EXHIBIT 4.4
GEAC COMPUTER CORPORATION LIMITED
2003 EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE.
The Geac Computer Corporation Limited 2003 Employee Stock Purchase Plan
(the "Plan") is intended to provide a method whereby employees of Geac Computer
Corporation Limited (the "Company") will have an opportunity to acquire an
ownership interest (or increase an existing ownership interest) in the Company
through the purchase of shares of the Common Stock of the Company. It is the
intention of the Company that the Plan qualify as an "employee stock purchase
plan" under Section 423 of the United States Internal Revenue Code of 1986, as
amended (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.
"Administrative Agent" has the meaning ascribed thereto in
Paragraph 13 hereof.
"Board" means the Board of Directors of the Company.
"Committee" means the Compensation Committee of the Board.
"Common Stock" means the common shares, without par value, of
the Company.
"Company" shall also include any Parent or Subsidiary of Geac
Computer Corporation Limited designated by the Board, unless
the context otherwise requires.
"Compensation" means, for the purpose of any Offering pursuant
to this Plan, base pay in effect as of the Offering
Commencement Date (as hereinafter defined). Compensation shall
not include any deferred compensation other than salary
reduction contributions under a cash or deferred arrangement
pursuant to Section 401(k) of the Code, salary reduction
amounts under a cafeteria plan pursuant to Section 125 of the
Code, and salary reduction amounts pursuant to a qualified
transportation fringe benefit program pursuant to Section
132(f) of the Code.
"Employee" means any person who is customarily employed at
least 20 hours per week and more than five months in a
calendar year by the Company.
"Parent" shall mean any present or future corporation which is
or would constitute a "parent corporation" as that term is
defined in Section 424 of the Code.
"Subsidiary" shall mean any present or future corporation
which is or would constitute a "subsidiary corporation" as
that term is defined in Section 424 of the Code.
3. ELIGIBILITY.
(a) Participation in the Plan is completely voluntary.
Participation in any one or more of the offerings under the
Plan shall neither limit, nor require, participation in any
other offering.
(b) Each employee shall be eligible to participate in the Plan on
the first Offering Commencement Date, as hereafter defined,
following the completion of two (2) full calendar months of
continuous service with the Company. Notwithstanding the
foregoing, no employee shall be granted an option under the
Plan:
(i) if, immediately after the grant, such employee would
own stock, and/or hold outstanding options to
purchase stock, possessing 5% or more of the total
combined voting power or value of all classes of
stock of the Company or any Parent or Subsidiary; for
purposes of this Paragraph the rules of Section
424(d) of the Code shall apply in determining stock
ownership of any employee; or
(ii) if the grant permits the employee's rights to
purchase stock under all Section 423 employee stock
purchase plans of the Company and any Parent or
Subsidiary to exceed $25,000 of the fair market value
of the stock (determined at the time such option is
granted) for each calendar year in which such option
is outstanding; for purposes of this Paragraph, the
rules of Section 423(b)(8) of the Code shall apply;
or
(iii) if the employee is a resident of a jurisdiction and
the laws of such jurisdiction would make the
participation of such employee in the Plan
impractical.
4. OFFERING DATES.
The right to purchase stock hereunder shall be made available through
offerings (the "Offering" or "Offerings") to employees eligible in accordance
with Paragraph 3 hereof. The Committee will, in its discretion, determine the
applicable date of commencement ("Offering Commencement Date") and termination
("Offering Termination Date") for each Offering and the number of Offerings to
be made available under the Plan. Participation in any one or more of the
Offerings under the Plan shall neither limit, nor require, participation in any
other Offering.
5. PARTICIPATION.
Any eligible employee may become a participant by completing a payroll
deduction authorization form provided by the Company and filing it with the
office of the plan
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administrator appointed by the Committee (the "Plan Administrator") 20 days
prior to an applicable Offering Commencement Date, as determined by the
Committee pursuant to Paragraph 4. A participant who obtains shares of Common
Stock in one Offering will be deemed to have elected to participate in each
subsequent Offering, provided such participant is eligible to participate during
each such subsequent Offering and provided that such participant has not
specifically elected not to participate in such subsequent Offering. Such
participant will also be deemed to have authorized the same payroll deductions
under Paragraph 6 hereof for each such subsequent Offering as in the immediately
preceding Offering; provided however, that, during the enrollment period prior
to each new Offering, the participant may elect to change such participant's
payroll deductions by submitting a new payroll deduction authorization form or
elect not to participate in the new Offering.
6. PAYROLL DEDUCTIONS.
(a) At the time a participant files his authorization for a
payroll deduction, he shall elect to have deductions made from
his pay on each payday during any Offering in which he is a
participant at a specified percentage of his Compensation as
determined on the applicable Offering Commencement Date; said
percentage shall be in increments of one percent up to a
maximum percentage of ten percent.
(b) Payroll deductions for a participant shall commence on the
applicable Offering Commencement Date when his authorization
for a payroll deduction becomes effective and subject to the
last sentence of Paragraph 5 shall end on the Offering
Termination Date of the Offering to which such authorization
is applicable unless sooner terminated by the participant as
provided in Paragraph 10.
(c) All payroll deductions made for a participant shall be
credited to his account under the Plan. A participant may not
make any separate cash payment into such account.
(d) A participant may withdraw from the Plan at any time during
the applicable Offering period.
7. GRANTING OF OPTION.
(a) Except as provided in clause (ii) of Paragraph 3(b), on the
Offering Commencement Date of each Offering, a participating
employee shall be deemed to have been granted an option to
purchase a maximum number of shares of the Common Stock equal
to two times an amount determined as follows: 85% of the
market value per share of the Common Stock on the applicable
Offering Commencement Date shall be divided into an amount
equal to the percentage of the employee's Compensation which
he has elected to have withheld multiplied by the employee's
Compensation over the Offering period. Such market value per
share of the Common Stock shall be determined as provided in
clause (i) of Paragraph 7(b).
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(b) The option price of the Common Stock purchased with payroll
deductions made during each such Offering for a participant
therein shall be the lower of:
(i) The Applicable Percentage (as defined below) of: (A)
the closing price per share on the Offering
Commencement Date, as reported (I) by the Toronto
Stock Exchange or other nationally recognized stock
exchange in Canada or the United States on which the
Common Stock is listed, or (II) if the Common Stock
is not listed on such an exchange, by the National
Association of Securities Dealers Automated Quotation
System ("Nasdaq") National Market System or, (B) if
the Common Stock is not listed on the Nasdaq National
Market System but is otherwise publicly traded
over-the-counter, the mean of the bid and asked
prices per share on the Offering Commencement Date
or, (C) if the Common Stock is not traded
over-the-counter, the fair market value on the
Offering Commencement Date as determined by the
Committee; and
(ii) The Applicable Percentage of: (A) the closing price
per share on the Offering Termination Date, as
reported (I) by the Toronto Stock Exchange Toronto
Stock Exchange or other nationally recognized stock
exchange in Canada or the United States on which the
Common Stock is listed, or, (II) if the Common Stock
is not listed on such an exchange, by the Nasdaq
National Market System or, (B) if the Common Stock is
not listed on the Nasdaq National Market System but
is otherwise publicly traded over-the-counter, of the
mean of the bid and asked prices per share on the
Offering Termination Date or, (C) if the Common Stock
is not traded over-the-counter, of the fair market
value on the Offering Termination Date as determined
by the Committee.
(iii) For purposes of clauses (i) and (ii) above, the
"Applicable Percentage" shall be equal to 85%.
8. EXERCISE OF OPTION.
(a) Unless a participant gives written notice to the Plan
Administrator as hereinafter provided, his option for the
purchase of Common Stock with payroll deductions made during
any Offering will be deemed to have been exercised
automatically on the Offering Termination Date applicable to
such Offering for the purchase of the number of full shares of
Common Stock which the accumulated payroll deductions in his
account at that time will purchase at the applicable option
price (but not in excess of the number of shares for which
options have been granted the employee pursuant to Paragraph
7(a)), and any excess in his account at that time, other than
amounts representing fractional shares, will be returned to
him. For greater certainty, all options granted hereunder in
respect of an Offering shall expire immediately following the
Offering Termination Date applicable to such Offering.
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(b) Fractional shares will not be issued under the Plan and any
accumulated payroll deductions which would have been used to
purchase fractional shares shall be automatically carried
forward to the next Offering unless the participant elects, by
written notice to the Plan Administrator, to have the excess
cash returned to him.
9. DELIVERY OF SHARES.
The Company will deliver to each participant (as promptly as possible
after the appropriate Offering Termination Date), a certificate representing the
Common Stock purchased upon exercise of his option. In lieu of issuing new
shares of Common Stock, the Company may, in its sole discretion, elect to
deliver to the Administrative Agent, on behalf of participants (as promptly as
possible after the appropriate Offering Termination Date) sufficient funds to
permit the appropriate number of shares of Common Stock exercised on said
Offering Termination Date pursuant to Paragraph 8(a) to be purchased in the open
market with instructions to deposit in an account established by the
Administrative Agent in each participant's name the number of shares purchased
by each participant on said Offering Termination Date.
10. WITHDRAWAL AND TERMINATION.
(a) Prior to the Offering Termination Date for an Offering, any
participant may withdraw the payroll deductions credited to
his account under the Plan for such Offering by giving written
notice to the Plan Administrator. All of the participant's
payroll deductions credited to such account will be paid to
him promptly after receipt of notice of withdrawal, without
interest, and no future payroll deductions will be made from
his pay during such Offering. The Company will treat any
attempt to borrow by a participant on the security of
accumulated payroll deductions as an election to withdraw such
deductions.
(b) A participant's election not to participate in, or withdrawal
from, any Offering will not have any effect upon his
eligibility to participate in any succeeding Offering or in
any similar plan which may hereafter be adopted by the
Company.
(c) Upon the date of notice of termination of the participant's
employment for any reason, including retirement but excluding
death, the payroll deductions credited to his account will be
returned to him, or, in the case of his death, to the person
or persons entitled thereto under Paragraph 14.
(d) Upon termination of the participant's employment because of
death, his beneficiary (as defined in Paragraph 14) shall have
the right to elect, by written notice given to the Plan
Administrator prior to the expiration of a period of 90 days
commencing with the date of the death of the participant, but
not beyond the Offering Termination Date next following the
date of death, either:
(i) to withdraw all of the payroll deductions credited to
the participant's account under the Plan; or
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(ii) to exercise the participant's option for the purchase
of stock on the Offering Termination Date next
following the date of the participant's death for the
purchase of the number of full shares which the
accumulated payroll deductions in the participant's
account at the date of the participant's death will
purchase at the applicable option price (subject to
the limitation contained in Paragraph 7(a)), and any
excess in such account will be returned to said
beneficiary. In the event that no such written notice
of election shall be duly received by the office of
the Plan Administrator, the beneficiary shall
automatically be deemed to have elected to withdraw
the payroll deductions credited to the participant's
account at the date of the participant's death and
the same will be paid promptly to said beneficiary.
11. INTEREST.
No interest will be paid or allowed on any money paid into the Plan or
credited to the account of any participating employee.
12. STOCK.
(a) The maximum number of shares of Common Stock available for
issuance and purchase by employees under the Plan, subject to
adjustment upon changes in capitalization of the Company as
provided in Paragraph 17, shall be 2,000,000 shares of Common
Stock. If the total number of shares for which options are
exercised on any Offering Termination Date in accordance with
Paragraph 8 exceeds the maximum number of shares for the
applicable Offering, the Company shall make a pro rata
allocation of the shares available for delivery and
distribution in an equitable manner, and the balances of
payroll deductions credited to the account of each participant
under the Plan shall be returned to the participant.
(b) The participant will have no interest in stock covered by any
option granted hereunder until such option has been exercised.
13. ADMINISTRATION.
The Plan shall be administered by the Committee. The interpretation and
construction of any provision of the Plan and adoption of rules and regulations
for administering the Plan shall be made by the Committee. Determinations made
by the Committee with respect to any matter or provision contained in the Plan
shall be final, conclusive and binding upon the Company and upon all
participants, their heirs or legal representatives. Any rule or regulation
adopted by the Committee shall remain in full force and effect unless and until
altered, amended, or repealed by the Committee. The Committee may also from time
to time appoint an administrative agent (the "Administrative Agent") to
administer such aspects of the Plan pursuant to an agreement with such agent
that sets out, among other things, such rules and regulations relating to the
operation of the Plan as the Committee may in its sole discretion determine.
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14. DESIGNATION OF BENEFICIARY.
A participant shall file with the Plan Administrator a written
designation of a beneficiary who is to receive any Common Stock and/or cash
under the Plan. Such designation of beneficiary may be changed by the
participant at any time by written notice. Upon the death of a participant and
upon receipt by the Company of proof of the identity and existence at the
participant's death of a beneficiary validly designated by him under the Plan,
the Company shall deliver such Common Stock and/or cash to such beneficiary. 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 Common Stock and/or cash to
the executor or administrator of the estate of the participant. No beneficiary
shall prior to the death of the participant by whom he has been designated,
acquire any interest in the Common Stock and/or cash credited to the participant
under the Plan.
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 Common Stock under
the Plan may be assigned, transferred, pledged, or otherwise disposed of in any
way by the participant other than by will or the laws of descent and
distribution. Any such attempted 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 Paragraph 10.
16. USE OF FUNDS.
All payroll deductions received or held by the Company under this Plan
may be used by the Company for any corporate purpose, and the Company shall not
be obligated to segregate such payroll deductions.
17. EFFECT OF CHANGES OF COMMON STOCK.
If the Company shall subdivide or reclassify the Common Stock which has
been or may be subject to options under this Plan, or shall declare thereon any
dividend payable in shares of such Common Stock, or shall take any other action
of a similar nature affecting such Common Stock, then the number and class of
shares of Common Stock which may thereafter be subject to options under the Plan
(in the aggregate and to any participant) shall be adjusted accordingly and in
the case of each option outstanding at the time of any such action, the number
and class of shares which may thereafter be purchased pursuant to such option
and the option price per share shall be adjusted to such extent as may be
determined by the Committee, with the approval of independent public accountants
and counsel, to be necessary to preserve the rights of the holder of such
option.
18. AMENDMENT OR TERMINATION.
The Board may at any time terminate or amend the Plan. Upon such
termination of the Plan, the payroll deductions credited to a participant's
account will be returned to him and no Common Stock will be issued in respect
thereof.
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19. 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 by the Plan Administrator.
20. EFFECT OF CERTAIN TRANSACTIONS.
If the Company is a party to a reorganization or merger with one or
more other corporations, whether or not the Company is the surviving or
resulting corporation, or if the Company consolidates with or into one or more
other corporations, or if the Company is liquidated or sells or otherwise
disposes of substantially all of its assets to another corporation (each
hereinafter referred to as a "Transaction"), in any such event while an Offering
is in progress under Section 4 hereof, then: (i) after the effective date of
such Transaction options shall remain outstanding and shall be exercisable in
shares of common Stock, or, if applicable, shares of such stock or other
securities, cash or property as the holders of shares of Common Stock received
pursuant to the terms of such transaction; or (ii) the Board may accelerate the
Offering Termination Date to a date coincident with or prior to the effective
date of such Transaction.
21. APPROVAL OF SHAREHOLDERS.
The Plan is subject to the approval of the shareholders of the Company
at their next annual meeting or at any special meeting of the shareholders for
which one of the purposes shall be to act upon the Plan.
22. GOVERNMENTAL AND OTHER REGULATIONS.
The Plan, and the grant and exercise of the rights to purchase shares
hereunder, and the Company's obligation to sell and deliver shares upon the
exercise of rights to purchase shares, shall be subject to all applicable
federal, state and foreign laws, rules and regulations, and to such approvals by
any regulatory or governmental agency as may, in the opinion of counsel for the
Company, be required. The Plan shall be governed by, and construed and enforced
in accordance with, the provisions of Sections 421, 423 and 424 of the Code and
the substantive laws of the Province of Ontario and the federal laws of Canada
applicable therein. In the event of any inconsistency between such provisions of
the Code and any such laws, such provisions of the Code shall govern to the
extent necessary to preserve favorable United States federal income tax
treatment afforded employee stock purchase plans under Section 423 of the Code.
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