or Code Section 125 cafeteria benefit program now or hereafter established
by the Corporation or any Corporate Affiliate. However, Cash Earnings shall
NOT include any contributions made on the Participant's behalf by the
Corporation or any Corporate Affiliate to any employee benefit or welfare plan
now or hereafter established (other than Code Section 401(k) or Code Section 125
contributions).
C. CHANGE IN CONTROL shall mean a change in ownership of the
-----------------
Corporation pursuant to any of the following transactions:
(i) a merger or consolidation in which securities possessing
more than fifty percent (50%) of the total combined voting power of the
Corporation's outstanding securities are transferred to a person or persons
different from the persons holding those securities immediately prior to
such transaction, or
(ii) the sale, transfer or other disposition of all or
substantially all of the assets of the Corporation in complete liquidation
or dissolution of the Corporation, or
(iii) the acquisition, directly or indirectly by an person or
related group of persons (other than the Corporation or a person that
directly or indirectly controls, is controlled by or is under common
control with the Corporation) of beneficial ownership (within the meaning
of Rule 13d-3 of the 1934 Act) of securities possessing more than fifty
percent (50%) of the total combined voting power of the Corporation's
outstanding securities pursuant to a tender or exchange offer made directly
to the Corporation's stockholders.
C. CODE shall mean the Internal Revenue Code of 1986, as amended.
----
D. COMMON STOCK shall mean the Corporation's common stock.
------------
E. CORPORATE AFFILIATE shall mean any parent or subsidiary
-------------------
corporation of the Corporation (as determined in accordance with Code Section
424), whether now existing or subsequently established.
G. CORPORATION shall mean COMPS.COM, INC., a Delaware corporation,
-----------
and any corporate successor to all or substantially all of the assets or voting
stock of COMPS.COM, INC., which shall by appropriate action adopt the Plan.
H. EFFECTIVE TIME shall mean the time at which the Underwriting
--------------
Agreement is executed and the Common Stock priced for the initial public
offering. Any Corporate Affiliate which becomes a Participating Corporation
after such Effective Time shall designate a subsequent Effective Time with
respect to its employee-Participants.
I. ELIGIBLE EMPLOYEE shall mean any person who is employed by a
-----------------
Participating Corporation on a basis under which he or she is regularly expected
to render more than twenty (20) hours of service per week for more than five (5)
months per calendar year for earnings considered wages under Code Section
3401(a).
J. ENTRY DATE shall mean the date an Eligible Employee first
----------
commences participation in the offering period in effect under the Plan. The
earliest Entry Date under the Plan shall be the Effective Time.
K. FAIR MARKET VALUE per share of Common Stock on any relevant date
-----------------
shall be determined in accordance with the following provisions:
b. If the Common Stock is at the time traded on the Nasdaq
National Market, then the Fair Market Value shall be the
closing selling price per share of Common Stock on the date
in question, as such price is reported by the National
Association of Securities Dealers on the Nasdaq National
Market. If there is no closing selling price for the Common
Stock on the date in question, then the Fair Market Value
shall be the closing selling price on the last preceding
date for which such quotation exists.
c. If the Common Stock is at the time listed on any Stock
Exchange, then the Fair Market Value shall be the closing
selling price per share of Common Stock on the date in
question on the Stock Exchange determined by the Plan
Administrator to be the primary market for the Common Stock,
as such price is officially quoted in the composite tape of
transactions on such exchange. If there is no closing
selling price for the Common Stock on the date in question,
then the Fair Market Value shall be the closing selling
price on the last preceding date for which such quotation
exists.
d. For purposes of the initial offering period which begins at
the Effective Time, the Fair Market Value shall be deemed to
be equal to the price per share at which the Common Stock is
sold in the initial public offering pursuant to the
Underwriting Agreement.
L. 1933 ACT shall mean the Securities Act of 1933, as amended.
--------
M. PARTICIPANT shall mean any Eligible Employee of a Participating
-----------
Corporation who is actively participating in the Plan.
N. PARTICIPATING CORPORATION shall mean the Corporation and such
-------------------------
Corporate Affiliate or Affiliates as may be authorized from time to time by the
Board to extend the benefits of the Plan to their Eligible Employees. The
Participating Corporations in the Plan are listed in attached Schedule A.
O. PLAN shall mean the Corporation's 1999 Employee Stock Purchase
----
Plan, as set forth in this document.
P. PLAN ADMINISTRATOR shall mean the committee of two (2) or more
------------------
Board members appointed by the Board to administer the Plan.
Q. PURCHASE DATE shall mean the last business day of each Purchase
-------------
Interval. The initial Purchase Date shall be July 30, 1999.
R. PURCHASE INTERVAL shall mean each successive six (6)-month period
-----------------
within the offering period at the end of which there shall be purchased shares
of Common Stock on behalf of each Participant.
S. SEMI-ANNUAL ENTRY DATE shall mean the first business day in
----------------------
February and August each year on which an Eligible Employee may first enter an
offering period.
T. STOCK EXCHANGE shall mean either the American Stock Exchange or
--------------
the New York Stock Exchange.
2.
U. UNDERWRITING AGREEMENT shall mean the agreement between the
----------------------
Corporation and the underwriter or underwriters managing the initial public
offering of the Common Stock.
3.