EX-10.43
ADAYTUM SOFTWARE, INC.
EMPLOYEE STOCK PURCHASE PLAN
The following constitute the provisions of the Adaytum Software, Inc.
Employee Stock Purchase Plan.
1. PURPOSE. The purpose of the Plan is to provide employees of the
Company and its Designated Subsidiaries with an opportunity to purchase Common
Stock of the Company. 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 shall, accordingly, be construed so as to extend and
limit participation in a manner consistent with the requirements of that section
of the Code.
2. DEFINITIONS.
(a) "Administrator" shall mean the Board or any committee
designated by the Board to supervise and administer the Plan.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as amended.
(d) "Common Stock" means the Common Stock of the Company.
(e) "Company" means Adaytum Software, Inc., a Delaware
corporation.
(f) "Compensation" means regular cash compensation received by
an Employee from the Company or a Designated Subsidiary. By way of
illustration, but not limitation, Compensation includes regular
compensation such as salary, wages, overtime, shift differentials and
commissions, but excludes bonuses, incentive compensation, relocation,
expense reimbursements, tuition or other reimbursements and income
realized as a result of participation in any stock option, stock
purchase, or similar plan of the Company or any Designated Subsidiary.
(g) "Continuous Status as an Employee" means the absence of any
interruption or termination of service as an Employee. Continuous Status
as an Employee shall not be considered interrupted in the case of (i)
sick leave; (ii) military leave; (iii) any other leave of absence
approved by the Administrator, 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; or (iv) transfers
between locations of the Company or between the Company and its
Designated Subsidiaries.
(h) "Contributions" means all amounts credited to the account
of a participant pursuant to the Plan.
(i) "Corporate Transaction" means a sale of all or
substantially all of the Company's assets, or a merger, consolidation or
other capital reorganization of the Company with or into another
corporation, or any other transaction or series of related transactions
in which the Company's stockholders immediately prior thereto own less
than 50% of the voting stock of the Company (or its successor or parent)
immediately thereafter.
(j) "Designated Subsidiaries" means the Subsidiaries that have
been designated by the Board from time to time in its sole discretion as
eligible to participate in the Plan; provided, however, that the Board
shall only have the discretion to designate Subsidiaries if the issuance
of options to such Subsidiary's Employees pursuant to the Plan would not
cause the Company to incur adverse accounting charges.
(k) "Employee" means any person, including an Officer, who is
an Employee for tax purposes and who is customarily employed for at least
twenty (20) hours per week by the Company or one of its Designated
Subsidiaries.
(l) "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
(m) "Offering Date" means the first business day of each
Offering Period of the Plan.
(n) "Offering Period" means a period of twenty-four (24) months
commencing on May 1 and November 1 of each year, except for the first
Offering Period as set forth in Section 4(a).
(o) "Officer" means a person who is an officer of the Company
within the meaning of Section 16 of the Exchange Act and the rules and
regulations promulgated thereunder.
(p) "Plan" means this Adaytum Software, Inc. Employee Stock
Purchase Plan.
(q) "Purchase Date" means the last day of each Purchase Period
of the Plan.
(r) "Purchase Period" means a period of six (6) months within
an Offering Period, except for the Purchase Periods in the first Offering
Period as set forth in Section 4(b).
(s) "Purchase Price" means with respect to a Purchase Period an
amount equal to 85% of the Fair Market Value (as defined in Section 7(b)
below) of a Share on the Offering Date or on the Purchase Date, whichever
is lower; provided, however, that in the event (i) of any increase in the
number of Shares available for issuance under the Plan as a result of a
stockholder-approved amendment to the Plan, and (ii) all or a portion of
such additional Shares are to be issued with respect to one or more
Offering Periods that are underway at the time of such increase
("Additional Shares"), and (iii) the Fair Market Value of a Share on the
date of such increase (the "Approval Date Fair Market Value") is
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higher than the Fair Market Value on the Offering Date for any such
Offering Period, then in such instance the Purchase Price with respect to
Additional Shares shall be 85% of the Approval Date Fair Market Value or
the Fair Market Value of a Share on the Purchase Date, whichever is
lower.
(t) "Securities Act" means the Securities Act of 1933, as
amended.
(u) "Share" means a share of Common Stock, as adjusted in
accordance with Section 19 of the Plan.
(v) "Subsidiary" means a corporation, domestic or foreign, of
which not less than 50% of the voting shares are held by the Company or a
Subsidiary, whether or not such corporation now exists or is hereafter
organized or acquired by the Company or a Subsidiary.
3. ELIGIBILITY.
(a) Any person who is an Employee as of the Offering Date of a
given Offering Period shall be eligible to participate in such Offering
Period under the Plan, subject to the requirements of Section 5(a) and
the limitations imposed by Section 423(b) of the Code.
(b) 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 (or any other person whose stock would be
attributed to such Employee pursuant to Section 424(d) of the Code) would
own capital stock of the Company 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
subsidiary of the Company, or (ii) if such option would permit his or her
rights to purchase stock under all employee stock purchase plans
(described in Section 423 of the Code) of the Company and its
Subsidiaries to accrue at a rate that exceeds Twenty-Five Thousand
Dollars ($25,000) of the Fair Market Value (as defined in Section 7(b)
below) of such stock (determined at the time such option is granted) for
each calendar year in which such option is outstanding at any time.
4. OFFERING PERIODS AND PURCHASE PERIODS.
(a) OFFERING PERIODS. The Plan shall be generally implemented
by a series of Offering Periods of twenty-four (24) months' duration,
with new Offering Periods (other than the first Offering Period)
commencing on or about May 1 and November 1 of each year (or at such
other time or times as may be determined by the Board of Directors). The
first Offering Period shall commence on the effective date of the
Registration Statement on Form S-1 for the initial public offering of the
Company's Common Stock (the "IPO Date") and continue until April 30,
2002. The Plan shall continue until terminated in accordance with
Section 19 hereof. The Board of Directors of the Company shall have the
power to change the duration and/or the frequency of Offering
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Periods with respect to future offerings without stockholder approval if
such change is announced at least five (5) days prior to the scheduled
beginning of the first Offering Period to be affected.
(b) PURCHASE PERIODS. Each Offering Period shall generally
consist of four (4) consecutive purchase periods of six (6) months'
duration. The last day of each Purchase Period shall be the "Purchase
Date" for such Purchase Period. A Purchase Period commencing on May 1
shall end on the next October 31. A Purchase Period commencing on
November 1 shall end on the next April 30. The first Offering Period
shall have three Purchase Periods. The first Purchase Period of the
first Offering Period shall commence on the IPO Date and shall end on
April 30, 2001. The second Purchase Period shall commence on May 1, 2001
and end on October 31, 2001. The third Purchase Period shall commence on
November 1, 2001and end on April 30, 2002. The Board of Directors of the
Company shall have the power to change the duration and/or frequency of
Purchase Periods with respect to future purchases without stockholder
approval if such change is announced at least five (5) days prior to the
scheduled beginning of the first Offering Period during which any part of
such adjusted Purchase Period occurs and provided that no Offering Period
shall be of greater than 24 months' duration as a result of such change.
5. PARTICIPATION.
(a) An eligible Employee may become a participant in the Plan
by completing a subscription agreement on the form provided by the
Company and filing it with the Company's Human Resources Department or
the stock brokerage or other financial services firm designated by the
Company (the "Designated Broker") prior to the applicable Offering Date,
unless a later time for filing the subscription agreement is set by the
Board for all eligible Employees with respect to a given Offering Period.
The subscription agreement shall set forth the percentage of the
participant's Compensation (subject to Section 6(a) below) to be paid as
Contributions pursuant to the Plan.
(b) Payroll deductions shall commence on the first full payroll
following the Offering Date and shall end on the last payroll paid on or
prior to the last Purchase Period of the Offering Period to which the
subscription agreement is applicable, unless sooner terminated by the
participant as provided in Section 10.
6. METHOD OF PAYMENT OF CONTRIBUTIONS.
(a) A participant shall elect to have payroll deductions made
on each payday during the Offering Period in an amount not less than zero
percent (0%) and not more than fifteen percent (15%) (or such other
percentage as the Board may establish from time to time before an
Offering Date) of such participant's Compensation on each payday during
the Offering Period. All payroll deductions made by a participant shall
be credited to his or her account under the Plan. A participant may not
make any additional payments into such account.
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(b) A participant may discontinue his or her participation in
the Plan as provided in Section 10, or, unless otherwise provided by the
Administrator, on one occasion only during a Purchase Period may increase
and on one occasion only during a Purchase Period may decrease the rate
of his or her Contributions with respect to the ongoing Offering Period
by completing and filing with the Company a new subscription agreement
authorizing a change in the payroll deduction rate. The change in rate
shall be effective as of the beginning of the next pay period following
the date of filing of the new subscription agreement, if the agreement is
filed at least ten (10) business days prior to such date and, if not, as
of the beginning of the next succeeding pay period.
(c) Notwithstanding the foregoing, to the extent necessary to
comply with Section 423(b)(8) of the Code and Section 3(b) herein, a
participant's payroll deductions may be decreased during any Purchase
Period scheduled to end during the current calendar year to zero percent
(0%). Payroll deductions shall re-commence at the rate provided in such
participant's subscription agreement at the beginning of the first
Purchase Period that is scheduled to end in the following calendar year,
unless terminated by the participant as provided in Section 10.
7. GRANT OF OPTION.
(a) On the Offering Date of each Offering Period, each eligible
Employee participating in such Offering Period shall be granted an option
to purchase on each Purchase Date a number of Shares determined by
dividing such Employee's Contributions accumulated prior to such Purchase
Date and retained in the participant's account as of the Purchase Date by
the applicable Purchase Price; provided, however, that the maximum number
of Shares an Employee may purchase during each Purchase Period shall be
6,000 Shares (subject to any adjustment pursuant to Section 19 below),
and provided further that such purchase shall be subject to the
limitations set forth in Sections 3(b) and 13.
(b) The fair market value of the Company's Common Stock on a
given date (the "Fair Market Value") shall be determined by the Board in
its discretion based on the closing sales price of the Common Stock for
such date (or, in the event that the Common Stock is not traded on such
date, on the immediately preceding trading date), as reported by the
National Association of Securities Dealers Automated Quotation (Nasdaq)
National Market or, if such price is not reported, the mean of the bid
and asked prices per Share as reported by Nasdaq or, in the event the
Common Stock is listed on a stock exchange, the Fair Market Value per
Share shall be the closing sales price on such exchange on such date (or,
in the event that the Common Stock is not traded on such date, on the
immediately preceding trading date), as reported in The Wall Street
Journal. For purposes of the Offering Date under the first Offering
Period under the Plan, the Fair Market Value of a Share shall be the
Price to Public as set forth in the final prospectus filed with the
Securities and Exchange Commission pursuant to Rule 424 under the
Securities Act.
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8. EXERCISE OF OPTION. Unless a participant withdraws from the Plan
as provided in Section 10, his or her option for the purchase of Shares will be
exercised automatically on each Purchase Date of an Offering Period, and the
maximum number of full Shares subject to the option will be purchased at the
applicable Purchase Price with the accumulated Contributions in his or her
account. No fractional Shares shall be issued. Any payroll deductions
accumulated in a participant's account that are not sufficient to purchase a
full Share shall be retained in the participant's account for the subsequent
Purchase Period or Offering Period, subject to earlier withdrawal by the
participant as provided in Section 10 below. Any other amounts left over in a
participant's account after a Purchase Date shall be returned to the
participant. The Shares purchased upon exercise of an option hereunder shall be
deemed to be transferred to the participant on the Purchase Date. During his or
her lifetime, a participant's option to purchase Shares hereunder is exercisable
only by him or her.
9. DELIVERY. Within twenty (20) days after each Purchase Date of
each Offering Period, the number of Shares purchased by each participant upon
exercise of his or her option shall be delivered to the participant or, at the
option of the participant, shall be deposited into an account established in the
participant's name with the Designated Broker.
10. VOLUNTARY WITHDRAWAL; TERMINATION OF EMPLOYMENT.
(a) A participant may withdraw all but not less than all the
Contributions credited to his or her account under the Plan at any time
prior to each Purchase Date by giving written notice to the Company or
the Designated Broker, as directed by the Company. All of the
participant's Contributions credited to his or her account will be paid
to him or her promptly after receipt of his or her notice of withdrawal
and his or her option for the current period will be automatically
terminated, and no further Contributions for the purchase of Shares will
be made during the Offering Period.
(b) Upon termination of the participant's Continuous Status as
an Employee prior to the Purchase Date of an Offering Period for any
reason, including retirement or death, the Contributions credited to his
or her account will be returned to him or her or, in the case of his or
her death, to the person or persons entitled thereto under Section 14,
and his or her option will be automatically terminated.
(c) In the event an Employee fails to remain in Continuous
Status as an Employee of the Company for at least twenty (20) hours per
week during the Offering Period in which the employee is a participant,
he or she will be deemed to have elected to withdraw from the Plan and
the Contributions credited to his or her account will be returned to him
or her and his or her option terminated.
(d) A participant's withdrawal from an offering will not have
any effect upon his or her eligibility to participate in a succeeding
offering or in any similar plan that may hereafter be adopted by the
Company.
11. AUTOMATIC WITHDRAWAL. If the Fair Market Value of the Shares on
any Purchase Date of an Offering Period is less than the Fair Market Value of
the Shares on the Offering Date
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for such Offering Period, then every participant shall automatically (i) be
withdrawn from such Offering Period at the close of such Purchase Date after the
acquisition of Shares for such Purchase Period, and (ii) be enrolled in the
Offering Period commencing on the first business day subsequent to such Purchase
Period.
12. INTEREST. No interest shall accrue on any Contributions of any
participant in the Plan.
13. STOCK.
(a) Subject to adjustment as provided in Section 19, the
maximum number of Shares which shall be made available for sale under the
Plan shall be 2,500,000 Shares. If the Board determines that, on a given
Purchase Date, the number of Shares with respect to which options are to
be exercised may exceed (i) the number of Shares that were available for
sale under the Plan on the Offering Date of the applicable Offering
Period, or (ii) the number of Shares available for sale under the Plan on
such Purchase Date, the Board may in its sole discretion provide (x) that
the Company shall make a pro rata allocation of the Shares available for
purchase on such Offering Date or Purchase Date, as applicable, in as
uniform a manner as shall be practicable and as it shall determine in its
sole discretion to be equitable among all participants exercising options
to purchase Common Stock on such Purchase Date, and continue all Offering
Periods then in effect, or (y) that the Company shall make a pro rata
allocation of the Shares available for purchase on such Offering Date or
Purchase Date, as applicable, in as uniform a manner as shall be
practicable and as it shall determine in its sole discretion to be
equitable among all participants exercising options to purchase Common
Stock on such Purchase Date, and terminate any or all Offering Periods
then in effect pursuant to Section 20 below. The Company may make pro
rata allocation of the Shares available on the Offering Date of any
applicable Offering Period pursuant to the preceding sentence,
notwithstanding any authorization of additional Shares for issuance under
the Plan by the Company's stockholders subsequent to such Offering Date.
(b) No participant shall have any interest or voting right in
Shares covered by his or her option until such option has been exercised.
(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 or her spouse.
14. ADMINISTRATION. The Board, or a committee named by the Board,
shall supervise and administer the Plan and shall have full power to adopt,
amend and rescind any rules deemed desirable and appropriate for the
administration of the Plan and not inconsistent with the Plan, to construe and
interpret the Plan, and to make all other determinations necessary or advisable
for the administration of the Plan.
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15. DESIGNATION OF BENEFICIARY.
(a) A participant may designate 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 subsequent to the end of a
Purchase Period but prior to delivery to him or her of such Shares and
cash. In addition, a participant may designate a beneficiary who is to
receive any cash from the participant's account under the Plan in the
event of such participant's death prior to the Purchase Date of an
Offering Period. If a participant is married and the designated
beneficiary is not the spouse, spousal consent shall be required for such
designation to be effective. Beneficiary designations under this Section
15(a) shall be made as directed by the Company's Human Resources
Department.
(b) Such designation of beneficiary may be changed by the
participant (and his or 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 Company), the Company, 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 Company, then to such other person as the Company may
designate.
16. TRANSFERABILITY. Neither Contributions 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 Section 15) by the participant. Any such
attempt at assignment, transfer, pledge or other disposition shall be without
effect, except that the Company may treat such act as an election to withdraw
funds in accordance with Section 10.
17. USE OF FUNDS. All Contributions 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 Contributions.
18. REPORTS. Individual accounts will be maintained for each
participant in the Plan. Statements of account will be provided to
participating Employees by the Company or the Designated Broker at least
annually, which statements will set forth the amounts of Contributions, the per
Share Purchase Price, the number of Shares purchased and the remaining cash
balance, if any.
19. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION; CORPORATE
TRANSACTIONS.
(a) ADJUSTMENT. Subject to any required action by the
stockholders of the Company, the number of Shares covered by each option
under the plan that has not yet been exercised and the number of Shares
that have been authorized for issuance under the Plan but have not yet
been placed under option (collectively, the "Reserves"), as well as
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the maximum number of Shares that may be purchased by a participant in a
Purchase Period, the number of Shares set forth in Section 13(a)(i)
above, and the price per Share covered by each option under the Plan that
has not yet been exercised, shall be proportionately adjusted for any
increase or decrease in the number of issued Shares resulting from a
stock split, reverse stock split, stock dividend, combination or
reclassification of the Common Stock (including any such change in the
number of Shares effected in connection with a change in domicile of the
Company), or any other increase or decrease in the number of Shares
effected without receipt of consideration by the Company; provided
however that conversion of any convertible securities of the Company
shall not be deemed to have been "effected without receipt of
consideration." Such adjustment shall be made by the Board, 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 subject to an option.
(b) CORPORATE TRANSACTIONS. In the event of a Corporate
Transaction, each option outstanding under the Plan shall be assumed or
an equivalent option shall be substituted by the successor corporation or
a parent or Subsidiary of such successor corporation. In the event that
the successor corporation refuses to assume or substitute for outstanding
options, each Purchase Period and Offering Period then in progress shall
be shortened and a new Purchase Date shall be set (the "New Purchase
Date"), as of which date any Purchase Period and Offering Period then in
progress will terminate. The New Purchase Date shall be on or before the
date of consummation of the transaction and the Board shall notify each
participant in writing, at least ten (10) days prior to the New Purchase
Date, that the Purchase Date for his or her option has been changed to
the New Purchase Date and that his or her option will be exercised
automatically on the New Purchase Date, unless prior to such date he or
she has withdrawn from the Offering Period as provided in Section 10.
For purposes of this Section 19, an option granted under the Plan shall
be deemed to be assumed, without limitation, if, at the time of issuance
of the stock or other consideration upon a Corporate Transaction, each
holder of an option under the Plan would be entitled to receive upon
exercise of the option the same number and kind of shares of stock or the
same amount of property, cash or securities as such holder would have
been entitled to receive upon the occurrence of the transaction if the
holder had been, immediately prior to the transaction, the holder of the
number of Shares covered by the option at such time (after giving effect
to any adjustments in the number of Shares covered by the option as
provided for in this Section 19); provided however that if the
consideration received in the transaction is not solely common stock of
the successor corporation or its parent (as defined in Section 424(e) of
the Code), the Board may, with the consent of the successor corporation,
provide for th 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 transaction.
(c) DISSOLUTION OR LIQUIDATION. In the event of a dissolution
or liquidation of the Company, any Purchase Period and Offering Period
then in progress will terminate
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immediately prior to the consummation of such action, unless otherwise
provided by the Board.
(d) OTHER ADJUSTMENTS. The Board may, if it so determines in
the exercise of its sole discretion, also make provision for adjusting
the Reserves, as well as the price per Share covered by each outstanding
option, in the event that the Company effects one or more
reorganizations, recapitalizations, rights offerings or other increases
or reductions of Shares, and in the event of the Company's being
consolidated with or merged into any other corporation.
20. AMENDMENT OR TERMINATION.
(a) The Board may at any time and for any reason terminate or
amend the Plan. Except as provided in Section 19, no such termination of
the Plan may affect options previously granted, provided that the Plan or
an Offering Period may be terminated by the Board on a Purchase Date or
by the Board's setting a new Purchase Date with respect to an Offering
Period and Purchase Period then in progress if the Board determines that
termination of the Plan and/or the Offering Period is in the best
interests of the Company and the stockholders or if continuation of the
Plan and/or the Offering Period would cause the Company to incur adverse
accounting charges as a result of a change after the effective date of
the Plan in the generally accepted accounting rules applicable to the
Plan. Except as provided in Section 19 and in this Section 20, no
amendment to the Plan shall make any change in any option previously
granted that adversely affects the rights of any participant. In
addition, to the extent necessary to comply with Rule 16b-3 under the
Exchange Act, or under Section 423 of the Code (or any successor rule or
provision or any applicable law or regulation), the Company shall obtain
stockholder approval in such a manner and to such a degree as so
required.
(b) Without stockholder consent and without regard to whether
any participant's rights may be considered to have been adversely
affected, the Board (or its committee) shall be entitled to change the
Offering Periods and Purchase Periods, limit the frequency and/or number
of changes in the amount withheld during an Offering Period, establish
the exchange ratio applicable to amounts withheld in a currency other
than U.S. dollars, 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 that are consistent with the Plan as the Board
(or its committee) determines in its sole discretion to be advisable.
21. 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 Company at the location,
or by the person, designated by the Company for the receipt thereof.
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22. 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, the Exchange Act, the rules and regulations promulgated
thereunder, applicable state securities laws 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 Company may require the
person exercising such option 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.
23. TERM OF PLAN; EFFECTIVE DATE. The Plan shall become effective
upon the IPO Date. If the Plan is not approved by the stockholders prior to
December 31, 2000 all Contributions will be returned to each participant without
interest and the Plan will be terminated. The Plan shall continue in effect for
a term of ten (10) years unless sooner terminated under Section 20 or this
Section 23.
24. 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, and 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.
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ADAYTUM SOFTWARE, INC.
EMPLOYEE STOCK PURCHASE PLAN
SUBSCRIPTION AGREEMENT
New Election ______
Change of Election ______
1. I, ________________________, hereby elect to participate in the
Adaytum Software, Inc. Employee Stock Purchase Plan (the "Plan") for the
Offering Period ______________, ____ to _______________, ____, and subscribe to
purchase shares of the Common Stock of Adaytum Software, Inc. (the "Company") in
accordance with this Subscription Agreement and the Plan.
2. I elect to have Contributions in the amount of ____ percent (__%)
of my Compensation, as those terms are defined in the Plan, applied to this
purchase. I understand that this amount must not be less than zero percent (0%)
and not more than fifteen percent (15%) of my Compensation during the Offering
Period. (Please note that no fractional percentages are permitted).
3. I hereby authorize payroll deductions from each paycheck during
the Offering Period at the rate stated in Item 2 of this Subscription Agreement.
I understand that all payroll deductions made by me shall be credited to my
account under the Plan and that I may not make any additional payments into such
account. I understand that all payments made by me shall be accumulated for the
purchase of shares of Common Stock at the applicable purchase price determined
in accordance with the Plan. I further understand that, except as otherwise set
forth in the Plan, shares will be purchased for me automatically on the Purchase
Date of each Offering Period unless I withdraw from the Plan in a timely fashion
by giving written notice to the Company for such purpose.
4. I understand that I may discontinue at any time prior to the
Purchase Date my participation in the Plan as provided in Section 10 of the
Plan. I also understand that, unless otherwise provided by the Plan
administrator, I can increase or decrease the rate of my Contributions on one
occasion only with respect to each rate change during any Purchase Period by
completing and filing a new Subscription Agreement with such increase or
decrease taking effect as of the beginning of the calendar month following the
date of filing of the new Subscription Agreement, if filed at least ten (10)
business days prior to the beginning of such month. Further, I may change the
rate of deductions for future Offering Periods by filing a new Subscription
Agreement, and any such change will be effective as of the beginning of the next
Offering Period. In addition, I acknowledge that, unless I discontinue my
participation in the Plan as provided in Section 10 of the Plan, my election
will continue to be effective for each successive Offering Period.
5. I have received a copy of the Company's most recent description of
the Plan and a copy of the complete "Adaytum Software, Inc. Employee Stock
Purchase Plan." I understand that my participation in the Plan is in all
respects subject to the terms of the Plan. I also
understand that participation in the Plan does not affect my "at will"
employment status or the Company's right to terminate my employment at any time
with or without cause.
6. Shares purchased for me under the Plan should be issued in the
name(s) of (name of employee or employee and spouse only):
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8. In the event of my death, I hereby designate the following as my
beneficiary(ies) to receive all payments and shares due to me under the Plan:
NAME: (Please print)
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(First) (Middle) (Last)
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(Address)
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(Relationship)
9. I understand that if I dispose of any shares received by me
pursuant to the Plan within 2 years after the Offering Date (the first day of
the Offering Period during which I purchased such shares) or within 1 year after
the Purchase Date, I will be treated for federal income tax purposes as having
received ordinary compensation income at the time of such disposition in an
amount equal to the excess of the fair market value of the shares on the
Purchase Date over the price that I paid for the shares, regardless of whether I
disposed of the shares at a price less than their fair market value at the
Purchase Date. The remainder of the gain or loss, if any, recognized on such
disposition will be treated as capital gain or loss.
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 federal,
state or other tax withholding obligations, if any, that 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 the sale or early
disposition of Common Stock by me.
10. If I dispose of such shares at any time after expiration of the
2-year and 1-year holding periods, I understand that I will be treated for
federal income tax purposes as having received compensation 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
2
price that I paid for the shares under the option, or (2) 15% of the fair market
value of the shares on the Offering Date. The remainder of the gain or loss, if
any, recognized on such disposition will be treated as long term capital gain or
loss.
I understand that this tax summary is only a summary and is subject to
change. I further understand that I should consult a tax advisor concerning the
tax implications of the purchase and sale of stock under the Plan.
11. I hereby agree to be bound by the terms of the Plan. The
effectiveness of this Subscription Agreement is dependent upon my eligibility to
participate in the Plan.
SIGNATURE:
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SOCIAL SECURITY #:
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DATE:
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SPOUSE'S SIGNATURE (necessary if beneficiary is not spouse):
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(Signature)
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(Print name)
3
ADAYTUM SOFTWARE, INC.
EMPLOYEE STOCK PURCHASE PLAN
NOTICE OF WITHDRAWAL
I, __________________________, hereby elect to withdraw my participation
in the Adaytum Software, Inc. Employee Stock Purchase Plan (the "Plan") for the
Offering Period that began on _________ ___, _____. This withdrawal covers all
Contributions credited to my account and is effective on the date designated
below.
I understand that all Contributions credited to my account will be paid
to me promptly after receipt by Adaytum Software, Inc. (the "Company") of this
Notice of Withdrawal and that my option for the current period will
automatically terminate, and that no further Contributions for the purchase of
shares can be made by me during the Offering Period.
The undersigned further understands and agrees that he or she shall be
eligible to participate in succeeding offering periods only by delivering to the
Company a new Subscription Agreement.
Dated:
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Signature of Employee
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Print Name
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Social Security Number